1 Thursday, 13 June 2024 2 (9.45 am) 3 MR BLAKE: Good morning, sir, can you see and hear me? 4 SIR WYN WILLIAMS: Yes, I can, thank you. 5 MR BLAKE: Thank you very much. This morning we're going to 6 hear from Mr Andrew Parsons. 7 SIR WYN WILLIAMS: Yes. 8 ANDREW PAUL PARSONS (affirmed) 9 Questioned by MR BLAKE 10 MR BLAKE: Thank you. Can you give your full name, please? 11 A. Andrew Paul Parsons. 12 Q. Mr Parsons, you should have in front of you a bundle 13 containing your witness statement. Is that witness 14 statement dated 17 April 2024? 15 A. It is. 16 Q. It is a very lengthy witness statement, 557 pages in 17 length. Could I ask you to turn to the final 18 substantive page, page 557. Is that your signature? 19 A. Yes. 20 Q. Can you confirm that that statement is true to the best 21 of your knowledge and belief? 22 A. It is. 23 Q. Thank you. That statement has the Unique Reference 24 Number WITN10390200 and that will be uploaded on the 25 Inquiry's website in due course. That sits alongside 1 1 1,172 exhibits, comprising 18 substantive bundles of 2 exhibits. 3 There's a large amount of paperwork today. I'm not 4 going to take you to hard copies -- I'm going to try to 5 deal with it all on screen -- but I will be taking 6 a note of my own in relation to a few matters as we go 7 along. 8 You are currently a partner at Womble Bond 9 Dickinson? 10 A. Yes. 11 Q. You began your career there as a trainee, I think, in 12 2006 when it was Bond Pearce; is that correct? 13 A. Yes. 14 Q. You qualified in September 2008 and joined the 15 Southampton office? 16 A. Yes. 17 Q. You became a senior associate in 2012? 18 A. Yes. 19 Q. You became a partner in 2016? 20 A. Yes. 21 Q. We know from Phase 4 of this Inquiry that Bond Dickinson 22 was involved in civil actions against subpostmasters 23 from the early time when you were qualified as 24 a solicitor, so the early years of your qualification. 25 We heard from, for example, Stephen Dilley who was 2 1 involved in the Castleton case. Was that something you 2 were aware of when you qualified? 3 A. I was aware of the Castleton case. 4 Q. Your main involvement in Horizon, I think, was from 5 April 2013; is that correct? 6 A. That's correct. 7 Q. When you first started working on those Horizon related 8 matters, as a senior associate, who did you report to 9 within Bond Dickinson? 10 A. Gavin Matthews. 11 Q. Thank you. In terms of the Post Office, who were your 12 main points of contact at that stage? 13 A. Initially it was Rodric Williams and then later Susan 14 Crichton. 15 Q. What was your view as to their competence and abilities? 16 A. They both seemed like experienced in-house lawyers. 17 Q. I'm going to start today by taking you to the Helen Rose 18 Report. That can be found at POL00022598, please. This 19 is a report that's well known to the Inquiry but I'll 20 take you very briefly to a couple of key paragraphs in 21 that report. The date of that is 12 June 2013, so soon 22 after your Horizon work began, and it's an investigation 23 into the Lepton branch. 24 If we could turn over the page, the subpostmaster in 25 this case had denied carrying out a transaction and 3 1 there was an investigation. Helen Rose has written this 2 report. If we scroll down, there's a section on 3 reviewing the data. She says there: 4 "The Fujitsu logs were requested for this branch, 5 but whilst waiting for these to arrive communications 6 took place with Gareth Jenkins at Fujitsu for more 7 details to gain an understanding what had occurred at 8 this branch." 9 Just pausing there, Gareth Jenkins, is that somebody 10 who you were aware of, even in broad terms, in April 11 2013, or thereabouts? 12 A. Thereabouts or shortly thereafter. 13 Q. "Questions asked and extracts from various emails in 14 response." 15 We've seen this plenty of times, there are a set of 16 questions that Helen Rose has asked and answers that 17 have been provided by Gareth Jenkins. If we scroll over 18 the page, please. One of the key parts for this Inquiry 19 if we scroll down, she says: 20 "Question -- I can see where this transaction is and 21 now understand the reason behind it. My main concern is 22 that we use the basic ARQ logs for evidence in court and 23 if we don't know what extra reports to ask for then in 24 some circumstances we would not be giving a true 25 picture. 4 1 "I know you are aware of all the Horizon integrity 2 issues and I want to ensure that the ARQ logs are used 3 and understood fully by our operational teams who have 4 to work with this data both interviews and in court." 5 If we scroll over the page she makes some 6 recommendations. 7 "Recommendations 8 "I do believe that the system has behaved as it 9 should and I do not see this scenario occurring 10 regularly and creating large losses. However, my 11 concerns are that we cannot clearly see what has 12 happened on the data available to us and this in itself 13 may be misinterpreted when giving evidence and using the 14 same data for prosecutions." 15 Now, you've set out in your witness statement why, 16 in your view, this wouldn't have changed the picture 17 very much. I think it's paragraph 84 of your witness 18 statement, I don't need to take you to it. 19 We can see that this report was sent to you. Could 20 we please turn to POL00190324. We have an email at the 21 bottom of the page, please, from Dave Posnett to Rodric 22 Williams. He says as follows: 23 "Rodric, 24 "Please find associated a report from our fraud 25 analyst, Helen Rose, in respect of Lepton SPSO. This 5 1 office doesn't feature as part of our Second Sight spot 2 reviews ..." 3 Just pausing there, by this stage, so summer of 4 2013, I think you were involved in those Second Sight 5 spot reviews; is that correct? 6 A. I was assisting Post Office with drafting the responses 7 to the spot reviews. 8 Q. Thank you: 9 "... but the subject matter is Horizon (and indeed 10 Credence) related. Could I ask that you consider the 11 report and feed any comments back as it could be 12 a potential issue at some stage. 13 "In summary, the specifics concern a 'system 14 reversal' of a transaction following a system failure. 15 This is normal practice, but the Horizon logs (and 16 Credence logs) indicate that the reversal is an 17 'existing reversal', implying that the reversal was 18 manually entered by the clerk/subpostmaster. 19 "I think there's a remote possibility that this 20 could be a problem in terms of using the data for 21 evidence/prosecution purposes, but nevertheless it is 22 still a possibility. Myself or Helen are happy to talk 23 through anything that requires explanation." 24 If we scroll up to the top of the first page, 25 please, we can see Rodric Williams sends it to you on 6 1 3 July 2013, and he says: 2 "Andy -- can you take a look at this so you can give 3 me an overview on the phone sometime today." 4 He attaches there the Helen Rose Report. 5 I think you've said in your statement that you don't 6 recall receiving the report; is that correct? 7 A. I don't recall receiving the report, no. 8 Q. Looking at this email, it is likely that you did receive 9 the Helen Rose Report on 3 July -- 10 A. Yes. 11 Q. -- and it is likely that you considered its contents? 12 A. Correct. 13 Q. You would have seen the wording at the bottom, the 14 concerns that are raised by Dave Posnett? 15 A. I would have focused on the aspects of that report that 16 were talking about transaction reversals because that 17 was the same issue that had arisen in spot review 18 number 1, that I've looked at recently. 19 Q. The report itself is not very long. It's four pages. 20 A. (The witness nodded) 21 Q. So it's likely, isn't it, that you would have read the 22 report? I mean, it's actually three pages of text and 23 one page of front page? 24 A. Yes, I accept I would have read the report. 25 Q. Yes. Moving on to the suspense account bug, I think at 7 1 that time it was the 14 bug or referred to the number 14 2 because of the number of branches that it was known to 3 have affected; is that correct? 4 A. Correct. 5 Q. Could we please look at POL00296703. If we start at the 6 bottom of the first page, we can see an email from Ben 7 Thorp, was he in the Post Office Legal team? 8 A. He was a secondee from Bond Dickinson to the Post Office 9 Legal team. 10 Q. Thank you. In fact, that's how he introduces himself at 11 the beginning of this email. He says: 12 "By way of a very brief introduction, my name is Ben 13 Thorp. I am a Bond Dickinson secondee (from the 14 Newcastle office) currently working with Rodric Williams 15 in [the Post Office's] Legal Team for the next few 16 weeks. 17 "We have received the attached query from business 18 regarding historical issues a very limited number of 19 branches had with Horizon. [The Post Office] intends to 20 refund any losses caused by these issues, but not seek 21 to recover any gains. 22 "Could you please review the letters and let Rodric 23 and me have any comments you may have, particularly in 24 the context of the spot reviews? 25 "If you would like to discuss anything arising from 8 1 your review, please do give either Rodric or me a call." 2 If we scroll up we can see your response. You say: 3 "Ben, Rodric 4 "To be honest, I don't quite follow the logic of 5 Andy Winn's letters (I suspect this is just me and that 6 this just makes expect sense to the subpostmasters!). 7 "The risk here is that disclosing any form of 8 an error in Horizon could become problematic if it ends 9 up in the hands of the [Justice for Subpostmasters 10 Alliance]. However, we have no real option but to 11 disclose this issue and make right the error with the 12 [subpostmasters] that have been [affected]. To do 13 otherwise, risks damaging [the Post Office's] 14 credibility on Horizon and severe criticism from the 15 Fed. 16 "My [suggestion] therefore is to make sure that we 17 fully understand the root cause of this error before 18 going public. Hopefully, this will give us a good 19 explanation as to why this one error does not undermine 20 our general view that Horizon is otherwise robust. 21 "With that in mind, are you happy for me to speak 22 ... to Simon Baker/Andy Winn to get some more 23 background/technical details?" 24 You say there "Hopefully, this will give us a good 25 explanation as to why this one error does not undermine 9 1 our general view that Horizon is otherwise robust"; were 2 you concerned, on reading that, that it was 3 a possibility that that general view could have been 4 undermined? 5 A. At this stage, I didn't understand the nature of the 6 error in hardly any detail. I was also only about two 7 months into working for Post Office in earnest, so my 8 understanding of Horizon was pretty limited, so I wanted 9 to understand more information before forming that view. 10 Q. Can we please turn now to POL00144848. So letters by 11 this stage had been drafted and sent to you for review. 12 You are now responding to Rodric Williams and you say: 13 "I've reviewed the [subpostmaster] letters. I've 14 attached mark-ups of the two letters which show the 15 suggested amendments that should be made across all the 16 letters." 17 You set out in bullet points the various amendments 18 that you've made. The first: 19 "To insert an opening paragraph that explains [the 20 Post Office's] investigation and highlights the fact 21 that we have sought to protect [subpostmasters] from any 22 harm in the interim period. 23 "To remove the word 'problem' and to replace with 24 the dramatic word: 'issue'." 25 Just pausing there, was that your own initiative; 10 1 was that something you were aware of, that the business 2 wasn't happy with certain language? 3 A. No, I had no instructions as to use of particular 4 language. I think it's a fairly ordinary thing for 5 lawyers to do to soften wording in letters. 6 Q. You say: 7 "I don't think we should apologise in the letters. 8 I know this sounds hard but in apologising we are 9 admitting some degree of culpability. I think we should 10 maintain a more cold, procedural approach to correcting 11 what is effectively an accounting irregularity." 12 Is that, again, something you did, your own 13 initiative without instructions on that particular 14 matter? 15 A. These are my recommendations to Post Office. 16 Q. You then say: 17 "In some circumstances it appears that [an] error 18 caused a transaction record from a former 19 [subpostmaster] at a branch to be carried over into the 20 records of a later [subpostmaster] at the same branch. 21 In my view this is a dangerous admission, as the 22 complete separation between [subpostmaster] records is 23 a cornerstone principle of ensuring Horizon's integrity. 24 Although this has happened and is completely 25 explainable, I don't think we ever want to expressly 11 1 document this." 2 Are you saying in that final bullet point that it's 3 such an important issue for Horizon that you don't think 4 that it should be documented? 5 A. I'm talking here in the context of these letters, which 6 are individual letters to go to individual 7 subpostmasters. 8 Q. Why wouldn't you want to expressly document something 9 that is the cornerstone of ensuring Horizon's integrity? 10 A. We're talking here about these particular letters. This 11 isn't advice to suggest that the whole issue should not 12 be documented. 13 Q. Why wouldn't you want to document it in those letters? 14 A. Because each letter was individual to each branch. Each 15 one was customised, so it dealt with the issue in that 16 individual branch. 17 Q. Why wouldn't it matter? Why would you be concerned 18 about expressly documenting something? Is it because 19 you would be concerned about disclosure, for example, in 20 other cases? 21 A. Disclosure of this issue may have come out anyway 22 because the issue was documented in other documents. 23 What I'm talking about here is the individual letters, 24 each one was customised to each individual subpostmaster 25 to reflect their position and how it had impacted on 12 1 them. 2 Q. I'm not too sure how that answers the question that I've 3 just asked though, which is about disclosure in other 4 cases. Were you concerned that, by documenting it in 5 these particular cases, it would then be on record to be 6 disclosed in other matters? Was that a concern that you 7 had that is expressed in this bullet point? 8 A. If it had been documented in those letters then, yes, it 9 would have been disclosable in other matters but my 10 point being is there would have already been in 11 existence documents about this issue. 12 Q. Was a concern that you had that, if you documented it, 13 it would then become disclosable in other matters? 14 A. I don't believe I gave it that level of thought. 15 Q. You were, at this time, summer of 2013, concerned about 16 expressly documenting matters relating to Horizon 17 integrity? 18 A. Again, this is in the context of letters to individual 19 subpostmasters. It's not a general observation on how 20 Post Office should document problems in Horizon. 21 Q. Can we please look at the letters. Can we turn to 22 POL00144849. Thank you. These are your amendments to 23 the letters. This is to a subpostmaster and it says: 24 "I am aware that you have communicated previously 25 with our Current Agents team in relation to 13 1 2 unexplained discrepancies that have impacted your 2 branch. Thanks for alerting us to the issues." 3 So this is a letter where someone has already made 4 a complaint and it's responding to their specific 5 complaint? 6 A. That's what I understood, yes. 7 Q. You've added this. You've added: 8 "In light of these discrepancies, Post Office has 9 thoroughly investigated your branch's records and, 10 whilst undertaking this investigation, we have ensured 11 that any known discrepancies have not been charged to 12 your account. I write now to confirm the outcome of our 13 investigations." 14 What was the thorough investigation that had taken 15 place? 16 A. This was information provided to me by Andy Winn of Post 17 Office. 18 Q. This was your insertion into a draft letter. What 19 investigations had you carried out that the Post Office 20 had thoroughly investigated the branch's records? 21 A. I had personally not carried out any investigations. 22 Q. Were you, nevertheless, comfortable in inserting that 23 addition? 24 A. Those were my instructions from Andy Winn. 25 Q. "I can confirm", and then you speak about the gains. 14 1 Then we see you've changed the word "problem" to "issue" 2 and you've struck out the words "by the former 3 subpostmaster"; is that because, as you identified in 4 that previous email, that, at the cornerstone of 5 ensuring Horizon's integrity, was the separation between 6 subpostmasters accounts -- 7 A. That's what I understood at the time. 8 Q. -- and, thereby, by removing reference to the former 9 subpostmaster, it would not be clear to the person 10 reading this letter that that strict division between 11 subpostmasters' accounts had not, in fact, functioned on 12 that occasion? 13 A. I think it would have been possible for the 14 subpostmaster to have worked that out because it 15 mentions 2010; "TP8" is trading period 8, so they would 16 have known whether that happened whilst they were the 17 subpostmaster or not. 18 Q. So why strike it out? 19 A. Because I didn't think it was relevant to this 20 particular subpostmaster. 21 Q. It's not because you didn't think it was relevant. We 22 can go back to those bullet points if you want but you 23 said, in that final bullet point, that: 24 "It is my view this is a dangerous admission as 25 a complete separation between subpostmasters' records is 15 1 a cornerstone principle of ensuring Horizon's integrity. 2 Although this has happened and is completely 3 explainable, I don't think we ever want to expressly 4 document it." 5 Surely, by removing reference to "by the former 6 subpostmaster", you're making it less clear that that 7 separation had been violated? 8 A. I accept that. 9 Q. If we scroll down, please, and, again, strike out the 10 word "problem", replace it with "issue", and then strike 11 out the apology at the end? 12 What was the problem, legally, with making 13 an apology? 14 A. I think sometimes apologies can be interpreted as 15 admissions and it's not -- I think it's pretty common 16 for lawyers to -- in letters, to consider whether the 17 apology is appropriate or not. 18 Q. Post Office were, in this case, making an admission, 19 weren't they? 20 A. Yes. 21 Q. There had been an issue or a problem, it had been 22 corrected and this was notification to the subpostmaster 23 that that had been corrected. What was the problem in 24 this particular case of apologising for that? 25 A. In my view, it leads people to consider that there was, 16 1 as I say, an admission of legal fault when, in fact, 2 Post Office's view is, yes, there had been a problem but 3 it was being corrected through proper channels. 4 Q. Was that something you did regularly on behalf of the 5 Post Office? 6 A. It would depend on the circumstances. 7 Q. Are there other letters where you would have removed 8 apologies? 9 A. Possibly. 10 Q. Could we please look at POL00144850. This is the other 11 attachment. This is the other amendment, made very 12 similar amendments. If we scroll down we can see 13 reference to that "thorough investigation". 14 Do you see, in terms of the thorough investigation, 15 is it likely that, in fact, the investigation was only 16 in relation to this particular issue that had been 17 identified, the 14 bug? 18 A. I can't now recall. 19 Q. Do you recall any wider investigation that took place in 20 relation to these subpostmasters' branches investigating 21 their branch records, any wider than the identified 22 issue in this particular case? 23 A. I can't recall. 24 Q. Would you accept that, reading that letter, it sounds as 25 though a thorough investigation has taken place that is 17 1 wider than simply one particular issue? 2 A. I can see how someone could read it that way but I also 3 think it's read in the context of looking at 4 a particular issue. 5 Q. Where does it explain that a particular issue has been 6 thoroughly investigated? 7 A. Because it's targeting those specific discrepancies in 8 the accounts. 9 Q. Did you draft it intentionally so that it was ambiguous 10 as to what the investigation had been into? 11 A. I don't believe so. 12 Q. For example, why wouldn't it have said, "The Post Office 13 has thoroughly investigated this issue"? It says, 14 "investigated your branch's records". It's drafted in 15 quite a wide way, would you accept that? 16 A. I can see how you could read it that way. I don't 17 believe I gave it that level of thought at the time. 18 Q. Can you see how the recipient may well read it that way? 19 A. I think they would have recognised that this was 20 investigating a particular discrepancy and that's what 21 was being investigated. 22 Q. So it wasn't your intention to suggest a broader 23 investigation than, in fact, had taken place? 24 A. Correct. 25 Q. Can we please turn to POL00144864. We're still on the 18 1 same day, 27 June 2013, POL00144864. I think it's the 2 bottom email on that page. You email Rodric Williams, 3 you say: 4 "Rodric 5 "As discussed, please find attached a version of the 6 letter for those [subpostmasters] who are currently not 7 aware of the situation." 8 So there were letters going out to those who had 9 actually made specific complaints, those who knew about 10 the investigation, and then a third set of matters which 11 was to those who weren't already aware of the situation; 12 is that correct? 13 A. I can't now recall what that was a reference to. 14 Q. Well, looking at this email, does it seem as though 15 there was a further set of letters to the subpostmasters 16 who were not currently aware of the situation? 17 A. My recollection is there were two versions of the 18 letters, one for those who had suffered a loss, and one 19 for those who had suffered a gain. I don't recall 20 whether there was a third version for another category. 21 Q. Okay, well, let's have a look at the draft letter that's 22 attached to this tell that's sent in your name on 23 27 June 2013. That is at POL00144854. This is the 24 letter that was attached to your email. If we scroll 25 down, we can see it's informing a subpostmaster and it 19 1 says, "Branch discrepancies at", and it names the Post 2 Office: 3 "You may have been aware of 2 small value 4 unexplained discrepancies that have impacted your 5 branch. 6 "In light of these discrepancies, Post Office has 7 thoroughly investigate your branch's records and, whilst 8 undertaking this investigation, we have ensured that any 9 known discrepancies have not been charged to your 10 account. I write now to confirm the outcome of our 11 investigations." 12 It refers to a small value declaration that was 13 amended. 14 Looking at this, is this something you recall now; 15 does this assist? 16 A. It appears that the first paragraph has been changed. 17 Q. This isn't a change; this is one that you sent 18 independently. 19 A. Mm. 20 Q. You said, "Please find attached a version of the 21 letter", so it's a further letter to those who weren't 22 aware and it refers specifically to an issue in their 23 particular Post Office, doesn't it? 24 A. Correct. 25 Q. Do you think it's fair to say that a reader of this 20 1 letter will be under the impression that, in fact, there 2 are two small-value discrepancies and that this is 3 effectively a business as usual type correspondence, no 4 explanation, for example, of it affecting other 5 branches? 6 A. I couldn't comment on whether this was a business as 7 usual type correspondence for Post Office to send. 8 Q. You were drafting the letters? 9 A. Mm-hm. 10 Q. You were assisting the Post Office drafting the letters? 11 A. (The witness nodded) 12 Q. If you were to read this and you're a subpostmaster, do 13 you think you might get the impression that you were the 14 only one affected by this discrepancy? 15 A. You might get that impression. 16 Q. Do you think you might get the impression that, in fact, 17 it's only two small-value discrepancies that have 18 occurred? 19 A. In that branch, yes. 20 Q. But you wouldn't have known about other branches, would 21 you? 22 A. Correct. 23 Q. Again, was that the intention of this correspondence: to 24 suggest to the recipient of the correspondence that it 25 was only them that was affected and that it wasn't a big 21 1 deal? 2 A. I don't believe that was the intention. 3 Q. Why in that correspondence not say to the recipients 4 "You are one of a number of branches that have been 5 affected by this issue"? 6 A. I don't believe we just -- I gave that any consideration 7 and the instruction was to draft a letter that was 8 focused on each individual branch and explain their 9 position. 10 Q. Can we please turn to POL00144871. Same day, another 11 email between you and Rodric Williams. The bottom email 12 is Rodric Williams to you saying: 13 "When We discussed this yesterday, you mentioned 14 this might have been kicking around for [circa] 15 12 months. 16 "Can you give me a couple of bullet points on when 17 this first came up and what [the Post Office] did next?" 18 If we scroll up, we see your response. You say: 19 "Rodric 20 "The issue manifested in around 2011 and those 21 [subpostmasters] that suffered sizeable errors (ie ones 22 that were easy to spot) reported the issue immediately." 23 Pausing there, so there were subpostmasters who 24 experienced sizeable errors? 25 A. Yes. 22 1 Q. So the correspondence we saw before about the two 2 small-value unexplained discrepancies. Alongside those 3 small-value discrepancies, there were large ones? 4 A. That's my -- yeah, my distant understanding is there 5 were some larger ones, yes. 6 Q. "However as it was any a few branches, Chesterfield 7 didn't see the pattern in the errors for over 12 months. 8 It was only as more issues were raised and no individual 9 branch-by-branch explanation could be found, that 10 someone (not sure who) realised that it could be 11 an error in Horizon affecting multiple branches. 12 "I presume that it then took time to engage Fujitsu; 13 investigate the technical causes and determine the 14 effect of the causes; etc." 15 So this is a bug that occurred in 2011 that was only 16 realised 12 months later; is that right? 17 A. That was -- I think that was my understanding at the 18 time, based on what Andy Winn had told me. 19 Q. We're now in 2013, summer of 2013, and you say you 20 presume it took time to engage Fujitsu, so 21 a considerable further period has taken place before 22 subpostmasters have received any correspondence on the 23 issue or received that correspondence explaining the 24 issue? 25 A. That's my presumption at the time, though I just would 23 1 note that my understanding of this bug is it's nature 2 was that it was annually reoccurring. So it would only 3 come up once a year, which was part of the context of 4 this. 5 Q. So it had happened twice before it was actually spotted? 6 A. Correct. 7 Q. You say there: 8 "I presume that it then took time to engage Fujitsu; 9 investigate the technical causes", et cetera. 10 Were you aware of the extent to which Fujitsu had 11 been investigating the causes? 12 A. Not at this time. 13 Q. So, again, if we refer back to those letters that I took 14 you to, where you referred to a thorough investigation, 15 in fact, you personally weren't aware of the extent of 16 the investigation? 17 A. I was working on the instructions provided to me by Andy 18 Winn. 19 Q. Did you question those instructions? 20 A. I remembered speaking to Andy Winn and discussing the 21 matter but, beyond that, I can't remember the details of 22 those conversations. 23 Q. So we're still in the summer of 2013, you now, by this 24 stage, know that there was this bug, not just that 25 subpostmasters' records couldn't be kept separate from 24 1 a successor subpostmaster but it was also a bug that 2 went on for a year without anyone noticing and took even 3 more time to resolve; is that right? 4 A. Correct. 5 Q. So summer 2013, I'm going to put new evidence of 6 suspense bug, you were concerned about its implications 7 for accounting integrity -- 8 A. Correct. 9 Q. -- and you had, in an email raised concerns about 10 documenting that? 11 A. I'd raised concerns about documenting it in these 12 specific letters, not generally. 13 Q. Can we please turn to POL00407496, please. Still in the 14 summer of 2013, 1 July 2013 now. Could we start on the 15 second page, the bottom of the second page. An email 16 from Simon Baker to Rodric Williams: 17 "Rod 18 "It would be helpful if we can show that Horizon 19 bugs were discussed openly in our court cases. 20 "We know that the Falkirk bug was discussed in the 21 Misra case, can you find out if there are any other 22 examples where bugs have been discussed in court." 23 That request is ultimately sent to you, and we can 24 see that and your answer, on page 1. So if we go to the 25 top of page 1, we can see, you say: 25 1 "Other than the Castleton and Misra, we are not 2 aware of any litigation that has involved an allegation 3 of an actual bug in Horizon. 4 "However, this is based on anecdotal discussions 5 inside Bond Dickinson." 6 Just pausing there, who had you spoken to inside 7 Bond Dickinson? 8 A. I don't recall. 