27 July 2023 – Susanne Helliwell and Colin Lenton-Smith
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(09.58 am)
Ms Price: Good morning, sir. Can you see and hear us?
Sir Wyn Williams: I can indeed.
Ms Price: May we continue, then, with the evidence of Ms Helliwell?
Sir Wyn Williams: Yes, of course.
Susanne Helliwell
SUSANNE JANE HELLIWELL (continued).
Questioned by Ms Price (continued)
Ms Price: Good morning, Ms Helliwell.
Susanne Helliwell: Good morning.
Ms Price: We looked yesterday afternoon at counsel’s advice in the Cleveleys case, which was dated 26 July 2004. Then just before we adjourned, we looked at the note of a conference call with counsel attended by you, Mandy Talbot, Jan Holmes and Keith Baines, at which further evidence was discussed and a plan was made for the production of statements from Jan Holmes and Keith Baines.
Susanne Helliwell: Yes.
Ms Price: May we have, please, that note on screen, the reference is WITN04600310. We can see here the date at the top left and that’s 3 August 2004, so eight days after counsel’s advice was produced. We can see about halfway down the page the trial date, which was 16 to 18 August, so less than a fortnight away.
Susanne Helliwell: Yes.
Ms Price: My question for you yesterday, which prompted us to go to this document, related to the purpose of the further evidence which was obtained from Jan Holmes and Keith Baines, namely the statements of the 11 August 2004. We know that counsel had advised the Post Office to abandon its claim against Mrs Wolstenholme for apparent losses in the sum of just over £25,000?
Susanne Helliwell: Yes, yes.
Ms Price: And the advice was also to admit Mrs Wolstenholme’s claim of wrongful termination; that’s right, isn’t it?
Susanne Helliwell: Yes, it is, yeah.
Ms Price: He had advised, however, that there was an argument to be made on one part of Mrs Wolstenholme’s counterclaim, the claim that there was an implied term in the contract for services that the computer system provided for her use would be fit for purpose?
Susanne Helliwell: Yes.
Ms Price: His view, set out at paragraphs 37 and 40 of that written advice – we needn’t go back to them, we looked at them yesterday, but just in summary – was that it could be argued that any implied term should extend only as far as the obligation to take reasonable steps to provide a computer system that was fit for purpose. Is that a fair summary?
Susanne Helliwell: Yes, it is. I would say it is.
Ms Price: The fact that system provided may have been defective on this occasion, to use his words, did not necessarily mean a breach of this implied term, and his advice was that further evidence should be adduced on behalf of the Post Office that reasonable steps were indeed taken; is that right?
Susanne Helliwell: Yes.
Ms Price: It’s against that backdrop, isn’t it, that the discussion of further evidence at the conference was taking place?
Susanne Helliwell: Yes, it was, yeah.
Ms Price: Looking, please, to just above the trial date in this note, we see counsel’s conclusion, that first word is difficult to make out, but:
“… if goes to dispute, likely to find that computer system let JW down.”
Then under “Tricky position”, a bit further down the page:
“We say she had difficulty operating and calls to HSH were part of dealing with problems. Beyond point of analysing her system. Aiming to say that potentially implied terms to provide system that worked and system in place to support her.”
Over the page, please:
“Extra evidence that can be introduced to support this claim.”
So it appears, doesn’t it, that the evidence to be obtained from Jan Holmes and Keith Baines was intended to address the reasonable steps taken to ensure the computer was fit for purpose, the implied term point.
Susanne Helliwell: Yes, and the support given.
Ms Price: Before we leave this document, can we look, please, towards the bottom of this page. The penultimate point here from KB; is that Keith Baines?
Susanne Helliwell: Yes, I believe so.
Ms Price: “During acceptance satisfied that if crashes happen then transactions would not be lost.”
So this what you were being told, isn’t it, about the Post Office’s understanding of the consequence of crashes for transactions at the point of acceptance.
Susanne Helliwell: Yes, that’s what we were being told. Yes.
Ms Price: That document can come down now. Thank you.
Following this conference call, you assisted Jan Holmes and Keith Baines to produce those statements that we’ve just discussed. In relation to Jan Holmes’ statement, the reference in your statement for the Inquiry at paragraph 18 is, in fact, to a draft statement. We do now have the final version and, for the benefit of the transcript, that is WITN09020117. We need not display that document now.
Keith Baines’s second witness statement, dated 11 August 2004, is at POL00118224. May we have this on screen, please.
Can you recall now what the process was for the drafting of these statements from Jan Holmes and Keith Baines?
Susanne Helliwell: In the case of Keith Baines, I would have had more involvement in the actual drafting, taking – he would provide the information in a form that I would then adapt and put it in more of a witness statement form and obviously take further instructions from him on any points that I wasn’t sure about or where I thought further information was required. And I think as I said yesterday, I base it on the information and documentation received from him, it would be approved. It would then be looked at by counsel and counsel would have his input and deal with any queries or amendments following that.
Ms Price: Can we look, please – apologies.
Susanne Helliwell: I was going to say that I think the position with Jan Holmes would have been slightly different, which I can explain if you want me to.
Ms Price: Please do.
Susanne Helliwell: I think as I’ve said in my statement, obviously Fujitsu weren’t our client. So my involvement with them was limited. I think, looking at Jan Holmes’ statement, he produced the – very much the narrative of it because it was very factual and sort of detailed about the system itself. And looking at the format of the text, I probably put in more just at the start of the statement and then the end of it, and then he provided the body of it and obviously again, the comments from myself, counsel, to deal with any amendments or any queries that we were looking at – that we had.
Ms Price: Could we look, please, further down the page, starting at paragraph 3 in this second statement of Keith Baines. We see here the evidence:
“The Horizon system was developed as a managed service by Fujitsu Services Limited, formerly ICL Pathway Limited who also provided the actual equipment. Notwithstanding this and as is the Post Office’s usual practice in contracts for the development of complex IT services, the Post Office put in place a formal acceptance process to satisfy itself that the service was fit for purpose before allowing it to be widely deployed.
“The Post Office’s required specification of the service provided by Fujitsu included requirements relating to the ease of use of the system, the stability of the system and the integrity of the financial information which it produces.
“The acceptance process of the system used a mixture of technical reviews, testing by Fujitsu and by the Post Office and the operation of a live pilot stage in Post Office branches to confirm that each requirement was being met satisfactorily. I should state that this was not a ‘rubber stamping’ exercise, and that significant problems were found and remedied before the main ‘rollout’ was authorised.
“Whilst there were some problems with system stability during the early stages of the acceptance process, these were rectified, and a period of monitoring in pilot offices during October and November 1999 demonstrated that the rectification had been effective in reducing the incidents of reboot and related problems to an average rate of less than 4 per counter position per annum. Subsequent improvements by Fujitsu during the year 2000 reduced this to less than 3 per counter position per annum.”
What were you told about the detail of the acceptance process being referred to here by Mr Baines?
Susanne Helliwell: My goodness, again, it’s 19/20 years ago. I can only assume that I was told what was – pretty much what was in his witness statement.
Ms Price: Were you given any further detail beyond what is here?
Susanne Helliwell: I just can’t remember. I mean, to the best of my recollection, these were quite – they were quite detailed and technical statements that really the information came from – very much from the parties, the individuals who were providing the statements. I may have asked questions around that and got further information but I just can’t remember.
Ms Price: We looked yesterday at Keith Baines’ first witness statement. May we have that on screen again, please. It is POL00118250. Looking, please, over the page to paragraph 5 of that statement. In this first statement in 2003, Mr Baines said this:
“Any faults that occurred in the Horizon computer system were eliminated once they were identified. Whilst it is possible for mistakes to occur, this is usually through incorrect inputting in the computer system in the office affected by the mistake. All subpostmasters were fully trained in the use of Horizon equipment. The system was fully tested before it was used by the Post Office and it is fit for its purpose. The system itself does not create losses as is claimed by Mrs Wolstenholme.”
There seems to be a difference, does there not, between what Mr Baines is saying at paragraph 6 of his second statement that we’ve just looked at, that rectification had been effective in reducing the incidents of reboot and related problems, and what is said here at paragraph 5 in the first statement:
“Any faults that occurred in the Horizon computer system were eliminated once they were identified.”
At the time you were involved in drafting Mr Baines’ second statement, did you have any concerns that Mr Baines had not been full and frank about the problems which had been experienced with the Horizon System in his first statement?
Susanne Helliwell: Could I just have a look at his second statement again, the paragraph that you were referring to, please?
Ms Price: Of course. Looking back, please, to POL00118224, and over the page, please, to paragraph 6.
We see here, about three lines down:
“… the rectification had been effective in reducing the incidents of reboot and related problems to an average rate”, and we see those two rates provided there.
Susanne Helliwell: Mm. I can only assume that, at the time, obviously he believed the statement in his first witness statement to be true. Can I just have a look at that sentence again, just so I can –
Ms Price: In the first statement?
Susanne Helliwell: Yeah.
Ms Price: That is POL00118250, over the page, please, to paragraph 5.
Susanne Helliwell: It’s not hugely different because he’s saying that the problems – that there were faults but they were eliminated, as opposed to rectified.
Ms Price: I was referring, really, to the reduction reference to incidents. So a reduction in incidents to three per counter position per annum?
Susanne Helliwell: He may not – at that stage, we were looking at it from a different perspective and he was then asked to look into it in more detail. So it may be that the further detail produced that information, that he then provided in his second statement.
Ms Price: When you were assisting Mr Baines in drafting his second statement, did he tell you about any specific bugs, errors and defects which had been identified in the Horizon System up to that point?
Susanne Helliwell: Not that I can remember, no.
Ms Price: That document can come down now. Thank you.
We know that this case did settle and that the Post Office made a payment to Mrs Wolstenholme. Were any formal concessions made in the case before this settlement was achieved?
Susanne Helliwell: This is the bit I really can’t remember, and I can’t remember the terms on which the case was settled. So I can’t help you on that.
Ms Price: Can you help us with whether the statements of Jan Holmes and Keith Baines, dated 11 August 2004, were ever failed at court and served on Mrs Wolstenholme?
Susanne Helliwell: I can’t recall, no. I mean, as I say, I can’t recall. I’ve assumed that we perhaps settled it actually on the day when we – as the trial started. But I have got no specific recollection.
Ms Price: It may follow from your answer – your answers you’ve just given – but can you help us with what the final settlement figure was in the case?
Susanne Helliwell: No. No, when I read through these papers, I do recall the £25,000 payment into court. So I do recall that that was made, and then obviously the Post Office would have had to have paid more to settle it but I can’t remember what the terms were.
Ms Price: The final document I would like to take you to, please, is POL00095375. This is a letter from Keith Baines to Colin Lenton-Smith, dated 5 February 2004. If we can just scroll down a little, so we can see who it’s from. Over the page, please. This appears to be the letter which Colin Lenton-Smith’s Cleveleys letter and appendix, which we looked at yesterday, was responding to.
There is one point in particular I would like to ask you about, the bottom paragraph on the first page, please:
“The County Court instructed the parties jointly to commission a report from an expert approved by the Court. I enclose a copy of his report. As you will see, the expert’s opinion is that the Horizon system installed at Cleveleys branch was defective and that the HSH was more concerned with closing calls than preventing recurrence of faults. As I’m sure you will understand, Post Office is concerned by these findings, not only in relation to this particular case, but also because of any precedent that this may set and that may be used by Post Office’s agents to support claims that the Horizon System is causing errors in their branch accounts.”
Were you aware at the time of the Post Office’s concern to avoid a precedent being set, that may be used by the Post Office’s agents to support claims that the Horizon System is causing errors in their branch accounts?
Susanne Helliwell: What’s the date of this letter again, sorry?
Ms Price: This is 5 February 2004, so this is just after Mr Coyne’s opinion was produced.
Susanne Helliwell: I think at that stage I was – the only thing I was aware of was that the Post Office, the people I was dealing with, were concerned by the findings of the report and concerned that Jason Coyne had reported on possible defects in the system because, obviously, they hadn’t believed that to be the case. At this stage, I don’t think I was aware that the Post Office were concerned about a precedent being set. That probably came – that came later.
Ms Price: You say that came later. When later did you become aware of that?
Susanne Helliwell: Um, well, I can say that I was specifically aware of it in the run-up to the advice that we got from Stefan Lewinski because that prompted – that was one of the matters that prompted us to get the advice because of the difficulties in the case and possible consequences of the case – of there being a finding against the Post Office.
So I can certainly say in the run-up to obtaining that advice and then having had that advice and afterwards.
Ms Price: At the time, were you aware of any other cases involving the Post Office in which subpostmasters were attributing apparent losses to the Horizon System?
Susanne Helliwell: No, no, I wasn’t. No, I wasn’t aware of any cases, no.
Ms Price: If there were such cases, would you have expected the Post Office to tell you about them?
Susanne Helliwell: I would have expected them to – the Post Office to tell me that they had other ongoing cases in which – yeah, in which alleged defects – defects with the system were being alleged.
Ms Price: Would you have considered information relating to such cases to be disclosable material in the Cleveleys case?
Susanne Helliwell: It would depend on the nature of the information. I’d have to see – I’d have to have a look at what information there was and then take view on it from there.
Ms Price: The losses alleged in this case by the Post Office totalled over £25,000. If the Post Office considered these were true losses, rather than illusory ones, what was the Post Office’s explanation or favoured explanation for the shortfall? Can you recall?
Susanne Helliwell: I can’t specifically recall. I know that there were suggestions about errors in inputting information and the management of the system, but I don’t – I can’t specifically recall.
Sir Wyn Williams: Sorry, as far as you were aware, Ms Helliwell, did the Post Office in any witness statement seek to explain the losses it was alleging, ie to break down where the £25,000 had come from and how it could be that that had been lost?
Susanne Helliwell: Not from memory. I –
Sir Wyn Williams: I mean, it’s not there on the face of the statements we’ve seen. I was just wondering if you’d ever been party to a discussion where they might have been, if you like, trying to work out what had happened?
Susanne Helliwell: No, I don’t recall being part of the discussion, all I can say is that I would assume that we’d have disclosed documents supporting those losses. But, in terms of any discussion, I can’t recall being a party.
Sir Wyn Williams: This isn’t being critical of you but, if I were to draw the conclusion, if I need to, that, basically, what happened was Horizon said £25,000 was missing so the Post Office just accepted it, and it was up to the subpostmaster to try to prove the opposite; is that fair?
Susanne Helliwell: I think that it would be fair to say that – they would be asked to justify those losses and how they were calculated.
Sir Wyn Williams: Yes, well, what – it may be that we just haven’t got all the documents, so I don’t want to be unfair in any way at all, but there seems to be a complete absence of focus on what happened to the £25,000 in this case. All that seems to have happened is that Horizon says “There’s a deficit in that amount, therefore there must be, therefore you, Mrs Wolstenholme, are reliable for it”?
Susanne Helliwell: I can see that that does – that is how it looks but we’ve not seen the list of documents or the documents that were provided by the Post Office that could – I’m not saying they would – have supported how that loss was calculated and how it came about.
Sir Wyn Williams: Anyway. This isn’t a memory test for you.
Susanne Helliwell: No, I know. It’s so hard.
Sir Wyn Williams: As a solicitor acting for the Post Office in this litigation, you don’t actually remember seeing any documents which explained the losses; is that fair?
Susanne Helliwell: Yes, I don’t. I mean, that’s not saying that there wouldn’t be, because I’m sure I would have asked for them because we’d have to substantiate the losses and how they were claimed.
Ms Price: Sir, for completeness, the Amended Particulars of Claim, if we can have those on screen, please. That’s POL00118218, starting at the bottom of that page. Apologies, I need to give you a page number. Page 13 within the trial bundle.
Looking towards the bottom of that at page, please, paragraph 5:
“The Defendant’s subpostmaster’s account shows an overall final loss in the sum of £25,034.34 in respect of the period up to and including 4 December 2000. An itemised breakdown of this figure is attached at pages 61-67. Suction sum remains outstanding to date.”
So, sir, there is a document that shows some – shows discrepancies, ultimately, on the accounts.
Sir Wyn Williams: What I was trying to get at, and perhaps you could help me – I’d forgotten about this, so thank you for reminding me – but is it any more than the Horizon record?
Ms Price: No, sir. That’s my understanding. The document, for the reference, starts at page 80 of that, using the external pagination of that document we’ve been looked at.
Sir Wyn Williams: All right. I’ll look at that for myself. Thank you. Yes.
While I’m asking, the other question that came into my mind, Ms Helliwell, was relating to the questions that Ms Price asked you about the differences in the wording between paragraphs 5 and 6 of Mr Baines’s two statements, all right?
Susanne Helliwell: Yes.
Sir Wyn Williams: I don’t want to pursue the difference in wording with you but, especially in the second statement where he talks about there being a reduction, as opposed to an elimination, it did strike me that that is information that could only have come from some kind of document. It’s not very likely that Mr Baines was carrying that around in his head. That’s what I had in mind.
Do you recall any documents being made available to you so that you could disclose them in support of that witness statement?
Susanne Helliwell: I don’t specifically recall any documents, no.
Sir Wyn Williams: Because, on the face of it, would you agree with me that, if you’re going to produce what would have been very late evidence as in paragraph 6, giving quite an important detail about a reduction in a problem, and documents exist, you would have expected that they would have been exhibited to the witness statement, wouldn’t you?
Susanne Helliwell: Yes, you would. Yes.
Sir Wyn Williams: Clearly that didn’t happen on any view of it?
Susanne Helliwell: Pardon, sir? Sorry, sir? What was that?
Sir Wyn Williams: On any view of it, that didn’t happen?
Susanne Helliwell: No, it didn’t, no.
Sir Wyn Williams: Right. Thank you.
Sorry, Ms Price, for jumping in like that.
Ms Price: Not at all. Thank you, sir.
Did you understand there to be any desire on the part of the Post Office to get to the bottom of what might have gone wrong at the Cleveleys branch?
Susanne Helliwell: Not from the people that I dealt with or spoke to. I think I said in my witness statement, I said in my evidence, that the people I dealt with were shocked and concerned by the findings of Jason Coyne’s report and information that seemed to be coming to light.
Ms Price: Given the conclusions reached by Mr Coyne and the fairly stark advice received from counsel, did anyone within the Post Office or Fujitsu express concern that the Horizon System might be causing illusory losses in the accounts of subpostmasters?
Susanne Helliwell: I don’t recall specific concerns being raised with me, apart from, you know, the concerns I’ve already referred to. I don’t remember any other concerns raised about other accounts where that may or – that may be attributable to the losses on those accounts, as well.
Ms Price: Did anyone suggest to you that there would be any form of investigation by the Post Office or Fujitsu to establish whether there was a basis for the suggestion that problems with the system might be causing apparent shortfalls in branch accounts?
Susanne Helliwell: No, I don’t recall that.
Ms Price: You said yesterday, Ms Helliwell, that you were shocked and concerned by Mr Coyne’s report. Did you discuss the content of the report with your supervising partner?
Susanne Helliwell: I would have done, because I had regular review meetings, so cases were discussed at those meetings.
Ms Price: Was there any consideration given by Weightmans to what the wider implications of this report, Mr Coyne’s report, was, going beyond the Cleveleys case?
Susanne Helliwell: No, because at that stage, as far as we were concerned or possibly the Post Office, it could have just been isolated to that particular set of equipment, that system that was in use at that branch.
Ms Price: Ms Helliwell thank you very much. Those are all the questions that have.
Sir, before turning to Core Participants, do you have any remaining questions for Ms Helliwell?
Sir Wyn Williams: No, thank you. As I said, I jumped in and asked them, so thanks very much.
Ms Price: I think there are some questions from the Hodge Jones & Allen team and the Howe+Co team, starting with the Hodge Jones & Allen team and Mr Henry.
Questioned by Mr Henry
Mr Henry: Thank you very much.
Ms Helliwell, the fact that Mrs Wolstenholme was a litigant in person, she was representing herself, did that in any way influence the instructions you were given by your client?
Susanne Helliwell: No. She had previously had solicitors as well, hadn’t she?
Mr Henry: Sorry?
Susanne Helliwell: She previously had solicitors and then she acted in person.
Mr Henry: Yes. Why do you think that was?
Susanne Helliwell: I assume finance, money.
Mr Henry: Yes, exactly. So financial pressure. Did you or your client give any thought to the fact that she was a litigant in person?
Susanne Helliwell: As a solicitor, you always give – have some regards to the fact that someone is a litigant in person and obviously deal with them accordingly, that they don’t have the same knowledge of the legal system.
Mr Henry: Because I’m just – if we might have a look, please, at POL00118221, please. I’d be very grateful if we could go to the internal pagination at page 208, please. There we can see your letter, which I – obviously you must have an opportunity to read it to yourself.
Susanne Helliwell: Yes.
Mr Henry: When you have confirmed that you’ve read it to yourself, I’d like to take you to the response to your letter of 29 April, which is the following page, 209.
Susanne Helliwell: Okay.
Mr Henry: If we therefore go to 209. Again, if you would be so kind as to just read that to yourself.
Susanne Helliwell: Yes.
Mr Henry: I mean, did you consider that you might have to, given the fact that Mrs Wolstenholme was a litigant in person, explain the court orders to her, so that she was in no doubt of the obligations upon her?
Susanne Helliwell: We had been at a hearing, and she’d been present, and the District Judge had very clearly explained what was required but I think then in my next letter I may have clarified further about the computer expert, I think, from a further letter. And I think I simply sent her the list of documents and the documents in another letter, rather than her having to request copies.
Mr Henry: Yes. You received instructions, since you mention your further letter, if we could go to internal documentation 211, please:
“Finally, as regards your request for the call log details to Horizon from the period June 2000 to November 2000, our client does not have copies of these call log details and the only call log details in our client’s possession are those referred into item 10 of our client’s List.”
