5 October 2023 – Duncan Atkinson
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(10.00 am)
Mr Beer: Good morning, sir. Can you see and hear me?
Sir Wyn Williams: Yes, I can. Thank you.
Mr Beer: With your leave, may I call Duncan Atkinson KC, please.
Sir Wyn Williams: Of course, yeah.
Duncan Atkinson
RICHARD DUNCAN ATKINSON KC (sworn).
Questioned by Mr Beer
Mr Beer: Good morning, Mr Atkinson. As you know, my name is Jason Beer and I ask questions on behalf of the Inquiry. Can you give us your full name, please?
Duncan Atkinson: My full name is Richard Duncan Atkinson but I answer to the name of Duncan.
Mr Beer: Thank you. You’ve been instructed by the Inquiry as an independent expert to assist the Inquiry – and this is a very high level summary of the tasks – as to the law and practice of the conduct of investigations and prosecutions by a private investigator or prosecutor between the years 2000 and 2013 and the compliance or not of the Post Office with that law and practice in some of the investigations that it undertook and the prosecutions that it initiated and pursued in those years; is that right?
Duncan Atkinson: Yes.
Mr Beer: You have, I think, at the Inquiry’s request, divided your task into two parts: the first part concerns the legal framework for investigation and prosecution, both in the Post Office and more broadly, and the framework relating to the responsibilities of prosecuting authorities, investigators, charging decisions, prosecutions, expert evidence and disclosure.
Duncan Atkinson: Yes.
Mr Beer: That concerns consideration of the applicable statutory provisions, the codes of practice issued under statute, guidelines, guidance, case law and other material from a range of sources, and then consideration of the policy documents and guidance issued by the Post Office?
Duncan Atkinson: Yes.
Mr Beer: The second part of your task is to assess how the framework that you have so outlined was in fact applied by the Post Office in specific investigations and prosecutions by reference to specific cases?
Duncan Atkinson: Yes, and I should say that I have moved beyond the work I’d done at the time. I prepared this report with a view to completing Part 2 but I have not yet completed Part 2.
Mr Beer: I understand. Now, the first part of your task, that’s addressed in volumes 1 and 1A of your report; is that right?
Duncan Atkinson: Yes.
Mr Beer: Can we look at those, please. Volume 1 is – it will come up on the screen for you and I think you’ve got a hard copy there –
Duncan Atkinson: I have.
Mr Beer: – EXPG0000002. Is that the first page of Volume 1 of your report?
Duncan Atkinson: Yes, it is.
Mr Beer: I think it runs to 181 pages including appendices?
Duncan Atkinson: I’m afraid so.
Mr Beer: That report addresses all issues of the Part 1 task, apart from expert evidence; is that right?
Duncan Atkinson: Yes.
Mr Beer: Are the contents of this report true to the best of your knowledge and belief?
Duncan Atkinson: Yes.
Mr Beer: Can we turn, please, to page 167. You should find there Appendix 1 –
Duncan Atkinson: Yes.
Mr Beer: – which contains an expert’s declaration. I’m not going to ask you to read it all out now but if the operator can just scroll through, please, we’ll see 11 paragraphs of a declaration, it goes over the page. Are the declarations you make on those two pages correct?
Duncan Atkinson: Yes.
Mr Beer: Thank you. Can we turn to volume 1A, please, which is EXPG0000003.
Is this the front page of follow 1A of your report?
Duncan Atkinson: Yes, it is.
Mr Beer: I think, with appendices, that is 15 pages long. Are the contents of that report true to the best of your knowledge and belief?
Duncan Atkinson: Yes, they are.
Mr Beer: Do the expert witness declarations that we’ve just seen, the 11 declarations, apply equally to this report too?
Duncan Atkinson: Yes, they do.
Mr Beer: Thank you very much. I think you are to provide the Inquiry with a Volume 2 report reflecting your opinion on Part 2 of your instructions and you’re to return to the Inquiry later this year, in December, to provide further oral evidence; is that right?
Duncan Atkinson: Yes, that’s right.
Mr Beer: I think it’s right however, as you’ve just said, that you’ve now already reviewed a quantity of the material that’s relevant to your Volume 2 report, and has that assisted you in understanding and giving an opinion on the issues raised in the two reports that we’re considering today?
Duncan Atkinson: Yes, it has.
Mr Beer: Can I start then, please, with your background and experience. Your CV is set out in Appendix 2 to your Volume 1 report. It’s page 169 through to 171 for the transcript but can I summarise it, and tell me whether you agree or disagree, certainly the key elements of it. You were called to the Bar in 1995 and took silk in 2015; is that right?
Duncan Atkinson: (No audible response)
Mr Beer: You were Treasury Counsel between 2009 and 2022 –
Duncan Atkinson: Yes.
Mr Beer: – including a period of Senior Treasury Counsel from 2015?
Duncan Atkinson: Yes.
Mr Beer: You are a specialist criminal practitioner with elements of your practice involving both public law and public inquiry work?
Duncan Atkinson: Yes.
Mr Beer: Have you regularly prosecuted for the Crown Prosecution Service?
Duncan Atkinson: Yes.
Mr Beer: But also the Health and Safety Executive –
Duncan Atkinson: Yes.
Mr Beer: – the Serious Fraud Office, the SFO –
Duncan Atkinson: Yes.
Mr Beer: – and the Environment Agency?
Duncan Atkinson: Yes.
Mr Beer: Have you ever been instructed by Post Office Limited?
Duncan Atkinson: No.
Mr Beer: Do you have any direct experience of private prosecutions during what I’m going to call the relevant period, which is 2000 to 2013?
Duncan Atkinson: Yes.
Mr Beer: Is that as prosecuting counsel or defence counsel or both?
Duncan Atkinson: Both.
Mr Beer: I think you are widely published but, amongst those publications that are significant and relevant for our purposes, are you a co-author of Blackstone’s Guide to the Criminal Procedure Rules, an OUP publication?
Duncan Atkinson: Yes.
Mr Beer: Also are you a contributor to Blackstone’s Criminal Practice also by Oxford University Press?
Duncan Atkinson: Yes, the latter in a more up-to-date way than the former.
Mr Beer: Thank you. I’ve already set out at a high level the nature of your instructions. Can we look at your Volume 1 report at page 5, please. That’s EXPG0000002 at page 5. This sets out, in slightly more detail, the issues that you were asked to consider and they were divided in broad terms between issues relating to investigations, on the one hand, and prosecution on the other; is that right?
Duncan Atkinson: Yes, that’s right.
Mr Beer: “In relation to investigation [you were asked:
“Whether any special difficulties arise, where the same body is the victim, a witness, the investigator and the prosecutor and, if so, what should be done to ensure independence of decision making”, and you address that in your report?
Duncan Atkinson: Yes, I do.
Mr Beer: You were asked to address:
“The terms, and adequacy, of [the Post Office’s] policy documents concerning the conduct of investigations …”
You addressed that in your report?
Duncan Atkinson: Yes.
Mr Beer: You were asked to consider:
“The duties of an investigator to pursue a reasonable line of enquiry (generally, and also where a person positively asserts that they believed the problems they had experienced, (accounting shortfalls at their Horizon terminals) might lie with the computer system).”
Duncan Atkinson: Yes, that’s right.
Mr Beer: Then, in relation to the second half broadly, you were asked to address, under the heading of “Prosecutions”, charging decisions, including the test that the prosecutor applied or ought to have applied, including an analysis of Post Office, prosecutorial guidance and policy and any policy decisions made in relation to prosecutions based on Horizon evidence.
Duncan Atkinson: Yes.
Mr Beer: You address that in your report.
Duncan Atkinson: (The witness nodded)
Mr Beer: The evidence that the prosecutor reviewed when making a charging decision or which they ought to have reviewed; the extent to which the charging decisions appear to be thorough and conscientious; the approach said to have been undertaken of charging theft and false accounting; and your attention was drawn to the decision of the Court of Appeal in Eden in which the practice of the Post Office charging both theft and false accounting received judicial disapproval.
You were asked to address how proceedings were commenced by the application for the issue of a summons in the Magistrates Court and the existence of a duty of candour when applying for such a summons.
Duncan Atkinson: In relation to that and, indeed, in relation to 3A(ii)(3) and to an extent (4), what I’ve looked at for the purposes of this report is what there is in policy terms and in terms of why the guidance in relation to those issues, what evidence was actually reviewed. The thoroughness or otherwise of actual charging decisions, and so on, is a Volume 2 matter rather than for now.
Mr Beer: Yes. You were asked to, under this heading, consider thirdly “Disclosure”:
“Whether there was a “disclosure officer” (as would exist in a prosecution conducted under the CPIA), or equivalent (and, if not, any difficulties that this created) …”
Again, is that something of a mixed –
Duncan Atkinson: Yes, it is.
Mr Beer: – issue, in that in this report or in these reports you’ve considered whether there was policy relating to that issue. In your Volume 2 report, you’ll address the position on the ground?
Duncan Atkinson: Absolutely.
Mr Beer: Under this heading you were asked to consider whether prosecutors reviewed the adequacy of disclosure. Again, mixed question in this report; you consider whether policy documents required them to?
Duncan Atkinson: Yes, or equipped them to.
Mr Beer: The extent, lastly, under this subheading, of the duty of cross disclosure, ie where an issue arises in case A, there is a duty to give disclosure of it in cases B, C and D, et cetera. You address that in this report?
Duncan Atkinson: To an extent but I think that’s more a question for Volume 2.
Mr Beer: Lastly, prosecutorial practice:
“The practice said to have been undertaken of ‘plea bargaining’ (ie offering no evidence on a count of theft in return for a plea on a count of false accounting).”
Lastly:
“The relevance of the approach taken to reliance on Horizon data to the repeal of [Section 69] of the Police and Criminal Evidence Act 1984 by the Youth and Criminal Evidence Act 1999.”
Duncan Atkinson: Yes.
Mr Beer: That can come down, thank you. I think you were provided with a very large volume of material; is that right?
Duncan Atkinson: Yes.
Mr Beer: That’s listed in Appendix 3 to your report. There’s no need to turn it up. For the transcript, it’s pages 173 to 179 of the transcript. Did you yourself additionally refer to a large volume of publicly available material?
Duncan Atkinson: Yes, in the versions that I was able to obtain.
Mr Beer: More of which later?
Duncan Atkinson: Yes.
Mr Beer: So, in your Volume 1 and 1A reports, you cross-refer to publicly available material by way of hyperlinks that are embedded in your report –
Duncan Atkinson: Yes.
Mr Beer: – so the reader can click through and read them, to or by footnotes –
Duncan Atkinson: Yes.
Mr Beer: – in your Volume 1 and 1A reports. Is all of that material listed in Appendix 3, Part 2 –
Duncan Atkinson: Yes.
Mr Beer: – of your Volume 1 report. That’s pages 179 to 181, for the transcript.
Were you additionally provided with a quantity of material emanating from the Post Office, consisting of, in broad terms, policies, guidelines and guidance.
Duncan Atkinson: Yes, at various stages while I was working on the report and since.
Mr Beer: Were you provided more recently with a report commissioned by the Post Office Limited and written by Jonathan Laidlaw King’s Counsel?
Duncan Atkinson: Yes, I was.
Mr Beer: And also provided with a substantial body of the material that was referred to in his report?
Duncan Atkinson: Yes.
Mr Beer: I think you were assisted in the assimilation of material and the compilation of your volume 1 and 1A reports by Catherine Brown?
Duncan Atkinson: Yes, I was.
Mr Beer: A barrister in your chambers –
Duncan Atkinson: Yes.
Mr Beer: – I think, whose CV is set out on pages 171 and 172 of your Volume 1 report. But are the opinions that you give in the report, and those that you’re able to give today, your own?
Duncan Atkinson: Yes, they are.
Mr Beer: Thank you. Can we start, please, by looking at Volume 1 of the report, EXPG0000002, and look, please, at page 4. At paragraph 2.1, if we scroll down, you say:
“I am asked to address the following questions in this report:
“An explanation of the law and practice of the conduct of investigations and prosecutions by a private investigator/prosecutor between 2000 and 2013 (focusing on the application or non-application (as the case may be) of”, and then a series of statutes and other instruments.
Duncan Atkinson: Yes.
Mr Beer: Would you agree that a private prosecution is a prosecution started by a private individual or a private entity which is not acting on behalf of the police or some other prosecuting authority?
Duncan Atkinson: Certainly not acting on behalf of the police. I think it slightly depends on your definition of the authority as to whether it is a private prosecution truly ascribed or not.
Mr Beer: Would a way of describing a “prosecuting authority”, in inverted commas, include an entity which has a statutory power to prosecute?
Duncan Atkinson: Yes.
Mr Beer: But it could extend beyond that?
Duncan Atkinson: Yes.
Mr Beer: So it includes but not limited –
Duncan Atkinson: Absolutely, yes.
Mr Beer: – to such an entity. So would the classic example of a public prosecutor be the Crown Prosecution Service, the CPS?
Duncan Atkinson: Yes.
Mr Beer: In that circumstance, it acts on behalf of or prosecutes for the Police Service?
Duncan Atkinson: Amongst others, by reference to the Prosecution of Offences Act, which sets out its statutory position.
Mr Beer: And there are a large number of other bodies that it prosecutes for?
Duncan Atkinson: Yes. Which are listed in, I think, Section 3 of that Act.
Mr Beer: You identify in paragraph 34 of your report – there’s no need to turn it up – other entities with the statutory power to prosecute during the relevant period covered by your report, those 13 or so years, including the SFO, the Serious Fraud Office, or the Director of the SFO, the Department of Work and Pensions the Health and Safety Executive and the Environment Agency. Would you agree that those entities are public, rather than private prosecutors?
Duncan Atkinson: They’re, in some respects, something of a hybrid, certainly on the basis to the approach that the Court of Appeal and House of Lords have taken to it. Sometimes they have treated them as being public and sometimes private but with a statutory basis for their activities.
Mr Beer: In what context have they approached that hybrid –
Duncan Atkinson: Looking at the – usually, in the context of a challenge to a decision either to prosecute or not to prosecute, as to the extent to which they were required to apply, for example, the Code for Crown Prosecutors and, if not, what test they were meant to apply.
Mr Beer: So is your answer to the question it is too simplistic to put a label on them of “public prosecutor” or “private prosecutor”?
Duncan Atkinson: Yes.
Mr Beer: Did you consider, for the purposes of your report, the policy and practice of any other classically private prosecutor, other than the Post Office?
Duncan Atkinson: I think, on the definition I’ve just given, clearly I looked at a number of agencies that did prosecute but which did not have the Prosecution of Offences Act as their bedrock for doing so, like the Environment Agency, for example, but in terms of an organisation, for example, a supermarket chain that prosecutes theft itself or organisations of that sort, no, I didn’t look at their practice.
Mr Beer: So you looked at some that might or have been described as “hybrid” –
Duncan Atkinson: Yes.
Mr Beer: – including the Environment Agency?
Duncan Atkinson: Yes, and the Department of Work and Pensions is arguably another example of that. It has a statutory basis for what it does but it’s not a police-related prosecuting organisation.
Mr Beer: So for the purposes of these two reports, you’ve looked at their policy, as opposed to their on-the-ground practice?
Duncan Atkinson: I’ve looked at their practice, insofar as that is identified by their policies, and their recognition in those policies of what statutory requirements applied to them, rather than, as you say, looking at how they actually made decisions on the ground.
Mr Beer: You’re proposing to examine the practice of the Post Office, in fact, between the years 2000 and 2013 in your volume 2 report?
Duncan Atkinson: Yes.
Mr Beer: But you’re not proposing to – because it’s an exercise, I don’t think, that could realistically be done – compare that to the practice of other truly private or hybrid private prosecutors in that 13-year period?
Duncan Atkinson: No, I took my instruction for the purposes of this volume – so far as I was looking at practice as well as law – was to look at the policy position in relation to the Post Office and, where I could obtain it, other agencies, to see what that told me about their practice but, so far as the Post Office practice is concerned, that is very much Volume 2.
Mr Beer: Thank you very much. In terms of the relevant period, if we can look, please, at page 7 of your Volume 1 report. Look at paragraph 6. You say that you have:
“… endeavoured, with the assistance of Catherine Brown and the Inquiry Secretariat, to obtain the versions of statutory provisions, codes of practice issued under statute, guidelines and guidance, case law and other relevant material that had application during the period from 2000 to 2013. It has not always been possible to do so with certainty as to completeness. I have made clear that which I have seen. I am not conscious of having been deprived of access to any material necessary for me to reach the conclusions I have set out below. If further material is identified, I am happy to consider it and, if necessary, address it in an addendum to this report.”
So you’re making the point there, essentially by way of caveat, that you have used every endeavour to find the iterations of the guidelines and guidance and other material that was applicable in the relevant period but have not always succeeded?
Duncan Atkinson: No, and an example of that is the Code for Crown Prosecutors because it is available on the CPS website. It is available on that website in its present form. I was and I am conscious that that’s a code that has evolved over time but it was only, I’m afraid, quite recently that it occurred to me where, in the back of Blackstone’s, of all places, to find earlier versions. And so at the time I wrote Volume 1, I was looking at the 8th Edition, as I make clear, rather than earlier versions.
Mr Beer: We’ll come to it in due course but the Code for Crown Prosecutors, 8th Edition, I think, was dated October 2018?
Duncan Atkinson: Yes.
Mr Beer: You have helpfully found for us two earlier iterations, if we can just show those on the screen, so everyone has got the references, please. RLIT0000171. Is that a copy of the 2009 edition of the Code for Crown Prosecutors.
Duncan Atkinson: It’s the 2009 Blackstone’s and, therefore, the 2004 Code for Crown Prosecutors, the 5th Edition.
Mr Beer: Thank you for that correction, so 2004, in the 2009 edition of Blackstone’s?
Duncan Atkinson: Yes.
Mr Beer: Then, equally, if we can look at RLIT0000170. Is that the edition that was in the 2012 Blackstone’s?
Duncan Atkinson: Yes, which is the 6th Edition, the 2010 version of the Code.
Mr Beer: Thank you very much. We’ll come later to whether there are any material differences to the opinions that you give by looking at these back issues of the Code within the relevant period?
Duncan Atkinson: Yes.
Mr Beer: Thank you. That can come down.
Just looking at other comparators still, that excursion into back issues over, as far as the DWP, the HSE – the Health and Safety Executive – and the Environment Agency are concerned, you, I think, have only had sight of their more recent policies; is that right?
Duncan Atkinson: Yes, that’s right.
Mr Beer: As opposed to all of the back issues that would have been operative in the years 2000 to 2013; is that right?
Duncan Atkinson: Yes, for the same reason that that is what was available on their website.
Mr Beer: So that’s a limitation – is this right – in that you can’t make a direct comparison to the actual policies that were in place or may have been in place in those institutions throughout the entirety of the 13-year period?
Duncan Atkinson: No, that’s right.
Mr Beer: Your instructions required you to consider both the law and the practice of a private prosecutor during the relevant period and – would this be fair – you focused in your report primarily on the Crown Prosecution Service as a comparator?
Duncan Atkinson: Yes.
Mr Beer: Would it be the case that any comparison between the practice of the Crown Prosecution Service and the practice of the Post Office would have to be based on the actual practice of the Crown Prosecution Service during the relevant period, rather than just its written guidance and policies, or is there a value in the exercise that you have nonetheless performed?
Duncan Atkinson: It seemed to me that because, for the purposes of Volume 1, I was looking at that which was on paper, effectively – so what the law was but also how that had been addressed by prosecuting agencies – that there was a valid comparison between looking at how different prosecuting agencies approached the same challenges in practice. Clearly, one could then go on to look at how well or otherwise those issues were addressed in practice by different prosecuting agencies. It seemed to me from my instructions that really, at that stage, I was being asked to focus on the Post Office, rather than to carry out an audit of how well or otherwise other prosecuting agencies did –
Mr Beer: Yes.
Duncan Atkinson: – in that period.
Mr Beer: So you weren’t asked to audit for a decade and a half, whether the CPS across the country in fact complied with its written policies?
Duncan Atkinson: No, and I’m aware that there are inspectorate reports, for example, in relation to the Crown Prosecution Service because it does audit its activities in that way. I wasn’t asked to and I haven’t looked at those for that reason.
Mr Beer: Is that by a CPS Inspectorate?
Duncan Atkinson: Yes.
