6 October 2023 – Duncan Atkinson
Hide video Show video
(10.00 am)
(Proceedings delayed)
(10.10 am)
Duncan Atkinson
RICHARD DUNCAN ATKINSON KC (continued).
Questioned by Mr Beer (continued)
Mr Beer: Good morning, sir, can you see and hear me?
Sir Wyn Williams: Yes, I can, thank you.
Mr Beer: Apologies for the delayed start, down to me entirely and a problem with my computer.
Sir Wyn Williams: Well, I’m not entirely surprised that occasionally there can be problems with computers!
Mr Beer: Yes. The problem was identified very quickly and remedied.
Sir Wyn Williams: Thank you.
Mr Beer: Sir, can we turn to charging decisions.
We were in your report, Mr Atkinson – good morning – at page 55.
Duncan Atkinson: Yes.
Mr Beer: So that’s EXPG0000002, and page 55, please. Thank you.
From this paragraph, paragraph 118 onwards, right up to paragraph 132 of your report, you consider the charging decision process and the charging decision process at the Post Office, as reflected in policy documents.
Duncan Atkinson: Yes.
Mr Beer: You essentially address two questions, would this be right – and I’m drawing this from the document – rather than you expressly stating it, was the structure of the charging decision-making process sufficiently well defined in the policy so as to ensure consistency, rigour and fairness, according to the law?
Duncan Atkinson: Yes.
Mr Beer: That would be one question.
Duncan Atkinson: Absolutely.
Mr Beer: Secondly, did the structure provide for sufficient oversight at a senior and/or independent level?
Duncan Atkinson: Yes.
Mr Beer: Thank you. Before we get to the answers to those questions, can I briefly address, if I may, the comparators and the sources of material that you identify. Firstly, can we go to paragraph 128 of your report, which is on page 59. You address – if we just get the heading there, so we can see what we’re looking at, just scroll up a tiny bit please, thank you – “The Director’s Guidance on Charging”.
Between this paragraph and 131 you address and cite extensively from the Director’s – that’s the Director of Public Prosecutions – Guidance on Charging. Can you help us, when was the Director’s Guidance on Charging first issued?
Duncan Atkinson: I haven’t been able to identify a first version but the requirement that the director should introduce such guidance was brought into the Police and Criminal Evidence Act by the Criminal Justice Act of 2003, so it would have been shortly after that.
Mr Beer: I’ve been able to track down a 2nd Edition dated 2005, so that would sound about right.
Duncan Atkinson: Yes.
Mr Beer: So after 2003 –
Duncan Atkinson: Yes.
Mr Beer: – but certainly before 2005, because we were on a 2nd Edition?
Duncan Atkinson: Yes, and just to explain, the Police and Criminal Evidence Act, as originally enacted, in the main put the decision as to charge on the part of a Custody Officer at a police station. Those was then an increasing move away from the decision being taken by the police and more taken by the CPS and that’s what the change in the Criminal Justice Act 2003 was designed to achieve.
Mr Beer: Yes, and I think there was a Section 37A into PACE –
Duncan Atkinson: Yes.
Mr Beer: – which introduced a requirement to issue guidance?
Duncan Atkinson: Yes.
Mr Beer: So the Guidance has been in existence for some but not all of the relevant period that we’re looking at?
Duncan Atkinson: Yes.
Mr Beer: Can you tell us in summary what is the Director’s Guidance on Charging?
Duncan Atkinson: What it seeks to do is to make clear the process by which the police should carry out – once they’ve carried out an investigation, then seek advice, either during the course of that investigation or certainly before a charging decision is reached from the Crown Prosecution Service, the duty on the prosecutor to assess that investigation, and then to apply the Code for Crown Prosecutors to it.
So it sets out the process and underlines the independence of the decision to charge from the decisions made during the course of an investigation.
Mr Beer: Thank you. Would you agree that it’s a recognition that even the Code for Crown Prosecutors does not provide every insistence as to those who must make decisions about charging a person with a criminal offence and that more assistance was needed?
Duncan Atkinson: Yes.
Mr Beer: In any event, we – can we take what you say about the Director’s Guidance from your paragraph 132, which is on page 62, at the foot of the page. You tell us:
“In summary, therefore, in cases involving the police and CPS as the investigator and the prosecutor, the structure of responsibility is clear. That is that in all but the least complex or serious of cases, the decision to charge is a decision independent of the investigator, and by reference to a clearly defined two stage test taken by reference to clearly defined material. The structure also makes clear where the final decision lies.”
Duncan Atkinson: Yes.
Mr Beer: You’ll appreciate that I’ve skipped a lot of material. I’ve skipped the material that you have helpfully included in your report about the development of the move away from charge within a police station by a Custody Sergeant, the increasing role of the Crown Prosecution Service in either making decisions on charge, advising on charge and the division of responsibility as it now is?
Duncan Atkinson: Yes.
Mr Beer: So that’s the Director’s Guidance.
Next, in paragraphs 133 – so over the page, please – to 154, you address the Code for Crown Prosecutors. Again, the material is quite dense here. May I summarise it and see whether you agree with my summary of what you said. Firstly, the Code has a statutory basis, see Section 10 of the POA 1985?
Duncan Atkinson: Yes.
Mr Beer: Secondly, the Code does not apply directly by reason of Section 10 to those undertaking prosecutions outside of the CPS?
Duncan Atkinson: No, that’s right.
Mr Beer: But, thirdly, a range of organisations and agencies have decided to bind themselves in their decision making, doing so by reference to the Code, including the DWP, the Environment Agency and the Health and Safety Executive?
Duncan Atkinson: Yes.
Mr Beer: Fourthly, the Full Code Test, which is what’s relevant for our present purposes, involves two stages: firstly, an evidential stage; and then, secondly, consideration of whether the prosecution is in the public interest?
Duncan Atkinson: Yes.
Mr Beer: Ordinarily, such tests are to be approached in that order: evidential stage first; public interest, second?
Duncan Atkinson: Yes.
Mr Beer: Thank you. Can we turn, then, to page 68 and paragraph 145. I’m going to slow down and deal with this in slightly more detail.
You tell us here that:
“At the evidential stage, the prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. Consideration must be given to what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. There is a realistic prospect of conviction if ‘an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged’.”
Then you set out the questions that a prosecutor should consider in answering this question and you say that they are “identified as”. Is that identified in the 2018, 8th Edition of the Code.
Duncan Atkinson: Yes, and equally in the earlier editions that I’ve been able to identify.
Mr Beer: We’re going to look at those very briefly in a moment because I think the number and nature of pointers changed over time, I’m not sure relevantly, but I just want to look back at the earlier iterations.
In any event, in this edition of the Code, the questions identified:
“Can the evidence be used in court?
“Is the evidence reliable?
“Is the evidence credible?
“Is there any other material that might affect sufficiency of evidence?”
Can we look at the 2004 edition, please, and go to RLIT0000171. So this is the 2004 edition of the Code, as reprinted in an appendix to Blackstone’s.
Duncan Atkinson: Yes.
Mr Beer: If we look, please, at the second page, under the heading “The Evidential Stage” and look at paragraph 5.4, the guidance back in 2004 was:
“When deciding whether there is enough evidence to prosecute, Crown Prosecutors must consider whether the evidence can be used and is reliable.”
Duncan Atkinson: Yes.
Mr Beer: “There will be many cases in which the evidence does not give any cause for concern. But there will also be cases in which the evidence may not be as strong as it first appears. Crown Prosecutors must ask themselves the following questions:
“Can be evidence be used in court?”
I’m going to skip over that. Then, under the heading “Is the evidence reliable?”:
“Is there evidence which might support or detract from the reliability of a confession?”
Reading on:
“What explanation has the defendant given? Is a court likely to find it credible in the light of the evidence as a whole? Does it support an innocent explanation?”
A question about identity, and then (e):
“Is the witness’s background likely to weaken the prosecutions case? For example, does the witness have any motive that may affect his or her attitude to the case, or a relevant previous conviction?
“Are there concerns over the accuracy or credibility of a witness? Are these concerns based on evidence or simply information with nothing to support it? Is there further evidence which the police should be asked to seek out which may support or detract from the account of the witness?
“Crown Prosecutors should not ignore evidence because they are not sure that it can be used or is reliable. But they should look closely at it when deciding if there is a realistic prospect of conviction.”
Then if we can turn, please, to RLIT0000170. Thank you. Turn to the third page, please. This is the 2010 edition of the Code, and paragraph 4.7 is similarly worded, by way of introduction, as the previous edition of the Code.
Then under the cross-heading “Is the evidence reliable?” you’ll see a slightly expanded section:
“What explanation has the suspect given? Is a court likely to find it credible in the light of the evidence as a whole? Does the evidence support an innocent explanation?
“Is there evidence which might support or detract from the reliability of a confession? Is its reliability affected by factors such as the suspect’s level of understanding?”
Then the question about identity:
“(g) Are there concerns over the accuracy, reliability or credibility of the evidence of any witness?
“(h) Is there further evidence which the police or other investigators should reasonably be asked to find which may support or undermine the account of the witness?
“(i) Does any evidence have any motive that may affect his or her attitude to the case?
“(j) Does any witness have a relevant previous conviction [et cetera].
“(k) Is there any further evidence that could be obtained that would support the integrity of evidence already obtained?”
Then scroll down, please. Then at 4.9 exactly the same guidance as before.
So in both of these editions of the Code and in the present 2018 edition of the Code, which you’ve cited, prosecutors were asked to ask themselves a range of questions that went to the central issue of reliability. Would that be fair?
Duncan Atkinson: Yes.
Mr Beer: Can we turn back to your report, please, and look at page 68, and it’s paragraph 146 at the foot of the page. So picking up where we left off, 146, you tell us that:
“It follows that the reliability of the evidence is identified as being a central consideration to whether there’s a realistic prospect of a conviction …”
Is that a theme that has run through every iteration of the Code for Crown Prosecutors.
Duncan Atkinson: Yes. Certainly all that I’ve seen.
Mr Beer: So what’s that telling a prosecutor to do?
Duncan Atkinson: Clearly, it will tell them different things, depending on the nature of the case that they’re dealing with. If it’s a case with eyewitnesses then it’s all about the reliability of the eyewitness accounts and whether there is material that supports or undermines that. But, at a fundamental level, it is telling the prosecutor that they need to consider not just what the evidence in front of them says but whether it is reliable in doing so and whether there is either material available or material that needs to be obtained that will affect or may affect its reliability, because they need to be satisfied that that which because forward, if they charge, is a reliable case.
Mr Beer: So one can’t say simply because the words on the page or the figures on a page –
Duncan Atkinson: No.
Mr Beer: – are in front of me I need only look at those, and decide whether there’s a realistic prospect of a conviction?
Duncan Atkinson: No, that’s right.
Mr Beer: One needs to apply a probing mind to look at the issue of reliability?
Duncan Atkinson: Yes, so if you have a case where a witness says, “I saw the defendant do it”, you don’t just say, “Oh, well, that’s fine”. You have to consider whether that person is reliable, whether there’s material that might undermine their credibility or reliability in assessing whether there’s a realistic prospect of a conviction based on what they say.
And, in the same way, if you have a computer spreadsheet that says, effectively, that the defendant did it, you have to be satisfied that that is a reliable basis for asserting that.
Mr Beer: Thank you. Can we move on to the public interest stage, please?
Duncan Atkinson: Yes.
Mr Beer: That’s over the page to page 69, and paragraph 148 of your report. You tell us that:
“If the evidential stage is satisfied, the prosecutor must consider whether the prosecution is in the public interest. As the Code observes (paragraph 4.10): ‘It has never been the rule that a prosecution will automatically take place once the evidential stage is met. A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour. In some cases the prosecutor may be satisfied that the public interest can properly be served by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal rather than bringing a prosecution’.”
Then at paragraph 149, you tell us that:
“The prosecutor is required to consider the factors identified at paragraph 4.14 [being]:
“a) The seriousness of the offence.
“b) The level of culpability of the suspect [and] the Code lists relevant factors including ‘the suspect’s level of involvement; the extent to which the offending was premeditated and/or planned; the extent to which the suspect had benefited from criminal conduct; whether the suspect has previous criminal convictions and/or out-of-court disposals and any offending whilst on bail or whilst subject to a court order; whether the offending was or is likely to be continued, repeated or escalated; the suspect’s age and maturity’.
“c) The circumstances of and the harm caused to the victim.
“d) Whether the suspect was under age of 18 at the time of the offence.
“e) The impact on the community.
“f) Whether the prosecution is a proportionate response.
“g) Whether sources of information require protecting.”
So that is a developed list of factors that is not exhaustive –
Duncan Atkinson: No.
Mr Beer: – is that right?
Duncan Atkinson: That’s absolutely right.
Mr Beer: But they’re pointers?
Duncan Atkinson: Yes, and in each iteration of the Code that I have seen there has been a list. It’s never been just a question of consider the public interest, full stop. It’s always been a whole series of factors.
Mr Beer: Once the Full Code Test has been applied and it’s been decided to prosecute, is that the end of the matter or is there yet a further question that arises, namely what charges should in fact be –
Duncan Atkinson: Yes.
Mr Beer: – preferred or what information laid?
Duncan Atkinson: It’s not the end of the process in two ways: firstly, that once it has been identified that there is a realistic prospect of conviction on the basis of the evidence and in the public interest to do so, you’d then have to determine what charges should be laid, but you’d then also have of the continuing obligation, which, as I’ve read it, has been consistent throughout the iterations of the Code to keep that process under review, both as to whether you’ve got the right charges and as to whether it remains in the public interest and it remains a realistic prospect of a conviction.
Mr Beer: Can we look, please, at page 71, paragraph 154 of your report, at the foot of the page, which addresses one of those two ways in which the satisfaction of the two elements of the test is not the end of the matter, and you tell us that:
“The Code also addresses the determination of what offences to charge where the Full Code Test has been applied and prosecution has been determined upon. At paragraph 6.1, it is stated that the charges should ‘reflect the seriousness and extent of the offending; give the court adequate powers to sentence and impose appropriate post-conviction orders; allow a confiscation order to be made in appropriate cases, where a defendant has benefited from criminal conduct; and enable the case to be presented in a clear … way’.”
You add:
“It follows from this analysis that the interests of justice do not always require the charging of the most serious potential charge.”
You cross-refer us to paragraph 6.2 of the Code:
“The prosecutor should never seek to pressure a defendant into pleading guilty through the charges chosen … and should [as you said] keep the charge under review [paragraph 6.3 and 6.5 respectively].”
The idea that the prosecutor should not seek to pressure a defendant into pleading guilty through the charges chosen, can you give us an example, a practical example of that? What does that mean in practice?
Duncan Atkinson: So the charges should not be chosen so that a defendant feels they have to plead to something to avoid the risk of being convicted of something more. So, just to take an example, one should not charge false accounting as well as theft to make a defendant feel they have to plead to false accounting because they don’t want to be convicted of theft.
Mr Beer: Thank you. Can we turn, then, to the adoption of the Code by the Post Office in its policies and can we turn to page 72 of your report, please, and paragraph 155. You tell us that:
“The Post Office has at least purported to apply the Code for Crown Prosecutors. That is demonstrated by the following …”
You list five policy documents that, in different ways, I think, represent the Post Office saying that it will either apply or have regard to the Code for Crown Prosecutors; is that right?
Duncan Atkinson: Yes, so either expressly. So, for example, that in paragraph (a) refers to the Code, that in paragraph (b) doesn’t refer to the Code but does refer, in general terms, to the test from the Code. So I took it as being a reference to the Code.
Mr Beer: Thank you. Would you agree that, as a private prosecutor, the Post Office was not obliged to apply the Code as a matter of law?