9 Q. "Please bear in mind that we have handled [hundreds] of 10 cases over the last 5-10 years for [the Post Office] so 11 (absent a case-by-case review) it's impossible to say 12 for certain that no [subpostmaster] alleged a Horizon 13 bug. 14 "We are however confident that no case in the last 15 2 years has involved an allegation that there is 16 a specific flaw in Horizon." 17 Just pausing there, the first paragraph that I took 18 you to refers to an actual bug. 19 A. Mm-hm. 20 Q. At the third paragraph, we're talking about a specific 21 flaw. Were those words quite carefully chosen, in that 22 what you're saying here is an actual bug that has been 23 referred to, for example, by name or that is known 24 about, rather than, for example, a wider problem with 25 Horizon? 26 1 A. I don't think I meant any difference between those two 2 phrases. 3 Q. Well, you were aware that, in that time, subpostmasters 4 had been raising problems with Horizon and that they 5 couldn't necessarily pinpoint that to a specific or 6 actual bug? 7 A. Yes. 8 Q. "There are a number of cases handled by our paralegal 9 team that have been put on hold because 10 [a subpostmaster] has alleged problems with Horizon." 11 So there are also some that are now on hold because, 12 I think, Second Sight are investigating? 13 A. Correct. 14 Q. "These cases are suspended pending Second Sight Report. 15 It may be that on closer inspection these cases reveal 16 a specific complaint about an error in Horizon however 17 we would need to undertake a deeper review of each case 18 to determine this. 19 "On Castleton: 20 "I have spoken to the lawyer had a conducted this 21 litigation which took place in 2007." 22 Can you assist us who it was that you spoke to? 23 A. I can't recall but I believe it would have been Stephen 24 Dilley. 25 Q. "The case was principally about accounting records -- 27 1 the Horizon challenges by Castleton were generally 2 uncoordinated and piecemeal. It should be borne in mind 3 that Castleton was unrepresented so there was no logical 4 attack on Horizon." 5 You say: 6 "I'm still looking to Misra and will report back 7 soon." 8 So can I add here to my list of things in summer of 9 2013 that you knew about the Castleton case; you knew in 10 broad terms, although not the specifics, about the Misra 11 case; and you knew that other cases were on hold because 12 of Horizon challenges? 13 A. I think the other -- I knew both about those cases, and 14 I think the other cases were generally all paused 15 because the Second Sight work was going on. 16 Q. You knew that they were paused because they were raising 17 concerns about the integrity of the Horizon system? 18 A. That's what it says there but I can't recall that now. 19 Q. The second Sight Interim Report is then 8 July 2013. 20 I'm going to take you very briefly to that report. The 21 Inquiry has seen it many times. It is POL00099063. 22 Thank you. If we turn to page 6, please. We see there 23 the bugs that are referred to as "defects" in the Second 24 Sight Report. The first is the receipts and payments 25 mismatch problem impacting 62 branches. The second is 28 1 the local suspense account problem, that's the 14 branch 2 issue that you had already been dealing with? 3 A. I'd been drafting the letters on. 4 Q. Yes. 6.10, there's also another bug, I think that's the 5 Callendar Square/Falkirk bug. It says: 6 "POL has informed us that it is disclosed, in 7 Witness Statements to English Courts, information about 8 one other subsequently-corrected defect or 'bug' in the 9 Horizon software." 10 That was, in fact, the issue that you were looking 11 into on behalf of Rodric Williams, wasn't it; you were 12 looking into whether there were other bugs that had been 13 disclosed in court cases? 14 A. Correct. 15 Q. Misra was one you were going to come back to him on; 16 presumably you did come back to him on Misra? 17 A. Yes, I believe we had someone review the case. 18 Q. Because I am going to add, we're in the summer of 2013, 19 8 July, at least three bugs known to you? 20 A. I knew of three bugs at that time. 21 Q. Yes. Cartwright King's advice on Gareth Jenkins now. 22 That was dated 15 July 2013. You've dealt with it in 23 your witness statement, paragraph 87. Could we please 24 start with WBON0000133. If we can start on page 4, 25 please, bottom of page 4, 16 July 2013. Susan Crichton 29 1 emails you and she says: 2 "Andy -- we received a letter from the [it should be 3 'CCRC', Criminal Cases Review Commission] yesterday 4 which I have asked Cartwright King to review. Their 5 advice feels odd to me as if given on a take it or leave 6 it basis and I am not comfortable that's particularly 7 useful in this context. Could we discuss, I am happy to 8 go to another firm that specialises in criminal law or 9 a barrister, somehow it feels as if there is a conflict 10 here which I am not sure I understand." 11 Over the page to page 3, please. There's advice 12 given by Gavin Matthews. So he was your supervising 13 partner, was he, at this stage? 14 A. Correct. 15 Q. He says: 16 "I know that you are with Simon and Andy today so 17 I have taken an initial look at this for you." 18 So on 16 July, is "Andy" a reference to you? Were 19 you meeting with Susan Crichton on 16 July? 20 A. I think that is a reference to me but I don't recall 21 that meeting. 22 Q. He says: 23 "I agree with you that I would expect the advice to 24 [be] more prescriptive, ie you need to say this in 25 response. 30 1 "I do also have concerns from a civil point of view 2 over a couple of statements in the draft response." 3 So this is the draft response to the Criminal Cases 4 Review Commission that had been drafted by Cartwright 5 King. He says: 6 "In particular, where it states: 7 "'He has done so both to [the Post Office] and, in 8 expert witness statements and oral evidence, to the 9 court. In particular he has: attested to the presence 10 of defect detection and rectification systems; the 11 robustness of the prosecution audit trail; and stated 12 that, in his expert opinion, Horizon accurately records 13 and processes all information submitted into the system. 14 The Second Sight Interim Report demonstrates that this 15 was not the case'." 16 So that's there a reference to Gareth Jenkins, isn't 17 it? 18 A. Yes. 19 Q. Yes. Your supervising partner there is raising 20 a concern about that being included in the letter to the 21 Criminal Cases Review Commission? 22 A. Yes. 23 Q. He says: 24 "I consider this to be unhelpful, given that the 25 [Second Sight] report found there to be no systemic 31 1 problems with Horizon. 2 "It shows the need for all [Post Office] letters 3 (criminal and civil) to contain a consistent message -- 4 so that the right hand and the left hand know what they 5 are each doing." 6 Were you aware that that was the advice from your 7 firm: that there needed to be greater coordination 8 between the criminal and civil sides? 9 A. I was copied to this email. 10 Q. Yes, so you were aware -- 11 A. I was aware of -- 12 Q. -- not just from this email but perhaps from 13 conversations with your supervising partner or -- 14 A. I don't believe before this point my firm had any 15 involvement in the criminal side, so there may have been 16 no conversations before this email was sent. 17 Q. So, from this point on, the approach of your firm was, 18 and the advice to the Post Office was, that "We need to 19 coordinate more between the criminal and the civil 20 side"? 21 A. I think that is an early comment from Gavin, which will 22 have been the first time we've been asked to consider 23 the crossover between the civil and criminal side and, 24 as he goes on to say later down, he notes he's not 25 a criminal lawyer and he suggests that they get advice 32 1 from a criminal barrister. 2 Q. Can we turn, please, to the first page. There's another 3 email from Gavin Matthews. You were presumably at this 4 stage very much aware of the Gareth Jenkins issues 5 because you were meeting Susan Crichton that very day? 6 A. I think I had been informed a few days earlier that 7 there was something to do with Gareth Jenkins but 8 I wasn't fully aware of the issues until I received 9 a copy of the advice from Cartwright King. 10 Q. Thank you. We will go through that advice shortly. 11 Gavin Matthews emails Susan Crichton and says: 12 "Susan 13 "thought I would give you my preliminary views on 14 this pending our call ..." 15 Were you involved in a call on that day? I know you 16 met her, I think, on the 16th. Do you recall a call the 17 next day? 18 A. No. At this time, I was mainly focused on looking at 19 the response to Second Sight, because their report had 20 just been published. 21 Q. "1. [The Post Office] needs to look at the response to 22 the CCRC in the context of the overall strategic advice 23 received from [Cartwright King] (including their advice 24 regarding [Gareth Jenkins/Fujitsu]). 25 "2. If [the Post Office] suffers losses directly 33 1 referable to [Gareth Jenkins'] failure to comply with 2 his obligations as an expert witness, there are 3 3 potential entities against whom [the Post Office] may 4 have an action -- [Gareth Jenkins, Fujitsu and 5 Cartwright King] ... 6 "4. Given that [Cartwright King] are potentially 7 liable to [the Post Office] for any failure on the part 8 of [Gareth Jenkins/Fujitsu], I do think it would be 9 sensible to get a criminal QC to oversee the strategic 10 advice being given [Cartwright King] -- I'm not saying 11 that [Cartwright King] have definitely done anything 12 wrong but they may have done and are trying to blame 13 [Gareth Jenkins/Fujitsu] so it is very important to 14 check that their tactical approach is now overseen by 15 someone completely unbiased." 16 We will see, in due course, that advice is sought 17 from that criminal QC. We'll look at that advice. 18 Could we please, first though, turn to WBON0000770. If 19 we scroll down slightly, we can see that Martin Smith 20 sends Susan Crichton the Simon Clarke Advice on Gareth 21 Jenkins and, if we scroll up, please, we can see that 22 Susan Crichton sends you that advice and that's that 23 same day, 17 July 2013. 24 Can we please turn to the Advice and that is 25 POL00006357. This is Cartwright King's advice, the 34 1 Clarke Advice on Gareth Jenkins, entitled 2 "Prosecutions -- Expert Evidence". Could we please 3 start on page 5, paragraph 14, "Expert evidence relied 4 upon by [the Post Office] in prosecuting offences": 5 "For many years both [Royal Mail Group] and latterly 6 [the Post Office] has relied upon Dr Gareth Jenkins for 7 the provision of expert evidence as to the operation and 8 integrity of Horizon." 9 So you were aware at this stage that the Post Office 10 had been relying on Gareth Jenkins for a number of years 11 to provide expert evidence? 12 A. That's what I took from this advice, yes. 13 Q. Paragraph 15: 14 "Dr Jenkins had provided many expert statements in 15 support of [the Post Office and Royal Mail Group] 16 prosecutions ..." 17 So lots more than one, a number of different expert 18 statements, is that what -- 19 A. That's what it says there. 20 Q. Was that your understanding? 21 A. Yes, having read those words. 22 Q. Thank you. Could we turn to page 13, please. We have 23 the conclusion, paragraph 37: 24 "What does this all mean? In short, it means that 25 [and that should read 'Gareth Jenkins'] has not complied 35 1 with his duties to the court, the prosecution or the 2 defence." 3 Paragraph 38: 4 "The reasons as to why [Gareth Jenkins] failed to 5 comply with this duty are beyond the scope of this 6 review. The effects of that failure however must be 7 considered. I advise the following to be the position: 8 "[Gareth Jenkins] failed to disclose material known 9 to him but which undermines his expert opinion. This 10 failure is in breach of his duty as an expert witness. 11 "Accordingly [his] credibility as an expert witness 12 is fatally undermined; he should not be asked to provide 13 expert evidence in any current or future prosecution." 14 If we scroll over the page, please. We see there 15 that first bullet point on the page, it says: 16 "... not least by reason of [Gareth Jenkins'] 17 failure, material which should have been disclosed to 18 defendants was not disclosed, thereby placing [the Post 19 Office] in breach of their duty as a prosecutor. 20 "By reason of that failure to disclose, there are 21 a number of now convicted defendants to whom the 22 existence of bugs should have been disclosed but was 23 not. Those defendants remain entitled to have 24 disclosure of that material notwithstanding their now 25 convicted status." 36 1 The next bullet point: 2 "Further, there are also a number of current cases 3 where there has been no disclosure where there ought to 4 have been. Here we must disclose the existence of the 5 bugs to these defendants where the test for disclosure 6 is met." 7 A very serious advice, one that you presumably took 8 very seriously at that time? 9 A. I read it but this was within the remit of the criminal 10 lawyers to deal with. 11 Q. It's not just dealing with the existence of bugs, that 12 we've already seen you were aware of throughout the 13 summer of 2013 but, by now, potential miscarriages of 14 justice. Was that not something that played on your 15 mind at all? 16 A. It was a serious matter but it looked like to me it was 17 being addressed by Cartwright King and then subsequently 18 Post Office understood the seriousness, which is why 19 they brought in Brian Altman. 20 Q. There were the subpostmasters who had been convicted on 21 the back of that evidence. Presumably, irrespective of 22 your day job, you were concerned about that? 23 A. I could see the seriousness of the matter. 24 Q. Can we turn to POL00083932, please. This then sets in 25 motion a number of different actions, one of which is 37 1 this regular call regarding Horizon issues. Do you 2 recall those regular calls? 3 A. I recall the calls as a concept. I don't recall any of 4 the individual ones. 5 Q. Here we have the first of those, which was presumably 6 significant in the sense that it was the very first. 7 19 July 2013, you are named as an attendee; do you 8 recall attending that first regular call? 9 A. I don't recall attending that call but I have no reason 10 to doubt that I was there. 11 Q. There are two entries from you that are recorded in 12 these minutes. Can we please look at the first, which 13 is on page 2. It says: 14 "Andrew Parsons ... Commented on the need to limit 15 public debate on the Horizon issue as this may have 16 a detrimental impact on future litigation." 17 Over the page, please, to page 4, second entry on 18 page 4: 19 "Andrew Parsons ... Stated all lists and 20 spreadsheets should be sent to Rosie Gaisford for 21 [collection]. 22 "Spoke about emails, written comms, etc ... If it's 23 produced it's then available for disclosure, if it's not 24 then technically it isn't." 25 Is that accurate? 38 1 A. I don't believe this minute is a verbatim record of what 2 was said and so I suspect some of the context or wider 3 language used has been lost somewhere. I don't think it 4 would be unsurprising for me to have given Post Office 5 advice on what its civil disclosure duties might be, and 6 that's what's being given there. 7 Q. Do you see the civil disclosure duty to be, if it isn't 8 produced, it's then available for disclosure; if it's 9 not, then technically it isn't? 10 A. This is talking about the fact that in -- civil rules of 11 disclosure are attached to documents, which is 12 information that's recorded. 13 Q. Can you see that it might be interpreted as advice that 14 people shouldn't be writing things down? 15 A. No. 16 Q. Martin Smith has given evidence to this Inquiry and he 17 said that you also spoke at the beginning of the 18 meeting, after Rob King, and you raised concerns about 19 difficulties which could arise following circulation of 20 minutes. Do you recall advising of concerns about the 21 circulation of minutes? 22 A. I don't recall advising on minutes at all in these 23 meetings. These calls were set up by the criminal 24 lawyers and they were driving the process. 25 Q. Could we please turn to POL00006799, please. This is 39 1 a contemporaneous piece of advice from Cartwright King, 2 it's what we know as the "shredding advice" or what's 3 been referred to as the "shredding advice", disclosure, 4 the duty to record and retain material. Over the page, 5 please, it summarises the information that's been given 6 to Mr Clarke. It says: 7 "At some point following the conclusion of the third 8 conference call, which I understand to have taken place 9 on the morning of Wednesday, 31 July, it became unclear 10 as to whether and to what extent material was either 11 being retained centrally or disseminated." 12 If we scroll down, please, to point (iii) he 13 summarises the various bits of information that he has 14 received, and he says: 15 "Advice had been given to [the Post Office] which 16 I report as relayed to me verbatim: 17 "'If it is not minuted it's not in the public domain 18 and therefore not disclosable. 19 "'If it's produced it's available for disclosure -- 20 if not minuted then technically it's not'." 21 Again, those are the words, in effect, that we saw 22 in those minutes a moment ago. This is 23 a contemporaneous document. It was drafted/written on 24 2 August 2013. That sounds very much like the advice 25 that's attributed to you in that first meeting; do you 40 1 agree with that? 2 A. No, I think the wording is different between the two 3 documents and, as I say, I didn't produce those minutes, 4 and I didn't approve those minutes. I don't thin Simon 5 has been accurately recorded in them. To be clear, 6 I never advised Post Office that they should not minute 7 those calls and, until the suggestion that there was 8 some connection between what I had said and this advice 9 was raised in this Inquiry, I had no idea that there was 10 any connection with anything I'd done. 11 Q. There is a body of evidence that the Inquiry has seen 12 that suggests that your advice to the Post Office was 13 not to keep a paper trail? 14 A. I disagree. I did not advise Post Office against 15 minuting those meetings. 16 Q. There is some evidence that you advised caution in 17 minute taking; do you agree with that? 18 A. In the context of this, I did not advise Post Office not 19 to minute those calls. 20 Q. Do you think that those who were present at meetings 21 with you could have got the impression, from the advice 22 that you were giving at those meetings, that they should 23 be careful about writing things down? 24 A. I think they would have got the impression that they 25 would be subject to disclosure duties, which is what I'd 41 1 advised them. Had I said something to the effect that 2 could have been interpreted to mean that they shouldn't 3 be taking minutes, I would have expected Martin Smith, 4 from Cartwright King, who was on those calls, to have 5 said something, and nothing was said. 6 Q. That can come down. Thank you. Do you think that you 7 gave advice to the Post Office that they shouldn't write 8 things down because they would be disclosable? 9 A. No. 10 Q. Could we please turn to POL00145716. This is an issue 11 we're going to come back to but, given your answer just 12 now, I would like to give you the opportunity to address 13 it. If we start on page 4, please, around the same 14 time, July 2013, 24 July, the bottom of page 4, Susan 15 Crichton emails you and says: 16 "Andy could you take a look at this ... draft letter 17 to go to our insurance broker regarding the Horizon 18 issue. I have not looked at it." 19 Your response is above, you say: 20 "The letter does nothing more than put [the Post 21 Office's] insurers on notice of the Horizon issues. 22 It's very bland. My only hesitation is whether it is 23 strictly necessary to do. From PR perspective, it would 24 look bad if this got into the public domain -- sign of 25 guilt/concern from the Board. 42 1 "I'd be happy to have one of our insurance lawyers 2 to look over the D&O policy to see if [the Post Office] 3 is required to notify the insurers. If not, then we 4 might want to hold fire on this. 5 "I would recommend tweaking the first paragraph. 6 The current version suggests there are problems with 7 Horizon -- when at present there are no systemic 8 problems to report." 9 Over the page, please, can we go to page 1, there 10 comes a time when you've spoken to the lawyers who 11 looked over the D&O cover. You say as follows: 12 "I've spoken to one of our insurance lawyers 13 [regarding] the D&O cover." 14 It is the last three paragraphs I want to look at, 15 you say: 16 "The risk of notification is that it would look bad 17 for [the Post Office] if it ever became public knowledge 18 that [the Post Office] that notified its insurer. 19 "To reduce this risk, it is recommended that the 20 rather than sending a formal written notification, [the 21 Post Office] speaks to Chartis (renamed AIG) and 22 verbally notifies them so as not to leave a paper trail. 23 In our experience, AIG may be prepared to accept 24 a verbal notification. 25 "[The Post Office] should make expressly clear to 43 1 AIG that the notification is subject to litigation 2 privilege (this should help protect disclosure under 3 [the Freedom of Information Act])." 4 Are you not there, in July 2013, giving advice to 5 the Post Office that they shouldn't write something 6 down, that they should communicate it only verbally? 7 A. In the context of this insurance point but, earlier, we 8 were talking about the minutes of those calls. 9 Q. My question was much broader earlier. I said to you 10 "Have you ever advised the Post Office" -- 11 A. In which case -- 12 Q. -- "not to write something down", and here we are, July 13 2013, precisely the same period in which that advice is 14 attributed to you, doing exactly that, aren't you? 15 A. In which case, I apologise because I misunderstood your 16 question. I thought you were asking it in the context 17 of the minutes of the Horizon call. 18 Q. So you are accepting that, in July 2013, at the same 19 period of time you did advise the Post Office not to 20 communicate in writing to their insurer, not to notify 21 their insurer, because that would become disclosable 22 but, for some reason, the minutes that are attributed to 23 you, regarding very similar advice, that those are 24 wrong, are they? 25 A. I don't accept it was very similar advice. The advice 44 1 that was recorded in those minutes, which, as I said, 2 they're not verbatim minutes and I'm not sure of their 3 accuracy, simply records the position that documents 4 need to be disclosed if they're created. 5 This is talking about a different matter, which is 6 communications with the insurance company and, actually, 7 ultimately, off the back of this, a written notification 8 was provided to the insurers. 9 Q. Yes, but your advice in July 2013, the same period in 10 which this first Horizon weekly call is taking place, 11 was "Don't notify something because it will be 12 disclosable". Isn't that the advice you are giving in 13 relation to minutes on the 19 July 2013? 14 A. No. They are two separate pieces of advice in different 15 contexts where I say different things. 16 Q. They are remarkably similar though, aren't they? 17 A. No, I don't believe they are. I think the first one is 18 talking about the disclosability of documents. It 19 doesn't say anything in that minute about me saying that 20 minutes should not be kept or documents should not be 21 produced. And then, we're now ten days later, talking 22 in a different context about insurance issues. 23 Q. But it's the same point: that if you write things down 24 about Horizon, about problems with Horizon, it might 25 become disclosable. 45 1 A. But that's correct. 2 Q. You shouldn't do that? 3 A. Apologies, that is correct. 4 Q. That is correct? 5 A. Well, that is the state of the law, if you write 6 documents down you create documents, they can become 7 disclosable. 8 Q. Therefore, you shouldn't create such documents? 9 A. I disagree. 10 Q. But that is, in fact, what you're advising in relation 11 to the insurance? 12 A. As I say, it depends on the context in which the 13 question is put. 14 Q. Okay, let me take you to your explanation in your 15 witness statement. So it's WITN10390200. 16 Thank you, it's page 64, paragraph 105. You say as 17 follows: 18 "I do not understand the reference to 'produced' in 19 the comment that is attributed to me. The word 20 'produced' is not a word I would ordinarily use in this 21 context. I think of the word 'produced' in the context 22 of running a 'production' of documents from a data room 23 (which is a technical eDiscovery process), which are 24 then given to the other side in civil litigation as part 25 of disclosure. I would not use this word when 46 1 describing the creation of new documents by my client 2 which are then potentially disclosable. The use of this 3 word suggests to me that the note is not an accurate 4 record of precisely what was said." 5 So I'll just repeat the words that are in the 6 minutes. It spoke about: 7 "... emails, written comms, etc. 8 "If it's produced, it's then available for 9 disclosure. If it's not, then technically it isn't." 10 Your explanation in your witness statement is "That 11 doesn't sound like me, I don't use the word 'produced' 12 in that context"; is that right? 13 A. I generally don't. I consider it in the context of 14 running productions of documents. 15 Q. That's quite an elaborate explanation, isn't it, that's 16 set out at paragraph 105? 17 A. No, I think it's also reflecting -- if you look at the 18 minute, it's clearly a short précis of what was said. 19 It doesn't stand to be a verbatim minute and, therefore, 20 I think there is probably some inaccuracy in the minute 21 taking. 22 Q. Your basis for saying that the minute is inaccurate is, 23 amongst other things, that you don't use that word in 24 that context? 25 A. Amongst other things but, also, reading the minute as 47 1 a whole, I think it's obvious that it's not a verbatim 2 minute. 3 Q. Can we please turn to FUJ00081921. The context of this 4 email does not matter for now, it's a 2019 email, but 5 let's just have a look at that middle email. It's 6 an email from you. You say, as follows: 7 "Pete, Matthew, Dave 8 "As part of the Court process, the experts on both 9 sides have to meet to try to agree a joint statement on 10 the key issues in the case. This has resulted in them 11 producing 4 Joint Statements. These statements are 12 produced without the involvement of the legal teams, 13 hence why we haven't sent these over to [Fujitsu] for 14 comments before now." 15 Could we turn, please, to POL00253345. Thank you. 16 Another email from you, again context doesn't 17 matter. Turn over to the third page, please. There are 18 points there: 19 "The draft order also sets out our proposed 20 directions to the March 2019 trial. These split out 21 into four phases ..." 22 Then we look at Phase 3: 23 "... the experts produce their principal reports 24 into Horizon." 25 "Phase 4 ... supplemental reports are produced in 48 1 light of anything coming out [of] the Common Issues 2 trial." 3 Can we please turn to POL00000444. It's coming up. 4 Your witness statement in the Alan Bates case, fourth 5 witness statement, if we scroll down. Can we please 6 turn to page 24, bottom of page 24 of your witness 7 statement in those proceedings, paragraph 117. In the 8 second half of that paragraph, if we scroll down 9 slightly, you say: 10 "To attempt to locate all of the training materials, 11 Post Office would need to contact all trainers since 12 2000 to understand what materials were produced and 13 where they were kept." 14 That's a witness statement to the court verified by 15 a statement of truth. Do you want to revisit that part 16 of your witness statement in these proceedings which 17 said that the word "produced" is not a word that you 18 would use in that kind of a context? 19 A. I think my statement says I would not ordinarily use 20 this word. I clearly have used that word on occasion. 21 Q. Do you, therefore, want to revisit whether that minute 22 reflects the advice that you gave to the first of those 23 meetings, that, if it's produced, it's available for 24 disclosure; if it's not, then technically it isn't? 25 A. I still believe that that minute is not a full and 49 1 accurate record of what was said in that meeting. 2 I think you only have to read the minute to realise it's 3 not a verbatim record. 4 Q. Is it still your position, therefore, that you didn't 5 advise caution in relation to the creation of minutes 6 because of their potential disclosure? 7 A. I did not advise Post Office against minuting those 8 meetings. 9 MR BLAKE: Thank you, sir. I think that's an appropriate 10 time for our first morning break. 11 SIR WYN WILLIAMS: All right. Yes. What time shall we 12 resume? 13 MR BLAKE: 11.05. 14 SIR WYN WILLIAMS: Yes, 11.05 it is. 15 MR BLAKE: Thank you. 16 (10.56 am) 17 (A short break) 18 (11.06 am) 19 MR BLAKE: Thank you, sir. Can we please move on to 20 WBON0000777. We're still in July 2013, 23 July. If we 21 scroll down to the bottom of that first page, you are, 22 by this stage, involved in corresponding with the 23 Criminal Cases Review Commission. You say: 24 "Susan, Jarnail ..." 25 So now Susan Crichton and now Jarnail Singh, that 50 1 wasn't a name you mentioned at the beginning. He was 2 a criminal lawyer at the Post Office -- 3 A. Yes. 4 Q. -- and you're now liaising with him: 5 "Please find attached a draft holding letter to go 6 to the [Criminal Cases Review Commission]. This letter 7 probably needs to go from Paula. 