Mr Beer: Is there, to your knowledge, any equivalent of such an inspectorate for Post Office Limited?
Duncan Atkinson: Not that I’ve seen, no.
Mr Beer: Okay, can we turn then to some general questions before we get into the detail. Would you agree that the supervision of the investigation of criminal offences and the supervision of the instigation and conduct of criminal proceedings is immensely important?
Duncan Atkinson: Yes.
Mr Beer: Is that because it’s important to ensure that the application of the criminal law to individual citizens is not oppressive, unjustified or misconceived but is, instead, fair and reasonable?
Duncan Atkinson: Yes, and consistent.
Mr Beer: Can we turn, please, to page 7 of your first report, please?
Look at paragraph 8, at the foot of the page. You helpfully give us an overview of your conclusions at the beginning of your report and then there is a very substantial section at the end of your report setting out your detailed conclusions.
Duncan Atkinson: Yes, that’s right.
Mr Beer: If we can start, please, with an overview of your conclusions to let us know where we’re heading. You tell us in this paragraph that, throughout the relevant period and indeed for a significant period before that:
“… there had been a network of statutory requirements, regulation provided through Codes of Conduct issued under statute, and other forms of directly applicable and mandated guidance in place. This sought to ensure that the procedures employed and decisions taken by investigative and prosecutorial bodies, were fair, transparently auditable and accorded with the interests of justice. The structure erected by that network of material was detailed and therefore complicated. It required those engaged in the investigation and prosecution of crime to receive training, instruction and guidance for each important stage of their duties.”
So what you describe there, the network of materials from statute down, that was intended to achieve the aims that we have just discussed: fair, reasonable and consistent application of the criminal law.
Duncan Atkinson: Yes.
Mr Beer: At this point – is this right – you’re drawing no distinction between public and private prosecutions?
Duncan Atkinson: No.
Mr Beer: Can we turn, please, to page 145 of your report. Just look at paragraph 335 at the bottom. If we just scroll up a little bit, so we can catch 334. There you essentially repeat what we’ve just looked at in the overview –
Duncan Atkinson: Yes.
Mr Beer: – and then you carry on here in the conclusions, 335:
“Those requirements [that’s in the network of instruments] applied in critical respects, every bit as much to a private prosecutor or non-crime agency investigation as to a police investigation or a CPS prosecution. This was made clear, for example, in R(Kay) v Leeds Magistrates’ Court [2018 EWHC 1233], in which [Mr Justice Sweeney] observed (at paragraph 23): ‘a private prosecutor is subject to the same obligations as a minister for justice as are the public prosecuting authorities – including the duty to ensure that all relevant material is made available both for the court and the defence’.”
Then you say:
“Although that was a case decided in 2018, that was a position that had been made clear for a considerable period before that.”
Now, given the importance of the point that you have made, based on the extract from the Divisional Court’s decision in Kay and an additional sentence after the one you quoted, and some questions I’m going to ask you in a moment, I think it may pay dividends, unusually, to look at the decision itself.
I’m not going to do this very frequently, you’ll be pleased to hear, because for many documents you’ve quoted and extracted them in full in your report.
So the decision in Kay is our tab D23, which is RLIT0000117. Thank you very much. You’ll see that it’s a decision of a Divisional Court consisting of Lord Justice Gross and Mr Justice Sweeney and we see, from the top right, it was a decision made on 23 May 2018.
Duncan Atkinson: Yes.
Mr Beer: It’s reported under the neutral citation number that I’ve just given. If we go to the second page, please, we’ll see that Mr Justice Sweeney gives the judgment and then, right at the end, we’ll see that Lord Justice Gross agrees with him?
Duncan Atkinson: Yes, he does.
Mr Beer: If we can turn to page – I think it’s 15. Scroll down, please, and again. It’s just on the next page, then. Looking for paragraph 23. Under the cross-heading of “The duties of a private prosecutor”, the court said:
“It is not disputed that authorities such as …”
I’m not going to cite them all. They are, by name of party Watts, Charlson, Dacre, Barry, Zinga and Haigh:
“… established that:
“(1) Whilst the Code for Crown Prosecutors does not apply to private prosecutions, a private prosecutor is subject to the same obligations as a minister for justice as are the public prosecuting authorities – including the duty to ensure that all relevant material is made available both for the court and the defence.”
Then the second point, and this is what I just wanted to pull out of this decision, the court says that those authorities establish, secondly:
“Advocates and solicitors who have the conduct of private prosecutions must observe the highest standards of integrity, of regard for the public interest and duty to act as a minister for justice in preference to the interests of the client who had instructed them to bring the prosecution – owing a duty to the court to ensure that the proceeding is fair.”
In your report you said that, although this case was decided in 2018, the position set out in these paragraphs was one which had been made clear for a considerable period before 2018.
Duncan Atkinson: Yes.
Mr Beer: If we just scroll up, please, you’ll see that what the court says is “It is not disputed that”, then there’s a list of authorities, “establish” those two principles.
The first of those two cases referred to, ex parte Watts. If we just scroll up for the citation, keep going and keep going.
Duncan Atkinson: I think we may just have missed it.
Mr Beer: Okay, scroll down, thank you.
Duncan Atkinson: Beginning of paragraph 22.
Mr Beer: I think we’ll see that it’s a decision of 1999. If we scroll down a little bit more, please. It’s the second case cited there, Watts.
Duncan Atkinson: Yes, I think that may, with all due respect to Mr Justice Sweeney, be a typing error. It’s actually a case from 1992. So it’s [1992] 2CrAppR 188, rather than 1999. And, perhaps in this context, it’s worth noting that, in that case, where they concluded that a private prosecutor was subject to the same obligations as a minister of justice as a public prosecutor, they relied on a decision called George Maxwell Developments Limited, which was a decision from 1980 that said the same thing.
Mr Beer: So when in your report you said that, although the case was decided in 2018, Kay, it was a position that had been made clear from a considerable period before that, were you relying on this list of cases, essentially –
Duncan Atkinson: Yes.
Mr Beer: – to ground that point, or your experience, or both?
Duncan Atkinson: Both.
Mr Beer: So this wasn’t something that came out of the clear blue sky from Mr Justice Sweeney in 2018?
Duncan Atkinson: No, not at all.
Mr Beer: So, in answer to a question “Are you able to point to any authorities relating to private prosecutions before the period 2013, which made clear the duties and positions you would refer to”, you would say, “Yes, see that list of cases there”?
Duncan Atkinson: Yes, and those that those cases, in turn, relied upon.
Mr Beer: So in general terms, how well established would you say it was, or not, that the principles that are set out by the court in paragraph 23(1) and (2) were embedded or not in the law?
Duncan Atkinson: Sorry, they were well established principles, which were restated by the court in that case, rather than it being anything new in 2018.
Mr Beer: Thank you. That can come down. Would you agree that Kay emphasises what the duties are and the fact that they exist for both private and public prosecutors, rather than saying that a public prosecutor and a private prosecutor have to discharge them in the same way?
Duncan Atkinson: No, that’s right.
Mr Beer: So the obligation is one of outcome, of result, rather than means?
Duncan Atkinson: Yes, which is why, for example, it makes clear, at the first of those paragraphs, that the Code for Crown Prosecutors does not apply to a private prosecutor because it is, on the face of it, a document for the Crown Prosecution Service but the underlying approach to decisions on prosecutions be recognised to be the same, in effect, for a long period before that, not least because a defendant, it is well recognised, had the right to know what test was being applied in a decision to prosecute them, whoever it was making the decision to prosecute them.
Mr Beer: So Kay, and, indeed, no other case, does not establish that the Post Office was under an obligation to have the same policies –
Duncan Atkinson: No.
Mr Beer: – as the Crown Prosecution Service?
Duncan Atkinson: No, as it happens, certainly from 2007, the documents that I’ve seen from the Post Office did indicate that they were going to apply the Code for Crown Prosecutors but that was a choice that they made as to the test, as indeed other agencies had done, for example the Department of Work and Pensions or the Environment Agency.
Mr Beer: You use a phrase in paragraph 9 and also in 335 of your report, that the network of instruments that you have described sought to ensure that the procedures employed by investigators and prosecutors are “transparently auditable”?
Duncan Atkinson: Yes.
Mr Beer: Can you explain what you mean by “transparently auditable”?
Duncan Atkinson: First, what I mean by that is that, for there to be proper supervision of those who are making those decisions, it is important that the criteria that they are applying are identifiable, so that those supervising them can test what they have done against those criteria; secondly, it’s important that a court that is dealing with a case brought by that agency is able to understand the criteria that had been applied; and, thirdly, it is important that those who defend in such a case understand the criteria that had been used to make the decision, for example, to prosecute.
Mr Beer: So, even if the Post Office did not owe, say public law duties, in terms of the publication and accessibility of its investigative and prosecutorial policies and guidance, that would not be a reason not to have such investigative and prosecutorial policies and guidance?
Duncan Atkinson: No, and the risk that would be run if an agency didn’t have that kind of policy in place is, firstly, that decisions could be taken arbitrarily; secondly, they could be taken inconsistently; and, thirdly, it would difficult for them to justify those decisions if challenged, if they weren’t able to point to the basis on which they’d reached them.
Mr Beer: Thank you. Can we go back, then, to the overview, page 8 of your report, please. It’s paragraph 9 and following that I’m going to take you through, if I may. So this is before we get into the detailed reasons for your developed conclusions, I would like, if I may, to address briefly the conclusions in overview form.
You set them out from paragraph 9 onwards and you say that you have:
“… reviewed the Post Office policies in relation to the investigation, prosecution and related areas, and have concerns as to their adequacy to achieve these objectives. The policies recognise that the Post Office as an investigator and prosecutor was and is subject to [PACE and the CPIA] and the Codes issued under each Act. However, in particular during the earlier period from 2000, policies referred to that fact without setting out the ways in which this was the case, the specific aspects of those Acts and Codes that applied, and the ramifications of that to those undertaking investigation and prosecutions.”
Duncan Atkinson: Yes.
Mr Beer: You say in the first sentence that you have concerns as to the adequacy of the Post Office policies in the relevant period. Can you calibrate your level of concern for us, please?
Duncan Atkinson: In a sentence, my concern in relation to, particularly, the Criminal Procedure and Investigations Act is that there are various policies that acknowledge that it is exists but they don’t identify within the policy which parts of what is quite a substantial piece of legislation, those who are undertaking work for the Post Office were meant to be applying or how they were meant to be applying it. And clearly, as we’ll go on to, training plays a role in that but my concern – and it is these a real concern – is that it is a different thing to say this Act applies to you and to say this part of this Act applies to you and this is how it applies to you and this is what you are meant to do under it.
If you do the latter, there is much greater chance that it will be done correctly and so I think it is a serious concern that there was acknowledgement, rather than explanation, in relation to those very important pieces of legislation, which are in place to ensure consistency and fairness in investigation and prosecution.
Mr Beer: So what’s the vice of bare reference to the application of a statute in a policy by the way PACE applies to your investigations or CPIA applies?
Duncan Atkinson: The risk is, first, that someone will have received training when they started and they will recall that there was this piece of legislation and it had parts that applied to them, and they will rely on their memory. They will look at the Police and Criminal Evidence Act and see that it is vast and stop. And there is the risk that they will look at the Act, find a part that they think is the right bit, look at it and do their best to understand it. But, on that approach, you may have any number of different interpretations operating within the same prosecuting agency, rather than one clearly defined one, which is why other agencies – and the Crown Prosecution Service is an example of this – have detailed guidance on the approach to different parts of these acts, so that there is a consistency – at least the intention is there would be a consistency in how it is applied.
Mr Beer: So your expectation is that there ought not to be just bare references but an explanation as to how the relevant parts of the legislation, a code or other instrument, are to be carried into effect in this organisation?
Duncan Atkinson: Yes.
Mr Beer: Can we turn to paragraph 10, please. You say:
“In some respects, the policy documents themselves differed from training materials which did seek to address the PACE Codes of Practice, and do identify which parts apply in what context. However, such training materials did not represent a suitable alternative to policy documents which themselves steered the correct path through the application of PACE, or the Codes thereunder. Such training documents would not necessarily ensure the application of up-to-date regulation. I have also not seen comparable training materials relating to the CPIA or the Code thereunder, save in relation to the retention of investigators’ notebooks, until 2012.”
Why would training material not represent a suitable alternative to policy documents, which steer the correct path through, in this example, the application of PACE or the Codes issued under it?
Duncan Atkinson: The – I should say, in relation to training materials, that when initially started to prepare this report and, indeed, produced a first draft of this report, I hadn’t seen any real training materials at all. I then received them, and in relation, for example, to the Codes of Practice under the Police and Criminal Evidence Act, which are codes to address, for example, how interviews are correctly to be undertaken, how searches are to be undertaken, and matters of that sort, the training material did identify “This is the Code of Practice that applies to this activity”, for example interviews, “These are the parts of the Code that apply”, and they were correct and clear in that training document.
But the Codes change and there is the risk that, if someone is relying on their training notes, that they may not be looking at an up-to-date version of the Code or appreciate that that is the position.
The fact that the training documents were able to set out that kind of analysis and that kind of application, to my mind, underlined the importance of the policy documents doing that as well, because the point of putting it in the training is so people understand how the Code applies to them. Well, similarly, in my view, a policy document should do that and so it could never be a substitute for a policy addressing the responsibilities of, for example, an investigator in sufficient detail, so that they could do so lawfully and consistently and fairly. For them to rely on training material, instead, seemed to me an unsatisfactory alternative because it could well be out of date.
Mr Beer: So although the training materials focused on, I think you’ve mentioned, the conduct of searches –
Duncan Atkinson: Yes.
Mr Beer: – and interviews in particular –
Duncan Atkinson: Yes.
Mr Beer: – the second level of concern that you express here is that you had not seen comparable training materials in relation to the CPIA?
Duncan Atkinson: No, and that is the statute that regulates the disclosure process and sets out the responsibilities of investigators and the supervision of those investigators by prosecutors. And so the detail of the requirements of that Act are centrally important to those processes being undertaken consistently and fairly and I didn’t see training material that did that drilling down into those requirements and why they applied and how they applied and who they applied to, in the same way that there had been training material that addressed the Police and Criminal Evidence Act.
Mr Beer: So in relation to duties of disclosure and the duty to pursue reasonable lines of inquiry –
Duncan Atkinson: Yes.
Mr Beer: – there was an absence of both policy and training materials?
Duncan Atkinson: Yes.
Mr Beer: How, if you can – again, calibrate your level of concern as to that, please?
Duncan Atkinson: I think it’s a very serious concern, if the position that an investigator or a prosecutor is left with is that it is left to them to do their own research of an important piece of legislation, for them to work out how they think it applies to them, rather than it being clear to them from the policy that they are required to apply exactly how it applies to them and what they’re meant to do under it, there is a very real risk, in my view, if you leave it to initial training or self-interpretation, that things will go wrong.
Mr Beer: Turn to paragraph 11, please. You say:
“During … the relevant period the degree of detail and guidance in [the] policies did improve, and was thorough, for example, as to the conduct of interviews.”
Duncan Atkinson: Yes.
Mr Beer: You’ve just said that. Did that seem to be a topic that was marked out, how Post Office investigators should interview their suspects?
Duncan Atkinson: Yes, there was an increasing amount and, certainly by the latter part of the period, a good deal of material, almost too much material, in relation to interviews, which was in stark contrast to other areas, like disclosure.
Mr Beer: “Moreover, there was guidance for the disclosure of unused material in place from at least 2001. However, there were other aspects of the structure of statute and regulation that were not addressed in detail, and in some instances not really addressed at all.”
You would identify the following areas:
“(a) First, there was a lack of explicit instruction to investigators to undertake or prosecutors to monitor the CPIA Code requirement that ‘In conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances’.”
You say:
“This duty is of central importance to the securing of a fair trial, not least through the achieving of fair and adequate disclosure.”
Again, if we can just go back to that, please. That first concern, the lack of instruction to investigators and lack of instructions to prosecutors in relation to that Code requirement to “pursue reasonable lines of inquiry [that] point towards or away from the suspect”, can you calibrate your level of concern in relation to that, please?
Duncan Atkinson: That is a fundamentally important requirement, because it makes explicitly clear to both an investigator in them undertaking an investigation and a prosecutor in their review of that process, that the requirement for the investigation is to look at all lines of inquiry, including those leading away from the person that you are investigating and it is, in my view, fundamental that that is a guiding light to any investigation and any review of an investigation and, if, as was the case, the disclosure policy, for example, of the Post Office did not refer to that requirement until 2010, that is a serious omission because it does not put front and centre, in policy terms, for those doing those roles, that that is what they are meant to be doing.
Mr Beer: You said there – we’ll come back to this in more detail in a moment – that the disclosure policy didn’t even refer to the requirement until 2010. When had the requirement entered into the law?
Duncan Atkinson: It had applied throughout the period of concern for this Inquiry and it was not included in the 2001 disclosure policy, which was otherwise designed to address for the Post Office how they were meant to undertake disclosure in accordance with that Act of Parliament and the Code thereunder.
Mr Beer: If we go to (b) over the page, please, you say:
“Secondly, the AG’s Guidelines …”
We’re going to come back to this in a moment but can you summarise what the AG’s guidelines were, please?
Duncan Atkinson: Yes. Those were a series of guideline documents starting from the year 2000, which were designed to flesh out the requirements for investigators and prosecutors as to how to undertake their disclosure responsibilities. They were a recognition by a succession of Attorney Generals that, for there to be fair and consistent disclosure, they needed to give more guidance than the CPIA or the Code under that had already given. And so they address, stage by stage, what investigators and those supervising them and what prosecutors and those supervising them had to do and how they were to work with each other.
Mr Beer: Thank you. You say that they were not addressed:
“This limited the guidance as to the role of prosecutors in overseeing, monitoring and securing proper compliance with the requirements of disclosure. It also meant that there was almost no guidance as to the handling of third party disclosure throughout the Inquiry’s relevant period.”
So you mention two consequences there, or two facts there. Again, can you calibrate the level of concern that you had in relation to those two issues or each of those two issues, please.
Duncan Atkinson: Yes. So as we will see or anticipate, the 2001 policy in relation to disclosure acknowledged that there was an Attorney General’s Guideline in relation to disclosure. Interestingly, the 2010 version didn’t. But that was the extent, in the material that I have seen, of that recognition and so there was at least the risk that those who were seeking to engage in the disclosure process would overlook the Attorney General’s guidelines and, therefore, overlook the detailed guidance that those guidelines gave them for how to do their job correctly and fairly. And third party disclosure –
Mr Beer: Just tell us what you mean by “third party disclosure”?
Duncan Atkinson: Yes. That is material that is not in the possession of the prosecutor or the investigator but which they have reasonable grounds to anticipate a third party would have. So, for example, an investigator who was relying on computer data that is provided by a computer system operated by a separate entity would recognise that that entity was likely to have material that was relevant to the reliability of the data, and that would be third-party material and the Attorney General’s Guidelines have always made clear that there is a responsibility on investigators and prosecutors to identify where there may be such third-party material and to take steps to obtain it, so they can review it for disclosure.
That is something that is addressed primarily, in fact, in the Attorney General’s Guidelines, rather than the CPIA or the Code thereunder and so, if one is not looking routinely at the Attorney General’s Guidelines, one could miss that important responsibility. And if there is no reference in your policy to third-party material, again, there is a risk that it will be overlooked.
Mr Beer: How, again, would you calibrate your level of concern in relation to that issue?
Duncan Atkinson: I think if one is assessing, insofar as one can, the practice from what was written down, it is a very significant omission, because if there’s no reference to the Attorney General’s Guidelines in your policy, it’s difficult to see how you can be satisfied that they will be applied, nonetheless, and they have to be, because they are fundamental to getting the disclosure right.
Mr Beer: Just at this point, may I ask if you carried out, as an investigator and prosecutor, a set number of types of investigation – they might be robberies on branch, they might be burglaries of branches, they might be thefts in the mail, they might be fraud committed by customers, they might be fraud committed by Post Office staff, using umbrella term – and the sources of third-party data are different for each of them, would your expectation be that the policy should say, “For X species of investigation, we habitually rely on this data to either prove or disprove the offence, and one must, therefore, consider the following categories of material that should be sought”, or “The data is held in this repository, this the contact of the person in that very repository to get the data from”. Would that be your expectation?