Is that what you were told, that the Post Office did not have call log details to the Helpdesk from the period June 2000 to November 2000?
Susanne Helliwell: That’s what I would have been told at the time and that’s why it was in that letter.
Mr Henry: So did you not question their apparent void in document retention and recording of information?
Susanne Helliwell: I certainly would have done.
Mr Henry: What were you told?
Susanne Helliwell: Well, as far as the – these call log details, they were then actually produced, weren’t they?
Mr Henry: So you were therefore, at that point, being given misinformation?
Susanne Helliwell: It would appear so because they were subsequently produced. Correct me if I’m wrong.
Mr Henry: Well, we’ll come back to that if necessary, but –
Susanne Helliwell: But my letter was based on information –
Mr Henry: Your evidence here is that this was misinformation.
Susanne Helliwell: This letter, obviously this is based on the information I was receiving from the client.
Mr Henry: I see. Thank you.
Could I now turn to the issue of the single joint expert, and you were asked by learned Counsel to the Inquiry whether the statements of Mr Holmes and Mr Baines were lodged with the court and you could not say. But you accept the principle, don’t you, that with a single joint expert, as we can see the order of the County Court, single joint expert, it’s vitally important that they are only provided with completely accurate information –
Susanne Helliwell: Yes.
Mr Henry: – and that the information submitted to them must be scrupulously checked to ensure that the expert is not offering an opinion on a false premise?
Susanne Helliwell: Mm.
Mr Henry: You agree?
Susanne Helliwell: Yes.
Mr Henry: Thank you.
When an adverse opinion, such as that received from Mr Coyne was received and Fujitsu employees sought to rebut it, did the Post Office recognise that Mr Coyne’s opinion was independent and unbiased?
Susanne Helliwell: I can’t specifically say that they did, but I certainly saw his opinion as being independent and unbiased, and I would have relayed that to the client. He was a joint expert that was instructed and we had no reason to consider otherwise, that it would be other than unbiased.
Mr Henry: Mm. Can you recall, notwithstanding the advice you believe you tendered to the Post Office, can you recall whether they accepted Mr Coyne’s opinion or not?
Susanne Helliwell: Whether the Post Office accepted it?
Mr Henry: Yes.
Susanne Helliwell: It’s just so hard to recall but I can just more recall the concern and questioning of how – you know, of that opinion because it had come as a complete surprise and shock to them, and it’s –
Mr Henry: Did they settle with good grace or did they, in effect, very, very – shall we put it neutrally – reluctantly settle this case?
Susanne Helliwell: From the – certainly the people I dealt with, they settled with good grace –
Mr Henry: Ah.
Susanne Helliwell: – as opposed to it being reluctantly because they had to accept that the evidence –
Mr Henry: So it would follow, if they were settling it with good grace, that they would be persuaded of the merits of the unbiased and independent report and would want, therefore, to disseminate the information as widely as possible, given the risk to other subpostmasters, would it not?
Susanne Helliwell: Could you just repeat that, please?
Mr Henry: Well, it would follow, if they were settling it with good grace, that they would be very concerned as to the content of the independent and unbiased expert report and would want to disseminate the information so that there should be no risk presented to other subpostmasters?
Susanne Helliwell: You would imagine that. The only qualification I would make is that this report was based on very limited information and documentation, and –
Mr Henry: And who’s responsible for that?
Susanne Helliwell: Well, Fujitsu had – you know, for whatever reason, the archiving provisions rules, which obviously had been changed by this time but there was certainly a feeling that the expert’s report could have been – could have been different, had there been a full set of information available and data available.
Mr Henry: I mean –
Susanne Helliwell: There was no – nobody knew that.
Mr Henry: Surely, I mean, it is obvious, and I mean no disrespect to you in stating that it is obvious, that the Post Office did not want Mr Coyne’s findings to be widely known or even narrowly known by anyone other than those involved in that case?
Susanne Helliwell: I would accept that, yes.
Mr Henry: Yes, and learned Counsel to the Inquiry asked you about the Post Office’s concern to avoid publicity about Mr Coyne’s negative report, did they not?
Susanne Helliwell: Yes.
Mr Henry: You stated that this was expressed at around the time of the conference with counsel, correct?
Susanne Helliwell: Yes, it must have been the run-up to it and around the time, yes.
Mr Henry: Yes. We know that Mr Baines was at that conference, don’t we?
Susanne Helliwell: Yes.
Mr Henry: Would it be right to say that Mr Baines agreed that the Post Office should be seeking to avoid publicity?
Susanne Helliwell: Mr Baines individually? Um …
Mr Henry: Yes.
Susanne Helliwell: Yes, I can’t recall that he did – that he specifically said that, but …
Mr Henry: Can we have a quick look – no, I’m going to move on.
But he was the most senior person from the Post Office at that conference, wasn’t he?
Susanne Helliwell: Yes, Mandy Talbot was there though, wasn’t she?
Mr Henry: Yes, but he was a very senior member of the Post Office at that conference, wasn’t he?
Susanne Helliwell: Yes.
Mr Henry: You would you agree that, at around that time of that conference, they wanted to avoid, and they were very particular about this, publicity concerning Mr Coyne’s negative report?
Susanne Helliwell: Yes.
Mr Henry: Right. We know the fundamental issue was that Mr Coyne had concluded that Horizon was at fault. Pursuant to my earlier question when you said that the Post Office accepted that with good grace, do you accept now that the Post Office allowed themselves to become more concerned with suppressing that information than actually learning from it and addressing it?
Susanne Helliwell: That’s a difficult question for me to answer because, at the time of my involvement, they were concerned to avoid publicity. But what they then did with that information moving forward and looking at other issues that I didn’t know about, maybe that were ongoing with other subpostmasters, I wouldn’t have been a party to that and how they –
Mr Henry: I realise this is very difficult for you because of the lapse of time but, of course, you are relieved of your obligation, it wasn’t your privilege, it’s the client’s privilege and it’s been waived, you are relieved from the burden of professional legal privilege. Did you see it as any part of your job to warn the Post Office that it would be advisable to get to the bottom of this contentious issue, rather than suppressing it?
Susanne Helliwell: I would have certainly advised that the report had to be taken very seriously and that questions needed to be asked.
Mr Henry: Surely, they must have sought your counsel, your advice, on this, because it went to the heart of whether Horizon was safe?
Susanne Helliwell: I can’t say whether they sought my advice on that or what discussions we had. It’s just so difficult to remember.
Mr Henry: But you do recall that you would have advised them to take it seriously?
Susanne Helliwell: Yes.
Mr Henry: Yes.
Susanne Helliwell: I would have –
Mr Henry: I mean, surely, you’re a commercial lawyer and a litigator. The reputational risk and the enormous damage to the Post Office must have featured in the considerations that centred upon this case?
Susanne Helliwell: Yes, it would have featured but, again, at that time, we were looking at one isolated case. We didn’t – I didn’t know if there were other cases ongoing.
Mr Henry: Sorry?
Susanne Helliwell: At that point, we were looking at this one individual case. Whether there were other cases ongoing at that time about – with issues with the system, I don’t know. And I think, as I mentioned earlier, although the report was very concerning, it had to be looked at in the context of would it have been any different, had all the data been available to Jason Coyne? His report was based on very limited information.
Mr Henry: Because of Fujitsu?
Susanne Helliwell: Yes.
Mr Henry: So you have, on the one hand, an independent and impartial and unbiased expert and, on the other hand, you have Fujitsu disputing it but also, so it appears, withholding information, correct?
Susanne Helliwell: Well, I wouldn’t say withholding information. The information had been archived – had been deleted or destroyed after however long, 18 months.
Mr Henry: Well, deleted or destroyed, did that not raise a red flag?
Susanne Helliwell: That the information had – that it had been destroyed so soon? Yes.
Mr Henry: Well, exactly, but also –
Susanne Helliwell: And that was – that had been changed already, hadn’t it, to seven years or whatever, or six or seven years.
Mr Henry: Can I now move, please, to Elaine Tagg –
Susanne Helliwell: Yes.
Mr Henry: – and could we please go to WITN09020115. This is Mr Coyne’s statement and if we could be so kind to go to page 2. It’s just underneath that “more detailed examination”, et cetera, et cetera:
“My observations considering the documents are as follows …”
Then if we could – yes, thank you so much:
“The statement from Ms Elaine Tagg, the Retail Network Manager of the Post Office, at paragraph 11, stated that:
“‘Mrs Wolstenholme persisted in telephoning the Horizon System Helpdesk in relation to any problems which she had with the system generally, these problems related to the use and general operation of the system and were not technical problems relating to the system’.”
Then Mr Coyne opines:
“This, in my opinion is not a true representation of the evidence that I have had access to. Of the 90 or so fault logs that I have reviewed, 63 of these are without doubt system related failures. Only 13 could be considered as Mrs Wolstenholme calling the wrong support helpdesk requesting answers to ‘How do I …?’ type training questions.”
When you saw that, that must have been very troubling, mustn’t it?
Susanne Helliwell: Yes, because we would know that Mrs – that Elaine Tagg was – obviously she would be cross-examined on her witness statement and she’d have to deal with Mr Coyne’s opinion.
Mr Henry: Well, leaving aside her being cross-examined, what about the submission of a witness statement which is so manifestly wrong?
Susanne Helliwell: In the opinion of the expert it is wrong, yeah. That’s why it – having looked at – that’s why we obtained the advice and – from counsel on the evidence, because statements like that were a real cause for concern.
Mr Henry: It wasn’t just the opinion of the expert that she was wrong; even Jan Holmes said it would be hard to dispute that, didn’t he?
Susanne Helliwell: Yes.
Mr Henry: I don’t need to take you to it, thank you for your concession, but the reference is FUJ00121499 at page 3.
Susanne Helliwell: Can I just have a look at that, please?
Mr Henry: Of course, by all means. Yes. Do you see just the last line of that statement –
Susanne Helliwell: Yes, I just wanted to remind myself.
Mr Henry: Do you see it?
Susanne Helliwell: Yes.
Mr Henry: You’re happy?
Susanne Helliwell: Yes.
Mr Henry: Right. I think Mrs Wolstenholme brought this to your attention in her letter which was received on 2 February 2004. Did you – because she was suggesting actually that Elaine Tagg was, shall we put the euphemism, not telling the truth. Did you discuss the implications of providing untruthful witness statements in legal proceedings with your client?
Susanne Helliwell: Yes, I would have done.
Mr Henry: What did you say?
Susanne Helliwell: Again, it’s hard to remember from so long ago, but I would certainly have highlighted that as a potential – an error and potential misstatement in Ms Tagg’s statement.
Mr Henry: Could I ask you now about Mr Baines’ direct involvement. We know that he was involved in the acceptance of Horizon and the many significant problems that still existed when it was rolled out I suggest he was aware of. When you go to the first witness statement of the late Mr Baines, which is POL00118250, and we go to paragraph 5 – and I want to make it clear, Ms Helliwell, I’m not suggesting that you are a party to any impropriety here because of course you rely, don’t you, on the information which you are provided with, don’t you?
Susanne Helliwell: Absolutely, yeah.
Mr Henry: Yes. But nearly every sentence in paragraph 5 of his witness statement, first witness statement, could have been contradicted, it would appear, from his own personal knowledge, from what we now know. You weren’t aware of that at the time?
Susanne Helliwell: Absolutely not, no.
Mr Henry: No. Counsel to the Inquiry took you to the handwritten notes of the conference that led to this statement being produced, in which it seems that Mr Baines said he would be candid about glitches. Do you remember that?
Susanne Helliwell: I think so, yes.
Mr Henry: Now, what I want to just try and help me with is this, because you said this morning to learned Counsel to the Inquiry that you believe you would have had more involvement in the actual drafting of Mr Baines’s witness statements. I think you drew a distinction because Mr Holmes was Fujitsu, Mr Baines was Post Office, therefore you’d have had more involvement in the actual drafting of Mr Baines’ witness statements; that’s what your belief was?
Susanne Helliwell: Yes, and I think also I could tell from the typeface of Mr Holmes’ statement that it looked a different point at the start and then as if his information had pretty much been put in. I’d have – but then I do also – with Mr Baines’ second statement, him and Mr Holmes, I think as it’s referred to in the notes of the conference, and that they were working, yeah, they were exchanging information, working on their statements together as well.
Mr Henry: So they were a double act?
Susanne Helliwell: They were both providing information statements and –
Mr Henry: In tandem?
Susanne Helliwell: – I think they were liaising on that, yes.
Mr Henry: Yes, so they were working together, they were in tandem, and –
Susanne Helliwell: And then –
Mr Henry: Yeah.
Susanne Helliwell: – before it came to – before it came to –
Mr Henry: Before it came to you?
Susanne Helliwell: Mm.
Mr Henry: That’s precisely what I wanted to establish, in fairness to you, lest it be thought that you were, you know, being the active drafter?
Susanne Helliwell: No, I wasn’t (unclear) on that, no.
Mr Henry: No. You weren’t because, in fact, there is an email from Mr Baines about his second witness statement copied to you, in which he says that it was the detail behind the assertions on paragraph 5 of his first witness statement – what I’m trying to suggest is that he drafted it without your assistance.
Could we go to, please, POL00118233. There we are. I think this is copied to you, isn’t it?
Susanne Helliwell: Mm.
Mr Henry: Sent to Ms Talbot, copied to Mr Holmes, copied to you:
“Enclosed is a statement covering Post Office’s approach ensuring that Horizon was suitable for use for its intended uses and users. I’m also copying this to Susanne Helliwell. This in general, rather than specific to Cleveleys, and in effect is the detail behind some of the assertions in paragraph 5 of my earlier witness statement … As agreed, I haven’t attempted to put this into the format required by the court.”
So, in other words, and I mean no disrespect to you, but would it be the case that he drafted his second witness statement and you put it in to the appropriate format?
Susanne Helliwell: Yes, I would have put it into the appropriate format and asked any – raised any questions or queries I had on the information he provided –
Mr Henry: Yes.
Susanne Helliwell: – and sent it to counsel.
Mr Henry: Did he not in fact fax it to you, as well? Do you recall that?
Susanne Helliwell: Gosh, I can’t remember a fax.
Mr Henry: Let’s have a look at –
Susanne Helliwell: I’m sure if there’s a fax here, he did.
Mr Henry: Let’s have look at POL00118224, please. That’s the second witness statement, and could we go to – we know about paragraph 6. I’m not going to take you to that again but could we go to page 8, please. We can see there that he sent it to you, didn’t he?
Susanne Helliwell: Yes, whether it was the –
Mr Henry: That was after you put it into the format and he signed it; is that right?
Susanne Helliwell: Do we know that this is the format that he – is this him sending me his initial statement or is it – because that was attached to the email.
Mr Henry: Yes, that was attached to the email –
Susanne Helliwell: Because this to me would be more that he signed it and faxed it back to me because I’d need a signed – at that time, I don’t think we really did –
Mr Henry: It doesn’t appear – yes, it was signed. So this is –
Susanne Helliwell: So this is after –
Mr Henry: After you formatted it –
Susanne Helliwell: This is probably after –
Mr Henry: Yes, you formatted it, by this time, and he faxes it back. So perhaps that’s not so important but –
Susanne Helliwell: I think that’s –
Mr Henry: But the first one shows –
Susanne Helliwell: The answer to what – that this would have been – I assume that this would have been him faxing his signed statement back to me.
Mr Henry: Yes.
Susanne Helliwell: I can’t be certain but that’s what I assume.
Mr Henry: Initially, it looks like he drafted this statement without your assistance, doesn’t it?
Susanne Helliwell: Yes, and it – his – it was attached to that email that you just showed me that he sent to Mandy Talbot.
Mr Henry: You don’t recall making any alterations to it? I mean, how could you?
Susanne Helliwell: I can’t – I just can’t recall. No.
Mr Henry: No. Could I, in conclusion – in his second witness statement he admits to significant problems of acceptance, touches on the subject of blue screens, but he completely ignores the Acceptance Incident which centred upon unreliable cash accounts, doesn’t he?
Susanne Helliwell: Pardon – you’d have to just take me to that.
Mr Henry: Within his second statement. He doesn’t mention anything to do with unreliable cash accounts. He doesn’t deal with a very critical Acceptance Incident which centred upon unreliable cash accounts. You, of course, unless you’re told about serious Acceptance Incidents, you can’t be presumed to know.
Susanne Helliwell: No, I can’t be presumed to know.
Mr Henry: No. You can’t say “Well, why haven’t you mentioned this?”
Susanne Helliwell: No.
Mr Henry: So you were very much dependent, weren’t you, on the information that was provided to you?
Susanne Helliwell: Yes, absolutely. And him and Jan Holmes were providing statements dealing purely with the matters that we discussed in conference –
Mr Henry: Yes.
Susanne Helliwell: – and to do with the point that was raised by Mr Lewinsky in his advice and evidence in quantum on the implied term issue.
Mr Henry: Well, thank you so much.
Susanne Helliwell: Thank you.
Sir Wyn Williams: Thank you Mr Henry.
Sorry, can we –
Ms Price: I understand Mr Jacobs has some questions, sir. Did you want to proceed or did you – it depends a little on how long Mr Jacobs will be?
Sir Wyn Williams: I think I can encourage Mr Jacobs to conclude his questions before a break, I think. Let me put it that way, Mr Jacobs.
Mr Jacobs: Thank you, sir. I’ll endeavour to be quick.
Questioned by Mr Jacobs
Mr Jacobs: I act for 157 subpostmasters, instructed by Howe+Co, and want to ask you about a specific point. Many of my clients, if not all of them, feel that Post Office’s attempts in 2004 to suppress Jason Coyne’s expert evidence and keep that out of the public domain amounted to a cover-up of the failings in the Horizon System, so I want to ask you about that.
You said in your answers this morning to Ms Price that you became specifically aware that the Post Office were worried about a precedent being set in the run-up to receiving counsel’s advice; is that right?
Susanne Helliwell: Yes.
Mr Jacobs: And –
Susanne Helliwell: I would have been, because that’s probably one of the reasons that had prompted me – I do actually refer to getting his advice after we received the report, but I know that over time, I would have – yeah, prompted – become concerned.
Mr Jacobs: You dealt with Mr Keith Baines quite a lot, didn’t you, in your dealings with the Post Office in this case?
Susanne Helliwell: More from the purposes of witness evidence. My main point of contact was Jim Cruise and then Mandy Talbot.
Mr Jacobs: But you took instructions from Mr Baines in relation to his first witness statement?
Susanne Helliwell: For his statements, yes, but in the general running of the case, it would be the legal team.
Mr Jacobs: In relation to the precedent being set point, can I refer you to a document, POL00095375. Now this – we’ll wait for it to come up on the screen.
So this is a letter from Keith Baines to Colin Lenton-Smith at Fujitsu, dated 5 February 2004. He says, if we could perhaps scroll down to the paragraph where it begins “As you will see”. So yes, if we go up again, I’m sorry, to the last paragraph on page 1. So it says:
“As you will see, the expert’s opinion is that the Horizon System installed at the Cleveleys branch was defective and that the HSH was more concerned with closing calls than preventing recurrence of faults.”
Now you’ve heard from Mr Coyne yesterday about that:
“As I’m sure [can be understood] Post Office is concerned by these findings, not only in relation to this particular case, but also because of any precedent that this may set [and the important bit is this] and that may be used by Post Office’s agents to support claims that the Horizon System is causing errors in their branch accounts.”
Now, what I want to ask you is: do you accept, from having Post Office as your client, that the precedent issue they were worried about was that other subpostmasters would latch onto the fact that Post Office knew and was aware, and their own expert had told them, that the Horizon System had deficiencies?
Susanne Helliwell: Yes, if they had issues with other agents. I wasn’t aware that they had issues with other agents concerning accounts. And also, I’m not actually sure that I would have been – received a copy of that letter at that time.
Mr Jacobs: No, of course. But you say in your evidence that you were aware that Post Office were concerned –
Susanne Helliwell: Yes.
Mr Jacobs: – that Jason Coyne’s report would set a precedent.
Susanne Helliwell: (The witness nodded)
Mr Jacobs: What I’m putting to you is that the reason for that precedent concern was that the Post Office didn’t want other subpostmasters to get wind of the fact that Post Office’s own expert has said that there were deficiencies in the Horizon System?
Susanne Helliwell: Yes, and at that time, it may not have been that there were any – as I say, I wasn’t aware of any other issues, but they wouldn’t want that to be set – a precedent to be set for any future issues should they arise.
Mr Jacobs: So is it fair to say, and you may or may not be able to answer this question of course, that Post Office were, from what you observed, involved in covering up Horizon deficiencies from subpostmasters from 2004?
Susanne Helliwell: I can’t say that I was involved.
Mr Jacobs: But that was their precedent concern, wasn’t it?
Susanne Helliwell: It wasn’t a matter of covering up and Mrs Wolstenholme could be very – obviously she was entitled to be very vocal and tell anybody about this particular – the County Court proceedings, so she could have told anybody about the findings of the report anyway. All I know is that they were concerned about adverse publicity and wouldn’t wish for that to go against them, you know, in terms of any future potential claims.
Mr Jacobs: In any future cases?
Susanne Helliwell: Yes, but not that they were aware – or I was aware of any at that time.
Mr Jacobs: Thank you.
Um –
Susanne Helliwell: I think I also mentioned before as well that, certainly, the people that I dealt with, you know, one view was that this report was based on just a very, very limited amount of documentation and that, for all we knew, the outcome of such a report could have been different had he had access to all the data, but that’s just – that was possibly something that I got the impression from the legal team.
Mr Jacobs: Did you hear Mr Coyne give evidence yesterday?
Susanne Helliwell: No, I didn’t, no.
Mr Jacobs: You said that one view was that his report was limited because of him being given limited information.
Susanne Helliwell: Mm, yes.
