1 Wednesday, 15 May 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 Before we start today's proceedings, there's just 6 something I'd like to mention to Mr Henry and 7 Mr Moloney. Can you both see me? 8 MR STEVENS: Yes, sir, they can. 9 SIR WYN WILLIAMS: Fine. Well -- 10 MR STEVENS: Sorry, Mr Henry isn't here. That was my fault. 11 SIR WYN WILLIAMS: Mr Moloney is present but not Mr Henry, 12 but I take it Ms Page is here? 13 MR STEVENS: Yes, sir. 14 SIR WYN WILLIAMS: What I'd like to say is this: that I have 15 reflected overnight on the decision which I made 16 yesterday afternoon to close the proceedings without 17 giving both Mr Henry and Mr Moloney the opportunity to 18 put questions to Mr Davies. I have decided that that 19 was wrong of me and, accordingly, I apologise to both 20 Mr Moloney and Mr Henry, their professional and lay 21 clients. 22 All right, Mr Stevens, we can continue. 23 MR STEVENS: Thank you, sir. We have Mr Bourke today. 24 I just want to check he can see and hear us? 25 THE WITNESS: I can, thank you. 1 1 MR STEVENS: Thank you, if I can call him, sir. 2 SIR WYN WILLIAMS: Yes, of course. 3 PATRICK FRANCIS ULICK BOURKE (sworn) 4 Questioned by MR STEVENS 5 MR STEVENS: Sir, I should say we are due to have a fire 6 alarm at 10.00. I will simply pause while that goes on, 7 rather than have a formal adjournment. 8 SIR WYN WILLIAMS: Mr Stevens, when Mr Bourke was taking the 9 oath, I found what he was saying quite difficult to 10 hear. Was that your experience as well? 11 MR STEVENS: Yes, sir, I agree, and I think if we can ask 12 Mr Bourke -- 13 Mr Bourke, can I ask you first just to state your 14 full name. 15 A. It's Patrick Francis Ulick Bourke. 16 Q. That's fine. Thank you for giving evidence to the 17 Inquiry today. Mr Bourke, you've provided two witness 18 statements, which I want to go to in the first instance. 19 Your first is dated 11 April 2024. Do you have that in 20 front of you? 21 A. I do. 22 Q. That statement is referenced WITN09830100. Could I ask 23 you, please, to turn to page 126. 24 A. Yes. 25 Q. Is that your signature? 2 1 A. It is, yeah. 2 Q. You then provided a second statement, which, amongst 3 other things, clarifies or corrects some parts of your 4 first witness statement. That is dated 2 May 2024. Do 5 you have that in front of you? 6 A. I have, yes. 7 Q. That is document reference WITN09830200. It runs to 8 seven paragraphs. Could I ask you, please, to turn to 9 page 7 of the statement. 10 A. Yes. 11 Q. Is that your signature? 12 A. It is, yes. 13 Q. Can you confirm that, taken together, the contents of 14 those statements are true to the best of your knowledge 15 and belief? 16 A. I can confirm that. 17 Q. Your statement now stands as evidence in the Inquiry. 18 They will both be published on the website shortly. 19 I am going to ask you some questions about them but 20 I'd like to start, please, with your first witness 21 statement, if we can have that at paragraph 5, page 2, 22 on the screen. At paragraph 5, you set out your 23 background and you say: 24 "I have been asked to provide my professional 25 background and qualifications prior to joining [Post 3 1 Office Limited]." 2 You refer to graduating with a degree in law and 3 French. Then you say: 4 "I trained as a lawyer at the European Commission, 5 the Post Office, and DJ Freeman and qualified as 6 a solicitor in 1997." 7 Please can you confirm when you trained with the 8 Post Office? 9 A. For a period of two months in the period between 1995 10 and 1997 -- sorry, for a period of two terms of six 11 months between those two dates. 12 Q. Two terms of six months, so is that two seats, 13 effectively? 14 A. That's exactly right, yes. 15 Q. What area of law were those seats in? 16 A. One was focused on general commercial and competition 17 law, and the other was in intellectual property. 18 Q. While you were training as a solicitor with the Post 19 Office, did you have any involvement with the Criminal 20 Law Department? 21 A. No, they were -- you know, I was aware that they existed 22 but there was no crossover in our work. 23 Q. Did you have any discussions with anyone in the Criminal 24 Law Department about their work? 25 A. Not to the best of my recollection. 4 1 Q. You go on to say that you practised at Berwin Leighton 2 for two years and then you say you were Head of European 3 Affairs for Post Office in 1999, again based in 4 Brussels, when you say you stopped practising as 5 a lawyer. When did you stop practice as a lawyer? 6 A. After my stint with Berwin Leighton. 7 Q. So when you were Head of European Affairs for Post 8 Office, what did your role entail? 9 A. That was policy work, policy and advocacy work. 10 Q. Did you have any involvement with matters relating to 11 the Horizon IT project whilst in that role? 12 A. No, none whatsoever. I was engaged in work concerning 13 the liberalisation of postal markets across Europe. 14 Q. You then held roles as a civil servant in what is now 15 the Ministry of Justice, correct? 16 A. Yes. 17 Q. We'll jump to the most relevant time now: you joined 18 Post Office Limited in 2014 as Programme Manager for the 19 Mediation Scheme? 20 A. Yes, I did. 21 Q. In that role, who did you report to? 22 A. Initially to Belinda Crowe and then, subsequently, to 23 Jane MacLeod. 24 Q. I take it from your earlier evidence that you didn't 25 have a practising certificate at the time as a solicitor 5 1 when you were Programme Manager? 2 A. That's correct. 3 Q. So at no time as Programme Manager did you hold yourself 4 out as a lawyer? 5 A. At no time during my time at the Post Office, no. 6 Q. In June 2016, you became Deputy Corporate Services 7 Director, correct? 8 A. Correct. 9 Q. What role did that entail? 10 A. As I think I described in my witness statement, I was 11 chiefly involved in acting as a deputy to the General 12 Counsel, Jane MacLeod, for the purposes of management, 13 rather than for the purposes of any legal advice she 14 might be giving. She was engaged in a process to 15 integrate various other teams from across the business 16 so, in particular, the audit and risk function and 17 information security, and information rights, and she 18 asked me to help her integrate those teams into a more 19 coherent whole. 20 Q. On that, please, could we bring back up your witness 21 statement at page 4, please. Thank you. If we could go 22 to the bottom of the page, you there refer to the role. 23 At the end you say: 24 "Within approximately 6 to 12 months of the new 25 structure taking shape, steps were taken to break up the 6 1 Security Team into three smaller teams, with only the 2 Financial Crime Team (looking at money laundering 3 issues) remaining within Jane MacLeod's wider 4 Directorate. While I was not directly involved in this 5 decision, I was aware of concerns at senior level about 6 the prevailing work culture which characterised the 7 team." 8 Please could you describe what concerns you were 9 aware of about the work culture in the Security Team? 10 A. Yes, of course. The -- I think the summary is that it 11 was very old-fashioned and depended on a very command 12 and control type style of management, with the person at 13 the top of that, the top of that function really, you 14 know, being the determinant of everything, and -- 15 Q. Just pausing there, sorry, who at that time was top of 16 the department then? 17 A. John Scott. 18 Q. John Scott, thank you. Please continue. 19 A. So, no, it was very old-fashioned and did not conform to 20 what was then the prevailing view of what team 21 management -- if you like, effective management 22 consisted in. 23 Q. When you were looking at those concerns or when you were 24 aware of those concerns, to what extent were people 25 concerned that that work culture was affecting the way 7 1 the Security Department investigated matters, such as 2 subpostmasters? 3 A. So I'm not sure what the link was, you know, between the 4 culture and the practice of investigation, particularly 5 of subpostmasters, but I think it's fair to say that the 6 sort of -- there was a sense that, in some ways, the 7 culture was reminiscent of, I don't know, you know, 8 a group of sort of ex-policemen investigators coming 9 together and that had a sort of particular culture to 10 it, which was a bit of an anathema to what the Post 11 Office was trying to build. 12 Q. Can you expand on that? Why was it different to what 13 Post Office was trying to build on? 14 A. Well, the rest of Post Office was very open and 15 collaborative by nature. The Security team, from 16 memory, acted much more stand alone and seemed to enjoy, 17 if you like, being slightly to one side. I dare say, 18 you know, there was a sense in which, you know, being 19 an Investigator was somehow sort of special but that's 20 about as far as I can go, really. 21 Q. Well, if you were involved in the restructure, was it 22 not part of your role and responsibility to look at what 23 effect that culture had on the actual work that was 24 being carried out by the Security Department? 25 A. No, it wasn't. The decision was taken and it fell to me 8 1 to sort of, if you like, pick up the pieces and see, you 2 know -- do the follow-through. So, as I say in my 3 witness statement, I didn't take part in the decision; 4 I was somewhat involved in its implementation. 5 Q. When did you first become aware of these concerns 6 regarding the Security Team? 7 A. I think quite early on. You know, as soon as they sort 8 of report in to the -- report in to Jane MacLeod's 9 function. 10 Q. So when you say "early on", is that early on in your 11 role in 2014 or early on when you became Deputy 12 Corporate Services Director? 13 A. The latter. 14 Q. Latter. You then, in January 2018, became Corporate 15 Affairs Director, a role that's now known as Government 16 Affairs and Policy Director; is that right? 17 A. That's correct. 18 Q. When you became Corporate Affairs Director, how did your 19 role change? 20 A. Well, very substantially, in that I was engaged in 21 a range of different issues to that which I'd been 22 previously engaged with. I obviously had been quite 23 heavily involved in, particularly, the Mediation Scheme, 24 and so I retained an interest, I suppose, in the work 25 being done in that area but, by this stage, I was also 9 1 looking at the broader range of issues facing the Post 2 Office, notably in terms of issues relating to our 3 relationship with Government, funding questions around 4 the subsidy, and so on. 5 Q. The fire alarm may go off at any point but, if we can 6 bring up page 124, please, of your witness statement. 7 (Pause for fire alarm test) 8 Well, we now know we have a working and long-winded 9 fire alarm. 10 Page 124. I want to look about your approach as 11 Programme Manager and in relation to the scheme. You 12 say, a few lines down in that paragraph, "In that 13 regard" -- 14 Sorry, I should say you're referring to your 15 involvement in how Post Office Limited handled 16 challenges to the integrity of Horizon by 17 subpostmasters, Members of Parliament, journalists and 18 members of the public. You say: 19 "In that regard, I think the work I was engaged in 20 was conducted in good faith and involved me, and others 21 at [Post Office Limited], doing a significant number of 22 sensible and reasonable things as we attempted to 23 understand and to resolve the complaints and disputes 24 brought forward as part of the Scheme." 25 When you say you carried out the work in good faith, 10 1 what do you mean by that? 2 A. Well, I mean by that that, obviously, context is very 3 important in this affair, and we were not imbued with 4 the same knowledge that we have today about what was 5 going on or may have been going on in the background. 6 So, as we were seeing it, the work involved in the 7 Mediation Scheme, the Complaints and Mediation Scheme, 8 was a genuine attempt to try to resolve the complaints 9 brought forward by a relatively small number of 10 subpostmasters and, you know, I think we did do some 11 very sensible things in order to try to achieve that 12 objective. 13 Q. In the context of investigations, would you accept that 14 acting in good faith includes keeping an open mind? 15 A. As a general principle, yes, but I wasn't involved in 16 any investigations. 17 Q. I'll rephrase, then. In Post Office's work, in 18 responding to allegations about the Horizon IT System, 19 when you're responding to them and listening to those 20 allegations, do you think acting in good faith included 21 keeping an open mind about the allegations? 22 A. I do and I think we did, and a number of the documents 23 that have been shared with me and that I've also 24 requested from Post Office Limited show that, whilst we 25 had a growing sense of confidence in the operation of 11 1 the Horizon system as the investigations and case 2 reviews came forward from Second Sight, I record in 3 a number of different places that we should not be 4 complacent. Whilst it was certainly the case that we 5 could draw some comfort from what we've discovered to 6 date, we should not be complacent that that would be the 7 final word. 8 Q. Mr Bourke, I'm going to explore with you what actually 9 happened. My question is simply: do you accept it 10 involved keeping an open mind? Your answer is yes. Do 11 you accept that acting in good faith also meant acting 12 with transparency? 13 A. Yes. 14 Q. Would you accept that acting with good faith includes 15 acting fairly? 16 A. Yes. 17 Q. When you were brought on to the Mediation Scheme, what 18 did you understand the objectives of what's been termed 19 Project Sparrow to be? 20 A. My understanding was that this was a project established 21 to receive, analyse, examine and hopefully resolve 22 a number of issues brought forward by postmasters as 23 part of a Complaints and Mediation Scheme. 24 Q. Your role as Programme Manager, what did you understand 25 that role to involve on a day-to-day basis? 12 1 A. My role involved ensuring the throughput of cases 2 through the various stages of that, ensuring that the 3 Working Group, that had been set up to look at questions 4 of whether or not cases were suitable for mediation, to 5 ensure that those meetings were equipped with the 6 information they needed to make those determinations and 7 to, you know, otherwise facilitate the successful 8 conclusion of that project. 9 Q. When you joined Post Office Limited, what, if anything, 10 were you told about Post Office Limited's general 11 strategy or approach to responding to challenges brought 12 by subpostmasters regarding the integrity of the Horizon 13 IT System? 14 A. I don't think I was told anything specifically about our 15 approach, just that, you know, we were to, you know, 16 consider the cases thoroughly, the investigations would 17 be -- or I should say the re-investigations would be as 18 thorough and complete and exhaustive, where possible, 19 obviously the timing was a bit of a factor in terms of 20 the availability of evidence in some cases, but that we 21 would, you know, do a -- you know, do a -- do the 22 best -- do the work to the best of our ability in 23 ensuring that we understood what was really the source 24 of the complaints and, where it was possible to do so, 25 to achieve a resolution through mediation. 13 1 Q. I want to look at some examples now of the approach in 2 practice. If we can bring up, please, page 34, 3 paragraph 68 of your statement. We can see midway down 4 you're talking here about a briefing note for Paula 5 Vennells, who was having a meeting with MPs on 6 17 November. You say: 7 "At the time, there was a sense of frustration 8 within [Post Office Limited] about accusations being 9 made in the media and on social media which did not 10 acknowledge the genuine efforts being made by [Post 11 Office Limited] to resolve the issues raised by 12 subpostmasters through the Scheme." 13 Did you share this frustration at this point? 14 A. I had begun to, yes. It seemed to me that we were 15 doing -- as I said in the paragraph you took me to right 16 at the outset, that we were doing some really sensible 17 things to try to get to the bottom of this. We were 18 providing applicants with money, so they could properly 19 formulate their applications to the scheme using 20 professional advisers, usually lawyers, sometimes 21 accountants. We were paying for the mediations and the 22 cost of mediations, the investigations were very, very 23 thorough and we were approaching the question of 24 mediation in good faith. 25 Q. You'd been involved for two months at that point, hadn't 14 1 you? 2 A. Yes, that's right. 3 Q. So your evidence is that, within a period of two months, 4 you'd developed this frustration as to how Post Office 5 Limited was being portrayed in its handling of the 6 scheme? 7 A. Well, yes, I think it got more pronounced as the months 8 went on but, even then, it was clear to me that we were 9 not achieving any sort of cut-through in terms of what 10 our position might be or might have been at the time 11 because simply we were not being heard. 12 Q. Please can we look at POL00116790. This is the briefing 13 that we were referring to in your witness statement for 14 Paula Vennells and, if you could go down, please, to 15 "Background/Argument" -- thank you. At paragraph 4, you 16 say -- you put: 17 "Secondly, we would urge you to stress the fact that 18 you are in charge of an organisation that has, at its 19 heart, the determination to improve people's lives 20 (often the most vulnerable in our society). Indeed, you 21 have obligations in this regard. While the issue being 22 championed by MPs may seem important to them in campaign 23 terms, this pales into insignificance to the bigger, 24 social mission of [Post Office Limited] and your 25 leadership of it, not to mention the only materially 15 1 thousands of people who depend critically on our 2 services. It would be a brave MP who sought to champion 3 one above the other." 4 Was it your view that Post Office's public purpose 5 was more important than the allegations made by 6 subpostmasters that they'd been convicted and imprisoned 7 in prosecutions that relied on data from Horizon that 8 may have been unreliable? 9 A. Well, that's not the question that I was actually faced 10 with. Although a number of cases involving criminal 11 convictions had been accepted into the scheme, none of 12 those were taken forward as part of the mediation 13 process. 14 Q. Well, what it says is, "While the issue being championed 15 by MPs may seem important", one of the issues being 16 championed by MPs was that there may have been unsafe 17 convictions, wasn't it? 18 A. Yes. 19 Q. So the question is: did you consider that Post Office's 20 public purpose was more important than that issue? 21 A. On the basis that I had seen nothing and the Post Office 22 has seen nothing to suggest that the question of unsafe 23 convictions had any evidence behind them, then I suppose 24 I did at the time feel that. 25 Q. Was that a commonly held belief within Post Office? 16 1 A. I don't know. 2 Q. Did Paula Vennells challenge it, when she received this 3 briefing? 4 A. I can't recall. 5 Q. Do you think that's keeping an open mind to the 6 allegations? 7 A. Well, we had had the cases submitted to us, and it was 8 apparent from our reading of them that, although there 9 were some suggestions that Horizon may be problematic, 10 there had not been anything advanced to suggest that 11 Horizon was actually responsible for the losses being 12 complained of. So, to that extent, then it was 13 important to see it in the context -- in that context. 14 I would also add that the scheme admitted 150 15 applications into its numbers, which is a relatively 16 small number, 136 were actually taken forward as part of 17 it, the others having been resolved prior to (unclear) 18 and in the context of the number of users over the 19 relevant period of the Horizon system, which are 20 500,000, this represented a very small minority of 21 cases. 22 So there was a certainly an idea in my mind that, in 23 the absence of evidence that Horizon had caused the 24 shortfalls, as far as we could determine at that stage, 25 you know, the, you know, it was important that we 17 1 retained our focus on the day-to-day mission, whilst 2 still absolutely addressing the complaints being made, 3 but it couldn't come at the cost of it. 4 Q. If we turn the page, please. You refer at paragraph 5 5 to the Horizon issue being one "we are absolutely 6 willing to entertain", and then at 6, you say: 7 "But there must be limits: we cannot accommodate the 8 self-indulgence of a number of malcontents to the 9 continuing detriment of our customers. The tiny 10 minority making allegations, while deserving of respect 11 and due process, cannot be allowed to pollute our public 12 service mission." 13 So when you're referring to the malcontents are they 14 the people in the Mediation Scheme? 15 A. Well, that was the view of a number of them, as it says 16 there and, looking back on this, I clearly regret the 17 sort of rather florid language I've used but -- 18 Q. Why did you use that language? 19 A. Well, I think it was borne of a sense of frustration, 20 rather than anything else and it's not -- I'm not 21 seeking to excuse it. It's a poor choice of language. 22 But I think it is explicable, in terms of the 23 frustration I was then feeling. 24 Q. What was the self-indulgence that you were referring to? 25 A. Well, I think certainly, with the cases that we had in 18 1 front of us in the scheme, there were, in almost all 2 cases, a very rational and, frankly, quite mundane 3 explanation for what had transpired in those that didn't 4 rely on, you know, theoretical possibilities, which were 5 pretty improbable. So I think sort of there was a sense 6 in which, in the absence of evidence, to continue 7 pursuing a line which relied on a theoretical 8 possibility, rather than the facts in front of us, 9 seemed to me to be somewhat self-indulgent. 10 Q. Please can we bring up POL00150306. If you could go to 11 page 2, please. If we could go to Nick Wallis' email of 12 16 December, this is an email to Mark Davies. He asked 13 various questions. The fourth substantive paragraph 14 down, Mr Wallis says: 15 "I get the sense from speaking to a number of 16 [subpostmasters] that they don't like the system, they 17 don't trust it and they live in fear of what the Post 18 Office might do if they get something wrong with it." 19 If we can turn back to page 1, please, to your 20 response -- go down, please. You start by saying: 21 "Apart from its breathtakingly facetious tone, this 22 looks to me to be clutching at straws a little bit." 23 Why did you think Mr Wallis' email was 24 "breathtakingly facetious" in tone? 25 A. Well, I think if you scroll down to Mr Wallis' email and 19 1 it's the fifth paragraph down, where he says: 2 "If you have data which shows that the vast majority 3 of [subpostmasters] love using Horizon and trust it 4 implicitly, it would up useful to have that 5 information." 6 You know, I think I took that as being laden with 7 sarcasm, which I think it was. So I was reacting to 8 that, in the first instance. 9 Q. If we can go back up to the email, please: 10 "In conclusion, I'm not sure it merits much more 11 than a cursory response", at the bottom. 12 Then, if we go up, please, Rodric Williams replies 13 to you, saying: 14 "I swear, you are the only person I've met more 15 cynical than me, and then by some considerable margin 16 ..." 17 You respond by saying: 18 "Thank you, sir, I take that as a serious badge of 19 honour [smiley face]." 20 You're self-describing as cynical of the allegations 21 being made by journalists regarding the Horizon IT 22 System in this instance, aren't you? 23 A. Well, I think up to a point. I mean, look, this 24 exchange -- and I know it's come up in a different 25 context -- you know, obviously it doesn't look good, 20 1 eight years on but, you know, I think this is the sort 2 of, you know, dark humour which is quite often employed 3 in these contexts to relieve pressure. So I don't 4 excuse it, but I think one can read rather too much into 5 it, if I may say so. 6 Q. Does it show an inherent distrust of the allegations 7 made by journalists and subpostmasters that you held? 8 A. No, it's not an inbuilt distrust. It's not 9 a predisposition to distrust; it's reflective of the 10 fact that there wasn't any evidence for the propositions 11 that were being advanced. 12 Q. I'm going to move on to a different subject now and I'm 13 going to look at your involvement in preparing 14 a briefing for a Westminster Hall debate in December 15 2014. I'm not going to be asking you any questions that 16 go to the accuracy of matters said within Parliament, 17 simply to your involvement in the briefing beforehand 18 and a document afterwards. 19 I want to start, though, by looking at your 20 knowledge of some matters. When you joined as Programme 21 Director, what was your knowledge of Post Office 22 Limited's prosecutorial function? 23 A. My knowledge was that, like any other company, it had 24 the ability to take out private prosecutions. My 25 understanding was that the historic position had been 21 1 that the police had more or less indicated that this was 2 something better handled by the Post Office, given that 3 there were specific circumstances attaching to the work 4 of a subpostmaster that Post Office Investigators ought 5 to be more familiar with, and so there was sort of 6 accommodation as between the police and the Post Office 7 Investigations Team that it would take it forward. 