8 "This letter just holds the current position until 9 we have spoken to Brian Altman tomorrow." 10 Brian Altman, criminal counsel, so we're now 11 liaising with Post Office's criminal lawyer, and making 12 reference to criminal counsel who is going, please, 13 advising on the Cartwright King processes, et cetera. 14 A. Yes. 15 Q. Could we, please, have a quick look at that letter. 16 It's POL00099346. So this wasn't just a holding letter 17 in the sense of "We'll get back to you". There is some 18 substance in the response. Could we scroll down, 19 please. This is 23 July, you're meeting Brian Altman 20 the next day and it's in reference to the Criminal Cases 21 Review Commission, who wrote to the Post Office -- we've 22 seen that letter: 23 "This letter briefly explains the background to the 24 matters raised in your letter and steps currently being 25 taken by [the Post Office]. I anticipate being able to 51 1 provide you with a more detailed response by the end of 2 this week." 3 That's because you're going to have a discussion, 4 I think, with Brian Altman and, hopefully, send 5 a further letter; is that right? 6 A. That was the intention. 7 Q. Yes. 8 "At the centre of [the Post Office's] business is an 9 IT system known as Horizon. The system is used by over 10 11,000 subpostmasters ... As you will be aware, [the 11 Post Office] has commissioned an independent firm of 12 forensic accountants (called Second Sight) ... The aim 13 of this report is to highlight any issues in Horizon ... 14 "This month Second Sight released an Interim Report 15 highlighting a number of issues that required further 16 investigation but also reached the interim conclusion 17 that there were no systemic problems with Horizon. 18 "The data stored on Horizon is sometimes used by 19 [the Post Office] in the prosecution of criminal 20 offences ... Historically [the Post Office] was 21 a division of the Royal Mail Group, however Post Office 22 was separated out ... on 1 April 2012 and each became 23 separate and unrelated organisations. Prior to 24 separation it was [Royal Mail Group] who conducted the 25 prosecution of criminal offences committed by 52 1 subpostmasters and/or their clerks, however 2 post-separation [the Post Office] assumed the role of 3 prosecutor. 4 "We are now looking at Second Sight's findings in 5 detail and are also investigating whether those findings 6 have an impact on any historic or ongoing prosecutions. 7 I hope to be able to send you a more comprehensive 8 response on these matters by the end of this week." 9 That letter ultimately went out. 10 Sir, I'm not going to take the witness to that 11 letter but, for your record, it is POL00116112. There 12 is then a further letter that is sent, again for your 13 record POL00297998. 14 So I'm going to add to my list of things that 15 happened in the summer of 2013 that, by that stage, you 16 were also liaising with the CCRC on Post Office's 17 behalf. 18 A. I wouldn't accept that characterisation of it. We 19 drafted this one -- or I drafted this one letter, which 20 I think is a holding letter, sets out some very basic 21 background information. Other than that, we were 22 bringing in Brian Altman to advise on the CCRC approach. 23 Q. Okay, so let's change "liaising" to corresponding with 24 the CCRC. You were corresponding or were drafting 25 correspondence to the CCRC? 53 1 A. I accept that I drafted this one letter. 2 Q. That is correspondence, isn't it? 3 A. Yes. 4 Q. Yes. Okay, and you were also, by that stage, liaising 5 with criminal counsel to take matters forward? 6 A. We were acting as a conduit, so that Post Office could 7 get advice from criminal counsel. 8 Q. You were meeting with Brian Altman, discussing matters 9 relating to the Criminal Cases Review Commission with 10 Brian Altman; weren't you? 11 A. If we're talking July and August, I'm not sure if I ever 12 actually met Brian in that period. 13 Q. Okay, let's turn back to that email, the covering email, 14 WBON0000777. It's the bottom email, you say: 15 "Please find draft holding letter ... 16 "This ... just holds the current position until we 17 have spoken to Brian Altman tomorrow." 18 The suggestion being that there was going to be 19 a meeting with Brian Altman the next day. 20 A. There was. I just can't recall whether I attended it or 21 not. 22 Q. Okay. So July 2013, corresponding with CCRC, and 23 coordinating with Brian Altman KC? 24 A. I would say that we were acting as a conduit for Brian's 25 advice. 54 1 SIR WYN WILLIAMS: Who actually instructed Mr Altman; was it 2 the Post Office Legal team directly or was it Bond 3 Dickinson, or was it somebody else? 4 A. It was Bond Dickinson. 5 SIR WYN WILLIAMS: Right. Fine, thanks. 6 MR BLAKE: In fact if we turn to WBON0000393, at the bottom 7 of the page we see Mr Altman, on 2 August, so shortly 8 thereafter, sending Gavin Matthews, who was your 9 supervising partner, and Simon Richardson, who I think 10 ultimately became the Chair of Womble Bond Dickinson; is 11 that correct? 12 A. Correct. 13 Q. So two partners at Bond Dickinson, Mr Altman is sending 14 them his observations on the terms of reference and 15 interim review of Cartwright King's current processes. 16 So, very clearly, it was his view that they were the 17 instructing solicitors. In fact, he doesn't even copy 18 in the Post Office to that correspondence. 19 A. Bond Dickinson was Brian's instructing solicitors. 20 Q. Yes. If we scroll up, we can see Simon Richardson 21 sending that to you as well. He said, "You ought to 22 have this too", if you scroll up to the top, please. 23 Can we now, please, turn to POL00021981 and those 24 were the observations that were sent to you from 25 Mr Altman. 55 1 If we scroll over the page, the Inquiry has been 2 through this but I will just highlight a few matters 3 that are raised in those observations. Thank you. He 4 sets out there that he understand the terms of reference 5 are as follows. The first: 6 "To prepare by 5 August an interim review of 7 Cartwright King's current process ... 8 "(2) To review, and advise [the Post Office] in 9 writing on [a number of matters]." 10 The first is: 11 "Its strategy and process for reviewing past and 12 current criminal prosecutions in light of Second Sight's 13 Interim Report and/or the role of Gareth Jenkins and his 14 impact on any possible appeals; 15 "b) Its response to the [Criminal Cases Review 16 Commission]." 17 So that is the further letter, further to your 18 holding letter: 19 "c) The identification of any flaws in the process 20 of, or from the evidence arising from, the review of 21 a statistically significant number of past prosecutions 22 in which Horizon has been an issue in the proceedings." 23 Then we have a third there: 24 "To review, and, if appropriate, to recommend 25 changes to, the existing investigations and conduct of 56 1 future prosecutions by [the Post Office], including, if 2 appropriate, the investigative/prosecutorial role being 3 undertaken by another authority ..." 4 If we scroll down and over to page 3, please, we can 5 see there is a footnote at the bottom of page 3 and he 6 says as follows, footnote 4: 7 "It is for [the Post Office] and those instructing 8 me to determine whether or not it is only the efficacy 9 (ie effectiveness) of past prosecutions etc that I am 10 being asked to consider with the Board, or in fact the 11 potential safety of past convictions following [the Post 12 Office] prosecutions (ie whether, in my judgment, the 13 Court of Appeal is likely to 'think that the conviction 14 is unsafe': section 2 of the Criminal Appeal Act). This 15 is an important distinction. If it is the latter then 16 the appropriate term is 'safety of past convictions'. 17 I note in this regard of paragraph 24 of Simon Clarke's 18 Ishaq case review", et cetera. 19 I don't need to read any more of that. But he says 20 there: 21 "It is for the Post Office and those instructing me 22 to determine." 23 So it seems as though Bond Dickinson weren't just 24 providing a conduit but it was certainly Brian Altman's 25 understanding that Bond Dickinson at least had some 57 1 input on the scope of that instruction. Would you 2 accept that? 3 A. At this time, I was primarily focused on dealing with 4 the response to Second Sight. This work was being 5 conducted by Gavin Matthews and Simon Richardson, so 6 I find it difficult to comment on exactly what the role 7 was. My understanding was that we were a conduit for 8 his advice. 9 Q. Well, looking at this, does it seem as though, does it 10 appear to you, that, in fact, it was more than just 11 a conduit? 12 A. It appears from those words that that's what Brian 13 understood. 14 Q. Could we please turn to POL00021980. An email from 15 Gavin Matthews, so your colleague is here advising on 16 the terms of reference: 17 "Dear All 18 "Please find attached two separate terms of 19 reference for Brian Altman QC as amended in response to 20 his observations document which I also attach for ease 21 of reference. 22 "Please note that [the Post Office] needs to decide 23 on the issue of whether he is to be asked to report to 24 the Board on the efficacy or safety of past 25 prosecutions -- see footnote 4 on page 3 of Brian's 58 1 observations. 2 "Simon's and my view is that he shouldn't report on 3 the safety of past convictions for two reasons: 4 "[1] this is likely to involve a more significant 5 analysis of lots of cases, thereby delaying his report. 6 "[2] and potentially blurs the boundary between 7 [Brian Altman] and [Cartwright King's] respective roles. 8 "The terms of reference need to be finalised in time 9 for Brian's return from holiday." 10 It looks, from that email, that your supervising 11 partner was more than just a conduit for Brian Altman's 12 instructions; he was, in fact, advising on the scope of 13 Brian Altman's investigations, wasn't he? 14 A. It appears to a very limited extent there, yes, but 15 I would note that Susan Crichton would have been well 16 aware that Gavin and Simon were not criminal lawyers. 17 Q. Technically correct but they were involved in the 18 instruction, and directing the instruction and 19 formulating the instruction of a criminal barrister? 20 A. They were -- as I say, at this time, I was working on 21 a different workstream. So I don't have full visibility 22 as to how they went about it but I accept that my firm 23 were the ones that instructed Brian, but my 24 recollection, it's distant and dim now, is that the 25 scope of the work was largely led by Brian, as 59 1 instructed by Post Office. 2 Q. A barrister is instructed to carry out work. Here we 3 have a firm to solicitors who are instructing him, 4 advising on whether a criminal KC/QC looks into the 5 safety of convictions. That's what's happening here, 6 isn't it? A fair reading of this email: the instructing 7 firm is advising on whether a criminal silk is looking 8 into the safety of convictions or not? 9 A. I accept that that email expresses a view on that 10 question. 11 Q. Is it that difficult to accept what I'm saying in that 12 respect? 13 A. I think the context is really important, that we were 14 instructing Brian largely because it made it 15 administratively more easy for Post Office, and I don't 16 think Post Office were expecting Gavin, Simon or I to 17 give them any advice on criminal law, because they knew 18 we weren't criminal lawyers. And I think that context 19 is really important. I think Susan would that have 20 had -- probably Susan, in the context here -- would have 21 read that as a practical view but I don't think she 22 would have been led by the advice she was getting from 23 WBD on criminal matters. 24 Q. They're the instructing firm and they are there, very 25 senior partners -- so Gavin Matthews and you have Simon 60 1 there, who, as we know, went on to become the Chair -- 2 by that stage, 2013, was he a particularly senior 3 partner within the firm -- 4 A. I think he was the client relationship partner for Post 5 Office. 6 Q. -- giving a view as to whether Mr Altman should be 7 reporting on the safety of past convictions? 8 A. I accept they were giving a view but I think the context 9 of what we were doing is very important. 10 Q. Can we please turn to POL00298417. You're copied into 11 this email that we've just been looking at and, now, if 12 we scroll down, we're at 20 August 2013 and Rodric 13 Williams is, in fact, now corresponding with Susan 14 Crichton and you. So Gavin Matthews is not a recipient 15 of this email. Rodric Williams says as follows: 16 "All, 17 "I would like the [terms of reference] to include 18 that [Brian Altman QC] consider and advise on how we 19 satisfy the prosecutor's continuing duty of disclosure 20 when 'issues' with Horizon will continually be it 21 raised." 22 So he asks a series of questions that he would like 23 Brian Altman to be looking into. By way of example, we 24 can look at the third bullet point: 25 "Is there anything we can do to limit the need to 61 1 review all past prosecutions each time a disclosable 2 issues arises?" 3 Certainly, Rodric Williams, by 20 August, seemed to 4 think that you were a contact point for advising on the 5 terms of reference or assisting with the amending the 6 terms of reference. 7 A. I -- my distant memory is Gavin might have been on leave 8 for a few days. 9 Q. So while your supervising partner was away, while you 10 were working on issues relating to Second Sight, having 11 been copied in to previous correspondence about Brian 12 Altman's terms of reference, you are now a sole point of 13 contact relating to those terms of reference? 14 A. Simon Richardson is also copied on this email. 15 Q. Yes. But you are in the "To" column? 16 A. I am. Rodric would have known me more than he knew 17 Simon, which would have explained why he addressed it to 18 me and only copied Simon. 19 Q. So can I add to my list of the summer of 2013 that, by 20 August 2013, you were involved with Brian Altman QC's 21 terms of reference? 22 A. I think that overstates the position. My recollection 23 is that I had very little involvement in the terms of 24 reference but I note that these documents were only sent 25 to me a couple of days ago and I've not had 62 1 an opportunity to go back and check the position. 2 Q. It wasn't so long ago. Are you able to recall, the 3 summer of 2013, receiving an email relating to the terms 4 of reference for Brian Altman? Is that likely something 5 that you would have been receiving and something that 6 you likely would have given an answer to? 7 A. I would have been copied in on various emails but, at 8 this time, the work around Brian's terms of reference 9 was being led by Gavin and Simon and not me. 10 Q. Would you have read this email? 11 A. Yes, I suspect I would have read it. 12 Q. Would you have been aware that the Post Office wanted to 13 change the terms of reference to look at the 14 prosecutor's continuing duty of disclosure? 15 A. I wasn't that close to the issues to have identified 16 those points. 17 Q. Do you think that your firm were competent enough to be 18 dealing with issues relating to the prosecutor's duty of 19 disclosure? 20 A. As I said, we were acting as a conduit. So I would have 21 expected these types of issues to have been passed back 22 to Brian for him to consider. 23 Q. What does a conduit involve, though? I mean, is it 24 simply a post box; is it something more than that? 25 A. Largely, we were acting as a way of getting instructions 63 1 up to Brian and answers back down again. On occasion, 2 I can see that views will have been expressed on points 3 but I think, again, the context is really important. 4 Post Office were fully aware that Simon, Gavin and I 5 were not criminal lawyers. 6 Q. Do you think it is right for your firm to be assisting 7 in something that is outside of their competence? 8 A. It is outside of our core competence but instructing 9 counsel is something we understand and, of course, we 10 have the context of the whole situation, being involved 11 on the civil side. 12 Q. So if your firm were involved in advising on whether 13 Brian Altman's terms of reference should include the 14 prosecutor's continuing duty of disclosure, do you think 15 that's something they could have advised on? 16 A. I don't -- personally -- I can't speak for Simon and 17 Gavin but I wouldn't feel comfortable advising on that. 18 I can see a view may have been offered but, ultimately, 19 I think all questions were deferred to Brian to 20 consider. 21 Q. What's the difference between a view of a lawyer and 22 advice from a lawyer? 23 A. I think one of them is offering perhaps some pragmatic 24 thoughts, as opposed to definitive advice on the 25 position. 64 1 Q. How would a client distinguish between pragmatic 2 thoughts and actual legal advice? 3 A. By the nature of the way it's given. 4 Q. What do you mean by that? 5 A. If we go back to the last email, what you've got is 6 an email that something that says something to the 7 effect -- I haven't got it in front of me now -- that 8 says these are Simon's and Gavin's views and couple of 9 bullet points. 10 Q. Do you think that nuance is understood by clients? 11 A. I think it would have been understood by Post Office, 12 yes. 13 Q. I said I'd come back to the insurance notification issue 14 and I'm going to turn to that now but it's POL00021991. 15 Now, it's that bottom email that I'd like you to 16 look at but you can ignore the date there, because we're 17 still, actually, in the summer of 2013, is the document 18 that I want to take you to. You're forwarding this 19 particular document to David Oliver and Chris Aujard on 20 12 March 2014. 21 We can see there you're attaching a number of 22 different documents. One is a settlement presentation, 23 and we'll come to that settlement presentation, and you 24 say: 25 "This presentation is for a talk I gave to what was 65 1 at the time the Sparrow steering group." 2 But it's the third one that I want to take you to 3 now "Insurances risks note": 4 "This note had the dual purpose of advising the 5 board (its contents were later reflected in a Board 6 paper) and acting as notification to [the Post Office's] 7 insurers -- hence why this doesn't look like 8 a traditional piece of legal advice." 9 You refer there to the contents being reflected in 10 the Board paper. Did you see the Board paper? 11 A. I have looked at that sentence again and I think that 12 sentence is wrong because I can't find any record of 13 that paper going to the Board. 14 Q. Thank you. It doesn't look like a traditional piece of 15 legal advice. That's your words. Let's turn to it and 16 have a look at it. POL00021996. 17 So why do you say in that covering email that it 18 doesn't look like a piece of legal advice? 19 A. Just because of the way it was drafted. This note was 20 drafted to notify Post Office's insurers. 21 Q. How would legal advice act as notification to 22 an insurer? 23 A. I don't think I'm suggesting that I -- that it was. 24 I -- what I'm trying to say here is this note was 25 drafted for the purpose of notifying Post Office 66 1 insurers of those issues that are set out in this note. 2 I don't think it actually gives advice, say, on the 3 merits of the position or what needs to happen next, or 4 things like that, which you would traditionally expect 5 to see in a piece of legal advice. 6 Q. If you were the insurer and you saw "Bond Dickinson" on 7 the top right-hand corner, you saw "Confidential & 8 Legally Privileged, Common Interest Privilege, 9 Litigation Privilege", was it not designed to look like 10 legal advice? 11 A. I don't believe it was designed to look like legal 12 advice. 13 Q. What do you mean by common interest privilege there? 14 A. In the sense that, if there was a claim against Post 15 Office, which was an insured claim, then there may be 16 a common interest between Post Office and its insurers. 17 Q. So the common interest there is between the Post Office 18 and the insurer? 19 A. That's what that reference was, from memory. 20 Q. And was that designed to ensure that this document was 21 not disclosable because it was covered by common 22 interest privilege between Post Office and its insurer? 23 A. We considered that question and, on balance, I think we 24 thought it probably was privileged communication in its 25 nature to the insurers, but it could be challenged. 67 1 Q. Was one of the reasons for adding "Common Interest 2 Privilege" at the top there to try and cover it in 3 a blanket of privilege? 4 A. It was to indicate that we thought there was -- common 5 interest privilege might apply to this document. 6 Q. It doesn't say might be common interest privilege? 7 A. I think it's just a heading to a document. It's 8 designed to indicate to the reader that this document 9 could attract common interest privilege. 10 Q. Or "is considered to attract common interest"? 11 A. No -- 12 Q. You wouldn't add it if you'd didn't think there was 13 a reasonable argument -- 14 A. That's fair. At this point, my view is I thought this 15 document would attract common interest privilege but we 16 also thought that could be challenged later. 17 Q. Can we please scroll down this document. We saw earlier 18 that email about concerns you had about notifying the 19 insurer in writing that it could become disclosable. So 20 the reason behind this being in the form that it is is 21 that that was an attempt to cloak it in privilege, 22 thereby not disclosing it? 23 A. The -- whether or not of the document is privileged 24 turns on its nature and the purpose for which it was 25 sent. I think lawyers, where they think a document is 68 1 privileged, will often mark them as privileged but 2 marking a document as privileged doesn't make it 3 privileged. 4 Q. But you intended to be covered by privilege. As in, 5 this letter, if it's not advice, if it's not legal 6 advice, it could have been written by the Post Office 7 and sent to the insurer? 8 A. It could have been written by the Post Office, yes. 9 Q. It has been disguised here as Bond Dickinson advice, 10 covered by legal privilege, with the intention that, 11 should somebody ask the insurer for a copy or should the 12 Post Office be asked for a copy, they could say it was 13 legally privileged? 14 A. Would you mind scrolling back up to the top of the 15 document, please? So the top of this document refers to 16 common interest privilege and litigation privilege. It 17 doesn't refer to legal advice privilege. 18 Q. Yes. Common interest privilege. 19 A. Mm. 20 Q. What's the point you're making: that because it doesn't 21 say, "Legal advice privilege" that means that it's not 22 legal advice? 23 A. So I think your suggestion was that we were dressing it 24 up as legal advice to try to get it under the banner of 25 privilege. That wasn't what we were doing. This was 69 1 drafted as a notification to the insurer, my 2 understanding is, when you notify insurers, and I got it 3 this understanding from one of the insurance partners, 4 is that the forms of privilege that might apply are 5 litigation privilege and common interest privilege. 6 Q. It says at the top of "Confidential & Legally 7 Privileged", doesn't that cover all forms of legal 8 privilege? 9 A. I think you're reading too much into those words. 10 Q. Let's have a look at what it says, if we scroll down, 11 "Risks to Post Office", page 2, please, "Prosecutions & 12 Convictions": 13 "As noted above, where circumstances warrant, Post 14 Office prosecutes subpostmasters who have acted 15 criminally. The basis of these prosecutions is often 16 found in the transaction records recorded in Horizon. 17 As a result of Second Sight's investigation/Interim 18 Report, Post Office is reviewing all its criminal 19 prosecutions over the last three years to identify any 20 cases where a conviction may be unsafe. 21 "In particular, the expert evidence of one of Post 22 Office witnesses, Dr Gareth Jenkins of Fujitsu, may have 23 failed to disclose certain historic problems in the 24 Horizon system. Under the criminal prosecution 25 guidelines Post Office has an obligation to disclose, 70 1 (even retrospectively) this previously undisclosed 2 information to subpostmasters' defence counsel. Post 3 Office is required to make these retrospective 4 disclosures where the additional information 5 (ie Dr Jenkins' knowledge of historic, but now resolved, 6 problems with Horizon) may have undermined a prosecution 7 case or assisted with [the] accused's defence." 8 Reference there to prosecutions and convictions in 9 cases relating to Gareth Jenkins or where Gareth Jenkins 10 has provided evidence. 11 Could we please turn to POL00040025. So that's the 12 version that you sent colleagues or Chris Aujard and -- 13 who was David Oliver? 14 A. He was part of the Mediation Scheme team at Post Office. 15 Q. So you sent that in March 2014, as the notification. 16 But I want to look back now at the drafting process for 17 that document. We have here an email from Rodric 18 Williams to you and he says: 19 "Andy, 20 "Please find attached the 'Horizon Risks' document, 21 which I have amended following input from Cartwright 22 King on the criminal law risks. Can you please check 23 that it will still serve the purpose of notifying 24 insurers of the grounds for potential claims? 25 "Once you are happy it does, I intend sending it to 71 1 our broker, under cover of the following email. 2 "'Mark, Richard, 3 "'Please find attached a note from our solicitors 4 outlining the risks presented by the recent 5 investigation into "Horizon" IT system used in Post 6 Office branches'." 7 So the proposed notification to the insurers is that 8 it's a note from our solicitors outlining risks. 9 I mean, that sounds quite a bit like legal advice, 10 doesn't it? 11 A. I think it -- I don't believe we considered it advice. 12 I drafted it simply to set out the facts and backgrounds 13 for the insurers. 14 Q. Why couldn't you have drafted it on a piece of paper to 15 be sent by the Post Office on their own headed paper? 16 A. We could have done. 17 Q. Again, I'll go back to it. Surely the purpose was to 18 add that level of privilege over it, wasn't it? 19 A. I'm not sure I gave it that level of thought as to 20 whether it would come from Post Office or from Womble 21 Bond Dickinson. 22 Q. We saw that you gave it quite a lot of early thought 23 about problems that it would cause if it were disclosed. 24 A. Yes. 25 Q. So surely you thought about who should be sending it and 72 1 why? 2 A. Not in terms of who -- I don't believe I did, in terms 3 of who would write the note. I think it was just that 4 we were in the position to write it. We wrote the note 5 and, as it marked at the top, we considered it could be 6 subject to common interest privilege and litigation 7 privilege. 8 Q. "'Can you please share this with our insurers so they 9 are aware of the circumstances which could potentially 10 give rise to claims against the policies we have with 11 them, preserving so far as possible, the legal privilege 12 attaching to the note'." 13 Doesn't the fact that it came from you strengthen 14 the claim for legal privilege and wasn't it intended to 15 do so? 16 A. On the first of your points, I guess there is something 17 in the fact that lawyers are considering legal risks 18 that makes it more likely that litigation is in 19 contemplation, which is one of the grounds you need to 20 claim litigation privilege. I don't recall any 21 discussion around whether the note should come directly 22 from Post Office or from my firm in the context of 23 making it more or less privileged. 24 Q. I mean, isn't really what's going on here that the 25 notification to the insurers is being covered in LPP in 73 1 order to prevent it from being disclosed? 2 A. I accept that we were asserting legal privilege over 3 this document, yes. 4 Q. For that purpose? 5 A. Yes. 6 Q. So that it wouldn't be disclosed? 7 A. Correct. 8 Q. In fact, although the draft email suggests that it's 9 a note from our solicitors, we can see there that it is 10 not only Bond Dickinson who are inputting but Cartwright 11 King and also Post Office themselves. 12 A. Correct. 13 Q. So to suggest that it was simply a note from the 14 solicitors, that wouldn't be right, would it? I mean, 15 the impression given in that draft covering email is 16 that "This is something we've received from Bond 17 Dickinson, here you go, here's a piece of legal advice 18 we've received". But, in truth, it was a document in 19 which a number of different people had input into, which 20 was put on your headed paper, in order to cloak it with 21 legal privilege. 22 A. We -- as I say, it was draft as a notification to the 23 insurers to give them the factual information to assess 24 whether there was insurance cover. I accept that we 25 considered that communication to be privileged. But 74 1 I don't -- and I accept that "Please find attached 2 a note from our solicitors", I think that probably 3 fairly describes what that document was. 4 Q. Okay. POL000 -- 5 SIR WYN WILLIAMS: Sorry, Mr Blake. Before we go any 6 further it may be that I'm being a bit slow but I just 7 want to understand the drafting process. The document 8 which was -- well, let me just ask the direct question: 9 who, so far as you are aware, Mr Parsons, produced the 10 very first draft of that document? 11 A. I created the first draft. 