Duncan Atkinson: Absolutely.
Mr Beer: But, as you’ve set out, the Post Office did?
Duncan Atkinson: Absolutely.
Mr Beer: So does the fact that the Post Office was not obliged to apply the Code as a matter of law have any continuing relevance in the light of their decision to do so?
Duncan Atkinson: No, I don’t think so. I think that it was recognised in those cases where it was said that a private prosecutor was not required to apply the Code, that there was, nevertheless, a requirement that a defendant understand the basis for the decision being made to prosecute them and, increasingly, it was recognised that the Code was a clear statement of that, which, however you worded it, would need to be considered by a prosecutor.
But it seems to me, once the Post Office had determined that they would apply the Code, that is the standard against which you can judge their decisions because it’s the one that they’d adopted.
Mr Beer: So the fact they weren’t obliged to apply it, as a matter of law, hasn’t got any continuing relevance in examining whether the Post Office did, in fact, do what their policy said they would do?
Duncan Atkinson: No.
Mr Beer: Can we go over to page 73, I want to look at paragraphs 156 and 157 and, as I read this, you’re identifying some outlier policies, essentially; would that be fair?
Duncan Atkinson: Yes.
Mr Beer: Which are not consistent with the policies that you had identified, the five of them, in paragraph 155?
Duncan Atkinson: Yes.
Mr Beer: If we just read those, you say that the Crime and Investigations Policy of September 2008, October 2009 and April 2011 state:
“… ‘where a business leader, manager or employee is the subject of a criminal investigation and grounds are established to suspect them of having committed a criminal offence, breached Royal Mail Group’s code of business standards or subverted business systems, controls or policies, they may enter one or both of the following processes: the relevant national Criminal Justice System and the business unit Code of Conduct’.”
You say:
“… the policy goes on to say that ‘once committed to the relevant Criminal Justice System it is the accountability of the Royal Mail, its investigators, criminal lawyers and prosecuting agents to ensure that the case is present impartiality but with all possible evidential support and preparation. It is the function of the relevant court to decide upon guilt …’.”
But you make the point that:
“… the policy identifies no more than [mere] suspicion as a precursor for a case entering the criminal justice system, and [doesn’t include any] of the guidance for prosecutorial decisions to be found in the Code for Crown Prosecutors.”
Duncan Atkinson: Yes, so I found this difficult to reconcile with the policies that we’d just looked at. So that in the end of 2007, the Criminal Investigation and Prosecution Policy had made express reference to the Code for Crown Prosecutors as the test and then, less than a year later, this Crime and Investigations Policy, rather than referring to the Code and a determination of a sufficiency of evidence for there to be a realistic prospect of conviction, there was a reference to a suspicion of someone having committed a criminal offence being a reason to put them into the criminal justice system.
I just didn’t – I couldn’t see readily how those two things could be reconciled.
Mr Beer: Then paragraph 157, again, something of an outlier, a “Criminal Enforcement and Prosecution Policy” dated November 2012” addressing relevant factors to the application of the Code simply says, on the evidential side:
“… ‘evidence of guilt sufficient to give a realistic prospect of success in criminal proceedings’”, without any development of it.
Is that the point?
Duncan Atkinson: Yes, yes.
Mr Beer: Then:
“In relation to the public interest [test] a list of factors to be taken into account [which is] summarised as: ‘the seriousness and effect of the offence, the deterrent effect of a prosecution on the offender and others, any mitigating factors’.”
What was the issue or problem with that?
Duncan Atkinson: Again, that which is there is not in any way irrelevant from the assessment of the public interest but nor is it the totality of that which is irrelevant to the assessment of the public interest. So, again, it was a more defined list of public interest considerations than, in fact, I’d seen in some of the earlier policies but it was still far from a comprehensive one.
Mr Beer: Thank you. Can we go to page 75 of your report, please. Between paragraphs 161 and 163 on this page, you refer to a draft formulation of policy written by Andrew Wilson, essentially suggesting that there be a presumption in favour of prosecuting those committing dishonest acts involving acquisition of property or assets from the Post Office in the course of their duties.
Duncan Atkinson: Yes, and, again, I was less than clear as to the status of this paper. It was – I highlighted it because it was December 1997, so it predated the Inquiry’s period of concern, whereas almost all of the documents that I otherwise saw came from within that period. But it was a fuller exposition of what the prosecuting policy would be than some of those other documents.
Mr Beer: In relation to what Mr Wilson suggested, would you agree that an offence of dishonesty and breach of trust by an employee, involving either theft or the dishonest acquisition of property at the expense of their employer, would be treated as a serious offence by the criminal courts.
Duncan Atkinson: Yes, if made out. Yes.
Mr Beer: And that in those circumstances, if a CPS lawyer was to be presented with sufficient evidence to prove such an offence, the lawyer would be likely to conclude that the prosecution is in the public interest, subject to any case-specific or personal circumstances that apply to the particular individual?
Duncan Atkinson: If they were satisfied that its sufficiency included its reliability, yes.
Mr Beer: And that, therefore, for the Post Office, it wasn’t unreasonable to adopt a position, whereby if there was sufficient evidence to have a realistic prospect of conviction and there were no countervailing personal or case-specific circumstances, prosecution should ordinarily follow?
Duncan Atkinson: Ordinarily, yes.
Mr Beer: So what’s wrong with Wilson is suggesting?
Duncan Atkinson: My concern was that it was a very bald description of a policy that there would be a presumption, if there was evidence of dishonesty by an employee, they would be prosecuted without the nuance that the Code for Crown Prosecutors, by way of example, brings that process, in terms of the range of factors that need to be considered, both in deciding whether you have sufficient evidence to establish that dishonesty and whether, even if you have, it’s in the public interest to prosecute.
Mr Beer: So it might, would this be right, encourage almost a rubber stamping of decisions to prosecute, without a sort of deep dive into the circumstances?
Duncan Atkinson: Yes, if this were all. If this was the policy, then that is the risk that it would run, yes.
Mr Beer: Thank you. Can I turn to charging practice, please, and the related issue of plea bargaining. We asked you to consider, in the context of the Post Office’s charging practice, the decision of the Court of Appeal in Eden. That was because, in the light of what appears to be the Post Office’s charging practice and because of the high number of cases in which that charging practice had been applied across the relevant period, it appeared to be a relevant consideration.
You tell us about the facts of Eden on page 76 at paragraph 165. Thank you. Can you just summarise for us, if you can remember, what it was that had come before the court?
Duncan Atkinson: Yes, so the defendant was a subpostmaster who – in relation to whom discrepancies had been identified between voucher records, on the one hand, and payments out, on the other, and so they were charged with a series of what were described as twin counts of theft and false accounting. And the issue that led it to going to the Court of Appeal was that the prosecution stance, which was the Post Office’s stance in that case, was to invite the jury only to convict of one of those parts of the twin, the theft, if they also convicted of the other, the false accounting.
And the jury instead convicted of the false accounting, not the theft, and making clear, unusually – because usually a jury just gives a verdict without giving its reasons – that they considered that the false accounting was made out on the basis that the postmaster had got in a muddle and falsified things to cover the muddle, rather than to steal money.
Mr Beer: In those circumstances, you tell us in paragraph 166 – I’m not going to read it out – what Lord Justice Sachs, speaking for the Court of Appeal, said in relation to this part. Given the jury had made clear that there was no dishonesty, the convictions were quashed?
Duncan Atkinson: Yes.
Mr Beer: Over the page to page 167, please. Lord Justice Sachs additionally went on to say:
“… ‘It seems to this Court to be rather off [which was the language of the day] that two counts, theft and false accounting, should be put in parallel setting, if it is the object of the prosecution to secure a conviction on the first only if the second is proved, or on the second only if the first is proved. There would seem in those circumstances but little point in putting in two separate counts. It would be better in future that the prosecution should make up its mind as to whether or not it really wants a conviction on a count of false accounting only if theft is proved: if so, reliance should be placed on one count only. On the other hand, there may be cases when it is wise to have a count of false accounting: where, for instance, a temporary gain could be the object of the dishonest act. No such object was put before the jury in the present case’.”
If we turn to paragraph 168, you say:
“Although those observations were made in 1971, it does not appear that the practice of charging both theft and false accounting was altered for almost the whole of the Inquiry’s period of concern.”
Then you cite from a paper written by Chris Aujard, and that’s the paper we looked at on the screen yesterday but a different part of it, at 3.1, and it said that:
“… the Post Office ‘typically’ prosecuted subpostmasters ‘for false accounting combined with theft and/or fraud’.”
It then went on to say:
“… ‘the choice of charge is largely dependent on whether we have obtained an admission of guilt, or other compelling evidence that the Defendant has taken money directly from us, or have only secured evidence that the Defendant covered up losses by falsely recording the branch’s financial position … typically Defendants plead guilty to a charge of false accounting, with the charge of theft then being dropped.”
Carrying on, you tell us in paragraph 169 that a later document – a “criminal offences points to prove” document, of December 2008, which had as its purpose helping investigators and interviewers to understand the elements of criminal offences, which was updated in August 2011 and again in June 2012 – did not address the Eden considerations as to charges.
You tell us that, whilst training materials were produced that address the elements of offences of dishonesty, those training notes did not also address charging decisions nor the Eden considerations.
Duncan Atkinson: No, that’s right.
Mr Beer: If we go forwards, please, to paragraph 170, you tell us that the choice of charges was not addressed in the various prosecution policies that you had seen until 2013, nor were the implications of Eden addressed. It was in the November 2013 Post Office Prosecution Policy England and Wales that Eden was addressed, where, at paragraph 5.2, it said:
“… ‘where a suspect is charged with offences of theft and false accounting arising out of the basic same facts, those charges will always be alternative charges. This approach is not to be regarded as an invitation to plead guilty to any particular charge(s)’.”
You were asked, in the context of Eden, the lack of specific Post Office guidance relating to it and, you say, “no doubt, the observations in the paper just quoted to consider the practice of ‘plea bargaining’ in [that] context”.
So, essentially it was only at the end of the relevant period in 2013, November 2013, that Eden was addressed at all in the documents that you’ve seen?
Duncan Atkinson: Yes, and so whilst, as the court made clear in Eden there will be cases where it’s entirely appropriate to have a charge of false accounting as an alternative to a charge of theft to address a different potential scenario, it is a process that needs to be thought through and for an understanding as to why the false accounting is there as an alternative to be fault through, rather than for it, effectively, to be treated as a package deal that you would always have both.
Mr Beer: Which seemed to be the import of what Chris Aujard said?
Duncan Atkinson: Yes.
Mr Beer: Thank you. So it was only at the end of the period in November 2013, on the documents that you have seen, which I think is 42 years after Eden was decided, that the issue raised in Eden was addressed?
Duncan Atkinson: The only thing that I saw written down, yes.
Mr Beer: What were or what could be the potential adverse effects of a failure by the Post Office to follow the guidance in Eden?
Duncan Atkinson: One potential risk is that, if it is regarded that you would always have that package deal of charges there, there might be a lack of scrutiny of whether, in fact, you had evidence that established theft and so, if the basis for a charging decision at the end of an investigation was that there were shortfalls in the computer records and, therefore, a charge of theft on the basis the money had been taken and of false accounting if it hadn’t, that you would just have the package there without actually looking to see whether the evidence did show any also of money, in fact, as opposed to on the records.
And the other risk, as identified, is a defendant may consider that, because they had to acknowledge that there were accounting shortfalls, as shown by the records, that they had, at least, to plead guilty to false accounting because there was the risk, if they went to court, that they would be convicted of stealing the money, whereas, in fact, that charge of theft may, in fact, never have been made out on the evidence at all.
Mr Beer: Because, for example, there was no evidence of an actual loss?
Duncan Atkinson: Yes, and/or an actual gain to the postmaster.
Mr Beer: Would you accept that there can be factual circumstances which make a conviction of both theft and false accounting appropriate?
Duncan Atkinson: Certainly Lord Justice Sachs in Eden had concerns about that and I think I would side with him.
Mr Beer: Can we turn to plea bargaining, please. In paragraphs 171 to 177, which is on page 78 – thank you – right up to paragraph 177, you outline the position so far as the CPS is concerned, in relation to the acceptance of pleas and, for reasons of time, I’m going to take that whole section as read.
Duncan Atkinson: Yes, I think it’s right to say that the guidance is not just CPS-specific, in the sense that the proper approach to taking a plea to a lesser offence than that original charged or the alternative count on an indictment, the guidance in relation to that is given in decisions from the Court of Appeal, it’s given in the guidance from the Farquharson committee, which speaks beyond the CPS to other prosecutors, as well.
Mr Beer: And, indeed, the Attorney General’s Guidelines –
Duncan Atkinson: Yes.
Mr Beer: – which speak to prosecutors, other than the CPS?
Duncan Atkinson: Absolutely.
Mr Beer: Would you agree that, in considering whether to accept a plea to a lesser or different offence to the one charged, the CPS would ordinarily seek and consider, even if they weren’t bound by them, the views of the victim?
Duncan Atkinson: Yes.
Mr Beer: Would you agree that, whilst the victim’s views should not be considered determinative, they are a relevant consideration to bear in mind in reaching a decision on prosecution –
Duncan Atkinson: Yes.
Mr Beer: – and plea?
Duncan Atkinson: Yes.
Mr Beer: Given that the Post Office acted as a perfectly at prosecutor and was both prosecutor and victim, would you agree that it was appropriate for the Post Office’s business interests to, therefore, be a factor when deciding whether to accept a plea to a lesser offence?
Duncan Atkinson: Yes, but with the proviso that, where you are both the prosecutor and the victim, the need for that process to be transparent and the criteria that you’re applying to be readily identifiable becomes all the more important because, in a case brought by the CPS, it will be – they have a set of criteria, not least in the Attorney General’s Guidelines on the acceptance of pleas, that they will be applying in that process, of which the victim’s view will be only a clearly defined part.
If the process is entirely in-house with the victim also being you, it – unless it’s similarly delineated, then it becomes difficult to be sure that the process is applying the interests of justice.
Mr Beer: Later in your report – I’m not going to ask you to turn it up now – you noted that the court in Asif v Ditta, made clear that the fact that a private prosecutor has a motive other than only the pursuit of justice for their actions, does not necessarily make it improper for them to bring a prosecution?
Duncan Atkinson: No, absolutely.
Mr Beer: Given that in the cases that the Post Office prosecuted, the Post Office was also the victim, are you suggesting that, even if the Post Office did not allow this to override its other prosecutorial functions, it was not entitled to consider whether continuing an investigation or prosecution was in its own business interests in deciding whether to proceed with the investigation?
Duncan Atkinson: No, it was clearly entitled to take that into account as a factor but it could not be the reason, either to prosecute or not.
Mr Beer: Is it right that the interests of the business in the relevant policies are identified as only one of the factors to be considered?
Duncan Atkinson: Yes. Although often they’re the first.
Mr Beer: Thank you. Can we turn to the initiation of proceedings. That can come down from the screen, please.
For reasons you explained yesterday, the Post Office did not charge suspects but instead initiated process by laying an information in the Magistrates Court, seeking the issue of a summons?
Duncan Atkinson: Yes.
Mr Beer: You address, if we turn up, at page 83, between paragraphs 185 at the foot of the page through to paragraphs 189, the procedural rules –
Duncan Atkinson: Yes.
Mr Beer: – for the issuing of a summons and the laying of an information.
Duncan Atkinson: Yes.
Mr Beer: I’m not going to ask you to repeat those and I’m not, indeed, going to summarise them. I’m just, instead, going to take those passages of your report as read. But on page 86, you tell us in paragraph 190, about some additional holdings or dicta of Mr Justice Sweeney in the Kay case that we referred to yesterday?