8 I was also conscious of the fact that the 9 prosecutions, whilst obviously somebody at the Post 10 Office had to eventually say "yes" or "no" to whether or 11 not charges should be brought, the advice was always 12 provided by external lawyers, in the main Cartwright 13 King, and external counsel. So, from my perspective, 14 there were a number of inherent checks and balances in 15 that process. 16 Q. Are you now aware, if I said the Simon Clarke Advice of 17 15 July 2013 concerning Gareth Jenkins, are you aware of 18 what that is? 19 A. I am, yes. 20 Q. Were you aware of the Clarke Advice when you joined as 21 Programme Director? 22 A. No, to the best of my knowledge, I only became aware of 23 the Clarke Advice in 2018. 24 Q. Sorry, was that 2018? 25 A. Yes, 1-8. 22 1 Q. When you were taking the role of Programme Director, 2 obviously we've discussed already, part of that involved 3 applicants who had been convicted of criminal offences, 4 yes? 5 A. Yes. 6 Q. Did you not receive a briefing on the issues that were 7 relevant to the safety of those convictions? 8 A. No, I did not. 9 Q. Did you not ask any questions yourself to satisfy 10 yourself about what Post Office had done to review the 11 safety of those convictions? 12 A. No, and just to clarify my previous answer, I was aware 13 that work had been undertaken to review a number of 14 historic matters but that was my -- that was the extent 15 of my knowledge of it. For my purposes, the relevant 16 points were: were these cases going to be admitted into 17 a mediation phase, and I was aware that there had been 18 strong advice from both Simon Clarke and from Brian 19 Altman, then QC, that such cases should not, frankly, in 20 any circumstances go into a mediation process, and that 21 is what I took as my lead. 22 Q. Slightly different question before I move on is: your 23 evidence is you weren't aware of the Simon Clarke 24 Advice, were you aware of the underlying allegation that 25 Gareth Jenkins had provided expert evidence in breach of 23 1 duties to the court or expert duties? 2 A. I don't believe so. I certainly at some point became 3 aware of the fact that, for whatever reason -- and 4 I don't think I was ever clear on the point -- the 5 expert witness that we had historically used could no 6 longer perform that function, and I was aware that steps 7 were being taken to explore the -- bring on board 8 an alternative. In the event, I don't think that 9 occurred because we ceased prosecutions in 2013, to all 10 intents and purposes. 11 Q. So when do you say you were aware of Post Office 12 performance not being able to rely on the same expert 13 witness? 14 A. I can't give you a precise timescale but it was probably 15 in the -- look, at a best guess, and it really is only 16 a guess, sometime around the spring of 2015. 17 Q. I want to look at remote access now, your knowledge of 18 that. Can we look at POL00091395. So this is an email 19 from Belinda Crowe and it goes to you and others on 20 20 October 2014. Could we go to page 2, please, and we 21 see an email that's forwarded to you from James Davidson 22 of Fujitsu and sets out some matters on remote access. 23 Could we go down the page, please, to 2, "Can Fujitsu 24 change branch data without a subpostmaster being aware 25 of the change?" It says: 24 1 "Once created, branch transaction data cannot be 2 changed, only additional data can be inserted. If this 3 is required, the additional transactions will be visible 4 on the trading statement but would not require 5 acknowledgement/approval by a subpostmaster. The 6 approval is given by Post Office via the change process. 7 In response to a previous query Fujitsu checked last 8 year when this was done on Horizon Online and we found 9 any one occurrence in March 2010 which was early in the 10 pilot for Horizon Online and was covered by 11 an appropriate change request from Post Office and 12 an auditable log. For Old Horizon, a detailed 13 examination of archived data would have to be undertaken 14 to look into this across the lifetime of use." 15 It goes on to discuss cost. 16 So breaking this down, this tells you, doesn't it, 17 that Fujitsu could insert transactions into branch 18 accounts -- 19 A. In short, that's correct. 20 Q. -- and that, when it did that, that it didn't need to be 21 approved by a subpostmaster? 22 A. It didn't need to be but, in fact, my understanding is 23 this occurrence -- and it says there in the middle of 24 the paragraph, "we only found one occurrence in March 25 2010", my understanding was this was done as part of 25 1 a pilot and, in fact, the subpostmaster concerned was 2 fully informed -- 3 Q. Mr Bourke, my question was: it didn't need to be. We 4 can look at the other matters, in due course, but 5 I think your answer to that was you agreed it didn't 6 need to be. You've already said it's been done once for 7 Horizon Online but the position was, for old Horizon or 8 what we call Legacy Horizon, Fujitsu couldn't tell you 9 to what extent, if at all, transactions had been 10 inserted into branch accounts. 11 A. On the face of it, that is correct, yes. 12 Q. At that time, were you clear at all as to whether 13 a subpostmaster would be able to clearly identify 14 whether Fujitsu had inserted a transaction into the 15 account, rather than it being generated in the branch 16 itself? 17 A. My understanding is that any such balancing transaction 18 would leave an auditable trail distinguishing that 19 transaction from any performed by the subpostmaster. 20 Q. That's slightly different, that's about an auditable 21 trail. I'm saying, at this time, did you know whether 22 or not it would be clearly visible to a subpostmaster, 23 on the data that they could access, that a transaction 24 had been added into the branch accounts by Fujitsu, 25 rather than in branch? 26 1 A. My understanding was, if they were to perform the 2 requirements of the task of daily accounting, this would 3 have been visible to them, yes. 4 Q. Where did you get that understanding from? 5 A. From Fujitsu. 6 Q. How was it going to be clearly visible to the 7 subpostmaster? 8 A. Because it would not carry the postmaster's unique 9 identifier code. 10 Q. So your understanding is, at this time, that the 11 subpostmaster themselves would be able to see that data 12 to show that it was somewhere else, or Fujitsu, that 13 entered that data? 14 A. They would be able to identify that it was not 15 a transaction which they had entered. 16 SIR WYN WILLIAMS: Mr Stevens, can you give me the date, 17 again, of that email which provides that answer? 18 MR STEVENS: Of course, sir. The date of the email that 19 provided the answer was 17 April 2014 and it was 20 forwarded to Mr Bourke on 20 October 2014. 21 SIR WYN WILLIAMS: I just wanted to check I'd got the dates 22 right. So April and October. 23 MR STEVENS: Yes, sir. 24 SIR WYN WILLIAMS: Yes, fine, thanks. 25 THE WITNESS: Sorry, I don't know if it would be helpful for 27 1 me to say at this stage that I think on 7 November, so 2 just two or so weeks later, Mark Underwood and I had 3 an exchange of email following a discussion with 4 Fujitsu, in which we confirmed our understanding of what 5 was and what was not possible in terms of remote access, 6 and that's the point at which I think my knowledge of 7 these issues really began to form. 8 SIR WYN WILLIAMS: Sorry, you dropped your voice through the 9 last few words. 10 A. I'm terribly sorry, sir. I was just saying that it 11 might be of interest and helpful to the Inquiry to know 12 that there's an exchange of emails between myself and 13 a colleague, Mark Underwood, following a conversation 14 with Fujitsu on 7 November, just some two or so weeks 15 later, in which we confirmed that our respective 16 understanding of what was and was not possible in remote 17 access terms was aligned to one another and reflected 18 the state of our knowledge at that time. 19 SIR WYN WILLIAMS: Fine. Thank you. 20 MR STEVENS: Sir, I don't propose to go to that but, just 21 for the record, the reference for that is POL00149488. 22 That's the emails to which Mr Bourke is referring. 23 SIR WYN WILLIAMS: Right, 00149888? 24 MR STEVENS: 488. 25 SIR WYN WILLIAMS: 488, thank you. 28 1 MR STEVENS: Slightly different topic, Mr Bourke, please. 2 It's still on remote access but a different element to 3 it. Can we look at POL00307633, please. 4 Apologies, I'm playing catch-up here. This is 5 an email from Belinda Crowe to you on 23 October 2014, 6 and we can see in the attachments -- well, there are 7 attachments. It's difficult to see what they are from 8 the description there but in your witness statement you 9 refer to one of them, and that's POL00027153. This is 10 a report for the Post Office Board that is dated on 11 6 June 2014, so before your time, and its authors were 12 Chris Aujard and Mark Davies. 13 Presumably you would have read this, it being sent 14 to you by Belinda Crowe? 15 A. So I'm not clear that I would have read it in any great 16 detail. This email was sent to me some two weeks after 17 I joined and, to the best of my recollection, the point 18 of it being sent to me was to look at or to note the 19 fact that advice had previously been taken by Post 20 Office as to the susceptibility of Post Office to 21 a challenge for judicial review were steps taken to move 22 the scheme in-house. So I was not focused on anything 23 else it might have said. 24 Q. But you're sent two attachments and, at this point, 25 I think you are looking to instruct a separate 29 1 counsel -- a separate barrister, sorry -- to advise on 2 the issue of judicial review. That's at this time, yes? 3 A. Shortly thereafter, yes. 4 Q. So if you're sent two documents and you're considering 5 instructing counsel on the same issue, presumably you 6 would have at least reviewed the documents? 7 A. Yes, but I would have taken -- I would have focused on 8 those bits which were relevant to the work that I was 9 taking forward at the time, which had nothing to do with 10 remote access and everything to do with judicial review. 11 Q. Let's look at page 3, because this is, effectively, in 12 the middle of the document. We see, if you go to the 13 bottom, it's just before the conclusion -- thank you. 14 It refers to the Deloitte report and Linklaters advice, 15 and paragraph 5.2 says: 16 "As regards the Sparrow-related issues it is 17 believed that given the limited scope of the work 18 Deloitte were able to undertake it is highly unlikely 19 that we will be able to extract any further comfort or 20 assurance without their doing substantially more work. 21 Furthermore, it is also clear that Deloitte will not 22 consent to the publication of their report or use their 23 name to publicly assert that the system is working with 24 integrity unless they undertake specific testing. That 25 said, the report does give some comfort for the Board on 30 1 the design for processing and storing transaction data 2 with integrity." 3 You would accept, would you, that the Deloitte 4 report was an important document, this is Project Zebra, 5 it was an important document in the context of Post 6 Office Limited's response to the applicants in the 7 scheme or how it approached allegations against the 8 Horizon IT System. 9 A. So I was not aware of Project Zebra until much, much 10 later, in the context of preparing instructions for 11 Jonathan Swift and Christopher Knight, who conducted the 12 Swift Review. 13 Q. But this document effectively tells you what Project 14 Zebra is, doesn't it? 15 A. Well, not really, no. It certainly doesn't go into the 16 findings and it wouldn't have been apparent to me that 17 there was a project called Zebra or that Deloitte had 18 been particularly instructed to look at anything in 19 particular. As I've previously said, the purpose of 20 this document being shared with me was to inform my 21 consideration of whether or not instructing counsel to 22 provide advice on the susceptibility of Post Office 23 in -- as it might seek to change the scheme, was 24 susceptible to judicial review. So I wasn't looking at 25 it from the purposes of data integrity or the Deloitte 31 1 report. 2 Q. Just a few days earlier, Belinda Crowe had sent you the 3 email regarding remote access, correct? 4 A. Um -- 5 Q. You've just been to it. 6 A. Yes, I mean, she would have -- yes, she may well have 7 sent me an email on remote access, yeah. 8 Q. At this time, you are dealing with, as we say, 9 applications in the scheme. If you read this and saw, 10 "That said, the report does give some comfort for the 11 Board on the design for processing and storing 12 transaction data with integrity", surely you would have 13 considered that to be relevant to the work you were 14 carrying out? 15 A. Well, up to a point, although I was not at that stage 16 focused on questions of data integrity. As I've said, 17 and I say again, I was looking at this from the point of 18 view of the susceptibility of Post Office to a JR: 19 should we change the scheme? I think I'm right in 20 saying that the email from Belinda Crowe, to which you 21 refer, was sent to me on 23 October of that year, which 22 is, you know, perhaps week five of my arrival at Post 23 Office, not the knowing the subject matter terribly 24 well. 25 So, I'm afraid, if I'm guilty of having, you know, 32 1 not immediately seen the relevance of those things at 2 the time, then I can any apologise, but I think it's -- 3 Q. Let's look at it in context. You receive the email on 4 remote access from Belinda Crowe a few days before, so 5 remote access is on your mind. Your earlier evidence, 6 you referred us to a conversation you had with Mark 7 Underwood on 7 November regarding remote access. Is 8 your evidence that, when reading this report here, on or 9 around 23 October, you simply put issues of data 10 integrity out of your mind? 11 A. Well, my evidence is that I wasn't focused on that 12 point, and the email confirming my understanding of what 13 was and was not possible in relation to remote access 14 and the exchange between myself and Mark Underwood dates 15 from 7 November, sometime after 23 October. 16 Q. Please can we go back to the issue of remote access and 17 POL00149598, please. Thank you. Now, if we can go down 18 to the bottom of this page, please, we see there's 19 another email exchange -- well, sorry it's an email 20 exchange between you and James Davidson at Fujitsu and, 21 presumably, this was arising from your work with Fujitsu 22 to establish the position in respect of remote access? 23 A. Yes, it reflects my growing involvement in issues of 24 remote access, yes. 25 Q. You say in this email: 33 1 "We absolutely share the ambition to put the 2 baseless allegations brought forward by Second Sight and 3 applicants where they belong, but there is a bit of 4 handling to be done ..." 5 Where did the allegations belong? 6 A. Well, they needed to be taken at face value but needed 7 to be examined for any evidence to support them, like 8 any allegation and, as the expression "baseless 9 allegations" suggests that allegations were certainly 10 being made but very little evidence was being adduced in 11 support of those allegations, so that's the point I was 12 making. 13 Q. Would you say this is an open-minded approach to the 14 allegations being made by Second Sight? 15 A. I don't think it's a closed approach. It's an approach 16 which requires Second Sight to do more than just allege 17 things and to provide evidence for those allegations. 18 I don't think that's in any way unreasonable. 19 Q. Well, you'd been told, hadn't you, that inserting 20 transactions into branch accounts was possible, yes? 21 A. Yes. 22 Q. You, at this stage, didn't know to what extent, if at 23 all, that feature had been used in Legacy Horizon? 24 A. I mean, that is true. I didn't even know if that 25 facility existed in Legacy Horizon. 34 1 Q. So how did you come to describe the allegations as 2 "baseless"? 3 A. Because when we were looking at the cases in the 4 scheme -- and, please, I mean, just for the sake of 5 context, my only involvement was the cases in the 6 scheme, in none of those cases could it be said that 7 remote access was responsible for the losses being 8 complained of, and we know that because of another 9 exchange with Fujitsu, in which they reported, because 10 we asked them to, to identify whether or not any such 11 remote access had taken place, and the answer came back, 12 not once but twice, with the final answer coming back 13 saying, "Everything appears golden". 14 Q. So your evidence here is that you're not referring to 15 the general allegation made about remote access, you're 16 saying this is allegations in individual cases within 17 the scheme? 18 A. That was the work that both we and Second Sight 19 ostensibly were focused on. 20 Q. I said this would be about a briefing, let's look at the 21 briefing and how that was created. I think you accept 22 in your evidence that you were asked to assist UKGI -- 23 sorry, the Shareholder Executive to prepare a briefing 24 for Jo Swinson on 11 December 2014? 25 A. Yes, that's right. 35 1 Q. Could we look, please, at POL00150097. Now, this is one 2 of the drafts of the briefings you prepared. If we look 3 at paragraph 77 of your statement -- we don't need to 4 bring it up -- you say that you shared an early draft of 5 this document with Belinda Crowe, Andrew Parsons and 6 Mark Underwood on 12 December 2014; so did you draft 7 this document? 8 A. I would have drafted the draft, yes. 9 Q. If we look, please, at page 3 and if we could go down to 10 show just what -- that's perfect, thank you. It says: 11 "What were the main accusations of the Interim 12 Report?" 13 That's referring to Second Sight's Interim Report, 14 isn't it? 15 A. Yes, the Interim Report of 2013, I think. 16 Q. You write under "other conclusions were": 17 "2 incidents where defects in the Horizon software 18 gave rise to 76 branches being affected by incorrect 19 balances or transactions, which took some time to 20 identify and correct (but which were corrected)." 21 Using the word "incident", was that a word you used 22 yourself or did you receive guidance on it? 23 A. I certainly didn't receive guidance on it. I think 24 that's what I would have chosen myself. 25 Q. Do you think that fairly reflects the points made about 36 1 the receipts and payments mismatch bug and the suspense 2 account bug in the Interim Report, to describe them as 3 "incidents"? 4 A. Well, if you read the sentence, it says "two incidents 5 where defects", so, in fact, I'm talking about "defects" 6 in the Horizon software, not "incidents" in the Horizon 7 software. I think defects is -- whether you want to 8 call it a "bug" or a "defect" or an "anomaly" or 9 an "exception", I'm not sure it really makes much 10 differs. The point is there was a problem with the 11 Horizon software which gave rise to these issues. 12 Q. Could we look at a further version of the draft 13 briefing, please. It's UKGI00002719, page 4, please. 14 If you could go down to "Progress/Results", thank you. 15 It says: 16 "What were the main accusations of the Interim 17 Report?" 18 It now says: 19 "Those Second Sight identified a number of areas of 20 concern that needed further investigation, it must be 21 noted that their primary finding was one of no evidence 22 of system wide problems with the Horizon software." 23 Can you recall why the further information in your 24 earlier briefing was taken out. 25 A. I've no idea. I'm not sure. Maybe it was just for the 37 1 sake of brevity but the basic conclusion at the second 2 bullet point you've read out is accurate. 3 Q. Do you think that's a full and fair briefing of what was 4 in the Interim Report for the Minister? 5 A. Insofar as the Horizon system is concerned, yes. 6 Q. So your evidence is that it wasn't important to 7 highlight to the Minister that the Interim Report had 8 included information about at least two bugs in the 9 system? 10 A. The bugs that were reported by Second Sight were not 11 new. We had, in fact, told Second Sight about those two 12 bugs on a voluntary basis. So ... 13 Q. Mr Bourke, can you answer the question, please. The 14 question was about the briefing: is your evidence that 15 you didn't think it was important or that the Minister 16 shouldn't be informed of the two bugs in the Interim 17 Report? 18 A. Look, in circumstances where it was not new information, 19 I -- and they'd been satisfactory resolved, at that time 20 I clearly didn't think that, if indeed I was the author 21 of this final version. 22 SIR WYN WILLIAMS: Well, I was going to ask you. Do 23 I understand your evidence to be that the first draft 24 that we looked at, you accept the probability that you 25 were the author, whereas are you accepting that you were 38 1 or may have been the author of this draft? 2 A. I think what I'd say sir, is that, as with all 3 briefings, particularly ones going to the ministers, 4 there is a process of quality assurance that would 5 typically involve people more senior than the original 6 draftsman and I suspect that's what happened in this 7 case. So, although the initial words and the working 8 draft would have emanated from me, the final version 9 that went would have had the approval of people more 10 senior than myself. 11 SIR WYN WILLIAMS: Yes, I follow that but, without 12 displaying too much ignorance, I'm not sure, as I sit 13 here at the moment, which paper eventually went to the 14 Minister. So that I was simply trying to get a sequence 15 right, if you see what I mean. So, again, can I just be 16 clear: the first draft we looked at you probably did 17 author; is the state of your evidence that you don't 18 know whether you authored this one or do you know, 19 whichever it is. 20 A. I authored this one as a draft. The final version -- 21 and this may or may not be it -- was, you know, 22 authored -- 23 SIR WYN WILLIAMS: Sure. Right. So simply so that I can be 24 clear in my mind -- I'll use the phrase "the probability 25 is" -- the probability is that you did author the two 39 1 drafts that we've looked at so far? 2 A. Yes. 3 SIR WYN WILLIAMS: Right, fine. 4 MR STEVENS: Sir, at this point, I think if we can look at, 5 actually in fairness to Mr Bourke, Mr Bourke's evidence, 6 in his witness statement. 7 SIR WYN WILLIAMS: Right. Please. 8 MR STEVENS: Page 42, paragraph 81. 9 So we were looking at UKGI00002719, which you see, 10 sir, is the URN at the end. 11 SIR WYN WILLIAMS: Yes. 12 MR STEVENS: We see the evidence there that: 13 "It appears that shortly before this, at 11.13, he 14 [referring to Mark Underwood] had shared the same 15 version of the briefing document with me and Belinda 16 Crowe in a separate email chain, and at 11.19, 17 I forwarded this to Richard Callard, which both Belinda 18 Crowe and Mark Underwood in copy." 19 So there's then evidence on various drafts that went 20 backwards and forwards. 21 SIR WYN WILLIAMS: Yes. Anyway. 22 MR STEVENS: It may help, sir, if I go to this, because this 23 was going to be a question I had. 24 If you can look at POL00150316. Mr Bourke, are you 25 able to assist us with if this the final version of the 40 1 report for the Minister? 2 A. No. But it looks like a near finalised version, if it's 3 not the final version. Just by way of clarification, 4 briefings for ministers are drafted and finalised by 5 civil servants rather than by people at the Post Office. 6 So we would have provided a great deal of material but 7 the file package that was communicated to, in this case 8 Jo Swinson MP, would have had the approval sign-off of 9 whatever the appropriate management chain was in the 10 Civil Service at that department. 11 Q. Please can we look at page 4 of this document. We have 12 a question about "Why did Post Office agree to 13 incorporate convicted cases into the scheme if it knew 14 it wasn't going to mediate?" We see the fourth bullet 15 point down says: 16 "Post Office is, however, under an absolute duty to 17 immediately disclose any information which might 18 undermine the Prosecution's case or support the case of 19 the defendant and Post Office has done so where 20 appropriate." 21 Can you recall if you took any advice or were 22 involved in the drafting of this section of the report? 23 A. So I don't recall but it was my practice, certainly, to 24 consult people in the Legal Team whenever matters around 25 matters of criminal law, which I was really very 41 1 unfamiliar with, were concerned. I think -- and I don't 2 know whether it's helpful to think where I didn't 3 know -- but the question of whether -- the question as 4 to why criminal cases were first allowed into the 5 scheme, if indeed the prospect of mediating them was 6 highly unlikely, I think may have been born of a desire 7 to, if you like, get the scheme up and running, and, in 8 any event, although those cases were not mediated 9 because we had had very strong advice that they could 10 not be, it would nonetheless enable the applicants to 11 benefit from a full re-examination and investigation of 12 their cases, and a criminal case review -- sorry, a case 13 review report from an independent firm of forensic 14 accountants, such that it could be used by them, in 15 the -- you know, if they decided that was the thing to 16 do, to lodge an appeal against their conviction. 17 So it wasn't an entirely pointless exercise for them 18 to be part of the conflated Mediation Scheme, even if 19 the mediations did not take place in those cases. 