Mr Jacobs: But do you accept that there is another view, which happens also to be Mr Coyne’s view: that it was a perfectly valid report?
Susanne Helliwell: Oh, absolutely, yeah. Yeah, based – yeah, it was a valid report based on the information he had.
Mr Jacobs: Can I go to – and I apologise for showing this one more time – Mr Baines’ first witness statement paragraph 5.
Susanne Helliwell: Right.
Mr Jacobs: I will be very quick on this point. POL0095374. You’ll probably know this by heart now. Just waiting for it to come on screen. Here we are.
So paragraph 5, please. Now, you’d obviously read Mr Coyne’s report at the time that this was drafted. Were you concerned that what Mr Baines was saying at paragraph 5 wasn’t actually true?
Susanne Helliwell: What was the date of this statement?
Mr Jacobs: Now I’m afraid I’m not able to help you with that.
Susanne Helliwell: Oh. Can I – can you go back to the top? To the first –
Mr Jacobs: Let’s go back to the top, shall we, please. Again, it doesn’t assist us.
Susanne Helliwell: Right. Can I just check, though, that – weren’t the first set of witness statements served before Mr Coyne’s report? I can’t remember.
Mr Jacobs: Well, if that’s the case then that’s the case.
Susanne Helliwell: I don’t know, yeah –
Sir Wyn Williams: I reckon that this statement is the autumn of 2003?
Susanne Helliwell: That’s what I thought, sir, yes.
Mr Jacobs: Thank you, sir.
Susanne Helliwell: So he’d have actually done this without the benefit, you know, without having sight of Mr Coyne’s report.
Mr Jacobs: Were you concerned that the account that Mr Baines was giving in that statement, were you later concerned that that couldn’t be borne out after Mr Coyne’s expert report came out?
Susanne Helliwell: I would have been because, again, that would have prompted the – even more so the need to get counsel’s advice on the evidence because I had our statements, I had Mr Coyne’s report and it’s how our witnesses could deal with those statements in the context of the report from Jason Coyne.
Mr Jacobs: You have said that you discussed these matters with your supervising partner.
Susanne Helliwell: Mm.
Mr Jacobs: What was his name? Was that Neil Kelly, who you mentioned before?
Susanne Helliwell: This is the – this is probably what I struggle to remember because, at the time, he was my supervising partner but then we also had a partner who was responsible for that particular client, Post Office, and that could have been David Jacks, who is referred to earlier on. So I don’t, you know, I may have discussed it with both of them.
Mr Jacobs: So either or both of David Jacks or Neil Kelly?
Susanne Helliwell: Mm.
Mr Jacobs: Did Weightmans act for Post Office in other cases that were ongoing against subpostmasters?
Susanne Helliwell: My understanding at the time was that they acted more on the employment claims.
Mr Jacobs: All right.
Susanne Helliwell: But they would have done, obviously this is a litigation matter, commercial litigation matter. So they would have had some dealings but then, as you saw, the proceedings were started by Consignia, by the in-house team, and that may be what had happened. Maybe that was what had happened on the commercial litigation side initially.
Mr Jacobs: Did Weightmans view Post Office as a particularly big client or important client?
Susanne Helliwell: At the time they were but I remember more specifically on the employment side more than anything, but that’s just my recollection at the time.
Mr Jacobs: Do you think that Jason Coyne’s report is something that would have been disclosable in any future proceedings in which your firm had acted against – had acted for Post Office against subpostmasters?
Sir Wyn Williams: I’m going to stop you there, because there are so many possible permutations that that’s almost an impossible question –
Susanne Helliwell: That’s a very difficult question to answer, that.
Mr Jacobs: All right. I’ll withdraw that question.
Sir, I don’t have any further questions to ask. Thank you.
Sir Wyn Williams: Thank you, Mr Jacobs.
Thank you, Ms Helliwell, for your evidence to the Inquiry and your witness statement and your forbearance in coming back this morning as opposed to finishing your evidence yesterday afternoon. I’m grateful to you.
The Witness: It’s a pleasure. Thank you.
Sir Wyn Williams: So we’ll take our morning break, yes, Ms Price?
Ms Price: Yes, sir. Mr Beer will be asking questions of Mr Lenton-Smith next, so if we could take a 10-minute break I think that takes us to 11.30.
Sir Wyn Williams: I think we’ll have 15 minutes if you don’t mind.
Ms Price: Of course.
Sir Wyn Williams: Okay. 11.35, then.
Ms Price: 11.35, sir.
Sir Wyn Williams: Fine. Thank you.
(11.16 am)
(A short break)
(11.35 am)
Mr Beer: Good morning, sir. Can you see and hear me?
Sir Wyn Williams: Yes, I can, thank you.
Mr Beer: May I call Colin Lenton-Smith, please.
Sir Wyn Williams: Of course.
Colin Lenton-Smith
COLIN EDWARD LENTON-SMITH (sworn).
Questioned by Mr Beer
Mr Beer: Good morning, Mr Lenton-Smith, my name is Jason Beer and I ask questions on behalf of the Inquiry. Can you give us your full name, please?
Colin Lenton-Smith: Yes, it’s Colin Edward Lenton-Smith.
Mr Beer: Thank you very much for coming to give evidence to the Inquiry today and assisting us in our investigation. Thank you also for previously providing a witness statement. Can you open that witness statement, please. I think it’s the first tab in the binder in front of you.
Colin Lenton-Smith: Yes.
Mr Beer: It’s dated 22 May 2023 and, if you turn to page 14, is there a signature?
Colin Lenton-Smith: There is a signature, yes.
Mr Beer: Is it yours?
Colin Lenton-Smith: It’s my signature, yes.
Mr Beer: Are the contents of that statement true to the best of your knowledge and belief?
Colin Lenton-Smith: They are, yes.
Mr Beer: For the transcript, the URN is WITN08590100. No need to display that. I am going to ask you some questions this morning and this afternoon Mr Lenton-Smith, principally about your role in the claim brought by Mrs Julie Wolstenholme, who ran the Cleveleys post office in Lancashire, but also some broader issues about the provision of litigation support by Fujitsu, and in its predecessor guise as ICL Pathway Limited, to the Post Office.
Colin Lenton-Smith: Yes.
Mr Beer: Can I start with your background, please. You tell us in your witness statement that you qualified as a member of the Institute of Chartered Accountants and worked in industry from 1979; is that right?
Colin Lenton-Smith: That’s correct, yes.
Mr Beer: If you just move forward a little bit the microphone will pick you up a bit better. That’s it. Thank you.
You joined ICL Computers, or ICL, in 1990 as a commercial manager within the international division; is that right?
Colin Lenton-Smith: That’s correct, yes.
Mr Beer: Was that preceded by some work in the IT industry from about 1985?
Colin Lenton-Smith: Yes, I had worked for the computer company Wang for four or five years previously before joining ICL.
Mr Beer: You tell us that you worked for ICL Pathway Limited from March 2001; is that right?
Colin Lenton-Smith: That’s right, yes.
Mr Beer: Before then, had you had any involvement in the project which became known as Horizon?
Colin Lenton-Smith: No, none at all.
Mr Beer: At that time, March 2001, you joined ICL Pathway Limited as the Commercial and Finance Director?
Colin Lenton-Smith: Yes, it wasn’t a registered directorship in terms of registering at Companies House but it was a position given the seniority of the function, so it was leading the function of the commercial and the finance functions.
Mr Beer: Did you take over in that position from Anthony Oppenheim?
Colin Lenton-Smith: In that functional role yes, but not as a director of Pathway.
Mr Beer: He was a director of Pathway, I think?
Colin Lenton-Smith: I believe so.
Mr Beer: Did you stay in that role as director until October 2007?
Colin Lenton-Smith: I did, yes. Well, it changed. The role changed from being a finance and commercial responsibility to simply commercial.
Mr Beer: What did you do after October 2007?
Colin Lenton-Smith: I then worked for another multinational contract that Fujitsu had taken with an international company to manage that contract.
Mr Beer: Until your retirement in, I think, September 2018 –
Colin Lenton-Smith: Yes.
Mr Beer: – did you have any further involvement with the Horizon Programme?
Colin Lenton-Smith: None at all.
Mr Beer: So we’re principally interested in the period March 2001 until October 2007 –
Colin Lenton-Smith: Right.
Mr Beer: – about six and a half years.
Colin Lenton-Smith: Yes, that’s correct.
Mr Beer: If you can turn up your witness statement, please, WITN0590100, and look, please, on page 2, at the bottom of the page, paragraph 5. You say:
“Regarding Post Office Limited, legal action against [subpostmasters], as part of the service for Horizon, Fujitsu provided support to [the Post Office] as and when required in the form of audit data, witness statements and if required, appearances in court. Outside of the standard service [the Post Office] may request Fujitsu to provide special assistance.”
So you say here that Fujitsu provided support in the form of audit data, witness statements and court appearances to support legal action against subpostmasters. Was it your understanding that that was part of the contract between the Post Office and Fujitsu, that required, in general terms, without looking at the specific three elements you described there, litigation support to the Post Office?
Colin Lenton-Smith: Within numeric constraints. So I believe, just as I started, a number of audit requests were made available, a negotiated position that Fujitsu then – or ICL Pathway then provided to Post Office. I think it was 50 around that time.
Mr Beer: What about anything more fundamental than that? So rather than the number per month or year of packets of audit data, anything more fundamental in the contract, was it your understanding that the contract contained any such provisions?
Colin Lenton-Smith: I think it was – there was a letter from Martyn Bennett to Post Office, which I believe – there was an agreement reached on limiting a general statement on provision of information to these number of requests, but I can’t recall whether there was anything wider than that.
Mr Beer: Okay. If we just go a the page to paragraph 4, you say, as the Commercial Director:
“My role involved managing an autonomous finance team and a small commercial team to contract manage the Horizon contract with Post Office and to execute contract changes for [some things].”
Yes?
Colin Lenton-Smith: Yes, that’s right.
Mr Beer: So was your job essentially managing the contract?
Colin Lenton-Smith: It was managing the contract, yes. Well, it was managing the contract from a commercial perspective, so that my opposite number in the Post Office, Keith Baines, we would have discussions about the points of the contract and these would be discussed or issues that were raised would be discussed through Commercial Forum, monthly, I believe, but periodically, to deal with issues that arose from the contract.
Mr Beer: So at the time, you would have been very familiar with the terms of the contract between the Post Office and Fujitsu?
Colin Lenton-Smith: Yes.
Mr Beer: Can we look at, I think, the letter to which you were referring, FUJ00155527. Just forgive us a moment. Thank you.
This is indeed a letter to Charles Leighton from Martyn Bennett. If we just look at the letter generally to start with and look at the foot of the second page – thank you – you’ll see that it’s written by Martyn Bennett, the Quality Director within ICL.
Then go back to the first page. It’s written to Charles Leighton, the Internal Crime Manager in Post Office, and it’s dated 6 February 2001.
We’ll see in a moment that this concerns contractual provisions and, most specifically, the Post Office’s need to have Fujitsu staff produce witness statements for the purposes of legal proceedings. So this is dated February 2001, that’s about a month before you took up position; is that right?
Colin Lenton-Smith: That’s right.
Mr Beer: Is that an issue with which you became familiar when you took up your post?
Colin Lenton-Smith: I find it – I’m finding it difficult to remember that, specifically. Working backwards from the fact that we had contracted for a number of audit requests and that was an ongoing discussion with Post Office Commercial in terms of providing more – increasing the number. There are, in the minutes of the Commercial Forum later on, there are points about increasing DWP support for – support, litigation support. So I think it was an ongoing position that we started at 50, which I think is what this letter and I think Keith Baines, one of his submissions refers to as 50, but I think they increased over time. I can’t remember specifically the numbers we got to but it was a topic for discussion.
Mr Beer: This is about witness statements –
Colin Lenton-Smith: Witness statements, yes.
Mr Beer: – in particular, rather than the provision of audit data.
Colin Lenton-Smith: Yeah.
Mr Beer: Was that an issue with which you became involved, when you took up to post a month after this letter was written?
Colin Lenton-Smith: Not specifically, no.
Mr Beer: Who – we saw that Mr Bennett was described as the Quality Director at ICL. Was he a person who you knew within ICL?
Colin Lenton-Smith: No, he had left – he left almost immediately after I joined, and –
Mr Beer: What was the role of Quality Director? What does that mean?
Colin Lenton-Smith: Well, it wasn’t a – it’s not a function that I recognise existing at the time. I recall that maybe that was passed over to other functions, such as the audit manager, but I’m not sure there was a specific Quality Director during my time there.
Mr Beer: So he wasn’t a part of your team, Mr Bennett?
Colin Lenton-Smith: Not part of my team, no. Part of the commercial team – not part of the commercial team.
Mr Beer: He was not part of the commercial team?
Colin Lenton-Smith: No.
Mr Beer: Was he working in the same office as you?
Colin Lenton-Smith: He may have been working in Feltham, which is where we were based. But –
Mr Beer: That’s what the letterhead suggests.
Colin Lenton-Smith: Yeah, but I don’t recall him – I think he must have left that position around that – around March, because I just can’t recall his being around at the time.
Mr Beer: If we look at the foot of the second page, please, we’ll see to whom the letter was copied and we’ll see that it was copied to Tony Oppenheim, your immediate predecessor?
Colin Lenton-Smith: Yes.
Mr Beer: Presumably you received some sort of handover from Mr Oppenheim?
Colin Lenton-Smith: Yes, I did.
Mr Beer: Would that include passing over of files?
Colin Lenton-Smith: There would have been correspondence handed over, yeah.
Mr Beer: So we can assume that this would – you will have no specific memory, but this is the kind of thing that would be handed over?
Colin Lenton-Smith: Yeah, I mean if there’s a copy of this letter, a hard copy of this letter on file within the commercial library of information, then I would have had that copy.
Mr Beer: Can we go back to the first page, please. I am going to spend a little time on the letter.
Colin Lenton-Smith: Okay.
Mr Beer: If I may, because this is a new document to the Inquiry, received relatively recently, and I’m going to, therefore, given the importance of the issue, look at it carefully. You’ll see the heading is “Witness Statement Request”, and Mr Bennett says:
“I am writing to respond to the exchange of emails between yourself and Graham Hooper recently re your request for the provision of witness statements.”
Can you recall who Graham Hooper was?
Colin Lenton-Smith: Yes, I do, yes.
Mr Beer: What was your recollection of the function that he performed?
Colin Lenton-Smith: He worked with Jan Holmes in the audit area, which included the provision of witness statements.
Mr Beer: Some of the documents have got him signed off, including in an email signature block, as a Security Manager within the Security Team at ICL?
Colin Lenton-Smith: Okay, I can’t –
Mr Beer: Does that jog your memory?
Colin Lenton-Smith: You’ve jogged my memory. I didn’t remember offhand what it was, but I think clearly that was his role.
Mr Beer: Was he someone that you dealt with on occasion –
Colin Lenton-Smith: On occasion I –
Mr Beer: – given your role –
Colin Lenton-Smith: Yes.
Mr Beer: – ie when an issue over the contract arose that concerned the function that he was performing?
Colin Lenton-Smith: Yes. So if there was material to be gained – to be put together in response to a commercial issue that the commercial department in Post Office would have raised, then in formulating the response, he might have been part of that, bringing that together, the information that we then responded back to Post Office with.
Mr Beer: So this Mr Bennett, the Quality Director, writing to the Internal Crime Manager in the Post Office saying, “You’ve exchanged some emails between a Security Manager within us, ICL”?
Colin Lenton-Smith: Yes.
Mr Beer: He says:
“I believe that the relevant provision is Requirement 829/1 which states:
“‘The CONTRACTOR shall ensure that all relevant information produced by the POCL Service Infrastructure at the request of POCL shall be evidentially admissible and capable of certification in accordance with the Police and Criminal Evidence Act (PACE) 1984, the Police and Criminal Evidence (Northern Ireland) Order 1989 and equivalent legislation covering Scotland’.”
So this mentions the relevant requirement in the contract?
Colin Lenton-Smith: Yes.
Mr Beer: “My concern [he says in the fourth paragraph] is that POCL sees this requirement as an open-ended obligation on Pathway to produce information related ‘witness statements’ at POCL’s request. This is not how we see it. The requirement is that relevant information produced by the Horizon System at POCL’s request be admissible evidence in Court (which so far as such information in itself can be, it is) and capable of certification in accordance with PACE (or equivalent in Northern Ireland and Scotland). As you are no doubt aware, the relevant sections of PACE (s69 and s70) were repealed by the Youth Justice and Criminal Evidence Act 1999, which came into force on 14 April 2000.”
So having cited the relevant provision of the codified agreement – I think he’s citing from version 3 of the codified agreement there – he sets out ICL’s interpretation of the provision, which is that relevant information produced by Horizon should be admissible evidence in court and capable of certification. Do you recall that being ICL’s interpretation of the relevant part of the contract?
Colin Lenton-Smith: No. Not when this was written because it was before I started.
Mr Beer: Did you discuss this issue with Tony Oppenheim when he left or as part of the handover?
Colin Lenton-Smith: Not that I recall.
Mr Beer: Did you ever have cause to look at this part of the contract in the coming months and years?
Colin Lenton-Smith: Not that I recall.
Mr Beer: Let’s carry on, in substantive paragraph 5:
“We have made our position with respect to requirement 829 clear on a number of occasions. However, given that you seem surprised by the stance taken by Graham Hooper, it may be of assistance if I set out some of the background. The issue of witness statements was discussed in meetings between Barry Proctor (then our Security Manager) …”
Do you remember Barry Proctor?
Colin Lenton-Smith: No, I don’t.
Mr Beer: Bob Martin, recall him?
Colin Lenton-Smith: No.
Mr Beer: Paul Harvey, remember him?
Colin Lenton-Smith: No.
Mr Beer: “… in July 1999. It was made clear in those meetings that Pathway did not consider the production of witness statements to be included in the scope of the requirement. An Acceptance Incident (370) was raised by POCL (Bob Booth) on 23 July 1999 and a clearance action for this incident was agreed as follows …”
Can you recall what Acceptance Incidents were?
Colin Lenton-Smith: I think these were incidents that were raised during the acceptance process of the Horizon software.
Mr Beer: Do you recall anything more about what an Acceptance Incident, an AI, was?
Colin Lenton-Smith: No.
Mr Beer: In any event, the AI was agreed as follows:
“‘Pathway will provide PACE statements as necessary to support a fraud prosecution. Pathway will update the work required to produce draft witness statements when POCL have raised an appropriate Change Request, as indicated in the letter from Barry Proctor to Paul Harvey dated 8 June 1999. The reason why this is necessary is because Pathway has no contractual obligation to provide POCL with any evidence to support a prosecution’.”
So these are all events that predated your time in your position, yes?
Colin Lenton-Smith: Yes.
Mr Beer: Did you know that the Post Office was supposed to produce a change notice to make provision for the production of witness statements?
Colin Lenton-Smith: Well, that would have been a natural change to the contract. So any change to the contract would have gone through the change control process and, if Post Office wanted to provide for that or request that, then they would have issued this change request, which would have gone through, impacting an assessment and come to a commercial arrangement, and that would then have been included – drafted into the contract as a change.
Mr Beer: So what this is saying is that an Acceptance Incident was raised with agreed wording and, amongst that, it was agreed that, because the contract includes no obligation to provide the Post Office with any evidence to support a prosecution, it’s necessary for the Post Office to raise a change to the contract through a change notice?
Colin Lenton-Smith: Yes, exactly.
Mr Beer: The letter continues:
“The statutory requirement for PACE statements and certification no longer exists (as above). POCL has never submitted the required change [notice] hence my negative response to your request to Graham Hooper for draft witness statements.”
When you joined, a month after this letter was written, did you know that the Post Office was supposed to have produced a change notice, ie tabling a change to the contract, but that it had failed to do so?
Colin Lenton-Smith: Not specifically. I can only surmise that it eventually did happen because the issue of witness statements became a change to the contract, so this point I was talking about, the limit of 50, would have been dealt with through a change request.
Mr Beer: So it’s a separate issue, the provision of audit data. We’re at the moment looking at the provision of witness statements.
Colin Lenton-Smith: Again, I can’t specifically recall the change, but I can – I believe that that would have happened in order to come to an agreement that we would produce, or that Fujitsu would produce witness statements, however numbered they were – however numbered they were going to be, that would have been dealt with through a change request. So any change to the contract would have been done through a change control, through a change request, and then a change to the contract.
Mr Beer: In the answer before last you said, “I would surmise that” –
Colin Lenton-Smith: Well, I surmise it in the fact that I wasn’t around when this was – the fact that they had – you’re suggesting that they hadn’t produced it or this letter says they hadn’t produced it. I wasn’t aware that they hadn’t produced it and all I can suggest is that, because we were doing it later, that a change request would then have subsequently been issued, that we would have then impacted and then bought into the contract.
Mr Beer: Okay well, we’ll look at the rest of the letter to see whether that follows at all because what we’ll see is that there’s a without-prejudice agreement to produce witness statements. I don’t think we’ve got a change notice in any of the disclosure that we’ve got.
Colin Lenton-Smith: Really? Okay.
Mr Beer: You’re essentially putting two and two together and saying they equal four because “We must have had a change notice because we produced witness statements”?
Colin Lenton-Smith: That’s what I’m saying, yes. That doesn’t necessarily follow but it’s kind of a logical path.
Mr Beer: Okay. The letter continues:
“In answer to your query as to what change could be requested, the Change Request would either be for a particular statement required by POCL, or (which would appear the more sensible option) to change Requirement 829 such that it incorporates a more general obligation to produce witness statements. Any such Change Request would be subject to impact assessment and costing in the usual way.”
So what this is saying is that, “Because there’s a change to the contract here, we’ll have to assess its impact and work out how much we’re going to charge you for it”?