12 SIR WYN WILLIAMS: You did? 13 A. Yes. 14 SIR WYN WILLIAMS: Right. So then the sequence was that you 15 sent it to Mr Rodric Williams, who amended it, as I've 16 understood what's being said here, with the help of 17 Cartwright King in particular, so far as it related to 18 the criminal law risks? Yeah? 19 A. That's my best recollection, yes. 20 SIR WYN WILLIAMS: Well, that's what this appears to say, 21 this email. 22 A. Yes. 23 SIR WYN WILLIAMS: Which is what I was checking. 24 So the part of the document which deals with Gareth 25 Jenkins, this is what I was coming to, was that 75 1 something which was in your original draft or was that 2 something which was added by Cartwright King/Mr Rodric 3 Williams? 4 MR BLAKE: Sir, before Mr Parsons answers that, could I take 5 you to the attachment to this email, because that 6 actually does address this issue or it may assist -- 7 SIR WYN WILLIAMS: Sorry, Mr Blake. 8 MR BLAKE: Not at all. 9 SIR WYN WILLIAMS: I appreciate I was butting in but I just 10 wanted to get this sequence right in my mind. 11 MR BLAKE: Could we please look at the attachment, it's 12 POL00040026 and perhaps when this comes up, could we 13 also have it side by side with the version you sent 14 around in 2014, that's POL00021996. I can make very 15 clear, the version you sent around in 2014, in fact, was 16 not the version that was sent to the insurers -- 17 A. Mm-hm. 18 Q. -- and we're going to see the difference between them. 19 So if we could turn to the second page of both of them 20 to the section on "Risks to Post Office", please. Thank 21 you. So they're very similar on the first paragraph, 22 although there's -- the difference is that there's now 23 reference -- or sorry, in the Cartwright King version 24 that was sent to you, it refers to 1 January 2010, 25 rather than over the last three years. So that's 76 1 a change. The more significant change is in that second 2 paragraph. The version on the right-hand side says: 3 "Post Office has an obligation to consider whether 4 further disclosure should be made to defendants. It is 5 of concern to Post Office that the expert evidence of 6 one prosecution witness, Dr Gareth Jenkins, of Fujitsu, 7 may have to failed to disclose certain problems in the 8 Horizon system potentially relevant to a case." 9 A case. 10 The left-hand version says quite a lot more about 11 Gareth Jenkins and is perhaps more accurate. It says: 12 "In particular, the expert evidence of one 13 [prosecution] witness, Dr Gareth Jenkins of Fujitsu, may 14 have failed disclose certain historic problems in the 15 Horizon system." 16 It also says: 17 "Post Office is required to make these retrospective 18 disclosures where additional information ... may have 19 undermined a prosecution case or assisted with 20 an accused's defence." 21 It doesn't refer there to a single case. The one on 22 the right-hand side very clearly gives the impression 23 that it's only one case that is affected. Do you recall 24 that insertion? 25 A. Just to check, my version is the one on the left? 77 1 Q. Well, the 2014 version that you circulated is the one on 2 the left. 3 A. Okay. 4 Q. The one on the right-hand side is the one that was 5 circulated by Rodric Williams with a covering email that 6 said, "Please find attached the Horizon Risks document 7 which I have amended following input from Cartwright 8 King", et cetera. It's not at all clear whether the one 9 on the left was the original version or some other 10 version but it certainly wasn't the version that went to 11 the insurers. 12 Do you recall there the -- in any way, reference to 13 Gareth Jenkins being amended? 14 A. I don't recall that change. 15 Q. Do you recall that the ultimate -- the final -- version 16 that was agreed was a version that only said that Gareth 17 Jenkins may have failed to disclose certain problems in 18 the Horizon system potentially relevant to a case? 19 A. I don't recall that change. 20 Q. Do you recall in broad terms discussing the changes, for 21 example, in response to Rodric Williams' email, 22 discussing with Rodric Williams the various changes that 23 were being made to that document that had your header? 24 A. I don't recall discussing those changes with Rodric. 25 Q. Let's look at the final notification, that's 78 1 POL00112856. So this is the notification from somebody 2 called Stuart Corney who was partner, Claims, Financial 3 Risks Division: 4 "Dear Sir/Madam, 5 "Please find attached details received of a new D&O 6 matter for your consideration. The notice concerns 7 challenges which have been made to the accounting system 8 used in the Post Office Network to monitor sub post 9 offices for any improper behaviour." 10 You'll see halfway down that paragraph, it says: 11 "A review of the Horizon system was undertaken and 12 whilst recommendations were made for improvements no 13 systemic problems were revealed which would call into 14 question the changes previously made against 15 subpostmasters. It is of concern to Post Office that 16 the expert evidence of one prosecution witness, 17 Dr Gareth Jenkins of Fujitsu, may have failed to 18 disclose certain problems in the Horizon system 19 potentially relevant to a case." 20 If we scroll over the page, we can see the Bond 21 Dickinson note, "Horizon Risks", that was sent -- if we 22 scroll down, scroll down, if we scroll over the page, we 23 can see, under "Prosecutions & Convictions" the version 24 is the version that only relates to Gareth Jenkins may 25 have failed to disclose certain problems relevant to 79 1 a case. 2 So it certainly suggests that the version that was 3 sent around to the insurers was not that version that 4 you sent around in 2014 and would you accept that that 5 version is highly misleading? 6 A. Yes, it appears that way, though I'm not sure I was 7 cognisant that that change had been made at that time. 8 SIR WYN WILLIAMS: Well, hang on a minute. This version, 9 the one that, on the face of it, looks as if it was sent 10 to the insurer, in respect of the heading "Prosecutions 11 & Convictions", is identical, is it not, to the one 12 which was sent to you by Mr Rodric Williams, under cover 13 of an email which drew your attention to the fact that 14 there'd been an amendment in relation to Gareth Jenkins? 15 A. I accept that a copy of it was sent to me. I don't now 16 recall being cognisant of that change or its importance. 17 SIR WYN WILLIAMS: All right. That's your answer to that. 18 Just to clear up where I started, the version that you 19 sent around in March 2014, which wasn't the version sent 20 to the insurer, was it the version, so far as you can 21 remember, which you had originally drafted? 22 A. I believe so. 23 SIR WYN WILLIAMS: Right. 24 A. I believe so but it did go through a few iterations. 25 SIR WYN WILLIAMS: That's your answer: you believe that your 80 1 original draft contained the details, which we see in 2 what I'll call the 2014 document but, in fact, it was 3 amended in 2013 and something different, namely what's 4 on the screen, was sent to the insurers. Have I got 5 that straight now? 6 A. That appears to be the case. 7 SIR WYN WILLIAMS: Fine. Thank you. 8 MR BLAKE: Can we go back to the email from Rodric Williams. 9 It's POL00040025. So this is the email that he sent you 10 with the version -- as the Chair has highlighted, is the 11 version that was ultimately sent to the insurers. If we 12 scroll down, he has sent it to you and he says: 13 "Please let me know if you have any comments on the 14 proposed email or approach generally." 15 Presumably you did correspond with him on this? 16 A. My distant memory is I think I responded briefly saying 17 the cover note looks okay, or something to that effect. 18 Q. Presumably, you would that have opened the attachment 19 and read it? 20 A. I presume so but I can't recall. 21 Q. Looking at it now, is that paragraph not crying out for 22 further detail? 23 A. It strikes me that now but I don't remember considering 24 that at the time. 25 Q. Given the significance of the advice on Gareth Jenkins 81 1 and the implications for criminal prosecutions, wasn't 2 it important to get that absolutely right, that section? 3 A. This is a notification to the insurers and so, yes, it's 4 important that it's accurate but it's also at a high 5 level of detail. So the insurers are aware of the 6 general issues that are in play. 7 Q. Were you concerned when drafting this about the 8 potential disclosability of the information that's 9 provided and, therefore, seeking to minimise those 10 problems? 11 A. I was concerned about the disclosability of the 12 document, which is why we considered it to be 13 a privileged document. In terms of its content, though, 14 the version I produced was candid about the issues, 15 I felt. 16 Q. Why in that earlier 2014 email did you say that it had 17 been summarised for the Board? Where did you get that 18 idea from? 19 A. So this insurance note was to the D&O insurers, the 20 Directors' and Officers' insurers, and I think in the 21 week or two before that I had provided Post Office with 22 an email of advice on directors' duties and, looking 23 back now, I wonder if I got those two points confused. 24 Q. Can we please turn to POL00123004. Can we start on the 25 bottom of page 4, please. We'll see that this 82 1 eventually reaches you but it's an email from Andy Holt 2 to Martin Edwards and the subject is "Information for 3 Paula's [one-to-one] with Chairman". So it seems as 4 though they are gathering information for a conversation 5 between Paula Vennells and the Chair. 6 If we scroll down, there is a section called 7 "Project Sparrow Update", so this looks like the 8 original draft that was proposed for that one-to-one and 9 it sets out an update on Project Sparrow: 10 "The improvement workstream has completed the 'as 11 is' experience for subpostmasters. The team are now 12 progressing with the 'to be' picture and identifying the 13 gaps and issues as well as the activities that will need 14 to get us to our future model." 15 There's a reference to the Mediation Scheme, now 16 received 46 applications, final stages of appointing 17 Sir Anthony Hooper: 18 "The criminal case reviews continue with our 19 external firm of solicitors. They have completed 20 several sifts of past cases and have recommended 21 disclosure on 11. Brian Altman QC's review is also 22 progressing well and is expected to complete as planned 23 by the end of October." 24 If we scroll up, please, we can see on page 4 25 a response from Mr Edwards to Mr Holt. He says as 83 1 follows: 2 "Thanks very much for this. A few questions/ 3 requests for further information ... 4 "Would be good to include a line on the review of 5 prosecutions policy -- ie just updating the Board that 6 work ... is progressing and they will see a paper at the 7 next ARC or Board. Following yesterday's discussion, 8 please can we confirm the arrangements?" 9 "2. I think we should have a few lines on 10 compensation policy. 11 "3. I think the criminal cases review process needs 12 more explanation. In particular, an explanation of the 13 implications of the 11 cases where disclosure has been 14 recommended (even if we don't want to include too much 15 on this in the text himself, useful for Paula to have in 16 her background notes). Can we also have an explanation 17 of the high level conclusions of the Brian Altman review 18 along the lines outlined by Rodric yesterday?" 19 If we scroll up we can see that Rodric responds 20 saying: 21 "Andy -- I've asked Andy P to ... respond to 22 Martin's points." 23 Then if we turn to the bottom of page 1, we can see 24 that you have responded substantively to those points 25 that have been made. So the bottom of page 1, please. 84 1 We can see the questions there are slightly less bold 2 than the answers. I think in the original they would 3 have been in a different colour, perhaps: 4 "Draft answers to Martin's questions below -- too 5 much detail or not enough?" 6 So you are drafting for Andy Holt proposed answers 7 to those questions. The first one: 8 "Would be good to include a line on the prosecutions 9 policy ..." 10 You've drafted as follows: 11 "Brian Altman QC's review of the prosecution policy 12 is being finalised. The report was originally due on 13 31 October but should now be ready by 25 October. The 14 review will address the question of how [Post Office] 15 may wish to approach prosecutions in the future." 16 You say: 17 "ANDY -- I'm not sure what the Board process is for 18 the report. Hugh mentioned there might be 19 an extraordinary ExCo to review the report before it 20 goes to the [Audit and Risk Committee] or the Board." 21 More answers, if we look at 3, where the request 22 was: 23 "I think the criminal cases review process needs 24 more explanation ..." 25 You've put in there: 85 1 "Jarnail/[Cartwright King] to amend/complete." 2 But you have drafted a section on Brian Altman's 3 first review, which you say has now been received: 4 "This first review looked into [the Post Office's] 5 compliance with its prosecution duties in light of 6 Second Sight's findings -- in particular, it considered 7 [the Post Office's] legal duty to ensure that Second 8 Sight's findings were fully disclosed to any person who 9 is currently being or has previously been prosecuted by 10 [the Post Office]. Mr Altman concluded that [the Post 11 Office] is complying with its duties and that the 12 approach adopted by the prosecution team was 13 'fundamentally sound'. This report gives [the Post 14 Office] good grounds to resist any formal external 15 review of his historic prosecutions (ie by the Criminal 16 Cases Review Commission)." 17 Now, earlier this morning you were very keen to 18 emphasise that you were effectively a conduit for Brian 19 Altman. Now, it certainly seems from this email that 20 you are, by this stage -- so October 2013 -- 21 substantively involved in advice on a brief that would 22 go to the CEO of the Post Office. 23 A. This paragraph here is repeating the information I've 24 had from Brian. 25 Q. Yes. Were you involved in advising or drafting advice 86 1 for the CEO that related to that underlying work? 2 A. I think this is just a factual summary of the status of 3 Brian's report and reflects what I understood his advice 4 to be. 5 Q. Next question: 6 "Further to yesterday's discussion, please could we 7 also have some lines for background speaking notes on 8 the process", et cetera. 9 Then you say: 10 "ANDY/BELINDA -- thoughts on the below? 11 "Work is continuing on managing [Second Sight] out 12 of the scheme. In general, [Second Sight's] role is 13 gradually being reduced until they can be removed 14 entirely." 15 You were involved at that stage by dealing with 16 Second Sight. Was that the main part of your work, 17 then? 18 A. Correct. 19 Q. You have, in this email, answered a request in relation 20 to a briefing for the CEO, covering matters relating to 21 the criminal cases review process, for example. No 22 mention here of the Gareth Jenkins issue. Do you think 23 that that's something that might warrant inclusion in 24 an update to the CEO? 25 A. My understanding of this time is that everybody had been 87 1 briefed on the Gareth Jenkins issue. 2 Q. Was it not so significant that it perhaps required quite 3 a significant update to the CEO? 4 A. Possibly, but that's also why the comment above says, 5 "This needs to be run past Jarnail and Cartwright King". 6 Q. In relation to the Criminal Cases Review Commission, did 7 you just see your job simply as repeating exactly what 8 Brian Altman told you? 9 A. Largely because I'm not a criminal lawyer, so I'm not in 10 a position, really, to amplify what he was saying. 11 Q. Why instruct someone? Why be the instructing firm to 12 somebody if all you can do is parrot what they tell you 13 to the client? 14 A. So, again, the context here is that Post Office already 15 have retained criminal solicitors in Cartwright King. 16 The role of Brian Altman is to act as a second opinion 17 on Cartwright King's work. Post Office wanted that to 18 come from a QC, they weren't looking to instruct another 19 firm of solicitors to do it and so our role was to -- is 20 to facilitate them getting that advice. 21 Q. Did you feel comfortable in answering these kinds of 22 questions from the Post Office? 23 A. In the sense that they were asking for a brief update of 24 what had happened, I felt able to provide that. 25 Q. Could we please turn to POL00372551. This is the very 88 1 same day as you're having this correspondence. If we 2 scroll down slightly, you can see an email from Paula 3 Vennells to Alice Perkins, so this is some form of 4 one-to-one: 5 "Hi Alice, don't worry about the lateness of this 6 note ..." 7 So that's actually very first thing on that day, its 8 12.47 am: 9 "... I am clearing the [I think it must be 10 'in-tray'] before signing out. I hope your weekend has 11 been good despite the autumn rains." 12 It says "A couple of updates", and then it updates 13 on Sir Anthony Hooper/Sparrow. Then it says as follows: 14 "My concern re Sparrow currently is our obligations 15 of disclosure re an unsafe witness (the representative 16 from Fujitsu made statements about no bugs, which later 17 could be seen to have been undermined by the [Second 18 Sight] Report). We do not think it is material but it 19 could be high profile. Martin E is briefed if you want 20 more detail. This is just in case." 21 So it seems as though her belief at that point was 22 that it was not material or not thought to be material. 23 If you could go back to the advice we looked at much 24 earlier today, please, and that's POL00145716. It's the 25 middle email. This is the advice that I took you to 89 1 much earlier today about notifying the insurer and you 2 said as follows: 3 "The risk of notification is that it would look bad 4 for [the Post Office] if it ever became public knowledge 5 that [the Post Office] had notified its insurer. 6 "To reduce this risk, it is recommended that rather 7 than sending a formal written notification, POL speaks 8 to ... and verbally notifies them so as not to leave 9 a paper trail." 10 We also saw the advice that is attributed to you in 11 that meeting, the first weekly Horizon meeting. 12 Could that approach that you took to not putting 13 things that are damaging in writing to weakening of the 14 Gareth Jenkins issue, as we saw in that final 15 notification, could that have been in some way 16 responsible for the CEO's lack of understanding of the 17 true gravity of the problem? 18 A. This is over a three-month period, where I'm not the one 19 advising Post Office on criminal law risks and I'm not 20 the one who is responsible for ensuring what information 21 goes to the CEO. As far as I was concerned, the CEO had 22 been briefed on these issues. 23 Q. Could the obsession with covering things, blanketing 24 things, in legal professional privilege have been 25 responsible for that lack of understanding at Board 90 1 level? 2 A. Not as far as I was aware. 3 Q. Could we please turn to POL00022002. This is the 4 presentation that you sent again in that 2014 email that 5 I referred to. It is dated 8 October 2013, so 6 approximate period to that Paula Vennells email to Alice 7 Perkins. 8 You've said in that earlier email that this was 9 a presentation that you gave to the Sparrow Committee; 10 is that right? 11 A. Yes. 12 Q. If we turn over the page, please, your presentation says 13 as follows: 14 "Privilege -- a reminder 15 "Legal privilege = vital to success. 16 "Do not discuss any legal advice or anything to do 17 with [subpostmaster] settlements with: 18 "Anyone outside Post Office 19 "JFSA 20 "Second Sight 21 "Subpostmasters 22 "[The sponsoring department, the Department for 23 Business and Industrial Strategy/Members of Parliament] 24 "[Even] Your teams unless absolutely necessary." 25 Did you see legal advice covering things in 91 1 privilege to be vital to the Post Office's success? 2 A. I think the -- in the context of this document, which is 3 discussing settlement criteria and what Post Office may 4 or may not be prepared to pay, keeping that type of 5 advice confidential is of paramount importance, and 6 I think that is the sort of advice that any lawyer would 7 give to a client in those circumstances. 8 Q. Looking back at it now, do you think that that was in 9 some way responsible for a lack of information 10 transferring within the company? 11 A. No because this is talking about communications outside 12 of Post Office and then potentially down into teams. 13 I don't think anyone would have interpreted that as 14 somehow putting a block on information being passed up 15 to senior management. 16 Q. It says, "Your teams unless absolutely necessary". 17 A. Yes. 18 Q. "Don't discuss any legal advice", even with your own 19 team? 20 A. Yes, because -- 21 Q. Keep information clearly compartmentalised is what it's 22 advising, isn't it? 23 A. No, because this meeting of the steering group tended to 24 be more senior people and so the idea is that they will 25 have more junior staff underneath them, and there's a -- 92 1 that's not just advice that I'm providing, that is the 2 state of the law on legal advice privilege, which 3 provides that legal advice privilege doesn't extend to 4 the entire client organisation but only those groups 5 within the organisation who need to receive that advice. 6 Q. Can we turn to page 14 of this document, please, still 7 with the presentation, "Settlement thresholds". You set 8 out here "Recommended threshold of proof", and "Risks": 9 "Where the nature of the complaint is that Horizon 10 inaccurately records data/transactions ... 11 "Risks 12 "Post Office should be slow to concede that Horizon 13 has any technical faults. To do so could open the 14 floodgates to a large number of claims. It will be 15 almost impossible to reverse this position if conceded." 16 Now, all those things that we've been going over 17 today, all those various bugs in the summer of 2013, the 18 suspense account bug, Castleton, Misra, all of those 19 issues that we've been discussing, how, by that stage, 20 could you still hold that position, could that still 21 fairly be the Post Office's approach? 22 A. So those three bugs that you just mentioned had all been 23 publicly disclosed, so they were out there. So this is 24 talking about us coming across any new defects in 25 Horizon during the course of the scheme. Reflecting on 93 1 this now, I think that sets the bar too high. 2 MR BLAKE: I'm going to address one more issue, sir, before 3 we take our second morning break. I appreciate time is 4 marching on -- 5 SIR WYN WILLIAMS: That's fine. 6 MR BLAKE: -- but perhaps we can take a slightly later 7 lunch. 8 Can we please turn to POL00029707, page 3, please. 9 In the middle of page 3, we have an email from Steve 10 Darlington to Rob Wilson and Post Office Group and he 11 says as follows: 12 "As Priti has stated in her last sentence, we are 13 seeking a stay on the time limits on all cases under 14 review due to the implications of [the Post Office's] 15 non-disclosure of system-generation transactions and 16 Horizon integrity issues." 17 Do you remember who Steve Darlington was? 18 A. I think he was a lawyer acting for some of the 19 applicants in the scheme. 20 Q. Yes, so it's a complaint from Howe+Co, following 21 disclosure of, amongst other things, the Helen Rose 22 Report. He says: 23 "The 'Helen Rose Report' is of critical significance 24 to all cases. The information contained within it is 25 a compelling case for such a stay in its own right. 94 1 When combined with the Andy Winn/Alan Lusher email in 2 the case of Ward which explicitly states that Fujitsu 3 can remotely change the figures in the branches without 4 the [subpostmasters'] knowledge or authority, the case 5 for a general stay is overwhelming. 6 "We ask that the Working Party considers this 7 request as a matter of urgency in order that we do not 8 prejudice our clients' cases by omitting information 9 which is clearly of the utmost general significance." 10 If we scroll to the first page, please, you provide 11 your view on this email. You say as follows: 12 "Belinda 13 "I have spoken to both Rodric and Simon Clarke at 14 [Cartwright King] about the email from Priti Singh at 15 Howe ..." 16 So Priti Singh is a lawyer at Howe who has made this 17 complaint: 18 "... and all three of us have similar thoughts on 19 the way to proceed. 20 "The only redactions made to the copies of the 21 reports sent to [subpostmasters] was to remove: 22 "1. The personal information of some of the 23 individuals named in the report ... 24 "2. A header in the document that said the document 25 was subject to legal privilege when it clearly was not 95 1 ... 2 "In light of this, I don't understand Howe+Co's 3 complaint that there is substantial missing material. 4 It is not suggested that [the Post Office] provides 5 an unredacted version of the report as (i) this is not 6 necessary and (ii) we do owe some duty of privacy to the 7 individuals involved. Instead, it is recommended that 8 [the Post Office] maintains its current position and 9 simply explains the redactions to the report." 10 So this is the Helen Rose Report that has been 11 redacted. You are here explaining why there have been 12 redactions that have been made to that report; is that 13 correct? 14 A. Yes, the redactions were made by Cartwright King, 15 though, not me. 16 Q. Yes, and you are explaining why they have been made? 17 A. I'm explaining why -- Cartwright King's reasons for why 18 they were made. 19 Q. You are suggesting an approach that the Post Office 20 should take in response to Howe+Co's complaint about the 21 redactions? 22 A. Yes. 23 Q. That document had been disclosed to the individual in 24 the criminal context, it had been part of that criminal 25 disclosure arising from Cartwright King's review? 96 1 A. I believe that's the case. 2 Q. Yes. You say: 3 "In this vein, I have set out below a possible 4 response to [Howe+Co] to go from Chris. This response 5 is purposefully short in order to avoid any dialogue 6 with Howe on this matter. I do not believe this matter 7 needs to go through the [Working Group] because this is 8 about [the Post Office's] prosecution duties and not 9 scheme business. The response could, and in my view 10 should, be sent regardless of Steve Darlington's email 11 below as it is important that [the Post Office's] 12 position is clearly stated before Ron begins to escalate 13 Steve's views to the Working Group." 14 Now, "I do not believe this matter needs to go 15 through the [Working Group] as this is about POL's 16 prosecution duties and not scheme business"; you've been 17 very clear throughout this morning to distinguish 18 between your involvement in civil and criminal matters. 19 It is clear here that you are getting involved in 20 correspondence that relates to the Post Office's 21 prosecution duties. 22 A. So this is where we end up with the overlap between the 23 scheme and the fact that, within the scheme, there were 24 some subpostmasters who were convicted. My lookout from 25 here is to determine whether this is a matter for the 97 1 scheme to consider or not, and the scheme was not 2 considering Post Office's prosecution duties or 3 reconsidering the conduct of prosecutions. So 4 I think -- I don't accept that is me advising on 5 prosecution matters. I think that is me advising from 6 the perspective of the scheme. 7 Q. You're advising on something that touches on the 8 prosecution's duty of disclosure aren't you? 9 A. I accept that but also, if you scroll up to the top of 10 this note, it says "I've spoken to both Rodric and Simon 11 Clarke at Cartwright King" so the criminal law input 12 would have come from Simon Clarke at Cartwright King. 13 Q. But he's not sending any separate draft response. This 14 draft is coming from you, having taken others' views? 15 A. Having taken Simon Clarke's views on the appropriate 16 approach on the criminal side. 17 Q. You say: 18 "Just for background information, the material part 19 of the Helen Rose Report has nothing to do with her 20 comments about reversal data. [Second Sight] and Howe 21 are taking this point as evidence of a problem with the 22 integrity of Horizon. In fact, Helen's issue was that 23 the Credence data, although accurate, did not on its 24 face clearly distinguish between automated reversals and 25 user generated reversals. This information is available 98 1 but in a different report. The concern was not with the 2 data's accuracy but that the presentation of the data 3 could be misleading if its limitation was not fully 4 understood. Putting this issue aside [and this is the 5 important part] the real (and confidential) reason that 6 the report was disclosed was because Helen's comment at 7 the bottom of page 3 suggests it was widely known that 8 there were problems with Horizon. This statement 9 (regardless of whether it is correct) could have been 10 used to attack Gareth Jenkins' credibility as [the Post 11 Office's] Horizon expert as he had previously stated 12 that there were no problems with Horizon." 13 Then you go on to draft the response. If we scroll 14 down, please, your draft response says as follows: 15 "The version of the report sent to Ms Robinson was 16 redacted to protect the privacy and personal information 17 of the individuals named in the report. This was done 18 to ensure compliance with the Data Protection Act. All 19 material information in the report has been provided to 20 your client in full compliance with the Post Office's 21 legal duties." 