Duncan Atkinson: It would certainly be the safest way to make sure it was undertaken properly. I don’t think, on the material that I have seen, it could be said that that was how other agencies were routinely undertaking that responsibility, but they were – for example, the Crown Prosecution Service, in their policy documents, were identifying in detail what the disclosure requirements were, in relation to third-party materials, so that anyone undertaking a disclosure exercise by reference to their policy would know that they had to consider that topic. But, obviously, the Crown Prosecution Service are dealing with a much wider range of offences and situations.
If an agency had a more limited range then they had greater scope to give greater help to their investigators and prosecutors in how to do those more limited range of offence investigations well.
Mr Beer: Thank you. Can we turn to paragraph 12, please. You say:
“I consider that the policy landscape …”
By that, do you mean the Post Office policy landscape?
Duncan Atkinson: Yes.
Mr Beer: “I consider that the Post Office policy landscape for a significant period was not sufficient to ensure consistent and comprehensive compliance with a number of important aspects of the [Police and Criminal Evidence Act] and CPIA regimes, and in particular in relation to independent decisions as to charge, disclosure of material that might undermine the reliability of data systems and third party disclosure. It will readily be appreciated that each of these is an area of importance to the Inquiry’s terms of reference.”
This is an overarching conclusion; is that right?
Duncan Atkinson: Yes.
Mr Beer: In it, you highlight, firstly, concerns as to independence of decision making, as to charging?
Duncan Atkinson: Yes.
Mr Beer: You highlight, secondly, concerns over the disclosure of material that may undermine the reliability of data systems and you highlight concerns over obtaining third-party disclosure?
Duncan Atkinson: Yes.
Mr Beer: Again, can you calibrate the level of your concern in relation to each of those three, please?
Duncan Atkinson: Those were areas that I was alive from my instructions were areas that, certainly by the time I come back in December, I will need to have addressed. But, at this stage, looking at the policies and how well they equipped the process for those things to happen, though I had concern as to whether the policies did properly ensure independent decisions as to charge. So that’s decisions by lawyers applying identified criteria to make that decision, rather than there being a risk that non-lawyers were ultimately making those decisions and, if so, on what criteria they were making them, and the policy position in relation to that was unclear, at the very least, to me.
And so I have a concern about that but I recognise that that might be a concern that could be allayed by a detailed understanding of how the decisions were actually made in the cases. So that’s perhaps one I will have to return to in Volume 2.
Mr Beer: What you’ve read so far of the Volume 2 material, has that allayed your concerns, not affected your concern or heightened it?
Duncan Atkinson: I think heightened it, in the sense that I have seen evidence of recommendations from investigators as to what – whether there should be a prosecution and, if so, for what. I have seen evidence of lawyers providing advice, albeit, I have to say, that those advices have been brief. But it’s not clear, on what I have seen, who then actually made the decision and on what basis. And that is an area that the policies left opaque to me and the material I have seen has not clarified.
So that – what I thought was a risk does look like it is materialising in the material I’ve seen for Volume 2.
Mr Beer: Thank you. The second concern, disclosure of material that may undermine the reliability of data systems. Again, if you can calibrate your level of concern there?
Duncan Atkinson: Because the evidence that I saw of training in relation to disclosure, of policy guidance in relation to disclosure and the lack of cross-reference to the fundamental sources of guidance as to disclosure was as it was, and because I did not see anything that highlighted disclosure and material that might undermine reliability as a topic at all, that was and remains, a very real concern to me because it is – has the potential to result in fundamental failures of disclosure, through omission of instruction.
Mr Beer: Then, thirdly, an insufficient policy landscape concerning third-party disclosure?
Duncan Atkinson: The reality, as I saw it, barring a reference in 2001 to the existence of an Attorney General’s Guideline, was that there was no internal Post Office policy guidance as to third-party disclosure and, therefore, the very real risk that that could be overlooked. And that could have fundamental consequences, clearly.
Mr Beer: Sorry, I missed what you said there. That could have?
Duncan Atkinson: Fundamental consequences because, if one has not appreciated that you don’t just look at what you have already got as part of your disclosure but what you ought to get as part of your disclosure, then there’s the real risk that you wouldn’t get it and, if you don’t get it, you won’t review it; and, if you don’t review it, you won’t disclose it; and, if you don’t disclose it, then important disclosure necessary for fairness will not happen.
Mr Beer: Can we turn to paragraph 13, please. You say:
“Similarly in relation to decisions to charge, I do have concerns about the adequacy of policy guidance to achieve a proper division of responsibility so as to achieve independence, transparency, accountability and consistency. Whereas in other areas, for example pursuant to the Prosecution of Offences Act 1985, such a division is instilled and maintained, Post Office policies left it open for the same person, or group of persons, to make key investigation and prosecution decisions. Whilst such prosecutions were, by reference to a number of important policies, to be undertaken with the application of the [CPS] Code for Crown Prosecutors, there was in my view, a lack of detailed guidance as to how this was to be done, or how compliance with proper standards was to be achieved or monitored.”
You mention that you have concerns about the adequacy of policy to achieve independence transparency and accountability and consistency. Again, if you can calibrate the level of your concern, please?
Duncan Atkinson: So I recognise that the Post Office is not the Crown Prosecution Service and it’s not under the Prosecution of Offences Act, so that decisions as to prosecution are taken in a clearly defined way that is separate from investigative decisions taken by the police. But it is recognised much more generally, including for private prosecutors, that it is important that the decision to prosecute is taken in an independent accountable way, and the expectation, certainly, that that would be done by a lawyer.
The policies that I saw left room for an interpretation that, although legal advice was being provided, it was not necessarily the lawyer that was making the decision. It could be, on some of the policies I saw, with input from HR or from the Director of Security, who was also the person responsible for supervising the investigation.
And so you could have the investigator deciding on the prosecution, taking – having received legal advice but by no means clear whether they had to follow it or not.
Mr Beer: You mention that, although there was a cross-reference to the Code for Crown Prosecutors, there was a lack of detailed guidance as to how it was to be applied and how compliance was to be achieved or monitored.
Again, can you calibrate the level of your concern about that issue?
Duncan Atkinson: Again, on the material I saw there, it’s a very real concern because, if the interpretation I’ve just described is right and the person making the decision, albeit on legal advice, may not be a lawyer, then they need all the more clear guidance as to how the two tests within the Code for Crown Prosecutors – which are the realistic prospects of conviction and whether a prosecution is involved public interest – how those work for the offence they’re considering, the offending that they are considering, or alleged offending that they are considering, and that needs specific guidance.
The material that I saw acknowledged that the Code for Crown Prosecutors was to be applied but not how it was to be applied, which factors within it were likely to be particularly relevant to a Post Office prosecution or not, and there was also, in the material I saw, references to a series of factors that it was considered were relevant to a prosecution, which included the best interests of the business and the integrity of the mail, as opposed to the much more nuanced and detailed set of criteria that would or should be applied to a prosecution decision by reference, for example, to the Code.
Mr Beer: Thank you. Then, lastly, before we take the break, paragraph 14. You say:
“There was a similar lack of guidance as to proper decisions as to which charges to prefer, and for example little guidance as to the application of the Court of Appeal decision in Eden.”
We mentioned that briefly.
Duncan Atkinson: Yes.
Mr Beer: Could you just summarise, before we get into the detail, probably tomorrow, what the guidance that the Court of Appeal gave in Eden was?
Duncan Atkinson: So in Eden, the Court of Appeal were considering a situation where the individual, who was a postmaster, had been prosecuted for theft and false accounting, charges which I’m aware regularly occur in the cases that we are here considering, and there was a concern from the Court of Appeal as to the prosecution for both offences, in reality on exactly the same allegation, and whether it was right to have both charges there, where actually, it was an allegation of theft, rather than an allegation of theft and a separate allegation of false accounting.
And so it was a Court of Appeal decision, looking at a particular factual situation but in relation to charges that are – have been routinely used by the Post Office and it, therefore, seemed to me helpful to consider the extent to which that guidance from the Court of Appeal had been acknowledged and applied by the Post Office, and the best way to see that was to see where it appeared in their policies, and the answer was that, until 2013, it didn’t.
Mr Beer: So that 1971 decision didn’t appear in any policy documents –
Duncan Atkinson: Not in those I saw, no.
Mr Beer: – that you saw –
Duncan Atkinson: Yes, until 2013. Yes.
Mr Beer: – until 2013. You continue:
“There was equally no reference to the [Attorney General’s] Guidelines on the Acceptance of Pleas until 2016 …”
Again, can you just summarise now the AG’s Guidelines on pleas?
Duncan Atkinson: Yes, so this was again the Attorney General, with their supervisory responsibility for prosecutions, beyond any particular agency, setting out guidance as to how properly to approach decisions as to whether to accept a plea. So, for example, using the offences we’ve just referred to, when it was appropriate to accept a plea to false accounting in the alternative to an offence of theft and the criteria to ensure that that was done in a fair and non-oppressive way, so, for example, that the person being prosecuted did not feel under pressure to plead to false accounting because the theft charge was there, in a way that would be unfair.
And so those guidelines, which have been in place for a long time, have set out how that is properly to be done and I didn’t see a reference to those in Post Office materials until, as I say, 2016.
Mr Beer: Thank you. You continue:
“… I have not identified any reference to the duty of candour required in applying for a summons to initiate criminal proceedings in any of the policies I have considered where that might have been expected.”
Again, can you just summarise the duty of candour, in particular how it applies in relation to the point at which one initiates proceedings?
Duncan Atkinson: Yes. So one method of initiating proceedings, and the method that was used by the Post Office – and I have no criticism of them for that because it was the obvious one for them to apply because they were not a police force – was to summons the defendant to attend at the Magistrates Court and proceedings initiated as a result.
There is a longstanding requirement on anyone seeking a summons to what is called have a duty of candour which is to identify to the court anything – any relevant circumstance that may incline that court not to grant the summons. So they have to be satisfied, the court, that there’s a proper basis for a prosecution but they also need to have an understanding of whether such a prosecution might be an abuse of process, whether there is material that would make them less likely to grant the prosecution. And that is a well recognised duty.
I saw very little material, in fairness, at all about obtaining summonses and how they were to be obtained within the Post Office material that I saw, but nowhere did I see a reference to that duty.
Mr Beer: So no reference to the duty on the Post Office to be candid with the court?
Duncan Atkinson: Yes.
Mr Beer: You say:
“These omissions in the policy documents were consistent with the failure of the training materials that I have seen to address these topics.”
So in these three cases, the suggestion of cure through training wouldn’t run?
Duncan Atkinson: Certainly not on the material that I saw.
Mr Beer: You say:
“Finally, I have considered the implications of the repeal of Section 69 [of] PACE as to the obtaining of confirmation as to the reliability of computer data. The real concern however, is and was as to the appreciation of the need to consider reliability of computer data in reaching charging decisions as to the disclosure of material that undermined that reliability.”
Duncan Atkinson: Yes.
Mr Beer: Can you explain, firstly, what, just in summary form, Section 69 of PACE was about, the repeal of it and when, and your identification of what you say was the real concern?
Duncan Atkinson: So when originally enacted, the Police and Criminal Evidence Act included at Section 69, a requirement for there to be a satisfaction as to the reliability of computer data as, effectively, a precursor for reliance on that data. The Law Commission made proposals for the repeal of that because the Law Commission considered it to be cumbersome and not to actually be achieving its objectives.
There was a consultation in relation to that, a range of organisations responded, including the Post Office. There was a broad support amongst those organisations, interestingly with the exception of one that related primarily to computer software personnel, but a broad support for repeal of the section.
So there was no longer that precursor of satisfying a reliability test for computer material thereafter. But that – the point I would seek to make in this paragraph, is that did not mean that the reliability of computer data became irrelevant. It’s always been well recognised that the reliability of the evidence that underpins the prosecution is something that investigators have to address, that prosecutors have to consider and that, where necessary, both have to demonstrate in criminal proceedings.
And so I rather took the view that it wasn’t so much the repeal of Section 69 that was the fundamental question, as whether the material I saw in policy terms addressed that question: is this material – is this data reliable or not?
Mr Beer: Did it?
Duncan Atkinson: No. There were references occasionally to computer data but more in the sense of how to go about getting it, rather than how to go about testing it.
Mr Beer: Thank you, Mr Atkinson.
Sir, with your permission, can we take the break, please, until 11.45.
Sir Wyn Williams: Yes, of course. We’ll resume then. Thank you.
Mr Beer: Thank you very much, sir.
(11.26 am)
(A short break)
(11.45 am)
Mr Beer: Sir, good morning. Can you continue to see and hear us?
Sir Wyn Williams: I can, thank you.
Mr Beer: Thank you very much. Mr Atkinson, we’re turning to the Post Office as a private investigator and as a private prosecutor. I just want to examine briefly, if I can, to start with, some of the risks that may arise for a private investigator and a private prosecutor.
Can you explain what risks might arise for the Post Office in its position as potential victim of a crime, potential witness to a crime, the investigator of the crime and the prosecutor of the crime?
Duncan Atkinson: Those risks can be encapsulated in the risk that those different categorisations can become merged and the risk that it is not clear to identify which of those hats is being worn by a particular person at a particular time, unless great care is taken to make sure that there are measures in place to keep a separation between those different categorisations.
Mr Beer: So would you agree that the risks might include, fundamentally, a lack of objectivity?
Duncan Atkinson: They can do, yes, and with private prosecutors, in perhaps the most literal sense, an individual who feels aggrieved and seeks to take recourse themselves to a criminal court to address that, clearly they are both the victim and, as they perceive themselves to be, and the prosecutor. So their decisions, which are meant to be objective decisions as to investigative steps and/or prosecutorial decisions, could be taken from their perspective as an aggrieved person, rather than a minister of justice.
Mr Beer: Would a second risk include the bringing of prosecutions on the basis, or the conducting of prosecutions on the basis, of the furtherance of impermissible objectives?
Duncan Atkinson: Yes, and so again, taking that example of someone who is an aggrieved individual, they may feel aggrieved at someone who they perceive having cheated them a business arrangement, and their pursuit of the matter may be with view to obtaining ultimately financial redress through confiscation, rather than where the objective tests that ought to be applied by any prosecutor along the way have been applied.
Mr Beer: So over-emphasising or the use of the prosecution as a facility to recover money?
Duncan Atkinson: Yes. So if one of your criteria for deciding whether to prosecute or not is the best interests of the business, you may be guided by the fact that there is a loss identified to the business, as a reason to prosecute, rather than stepping back to identify whether, objectively, there is a proper basis for prosecuting an individual in relation to that loss.
Mr Beer: Would a third risk be a win-at-all-costs mentality?
Duncan Atkinson: It could be, yes.
Mr Beer: Would you agree that those risks, if they exist, may be multiplied or not called in to be checked, if there is no external inspection or oversight of the prosecutorial process?
Duncan Atkinson: It’s both harder to identify them at the time and harder to address them after the event, if there isn’t that kind of oversight.
Mr Beer: Would you say that scrutiny of the private prosecutorial function ought to begin in-house?
Duncan Atkinson: Yes, and I recognise different ways that that can be done and different ways that it is done by different organisations that have private or quasi-private prosecutorial functions but that they should have that independent scrutiny and separation of scrutiny, clearly, is a way to ensure that there is effective scrutiny.
Mr Beer: You’ve used the example, in answer to a couple of my questions, of a private individual aggrieved at a financial loss that they say that they have sustained. In terms of the Post Office – and like you in your report I am referring to the Post Office in each of its legal entities –
Duncan Atkinson: Yes.
Mr Beer: – across the piece and not distinguishing when it was RMG and when it became Post Office Limited – would you equate the Post Office as a private prosecutor to such an individual or is it different, in any way?
Duncan Atkinson: There are potential similarities in the sense that the individual who feels that they have lost financially through their dealings with a particular person and who then seeks to prosecute them, clearly, is both the loser, with grounds, certainly in their head at least, to be aggrieved about that, and the prosecutor.
Where the Post Office was prosecuting someone that they perceived had cheated them, and had caused them loss, then they were both the person who had suffered the loss – the organisation, rather, that had suffered the loss, the organisation that wanted to recoup the loss and the person prosecuting the person they held responsible for the loss.
Mr Beer: Can I also draw some distinguishing features, perhaps, between those two classes of people?
Duncan Atkinson: Yes.
Mr Beer: The Post Office had been prosecuting for hundreds of years; is that right?
Duncan Atkinson: Yes.
Mr Beer: So it was an established private prosecutor?
Duncan Atkinson: Yes.
Mr Beer: The nature, number and scale of its private prosecutions is obviously very different from the individual that you just mentioned?
Duncan Atkinson: Yes.
Mr Beer: It had, itself, given over whole departments to investigative and prosecutorial work, hadn’t it?
Duncan Atkinson: Yes.
Mr Beer: The Security Department and the Criminal Law Team, the CLT –
Duncan Atkinson: Yes.
Mr Beer: – to name just two. Would this, in any way, be a relevant feature: that the company was entirely owned by the Government, through ownership of a single share? Does that bear on the issues that we’re looking at or not, in your view?
Duncan Atkinson: It certainly doesn’t have to. The – so to take an example that was flagged up in the report that I’ve seen recently, that where the London Fire Service were both responsible for fire safety but also, potentially, for a prosecution in relation to a fire, the fact that they had separate parts of their organisation dealing with one and dealing with another was a factor to ensure that they were capable of dealing with that fairly.
So the fact that there are separate departments within organisation that keep them separate from their owner, for example, can overcome any issue. It depends on how it’s done.
And so to answer your question, the fact that the Post Office was effectively owned by the Government, on the one hand gave them more of a responsibility to ensure that they applied policy and statute that were laid down by Government to ensure that the job they were doing was done appropriately and fairly; but, if they built the necessary separations and independent scrutiny into their system, then there would be no pressure on them from their owner for how they did it or there shouldn’t be.
Mr Beer: Thank you. Can we turn to the status of proceedings that the Post Office brought and this is page 10 of your report.
Duncan Atkinson: Yes, thank you.
Mr Beer: If we can have that up on the screen, please. EXPG0000002 – thank you – page 10. If we scroll down to get paragraphs 15 and 16. In paragraphs 15 and 16 of your report you summarise the history of the postal service undertaking investigations and prosecutions of criminal offences. I’m not going to ask you about that and instead take these paragraphs as read.
In the course of that investigative work that you undertook, I believe you sought to identify the statutory basis for the Post Office’s investigation of and prosecution of offences –
Duncan Atkinson: Yes.
Mr Beer: – and you didn’t find one, I think that’s right?
Duncan Atkinson: No, that’s right.
Mr Beer: I think you were heartened by some material that you found amongst the documents that you were given by the Inquiry that emanated from the Post Office’s then general counsel –
Duncan Atkinson: Yes.
Mr Beer: – Chris Aujard, dated 8 November 2013.
If we just look at that, please. It’s POL00027501. If you’re working from hard copy, Mr Atkinson, it’s E4.
Duncan Atkinson: Thank you very much.
Mr Beer: Sir, I’m afraid we’ll have to take a break. There’s something gone wrong with the system. Can we leave it that we’ll come back to you when that fault has been cured?
Sir Wyn Williams: Yes, of course. I’ll take myself off screen but I won’t leave the room I’m in, so that I’ll be ready when you are.
Mr Beer: Thank you very much, sir. Maybe if Mr Atkinson can go to the room. Thank you.
(11.58 am)
(A short break)
(12.09 pm)
Mr Beer: Sir, I can now see you. Can you see and hear me? Thank you. Apologies for that delay and apologies, Mr Atkinson, for that delay.
We were trying to look at POL00027501, which I think is now on the screen. Just to orientate ourselves in the document, if we go to page 5, please, and look at the foot of the page. We can see that it is authored by Chris Aujard on 8 November 2013.
Go back to the front page, please. We can see the document is entitled “Post Office Audit, Risk and Compliance Committee [and] Prosecutions Policy”. You can see the purpose of the policy set out in paragraphs 1.1 and 1.2, but it is what is said about the Post Office’s power to bring prosecutions that I wanted to draw to your attention.
We can see at paragraph 2.2 it says, since that update – last October, that was – Brian Altman, Queen’s Counsel, has prepared two separate reports, et cetera.