Duncan Atkinson: Yes.
Mr Beer: Can we look, please, at paragraph 190. You say that:
“Having identified that framework …”
That’s the legal framework that I’ve just skipped over.
Duncan Atkinson: Yes.
Mr Beer: “… Mr Justice Sweeney then identified the duties of a private prosecutor in relation to the making of such an application …”
That’s the application for an issue of a summons?
Duncan Atkinson: Yes.
Mr Beer: “… so as to ensure that the Court was able properly to approach those considerations. He observed that any applicant for a summons owed a duty of candour. Having reviewed the relevant authorities, he expressed that duty (at paragraph 25) as: ‘… one of “full and frank disclosure” which “necessarily includes a duty not to mislead the judge in any material way” and which requires the disclosure to the court of “any material which is potentially adverse to the application” or “might militate against the grant” or which “may be relevant to the judge’s decision, including any matters which indicate that the issue … might be inappropriate”. As Lord Justice Hughes (as he then was) memorably put it In re Stamford International Bank Limited at [paragraph 191]: “… In effect a prosecutor seeking an ex parte order must put on his defence hat scant him what, if he were representing the defendant or third party with a relevant interest, he would be saying to the judge, and, having answered that question, that is what he must tell the judge …”.’”
So that’s the explanation as to the law on the duty of candour when applying for a summons?
Duncan Atkinson: Yes.
Mr Beer: Mr Justice Sweeney then considered, in your paragraph 191, you tell us, how the duty operated. At paragraph 37 of his judgment he said, quote:
“… ‘in order to enable the court to properly carry out its duty to consider whether the application was vexatious, an abuse of process or otherwise improper; to consider whether to make further enquiries; to require the claimants to be notified of the application; and to hear the claimants’ and the summons that had been issued was quashed. He observed (at paragraph 38): ‘As this case demonstrates, the grant of summonses, typically conducted ex parte, can have far reaching consequences. Compliance with the duty of candour is the foundation stone upon which such decisions are taken. In my view, its importance cannot be overstated’.”
In paragraph 192 of your report, you address the issue of the extent to which the duty of candour is addressed in any Post Office policy.
Duncan Atkinson: Yes.
Mr Beer: You tell us that the:
“Post Office Conduct of Criminal Investigations Policy, dated August 2013, addressed the obtaining of a summons as the mechanism for initiating proceedings [but] there is no reference … to the duty of candour …”
Duncan Atkinson: No.
Mr Beer: “The ‘Summons and Cautioning’ policy, dated October 2001, also addressed the obtaining of a summons to initiate criminal proceedings. That did not address the duty of candour …”
Duncan Atkinson: No.
Mr Beer: You say:
“This remained the case in the November 2005 revision of the policy.”
Then, again:
“… the Royal Mail ‘Magistrates and Crown Courts Procedures’ policy, issued in May 2013, and the ‘Casework …’ policy, issued in June [2013] the procedure for obtaining a summons [is described], and the circumstances in which this is appropriate, but [neither refers] to the duty of candour.”
Duncan Atkinson: No, and so what I have done in paragraph 192 is set out as best I can every reference I could find to the initiating of proceedings by summons or the process of obtaining a summons, and so those are the examples I could find, and in none of them was there any reference to that foundation stone duty.
Mr Beer: The same applied to all of the training materials that addressed the issue of proceedings?
Duncan Atkinson: Such that I saw, yes.
Mr Beer: Yes. So does it follow that, in none of the documents that you have seen, was the duty of the Post Office to be candid with the court addressed?
Duncan Atkinson: That’s right.
Mr Beer: Was that of concern?
Duncan Atkinson: It was. The risk is that the obtaining of a summons is viewed as a purely procedural or administrative function, rather than being, as it is, a judicial exercise by a court and the court, to carry out that exercise, needs to consider the whole of the relevant circumstances. That is what the rules require of the court. But there’s only one party involved in that process with the court and that’s the prosecution, unless, exceptionally, the court itself decided to hear from the other side but they would only do that if they realised there was a need to.
And so again, that goes back to the party who is performing the prosecution undertaking their duties properly because it’s a judicial process not a tick-box exercise.
Mr Beer: Can you calibrate the level of your concern for us that the foundation stone, whose importance could not be overstated by Mr Justice Sweeney, was not referred to in any of the policy or training material that was shown to you?
Duncan Atkinson: Well, clearly the central question is whether that foundation of the process was recognised by the Post Office in undertaking this task. That’s to be judged by what they actually did but the fact that nowhere in the materials that I had seen did they reference that duty at all is a very real concern but because it’s difficult, where it’s not written down anywhere, to be satisfied that they understood that’s what they were meant to be doing or were doing.
Mr Beer: Thank you. Can I turn to a separate topic, please. It will be out of order?
Duncan Atkinson: Can I just mention, because it’s been weighing on my conscience, that I corrected you as to the year of Belmarsh Magistrates Court v Watts and I was looking at two other cases, where they’d got it wrong and you’d got it right; it was 1999 and not 1992, I’m very sorry.
Mr Beer: 8 February 1999, I think.
Duncan Atkinson: I’m not going to argue with that on – with you on that again.
Mr Beer: Thank you. In fact, I think your argument was with Mr Justice Sweeney for a misquote?
Duncan Atkinson: Yes, and I’ll apologise to him in due course!
Mr Beer: Yes, thank you. Can we turn to the separate topic of expert evidence and I’m taking this out of order. It’s in your second report and we’re interleaving it, essentially?
Duncan Atkinson: Yes.
Mr Beer: It comes more in the process sequence of events. Your expert report is at EXPG0000003.
What I’m going to do if I may, Mr Atkinson, is seek to draw out from the report, rather than take you to passages within it –
Duncan Atkinson: Yes.
Mr Beer: – some themes –
Duncan Atkinson: Yes.
Mr Beer: – if I may. So the first topic is the duty of a prosecutor in first instructing an expert.
Duncan Atkinson: Yes.
Mr Beer: So we’re here focusing on the prosecutor not the expert themselves.
Before considering what duty a prosecutor may have to ensure that the expert understands his or her duties, would you agree that the prosecutor must provide the expert with instructions upon what it is that his or her opinion is sought –
Duncan Atkinson: Yes.
Mr Beer: – and should set out issues or questions that the expert is expected to answer –
Duncan Atkinson: Yes.
Mr Beer: – and should set out the material upon which reliance has been placed in the prosecution, concerning that particular issue or issues, and which may be relevant to the questions which the expert is expected to answer?
Duncan Atkinson: Yes.
Mr Beer: So they should describe the material, or list it, and provide it?
Duncan Atkinson: Yes.
Mr Beer: Would you agree that, throughout the relevant period, a prosecutor intending to rely on expert evidence in criminal proceedings was under the following obligations: firstly, to satisfy themselves as to the expert’s relevant qualifications and expertise?
Duncan Atkinson: Yes.
Mr Beer: Secondly, to satisfy themselves that the expert had been appropriately instructed, including by the provision of a relevant and detailed letter of instruction or terms of reference?
Duncan Atkinson: Yes.
Mr Beer: You hesitated slightly?
Duncan Atkinson: I hesitate because, clearly, the instruction needs to provide the expert with explicit guidance as to what it is they’re being asked to do and what material they’re being asked to consider in doing it, and that clearly is detail. It would be in a form of letter of instruction. It wouldn’t have to necessarily be in a conventional letter. It could be done in an email format but it would need to be done in a written format, because the expert, in due course, would have a duty to make clear what their instructions had been, and so, just by way of a personal example, setting out, as I do at the beginning of my report, what it was I was being asked to report on.
Mr Beer: Yes. The prosecutor would be under a duty, would this be right, to inform the expert as to their, ie the expert’s, relevant duties to the court?
Duncan Atkinson: That is the question that I wrestled with in this report. It is my view, borne out by the practice of, by way of example, the Crown Prosecution Service and the Health and Safety Executive, that that is part of the prosecutor’s duty, because it is unquestionably part of the prosecutor’s duty to ensure that that is done by an expert that they rely on.
Mr Beer: Fourthly, would there be a duty on a prosecutor to satisfy themselves that the expert had, firstly, understood and, secondly, complied with their relevant duties to the court?
Duncan Atkinson: Yes, both because the Criminal Procedure Rules, as I read them, required them to and, secondly, because it was necessary for them to make sure that had been done for them to be satisfied that the evidence was going to be admissible, and there was little point obtaining evidence from an expert that wasn’t actually going to go anywhere near a courtroom.
Mr Beer: Fifthly, the prosecutor was under a duty, would you agree, to satisfy themselves that any material or literature, of which they are aware and which may undermine the expert’s conclusions, has been reviewed by the prosecution and, if appropriate, disclose to the defence and the expert?
Duncan Atkinson: Yes.
Mr Beer: Would you agree that a prosecutor was under a duty to bring to the attention to the defence and to the court any material of which the prosecutor was aware, which was reasonably capable of undermining the expert’s opinions –
Duncan Atkinson: Yes.
Mr Beer: – and that might be matters concerning the expert’s qualifications and experience –
Duncan Atkinson: Yes.
Mr Beer: – the factual basis on which the expert had reached his or her opinion –
Duncan Atkinson: Yes.
Mr Beer: – and, more generally, the expert’s credibility?
Duncan Atkinson: Yes, and so, by way of example, if an expert who you proposed to rely on has been criticised for – in ways that undermine their expertise or their credibility in a previous court case, you are required to disclose that.
Mr Beer: So drawing those threads together, if a party is obtaining expert opinion and proposes to call a person as an expert witness, the purpose of that is to obtain their opinion on an issue or a question which has been identified to the expert?
Duncan Atkinson: Yes.
Mr Beer: Can we turn to the duty to ensure that experts understand their duties. I think you address this in paragraph 63 of your report. Page 30, paragraphs 62 and 63. You tell us that:
“There is no question but that the law does impose duties on expert witnesses, and the expert owes their duty to the court to ensure their compliance with these duties.
“This was well established in the civil context through, for example, the Ikarian Reefer case, and in the criminal context”, and you name couple of other decisions.
Duncan Atkinson: Yes.
Mr Beer: You say:
“It follows that by at least 2005-2006” –
Duncan Atkinson: Which is the date of those cases.
Mr Beer: Yes, of Harris and B(T).
Duncan Atkinson: Yes.
Mr Beer: – “any investigative or prosecutorial authority should have been aware that any expert instructed owed their primary duty to the court, and that they were required to meet a series of requirements as to the content of their report, their underlying material and their conclusions. This was supplemented, following the introduction of the 2010 Criminal Procedure Rules, by the duties of experts,” was set out therein.
You say:
“I have not identified in any Post Office policy documents with which I have been provided any analysis of these obligations, or their implications for Post Office investigations.”
Does that include both policy documents and training documents?
Duncan Atkinson: Yes. There’s very little reference to expert evidence at all in the material that I’ve seen.
Mr Beer: Would you go further and say that, if a prosecutor wishes to rely on an expert, the prosecutor is bound to ensure that the individual concerned actually understands that they are to give evidence in the capacity of an expert –
Duncan Atkinson: Yes.
Mr Beer: – and that that carries with it special duties?
Duncan Atkinson: Yes, and the first is because of the second.
Mr Beer: Then, does it follow that they, the prosecutor, is therefore duty-bound to inform them of their duties –
Duncan Atkinson: Yes.
Mr Beer: – because, otherwise, there’s a risk that the expert may not know what their duties entail?
Duncan Atkinson: No, and the bedrock of that is – so it is understood – is that the expert is an independent voice. They are there to bring their expertise, independent of who is instructing them, to bear on the issue they’re instructed to give their expertise about. And they owe their duty not to the person who has instructed them but to the court in which they’re giving evidence. And it is a particular position that carries with it particular responsibilities, and they are of such importance that it’s essential that they understand them.
Mr Beer: Was there any different approach or any added duty where the proposed expert was not functionally independent from one of the parties in the case?
Duncan Atkinson: I think, in that situation, the requirement to make sure they understood the role that they were being instructed in and the role that they would be performing in the proceedings was all the more important, because their independence in such circumstances needed properly to be understood by them. They were not helping their employer; they were giving independent evidence to a court that it owed – that they owed a duty to.
Mr Beer: So dealing with issues at a level of generality at the moment, without going to the facts of any of the 20-odd cases that you’re to come back to speak about –
Duncan Atkinson: Yes.
Mr Beer: – in the case of the Post Office seeking to call witnesses from Fujitsu Services Limited to provide opinion evidence, would you say whether they were subject to that added duty or particular duty that you’ve just mentioned to ensure that such individuals knew that they were being called in the capacity of expert and, therefore, the duties to which they were subject?
Duncan Atkinson: Yes.
Mr Beer: Would that be because witnesses from Fujitsu wouldn’t be akin to a conventional expert who was accustomed and trained to providing expert evidence and was part of, for example, an expert witness institution or a professional body, and so forth?
Duncan Atkinson: Well, it would be proper practice with that latter category of person to make sure, even if you were preaching to the choir, to make sure they understood what their duties and obligations were, even if that’s what they did for a living and they knew them already. You were duty-bound to make sure they did, by telling them.
And where there was a risk that they may not appreciate that that is the capacity in which they are being asked to give an opinion, then it’s all the more reason to make it absolutely crystal clear to them that that is the capacity in which they’re being asked for their opinion and that they have duties, as a result of that.
Mr Beer: Might that risk be triggered, especially where the person involved, their day job is not being an expert witness, they weren’t a conventional expert in the sense that they were completely independent of the subject matter that they were going to speak about –
Duncan Atkinson: No, that’s right.
Mr Beer: – and, indeed, that they were going to speak about some of their own work?
Duncan Atkinson: Yes.
Mr Beer: Sir, I wonder whether we could take the morning break there. I appreciated we started seven or eight minutes late this morning but that would be a convenient moment.
Sir Wyn Williams: That’s fine, Mr Beer. What time shall we recommence?
Mr Beer: 11.40, please.
Sir Wyn Williams: Very well, fine.
Mr Beer: Thank you.
(11.23 am)
(A short break)
(11.40 am)
Mr Beer: Sir, good morning. Can you continue to see and hear us?
Sir Wyn Williams: Yes, I can, thank you.
Mr Beer: Thank you.
Mr Atkinson, can we turn up, please, RLIT0000172. This is an extract from Archbold Criminal Pleading Evidence and Practice. It’s going to come up on the screen for you. Thank you.
This is from the current 2023 edition –
Duncan Atkinson: Yes.
Mr Beer: – I should make clear.
Can we turn to page 14, please – I’m told it’s only nine pages. Can you scroll forward, please, to the bottom page number, which is 1694. At the bottom of the page there’s a page number, 1694. I think what that means is somebody has scanned in every other page, just the odd pages, not the even ones. I’m looking at an even page number.
Duncan Atkinson: I have the page as well, if that helps.
Mr Beer: I’ll read it out. I’m reading from page 1694, one of the odd page numbers in Archbold, at paragraph 10.25, and it says:
“It is the duty of an expert instructed by the prosecution to act in the cause of justice. It follows that if an expert has carried out a test which casts doubt on his opinion or if such a test has been carried out in his laboratory and is known to him, he’s under a duty to disclose this to the solicitor instructing him, who has a duty to disclose it to the defence. This duty exists irrespective of any requests by the defence. It is not confined to documentation on which the opinion or findings of the expert are based. It extends to anything which might arguably assist the defence.
“Moreover, it is a positive duty which, in the context of scientific evidence, obliges the prosecution to make full and proper enquiries from forensic scientists to ascertain whether there is discoverable material (see Ward [1993], 96 Criminal Appeal Reports 1).”