20 Q. Do you think around this time, as part of your 21 involvement with creating this briefing, you would have 22 been made aware of the difficulties with Gareth Jenkins' 23 evidence? 24 A. I think it's unlikely, because this is still, to the 25 best of my knowledge, late 2014. 42 1 Q. Yes. 2 A. The Westminster Hall debate took place on 17th December, 3 and I -- in an answer I gave at the beginning of this 4 session, I think told you that my -- I think that sort 5 of knowledge began to emerge, for me, sometime in the 6 spring of 2015, although I wasn't aware of the details. 7 I'm not sure I even knew the identity of Mr Jenkins at 8 the time, just that there had been a problem which 9 rendered the previous expert as being usable in future 10 proceedings and some work being conducted to explore the 11 possibility of an alternative expert being found to 12 effectively provide the same expertise in any future 13 cases. 14 Q. I want to look at the last two documents before we have 15 a short break, POL00308923, please. If we can go down 16 to the bottom of the page, please -- thank you -- we see 17 your email to Richard Callard at Shareholder Executive. 18 He was the Shareholder Non-Executive Director at that 19 point, wasn't he? 20 A. He was, yes. 21 Q. It said: 22 "Richard 23 "Suggested responses to the additional questions 24 prompted by [presumably that's 'Jo Swinson's'] chat with 25 [now Lord Arbuthnot, James Arbuthnot]." 43 1 Is that right? 2 A. That's my reading of it, yes. 3 Q. You see: 4 "For the sake of expediency, I am copying internal 5 colleagues for their comments please ... 6 "I would be particularly grateful for the views of 7 Jarnail on the criminal aspects of this and [Andy 8 Parsons] to check I have done the Statute of Limitation 9 bit justice." 10 If we go up, please, we see Jarnail Singh then sends 11 a response to you, and it looks like that's internal to 12 Post Office, and Richard Callard isn't included in the 13 copy list. 14 A. Yes, with the exception of Andy Parsons who was 15 obviously not -- 16 Q. Yes, a fair point. Sorry, I was focusing on Callard, 17 but, yes, Andrew Parsons is there. 18 A. (The witness nodded) 19 Q. Can we look, please -- oh, sorry, he says: 20 "Please see my note and comments in red." 21 Can we look at those. That's POL00040517. One of 22 the questions we see is "Destruction of documents 23 relating to cases in the scheme". Presumably, the first 24 point, which isn't in red, "Post Office has not, and 25 will not, destroy any documents relating to cases in the 44 1 scheme", that was written by you, was it? 2 A. It would have been written by me on the basis of 3 information supplied by somebody else because my 4 understanding of retention periods would have been 5 limited at this stage. 6 Q. If we look at Mr Singh's comments, if we could just go 7 down slightly, refers to data retention policies, he 8 says: 9 "[The] Implied suggestion that this is unwarranted 10 is incorrect. CK [Cartwright King] had to advice [it 11 should be 'advise'] [Post Office Limited] not to 12 shred/destroy documentation after such an instruction 13 was given in the Security Team and following publication 14 of the Interim Second Sight Report." 15 Do you remember reading that? 16 A. I don't particularly, although I do know what it refers 17 to now, yes. 18 Q. Would you have read it? 19 A. Almost certainly, yes, to the extent that I would have 20 really engaged with it, I'm less certain. My 21 recollection just isn't strong enough to tell you. 22 Q. Well, it's very important, isn't it? Because what we're 23 talking about here is the question is about destruction 24 of documents relating to cases in the scheme, and 25 Mr Singh is saying or alluding to advice about 45 1 an instruction being given to the Security Team to 2 shred/destroy documentation. Would that not have set 3 alarm bells ringing? 4 A. Yes. Yes. No, absolutely. I don't know whether I had 5 alarm bells as a result of this particular 6 correspondence but certainly I became aware that 7 an instruction was given, not to the Security Team but 8 within the Security Team. But my understanding was that 9 no -- nothing of the sort, in fact, transpired and there 10 was a great deal of consternation that it had ever been 11 thought appropriate to give in the first place. 12 Q. Where did you get that understanding from? 13 A. I don't particularly recall but it would have been in 14 conversations with other people engaged in this work. 15 So any number of people, including Rod Williams, Belinda 16 Crowe, Mark Underwood, Andy Parsons, and so on. 17 Q. Did you pass on this allegation or otherwise inform 18 Richard Callard or anyone at Shareholder Executive? 19 A. I don't recall. 20 Q. Do you think you would have done? 21 A. I think probably, yes, but I think -- whether I did or 22 somebody else did, I think it would have been shared 23 with them on the basis that this was something that was 24 clearly inappropriate and was likely to generate adverse 25 comment, as well it might. 46 1 Q. That's my question, just a further gloss on it: with 2 this information, do you think it should have been 3 passed on to the Shareholder Executive? 4 A. I think probably, yes. 5 MR STEVENS: Thank you, sir, that's probably a good time to 6 have our morning break. 7 SIR WYN WILLIAMS: All right. What time shall we resume? 8 MR STEVENS: 11.15, sir. 9 SIR WYN WILLIAMS: Okay. 10 MR STEVENS: Thank you. 11 (11.05 am) 12 (A short break) 13 (11.15 am) 14 MR STEVENS: Good morning, sir, can you see and hear me 15 again? 16 SIR WYN WILLIAMS: Yes, I can, thank you. 17 MR STEVENS: Mr Bourke, can you see and hear me? 18 A. I can. 19 Q. Good. Please can we move on slightly to after the 20 Westminster Hall debate. Can we look at POL00351025. 21 If we could go down to Jarnail Singh's email of 22 8 January. So this is 8 January 2015 and Mr Singh is 23 providing some comments on BBC Inside Out requests for 24 an interview. What Mr Singh says we see in the second 25 paragraph: 47 1 "Whilst Post Office wish to say that there are no 2 systemic faults, the Second Sight Interim Report which 3 has been disclosed to the defendants and their legal 4 representatives does mention two defects/bugs which give 5 rise to 76 branches being affect by incorrect balances 6 or transactions." 7 A bit further down, it says: 8 "It also raises questions as to whether [Post Office 9 Limited] knew of the existence of those bugs. If so, to 10 whom at [Post Office Limited] Fujitsu communicated them. 11 Those were certainly not known to me at [Post Office 12 Limited] Legal until day or so prior to the publication 13 of the Second Sight Interim Report. The difficulty here 14 is made worse by the fact that [Gareth] Jenkins, 15 an employee of Fujitsu has been making statements for 16 use in criminal proceedings which made no references to 17 the very bugs which it is understood he told Second 18 Sight about. People were prosecuted and pleaded guilty 19 following the receipt of his statement which implied no 20 bugs had been found." 21 We see, I should have said, you're cc'd in to this 22 email. Presumably you would have read this at the time? 23 A. I imagine so, yes. 24 Q. So would you accept -- earlier, you couldn't quite place 25 a date on when you were aware of the issue with Gareth 48 1 Jenkins -- that you were aware of it or would have been 2 aware of it 8 January 2015, at the latest? 3 A. I think in theory, yes, that's right. 4 Q. When you say "in theory", is -- 5 A. Well, sorry, yes, I mean, I was a recipient in -- I was 6 the copy recipient of this email and, whilst I don't 7 have any sort of very clear recollection of having read 8 it in any great detail, as a matter of fact, yes, you're 9 correct. 10 Q. Please can we look at UKGI00002944. Now, we don't need 11 to show this on the screen but, sir, for your reference, 12 and Mr Bourke for you, as well, at page 48, paragraph 93 13 of your statement, you refer to this document, and you 14 say: 15 "On 13 January 2015 I shared a draft of Post Office 16 Limited's response to the Westminster Hall debate with 17 Richard Callard." 18 You give the URN, the unique reference number, for 19 the email and, later on, this document we're looking at. 20 This was, as I understand it, effectively a further 21 briefing document to deal with matters that had been 22 raised during the Westminster Hall debate; is that 23 right? 24 A. So I think, after the Westminster Hall debate, from 25 memory, what we tried to do was to collect all the 49 1 allegations that had been made during the course of that 2 debate, and others which we had obviously had from other 3 sources, with the purpose of developing a more 4 comprehensive document to address each and every one of 5 those. From memory, I think there was envisaged to be 6 two such documents, one sort of rather briefer one 7 intended to be used in more sort of general 8 communications, and then a longer, more granular one 9 intended to inform Members of Parliament. The response 10 was the product of a collaborative effort on the part of 11 a fair number of people, from -- as I think I made clear 12 in my statement. 13 Q. Presumably, this document runs to 15 pages. Is this the 14 longer document, the more granular one, as you 15 described? 16 A. I think it must have been. I think Tom Wechsler, who 17 was working with me on the scheme and interface with the 18 Working Group, started this process and, at some point, 19 I took over the task of bringing it together, as a sort 20 of briefing coordinator, which was not atypical of my 21 role at the time. 22 Q. So briefing coordinator, would that include ensuring 23 that different parts of the business or subject matter 24 experts would contribute to the briefing on areas where 25 their subject was in issue? 50 1 A. That's correct. 2 Q. Given you sent it to Richard Callard at Shareholder 3 Executive on 13 January 2015, do you take responsibility 4 for its contents? 5 A. No, because it was a collaborative effort. So I wrote 6 it and I edited it but the specialist content which 7 I solicited from other colleagues really belongs to 8 them. 9 Q. So when you say no, is it fair to say that, if you were 10 told a matter, say you were told "X" on a subject 11 matter, you would be responsible for including that in 12 the response but you wouldn't be responsible for the 13 accuracy of what was provided to you by the subject 14 matter expert? 15 A. That's a more accurate description, yes. 16 Q. Could we look at page 10, please. At paragraph 40, you 17 say: 18 "To date no evidence has been identified by Post 19 Office as part of its reinvestigation of each and every 20 case, nor advanced by Second Sight or an individual 21 Applicant, to suggest that the conviction of any 22 Applicant to the Scheme is unsafe." 23 If we can go over to page 12, please. There's 24 a section on "Approach to Prosecutions". We see 51 25 talks about the power of prosecution as a private 51 1 individual; 52 is interviews under caution. We get to 2 54 and it says: 3 "All cases of potential criminal [misconduct] are 4 thoroughly investigated and decisions about appropriate 5 courses of action are taken on the basis of available 6 facts and evidence." 7 It goes on to say: 8 "When Post Office decides to prosecute a case, its 9 conduct of the prosecution is scrutinised by defence 10 lawyers and ultimately by the Courts themselves." 11 If we go over the page, on 56: 12 "Once a decision has been made to prosecute, the 13 Post Office has a duty to disclose the evidence against 14 a suspect, along with all evidence that would assist the 15 defence or undermine the prosecution. Post Office 16 refutes the allegation that it has put pressure on 17 defendants to plead guilty, sometimes to lesser 18 offences." 19 Why did this briefing not include reference to the 20 issues with Gareth Jenkins? 21 A. That's a fair question. I think this document -- I'm 22 not convinced I was aware of the issues around Gareth 23 Jenkins at the time. But, in any event, the -- as we've 24 just discussed, the content where it relates to 25 specialist issues, particularly around, you know, 52 1 matters which I really know nothing about, ie criminal 2 law and procedure, I would have relied entirely on the 3 advice I was given by the Legal Team. 4 Q. Who in the legal team would you have relied on? 5 A. I would have relied on, I expect, Jarnail Singh, but 6 more particularly, you know, the advice that he was 7 being -- you know, he was effectively the conduit 8 between the Post Office and Cartwright King, our 9 external legal providers. So that added, to my mind, 10 a measure of reassurance that there was an internal 11 independent organisation with its own professional 12 standards of ethics and responsibilities. 13 Q. Let's just focus: you said Jarnail Singh and referred to 14 Cartwright King. If you would rely on Jarnail Singh, 15 we've seen, as at 8 January 2015, Jarnail Singh was 16 raising the issue of Gareth Jenkins with you in 17 an email. So can you explain, in those circumstances, 18 why there is no reference to Gareth Jenkins in this 19 report? 20 A. I'm sure that briefing would have been circulated to 21 those people once more prior to its finalisation. So -- 22 Q. Mr Bourke, earlier I asked you of the difference of 23 responsibilities: one is the subject matter itself, 24 which you accepted or you said was a matter for the 25 subject matter expert; and the second one is, if 53 1 a subject matter expert tells you of something, you 2 accepted responsibility for seeing that that makes its 3 way into the briefing; do you not accept that? 4 A. Well, I do but you get -- 5 Q. In those circumstances, why, in this briefing, is there 6 no reference to Gareth Jenkins? 7 A. I'm not sure. 8 Q. Is it because you didn't want to highlight the problem 9 with Gareth Jenkins and past prosecutions? 10 A. Absolutely not, no. 11 Q. Well, what other explanation is there? 12 A. As I tried to advance a second or two ago, each one of 13 these exercises sees me fairly methodically consulting 14 people around the business and the finalisation of this 15 text, for this document, would have been okayed by our 16 Criminal Law Team. So, insofar as there were good 17 reasons or other reasons to exclude it, it would have 18 fallen to them to take. 19 SIR WYN WILLIAMS: Can I just be sure that I'm clear about 20 its intended purpose. Was this a document prepared for 21 dissemination internally in the Post Office or was it 22 a document intended ultimately for Mr Callard in his 23 role, which was shared internally in the Post Office 24 before it got to him, or was there some other purpose 25 that I haven't yet heard about? 54 1 A. I think I'm right in saying that the impulse was we had 2 had a lot of accusations made against us and we wanted 3 to actually produce a more comprehensive piece. The 4 ultimate purpose to which that would be put, I think, 5 was still in question but, certainly, it would find its 6 way to Mr Callard, who had -- 7 SIR WYN WILLIAMS: Right, so at least one of its purposes 8 was to provide, obviously, accurate information, one 9 imagines, to Mr Callard? 10 A. (No audible answer) 11 SIR WYN WILLIAMS: Fine. 12 MR STEVENS: Can we bring the briefing back up. It's 13 UKGI00002944, and if we could look at page 11, please. 14 THE STENOGRAPHER: Mr Stevens, can I just check the witness 15 answered Sir Wyn's last question because there was no 16 audible response. 17 MR STEVENS: I will check with the witness. 18 The Chair asked -- Mr Bourke, did you give an answer 19 to the Chair's question, his last question? 20 A. I believe so, yes. 21 Q. What was that answer, please? Just for the transcript? 22 A. So he asked me whether at least one of the purposes in 23 the preparation of this document was to provide 24 information to Richard Callard at UKGI, to which 25 I replied "Yes". 55 1 MR STEVENS: Thank you. I apologise. I'll try to make sure 2 that, if I spot a nod, it gets recorded on the 3 transcript. 4 SIR WYN WILLIAMS: Sorry, I should have confirmed 5 Mr Callard's (sic) agreement with my premise -- 6 MR STEVENS: No, sir, I'll take sole responsibility. 7 SIR WYN WILLIAMS: Not Mr Callard -- I'm getting confused 8 now -- Mr Bourke. 9 MR STEVENS: Yes, right, we're on page 11 of this briefing. 10 If we could go down to paragraph 48, please. We see 11 here we have 2Remote and Malicious Access to Branch 12 Accounts". It says: 13 "During the debate it was suggested that 14 subpostmasters' accounts can be amended remotely, in 15 Horizon, without their or their staff's knowledge. 16 There is no functionality in Horizon for either 17 a branch, Post Office or Fujitsu (suppliers of the 18 Horizon system) to edit, manipulate or remove 19 transaction data once it has been recorded in a branch's 20 accounts. It is possible for Fujitsu to view branch 21 data in order to provide support and conduct maintenance 22 but this does not allow access to any functionality that 23 could be used to edit record transaction data. 24 "Post Office can send transaction acknowledgements 25 (TA) or transaction corrections (TC) to branches." 56 1 Pausing there, transaction acknowledgements and 2 transaction corrections both require the subpostmaster 3 to accept them; do you agree with that? 4 A. That's my understanding, yes. 5 Q. "TAs are used to record transactions that have been 6 processed in branch through other systems ... and TCs 7 [transaction corrections] to correct errors made by 8 branches. Both TAs and TCs need to be accepted by 9 a user logged into the branch Horizon terminal before 10 they are recorded in the branch accounts. They are 11 therefore fully visible to each branch. 12 "There is also no evidence of malicious remote 13 tampering and the suggestion made during the debate that 14 a secretive team at a Post Office location is engaged in 15 this sort of activity is flatly denied." 16 Why did you not refer to what was called balancing 17 transactions, which we discussed before, namely where 18 a subpostmaster didn't need to accept the insertion? 19 A. Yes, look, I mean, I think that's a good question. As 20 I've indicated previously, all of these briefings were 21 the product of collaborative effort by internal and also 22 external advisers. From recollection, the view taken or 23 the view advised/advanced by Womble Bond Dickinson, or 24 Bond Dickinson, as it then was, was that the balancing 25 transaction was -- there having only been one instance 57 1 of it, where the postmaster had been informed, it didn't 2 merit inclusion. Now, in retrospect, I think that was 3 a mistake and we should have included it in this 4 briefing. 5 Q. Let's pause there: the one instance you were aware of 6 was in Horizon Online, wasn't it? 7 A. Yes. 8 Q. At this stage, did you know or had Fujitsu told you if 9 or the extent to which a similar matter had been used in 10 Legacy Horizon? 11 A. No, they hadn't, and I'm not even sure that that 12 facility existed in that system. I think, from memory, 13 a conclusion was drawn that -- or I think on the advice 14 of Fujitsu, that to conduct that sort of retrospective 15 analysis would have been immensely lengthy, complicated, 16 and ultimately expensive and was disproportionate to the 17 task. 18 Q. So how could that then have been a justification that 19 you thought it had only been used once in Horizon 20 Online, not to mention this potential avenue of remote 21 access when you didn't know the position in respect of 22 Legacy Horizon? 23 A. Well, as I say, the only time balancing transactions 24 were brought to my attention was in the context of 25 HNG-X, the Horizon Online. There was no discussion that 58 1 I recall about whether or not that facility had been 2 used -- was available and, indeed, had been used in the 3 previous version of Horizon, and it just didn't -- just 4 wasn't part of our considerations at that time. 5 Q. But we referred to emails earlier where it was raised, 6 and you've just said in your evidence that it was ruled 7 out as being disproportionate; is that not right? 8 A. I did say that. That's my recollection. I can't be 9 absolutely certain about the way it was put to us but 10 the advice we have from our external legal advisers was 11 that, you know, balancing transactions were -- had been 12 exceptionally rare to address a particular anomaly, the 13 postmaster had been informed and, in those 14 circumstances, it was not a credible avenue for -- or it 15 was not a material avenue to pursue for these purposes. 16 Now, in retrospect, as I've said, I don't think that 17 was the right call and, if I had my time again, I would 18 have disclosed it or I would have included it in this 19 briefing. 20 SIR WYN WILLIAMS: I mean, in summary form, to give 21 a "complete", in inverted commas, picture of Legacy 22 Horizon and Horizon Online, you would have included the 23 balancing transaction point in relation to Horizon 24 Online and you would have included a statement saying, 25 "We don't know whether the function existed to do the 59 1 same on Legacy Horizon". 2 A. That's absolutely what we would have -- what I believe 3 we probably ought to have done, with the benefit of 4 hindsight. At the time, I was preparing this document 5 I was three months into the job and I didn't think -- 6 SIR WYN WILLIAMS: No, I follow why you say it didn't happen 7 but that's the reality of it, isn't it? 8 A. Absolutely, and I'm very happy to say that, if I had my 9 time again, I would have included both those things. 10 MR STEVENS: Please can we bring up POL00310761. If we 11 could go to the second page, please. We'll see when we 12 scroll up in a moment, this is an email from you to 13 Rodric Williams on 20 January and you say: 14 "You were going to send me [Brian Altman QC's] 15 reports -- would you mind when you get a chance?" 16 Why were you asking for those reports at that stage? 17 A. I think it was in preparation for the response to the 18 Westminster Hall debate and I think I was in the process 19 of assembling the documentation that demonstrated that, 20 you know, a number of reviews had taken place, although 21 I did not know the precise scope or the extent of those 22 reviews. But I wanted to, you know, I knew some had 23 taken place but I'd never actually seen any of them. 24 Q. So if we go up, please, we see Rodric Williams sends 25 that on the same day. It says "apologies for the 60 1 delay", four advices attached: interim review, general 2 review and two others. 3 Did you read those advices when you received them? 4 A. I don't believe I did, actually, in actual fact. You 5 know, there was quite a voluminous set of material 6 related to, you know, historical matters and my chief 7 objective in obtaining them -- I think I'd first asked 8 for them in December -- was in making sure that we had 9 all constituent parts available to us in the context of, 10 you know, what we thought was likely to be more requests 11 for information. 12 Q. What is the purpose of having all the constituent parts 13 together if you're not going to read the advices? 14 A. To ensure of their availability, should they become 15 relevant, or should we need to deploy the actual -- you 16 know, the actual documentation at any future point -- 17 Q. Presumably you thought they may have been relevant by 18 asking for them? 19 A. I wanted a complete set, yes, of what I had understood 20 to be a number of reviews that had taken place into past 21 prosecutions and, indeed, advice on our prosecution 22 processes. 23 Q. So your evidence is this was just to have on hand if the 24 need arose, despite the fact you previously settled 25 a response document that covered things like Post Office 61 1 Limited's prosecutorial practices? Is your evidence 2 really that you didn't read these advices? 3 A. I certainly don't think I'd read them in any great 4 detail, no. They're quite specialist in nature. I may 5 have read some of them. I don't think I would have 6 engaged with them with any real degree of real 7 application, if I may say so. 8 Q. Well, let's look at POL00006581. This is the general 9 review by Brian Altman KC, and it's dated 15 October 10 2013. Could we please turn to page 5. Now, you said 11 they were lengthy documents. Do you think you would 12 have read the executive summary? 13 A. Quite possibly, yes. 14 Q. If we turn please to page 6 and (x), it says: 15 "I agree that Gareth Jenkins is tainted and his 16 position as an expert witness is untenable. Thus, a new 17 expert should be identified as soon as practicable." 18 Following receipt of this advice, did you tell 19 Richard Callard or anyone at Shareholder Executive about 20 the issues relating to Gareth Jenkins? 21 A. No. These were matters for the Legal Team to act upon. 22 I think this was 2015, sometime after this review was 23 conducted and, certainly, post any prosecutions by Post 24 Office. So no, not because of a lack of care; it just 25 simply wasn't something that fell within my area of 62 1 expertise or area of responsibility. There was nothing 2 to suggest to me that this advice wasn't acted on by the 3 people at the Post Office who you'd expect to act upon 4 it: so the General Counsel, the criminal lawyers, and so 5 on. So, no, I didn't, is the short answer. 6 Q. Did you have any indication as to whether or not Richard 7 Callard or others at Shareholder Executive knew about 8 the issues relating to Gareth Jenkins? 