22 Now, where you say "legal duties", do you mean in 23 relation to the prosecutor's duty of disclosure? 24 A. Yes. 25 Q. So you are, in this draft email, proposing 99 1 correspondence that relates to the prosecutor's duty of 2 disclosure? 3 A. Having taken that from Simon Clarke at Cartwright King. 4 Q. "We will therefore not be providing an unredacted copy 5 of the report." 6 So that's a decision that you also came to or advice 7 to the clients that was encompassing others' but also, 8 ultimately, your advice. 9 A. That was my advice, having discussed it with the 10 criminal lawyers. 11 Q. "For the sake of good order, I note that [the Post 12 Office] disagrees with the statements in your email 13 about the integrity of data on Horizon and the safety of 14 convictions. 15 "I do not believe that this matter should delay the 16 submission of your clients' CQRs." 17 I want to look at the version of the Helen Rose 18 Report that was attached to Ms Maru-Singh's email, that 19 was being brought to your attention. I want to look at 20 it side by side with the unredacted version of the Helen 21 Rose Report. So could we bring up on screen 22 POL00022598, side by side with POL00147949. So that is 23 the original version of the Helen Rose Report and this 24 is the version -- the version that's about to come up on 25 screen, is the version that was sent as part of that 100 1 complaint from Howe+Co, and this is the redacted version 2 and you've explained the redactions in your witness 3 statement. 4 I think it's paragraph 182 of your witness 5 statement. We don't need to turn that up. 6 So the author's name is redacted, Helen Rose, but, 7 if we turn over, please, on page 2 on both of them, we 8 see there the first redaction is to the branch details; 9 the second redaction is a username; but let's look at 10 that third redaction, please. The sentence on the 11 right-hand side, the real version, if we scroll down 12 sorry -- thank you -- it says: 13 "The Fujitsu logs were requested for this branch, 14 but whilst waiting for these to arrive communications 15 took place with Gareth Jenkins at Fujitsu for more 16 details to gain an understanding what had occurred at 17 this branch." 18 We then have the redacted version, which you say is 19 for data protection reasons, to the name of Gareth 20 Jenkins. We then have a look at question 1 and the 21 redactions that are made there. On the right-hand side, 22 the original: 23 "I am requesting Fujitsu logs for the Lepton 24 [branch] to look at a reversal", et cetera. 25 Then we have in brackets: 101 1 "Gareth looked at the data at his end prior to me 2 receiving the Fujitsu logs." 3 We see there the name "Gareth" is redacted. 4 Now, how on earth could subpostmasters have attacked 5 Gareth Jenkins' credibility, as you've suggested was the 6 purpose for disclosing this, if Gareth Jenkins' name was 7 redacted in that report? 8 A. I'm not suggesting that. This was redacted by 9 Cartwright King. I had no involvement in selecting 10 those redactions or the reasons for those redactions. 11 You would have to address those questions to Cartwright 12 King. 13 Q. Well, let's look at your email. POL00029707. I think 14 you practice in data protection, don't you? 15 A. I do now. 16 Q. Let's have a look at the covering email. POL00029707. 17 You make clear in that email: 18 "The only redactions made to the copies ... was to 19 remove: 20 "The personal information", et cetera. 21 If we scroll down, we can see your draft covering 22 letter to the complainant from Howe+Co. If we scroll 23 down to the bottom: 24 "The version of the report sent to Ms Robinson was 25 redacted to protect the privacy and personal information 102 1 of the individuals named in the report. This was done 2 in order to ensure compliance with the Data Protection 3 Act ..." 4 I mean, did you not apply your mind anyone in any 5 way to the redactions that had been made to that report 6 when drafting your email? 7 A. So the redactions were made by Cartwright King. They 8 told me they made them for data protection reasons. 9 Having looked at the report, it appeared to me that they 10 were redacting personal data, subject to that one extra 11 point around the mismarking of the document as 12 privileged. That's how I took the -- I took their view 13 on it. 14 Q. You've said there, sticking with this email: 15 "Putting this issue aside, the real (and 16 confidential) [so nobody is being told] reason the 17 report was disclosed was because Helen's comment at the 18 bottom of page 3 suggests that it was widely known that 19 there were problems with Horizon. This statement ... 20 could have been used to attack Gareth Jenkins' 21 credibility ..." 22 Gareth Jenkins' name was redacted from that 23 particular version. 24 A. Again, you're going to have to take that up with 25 Cartwright King. I wasn't involved in the disclosure of 103 1 this document or the redactions. 2 Q. Why are you repeatedly drafting emails, sending 3 substantive comments to the Post Office, when you 4 weren't involved, where you were just a conduit for 5 information; why were you doing that? Why were you not 6 thinking through the consequences of the things that you 7 were advising? 8 A. So this is where we get to the crossover between the 9 scheme and the fact that some members of the -- some 10 applicants in the scheme were convicted. When those 11 crossover issues came up, as you can see here, I went 12 and spoke to the criminal lawyers. I feel like this 13 email faithfully represents the advice they gave to me 14 and I'm passing that advice back to Post Office. 15 Q. I've noted down all those things that happened in the 16 summer of 2013, so we've got: suspense account bug that 17 was brought to your attention; concerns regarding the 18 integrity of Horizon; you had raised concerns regarding 19 the documenting of certain information; Castleton; 20 Misra; other cases on hold; Second Sight Report; three 21 bugs; you corresponded with the Criminal Cases Review 22 Commission, however you would like to put that. 23 You are here, in 2014, directly involved in advising 24 the Post Office in respect of a document that was 25 disclosed following a criminal conviction and saying 104 1 that "We don't need to unredact the redaction to Gareth 2 Jenkins' name", aren't you? 3 A. Following the advice of the criminal lawyers. 4 Q. Why in those circumstances wouldn't you have given it 5 a little more thought? 6 A. I wasn't advising on the prosecution disclosures. I'm 7 a civil lawyer. I don't have any experience of criminal 8 law. When these types of issues came up, I took the 9 lead from the criminal lawyers, particularly from Simon 10 Clarke, who is much more senior than I was. 11 Q. You were asked to unredact the Helen Rose Report. Your 12 advice to the client is "You don't need to unredact the 13 Helen Rose Report, those redactions were made for data 14 protection purposes". Why wouldn't you have satisfied 15 yourself that they were sufficient that they were 16 correct that they were fair? 17 A. I have no independent means of doing that because I'm 18 not a criminal lawyer. So I can't advise the client 19 independently on whether those redactions were 20 appropriate or not. The best I can do is go and speak 21 to the criminal lawyer who made those redactions and 22 seek his view. 23 Q. You knew the significance of the Gareth Jenkins issue; 24 you had read Cartwright King's advice; you knew that the 25 disclosure was being confidentially made for the purpose 105 1 of disclosure. Do you think, looking back at all of 2 that, you really reflected enough on the job that you 3 were doing? 4 A. I think if I -- reflecting back on it now, I think there 5 was probably an original mistake by the criminal lawyers 6 in redacting Gareth Jenkins' name and not being more 7 transparent about his involvement and why they were 8 making the disclosures back at the beginning of 2013. 9 Q. Why is it all the criminal lawyers' fault? You were 10 here involved in matters touching on criminal law, 11 weren't you? 12 A. I've -- I hope I've tried to explain my involvement with 13 the criminal touch points but, as I've said, I'm not 14 a criminal lawyer, I don't know these rules and I can't 15 advise on them. What I'm trying to do here is helpfully 16 give Post Office the advice they need, acting, as 17 I say -- and I know you don't like this phrase -- but as 18 a conduit for the information from the criminal lawyers. 19 Q. Should there have been a point where you said, "I'm 20 sorry but I can't act as a conduit any more, this is so 21 outside my area of expertise that I really can't assist 22 you?" 23 A. I didn't feel it at this point on this particular issue, 24 no. Having spoken to Simon Clarke he was clear to me he 25 thought those redactions were properly made. 106 1 MR BLAKE: Sir, that might be an appropriate moment but 2 I appreciate it is later in the day but if we could only 3 take the second break of the morning, so to 12.40. 4 SIR WYN WILLIAMS: Yes, and then how -- 5 MR BLAKE: Then we can take lunch at 1.30 if that's 6 suitable. 7 SIR WYN WILLIAMS: So lunch at 1.30, all right. Fine. 8 MR BLAKE: Thank you, sir. 9 (12.28 pm) 10 (A short break) 11 (12.40 pm) 12 MR BLAKE: Thank you, sir. 13 Can we please turn to POL00146243. It's page 4 I'd 14 like to look at first, please, the bottom of page 4. 15 We're now on 2 September 2013. We have an email from 16 Alwen Lyons, the company secretary, to Hugh Flemington, 17 and she says: 18 "As per our conversation this morning. I would 19 appreciate if you would get external advice on any risks 20 in the Lessons Learned Review work. My concerns are 21 specifically around the Freedom of Information Act or 22 disclosure requirements for our criminal prosecutions 23 and civil actions." 24 If we scroll up, Hugh Flemington sends it to you. 25 "As discussed I've been asked for the advice per 107 1 email below. Would you mind reverting to me in the 2 first instance." 3 We have the response and that begins at the bottom 4 of page 2, please. Your response is as follows: 5 "Simon 6 "As discussed, please find below the high-level 7 advice on the terms of reference for the 'Lessons 8 Learned Review' ... 9 "In general, the Post Office's desire to review past 10 activity and improve the future is understandable. 11 However, the nature and timing of the review presents 12 several risks to the Post Office ... and, critically, 13 cuts across number of ongoing activities. 14 "For these reasons, I would recommend that if the 15 review does need to take place at all, then it should be 16 deferred for 6-12 months so to first allow Second Sight 17 to be managed out in the Mediation Scheme to be 18 completed." 19 Then heading "Disclosure of The Review": 20 "Privilege -- This review will not be legally 21 privileged. This may make it difficult (if not 22 impossible) to resist publicly disclosing details of the 23 Review (as well as any documents and emails produced in 24 the course of preparing the review) if a Freedom of 25 Information Act request is made (by say the media, JFSA 108 1 or a subpostmaster)." 2 Still under 1, the second heading under 1: 3 "Criminal disclosure -- Should the review reveal any 4 concerns about Horizon or branch accounting processes 5 then Post Office may be obliged (under Criminal 6 Procedure Rules) to proactively pass this information to 7 subpostmasters involved in criminal prosecutions (both 8 ongoing and historic). In particular, recommendations 9 for change could be interpreted as highlighting historic 10 problems that would need to be disclosed." 11 Everything we've been talking about this morning, 12 you've been very concerned to distinguish between your 13 role as advising in relation to the civil matters only, 14 not criminal matters. What do you have to say about 15 a paragraph here where you are advising on criminal 16 disclosure? 17 A. So this is a very basic statement of the disclosure 18 duties that Post Office was under and I've taken that 19 from the advice that I've seen previous to this from 20 Cartwright King. 21 Q. Are you advising the client in this email of the 22 implications of the Lessons Learned Review in respect of 23 criminal disclosure obligations? 24 A. Yes. 25 Q. Thank you. Can we please now turn to POL00021865. 109 1 We'll come back to the 2013 period but I want to take 2 you now to a few events over subsequent years that may 3 be relevant to what occurred in 2013 and advice that you 4 gave. This relates to the Panorama broadcast and you 5 are providing Rodric Williams with your thoughts on the 6 confidentiality position following Panorama. You say as 7 follows: 8 "My thoughts below ... 9 "In short, my view is that [the Post Office] either 10 (i) does nothing but a bare denial of the allegations 11 and waits for the Criminal Cases Review Commission or 12 (ii) goes on a full attack -- with the former being my 13 strong preference. Any middle ground simply feeds the 14 fire and I don't believe that steady reasoned argument 15 or disclosure or further documents will assist in 16 changing the story." 17 Then there's a section on applicants and you say as 18 follows: 19 "I'm not convinced that responding to the 20 'inappropriate theft charge' allegation for each case 21 with a more detailed explanation of what happened would 22 be worthwhile. Our arguments are technical, rely on the 23 intricacies of the prosecution process and are based on 24 a range of evidence rather than a single smoking gun. 25 The man in the street will simply say: 'where is the 110 1 evidence of the [subpostmaster] putting the money in her 2 pocket?'. I don't believe we can win this battle in the 3 media." 4 You have there a fair grasp, in broad terms, of the 5 criminal argument, don't you? The criminal law 6 arguments? 7 A. At a very high level. 8 Q. You then say: 9 "[The Post Office] could however start attacking the 10 postmasters credibility by calling out Thomas, Misra and 11 Hamilton ..." 12 Those are three people who have been convicted of 13 criminal offences. 14 "... as the liars and criminals that they are." 15 Now, how could you say that, having, for example, by 16 this stage, received the advice on the reliability of 17 Gareth Jenkins? 18 A. On reflection, that language is too strong. 19 Q. "They all admitted to [false accounting] and all 20 admitted to it again last night on Panorama. [The Post 21 Office's] language to date has been constrained (last 22 night it was 'deliberate dishonest conduct' which was 23 a generally way to put it). Perhaps some more punchy 24 language, combined with more specific details of the 25 [false accounting] might help rebalance public 111 1 perception." 2 Do you think that is appropriate advice to be 3 giving? 4 A. I don't think that is the advice I'm giving. If you 5 read the opening paragraph that you touched on, it makes 6 it very clear that my advice is that Post Office should 7 do something and wait for the CCRC. What I'm then 8 setting out below is the alternative proposition but 9 that wasn't the advice I was giving. 10 Q. The advice you were giving is that there are two 11 options, the former is your strong preference but you 12 haven't ruled out the latter, have you? 13 A. No, I'm giving the client options and giving them what 14 my preference would be, which would be to do nothing and 15 wait for the CCRC. 16 Q. Do you think that couldn't option was appropriate? 17 A. I think it was an option that Post Office could consider 18 but, as the top paragraph says, it wasn't what I would 19 recommend they do. 20 Q. How is it advice relating to a legal position, rather 21 than, effectively, PR advice responding to the Panorama 22 programme? 23 A. Apologies. Could you put the question again? 24 Q. Absolutely. You're looking there -- an option, although 25 admittedly one that wasn't your strong preference, was 112 1 to attack the postmasters' credibility by attacking 2 Thomas, Misra and Hamilton. How is that legal advice 3 rather than, for example, PR advice, because it's 4 responding to the Panorama programme? 5 A. I think the Panorama programme -- and I haven't watched 6 it since that time because it was a long time ago -- did 7 stray into questions around legal responsibilities and 8 liabilities. So I accept there's a grey area here 9 between legal advice and PR advice. 10 Q. If we scroll down, there's also comments there on Second 11 Sight. You say: 12 "For the reasons given above, I don't believe that 13 a substantive debate over [Second Sight's] views on the 14 'inappropriate theft charge' allegation would be 15 successful. Whatever we think about them, the wider 16 perception is that they are independent experts and 17 credible." 18 Just pausing there, by 2015, what did you think of 19 them? 20 A. By this point, I had concerns about the quality of the 21 work they were producing. 22 Q. Just the quality of the work? 23 A. I also had concerns about -- that they seemed to be 24 leaning more towards the subpostmasters and ignoring 25 some of the points the Post Office was making. 113 1 Q. You then say: 2 "If [the Post Office] wished to respond, I would 3 again recommend attacking their credibility and start 4 with disclosing the extract from their engagement terms 5 that says: 'it is acknowledged that matters relating to 6 criminal law and procedure are outside Second Sight's 7 scope of expertise'." 8 Now, you've identified a couple of issues that you 9 had with the quality of Second Sight's work but how 10 could you attack their credibility? 11 A. In this sense, it was because Second Sight had accepted 12 in their engagement terms -- again, I'm doing this from 13 memory -- that they didn't have expertise in criminal 14 law and procedure, yet they had gone on to offer 15 opinions on those matters. 16 Q. Looking back at this email, is it your view that the 17 advice that you were giving there and that the language 18 you were using about subpostmasters was not appropriate? 19 A. I accept that the comments about the three 20 subpostmasters named was inappropriate but I think it 21 all has to be read in the context of the top part of the 22 email where it says, "My strong preference is Post 23 Office does nothing and waits for the CCRC". 24 Q. Reference to the CCRC there, reference to the 25 inappropriate theft charge, referring to the credibility 114 1 of three criminal defendants, it seems once again to be 2 straying somewhat into the criminal sphere, doesn't it? 3 A. As I've explained, there are touchpoints between the 4 criminal areas and the Mediation Scheme and the civil 5 areas. Those points come into contact with each other 6 but I don't believe that I'm crossing the line into 7 advising on criminal law matters here. To the extent 8 that I refer to criminal matters, it's based on advice 9 I've received from the criminal lawyers. 10 Q. "Bare denial of the allegations and wait for the CCRC", 11 though, I mean, that comes pretty close, doesn't it, to 12 advising in relation to how the company acts in respect 13 of the Criminal Cases Review Commission? 14 A. I think the status quo at that point is Post Office was 15 waiting for the CCRC, so I don't think that's telling 16 Post Office anything new. 17 Q. As I said, I'm going to jump a number of years now, to 18 a few different periods. Let's move on a year, and go 19 to WBON0000465, please. This is 5 October 2016. Amy 20 Prime emails you. Who was Amy Prime? 21 A. She was a solicitor on my team. 22 Q. She was, by that stage, a newly qualified solicitor, 23 wasn't she? 24 A. Correct. 25 Q. I think we've seen her involvement in some other stages, 115 1 perhaps when she was just a trainee, but, by this stage, 2 she's qualified that year? 3 A. I believe so. 4 Q. She says: 5 "Andy 6 "Please find below a draft email to Rod on the 7 Investigations Guideline -- would appreciate your 8 thoughts/comments on this." 9 Then she has below a draft that has been drafted: 10 "Rodric 11 "The below is not urgent but for you to consider as 12 and when you get a chance. Freeths have requested that 13 we provide them with Post Office's Investigation 14 Guidelines since 1998 (including any revisions to date). 15 In the earlier round of disclosure, we did not provide 16 the guidelines since we wished to confirm whether the 17 documents were covered by privilege. Brian Altman has 18 confirmed that they will not be covered by privilege and 19 as such the guidelines will, at some point, have to be 20 disclosed. 21 "We have reviewed both the most recent version of 22 the guidelines ... and the prior version ... Of note, 23 the 2013 version ... provides 'Should the recent Second 24 Sight review be brought up by a subject or his 25 representative during a PACE interview the Security 116 1 Manager should state: "I will listen to any personal 2 concerns or issues that you may have that with the 3 Horizon system during the course of this interview".' 4 "Freeths will more than likely use this statement 5 afterwards an opportunity to confirm that Post Office 6 responded to postmasters using stock answers (a point 7 which has already been raised in relation to the 8 helpline) and further could be spun to show that Post 9 Office was not taking issues with Horizon seriously and 10 were trying to ignore any issues which were raised. 11 "Although we may face some criticism later on, we 12 are proposing to try and suppress the guidelines for as 13 long as possible on the grounds that the most recent 14 version is not relevant since it post-dates the 15 investigations complained of and it would require a full 16 disclosure exercise to piece together all historic 17 revisions of the guidelines. We thought it would be 18 best to bring this to your attention early." 19 You respond to Ms Prime the same day, let's have 20 a look at WBON0000467. Thank you, you respond as 21 follows: 22 "One addition below. Little tip -- try to always 23 spell out exactly what is required from the client (even 24 if that is nothing or a negative statement like below)." 25 So you're there providing a tip to the newly 117 1 qualified solicitor. Were you her supervisor or were 2 you -- 3 A. I'm not sure if I was formally her supervisor but she 4 was a lawyer in my team. 5 Q. You're providing her with a tip to spell out exactly 6 what is required to the client. 7 If we scroll down, we can see on the second page, 8 the paragraph that you have then inserted that reads as 9 follows: 10 "For now, we'll too what we can to avoid disclosure 11 of these guidelines and try to do so in a way that looks 12 legitimate. However, we are ultimately withholding 13 a key document and this may attract some criticism from 14 Freeths. If you disagree with this approach, do let me 15 know. Otherwise, we'll adopt this approach until such 16 time as we sense the criticism is becoming serious." 17 Now, you've addressed this in your witness 18 statement. If we could perhaps keep that on screen but 19 also just bring up the witness statement on to screen, 20 page 235. Thank you very much. It's page 235, so the 21 explanation starts at paragraph 411. 22 412 you come to this particular document and let's 23 see the explanation is at 413 so that's over the page, 24 please. You say: 25 "Regrettably, this email is worded very poorly. 118 1 Whilst, as I have said I do not recall this email, my 2 firm's records show that Amy had sent a draft for my 3 approval earlier that day which did not contain this 4 final paragraph. I responded to her adding it into her 5 draft though my purpose in doing so appears to have 6 simply been to make clear what action we required from 7 [the Post Office] on this point, rather than to consider 8 or build upon the substance of her email. Though 9 ill-expressed, having reviewed the relevant emails from 10 around this time I consider that [that document] and the 11 final paragraph in particular does not reflect the true 12 position, as there were in fact substantive legitimate 13 reasons for resisting disclosure of the investigation 14 guidelines at this early stage. My email should have 15 been better expressed to make that clear at the time." 16 Let's take that down on the left-hand side and let's 17 concentrate on that paragraph. It's not just a poor 18 choice of words, is it? Even if you take out the words 19 in terms of legitimacy, so let's take out "that looks 20 legitimate", what you are saying here is that "We are 21 ultimately withholding a key document". 22 I mean, that's not a poor choice of words; that is 23 your acknowledgement at that time that there is a key 24 document, that it is okay to withhold that document for 25 as long as possible, isn't it? 119 1 A. So we are advising Post Office here not to disclose this 2 category of documents. I think the reference there to 3 a key document is not referring to those two specific 4 versions we have but the broader category of 5 investigation guidelines, which is what the request was. 6 Q. So the investigation guidelines, that is the guidelines 7 that led to people's investigation, subsequent 8 prosecution, conviction. 9 A. No, the -- the request was for investigation guidelines 10 in the broadest sense so it could have included any form 11 of investigation -- 12 Q. Okay, so not limited to criminal prosecutions but 13 including investigations that led to criminal 14 prosecutions? 15 A. Correct. 16 Q. Including investigations that led to people wrongly 17 losing their jobs? 18 A. I -- yes, I guess so, but I wouldn't be able to draw 19 that line directly. 20 Q. Investigations that led to people becoming bankrupt? 21 A. Yes. 22 Q. And, irrespective of your reference to doing so in a way 23 that looks legitimate, you are saying there, you are 24 advising a client, that you can withhold what you 25 considered at the time to be a key document until the 120 1 criticism is such that it's becoming serious. 2 A. So the context here is this is in the pre-action phase 3 of the litigation. No disclosure orders have yet been 4 made and the request that was made of us was for a broad 5 category of investigation guidelines. The two documents 6 we had were dated from August 2013 and 2016 and, 7 therefore, post-dated, in this sense, any prosecution 8 that Post Office had conducted because, as I understood 9 it, Post Office hadn't conducted any prosecutions after 10 July '13. 11 So, in that sense, I thought there -- looking at it 12 now, it's a very poorly worded email, I regret sending 13 it but, having looked at it again, I believe there were 14 legitimate grounds not to disclose those two documents 15 at that point in time, which is during pre-action. 16 Q. What does it matter; what does it matter that you think 17 now about those documents? At the time that this 18 document -- this email is drafted, this letter is 19 drafted, you considered that it was a key document, 20 didn't you? 21 A. I considered the investigation guidelines, as 22 a category, a key document, yes. 23 Q. Your advice to the client was "withhold until criticism 24 is so serious that you have to disclose", isn't it? 25 A. Withhold those two versions of the document, which is 121 1 the only two versions we had been provided at that time; 2 there the only two documents we'd been provided with 3 under that broad category of investigation guidelines. 4 For the reasons that are stated in this email, we 5 considered they weren't disclosable. That's not 6 retrospectively my position; that was my position at the 7 time. You said earlier the explanation for this began 8 at paragraph 411. I think it begins at paragraph 404 9 and it does set out the background. 10 Q. But what does it matter now that you consider those 11 documents were not disclosable, if, at the time, you 12 thought not only are they disclosable, they are the key 13 documents? 14 A. No, no, apologies. Maybe I'm not being clear. The 15 email is poorly expressed but my belief at the time was 16 that those documents were not disclosable. 17 Q. Your belief at that time was they were not disclosable? 18 A. Correct. 19 Q. Where on earth in this correspondence does it say that? 20 How could anybody reading this get the impression that 21 your view was that they were not disclosable? How does 22 that paragraph -- how can that possibly be read as 23 suggesting that it wasn't disclosable? 24 A. So the explanation is in the paragraph above, where it 25 says: 122 1 "The most recent version is not relevant since it 2 post-dates the investigations complained of and it would 3 require a full disclosure exercise to piece together all 4 the historic versions of the guidelines." 5 Again, the context is important. This is during the 6 pre-action phrase of the litigation where a party is not 7 required to undertake a disclosure exercise. 8 Q. Doesn't this show a mindset, a mindset that we have 9 already seen from 2013, not to record, not to disclose 10 or, if you're going to have to disclose something, hold 11 onto it to the very last moment until you absolutely 12 have to disclose it. 13 A. I think each of those has to be considered on its own 14 merits, in its own circumstances at the time. I think, 15 against that, I would weigh the fact that we advised 16 Post Office to run the Mediation Scheme, which itself is 17 a process that gave rise to lots of information being 18 provided to subpostmasters. So I think there are other 19 points on the other side of that equation. 