That statement of the law, although it’s included in a 2023 edition of Archbold, would you help us, does that statement of the law cover the entirety of the relevant period?
Duncan Atkinson: Yes.
Mr Beer: So it tells us that an expert instructed by the prosecution has a duty to act in the cause of justice. What do you understand that to mean?
Duncan Atkinson: That the – an expert owes their duty to the court to do what they can through their expertise and their opinion, to ensure that that court performs its function correctly in terms of the acting, where it’s a criminal court, in the interests of justice. And so, if the expert is aware of material that would undermine either their own expert opinion or the premise, as communicated to them in their instructions, of the prosecution, then they’re duty bound to say so.
Mr Beer: Secondly, it tell us that the prosecution has a duty to make full and proper enquiries –
Duncan Atkinson: Yes.
Mr Beer: – of prosecution expert witnesses, in order to ascertain whether there is any discoverable material. Are you aware of any Post Office policy guidance or training, which reflected either of those two principles, in the documents that you have seen?
Duncan Atkinson: No, not that I can think of.
Mr Beer: Can I turn, please, to the necessary contents of an expert report. Page 8 at paragraph 15 of your Volume 1A report, so that’s EXPG0000003. Page 8, thank you.
You cite a summary of the duties of experts that originally appeared in the Ikarian Reefer case –
Duncan Atkinson: Yes.
Mr Beer: – a civil case –
Duncan Atkinson: Yes.
Mr Beer: – as essentially transposed into the common law, insofar as it affects criminal proceedings; is that right?
Duncan Atkinson: Yes.
Mr Beer: So what are described as the necessary inclusions in an expert report, and there are seven of them that are then set out. From what date were these necessary inclusions in an expert report in criminal proceedings?
Duncan Atkinson: The Ikarian Reefer case, which was a civil decision but was a decision in 1993, was seeking to set out that which it was already recognised, in effect, were the necessary inclusions but it conveniently set them out together. They were then picked up on by the Court of Appeal in 2005 in a case called Harris, which was a decision of Lord Justice Gage, who referred to them as being established as the necessary inclusions and then in this case, B(T) in a meeting of minds, Lord Justice Gage, who had given the decision in Harris was sitting with Mr Justice Cresswell who had given the decision in Ikarian Reefer, and they restated them.
So, certainly, by this time, by 2006, these were necessary inclusions, but they were not new in 2006; they were recognised already.
Mr Beer: One of the seven requirements was a statement to the effect that the expert had complied with his or her duty to the court to provide independent opinion by way of objective unbiased opinion in relation to the matters within his or her expertise; is that right?
Duncan Atkinson: Yes, number 6 on the list.
Mr Beer: So by this time, at least 2006, there ought to have been set out on the face of the report a statement by the expert that they had complied with these duties?
Duncan Atkinson: Yes.
Mr Beer: Would you agree that these requirements aren’t related to the format of an expert report but go instead to whether substantively the report and the expert have conformed to the fundamental requirements of an expert and an expert report?
Duncan Atkinson: Absolutely.
Mr Beer: So they’re issues of substance and not form?
Duncan Atkinson: Yes.
Mr Beer: Given the characterisation of the matters to be included was that they were necessary inclusions, would that mean that a failure to include them and a failure to comply with them may render a report inadmissible or at least capable of being excluded from evidence under Section 78 of the Police and Criminal Evidence Act?
Duncan Atkinson: Yes, and I should say that, if they were not included in written form but it was possible for the party seeking to rely on the expert to demonstrate that they had, nevertheless, been complied with, then that may not result in the exclusion of the evidence. So it is both the substance of it and the form of it.
Mr Beer: So the significance of Harris and B(T), Thomas I think is the full name of the case, lies not just in the reiteration of the application of the Ikarian Reefer principles to the criminal law, but also that they became required to be stated content in an expert report –
Duncan Atkinson: Yes.
Mr Beer: – and emphasise the need for the expert to demonstrate an understanding of what their duty of interpreters entailed?
Duncan Atkinson: Yes, and the fundamental nature of them is underlined by the fact that they were then incorporated into the next major review of the Criminal Procedure Rules, so it was considered that these were fundamentals that needed to be included in any expert report.
Mr Beer: On that, it might be a footling point, but in your report you say that Criminal Procedure Rules Part 24 was replaced by Criminal Procedure Rules Part 33 in 2010. I’m not going to go through all of the detail but might it be the case that Criminal Procedure Rules Part 33 was introduced with effect from 6th November 2006, ie immediately after – the year after Harris and B(T)?
Duncan Atkinson: Certainly, again by the time – again, this was an area where I was reliant on what I could find, certainly by 2010 Rules 33 were there, which incorporated this. I am perfectly willing to accept that they appeared earlier than that. Indeed, it would make sense that they did.
Mr Beer: For aficionados, it’s Schedule 1 of the Criminal Procedure (Amendment Number 2) Rules 2006/2636, which introduced by their Schedule 1 the new Criminal Procedure Rules part 33, coming into force on 6 November 2006.
Duncan Atkinson: (The witness nodded)
Mr Beer: Thank you. That can come down from the screen, thank you.
Can we turn to the topic of disclosure –
Duncan Atkinson: Yes.
Mr Beer: – moving away from expert evidence. Can we go back to your first report, EXPG0000002, and turn to page 95, please. It’s at the foot of the page under the heading “Disclosure”, and you tell us in paragraph 213 that:
“The prosecution’s obligations as to the disclosure of unused material to the defence is governed through a combination of the CPIA, the Code issued under the CPIA and the [Attorney General’s] Guidelines.”
Duncan Atkinson: Yes.
Mr Beer: Then in paragraphs 214 to 217, you tell us about the history which led to that position, including instances of injustice caused by material non-disclosure by the prosecution?
Duncan Atkinson: Yes.
Mr Beer: I’m going to take those paragraphs as read, if I may.
Duncan Atkinson: Yes, of course.
Mr Beer: Then from paragraph 218 onwards, on page 98, you tell us about the application and operation of the CPIA. Again, can I try and summarise this to cut through the material that you’ve helpfully included, and tell me whether you agree or disagree with my summary or want to supplement it.
Firstly, the relevant provisions of the CPIA, the Act itself, relating to disclosure, and that’s principally part 1 of the CPIA, are of deliberately wide application, so that they apply to, they capture, any criminal investigation and they therefore apply directly to the Post Office’s criminal investigations and prosecutions at all times throughout the relevant period?
Duncan Atkinson: Yes.
Mr Beer: Secondly, the golden rule, as it was described, was that the Act and fairness required full disclosure of all material held by the prosecution that weakened its case or strengthened the case for the defence?
Duncan Atkinson: So, as originally enacted, it focused on material that would undermine the prosecution or that might undermine the prosecution case. From at least 2005, it also addressed material that might assist the defence case.
Mr Beer: Thank you for that qualification. Then, thirdly – and we can turn up a paragraph for this because it is best that I read it, rather than try and summarise it, it’s on page 99. Paragraph 224, at the foot of the page.
“It follows … that the prosecutor’s duty arises from material in his or her possession, rather than material in the possession of a third party. The prosecutor’s obligation to disclose material in the hands of third parties thus only arises if and when that material has come into the possession of the prosecutor and, at this early stage, when, in the opinion of the prosecutor, it might undermine the prosecution’s case. That is the clear import of section 3. The procedure for … seeking to obtain material from third parties is governed not by the CPIA itself but, as will be seen, by the [Attorney General’s] Guidelines. The Act does not, therefore, identify the test to be applied when consideration is given to whether third party material should be obtained.”
Duncan Atkinson: Yes.
Mr Beer: Then, fourthly, the Act made provision for continuing duties of disclosure in slightly different terms as before 4 April 2005, as opposed to all times after that –
Duncan Atkinson: Yes.
Mr Beer: – including in response to a defence statement?
Duncan Atkinson: Absolutely.
Mr Beer: But there was a continuing duty of disclosure throughout the relevant period?
Duncan Atkinson: Yes, and so the presumption being, therefore, that, after disclosure had been made by prosecution, the defence would set out the nature of their case in a document, the defence statement, and that the prosecution would then respond to that with any disclosure that arose from it, but that, whether that defence document was received or not, there was still a duty on the prosecution to keep their disclosure under review.
Mr Beer: Thank you. Then the second source of obligation is the Code?
Duncan Atkinson: Yes.
Mr Beer: I think you tell us that the Code makes three additional points that you identify in your paragraph 232 to 235. That’s page 103, please. 232 at the foot of the page. You tell us:
“The Code [this is the Code under the CPIA] then addresses the interaction between the investigation and the prosecution, and between those responsible for each … The first area is in relation to the obtaining of advice. Paragraph 6.1 … states ‘The officer in charge of the investigation, the disclosure officer or an investigator may seek advice from the prosecutor about whether any particular item of material may be relevant to the investigation’.”
So what’s a point that you’re making there, by reference to the Code?
Duncan Atkinson: So what the Code seeks to do in this respect is to make the disclosure process identified in the Act work by identifying those who are playing roles in that process and how they should work with each other and, in this particular respect, is dealing with the situation where those involved in the investigation, who have duties in terms of the identification of material that may be relevant and therefore may be disclosable, should have recourse to the prosecutor to get their advice about anything they’re uncertain about, so that there is that dialogue and that they should understand that uncertainty should result in the seeking of advice.
Mr Beer: You continue:
“The second area is once a schedule of material has been produced. The disclosure officer is required [see paragraph 7.1] to provide that schedule to the prosecutor when submitting the case to them and to draw to the prosecutor’s attention ‘any material an investigator has retained (whether or not listed on a schedule) which may satisfy the test for prosecution disclosure in the Act, and should explain why he has come to that view’.”
Duncan Atkinson: So this is, in the three Rs that we talked about yesterday – and I’ll try and get them right this time – of record, retain and reveal, this is the reveal stage where the investigator is setting out the material that might fall to be disclosed for the prosecutor to then carry out a review of, and it’s an essential audit and safeguard to make sure that disclosure is undertaken properly, and that the investigator has been doing their job properly.
Mr Beer: Over the page, please, at 233, you make a third point:
“Additionally, the disclosure officer is required to provide any of the following not otherwise included in the above submission: ‘information provided by an accused person which indicates an explanation for the offence with which he has been charged; any material casting doubt on the reliability of a confession; any material casting doubt on the reliability of a prosecution witness; any other material which the investigator believes may satisfy the test for prosecution disclosure in the Act’.”
Then you comment:
“This is an important requirement, because it envisages that material that undermines the investigation in important respects, such as undermining the reliability of a key aspect of the case against an accused, will be volunteered to the prosecutor at the outset, and flagged up as such.”
Duncan Atkinson: Yes, and because the prosecutor needs to assess the reliability of evidence as part of their decision as to charge and their continuing review of that and because the prosecutor has to ensure that there is disclosure of material that undermines or might undermine the prosecution case to the defence, the upfront nature of this requirement, that the investigation is volunteering material in those categories or relevant to those categories, the prosecutor is of central importance.
Mr Beer: Thank you. Can we go to the third source of law or the third obligation, namely the Attorney General’s Guidelines on disclosure. You address these at page 110 of your report –
Duncan Atkinson: Yes.
Mr Beer: – under the heading “The AG’s Guidelines”. This is a very substantial section of your report.
Duncan Atkinson: Yes.
Mr Beer: It runs right up until paragraph 290. Again, some summaries, if I may –
Duncan Atkinson: Yes.
Mr Beer: – to see if you agree or disagree, before looking at some of the content of each iteration of the Guidelines. Firstly, the Guidelines were introduced in 2000 and applied throughout the relevant period being examined by the Inquiry?
Duncan Atkinson: Yes.
Mr Beer: Secondly, would you agree that the purpose of the Guidelines was stated to be improving the operation of the arrangements for disclosure and, in particular, addressing the roles of the participants in the disclosure process, and that statement was made after research had been undertaken as to the operation or misoperation of the CPIA?
Duncan Atkinson: Yes, and so it had been recognised, and the CPIA had not been operating for that long, but it had been identified that that it in itself, and the Code under it in itself, were proving not to be sufficient to make sure that its objectives were being satisfied and proper disclosure was being made.
Mr Beer: The third point is that the Guidelines applied to prosecutions commenced at the instigation of the Post Office, just as they did to prosecutions commenced by other prosecutors?
Duncan Atkinson: Yes.
Mr Beer: Fourthly, the importance of the compliance with the Guidelines with the emphasised in a series of cases, time and again, throughout the relevant period?
Duncan Atkinson: Yes.
Mr Beer: I’m not going to take you to the purple prose used by the courts on each occasion but is that summary sufficient?
Duncan Atkinson: Absolutely, and the fact that the courts had so much recourse to the Guidelines as an exposition of what the requirements were and why they mattered, just serves to underline how important the Guidelines have always been as a central part of the disclosure framework.
Mr Beer: If we can turn, then, and look at some content of the Guidelines. Starting with the 2000 iteration, and that’s page 112, and between paragraphs 254 and 264, you address the content of the 2000 Guidelines?
Duncan Atkinson: Yes.
Mr Beer: Are there any particular points that you would wish to emphasise content of the 2000 Guidelines?
Duncan Atkinson: Perhaps the most striking thing about them is – which I suppose in one sense is unsurprising, given they’re written by the Attorney General, who has a supervisory role in relation to prosecutions – that they are very clear as to the responsibilities and duties of prosecutors in order to make sure that disclosure works properly, which involves not only their own decision making but their superintendence and supervision of those who have undergone the investigation before it reaches them.
Mr Beer: Thank you. I’m going to take the content as read in the interests of time.
Duncan Atkinson: Yes, of course.
Mr Beer: Can we move to the 2005 iteration of the AG’s Guidelines, that’s page 117?
Duncan Atkinson: Yes.
Mr Beer: You address the 2005 Guidelines between paragraphs 265 to 274 and, again, I’m afraid it’s a rather open question: are there any particular points that you would emphasise about the 2005 iteration of the Guidelines?
Duncan Atkinson: So the 2005 Guidelines was brought in because the test for disclosure had been changed by the Criminal Justice Act 2003, so that it involved both material that might undermine the prosecution case and material that might assist the defence case, and so it was designed to address that.
It was designed also to engender a greater dialogue in relation to disclosure, so that it wasn’t just a matter of prosecution decisions in abstract but also prosecution decisions taking account of the defence case as identified, for example, in a defence statement.
And thirdly, it was the beginnings of real attempts to grapple with the difficulties of disclosure, where there’s material held on computers and, therefore, the review of that material for disclosure is a more arduous task.
Mr Beer: Thank you. Again, I’m going to take the content of the Guidelines as read.
I think the next version was 2013, which is right at the end of our relevant period –
Duncan Atkinson: Yes.
Mr Beer: – and you address that at paragraph 285 and following. I’m therefore not going to ask you for any supplemental views on that. I think it’s right that, between the second and the third edition, Supplementary Guidelines on digitally stored material were issued –
Duncan Atkinson: Yes.
Mr Beer: – in 2011?
Duncan Atkinson: Yes.
Mr Beer: You address those at page 120, at paragraph 275 and following. Again, the open question: anything in particular on the Supplementary Guidelines that you would wish to emphasise beyond that which is in your report?
Duncan Atkinson: So again, this is specific guidance which is designed to address how an investigator and how a prosecutor are to go about complying with their obligations, where there is a very large amount of material stored on a computer. It’s designed to be practical to make that achievable but underlying, of course, that there is the obligation to do it and to ensure that a fair result drives from that process.
Mr Beer: Thank you. So we’ve looked at the three sources of law, as I’ve described them. Can we turn to the Post Office’s policies.
Duncan Atkinson: Yes.
Mr Beer: You address these from paragraph 237 onwards at page 105, please. If we can look at page 105. You address the Post Office policies between paragraphs 237 and 243?