9 A. I don't know off the top of my head but I think it would 10 be difficult to imagine that they weren't aware of the 11 fact that prosecutions could no longer take place on the 12 basis of an absence of an expert witness to attest the 13 robustness or otherwise of Horizon. So I think it would 14 be difficult to imagine that they weren't aware at least 15 of the fact that we couldn't, at that time, prosecute, 16 because we didn't have the requisite expert. 17 Q. Mine's a slightly more precise question, which is: do 18 you have any knowledge as to whether anyone at 19 Shareholder Executive knew of the allegations against 20 Gareth Jenkins, namely that he'd acted in breach of his 21 expert duties? 22 A. I don't have any direct knowledge of that, no. I just 23 posited what I think probably would have happened. 24 Q. Okay, I want to go to a different topic now and look at 25 the closure of the Mediation Scheme. Please can we 63 1 bring up POL00149669. 2 We don't need to have this up but, sir, for your 3 reference, and also, Mr Bourke, for you: at page 35, 4 paragraph 71 of your statement, you refer to this as 5 a note of advice for Paula Vennells that you prepared to 6 inform her consideration as to how to respond to the 7 proposal advanced by MPs that Post Office Limited 8 mediate all cases in the scheme where this was 9 recommended by Second Sight. 10 So we can see immediately that the recommendation is 11 to decline that proposal. Can we go down, please, to 12 paragraph 4 for the reasons. So paragraph 4 effectively 13 says it's not something that Post Office Limited could 14 accede to or agree to mediate all cases because it would 15 require mediating criminal cases; is that a fair summary 16 of the reason? 17 A. Yes, on which we'd had strong advice. 18 Q. Yes. Paragraph 5 is a slightly different reason. It 19 says: 20 "It would also necessarily entail the mediation of 21 cases in which [Post Office Limited] is not, on any 22 reasonable view, responsible for the losses or other 23 complaints it is alleged to [have been] the cause of." 24 So this is non-criminal or court cases but Post 25 Office does not want to mediate all of them because, on 64 1 the merits, there will be some that it considers are not 2 worth mediating; is that fair summary? 3 A. I'm not sure "worth" but there simply wasn't anything to 4 mediate because the facts pointed to a very clear 5 conclusion about the responsibility or otherwise for the 6 loss. 7 Q. Okay, well, I won't explore what the distinction there 8 is supposed to be but was that view, in paragraph 5, the 9 view of the entire team or an agreed view of the team 10 who were working on the scheme? 11 A. To the best of my knowledge, yes, as we looked at the 12 cases and the CRs being produced by Second Sight, it was 13 a difficult conclusion -- it was difficult not to reach 14 that conclusion. 15 Q. Can you recall if Paula Vennells accepted that advice 16 and agreed as well? 17 A. Not specifically, although I think she, I think, came to 18 share the view which those of us closer to the subject 19 matter had reached earlier, that all was not 20 straightforward in Second Sight's advice. 21 Q. Can you just explore that: when you say "she came to the 22 view", was there a difference of opinion at the start? 23 A. I think that's right, and I think in my witness 24 statement I refer to the fact that I had written in some 25 briefing that I had come to the view that Second Sight's 65 1 impartiality was questionable and she had picked me up 2 on that, but the -- in the immediate aftermath, both 3 Mark Davies and Tom Wechsler provided support for that 4 contention, having seen the cases. So she had formed 5 the view that it was too strong a claim to make on the 6 basis of some of the early case review reports but, 7 having read more of them, and seen -- having been 8 involved in them for a longer period, she came to share 9 that view. 10 Q. We might be talking at a slightly different point. 11 I think we will come to that briefing in shortly. My 12 point is: do you recall if Paula Vennells accepted the 13 advice that Post Office Limited shouldn't agree to 14 mediate all cases because some of them did not merit 15 mediation? 16 A. I believe so, yes. 17 Q. Please could we bring up POL00149683. 18 Now, for context -- we don't need to have it on 19 screen -- but at paragraph 72, page 37 of your statement 20 you say that on 26 November 2014 you prepared 21 a corresponding update -- so corresponding to the last 22 one we saw -- for Alice Perkins, in advance of a trip 23 she was making to a conference in Turkey. 24 If we go to paragraph 2, please: 25 "Advice is now with the CEO to refuse this 66 1 suggestion [that's the position of accepting all 2 mediations], not least since it would entail the 3 mediation of criminal cases (on which we have advice in 4 the strongest terms that to do so would subject Post 5 Office to intolerable risk) ..." 6 It goes on to say: 7 "It would necessarily entail the mediation of cases 8 in which [Post Office Limited] is not, on any reasonable 9 view, responsible for the losses or other complaints it 10 is alleged to be the cause of." 11 So it's basically the same advice you were giving to 12 Paula Vennells, wasn't it? 13 A. Yeah, as I say in my witness statement, this was drawn 14 largely from the document I prepared for Paula Vennells 15 for the previous engagement. 16 Q. Can you recall if Alice Perkins accepted that advice? 17 A. I believe so. She, I think, wrote an email to summarise 18 her encounter with James Arbuthnot in Ankara, in which 19 she certainly gave every indication that she had taken 20 the briefing to heart, yes. 21 Q. I'm just going to take a brief segue at the minute, for 22 chronology purposes, but we'll come back to those 23 briefings but can we please bring up POL00149685. So 24 it's an email exchange between you and Tom Wechsler on 25 26 November 2014, so the same day on which you say you 67 1 drafted the briefing for Alice Perkins, yes? 2 A. Yes. 3 Q. This is, I think, shortly before a conference you were 4 going to have with Tom Weisselberg KC on the prospects 5 of a judicial review of matters in relation to the 6 Mediation Scheme, if there was an amendment? 7 A. That feels about right. I can't remember the exact 8 date. 9 Q. If we could go down to the bottom email, please, 10 Mr Wechsler says: 11 "Subject: He was sat next to me. 12 "Back covering in full effect!" 13 Your response obviously shows a degree of upset 14 about that, and you say: 15 "... unfortunate that he bumped into Alice before 16 Mark and I collared him. I fear for RW a bit ..." 17 Is "RW" Rodric Williams? 18 A. I would imagine so. 19 Q. When you're saying "He was sat next to me", who was this 20 referring to? 21 A. I have looked at this email over and over again in 22 preparation for this Inquiry and I just simply cannot 23 remember who it was we were referring to. 24 Q. If we look, please, to the next email, again, from Tom 25 Wechsler: 68 1 "Teaching you to suck eggs but I laid the ground for 2 the way out of this with honour preserved. Although 3 there is a fundamental difference of view on 4 public/private law point, circumstances have changed 5 markedly." 6 So do we take from this that whatever embarrassment 7 had been caused, it was related to the public law advice 8 in some way? 9 A. I think it may have been. As I think I referred to in 10 my witness statement again, there had been previous 11 advice obtained by Post Office before I joined, so, in 12 the summer, I think, of 2014, from a firm called 13 Beachcroft, and the partner there, I think, was Stephen 14 Hocking, who had come to a different conclusion about 15 the susceptibility of any decision in relation to the 16 Working Group, or the scheme more generally, than the 17 advice than we subsequently received from Tom 18 Weisselberg, and I think there was a bit of an issue 19 around how those two bits of trusting advice -- or 20 advices could be reconciled with one another. 21 And I think I'm right in saying that Tom Wechsler 22 was advancing the point that the passage of time and the 23 events that had occurred during that time did point to 24 a new set of circumstances which might offer some part 25 explanation for that distinction. 69 1 Q. With that background, who do you think this may refer 2 to; who are the list of potential candidates to whom it 3 can refer? 4 A. I genuinely can't remember. I mean, I suppose, if I'm 5 right about the awkwardness of contrasting advice, one 6 set obtained by me -- by my team in November, and the 7 other obtained by Post Office in the summer, it may have 8 been Chris Aujard, but I just don't know. 9 Q. In Tom Wechsler's email, below the main paragraph, he 10 says: 11 "Coming up with a new version of history not just on 12 this will be key to eg ensuring that nothing sticks on 13 AP/PV ..." 14 Presumably that's Alice Perkins and Paula Vennells? 15 A. That's my understanding, yes. 16 Q. "... when blame is being apportioned." 17 Was this common practice within Post Office, to 18 rewrite history? 19 A. Not in my experience. Absolutely not, no. I mean, you 20 know, youd have to ask Tom Wechsler why he used that 21 turn of phrase. It certainly wasn't mine. 22 Q. Well, if you look above, you say: 23 "Thank you. Will call later on." 24 You didn't object to the turn of phrase at the time, 25 did you? 70 1 A. Well, no, but if I objected to every turn of phrase that 2 I thought was slightly off, you know -- no, I didn't but 3 I just got on with it. 4 Q. Do you recollect how this matter was resolved or any 5 call you had with Tom Wechsler? 6 A. No, I don't. 7 Q. Right, let's move on back to the Mediation Scheme. Can 8 we look at POL00006575, please. 9 So we have a minute from the Sparrow Subcommittee 10 meeting on 12 January 2015. I think the Inquiry has 11 seen a different version of this with an incorrect date 12 on at one point but this is 12 January 2015. We see at 13 the bottom you are in attendance. Looking at 14 summarising the points to consider, it said the 15 Committee received a paper on the position of the scheme 16 and discussed steps to be taken: 17 "(c) [Mark Davies] explained the recent Westminster 18 Hall debate ..." 19 Chris Aujard reported changes in business processes 20 regarding prosecutions. There was then the judicial 21 review advice provided by Tom Weisselberg QC and 22 a discussion over whether it was inconsistent with the 23 Beachcroft advice; Chris Aujard was saying it wasn't. 24 Then at (f) it says: 25 "The committee discussed Second Sight and their 71 1 'Part Two' Report due to be finalised in April. The 2 committee agreed that the Business was unlikely to be 3 able to stop this report from being produced but should 4 press Second Sight to complete the individual case 5 reviews by the end of March, ie giving the cases 6 priority." 7 So at this meeting was the Sparrow Subcommittee 8 exploring ways to stop Second Sight producing it's 9 updated Part Two Report? 10 A. I don't think so, in the sense that I think that (f) 11 records the fact that, insofar as they once had, that 12 ship had sailed and they were reconciled to the fact 13 that it was going to emerge. I think there was 14 a concern, because the Part Two Report had been very 15 long in gestation, that, actually, the delays to the 16 scheme occasioned by the focus on the Part Two Report 17 was preventing them from addressing themselves to the 18 cases in the scheme, which we felt deserved a greater 19 deal of priority in their attentions. 20 But, you know, they were a small outfit, I think 21 three people doing the work, and, you know, necessarily 22 just the sort of -- just the capacity point prevented 23 them from doing multiple things simultaneously with any 24 sort of speed, and we really wanted them to complete 25 their work on individual cases, so it might achieve 72 1 mediations where they were possible within a reasonable 2 time frame. 3 Q. You said, then, that the ship had sailed. So when was 4 the ship in the dock? When did the committee want to 5 prevent the Part Two Report from being finalised? 6 A. Well, I honestly don't know but it does appear to me, on 7 a simple reading of this, that, you know, that 8 possibility had been discussed. I think, and I've seen, 9 in earlier documents dating from before my time at the 10 Post Office, that reservations about Second Sight's 11 performance had been articulated as far as back as 2013, 12 and I think they were only retained either at the end of 13 2012 or early 2013. So, very soon after they joined, 14 people were already beginning to wonder whether they'd 15 made the right selection. 16 Q. We can see from (g): 17 "The Committee asked the Business to produce 18 an options paper to analyse the most effective ways to 19 bring the Scheme to a sensible conclusion ..." 20 Let's go to that options paper. And if we could 21 look at POL00102065, please. I think earlier you were 22 referring to a briefing where Paula Vennells challenged 23 you on a reference to impartiality. I think that may be 24 this briefing, we shall see in a moment. It says the 25 "Issue": 73 1 "A discussion about the relative merits of number of 2 options for breaking through the impasse." 3 "Recommendation" was: 4 "That participants to the meeting consider and 5 discuss this paper before coming to a view on the best 6 course of action to take ..." 7 We can look at the options at the bottom, there's 8 four. You say: 9 "Seek to maintain status quo -- in circumstances 10 where JFSA do not participate in any meaningful way, 11 Second Sight's impartiality is a fiction and all those 12 involved consider that the scheme is not fit for 13 purpose; this option appears to have little to recommend 14 it." 15 Now, you referred earlier to Paula Vennells 16 challenging you on a matter, is that this: Second 17 Sight's impartiality is a fiction? 18 A. Yes, I believe so, yeah. 19 Q. I don't think we need to go there, sir, but for your 20 reference the email is POL00117056. 21 Over the page, other options are: 22 "Mediate all cases or all cases apart from criminal 23 cases." 24 So that's quite a shift from the position -- well, 25 not a shift because it's an option, I suppose, but 74 1 that's opening up an option which had previously been 2 rejected in November, the year before? 3 A. Not quite. One of those is a departure, "Mediate all 4 cases" would have been a complete departure, but 5 "Mediate all cases apart from criminal cases" would have 6 been a refinement on the proposal made by James 7 Arbuthnot and colleagues on 17 November, and that 8 refinement was critically important and distinguished it 9 from a proposal made by James Arbuthnot back then. 10 Q. So I'm going to what was rejected by Post Office because 11 when we looked at both of the briefing notes given by 12 you, there were two reasons for rejecting that proposal: 13 one was rejecting criminal cases and one was it would 14 involve mediating cases on which Post Office thought 15 there wasn't merit in a mediation. 16 A. You're quite right to pick me up on that and 17 I apologise. I think we saw the mediation of all cases 18 as being, you know, responsive to the desire of the JFSA 19 for the opinion of Second Sight to be determinative of 20 the question of what or not we would mediate, and it 21 seemed to ask that, in circumstances where we needed to 22 find a way through, that was a concession worth making, 23 even if we didn't necessarily think that all of those 24 cases were meritorious. 25 Q. That then says: 75 1 "... bring an end to the Working Group ..." 2 3 is "Payout or pay-to-litigate", which is 3 essentially to offer a sum of money, and 4: 4 "End the scheme, mediate cases with merit, defend 5 remaining claims as business as usual -- bring an end to 6 the Working Group while inviting Second Sight to enter 7 into a new contract (ending all others) to complete 8 their review of all cases (anticipated in May 2015) and 9 specifically precluding the production of a Part II 10 Report." 11 So the ship hadn't sailed, had it? You and the 12 committee were still considering trying to stop Second 13 Sight producing the Part Two Report? 14 A. That -- it appears that was still a consideration. In 15 the event, the combination of options 2 and 4 was the 16 decision arrived at, which did not prevent the 17 production of the Part Two Report but did involve us 18 rescoping Second Sight's engagement so they could focus 19 after the production of the Part Two Report exclusively 20 on providing what we assured applicants to the scheme 21 would get as a minimum, which was a reinvestigation of 22 their case and an independent case review report from 23 Second Sight, which they could then use to take whatever 24 action they felt was appropriate, including taking us to 25 court if necessary. 76 1 Q. I just want to look at two of those options in a touch 2 more detail. If we turn to page 5, please. It is the 3 "Mediate All" option. It says: 4 "All aspects of current scheme maintained, including 5 Working Group ..." 6 That appears to be an inconsistency with the earlier 7 bit of the document but: 8 "... including the Working Group to oversee 9 scheduling and case throughput, but Post Office accepts 10 the recommendation of Second Sight to mediate as final, 11 and mediate all cases." 12 Then it goes on to refer to the variant of not 13 accepting criminal cases. So, at this stage, 26 January 14 2015, the option you're putting forward for mediating 15 all or mediating non-criminal cases is to keep Second 16 Sight on board; is that right? 17 A. That's correct, yeah. Sorry, actually could you just 18 repeat that? 19 Q. Yes. So your proposed option for mediating all or 20 mediating non-criminal cases includes keeping Second 21 Sight involved in the scheme? 22 A. Yes, it does. 23 Q. If we turn to page 9, please. This is the "End Scheme, 24 Mediate Cases With Merit". We see again: 25 "Post Office closes the scheme but invites Second 77 1 Sight to enter into a new arrangement to complete their 2 independent review ... 3 "New contract could specifically preclude the 4 production of a Part II Report." 5 So this is sort of a distinct option from the 6 "Mediate All": it's where you mediate the cases with 7 merit and, at the same time, make efforts to try to stop 8 a Part Two Report from being produced; is that a fair 9 summary? 10 A. It's one of the options that are in the paper, yes. 11 MR STEVENS: Thank you. 12 Sir, looking at the time, I think it's probably time 13 for our second morning break. 14 SIR WYN WILLIAMS: Yes, certainly. So 12.25? No, sorry, 15 12.20. 16 MR STEVENS: Yes, thank you, sir. 17 SIR WYN WILLIAMS: Thanks. 18 (12.10 pm) 19 (A short break) 20 (12.20 pm) 21 MR STEVENS: Sir, can you still see and hear me? 22 SIR WYN WILLIAMS: Yes, I can, thank you. 23 MR STEVENS: Mr Bourke, can you see and hear me? 24 A. (Unclear) 25 Q. Sorry, Mr Bourke, can you repeat that? 78 1 A. Sorry, yes I can. 2 Q. Sorry, just to make sure we can hear you. 3 Please can we go to POL00130853. This a set of 4 slides, we see it says, "Confidential and legally 5 privileged". We don't need to show it but your witness 6 statement paragraph 48 says you assisted in preparing or 7 editing some of these slides for a meeting between Mark 8 Davies, Paula Vennells and Alice Perkins. Because it 9 says "legally privileged", would you have received any 10 legal advice when drafting these slides? 11 A. I imagine so, yes. 12 Q. Could we look at page 4, please. We can see at 13 4 February, the advice there is: 14 "We are therefore disbanding the WG [Working Group]. 15 "But we agree to mediate all non-criminal cases. 16 "We release Second Sight from their work but offer 17 that if any case (including criminal) wants to use them 18 they can apply to us for financial support." 19 Do you recall how that decision was taken or any 20 discussions that led to that being the proposed cause of 21 action? 22 A. So I think this would have come after the options paper 23 had been considered and, from memory, this was 24 a briefing taking place between Paula and Alice in 25 advance of a full Board meeting. The first two 79 1 highlighted bullet points should probably be in reverse, 2 in that the ambition was not to disband the Working 3 Group but rather, by agreeing to mediate all 4 non-criminal cases, we were effectively making the work 5 of the Working Group redundant, and that was just the 6 way it was, simply because a decision to mediate had 7 already been taken and the purpose of the Working Group 8 was to recommend whether or not that should be the case. 9 In circumstances where we decided to mediate all the 10 cases apart from non-criminal ones, the purpose of the 11 Working Group -- there simply wasn't any need for 12 a Working Group in those circumstances. 13 Q. Was there any link between this decision being taken and 14 the appearance of Paula Vennells and Angela van den 15 Bogerd at the BIS Select Committee? 16 A. I don't believe so. I think this was just 17 a continuation of a discussion that had taken place -- 18 that had been taking place since late the previous year. 19 Q. Can we look, please, at POL00021728. At the bottom we 20 see an email from you to Andrew Parsons, saying, "Second 21 Sight -- contractual issues". It refers to speaking: 22 "... grateful if [you] could produce a short bit of 23 advice on the manner of implementation and consequences 24 of a future decision to terminate Second Sight's 25 engagement. 80 1 "The advice needs to cover (but should not be 2 limited to ...) the nature and extent of [Post Office 3 Limited's] ability to control access to, and uses of, 4 all and any information it has provided to [Second 5 Sight]; the duration and effective notices of that 6 control in particular with regard to the Part II report 7 they are preparing, and the legal and practical effects 8 of the 30-day notice period which the letter of 9 engagement provides for." 10 Was this seeking advice on how Post Office Limited 11 may be able to restrain Second Sight from producing 12 a further Part Two Report? 13 A. No, it wasn't. I think we were concerned that, in the 14 circumstances where a decision were taken to terminate 15 this phase of Second Sight's engagement -- and bear in 16 mind they were retained to do something else 17 thereafter -- we didn't want uncontrolled access to 18 quite a lot of confidential information that had been 19 shared with them in the context of the scheme. In 20 particular, we had shared with them the details of 21 applicants' circumstances, some of which, you know, 22 were, frankly, deeply personal in nature and should not 23 have been reaching a wider audience. As I think we made 24 clear throughout this, the confidentiality of that 25 information was paramount to us. 81 1 Q. The email referred to speaking with Andrew Parsons. Can 2 you remember if you spoke to him before the 4 February 3 slides that we looked at just a moment ago? 4 A. I'm sure I would have spoken to him. You mean, in terms 5 of the preparation of those slides or ...? 6 Q. Yes. I asked in those slides did you receive legal 7 advice on it, and I think you said -- 8 A. Yes, I'm sure I would have done or, certainly, Rod 9 Williams -- you know, Bond Dickinson and Rod Williams 10 were working very much side by side in this process. 11 Q. Can we look at the Bond Dickinson advice that came in 12 response, the note of advice. It's POL00006364. The 13 "Executive Summary" first points out that: 14 "[Second Sight's] engagement can be terminated ... 15 without restriction on 30 days' ... notice." 16 It says: 17 "On balance, we consider that the Post Office can 18 direct [Second Sight] to do no more work during this 19 notice period. Even if we are wrong, the consequence 20 will only be a damages claim against [Post Office 21 Limited] by [Second Sight] for 30 days lost pay. 22 "During the notice period, [Second Sight] are 23 entitled to act on the instructions of the Working 24 Group. We therefore recommend that Post Office 25 simultaneously disbands the Working Group on termination 82 1 of [Second Sight] so to prevent the Working Group giving 2 counter instructions to [Second Sight] during the notice 3 period." 4 It goes on to say: 5 "Post Office could therefore demand the return of 6 Confidential Information at the same time as giving 7 termination notice. If complied with, this would have 8 the practical effect of stopping any further work by 9 [Second Sight]. In practice, we would expect [Second 10 Sight] to resist handing over information." 11 It goes on to talk about publication. 12 Would you accept this advice is effectively giving 13 a roadmap for how to limit what work Second Sight can 14 do? 15 A. I don't think that's the primary purpose but it 16 certainly goes into that sort of territory, yes. 17 Q. You say it's not the primary purpose. We don't need to 18 have it on the screen but the points you said the advice 19 should cover was: 20 "... the nature and extent of POL's ability to 21 control access to and uses of all and any information it 22 has provided to Second Sight, the duration and 23 effectiveness of that control, in particular with regard 24 to the Part Two report they are preparing, and the legal 25 and practical effects of the 30-day notice period which 83 1 the letter of engagement provides for." 2 You'd had a discussion with Andrew Parsons, 3 presumably you discussed what advice you wanted from the 4 note? 5 A. Yes. But I think, if you're -- the concern we had -- 6 the overriding concern we had in seeking that advice was 7 the use to which Second Sight might put information 8 which they had been given in confidence and that was 9 the -- you know, that was really the primary purpose of 10 seeking that advice. 