Colin Lenton-Smith: Yes.
Mr Beer: Mr Bennett continues:
“As things happened, [AI370] was not closed on the basis of the clearance action referred to above. It was closed instead, without concession by Pathway, on the basis of agreement between POCL and Pathway concerning access to audit information. The background to the audit information agreement (as you are probably aware) is that during the first few months of 2000 there was discussion and correspondence about the requirement to produce audit information to support investigations. This culminated in agreement in principle being reached at a meeting on 29 March 2000 that Pathway would provide up to 50 audit data extractions per annum for audit and security investigation purposes, with a maximum of 7 in any calendar month. The basis of the agreement was described in more detail in my letter of 24 May 2000 to Keith Baines and confirmed subsequently in connection with closure of [AI370] in September 2000 …”
He provided the documents:
“Pathway has been providing access to audit information in accordance with the agreed limits and other matters set out in that letter (in relation to which, by way of further confirmation of the agreed arrangement, Pathway will raise a [change notice]).”
So what he’s saying here is that, although the AI was concerned with the production of draft witness statements, it was actually closed off by a different agreement relating to the provision of audit data.
Colin Lenton-Smith: Yes.
Mr Beer: Therefore, the witness statement issue remained outstanding?
Colin Lenton-Smith: Yes.
Mr Beer: He continues in the last paragraph:
“I trust that the above makes Pathway’s contractual position clear. In accordance with your email to Graham Hooper of 10 January stating that you ‘would be happy to agree to accept the cost to produce the Statements on a “without Prejudice subject to Contract” basis at this time, pending the outcome Commercial discussions’, Pathway is willing to provide witness statements. However, I emphasise that this is without prejudice to the above position and Pathway does not accept that it is contractually obliged to do so.”
Were you aware of that without prejudice agreement when you took over a month after this letter was written?
Colin Lenton-Smith: I can’t remember that specific detail.
Mr Beer: Over the next six and a half years, were you aware of any change in the contract, whether raised by a change notice or otherwise, that made specific provision for the production of witness statements?
Colin Lenton-Smith: My memory is not good enough to remember specific details about the witness statements.
Mr Beer: I understand. So let’s move on, please, and see what happened. Can we look, please, at FUJ00121788. If we scroll down just a little bit further, we can see this is a letter from Mr Hooper, the Security Manager, dated 8 September – if we just scroll up a little bit please – 2001, so when you’re in post –
Colin Lenton-Smith: Yeah.
Mr Beer: – to Mr Leighton, the Internal Crime Manager, about the Higher Broughton Post Office, saying:
“Dear Charles
“Please find enclosed as requested a witness statement in respect of Higher Broughton Post Office. This has been produced under our ‘without prejudice’ agreement as outlined in Martyn Bennett’s letter to you of 6 February 2001.
“Thank you for your acceptance that POCL will be charged on a Time and Materials basis for this work.”
If we skip over the page we can see there is a witness statement –
Colin Lenton-Smith: Yes.
Mr Beer: – and it goes on for pages and pages, okay?
Colin Lenton-Smith: Yeah.
Mr Beer: Going back to the first page, then. We can see that the witness statement is being produced under the without-prejudice agreement that’s recorded in the letter of 6 February that we’ve just looked at.
Colin Lenton-Smith: Yes.
Mr Beer: As part of your commercial responsibilities were you aware that the Post Office had agreed to pay ICL on a time and materials basis –
Colin Lenton-Smith: I do remember that, yes.
Mr Beer: – for support in pursuing prosecutions –
Colin Lenton-Smith: Yes.
Mr Beer: – including the provision of witness statements?
Colin Lenton-Smith: Yes.
Mr Beer: Can you recall when into the process you discovered that?
Colin Lenton-Smith: Can you see who is copied on this letter?
Mr Beer: I don’t think there’s any copy, if you scroll down. I should say that there’s lots of these letters throughout your period in office –
Colin Lenton-Smith: Yes.
Mr Beer: – providing witness statements. This is just an example where Mr Hooper, or the author of the letter, says, “Here’s a witness statement, I’m providing on the basis of the without-prejudice agreement in the letter of 6 February”.
Colin Lenton-Smith: Yes, I suspect that I would have been aware of the fact because, as a commercial issue, we’d have to charge – the finance function was part of my function – of my responsibility and, therefore, we would be responsible for billing the Post Office for the time and materials.
Mr Beer: So what was happening was that ICL was providing litigation support, not pursuant to a contract – because it argued that the contract didn’t require it –
Colin Lenton-Smith: Yes.
Mr Beer: – but pursuant to a without-prejudice agreement contained in a letter?
Colin Lenton-Smith: Yes.
Mr Beer: Were there any similar arrangements in place for the provision of litigation support for non-criminal investigations, ie civil litigation?
Colin Lenton-Smith: I can’t recall whether there was a distinction.
Mr Beer: Were you aware of any formal policy within Fujitsu or any protocol between Fujitsu and the Post Office that carried the arrangements that we see here into effect?
Colin Lenton-Smith: No. I mean, there are quite a lot of documentation around the contract, contract reference documents, and various other documentation, and I can’t specifically remember – I mean, there’s quite a lot of them. It was a long time since I’ve seen the list of such documentation. I didn’t notice any in the bundles.
Mr Beer: We’ve given you copies of the codified agreements that are relevant to this time, and I’ll look at one of those just very briefly in a moment. What I’m essentially asking is: were you aware of any policy within Fujitsu that said, “We’ve taken on this function, these are the standards that are going to be applied, these are how those standards are going to be achieved, this who is going to do what and this is how we’re going to do it”?
Colin Lenton-Smith: I couldn’t – I can’t name a document specifically that would do that.
Mr Beer: Would you expect there to be –
Colin Lenton-Smith: I would expect there to be a document. My view of Pathway’s internal documentation and controls was I thought it was very good. It was well documented – all the processes were well documented. I would expect that Graham Hooper, as Security Manager, there would have been security policies and audit policies that Pathway would have followed, as a matter of course. It’s not something that would be left floating, so there would be specific – could well be a specific document. I would expect there to be a specific document within the library that would set out what we were going to do in this instance.
Mr Beer: How it was going to be done and who was going to do it?
Colin Lenton-Smith: Exactly.
Mr Beer: Because, as you say, it can’t just be left floating?
Colin Lenton-Smith: No, it was a common methodology that there was such – all the policies and procedures that followed were, I thought, in my view, well positioned as a controlling mechanism of how the account was run.
Mr Beer: Can we look, then – we’re going to look at three documents that perform a similar function, if they had been either issued as operative guidance or actually carried into effect. Can we start, please, with FUJ00152140.
Again, I’m going to spend a little time on this document as it’s a new document for the Inquiry, received by us after all of the relevant witnesses in Phases 2 and 3 had given their evidence. Can you see the title to the document “Evidential Information – Production, Certification and Retention”?
Colin Lenton-Smith: Yes.
Mr Beer: That looks quite hopeful, doesn’t it, in terms of performing the function that you just spoke about?
Colin Lenton-Smith: Yes.
Mr Beer: Then look at the “Abstract”:
“A description of the process required to demonstrate the integrity of a PACE certificate and the associated declaration.”
Again, that looks quite hopeful, doesn’t it?
Colin Lenton-Smith: Yes, yes.
Mr Beer: If we scroll down, please, to see who it was authored by, you’ll see its status, first, is an “Initial draft”. I ought to have said the date at the top right was 4 August 1988. I appreciate these are before your time, by some margin.
You’ll see that it’s authored by Barry Proctor and the distribution includes Graham King; Matthew Cooper, from Alliance & Leicester; Graham Hooper, from Alliance & Leicester; Pete Spence; Alan D’Alvarez; Christopher Billings; Dave Campbell (ICL Outsourcing); Martyn Bennett and the Library. This, of course, is a few years before you took up your position and, therefore, you’re not mentioned at all.
Just a couple of questions. Do you recall what ICL Outsourcing was?
Colin Lenton-Smith: Yes, I believe it was the procurement function for Fujitsu at the time.
Mr Beer: So procuring –
Colin Lenton-Smith: Third-party services.
Mr Beer: You’ll see that one of the places to which it was distributed was a library. Was that an intranet library –
Colin Lenton-Smith: It was an intranet library, yes.
Mr Beer: – to which you would have had access?
Colin Lenton-Smith: Err … I’m just pausing because I’m not sure whether the library – the library was controlled by the project office and by the change control functions. So it was part of the documentation set that they managed. So it would have been available on request but I’m not sure that it was simply a document – simply a library that one could just dial up and look at documents.
Mr Beer: How would you know whether to look for a document in a library if you didn’t have access to the library?
Colin Lenton-Smith: It’s a good question. I can’t remember how the library was managed. It was part of the infrastructure sort of function that supported software and services. It was the change control function.
Mr Beer: Okay. I’ll move on. Can we go to page 4, please. We can see the “Introduction”. There’s some three passages on this page that I’m going to draw your attention to, that may suggest – I’d like your view – that this is a policy or a process document that’s about benefit payment fraud prosecutions, not the prosecution of subpostmasters for theft or false accounting.
So can you see in the first sentence:
“Prima facie evidence to be presented for benefit payment fraud prosecutions is obtained solely from the ICL Pathway Fraud Case Management System (FCMS). This computer output is only admissible in evidence where special conditions are satisfied. These conditions are described in detail in Section 69 of [PACE] and require ICL Pathway to provide ‘honest’ certification of such computer-generated evidence.”
Would you agree that the first sentence appears to restrict the coverage provided by this document to benefit fraud payment prosecutions?
Colin Lenton-Smith: Well, the topic is about benefit payment fraud prosecutions, yes.
Mr Beer: Well, let’s look under “Scope”, then:
“This process describes the PACE certification of computer evidence originating within the ICL Pathway [FCMS] to support benefit payment prosecutions.”
The last part of that sentence again suggests that this is all about benefit payment fraud prosecutions, wouldn’t it?
Colin Lenton-Smith: It would seem so, yes.
Mr Beer: If we just scroll down to paragraph 4 at the bottom, under “Certification”:
“Irrespective of the number of fraud prosecutions that the ICL Pathway FCMS supports, a PACE certificate must be provided for each individual prosecution.”
So that’s probably the third indication, the first part of that sentence, which again suggests that this document was all about fraud prosecutions involving benefit payments, agreed?
Colin Lenton-Smith: It would seem so, yes.
Mr Beer: So, on the face of it, not much to do with the prosecution of subpostmasters for theft by them or false accounting by them?
Colin Lenton-Smith: On the face of it, yes.
Mr Beer: Can we now look at a later iteration of the policy, please, FUJ00152142. You’ll see that – and, again, this document is new to the Inquiry. Can you see that the title and the abstract are the same?
Colin Lenton-Smith: Yes.
Mr Beer: It’s moved from being an initial draft to a draft?
Colin Lenton-Smith: Yes.
Mr Beer: The distribution list is broadly the same, albeit Dave Campbell at ICL Outsourcing has been changed to Les Fereday at ICL Outsourcing –
Colin Lenton-Smith: Yes.
Mr Beer: – and I think Patrick Cattermole is added to the list. You’ll see, top right, that it’s dated 9 December 1998.
Colin Lenton-Smith: Yes.
Mr Beer: The first one was, remember, 4 August 1998, so we’re four/five months on. Are any of those people on that list, the distribution list there, Post Office people, to your knowledge?
Colin Lenton-Smith: Not that I’m aware of.
Mr Beer: Again, we can see that it goes to the library.
Now, can we look at two documents side by side, the relevant parts of them, please. On the left-hand side of the page can we have FUJ00152140 at page 4 and on the right-hand side of the page can we have the document we are on, FUJ00152142, also at page 4. Thank you.
So left-hand side of the page, August; right-hand side of the page, December.
Can you see in relation to the three points that I picked up earlier suggesting that the left-hand document was all about benefit payment fraud, that they’ve gone? So in the “Introduction”, it says:
“Prima facie evidence to be presented in support of criminal prosecutions …”
Colin Lenton-Smith: Yes.
Mr Beer: So the restriction or limitation of benefit payment fraud prosecutions has gone.
Colin Lenton-Smith: It has, yes.
Mr Beer: Can you see, under “Scope”, whereas the last line of the first paragraph of “Scope” suggested that the policy related to support benefit payment fraud prosecutions, in the third line of “Scope”, that’s been changed to “to support criminal prosecutions”?
Colin Lenton-Smith: It has, yes.
Mr Beer: Then, fourthly, under “Certification”, whereas previously it mentioned “Irrespective of the number of fraud prosecutions”, that’s just been changed to:
“PACE certificates may be required for each individual criminal prosecution …”
Colin Lenton-Smith: Indeed.
Mr Beer: So it looks like the fraud, benefit fraud, has been stripped out?
Colin Lenton-Smith: Yes, it does.
Mr Beer: There’s a couple of flies in the ointment to the suggestion that I’m making, that there’s been a stripping out of the coverage of the policy, to remove the limitation on benefit fraud prosecutions. If we go over on the right-hand side of the page, one page to page 5, if you look at the bottom under paragraph 5:
“In order to demonstrate the integrity of a Horizon PACE certificate for the Benefit Payment Service, it is necessary to describe the information”, et cetera, et cetera?
So that again seems to be focused on benefit payments, doesn’t it?
Colin Lenton-Smith: Yes.
Mr Beer: Then if you go over the page on the right-hand side again, there’s a diagram – and these appeared in the earlier iteration in exactly the same way. You’ll see there’s a diagram of information flow, and can you see that it starts with CAPS, which was a Benefits Agency payment system.
Colin Lenton-Smith: Yes, I can see that.
Mr Beer: So not completely clear because there are two residual mentions of Benefits Agency payments, therefore suggesting that the policy might be focused on fraud prosecutions, agreed?
Colin Lenton-Smith: Yes.
Mr Beer: Overall, would you agree that this tends to suggest that this later iteration of the policy was broader in its coverage?
Colin Lenton-Smith: It would seem it was heading that way, even if there were flies in the ointment. But this was still a draft, wasn’t it?
Mr Beer: It was still a draft. Can we see what the substance of the policy says, and I’m going to use the later version, the one on the right-hand side to do this, so we can lose the one on the left, please.
Thank you. Then if we can blow up underneath the diagram. The policy says:
“Given the size and complexity of the Horizon system, it is conceivable that the integrity of the PACE certificate will be challenged by Counsel in order to discredit a prosecution. If it is not possible to demonstrate the certificate’s integrity to the Court’s satisfaction, a very dangerous precedent will have been set and all subsequent prosecutions will be automatically jeopardised. However, the corollary is also true and a successful demonstration of honest certification will stand all subsequent prosecutions in good stead.”
It continues, in the light of those warnings, to say:
“Comprehensive records pertaining to the site(s), services and individuals concerned should be able to produced at all … times. These records will serve to show that the relevant services were available at all material times, were operating properly and had not been used inappropriately.”
So looking at those two paragraphs together, would you agree that this was suggesting that the person who signs the certificate must be able to produce evidence to support what they were certifying?
Colin Lenton-Smith: Yes.
Mr Beer: It was said that it was – forgive me a moment.
If we go further up to page 4, please. Sorry, to page 5. The policy says in the first paragraph:
“It is therefore vitally important that whoever signs the PACE declaration on behalf of ICL Pathway can produce evidence to support these statements.
“Traditionally, PACE certificates are signed by a senior member of the Computer Operations staff responsible for managing the computer installation and its associated networks. ICL Outsourcing performs this role as a managed service for ICL Pathway, and it is assumed that the information required for their assurance is available to them in day-to-day operational documentation and as management information …”
Then there’s a note to Les Fereday to provide more appropriate wording:
“The certificate (see example at appendix A) contains a declaration including the statement ‘I sign this certificate knowing that I shall be liable for prosecution if I have stated in it anything which I know to be false or do not believe to be true’, it is therefore in his rational self-interest to ensure (a) that the logs are adequately comprehensive and (b) that they are investigated thoroughly.”
Just pause a moment, there’s some movement going on to my right. I just need to check out what’s going on.
So, it says that it is vitally important that the person who signs the certificate must be able to produce evidence to support what they’re certifying, yes?
Colin Lenton-Smith: Yes.
Mr Beer: You can’t just sign a certificate. You’ve got to be able, if you’re challenged, to produce secondary evidence to support what you’re saying, is what this policy is suggesting?
Colin Lenton-Smith: It is.
Mr Beer: Then it says:
“Traditionally PACE certificates are signed by a senior member of the Computer Operations staff”, with a capital “C” and capital “O”.
Who were Computer Operations?
Colin Lenton-Smith: I couldn’t tell you.
Mr Beer: Have you any idea?
Colin Lenton-Smith: Possibly the service function, because it relates to managing the computer installation and its associated networks. So –
Mr Beer: We know in due course that people from the third tier of support, the SSC, provided some witness statements and some analysts in the security department provided witness statements. Are either of those within the description of Computer Operations staff?
Colin Lenton-Smith: Potentially. I’m trying to – it’s really where the functions sat or they sat across, so it’s – so statements that were signed by – you saw Graham Hooper and we’ve seen Jan Holmes, would have sat across a – not a definition but a title of Computer Operations, I guess, within the Computer Operations.
Mr Beer: It continues in the last paragraph there, having set out what the declaration on the witness statement says, that it is:
“… in his [I think that’s going to be the author of the statement] rational self-interest to ensure that (a) logs are adequately comprehensive and (b) that they are investigated thoroughly.”
Would you agree that that is common sense –
Colin Lenton-Smith: Yes.
Mr Beer: – and that it contemplates the production of logs?
Colin Lenton-Smith: It would suggest that logs are available.
Mr Beer: Yes, and logs that have been investigated thoroughly –
Colin Lenton-Smith: Yes.
Mr Beer: – not just produced. They’ve been investigated thoroughly before they are produced?
Colin Lenton-Smith: Into signing the certificate, yes.
Mr Beer: Would you agree that this document is a document that ought to be shown to or explained to anyone who produced a witness statement for Fujitsu in a criminal prosecution or civil proceedings?
Colin Lenton-Smith: To the extent that this – that PACE certificates were required, yes.
Mr Beer: Would you agree that its terms should have been complied with?
Colin Lenton-Smith: If it became a version 1.0 published document, yes.
Mr Beer: We’re going to see that that never happened, that it never became a 1.0. Do you know why it wouldn’t happen? What would stand in the way?
Colin Lenton-Smith: Well, wasn’t the Martyn Bennett letter referring to the fact that PACE certificates weren’t required?
Mr Beer: So do you know that that is the reason why –
Colin Lenton-Smith: I don’t –
Mr Beer: – it never became a 1.0?
Colin Lenton-Smith: I can’t specifically say that but I can assume – well, I can come to that conclusion that because PACE certificates were not required, this particular policy never – was never required, but it may have appeared in some other form, in terms of the production of witness statements.
Mr Beer: Can we go on, please, to page 6, and scroll down, please, to where we left off:
“This secondary evidence should include, but is not restricted to, the following …”
Then there’s a series of bullet points. So this is saying that behind the certificate should be kept some comprehensive records, which is described as secondary evidence, and they should include an external auditor’s certificate of data integrity.
Were you ever aware of external auditors providing certificates of the integrity of Horizon data?
Colin Lenton-Smith: I can’t say one way or the other. If they were, it may well have been arranged at a – at this operational level in the production of the statements. But I can’t specifically recall an external auditor. That doesn’t mean to say it didn’t happen.
Mr Beer: But you’ll see, certainly at this time, the policy that was being proposed, when Section 69 and 70 of PACE were in force, was that there should be an external auditor’s certificate of data integrity?
Colin Lenton-Smith: Yes.
Mr Beer: Can you recall any discussion that followed the repeal of Section 69 of PACE about the continuing necessity for an external auditor’s certificate of data integrity?
Colin Lenton-Smith: It wasn’t dealt with at a commercial level, as a commercial matter.
Mr Beer: If there was a cost involved in that, that’s something that would have bubbled up to your level, wouldn’t it?
Colin Lenton-Smith: Yes, I’m getting to that point, that I can’t recall whether we actually paid – I mean the level of detail, you know, number of suppliers that we – payments that we would have made over the years, over the time, I can’t specifically recall a – whether we did or whether we didn’t.
Mr Beer: Secondly:
“Logs of calls to the Horizon System Helpdesk and the Payment Card Helpline detailing incidents of error, inaccuracy or value function pertaining to the sites, equipment, services and individuals concerned …”
I’m going to skip over the next couple and go over the page, please, and the last bullet point. The secondary evidence should include:
“Testimony from expert witnesses stating that, in their experience, similar incidents have never happened or, if they had, they would be reflected in the relevant audit log.”
Can you recall when you joined, whether that was something that occurred, namely ICL, when it produced any certificates or witness statements supporting a criminal prosecution, would also seek, as part of the secondary evidence, testimony from expert witnesses stating in their experience similar incidents had never happened or, if they had, they’d be reflected in the relevant audit log?
Colin Lenton-Smith: No, I can’t.
Mr Beer: Can we move on, please, and look at FUJ00152171. So this is the third in the trilogy of documents that I wanted to show you. You’ll see that this is dated 30 January 2001. It’s a version 0.1 and therefore a draft. If we see that the title has changed to “Production of System Information for Evidential Purposes”, the abstract is:
“Requirements and procedure for the production of evidential information to support potential prosecutions and procedure for the creation of Witness Statements.”
It seems to have been written by Graham Hooper. Distribution: ICL Pathway Library, Graham Hooper, Chris Billings. So this is January 2001, just before you joined, a slightly different title and abstract to what we saw earlier, and this is a procedure document, whereas the last ones were described as process documents.
Can we go, please, to page 4. We can see in paragraph 1 that the mentions of PACE have been stripped out.
Colin Lenton-Smith: Yes.