Then if we go down to paragraph 2.5:
“An important fact to emerge from the 2 reports [that’s Mr Altman Queen’s Counsel’s reports] is that the Post Office does not have any special statutory powers to bring prosecutions …”
So this the Post Office’s general counsel saying it’s emerged now that we, the Post Office, don’t have a special statutory power to bring prosecutions:
“… rather it brings prosecutions in a purely ‘private’ capacity further to Section 6(1) of the Prosecution of Offences Act 1985, which gives all individuals and companies the right to bring a private prosecution, should they see fit. To that extent, therefore, the decision to undertake prosecutions is discretionary: no legislation or regulation requires Post Office to undertake prosecutions, nor is there any legislative policy that mandates that prosecutions should be brought. That is not to say that the standards of evidence are in any way reduced, or that the process is less rigorous than would be the case with a public prosecution, it’s simply that the Post Office steps in to assume a function that typically would be undertaken by the CPS, after the referral to it of a case by the police.”
I think you agree with what is summarised there; is that right?
Duncan Atkinson: Yes.
Mr Beer: That’s accurate –
Duncan Atkinson: Yes, it is.
Mr Beer: – and provided, as I said, a heartening reaffirmation of what you had discovered or failed to discover as a result of your own researches?
Duncan Atkinson: That’s right.
Mr Beer: Can we look, then, please, at Section 6 of the Prosecution of Offences Act – sometimes called the POA – 1985, as it’s a foundational provision for the bringing of prosecutions. That document, please, is at RLIT0000073.
That’s the front page of the POA as originally enacted. If we can scroll down, please, to Section 6. I think that’s on about page 4., thank you. Section 6, “Prosecutions instituted and conducted otherwise than by the Service”. The “Service” means the Crown Prosecution Service, correct?
Duncan Atkinson: Yes.
Mr Beer: “Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director’s duty …”
The “Director” being the Director of the Crown Prosecution Service?
Duncan Atkinson: The Director of Public Prosecutions, yes.
Mr Beer: “… to take over the conduct of proceedings does not apply.
“(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage.”
So this is essentially the power to bring private prosecutions –
Duncan Atkinson: Yes.
Mr Beer: – reflected in statute. It’s not obviously a requirement to bring such prosecutions?
Duncan Atkinson: Yes. There was always recognised to be a right to bring a private prosecution. What this Act did, at this point in time, was to preserve that right, even though, in other respects, it was creating the Crown Prosecution Service and setting out the duties of the Director in relation to the bringing of prosecutions for various agencies, including the police, more generally.
Mr Beer: Can we go back, please, to POL00027501, which is the document we were just looking at, the Chris Aujard document. Thank you.
Can we look, please, at paragraph 2.4, which we skipped over, towards the foot of the page. Thank you.
The policy says:
“The forward looking report [that’s Mr Altman’s report] is similarly positive in tone with Brian Altman commenting that he had ‘… seen no evidence to suggest that Post Office Limited exercises its investigations and prosecution function in anything other than a well-organised, structured and efficient manner, through an expert and dedicated team of in-house investigators and lawyers, supported by Cartwright King solicitors and their in-house counsel …’.”
I’m not going to ask you about that assessment. We’re going to come back to that rosy assessment later in the year and into next year. The policy continues:
“That said, it was noted that ‘Post Office Limited’s prosecution role is perhaps anachronistic …’, and that ‘[Post Office Limited] is the only commercial organisation, (albeit Government owned) I can think of (apart from [Royal Mail Group] who retains a residual prosecuting function) that has a prosecution role, and it is, to that extent, exceptional if not unique.”
The policy notes, relying on what Mr Altman had said, that the Post Office’s prosecution role is anachronistic and exceptional, if not unique. In your researches, did you find or uncover any similar organisation to the Post Office?
Duncan Atkinson: No, and in my report I highlighted a further document, again from Mr Aujard, which is paragraphs 17 and 18 of my report, where he undertook a further analysis of that suggestion, that the Post Office’s prosecution role being an exceptional one and he highlighted that other financial institutions, even with in-house investigative teams, would usually hand over their cases at a particular point to other prosecution and investigative agencies, rather than carrying out that role themselves.
And even those that did undertake a prosecution role themselves, like Transport for London or the RSPCA, were focused in doing that on persons outside its organisation, whereas the Post Office, of course, was prosecuting not only persons from outside but also in-house, in the sense of prosecuting its own employees themselves, rather than it being dealt with by others.
And so, in those respects, in particular, I would agree that it was exceptional and I didn’t find any comparable organisation.
Mr Beer: Thank you. That can come down now, please. Can we go back to your report, please, at page 13, please.
So it has been established that, generally speaking, the Post Office has no special investigative powers and no special prosecutorial powers?
Duncan Atkinson: Yes.
Mr Beer: Can we look at paragraph 22, please. You say:
“It follows from this independent role that the Post Office, as an investigative and prosecutorial agency, has always operated separately from the agencies and mechanisms of mainstream investigation and prosecution of crime. In particular, the police in relation to the first and the CPS to the second. It is, however, entirely appropriate to consider … the Post Office in the undertaking of criminal investigations and the prosecution of criminal offences by reference not only to the statutory regime and guidelines that had direct application to the Post Office in these capacities but also to the statutory regime and guidelines that applied in the same time period to the police and CPS. The relevance of the latter is both that it provides a bench mark against which to assess investigatory and prosecutorial practices by the Post Office between 2000 and 2013, but also because in important respects there was an expectation by Parliament and the judiciary that they would have regard to them.”
Does this essentially, in this paragraph, set out the foundation of your approach?
Duncan Atkinson: Yes, and I should make clear, I recognise that the Post Office was entitled, as a private prosecutor, to devise its own approach to areas that the police and/or the Crown Prosecution Service dealt with but it seemed to me a good way of testing the effectiveness of those, to see not only what the police and the CPS had in policy terms set out but what the purpose of that was, and to see whether those purposes were also comparably being addressed by how the Post Office, in policy terms, was doing it.
Mr Beer: Now, what you’re saying is that, is this right, the materials, whether they’re statutes, codes, guidelines and policies, which make up the framework or the network that you have described, have importance in three ways. Firstly, in some cases they may be directly applicable?
Duncan Atkinson: Yes.
Mr Beer: So some parts of the CPIA 1996 are directly applicable and bind, as a matter of law, the Post Office –
Duncan Atkinson: Yes.
Mr Beer: – when it’s acting as a private prosecutor.
Secondly, those materials, even if they’re not directly applicable to the Post Office, they provide a benchmark against which to judge the Post Office’s policies and practices and ultimately its conduct?
Duncan Atkinson: Yes.
Mr Beer: Thirdly, in any event, there was an expectation by Parliament and the courts that private investigators and prosecutors would have regard to such policies and practices?
Duncan Atkinson: Yes.
Mr Beer: Can I turn to the separation of the investigative and the prosecutorial functions. In a number of passages in your report – I don’t ask for them to be turned up, but they’re paragraphs 26 to 35 and 55 – you are critical of the Post Office’s policies for not spelling out the separation of functions between the investigative function, on the one hand, and the prosecutorial function, on the other, based on a comparison with the positions of the CPS and the SFO; is that right?
Duncan Atkinson: Yes, or, perhaps more precisely, that the Post Office policies that I saw allowed for or didn’t prevent a merging of investigative and prosecuting decision making, in a way that, in their different ways, the CPS and the SFO had, and other organisations had.
Mr Beer: It’s right that the CPS and the SFO were both creatures of statute –
Duncan Atkinson: Yes.
Mr Beer: – and the statutes that create them ensure and have hard-written into them the separation of investigative and prosecutorial functions?
Duncan Atkinson: Certainly, the Prosecution of Offences Act very much creates a distinction of investigative and prosecutorial roles and makes clear that the CPS only occupies the latter of the two. The SFO is different from that, in the sense that the director of the SFO has a responsible for the investigation of fraud as well as the prosecution of fraud. But there is the clear expectation in that, not least through its supervision by the Attorney General and Parliament, that those roles will be kept separate.
And that is and always has been very clear in how the SFO has conducted itself.
Mr Beer: So the answer to my question is, yes, so far as the CPS is concerned, hard-written into the statute –
Duncan Atkinson: Yes, absolutely.
Mr Beer: – no, in relation to the SFO?
Duncan Atkinson: That’s right.
Mr Beer: Thank you. Can we look, please, at page 17 of your report and look at paragraph 29 at the foot of the page. Sorry, did I say 17? I meant 15 of your report, paragraph 29 at the bottom. Thank you?
You say:
“The status of the [Director of Public Prosecutions], and the superintendence of the [Crown Prosecution Service] by [His Majesty’s] Attorney General is recognised to have significant importance. For example, in R v Director of Public Prosecutions Ex P Manning [2001] QB330, Lord Bingham of Cornhill [the Lord Chief Justice] observed, in the context of a challenge to a decision not to prosecute by way of judicial [at paragraph 23]: ‘… as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and no one else’ … There is no comparable oversight of the investigative and prosecutorial activities of the Post Office”, you add.
What, if anything, do you say are the importance of Lord Bingham’s remarks in Manning to the present issues that we are considering?
Duncan Atkinson: What underscored what Lord Bingham there was saying, in effectively saying that it would be rare for a judicial review of a prosecutorial decision to be successful, was that the reason for that was that Parliament had entrusted prosecuting decisions to the Director, the DPP, but, more than that, that that was the DPP was the head of an independent, professional prosecuting service that was answerable to the Attorney General, and thus to Parliament, and so, in that context, the safety of prosecutorial decisions came from that combination of oversight and independence.
Where that combination is lacking or more limited, the confidence one can have in prosecutorial decisions is equally reduced.
Mr Beer: Thank you. You say at the end of the paragraph that there is no comparable oversight of the investigative and prosecutorial activities of the Post Office. Is that right: is there no oversight?
Duncan Atkinson: Not in the material that I saw, and I’m very happy to be corrected on it, but certainly there was identification of oversight within the Post Office. So, for example, the Director of Security had oversight of investigations but not in the anyway that there was the independent external oversight that there is for the CPS, by way of example.
Mr Beer: Did you find, amongst any policy document or guidance document that you were provided with, any requirement that mandated Post Office Board oversight of the Post Office’s investigative and prosecutorial activities?
Duncan Atkinson: Not that I can think of. I’m very happy, again, to be corrected but not that I can think of.
Mr Beer: No, my purpose wasn’t to set you up for a fail on that one. It was to establish the position. So, looking at internal scrutiny and oversight, you didn’t see anything in the policies that mandated board oversight of this important function of investigation and prosecution?
Duncan Atkinson: No.
Mr Beer: Can we look, please, at page 23 of your report. Look at paragraph 48 at the bottom. You’re dealing here, in this part of your report, with the distinction of roles, the separation of powers and responsibilities between investigators, on the one side, and prosecutors, on the other –
Duncan Atkinson: Yes.
Mr Beer: – in other organisations. You’re establishing, I think, in paragraph 48 and the following paragraphs, that distinction or separation of roles amongst certain public investigators and public prosecutors – here, the police and the CPS – and you are identifying where that distinction of roles is recognised and what I call as hardwired into the system; is that right?
Duncan Atkinson: Yes.
Mr Beer: You start at paragraph 48 by looking at Section 3 of the Prosecution of Offences Act 1985, which you mentioned in passing ten minutes ago, or so?
Duncan Atkinson: Yes.
Mr Beer: Is the short point this: that the statute, the originating statute, itself draws a distinction and a clear one, between the investigative role of the police, on the one hand – and other investigative agencies like the National Crime Agency, on the one hand, and the prosecutorial role of the CPS on the other?
Duncan Atkinson: Yes.
Mr Beer: If we go over the page, please, to paragraph 49. That distinction is drawn out and emphasised in a document called Police and CPS Relations which you refer and to quote from in paragraph 49; is that right?
Duncan Atkinson: Yes.
Mr Beer: So we’ve had the statute so far, this guidance document on police and CPS relations, secondly. If we go forwards, please, to page 25, paragraph 50, you say:
“Similarly, Section 3 of the present edition of the Code for Crown Prosecutors … (issued in October 2018), addresses decisions whether to prosecute, and again makes the distinction between the roles of investigative authorities such as the police in relation to investigations on the one hand and that of the Director and in relation to prosecutions on the other.”
Then you cite from it.
Duncan Atkinson: Yes.
Mr Beer: Is that something that was unique to the 2018 8th Edition iteration or is that separation of functions something that was ingrained right from the beginning?
Duncan Atkinson: Right from the beginning. Different wording but the essential point and essential importance of that independence was always there.
Mr Beer: As you recognise in your report, Parliament expressly permits prosecutions to be bought by private prosecutors –
Duncan Atkinson: Yes.
Mr Beer: – and, in the legislation that permits that, it doesn’t require them to have this separate separation – sorry, this separation?
Duncan Atkinson: Yes.
Mr Beer: Are you aware of the reports of the Philips Commission which considered private prosecutions?
Duncan Atkinson: Yes.
Mr Beer: Is this right: that the Philips Commission considered but did not recommend that the CPS should take on responsibility of prosecutions brought by non-police agencies and private individuals and corporations?
Duncan Atkinson: That’s right.
Mr Beer: Given that Parliament required expressly separation between the police investigative function and the CPS prosecutorial function but declined to require it in the case of private prosecutors, why do you consider that the Post Office, as a private prosecutor, is obliged to maintain an inbuilt separation of functions in the same way as the police and the CPS do?
Duncan Atkinson: Neither the Philips committee nor the Prosecution of Offences Act allowed private prosecutors to have merged functions. They didn’t address that but that was already addressed in cases that we have already passed along the way, for example, I think, Maxwell, where it was recognised that private prosecutors nevertheless had to be ministers of justice first and foremost, and that is all about the independence of the prosecutor. And so it was put into statute because it was a statute that was creating a prosecution authority in the majority of cases but that does not mean that anyone who does not come within the Prosecution of Offences Act was not nevertheless required to have that independence of prosecutorial decisions in place. It was already recognised and the Act didn’t take it away.
Mr Beer: Thank you. That document can come down, please.
So would this be right: the statutory regime is itself a recognition of the fundamental importance of the separation of functions?
Duncan Atkinson: Yes, and there are different ways it can be done but that distinction is fundamental.
Mr Beer: Therefore, it’s a recognition, would you say, of the need for separation, the wisdom of doing so and the consequences of not doing so?
Duncan Atkinson: Yes.
Mr Beer: So, would this be right from what you’ve just said, it can’t be said that, because Parliament hasn’t required it, there isn’t a need for it to be done?
Duncan Atkinson: No, that’s right and, in one sense, Parliament has identified the need for it, not just through the Prosecution of Offences Act. But other legislation and codes under legislation that deal with investigative and prosecutorial decision making, like the CPIA, by way of example, all underlined that separation of responsibilities. So Parliament has emphasised it, rather than taking it away.
Mr Beer: On the policies that you have seen, are you able to help us in general terms as to whether the Post Office itself hardwired a separation of decision making, as between investigative functions, on the one hand, and prosecutorial decision making, on the other, in its policies?
Duncan Atkinson: It’s clear that it had an Investigative Department and a Criminal Law Department. The latter was the department that would advise on prosecutions; the former was the department that wound undertake investigations. And so, to that extent, there were those two separate entities. My concern was that, in relation to the supervision of those and the ultimate decision making as to prosecutions flowing from those, there wasn’t necessarily that clear separation, so that the same person could be making decisions as to prosecution who was also supervising investigations.
Mr Beer: On what you’ve read so far of the Volume 2 material, if I can call it that, are you able to help us as to whether, in fact, the Post Office did enforce any separation of decision making?
Duncan Atkinson: Because in the material that I’ve seen for the purposes of Volume 2 it has not been entirely clear to me who made the decisions to prosecute, I can’t there see a delineation of investigative and prosecuting decisions that I couldn’t find in the policies.
Mr Beer: Thank you. What about, picking another organisation, say the Health and Safety Executive, have you experience of delineation or separation of functions within the Health and Safety Executive?
Duncan Atkinson: So, for example, the Health and Safety Executive certainly since 2011, which was as early as I was able to trace things via their website, had approval officers who had a role in relation to prosecutorial decisions who were independent of the investigation. So that was a built-in filter of independence into the process, in a much more clearly defined way than I could find in comparable Post Office policy.
Mr Beer: Thank you. Can we turn, then, to the Post Office policies on this issue. In several parts of your report, in particular paragraphs 30 and 55, you’re critical of what you regard as a lack of proper policy guidance as to the need for a division of responsibility between investigators and decision-makers in relation, in particular, to a decision to charge. Can we look, please, at page 27 of your report at paragraph 55.
From this paragraph (a) right through to (j), you analyse a series of Post Office policies and guidance materials –
Duncan Atkinson: Yes.
Mr Beer: – concerning investigation and prosecution and analyse whether there is a proper policy guidance within them on the division of responsibilities; is that right?
Duncan Atkinson: Yes.
Mr Beer: So if we turn and look at paragraph 55(a), and you refer there to the March 2000 Investigation and Prosecution Policy. You say that:
“[It] identifies that investigations will be undertaken by the Security and Investigations Service (‘SIS’) or Business Security and Investigation Unit. Whilst it refers to prosecutorial decisions, which it says will be taken in consultation with the SIS and Legal Services Criminal Law Division, it does not spell out by whom they are to be taken. It … does not indicate the standards to be applied, or who is to ensure the standards are applied correctly.”
I think footnote 34 tells us that the 2002 revision of the Investigation and Prosecution Policy is in the same terms.
Duncan Atkinson: Yes.
Mr Beer: So there are a collection of problems, is this right, that you identify with that policy. Firstly, it doesn’t clearly state who will take decisions to prosecute?
Duncan Atkinson: Yes.
Mr Beer: Secondly, it does not state the standards that are to be applied, whoever that person is taking the decision?
Duncan Atkinson: No, that’s right.
Mr Beer: Thirdly, it doesn’t state who is to ensure that the standards are being applied correctly?
Duncan Atkinson: Yes, it doesn’t either identify either the decision-maker or the person who is there to supervise or audit the decision-making process.
Mr Beer: A slightly later policy than the March 2000 one, called the Post Office rules and standards policies of October 2000, identifies that.
“… investigators are to maintain the highest standards of professionalism, without seeking to define them in any detail.”
Duncan Atkinson: That’s right.
Mr Beer: What’s the problem with that, saying, “You’re to maintain the highest standards of professionalism”, full stop?
Duncan Atkinson: Two people’s versions of what the highest unspecified standards are may well be different and one may be more exacting than another and, in fact, neither of them may be right.
Mr Beer: Can we look at paragraph 55(B), please. You say that:
“The Royal Mail Group Limited Criminal Investigation and Prosecution Policy, in its December 2007 version, states (at para 3.1.4): ‘The conduct, course and progress of an investigation will be a matter for the investigators as long as it is within the law, rules and priorities of the business. Investigators will ultimately report to the Director of Security with regard to the conduct of a criminal investigation’. The Investigators are defined, at [paragraph] 3.1.3, ‘[RMG] Security Investigation Teams are the providers of in-house investigations and will maintain the lead in dealing with the Police’. In relation to prosecutions, at para 3.2.9, it states: ‘decisions to prosecute in non-CPS cases will be taken by nominated representatives in the business with consideration to the advice provided by [RMG] Criminal Law Team’. The policy remained unchanged in each of these respects in its November 2010 iteration.”
So the two issues that you identify as potentially problematic within that December 2007 version of the policy, you tell us by your footnote 37, remained unchanged in the 2010 iteration, yes?
Duncan Atkinson: Yes.
Mr Beer: Can we look, please, at the policy to which you’re referring. This is POL00104812. This is the December 2007 version of the policy. If we just scroll through it, we’ll see how long it is. I think it’s three pages, isn’t it? Scroll down, keep going. Thank you, that’s the end of it.
Okay, so back to page 1 of the policy. If we just look at – I’m not going to do this with every policy; I just want to pick some examples to see where you have cited from the policy, quoted from the policy, what the policy in fact looks like, to get a bit more context.
3.1.3, if we can scroll down, please, “Policing Crime”, this something you cite:
“Royal Mail Group Security Investigation Teams are the providers of in-house investigations and will maintain the lead in all dealings with the police.”
So that’s essentially narrative, isn’t it?
Duncan Atkinson: Yes.
Mr Beer: Then if we go to 3.1.4:
“The conduct, course and progress of an investigation will be a matter for the investigators as long as it is within the law, rules and priorities of the business.”
What’s wrong with that?