11 Q. Let's go back to your options paper, please. It's 12 POL0010265, and page 5, please. Now, this is the more 13 detailed version of the note on the option to "Mediate 14 All". I took you previously at page 2 to a summary of 15 it, which referred to bringing an end to the Working 16 Group. This one says: 17 "All aspects of the current scheme maintained, 18 including Working Group to oversee scheduling and case 19 throughput, but Post Office accepts the recommendation 20 of Second Sight ..." 21 Now, Post Office had adopted the "Mediate All -- 22 Save for Criminal Cases", hadn't it, by the time it was 23 seeking advice from Andrew Parsons? 24 A. Yes, I think that's right, yes. 25 Q. Was the reason that the decision was made to close the 84 1 Working Group in order to stop Second Sight receiving 2 instructions from them to produce further work? 3 A. That was not the predominant -- but I don't -- to the 4 best of my recollection, that was not a consideration 5 that was certainly in my mind. 6 Q. You've started that answer "It was not the 7 predominant" -- 8 A. Well, I did and I corrected myself. 9 Q. So your evidence is you can't recollect if it was 10 a purpose or not? 11 A. No, my evidence is that I don't think it was 12 a consideration that was in my mind. 13 Q. Can you recollect if it was a consideration or it was 14 discussed by other people within Post Office? 15 A. I can't. Honestly, no, I can't. What I can tell you is 16 that we were aware, or at least I was aware, that having 17 taken the decision to mediate all cases, the role of the 18 Working Group was superfluous and, you know, that was -- 19 given that the Working Group was not functioning, in any 20 event, because of JFSA's refusal to discuss any cases 21 that we didn't agree automatically to mediate, that was 22 an acceptable outcome. 23 Q. Can we look, please, at POL00022512? If we go to Andrew 24 Parsons' email at the bottom, you see it's 12 March 25 2015, and he effectively says: 85 1 "... it must have been [Second Sight] that told 2 James Arbuthnot about their termination ..." 3 It goes on to say: 4 "... we should send a follow-up letter to [Second 5 Sight] saying that we note that they have breached these 6 obligations despite our warning", referring to their 7 obligations to confidentiality. 8 Your response is to agree, and say: 9 "Having got to the point where (after a long time) 10 we are sort of in charge, we should make sure they know 11 it." 12 So you were effectively agreeing to threaten 13 litigation against Second Sight in respect of their 14 confidentiality obligations, weren't you? 15 A. No. What I was doing was saying that we should send 16 them a letter saying that their breach of the 17 obligations had not gone unnoticed. I don't think 18 anybody ever considered that we would actually take 19 legal proceedings against them but I think it was 20 important -- my email reflects that I felt that it was 21 important that they understood that we were not blind to 22 what we felt was taking place. 23 Q. Well, it says, looking at Andrew Parsons' email again, 24 the last paragraph: 25 "The letter need not be aggressive but by pulling 86 1 them up on each little in infringement we make sure 2 [Second Sight] do not see these are idle threats. We 3 also avoid any suggestion that we have waived these 4 obligations through doing nothing; this may be important 5 down the line if there is a more serious beach that we 6 do not want to enforce." 7 The idea of enforcing the confidentiality agreements 8 by way of litigation, if necessary, was very much on 9 your mind, wasn't it? 10 A. In the event of a more serious breach, is what Andrew 11 Parsons says, and, you know, in circumstances where 12 Second Sight had decided to share with a wider audience 13 details of the individual cases which we were dealing 14 with, and which we had guaranteed absolute 15 confidentiality over to the applicants of the scheme, 16 that is potentially a breach that would warrant some 17 sort of enforcement action. 18 Q. So is your evidence that this was concerned with 19 personal data of the applicants; that's what your 20 concern was? 21 A. Yes, I mean, that really was a major consideration and, 22 you know, actually, a major hindrance to our being able 23 to make our case. Hoisted, if you like, by our petard 24 on that front because, whilst we were very serious about 25 honouring our obligations of confidentiality, it 87 1 appeared that our -- those -- some of those applying to 2 the scheme did not feel similarly bound by them and 3 Second Sight equally did not feel similarly bound by 4 them. So, yes, I think our overriding concern was 5 precisely that. 6 Q. Well, let's look at POL00021837, please. If you can go 7 down, please, to the bottom email. Thank you, perfect, 8 thank you. 9 This is 8 June 2015 from you to Second Sight and it 10 refers to the Panorama documentary by BBC that they were 11 considering to produce, and you say: 12 "I know that you are already well aware of your 13 terms of engagement but I nonetheless take this 14 opportunity to remind you of the restrictions which 15 apply to all contact with the media under clause 8 of 16 those terms in particular ..." 17 Now, that's not referring to personal data and 18 protecting personal data of applicants, is it? 19 A. Why not? 20 Q. Well, it's for me to ask the questions. 21 A. All right. 22 Q. If you want to explain why that doesn't refer to the 23 personal data of the applicants, please say. 24 A. Sorry, forgive me. I didn't mean to ask a question of 25 you. I was simply reacting to the fact that, in my 88 1 mind, that expression is more than capable of 2 encompassing the personal data of the cases in the 3 scheme? 4 Q. The reality is, Mr Bourke, you go on to say: 5 "I should stress that any breach of this would be 6 strictly enforced by the Post Office." 7 You were seeking to stop Second Sight from 8 discussing matters with the BBC, weren't you? 9 A. Well, I was seeking to ensure that they adhere to the 10 terms of the engagement which they'd entered into with 11 Post Office Limited. I don't think that's necessarily 12 the wrong thing to do or, you know, I think this happens 13 daily in any number of companies, that you engage a set 14 of professional advisers but you don't expect them to go 15 and give interviews to Panorama using confidential 16 information you shared with them under the terms of that 17 contract. So I don't think there's anything 18 particularly remarkable about this, I confess. 19 Q. Is it the case that what you were doing here was you had 20 a concern that Second Sight were going to give opinions 21 that would give support to the allegations made by the 22 subpostmasters? 23 A. I think we were concerned that they might both share 24 details of the cases in the scheme and, also, on the 25 basis of what our experience had been at the advice they 89 1 had provided to us, advance certain propositions, for 2 which there was no evidence, that would occasion us 3 a great deal of difficulty, simply because they'd been 4 put in the public arena. 5 Q. I want to turn now, please, to the Part Two Report. 6 Please can we look at POL00151715. We see the subject 7 is "[Post Office Limited] Part II response -- revised", 8 so this was part of work to create Post Office's 9 response to the Part Two Report produced by Second 10 Sight, wasn't it? 11 A. I believe so, yes. 12 Q. If we look at the bottom of the page, please, it's 13 an email from you to Belinda Crowe and others, and you 14 refer to a Word document with some wording, which you 15 say is tweaked wording attached. If we go up to Rodric 16 Williams' next email, it says: 17 "Good distinction, but I think it should reflect the 18 actual offence", and we're talking about here false 19 accounting: 20 "[Would] you be happy with this?" 21 It says: 22 "It is important to understand that subpostmasters 23 are not prosecuted by Post Office for incurring losses 24 in branch. Prosecutions for false accounting occur 25 where a person dishonestly falsifies branch accounts 90 1 with a view to gain for himself or another, or with 2 intent to cause loss to another." 3 Your response is above: 4 "I would personally end the sentence after 5 'accounts'." 6 So what you're effectively saying is remove the 7 words "with a view to gain for himself or another or 8 with intent to cause loss to another", yes? 9 A. Yes. 10 Q. The reason you give is that you: 11 "... would not want to encourage a subjective debate 12 about whether or not applicants intended to gain, or 13 cause us loss. I can just see someone saying, 'I was in 14 such a muddle, I didn't know what else to do, but 15 I didn't mean to ...'" 16 Were you aware at the time that the words "with 17 a view to gain for himself or another or with view to 18 cause loss to another" was wording lifted from 19 Section 17 of the Theft Act 1968 concerning false 20 accounting? 21 A. I don't believe so. 22 Q. The fact that Rodric Williams said, "but I think this 23 should reflect the actual offence", did that not tip you 24 on to it? 25 A. Well, I don't know where he'd drawn that from but, yes, 91 1 I accept that it was a sort of a statement that had been 2 drawn from some source. I didn't know whether it was 3 the Theft Act of '67 or anywhere else but, yes. 4 Q. Is what you're saying here that you wanted to avoid 5 applicants arguing that they didn't have a view to make 6 a gain for themselves or another or that they didn't 7 have any intention to cause loss? 8 A. So I think I was advancing a view on the basis that, in 9 the cases we had in the scheme, in the cases we've seen, 10 there were lots and lots of cases that involved false 11 accounting, not just on one occasion but on multiple 12 occasions stretching, in some cases, to multiple years, 13 and I think, at that point, it would have been difficult 14 to make the argument that, you know, it was the product 15 of confusion or being in a muddle. 16 Now, I've clearly stated the law wrong and, you 17 know, for that I'm happy to apologise. It was 18 a suggestion. I've asked whether it made sense and 19 I don't know whether it was taken up. 20 Q. Mr Bourke, what you're saying here is "Let's not 21 encourage anyone to grapple with the issue of 22 dishonesty", really, isn't it? 23 A. Look, I didn't see it like that at the time, no. 24 Q. How did you see it? 25 A. Well, as I've tried to explain, many of the cases we 92 1 were looking at involved periods of false accounting 2 stretching, in some cases, to years and I think it's 3 difficult, in those circumstances, to attribute that to 4 being muddled or, you know, doing it by mistake. So 5 I think -- in those circumstances, I think the case is 6 more arguable about whether or not that constitutes 7 intent to cause loss to another. But it's clearly 8 wrong, so I didn't know if it was right, hence my 9 question "Does that make sense?" and, as I say, it was 10 a suggestion rather than, you know, me sort of saying, 11 "This is what we're going to do". 12 Q. Can we look, please, at POL00129447. This is on 9 March 13 2015 from Andrew Parsons and you're copied. It says: 14 "On the remote access point mentioned below, Simon 15 is referring to this extract in the Scheme Report ..." 16 It says: 17 "The Deloitte report, cited by Simon below, 18 describes the balancing transaction process." 19 Now, when you received this, presumably you would 20 have looked down to the email below for context and to 21 understand what Mr Parsons was talking about? 22 A. I'm not sure. I mean, the email was not addressed to 23 me, as you can see. So I may have done, I may not have 24 done. I don't know. 25 Q. Remote access, at this point, was quite an important 93 1 issue, wasn't it? 2 A. Yes. 3 Q. So, with that in mind, do you think it's likely you 4 would have looked down to see the substantive email to 5 which Mr Parsons is referring? 6 A. It's possible but I can't tell you for sure. 7 Q. If you could turn to page 2, please, to look at the 8 email. It's from Martin Smith and it says: 9 "May I also take this opportunity to mention a point 10 which Simon Clarke has raised. He has noted that the 11 end of term report contains the following proposition." 12 It says: 13 "There is no functionality in Horizon for the Post 14 Office or Fujitsu ... to edit, manipulate or remove 15 transaction data once it has been recorded in a branch's 16 accounts. The Post Office can only post additional, 17 correcting transactions to a branch's accounts but only 18 in ways that are visible to postmasters, eg transaction 19 corrections and transaction acknowledgements. It is 20 also possible for Fujitsu to view branch data in order 21 to provide support and conduct maintenance but this does 22 not allow access to any functionality that could be used 23 to edit recorded transaction data." 24 He goes on to say: 25 "He has also commented that the Deloitte report 94 1 includes a comment to the effect that they have observed 2 (in their desktop audit) 'a method for posting balancing 3 transactions ... which allows for the posting of 4 additional transactions centrally without the 5 requirement for these transactions to be accepted by 6 SPMRs ...'" 7 It goes on to say: 8 "Accordingly, we are concerned that should the 9 Deloitte report subsequently be disclosed people may be 10 able to compare both documents and argue that they are 11 inconsistent." 12 Were you aware of the Deloitte report at this time, 13 in 2015? 14 A. No, I wasn't, not as the Deloitte report, and I think 15 this refers to Project Zebra, if I'm not mistaken. 16 Q. Yes. 17 A. I was aware of balancing transactions. I didn't know 18 that the balancing transactions knowledge came from 19 something called Project Zebra and the desktop exercise 20 performed by Deloitte prior to my arrival, and I wasn't 21 aware of the fake basket hypothesis, as well. 22 Q. So if you say, "No I wasn't", is your evidence that you 23 didn't read this email from Martin Smith? 24 A. I don't think I would have read it, no. I mean, I think 25 this email, if you just scroll up to the people it is 95 1 between, is, you know, an email between Martin Smith and 2 Rodric Williams and, if you go up again, it's 3 a conversation between Rodric and -- and then if you 4 look, the email to which I am copied in, and which 5 I would have paid the most attention to, he goes on to 6 say, "If we wanted to make the extract complete we would 7 need to at something like", blah, blah, blah and then he 8 says about balancing transactions, about which I knew. 9 I don't know whether he then goes on to say anything 10 about the fake basket hypothesis. In fact, he doesn't 11 so -- 12 Q. Well, Mr Bourke, it says there, above where it's 13 highlighted "the Deloitte report cited by Simon below"; 14 presumably you would have read that? 15 A. No, I don't think I would have done. 16 Q. So your evidence is, I think, that this email that says, 17 "Rodric and everyone else by copy", which you're copied 18 in to, you're saying you didn't read it? 19 A. No, I'm saying I read the bit that was -- I read the bit 20 that was, you know -- (no audio) 21 Q. If you read it, you would have seen it says, "The 22 Deloitte report cited by Simon below"? 23 A. I agree, I would have read those words. That doesn't 24 mean I would have read the documents cited below. 25 I took what I needed, for my purposes, from this email 96 1 that was addressed by Andrew Parsons to other people and 2 I was copied in to it. 3 Q. Is your evidence at this stage, having read this email, 4 that you were or were not aware of a report by Deloitte 5 that covered balancing transactions? 6 A. I was aware of the balancing transactions element but 7 not the fake basket element, and I agree with you, had 8 I read all the way through to the end and looked at 9 Martin Smith's correspondence with -- 10 Q. Sorry, Mr Bourke, that's a different question. My 11 question is: at this point in time, 9 March 2015, I'm 12 trying to clarify if your evidence is that you knew that 13 there was a Deloitte report that covered balancing 14 transactions? 15 A. I'm not sure if I knew there was a Deloitte report until 16 this email but I knew about the balancing transaction 17 process. 18 Q. Right. So you received this email and you know there's 19 a Deloitte report? 20 A. No, I know there's a balancing transaction process. 21 I didn't know where it had emanated from. 22 Q. I'll ask that again: 9 March 2015, are you accepting 23 that you knew there was a Deloitte report that described 24 balancing transactions? 25 A. Having read this email, yes. 97 1 MR STEVENS: Sir, I wonder if that might be an appropriate 2 place to stop for lunch. I would ask if we could start 3 again five minutes early, at 1.55. 4 SIR WYN WILLIAMS: Yes, but let me just ask Mr Bourke this 5 question, just so that I'm entirely clear, that's all 6 I'm doing it for. You acknowledged this morning that 7 you were aware of what I would call the James Davidson 8 email, the Fujitsu email. 9 A. (No audio) 10 SIR WYN WILLIAMS: -- and you obviously would have been by 11 this stage, yeah? 12 A. Sir, I was aware -- (no audio) 13 SIR WYN WILLIAMS: The balancing transaction that Deloitte 14 refers to, is that the same as the revelation in the 15 Davidson email? 16 A. I believe it is, yes. 17 SIR WYN WILLIAMS: Yes, well, that's what I thought. Does 18 that throw any light upon how you would have viewed 19 these emails? 20 A. (No audio) 21 SIR WYN WILLIAMS: In other words, were you being told 22 something at the back of your mind you already knew or 23 was this new information? 24 A. That was the point I was trying to make, and obviously 25 unsuccessfully, that I was aware of the facility of 98 1 balancing transactions but I was not aware of it as 2 having been recorded in any Deloitte report. 3 SIR WYN WILLIAMS: Right. Okay, I understand. 4 Right. Do you want an extra three minutes, 5 Mr Stevens, in view of that intervention? 6 MR STEVENS: No, sir. If we could come back at 1.55, I'd be 7 grateful. 8 SIR WYN WILLIAMS: Fine. Thank you. 9 MR STEVENS: Thank you. 10 (12.55 pm) 11 (The Short Adjournment) 12 (1.55 pm) 13 MR STEVENS: Good afternoon, sir, can you see and hear me? 14 SIR WYN WILLIAMS: I can indeed. 15 MR STEVENS: Mr Bourke, can you see and hear me? 16 A. I can, thank you. 17 MR STEVENS: I can hear you. 18 Mr Bourke, before lunch, I just want to, I think, 19 clarify where we got to, I think your evidence was that, 20 as at the date of the email we were just discussing, 21 9 March 2015, from Andrew Parsons, at that point, you 22 were aware of the existence of this Deloitte report; is 23 that right? 24 A. I don't believe so. I was aware of the existence of 25 a balancing transaction but not of the Deloitte report. 99 1 Q. Right. So let me just bring that document up again, so 2 that we're all singing from the same hymn sheet. I'll 3 just get the reference. It's POL00129447. 4 So, as we see, it's from Andrew Parsons, you're 5 copied in, and it says: 6 "Rodric (and everyone else by copy)." 7 In the third paragraph down it says: 8 "The Deloitte Report, cited by Simon below, 9 describes balancing transactions ..." 10 I thought, having reviewed the transcript, that your 11 evidence was that, at this date, you accepted you were 12 aware of the existence of the Deloitte report? 13 A. No, and I apologise if there was any -- if I didn't 14 express myself clearly. I think I was aware of 15 balancing transactions being possible quite early on but 16 I didn't know that it had been covered by a Deloitte 17 report. It was something that was relayed to me, 18 I think, in correspondence I'd been shown between James 19 Davidson and, I think, Rodric Williams some time back in 20 2014. 21 Q. So on reading this email and reading, as I say, "The 22 Deloitte report cited by Simon below" and reading that, 23 your evidence is you were not aware of the existence of 24 the Deloitte report? 25 A. I don't believe so, no. 100 1 Q. Is your evidence that you didn't read this email? 2 A. No, my evidence is that I read this top sheet but 3 I didn't go on to read the exchange which accompanies 4 it. 5 Q. So your evidence is that you read the paragraph that 6 says, "The Deloitte report cited by Simon below 7 describes the balancing transaction process"? You read 8 that sentence? 9 A. I did, yes. 10 Q. So, presumably at that point, then, you must have been 11 aware of the existence of this Deloitte report? 12 A. Sorry, I think we're just talking at cross purposes. 13 I obviously, having read this email, was aware of 14 a Deloitte report. Now, I was previously aware of 15 balancing transactions. This was not news to me. The 16 Deloitte report, however, was and I think the Deloitte 17 report being referred to there is the Project Zebra 18 report, which I only became familiar with in the context 19 of the Swift Review. 20 Q. Well, the Swift Review is later than this. 21 A. I accept that, yeah. 22 Q. So I'll ask one last time: on reading this email, do you 23 accept that you were informed of the existence of the 24 Deloitte report that described balancing transactions? 25 A. I accept that I was made aware, through this email, of 101 1 a Deloitte report which describes balancing 2 transactions. 3 Q. Thank you. That document can come down. 4 We've covered that you've said you're already aware 5 of balancing transactions. Reading the transcript 6 before, your evidence was that you were not aware of 7 other issues raised in relation to data integrity, such 8 as in relation to baskets, in the Deloitte report; is 9 that right? 10 A. That is right, yes. 11 Q. Could we look, please, at POL00041059. This is a draft 12 of the "Complaint Review and Mediation Scheme, Reply of 13 Post Office Limited to Second Sight's Briefing Report -- 14 Part Two". Were you involved in contributing to the 15 drafting of this document? 16 A. Yes, I was. 17 Q. Please could we look at page 57, paragraphs 14.5 and 18 14.6. It says: 19 "It has always been possible for Post Office to 20 correct errors in and/or update a branch's accounts. 21 This most commonly done by way of a transaction 22 correction however it could also be by way of 23 a balancing transaction or transaction acknowledgement." 24 It goes on to talk about balancing transactions. 25 At 14.6: 102 1 "All of these processes for correcting/updating 2 a branch's accounts have similar features. All of them 3 involve inputting a new transaction into the branch's 4 records (not editing or removing any previous 5 transactions) and all are shown transparently in the 6 branch transaction records available to subpostmasters 7 (as well as in the master ARQ data)." 8 Do you know why this didn't refer to the distinction 9 with balancing transactions that a subpostmaster did not 10 have to accept a balancing transaction, whereas they did 11 with transaction acknowledgements and transaction 12 corrections? 13 A. No, I don't. I was involved in assembling this document 14 but not for the substantive detailed content where it 15 applies to technical issues. As we've previously 16 discussed and as I think it says in paragraph 14.5, the 17 use of a balancing transaction was only used once at 18 least in the context of Horizon Online, and I -- 19 Q. That's a different issue, Mr Bourke. You say you were 20 involved in drawing it together but, based on the 21 knowledge you had, you would have known that that was 22 incomplete, wouldn't you? 23 A. Sorry, in what respect? 24 Q. In that it doesn't refer to balancing transactions being 25 capable of inserting a transaction without the 103 1 subpostmaster accepting it. 2 A. Without the postmaster accepting it, yeah, I agree, but 3 it leaves an auditable mark. 4 Q. So I ask again: why wasn't it included in -- 5 A. I honestly don't know. I didn't write this section. 6 Q. Can you recall if this wording of the draft made it into 7 the final document? 8 A. No, I can't. 9 Q. That can come down, thank you. 10 I want to move on and look at a matter to do with 11 Panorama. Please can we bring up POL00140211. This is 12 entitled "Panorama Meeting -- Tuesday 9 June", would 13 that have been June 2015? 14 A. Yes, it would have been. 15 Q. This is on Bond Dickinson notepaper. We will see, if we 16 go down, Matt Bardo is listed there. Was this a meeting 17 with researchers from the BBC? 18 A. This was an on-the-record background briefing that Mark 19 Davies initiated with Matt Bardo, and I think there was 20 one other individual present at the meeting, as well, 21 from the BBC, yes. 22 Q. Was this recorded and then transcribed? 23 A. I assume so, yes. 24 Q. Could we look, please, at page 18. If we could go to 25 the very bottom, we see Matt Bardo says: 104 1 "... mindful of the time ... if I just say remote 2 access you will immediately know what I am going to ask 3 about." 4 Then if we go over the page, the end says: 5 "So what exactly is possible and what exactly isn't 6 possible as far as you're concerned when it comes to 7 accessing transactions on a branch terminal?" 8 Then if we go down, please, we can see Angela van 9 den Bogerd gives an answer, and it says: 10 "I think the question is really can anybody access 11 the branch data without an audit trail?" 12 Tim Robinson says: "Yes, without the subpostmaster's 13 knowledge." 14 Angela van den Bogerd says: "Yes and the answer to 15 that is no." 16 Matt Bardo: "Sorry, when you say an audit trail, you 17 mean an audit trail that is completely transparent to 18 the subpostmaster?" 19 Angela van den Bogerd says: "Yes." 20 Q. Did you agree with that position at the time? 21 A. Yes. 22 Q. So was it not your understanding that a balancing 23 transaction could be inserted into branch accounts 24 without the subpostmaster's knowledge? 