Duncan Atkinson: Yes.
Mr Beer: In 237, you tell us that the Post Office Casework Management policy of March 2000 makes reference to the CPIA at a number of points:
“It is of note that paragraph 3.3 specifically refers to the retention periods for evidential material … Both in the 2000 iteration and the February 2002 [iteration], this policy required full details of any ‘failures in security or operational procedures are identified which may or may not be directly connected to the offence’ to be included in the investigation report.”
Just stopping there, could you ascertain from the policy whether the investigation report was itself a disclosable document?
Duncan Atkinson: There was debate within the paperwork that I’ve seen as to whether it was or not. It’s a feature of many of the 20-odd cases that I’ll be coming back to talk about in relation to Volume 2 but it’s effectively the document that went from the investigator to those who made decisions as to whether the person under investigation should be suspended and whether the person under investigation should be prosecuted, and was usually the document that appeared to be relied on by the person making the charging decision.
And it’s not clear from what I’ve seen as to whether it was regularly disclosed and there are certainly instances where it wasn’t, and a decision was taken that it wasn’t disclosable.
Mr Beer: Thank you. You continue that the policy adds:
“… ‘the issue of dealing with information concerning procedural failures is a difficult one. Some major procedural weaknesses, if they become public knowledge, may have an adverse effect on our business. They may assist others to commit offence against our business, undermine a prosecution case, bring our business into disrepute, or harm relations with major customers. Unless the offender states that he is aware that accounting weaknesses exist and that he took advantage of them, it is important not to volunteer the option to the offender during interview’.”
Just in relation to the sentence that “if weaknesses become public knowledge they may have an adverse effect on our business because they may undermine a prosecution case”, is that a reason not to reveal them?
Duncan Atkinson: No, if there’s material that undermines a prosecution case then it is disclosable rather than the contrary.
Mr Beer: Is the fact that making public knowledge “may bring our business into disrepute” a reason for non-disclosure?
Duncan Atkinson: No.
Mr Beer: Is the fact that “revelation may harm relations with major customers” a reason for non-disclosure?
Duncan Atkinson: No, and so there are situations, taking a step back from this, where there can be competing public interests where, for example, revealing failings in an investigative technique would have the consequence of revealing what that investigative technique was, which might frustrate its use in other cases, and it would a decision as to where the public interest lay. And that might involving recourse to a judge for the judge to decide whether the interests of justice required its disclosure.
But you are there talking about things that might undermine the effectiveness of the criminal investigation process generally. You are not talking about issues of reputation or customer relations.
Mr Beer: Moving to paragraph 238, you tell us that the “Disclosure of Unused Material – Criminal Procedure and Investigations Act 1996 Code of Practice” that was issued in May 2001 was three pages long. It addressed the roles of the investigator and disclosure officer, without specific cross-reference to the CPIA Code. You tell us that:
“An investigator (paragraph 3.2) is someone [who is] ‘involved in the conduct of a criminal investigation involving Consignia’, who has a duty in particular to record and retain information. They share a duty to the disclosure officer to ‘be fair and objective and must work together with prosecutors to ensure that disclosure obligations are met’.”
Over the page:
“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’.”
You say, and it’s a point you made yesterday, that, by contrast to the CPIA:
“… the policy proceeds on the basis that the investigator and disclosure officer will ‘normally’ be the same person”.
Duncan Atkinson: Yes.
Mr Beer: The policy states that:
“The disclosure officer should inspect, view or listen to all material retained, saved where a large amount has been seized. In those circumstances, the existence of the material should be identified to the defence.”
Lastly:
“The disclosure officer should ensure the description of unused material is sufficient for the prosecutor to review it, and should draw the prosecutor’s attention to any material about which they are in doubt.”
In relation to the point that the disclosure officer and the investigator will normally be the same person, would you agree that the CPIA Code does allow for this –
Duncan Atkinson: Yes.
Mr Beer: – and allows the officer in the case and the disclosure officer to be the same person?
Duncan Atkinson: Yes.
Mr Beer: Would you agree that, even in cases investigated by the police and prosecuted by the CPS, for many cases, and perhaps the majority of more minor or smaller cases, the disclosure officer would regularly be the officer in the case?
Duncan Atkinson: Yes.
Mr Beer: Given that it may be common practice for the functions to be performed by the same police officer in many cases, prosecuted by the CPS – and we’re here dealing with a private prosecutor and there’s nothing in the CPIA to prevent it – would you accept that having the function of disclosure officer held by the investigating officer is neither contrary to the law nor practice, applicable to these private prosecutors during the relevant period?
Duncan Atkinson: Yes. What it – I highlighted it because, first that it was predicated here as being normal rather than an option and, secondly, because of a concern that, in a case brought by the Crown Prosecution Service on the basis of an investigation by the police, there are still those two separate agencies involved, and so there is that independent scrutiny of the disclosure process by the CPS in those cases.
Where it is all being done by the same organisation, that there would be merit in there being more of a delineation of roles to ensure a proper scrutiny exercise, that was my only concern.
Mr Beer: Thank you very much. Can we just scroll forward to paragraph 240, please. Here you’re dealing, as opposed to policies, with training material and you say that you have seen a range of training workbooks, along with the an undated document entitled “Criminal Investigation”, which addresses nine e-books, which represent the theoretical learning from the investigation foundation course. You say that, in combination, they show that there was no specific training in that package in relation to the CPIA or to disclosure. There was a workbook about investigators’ notebooks.
Just stopping there, do investigators’ notebooks seem to be a particular issue that crops up again and again in these policies?
Duncan Atkinson: Yes.
Mr Beer: It seems to be a particular focus of attention?
Duncan Atkinson: Yes.
Mr Beer: In any event, that did not refer to the duty of retention. It didn’t refer to the CPIA, nor did it refer to the 2001 policy document?
Duncan Atkinson: No, that’s right. I should mention, for completeness, that I have, in material recently provided to me, seen some further training material, including, I think, a 2010 presentation on disclosure, although it was not clear to me who that presentation was intended for.
Mr Beer: Did that improve upon this training material that you summarise in paragraph 240?
Duncan Atkinson: It took whoever it was given to through the CPIA obligations, in terms of the duty of disclosure, and so on, and made reference to the Code. It didn’t, though, refer to the Guidelines, the Attorney General’s Guidelines.
Mr Beer: Then lastly on this topic, if we can go forward, please, to page 120, and look at paragraph 274, this is after you’ve summarised the 2000 and 2005 AG’s Guidelines?
Duncan Atkinson: Yes.
Mr Beer: You then turn in this paragraph to see how well were they reflected in Post Office material and you tell us that, although the “Disclosure of Unused Material, CPIA 1996 Code of Practice” issued in May 2001 did allude to the original version of the AG’s Guidelines, you hadn’t seen any amended version of that policy following the 2005 Guidelines until the 2010 revision. That 2010 document referred to the 2005 Code of Practice but not the AG’s Guidelines alongside it. No materials addressed this important revision to the Guidelines.
Duncan Atkinson: No, so the 2001 document said:
“In the light of the Human Rights Act, the Attorney General has issued new Guidelines on disclosure of unused material, the Guidelines clarify the responsibilities of investigators, disclosure officers, prosecutors and defence practitioners.”
And that was the extent of the application of a detailed document in that policy – of course, I don’t know because I don’t know what was on the database as to whether the guideline was there. When that disclosure of unused material policy was updated, the reference to the Guidelines was removed.
Mr Beer: So that’s slightly counterintuitive?
Duncan Atkinson: Yes, and so there’s – I couldn’t detect evidence of explicit updating of policy to reflect the Guidelines but I did detect the removal of the Guidelines from the policy.
Mr Beer: That can come down from the screen, thank you.
So is a summary, a high level summary, of the position that, although you have seen Post Office policies in relation to disclosure in investigations, you have not seen any prosecutorial policies in relation to disclosure?
Duncan Atkinson: There is reference within, both the 2001 and 2010 Disclosure of Unused Material policies, to what it described as “prosecutor’s guidelines”. They’re half a page of bullet points which reflect aspects of that which is contained in a combination of the CPIA and the Code thereunder, but there is no separate, that I saw, separate prosecution guide – policy as to how prosecutors were to undertake their disclosure responsibilities, their responsibilities for the supervision of the investigation and ensuring that disclosure was undertaken appropriately and fairly.
Mr Beer: We – to update you – now have a witness statement from a senior member of the Criminal Law Team, Rob Wilson, who in his statement says that:
“No guidance in relation to disclosure obligations was given in any prosecution policy documents. I believe that the policy and standards team within the Post Office Security were responsible for providing written guidance and training with input from me. It was felt that as the Code for Crown Prosecutors did not provide guidance on disclosure, that this should be dealt with in a separate document.”
Firstly, have you seen any policies that were provided by the Post Office Policy and Standards Team concerning disclosure obligations to be discharged by prosecutors.
Duncan Atkinson: I don’t think so. I can’t think of any.
Mr Beer: Yes, thank you.
Can I turn to the topic of third-party disclosure, please. You address this issue between paragraphs 294 and 332 of your report, starting on page 128. Again, some high level points, if I may: is it right that you did not identify any Post Office policies in the relevant period that addressed the obtaining of third-party disclosure –
Duncan Atkinson: That’s right.
Mr Beer: – and that applies both to investigative duties and prosecutorial duties –
Duncan Atkinson: Yes.
Mr Beer: – or duties owed by an investigator and duties –
Duncan Atkinson: Of course.
Mr Beer: – owed by a prosecutor?
Duncan Atkinson: Yes.
Mr Beer: Was that a concern?
Duncan Atkinson: Yes. The – it was recognised that, as one of the things that the CPIA in its Code did not address, that to ensure fair proceedings in the interests of justice, it is not enough for a prosecution to make disclosure of that which it already has, because there may well be material that is beyond what it has that will nevertheless undermine its case, or assist that of the defendant, or that might undermine its gates or assist that of a defendant.
So what the Attorney General’s Guidelines sought to do was to make it absolutely clear that there was that obligation on investigators and prosecutors to think outside the box of what they already had as to what they might need and to ensure that they were doing all they could to make sure that the proceedings were fair, by not blinkering themselves as to just looking at what they already had but to think what else might be necessary.
And that’s what third-party disclosure is all about, that process of thinking about whether there is material beyond what you’ve got that you ought to obtain, if you can, and then review that material for disclosure in the same way as what you have already got. And you do that because you need to ensure the process is fair.
If there is nowhere written down for you as an investigator or for you as a prosecutor that that is what you need to do, there is every risk that you will overlook it, that you will think “I have done what I’m required to do because I have looked at the schedule that the investigators provided me. I have reviewed the material that my investigation has generated, and I have done what is required by the Code and by the Act in relation to that”. That would not be the end of your job but if there’s no reference in your policies to it being a part of your job, you may think it is.
Mr Beer: Can we turn to paragraph 306 of your report, which is on page 133, where you cite a passage from the speech of Lord Bingham in of the House of Lords in the case of R v H and C., where he said:
“… ‘If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it’.”
But then this:
“‘For this purpose, the parties’ respective cases should not be restrictively analysed’.”
Is that a feature of the conduct of criminal investigations and prosecutions, that when making decisions on disclosure, the prosecutor must not restrictively analyse the case of the defendant?
Duncan Atkinson: Absolutely. It may be – to take a case away from any that we’re concerned with here – that there’s an allegation of assault, and the defendant is saying, “I was acting in self-defence”. If there is material that would not just undermine the prosecution case or support his case in relation to that, but also calls into question whether proper procedures had been followed and fair practices adopted in relation to some other aspect of the case against him, or if there was material that undermined the credibility of the prosecution witness in other respects, or other material that could provide the defence with a completely different layer of argument as to the admissibility of evidence or the fairness of the proceedings, then those are all things that the prosecution need to be including in their process of assessment as to whether material undermines its case or assists the defence, not least because the defence may not identify as something that will assist them something that they don’t know anything about.
Mr Beer: Thank you. That passage or that report can come down from the screen. Thank you.
Is it right that the concept of corporate knowledge operates in respect of material which may meet the disclosure test and which is within the knowledge of any arm of the prosecution authority?
Duncan Atkinson: In the sense that a prosecuting or investigative agency knows something, because of other cases that it has dealt with, but which has a relevance to the case they’re now dealing with, yes.
Mr Beer: Would that concept operate in the context of the Post Office acting as private prosecutor to mean that the Post Office’s disclosure obligations extended to material within the control of the Post Office, whether or not that material was actually in its possession or not?
Duncan Atkinson: Yes.
Mr Beer: That phrase that I’ve used, “material within the control of the Post Office”, would that require any legal obligation on the party that physically possesses it to deliver or provide it to the Post Office?
Duncan Atkinson: It would depend on the nature of the control that the Post Office had, if it was something that that other party were obliged to provide to them if they asked for it, for example –
Mr Beer: Under a contract, for example?
Duncan Atkinson: – under a contract, for example, then it is material that the Post Office would be easily able to obtain and therefore should obtain. There are always complications in relation to third-party material that the only route that you, as a prosecution, have to access, is where you obtain a witness summons against that third party to hand over the material because there are particular and specific criteria for the obtaining of a witness summons, and that third party would be able to litigate, whether you had met those criteria or not.
But that, on the scenario you’re positing, wouldn’t arise. This is separate from that and therefore easier.
Mr Beer: So one might regard material within the control of the Post Office, pursuant to a contract, as material that it had an obligation to obtain and to disclose, rather than being a case of third-party disclosure?
Duncan Atkinson: It certainly had the obligation to obtain it. It then had to apply the disclosure test to it. And the point I was seeking to make at this point – the point we were just looking at in my report, is that there are those two stages. What the Attorney General’s Guidelines makes clear is that where an investigator or a prosecutor identifies that a third party might have material that might prove to be relevant to the issues in the case, they have a duty to seek to get it so that they can then decide whether it’s disclosable or not.
Mr Beer: Thank you. Are you aware of any Post Office policy, guidance or training document which addressed the issue that we’ve just discussed, ie material within the Post Office’s control but not within its physical possession?
Duncan Atkinson: No, I don’t think so.
Mr Beer: Are you aware of any Post Office policy guidance or training document that you’ve seen which assisted in the application of the parties’ cases not being restrictively analysed principle?
Duncan Atkinson: No.
Mr Beer: Would you agree that the disclosure obligations that arise under Sections 3, 7 and 7A of the CPIA are imposed upon and are personal to the prosecutor?
Duncan Atkinson: Yes.
Mr Beer: Therefore, responsibility for ensuring compliance with the obligations that arise rests with the prosecutor, who, in one of the cases, is said to be in the driving seat –
Duncan Atkinson: Yes.
Mr Beer: – at the stage of disclosure?
Duncan Atkinson: Yes.
Mr Beer: Even in the case of third-party material, the decision as to whether such material is to be obtained and is to be disclosed must be taken by the prosecutor?
Duncan Atkinson: There is an expectation that that process will have already been gone through once by the investigator, but the prosecutor’s role is both to check that it’s been done and, either where it’s not been done at all or properly, or they identify a wider pool of potential material for them to do it as well.
Mr Beer: If it had got to the stage that the investigator had not done it, for example, the prosecutor, would this be right, would not be able to, in effect, subcontract out to the third party the question of whether material is relevant and falls to be disclosed?
Duncan Atkinson: No, and one of the cases that I refer to in my report, a case called Alibi, was a case very much on that topic, which was where a prosecution was predicated on material from a company. There was a difference between how the prosecution went about getting material from that company, on the one hand, and what it then did in terms of its disclosure obligations, on the other. And the disclosure obligations were for them, not the company.