Duncan Atkinson: My concern about that is the lack of specificity about each of those, as long as it’s within the undefined law, the undefined rules and the unspecified priorities of the business, and without identification as to which of those trumps which.
Mr Beer: So what are the potential issues which arise?
Duncan Atkinson: Inconsistency of application, and one could read that – not least because if one looks further up the policy box, and the first two policy objectives, at 3.1.1, are “Protecting the Integrity of the Mail” and 3.1.2 of “Protecting the Business” – that protecting the business is the most important and, whilst that may not be the intention, if it’s not spelt out with necessary guidance as to what it’s talking about, there’s the risk of it going wrong.
Mr Beer: So a reader could read priorities of the business as being those priorities identified in 3.1.1 and 3.1.2?
Duncan Atkinson: Yeah.
Mr Beer: So what’s missing from that sentence “investigations are a matter for investigators, as long as they are within the law, rules and priorities of the business”?
Duncan Atkinson: If it spelt out there the Post Office policy that they were to apply, which itself identified the relevant statutes, the relevant codes under statute, the relevant guidance from the Attorney General, and so on, then the reader would know exactly what it was talking about and what the standards were.
Where it doesn’t spell those out, there’s the risk that important areas of the law and the rules will be missed.
Mr Beer: So the reader doesn’t know which law?
Duncan Atkinson: No.
Mr Beer: Which rules, what priorities?
Duncan Atkinson: (Non-verbal answer)
Mr Beer: Are you advocating or are you saying that it should all be stated in here or could be done by cross-reference?
Duncan Atkinson: It could be done by cross-reference.
Mr Beer: If we go to page 3, please, and look at 3.2.9 at the foot of the page. I should read 3.2.8 first:
“Investigations leading to potential prosecution will be reported in accordance with the [CPIA] and the [CPIA] Code of Practice.”
What do you understand that to mean, that investigations will be reported?
Duncan Atkinson: I must confess it’s not altogether clear to me what that means in the context of reporting investigations. The CPIA addresses aspects of the investigation and aspects of the disclosure regime; the Code addresses those areas and also the interaction of investigators and prosecutors. So it may relate to that but, if it’s set out which parts of the Code and the Act it had in mind, then we would know.
Mr Beer: So is this one of the examples that we spoke about earlier, where there is a flashing reference to an Act but it doesn’t say in any meaningful sense what’s to be done?
Duncan Atkinson: Yes, and it could either here refer to the relevant parts or it could refer to a policy where those parts are identified. So, if there was a policy that addressed the way in which investigations were to be reported to prosecutors and the parts of those that Act and that Code that applied in that context, then that would do the job.
Mr Beer: If we can look, please, at 3.2.9, “Prosecution”:
“Suspect offenders will be prosecuted where there is sufficient evidence and it is in the public interest in accordance with the Code for Crown Prosecutors. Decisions to prosecute in non-Crown Prosecution Services cases will be taken by nominated representatives in the business with consideration to the advice provided by the Royal Mail Group Criminal Law Team.”
Two questions there. What, if anything, is wrong with that; and what, if anything, is missing?
Duncan Atkinson: This, I think I’m right in saying in 2007, was the first policy reference in the Post Office policies I had seen to the Code for Crown Prosecutors as being the test to be applied. It doesn’t actually reflect that test in referring to sufficient evidence, rather than a realistic prospect of conviction.
It then refers to decisions on prosecutions being taken by nominated representatives in the busy with consideration to advice but it doesn’t make clear how that consideration is to work. On the face of this, the nominated representative could have obtained advice from the Criminal Law Team and ignore it, in the sense that they could come to a contrary view to the one expressed in the advice that they had received, as long as they had obtained it.
Mr Beer: So in relation to the first concern, there’s a cross-reference to the Code for Crown Prosecutors for the first time, so far as you’ve been able to see –
Duncan Atkinson: Yes.
Mr Beer: – in December 2007, so well into our relevant period. What’s wrong with a policy saying, “You’re to take decisions in accordance with the Code for Crown Prosecutors”?
Duncan Atkinson: Well, firstly, going back to an earlier question, if those decisions are to be taken in relation to a fairly defined range of possible scenarios, there would be sense in your policy addressing those scenarios and how decisions to prosecute should be taken in those situations, rather than referring – just referring to a code that is broader than that.
Secondly, if the nominated representative in the business is making the decision and they may not be a lawyer, then they need help as to how to apply the Code for Crown Prosecutors, what factors in it they need to focus on, how they interact with each other, and so just being told there is a code that will be applied may not be enough.
It depends on who the nominated representatives are, how they are trained, how they are otherwise instructed beyond the scope of this paragraph. But this paragraph, on its own, doesn’t make it clear.
Mr Beer: Reading on to 3.2.10 under the heading “Conduct and Oversight of Investigations”, the policy tells us that:
“Royal Mail Group Security employees perform a vital role on behalf of the public, the Criminal Justice system and Royal Mail Group Limited customers and employees. These stakeholders must have absolute confidence in the integrity, conduct and professional status of Investigators.
“This means adherence to the laws, regulations and codes along with their respective Procedure and Standards referred to above.”
What’s wrong with that, if anything?
Duncan Atkinson: Clearly, that is an entirely correct observation, that that is what stakeholders should have an absolute confidence in. Whether this document and the references it makes at this point to earlier parts of the document is sufficient to ensure that, is a separate question.
Mr Beer: So, overall, looking at this policy document, your principal criticisms, is this right, are as follows: it doesn’t say who’s in fact going to take a decision to prosecute?
Duncan Atkinson: No.
Mr Beer: It doesn’t explain the standards to be applied and it doesn’t explain how those standards are going to be measured or audited to ensure that they’re being applied correctly?
Duncan Atkinson: And it doesn’t identify, in addition to those, how legal advice is to interplay into that process.
Mr Beer: Thank you.
Can we go back to your report, please, at page 27. I’m going to through the rest of (b) to (j) in your examination of the policies but without, on each occasion, going back to the source.
Duncan Atkinson: Yes.
Mr Beer: You tell us – and I think we’ve got time to fit this in just before lunch – at your subparagraph (b), if we scroll down, please:
“The [RMG Limited] Criminal Investigation and Prosecution Policy …”
Duncan Atkinson: That’s the one we just looked at, I think.
Mr Beer: Yes, quite right. Over the page to (c), thank you at 28. Moving forward to April 2010:
“The Post Office Limited Security policy – [Fraud and investigation policy] identifies the fraud investigation team as being in-house investigators answerable to the Head of Security. In relation to prosecutions at, paragraph 3.15, it states: ‘decisions to prosecute will be taken by nominated representatives in the business with consideration to the advice provided by the Royal Mail Group Criminal Law Team and where there is sufficient evidence and it is in the public interest’.”
Is there any difficulty with that?
Duncan Atkinson: In this context, unlike the previous document, there isn’t a reference to the Code for Crown Prosecutors and, therefore, no clear indication as to how evidential sufficiency or the public interest are to be assessed, providing those two boxes are ticked. And again, my concern, which may be overexacting but it is my concern, that consideration to the advice provided by lawyers could be interpreted as “As long as you’ve got it, you don’t have to follow it”.
Mr Beer: So the principal problem, is this right, if problem it is, is that, whereas three years previously, there had been at least a reference to the Code for Crown Prosecutors, that seems to have evaporated?
Duncan Atkinson: Certainly in this particular document, it wasn’t there.
Mr Beer: So would a person taking a decision by reference to this policy in April 2010 know that they’ve got to apply the Code or not?
Duncan Atkinson: It would depend on what they were reading beyond this. If this was all that they were applying, then there’s clearly the risk that they wouldn’t apply the Code. If they were looking at a wider pool of policy instruction and/or training, then they might extract it from that but they certainly wouldn’t get it from this.
Mr Beer: It doesn’t say what “sufficient evidence” means –
Duncan Atkinson: No.
Mr Beer: – nor give guidance on how to ascertain it –
Duncan Atkinson: Right.
Mr Beer: – nor explain what “the public interest” means?
Duncan Atkinson: As we’ll see when we look at the Code in its various iterations in due course, neither of those is a one-line situation, although there are a whole range of factors that are identified as being relevant to the assessment of evidential sufficiency and an even larger range of factors that are relevant to the assessment of the public interest. They’re not straightforward questions.
Mr Beer: On that note, it’s 1.00, sir, would that be an appropriate moment to break until 2.00?
Sir Wyn Williams: Yes, of course. Thanks very much.
Mr Beer: Thank you very much, sir.
(1.00pm)
(The Short Adjournment)
(2.00 pm)
Mr Beer: Good afternoon, sir, can you see and hear me?
Sir Wyn Williams: I can, thank you. Yes.
Mr Beer: Thank you very much.
Good afternoon, Mr Atkinson. Can we go back to page 28 of your report, please?
Duncan Atkinson: Yes.
Mr Beer: On the screen, that’s page 28. I think we’d got up to (d); is that right?
Duncan Atkinson: Yes.
Mr Beer: So in this chronological run of policy documents relevant to the issue of separation of functions and separation of decision making, you turn to the Royal Mail Group Prosecution Policy, which carries two dates, but is in the same terms, of October 2009 and April 2011, and states:
“The decision to prosecute Royal Mail investigations in England and Wales will be reached in agreement between the Human Resources Director for the affected business unit or his or her nominated representative, the nominated representative from the Investigation team and the lawyer advising.”
The document at 5.5 addresses the process where there is no agreement between those people as to whether to prosecute or not. That’s obviously a change from the previous position?
Duncan Atkinson: Yes.
Mr Beer: But did you identify an issue or concern with the policy being formulated in that way?
Duncan Atkinson: Well, it appeared, on my reading of it, to identify who the nominated representatives may have been in the earlier policies, which were not spelt out in those, but it did suggest that decisions as to prosecution would involve human resources, amongst others, and that – again, it wasn’t quite clear how the legal advice would factor in to that process. So those were the two areas that jumped out at me.
Mr Beer: Was there any concern that a member of the investigation team would be a party to decision making on whether the suspect should have proceedings commenced against them?
Duncan Atkinson: Potentially, there’s clearly no impediment to the Investigation team having an input into the process by which a decision is made. It would be entirely normal, for example, for the police to provide – report and to provide their assessment to the CPS before the CPS then made the decision as to prosecution. So that wouldn’t be a problem. But, here, it does read as if the decision to prosecute is a collegiate matter with three parties, one of which is the investigation team, one of which is the lawyer and one of which is HR, and that, certainly in my experience, is unusual.
Then the further stage, the – where there’s disagreements, it’s for the Criminal Law Team and the Investigation team heads to come to a decision as to what should be done.
Mr Beer: I think 5.5 envisages that HR are taken out of the process?
Duncan Atkinson: Yes.
Mr Beer: Moving on to January 2011:
“… the Royal Mail Prosecution Decision Procedure [provides] (at paragraph 4.4): ‘the Regional Human Resources Director, or in Post Office cases the Senior Security Manager … will act as the “decision maker” in authorising prosecutions or not. All decision makers will be familiar with the evidential and public interest test of the Code for Crown Prosecutors and make decisions accordingly’.”
So this seemed to suggest that it was the Security Manager, in Post Office Limited cases, who was the decision-maker.
Duncan Atkinson: Yes, and so, if I’m right in my reading of this in conjunction with other policies, it would therefore be the person with superintendence for the investigation process who would then make the prosecuting decision, and/or, depending on the situation, the regional human resources director. And, as I read it, they would be tasked with understanding and applying the Code for Crown Prosecutors, rather than being an independent legal assessment and decision.
Mr Beer: The comments you made earlier, about assistance being needed for non-lawyers with the terms of and carrying into effect of the Code, apply here, do they?
Duncan Atkinson: Yes.
Mr Beer: (f):
“The Royal Mail Prosecution Decision Procedure [of] January 2011 … at 5.1-2: ‘A criminal lawyer will advise whether the case papers meet the evidential test for prosecution and provide advice on the most appropriate action to be taken … the PSO will forward the relevant case papers to the appropriate Decision Maker for a decision on whether it is in the public interest to initiate a prosecution’.”
What were the good or less than good points about this iteration of the policy?
Duncan Atkinson: Well, clearly, it recognises the importance of a lawyer providing advice. There isn’t a specific reference to the Code for Crown Prosecutors but there is a reference to the test from it, as to evidential sufficiency, as opposed to the public interest test, and then the decision is taken by the decision maker. And this is 2011, so, if this is read in conjunction with the policies above, then your decision maker is again the – either the person with superintendence for the investigation process or the Director for HR, so, again, it’s getting legal advice but the decision then being made by someone else.
Mr Beer: (g):
“The Post Office Limited Criminal Enforcement and Prosecution Policy, which [you] understand can be dated to November 2012, [provides] that ‘decisions to proceed with a prosecution will be taken by the Head of Security of [Post office Limited], upon legal advice’.”
Was there any difficulty or concern with that?
Duncan Atkinson: Only that, again, trying to rationalise these policies with each other. The Head of Security had earlier been identified as being the superintendent of the investigation process. So, again, it is the investigative arm that makes the decision as to whether to prosecute or not on advice, but an investigative, effectively, decision.
Mr Beer: Thank you. Over the page to (h) please, moving forward to November 2013, so coming towards the end of the relevant period:
“The Post Office Prosecution Policy England and Wales, dated November 2013, in contrast to these earlier policies, stated that prosecution decisions should be taken by a qualified lawyer ‘independent of any Post Office Limited Department having a direct financial or other interest in prosecution’. It added in a footnote that this was designed to mirror the independence of CPS decisions.”
Duncan Atkinson: And this is an important policy, this November 2013 policy, first because of what I highlight here, which is that it is – I think I’m right in saying – the first policy that I identified where it was a lawyer making the decision on prosecution, as opposed to others within the business. And, secondly, this policy, in contrast to earlier policies, didn’t just refer to the Code for Crown Prosecutors but set out in some detail, in the way that the Code does, relevant factors, but Post Office specific factors, that would inform both limbs of the test for prosecution.
Mr Beer: We’ll be coming back to look at the way it does that when we come to charging decisions, which is a subtopic –
Duncan Atkinson: Yes.
Mr Beer: – probably tomorrow.
I’m not going to deal with (i) and (j) because they are policies or documents that are either towards the end or outside of our period. But, by this time, into 2014, did the Post Office policies change? So, for example, in the February 2014 policy, was it the case that, rather than responsibility or accountability being shared across a number of individuals, that policy proposed an individual within Post Office Limited to be appointed to take responsibility? Then in the December 2015 proposed policy, essentially recommendations being made on whether the decision should be to prosecute or not, but the general counsel was the final decision-maker?
Duncan Atkinson: Yes, so the – I was a little concerned when I read the February 2014 discussion paper, that it either had appeared to me from the November 2013 policy that the question of who would make the decisions had been resolved. It was going to be a qualified lawyer independent of the Post Office and then, in February 2014, there was discussion about there being an identified individual.
Clearly, both were going in the right direction in terms of it being an independent decision of the business.
Mr Beer: Is your overarching conclusion set out at paragraph 56, at the foot of the page?
Duncan Atkinson: Yes.
Mr Beer: Namely:
“It follows that in the case of the Post Office, throughout the Inquiry’s relevant period, there was no such distinction of roles of investigator and prosecutor being undertaken by separate agencies subject to separate oversight, governed by separate Codes of Practice and with an inevitable role the one keeping the other in check.”
Duncan Atkinson: Yes, and again, as I think I said this morning, that doesn’t have to be two entirely separate organisations but it does have to be clearly defined teams within organisation, where it is clear which of them is ultimately making the decision and, ideally, that ought to be an independent lawyer, as it ended up being in 2013.
Mr Beer: You say:
“As will be seen, there are aspects of the structure for disclosure under the Code of Practice issued under the CPIA and the guidelines issued by [His Majesty’s] Attorney General that similarly seek to divide responsibility, and create cross-referring superintendence of the disclosure regime, between investigative agency on the one hand and the prosecuting agency on the other. Where those agencies are in fact the same agency, the need to ensure that no blurring of lines of responsibility and review becomes all the more important.”
Duncan Atkinson: Yes.
Mr Beer: You gave us an overview earlier on of this issue. Just to restate it, in relation to this point, the succession of policies which you examined and the absence of a distinction of roles, can you calibrate your level of concern?
Duncan Atkinson: Certainly in the earlier part of the period for which I saw policies that identified who was responsible for making prosecution decisions, it was not clear that there was that independence and delineation of role, and that is – if that is – if I’m correct in that identification and understanding of the policy position, that is a serious shortcoming.
Mr Beer: Thank you. That can come down from the screen. Moving to a separate subtopic: the role of the prosecutor. You tell us in your report that the proper role of the prosecutor, in the decisions that they take as to whether to charge in ensuring fair and proper disclosure in the proceedings, and in the conduct of the proceedings more generally, emerge from a succession of decisions of the court, in particular the Court of Appeal, from the Bar Code of Conduct and from the recommendations of the Farquharson committee; is that right?
Duncan Atkinson: Yes.
Mr Beer: Dealing with that trilogy of sources, can we start with decisions of the court and I think we’re at page 19 of your report on paragraph 37.
Duncan Atkinson: Yes.
Mr Beer: Page 19. Thank you. So this is the first set of sources that we’re looking to, decision of the courts, as to the role of the prosecutor. You take us to the decision of a Court of Appeal in Puddick and I think that was a decision made in 1865; is that right?
Duncan Atkinson: It was, yes.
Mr Beer: So quite some vintage. Mr Justice Compton told us that:
“… prosecution counsel ‘are to regard themselves as ministers of justice, and not to struggle for a conviction’.”
Then, moving on, the decision of again, I think, a Court of Appeal in Banks, which I think was a 1916 decision or at least reported in that year, Mr Justice Avory made similar observations:
“It is quite true that counsel for the prosecution throughout a case ought not to struggle for the verdict against a prisoner, but that they ought to bear themselves rather in the character of ministers of justice assisting in the administration of justice.”
In the remainder of that paragraph, you make a point that, although the judges in one of those cases was addressing how prosecution counsel had expressed themselves in a closing speech, I think, the point is a broader one. By that, do you mean broader in that it involves other stages of the prosecutorial enterprise, charge, disclosure and the like, or that it applied to individuals other than counsel, or both?
Duncan Atkinson: It certainly applied to counsel in a broader context just than the content of their closing speech, the concept of the prosecutor as a minister of justice, which has been developed and developed since, those references at the end of the 19th century and early into the 20th, in terms of them being independent and seeking always to put the proper administration of justice at the forefront of what they do rather than it being the winning that matters.
That is what those judges were talking about in those cases and that is what that concept has reflected since then, and with a wider understanding, as things have developed, that it’s talking about the prosecution, rather than just prosecution counsel, as it’s gone on.
Mr Beer: So the answer is both: it’s other parts of the prosecutorial enterprise –
Duncan Atkinson: Yes.
Mr Beer: – and it’s not just prosecution counsel?
Duncan Atkinson: Yes.
Mr Beer: Thank you. The second source of the description of the duty, acting as a minister of justice and all that that involves, I think you say emerges from the Farquharson committee of 1986; is that right?
Duncan Atkinson: Yes.
Mr Beer: You address that in paragraph 38 of your report.
Duncan Atkinson: Yes.
Mr Beer: If we can just read that, please. The second line you say:
“The introductory paragraphs of the Farquharson report state: ‘There is no doubt that the obligations of prosecution are different from those of counsel instructed for the defence in a criminal case or of counsel instructing in civil matters. His duties are wider both to the court and to the public at large. Furthermore, having regard to his duty to present the case for the prosecution fairly to the jury, he has a greater independence of those instructing him than that enjoyed by other counsel. It is well known to every practitioner that counsel for the prosecution must conduct his case moderately, albeit firmly. He must not strive unfairly to obtain a conviction; he must not press his case beyond the limits which the evidence permits; he must not invite the jury to convict on evidence which in his own judgement no longer sustains the charge laid in the indictment. If the evidence of a witness is undermined or severely blemished in the course of cross-examination, prosecution counsel must not present him to the jury as worthy of a credibility he no longer enjoys … Great responsibility is placed upon prosecution counsel and although his description as a ‘minister of justice’ may sound pompous to modern ears, it accurately describes the way in which he should discharge his function’.”
Duncan Atkinson: Yes.