Mr Beer: Would you agree that this tends to suggest that this policy document is applicable to all criminal prosecutions in which ICL are involved?
Colin Lenton-Smith: Yes.
Mr Beer: Looking at “Scope”, again, mention here of PACE and, indeed, of benefit fraud prosecutions not included. Then under 4.0 “Certification”, this draft policy reads:
“Traditionally PACE certificates are signed by a senior member of the Computer Operations staff responsible for managing”, et cetera, et cetera.
You’ll remember that from the last document we looked at.
Colin Lenton-Smith: Yes.
Mr Beer: “The certificate (see example at Appendix A) …”
We’ll come back to that because, in fact, Appendix A does not include a sample declaration. Then it sets out the sample declaration and then, if we go over the page, please, 4.2:
“The manager of the ICL Pathway Fraud Risk Management team, or his deputy, will advise a nominated member of ICL Outsourcing of the relevant dates and times for which a PACE certificate is required.”
So it is mentioning PACE in these parts:
“The … nominee will consult operational records pertaining to computer and network operations on the dates and times advised, in order to satisfy himself that a certificate can be signed with confidence. A statement should accompany the certificate to the effect that additional (supporting) evidence to uphold the certificate can be produced … To offer all the evidence without it being requested would only serve to flood the courtroom with documentation.”
Then “Supporting Evidence” gets its own heading under 5.0. There’s the passage about it being conceivable that the integrity of the PACE certificate will be challenged. Comprehensive records must be available to be produced, as before and they’re set out, including the external auditor’s certificate of data integrity. Then, over the page, we’ll see exactly the same as before.
Colin Lenton-Smith: Yes.
Mr Beer: Now, you’ll remember that it said that the PACE certificate was in Appendix A?
Colin Lenton-Smith: Yes.
Mr Beer: If we go over the page, please, we can see what Appendix A is and, in fact, it’s not a PACE certificate at all; it’s a witness statement –
Colin Lenton-Smith: Yes.
Mr Beer: – a blank witness statement in terms of date and author.
If we just scroll through very slowly, you can see it’s like a template to be written by a security analyst, and it’s describing the balancing process, and then later, the extraction of documents.
Then, over the page, please, and then over the page again. There’s an interesting line at the top of this third page:
“The integrity of audit data is guaranteed at all times from its origination, storage and retrieval to subsequent despatch to the requester. Controls have been established that provide assurances to Post Office Internal Audit that this integrity is maintained.”
So a draft witness statement, rather than a certificate.
Colin Lenton-Smith: Certainly.
Mr Beer: So would you agree that post the repeal of Section 69 of PACE, the draft policy appears to have changed and, although there’s some language that refers to PACE certification, the draft policy is suggesting that everything that has been said before in the drafts obtains but now we will produce a witness statement rather than a PACE certificate?
Colin Lenton-Smith: It would appear so, yes.
Mr Beer: Do you know why this would not be carried into effect, would not ever become version 1.0?
Colin Lenton-Smith: You’re telling me it didn’t become?
Mr Beer: Correct.
Colin Lenton-Smith: I can’t say, unless there was another document, another document which dealt with production of witness statements.
Mr Beer: We haven’t been given one. You would agree, wouldn’t you, and I think you, in fact, did earlier, that it would be important to have a policy that carried the contractual requirement or the without-prejudice agreement into effect, that told people within Fujitsu how it was going to be done?
Colin Lenton-Smith: Yes, I – that’s what I said.
Mr Beer: Can you think of a good reason why a policy like this would not be carried into effect?
Colin Lenton-Smith: I can’t think of a good reason.
Mr Beer: Sir, we’re about to turn to the Cleveleys case. I wonder whether that would be a good moment for lunch and perhaps come back at 1.45?
Sir Wyn Williams: That’s fine, Mr Beer. Yes.
Mr Beer: Thank you very much, sir.
Sir Wyn Williams: 1.45.
(12.44 pm)
(The Short Adjournment)
(1.45 pm)
Mr Beer: Good afternoon, sir, can you see and hear me?
Sir Wyn Williams: Yes, I can, thank you.
Mr Beer: Thank you. Mr Lenton-Smith, we were about to turn to the Cleveleys case. I’m going to attempt to deal with matters chronologically. Can we start, please, with what happened on 20 August 2003 by looking at FUJ00121482.
We can see here, looking at the bottom part of the email first, an email from Jan Holmes to you of 20 August –
Colin Lenton-Smith: Yes.
Mr Beer: – 2003. We can see the subject matter is “Cleverleys”, as he’s described it, “Horizon Equipment”.
To your knowledge, to your memory, was this your first involvement in the Cleveleys case.
Colin Lenton-Smith: I believe so. I mean, I haven’t got any other documentary evidence to suggest that.
Mr Beer: Nor have we.
Colin Lenton-Smith: No. Okay.
Mr Beer: What role did Jan Holmes perform at this time?
Colin Lenton-Smith: I believe he was the audit manager. I’m not sure what his title is, I can –
Mr Beer: If we flip over the page we can see his signature block, describes himself as a Programme Assurance Manager. What’s one of those?
Colin Lenton-Smith: Effectively to ensure kind of the overall integrity of the programme.
Mr Beer: Back to the first page, please. What relationship therefore, professional relationship, did Jan Holmes have to you or with you?
Colin Lenton-Smith: Okay, so he was a colleague not within the commercial function, but matters that dealt with – that he came across that were of a commercial nature or had been flagged up by Post Office as of commercial nature, would come to me and we would discuss these, the points, or take them forward.
Mr Beer: Therefore, did you work quite closely with him when the occasion –
Colin Lenton-Smith: Yes.
Mr Beer: – arose?
Colin Lenton-Smith: Yes.
Mr Beer: Reading the email:
“Colin
“Nothing is as clear as it seems. I have some papers faxed over from [Post Office] and this is my proposed reply. I’ve had it ‘technically’ checked by Mik.”
Just stopping there, would you understand that to be a reference to Mik Peach?
Colin Lenton-Smith: I believe so, yes.
Mr Beer: “Are you happy with it? Jim is Jim Cruise with [Post Office] Legal Services their in-house sollies”, ie solicitors.
Colin Lenton-Smith: Yes.
Mr Beer: Then he sets out a draft email. If we scroll down, please:
“Jim,
“For clarification I am not part of Fujitsu’s legal department. My role in Post Office Account is restricted to assisting Post Office with litigation support as and when it is required.”
Does that accurately describe his role?
Colin Lenton-Smith: I think it’s part of his role.
Mr Beer: And –
Colin Lenton-Smith: I think his role was wider than that but, within his function, within his job, that’s what he did.
Mr Beer: So relevantly, it was his role?
Colin Lenton-Smith: Yes.
Mr Beer: Relevantly to this –
Colin Lenton-Smith: Yes.
Mr Beer: – issue?
Colin Lenton-Smith: Yes.
Mr Beer: “Thanks for the papers. I’ve done some preliminary work and, perhaps inevitably, the picture is not as clear as we might wish.
“Let me start with the easy stuff:
“1. We will have no record of any transaction data from Cleveleys dated before November 2000 in the central audit archive since this is automatically deleted 18 months from the date that it is written. So, if 30th November was the last active day for the Counter …”
Just stopping there, that was the last active day for Julie Wolstenholme’s employment and operation of the counter:
“… that data would have been deleted on or about 30th May 2002.
“2. Similarly, there will be no Helpdesk logs since these are also deleted after 18 months.”
Just pausing there, can I look at some documents that predated this to work out what had happened in this claim.
Can we start, please, with POL00118218. This is part of the trial bundle for the claim between the Post Office and Julie Wolstenholme; do you see that?
Colin Lenton-Smith: Yes.
Mr Beer: If we go, please, to page 10 and look at paragraph 14. This is part of what’s called the Defence and Counterclaim, so it’s Mrs Wolstenholme’s defence to the claim that the Post Office brought against her for delivery up of computer equipment. She says:
“… it was an implied term of the contract between the [Post Office] and [Julie Wolstenholme] that the computer system provided by the [Post Office] would be fit for its purpose and the [Post Office] is in breach of this term in that the computer systems provided was unfit for its purpose and the [Post Office] failed to ensure that the system was working adequately. [Julie Wolstenholme] has supplied the [Post Office] with details of the persistent inadequacies of the said computer system.”
We’ll see that the date of that document is 6 June 2001. So it seems from this that the operation and adequacy of the Horizon System was in issue in the proceedings from the beginning of June 2001; can you see that?
Colin Lenton-Smith: I can see that, yes.
Mr Beer: If we go forwards to page 95, please, and look at paragraph 4. This is the Post Office’s response to what was said in the document I’ve just shown you and it says:
“It is denied that said computer system was unfit for its purpose and it is averred that the same worked adequately.”
Then if we go forwards to page 99, please. This is an order of the court of 21 August 2001. If we just look at paragraph 3:
“Each party do give standard disclosure to the other by serving copies with a disclosure statement by … 21 October 2001.”
Now, you wouldn’t have seen any of these documents at the time; is that right?
Colin Lenton-Smith: In 2001?
Mr Beer: Correct.
Colin Lenton-Smith: No, I haven’t seen these documents, no.
Mr Beer: You would agree, I think, looking at them now, that the operation and adequacy of the Horizon System appears to have been an issue between the Post Office, on the one hand, and Mrs Wolstenholme, on the other?
Colin Lenton-Smith: That’s what she claims, yes.
Mr Beer: Well, that’s what the document –
Colin Lenton-Smith: Says, yes.
Mr Beer: Yes. She claimed it, the Post Office denied it.
Colin Lenton-Smith: Yes.
Mr Beer: At that time, mid-2001, if Horizon data was kept for 18 months, that would include all of the relevant data from Horizon relating to the Cleveleys branch in the period February to November 2000, wouldn’t it?
Colin Lenton-Smith: It would have not been deleted in –
Mr Beer: It would have not been deleted?
Colin Lenton-Smith: – in the 18 months, yes.
Mr Beer: In that 18 months. The relevant period in the claim, I should have said, is between February 2000 and November 2000.
Colin Lenton-Smith: Yes.
Mr Beer: In the light of those documents, would you expect the Post Office to approach Fujitsu to seek such data?
Colin Lenton-Smith: In any other instance, one would have expected that to happen, yes.
Mr Beer: Ie “The period is February to November 2000, we know there’s an 18-month deletion policy, we had better ask Fujitsu to not delete or destroy the data”?
Colin Lenton-Smith: Yes.
Mr Beer: Did you ever come to know why the Post Office did not ask that of Fujitsu?
Colin Lenton-Smith: No, I don’t know why they didn’t. I think in some of the documentation Jan Holmes’ part of the issue was that it took such a long time to get Fujitsu engaged in providing information, that by that time it was too late.
Mr Beer: As we’ve said, the first involvement that we can trace certainly for you, was the email of 20 August 2003?
Colin Lenton-Smith: Which was after the date.
Mr Beer: Which was too late?
Colin Lenton-Smith: Too late.
Mr Beer: But you later, I think, came to learn of the failure of the Post Office to ask Fujitsu to not delete or destroy of the data. Was there any conversation between Fujitsu and the Post Office about how this had come to pass? How this state of affairs had occurred?
Colin Lenton-Smith: No, by which time, I think it was almost a pointless conversation because they knew it had been deleted and, therefore, the conversation wouldn’t go anywhere.
Mr Beer: Would there have been no point in such a conversation?
Colin Lenton-Smith: There might have been a point of the conversation but, by that time – by 2003, when I was involved and subsequently when Keith Baines wrote to me, it was a fait accompli. The data had gone. So they were looking for other ways to try to validate the Horizon System or refute the allegations from – that were being made against it.
Mr Beer: Thank you. That document can come down and we can go back to FUJ00121482. This is the email. Scroll down, please. So we dealt with paragraph 1 about the deletion. Paragraph 2:
“Similarly, there will be no Helpdesk logs since these are also deleted after 18 months.”
Do you know whether that’s true or false?
Colin Lenton-Smith: I don’t know.
Mr Beer: Did you see in the claim Helpdesk logs produced, in order for Mr Coyne to opine on their contents?
Colin Lenton-Smith: I can’t remember, I’d have to go – I’d have to look at their respective – his report and our commentary on his report.
Mr Beer: Okay, well, we’ll get to that in the chronology but keep that in mind. Mr Holmes says that records of transactions cannot be retrieved if a counter has been switched off for 35 days. Did you know whether that was accurate or not?
Colin Lenton-Smith: I believed it was around a month, that the transactions would sit on the counter for a month.
Mr Beer: Paragraph 4, Mr Holmes says:
“Under no circumstances would we allow a 3rd party direct access to a counter. The file store is encrypted and for a 3rd party to make sense of the data we would have to release to them details of the encryption key. This we would not do.”
So the third party access, who did you understand that to refer to?
Colin Lenton-Smith: I’m not sure because I haven’t got the faxed questions that had come in from Post Office as to what this is answering. So I’m not sure who he’s referring to in terms of a third party. At that point it wasn’t an expert, I don’t think.
Mr Beer: If we go further down, on the page, please:
“How we can help:
“1. If this is to be pursued then the work would have to be undertaken by our technical specialists in Bracknell, possibly with the 3rd party in attendance as an observer. Said 3rd party would require to be security cleared before being allowed access?”
Again, does that help you to understand what was being sought here, who the third party might be?
Colin Lenton-Smith: I’m not sure who the third party would be.
Mr Beer: Again, if we can pause this for the moment and jump ahead a little and look at something that was written later about this stage in the episode, can we look at FUJ00121485. This is just to date the document that we’re about to look at. It’s six or seven months later. It’s an email from Jan Holmes to you and he says that:
“Colin,
“[It’s an] Early view of where I am with a reply to Keith’s letter.”
We’re going to come back to that when we get to it but, in the course of this, he says something about “this early stage”. If we can go back to FUJ00121486, thank you. This is the attachment to the email, so we can treat this as being February 2004 –
Colin Lenton-Smith: Yes.
Mr Beer: – 18 February 2004. It’s the “Background” section. Mr Holmes says:
“POL have been in dispute with [postmaster] of this Outlet since mid-2000. Essentially, [Post Office] have made a claim against the [postmaster] for losses at the Outlet, against which she had counter-claimed that the problem was caused by the Horizon System and she was refusing to release the equipment as she believed an examination of it would vindicate her. A court order was made on 19 February 2003 that a computer expert examine the equipment.
“POA’s first involvement …”
I think that essentially means Fujitsu’s.
Colin Lenton-Smith: Post Office Account, yes.
Mr Beer: “[Fujitsu’s] first involvement was a request made 8 August 2003 by [Post Office] that we provide a Witness Statement ‘about the Horizon equipment and what it contains (or doesn’t) and give [Mrs Wolstenholme] a chance to object’. [Post Office] wanted the Court to overturn the Court Order so that [the Post Office] could recover the equipment.
“On 20 August a fax was received from [Post Office] explaining the situation and requesting a Witness Statement to the effect that there was nothing on the equipment that would assist the [postmaster] in her claim and that it should be returned.
“The following day I replied, by email, stating that I was loath to produce a Witness Statement at this stage but explaining what information existed on the equipment, what would happen if it was switched on and that we would not allow 3rd parties access. I also explained how we could help POL. I received no reply to this email.”
Again, from that, does it appear that not only was your first involvement in August 2003 but Mr Holmes’ first involvement was 2003.
Colin Lenton-Smith: Yes, in response to the fax.
Mr Beer: Does that again accord with your recollection that the first involvement of Fujitsu was only in August 2003?
Colin Lenton-Smith: Yes.
Mr Beer: That highlighted paragraph there, the last one, that “The following day I replied with an email”, that looks like the email that we’ve just looked at, doesn’t it? The one saying, “The following day I replied”, that looks like the draft we just looked at, doesn’t it?
Colin Lenton-Smith: Can we look at the email again?
Mr Beer: Sure. You will see that he doesn’t say that he’s loath to produce a witness statement. FUJ00121482. Yes, thank you. Scroll down please, at the draft.
Colin Lenton-Smith: On the next page, does it go on?
Mr Beer: Yes, thank you.
Colin Lenton-Smith: No. Back again, sorry. So “How we can help”.
Mr Beer: Sorry?
Colin Lenton-Smith: I was just looking at “How we can help”. I can’t see a reference to the fact that we’re not going to produce a witness statement.
Mr Beer: No. Do you know why Mr Holmes would have been loath to produce a witness statement?
Colin Lenton-Smith: At this stage, he says. No idea.
Mr Beer: We saw from the document we just looked at that Mr Holmes added “After I sent this reply, there was no reply from the Post Office”.
Colin Lenton-Smith: That’s correct.
Mr Beer: Does that accord with your recollection, that the Post Office didn’t reply?
Colin Lenton-Smith: I– well, I don’t know that because he sent it to – who did he send this to in Post Office?
Mr Beer: We can look at the actual email sent, WITN04600202.
Colin Lenton-Smith: To Jim Cruise. So I wasn’t copied on it, so I don’t – I’m not aware –
Mr Beer: You wouldn’t know whether –
Colin Lenton-Smith: I wouldn’t know he got a copy – whether he got a response or not.
Mr Beer: That’s the final email sent, and it’s the – the addition is second paragraph, second sentence:
“Under the circumstances it might be best to fully understand the position before I commit to writing a Witness Statement that you may later [rely on] in Court.”
Colin Lenton-Smith: Yes, okay, so that’s kind of a toned down version of his internal statement, “I’m loath to produce a statement”.
Mr Beer: So this is the email that was, in fact, sent to Jim Cruise, the lawyer at the Post Office on 21 August 2003. Let’s assume that there was no reply. The next stage in the process is in 2004, in February. Can we move to POL00095375.
I think this is a letter you’ve referred to already. It’s a letter to you from Keith Baines.
Colin Lenton-Smith: That’s right.
Mr Beer: If we look at the second page, please. We can see it’s from Keith Baines, Contract Manager. Back to the first page, 5 February 2004:
“Dear Colin
“You may be aware of the above case which relates (among other matters) to the recovery by Post Office Limited of some Horizon equipment belonging to Fujitsu Services which a former subpostmistress at Cleveleys post office branch (Mrs Wolstenholme) has refused to return. There has been previous correspondence with Jan Holmes of Fujitsu … relating to this case.”
That’s presumably a reference to the August 2003 exchange of emails?
Colin Lenton-Smith: Yes.
Mr Beer: “Mrs Wolstenholme has counterclaimed against the Post Office, and the essence of her claim is that deficiencies in the Horizon System and in the service provided by the HSH resulted in her incurring costs and losing income because of the waste of her time. She is claiming that the Horizon System itself has caused losses in the sub post office accounts which [Post Office Limited] is claiming against her as being due to her fault and she wants the computer equipment to be examined by an expert witness before she will agree to its release to Fujitsu Services from her premises.
“The County Court instructed the parties jointly to commission a report from an expert approved by the court. I enclose a copy of his report. As you will see, the expert’s opinion is that the Horizon System installed at Cleveleys branch was defective and that the HSH was more concerned with closing calls than preventing recurrence of faults. As I’m sure you will understand, Post Office is concerned by these findings, not only in relation to this particular case, but also because of any precedent that this may set and that may be used by Post Office’s agents to support claims that the Horizon System is causing errors in their branch accounts.
“Please can you advise me of Fujitsu Services’ view of the main points in the report and, if you do not agree with them, please can you suggest what information or advice Fujitsu Services can provide to the expert that might lead him to change his findings.
“An early response would be appreciated.”
When you got this, presumably you realised that there’d had been no correspondence between August 2003 and now, February 2004?
Colin Lenton-Smith: Correct.
Mr Beer: This was a potentially commercially sensitive matter for both the Post Office and Fujitsu, wasn’t it?
Colin Lenton-Smith: Yes.
Mr Beer: Were you aware at this time that any other post offices or subpostmasters were claiming that the Horizon System was causing errors in their branch accounts?
Colin Lenton-Smith: I can’t specifically say whether there were at the time. All I know – all I can state is what I’ve put in my witness statement, is that I think, at a commercial level, there were very few that were raised between Keith Baines and myself where he required commercial – additional commercial discussions that – beyond what was happening at the operational level, in terms of witness support. Very few over the seven years.
Mr Beer: You put it, I think, at less than five?
Colin Lenton-Smith: Less than five, yes. I mean, over the time I was with – on Post Office Account.
Mr Beer: For that six and a half year period?
Colin Lenton-Smith: Yeah.
Mr Beer: Were you aware, by this time, February 2004, that there had been Acceptance Incidents relating to accounting integrity and discrepancies that had emerged during development into rollout and had persisted even after rollout?
Colin Lenton-Smith: No.
Mr Beer: Were you aware at this time of the work that something called the EPOSS Taskforce had carried out during the development of Horizon and subsequent management decisions taken as to the ongoing Electronic Point of Sale, the EPOS System problem?
Colin Lenton-Smith: No.
Mr Beer: When you became responsible for managing the contract, from March 2001, would you not look back at what had occurred to lead you and Post Office to that point, in terms of contractual amendments, changes that had been made to the contract because of, for example, Acceptance Incidents?
Colin Lenton-Smith: There’s two things, I think, to say – is that I think the position I was in mirrored what Keith Baines had reflected in his witness statement, was to say that the system had gone through acceptance. It had been accepted by Post Office, gone through acceptance tests by Post Office. It was found to be working and it was rolled out, and that was kind of the position overall. It was understood that within an IT system at this stage of this size that issues would arise, they’d have can be corrected. It’s in the nature of software that it was going to have issues that would be corrected. But it was the – then the degree of impact that that would have.
But, certainly, the position from a commercial perspective, it may be that was what we felt at the time, and mirrored exactly what I felt and what Keith felt, that, actually, the system was working. It was not an issue. There were no issues that significantly issued – or significantly caused problems, and that was the stance. That was where – how we were supporting Post Office, in terms of providing data to them to substantiate any issues.