Mr Beer: Would you agree that, if the Post Office required information about the operation and functioning of the Horizon System, in a case where a postmaster, for example, made allegations about its faulty operation in a given case, the correct approach would be for a formal request at an organisational or an institutional level being made to the operator of that system, Fujitsu?
Duncan Atkinson: It would depend on what the set-up was. One could envisage that where, on the scenario you posit, a postmaster has said something to that effect in interview, that it would be for the investigator, as part of the investigation, to make contact with whatever their liaison was with Fujitsu to make enquiries of them.
If there was a comparable liaison arrangement at a prosecutorial level, for that to be used, but if that route either was not available or was not working then, yes, absolutely, at a higher level.
Mr Beer: In any event, in the case of Post Office prosecutions, the Post Office, would you agree, was required to consider whether Fujitsu was in possession or likely to be in possession of disclosable material and request that material from Fujitsu –
Duncan Atkinson: Yes.
Mr Beer: – either pursuant to any contractual arrangements – and I think we’ll come back to those in Part 2 – but, if necessary, by issuing a witness summons or even seeking a production order?
Duncan Atkinson: Yes.
Mr Beer: Is the cost of obtaining material a relevant consideration in deciding whether to seek material from either a third party or an organisation, over which you have control, in terms of the disclosure of documents?
Duncan Atkinson: Not in those bald terms, no.
Mr Beer: Why not?
Duncan Atkinson: Because your obligation is to undertake appropriate and fair disclosure and that is not a cost benefit analysis. That is a hard and fast obligation. How you go about it – because there is always a margin of appreciation as to exactly how it is done, providing the result is fair, you may be able to take account of cost where there are different routes that will achieve the same ultimate objective. But only if they achieve the same ultimate objective.
And the cost may come into play in the sense that, if you come to the conclusion that to satisfy your disclosure obligations will be enormously costly, you may make the decision not to prosecute for that reason but that is the decision you would have to make. You can’t go ahead and prosecute knowing that you haven’t undertaken your disclosure obligations properly because it costs too much.
Mr Beer: Thank you. Can I turn, before the lunch break, to a separate topic, which is Section 69 of the Police and Criminal Evidence Act 1984. In broad terms, can you confirm that the purpose of Section 69 was to enable the admission into evidence of a statement contained within a document where that document had been produced by, for example, a computer?
Duncan Atkinson: Yes.
Mr Beer: That might include something like a readout from an Intoximeter or even a receipt produced from a till?
Duncan Atkinson: Yes.
Mr Beer: I think it’s right that concerns were expressed by the Court of Appeal before the repeal of Section 69 that its operation had been misunderstood; is that right?
Duncan Atkinson: Yes.
Mr Beer: As you have included in your report, the Law Commission made a recommendation for the repeal of Section 69?
Duncan Atkinson: Yes, so Section 69 had created certain precursors before a statement in a document produced by a computer could be admissible. It was recognised by the Law Commission that that was – particularly if misread as meaning if you’re relying on anything to do with the a computer you needed to go through that process, had become incredibly cumbersome. So they looked to see whether it was actually necessary and concluded that it was not.
Mr Beer: The Law Commission undertook a consultation exercise –
Duncan Atkinson: Yes.
Mr Beer: – the nature of which you set out from page 90 onwards of your first report.
Duncan Atkinson: Yes.
Mr Beer: So EXP0000002.
Duncan Atkinson: It was a consultation on a wider range of topics than just Section 69; it was dealing with hearsay –
Mr Beer: It was mainly about hearsay?
Duncan Atkinson: – but it included a section on whether Section 69 was fit for purpose or not.
Mr Beer: It’s paragraph 200 at the bottom. So there was a consultation exercise commencing in May 1995, with the Law Commission’s Consultation Paper 138, yes?
Duncan Atkinson: Yes.
Mr Beer: The problems with Section 69 were summarised by you in your (a) and (b) there; is that right?
Duncan Atkinson: Yes.
Mr Beer: One of the respondents to the Commission was the Post Office –
Duncan Atkinson: Yes, it was.
Mr Beer: – and you addressed that in your paragraph 206 on page 92, with a letter, the author of whom is redacted in the copy that both you and I have, from the Post Office to the Law Commission, which said:
“… ‘a large number of subpostmasters now complete their cash accounts and other accounting records by [using] a computer. The subpostmaster is often the only person working in a sub post Office or the only person who uses the computer. In the event of the subpostmaster being prosecuted for theft or false accounting, the Post Office may need to rely on the computerised accounting records. The subpostmaster is frequently the only person who can give the evidence required by Section 69 … In the absence of admittance or other direct evidence the Post Office may not be able to prove the case solely on the ground of being unable to satisfy the technical requirements of Section 69 … Computers are now being used within branch offices, Parcelforce depots and Royal Mail Sorting Offices’.”
You comment, over the page, please, at paragraph 207, that this submission is of note because it’s predicated on the basis that the person best placed to attest to the operation of the Horizon System was the subpostmaster, rather than the operators of the system at any higher level. At the time at which that was written, October 1995, it couldn’t have referred to Horizon?
Duncan Atkinson: No, I now appreciate that. Yes.
Mr Beer: It’s right I think, as you say in paragraph 208, to note that the Post Office was far from unique in its support for the repeal of Section 69?
Duncan Atkinson: No, that’s absolutely right.
Mr Beer: I think since you’ve written this report, you have received a high number of additional submissions from consultees which, save for one, supported reported the repeal of Section 69?
Duncan Atkinson: Yes.
Mr Beer: I’m not going to examine any of those in detail because that may be a matter we come back to later in the Inquiry. That material has been obtained by the Inquiry from the Law Commission itself?
Duncan Atkinson: Yes.
Mr Beer: The one exception, was that a company that specialised in the operation of computers and computer forensics?
Duncan Atkinson: Yes.
Mr Beer: Can you summarise what the opposition was, if you can remember?
Duncan Atkinson: So this was an organisation called Computer and Systems Telecommunications Limited and their position was that computer evidence was always to be regarded as legally unreliable and the question was only the extent to which it was unreliable, and that that was apparently because of its – and this I quote without necessarily entirely understanding it – “its inherent non-linearity in determinability and insecurity of the architecture of computer systems and software”.
And so the predicate of this submission was that it was necessary for there to be expert evidence to demonstrate that a computer system was reliable against a presumption that it would otherwise not be, because there was always the risk of faults within a computer system that anyone other than an expert might not be able to identify, and including the operators of a particular computer as being amongst those who wouldn’t necessarily know that it wasn’t operating properly in a material respect.
Mr Beer: Thank you. In any event, despite that opposition, the Law Commission recommended repeal and repeal occurred?
Duncan Atkinson: Yes.
Mr Beer: Thank you very much.
Sir, I think that’s an appropriate moment to break for lunch, if it is convenient to you. As you know, sir, we’re aiming to finish by 3.15 today and so if we broke now until 1.45, that would certainly give sufficient time to go through Mr Atkinson’s conclusions, which is the last and remaining topic for us.
Sir Wyn Williams: Yes, that’s fine, Mr Beer.
There is just one point that I’d like to clarify my mind with Mr Atkinson, arising out of the questions you asked him about what I’ll call third-party disclosure.
I think I know what you’re telling me, Mr Atkinson, but, if I put it in rather crude terms, it will help me to be certain about that. It’s this, really: if an investigator or a prosecutor gets to the point where they think it appropriate, in order to comply with disclosure duties, that they seek disclosure from a third party, the fact that their contractual position with that third party might make disclosure expensive or difficult or whatever other word you might wish to use, is irrelevant once they’ve determined that it’s appropriate to seek disclosure.
Duncan Atkinson: Yes –
Sir Wyn Williams: Is that correct?
Duncan Atkinson: – and so, sir, they would – once they had determined it was something that needed to be done, then they needed to do it, and if they couldn’t do it, they then needed to review whether the prosecution was viable without that having been done.
Sir Wyn Williams: But the simple point for me to keep in my mind is that the duty to seek disclosure in those circumstances overrides any contractual position –
Duncan Atkinson: Yes.
Sir Wyn Williams: – and if they don’t like the effect of the contractual position, they have to review whether or not to prosecute and, in an appropriate case, not prosecute?
Duncan Atkinson: Absolutely.
Sir Wyn Williams: Fine. Thank you very much.
Mr Beer: Thank you, sir.
Sir Wyn Williams: Sorry, that’s eaten two minutes into your lunch break. If you want to make it 1.50, that’s fine by me. Did you say 1.45?
Mr Beer: I now say 1.50.
Sir Wyn Williams: Fine.
Mr Beer: Thank you.
(12.50 pm)
(The Short Adjournment)
(1.50 pm)
Mr Beer: Good afternoon, sir, can you see and hear me?
Sir Wyn Williams: Yes, thank you.
Mr Beer: Thank you.
Good afternoon, Mr Atkinson. Two follow-up questions, if I may, from issues that we discussed this morning.
Duncan Atkinson: Yes.
Mr Beer: Firstly, I asked you some questions about the cases that established that a prosecutor is under a duty to disclose material that otherwise falls within the disclosure test that’s within the knowledge of “any arm of the prosecution”, and you answered to the effect that a prosecutor must include, within their consideration for disclosure, material obtained or generated in other cases in which they had been involved.
Duncan Atkinson: Yes.
Mr Beer: I mean, I’m summarising.
Duncan Atkinson: Yes, yes.
Mr Beer: Can I ask you about a slightly different aspect of the “any arm of the prosecution” principle. Can you confirm that, as a single organisation, which was a victim, a witness, an investigator and a prosecutor, the Post Office’s disclosure duties applied across the whole of the Post Office?
Duncan Atkinson: Yes.
Mr Beer: In other words, all departments or divisions within the Post Office were subject to a duty to retain and record information that was or might be relevant to the Post Office’s function of bringing prosecutions?
Duncan Atkinson: Yes.
Mr Beer: So the “any arm of the prosecution”, in this different context I’m referring to, relates to across the Post Office and the duty of retention and recording and then revelation applied not just to one department that happened to be conducting the prosecutions?
Duncan Atkinson: Yes, absolutely.
Mr Beer: Thank you. Secondly, the Attorney General’s Guidelines apply a test of reasonable practicability in obtaining disclosure from a third party and that has been interpreted in the case law as meaning or referring to a “persistent prosecutor who does not readily accept no for an answer” –
Duncan Atkinson: Absolutely.
Mr Beer: – and who is prepared to take the initiative and to apply to the court to enforce disclosure obligations against a third party?
Duncan Atkinson: Yes.
Mr Beer: In general terms, what obligation is there on an investigator and a prosecutor in testing the answers that they receive from a third party as to whether or not the third party holds relevant material?
Duncan Atkinson: One would assume that they would start from a position of having identified that third party as likely to have relevant material. If they received an answer back “We don’t have anything”, they would not just take that at face value and say “Thank you very much”, and go home. They would need to test that against their earlier expectation and be persistent in asking questions about the type of things that they had in mind, so that they drilled down into – in more detail what that third party has or has not got and the reasons they’re given as to why, if they say they haven’t got it, why they haven’t got it.
Mr Beer: So the duty might extend to asking the third party “Who is giving you your information within the third party? What searches have been made? Where have you looked? What criterion has been applied” –
Duncan Atkinson: Yes.
Mr Beer: – to satisfy themselves as to the completeness and reliability of the answer received?
Duncan Atkinson: Yes, and so, effectively, asking – if they say they haven’t got it, exploring why they haven’t got it and to test whether that’s right or not.
Mr Beer: So if a suspect in a particular case says “I’m suspected of theft or false accounting, based on data produced by a computer system that shows a discrepancy, a loss, which I can’t account for, but I can tell you this isn’t a real loss, the loss that is shown on your documents, Post Office, is an artefact of the computer system that produced the document. I haven’t been dishonest, I took no money. I think the error is in the system; there’s a bug, error or defect in the system”, would it be sufficient for the prosecutor or investigator who was relying on the data from the system to prove its case to ask the third party “Are there any bugs, errors or defects within your system?”
Duncan Atkinson: No, because you would, as a prosecutor, need to understand how that process was undertaken by the third party, to understand how reliable an answer it was. So if you said, “Have you got any bugs in your system?” and they say, “No”, that would not be enough. You’d need to understand what process of evaluation and testing had gone – been gone through so that they’re able to come to that answer, so that you are satisfied it was a reliable answer.
Mr Beer: So there is, to that extent, a duty to go behind the “No”?
Duncan Atkinson: Yes.
Mr Beer: Thank you.
Can we turn to your conclusions, please, and it’s Volume 1, which is EXPG0000002. At page 145, please, starting at paragraph 333 – so it’s the page before, thank you.
In this part of your report, from paragraph 333 right through to 391, so over the course of 20 pages, you set out your conclusions by reference to the questions that we asked you in your instructions.
Duncan Atkinson: Yes.
Mr Beer: In an attempt to try to draw the threads together, I’m going to use this as the basis for my questions of you.
In relation to the first question, an explanation of the law and practice of the conduct of private investigations or prosecutions between 2000 and 2013, I have taken you to these passages earlier in your evidence, and I wouldn’t, therefore, propose to repeat those now, unless there was anything you wanted to say about all of those paragraphs up to 343.
I realise that’s putting the onus on you to identify matters but it seemed to me that, one way or another, we had addressed all of the issues that you mention there?
Duncan Atkinson: Yes, I agree.
Mr Beer: Can we go forwards, please, to page 149, please, and to the second question, which raised issues as to non-independent investigations. You tell us in paragraph 344 that:
“In [your] judgment, special difficulties can arise where the same body is the victim, a witness, the investigator and the prosecutor.”
As we discussed briefly earlier:
“It has been recognised … in Asif v Ditta, that the fact that a private prosecutor has a motive other than the pursuit of justice for their actions does not necessarily make it improper for them to been a prosecution.”
But that case made it clear that the motivation of a private prosecutor carries with it a risk that proceedings are brought that aren’t in the public interest or the interests of justice.
The roles of investigator and prosecutor are roles that carry with them significant responsibilities and, if they are to be undertaken properly, have to be undertaken dispassionately, objectively and fairly.
That’s the point of principle that you raise –
Duncan Atkinson: Yes.
Mr Beer: – concerning non-independent investigations.
In paragraph 346 you draw a contrast and describe it as a significant one between the Post Office as an investigator and prosecutor on the one hand, the police, the CPS and other prosecutorial and investigative agencies on the other.
Duncan Atkinson: Yes.
Mr Beer: Can you just summarise the significant differences, please?
Duncan Atkinson: Yes. So the – by statute and by a barrage of policies issued under statute, the Crown Prosecution Service is absolutely a prosecuting organisation that is independent of those who have investigated the cases that reach it and it has a superintendent role, in relation to those investigations, as opposed to a role actually in the direction of the investigations themselves, which means that there is that testing back and forth between the two to ensure that, between them, they have complied with their obligations to ensure full and proper investigation and full and proper disclosure and proper and rigorously reached prosecuting decisions.
Other agencies either do the same thing through there being independent parties involved or by having very clearly defined, separate entities that do different things and with requirements as to how one monitors the activities of the other.
In contrast, I find it much more difficult to glean from that which I saw how that distinction was drawn and enforced within the Post Office, so that investigations were undertaken in such a way that they were transparent to the prosecutor and that the prosecutor was then able to reach an independent decision with a degree of superintendence of the investigation upon which it was based, in the way that other agencies had achieved.
Mr Beer: Thank you. If we go over the page to 347, you say that:
“There is a risk that may arise from a lack of such a statutory structure in that there is a lack of clarity and transparency as to areas of responsibility, routes to accountability and considerations relevant to the making of necessary decisions both in investigative and prosecutorial terms.”
Duncan Atkinson: Yes.