25 A. On the basis that an audit trail is available to the 105 1 postmaster, then, I mean, I don't want to get into 2 semantics but the audit trail shows that that 3 transaction was not -- or, sorry, not that transaction 4 but that insertion was not created by the postmaster, 5 and it is therefore not something that I would say is 6 outwith the knowledge of the postmaster. 7 Q. So you're saying it's within the subpostmaster's 8 knowledge because the transaction could go in without 9 their knowledge but they could, to the best of your 10 belief, look at an audit trail and see that an external 11 transaction has been inputted into their branch 12 accounts? 13 A. Yes, if they are doing their daily cash declarations and 14 reconciling the accounts as something they were required 15 to do under the terms of the contract, the transaction 16 would identify itself as having been something done by 17 somebody else and, therefore, it would have been 18 transparent to the postmaster. 19 Q. Do you think that that position, that we've discussed 20 there, is adequately conveyed by Angela van den Bogerd, 21 simply by saying that transactions cannot be inserted 22 without the subpostmaster's knowledge? 23 A. Well, I mean, I think -- I mean, look, you could go on 24 to explain it more fully but I don't think she was being 25 disingenuous when she was saying that. It was 106 1 a shorthand, that, as I say, if the postmaster is 2 looking at his or her accounts, you know, as they're 3 required to do, this would be something that would 4 highlight itself as being something that they didn't 5 recognise as being from them. So, to that extent, it 6 would have been within the subpostmaster's knowledge, 7 not necessarily at the time the insertion was made but 8 certainly very soon after it had been done. 9 SIR WYN WILLIAMS: That's really something I wanted to ask 10 you -- sorry to interrupt, Mr Stevens -- but when you 11 talk about an audit trail, do you mean by that that, if 12 they looked at the audit available to them on a given 13 day, then, if there had been an insertion, they could 14 notice that, amongst all the various transactions, there 15 was one that didn't bear their hallmark, yes? 16 A. Correct. 17 SIR WYN WILLIAMS: If they didn't look at it on that 18 particular day, they wouldn't know, would they, because 19 they then wouldn't have access to the relevant part of 20 the audit trail? 21 A. The -- my understanding is that in Legacy Horizon, then 22 subsequently in Horizon Online, they had 42 days, in the 23 former case, of audit available to them in branch and, 24 in the latter case, 60 days of audit. So if they were 25 trying to balance their accounts, as they were required 107 1 to do by their contract, it wouldn't have taken long to 2 identify it. 3 SIR WYN WILLIAMS: Sorry, say that again? They had 42 days 4 where the audit trail would remain in Legacy Horizon, 5 and what about on Horizon Online? 6 A. 60 days, it would have been extended for another 18. 7 SIR WYN WILLIAMS: Okay, fine. Thank you. 8 A. I think the reason for those time periods, sorry, just 9 to build on that because it's helpful, I think the 10 timings, the 42 and 60 days, were designed to enable 11 them to complete all their cash declarations both -- 12 weekly, daily and monthly, that they needed to, in 13 a full cycle available audit data. 14 SIR WYN WILLIAMS: Yes. 15 MR STEVENS: Just to clarify, because it's something which 16 the Inquiry may need to follow up, is it your evidence 17 that the understanding you've just given about the data 18 that was available to subpostmasters, on the audit, as 19 you say, your understanding, did that come from Fujitsu? 20 A. Yes. We were consistently told that any insertion that 21 took -- sorry, any injection of a transaction would 22 always be auditable. 23 Q. I'm asking a slightly different thing. I'm saying not 24 auditable, as a broad matter, but available for the 25 subpostmaster to see in branch within the 42 or 60 days? 108 1 A. That's my understanding, yes. 2 Q. Your understanding came from Fujitsu; is that your 3 evidence? 4 A. Yes. 5 Q. Please can we turn the page in the document to page 21. 6 If we could go down to -- a bit further, please. You 7 start talking about remote access and the part I want to 8 look on is Tim Robinson says: 9 "But not without knowledge of ..." 10 You say: "But not without the knowledge and it has 11 been used once. Once and once only in the entire time 12 Horizon has been effective. It happened as part of the 13 pilot. That is what a pilot is supposed to surface and 14 it was done you know ..." 15 At this point, did you know that balancing 16 transactions or something equivalent to balancing 17 transactions hadn't been used in Legacy Horizon? 18 A. No, I didn't. I'm afraid, I probably didn't draw the 19 distinction between the two systems. My understanding 20 was that balancing transactions had only been used once 21 and, as it turns out, that would have been as part of 22 the pilot for Horizon Online. 23 Q. Thank you. That document can come down. 24 I want to move to look at the Swift Review, please. 25 Can we bring up your witness statement, page 86, 109 1 paragraph 181. You say: 2 "My recollection is that [Post Office Limited] 3 remained concerned about unresolved disputes following 4 the closure of the scheme, and wished to provide 5 reassurance that it was doing all that it was reasonable 6 to do to seek to resolve those disputes. Jane MacLeod 7 or possibly me, felt that [Post Office Limited's] 8 incoming Chairman, Tim Parker, who was without any 9 vested interests, could perform that role supported by 10 external counsel, who was entirely independent from the 11 team at [Post Office Limited]." 12 So my understanding of that is you say the 13 provenance of what we now call the Swift Review was 14 either an idea by you or Jane MacLeod? 15 A. I think that's right, although the actual instruction 16 for it to begin was given by Baroness Neville-Rolfe, but 17 I don't know whether that was as a result of discussions 18 we'd had with the department and it was adopted as their 19 solution but my recollection is that I think the initial 20 idea probably emanated from us. 21 Q. Could we look, please, at POL00153064. This is an email 22 from you to Jane MacLeod on 2 September 2015, so before 23 the Swift Review, effectively, and you say: 24 "Following a recent further (and pretty major 25 I gather) wobble on BNR ..." 110 1 That's Baroness Neville-Rolfe, isn't it, BNR? 2 A. Yes. 3 Q. Was that a yes, sorry? 4 A. Sorry. Yes, it was. 5 Q. Now, in your witness statement at paragraph 130 you say 6 that wobble or wobbles referred to episodes of 7 discomfort and concern on the part of Baroness 8 Neville-Rolfe; do you stand by that? 9 A. Yes, I do. 10 Q. In fact, was what you were meaning here that Baroness 11 Neville-Rolfe had wobbled from the party line that no 12 further investigation was necessary? 13 A. No, no, it is unsurprising to my mind that, when faced 14 with colleagues in the House suggesting there's more -- 15 you know, that the Panorama programme revealed all sorts 16 of things, that, you know, her confidence would have 17 been shaken and it only -- it is only a reference to the 18 fact that, you know, when faced with something that is 19 difficult, challenging, that ministers, you know, will 20 feel like any normal human being, ups and downs in terms 21 of the confidence they've got in the matters before 22 them. 23 Q. The second paragraph, you refer to an email from MPs 24 Andrew Bridgen, Kevan Jones, and, it says: 25 "... it would appear, Oliver Letwin, requesting 111 1 an early further meeting on the back of the 'very 2 serious findings' of Panorama's investigation." 3 It goes on to say, in the last sentence, that: 4 "The email goes on to suggest that someone like 5 Sir Terry Leahy (ex CEO of Tesco ...) or Stuart (now 6 Baron) Rose ... would be ideal." 7 Now, that was referring to those two people being 8 good people to oversee an independent review, wasn't it? 9 A. Yes. 10 Q. You say: 11 "Beyond bizarre, but there you go." 12 Do you see that? 13 A. Yeah, absolutely. 14 Q. So is it not the case that you were against the idea of 15 a further investigation into the matters which had been 16 described as "Sparrow issues"? 17 A. At that stage, I didn't feel it was a sensible course of 18 action. I think, at this stage, we had the CCRC already 19 engaged in conducting its important work and it wasn't 20 immediately clear to us that the Panorama programme had, 21 in fact, unveiled anything terribly new. The 22 whistle-blower in question, despite our repeated efforts 23 to understand what he was alleging, came to nothing, and 24 I note that, in the Swift Review itself, I think 25 Jonathan Swift comes to the conclusion that it wasn't 112 1 entirely clear what the person who it was, Richard Roll, 2 was actually suggesting had happened or was possible. 3 Q. Okay, so 2 September, then, you're against the idea of 4 the review. Before going back to the Swift Review, 5 let's just look at the next paragraph. You refer to 6 internal discussions about key risks, and you say: 7 "Bluntly, while BIS officials do a sensible enough 8 job of relaying information, we are less confident about 9 their ability/willingness to provide her with proactive, 10 robust advice and deliver difficult messages." 11 Is this, in effect, a criticism of Shareholder 12 Executive decisions for not putting a Post Office spin 13 on information relevant to the Sparrow issues? 14 A. No, it's got nothing to do with spin. It's a question 15 of whether or not they were relaying the strength of our 16 case effectively. 17 Q. Could we please bring up POL00041135. So this is 18 a letter dated 7 September 2015 to Baroness 19 Neville-Rolfe from Jane MacLeod. We see it refers to 20 a meeting on 6 August, a briefing about matters relating 21 to the BBC Panorama documentary. If we could turn, 22 please, to page 4, it says, "Way Forward": 23 "At our meeting on 6 August 2015 you advised that 24 you would ask the new Chairman, Tim Parker, to review 25 the Post Office's position." 113 1 So is it not the case that this idea did come from 2 Baroness Neville-Rolfe in early August 2015, rather than 3 coming from you? 4 A. Not necessarily, no., for the simple reason that we 5 would have discussed these matters with Richard Callard 6 and Laura Thompson and it may have been during the 7 course of those conversations that the idea surfaced. 8 As I say, I can't be sure where the initial idea came 9 from but I did say, a second or two ago, that certainly 10 the decision to launch it was taken by Baroness 11 Neville-Rolfe. 12 Q. Yes, but, Mr Bourke, in your evidence you suggest that 13 the idea came from either you or Jane MacLeod. We went 14 to an email on 2 September 2015 when you were against 15 the idea of some sort of review, and this tells us that 16 Baroness Neville-Rolfe, on 6 August 2015, advised that 17 she wanted Tim Parker to look at Post Office's position. 18 It's pretty clear, isn't it, that the idea for the Swift 19 Review didn't come from you? 20 A. As I said, I'm not sure about that but I think we're 21 talking at cross purposes. I think the calls being made 22 by Kevan Jones and others was for a different sort of 23 review, ie a judicial review, a Government sponsored 24 review, rather than something like this, which was one 25 step below that but would hopefully -- well, as it goes 114 1 on to say in that very paragraph, you know, we would 2 welcome the Government Department's support in resisting 3 the current calls for a public inquiry. So that's what 4 we were objecting to, not the review that Tim Parker 5 eventually undertook. 6 Q. Could we look, please, at the Swift Review itself. It's 7 POL00006355. Now, this is a detailed report. I'm not 8 going to take you through all of it. Could we look, 9 please, to page 51, thank you. If we could bring 10 paragraph 145 into view, thank you. 11 So it says: 12 "It seems to us that the Deloitte documents in 13 particular pose real issues for [Post Office Limited]." 14 The Deloitte documents, I think, referred to there 15 are the Project Zebra documents from 2014; is that 16 right? 17 A. That's my understanding, yes. 18 Q. It says: 19 "First, both the existence of the balancing 20 transaction capability and the wider ability of Fujitsu 21 to 'fake' digital signatures are contrary to the public 22 assurances provided by Fujitsu and [Post Office Limited] 23 about functionality of the Horizon system. Fujitsu's 24 comment we quote above seems to us to be simply 25 incorrect, and [Post Office Limited's] Westminster Hall 115 1 Response is incomplete." 2 Now, pausing there, that was the response we were 3 referring to earlier, wasn't it, in January 2015? 4 A. Yes, that's right, yes. 5 Q. So this is, effectively, it's directly saying, in terms, 6 that that response was incomplete, based on what was in 7 the Deloitte report. Now, following receipt of this 8 advice, did you inform either Shareholder Executive or 9 UKGI about the fact that the Westminster Hall response 10 was incomplete? 11 A. I don't think we did so in terms of, you know, 12 an immediate call in to the department, no. But we 13 shared the output of the Swift Review with Baroness 14 Neville-Rolfe and Tim Parker. 15 Q. Let's be careful there. You said, "We shared the output 16 of the Swift Review with Baroness Neville-Rolfe", what 17 do you mean by the "output"? 18 A. Well, I haven't got the letter in front of me but 19 I think it detailed in -- I think it went into some 20 considerable detail about both the positive and adverse 21 findings that Jonathan made -- that Sir Jonathan made. 22 Q. I see. So just to be -- your evidence is that what 23 Baroness Neville-Rolfe was told about the Swift Review 24 is contained in the letter or correspondence from Tim 25 Parker and there wasn't further oral briefings on it? 116 1 A. I honestly can't remember but there was -- I imagine 2 conversations took place at official level because they 3 would have been -- sorry, UKGI would have been 4 interested in -- because it was UKGI by this stage -- 5 would have been interested in what was going on, but 6 I honestly can't remember the detail of those 7 conversations. So it's entirely possible that that was 8 communicated to them but I can't specifically recall 9 that happening. 10 Q. Could we look, please, at POL00103110. So if we can go 11 down the page slightly, please, we see there Jane 12 MacLeod to Tim Parker on 22 January 2016. So my 13 understanding is this was shortly after a draft of 14 the -- or it's an indication being given as to Jonathan 15 Swift's recommendations to Tim Parker but not a final 16 report. A final report hadn't been completed; is that 17 right? 18 A. Yes, I think Tim Parker received a draft report in the 19 week of 11 January. 20 Q. If we go again to the top of the page, we see that this 21 email was sent to you there. So, if we can go, please, 22 back down to Jane MacLeod's email and over the page to 23 "Briefing to the Minister", it says: 24 "We also discussed with Jonathan whether there were 25 any limitations from his perspective on the content of 117 1 your briefing to the Minister. Jonathan confirmed that 2 there were no limitation this is from his perspective, 3 although he noted that if a physical or electronic copy 4 were provided, this could result in the loss of legal 5 privilege in connection with the document, recognising 6 that, in the absence of privilege, the report could be 7 disclosable under a [Freedom of Information] request." 8 It says: 9 "Accordingly, our recommendation is that you provide 10 a verbal briefing to the Minister that in response to 11 the question", and it goes on. 12 When he says "our recommendation" was "our" 13 including the team, including you? 14 A. No, I think she was referring to the -- I think she 15 could have easily have said "my recommendation" but 16 I think what she was referring to there is the 17 recommendation both of her and Jonathan Swift. 18 Q. Did you discuss whether or not the Swift Review should 19 have been shared with the Minister, as a document in 20 itself, with Jane MacLeod or Tim Parker? 21 A. Not personally, no. At least, I don't think I did, no. 22 Q. Please could we turn to POL00024911. So we have at the 23 top a response from Jane MacLeod to you, it's in 24 response to an email that you sent earlier that day. If 25 we could go down to that, please. You said: 118 1 "As promised, I spoke to Laura Thompson about any 2 developments she might have to report on how best to 3 communicate the shift in focus to the litigation and 4 away from the review." 5 Do you have any recollection of that conversation? 6 A. A vague one but, yes, I remember the conversation having 7 taken place. 8 Q. What's your recollection of the conversation? 9 A. Well, I think there was a discussion because this, 10 I think, came once proceedings had been issued and there 11 was a question mark about whether or not the 12 recommendations that Jonathan had made, eight in total, 13 should be taken forward under the aegis of his review or 14 whether, in the light of proceedings having been issued, 15 they should instead be taken forward under the -- you 16 know, through the exercise to defend the litigation. 17 Q. Did you tell Laura Thompson anything about the content 18 of the recommendations in the Swift Review? 19 A. I'm sure in the intervening period I would have told her 20 about the sort of headline facts, yes. 21 Q. What headline facts would you have told her? 22 A. Well, there was some follow-up to be done on the IT 23 front. We'd just been speaking about some of those. 24 There was a question mark about whether or not the NBSC, 25 the helpline, for want of a better expression, was 119 1 providing sensible and accurate advice to those people 2 calling it. There was a recommendation on the question 3 of whether or not theft -- sorry, a charge or theft was 4 being properly levelled or was probably -- properly 5 being made in certain cases. So I think there were 6 eight in total. I can't remember each and every one of 7 them individually but I would have given her or Richard 8 Callard or both a heads-up on what remained to be done. 9 This was, you know, an exercise that we felt was 10 important to ensure that we had done everything that we 11 reasonably could to address the complaints that had been 12 initially raised in the context of the Complaints and 13 Mediation Scheme. 14 Q. Would you have said anything about the Deloitte reports, 15 the Project Zebra reports? 16 A. I don't think I would have said the words "Project 17 Zebra" because I don't think I ever knew about that 18 codename for it. I think it's unlikely. I think 19 I would have -- insofar as I talked to her about the 20 specifics, it would have just been about the specifics 21 rather than about, you know, particular names. 22 Q. I want to look at one aspect of the recommendations 23 which was taken forward, and that's Project Bramble. 24 Could we please look at POL00029990. This is an email 25 from Andrew Parsons to you and others on 13 July 2016 120 1 and it says: 2 "... I wanted to give you a heads up on the 'remote 3 access' issues that have been revealed through 4 Deloitte's preliminary report." 5 Now this was, as you say, Project Bramble. One of 6 the things Deloitte was looking at are matters to do 7 with remote access on the recommendation of Jonathan 8 Swift; is that broadly matter? 9 A. No, that's entirely accurate. Yeah. 10 Q. What was your role in relation to Project Bramble? 11 A. So I convened a meeting with colleagues from -- one or 12 two colleagues from the business and also three people 13 from Deloitte -- Andrew Whitton, Mark Westbrook and 14 there was one other person, whose name escapes me -- 15 and, effectively, that was a meeting called with a view 16 to initiating Project Bramble. We were very clear on 17 the back of Jonathan Swift's review that we want to -- 18 well, he had already indicated as soon as he got the 19 draft that he wanted all recommendations accepted and 20 followed through. So, even before the finalised report 21 reached him on, I think, 8 February, we had already 22 begun work to scope what would need to be done by 23 Deloitte in order to satisfy his recommendations. So 24 I attended -- I convened a meeting to initiate that 25 project. 121 1 Q. It seems you're still involved as an identified 2 recipient where the summary of Andrew Parsons' advice, 3 when the first preliminary report is produced. 4 So at this stage, what's your ongoing involvement? 5 A. Well, I think it's beginning to reduce, only because 6 I think my role changed but, at this stage I -- you 7 know, I'm -- obviously I have been involved in the 8 scheme and I've been involved in some of the debates 9 about remote access and one of the reasons I think 10 Andrew Parsons is sharing this with me is because it 11 extends very substantially, the understanding that 12 certainly I had and, as I understand it, my colleagues 13 had, of what was possible in terms of remote access by 14 Fujitsu. 15 Q. Well, in your own words, could you set out what your 16 understanding was of that expansion? 17 A. Well, we had -- prior to this email, my understanding 18 had always been that any data recorded on the whatever 19 the repository was, BRDB, can never be deleted, amended, 20 manipulated. All that could happen is a new 21 transaction -- a new entry being put in, the balancing 22 transaction, and that would be auditable. This, as it 23 says in line one of the background, says very clearly 24 that they have the ability to delete and edit 25 transactions. Now, that is -- that was entirely new 122 1 information. 2 Q. Do you know how widely the Project Bramble report was 3 shared? So, to the best of your knowledge, was it 4 provided to the Post Office Board? 5 A. To the best of my knowledge, I don't, but I can imagine 6 it would have been. 7 Q. To the best of your knowledge, was the Project Bramble 8 report provided to UKGI? 9 A. I honestly don't know but, since UKGI have a seat on the 10 Board, that would have had the same effect. 11 Q. Please could we look at POL00028070. This is a further 12 draft report -- 13 Apologies, we're just waiting for a phone, thank 14 you. 15 This is a further draft report, 3 October 2017. To 16 what extent were you still engaged with Project Bramble 17 at this point? 18 A. I don't know which one in the sequence this was. 19 I think I'd listed, or you disclosed to me eight or -- 20 seven or eight versions of iterations of this report. 21 My level of engagement reduced over that time very 22 markedly because I was moving away from anything to do 23 with this subject area but I was keeping, you know, in 24 loose touch, just through discussions with Mark 25 Underwood, who I think was the point person engaged with 123 1 Deloitte colleagues in making sure they were getting 2 what they needed. There is an email, I think, addressed 3 to me from Mark Westbrook indicating that he was having 4 some difficulty in getting what he needed out of Fujitsu 5 and I think, simply because I was more senior person 6 than Mark Underwood at the time, he was effectively 7 asking me to give them a nudge to accommodate the work 8 that they were doing. But, as I say, my involvement 9 with bramble dwindled quite rapidly. 10 My last understanding of what it had found was that 11 the -- whilst the Horizon system was certainly not 12 completely watertight, the steps one would need to take 13 to overcome the various security controls would be 14 really quite difficult to achieve and that -- I think 15 I say in my witness statement -- I think it wasn't 16 entirely clear to me why somebody at Fujitsu would be -- 17 with the wherewithal and the right access rights, would 18 set their mind to doing that. 19 Q. If we look at the content of this and turn to page 7, 20 please, paragraph 1.4.2.6. It refers to: 21 "A limited number of authorised Fujitsu personnel 22 have sufficient privileges to theoretically add/delete/ 23 change data in the BRDB (Privileged Users)." 24 It goes on to say, the bottom paragraph: 25 "Through our enquiries, we have identified that 25 124 1 current Privileged Users [sorry, that's at the bottom of 2 the page, please] have access to the KMS ..." 3 That's the key management system, is it? 4 A. I don't know. 5 Q. "... such that they could theoretically cover up changes 6 they make to the BRDB data. This is a failure by 7 Fujitsu to implement its own segregation of duties 8 policy. We are unable to determine how long this 9 vulnerability has existed as records of historic users 10 are not kept." 11 Then if we go over the page, please. We have: 12 "Based on assertions from Fujitsu 13 [paragraph 1.4.2.14], there is a key split in dates 14 around the audit trail of privileged user usage in July 15 2015: 16 "Pre-July 2015 only superuser log on and log offs 17 were logged. However these are expected to be of low 18 volume, and would always (if valid accesses) be approved 19 by a documented access request form." 20 Then after 2015 it refers to various audit data that 21 was created. 22 Now, looking back, what you were describing earlier 23 of your knowledge and your understanding, is that 24 effectively what's set out here? Do you think you would 25 have read this report at the time and understood this to 125 1 be the position that Deloitte were taking? 2 A. What's the date of this document, please? 3 Q. It's 3 October 2017. 