20 Q. Let's look at the same criticism but in different 21 circumstances. We're going to look at the Known Error 22 Log. Can we please turn to POL00245938, please. If you 23 could turn to page 5, there's a request that is sent to 24 the Post Office, I think it's by Tim McCormack, 25 although, slightly facetiously, it's entitled "AN 123 1 Obody", or "A Nobody". If we turn to the top of page 5 2 he sends an email to the Post Office and he says as 3 follows: 4 "I thought I sent a reply to you but it doesn't seem 5 to have got through. 6 "I cannot talk to anybody about this because I have 7 signed off my branch accounts with the wrong figure and 8 I can go to prison for doing that. I haven't taken any 9 money. I want to know what errors to look for. I read 10 all this talk about errors in Horizon on the Internet. 11 I want to know what they are. You say you have that 12 information but you won't give me it so what is my 13 alternative. I don't have the sort of money to give to 14 you. Will you prosecute me for my accounts if I talk to 15 Mrs Bogard? Please tell me, surely you have to tell me 16 what these errors are?" 17 What he's doing there, what that email is designed 18 to do is to try to draw out of the Post Office 19 information about known errors because, if you were 20 a subpostmaster who had signed off your branch accounts, 21 you know there's a problem but you don't know what the 22 problem is, you want information from the Post Office to 23 tell you what are the problems; what are the known 24 errors that might explain my discrepancy? 25 Did you understand that to be the background or the 124 1 picture to be painted here? 2 A. I can see those are the questions being asked but the 3 fact that it was sent from AN Obody made me doubt the 4 veracity of this request. 5 Q. Absolutely. So it may not be somebody who is actually 6 having a problem but it poses a theoretical problem for 7 the Post Office to answer. 8 Let's go to page 1, and this is your advice on that 9 email. You respond to Rodric Williams, you say: 10 "Draft [business as usual] response attached. I've 11 gone for a very soft known. Although I'm 99% sure this 12 is a fictional case, we just can't take the risk. 13 "I've not made any express reference to the [Known 14 Error Log]. Even the phrase 'known error' could set 15 hares racing so I've avoided it entirely. I hope 16 however the key message ('cart before horse') still 17 comes across." 18 Were you still concerned, even at 2016, about 19 disclosing the fact that there was a Known Error Log? 20 A. So at this point in November 2016, the Group Litigation 21 is under way, Freeths are aware that there is a Known 22 Error Log. There is ongoing discussions around the 23 disclosure of a Known Error Log, so the fact that it 24 exists is out there with the claimants' lawyers. 25 I think the response here is in the context of this 125 1 feeling like a fictional request, one improper request 2 for some improper purpose, and I don't think Post Office 3 should be required to provide extensive details in those 4 circumstances, where it feels like the request is 5 somehow being made as a, I don't know, a trial or 6 a joke. 7 Q. What do you mean by set hares racing there? 8 A. Because I think the phrase "known error" conjures up 9 views in people's mind around the extent of problems 10 and, at this point in time, we had been told by Fujitsu 11 that the Known Error Log didn't contain any bugs that 12 affected Horizon -- sorry, didn't affect branch 13 accounting. 14 Q. Let's fast forward to 2019. Can we please look at 15 POL00043147. 16 We're now in the thick of it in the litigation, 17 addressing the Known Error Log. An email from you to 18 Rodric Williams and others: 19 "Rod, Kate 20 "Bullets for comment. Below is a possible email to 21 Ben ..." 22 I think that's Ben Foat, is it? 23 A. Yes. 24 Q. "... from Rod. Attached is an updated board report." 25 Then the email says as follows: 126 1 "Ben 2 "Please find attached the updated board report 3 addressing your points. The key points to note are: 4 "1. [Womble Bond Dickinson] are assessing the risk 5 over the weekend of the 93 high-risk [Known Errors 6 Logs]. By [a date] next week counsel will have reviewed 7 those KELs in detail and given a view on whether they 8 are likely to cause the Horizon trial to be 9 recommenced/the judgment delayed. 10 "2. In relation to the [circa] 14,000 other [Known 11 Error Logs] (ie those not used at the trial), the key 12 risk of reviewing the 14,000 ... is that the claimants 13 have not asked for the documents yet. If we review them 14 now, [the Post Office] will be required to disclose any 15 adverse documents uncovered. This is doing the 16 claimants' work for them and may highlight new bugs in 17 Horizon that the [claimants] had previously decided not 18 to raise/overlooked. The advice of [Womble Bond 19 Dickinson] therefore is that the [Post Office] should 20 not review the 14,000 other Known Error Logs unless the 21 claimants ask for them or Tony's review highlights major 22 risks that warrant a wider review." 23 So your advice there is that you shouldn't look at 24 that wider body of error logs because there may be bugs 25 in there that are found that need to be disclosed? 127 1 A. No, not quite, because these are -- these 14,000 KELs 2 are back versions of KELs. So the original -- the final 3 version has been disclosed already within the Group 4 Litigation. So these are only earlier versions of 5 documents that have already been put out there and so 6 they may contain more information about already 7 disclosed problems but I think it's unlikely they would 8 have contained existence of new bugs. 9 Q. "This is doing the claimants' work for them and may 10 highlight new bugs in Horizon that the claimants had 11 previously decided not to raise or overlooked." 12 A. Yes. There is a possibility of that, I accept that, but 13 the context is important: that these are back versions 14 of KELs that have already been disclosed. 15 Q. Once again, is this a concern in relation to looking for 16 things or mentioning things just in case they had to be 17 disclosed? 18 A. Well, at this point we've already informed the claimants 19 that there are these 14,000 KELs and they can, of 20 course, request them and disclose them -- request them 21 and review them if they wanted to. In a piece of 22 litigation like this, I don't think it was incumbent 23 upon Post Office to have to review those documents. 24 Q. Were you concerned that, if you carry out too many 25 investigations at this stage, there would arise some 128 1 information about the integrity of Horizon that would be 2 disclosable that you wouldn't want to be disclosed? 3 A. I think that the depth of information around Horizon was 4 massive. There were hundreds of thousands of documents 5 and I think, if you review more technical documents on 6 the system, there was always a possibility that it would 7 give rise to a new problem. That's just an inherent 8 risk in a pile of documents that big and, if that 9 happened, we would have to disclose it. 10 Q. That's looking about in the system but what about 11 discussing things with Fujitsu, for example? Were you 12 concerned about discussing things with Fujitsu, just in 13 case they gave you something that you might have to 14 disclose? 15 A. I don't recall that being a consideration in terms of us 16 being worried that Fujitsu would tell us that there was 17 something to be disclosed. In fact, we repeatedly asked 18 them for that type of information. 19 Q. So you were repeatedly asking Fujitsu for information, 20 and what -- is your concern that they weren't giving it 21 to you? 22 A. Well, for example, if you go back, and this is at the 23 end of -- this is 2019 -- if you go back to the earlier 24 stages of the KEL, when we asked them about the KEL 25 originally and we asked them explicitly are there any 129 1 bugs that affect branch accounts within the KEL, they 2 told us there weren't any. 3 Q. Let's look at POL00043169, please. We're still on the 4 KEL. Bottom of page 1, please, an email from you to 5 Catherine Emanuel, Rodric Williams and others: 6 "No more progress on the [Known Error Log] review 7 because I've asked Tony to turn his efforts to the 8 [Known Error Log] response letter that now urgently 9 needs to go out the door. 10 "He'll then circle back to the remaining KELs to be 11 reviewed of which there are about 15. We will then have 12 a shortlist of about 25 (I'm guessing) KELs that will 13 need [Fujitsu's] input. We are collating a list of all 14 the questions to [Fujitsu] on these 25 but before 15 sending that to [Fujitsu] we need to take a tactical 16 decision on whether that is a good idea, bearing in mind 17 that sometimes we ask [Fujitsu] a question and get 18 answers we don't like!" 19 Isn't that the opposite of what you've just told me 20 in respect of to your relationship with Fujitsu? 21 A. I wasn't concerned there that they would turn around and 22 say, "Look, there's some more bugs in the system". If 23 they'd have told us that, we'd have disclosed it. The 24 challenge at this stage was that the answers we'd get 25 from Fujitsu would be opaque or difficult to understand, 130 1 and could lean to lines and lines of questions, which 2 means -- and what we were trying to do here was move 3 this matter to a conclusion. 4 Q. Surely what you're doing there is very similar to what 5 we saw from 2013 onwards, which is: don't seek something 6 out, don't get hold of a document or information, 7 because you might have to disclose that and it might be 8 something that we don't like? 9 A. I don't see the dots that you're connecting there, I'm 10 afraid. As I say, you have to consider each of these 11 points in time as you look at them. 12 MR BLAKE: Sir, that might be an appropriate moment to take 13 our lunch, please. 14 SIR WYN WILLIAMS: Certainly. 15 MR BLAKE: Could we, please, therefore, come back at 2.15? 16 SIR WYN WILLIAMS: 2.15. Right. Very well, yeah, we'll 17 resume at 2.15. 18 MR BLAKE: Thank you very much. 19 (1.15 pm) 20 (The Short Adjournment) 21 (2.14 pm) 22 MR BLAKE: Good afternoon, sir, can you see and hear me? 23 SIR WYN WILLIAMS: Yes, I can, thank you. 24 MR BLAKE: Thank you. Mr Parsons, we're going to move on to 25 a few separate topics, the first of which is Second 131 1 Sight. Can we start, please, with WBON0000767, so we'll 2 start on 12 July 2013. If we scroll down there, there's 3 an email from you to Susan Crichton and you say as 4 follows: 5 "Susan 6 "Had a quick chat with Gavin." 7 Who is Gavin; is that Gavin Matthews? 8 A. Correct. 9 Q. What was his position? 10 A. He was my supervising partner. 11 Q. Yes. 12 "Arbitration will probably end up as formal and 13 long-winded as court proceedings. We'd also lose 14 a degree [of] control -- the process and timing would be 15 controlled by the arbitrator. I'm not attracted to 16 this." 17 So they're discussing options: one is arbitration, 18 another is mediation? You come on now to address 19 mediation, and you say: 20 "Mediation is a definite possibility. I could 21 envisage a mediation between [the Post Office] and each 22 [subpostmaster] (with also [Second Sight] in the room -- 23 and perhaps Shoosmiths?). This gives each 24 [subpostmaster] the opportunity to voice their views and 25 discuss [Second Sight's] findings. Having a mediator in 132 1 the room would help equalise the imbalance of power. 2 Mediation would not commit [the Post Office] to any 3 outcome (unless one was agreed by both parties) and 4 could be conducted on our timetable. If the mediations 5 were run after [Second Sight's] final report, this may 6 help ensure that the report focuses on general themes 7 whilst leaving specific cases to be heard in the 8 subsequent mediation process. 9 "The risk in is that mediation is usually set up 10 with a view to reaching a resolution. As discussed 11 yesterday I doubt we will ever reach closure on these 12 cases. [The Post Office's] Comms Team would therefore 13 need a robust media strategy to explain why the 14 mediations will, in the majority of cases, fail to reach 15 consensus between [the Post Office] and the 16 [subpostmaster]. Otherwise, this may be spun as 17 a failure to close out this matter." 18 It seems as though there was a discussion the 19 previous day, then, about mediation; do you recall those 20 discussions? 21 A. I recall that during this period there were a number of 22 discussions about different ways of taking things 23 forward after the Second Sight Interim Report, of which 24 mediation was one of the possibilities. 25 Q. Now, why would mediations in the majority of cases fail 133 1 to reach a consensus? 2 A. My understanding at this point in time is that there was 3 a large delta between Post Office's view of the world 4 and the subpostmasters' view of the world. 5 Q. We know that it did go to mediation, ultimately. What 6 was the purpose of mediation, if there was this large 7 gulf that was unlikely to result in any resolution? 8 A. So the shape of this moved on, after this email, into 9 a slightly different shape of scheme, where the cases 10 would be reinvestigated first and then mediated, which 11 I thought would close the gap between the two parties 12 and give mediation more of a prospect of success. 13 Q. Could we please turn to POL00191954. The same day, in 14 fact, 12 July. If we turn to page 4, we can see there 15 that Alan Bates has been in touch, addressing matters 16 have been discussed, and it comes to a point where you 17 are advising, if we turn to page 1, please -- he made 18 some suggestions on how the Mediation Scheme might be 19 conducted and then we have your advice to Susan Crichton 20 here. You say: 21 "Alan's approach seems similar to what we discussed 22 yesterday, however there are some critical differences: 23 "[Second Sight] seem to be being used as a weapon by 24 the [Justice for Subpostmasters Alliance] to force [the 25 Post Office] into settlement -- that is not their job. 134 1 "The approach assumes that [the Post Office] is 2 liable and will offer settlements (and seems to hint at 3 cash settlements). I'm not sure where [Second Sight] 4 have got this idea from? Any hint that [the Post 5 Office] may be considering cash settlements would 6 encourage the toxic cases, encourage Shoosmiths and play 7 badly in the media. I think we need to put a stop to 8 this quickly." 9 Let's just unpack that paragraph, please. First of 10 all, cash settlements. It seems as though you're 11 surprised by the suggestion of cash settlements in the 12 summer of 2013. Why is that? 13 A. I think if -- I can't see Alan's email here but I think 14 the scheme that he was envisaging was more of 15 a compensation scheme, whereby there was a sort of 16 almost a presumption of liability and it was just then 17 about compensating people, whilst, at this stage, Post 18 Office wasn't -- their instructions weren't that they 19 weren't prepared to accept liability across a wide 20 piste. 21 Q. What is the purpose of mediation if there isn't going to 22 be a financial settlement at the end of it? 23 A. There could possibly be a financial settlement at the 24 end of mediation but, as I say, I think Alan's proposal, 25 which is further down this email chain, wasn't 135 1 a mediation proposal; it sort of assumed more of 2 a compensation scheme structure. 3 Q. "Any hint that the Post Office may be considering cash 4 settlements would encourage the toxic cases ..." 5 Just pausing there, that's an expression we've seen 6 elsewhere. Can you see us with what "toxic cases" were? 7 A. I think that was Alan's choice of words to describe what 8 he saw as particularly difficult subpostmaster cases. 9 Q. So they would be encouraged by the idea of cash 10 settlements: 11 "... encourage Shoosmiths and play badly in the 12 media. I think we need to put a stop to this quickly." 13 Just reading that, what would be the -- I mean, 14 mediation would, at some stage, presumably, lead to some 15 cash payments to subpostmasters, wouldn't it? 16 A. Yes. But, as I said, I think Alan's email below isn't 17 really talking about a mediation-type structure; it's 18 talking more about a compensation scheme structure that 19 assumes liability. So they're two very different 20 concepts and I was concerned here with Post Office 21 conceding the liability point and assuming there would 22 be cash settlements in every case. 23 Q. We're going to move on to December 2013. Can we please 24 turn to POL00327110. It's an email from you to Martin 25 Smith, Jarnail Singh and Rodric Williams: 136 1 "Martin, Jarnail, Rodric 2 "As discussed last week, below is our next thorny 3 question on the interaction between the mediation and 4 criminal prosecutions. 5 "We now have 4 cases in the scheme subject to live 6 criminal investigations/prosecutions. Thus far we have 7 refused to provide any details of these cases to the 8 Working Group. However, the Working Group are concerned 9 that as they have no oversight on these cases, there is 10 no way for them to validate that the applicant's 11 application to the scheme should remain suspended. 12 Underlying this is a general (and in my view 13 unwarranted) distrust by [Second Sight] and the [Justice 14 for Subpostmasters Alliance] of how [Post Office] 15 handles criminal cases." 16 We've spoken a lot today about how, in your view, 17 you had a very hands-off approach to the criminal cases. 18 How is it you formed the view that their distrust was 19 unwarranted? 20 A. I can't recall this particular email and what drove that 21 thought. 22 Q. Presumably, you had a sufficient knowledge of how the 23 criminal cases were being addressed to write in an email 24 that it was an unwarranted distrust? 25 A. All my knowledge about the criminal cases was passed to 137 1 me by the criminal lawyers. I never reviewed any of the 2 criminal cases myself. 3 Q. But you didn't say "in Cartwright King's view it's 4 unwarranted". You had formed a view at this stage about 5 the trust that should be placed in the Post Office's 6 handling of criminal cases. How did you form that view? 7 A. Based on the information I'd seen from the criminal 8 lawyers. 9 Q. Did you just assume that what they had told you was 10 correct, in that respect? 11 A. Yes, because I was relying on them to provide me with 12 that information. 13 Q. Can we please turn to POL00201761. We're now in March 14 2014, 13 March and this is an email from yourself to 15 Rodric Williams. If we actually scroll down slightly, 16 at the bottom you can see there he is asking you, he 17 says: 18 "What are your thoughts on how we should feed to 19 [Second Sight Fujitsu's] response below on [Second 20 Sight's] M014 report?" 21 So that's a specific review that Second Sight are 22 conducting. If we scroll up, please, you say as 23 follows: 24 "Rodric 25 "I think we hold fire until we see the thematic 138 1 report." 2 So, by this stage, Second Sight were working on 3 a second report that addressed themes; is that correct? 4 A. That's correct. 5 Q. "At the [Working Group] meeting on Friday [Second Sight] 6 hinted that their concern is not a comms failure between 7 branch and data centre (and therefore a failure to 8 record transactions to the audit log in the DC) but 9 rather it was where a third party system received the 10 transactions but there is a comms failure that stops the 11 transaction completing at the branch end ... They call 12 this the 'one-sided' transaction issue. The point is 13 not expressly drawn out in M014 but does come out more 14 clearly in M001 -- Castleton." 15 You then say this: 16 "The variation on the comms theme is not directly 17 covered in the [Fujitsu] data integrity documents so we 18 may need to commission further work from [Fujitsu] once 19 we know for certain how [Second Sight] have 20 characterised this in their thematic report. On that 21 basis, I think sending more [information] at [Second 22 Sight] at this stage risks them asking more questions. 23 My preference is for a targeted attack on the [Second 24 Sight] report when we understand the specifics of their 25 position rather than be on the back foot in trying to 139 1 defend the entire Horizon comms infrastructure." 2 Second Sight were a firm of independent 3 investigators that had been instructed by the Post 4 Office to carry out that independent investigation. Is 5 the approach that you're taking here very similar to the 6 approach in litigation? A targeted attack on their 7 report. It does seem rather adversarial, doesn't it? 8 A. Yes, I accept that I adopted a reasonably adversarial 9 approach. 10 Q. Was that based on instructions or was that the way that 11 you saw it should be approached? 12 A. It was a combination of my doubts at this point in the 13 quality of Second Sight's work and that was the general 14 direction and theme that Post Office were taking. 15 Q. Who was setting that direction and theme, in your view? 16 A. The group of individuals I was talking to on a daily 17 basis about the scheme: so Rodric Williams, Belinda 18 Crowe and the other members of the Project Sparrow team. 19 Q. When the scheme was set up, did anybody ever tell you, 20 for example, "This is intended to be like a truth and 21 reconciliation commission", or something along those 22 lines, "Where we're not to take an adversarial 23 approach"? 24 A. Don't recall any -- I don't recall anything along those 25 lines. 140 1 Q. Can we please turn to POL00305714. We're moving now 2 swiftly to the summer of 2014, 11 August, and there is 3 a meeting. Second Sight's draft Part 2 mediation 4 briefing report. It's a teleconference. Amongst the 5 participants you're listed there as the representative 6 from Bond Dickinson; do you recall that meeting? 7 A. No, I don't. 8 Q. Let's have a look at the notes. The record of that 9 teleconference. Could we go perhaps and look at page 3, 10 please, the bottom half of page 3. Thank you: 11 "Lack of evidence 12 "Second Sight expressed concern that the character 13 of the conversation is one of litigants -- 14 antagonistic." 15 That's a fair reflection of the approach you've just 16 described, isn't it? 17 A. I think it waxed and waned so there was certainly 18 a period of time at the beginning where we were very 19 much looking to cooperate with Second Sight, provide as 20 much information as we could, particularly in the 21 individual cases. At times it became more adversarial 22 and at times we tried to row that back again because we 23 realised it had got too adversarial. So I think it 24 moved during the course of, what, the 18 months that the 25 scheme was running. 141 1 Q. "Second Sight claimed this is the antithesis of what the 2 CEO and Chair assured them would be the case." 3 Were you aware of any discussions or instructions 4 from the CEO and Chair about how the scheme should be 5 conducted? 6 A. I don't recall. 7 Q. "Post Office reassured Second Sight that the 8 conversation is not antagonistic. Post Office expressed 9 concern about Second Sight not getting to the truth of 10 the case and not providing evidence. 11 "Post Office stated not trying to fetter Second 12 Sight independence or take things out, just want to get 13 the paper right. Post Office expressed concern that the 14 lack of evidence doesn't take things further. Post 15 Office concerned applicants may feel issues are more 16 widespread than they are. 17 "Second Sight claimed they report the truth, with 18 an objective to help the applicants." 19 Scroll over: 20 "Post Office raised two examples of items that are 21 out of scope, et contract and criminal. 'If you look at 22 criminal matters need to ask why and who are you doing 23 this for'." 24 Just looking back at the attendees, there was nobody 25 from Cartwright King at this meeting. You were the only 142 1 external legal advisor at the meeting. Were these 2 likely to have been your words or a summary of your 3 words? 4 A. I don't recall this call and I think this document was 5 only sent to me a few days ago, so I haven't had 6 a chance to look into it. 7 Q. "Post Office flagged the risk of straying into legal -- 8 layer upon layer of legal argument/dangerous ground to 9 comment on contract -- applicants may rely on as legal 10 advice. 11 "Post Office suggested if there are areas Second 12 Sight are not qualified to investigate -- that might be 13 an issue for Post Office to look at. Had the scope been 14 criminal or contract, wouldn't have employed 15 accountants. 16 "Second Sight concerned late in the day to mention 17 out of scope. 'Don't recall anyone raising this 18 previously'. 'No one previously cried foul'. 19 "Post Office responded that this is not about crying 20 foul. Raising now as out of scope has first raised as 21 a material point." 22 You may not recall this exact meeting at which you 23 were attending but can you recall, in the summer of 24 2014, those kinds of real tensions between the Post 25 Office and Second Sight? 143 1 A. Those issues around scope were points of tension. Post 2 Office thought that Second Sight were exceeding their 3 cope by including commentary on legal issues within 4 their reports, where Post Office had attempted to run 5 the scheme without advancing legal defences, certainly 6 during the investigation phase. But, alongside this, 7 there was also a lot of cooperation in terms of 8 providing information to Second Sight. 9 Q. If we scroll up it's not just scope, there's the section 10 on "Lack of evidence", and it said there, penultimate 11 paragraph: 12 "Post Office expressed concern that the lack of 13 evidence doesn't take things further. Post Office 14 concerned applicants may feel issues are more widespread 15 than they are." 16 Is that a concern that you recall at that time -- 17 A. (No audible answer) 18 Q. -- a concern at the Post Office that Second Sight might 19 be giving the impression that things are more widespread 20 than Post Office thought them to be? 21 A. I don't recall the last bullet point being discussed 22 with me. 23 Q. You were at this meeting, though? 24 A. As I say, I don't recall the meeting. 25 Q. Do you remember that being a concern? 144 1 A. I don't recall that idea coming up. 2 Q. Can we please turn to POL00075810. Moving now to 3 16 October 2014. There's an email, the second email on 4 that page, please, if we scroll down, an email from you 5 to Anthony Hooper, the Chair of the Working Group, and 6 you say: 7 "On our last [Working Group] call you asked Post 8 Office to make clear which cases it considers are 9 suitable for mediation before the face-to-face meeting 10 tomorrow. You asked Belinda to ensure that this 11 information was copied to Second Sight so I have [copied 12 in] Ron and Ian. 13 "Having carefully considered Second Sight's final 14 CRRs ..." 15 Is that the questionnaires? 16 A. No, that's the Second Sight Report? 17 Q. "... Post Office's position on mediation is set out 18 below. We will explain at the meeting tomorrow our 19 reasons for taking these positions." 20 So you've been asked to identify which cases you 21 consider are suitable for mediation and you have 22 responded to the Chair of the Working Group and we have 23 there set out the Post Office's position on mediation. 24 Can we please look at that. So if we scroll down 25 slightly: number 1, unsuitable; number 3, unsuitable; 145 1 number 5, currently minded to consider unsuitable; 17 2 unsuitable; 21 unsuitable; 29 unsuitable; et cetera, 3 et cetera, et cetera. 4 At that point, all of the cases were listed by 5 yourself as being unsuitable for mediation; do you 6 recall that? 7 A. I'm trying to think if there was any commonality in 8 those cases that led to that decision. Because this is 9 towards the end of 2014, the cases to which were 10 suitable tended to move through the scheme quicker, so 11 they may well have already passed through and what was 12 left were the ones which were more heavily contested, 13 where Post Office thought they were unsuitable. So the 14 fact that that list is nearly all unsuitable may be 15 a product of where we are in the scheme at that point in 16 time. 17 Q. If we scroll up slightly: 18 "On our last [Working Group] call, you asked Post 19 Office to make clear which cases it considers are 20 suitable for mediation before the face-to-face meeting", 21 so you have been asked which are suitable and your 22 response is, in effect, all were unsuitable? 23 A. I suspect, at this point in time, these were the cases 24 that were pending decision on whether to go to 25 mediation. So by the end -- if you can scroll up ever 146 1 so slightly so I can see the date. So October '14, at 2 this point the cases will all have been at different 3 stages, some will be waiting investigation, some will 4 have been investigated by Post Office, some will have 5 been investigated by Second Sight and some will probably 6 have gone through to mediation, so I think that's just 7 a snapshot in time of those cases. 8 Q. Do you think that, in reality, by that stage of 2014, 9 this was a properly functioning scheme? 10 A. I think it began to break down -- well, the Working 11 Group began to break down around this time and towards 12 the end of 2014. 13 Q. Was the Working Group was meant to determine which ones 14 were suitable and, at least on the face of this email, 15 it's not actually receiving any that the Post Office 16 considered to be suitable? 17 A. Well, as I say, this is a snapshot. How many cases are 18 there, about ten? There are 150 cases in the scheme. 