Mr Beer: So you’re saying that, because the division of responsibility and the inclusion of routes of accountability that a statutory structure gives you, the absence of them gives rise to the risks that you mention?
Duncan Atkinson: Yes, and those are risks that can be addressed, and other organisations, where I was able to see their structure, do address it. My concern was that looking at policies that ought to have made crystal clear that prosecution decisions were being taken independently of both the business and the investigation side of the business, those policies were not making that clear.
Mr Beer: You tell us at 348, at the bottom, that:
“A solution to the difficulty …”
That’s the absence of an express statutory regime that hardwires divisions of responsibility and accountancy into the organisation:
“… is arguably presented … (at least now) by the [Health and Safety Executive, whose] Enforcement policy entrusts the decision of whether to commence a prosecution to the Approval Officer, who should not be closely involved in directing, or identified with, the investigation process.”
Duncan Atkinson: Yes.
Mr Beer: So an attempt at least to separate the prosecution decision from –
Duncan Atkinson: Yes.
Mr Beer: – the conduct of the investigation.
You had previously highlighted – we had skipped over it in 347 there – seven or eight lines from the bottom of 347, you say:
“In areas such as disclosure this is important because the structure depends on the prosecutor providing advice as to and undertaking a second review of decisions by the investigator to ensure that the correct decisions are reached. No such safeguards are built inherently or transparently into the system where the same organisation performs each role, even more so where the organisation is also the victim of the alleged offending.”
Duncan Atkinson: Yes.
Mr Beer: Did you find an absence of those measures in the case of the Post Office policies when you turned to them?
Duncan Atkinson: Yes.
Mr Beer: Can we turn to those, then, over the page at 151. You tell us:
“In that regard here the wording of the relevant policies operated by the Post Office [gives] rise to concern.”
Then in 350, you identify, I think, three slightly different issues. You say in the March 2000 Investigation and Prosecution Policy it identifies that investigations undertaken in part by Security and Investigation Services, which is to be superintended by the Director of Security also takes – he also or she also takes prosecution decisions.
Duncan Atkinson: Yes, and so, rather than being a separation, it appeared that the same person superintended investigations and then took the decisions at the end of them.
Mr Beer: Secondly, building on that concern, the Director was enjoined to obtain legal advice but, as you read the documents, the decision was then taken by a non-lawyer?
Duncan Atkinson: Yes, I mean, that, I say, is predicated on not knowing whether the Director of Security was a lawyer or not but, certainly, the Director was required to obtain legal advice. He or she was required to consider it. They weren’t required to follow it and, in part, they were applying tests that were legal tests without being lawyers.
Mr Beer: Then lastly, at the end of that paragraph, you say, thirdly:
“… the involvement of Human Resources, which has a role in the consideration of employment and disciplinary issues in the making of decisions as to criminal proceedings is of concern, as it might be suggested that prosecution was a part of the disciplinary process rather than independent of it.”
Duncan Atkinson: Yes, and that where the persons being investigated were employees is a particularly acute consideration.
Mr Beer: You move on in paragraph 351 to advert to a different concern; is that right?
Duncan Atkinson: Yes.
Mr Beer: You say that a number of the Post Office’s policies drew attention to the fact that financial and business-related factors are relevant in the investigative and prosecutorial process –
Duncan Atkinson: Yes.
Mr Beer: – and in decision making in relation to each of them.
You give, I think, three examples of that: a policy in 2001, which says:
“… ‘factors that influence as to whether certain actions are required [in the context of an investigation] are based on the following: the potential loss to Consignia business in value, reputation and customer retention; quality … of the information (intelligence) and the level of incident, of probability; timeliness as to whether the incident reported is recent or not; a named suspect’.”
Secondly, the Royal Mail Group Criminal Investigation and Prosecution Policy included as a consideration the “priorities of the business”, and I think you told us yesterday it didn’t say what they were.
Duncan Atkinson: No.
Mr Beer: Then lastly, over the page, the policy that we’ve looked at, or seen you look at, in the past in three iterations, four iterations, identify that prosecution may be appropriate where a business leader, manager or employee is the subject of criminal investigation and grounds are established to suspect them of having committed a criminal offence, breached the group’s Code of Business Standards or subverted business systems controls and policies.
So, overall, what was your concern here about the identification of financial and business-related factors in investigative and prosecutorial decision making.
Duncan Atkinson: I’m not necessarily saying that a business is not entitled to take account of business considerations at all when it takes on the roles of an investigator and prosecutor but, where the policies were either very limited or silent as to, for example, the kinds of criteria for the assessment of the public interest that are set out in the Code for Crown Prosecutors or the Attorney General’s Guidelines, but were explicit about business considerations, the reader of the policy – be it me reading them for the purposes of this report or be it those working in the business at the time – would take away from it that the business considerations were the considerations that mattered, rather than ones that weren’t there, or only there in very abstract or bare terms.
Mr Beer: Thank you. You essentially set that conclusion out in paragraph 353, if you scroll down, thank you, five lines from the bottom. You say:
“On the review I have undertaken …”
That’s of the policies?
Duncan Atkinson: Yes.
Mr Beer: “… one proper reading is that the same personnel were involved in dealing with decisions whether to start a disciplinary process, a criminal investigation and a criminal prosecution and at each stage taking account of business priorities and financial considerations. That is not a reading that instils confidence in the independence, fairness or transparency of those decisions.”
Duncan Atkinson: Particularly if the situation is that the person taking, ultimately, a decision to prosecute is someone who is well versed in the business considerations through their job, less well versed in that degree of independent assessment, by reference to a wholly different set of criteria that an independent, fair and transparent prosecution decision would require.
Mr Beer: You make the point, by way of caveat, at the beginning of paragraph 353, that you hadn’t actually, at the time of writing, looked at any case-specific information – and that will follow –
Duncan Atkinson: Yes.
Mr Beer: – in December – but you make the point that any such assessment ought to start with the policy and guidance framework in place?
Duncan Atkinson: Yes. I was asked to look at law and practice and, as I said yesterday, practice I, at this stage, gleaned from what the policies inform me as to the practice.
Mr Beer: Thank you.
Can we turn to the second part of our second question to you, namely Post Office investigations policy. At paragraph 354, you say:
“The terms, and adequacy, of Post Office policy documents concerning the conduct of investigations falls to be judged in a number of categories, by reference to the iteration of the policy being considered, and the statutory and other extra-Post Office guidance that applied to the areas addressed by those policies.”
Duncan Atkinson: Yes.
Mr Beer: Essentially, to decode that a bit, are you saying that the policies changed over time, as did the regulatory landscape over time?
Duncan Atkinson: Yes, or, perhaps more accurately, given the situation as I found it to be, the landscape was changing on a fairly regular basis over time. Policies changed from time to time with the effect of giving some effect to that changing landscape.
Mr Beer: Thank you. Over the page to page 153, please. You say in those policies, which did seek to address investigative areas otherwise covered by PACE, what was required from them was: firstly, to identify those areas that Post Office investigators could do and could not do for themselves, and those which required the involvement of the police; secondly, to identify how the liaison with the police service was to operate and how its results were to be assessed; and to identify, thirdly, those areas which, by virtue of Section 67(9) of PACE – remembering that’s the provision that applied through a ‘have regard’ duty –
Duncan Atkinson: Yes.
Mr Beer: – all six Codes of Practice to the Post Office are governed by the codes issued under PACE and how their requirements are to be met.
Duncan Atkinson: Yes.
Mr Beer: In paragraph 356, you address the extent to which those policies complied with those three requirements. Can you summarise your view?
Duncan Atkinson: Yes, so the position in relation to PACE and the codes under PACE went very much from nearer famine to nearer feast over the period of time that I was considering. So, at the beginning of the period 2000/2001, there was name checking of PACE and the codes. By the later policy documents that I saw, there was a good deal more detail of how PACE and, more particularly, the relevant codes under PACE applied in areas, for example, searches and, in particular, interviews.
Mr Beer: Thank you. In paragraph 357 you tell us that, by reason of those defaults, there was a risk that there would have been inadvertent non-compliance or inconsistent compliance with PACE, albeit you say that was addressed by the training materials that are copyrighted in 2000 and which did seek to address relevant sections of PACE codes in relation to, for example, searches, arrests and interview. But you make the point that the fact that such training material could or did address those issues, that raises the question why the same analysis wasn’t set out in the policies?
Duncan Atkinson: Yes.
Mr Beer: How deep a level of concern is that?
Duncan Atkinson: I think in the initial period, the post-2000 period, I think it’s a real concern because, if the aim of your policy is to ensure consistent application of the law and procedure by all those who are undertaking your investigations, then it needs to be spelt out in your policy what it is they’re required to do.
If you rely on a bare bone policy and people are undertaking their own researches or remembering their own training, then that will not achieve consistency. And it seemed to me that the Post Office had recognised that because, in PACE respects, their policies became so much more detailed.
Mr Beer: Turning to the CPIA – and I think you start that at paragraph 363 –
Duncan Atkinson: Yes.
Mr Beer: – which is at the foot of page 155, thank you – you say:
“A similar approach, and similar development of detailed guidance in policy documents, can be identified in relation to those investigatory policies that address the application, by virtue of Section 26 of the CPIA, of the CPIA and its Code of Practice to the Post Office. In policies … in 2000, 2007, and 2010 there were references to the need to comply with the CPIA, without any identification of which parts of the CPIA were engaged, how compliance was to be achieved or reference beyond the fact of its existence to the Code.”
Duncan Atkinson: Yes, so it was name checking again, rather than the detail. It was better in relation to those aspects of the CPIA specifically relating to disclosure, although there were fundamental omissions to that, which I know we’re coming on to, but, in other respects, it was – there was more name checking than detail and I saw less training material in relation to the CPIA to comfort me in relation to that.
Mr Beer: You conclude in this section:
“It is difficult to see how compliance would either be achieved or measured by reference to such policies, or by the lack of direct and detailed training, by reference to the training materials that [you had] seen.”
Duncan Atkinson: Yes.
Mr Beer: You tell us, if we scroll down in paragraph 364, that:
“Although … the definition of a criminal investigation in Post Office policies accorded with that in the CPIA …”
That is the point that it is a recognition by the Post Office that the undertaking of its criminal investigations triggered the relevant provisions of the CPIA.
Duncan Atkinson: Yes.
Mr Beer: “… the rationale and considerations relevant to those included some of the business related factors”, that you have set out above.
There was a development in the degree of detail given as to investigative roles and the three Rs from an adequate starting point in the disclosure policy of May 2001, but that concerned disclosure rather than investigations.
At 365, you set out your conclusion. The policies that you had seen would have been of assistance to those engaged in investigations but would not have been sufficient of themselves to ensure that they understood which aspects of PACE, CPIA and their codes had application, or how to monitor such application. This was stark in relation to disclosure –
Duncan Atkinson: Yes.
Mr Beer: – and the pursuit of reasonable lines of inquiry –
Duncan Atkinson: Yes.
Mr Beer: – which we’re about to look at.
So looking at this aspect of your work, namely the Post Office investigations policy, how would you describe the adequacy of them across the relevant period?
Duncan Atkinson: So in relation to the Police and Criminal Evidence Act and the codes thereunder, it got better as the period went on. In relation to both areas, both PACE and CPIA, I did consider that, in whole or in part, they were not sufficient to ensure that consistent application of what was required. I repeat again the caveat that I have not seen the database and, therefore, can’t speak to the extent to which, if it did, that remedied that situation.
But, as explained yesterday, it is not enough to tell someone there’s a code or even to tell them where they can download the code. They need to understand what they’re meant to do with it and that’s where policy comes in, particularly if you’re a non-police investigator and, therefore, need to understand which parts are the parts that (a) apply to you and (b) that matter.
Mr Beer: So the existence of the database is not a panacea by way of answer to the list of problems that you’ve identified?
Duncan Atkinson: No, I mean, if I am right in my understanding of the database, that it was making available to those charged with investigations and prosecutions, the material that was relevant to their jobs, then it was a good thing that it was there. If they were getting circulars that were telling them about updates to it, then that was a good thing too. If the circulars were such as the ones I have seen and were doing no more than saying there’s a new code G, there was a limit to the benefit that was to them.
But the place that seemed to me one would logically look to find out how you’re meant to do your job in an important respect is to look at what the policy was for how your organisation had identified that job should be done and, if that policy didn’t tell you, then you were having to work it out for yourself.
Mr Beer: Can we turn, please, to the third part of question 2, namely the duty, the cornerstone duty under the CPIA, placed upon investigator to pursue all reasonable lines of inquiry, whether they point towards or away from a suspect. You tell us at the top of page 157 that that obligation arises in every criminal investigation. It had, as its origin, perhaps, the decision of the Court of Appeal in Ward?
Duncan Atkinson: Yes, and that I think is important, because it underlines the fact that the duty to pursue reasonable lines of inquiry, including those that exonerate rather than implicate, emerged, to an extent, from a situation where there had been a miscarriage of justice because that had not been done, and so that is the warning from the beginning: that this is why you have to do this.
Mr Beer: In paragraph 367 over the page, you tell us “Despite this”, and the despite is that that requirement was in the Code right from its first iteration in 1997?
Duncan Atkinson: Yes.
Mr Beer: “… the duties of an investigator to pursue a reasonable line of inquiry including those leading away from a suspect was not spelt out in any Post Office policy that you have identified until the 2010 revision of the 2001 … Unused Material policy.”
Duncan Atkinson: No, that’s right.
Mr Beer: You say it follows that there was a significant period of time when, on the documents you have seen, the need to investigate lines of inquiry that might exonerate a suspect was not spelt out as being necessary. It is difficult to conclude, therefore, at a policy level, that such a requirement was recognised or undertaken and no training material cures the omission.
Duncan Atkinson: No.
Mr Beer: How significant an issue was that lines of inquiry omission?
Duncan Atkinson: In my judgement, very significant because it is so fundamental to making sure that investigations and, therefore, prosecutions arising from investigations are fair and, if your policy is not telling your investigators of the bedrock of what they’re meant to be doing, then your policy is deficient in a way that could lead to your investigators not appreciating that, and that can lead to unfairness and can lead to miscarriages of justice.
Mr Beer: In paragraph 368 and following, you apply that general point to cases involving reliance on Horizon data, and you say:
“… in the present circumstances, that requirement in particular involves consideration of whether investigations included consideration of whether accounting shortfalls at Horizon terminals might lie with the computer system, either as a matter of course or where such a possibility was raised by a suspect in interview.”
The way you put it there as the possibility required examination either as a matter of course or where the suspect had raised it in interview, why would it be raised as a matter of course without a suspect saying, “My computer has a bug with it”?
Duncan Atkinson: If, as it seems to me, the basis for your identification of a shortfall is that the computer says there is one, it is a reasonable line of inquiry to ensure that that is right, or at least to inquire as to whether there is any risk that it is not, and that is not a suspect-dependent situation. It is reasonable line of inquiry, in any case where that is the basis for your approach.
You can test it a number of ways, you can look to see if there is evidence of a financial benefit to the suspect, which would show that what the computer was telling you may be right because you can see the money, and “follow the money” is standard investigative cliché but a standard investigative approach in cases where there is meant to be a financial benefit –
Mr Beer: Just stopping there, sorry to stop you in mid-flow, just so that I and others may understand, when you say “follow the money” is a standard investigative approach, do you mean looking in the bank accounts –
Duncan Atkinson: Yes.
Mr Beer: – for example, or other financial accounts of the suspect to see whether money from an unascertained source or even from, in this case, a Post Office source, has been paid in –
Duncan Atkinson: Yes.
Mr Beer: – or, you know, the classic looking for a boat on the drive type investigation?