Mr Beer: So to summarise, your position is that, because it had been through acceptance, the system must be working sufficiently well –
Colin Lenton-Smith: Yes.
Mr Beer: – save that it was a large and complex system and therefore there would inevitably be glitches?
Colin Lenton-Smith: Yes.
Mr Beer: Nothing greater than that?
Colin Lenton-Smith: No.
Mr Beer: Had you been, by February 2004, informed of something called the Callendar Square bug?
Colin Lenton-Smith: No.
Mr Beer: Had you ever heard of that?
Colin Lenton-Smith: Never heard of it.
Mr Beer: Had you, by 2004, been told about something called the lock bug –
Colin Lenton-Smith: No.
Mr Beer: – or the outstanding lock on the run?
Colin Lenton-Smith: No.
Mr Beer: Had you, by 2004, been told about the data tree build failure bug?
Colin Lenton-Smith: No.
Mr Beer: Had you been told about the Girobank discrepancies bug?
Colin Lenton-Smith: No.
Mr Beer: Had you been told about the counter replacement bug?
Colin Lenton-Smith: No.
Mr Beer: These are all bugs that the High Court was subsequently to find existed and predated, in part, 2004?
Colin Lenton-Smith: Right.
Mr Beer: You hadn’t been told about any of those?
Colin Lenton-Smith: No.
Mr Beer: Would you expect to be told about those: bugs, fundamental bugs in the Horizon System that either were capable of or did cause discrepancies in postmaster accounts?
Colin Lenton-Smith: I think if it had become an issue of concern between Post Office and Fujitsu, that this would have been raised at a number of forum. But I’m not aware that that happened.
Mr Beer: That can come down off the screen. Thank you.
Taking a step back, at this point, the position was as follows, wasn’t it: the court had said there should be a jointly instructed expert?
Colin Lenton-Smith: Mm-hm.
Mr Beer: An expert had been jointly instructed by the Post Office and Mrs Wolstenholme –
Colin Lenton-Smith: Yes.
Mr Beer: – and he had produced a report that suggested that the discrepancies about which Mrs Wolstenholme complained may well be as a result of defects in Horizon?
Colin Lenton-Smith: I believe that’s what it says. I can’t remember. It was only recently I got his report.
Mr Beer: I’m sorry, it was only recently?
Colin Lenton-Smith: It was in the bundle, his report –
Mr Beer: Yes, but of course you got it back in 2004, didn’t you?
Colin Lenton-Smith: I got it in 2004 but I couldn’t precisely remember what he said, other than how we responded to it.
Mr Beer: Were you aware at this time that the Post Office was prosecuting subpostmasters?
Colin Lenton-Smith: I was aware of one or – of these instances that there was anything – there was a great number of them.
Mr Beer: I think the figures are between 2000 and 2015.
Colin Lenton-Smith: Right.
Mr Beer: So the entire period some 844, resulting in some 705 convictions?
Colin Lenton-Smith: Yes. So I was not aware of the depth and intensity of their activity. As I said, the only ones that came up to me through Keith, through the commercial function, were a minimal number.
Mr Beer: Why did some come up to you?
Colin Lenton-Smith: It’s difficult to remember. I can’t remember the specific – I know there were a few, as mentioned. Why there was – why they were there, I can’t remember. I’m trying to remember but I can’t remember.
Mr Beer: Why might they come up to you as the contract manager?
Colin Lenton-Smith: Because there was either an obligation or perhaps something that we were not fulfilling or they wanted to ask for additional assistance that was beyond the scope or maybe witness statements, which were beyond – perhaps were getting more frequent, or perhaps the number of data extractions were beyond the limits that they had – we had agreed.
Mr Beer: If we go back to the letter from Mr Baines to you, POL00095375. Look at the last paragraph on the first page and the last sentence:
“As I’m sure you’ll understand, Post Office is concerned by these findings, not only in relation to this particular case, but also because of any precedent that this may set and that may be used by Post Office’s agents to support claims that the Horizon System is causing errors in their branch accounts.”
Did you gain any sense at this time that the Post Office was seeking to cover up any defects in Horizon –
Colin Lenton-Smith: No.
Mr Beer: – because admitting the contrary might be rather difficult, in the round?
Colin Lenton-Smith: No.
Mr Beer: That if the system was found to not be reliable, then it couldn’t be used to trade and that might lead to significant financial impacts on the Post Office as a whole?
Colin Lenton-Smith: No.
Mr Beer: Was it ever expressed to you that Horizon and the continued operation of Horizon was essential to the maintenance of a substantial number of Post Office branches, in particular rural branches?
Colin Lenton-Smith: Well, it was always – clearly, it was always the objective that there was a working system that would support communities.
Mr Beer: I’m looking at it the other way around: that it was said that the existence and continuing operation of Horizon was essential to the maintenance of the full Post Office estate. If there were problems with the integrity of it, that represented –
Colin Lenton-Smith: It was never –
Mr Beer: – an existential threat.
Colin Lenton-Smith: It was never put forward like that.
Mr Beer: So here they’re raising, in this last paragraph, if we just go back, please, the Post Office, a twofold concern: (1) the impact on the case and, secondly, the use by others of the report to say that Horizon is causing errors, yes?
Colin Lenton-Smith: Yes.
Mr Beer: They are the two things that are pointed out?
Colin Lenton-Smith: Yes.
Mr Beer: The one thing that isn’t said in the letter is the Post Office is concerned by this report because it might be right?
Colin Lenton-Smith: No, because I think, even going back to Keith Baines’ Witness Statement, it didn’t occur that it wasn’t. It was – the statement was that it was working and, therefore, it could not have been anything to do with Horizon.
Mr Beer: So the one thing that we don’t see in this letter is “The Post Office is concerned because an independent expert commissioned jointly by us has pointed out defects in the Horizon System. He might be right and we’re operating a computer system that may be faulty”. You’re saying that that wouldn’t have occurred to the Post Office in your view, because of an unshakable belief in the system?
Colin Lenton-Smith: Well, there was that but also, I think, they wanted us to respond to the expert’s report to try to balance what we thought – what both of us thought were inaccuracies or perhaps issues with the report. And, therefore, as it stood, it was not something that needed – they wanted to cause a precedent.
Mr Beer: But they don’t say in this letter there’s anything inaccurate in the report, do they?
Colin Lenton-Smith: They say – well, he says that the expert – no, he’s talking about the expert’s opinion that there is an issue with the system and the HSH. So he’s asking us to respond to those comments.
Mr Beer: But he’s not asking you to respond in a neutral way, is he?
Colin Lenton-Smith: Neutral?
Mr Beer: “Please tell us whether the expert is right or not”?
Colin Lenton-Smith: No, he’s not asking that. Just “Please comment”.
Mr Beer: Would you agree that the way this is written is rather myopic – narrow in perspective?
Colin Lenton-Smith: It feels as though it is one of concern. You know, “surely not”.
Mr Beer: Was that an attitude that was prevalent in your dealings with the Post Office?
Colin Lenton-Smith: In the reliance on the system?
Mr Beer: Yes.
Colin Lenton-Smith: Yes. Well, from a commercial perspective, from the commercial function, yes.
Mr Beer: Did you ever get the sense that the Post Office thought that it must defend the system at all costs because, if it didn’t, then the viability of the Post Office Counters business was at risk?
Colin Lenton-Smith: I think they were looking for assurance that the system was correct.
Mr Beer: Not independence and neutrality as to whether the system contained errors?
Colin Lenton-Smith: I think there was a – I think the dialogue that you can see between us and the Post Office, regarding the report, was trying to create what we thought was a more balanced position on it, rather than letting the expert’s opinion stand as it stood, which we felt didn’t – hadn’t gone into enough detail around the system to give it full credibility.
Mr Beer: Can we move forwards, please, and look at FUJ00121486. This is the report that Jan Holmes sent to you on 18 February 2004. Remember, I showed you the email before.
Colin Lenton-Smith: Yeah.
Mr Beer: If we pick up where we left off, we left off above “The Expert’s Opinion”, at the foot of the page. So this is Jan Holmes’s response or commentary upon Mr Coyne’s report.
Colin Lenton-Smith: Yes.
Mr Beer: Did you ask Mr Holmes to look at this?
Colin Lenton-Smith: Yes, so in response to Keith’s Baines’ letter, we would have then discussed this.
Mr Beer: Can you recall what your instructions were to Mr Holmes?
Colin Lenton-Smith: To take – to review the expert’s report.
Mr Beer: Were they loaded in any way or were they simply to look into it and report back?
Colin Lenton-Smith: No, I don’t – I wouldn’t say that we were loaded. I wouldn’t want to do that. So I think we would say that we were trying to produce a balanced response.
Mr Beer: Let’s look at what Mr Holmes’s opinion or comments on the opinion were. He says:
“Taking each opinion as it occurs in the report I would offer the following by means of explanation, confirmation or refutation.”
First heading “‘Reasonableness’ of calls to HSH”:
“The Expert was unable to make direct comparisons between similar Outlets due to the absence of records. While this was true of audit data formally available to POL, [Fujitsu] are able to review an unregulated archive of records of the other installed 6 Counter Outlets over a comparable period. The table below shows the output from that analysis …”
Then if we go over the page to the analysis, you can see that Cleveleys is in the fifth and sixth row. Cleveleys [1] is all reports to the HSH and Cleveleys [2] is if you strip out calls to the HSH in the course of rollout; do you see that? Do you see 1 and 2?
Colin Lenton-Smith: I see 1 and 2, yes.
Mr Beer: There’s an explanation at the foot of the page if we just scroll down.
Colin Lenton-Smith: Yes, yes.
Mr Beer: So if we go up, please. You’ll see that, assuming that it’s appropriate to strip out the calls during rollout, Cleveleys has a total of 85 calls, and I think that puts it right at the top, doesn’t it? It’s the third highest?
Colin Lenton-Smith: Yes.
Mr Beer: Showing 85 calls in a 10-month period?
Colin Lenton-Smith: Yes.
Mr Beer: So quite a high number of calls asking for help?
Colin Lenton-Smith: Quite a lot, yes.
Mr Beer: So Cleveleys was third highest and broadly comparable with other outlets, wasn’t it? That’s what it shows?
Colin Lenton-Smith: Yes, I mean, I can’t analyse the ratios of all the different types of calls, but yes.
Mr Beer: If we scroll down, we can see what Mr Holmes thought of it:
“Discounting Rollout Helpdesk calls, which should have not been addressed to the HSH, it can be said that in terms of total calls made (3rd highest from 12) [percentage] that were non-Advice & Guidance (4th highest) and the [percentage] that were Software based (5th highest), Cleveleys numbers are broadly comparable with the group of Outlets.”
What did that say to you? What’s it supposed to show?
Colin Lenton-Smith: There was nothing particularly standing out, differentiating Cleveleys from anything else.
Mr Beer: They were all getting a high number of calls?
Colin Lenton-Smith: Well, I don’t know whether they’re high or not. They’re just a number of calls. I don’t know whether they’re respectively high or not.
Mr Beer: Wouldn’t you want to know that to draw anything from it?
Colin Lenton-Smith: Well, on the basis that other outlets were not reporting problems or that we – at least Post Office was not dealing with commercial, in terms of prosecution or then it was broadly the noise level of the system. So there was nothing significantly about Cleveleys compared to anything else.
Mr Beer: Anyway, we can see what Mr Holmes said at the foot of the page:
“Based on the analysis [last line], and without analysing each and every call record it would be hard to dispute the opinion of the Expert.”
Colin Lenton-Smith: Yeah.
Mr Beer: Then over the page –
Colin Lenton-Smith: That was the statement from somebody else, wasn’t it?
Mr Beer: Yes, he’s quoting Elaine Tagg.
Colin Lenton-Smith: Elaine, yes.
Mr Beer: Thank you. “Operator advice to ‘Reboot’”, you’ll see what Mr Holmes says. Then in his second paragraph, Mr Holmes says:
“In this context the opinion of the Expert, that ‘this instruction treats the effect and not the cause’ is correct.”
Colin Lenton-Smith: Yes.
Mr Beer: But it is incorrect to assume that no further work is being done?
Colin Lenton-Smith: Yes.
Mr Beer: Under Mr Coyne’s heading of “Defective Equipment”:
“The criticism that the technology installed at Cleveleys was ‘clearly defective’ is subjective and based on the raising of 70 HSH calls over a 10-month period. There is no attempt to substantiate the claim nor to draw any comparisons with external benchmarks.”
Whereas this report does compare it with some other benchmarks and finds that it’s broadly comparable?
Colin Lenton-Smith: Yes.
Mr Beer: Then “Summary”:
“It’s difficult to comment on the statement made by the Expert in this part of his [report about worrying discrepancies] although he is alluding to the fact that system errors may be responsible for this.
“This … has been put forward by a number of [postmasters] in the past … and each time it has fallen when confronted by transaction data …”
This is hardly a withering attack on the expert, is it?
Colin Lenton-Smith: No.
Mr Beer: For the most part he says, “We can’t really argue with what he says”?
Colin Lenton-Smith: Correct.
Mr Beer: In particular, “Because we haven’t got the underlying data, we can’t argue with what he says”?
Colin Lenton-Smith: Yes, that’s right.
Mr Beer: There’s no arguing about the qualifications of the expert?
Colin Lenton-Smith: No.
Mr Beer: He’s not inappropriately qualified or –
Colin Lenton-Smith: No, no.
Mr Beer: – inexpert?
Colin Lenton-Smith: No, not at all.
Mr Beer: There is no quibble on his figures?
Colin Lenton-Smith: No.
Mr Beer: The figures that he does give are comparable to other branches and there is no arguing with his general approach?
Colin Lenton-Smith: No.
Mr Beer: Can we look, please, at FUJ00121490. If we see the foot of the page, thank you, we’ve got Mr Holmes’ email to you of 18th, and then your email, eight minutes later in the morning; can you see that?
Colin Lenton-Smith: Yes, I can.
Mr Beer: “Jan, do we have the data/response that we/POL have used before which has countered the PM system problem allegation?
“Colin.”
You’re picking up that last paragraph, aren’t you, there?
Colin Lenton-Smith: I’m picking up the last paragraph, yes.
Mr Beer: Why was your first reaction to seek the data and response that had previously been deployed successfully to counter the postmasters’ system problem allegation?
Colin Lenton-Smith: I think it was because the expert’s report was an allegation and so we had responded to that, and, you know, it was an allegation without any evidence, therefore did we have any evidence?
Mr Beer: Can we move forwards then, to FUJ00121512. This is a copy of the final report that you sent to Mr Baines, we’re now on 20 February. If we see the foot of the page, your letter to him. Then up at the top of the page, dated 20 February:
“Dear Keith
“I’m writing in response to your letter of [you say 6 February, I think it was 5 February] and note Post Office’s concern in respect of the Expert’s opinion that the Horizon System installed at Cleveleys branch was defective and that the HSH was more concerned with closing calls than preventing recurrence of faults.
“An Appendix is attached which sets out Fujitsu Services’ view of and response to the main points in the Expert’s report.
“In respect of the earlier correspondence between Jan Holmes … and Jim Cruise … we would be prepared to discuss this further if this would help progress the situation.”
Again, I think that’s a reference back to the August 2003 correspondence?
Colin Lenton-Smith: Yes.
Mr Beer: If we go over the page, please, to see the appendix, to see what has now become of Mr Holmes’ report. Can you see it says, “Basis of Response”?
Colin Lenton-Smith: Yes.
Mr Beer: “Before addressing individual points from the Expert’s report there are two key areas of understanding to be established; the first is the function and objectives of [HSH], the second is the way that the Horizon System handles transactions should a reboot be required partway through a customer [service].”
Under the heading “Horizon System Helpdesk”, there’s an explanation of it being the first line support, and then, in the second paragraph, the one beginning “Depending on”, there’s an explanation of the second, third, and fourth line supports. Then in the last sentence, three lines from the bottom of that paragraph it says:
“… rebooting the Counter often meets that objective, this does not mean that a problem is closed at that point in time, as a detailed scrutiny of overall problem management process would reveal.”
Then under the heading “Transaction Handling on Reboot”, there’s an explanation of what happens if a postmaster reboots. If we look at the foot of the page, it is said that:
“If a Session is interrupted pre-settlement, perhaps through a fault that requires a reboot, the Session – and consequently the Session Stack – is not maintained and has to be restarted once the system has been returned to the postmaster. In 2000 the only exception to this were Automated Payment transactions.”
Then the next paragraph:
“Simply put, the design of the system precludes the possibility of a Session Stack being partially, or doubly committed and thus accounting errors cannot be introduced through a system crash or forced reboot.”
Then the table is reproduced, if we scroll down under “The Expert’s Opinion”, yes?
Colin Lenton-Smith: Yes.
Mr Beer: Over the page, please. A line has been added after “Cleveleys numbers are broadly comparable with the group of Outlets”, namely:
“It is worth noting that Fujitsu Services is not aware of similar complaints or claims being made from other Outlets in the above list, some of which have higher call profiles than Cleveleys.”
Did you understand that to mean that we’ve picked eight or ten other branches and we are not aware of any problems or complaints of a similar nature being raised from them, or was it more broadly there are no similar complaints to the ones raised by Mrs Wolstenholme ever having been made to Cleveleys?
Colin Lenton-Smith: I think he’s referring to the above list.
Mr Beer: Why wouldn’t you address whether problems of a similar type or complaints of a similar type being made by any other branch?
Colin Lenton-Smith: I couldn’t say.
Mr Beer: Wouldn’t that be the fair thing to do, rather than pick ten and say, “We haven’t had any similar complaints from them, we’re not going to tell you about any similar complaints from the other 17,000 branches”?
Colin Lenton-Smith: Possibly this analysis was about comparable outlets. So I think it was looking at system problems from comparable outlets, rather than everything else. If it was everywhere else, 17,000 outlets, I think the volumes, if there had been such issues, would have been much worse and would have been escalated anyway.
Mr Beer: But there’s none of that referenced in here. I mean we know now that the things of which Mrs Wolstenholme complains – blue screening, balances, double counting on a reboot, money disappearing on a reboot – was a complaint that many, many postmasters made to Fujitsu. What this appendix does is it picks ten and says, “We haven’t had any complaints from them”. Do you know why the full picture wasn’t revealed?
Colin Lenton-Smith: I couldn’t say.
Mr Beer: If we carry on looking at this page, you’ll see that, under a series of headings, “Operator advice to ‘Reboot’”:
“In this context the opinion of the Expert that ‘this instruction treats the effect and not the cause’ is correct.”
Then exactly the same as the previous draft that we saw. “Summary: Defective Equipment”, I think that’s the same as the previous draft.
Do you remember the passage from Elaine Tagg’s witness statement?
Colin Lenton-Smith: Yes.
Mr Beer: That seems to have been omitted. Do you remember the passage from her witness statement? If we just look at FUJ00121486. Second page at the foot, “Statement by Ms Elaine Tagg”. You rightly corrected me that this was her speaking and not Mr Holmes:
“A total of 101 HSH calls were raised between [9 February] (install date) and [20 November 2000] (termination date) of which 15 are classified as Advice and Guidance and 16 are to do with the Rollout itself. Based on the analysis, and without analysing each and every call record it would be hard to dispute the opinion of the Expert.”
If we just go back to FUJ00121512, page 2, and then 3, and then 4, and then 5, it’s been cut. Do you know why that was?
Colin Lenton-Smith: Can we go back to the previous page?
Mr Beer: Previous page on here? Yes. Please do scroll down, Frankie.
Colin Lenton-Smith: So her comment was about HSH calls, wasn’t it?
Mr Beer: Yes, and it being difficult to refute what the expert says.
Colin Lenton-Smith: Just go up a little bit.
Mr Beer: Yes.
Colin Lenton-Smith: I’m not sure whether it added anything having it in or taking it out.
Mr Beer: You don’t think it made any material difference?
Colin Lenton-Smith: No.
Mr Beer: Why?
Colin Lenton-Smith: Because we’re saying it’s broadly comparable with everything – you know, whatever’s happening at Cleveleys is broadly in line, and that’s what she’s saying, effectively.
Mr Beer: Okay, go to the last page, please. The “Conclusion” is now:
“The report presented by the expert is based on a simple analysis of HSH records and not a detailed understanding of how the … system works, or even the prime objectives of the … Helpdesk. Consequently the opinions expressed in the report, while not always incorrect, do not present the whole story and are presented from a single perspective.”
What had led to the hardening up of this report, compared to the first version we looked at?
Colin Lenton-Smith: So, of course, the previous versions were internal versions. I think we were trying to get to the position where we might try and expand the analysis and understanding of the expert and whether, in fact, this was – if there were elements that we didn’t quite agree with, while we’re saying that they’re not always correct, they don’t present the whole story that a balanced report could and should do.
Mr Beer: We’re moving forwards now and we’re going to end at a point when Fujitsu accused him of bias, essentially, of lacking impartiality. That’s where we’re going to end up in the questions in about 45 minutes’ time. What I’m asking now is what had led to this hardening up of a position? There was the internal document, which didn’t question his qualifications, didn’t really question his methodology and said, “We’re in the same position as him: we haven’t got that much data to go on, we can’t really question what he says”.
Now, that’s being ratcheted up a bit, isn’t it? They do not present the whole story, they are presented from a single perspective. I don’t know what that means, but it seems rather critical, doesn’t it?
Colin Lenton-Smith: Yes, it’s critical of the report.
Mr Beer: So what had led to the hardening up?
Colin Lenton-Smith: It can only be – well, I’m not absolutely sure. I don’t absolutely remember but, of course, Fujitsu is trying to defend Horizon, all the systems that go around it, support systems and everything else and, therefore, we trying to position it – to put a position to Post Office that we want to present the whole story.