4 A. I mean, I think it's unlikely. I certainly -- I mean, 5 with the best will in the world, the documents are -- 6 make for quite difficult reading, make hard reading and 7 I think, unless you're quite well versed in these 8 matters, they would be -- you know, I would find it very 9 difficult to draw sensible conclusions from it without 10 some considerable guidance, which I didn't have. So 11 I think the answer to that is -- the short answer is no, 12 I don't think so. 13 Q. Well, let's go further on in the document. Page 132, 14 please, appendix 7. It says: 15 "Clarification questions 16 "The below clarification questions and associated 17 answers attempt to provide clarity on queries arising 18 from the content of this report." 19 Presumably questions which have been put by Post 20 Office. Do you remember anything about that? 21 A. Not in the context of this exercise, no. I mean -- 22 Q. Apologies. I spoke over you. 23 A. I was just going to say, by this time, this exercise was 24 being done in the context of the Group Litigation. So, 25 if you like, the internal client for these purposes 126 1 was -- were the people who were conducting the 2 litigation rather than me. 3 Q. Yes, but you did sit on the Postmaster Litigation 4 Steering Group, didn't you? 5 A. Yes, I did, and -- 6 Q. Remote access was a key issue in the Group Litigation, 7 wasn't it? 8 A. Of course it was, yes. 9 Q. You were involved in establishing this project, correct? 10 A. Yes, yes. 11 Q. You say, I think, your involvement dwindled but, given 12 your responsibilities on the steering group, do you not 13 think you would have read these clarification questions 14 and answers to understand what position or what advice 15 Deloitte was providing? 16 A. You know, the fact of being on the PLSG does not mean 17 that I was the best person to, you know, understand or 18 query or challenge the information of being -- you know, 19 also on the PLSG were people who were specifically 20 employed by the company to deal with IT issues. So I'm 21 afraid the answer is, no, I didn't. You know, 22 I followed it as a matter of curiosity but not with any 23 great application or rigour. 24 Q. How widely available or -- let me rephrase that, sorry. 25 To what extent were these Deloitte reports discussed 127 1 in the Postmaster Litigation Steering Group? 2 A. I honestly don't recall. I really don't think they 3 would have been gone through in any forensic detail, 4 simply because they would have only really been 5 intelligible to people with the necessary expertise and 6 I think that would have made for a very difficult and, 7 if I may say so, boring meeting for the majority of 8 participants. 9 Q. Can you recall passing on any of the Bramble reports to 10 any other person outside of Post Office Limited? 11 A. No, because I didn't think I had -- I didn't have 12 custody of the Bramble reports. 13 Q. You say you didn't have custody, is your evidence that 14 you didn't have access to the Bramble reports? 15 A. I could have had access if I'd asked for it but I didn't 16 have routinely access to it. As I say in my witness 17 statement, I'm amazed it went on for as long as it did 18 and produced so many reports. I simply had no knowledge 19 of that or, insofar as I did, it didn't register. 20 Q. I wanted to now just cover a few topics on the Group 21 Litigation itself. 22 SIR WYN WILLIAMS: Before you do, Mr Stevens, and I'm sorry 23 to be a bit interruptive today so to speak. 24 MR STEVENS: Not at all. 25 SIR WYN WILLIAMS: I just want to put these things in 128 1 a chronological order, if I can. This draft report of 2 3 October 2017 appears to be describing a form of remote 3 access which had hitherto not been known at the Post 4 Office but which seems to have existed from 2015, all 5 right? Now, I'm not sure if I've got that right but 6 let's assume that for the moment. 7 In Mr Justice Fraser's judgments, he dealt with 8 Legacy Horizon, which was from commencement to 2010, 9 roughly; Horizon Online; and then third version, that 10 which was extant when he was carrying on the 11 proceedings. The question I want to ask you is, first, 12 the third version, was that a version which was either 13 in being and/or under construction, if that's the right 14 word, in or around 2015? 15 A. If you're addressing that question to me, sir, I'm 16 afraid -- 17 SIR WYN WILLIAMS: You don't know the answer, all right. 18 Well, the next question -- you may not know the answer 19 to this either: was there any attempt to understand 20 whether the what I'll call "enhanced ability" to 21 remotely access outside the branch was available under 22 either Legacy Horizon or Horizon Online, as opposed to 23 the version which succeeded Horizon Online? 24 A. Again, I don't know. What I do know of the judgments, 25 of course -- I mean, if I can characterise it, I think 129 1 Mr Justice Fraser described the first version, Legacy 2 Horizon, as being sort of full of holes -- 3 SIR WYN WILLIAMS: Yes. 4 A. -- and the second being rather better but only the third 5 version as being robust comparable to other systems in 6 use in other places. 7 SIR WYN WILLIAMS: Exactly so, but I was trying to work out 8 in my own mind whether what we had here, putting it 9 bluntly, was a function of remote access, which was 10 "enjoyed", in inverted commas, with Horizon Online, but 11 nobody ever reviewed it until much later, or whether the 12 enhanced access, which is revealed in this draft report, 13 came about either coincidentally or otherwise with the 14 third version of Horizon. That's what I'm trying to 15 establish. 16 A. Yeah, I'm afraid I can't assist -- 17 SIR WYN WILLIAMS: You can't help. That's the top and 18 bottom of it. 19 All right, Mr Stevens looks as if he may know the 20 answer. 21 MR STEVENS: I can assist by taking you through the 22 document. They are quite -- 23 SIR WYN WILLIAMS: Don't waste the time with the witness. 24 MR STEVENS: Yes. 25 SIR WYN WILLIAMS: We can do certain things by you just 130 1 educating me, Mr Stevens. 2 MR STEVENS: Yes, I'll do that. I will cover it another 3 time. But we will leave it there with this witness. 4 Thank you, sir. 5 SIR WYN WILLIAMS: Yes. 6 MR STEVENS: I was moving to the Group Litigation. 7 Please could we bring up POL00025509. These are 8 terms of reference and membership for the Postmaster 9 Litigation Steering Group and, if we go to the bottom, 10 please -- thank you -- we can see you are 11 a representative of Corporate Services. What was 12 Corporate Services' role on the Postmaster Litigation 13 Steering Group? 14 A. Corporate Services was the name -- was the temporary 15 name given to the expanded Legal Team to include the 16 Audit and Risk and Information Rights teams as well as 17 the Security Team, as it evolved, as it reduced in size, 18 and so it didn't have any -- save for the legal 19 function, it didn't have any subject matter expertise to 20 bring to the party in the way that perhaps other 21 participants did. 22 Q. In practice, what would you say your role was on this 23 committee? 24 A. I think, really, in practice, I was on it, really, for 25 two reasons: partly as a sort of deputy for Jane 131 1 MacLeod, as a sort of eyes and ears; and, secondly, 2 because I might be able to offer some insight on the 3 basis that I understood some of the issues that had been 4 raised in the context of the scheme, which, of course, 5 is only a very small or subproportion of those who 6 joined the Group Litigation. 7 Q. Now, we earlier referred to the Swift Review 8 recommendations and the crossover with the Group 9 Litigation. To what extent were the recommendations in 10 the Swift Review being pursued separately to the Group 11 Litigation, from the time that the claim form was 12 served? 13 A. So my recollection is that, all eight recommendations 14 were set in train as soon as we got the draft report 15 from Sir Jonathan Swift, so that's to say the week of 16 11 January 2016; the finalised document was presented on 17 8 February, and then the proceedings, I think, were 18 issued in July 2016, at which point, advice was obtained 19 from both Anthony de Garr Robinson, the QC then with 20 responsibility for the management of the litigation as 21 a whole, as well as Jonathan Swift QC, as the author of 22 the Swift Review, as to whether it was appropriate to 23 cease the work under the banner of the review but carry 24 out equivalent work under the banner of the litigation, 25 and we double checked that that was something that 132 1 was -- that was something that Jonathan Swift was 2 agreeable to, which he was. 3 Q. If we turn the page in this document, please, the terms 4 of reference say that the objectives of the PLSG are to 5 ensure that Post Office's defence of the claim, first! 6 "Protects the Network"; what does that mean? 7 A. I think it simply means that, you know, it enables the 8 running of 11,500 branches to continue without 9 interruption. 10 Q. The rest: 11 "Is proportionately managed; 12 "Does not place unplanned constraints or resources 13 burdens on Post Office; and 14 "Is Consistent with business as usual practices ..." 15 So did the steering group have any responsibility 16 for following up on the recommendations in the Swift 17 Review? 18 A. I don't believe so, certainly not in formal terms, no. 19 Q. So who was responsible for keeping any oversight of the 20 recommendations in the Swift Review at this point? 21 A. I assume the Legal team was appropriately supported by 22 other specialists whether in finance or elsewhere. 23 Q. Please can we bring up POL00110482. Can we go to 24 page 3, please. We see here it's Jane MacLeod's email 25 of 26 July 2016, which you're copied into. It refers to 133 1 briefing the Group Executive: 2 "... this morning of the progress of the litigation 3 and the planned positioning of various issues ... 4 "As expected there was significant concern around 5 the apparent change in emphasis from previous public 6 statements, the resultant adverse publicity this may 7 create, and the impact this may have on new ministers, 8 who will not have been briefed." 9 I should have said in the above, it says: 10 "In particular, I commented on the issues around the 11 response to the remote access issue." 12 Now, this was in the context, was it, of, a couple 13 of weeks earlier, the first operation Bramble report 14 being produced? 15 A. So I think that's right. It was certainly 13 days 16 precisely after Andy Parsons sent me and others the 17 email which disclosed the fact that Fujitsu revealed the 18 ability of super users to edit or otherwise manipulate 19 existing data on the ARQ. 20 Q. Were you involved in the discussion with the Group 21 Executive? 22 A. No. 23 Q. If we turn to Andrew Parsons' email, I think it's 24 page 1, please, at the bottom. He refers to: 25 "Jane's email accurately records our current 134 1 understanding." 2 It says: 3 "Deloitte are investigating the key questions ..." 4 Then if we go up to Jane MacLeod's email, it talks 5 about wording, and this is wording for the letter of 6 response, isn't it, how to deal with remote access? 7 A. How to deal with remote access on the basis of 8 incomplete information. 9 Q. What Jane MacLeod suggests here is to write: 10 "Access to databases. Database and server access 11 and edit permission is provided, within strict controls 12 to a small, controlled number of specialist Fujitsu 13 personnel. Our current understanding is that although 14 it may be possible theoretically to use these 15 permissions in a way that could affect a branch's 16 accounts, it is unclear why any such permissions would 17 be used by those specialists in such a way. Any such 18 use of these permissions in this way would, in any 19 event, be logged and be subject to compliance with the 20 specified controls." 21 Then in brackets: 22 "We have asked Fujitsu to advise whether such 23 permissions have ever been used in this way." 24 You're not copied in to that email. Did you have 25 any discussions around this time with people within Post 135 1 Office as to how to deal with the wording on remote 2 access in the letter of response? 3 A. I don't recall doing so. I think it's fair to say that 4 the 13 July revelation, if I can put it that way, from 5 Andrew Parsons, caused a fair bit of consternation. So 6 it would have been the subject of discussion generally 7 between the people involved but I don't think I had any 8 role in actually finalising or suggesting particularly 9 forms of word that might accommodate what, as I say, was 10 incomplete information. 11 This was new information. We still hadn't got to 12 the bottom of exactly what it meant, and Fujitsu hadn't 13 provided us with the, you know, A to Z in terms of the 14 comprehensive answer that we were looking for. 15 So, given that the letter of response was due to go, 16 I think, in very short order, when this revelation was 17 made, I think colleagues were looking for the best way 18 of reflecting this new knowledge, and this is the sort 19 of exchange that took place in order to do that. 20 Q. Could we please look at POL00041259. It's an email from 21 Andrew Parsons the following day, and you're included on 22 the recipient list. It says: 23 "Please find attached the final version of the 24 letter of response that we intend to send tomorrow. 25 "The only outstanding point is Tony's approval ..." 136 1 That's presumably Anthony de Garr Robinson KC? 2 A. That's correct, yes. 3 Q. "... approval of the remote access wording ..." 4 Do you remember if you looked at this copy of the 5 letter of response? 6 A. I think I was sent it and asked if I had any input to 7 make. From memory, I did read it. I think I may have 8 made a one or two minor suggestions but -- and I don't 9 actually recall what those were and whether they related 10 to this remote access point, in particular. 11 Q. Let's have a look at the draft that was attached. It's 12 POL00041260 and, if we could go to page 24, and if we 13 could go down to paragraph 5.16.4. So how it's drafted 14 there, the last two sentences say: 15 "As far as we are currently aware, privileged 16 administrator access has not been used to alter branch 17 transaction data. We are seeking further assurance from 18 Fujitsu on this point." 19 That was changed from previously, where the draft 20 suggested: 21 "We have asked Fujitsu to advise whether such 22 permissions have ever been used in this way." 23 So the draft that Jane MacLeod sent has changed to 24 this and it appears to have gone from saying, "We don't 25 know if this access has been used this way", to, "As far 137 1 as we're aware, it hasn't been used in this way but 2 we're seeking further assurance". 3 Are you aware of whether Fujitsu provided any input 4 into whether the privileged administrator access had 5 been used when drafting this version of the letter of 6 response? 7 A. I don't think I am aware of whether or not they were -- 8 they provided any input at this juncture. 9 Q. I don't need to go there, sir, but, for your reference, 10 the version of this, as sent, is POL00110507. 11 Sir, looking at the time -- I don't have that much 12 to go -- but, for the transcriber, I propose we take 13 a short ten-minute break. 14 SIR WYN WILLIAMS: Yes. Sorry, could you give me that 15 reference again? 16 MR STEVENS: I'm sorry, sir, I'm rushing through. It's 17 POL00110507. 18 SIR WYN WILLIAMS: Thank you. 19 MR STEVENS: Sorry, I'm told it's a 15-minute break. I'm 20 sorry, so could we say 3.20? 21 SIR WYN WILLIAMS: Jolly good. 22 MR STEVENS: Thank you, sir. 23 (3.07 pm) 24 (A short break) 25 (3.20 pm) 138 1 MR STEVENS: Good afternoon, sir, can you see and hear me? 2 SIR WYN WILLIAMS: Yes, I can, thank you. 3 MR STEVENS: Thank you. 4 Mr Bourke, can you see and hear me? 5 A. I can, thank you. 6 Q. Thank you. Please can we bring up Mr Bourke's witness 7 statement, page 118, paragraph 275. Thank you. You say 8 that: 9 "In relation to specific aspects of disclosure [this 10 is disclosure in the GLO] I am asked about [your] 11 knowledge of Fujitsu's Known Error Log ..." 12 You say it "was and remains limited": 13 "I had a layman's understanding of what it was 14 insofar as it had become part of the lexicon around the 15 time of the Group Litigation and I would hear the term 16 referred to in conversation around [Post Office 17 Limited]." 18 When did you first become aware of the Known Error 19 Log? 20 A. I think it was in the context of a PLSG meeting. 21 Q. So, during your time on the scheme, as the scheme 22 manager, no one in Post Office Limited had discussed 23 a Known Error Log with you? 24 A. Not to the best of my knowledge, no. 25 Q. Just explain in your own lay term, what -- I mean, is it 139 1 fair to say that the Known Error Log could be described 2 as a log of known errors? 3 A. Yes. I believe that's right. I think I say elsewhere 4 in my statement that I thought that it denoted a record, 5 a sort of live document, a live record, of non-material 6 issues that would crop up from time to time in the 7 operation of the system. 8 Q. Well, that point, non-material, where did you get that 9 understanding from? 10 A. That's a fair question: I'm not sure I know. I formed 11 the view -- and this is quite possibly completely 12 incorrect -- that the Known Error Log was -- you know, 13 recorded sort of hiccups but I think the PEAK was more 14 serious. But I don't recall now what "PEAK" even stands 15 for, I'm afraid. 16 Q. If you could look at POL00003340. If we look at page 2, 17 please. This is the Post Office's generic defence and 18 counterclaim in the GLO proceedings, which I think in 19 your evidence you say you reviewed at the time, yes? 20 A. I think I've read, yes. 21 Q. Can we turn, please, to page 23. This is 22 paragraph 50(4) in the generic defence. It refers to 23 the Known Error Log and says: 24 "To the best of Post Office's information and 25 belief, the Known Error Log is a knowledge base document 140 1 used by Fujitsu which explains how to deal with, or work 2 around, minor issues that can sometimes arise in Horizon 3 for which (often because of their triviality) 4 system-wide fixes have not been developed and 5 implemented. It is not a record of software coding 6 errors or bugs for which system-wide fixes have been 7 developed and implemented. To the best of Post Office's 8 knowledge and belief, there is no issue in the Known 9 Error Log that could affect the accuracy of a branch's 10 accounts or the secure transmission and storage of 11 transaction data." 12 Was this paragraph and Post Office's response ever 13 discussed at the Postmaster Litigation Steering Group? 14 A. I don't know. I don't know. It may have been. 15 I didn't attend every meeting of the PLSG but I have no 16 memory of that being discussed, no. 17 Q. To the best of your knowledge, who would have given 18 instructions for that paragraph to be pleaded? 19 A. I would have imagined -- I don't know this for sure -- 20 but I imagine it would have been Rob Houghton who was 21 I think, by that stage, our Chief Information Officer. 22 Q. Could we please look at POL00023013. We see it's 23 an email from Mark Underwood on 25 September 2018. It's 24 sent to you, attaching papers ahead of a Postmaster 25 Litigation Steering Group call, and one of those is: 141 1 "Whether Post Office should disclose the contents of 2 the PEAK system to the claimants." 3 If we look at that decision paper now, it's 4 POL00023013 -- sorry, it's POL00023014. My apologies. 5 So it's talking about whether Post Office should 6 disclose the PEAK system, and on "Voluntary Disclosure", 7 we see there, there's paragraph 1.3.5: 8 "The Post Office has an ongoing duty to disclose 9 adverse documents. Given the nature of the documents 10 contained in the PEAK system, it is likely it will 11 contain adverse documents and therefore, disclosure of 12 these will need to be given at some stage." 13 Now, pausing there, when did you first become aware 14 of the PEAK system? 15 A. It would have been in the context of one of these 16 meetings but, as I say, I don't know what a PEAK refers 17 to, really. 18 Q. Was any consideration given to whether the PEAK system 19 needed to be reviewed for the purposes of considering 20 the safety of past criminal convictions? 21 A. I don't know. 22 Q. Bear with me one moment, please. 23 Please could we turn up FUJ00081944. We see this is 24 an email from Mark Underwood to Kevin Lenihan, you're 25 copied in to it. It says "4/7/2015". My understanding 142 1 is that's an Americanised date and this is 7 April 2015; 2 is that correct? 3 A. Yes, that's correct. 4 Q. We see there are two attachments to this: one is 5 "Receipts and Payments Mismatch Notes"; and one, 6 "Correcting Accounts for Lost Discrepancies." 7 I want to look at one of those, please, and that's 8 FUJ00081946. 9 Do you recall reading this document when it was sent 10 to you? 11 A. Yes, I think so, though I think it was the other 12 document, which I was focused on, but yes. 13 Q. This says: 14 "This note relates to PEAKs [and then gives the 15 numbers]." 16 Then it says: 17 "PC0204263 describes a problem with the [stock unit] 18 balancing that will result in a receipts and payments 19 mismatch." 20 At this point, did you enquire as to what the PEAK 21 database was? 22 A. No. 23 Q. Why not? 24 A. Because what was being brought to my attention through 25 this document was something else, which was a reference 143 1 in the other document to the -- well, two things: one, 2 the -- effectively, the balancing transaction issue, 3 which we've spoken about; and secondly, some language in 4 there seems to suggest that Fujitsu could remotely 5 access -- could access branch accounts more freely than 6 what we thought possible. 7 Q. Right. Well, let's look at that just for completeness. 8 It's FUJ00081945. Is this the document you're referring 9 to? 10 A. Yes, it is. 11 Q. This a well-known document to the Inquiry regarding the 12 receipts and payments mismatch bug. At page 3, is this 13 what you're referring to, Solution One refers to: 14 "... Alter the Horizon branch figure at the counter 15 to show the discrepancy. Fujitsu would have to manually 16 write an entry value to the local branch account." 17 Then it says: 18 "Risk -- This has significant data integrity 19 concerns and could lead to questions of 'tampering' with 20 the branch system and could generate questions around 21 how the discrepancy was caused. This solution could 22 have moral implications of Post Office changing branch 23 data without informing the branch." 24 That's what you were referring to earlier? 25 A. So that's the balancing transaction issue, I think. 144 1 I seem to recall -- and perhaps it's not in this 2 document, but somewhere, I think, in this document, 3 there's some language that seems to suggest that Fujitsu 4 have had the ability to do -- to remotely access branch 5 accounts more freely than we'd understood, and this was 6 brought to my attention by Second Sight on the eve of 7 the finalisation of the Part Two Report, on 8 or 9 April 8 2015 and, immediately on receipt, I remember instructing 9 Mark Underwood and Andrew Parsons to work with Fujitsu 10 to put me in a position to be able to respond to the 11 suggestion being made by Ian Henderson with something 12 meaningful and accurate to go back to him with. 13 They also consulted Pete Newsome, who, at that time, 14 confirmed and was very insistent upon the fact that, 15 whilst the language might point to a more easy remote 16 access than we thought possible, he considered it to be 17 loose language by non-experts and that he was confirming 18 absolutely that the only way that, you know, this could 19 be done was through a balancing transaction, which would 20 leave an auditable trail, and those are the terms upon 21 which I then replied to Ian Henderson on, I think, 22 8 April, and he finalised the report on that basis. 23 But the information is contained in Section 17, if 24 I'm not mistaken, of the Part Two Report -- sorry, 25 section 14, if I'm not mistaken, of the Part Two Report. 145 1 Q. Sir, we've had actually had an application for a Core 2 Participant to ask questions on that issue, so I'm going 3 to leave that there and one of the Core Participants 4 will deal with it. 5 I've just got one last question. It's on your 6 witness statement, please, page 124, paragraph 294. 7 You say, at the bottom of the page, actually, if we 8 could just go down a little more, please: 9 "I therefore joined myself to the apology [Post 10 Office Limited] has quite rightly made for its failings 11 during this period." 12 Why have you used the term you "join [yourself] to 13 the apology"? 14 A. I thought long and hard about this, and I'm obviously 15 also aware of the various apologies that have been made 16 by previous participants to this Inquiry. As I say in 17 the preceding lines, I personally think that I was 18 engaged in some good faith exercises that we did -- that 19 I did, according to the best of my ability. I wasn't 20 involved in the prosecutions; I wasn't involved in 21 disclosure failings; and I fear that, if I were to say 22 I have a personal apology to make, that would be, you 23 know, potentially derided by those it was intended to -- 24 it was intended for. 25 If you ask me what I genuinely feel, it is more in 146 1 the nature of, you know -- I wouldn't be human if 2 I didn't think that -- you know, or if I didn't regret 3 massively what -- all the sort of upset, destruction, 4 distress that's been occasioned by this dreadful saga 5 for all those affected but, particularly, for those 6 people who were wrongly prosecuted and wrongly 7 convicted, but that is a human sentiment and it is meant 8 very, very genuinely. But whatever failings POL made in 9 the context of, you know, improper disclosure in the 10 prosecutions of certain individuals prior to my joining 11 the Post Office, it just feels to me to be a bit hollow 12 for me to apologise for those things. 