Mr Beer: I’m not going to read the summary of the Farquharson committee’s views in the propositions that you set out in paragraph 39 but, instead, can we turn to paragraph 40 on page 21. You tell us that:
“… these principles, in relation to the duty of fairness and the application of the interests of justice to the prosecution and the prosecutor, equally apply in a private prosecution …”
That’s the headline point, is it?
Duncan Atkinson: Yes.
Mr Beer: “… as was demonstrated, for example, in Zinga …”
I think that’s a 2014 decision of the then Lord Chief Justice Lord Thomas –
Duncan Atkinson: Yes.
Mr Beer: – Mr Justice Foskett and Mr Justice Hickinbottom. Lord Chief Justice Lord Thomas said at paragraph 61, he was speaking for the court:
“… advocates and solicitors who have conduct of private prosecutions must observe the highest standards of integrity, of regard for the public interest, and duty to act as a minister of justice (as described by Farquharson J) in preference to the interests of the client who has instructed them to bring the prosecution. As Judge David QC, a most eminent criminal justice, rightly stated in [the Maxwell case], in respect of a private prosecution: ‘traditionally Crown counsel owes a duty to the public and to the court to ensure that the proceeding is fair and in the overall public interest. The duty transcends the duty owed to the person or body that has instituted the proceedings and which prosecutes the indictment …’”
So in short the Farquharson principles encapsulated in that phrase, that a prosecutor must act as a minister of justice, are recognised to apply not just to public prosecutors but to private prosecutions and to advocates and solicitors conducting them?
Duncan Atkinson: Yes, and, as with Kay, that we looked at this morning, Lord Thomas was not saying anything new in 2014 in that regard, as, for example, his reference to the 1980 decision of Maxwell underlines.
Mr Beer: Yes. So that’s not just a nice point being made that common law, when it’s stated by a court, has always been the common law. It’s a different point that you’re making that this wasn’t the first recognition of the application of the Farquharson principles to private prosecutors?
Duncan Atkinson: Absolutely.
Mr Beer: It had been established, including in Maxwell?
Duncan Atkinson: Yes.
Mr Beer: Can we turn to the role of independent counsel. That can come down from the screen. Thank you.
Would you agree that any barrister practising in criminal law and particularly any barrister that prosecuted ought to be aware of their Farquharson duties as independent ministers of justice?
Duncan Atkinson: Yes.
Mr Beer: Would you expect any such counsel instructed to prosecute to review the evidence in the case and advise if they felt the evidence did not support the charge or the prosecution more generally?
Duncan Atkinson: Yes.
Mr Beer: Would you agree that the Post Office was entitled to place reliance on the fact that the counsel that it instructed would exercise those degrees of independent scrutiny –
Duncan Atkinson: Yes.
Mr Beer: – and advise accordingly?
Duncan Atkinson: Yes.
Mr Beer: Of course, that depends on, does it not, the revelation of the material to that counsel to allow them to perform that function?
Duncan Atkinson: Yes.
Mr Beer: Were you aware that the conduct of Post Office prosecutions was undertaken primarily by counsel instructed from the independent bar?
Duncan Atkinson: Yes, and certainly I – now that I’m up to my neck in Part 2, I see that a lot.
Mr Beer: And would you accept the proposition that, given that role of counsel and their instruction to prosecute for the Post Office, that was independent oversight of the Post Office’s prosecutorial decisions?
Duncan Atkinson: It was a degree of independent oversight but it very much would always depend on what was disclosed to counsel as part of the process to enable them to undertake that oversight.
Mr Beer: Do you want to explain that in any more detail?
Duncan Atkinson: Well, clearly, if counsel were making the initial decision to whether a charge should be brought or not, then they had an independent role at that stage.
I have to say that the cases I’ve been looking at for Volume 2, that doesn’t appear to be what was happening, that decisions were made in-house and then counsel were then instructed. It would then be for counsel to advise on the evidence, as it was presented to them, which would often involve them looking at the investigation report and that – an assessment from the investigation and the evidence that was served upon them.
Mr Beer: Just stopping there, Mr Atkinson. Had you seen many formal instructions to counsel to advise on evidence, and if that’s a question too far at the moment, then we’ll come back to it in Volume 2?
Duncan Atkinson: I can think of, off the top of my head, two of the 20 that I’ve looked at so far, where I’ve seen instructions at all, and I don’t recall there being a specific request for advice on anything in particular. I have seen in some of the cases I looked at a degree of advice from counsel, based on what they had been given.
Mr Beer: Thank you. In terms of other forms of oversight, would you regard the Magistrates Court as providing scrutiny and oversight of the Post Office’s prosecutorial practices and decision making because it could, in any particular case refuse to issue a summons?
Duncan Atkinson: Clearly, the Magistrates Court can refuse to issue a summons but that is why the duties of candour to the Magistrates Court is so important, because the Magistrates Court can only fulfil that role properly if it is told not only that which underpins the allegation but also anything that may count against the prosecution of that allegation.
So, for example, if that prosecution would represent an abuse of process, there is a requirement that that is identified and, if that doesn’t happen, then it’s rather difficult to see how the Magistrates Court can carry out any realistic oversight.
Mr Beer: Would you regard the Crown Court, for those cases that reached the Crown Court, as providing supervision and oversight of the Post Office’s prosecutorial practices and prosecution decision making?
Duncan Atkinson: Again, it can fulfil that role but, again, it depends on that court being seized of the necessary information to undertake that process. So for example, again in the 20 cases that I’ve been looking at more recently, there was certainly at least one where there was an abuse of process application. There were a couple where there were applications for further disclosure, pursuant to section 8 of the CPIA, and that’s – after the defence have set out their case in the defence statement, they can submit to the court that there hasn’t been proper disclosure to them as a result of that.
And so those were occasions on which the Crown Court could have addressed those issues but it clearly depended on what they were told in response.
Mr Beer: So there were occasions in the criminal process, in the Crown Court, where opportunities arise to test evidential sufficiency –
Duncan Atkinson: Yes.
Mr Beer: – through an application to dismiss or a halftime submission?
Duncan Atkinson: Yes.
Mr Beer: There are occasions that arise where applications for disclosure can be made under Section 8, as you’ve just described, of the CPIA?
Duncan Atkinson: Yes.
Mr Beer: Do they provide oversight and scrutiny of prosecutorial practices and prosecutorial decision making?
Duncan Atkinson: Again, I think the answer is that they can do but they very much depend on the prosecution approaching its role with that “minister of justice” hat squarely on, that the prosecution are making the court aware of the shortcomings of its case and the validity of any argument raised against it, so that the court can properly undertake its task. If the court is not put in possession of the facts then it can’t carry out an oversight of that which it doesn’t know.
Mr Beer: To add to the obvious point that you just made, courts are obviously only cited on a small part of the information that a prosecutor may be in possession of?
Duncan Atkinson: Yes, and so now we’re – as an illustration of that, where cases are served in a digital format and the court has access to the digital folder for the case, it will not often have access to the unused material sections of that, and the same was the case, ordinarily, when things were served on paper, that the court would have the served case not the unused material, that which had been disclosed but was not part of the prosecution’s evidence, and so wouldn’t be able to carry out that sort of exercise for itself. It would need to be told that there was an issue and what the material was.
Mr Beer: We’re going to come to disclosure later but, just for those that are watching or listening that aren’t aware of the distinction between the served case and the unused material, can you in a sentence or two explain what that is, please?
Duncan Atkinson: I’ll give it a go. So the served cases is the material that the prosecution rely on to prove its case and to establish, if all goes its way, the guilt of the accused.
Other material that is in the prosecution’s possession, which is acquired during the course of the investigation and which may undermine its case or assist that of the defendant, ought to be disclosed to the defence, ought to be recorded in schedules of unused material, so it’s wider material than that which is relied on and would be called before a jury, but which is nevertheless generated or acquired during the investigation.
Mr Beer: To add two points to the limitation of the oversight function, do courts proceed on the basis that prosecutions are being pursued competently and professionally in accordance with the minister of justice duties?
Duncan Atkinson: Yes.
Mr Beer: Is there a limitation on oversight in cases where guilty pleas are entered, in particular at an early stage of the process?
Duncan Atkinson: Yes, and so, if there is a charge before the court and the court is told the defendant is pleading guilty to it, it’s unlikely the court would dig into the material to decide for itself whether the defendant was right to be doing that. They would rely on the parties to have reached that position responsibly.
Mr Beer: Can we turn to motives for prosecuting, please, and this is page 22 of your report at paragraph 44. If we can just read that together:
“In relation to the motivation of a private prosecutor, the approach of the Court of Appeal in Asif v Ditta, the decision’s primary focus was as to whether the Crown Court judge had been entitled to stay proceedings brought by a private prosecutor as an abuse of process where satisfied that the proceedings were being brought by a proxy for a person with a significant background in fraud, for collateral purposes and for an improper motive. The Court of Appeal declined to interfere with the decision, observing ‘the court has the power to stay proceedings … where it will be impossible to give the accused a fair trial, and … where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case’.”
On to paragraph 45:
“However, [the court] went on to observe that ‘it is well established that a private prosecutor can have another motive as well as being motivated by a public interest factor. Mixed motives are not of themselves a bar to a private prosecution … the question is where the line is to be drawn between the public interest motivation and the other “oblique” motive’. [The court] cited in support of the latter observation the earlier decision of Ex parte South Coast Shipping Limited. In that case challenge was unsuccessfully made to the bringing of a private prosecution by the bereaved family of one of those who died in the Marchioness disaster. The fact that the family also wanted a public inquiry did not prevent such a prosecution.”
Then on to 46:
“That approach was also adopted by the Administrative Court in R (Smith-Allison) v Westminster Magistrates Court [2021] EWHC 221 Admin, in which Mr Justice Eady observed at paragraph 48: ‘although a prosecution whether public or private, must not be improperly motivated, the courts have recognised that, in any private prosecution, a prosecutor will have a motive other than simply a desire that justice be done and that a criminal offence, if proven, should be punished’.”
Mr Justice Eady carried on by citing from D Limited v A & others, in which Lord Justice Davis observed:
“’… mixed motives may often be present in many prosecutions. In a public prosecution, the proceedings will be brought in the public interest; but the actual complainant may often be accused of (say) seeking revenge after a relationship has failed, and so on. This may sometimes indeed be the case but the true motive of the complainant may still be to seek justice. In a private prosecution, the complainant of course is frequently the prosecutor. But there too it is well established that mixed motives do not of themselves vitiate the prosecution …’.”
So it’s right, isn’t it, that the law has established that, whilst private prosecutors may properly have a mixed motive for bringing a prosecution, which won’t vitiate their decision, that did not mean either that the Post Office was permitted to derogate from the need to make decisions on an objective basis or that they could make decisions on the basis only of such motives?
Duncan Atkinson: No. Absolutely.
Mr Beer: Was there any evidence in any policy documents that you’ve seen of the Criminal Law Team or its leadership being required to monitor prosecutions, for example by dip sampling, in order to ascertain whether prosecutors were meeting their legal duties?
Duncan Atkinson: I can’t think of any examples of that, no.
Mr Beer: That prosecutors were applying the code test properly and diligently?
Duncan Atkinson: Again, this is perhaps slightly more a Volume 2 question, a question of whether the charging advices that I saw showed that. I think it would be difficult, looking at them on their own, to say that they did fully apply both limbs of the Code for Crown Prosecutors, particularly the public interest limb, which was regularly not addressed at all in the advices that I saw.
Mr Beer: Just sticking at the moment, reining ourselves back in to Volumes 1 and 1A, in the policy documents that you saw, did you see any requirement of the Criminal Law Team leadership being required to monitor or oversee whether prosecutors were applying the Code tests properly?
Duncan Atkinson: Again, I can’t think of any.
Mr Beer: For example, whether they were making appropriate decisions about disclosure or non-disclosure?
Duncan Atkinson: In terms of monitoring that process?
Mr Beer: Yes.
Duncan Atkinson: Again, I can’t think of examples of that.
Mr Beer: To did you see any evidence on their face that the policies concerning the investigators’ duties and the prosecutors’ duties within the Post Office were themselves reviewed or audited by any external third parties, such as solicitors or barristers?
Duncan Atkinson: Clearly, as my report highlights, the various policies were updated at intervals. In the main, I don’t think I saw any evidence as to why they were updated or who updated them, or what had led them to do that. I think the difference is, I think the 2013 policy that we touched on a little earlier, that clearly came about as a result of work that was undertaken by Cartwright King and, from memory, at that stage, Brian Altman KC, as to their review of how prosecutions were being done and those policies were the result of that.
So there was that independent involvement at that stage but I can’t think of comparable evidence in relation to earlier policies.
Mr Beer: Thank you. Can we turn, please, to the conduct of investigations?
Duncan Atkinson: Yes.
Mr Beer: You consider the conduct of investigations between paragraphs 57 to 117 of your report and you go back to it at 366 to 370 of your report. Can we start, please, page 31 at paragraph 59. You’re here in paragraph 59, I think, referring to the power of the Secretary of State to issue Codes of Practice under the Police and Criminal Evidence Act, PACE, 1984, in relation to the six topics or activities that you mentioned in (a) to (f)?
Duncan Atkinson: Yes.
Mr Beer: These are all very well known, certainly to the Chair of the Inquiry. So I’m not going to look too much at the terms of the codes nor to their statutory basis. Can we move on to paragraph 60, please. You say:
“In an approach similar to that intended to be achieved by Section 26 [of the] CPIA, which is considered in more detail below and which requires others involved in criminal investigations to have regard to the Code issued under the CPIA which sets out the manner in which investigators should ‘record, retain and reveal to the prosecutor material obtained in a criminal investigation’, application of these PACE codes [that’s the six codes you’ve identified] to investigators beyond the immediate ambit of PACE is achieved by Section 67 [of] PACE.”
So here you’re drawing attention to the fact that the PACE Codes of Practice apply primarily to the conduct of the relevant activities by police officers?
Duncan Atkinson: Yes.
Mr Beer: But by a statutory device, their reach is extended beyond the police officers?
Duncan Atkinson: Yes.
Mr Beer: This is achieved by Section 67(9) to (11) of PACE –
Duncan Atkinson: Yes.
Mr Beer: – 67(9) providing:
“Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of such a code.”
That’s any one of the six codes?
Duncan Atkinson: Yes.
Mr Beer: “A failure on the part of … any person other than a police officer who is charged with the duty of investigating offences or charging offenders to have regard to any relevant provision of such a code in the discharge of that duty, shall not of itself render him liable to any criminal or civil proceedings.”
But in (11):
“In all criminal and civil proceedings any such code shall be permissible in evidence; and if any provision of such a code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question”.
So what’s the importance of these provisions in our present context?
Duncan Atkinson: It’s recognised that whether a person other than a police officer is charged with a duty of investigating offences or charging offenders is a question of fact, depending on the circumstances but it seemed to me, when I first started to approach this, that it was – it would be difficult for the Post Office to argue that its Investigation Department was not charged with a duty of investigating offences and, therefore, that it did fall within this and was therefore required to have regard to these codes and, in fairness, it was clear to me when I then looked at the Post Office policies that they accepted that and they recognised that.
Mr Beer: They thought they did too?
Duncan Atkinson: Yes.
Mr Beer: So, in general terms, your view would be that Post Office investigators were charged with the duty of investigating offences and the Post Office recognised that themselves?
Duncan Atkinson: Yes.
Mr Beer: It would be your view that Post Office employees were charged with the responsibility of charging offenders with criminal offences –
Duncan Atkinson: Yes.
Mr Beer: – and the Post Office recognised that too?
Duncan Atkinson: Yes.
Mr Beer: So that means that there was a duty on each class of individual to have regard to any relevant provision of a Code of Practice when discharging those duties?
Duncan Atkinson: Yes. That they recognised that courts that they would then be taking any such case to would be looking to them for their compliance or otherwise with those codes and the protections that they were designed to give.
Mr Beer: So let’s turn over the page to page 33, then, and see what the Post Office policies tell us about what needs to be done to comply with PACE and, in particular, the Codes of Practice under PACE. I think that’s your subheading there –
Duncan Atkinson: Yes.
Mr Beer: – “Post Office policies relating to PACE”, and paragraph 64 onwards. You say:
“In the Consignia Investigation Procedure of January 2001, there are limited references to PACE and the Codes …”
Under “Enquiry methods”:
“At 3.3.1 [the policy said] ‘the investigator should endeavour to ascertain the facts in an effort to solve the case. There is no compulsion to anyone involved unless it is considered to be necessary or expedient.’.”
Are there any difficulties or problems with that?
Duncan Atkinson: It is largely a statement of the obvious. It perhaps didn’t assist as much as it could have done as to identifying when it would be necessary or expedient to question people but that would be the only comment I’d make on that.
Mr Beer: So it’s more what it doesn’t say than what it does?
Duncan Atkinson: Yes.
Mr Beer: “At 3.1.2 [the same document] states ‘Investigations. Collection of facts in accordance with the Police and Criminal Evidence Act and the other legislation’.”
You tell us there is no reference in the document to the application or otherwise of the Codes in relation to arrest, search, seizure or interviews. Is that the problem you identified with it?
Duncan Atkinson: Yes, the Police and Criminal Evidence Act is a vast doorstop of a piece of legislation and it would not help someone looking at this on its own to know what that meant to them.
Mr Beer: You turn to a different policy but say that the same approach and the same comments apply, namely your (c), by your reference to the Post Office rules and standards policy issued in October 2000, which identifies the investigators are bound by PACE and the Codes without saying how?
Duncan Atkinson: Yes, so it was absolutely correct to identify that, by reference to section 67(9), that they were bound by them or that they were to have regard to them. They went further than that and that was a good thing. But then, stopping short of giving them the people who were going to be doing it, on the face of that policy, the necessary information as to what that meant to them, and it’s of notable – we’ll come on to it – that was something that the Post Office developed a lot in their policies going forward from there. So clearly there was, as I see it, a recognition by them, looking back, that this wasn’t enough.
Mr Beer: So this is an example, an early example, of what you described earlier: essentially, name checking an Act of Parliament –
Duncan Atkinson: Yes.
Mr Beer: – but not doing anything else?
Duncan Atkinson: Yes.
Mr Beer: In paragraph 65, you note that within the October 2000 policy there is a cross-reference to comprehensive training notes having been issued or to be issued. I think, by the time you wrote your report, you had been provided with the Security Foundation Programme “Open learning on PACE Codes of Practice” workbook –
Duncan Atkinson: Yes.
Mr Beer: – which you thought might be the cross-reference –
Duncan Atkinson: Yes.
Mr Beer: – to the comprehensive notes?
Duncan Atkinson: Yes.
Mr Beer: They set out the background to the Codes, the areas addressed by each code, and then in slightly more detail the relevance to a Post Office investigation of codes B, searching; C, detention and questioning; and E, tape recorded interviews.
Duncan Atkinson: Yes, and so it seems to me that those training materials did provide a good deal more information as to which codes applied and how they applied, and they were talking about the codes that were the logical ones for them to be talking about.
Mr Beer: However, in your paragraph 66, you identify three points for us through problems. Can you see first you say that:
“… [the] training notes do not amount to a ‘comprehensive’ guide to how those Codes should be applied in an investigation, by whom and to whom.”
Do you want to explain what you meant by that, please?
Duncan Atkinson: So they identified what the code was, what its purpose was, but didn’t, it seemed to me, provide sufficient guidance to someone who was going to benefit from that training as to what then they were to do, using that code, when they were to use it, and so it didn’t, in and of itself, deal with the lack of information in the policies from that period of time as to how the codes were to be applied by investigators.
Mr Beer: You make a second point that it wasn’t adequate to expect those undertaking criminal enquiries, criminal investigations, to rely on notes given during a training session because, as you’d made clear already, the statutory and policy framework inevitably alters and such notes will be rendered out of date?
Duncan Atkinson: Yes.
Mr Beer: You say in the last part of the paragraph there:
“Further, it can be properly argued …”
You use that formulation a number of times in there. When I’m speaking with my children I sometimes use that formulation to make clear that I’m not entirely sure of my ground. Is that how I should read that or is there something more definitive in your mind?
Duncan Atkinson: I think my concern was that I was conscious that I had not seen the full range of training material that was available. I became aware, through my reading of what I was given, that there was a database in existence, which I had not seen – the contents of which I had not seen.
Mr Beer: I think that remains the position for –
Duncan Atkinson: That remains the position –
Mr Beer: – both you and the Inquiry?