Mr Beer: Can we move on, please. FUJ00121533. This is an email of 4 March and what we’re going to see is, in this chain, you getting back the expert’s response to your response.
Colin Lenton-Smith: Yes.
Mr Beer: So this is the Post Office lawyer, Jim Cruise, sending you and others an attachment. Then if we go to FUJ00121534, we can see what the attachment is. It’s an email which itself had an attachment, and this is the response from Susanne Helliwell, the solicitor at Weightmans’, Secretary:
“The response to the initial report of Jason Coyne of Best Practice Group has been sent to him and his reply is attached. He has not taken on board any of the points made and has not revised his report at all.
“I would welcome any further points you have to make on his further report but it seems to me that his report cannot be accepted by [the Post Office] and that an application needs to be made to the court for Fujitsu to give evidence about the Horizon System and its working in view of the stance taken by the expert witness.”
Then if we can go to FUJ00121535. This is Mr Coyne’s reply. Under the heading “Horizon System Helpdesk”, he says:
“… this is a matter for the Post Office and Fujitsu”, ie describing the system of escalating help and service desks:
“[But] nothing contained within this section of the letter alters my current opinion.
“Transaction Handling on Reboot.
“Whilst this section is helpful and assists my understanding … it would not be proper of me to alter my opinion based on this explanation, the supporting evidence of which has been destroyed.
“Reasonableness of calls.
“It has always been my expressed position that direct comparisons of calls to HSH are required and your clients position that they have been destroyed, barring direct comparison, and that I should give opinion on the surviving material that is available …
“Now it seems that your client has located data that they believe enables comparison. Although the raw data has not been made available to me they say it displays that Cleveleys is ‘broadly comparable’. As I do not have the raw data I am unable to say if my opinion is effected or not.”
At the foot of the page he says:
“… all of these issue factors are significantly higher for Cleveleys than the respective mean which is inconsistent with the statement of broadly comparable when considering these measurements.”
Then over the page:
“Although I must stress that no raw data has been presented so I am disadvantaged, is it your clients intention to rely upon this data sample referred to in this letter?”
Next two paragraphs I can skip over, “Worrying discrepancies”:
“I’m unsure how this can be resolved as the documentation suggests the [postmaster] reported discrepancies that seem to fall after a reported upgrade …
“In short, to answer the question posed in your letter, No my opinion, currently, remains as state in my original note.”
So this is a pretty firm reply from the independent expert, isn’t it?
Colin Lenton-Smith: It is.
Mr Beer: Did you think it called for a rethink by Fujitsu?
Colin Lenton-Smith: I think we waited for Post Office to see what their instruction was going to be and how they wanted us to support them.
Mr Beer: Was there ever any discussion of bringing in somebody else, somebody independent of Fujitsu to look at what this expert was saying, to see whether it was entirely off the wall or there may actually be substance in it?
Colin Lenton-Smith: Not with me.
Mr Beer: Were you aware of any discussions amongst other people?
Colin Lenton-Smith: I’m not aware of any other – I don’t know. I couldn’t say yes or no.
Mr Beer: You were disappointed with this response from the expert, weren’t you?
Colin Lenton-Smith: Yes.
Mr Beer: If we look, please, at FUJ00121549, in fact we’d better look at FUJ00121541, first, thank you. 4 March, same day at 11.30, you send Mr Holmes the disappointing response from the expert. Yes?
Colin Lenton-Smith: Yes.
Mr Beer: If we then go to FUJ00121549, he replies at 1.45, so 2 hours 15 minutes later, attaching his initial thoughts. Then if we go to FUJ00121550, this is Mr Holmes’s initial response. I’m not going to go through all of this but would a summary be, “We need to try to get the expert in to Fujitsu premises to see whether we can get him to alter his opinion”?
Colin Lenton-Smith: Yes.
Mr Beer: Mr Holmes then goes on holiday for a week, and produces a final version of this document, FUJ00121557. This is now dated 11 March and is the final version. I should have shown you the covering email, thank you:
“I’ve done a bit more to this but if I continue I fear I might call him a git, or something worse.”
Did you take that to be a good sign of objectivity of thought?
Colin Lenton-Smith: I think I just took it as being a moment of irritation.
Mr Beer: Why would you be irritated? Why would he be irritated?
Colin Lenton-Smith: I don’t know.
Mr Beer: Why did you take it to be a moment of irritation?
Colin Lenton-Smith: I think I ignored it.
Mr Beer: Why?
Colin Lenton-Smith: Well, he was going on holiday and he was trying to do something to get something out, and what have you, so I think we – it was just in the heat of the moment.
Mr Beer: No, he’s been on holiday. This is when he’s come back?
Colin Lenton-Smith: Oh, sorry.
Mr Beer: He went on holiday on the 4th and said, “These are my initial thoughts”.
Colin Lenton-Smith: I’m not sure. I don’t know why he’s irritated by it.
Mr Beer: He’s come back on the 11th after a week, presumably being refreshed, thinking that –
Colin Lenton-Smith: Sure. I don’t know why he’s irritated by it.
Mr Beer: – the expert is a git?
Colin Lenton-Smith: Well, I don’t know.
Mr Beer: Is this emblematic of what was really going on within Fujitsu –
Colin Lenton-Smith: No.
Mr Beer: – people that criticise us are to be condemned?
Colin Lenton-Smith: No.
Mr Beer: People that have the temerity to question the quality of our product are to be condemned?
Colin Lenton-Smith: No.
Mr Beer: Let’s look at the substance of what he said. FUJ00121558, please. I’m going to take this shortly. You have seen this. It has been disclosed to you. You’ve read it.
Colin Lenton-Smith: Yes.
Mr Beer: Would you agree that the suggestion that “Let’s have him in and see whether we can get him to alter his view” has gone and that, in its place, is essentially a hardening up still further of the position against the expert? If you want to take a moment to read it all, then please do.
Colin Lenton-Smith: No. So I think we were trying to provide further information and clarity to the expert, to provide him with the access to the data and the records that we said we had and he said he hadn’t got access to.
Mr Beer: Okay. If we move on, please, to FUJ00121561. The next day, 12 March, Mr Holmes emails you, setting out at the bottom of the page, if we just scroll down, a draft email for you to consider. Then go back to the top of the page. He says:
“Colin,
“Draft email to Jim Cruise for you to consider. I’ve transferred the contentious statements from the paper to the email because it’s not in our interests to piss the Expert off. That said it has to be pointed out to Jim that his report is far from impartial …”
Did you agree with that, that the expert’s report was not impartial?
Colin Lenton-Smith: I’m not sure about “far from impartial”.
Mr Beer: What about a little bit from impartial?
Colin Lenton-Smith: Well, I think a little bit from impartial, yes.
Mr Beer: Why was he not impartial?
Colin Lenton-Smith: Because I think the – having read the report again, I thought it was quite high level.
Mr Beer: Does that make somebody impartial?
Colin Lenton-Smith: Yes.
Mr Beer: Why?
Colin Lenton-Smith: Well, not that the – the brevity of it doesn’t make it impartial.
Mr Beer: He continues:
“… in truth, we have a problem because there is little we can do to dispel some of his assertions other than say ‘rubbish’. We can’t demonstrate that everything worked correctly because we don’t have the data. In addition, any proving that we do now is at a 2004 system baseline and not a 2000 baseline. POL have to decide what they want to see happening here. I understand the reputational aspects of the situation but I fear that POA [that’s Fujitsu] are on the back foot.”
Colin Lenton-Smith: Yes.
Mr Beer: Why did he think that Fujitsu was on the back foot?
Colin Lenton-Smith: Because we hadn’t had the opportunity to try to provide additional material to the expert.
Mr Beer: You hadn’t had the opportunity to?
Colin Lenton-Smith: Provide the data that we had come up with to the – which the expert said he hasn’t got.
Mr Beer: Why hadn’t you had that opportunity?
Colin Lenton-Smith: Because we had only invited – through Post Office, we’d invited the expert to Fujitsu’s premises to review the data. So it was an invitation to Post Office to carry that forward.
Mr Beer: Well, that was on the internal draft. That never got sent, did it? “Let’s get him in”, that draft.
Colin Lenton-Smith: No, at the top of the last one, it said, “We even invited him to Bracknell” or –
Mr Beer: That one?
Colin Lenton-Smith: Yeah.
Mr Beer: Did you think that was the solution to the problem?
Colin Lenton-Smith: I thought it might help.
Mr Beer: Scrolling down on this page, just before we take the break, you’ll see in the draft, you’ll see in the draft email it says in the third paragraph of the draft email:
“The attached paper provides detailed feedback to his reply but in truth we can only reiterate what has been already said. Given that he has assumed the moral high ground, and appears not to want to shift his position, the next step is to make available to him the people, data and resources at Post Office Account and allow him to address his doubts to the true experts and practitioners.”
You approved this and it went out in this form, correct?
Colin Lenton-Smith: Yes.
Mr Beer: Mr Holmes is suggesting that Mr Coyne be allowed to address his doubts to the “true experts”. Did you think that Mr Coyne was not a true expert?
Colin Lenton-Smith: So Mr Coyne was an IT expert and not a Horizon expert.
Mr Beer: So you didn’t think he was a true expert?
Colin Lenton-Smith: No, I didn’t say that.
Mr Beer: He wasn’t sufficiently expert in Horizon?
Colin Lenton-Smith: Correct.
Mr Beer: So the “true experts” were located only within the Fujitsu premises at Bracknell, were they?
Colin Lenton-Smith: They would only – the ones who would know – well, not necessarily, but mostly that they would know the system and the processes that went around it.
Mr Beer: It continues:
“In conclusion it has to be said that his analysis of the situation is at best selective and at worst simply wrong, and his conclusions are partial.”
So again, accusing him of lacking impartiality, yes? You understand what partiality means, don’t you?
Colin Lenton-Smith: Yes.
Mr Beer: Favouring one size in the dispute over the other?
Colin Lenton-Smith: Yes.
Mr Beer: In other words, are you being biased?
Colin Lenton-Smith: Yes.
Mr Beer: On what evidence were you happy to sign this off, that the independent expert was biased?
Colin Lenton-Smith: Probably because of his – his responses were unshifting.
Mr Beer: Un?
Colin Lenton-Smith: Unshifting.
Mr Beer: So somebody who doesn’t move from their opinion is biased?
Colin Lenton-Smith: No, what I’ve said is what I’ve said. Potentially, I go back to this data available – availability, it’s kind of a cross between the – and the email – the email chain, really, here, that the data that was available was offered, the visits were offered and, you know, from our particular position, he has his own view – his view, and not necessarily – we’re saying that maybe his conclusions are partial. Okay. You know, that’s his view.
We said that he was not – we didn’t think he was completely correct, so that in which instance that must be that he must be partial.
Mr Beer: So somebody who is incorrect is always partial and therefore biased?
Colin Lenton-Smith: You can come to conclusions from data that is not complete.
Mr Beer: Does that make you partial and therefore biased?
Colin Lenton-Smith: It may not make you partial but it may make you biased.
Mr Beer: Was the thought process that you have just explained to us one that was common within practitioners within Fujitsu, who were discussing this issue?
Colin Lenton-Smith: So within the practitioners who were discussing it in Fujitsu, I think we were trying to make all opportunities available in order to come up with a rounded position.
Mr Beer: Yes, thank you.
Sir, I wonder whether we could take the afternoon break now until 3.20.
Sir Wyn Williams: Yes, certainly.
Mr Beer: If it helps, I’ll conclude by 4.00, allowing some time for other Core Participants to ask questions if they wish.
Sir Wyn Williams: All right, fine.
Mr Beer: Thank you. 3.20.
(3.05 pm)
(A short break)
(3.20 pm)
Mr Beer: Good afternoon, sir. Can you see and hear us?
Sir Wyn Williams: Yes, I can, thank you.
Mr Beer: Thank you.
Mr Lenton-Smith, can we turn to FUJ00121602, please. We’ve now moved forward to April 2004, and there’s an email from Jim Cruise at the foot of the page to Jan Holmes and Keith Baines, which is forwarded by Jan Holmes on the same day to you. Can you see that?
Colin Lenton-Smith: Yes, I can.
Mr Beer: In the email from Jim Cruise, he says:
“The latest development in this case is that POL have written off the losses of just over £25,000 at the above SPO and have increased their payment-in to court to £25,000 …
“The hope is that she will accept the increased payment-in and the case will be concluded. If she does not and persists with her counterclaim, and she has indicated that she is looking for a figure of £187,500 so she may not settle, she is on increased risk as to the costs in the case if she does not beat the payment-in at trial. As [Post Office] is no longer pursuing her for losses, I hope that she will be left to pay any further evidence/reports from the expert witness, which should be a further discouragement for her.”
So that was updating you in April and if we move on to FUJ00121637, an email directly to you from Jan Holmes of 7 June 2004, with the subject of “Cleveleys”. He says:
“I’ve just updated myself with the latest on this case and the news is not good.
“Jim Cruise has taken early retirement so I ended up speaking to Mandy Talbot, who was his boss. The [postmaster] rejected the offer that was made to her some time ago and a trial date has been set for August … The [Post Office] are still taking advice as to how best to deal with this and Mandy’s view/belief was that the safest way to manage this is to throw money at it and get a confidentiality agreement signed. She is not happy with the ‘Experts’ report as she considers it to be not well balanced and wants, if possible, to keep it out of the public domain. This is unlikely to happen if it goes to Court.
“She was talking about taking the option to admit the report and concede that the contents are an accurate reflection of what happened (the HSH transcripts are an accurate reflection of what happened it’s just the ‘Expert’ opinion is the problem). The liability question is removed and then it’s just about ‘how much [money] to go away and keep your mouth shut’.
“One concern I have is while they’ve been dickering about waiting for guidance from their agents, the trial date has been set and it is now too late for them to enter a Witness Statement that might further repudiate the Expert’s original report. This means that their Counsel might have to have thorough briefing, by us, before going to Court.
“Do we need to involve Masons at this stage?”
Did the contents of this email reflect your understanding of POL’s principal desire, namely to keep the adverse expert’s report out of the public domain?
Colin Lenton-Smith: I didn’t know what POL’s objective was.
Mr Beer: Did you engage in any telephone discussion with anyone at POL, Keith Baines, for example –
Colin Lenton-Smith: No.
Mr Beer: – about this case?
Colin Lenton-Smith: No.
Mr Beer: Who were Masons?
Colin Lenton-Smith: Pinsent Masons, solicitors.
Mr Beer: Why would it be necessary to involve a firm of solicitors at that stage?
Colin Lenton-Smith: I think this is just Jan’s question to me, high level question, internally. I don’t think we did.
Mr Beer: What was the risk for Fujitsu in this process?
Colin Lenton-Smith: In what process?
Mr Beer: A claim was being brought by the Post Office against one of its former subpostmistresses, she had counterclaimed, what’s the risk to Fujitsu?
Colin Lenton-Smith: On that basis, none.
Mr Beer: Why might you involve solicitors?
Colin Lenton-Smith: It was his question to me, so he’s not a commercial person. He’s just asking me a question.
Mr Beer: Yes, what did you think of the suggestion?
Colin Lenton-Smith: Do we have my response to him? No. So this is just an update and that didn’t go any further than that.
Mr Beer: Do you think it was necessary to involve solicitors?
Colin Lenton-Smith: No.
Mr Beer: What did you think as to the strategic of paying Mrs Wolstenholme enough money to “keep your mouth shut”?
Colin Lenton-Smith: So, remember, Fujitsu was a supplier to Post Office, maybe a big supplier. So we are a third party, effectively, who – we don’t get involved in persuading or suggesting to our clients how they should conduct their legal matters.
Mr Beer: Was there any sense at this stage – did you pick up any sense from Mr Holmes at this stage – that the Post Office might be trying to blame Fujitsu for being in this position?
Colin Lenton-Smith: No.
Mr Beer: Can we look, please, at FUJ00121668. This is an email to you from Mr Holmes of the following month:
“The PO Legal person, Mandy Talbot, is on holiday today but will be back on Monday …
“I’ve also spoken to Keith Baines who alluded to a number of other calls that he was going to have to make on the case but didn’t pass any details to me. He said that Dave Smith would be speaking to Ian on the subject …”
Can you help us who this Dave Smith referred to here is?
Colin Lenton-Smith: Dave Smith was the lead in Post Office for effectively managing the Horizon System.
Mr Beer: Who would Ian be?
Colin Lenton-Smith: Ian Lamb.
Mr Beer: What role did Ian Lamb perform?
Colin Lenton-Smith: He was the Managing Director, effectively, of Post Office Account.
Mr Beer: In Fujitsu?
Colin Lenton-Smith: In Fujitsu.
Mr Beer: So a high level discussion –
Colin Lenton-Smith: Yeah.
Mr Beer: – at proper director level?
Colin Lenton-Smith: Director level, yeah. Although I don’t think Ian was, in fact, a director, a registered director as such.
Mr Beer: He continues:
“… it seems that Dave believes ‘we’ (not sure whether that’s the Royal we or just us) have conceded what ‘we’ should not have done and POL are now in a difficult position. Given our late involvement by POL I trust he’s not trying to park it all on us.”
That’s what I was referring to a moment ago when I asked whether you had any sense from Mr Holmes that POL would be trying to blame Fujitsu for being in the position they were in.
Colin Lenton-Smith: No, I don’t believe so. I don’t read it like that. I think this is Ian – this is Jan’s interpretation of a conversation but this is, you know, a fourth-hand conversation between Dave Smith and Ian, and Dave Smith and Keith Baines, and Keith Baines and Jan Holmes, and then me, so I think it must – you know, it could – it’s kind of hearsay, really.
Mr Beer: Can we move forwards, please. FUJ00121724. We’re now in the next month, August, on the 20 August, an email from Jan Holmes to you and Bill Mitchell; can you see that?
Colin Lenton-Smith: Yes.
Mr Beer: What role did Bill Mitchell perform?
Colin Lenton-Smith: I’m not sure. I think there is a witness statement from him in the bundle and I’d have to refer to that to –
Mr Beer: Okay, you can’t remember now?
Colin Lenton-Smith: I can’t remember his role, no.
Mr Beer: The title is risk position on litigation support.
Colin Lenton-Smith: He – well, he could have been – he could have been the Risk Manager, I guess, but I’d have to go and check that.
Mr Beer: He says:
“Colin, Bill.
“Following on from the Cleveleys outcome, what looks like the reappearance of Shobnall Road and the possible outcome of that case I believe we should consider a risk position around litigation support.”
What do you understand “a risk position around litigation support” to mean?
Colin Lenton-Smith: So my initial – I mean, I can’t remember precisely 2004, but I think it would be assessing to see whether we needed – whether Fujitsu needed litigation support, if there was a risk in trying to defend the system.
Mr Beer: Oh, I see, rather than assessing the risk of Fujitsu providing litigation support to Post Office?
Colin Lenton-Smith: Could be either – could be that, I don’t know. I couldn’t say.
Mr Beer: It’s difficult to say, isn’t it –
Colin Lenton-Smith: Yes.
Mr Beer: – through that fantastic use of the word “around”? He continues:
“1. Although Cleveleys may appear to be closed it could be construed that [Post Office] bought off Mrs Wolstenholme rather than defend their system.”
Do you agree with the suggestion that it appeared or may appear that Post Office had bought off Mrs Wolstenholme rather than defend their system?
Colin Lenton-Smith: Again, I’d go back to the comment before. It’s simply down to Post Office how they would have defended their legal cases, effectively, and whether they decided to settle out of court or go to court is a matter for them.
Mr Beer: That’s an answer to a different question, namely whose responsibility and function is it to decide whether or not Post Office defend or settle cases? The answer is the one you’ve just given: it’s a matter for Post Office.
My question was a different one. Did you agree with the suggestion that it may appear that the Post Office had bought Mrs Wolstenholme off, rather than defend their system?
Colin Lenton-Smith: I don’t think it’s for me, on behalf of Fujitsu, to construe anything for them, why they – how they defended their case.
Mr Beer: Mr Holmes continues in his email to you:
“Even if a gagging order is placed on the woman …”
I think “the woman” is Julie Wolstenholme, yes?
Colin Lenton-Smith: Yes.
Mr Beer: “… she apparently had a gaggle …”
I think a “gaggle” here in this context means a group of disorderly people, rather than a flock of geese, agreed?
Colin Lenton-Smith: Mm-hm.
Mr Beer: “… lined up to support her case and they [may well be aware] of what the final outcome was.”
Is that how Fujitsu viewed matters, that the subpostmistress was to be referred to as “the woman” –
Colin Lenton-Smith: No.
Mr Beer: – who had a “gaggle”, a disorderly group of people, surrounding her?
Colin Lenton-Smith: No.
Mr Beer: He continues:
“I’m sure they will not be keeping quiet. It is not clear why Post Office chose to settle rather than fight although I suspect they realised that to expose the HSH transcripts in Court would not help their case – personally I can understand that position.”
Why would exposure of the HSH transcripts in court not help their case?
Colin Lenton-Smith: Oh, I don’t know, I don’t think it would. I think – I don’t think it undermines the case.
Mr Beer: So the revelation of 85 transcripts of Mrs Wolstenholme calling over a 10-month period, setting out a succession of recurring problems, causing unexplained discrepancies and balancing errors, would have helped their case, would it?
Colin Lenton-Smith: No.
Mr Beer: So what he’s saying is right, isn’t it, Mr Holmes (sic)?
Colin Lenton-Smith: What Mr Holmes is saying is right, yes.
Mr Beer: Exposing the transcripts wouldn’t have helped their case?
Colin Lenton-Smith: It wouldn’t have done, no.
Mr Beer: No. He’s right, isn’t he?
Colin Lenton-Smith: He’s right.
Mr Beer: By throwing money at the problem, buying “the woman” off, with or without a gagging order, the Post Office were ensuring that what was revealed by these transcripts was not likely known, wasn’t it?