13 But I -- as a representative of the organisation, 14 I do absolutely want to join myself to the apology that 15 it has made because it was quite right to have made it. 16 Q. Where you say "POL has quite rightly made for its 17 failings during this period", what do you consider its 18 failings to be? 19 A. Well, as best I understand it and having looked at 20 this -- you know, the developments that we've seen 21 from -- in recent years, you know, and particularly the 22 quashings of convictions in, I think, April 2021 23 onwards, there was obviously some real deficiency in the 24 disclosure -- deficiency in the process of prosecutions 25 through a failure of disclosure in those cases, with the 147 1 appalling result that, you know, people who might have 2 otherwise had a defence were left without one to make, 3 or had one -- few defences to make. 4 So, you know, anybody who is on the receiving end of 5 something like a custodial sentence or even not 6 a custodial sentence, as a result of having that 7 criminal procedural rights infringed, I mean, you'd have 8 to be, as I say, completely heartless not to feel deep 9 pain and sorrow for that. 10 Q. Do you think Post Office Limited is responsible for any 11 failings or was responsible for any failings whilst you 12 were employed by it from 2014 onwards? 13 A. I've no doubt that it got a number of things wrong but, 14 in respect of -- I mean, to be perfectly honest, I think 15 that question is too broad, really, to answer sensibly. 16 No doubt we could have approached things differently. 17 One can always make improvements but my observation of 18 the time that I was engaged in these matters is that 19 certainly myself and all the people who were working 20 around me were working to the best of their ability in 21 good faith. We did find it frustrating because we 22 didn't seem to achieve any cut through at all with those 23 people either applying to the scheme or their supporters 24 in Parliament and, you know, it's of regret that we 25 didn't find a device to sort of put things more 148 1 differently. 2 But, you know, beyond that, you know, I think I'll 3 remain -- I'll stick with what I've said. 4 MR STEVENS: Thank you. 5 Sir, that concludes my questions. We have had 6 applications from Core Participants to ask some 7 questions. I understand it will be Ms Page first, who 8 will be about ten minutes; then Mr Moloney will be, 9 I think, less than five minutes; and ten minutes from 10 Mr Stein. 11 I think you're on mute, sir. 12 SIR WYN WILLIAMS: All right. Over to you, Ms Page. 13 MS PAGE: Thank you very much, sir. 14 Questioned by MS PAGE 15 MS PAGE: Mr Bourke, as Mr Stevens has said, there's 16 an issue I want to ask you about and it is to do with 17 the 11th hour response to Second Sight's Part Two 18 Report, which dealt with the "Solution One" meeting, 19 didn't it? 20 A. The Solution One meeting? 21 Q. The Solution One meeting; the meeting at which Solution 22 One -- that may be shorthand for us in the Inquiry that 23 you're not perhaps quite as familiar with -- but 24 Solution One was offered up, wasn't it, by Fujitsu as 25 a means of dealing with the receipts and payments 149 1 mismatch bug? 2 A. The balancing transaction, yes. 3 Q. Yes. Now, what I want to do first is just look at the 4 email chain where you set up the meeting with Fujitsu, 5 which you referred to. That's POL00353224. If we go, 6 please, to page 3, this email was -- yes, if we go to 7 page 3 we'll see how the chain sort of gets kicked off. 8 The second paragraph, this is Mark Underwood, and 9 you're copied in, and this is Mark Underwood basically 10 seeking that sort of 11th hour response. In the second 11 paragraph, he says: 12 "Back in 2010, a bug was identified in Horizon which 13 caused a receipts and payments mismatch issue ... Second 14 Sight has been provided with [documents]." 15 So those documents were the notes of the meeting and 16 Gareth Jenkins report, yes, on the bug? 17 It says this at the end of the paragraph: 18 "Second Sight are not interested in the bug itself 19 but rather the method by which Post Office could have 20 edited branch data to resolve the bug." 21 So that's what is being investigated at the 11th 22 hour just before the Part Two Report is to be published, 23 yes? 24 A. Yes. 25 Q. Then, if we just scroll down, what the email does is it 150 1 quotes the Solution One wording and, in particular, it 2 refers to that question of risk: 3 "This has significant data integrity concerns and 4 could lead to questions of 'tampering' with the branch 5 system ..." 6 So, again, that's what's being looked at, isn't it? 7 That's the sort of key concern? 8 A. Yes. 9 Q. All right. Well, if we go up to page 1, we see that 10 then there's your follow-up to that, stressing the 11 urgency. If we just scroll down a little bit, that's 12 your email saying: 13 "Thanks all. 14 "Needless to say it's really important that we do 15 have something really meaningful and accurate to go back 16 to [Second Sight] with at some point tomorrow." 17 Then you suggest this meeting between Mark 18 Underwood, Pete Newsome -- that's the Fujitsu man, yes; 19 is that right? 20 A. Yes. 21 Q. And Andrew Parsons. You suggest that they have that 22 meeting and they're going to then discuss how to respond 23 to that key concern, aren't they? 24 A. Yes. 25 Q. So I can say, just for the record, that there is then 151 1 a diary appointment the following morning but there's 2 nothing in writing from Fujitsu, so it must be that 3 meeting at which the response from Fujitsu is 4 consolidated it; is that right? Is that your 5 recollection? 6 A. It's not my recollection but, if you say so, yes. 7 Q. All right. Thank you. 8 Following that meeting, if we then look at your 9 response to Second Sight, it's POL00029836. If we go to 10 page 2, please, if we scroll up just a little bit we can 11 see that this is your email to Ian Henderson of Second 12 Sight and Jane MacLeod, your General Counsel, copied in 13 to those various people, including Ron Warmington of 14 Second Sight, and Mark Underwood, who was at the meeting 15 with Fujitsu. 16 Then, if we scroll down a little bit to the bottom 17 of page 2, if we can just look at the penultimate 18 paragraph, you say this: 19 "The language used in the documents produced by Post 20 Office/Fujitsu and to which you refer is unfortunate 21 colloquial shorthand used by those working on the 22 Horizon system. I can see how it could be read to 23 suggest that Post Office was 'altering' branch data but 24 the above explains why this is not the case." 25 So that is presumably what you meant when you said 152 1 to Mr Stevens just a little while ago that Mr Newsome 2 was insistent that the use of the word "tampering" was 3 loose language by non-experts; is that right? 4 A. I believe so, yes. 5 Q. So you composed this based on what Mr Newsome said in 6 that meeting? 7 A. No, the email was composed through a combination of Andy 8 Parsons and myself and others, and other, I think, 9 documents that I've exhibited to my witness statement 10 show very clearly that there were some track changes in 11 this document that point to the fact that this was, you 12 know, a collaborative effort. But there was 13 a substantial input from -- 14 Q. Sorry, can I just focus in, though, on this point about 15 colloquial language. That was based, presumably, on 16 Mr Newsome saying that there had been loose language by 17 non-experts at the meeting when solution one was 18 offered; is that right? 19 A. That's my recollection, yes. 20 Q. Now, loose language is one thing. Colloquial language 21 is another. We could also characterise it in this way 22 couldn't we, Mr Bourke: it's deeply troubling language, 23 isn't it, if somebody says that there's a capacity to 24 tamper with branch accounts; would you accept that? 25 A. Yes, I can accept that, yes. 153 1 Q. Thank you. The email can come down now. 2 Whether or not those at the meeting where solution 3 one was discussed were experts, what they do say, what 4 those Fujitsu people must have said, was that Fujitsu 5 was able to tamper with branch accounts and that's what 6 was being investigated. As Mr Stevens established with 7 you earlier, Mr Bourke, you did not know anything about 8 whether that had happened during the lifetime of Legacy 9 Horizon, did you? 10 A. No. 11 Q. Yet your response to Second Sight was, in effect, to 12 dismiss the idea that there had ever been any tampering, 13 wasn't it? 14 A. I was relaying the information that was provided to me 15 by Fujitsu, and the only other point I'd raise in this 16 context is that this is information that Second Sight 17 had for some considerable time prior to raising it with 18 me on the eve of their finalisation of the Part Two 19 Report. 20 Q. Nevertheless, in your formal response, or rather in Post 21 Office Limited's formal response to the Part Two Report, 22 that wording from your email was used almost word for 23 word. I won't take you to it because, as I say, it's 24 more or less the same, but I'll give the reference: 25 POL00041059, and the relevant bit is at page 57. So 154 1 your email was used as the Post Office's formal response 2 to that section of the Part Two Report. 3 Now, in fact, one of the Post Office employees who 4 attended the meeting at which Fujitsu offered up 5 Solution One was a gentleman called Andrew Winn. He has 6 told this Inquiry that he was the person who signed off 7 on Fujitsu's use of the power to insert transactions 8 into branch accounts. 9 It would have been a simple matter, would it not, to 10 have talked to the Post Office employees who went to the 11 meeting when Solution One was offered up, wouldn't it? 12 A. If you're suggesting that there's something I could have 13 done, sensibly, yes, but, given that this was not new 14 information, I think it was reasonable to expect this 15 had been bottomed out prior. 16 Q. Well, you've told us that you didn't know whether 17 Solution One or the tampering facility was used during 18 the lifetime of Legacy Horizon. It would have been 19 perfectly reasonable at this juncture, given the 20 seriousness of what Second Sight were suggesting, to try 21 to find out, at least by speaking to those Post Office 22 employees who had been at the meeting, and who were 23 still in the employ of Post Office at that time, 24 wouldn't it? 25 A. Well, yes, but I have no way of knowing whether that 155 1 happened or not. I can tell you that I didn't do it, 2 no. 3 Q. You took at face value from an interested party, that is 4 Fujitsu, what they wished to say by way of a gloss on 5 the wording of Solution One, instead of finding out the 6 truth from Post Office's own staff, didn't you? 7 A. Well, no, because, you know, as I've said throughout my 8 witness statement, you know, I was in the habit of 9 taking at face value the views and the expertise offered 10 to me. I had no reason, at this point, to doubt the 11 veracity of what I was being told by Fujitsu. We are 12 not -- we are not, at this stage, in 2024, but instead 13 in 2015. 14 Q. In Second Sight's report, they were giving you the 15 reason to doubt it. They were suggesting that there was 16 another way that you could look at this information and 17 you had other ways to look at it and, instead, you just 18 took the interested party's view, instead of the 19 disinterested party's view; that is Second Sight's view, 20 didn't you? 21 A. I wouldn't characterise it that way but -- 22 Q. This is part of a culture of denial and turning a blind 23 eye when disinterested and legitimate concerns were 24 being raised, wasn't it, Mr Bourke? 25 A. I completely refute that. 156 1 Q. I think the witness said, "I don't accept that," or 2 words to that effect? 3 SIR WYN WILLIAMS: That's what I understood, Ms Page. Yes. 4 MS PAGE: Thank you, sir. Those are my questions. 5 SIR WYN WILLIAMS: Thank you very much. 6 Is it Mr Moloney next? 7 Questioned by MR MOLONEY 8 MR MOLONEY: Sir, yes. Thank you. 9 Mr Bourke, you told Mr Stevens that, at one point, 10 when relations with Second Sight were breaking down, 11 Post Office contemplated enforcement action including 12 demanding the return by Second Sight of all documents 13 provided to them during the Mediation Scheme, yes? 14 A. No, I said that we would envisage doing so if there was 15 a very serious breach of that confidentiality -- 16 Q. You said to Mr Stevens that your overriding concern in 17 doing so was to preserve the personal data of the 18 applicants to the Mediation Scheme? 19 A. Yes, I think that's right. 20 Q. Yes. With that overriding concern in mind, did you ever 21 ask for the return of personal data of the applicants 22 that had been provided to the JFSA? 23 A. I can't recall. 24 Q. Because they'd received much of the same material that 25 Second Sight had received, hadn't they? 157 1 A. Well, yes, but they would have received only that which 2 pertained to them, rather than pertained to the whole 3 group of 136. It is -- given it's their personal data, 4 the concerns were obviously less significant. 5 MR MOLONEY: Thank you very much, Mr Bourke. 6 SIR WYN WILLIAMS: Mr Stein? 7 Questioned by MR STEIN 8 MR STEIN: Mr Bourke, you gave evidence earlier today and 9 you were discussing the ability of subpostmasters to 10 consider the audit trail, okay? Your evidence related 11 to a question of -- as you were talking about -- you 12 thought for Legacy Horizon, that subpostmasters might 13 have something like 42 days to consider what was on the 14 audit trail, and you thought that perhaps, in relation 15 to Online, it might be longer, something like 50 or 16 60 days. 17 Now, we're going to, with the Inquiry, look into 18 that in more detail but does it help to be reminded that 19 it was more likely to be from trading period to trading 20 period, in other words that it related -- this period of 21 time with which any examination within the branch could 22 take place, would have had to have taken place between 23 the trading periods that existed at the time; is that 24 fair? 25 A. I hesitate here because I'm not sure if my expertise 158 1 extends that far but my understanding is that 2 postmasters were required to do a number of checks on 3 a daily, weekly and monthly basis, and that the period 4 of time for which the information was available 5 reflected their -- well, was sufficient to enable them 6 to discharge their contractual responsibilities. 7 Q. Right. Well, the Inquiry has heard evidence about the 8 balancing period and how long that took and I won't go 9 back into that. 10 When considering what you were going to be saying by 11 way of your evidence to this inquiry, did you, by any 12 chance, watch or read the evidence of subpostmasters, as 13 they'd given it in the earlier stages of the Inquiry? 14 A. Do you mean in Phase 1? 15 Q. Yes. 16 A. Yes, I watched some of it, yes. 17 Q. Do you remember that subpostmasters would talk about the 18 fact that they would spend their evenings and sometimes 19 nights trying to make sense of the material that they 20 had before them, that they would neglect their families 21 and their relationships, and all that they could do was 22 try and make some sense of the material that they had, 23 because it didn't make sense to them; do you remember 24 that evidence? 25 A. I do. What I would say is that there are -- for every 159 1 one of those people who were having difficulties -- and 2 I don't suggest for a second they weren't having 3 difficulties and I feel for them in that respect -- 4 there were thousands of others who were managing to do 5 this on a daily basis across the UK. 6 Q. So you're saying, are you, that the subpostmasters that 7 had those difficulties, they brought it upon themselves, 8 that they're the ones that perhaps could have done 9 things somewhat better, as against the ones that didn't 10 make complaints because, apparently, they were better 11 than the people that had the problems? Is that what 12 you're trying to say, Mr Bourke? 13 A. No, all I'm trying to say is that some people will have 14 experienced difficulties but, actually, a large number 15 of people didn't, and that doesn't make one or the other 16 better than the other. It's just a -- 17 Q. But do you recognise that, for the people that were 18 having these difficulties, trying to find some way of 19 making some understanding or some better understanding 20 of the material that they had, when it literally would 21 not make sense, for hours and hours, are you seeking to 22 say that that is something that perhaps maybe they 23 should put behind them and get on with their lives? 24 A. No, I'm not suggesting that at all but I don't know 25 whether that information they were looking at did or did 160 1 not make sense. For example, in the Mediation Scheme, 2 there were cases where postmasters did not understand 3 things but, actually, they had the wherewithal to get to 4 the right conclusions and, for whatever reason, they'd 5 either forgotten the training, or what have you. So, 6 you know, all I'm saying is that it is possible that 7 another postmaster might have made sense of those. 8 Q. There speaks someone, Mr Bourke, yourself, who has, in 9 fact, either no or little understanding about how these 10 matters occurred within branches, as you said earlier; 11 is that fair, Mr Bourke? 12 A. Well, no, I don't think -- 13 Q. Is your opinion about matters that you don't actually 14 understand yourself? 15 A. No, I don't think it is fair. I'm simply thing to you 16 the opposite hypothesis. 17 Q. Okay, let's have a look at a document and see whether 18 that helps about your attitude to matters. The document 19 is POL00246340. If we look at the top line, we'll see 20 there that this is a reference to a meeting that's due 21 to take place. As you can see there, it includes you, 22 Patrick Bourke, and the meeting is Tuesday at 3.00 pm 23 and you'll see there that under "Attachments" references 24 are there to 6 December, okay? 25 Now, we're now going to have a look at another 161 1 document, which is POL00246342. So this is a document 2 that is being referred to in relation to the meeting, as 3 you can see there, 6 December 2016. The meeting email 4 that we've just looked at included such people as Ms van 5 den Bogerd, Mr Williams, and you and others. So this is 6 in relation to, as we can see, top left-hand corner, 7 "Postmaster Group Action, Confidential and Legally 8 Privileged". As we go down here, under "Background", it 9 says: 10 "Post Office has commissioned Deloitte to 11 investigate 'remote access' issues within Horizon ... 12 Deloitte need input from Fujitsu, including its 13 engagement at various workshops. However [it goes on to 14 say] Fujitsu is refusing to cooperate unless it is paid 15 for its services." 16 Then it goes on to talk about two particular 17 matters: 18 "Fujitsu has arguably contributed to the need for 19 Deloitte's investigations ..." 20 Then it refers to, in short form -- I'll put it in 21 the bullet points -- "Statements about remote access", 22 and, if you look at the bottom line of that paragraph, 23 it refers to the fact that Fujitsu has: 24 "... contributed to the allegation that Post Office 25 has concealed an ability to change transaction data." 162 1 Then next bullet point is "Gareth Jenkins", and then 2 it says this: 3 "Fujitsu put forward Gareth Jenkins, one of the 4 engineers of Horizon, to give evidence in criminal 5 prosecutions. Following a review by Brian Altman QC, 6 Post Office was advised that Mr Jenkins' evidence was 7 incomplete because his statements led the Court to 8 believe there were no issues with Horizon when 9 Mr Jenkins knew there were." 10 Then it goes on to talk about the damage to 11 Mr Jenkins' credibility. 12 Let's just pause there for a moment and just deal 13 with the Mr Jenkins question. So in this meeting, in 14 relation to December 2016, by that date, do you know 15 whether Fujitsu had been told that there were these 16 credibility damaging issues in relation to Mr Jenkins or 17 not? 18 A. No, I don't. 19 Q. Right. So we've got then two matters that are being 20 considered and then it goes on to say at that page, 21 under the "Gareth Jenkins" bullet point: 22 "In a more general sense, the fortunes of Post 23 Office and Fujitsu are entwined." 24 Then if you scroll further down, if you would, 25 please: 163 1 "There would therefore seem to be good, albeit 2 self-interested, reasons for why Fujitsu may wish to 3 assist Post Office." 4 Then if we look further down under the "Issue": 5 "Post Office may therefore wish consider whether it 6 is best to either: 7 "Pay Fujitsu for its time insisting Deloitte and not 8 raise the above matters; or 9 "Use the above points so to persuade Fujitsu to 10 provide its support in relation to the Group Litigation 11 at reduced/zero [hour] cost." 12 Okay? 13 A. Yes. 14 Q. So, in relation to these particular questions, do you 15 know whether the Post Office had decided to try to 16 extort Fujitsu into the position whereby it was going to 17 support the Post Office's position within the 18 litigation; do you know whether that was what was 19 decided or not, Mr Bourke? 20 A. I don't, but the cooperation of Fujitsu in the Deloitte 21 work was an issue which had been raised to my attention, 22 and, indeed, I spoke to Mr Stevens about it this 23 afternoon, where it was clear that they were not 24 providing the sort of access and information that 25 Deloitte needed to complete its work on what was then 164 1 Project Bramble. So, clearly, my intervention did not 2 meet with any success because, had it, this piece of 3 paper would not have been needed. 4 Q. Well, Mr Bourke, do you think it's appropriate that 5 an institution such as the Post Office, wholly owned by 6 the Government, is thinking about trying to twist the 7 arm of a corporation such as Fujitsu by saying, "Look, 8 this is what you've done to us. You'd better help out, 9 otherwise these issues may become known"? Do you think 10 that's an appropriate way for the Post Office to behave, 11 Mr Bourke? 12 A. Well, it's not something I would have done, no. 13 Q. Well, did you say at this meeting, "Well, I think this 14 is horrendous. We can't, in all good conscience, try 15 and make Fujitsu do this sort of thing in this way. Why 16 don't we have an honest approach to them and say: 'Look, 17 there are real issues here, we ought to consider 18 together, that affect the people's lives'," Mr Bourke? 19 A. So I don't know whether that approach had not already 20 been tried and not met with success. It may be that 21 approach was tried and did not meet with success and so 22 this is, you know, the third attempt to try to get their 23 cooperation, and you can understand, in the context that 24 these really important matters that you've just 25 outlined, that people are struggling to see how else we 165 1 can bring them to the table and to cooperate. 2 Q. Lastly, Mr Bourke, you've discussed with Mr Stevens in 3 the last few questions today the level of your own 4 personal responsibility. You said that you, as 5 an example, weren't someone that was stopping 6 disclosure. Well, did you, at this time, consider the 7 question of whether this information that was apparently 8 being considered to be used to arm wrestle or twist the 9 arm of Fujitsu to cooperate, did you stop and consider 10 whether it might be helpful for the subpostmasters to 11 know this, rather than you weaponising it? 12 A. I'm sorry, but I just didn't have conduct of the 13 litigation at all and, insofar as the -- you know, these 14 were new revelations to me, as much as anybody else. So 15 given that the prosecutions, in which, you know, 16 disclosure failings took place pre-dated my arrival at 17 the Post Office, I think that's, you know, a bit of 18 a stretch. 19 Q. So not for your consumption, Mr Bourke; let somebody 20 else try and make those decisions. You're not prepared 21 to enter into the consideration of whether 22 subpostmasters should know about Mr Jenkins. That's 23 your excuse; is that right, Mr Bourke? 24 A. It's by no means an excuse. We had any number of 25 eminent lawyers engaged in this matter. We have had 166 1 General Counsel, we've had legal departments, we've had 2 advice from Brian Altman, we've had Simon Clarke giving 3 advice. Of all the people who might be providing advice 4 on this issue, I should think I was one of the least 5 likely people to offer it. 6 MR STEIN: Thank you, sir. 7 SIR WYN WILLIAMS: Thank you, Mr Stein. 8 Is that it, Mr Stevens? 9 MR STEVENS: Yes, sir. That's it. 10 SIR WYN WILLIAMS: Right. 11 Thank you, Mr Bourke, very much, for your very 12 detailed witness statement and for answering questions 13 during the course of today. I'm grateful to you. 14 So we'll resume again at 9.45 tomorrow with 15 Ms Sewell; is that right? 16 MR STEVENS: That's correct, sir. 17 SIR WYN WILLIAMS: All right. Thank you very much. 18 MR STEVENS: Thank you. 19 (4.08 pm) 20 (The hearing adjourned until 9.45 am the following day) 21 22 23 24 25 167 I N D E X PATRICK FRANCIS ULICK BOURKE (sworn) ..........2 Questioned by MR STEVENS ......................2 Questioned by MS PAGE .......................149 Questioned by MR MOLONEY ....................157 Questioned by MR STEIN ......................158 168