19 Q. Could we please turn to POL00141727, please. Still in 20 October, 31 October now, an email from you to Patrick 21 Bourke: 22 "Patrick 23 "In recent CRRs, I've noticed [Second Sight] using 24 language such as '[the Post Office] has failed to 25 disprove the applicant's assertion' -- see paragraph 4.2 147 1 attached for an example. This is building in 2 a presumption that the applicant is correct and that 3 [the Post Office] has to disprove the position, even 4 where the applicant has put forward no corroborating 5 evidence. This will lead to [the Post Office] losing 6 a lot of battles. I think this may be a point to raise 7 with [Second Sight] on our next call as it's not within 8 their gift to apply an evidential presumption in favour 9 of the applicants. If anything, the presumption should 10 go in [the Post Office's] favour given that (i) we are 11 notionally the defendant and (ii) no one has yet proved 12 a flaw in Horizon." 13 Again, real tensions in that period between the Post 14 Office and Second Sight, it seems? 15 A. Yes, there were tensions during this period. I would 16 just note that the way that Second Sight were asked to 17 produce their reports by the Working Group is they were 18 required to give an opinion where there was evidence and 19 then identify issues on which they didn't believe there 20 was sufficient evidence to offer an opinion. So the 21 concern here is they weren't using the structure that 22 was set by the Working Group. 23 Q. They weren't, sorry? 24 A. Using the structure for their reports that was set by 25 the Working Group. 148 1 Q. I think Sir Anthony Hooper's evidence to the Inquiry was 2 that he wasn't particularly concerned by the paperwork 3 coming from Second Sight at this stage. Would you take 4 a different view? 5 A. I didn't see Sir Anthony Hooper's evidence and, 6 I apologise, I'm not quite sure what the context was for 7 his comment. 8 Q. Is your evidence that you personally had concerns about 9 Second Sight's paperwork as at October 2014? 10 A. I had concerns at that point about the quality of the 11 work product they were producing. 12 Q. Can we please turn to POL00176599. 7 November 2014, 13 this is an email that the Inquiry has seen before, it's 14 Martin Smith to you and others. He says: 15 "From a criminal perspective, we would advise as 16 a general rule against the disclosure of any documents 17 from a criminal file which have not previously been 18 disclosed to the defendant during the course of the 19 original proceedings. To do otherwise may well enable 20 the defendant or Second Sight to attempt to criticise 21 the way in which the prosecution was conducted or how 22 the Prosecution Policy was applied. Clearly such 23 arguments in a public arena would be uncomfortable for 24 [the Post Office]." 25 Did that raise any concerns for you? 149 1 A. My recollection is that we, WBD, on the WBD side, 2 looking at it from the scheme perspective, were keen to 3 use the material in those files because we thought it 4 helped explain the cases, and Martin and Cartwright King 5 were pushing back against it. I think ultimately that 6 question was taken up to the Working Group and 7 Sir Anthony gave some directions on how to proceed. 8 Q. Can we please now look at POL00214323. 9 December 2014. 9 Second Sight have provided a list of questions that they 10 are seeking answers to. You can say there there's an 11 attachment, "Second Sight Questions for [the Post 12 Office]". This is an email from you to Belinda Crowe 13 and others and you say as follows: 14 "There are some sensible questions in here but there 15 is also a massive fishing expedition for information 16 that does not address issues raised by applicants. I've 17 highlighted all the questions that I think are just 18 fishing for info in blue. There are also a number of 19 questions that are outside the scope of the scheme. 20 Most telling is the fact that there are only a handful 21 of questions about Horizon; nearly all the questions are 22 about accounting practices." 23 I think you've accepted already that the approach 24 that the Post Office was taking was adversarial in 25 nature. Is this an example of that because, of course, 150 1 Second Sight had been appointed as independent 2 investigators, they'd made a request to the Post Office 3 for information, and you, a lawyer, on Post Office's 4 behalf, have gone thorough that and reached the view 5 that it's what you might call a fishing expedition in 6 litigation, and are addressing there which ones should 7 and shouldn't be answered. 8 A. As I said earlier, the adversarial nature of it waxed 9 and waned over time. Here I'm expressing concern about 10 some of the questions but my understanding is, actually, 11 that a good number of those questions -- I can't 12 remember the exact amounts -- were actually answered. 13 Q. We can have a look -- I can take you, if you'd like, 14 to -- I may be able to take you to that document perhaps 15 tomorrow morning. But is your approach here 16 particularly adversarial, given that Second Sight had 17 been appointed as independent investigators? 18 A. No, I don't think so I'm just advising Post Office on 19 what I think is the relevance of the questions and, if 20 you look at the last part there, it says, "My guess is 21 this is going to take quite a lot of work to answer all 22 these questions", and, as I recall, it was quite a lot 23 of work but a lot of the questions were answered. 24 Q. Well, let's have a look at that. Can we look at 25 POL00021863, please. Same month, December 2014, I think 151 1 we're in 29 December now. If we can turn to page 3 2 please, Belinda Crowe emails, she says: 3 "Mark/Paul/Andy Parsons -- would you be able to 4 prepare the schedule of questions to which Post Office 5 is not prepared to respond and the reasons why -- it 6 would be that some of the text I have included in the 7 letter is best placed in the schedule." 8 So there's a letter that's being prepared to Second 9 Sight in relation to the questions they've asked. If we 10 scroll up, please. There's a response from Mark 11 Underwood, he says: 12 "Hi Belinda, 13 "As requested please find attached a list of 14 questions we are not providing answers to, and the 15 reasons why. 16 "Andy -- there is one question I have highlighted. 17 Did we actually your send out the response with regards 18 to suspense accounts as I am unsure? 19 "In total we are not providing answers to 41 of the 20 1110 questions posed (37%). Splits by reason in the 21 table below ..." 22 He there sets out the table. So I think your 23 evidence just before was that you did provide answers to 24 lots of the questions. 37 per cent of those questions 25 you weren't answering, 25 per cent because you 152 1 considered them to be fishing. Why even use "fishing" 2 as an expression in relation to your independent 3 investigators? 4 A. This is Mark Underwood's assessment of those questions. 5 I know that this -- these actually went through 6 a two-stage process, so I think this is version 1 of the 7 answers and then there was a discussion with Second 8 Sight, I recall, where they clarified some of the 9 questions. There was a discussion with the Working 10 Group where the Working Group advised that some of the 11 questions were too wide and a version 2 was produced 12 with a lot more answers. 13 Q. Would you accept that's quite a high percentage of 14 questions not being answered at that stage? 15 A. At that stage, yes. 16 Q. If we scroll up, we can see your response. You say: 17 "I've tried to flesh out some of the 'reasons' so 18 that it doesn't look like we are just stonewalling. 19 I also think there are a few questions that we may be 20 able to answer or at least fudge an answer. I think it 21 would be better to try and answer a question than just 22 refuse entirely wherever possible." 23 So were you trying to push the Post Office to at 24 least answer some more questions. 25 A. If possible. From memory, some of the questions were 153 1 very wide to the point where they were -- you know, it 2 would require disproportionate effort and what I was 3 trying to encourage Post Office to do was at least try 4 to answer a question, even if they couldn't provide 5 a full answer. 6 Q. You asked to see the questions and, I think, the table, 7 and I can actually bring that on to screen, that is 8 POL00021864. Is this what you had in mind? 9 A. No, I had in mind the actual final version of the 10 answers that were sent at the end of January. 11 Q. Well, this is attached to that email that I've just 12 taken you to, where you've used the words "fudging 13 an answer" and we can see 4.6d, for example, the 14 question is, Second Sight are asking Post Office: 15 "Any instance in the last 3 years in which Post 16 Office initially determined that a cash loss was 17 attributed to a subpostmaster but where it was 18 subsequently found that the subpostmaster was not 19 responsible for the loss." 20 The reasons for not providing an answer is: 21 "Request general information on the occurrence of 22 certain events, without reference to it being raised by 23 the applicants." 24 Somebody has inserted there: 25 "Note: I think we could fudge the answer to this as 154 1 follows ..." 2 If we scroll down. 3 "As explained to Second Sight previously, 4 subpostmasters can challenge any cash loss or 5 transaction correction in their branch in relation to 6 ATMs. In many circumstances, the information needed to 7 determine the cause of any discrepancy is only held by 8 a subpostmaster. There will therefore have been 9 occasions when a transaction correction against 10 a subpostmaster has been challenged and reversed -- this 11 is however standard operating practice." 12 Can you assist us with who would have inserted that 13 suggested form of words? If we scroll out again we can 14 see the reference. In your email, you referred to "may 15 be able to answer or at least fudge an answer", and, if 16 we scroll up we can see it says, "Note: I think we could 17 fudge the answer to this as follows". Does it suggest 18 that that proposed answer is coming from you? 19 A. It may have been but I was only provided this document 20 a couple of days ago so I haven't had a chance to 21 consider it. 22 Q. Is it likely, given that you've used the word "fudge" in 23 a covering email on the same date, that that is in fact 24 coming from you? 25 A. I think that's possible, yes. 155 1 Q. Taking that as an example, why is it that that would 2 have been something that couldn't be answered by the 3 Post Office in response to a request from Second Sight? 4 A. So my recollection is that Post Office was only given by 5 the Working Group a very short period of time to 6 respond. I think it might have been a month, I may have 7 that wrong. And if you look at that question, it says, 8 "Any instance in the last 3 years in which Post Office 9 initially determined that a cash loss was attributed to 10 a subpostmaster". That is a very large period of time 11 to cover across 10,000 branches. So my view is that 12 I don't think it would have been practical to be able to 13 get to the bottom of that answer within the time 14 available. 15 Q. Why wouldn't that have been the response? Why did you 16 feel a need to fudge an answer to your independent 17 investigators when the explanation could well have been, 18 as you've just said, "That is not reasonably practicable 19 in the time"? 20 A. Well, I think the answer that's given there is trying to 21 assist them in -- to give them a steer as to why this 22 information may not be relevant or needed but I'd have 23 to see the final version of the document to decide where 24 we actually ended up with this. 25 Q. Is "fudging" a steer or is "fudging" fudging? 156 1 A. No, I think we couldn't answer the question because 2 there wasn't enough time. I think the answer given 3 there, which I'm just reading again now, is an attempt 4 to try to give a steer as to what Post Office's position 5 was. 6 Q. Isn't it, yet again, taking a particularly adversarial 7 approach to the independent investigators? 8 A. Again, I don't know what time this document was -- 9 sorry, I lost the date, I think you said it was 2014. 10 My recollection is that, after this, there was a meeting 11 with Second Sight to discuss the questions that couldn't 12 be answered to try to reframe them, narrow them, recast 13 them, if needed, so that Post Office could then answer 14 them so, yeah I accept that, to an extent, this is 15 adversarial but it's also -- as I say it waxes and wanes 16 and then there's periods of cooperation as well. 17 Q. When in your view did it wane? 18 A. Well, for example, sitting down with Second Sight and 19 talking through these questions and trying to get to 20 a mutual position on them. 21 Q. Could we please turn to POL00150460. We're still in 22 December 2014, the very end, 31 December 2014, and there 23 has been the Westminster Hall debate and the Post Office 24 is formulating a response to a case related to Members 25 of Parliament's queries. You're emailed by Melanie 157 1 Corfield, who, if we scroll down slightly, is emailing 2 you and Angela van den Bogerd and others. She says: 3 "On the criminal cases the main message to land now 4 that [Post Office] investigations are completed is our 5 view that there is nothing that undermines the safety of 6 convictions (but legal routes have of course never been 7 closed to people). This will be unpalatable in the 8 extreme to some and any meetings will certainly be made 9 public, so we need to be in a position where we can 10 release supporting, non-case specific documentation to 11 counter inevitable allegations as much as possible." 12 So, "On the criminal cases the main message to land 13 now that the [Post Office] Investigations are completed 14 is our view that there is nothing that undermines the 15 safety of convictions"; what investigations did you 16 understand that to be referring to? 17 A. I think that's a reference to the investigations through 18 the mediation scheme. 19 Q. Having been somebody involved in the Mediation Scheme, 20 quite heavily in this period, is it your view that the 21 result of that mediation taking place was sufficient for 22 the Post Office to form a view that there's nothing that 23 undermines the safety of convictions? 24 A. Every case in the scheme -- sorry, the investigation 25 reports for every case in the scheme went to Cartwright 158 1 King for review and I don't recall Cartwright King 2 raising anything in those reports that caused them to 3 question the safety of a conviction. 4 Q. I'm going to move to the termination, proposed 5 termination, of Second Sight. Can we please look at 6 POL00022352. We're now in February 2015, 5 February 7 2015. Patrick Bourke emails you and he says: 8 "Dear Andy 9 "We spoke briefly. 10 "I would be grateful if [Bond Dickinson] could 11 produce a short bit of advice on the manner of 12 implementation and consequences of a future decision to 13 terminate Second Sight's engagement. 14 "The advice needs to cover (but should not be 15 limited to if other matters occur) the nature and extent 16 of [the Post Office's] ability to control access to, and 17 uses of, all and any information it has provided [Second 18 Sight]; the duration and effectiveness of that control 19 in particular with regard to the Part II report they are 20 preparing; and the legal and practically effects of the 21 30-day notice period which the letter of engagement 22 provides for. 23 "I am also interested in the effects, in legal and 24 practical terms, of a termination given that the letter 25 of engagement tries to make it clear that, although they 159 1 are engaged by us, they in fact work to the [Working 2 Group]. You can imagine the sorts of arguments which 3 might be made." 4 Now, this is very shortly after the Select Committee 5 appearance of Second Sight and Paula Vennells. It seems 6 from this email, were you aware, that it was the 7 intention Post Office from this point to terminate the 8 contract with Second Sight and not to have a Part Two 9 Report? 10 A. I -- either shortly before or shortly after this, 11 I think I was provided with a -- I can't remember if it 12 was a Board paper or steering group paper about the 13 termination of Second Sight. So I was aware that that 14 was the direction of travel that Post Office were 15 heading in. 16 Q. Were you aware that one of the reasons why they wanted 17 to terminate Second Sight at that point was before the 18 Part Two Report could be completed? 19 A. The second version of the Part Two Report, the first 20 version had already been produced by this point. 21 I don't remember it about stopping the Part Two Report. 22 I remember the concern was more about ensuring that 23 Second Sight focused on completing their investigations 24 into individual cases before they focused on the Part 25 Two Report. 160 1 Q. Shall we look at the advice that you gave? That's 2 POL00006364. It has "Bond Dickinson" on the final page, 3 6 February 2015. Is this is an advice that you wrote? 4 A. Yes. 5 Q. If we scroll down, please, there's a section on 6 "Contract Termination", so: 7 "The contract between [Post Office] and [Second 8 Sight] is governed by the Engagement Letter dated 1 July 9 2014 and a Side Letter ..." 10 If we scroll over the page, please, to Second 11 Sight's position during the notice period. Here you're 12 addressing the position of Second Sight during that 13 30-day notice period. You say as follows: 14 "Under the [engagement letter, Second Sight] is 15 required to continue providing the Services until the 16 end of the 30-day notice period and is entitled to be 17 paid for any work done. 18 "There is however no converse obligation on Post 19 Office to keep asking [Second Sight] to do work during 20 the notice period or at any other time. 21 "[Second Sight] may try to argue that they have 22 a right to continue to work during the 30-day notice 23 period. We consider that this argument would be 24 difficult for [Second Sight] to advance. First, the 25 terms of the [letter] simply do not provide for this. 161 1 Second, effectively [Second Sight] would be arguing that 2 there was a minimum guaranteed volume of work due to 3 them when no such guarantee was ever given. Third, 4 [Second Sight] are paid on an hourly rate so their pay 5 is not conditional on the completion of any work. 6 "One complicating factor is that the Services 7 include [Second Sight] 'assisting with any reasonable 8 requests made by the Working Group and/or Post Office'. 9 Although the Working Group has no legal standing to 10 enforce the [Engagement Letter], decisions of the 11 Working Group can nevertheless influence [Second 12 Sight]'s work. If during the notice period the Working 13 Group were to direct [Second Sight] to complete some 14 work (within the scope of the services), then [Second 15 Sight] would be entitled to complete this work and 16 expect payment. 17 "To avoid this situation, we would therefore 18 recommend that in tandem with the termination of [Second 19 Sight], the Working Group is also disbanded so that it 20 cannot give any directions to [Second Sight]. This will 21 then enable Post Office to direct [Second Sight] to 22 immediately cease all work." 23 You've given in your witness statement a number of 24 reasons why it was a sensible idea to terminate the 25 Working Group. But, looking at this now, is 162 1 a significant consideration in the disbanding of the 2 Working Group that the effect of that would be to stop 3 Second Sight from carrying out any further work? 4 A. This advice was from the legal perspective on that 5 decision and, from a legal perspective, if Post Office 6 wanted a clean exit, then it seemed to me that they 7 needed to disband the Working Group as well. 8 Q. Had you had discussions with the Post Office, their 9 intention was to end Second Sight's work and to prevent 10 them from being provided with any other instructions by 11 the Working Group? 12 A. No, that wasn't my understanding. My understanding is 13 they wanted to bring to an end the current arrangement 14 and replace it with a new arrangement that could see 15 Second Sight complete their work. I can't now recall 16 whether that explicitly included Part Two or not. 17 Q. Let's look at the disbanding of the Working Group. 18 Let's look at POL00021908. There was a draft paper that 19 was circulated for the Sparrow subcommittee. We see 20 that if we scroll over the page on page 2, Mark Davies 21 is sending a first draft of that paper. 22 We then have, on page 1, your views. I'll just take 23 you to a few passages from this email: 24 "Belinda 25 "A few thoughts below on the Sparrow paper. In 163 1 general, I agree with the idea of disbanding the 2 [Working Group] as (i) it offers no real value and (ii) 3 it is the source of much of the criticism of [Post 4 Office Limited]. However, I can see some challenges 5 with the other two limbs of proposal." 6 Then you go on to address those two limbs. First is 7 Second Sight's role. You say: 8 "If [Second Sight] are independently contracted by 9 applicants then I cannot see how [the Post Office] can 10 dictate [Second Sight's] scope of work." 11 So one of the proposals was to let applicants 12 themselves appoint Second Sight; is that correct? 13 A. Yes. 14 Q. Your view was that that was not sensible because the 15 Post Office would lose control? 16 A. Yes. In particular, in terms of timing, because the 17 great difficulty to this point was that Second Sight 18 were a long way behind schedule. 19 Q. If we scroll down, we can see a second suggestion: 20 mediating all non-criminal cases. You say as follows: 21 "Mediating all non-criminal cases of course means 22 mediating lots of hopeless cases. Mediating 23 unmeritorious cases raises applicants' expectations 24 unfairly and may in fact create greater animosity and 25 complaints (certainly that was my experience from M002). 164 1 My recommendation would be for [Post Office] to take 2 a tougher line and only we date meritorious cases (even 3 if the bar for this is set low)." 4 Just pausing there, wasn't that the very purpose of 5 the Working Group itself, to vet those applications to 6 work out which were meritorious so they could go 7 forward? 8 A. That's what I expected at the outset, however, through 9 a series of decisions of the Working Group during the 10 course of 2014, Sir Anthony Hooper decide to take 11 an approach which lowered the bar on whether cases 12 should go to mediation or not. 13 Q. Did you disagree then with Sir Anthony Hooper's 14 approach? 15 A. I did disagree with that decision, yes. 16 Q. Aren't you here, though, suggesting, imposing a bar, 17 albeit a low bar? 18 A. The distinction here is that the Working Group were 19 prepared to put cases through to mediation where the 20 subpostmaster had been convicted. That created 21 a problem for Post Office because it had been advised by 22 its criminal lawyers not to mediate with anyone with 23 a conviction and that tension, in my view, was probably 24 the root cause of the Working Group breaking down at the 25 end of 2014. 165 1 Q. We saw earlier that email where -- I know you said it 2 was just a snapshot, but a very high number of cases had 3 been deemed unsuitable by the Post Office. How do you 4 get from a position where you are determining that 5 a large number are unsuitable to saying, "Actually, 6 we'll mediate all non-criminal cases"? 7 A. So, again, I think you have to be careful with that list 8 because I feel it may not be a -- I think it may be 9 a subset of subpostmasters. I recognise some of the 10 numbers on those lists and I think number of them were 11 subpostmasters with convictions, though I can't remember 12 all the names and the numbers now. So I wouldn't draw 13 anything from that list. I think this is a proposal 14 here to say Post Office should be looking to mediate 15 meritorious cases even if the bar is low. 16 Q. Reflecting now on all those emails and just your 17 recollection of the mediation process; do you think that 18 the process itself was doomed fail? 19 A. No, I don't believe so. I think people went into it 20 with good faith. I think the breakdown of -- I think 21 the relationship with Second Sight could have been 22 better -- between Post Office and Second Sight. I think 23 that could have been more collaborative. I think that 24 would have required more compromise on both sides to 25 reach that stage. But I still think that the Mediation 166 1 Scheme did a lot of good. 2 Q. Do you think, reflecting on it, you personally should 3 have taken a less adversarial approach? 4 A. Towards Second Sight? Yes, with hindsight I wish -- 5 I think there were some points where we were fair in 6 criticising Second Sight but there were somewhere we 7 were too adversarial. 8 Q. I'm going to move on now to the topic of remote access. 9 I will I'll go thorough a few documents and then we'll 10 take our afternoon break but then I'll stick with remote 11 access for the rest of the day. It's possible I might 12 move on to one other topic before we finish for the day. 13 Could we start, please, with POL00031456. So we're 14 starting 1 February 2015, and there are discussions with 15 Melanie Corfield and Mark Underwood. If we scroll down 16 slightly -- actually, let's start on page 3. Melanie 17 Corfield emails Rodric Williams. 18 "What would be the circumstances for [Post Office] 19 adding a transaction (we did so once in 2010 using 20 functionality)? I know [very] rare, strict authority 21 but would we need to ever do this?" 22 If we scroll up to page 2, there's an email from 23 you, if we scroll up slightly more, and you respond to 24 say: 25 "Mel 167 1 "Sorry -- we've never got any clarity of this point. 2 The reality is that the use of the manual balancing 3 process is so rare that there is no protocol for its 4 use." 5 If we scroll up, we see more correspondence on the 6 issue. Page 1, the middle of page 1, and you're still 7 involved in this email chain: Mark Underwood to Melanie 8 Corfield and you. Mark Underwood says: 9 "It comes back to Andy's point about the question 10 being wrong. 11 "'Access' can mean view ... 12 "The question is can transactions be edited 13 remotely -- to which the answer is no. 14 "Once a transaction is in, it cannot be removed or 15 edited in any way -- all that can happen is for 16 additional transactions to be put in to correct 17 mistakes -- all of which are visible to the 18 [subpostmaster]." 19 Now, we know now that that is wrong: 20 "If PV and MD [that's Paula Vennells and Mark 21 Davies] are still confused -- I would just send them the 22 below extract from the paper as I think it makes it 23 quite clear what can and cannot be done. 24 "Alternatively, we treat any questions about [remote 25 access] with the contempt they deserve -- why on earth 168 1 would [Post Office] have a secret bunker in Bracknell 2 accessing [subpostmasters] accounts?" 3 Then it sets out there the issue and the response. 4 If we scroll up, we see a response from Melanie 5 Corfield, and she says: 6 "At one time our line was simply that there is no 7 remote access but for most people I think that sounded 8 unlikely given that you have to have [full] support etc. 9 It has a different meaning for different people. 10 I completely agree re showing contempt about the 11 allegations on this subject! It's a prime example, 12 actually, of our rigour and investigating allegations 13 that are in the realms of fantasy ..." 14 What was your view on receiving those emails? 15 A. It appears to me that Mark Underwood has set out 16 factually what we understood the position to be at that 17 time. Admittedly that was wrong. The language around, 18 "and treat with contempt", I think is probably too 19 strong. 20 Q. Did you think that at the time or were those the kinds 21 of emails that you would receive on the topic of remote 22 access? 23 A. I think at the time, people thought it was a very 24 unlikely possibility that remote access was the actual 25 cause of losses in branches. And at this time, going 169 1 through the Mediation Scheme, determining the cause of 2 a loss in the branch is the central, central question. 3 So people generally thought, including myself, that 4 remote access was never going to really move forward 5 these cases, through the scheme. 6 Q. Can we please turn to POL00312743. The bottom of 7 page 1, over into page 2. March 2015: 8 "All 9 "We've been through the prosecution file for M056 -- 10 Wylie. There will be further documents to disclose 11 including the attached witness statement by Gareth 12 Jenkins. At the top of page 3, Jenkins states: 13 "'I also note a comment being made about it being 14 [possible] to remotely access the system. It is true 15 that such access is possible; however in an analysis of 16 data audited by the system, it is possible to identify 17 any data that has not been input directly by staff in 18 the branch. Any such change to data is very rare and 19 would be authorised by Post Office Limited. As I have 20 not had an opportunity to examine data related to this 21 branch, I cannot categorically say that this has not 22 happen in this case, but would suggest it is highly 23 unlikely'." 24 You say as follows, you say: 25 "I'm pretty certain that Jenkins is referring to the 170 1 balancing transaction process that allows [Fujitsu] to 2 input new transactions rather than edit old 3 transactions. Nevertheless, this will be a red rag to 4 Second Sight." 5 Why would it be a red rag to Second Sight? 6 A. Because they were concerned about anything around remote 7 access. 8 Q. The suggestion here being not just old transactions can 9 be edited but that new transactions can be input. 10 A. Correct. 