Colin Lenton-Smith: It would appear so.
Mr Beer: He continues in paragraph 2 –
Colin Lenton-Smith: I mean, that’s his language, not mine.
Mr Beer: Did you write back to him and say –
Colin Lenton-Smith: I don’t know, is there another email?
Mr Beer: No.
Colin Lenton-Smith: No. I don’t know.
Mr Beer: Can you help us with this: we’ve seen the earlier report from Mr Holmes to you commenting on Mr Coyne’s document, and then we’ve seen the version that was sent to the Post Office. In both of those, it was said that the number and nature of the calls were all perfectly normal, that they weren’t indicative of any system problem and that, in general terms, they were usual in the operation of a complex computer system?
Colin Lenton-Smith: Yes.
Mr Beer: Why would revelations of transcripts therefore, if that was true, not help the Post Office’s case?
Colin Lenton-Smith: Well, I’ve got nothing to compare – I don’t know what the transcripts said. You told me that there are number of pages, but I don’t know whether they’re comparable to the other transcripts of the other examples that were shown in the table.
Mr Beer: According to Mr Holmes, the number of them were.
Colin Lenton-Smith: There were comparable number of calls, so the transcripts were probably comparable.
Mr Beer: I don’t understand, you see, the reports that he was giving to you, a version of which you sent on, was saying to the Post Office “There’s nothing to see here with these HSH calls”.
Colin Lenton-Smith: Exactly, yes.
Mr Beer: Yet here, you’re discussing internally, “I can completely understand, I can understand that public revelation of the transcripts in court won’t help the Post Office’s case”. It doesn’t add up, does it?
Colin Lenton-Smith: So it’s kind of – I’m in speculation here, so I’ve got nothing to substantiate it. But I don’t know whether there’s anything significant about the HSH transcripts for Cleveleys, compared to the HSH transcripts for the other examples that were in the table. So I can’t comment whether it’s just the extent of transcripts is an issue or whether there is anything more significant than that.
Mr Beer: He continues:
“Shobnall Road has come back.”
Do you know what Shobnall Road was?
Colin Lenton-Smith: I assume it was another Post Office.
Mr Beer: “Bill has apparently been asked to provide a Witness Statement to the effect that nothing contained in the HSH calls over the period in question could have caused, or be described as, a system malfunction. I’m attaching a brief analysis of the HSH transcripts that I did in April. Comments made by engineers that ‘keyboards can cause phantom transactions’ do not help the Post Office’s position. I suspect that we cannot make the statement required …”
That’s the statement that nothing contained in the calls over the period in question could have caused or be described as a system malfunction.
Colin Lenton-Smith: Yes.
Mr Beer: “… and when [Post Office] read the transcripts in detail they may well think that they could not submit them anyway.
“3. How many more Cleveleys and Shobnall Road howlers exist in the HSH archive? Two out of two is a bit of a worry.
“4. How long before Post Office realise that they cannot rely on HSH transcripts to counter claims made by postmasters that they want to prosecute, or have to defend against claims of wrongful dismissal, and seek to recover settlement costs from Fujitsu?
“I think this warrants a bit more thought.”
Was a bit more thought given, after receipt of this email, to your recollection?
Colin Lenton-Smith: There was the report that was an internal report which was written about the Cleveleys case.
Mr Beer: Yes, the September 2004 report?
Colin Lenton-Smith: Yes.
Mr Beer: That doesn’t really make any recommendations, does it?
Colin Lenton-Smith: No.
Mr Beer: It’s just a straight up and down narration of what happened?
Colin Lenton-Smith: It – yeah.
Mr Beer: But I’m talking about whether this opportunity was seized to grip the problems that had been revealed?
Colin Lenton-Smith: So, on the face of it, none of this is a commercial issue, in other words affecting discussion between Post Office Commercial and Fujitsu. It’s kind of an operational matter dealt with through the service organisation. So any taking forward of these issues would have been done at that level.
Mr Beer: Can we look at that report, please. FUJ00121747. You’ll see this is dated 1 September, it’s written by Jan Holmes and at the foot of the page you gave approval for it?
Colin Lenton-Smith: Yes.
Mr Beer: In the abstract it states that it:
“… describes the involvement of Fujitsu … with Post Office Security Investigation in the matter of Cleveleys post office and the dispute between the Post Office and the postmaster.”
If we look at the second page, please. It appears to have been initially drafted on 29 March and then updated on 3 August following a request for assistance from Post Office counsel. Do you know what that was?
Colin Lenton-Smith: No, I can’t.
Mr Beer: Ie the Post Office and their counsel helping Fujitsu update its internal report?
Colin Lenton-Smith: Well, we haven’t got previous versions.
Mr Beer: No.
Colin Lenton-Smith: I can’t remember.
Mr Beer: If we go to page 4, please, and look under “The Expert’s Report”, the report says:
“The Expert, who was supposed to be jointly appointed …”
To your recollection, was he jointly appointed, ie by Post Office and not Mrs Wolstenholme.
Colin Lenton-Smith: I believe so. The court appointed him, didn’t it? Requested it, I believe so.
Mr Beer: It’s just the use of the language “He was supposed to be jointly appointed”. Was there any suggestion that he wasn’t jointly appointed and he was only appointed by Mrs Wolstenholme and the Post Office didn’t have anything to do with it?
Colin Lenton-Smith: I can’t comment on it.
Mr Beer: Over the page, please. Third paragraph:
“We have offered to host him at any of our locations so he can analyse HSH data directly, speak to the experts and walk through the problem management cycle for himself. He will not have seen this offer since it was contained in the email that accompanied our final response and this has not been passed on to the Expert pending the outcome of an out-of-court settlement by [Post Office] to the [postmaster].”
So it was known by you within Fujitsu that the offer to the expert to come and visit the premises and meet the real experts had not got through to him?
Colin Lenton-Smith: So it had – so it transpired, yes.
Mr Beer: Wasn’t that the basis of some of your criticism earlier, that he hadn’t taken up the offer?
Colin Lenton-Smith: No, I said he had not been able to take up the offer.
Mr Beer: Because it had never been made to him?
Colin Lenton-Smith: Yes, we had made it – I said we had made it to Post Office to pass on to him.
Sir Wyn Williams: I’ve got this right, I think. You made the suggestion that various offers should be made to the expert, put them to Post Office, but Post Office never put them to the expert; is that correct?
Colin Lenton-Smith: That’s correct sir, yes.
Mr Beer: Thank you.
Can we lastly turn to FUJ00121636. These are the minutes of a meeting called the Horizon Commercial Forum held on 28 April 2004, jointly between the Post Office and Fujitsu. Can you explain what the Horizon Commercial Forum was, please?
Colin Lenton-Smith: Yes. So this was the two commercial Teams meeting periodically, I think monthly, or thereabouts, to review ongoing commercial issues coming out of the contract and financial matters coming out of the contract to do with invoicing and various other matters like that. So it was an ongoing set of minutes on discussions taken, actions taken, noted and a follow-up of actions.
Mr Beer: We can see that there’s three from each party present, three members of each party present –
Colin Lenton-Smith: Yes.
Mr Beer: – one of which is you?
Colin Lenton-Smith: Yes. That’s right.
Mr Beer: How frequently did the Commercial Forum meet?
Colin Lenton-Smith: I was going to say monthly, but it’s probably there or thereabouts. Monthly or two monthly, but frequently.
Mr Beer: Can we turn, please, to page 5, and look three rows from the bottom:
“KB, [that’s Keith Baines] suggested that when the ‘Cleveleys’ court case had been concluded, a review is undertaken to find improvements in information storage for future cases.”
Colin Lenton-Smith: Yes.
Mr Beer: Was such a review undertaken?
Colin Lenton-Smith: I don’t remember specifically, unless we have access to the subsequent minutes of the Forum beyond this.
Mr Beer: To your knowledge, was there ever anything more broadly contemplated, rather than a review about storage of information but a review of the substance of what the independent expert had said?
Colin Lenton-Smith: This is the final version of 16, is it?
Mr Beer: Yes. If we go to FUJ00121632, this is the email distributing the “Commercial Forum Minutes No 16 (Final)”. If we scroll down, please. It says, “Pam, please find ‘final’ minutes attached”, and the document I’ve shown you was an attachment to that email.
Colin Lenton-Smith: I thought in that document we had said that, in my witness statement, we put that KB advised that Post Office were trying to negotiate a settlement at the time, they suggested a discussion should be held with both parties at some future time to understand how the situation regarding the expert could be avoided in the future. That was that.
Mr Beer: Yes, if you just look at page 3.
Colin Lenton-Smith: Yes.
Mr Beer: So if we go back to FUJ00121636, and look at page 3, and look at the third box down. There’s the passage that you’re just referring to:
“KB advised that the Post Office were trying to negotiate a settlement with regard to the Julie Wolstenholme case.
“[Keith Baines] further suggested that a discussion should be held between both parties at some future date to understand how the situation regarding the ‘Expert’ could be avoided in the future.”
Colin Lenton-Smith: Right.
Mr Beer: That seems to be a suggestion, would you agree, that Fujitsu and POL need to discuss how an expert like this might be appointed in the future, and how we could avoid getting an expert like this rather than examining the substance of what the expert said and seeing whether it might be accurate or not, which is what I was asking about?
Colin Lenton-Smith: Yeah, so I think it’s reliance on non-expert data, so not relying on an expert.
Mr Beer: What did you understand that the discussion in the future between both parties to be about –
Colin Lenton-Smith: Ensure that there was enough data evidence to support the system, given the context of how Commercial Fujitsu and Commercial Post Office viewed the system at the time.
Mr Beer: Did that happen?
Colin Lenton-Smith: As I say, I’d have to go back to the subsequent minutes after 16 to review what happened to that action point.
Mr Beer: You’ve got no independent recollection. We’ve got the minutes.
Colin Lenton-Smith: If you have the minutes – I don’t know but, I mean, if you can share the minutes.
Mr Beer: Well, the subsequent minutes don’t translate that action into an action.
Colin Lenton-Smith: Potentially, I think that the matter passed away, in other words there wasn’t the requirement for the expert because the number of instances that were raised at a commercial level in terms of prosecutions was so few.
Mr Beer: What about the fact that the Post Office was using the self-same system as the basis for prosecuting people?
Colin Lenton-Smith: Can you just repeat the question?
Mr Beer: Yes. What about the fact that the Post Office was using the self-same system, Horizon, and the data that it produced, as the basis for prosecutions? Did anyone mention that in this context, “We’ve had an expert report from somebody, we don’t much like it, but we ought to check somehow to see whether what he’s saying might have substance because we’re using this system to prosecute people, some of whom are going to go to prison, some of whom – families are going to be broken up, some of whom are not going to see their children”.
Colin Lenton-Smith: I understand that. I understand all of that. But at this point in time, I think there was just reliance on the system. I go back to the witness statements, you know, the commercial view was the system was reliable.
Mr Beer: What was that view based on?
Colin Lenton-Smith: Based on the fact that they had produced data – or they hadn’t come up to commercial, there had been instances where they had used the system’s data to show that transactions were not – that the system was correct.
Mr Beer: I think what you’re referring to here is, in particular, Mr Baines’s witness statement; is that right?
Colin Lenton-Smith: Partially that but also the point that there were, in discussions we’ve had earlier on from Jan Holmes, was that in the past, that the use of transaction data had been successfully used in prosecutions.
Mr Beer: So if we just look at – given that you’ve mentioned it couple of times – what Mr Baines said. It’s POL00118219. It’s page 3. It’s a rather short witness statement, if we scroll down. He says who he is in paragraph 1. He says that the contents are true to the best of his knowledge in 2. He explains Horizon in 3.
Over the page, please. He says:
“Before January 2003, the Post Office was aloud 50 audit extraction requests per year within the fixed price of a service and, subject to capacity limits of Fujitsu … could purchase others at additional cost. The system would have been fully checked before being issued at Cleveleys …
“Every branch has the same type of equipment …”
(5), and I think this is the paragraph that you’re referring to:
“Any faults that occurred in the Horizon System were eliminated once they were identified. Whilst it is possible for mistakes to occur, this usually through incorrect inputting to the computer system in the office affected by the mistake. All subpostmasters were fully trained in the use of the Horizon equipment. The system was fully tested before it was used by the Post Office and it is fit for its purpose. The system itself does not create losses as is claimed by Mrs Wolstenholme.”
Is that the long and the short of what you describe as the commercial view?
Colin Lenton-Smith: Yes.
Mr Beer: Mr Lenton-Smith, thank you very much. They’re the only questions I ask.
I think there are some questions from Mr Jacobs and not from Mr Henry or Ms Patrick. So just one set of questions from Core Participants, if you just wait there.
Sir Wyn Williams: Over to you, Mr Jacobs.
Questioned by Mr Jacobs
Mr Jacobs: Thank you, sir.
Mr Lenton-Smith, I represent 157 subpostmasters and I’m instructed by Howe+Co.
I want to ask you about the Post Office’s objectives in relation to Mr Coyne’s evidence. Now, you were taken to – we don’t need to turn it up again – a letter from Jan Holmes to you, dated 7 June 2004, in which Jan Holmes told you what Mandy Talbot’s view was, that the Post Office view was the safest thing to do was to throw money at it get a confidentiality agreement and “how much to go away and keep your mouth shut”; do you recall that?
Colin Lenton-Smith: Mm-hm.
Mr Jacobs: When you were asked about it, you said that you didn’t know what Post Office’s objectives were. Can I ask you to look at a document which you’ve already seen today and which Ms Helliwell looked at earlier on. It’s POL00095375.
If we can go down to the bottom of the first page, and here we have Mr Baines saying to you, in relation to the expert opinion:
“As I’m sure you will understand, Post Office is concerned by these findings, not only in relation to this particular case, but also because of any precedent that this may set and that may be used by Post Office’s agents [subpostmasters] to support claims that the Horizon System is causing errors in their branch accounts.”
So is it right to say that Mr Baines, in this letter, was telling you that Post Office’s objectives in relation to Mr Coyne’s evidence was to keep this away from the “gaggle”, as they were subsequently described, of subpostmasters, so that they wouldn’t be able to defend themselves against allegations that concern alleged shortfalls generated by Horizon?
Colin Lenton-Smith: Can you go back to the previous page, please?
Mr Jacobs: Yes. The highlighted section:
“… Post Office is concerned by these findings, not only in relation to this particular case, but also because of any precedent that this may set …”
Colin Lenton-Smith: So this is in the absence of transaction data, that was thought that would have substantiated the Post Office’s position and, in the absence of that, we have a report which Post Office subsequently found unacceptable but that, in itself, as it is published, would cause a precedent to be set, in other words reliance on an expert’s –
Mr Jacobs: Yes, we heard evidence from – and I don’t know if you heard, but Mr Coyne give evidence yesterday. He stood by his report. He stood by his report at the time. There was a report which the Post Office didn’t accept.
Colin Lenton-Smith: Yes.
Mr Jacobs: But it was capable of being used by subpostmasters to defend themselves against the Post Office when the Post Office bought actions in relation to shortfalls; that’s right, isn’t it?
Colin Lenton-Smith: I would have thought so, if it was in the public domain, yes.
Mr Jacobs: Then if we could also turn to FUJ00121486. We’ll wait for it to come up on the screen. If we can go to the section that says, “Background”, and it’s right at the bottom there, it’s the last paragraph. So this is Jan Holmes’ draft response to you, I believe, in respect of the letter that Keith Baines wrote to you that we just looked at. We see some more about precedent here but it’s more specific. So it says:
“POL are concerned that the Expert’s opinion (that the system was at fault) might set a precedent against future … prosecutions.”
So it’s quite clear, isn’t it, that both Mr Holmes and you knew what Post Office’s objections were, or objectives amounted to, in respect of the expert report? It didn’t want this being used by subpostmasters in relation to defending themselves in prosecutions?
Colin Lenton-Smith: So the expert report as it stood, which he hasn’t changed and which we were unable to persuade Post Office to provide him more data, was the de facto basis that would be set as the precedent –
Mr Jacobs: Do you accept –
Colin Lenton-Smith: – or a precedent.
Mr Jacobs: – that is a very serious issue. As Mr Beer has said: people were being prosecuted –
Colin Lenton-Smith: I understand.
Mr Jacobs: – they were being put in prison, were not seeing their children. You were asked earlier on in your evidence today why didn’t Fujitsu have a rethink, given that, at least on one view, what the expert was saying was right, and we know, don’t we, that what he said about blue screening, money vanishing on reboot, that that all came to pass. We know that it ultimately was right?
Colin Lenton-Smith: Yes, but we’re talking about at the time, so this is – we’re talking about 2004.
Mr Jacobs: Yeah.
Colin Lenton-Smith: What came to pass in the future, we obviously weren’t aware of. The fact that there were technical issues around – I can’t comment because I wasn’t a technical person but I think in the statement Jan Holmes has made the point that when – as the technical issues arose, they were being dealt with through the Fujitsu support system.
Mr Jacobs: But don’t you think that it would have been best practice, instead of calling the expert a “git”, which Mr Holmes did, instead of trying to dismiss what he’d said, to have a review based on the potential at the time that this, that what Mr Coyne was saying could be right, as it subsequently turned out to be?
Colin Lenton-Smith: So I’m not aware of what activities took place within the service function to take on board those comments. You talked about the blue screens, which I think they said were being rectified or any other issues that had been raised in his report, so that that would be a one for record of the service function and/or software development to come up with or may have dealt with. But, at a commercial level, these matters would not arise because they were not of a commercial issue.
Mr Jacobs: Why didn’t you, just as a matter of good practice, have a rethink about the Horizon System as a result of the issues that the expert had raised?
Colin Lenton-Smith: I don’t know that we didn’t.
Mr Jacobs: Well, you said you didn’t?
Colin Lenton-Smith: I don’t know. I didn’t personally. I’m talking about me personally. I didn’t. But I’m not sure whether the functions that were – surrounded the system did.
Mr Jacobs: Well, we know that in September 2004 there was a review of the Cleveleys case and that there were no recommendations made. So nothing was done; is that fair?
Colin Lenton-Smith: On the basis that nothing was – happened – nothing – no recommendations came out of the Cleveleys report, potentially.
Mr Jacobs: My clients take the view that, when one looks at the views of Mandy Talbot, when one looks at the correspondence that we’ve looked at between Mr Holmes and yourself, it’s quite clear that Post Office were seeking to cover up their own expert opinion that showed that Horizon was defective because they didn’t want that to get out to subpostmasters. Do you accept that’s a fair summary of what Post Office were doing at the time?
Colin Lenton-Smith: He didn’t conclude that the system was defective. He construed that it might be defective but he didn’t have proof to say that it was defective. But – sorry, just say your question again, sorry?
Mr Jacobs: My question to you is that Post Office were seeking to cover up the expert report because they didn’t want subpostmasters to find out what Mr Coyne had found.
Colin Lenton-Smith: I can’t really comment on that.
Mr Jacobs: I have to suggest to you that your actions in failing to respond appropriately to Mr Coyne were complicit in this cover-up, in failing to undertake a review and in seeking to dismiss, rather than investigate?
Colin Lenton-Smith: As I said, I don’t know whether we didn’t do that. I mean there may not have been recommendations in the internal report on the Cleveleys case but I can’t comment, and we have – but we have described that, as a result of particular issues, they were pushed through the first, second, third and fourth line of support issues and to rectify some of it – to rectify some of the issues. So I can’t say that they were not acted upon. There’s no evidence to say that they were not acted upon.
Mr Jacobs: Well, thank you, I might just have some further questions for you.
No, I haven’t. That all I have for you. Thank you.
The Witness: Thank you.
Questioned by Sir Wyn Williams
Sir Wyn Williams: The impression I get, Mr Lenton-Smith, is that you consider – and for all I know at the moment, you may be right – that it would not have been for you personally or your department to take forward an investigation of the extent to which Mr Coyne’s opinions might be valid, all right?
Colin Lenton-Smith: Yes.
Sir Wyn Williams: Tell me whether you think there was a department or a person within Fujitsu who would have been charged to take forward such an investigation if it was carried out? In other words, can you point me in the right direction so that I can investigate whether the appropriate person in Fujitsu carried out any investigation?
Colin Lenton-Smith: So I think within the service infrastructure, service department, that managed the first, second and third line support functions, the Service Director may well have – is possibly the person to whom they – those corrective measures should have been applied. Any software development, bugs, issues, which I’m sure you’ve been through, would fall to the software development, Software Services Director.
Sir Wyn Williams: So I don’t want to make this too simplistic but through Mr Holmes – and Mr Holmes is a technical man, isn’t he?
Colin Lenton-Smith: Yes.
Sir Wyn Williams: Through Mr Holmes, if Fujitsu wanted to, they would be able to ascertain sufficient information about the expert’s opinion and then, through Mr Holmes, engage the right people in Fujitsu to carry out such investigation as was necessary, in order to validate or disprove what the expert had been saying.
Colin Lenton-Smith: Yes.
Sir Wyn Williams: So I understand it could have been done and I understand your evidence to be that you don’t know if it was done?
Colin Lenton-Smith: That’s correct.
Sir Wyn Williams: Right. Thank you very much.
Thanks for coming to give evidence to me, and thanks for the witness statement.
The Witness: Thank you.
Mr Beer: Thank you, sir, that’s all of our evidence today. We resume I think at 10.00 tomorrow.
Sir Wyn Williams: You gave me a shock then, Mr Beer.
Mr Beer: It would have had given Mr Blake a shock too because he’s asking the questions tomorrow.
Sir Wyn Williams: So it’s just Mr Holmes tomorrow, is it?
Mr Beer: It is, yes, thank you.
Sir Wyn Williams: All right, 10.00 tomorrow.
(4.10 pm)
(The hearing adjourned until 10.00 am the following day)