Duncan Atkinson: – yes. So it’s difficult for me to be more clear-cut than that, not knowing what other sources of material were available that could be added to what I had seen in relation to, for example, the application of the PACE Codes to investigators.
Mr Beer: So it could be that the most up to date versions of the CPIA Code or indeed the PACE Codes were readily available in that database. You don’t know one way or the other?
Duncan Atkinson: And that – I have seen very recently some examples of circulars that appeared to have been generated by or in conjunction with that database, that did – certainly from memory – include at least one occasion when the circular referred to an updated version of a particular PACE Code, I think code G, and so, on the face of that, there may be not only up-to-date versions of the Code available to investigators, but they were being told – if they were the ones who were receiving the circulars – which, again, I don’t know – may have been told that there was an up-to-date version.
It has to be said that the circular that I’m talking about just said there is a new version of Code G; it didn’t tell anyone anything more than that.
Mr Beer: Would you agree or disagree with the suggestion that it’s not enough to have up-to-date Codes of Practice on a database but, instead, the Post Office investigators and prosecutors needed to know from a policy what they had to access and how they should apply it in their circumstances?
Duncan Atkinson: It is a good thing, in my view, a good thing to have a database that has the up-to-date versions of applicable statutes, codes, guidelines, available, but that is not a substitute for it being clear to, for example, an investigator that these are the things they have to apply, how they have to apply them, when they have to apply them, and how they can be satisfied that they have applied them properly.
And so it’s a part of the picture. It is not, in my view, a substitute for there being a policy that says these are the criteria you’re meant to be applying in this situation by reference to Code C, and then they can understand which bits of Code C apply to them when, and they can check they’re up to date then by looking at the database informed by the policy, but not one without the other.
Mr Beer: What about the point that the Codes of Practice are generally drafted in a way that they make clear what’s required of an investigator or a prosecutor on their face, that they’re – because they’re written in that kind of language, there was no need for such codes to be more than referred to in the policies themselves; they needn’t be paraphrased or summarised or carried into effect in the policies? What do you say to that suggestion?
Duncan Atkinson: It’s certainly right that the aim of the codes, as drafted, is to make them as accessible as possible. The difficulty with that though is that the PACE Codes are primarily designed for use by police officers, by reference to the powers of police officers, which are different in important respects from the powers of persons who aren’t police officers and, therefore, as in fairness to the Post Office, recognised there were powers available to police officers, duties that flowed from those for police officers, that did not apply to them.
And so simply to provide someone with a code, however clearly written, parts of which apply to them and parts of which didn’t, parts of which applied as written, parts of which applied in a slightly different anyway to them, would not be enough. They needed to understand the difference and the difference came from policy being set out clearly for them against the background of training.
It’s the combination of the three that makes sure that someone, particularly someone who is not a police officer, knows how a police code applies to them.
Mr Beer: Thank you, Mr Atkinson.
Sir, it’s 3.00, I wonder if we could take now the afternoon break until 3.15?
Sir Wyn Williams: Yes, that’s fine, thank you.
Mr Beer: Thank you very much.
(2.58 pm)
(A short break)
(3.15 pm)
Mr Beer: Sir, good afternoon. Can you see and hear me?
Sir Wyn Williams: Yes, thank you.
Mr Beer: Thank you very much.
Mr Atkinson, can we pick up a few questions where I left off. Would you accept the idea that there was an inherent value to the simplicity of the Post Office policies that we’ve seen, with detail being contained in Acts of Parliament, codes of practice and other policy documents that were obtainable by investigators or prosecutors elsewhere?
Duncan Atkinson: No.
Mr Beer: Why is that?
Duncan Atkinson: For the reasons that we were discussing before the break. If the aim is to achieve correct and consistent application of the law, it is not enough to tell people where it is. You need to tell them how they are meant to apply it, and there are different ways of doing that: through training and making those sources of law available to them; but also by telling them what parts of, for example, a vast Act of Parliament they’re meant to be looking at and how it applies to them and when it applies to them, and simply name checking is not going to do that, in my view.
Mr Beer: Would you accept that the Police and Criminal Evidence Act, the CPIA, and the Codes of Practice issued under each of those Acts were freely available online for anyone to go and look up?
Duncan Atkinson: Yes.
Mr Beer: Is that sufficient?
Duncan Atkinson: No, and on my reading of the policies in relation to PACE, the Post Office clearly did not think it was sufficient because they develop their policies in relation to, for example, interviewing, so that by the end of the Inquiry’s period of particular concern, there was a raft of policies in relation to different contexts in which they might be interviewing different kinds of person about different things and how they were to do that.
So it was clearly recognised it was not enough to have a policy that says, “If you’re interviewing somebody, this is the Code you need to read, and it’s online”. They recognised that and, in my view, they were right to recognise that.
Mr Beer: Given that you accept that Post Office investigators received some training in respect of the police and Criminal Evidence Act and the CPIA that may have been relevant to their work, would you accept that they would, therefore, have known of the existence of the Acts, the codes and the guidelines online and, therefore, could have looked at them as and when required?
Duncan Atkinson: There is, in my view, a significant difference on what I have seen between the degree of training in relation to the Codes under the Police and Criminal Evidence Act, on the one hand, and the CPIA and the Codes under the CPIA, on the other. I saw very limited material in relation to the latter.
In relation to PACE, again, the training was – would clearly have been of value, having the material online would have been of value but, in my view, and as it seems to me was recognised ultimately, more was needed and, ultimately, more was given.
Mr Beer: Given, as you said today, that training materials would not necessarily reflect the up-to-date amendments to Codes and to guidance, wouldn’t you, therefore, accept that there is great sense in not including the detail of the guidance in any of the policies but, instead, to have the most up-to-date sources of law available in either a database or online?
Duncan Atkinson: The better approach, it would seem to me, would be that when a new version of the Code came out, you updated your policy so that the two continued to run together. Just as, for example, the Attorney General updates the Attorney General’s Guidelines in relation to disclosure when the CPIA Code changes, and just as the CPS has updated historically its disclosure manual, its Code for Crown Prosecutors and its other guidance, as the law has evolved, the law is never static, and policy needs to move with it, rather than be so bare in its detail that it doesn’t have to be.
Mr Beer: Thank you. Can we turn to a new topical, please, the CPIA and the CPIA Code of Practice.
Duncan Atkinson: Yes.
Mr Beer: This is paragraph 76 of your report on page 39.
Firstly, and in very general terms, can you explain to us what the CPIA is?
Duncan Atkinson: The Criminal Procedure and Investigations Act is an Act that seeks to do a variety of things, but the key part of it, for present purposes, is that it sought to set out in statutory form the process and the stage process that was necessary in relation to disclosure in criminal proceedings. So, going back to what we were talking about earlier, in addition to the service of the material that the prosecution was relying on as part of its case, what its duties were for the disclosure of wider material acquired during the investigation and how that process was to operate with the involvement at relevant stages of input from the defence.
And so the key sections are the early sections of the Act which set out that stage disclosure process and then Section 23, which you can see referred to at paragraph 77 of my report, which was and is the key section that required the Secretary of State to prepare a Code of Practice for how that process was to be undertaken and what the interaction between investigator and prosecutor should be to ensure that process did happen and happened fairly.
Mr Beer: Thank you. Is it right that some parts of the CPIA apply to proceedings commenced by the Post Office?
Duncan Atkinson: Yes.
Mr Beer: So that would include the disclosure obligations in Part 1 of the CPIA?
Duncan Atkinson: Yes.
Mr Beer: Other parts of the CPIA apply only directly to criminal investigations undertaken by the Police Service?
Duncan Atkinson: Yes, and that is clear, for example, because it refers to police officers in various sections, for that reason.
Mr Beer: I am going to look at a more direct reason in a moment, just to nail that down as to why those parts only applied directly to police officers. Then we’ll move on to how they apply indirectly to the Post Office. You set out for us, if we just scroll down, please, Section 23 which you said is of fundamental importance of the CPIA, and you can see that it says that:
“The Secretary of State shall prepare a code of practice containing provisions designed to secure –
“that where a criminal investigation is conducted …”
Then it continues.
You’ll see the words “where a criminal investigation is conducted” there, yes?
Duncan Atkinson: Yes.
Mr Beer: I just want to examine whether those words, “criminal investigation” are a term of art, a defined term. I think we have to look at section 22 of the CPIA to establish that and I think we’ll have to look at the Act to find that. That is RLIT0000079, it’s your tab C14. RLIT0000079. Perfect.
If we can go to page – I think it’s 15. Thank you. It’s an introductory section to Part II of the CPIA and, remember, I’d highlighted those words in 23(1)(a), a criminal investigation. 22 provides:
“For the purposes of this Part a criminal investigation is an investigation conducted by police officers with a view to it being ascertained”, et cetera.
Duncan Atkinson: Yes.
Mr Beer: So is that the first reason why the direct applicability of the Code issued under Section 23 is only in relation to criminal investigations being conducted by police officers?
Duncan Atkinson: Yes, although interestingly, as we will see, the Post Office disclosure policies in 2001 and then in 2010 refer to that definition of a criminal investigation for the purposes of the Post Office as well.
Mr Beer: Yes. Albeit that’s not in fact the statutory route –
Duncan Atkinson: No.
Mr Beer: – by which they were required to have regard to it?
Duncan Atkinson: No, but it showed their recognition of what that – what it was talking about.
Mr Beer: Thank you. If we go back to your report, please, on page 40 at paragraph 78. Page 40, please, paragraph 78. You say:
“[The] CPIA goes on to address matters that the Code may or may not address. The terms of the section make clear, in so doing, that the Code will only directly apply to the conduct of investigations by the police.”
Duncan Atkinson: Yes.
Mr Beer: You picked up the reference to the police or police officers in other parts of section 23. So that’s another reason making it clear –
Duncan Atkinson: Yes.
Mr Beer: – of the direct application?
You go on to say, if we go down to paragraph 80, that:
“The application of the code issued under section 23 … to the police is also made clear by the introduction to the Code itself.”
Then you cite it. It’s introduction in paragraph 1.1-2. It:
“… applies in respect of criminal investigations conducted by police officers which begin on or after the day on which this Code comes into effect.”
But then this:
“Persons other than police officers who are charged with the duty of conducting an investigation as defined in the Act are to have regard to the relevant provisions of the Code, and should take these into account in applying their own operating procedures. This code does not apply to persons who are not charged with the duty of conducting an investigation as defined in the Act.”
You say:
“This text appeared in the original 1997 version of the Code and has been unaltered ever since.”
Duncan Atkinson: Yes.
Mr Beer: I think we need to look at Section 69 – sorry Section 67(9) of the CPIA – can we first look at Section 76. That’s paragraph 81.
Duncan Atkinson: Yes.
Mr Beer: If we just look, rather than going back to the Act, the terms of the section, Section 26(1):
“A person other than a police officer who is charged with a duty of conducting investigation with a view to it being ascertained – whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it, shall in discharging that duty have regard to any relevant provision of a code which would apply if the investigation were conducted by police officers.”
So that’s the application of the Code on a ‘have regard’ basis to non-police officers where they are charged with a duty of conducting relevant investigations.
Duncan Atkinson: Yes, and so it’s that same wording as we saw in relation to section 67 of the Police and Criminal Evidence Act, the same “have regard to”.
Mr Beer: So the same device is used?
Duncan Atkinson: Yes.
Mr Beer: Similarly, in Section 26(2), the breach not rendering such a person reliable to criminal civil proceedings. The same but admissibility under Section 26(3) the same too?
Duncan Atkinson: Yes.
Mr Beer: So that’s the provision, is this right, which you say meant that the Code – I’m going to use the word “applied” to the Post Office –
Duncan Atkinson: Yes.
Mr Beer: – and it’s a “have regard to” duty?
Duncan Atkinson: Yes.
Mr Beer: Was there a different and more circuitous route to this too? Section 67(9) of PACE required investigators to have regard to note 11(b) of Code C?
Duncan Atkinson: Yes.
Mr Beer: Note 11(b) of Code C says that:
“The CPIA Code of Practice states that, in conducting an investigation the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable will depend on the particular circumstances. Interviewers should keep this in mind when deciding what questions to ask in an interview.”
Duncan Atkinson: Yes.
Mr Beer: So summarising there, that’s a more circuitous route of the application to the Post Office of the reasonable lines of inquiry duty at the point of interview?
Duncan Atkinson: Yes.
Mr Beer: Can we turn, please, to page 42 of your report. Where you address the issue of the recognition of the CPIA and its duties in Post Office policies. In this paragraph and up to paragraph 92 of your report, on page 45, you identify the presence of bare references to the CPIA and its Code of Practice in Post Office policies; is that right?
Duncan Atkinson: Yes.
Mr Beer: You identify the absence of any reference at all to the duty to pursue reasonable lines of inquiry?
Duncan Atkinson: I think until 2010.
Mr Beer: You identify the absence of guidance on what the duty means in practice and how it is to be achieved?
Duncan Atkinson: Yes.
Mr Beer: You identify the limited reference in training material to the fact of the CPIA and its Code?
Duncan Atkinson: Yes, and in that respect, there was a contrast between the material I saw in relation to PACE and the material I saw in relation to the CPIA. There was a lot more on PACE than there was on the CPIA.
Mr Beer: Was a lot of that on PACE about the treatment of a suspect in interview?
Duncan Atkinson: Yes.
Mr Beer: Was that the overwhelming majority?
Duncan Atkinson: It was the major topic, yes.
Mr Beer: How to interview a suspect?
Duncan Atkinson: Yes, and in fairness, the other Codes, for example, as to arrests and searches, the Post Office recognised that, in that kind of area there was a lot of overlap between what actually they could or couldn’t do and what the police therefore had to do in conjunction with them, and so that’s – whereas interviews very much were something they were doing themselves so that did make sense.
Mr Beer: Have you any views to offer as to the adequacy or otherwise of the treatment of the CPIA and the Code in these policies?
Duncan Atkinson: So the two disclosure policies that were produced, the one in 2001 and the one in 2010, did give, or particularly the 2010, did give an overview structure of what the CPIA and its Code required of an investigator and a prosecutor. So there was that material but the absence from both of any detailed analysis of how other sources of information in relation to disclosure, such as the Attorney General’s Guidelines was a concern, and we’ll come back, I know, to that – the absence of a reference until 2010 of the requirement that an investigation pursue all reasonable lines of inquiry, including those leading away from the suspect was in my view a fundamental omission.
It is an important and, in some respects, counterintuitive requirement of a fair and proper investigation, that you don’t just look for the evidence to prove your case; you look for the evidence that shows your case is wrong and/or that will afford a defendant a fair exploration of your case. And, for that not to be mentioned for the majority of the Inquiry’s relevant period is a significant failure, in my view.
Mr Beer: So the absence for a decade of a reference to the core duty was, have I understood it correctly, a particularly striking failure?
Duncan Atkinson: Yes, and it’s telling, in my view, that where one looks at section 23 and what it was the Secretary of State was required to prepare a Code to address, the first thing that it was meant to address was reasonable steps being taken for the purposes of the investigation and all reasonable lines of inquiry being pursued.
So it was identified from the outset, as being a fundamentally important thing and so for that to be a feature of the Act, a feature of the Code, but not a feature of the policy that was seeking to apply the Code to the Post Office, is a real concern.
Mr Beer: If we just turn to page 45, please, and look at paragraph 92. It’s the last four lines. You say:
“If it is proper to argue that the limitations of PACE related policies had to be balanced by the extent of PACE related training, which is not an argument with which I agree for reasons developed above, then the same argument cannot be made in relation to the CPIA.”
Duncan Atkinson: Yes.
Mr Beer: Can you just explain what you mean by that, please?
Duncan Atkinson: Because, on the material I saw, there was so little training material in relation to the CPIA and its Code. If it were to be argued, well what we did was we had a policy that identified that the Act existed that it Code existed and that people needed to know that they existed, we then provided them with training so they understood how they applied to them, and we had them online up to date. That was an argument that you could make, but with the problems that I’ve identified in relation to PACE. But you can’t make on what I have seen in relation to the CPIA because the training just wasn’t there on what I saw. And, again, I haven’t seen the database and there is that qualification.
Mr Beer: Thank you. Can we turn, please, to paragraph 106 of your report on page 50. It’s about halfway down. Thank you. Under the cross-heading “The application of the CPIA Code by the Post Office”. You tell us in 106 that:
“It is of not that the Post Office ‘Disclosure of Unused Material – Criminal Procedure and Investigations Act 1996 Code of Practice’ policy, issued in May 2001, defines a criminal investigation in line with the CPIA definition.”
Is that the point you were making just a few minutes ago?
Duncan Atkinson: Yes.
Mr Beer: “It says at paragraph 3.1, it is an investigation ‘with a view to ascertaining whether a person should be charged with a criminal offence or if charged with an offence is guilty of it’.”
The same wording appeared in later policies of 2009, 2011, 2012, 2013, and also appeared in the policy on “Disclosure of Unused Material” in July 2010.
So is the point that you’re making in 106, have I got it right, that these policies all define a Post Office criminal investigation in a way that triggers the duties in the way that we’ve seen in Section 26 of the CPIA.
Duncan Atkinson: Yes.
Mr Beer: Good.
Paragraph 107, please. You tell us:
“The ‘Disclosure of Unused Material – Criminal Procedure and Investigations Act 1996 Codes of Practice’ policy was issued in May 2001. It addresses the roles of the investigator and disclosure officer, without specific cross-reference to the CPIA Code. It is 3 pages long …
“The essential points in terms of roles are …”
Then you set out the role, over the page, of an investigator being someone involved in the conduct of a criminal investigation who has a duty in particular to record and retain information:
“They share a duty with the disclosure officer to ‘be fair and objective and must work together with prosecutors to ensure that disclosure obligations are met’.
“The disclosure officer is the person ‘responsible for examining material retained during an investigation, revealing material to Legal Services during the investigation and … certifying to Legal Services that he has done this’. In contrast, arguably, to the CPIA Code, the policy proceeds on the basis that the investigator and disclosure officer will ‘normally’ be the same person.”
So in paragraph 107, more generally, what are the points that you were making as to the existence of satisfactory provisions and unsatisfactory provisions?
Duncan Atkinson: So the – this 2001 policy had the basic structure and the – with one obvious exception: that – the key areas of the CPIA in relation to disclosure and the Code in relation to disclosure set out. And so, for example, both the Act and the Code focus very much on what I’ve characterised as the three Rs, the duties to record, retain and review (sic) information, and it correctly set out those matters. It set out what the roles were in relation to those.
It did so in a fairly bare-bones way but, in relation to those areas it covered, it would allow for a degree of interaction in a useful way between someone reading the policy and someone reading the code that underpinned the policy. It gave them steers on most but unfortunately not all the key areas that applied to them.
Mr Beer: Just on the three Rs, is the third R “review” or “reveal”?
Duncan Atkinson: It’s “reveal”. You’re quite right, yes.
Mr Beer: Any other issues arising from paragraph 107?
Duncan Atkinson: The other area in relation to that is that the Code and the Act identify as separate roles that of investigator and disclosure officer, and they are identified as separate roles because they are separates jobs with separate responsibilities. It’s recognised in the Codes that those can be undertaken by the same person and I am aware that, particularly in smaller police investigations, they are undertaken by the same person, but there was a difference which I therefore highlighted, that the Post Office policy identified that they would normally be undertaken by the same person, rather than that they could be undertaken by the same person.
Mr Beer: Thank you. Paragraph 108, please. This is another in the line of Post Office policies that fails, is this right, to identify what needs to be done?
Duncan Atkinson: It again identified the roles, it again identified that they would normally be undertaken by the same person but without any of the surrounding detail as to what that actually meant and, if the same person is to undertake both roles, there’s perhaps a greater need for exactly what that meant and how it was to be done, to be spelt out.
Mr Beer: “The Consignia Investigation Procedure of January 2001 [you tell us in paragraph 109], makes limited references to the CPIA and the Codes issued thereunder. It refers to circumstances in which records relating to surveillance equipment should be retained (see paragraph 3.2), and the retention of notebooks in compliance with CPIA retention periods (see paragraph 3.3). It does not seek explicitly to mesh with the ‘Disclosure of Unused Material – Criminal Procedure and Investigations Act 1996 Codes of Practice’ policy …”
You say:
“It is of note that the training materials relating to notebooks that appears to have been in use at this period of time (by reference to its copyright date of 2000) do not refer to the duty of retention, the CPIA, or [even] this 2001 policy document.”