11 Q. Thereby adding some substance to the allegation of 12 remote access, potentially? 13 A. It would -- it adds substance to the question of whether 14 it was possible or not. I don't think that would change 15 the question of whether remote access was actually 16 a probative cause of losses in branches. 17 Q. If we scroll up, please. Rodric Williams to you, he 18 says: 19 "This is consistent with our responses/statements 20 about remote access isn't it, ie you can add data/inject 21 a balancing transaction, and if done 'it is possible to 22 identify any data that has not been input directly by 23 staff in the branch'?" 24 Your response is at the top: 25 "Not quite -- we say that transactions entered by 171 1 [subpostmasters] cannot be edited but we don't go on to 2 say that [Fujitsu] can input new transactions in 3 exceptional circumstances. This information would 4 therefore be entirely new news to [Second Sight]." 5 Were you, by this stage, quite concerned about the 6 information that had, so far, been disclosed about 7 remote access? 8 A. Yes. So when I first found out about the ability to 9 inject balancing transactions, was back in 2014. I'd 10 advised Post Office that they should give that 11 information to Second Sight and it's a point of regret 12 for me that I didn't press them to do that much sooner 13 than now. 14 Q. In response to this issue being raised in March 2015, 15 are you aware of that information then being disclosed 16 to Second Sight? 17 A. I think it was provided to them the next month. 18 Q. Can we please look at WBON0001024. If we could start 19 please on the bottom of page 3, onto page 4. We're now 20 in 2016, July 2016. You are emailing counsel, Anthony 21 de Garr Robinson, and you say, over that page: 22 "Your comments on the [letter of response] ..." 23 So, at this stage, on the letter of response to the 24 Group Litigation; is that right? 25 A. Correct. 172 1 Q. "... are understood and very [helpful]. We'll rework 2 the general structure of the letter and then come back 3 to you to discuss specific points. 4 "Off the back of yesterday's call, (I think) I now 5 have a better grasp of the central tenants [sic] of our 6 case. I've tried to capture these below just to see if 7 it matches your thinking." 8 Then it's at 2 you address remote access. So: 9 "The branch accounting system (including the role of 10 Horizon within the accounting system) is built around 11 the principle that the postmasters approve every 12 transaction that goes into their accounts: 13 "a. They (or their assistants) enter all 14 transactions conducted in branch; and 15 "b. They (or their assistants) approve any 16 transactions originating from [Post Office] (such as 17 transaction corrections)." 18 In brackets it says as follows: 19 "Note -- the issue of remote access is critical 20 here -- my understanding is that [Post Office] will not 21 use a balancing transaction without postmaster consent 22 in which case this complies with the above principle but 23 we need Deloitte to confirm this. Absolutely." 24 Are you able to assist in whose words those are? Is 25 that your email or is that somebody inputting into your 173 1 email? 2 A. I can't tell. 3 Q. Certainly by this stage, the summer of 2016, you 4 recognised the critical nature of that remote access 5 point? 6 A. Yes. 7 Q. POL00029990. We have an email from yourself to Jane 8 MacLeod, Rodric Williams and others. It's further to 9 some Deloitte investigations: 10 "Before tomorrow's steering group meeting I wanted 11 to give you a heads-up on the 'remote access' issues ... 12 "Deloitte has identified that a small number of 13 super-users at [Fujitsu] have the ability to delete and 14 edit transactions from the branch database. The [branch 15 database] is the central server on which all branch 16 transactions are recorded before being passed to other 17 servers ... This access is subject to strict controls 18 and Deloittes current understanding is that it would not 19 be possible to delete or edit transactions without 20 leaving a footprint in the audit trail. They also 21 believe that (i) this type of access is not unusual and 22 (ii) the likelihood of someone actually making such 23 changes is extremely low. This super-user access is 24 a separate, yet more extensive, process to the balancing 25 transaction process we previously knew about." 174 1 Then you go on to identify what the issue is: 2 "The immediate concern is that this means that [the 3 Post Office's] historic statements about not being able 4 to edit or delete transactions appear, at least on face 5 value, to have been materially incorrect. This 6 therefore may bring into play: 7 "(i) Allegations of deceit in that the Post Office 8 has made false statements; 9 "(ii) A basis for unwinding the settled cases; and 10 "(iii) The possibility for some claimants to extend 11 their limitation deadline ..." 12 If you scroll down, you say: 13 "Once we have a much clearer picture, we may wish to 14 seek Brian Altman's advice on whether this issue causes 15 any concerns for criminal law/disclosure perspective. 16 We may also need to give consideration to whether to 17 inform the [Criminal Cases Review Commission]." 18 So, first of all, this is presumably quite 19 a significant moment for you, having been involved in 20 the issue of transaction corrections for quite a number 21 of years now? 22 A. The issue of balancing transactions. 23 Q. The issue of super-users? 24 A. Sorry, yes, well, we were -- by this point, we'd seen -- 25 I'd been provided with copies of Deloitte's earlier 175 1 reports and the Swift Review which pulled this issue 2 out. So this is further investigations by Deloitte. 3 Q. You've identified there under "Issues", slightly further 4 up, some civil issues. 5 A. Mm-hm. 6 Q. But then you refer also to seeking Brian Altman's advice 7 and the Criminal Cases Review Commission potentially 8 having to inform them. Is this, again, an example 9 where, although you are not, as you've said many times, 10 a criminal law expert, you are touching upon matters 11 that affect the criminal law potential appeals? 12 A. Here, yes, because I also recall that, a year earlier, 13 we'd already got Brian's advice on the remote access 14 issues. 15 MR BLAKE: Thank you. 16 Sir, I will be continuing with more questions on 17 remote access but perhaps that is an appropriate time to 18 take our mid-afternoon break. 19 SIR WYN WILLIAMS: Yes, by all means. 20 MR BLAKE: If we could come back at 3.35. 21 SIR WYN WILLIAMS: Certainly. 22 MR BLAKE: Thank you very much. 23 (3.18 pm) 24 (A short break) 25 (3.35 am) 176 1 MR BLAKE: Thank you. Can we please turn to POL00245978, 2 please, the bottom of the first page into the second 3 page, please. We're now on 27 November 2016 and you 4 have drafted a letter to Freeths in response to their 5 last substantive letter and you say as follows: 6 "The majority of this letter addresses legal and 7 procedural points. The key substantive area is 8 section 9 on remote access ... 9 "Following feedback from Deloitte, we cannot 10 definitively say that [the Post Office] (as distinct 11 from [Fujitsu]) never had the ability to change Horizon 12 data because Deloitte and the current staff at [Fujitsu] 13 just don't have enough knowledge of Old Horizon to 14 confirm this. This was a point made in an early draft 15 but it has now been removed. 16 "We have (I hope) now found a formulation of words 17 that avoids having to overtly throw [Fujitsu] to the 18 wolves and avoids any risk of waiving privilege in any 19 documents, but still gives us a fair story to tell." 20 What did you mean there by throwing Fujitsu to the 21 wolves? 22 A. I think this letter is addressing not just remote access 23 but the statements that Post Office had made 24 historically about remote access and the view was that 25 a lot of the previous incorrect statements about remote 177 1 access were because that Fujitsu had given us incorrect 2 information or had given incorrect information to Post 3 Office. 4 Q. Was that your view, was that the view of the Post 5 Office, or was it both? 6 A. Both. 7 Q. You say: 8 "We have also toned down the admissions of making 9 incorrect statements, though they are still there. 10 I hope this might make it easier to get this letter 11 cleared through [the Group Executive] and [Fujitsu]." 12 So it seems Fujitsu are clearing the form of words 13 that go to Freeths; is that correct? 14 A. Where we were writing letters on technical issues then 15 that type of language would go past Fujitsu to get their 16 confirmation that they thought it was accurate. 17 Q. If we scroll up, please, we have a response, from Rob 18 Houghton. He says: 19 "I personally think we overdo the response on access 20 and I've suggested some changes." 21 If we scroll up again there is a response from 22 Thomas Moran, also of Post Office. He says: 23 "My overall conclusion is that could very well have 24 serious implications on the proceedings and we 25 absolutely have to make sure we are briefing and 178 1 securing the support of the right people internally 2 before issuing. 3 "As I'm the lucky man with the responsibility for 4 this as the [steering group] Chair, I must ask that we 5 get this properly reviewed by Mark Davies and also 6 Angela who I don't think are on this list. In 7 particular we need a full assessment and media plan 8 based on the worst case consequences in place before 9 sending." 10 Can you assist us with the position within the Post 11 Office, the concern at that time, regarding the letter 12 that was going to be sent to Freeths? 13 A. If it's the letter I'm thinking of, it was making 14 concessions that Post Office had previously made 15 incorrect statements about remote access, and that was 16 the concern. 17 Q. There's reference here to Mark Davies. 18 A. Mm-hm. 19 Q. Was he somebody you knew? 20 A. I knew of him. He was the Communications Director. 21 Q. How involved was he in these kinds of issues, from what 22 you saw? 23 A. He would occasionally get involved in some of the legal 24 issues that were coming up in the scheme. 25 Q. Is it a fair reading of this correspondence that there 179 1 was real concern within the business at this stage about 2 this admission? 3 A. Yes, there was real concern about making this admission. 4 Q. Could we, please, turn to POL00415440. This is actually 5 the day before that final email in the chain but it all 6 relates to the same issue, the same letter. It's from 7 you to counsel and you say: 8 "Rod has gone through the remote access section. 9 The content is broadly the same. He has reordered the 10 structure (which I like a lot) and toned down the 'mea 11 culpa' (but I think this still works)." 12 Was that something the Post Office was doing, toning 13 down the mea culpa? 14 A. My recollection at this time is this letter does clearly 15 state that Post Office made incorrect statements about 16 remote access. There was some debate about the language 17 that was used then to describe that situation but 18 I don't recall that there was any real debate about the 19 direction the letter needed to go in. 20 Q. If we look at POL00246005, at the bottom of that page. 21 The bottom of the page, please, this is 28 November: 22 "Please find attached the updated 'remote access' 23 wording. The general direction of your comments was to 24 be less apologetic in on to and less repetitive, both of 25 which we've tried to accommodate in the attached. 180 1 "The key issue is how far we want to go in accepting 2 that incorrect statements have been made in the past. 3 I believe that some of the drafting/tone changes are 4 coming out of us not having a settled view on this 5 issue", and you suggest a call. 6 So you say there the general direction of your 7 comments was to be less apologetic. Where in particular 8 was that coming from, in your view? 9 A. I can't now recall. We'd have sought comments on that 10 drafting from probably the people on this email chain. 11 Q. Moving in to 2017 now. Could we turn to POL00249553. 12 We're now on to the drafting of the defence. So the 13 admission has been made to Freeths in November 2016. 14 We're now on to the defence, in the summer of 2017. You 15 are sending around the draft defence from counsel. If 16 we scroll down, paragraph 2, it says: 17 "Paragraph 50(2) -- do we say that POL previously 18 relied on incorrect statements from [Fujitsu] in 19 relation to remote access? This is basically dropping 20 [Fujitsu] in it." 21 Same point, I think, as before, really. It seems as 22 though your view at that point was that Fujitsu were at 23 fault or were to blame in some way, or that it was 24 suggestive of that in the draft defence. 25 A. I felt that Fujitsu were primarily responsible, not 181 1 solely responsible, but primarily responsible, and there 2 was a -- I recall there was some debate around exactly 3 how we put that point in the draft defence. 4 Q. Could we turn to WBON0000496, please. From Anthony 5 de Garr Robinson, you're copied in here, 10 July 2017. 6 Another version of the draft defence is circulated. If 7 we have a look at paragraph 60, he says: 8 "... the more I think about it, the more I think the 9 whole of paragraph 60 other than the first two sentences 10 ought to be deleted." 11 There's reference to mediation, et cetera, in there 12 that he doesn't want included. It's the final line or 13 final sentence there, he says: 14 "This seems to give us no excuse for not having 15 researched the problem properly before we said remote 16 alteration was not possible." 17 Where do you consider the blame lies for 18 insufficient research? It seems as though his view 19 there was "us", being the Post Office, rather than 20 Fujitsu. Where do you think the blame lies for not 21 having researched the problem properly? 22 A. I don't -- I'm not sure whether Tony is using the word 23 "us" to mean Post Office or Fujitsu, or the collective 24 side of the case that was the Post Office side of the 25 case -- sorry, can you repeat the question? 182 1 Q. What is your view, though? We're here, we're years 2 later now, we're in 2017, we're still debating on how 3 it's going to be phrased, the remote access issue. It's 4 clearly an important issue to the business. You've 5 placed a lot of blame with Fujitsu but is it your view 6 that the blame only lies with Fujitsu or that there was 7 a failure at the Post Office end to research the problem 8 properly? 9 A. My view is it primarily sat with Fujitsu. I think there 10 may -- there's probably some underlying problem with 11 Post Office not understanding the Horizon system in 12 enough detail across its organisation and I also, to 13 some degree, accept an accountability on my part, 14 because I feel I should have pushed harder on this issue 15 during the scheme. 16 Q. Could we please turn to POL00249919. We're still in 17 July 2017 and you send an email to counsel: 18 "A quick note so that you're in the loop on my 19 meetings with [the Post Office] over the last few days 20 ... 21 "Both the Postmaster Litigation Steering Group and 22 the Group Executive are comfortable with the defence [by 23 this stage]." 24 You say: 25 "I've briefed both the [Postmaster Litigation 183 1 Steering Group] and [the Group Executive] on what I saw 2 as the key risk areas as follows." 3 Then (2) is "Horizon integrity/remote access": 4 "Much more comfortable now we have Deloitte's work. 5 Deloitte's view is that it is unlikely that data 6 integrity/remote access is the true cause of problems. 7 "[The Post Office] has previously made false 8 statements and we admit this. Deny that they were known 9 to be false when made." 10 Then you say this: 11 "Both [the steering group and the Group Executive] 12 are very uncomfortable about this but understand the 13 tactical reasons for this approach." 14 Can you assist us with what you meant there? 15 A. I recall that senior management at Post Office were 16 uncomfortable with making an admission that the previous 17 statements had been incorrect. 18 Q. Who do you have in mind there? 19 A. I don't -- I can't place it to an individual because 20 I would have been, at that time, I think, getting a lot 21 of the feedback indirectly via the Legal Team and 22 I can't now recall these calls or meetings I had with 23 the GE at that time. 24 Q. But the message that was coming to you from the Legal 25 Team is that the steering group and Group Executive were 184 1 very uncomfortable about that? 2 A. Yes, and, actually, I can recall speaking to the 3 steering group about it and getting that sense directly 4 from them, as well. 5 Q. "Much discussion about media comments and managing bad 6 publicity." 7 Do we understand, looking at all these documents 8 that we've been looking at this afternoon in relation to 9 remote access, that you were personally very involved in 10 the remote access issue from the legal side? 11 A. If you're talking about -- which period of time are you 12 talking about? 13 Q. The documents we've been looking at, so let's say 14 2016/2017 period? 15 A. Yes. 16 Q. There was a lot of focus on the wording -- 17 A. (The witness nodded) 18 Q. -- a lot of care was taken over how that was presented; 19 do you agree with that? 20 A. Correct. 21 Q. It was a significant issue for the business as a whole, 22 the Post Office? 23 A. Err -- 24 Q. The admission? 25 A. I couldn't comment as to what they thought about it as 185 1 a wider business issue. I can tell you they thought it 2 was important within the context of the litigation. 3 Q. As we've seen, a lot of toing and froing and care taken 4 over the issue of remote access, in terms of how it 5 would affect the litigation. 6 A. Yes. 7 Q. Could we please turn to POL00254632, please. Now, this 8 is a chain of emails. I appreciate that it's a document 9 you will only have seen this morning but I'd like your 10 assistance on it. Let's start on page 4, if we may. If 11 we scroll down, please -- actually, if we go to page 6, 12 just to have a look at how this issue comes in. There's 13 somebody from Information Services called Eleanor 14 Bradley, on page 6, if we scroll up, please. Thank you. 15 It's a discussion about an issue that has been 16 raised in a particular post office. If we please turn 17 to page 4, and the email from Jonathan Gribben to you. 18 So Jonathan Gribben was a Managing Associate in your 19 firm; is that correct? 20 A. Correct. 21 Q. I'd like to just read this email. He says: 22 "Andy, 23 "I have spoken to Sree ..." 24 Now, was Sree the postmaster, do you recall? 25 A. I don't know. 186 1 Q. I think it's the person who has at least raised the 2 issue: 3 "... and he has sent me the email chain below by way 4 of further background." 5 Ah, so, in fact, Sree is from the Post Office, he is 6 the Lead Branch Availability Manager, so he has raised 7 it with your firm: 8 "In summary, Post Office have exhausted all other 9 ways of cancelling this [transaction correction] and 10 I agree that there is no alternative but for [Fujitsu] 11 to manually remove it. 12 "Some key points: 13 "The [transaction correction] relates to a redundant 14 product that this branch never sold -- Post Office 15 reinstated the product and gave the branch permission to 16 sell it, but it was not possible for the branch to 17 accept the [transaction correction]; 18 "Post Office cannot issue another [transaction 19 correction] to net the first one off for the same reason 20 ... 21 "The [transaction correction] was issued due to 22 human error rather than a technical fault." 23 Just pausing there, a transaction correction has 24 been issued in relation to this branch: 25 "The branch is a McColl's branch, so it's less 187 1 likely that the claimants in the [Group Litigation] will 2 become aware of the issue and get the wrong end of the 3 stick; and 4 "In Sree's view the real risk to Post Office is not 5 fixing the issue -- as it's preventing the branch from 6 completing its trading period the branch may have been 7 incurring losses and in the circumstances Post Office 8 likely to have to pick those losses up. 9 "Are you happy for me to give Sree the green light 10 to have [Fujitsu] remove the [transaction correction]?" 11 So there has been an issue in a branch, it's 12 a McColl's branch, I think that's a chain branch, and it 13 seems as though they are holding off asking Fujitsu to 14 remove the transaction correction because of the ongoing 15 litigation and the issue of remote access; is that 16 right? 17 A. Yes, that appears what that's saying. 18 Q. If we scroll up, we have your response, and you say: 19 "Can they not settle the [transaction correction] 20 centrally and then wipe it off the postmaster's 21 account?" 22 Were you, at this point, qualified to be making 23 suggestions as to how to correct an error in a branch's 24 accounts? 25 A. I knew enough about transaction corrections that there 188 1 were a couple of ways they could be processed through 2 the system. Where it refers to a "postmaster's account" 3 there, that doesn't mean the account on Horizon; that 4 means the account at FSC. 5 Q. Why are you getting involved in the minutiae of 6 a postmaster's account? 7 A. Because it appears from the email below -- and I have to 8 say, I don't recall this email and, as you said earlier, 9 I only was passed it this morning -- it appears from the 10 email below that the solution being proposed is for 11 Fujitsu to manually delete or remove some data. That's 12 a version of remote access, it appears, and that's 13 a very key issue in the litigation. 14 Q. If we scroll up, we see Angela van den Bogerd. She 15 says: 16 "No. I asked Sree last night when he rang me. The 17 issue is that the branch cannot process the [transaction 18 correction] at all." 19 If we scroll up, we have your response, and you say 20 this: 21 "All, 22 "I think we (the legal team) need to take charge of 23 this process. Whatever documents are produced are 24 likely to be disclosable and I would like as far as 25 possible for this to be covered by privilege or have 189 1 controlled their content. 2 "1. As a first step, I would like Sree to copy all 3 emails on this topic (past and future) to Jonny." 4 So Jonny is a lawyer, is he? 5 A. Correct. 6 Q. "Jonny, please then keep this somewhere separate and 7 safe. He should then be instructed to take no further 8 action for now. 9 "Second, I would like to escalate this to Pete and 10 Torstein at [Fujitsu] so that they can produce for us 11 a full (and privileged) note on what has happened and 12 why there is no alternative but to editing the data. 13 "Third, we can then make a decision on how to 14 proceed in light of the full facts. 15 "I understand that this is going to cause 16 operational problems and risks in this branch, but if 17 not handled properly this could be disastrous for the 18 Group Litigation." 19 Doesn't this take us back to where we began today at 20 the very beginning: that your advice to the Post Office 21 is "Let's blanket this in privilege"? This is 22 a technical issue with a branch, not a claimant's 23 branch, a random branch that is affected that needs 24 a correction and your advice is, "Let's cover this in 25 privilege because it could be disastrous for the Group 190 1 Litigation". Just as, in the very early years, you were 2 advising in respect of, for example, the notification to 3 the insurer, "Let's not write that down; let's deal with 4 it, cover it in privilege as far as we can"? 5 A. I think in the context here and as I've said a number of 6 times, I think all of these decisions are context 7 specific. We are in the middle of a large piece of 8 litigation, an issue has arisen that is related to one 9 of the key issues in that litigation. I think it's 10 appropriate for any organisation to avail itself of 11 legal privilege to investigate that issue. To be clear, 12 that is not to say the issue wouldn't be brought to 13 light. I think it's possible for an organisation to 14 investigate something under privilege and then to make 15 decisions later, when it has the full facts, as to how 16 that then gets disclosed through the litigation process. 17 Q. But here we have, "Hold off making that correction to 18 a branch, unrelated branch, because of the impact on the 19 Group Litigation". Do you think that was an appropriate 20 approach to take? 21 A. I do think that was an appropriate approach to take. 22 Q. Does it make any difference for you that the Post Office 23 is owned by the Government, by the taxpayer, in how that 24 kind of litigation is conducted? 25 A. I still think Post Office was entitled to avail itself 191 1 of legal privilege. 2 Q. Final document I'll take you to today, it's POL00276195. 3 It's an email from yourself to Ben Foat and Rodric 4 Williams in June 2019, and you're explaining to Ben Foat 5 about some of the history of the litigation and why 6 an overall advice had not been obtained. I'll read the 7 email. It says: 8 "The concern at the outset was that any early 9 settlement would be seen as conceding the [claimants'] 10 arguments on the [subpostmaster] contracts and Horizon. 11 This would then possibly open up the floodgates to more 12 claims, so the plan was for Post Office to try to secure 13 some positive decisions in its favour before breaching 14 the topic of settlement. 15 "The strategy was to contest the Common Issues 16 trial, because based on the advice from Counsel, Post 17 Office should win on most points. When the Common 18 Issues expected to be resolved in [the Post Office's] 19 favour, either the [claimants'] funding would collapse 20 or they might walk away for a modest settlement that, 21 when viewed against a positive Common Issues judgment, 22 would not set a dangerous precedent. With this in mind, 23 before the [Common Issues] judgment was handed down we 24 had already agreed a mediator with Freeths and had begun 25 planning for settlement discussions. 192 1 "Further, Post Office had Deloitte review the 2 Horizon system out at the outset of the litigation and 3 they advised that Horizon was robust and extremely 4 unlikely to be the cause of shortfalls in branches. 5 This therefore gave us a back-up plan in case [the] 6 resolution didn't come immediately in the wake of 7 a Common Issues judgment. Deloitte gave us a degree of 8 confidence in winning the Horizon trial, and that might 9 then cause the [Claimants'] funding to collapse or 10 a modest settlement would be possible. 11 "If this didn't work, then the next step was to 12 'thin the herd'. By this we meant identifying subgroups 13 of Claimants whose claims could be defeated on 14 a technicality or legal point. For example, trying to 15 strike out all of the time-barred claims. By 'thinning 16 the herd' you undermine the economics of the group. 17 Less claimants means less damages which makes the 18 funder's return on investment lower to the point where 19 they would prefer to settle rather than invest more 20 money." 21 It's this final substantive paragraph that I'd like 22 to focus on. You say: 23 "The strategy was never to seek an outright win 24 through the Court process, for that would mean 25 ultimately defending 500+ individual claims in 500+ 193 1 separate trials (because the cases turn on their own 2 facts and the utility of dealing with them as a group 3 gradually erodes as more 'group issues' are resolved and 4 you are left with individual issues). Even if Post 5 Office's legal case was perfect, securing a full 6 resolution through the Courts would take years and be 7 massively disproportionately expensive. Hence, the 8 above plan to build leverage and air cover through the 9 Court process to force a settlement or collapse of the 10 litigation." 11 Does that explain the approach that you took to 12 disclosure throughout these years, that you would never 13 see a final trial, so no one would ultimately look under 14 the various rocks that had been placed over these pieces 15 of information? 16 A. No, I don't ever recall thinking like that. 17 Q. Was it a strategy to delay disclosure of important 18 documents, just like we saw in relation to that Amy 19 Prime email that you inputted into: delay, delay, delay 20 disclosure until the moment at which you're becoming 21 criticised and then you can provide it and, if that 22 strategy worked, you would never have to provide certain 23 information because the plan was never to hear the full 24 trial until the end? 25 A. No. I think you've referred to one outlier email and, 194 1 if you look at the balance of the advice we gave on 2 disclosure to Post Office, it was actually to err on the 3 side of giving more disclosure and being generous with 4 disclosure. 5 MR BLAKE: Sir, that might be an appropriate moment to break 6 for the day. 7 SIR WYN WILLIAMS: Yes. 8 MR BLAKE: I have, at most, one hour left, and then we have 9 questioning from Core Participants, which shouldn't be 10 more than around an hour and a half, at most two hours. 11 So we have plenty of time tomorrow. 12 SIR WYN WILLIAMS: That's fine. I'd be grateful, Mr Blake, 13 if you'd just send me a rough breakdown of what we 14 expect with the Core Participants, so that I am au fait 15 of what's likely to occur, if you would? 16 MR BLAKE: Absolutely. 17 SIR WYN WILLIAMS: But yes, let's call it a day for today, 18 and we will resume again at 9.45 tomorrow. 19 MR BLAKE: Thank you very much, sir. 20 (4.03 pm) 21 (The hearing adjourned until 9.45 am the following day) 22 23 24 25 195 I N D E X ANDREW PAUL PARSONS (affirmed) ................1 Questioned by MR BLAKE ........................1 196