Duncan Atkinson: Yes, so really the point I make there is the lack of cross-reference and someone charged with an investigative duty reading the investigative procedure is not being told in that procedure that they have also to apply a separate policy and, which has wider ambit of implications for them as an investigator than the investigation procedure alone would have told them.
Mr Beer: If we can read through paragraph 110 together, please. You, tell us that:
“The Post Office Limited Financial Investigation Policy, in its May 2010 version made no specific reference to the CPIA or the Code issued thereunder, although it did identify as an aim (see paragraph 3.1) adherence to UK and EU legislation.”
Is that sufficient to say we must adhere to UK and EU legislation in a policy of this kind?
Duncan Atkinson: It’s a commendable aim but there’s an awful lot of it and it might have helped more if they’d specified which bits they had in mind for adherence in this context.
Mr Beer: You continue:
“The revision to this policy in February 2011 added a procedures and standards section which identified adherence with the CPIA. It was silent as to the manner in which this was to be achieved, save for adding that financial investigators should ‘ensure that all investigations are recorded correctly and in a timely manner’. Similarly, the casework management policy at 3.3 enjoined ‘team leaders should ensure all avenues of enquiry have been exhausted’, but it does not spell out that this involves lines of inquiry leading away from the suspect as to well as to implicate them.”
Duncan Atkinson: Yes.
Mr Beer: I think you’ve, in explaining the policy, set out the problems with them, as you’ve gone along there; is that right?
Duncan Atkinson: Yes.
Mr Beer: Is there anything you want to add to –
Duncan Atkinson: No, thank you.
Mr Beer: – 110?
At paragraph 111, you tell us that:
“There are some acknowledgements of the 3Rs [you’ve just explained those to us] to be found in the Post Office policies that [you] have considered, albeit they are limited and far from comprehensive. In the Investigation Procedures [of January 2001] it states (at paragraph 3.2) ‘local records may be required as evidence or unused material. If so, they must be kept in connection with the Post Office Codes of Practice under the CPIA’ and in relation to notebooks (at paragraph 3.3) ‘where used in evidence, notebooks must be retained in compliance with the retention periods set out in the Post Office Code of Practice under the CPIA’.”
You say:
“I have not seen the Code to which this refers, but the Post Office [Code of] Conduct of Criminal Investigations Policy [of] August 2013, states in relation to the duty to record … ‘it is important to document every action, decision and reason for decisions being made during the course of [an] investigation’. That policy also noted … that ‘all activities undertaken during an investigation should be recorded on the event log’.”
So here you’re addressing the extent to which Post Office policies over the years acknowledged or even referred to the three Rs.
Duncan Atkinson: Yes.
Mr Beer: You say they’re limited and far from comprehensive. Again, could you help us by calibrating the level of concern, if any, that you have about this?
Duncan Atkinson: Well, it – my level of concern may rather depend on what the Post Office Code of Practice under the CPIA was. If it was the disclosure of unused material, Criminal Procedure and Investigations Act 1996 Codes of Practice that was issued in May 2001, then that would, by the cross-reference, ensure that someone approaching their duty to record the various matters set out here would also have understood how that meshed with the CPIA. If it’s not that, then I haven’t seen it, it’s certainly not got the same name as the document I’ve just referred to, which may not help.
Mr Beer: No.
Duncan Atkinson: But so my level of concern would very much depend on whether they’re talking about a cross-reference to the CPIA procedure or not. If they are, then the position is perhaps less concerning than it would be otherwise. But, really, what I’ve done here is identify occasions when the duty to record is given in specific examples, giving the specific examples is a good thing but helping people to understand why they’re meant to be doing it and what they’re going to do with it later, in terms of disclosure and revelation to the prosecutor, would make it a more effective process.
Mr Beer: If it assists, I don’t think we still have a document that’s entitled “Post Office Code of Practice under the CPIA”.
Moving on to paragraph 112, you tell us that:
“That 2013 policy …”
That’s the Post Office Conduct of Criminal Investigations Policy of August 2013; is that right?
Duncan Atkinson: Yes.
Mr Beer: “… did also address the supervision and conduct of a criminal investigation. Under [a heading it said] ‘the decided course of action needs to be proportionate and necessary. It may, if the circumstances warrant be more appropriate to consider other actions that could be done and don’t necessarily lead to a criminal investigation … proper consistent supervision is vital to ensure that cases are thoroughly investigated and submitted in a timely manner. Team leaders with the support of financial investigators need to quality assure the investigation [to make] sure prior to initial submission that all available evidence has been gathered’.”
Then it continued. If we scroll down to 113, please, it continued:
“… ‘it is important to consider the aims, objectives and scope of the investigation. The Security Manager is required to “prepare an investigation plan which will outline the terms of reference in the way the investigation will be conducted”. It … made reference … to the standard of proof [which] was necessary in criminal investigations including those which involved material from the Horizon System. It stated ‘The security manager has been tasked to prove or dispel the allegation. In criminal cases where the burden of proof is beyond all reasonable doubt, it is necessary to draw on all available evidence which is likely to substantiate the allegation. In cases concerning the Horizon System, it is important to establish of the level of training the suspect received, when this was received and action the subject took to remedy any identified faults. A key point to cover template has been produced to ensure that security managers establish these facts during the interview process …’ Sources of evidence to be collated were then identified.”
You make a number of points on this even August 2013 policy, right at the end of the –
Duncan Atkinson: Yes.
Mr Beer: – relevant period, in your paragraph 114. You tell us that:
“There was [some] recognition … looking at material that led away from the suspect …”
Duncan Atkinson: Yes.
Mr Beer: Is that the line, “It may, if the circumstances warrant, be more appropriate to consider other actions that could be done and don’t necessarily lead to a criminal investigation”?
Duncan Atkinson: It’s also the reference to the Security Manager being tasked to prove or dispel the allegations, so looking both at that which helps establish a case and that which undermines it.
Mr Beer: But you say, that was only a passing observation –
Duncan Atkinson: Yes.
Mr Beer: – it was “without explanation as to the implications”. What do you mean, “without explanation to the implications”?
Duncan Atkinson: It was just those words: that the Security Manager has been tasked to prove or dispel the allegation. It would, in my view, have made that clearer, if they were referred to the words of the CPIA Code test, namely that they should pursue all reasonable lines of inquiry that lead towards or away from the suspect – or the wording of the CPIA, in that respect – so it is clearer what that involves them doing.
Mr Beer: You say that you’re going to consider paragraph 5.5.9 “in a moment”, which we will, but you say:
“… the focus [of] 5.5.7 was on the strengthening of the case against a suspect, rather than identifying whether he might not be correctly suspected.”
Duncan Atkinson: Yes, so having said “prove or dispel the allegation”. It then goes on to talk about all available evidence, which is necessary to substantiate the allegation.
Mr Beer: So giving with one hand but taking away with the other?
Duncan Atkinson: Yes.
Mr Beer: Then when it mentions Horizon, is it right that the policy said that in cases concerning Horizon, one must refocus one’s attention on the training given to the suspect –
Duncan Atkinson: Yes.
Mr Beer: – and that what he, the suspect, did to remedy a fault?
Duncan Atkinson: Yes.
Mr Beer: You tell us in (b) that:
“… there was no reference to the consideration of, or … investigation of or disclosure of, anything that might suggest a failure in the operation of the system, as opposed to failure by the suspect …”
Duncan Atkinson: Yes, so it was focused on the operator, not the system that they were seeking to operate.
Mr Beer: Did that remain the case in the 2014 issue?
Duncan Atkinson: Yes.
Mr Beer: Did that remain the case in the 2018 edition?
Duncan Atkinson: Yes.
Mr Beer: Albeit that I think you tell us that Horizon was identified as a specific interview topic?
Duncan Atkinson: Yes.
Mr Beer: So did you have any concerns or observations on this, the specific mention of what’s called a Horizon-related investigation or cases concerning the Horizon System, but focusing attention back on the suspect?
Duncan Atkinson: The potential concern there was that, in a case where the evidence was Horizon dependent, the focus would still be on whether the person operating the system had had the training to use it with a view to establishing that they therefore should have been able to operate it correctly, rather than any consideration of whether, despite their training, there was an issue that was beyond their control in relation to the reliability of the evidence from the system.
So it rather was borne out in some of the material I saw for the purposes of Volume 2 that there was questioning in interview about training, there was the obtaining of evidence in relation to training in relation to Horizon, with a view to establishing that they should have been able to work the system properly with the then conclusion, potentially being drawn, that therefore it couldn’t have been a user error; it must have been a deliberate action by the user that something had gone wrong, but without considering the other possibility that was always potentially there: namely, that there was a problem with the system, not them.
Mr Beer: Are you aware of any high-profile cases concerning prosecutions by the CPS, where it transpires that information contained on the Police National Computer, the PNC, had been used in support of prosecutions but was incorrect?
Duncan Atkinson: No. That’s not to say that there weren’t any, but I’m not aware of them.
Mr Beer: Thank you.
Duncan Atkinson: There certainly weren’t any cases prosecuted by me.
Mr Beer: Yes, very good.
Can we turn to paragraph 115, please, which is on page 54 –
Duncan Atkinson: Yes, thank you.
Mr Beer: – which you promised to come back to in a moment, earlier in your report. You say that 5.5.9, this is again still the August 2013 policy states:
“… ‘The security manager must not overlook the fact that a fair investigation is there to establish the truth as well as substantiate the allegation, so it is important that any evidence uncovered that may support the subject’s position is also recovered. It is important to document every action, decision and reason for decisions being made during the course of the investigation’.”
You say that paragraph reflects paragraph 3.4 of the CPIA Code and “the need to consider evidence that exonerates as well as implicates”. You say:
“It is of note that it was in what appears to be the 2018 reviewed and amended version of this policy that the need for schedules of unused material was addressed.”
Duncan Atkinson: Yes. And so the point I’m making is that, whilst I had identified limitations to the references to the duty to pursue all reasonable lines of inquiry, including those leading away from the suspect at paragraph 5.5.7 of this policy, that that balance was moved back towards a proper appreciation of what that duty was by paragraph 5.5.9. So someone reading the two would be in a better position to understand what was required of them than someone just reading the first of those.
Mr Beer: You say:
“Similarly [in paragraph 116], the July 2010 revision of the Royal Mail ‘Disclosure of Unused Material’ policy did expressly state, under the heading of duties of investigators and disclosure officers, at para 3.2:
“‘Investigators must pursue all reasonable lines of inquiry, whether these point towards or away from the suspect.’”
Duncan Atkinson: Yes.
Mr Beer: Is that the anchoring of the point you’ve already made a couple of times already, it’s not until July 2010 –
Duncan Atkinson: Yes.
Mr Beer: – that we actually see the core duty reflected –
Duncan Atkinson: Yes.
Mr Beer: – in the documents you’ve seen?
Duncan Atkinson: Yes, absolutely.
Mr Beer: “‘What is reasonable in each case will depend on the particular circumstances. For example where material is held on a computer, it is a matter for the Investigator to decide which material on the computer it is reasonable to enquire into and in what manner’. That policy replicates the definitions of material and relevance set out in the Code … and then addresses the 3Rs … retention, record and revelation.”
Duncan Atkinson: Yes.
Mr Beer: Just in terms of the reference to material being held on a computer, it’s a matter for the investigator to decide what material on that computer is reasonable to enquire into and in what manner. Have you any observation to make in relation to the quality and extent of that guidance, in cases which are founded upon data produced by a computer?
Duncan Atkinson: What I think that sentence is intended to replicate, because the 2010 policy was designed to give effect to the 2005 Attorney General’s Guidelines, amongst other things, was the recognition that disclosure obligations in relation to a – the content of a computer did require an assessment of what was proportionate to identify, in interrogating the computer and how you were going to do that and what involvement there would be from the defence, which was something that was built on by subsequent Attorney General’s Guidelines in 2011 and 2013.
So I think that’s the context there for that that, rather than it having any reference to the assessment of the reliability of computer data as a potential line of enquiry.
Mr Beer: Thank you. Moving on to paragraph 117, you say that:
“The Post Office Prosecution Policy England and Wales, dated November 2013 … addressed disclosure in a more detailed manner more akin to comparable CPS documents.”
So it is, by this time, the end of the period we’re looking at, that one sees some convergence; is that right?
Duncan Atkinson: Yes.
Mr Beer: “It states (at paragraph 6.2): ‘Post Office Limited will take all reasonable steps to identify and record material which may meet the test for disclosure [making specific reference to CPIA section 3 in a footnote] … in doing so the Post Office will operate a continuous process designing to identify any material whether the subject of a criminal investigation or not which may relate to the integrity and reliability of Post Office Limited’s IT and data systems’.”
Is that the first reference you’ve seen in policies which recognises the need to identify material that concerns the integrity and reliability of the Post Office’s data systems?
Duncan Atkinson: Yes, certainly from my recollection, I think that’s right.
Mr Beer: That’s November 2013?
Duncan Atkinson: Yes.
Mr Beer: “In keeping with this more detailed consideration of disclosure in 2013, there is evidence of training that specifically addressed disclosure in November 2012, which included an ‘introduction’ to the ‘Principles of Disclosure’, the role of the disclosure officer, the types of material that fell to be considered and the schedules that were required to address the disclosure exercise. Thereafter, a set of training slides for a Presentation on Principles of Disclosure were prepared in February 2015 in similar terms.”
However, you point out:
“Neither could be described as comprehensive or sufficient in [themselves] to ensure CPIA compliance.”
Duncan Atkinson: Yes.
Mr Beer: Why do you say that?
Duncan Atkinson: As with other training material that I’ve seen, they are clearly useful and they clearly will help but it wouldn’t be enough to provide someone with a set of training slides. Going forward they would need to have a more comprehensive policy of the kind that the 2013 policy in many respects was, and so I – the point I’m making is the training in and of itself was not enough. You needed the policy as well.
That was a position that was achieved in a much more thorough and satisfactory way from 2013 onwards and in stark contrast to the position before that.
Mr Beer: Standing back, what are your views on the adequacy or otherwise of this suite of policies, insofar as the CPIA and the Code issued under it are concerned, from an investigator’s perspective?
Duncan Atkinson: The policy from 2001 onwards did give a correct and, in many respects, helpful overview of what was required and who it was requiring to do what, but the omission of the duty in relation to all reasonable lines of inquiry was an important omission. The lack of reference to the types of lines of inquiry that ought to be considered, like that of the integrity and reliability of data systems, which finally found its place in 2013, again, was an omission.
So they were – the earlier policy documents were helpful, insofar as they went, but they did not, in my view, equip investigators properly to appreciate what their duties as investigators were in the fundamental respect of looking for material that exonerated as well as implicated a suspect.
Mr Beer: On the core duty, the reasonable lines of inquiry duty, given the centrality of it in Section 23(1), do you think it can be said that because it was so obvious, from Section 23(1), that it follows that investigators must have known about it?
Duncan Atkinson: That would – I suppose the process would then be that they received their training – although I’ve seen very limited material in relation to what that training would have covered or not, and so whether it would have covered that fundamental duty or not – they would have received the 2001 policy that made no reference to it, and would have not led them to consider that aspect of the Code as necessarily being one that applied to them, and so it would have required them to then look beyond the policy, identify there was something in the Code that was not addressed in the policy, identify that, despite that, it applied to them, and to have applied it – rather than to have considered that the policy told them which bits of the CPIA and its Code applied to them, and just look at those.
Mr Beer: Was there anything in any of the policy documents that you have read that suggested to an investigator what they should do if a suspect raised the operation of the Horizon System as a possible explanation for losses during their interview under caution?
Duncan Atkinson: I think the short answer to that question is no. They could have understood from the policy that they were required to disclose material that undermined the prosecution case and, therefore, if they had ready access to that, to material that did that, and supported the defence case in that respect, then they ought to have disclosed it. Given the lack of more than the barest of reference in the 2001 policy to the Attorney General’s Guideline, they may not have appreciated, just by reference to that, that they were under a duty to address that third-party material in relation to that topic. And so there’s an outside chance that they might have realised that they needed to pursue that, if it was raised by someone in interview, but equally, a chance that they wouldn’t.
Mr Beer: If they had failed to do so, would you consider that the prosecutor – and by that I mean a lawyer reviewing whether there was sufficient evidence to charge or not – or a lawyer in fact having conduct of a prosecution post-charge, to have advised that lines of inquiry should be pursued if a suspect had raised the operation of the Horizon System as being an explanation for shortfalls shown in their accounts?
Duncan Atkinson: So a prosecutor reading and understanding the CPIA Code and the Code for Crown Prosecutors in each of the various iterations of both of those would have understood, or should have understood, that they were under an obligation to consider whether there were lines of inquiry that ought to be pursued, that the content of a suspect’s interview would highlight such lines of inquiry. And so applying those, they should have, where it was raised in interview, raised the question as to whether – and that had been investigated or not, and if not, that it should be.
But that would require them to be looking at those Codes, rather than at any Post Office policy that specifically was telling them that that’s what they ought to do.
Mr Beer: Can we turn to paragraph 141 of your report, please, which is on page 67.
Duncan Atkinson: Thank you.
Mr Beer: I’m taking things slightly out of order here because we’re going to come back to charging decisions tomorrow. It’s just a point on the contents of the October 2018 iteration –
Duncan Atkinson: Yes.
Mr Beer: – of the Code for Crown Prosecutors. In the third sentence or third line you say:
“The Full Code Test should be applied (paragraph 4.3): ‘when all outstanding reasonable lines of inquiry have been pursued; or prior to the investigation being completed, if the prosecutor is satisfied that any further evidence or material is unlikely to affect the application of the Full Code Test, whether in favour of or against a prosecution’.”
Is it right that those qualifications there, the introduction of the cross-reference to “all outstanding reasonable lines of inquiry have been pursued” appeared for the first time in the 2018 edition –
Duncan Atkinson: Yes.
Mr Beer: – of the Code of Practice?
Duncan Atkinson: Yes.
Mr Beer: Similarly, if we look at paragraph 146 of your report, which is at the foot of page 68, you cite paragraph 4.8 of the Code for Crown Prosecutors, and you say:
“It follows that the reliability of the evidence is identified as being a central consideration … together with the question of ‘whether there is any material that may affect the assessment of the sufficiency of evidence, including examined and unexamined material in the possession of the police, and material that may be obtained through further reasonable lines of inquiry’.”
Is that an addition?
Duncan Atkinson: That wording is, yes, in 2018. It’s right to say that the requirement for the reviewing lawyer to provide advice as to lines of inquiry and the need for further evidence was always, and had been, for certainly throughout the Inquiry’s period, had always been an aspect of the Code. So that wording was new in 2018. The role of a prosecutor in identifying evidential deficiencies, lines of inquiry that should be pursued, was not new in 2018 and certainly had appeared in the versions of the Code that I have identified from 2004 onwards.
Mr Beer: Thank you. Then lastly, before we break, if we just turn to paragraph 151 on page 70.
You cite paragraph 3.6 of the Code:
“… ‘Review is a continuing process and prosecutors must take account of any change in circumstances that occurs as the case develops. This includes what becomes known of the defence case, any further reasonable lines of inquiry that should be pursued, and receipt of any unused material that may undermine the prosecution case or assist the defence case, to the extent that charges should be altered or discontinued or the prosecution should not proceed’.”
Is that also a 2018 addition?
Duncan Atkinson: Yes and no, is the answer to that. “The continuing process of review and the need to take account of changes in circumstances as the case develops” is a wording that did appear in the earlier versions of the Code. The further specific reference to the defence case, and what that gave rise to, that was the new bit.
Mr Beer: Thank you very much.
Sir, if it’s convenient to you, it’s convenient to me, that’s a break. We move next to charging decisions.
Sir Wyn Williams: Yes, that’s fine, Mr Beer.
It’s been a long and interesting, from my point of view, day. Thank you very much, Mr Atkinson, for the clarity of your answers and the economy of words used.
I take it you won’t want to be told not to speak to anyone about your evidence, since I can’t imagine you will want to. But if, by chance, there is any reason why you should speak to anyone, then let Mr Beer know, who will consult with his colleagues about what would be appropriate for you to do, all right?
The Witness: Yes. Thank you very much, sir.
Mr Beer: So it’s 10.00 tomorrow, please.
Sir Wyn Williams: Fine. Thank you.
(4.17 pm)
(The hearing adjourned until 10.00 am the following day)