Duncan Atkinson: And so, if your suspicion is that – the computer says there’s a shortfall and your suspicion is that shortfall is caused by the postmaster stealing the money, then you look to see if you can find the money. If you can’t find the money, another reasonable line of inquiry will be to look to see where else it could have gone.
But a further line of inquiry will be to look to see well, given that I can’t see where the money has gone, I will need to check that it has gone, and that takes you back to the computer system. So either, from the outset, by looking at it as “I’m relying on the computer, is the computer reliable”, or “I can’t find the money, is the computer reliable?” It’s a reasonable line of inquiry. It’s a line of inquiry that may well lead you away from the suspect but that is why you need to understand that that is your job.
Mr Beer: We’ve heard evidence from Richard Morgan, King’s Counsel, who acted for the Post Office in civil proceedings bought against the subpostmaster Lee Castleton, and he said – and I summarise his evidence – that he regarded it as axiomatic that, if he was to seek to prove a case based on a shortfall that was calculated by a computer system, he would be required to prove the reliability of the computer system.
Would the summary that I have just given of his approach in civil proceedings equally apply in criminal proceedings?
Duncan Atkinson: Yes.
Mr Beer: You continue, in paragraph 368, in the fourth line:
“Until 2013, no policy document that I have considered addressed the need for such a line of inquiry to be pursued.”
Indeed, if anything, there was some suggestion to the contrary in the Casework Management policy in 2000 and 2002, which required full details of any failures in security or operational procedures identified, which may or may not be directly connected to the offence to be included in the investigation report.
It added:
“… ‘the issue of dealing with information concerning procedural failures is a difficult one. Some major procedural weaknesses, if they become public knowledge, may have an adverse effect on our business’. Although the section concluded ‘The usual duties of disclosure under the CPIA … still apply’ … if [your] reading of the policies is correct, the need to be aware of the reliability or otherwise of Horizon data was not identified as a matter to be investigated routinely.”
Duncan Atkinson: No, and those policies I just highlighted, on one reading, were providing a series of reasons why it would not be desirable to disclose any such problems.
Mr Beer: And that’s aside from the answer to my question earlier about whether there was, in the policy, an inbuilt requirement not to disclose the investigation report –
Duncan Atkinson: Yes.
Mr Beer: – which may reveal weaknesses in business practices or systems?
Duncan Atkinson: Yes.
Mr Beer: You continue:
“In the 2013 policy … there was reference to Horizon in the investigation context. However, there was no reference to consideration of, or either investigation of or disclosure of, anything that might suggest a failure in the operation of the system, as opposed to failure by the subject in its operation. It was in the 2013 prosecution policy that there was a reference to consideration of whether there was an issue as to the integrity or reliability of IT and data systems.”
Duncan Atkinson: Yes.
Mr Beer: So it’s only right at the end of our relevant period –
Duncan Atkinson: Yes.
Mr Beer: – in 2013 that that is written into any policy?
You tell us that this lack of guidance is a matter for real concern because it did nothing meaningful to address the risk that those engaged in Post Office investigations would not have appreciated the need to consider the operation of Horizon and its operation as part of their investigations.
That was an issue particularly after the repeal of Section 69. It didn’t encourage prosecutors to consider this topic as a matter of course. It’s omission from policy reduced the chances of this being identified as an omission in any supervision or review of investigative steps and lines of inquiry.
How serious a concern do you hold in relation to the material that you have read?
Duncan Atkinson: The fact that, in 2013, it was thought important to explicitly refer to the need to consider the integrity and reliability of data systems carried with it a recognition that this was, in the Post Office context, a very important factor to be considered because so many Post Office prosecutions of the kind that we’re here concerned with related to data and what that data said.
If your policies do not address the need to consider the reliability of data, there is every risk that the investigator will not consider it. There will then be every risk that the prosecutor will not consider it and, therefore, not set the investigator off on a line of inquiry in relation to, that it will not be a facet of the reliability of evidence that will be considered in a prosecution decision and will not be a facet of the material that will be considered for the purposes of disclosure.
And so, if you don’t write it down anywhere, it becomes all the more difficult for it to be considered and, where it is the evidence that underpins an investigation and a prosecution and its reliability is not something that is being considered, things will go wrong.
Mr Beer: Thank you. Can we turn to charging decisions, which is our third question, and go over the page, please, to paragraph 372. You tell us that the benchmark, the clear benchmark, for the assessment of charging decisions is the Code for Crown Prosecutors. You note the two-part test, and then, in the sixth line, you say:
“Each of these two criteria, evidential and public interest, is addressed in a series of questions to be considered. This detail is important because it highlights a range of factors relevant to both stages of the test, some of which will have greater import in some factual circumstances than others.”
Is the point that you’re making there that it isn’t sufficient to state that there are two criteria, one evidential and one public interest?
Duncan Atkinson: Yes, because you can say to yourself: have we got enough evidence to prove what we suspect? And, if you’re just looking at quantity rather than quality, then that will not necessarily lead you to the right conclusion. If you ask yourself the question, is it in the public interest for us to prosecute without understanding what that means or what it may mean, then you can come to a perhaps rather supervision view as to what public interest means or think that it is just a rather straightforward tick box, in the sense that, if they’ve committed an offence, of course it is in the public interest to prosecute them, without drilling into what is actually a much more nuanced process.
Mr Beer: You make the point that the Code requires consideration of material that might call into question the reliability of evidence that is relied upon.
Duncan Atkinson: Yes.
Mr Beer: Is that a reference to those variable – there’s five, there’s six, there’s eight, I think, depending on which iteration of the Code one looks at, which direct prosecutors actively to test the reliability of the evidence that they propose to rely on?
Duncan Atkinson: Yes, and, of course, those questions in the Code are designed to address a whole range of offences and so they may, for example, refer to the reliability of a witness but, when you read them as a set and think “What is this asking of me?” it is clear it is asking you to assess the reliability of the material that you are relying on. And so where what you relying on is data, rather than an eyewitness, it reminds you that you need to consider the reliability of that data.
Mr Beer: Moving to paragraph 373, four lines in, you say the earliest reference to the Code in Post Office policies that you could find was in 2007 but that policy acknowledged the use of the Code, rather than addressing in any detail at all how it was to be applied or which features peculiar to the offences investigated by the Post Office were relevant to a charging decision?
Duncan Atkinson: Yes, and one could test that, it seemed to me, by comparing the name checking in 2007 with the detail in 2013 and the new prosecuting policy that was derived then, which did spell out, in detail, a whole series of Post Office directly relevant considerations, and would allow for a prosecutor properly to carry out the task of reaching a prosecuting decision in a way that just saying “There’s a Code out there” wouldn’t.
Mr Beer: Over the page to 374, please. You I think make a point that you made a couple of moments ago: that, although the list of reliability considerations included in a Code for Crown Prosecutors had to be broad because of the range of the offences –
Duncan Atkinson: Yes.
Mr Beer: – being considered by the CPS, essentially they were directing a prosecutor to consider the reliability of the evidence they proposed to rely on, whatever form that may take?
Duncan Atkinson: Yes.
Mr Beer: In this case, logically, where a prosecution depended on Horizon data, it required consideration of whether there was anything that might undermine the reliability of the Horizon data; is that right?
Duncan Atkinson: Yes, absolutely.
Mr Beer: Thank you. You say in the first sentence at paragraph 375:
“It follows that for almost if not the whole of the Inquiry’s relevant period, Post Office policies did not include any detailed application of the Code for Crown Prosecutors, to the extent that they recognised its application at all.”
Duncan Atkinson: Yes.
Mr Beer: How serious an issue is that?
Duncan Atkinson: It ties in with my concern that we’ve already considered of who was making the prosecution decisions, as opposed to what legal advice they might have received along the way. But particularly if considerations – decisions as to prosecution were being taken other than by lawyers, then the lack of detail as to what they needed to consider in a Post Office context in order to do that ran real risks of decisions that were not properly grounded in identifiable principle.
And a failure to acknowledge, analyse and set out what a code for Post Office prosecutors needed to address in reaching prosecution decisions ran the risk of those decisions being in error.
Mr Beer: Thank you. In paragraph 376 you allude to the absence in Post Office policies, all of them, of any reference to the DPP’s Guidance on Charging?
Duncan Atkinson: Yes, and really that’s because that identifies the separation of roles, the separation of decision-makers, where – on the one hand, and the lack of clarity as to that in Post Office policies, on the other. That just concerned me.
Mr Beer: Thank you. You can include at the end of that paragraph:
“This removed the [over the page] potentially important safeguard of an independent and ultimately decisive second opinion before a decision to charge was reached.”
Duncan Atkinson: Yes.
Mr Beer: Can we turn to the decision in Eden. I’m not going to ask you about paragraph 377 because we addressed that this morning. Can we turn to 378. You say that, whether it was Post Office practice to charge both theft and false accounting, despite the judicial approval given to that practice by the Court of Appeal in Eden, can be looked at in Volume 2, because you need to see the facts?
Duncan Atkinson: Yes.
Mr Beer: But it’s noteworthy that in the material you had seen, Chris Aujard’s policy document noted that, typically, that which the Court of Appeal disapproved was gone?
Duncan Atkinson: Yes, and Eden is not saying – and I’m not suggesting that Eden is saying – that you cannot have both theft and false accounting on an indictment.
Mr Beer: No.
Duncan Atkinson: What Eden is saying is you need to think why you’ve got them both on the indictment and what they’re there for.
Mr Beer: Over the page to 379. You say that, whether there was a practice of plea bargaining needs to wait for Volume 2.
Duncan Atkinson: Yes.
Mr Beer: Is that the long and short of it?
Duncan Atkinson: Yes.
Mr Beer: Thank you. “Initiation of proceedings”, the third part of our question 3. Is it essentially this: that because proceedings were initiated by way of laying of an information and the issue of a summons by the Post Office, a proper procedure, there was a duty of candour that required to be complied with, there was no reference in any document to that duty?
Duncan Atkinson: No, and although the case that I point to is a decision in 2018, it was not plucked out of the air in 2018. It was founded on a series of cases over a longer period of time, so throughout the Inquiry’s relevant period.
Mr Beer: Thank you. Question 3(d), over the page at 163. You say in the second sentence that you do have concerns as to the adequacy of the disclosure regime erected by the Post Office policies in the relevant period and there’s a real question as to whether those policies were sufficient to ensure that disclosure was properly undertaken, considered and completed in cases prosecuted by the Post Office in that period?
Duncan Atkinson: Yes.
Mr Beer: You tell us in 383:
“This is of very real concern because the risks posed by failures of disclosure were already well understood before the Inquiry’s relevant period commenced.”
So the miscarriage of justice cases had already, at least in this respect, passed through the CACD.
Duncan Atkinson: Yes.
Mr Beer: You say in 384 that the Post Office correctly identified and at least briefly addressed the duty of disclosure under the CPIA and the amplification of that duty in the Code from 2001 in its disclosure policy of that date. However, it did so in outline and without specific reference to the Code. It took until a decade later, July 2010, to do so?
Duncan Atkinson: Yes, and so if the suggestion is that there’s a policy and outline and one could go away and read the Code to resolve any questions one had, it would certainly help someone to do that if you told them where to look within the Code, rather than just saying there is one.
Mr Beer: Over the page to 385, please. You say:
“Importantly … my particular concern in policy terms is the failure of Post Office policies that [you] have seen to refer to, apply and address the succession of iterations of the Attorney General’s Guidelines on disclosure.”
Duncan Atkinson: Yes.
Mr Beer: That’s because they address the pursuit of reasonable lines of inquiry and the important role of prosecutors in advising an investigator on reasonable lines of disclosure and the act of undertaking disclosure?
Duncan Atkinson: And also, as we’ll come on to, third party disclosure as well.
Mr Beer: You make that point in paragraph 386. You say that “critically” – in what respect was it critical?
Duncan Atkinson: The policies that I saw did not address third-party disclosure. 2001 disclosure policy did acknowledge the existence of a guideline from the Attorney General; the 2010 didn’t do that. But, in terms of making it sort of part of the muscle memory of an investigator and a prosecutor that that was a real part of their role, it didn’t give them a lot of help and, certainly from 2010, didn’t give them any at all.
Mr Beer: In the third line you say:
“This is of great potential importance given that Fujitsu would represent a third party in possession of material that might have been relevant to prosecution cases by reference to its relevance to the reliability of the Horizon System. There was nothing in the … policies that [you had] seen explicitly to direct a prosecutor’s attention to the need to consider whether material had been sought as to the reliability of the system, or to assist as to how and from where that material should be sought if it was outstanding. That is far from satisfactory position.”
Duncan Atkinson: Yes, and I should say that I had approached, for these purposes, Fujitsu as a third party without any consideration of the contractual position and what that might mean. That is for cleverer people than me.
Mr Beer: Sorry, I missed the last part of that sentence?
Duncan Atkinson: That is for cleverer people than me to understand.
Mr Beer: Can we turn over the page to paragraph 388. You deal with Section 69 of PACE.
Duncan Atkinson: Yes.
Mr Beer: I don’t think there’s anything additional there –
Duncan Atkinson: No.
Mr Beer: – to the evidence that you gave earlier that I need to illicit.
Mr Beer: Mr Atkinson, thank you very much for the evidence you’ve given. They’re the only questions that I ask.
I know that there’s one Core Participant, sir, Mr Stein, who has a small number of questions to ask.
Sir Wyn Williams: Over to you, Mr Stein.
Questioned by Mr Stein
Mr Stein: Mr Atkinson, can I take you please to your report, finishing in a considerable number of zeros and 2. In particular, I’ll ask you a couple of questions about paragraphs 254 and 253, internal pagination, page 112.
Duncan Atkinson: Thank you.
Mr Stein: Now, this part of your report you’re discussing the 2000 version of the AG’s Guidelines. And then at paragraph 255 you quote from the Guidelines. I’m just going to go through the first paragraph that relates to those quotes that you’ve set out there in italics:
“Generally material can be considered to potentially undermine the prosecution case if it has an adverse effect on the strength of the prosecution case. This will include anything that tends to show a fact inconsistent with the elements of the case that must be proved by the prosecution. Material can have an adverse effect on the strength of the prosecution case (a) by the use made of it in cross-examination; and (b) by its capacity to suggest any potential submissions that could lead to (i) the exclusion of evidence; (ii) a stay of proceedings …”
Now, can we just deal, please, with what you have set out there at numerals (i) and (ii).
Duncan Atkinson: Yes.
Mr Stein: If you would please, could you explain, no doubt in reference to Section 78 of the Police and Criminal Evidence Act, possibly Section 76, what you mean by the “exclusion of evidence”?
Duncan Atkinson: So Section 78 of the Police and Criminal Evidence Act is a route to the exclusion of evidence that would have an unfair effect on the proceedings, which will include by reference to how that evidence was obtained. And so if, by way of example, there was reliance on computer data as evidence against an accused, if there were material that might show that there was unfairness in that reliance by reference to how that data had been obtained, whether that data was reliable, whether it was possible properly within the proceedings to explore its reliability, those would all be factors that could be deployed by those acting on behalf of the defendant to exclude the evidence.
And, clearly, they can only do that if they are aware of that material, which is why it should be disclosed to them, so that they can then make the decision whether to pursue the argument or not.
Mr Stein: Yes. Those sorts of exclusionary arguments within criminal proceedings can sometimes exclude part of a prosecution case –
Duncan Atkinson: Yes.
Mr Stein: – occasionally, the entirety of the prosecution case –
Duncan Atkinson: Yes.
Mr Stein: – though that is quite rare. So the effect of that can be that it removes from the criminal proceedings, the trial before a Magistrates Courts or a jury, some aspects of a prosecution case; is that a fair description?
Duncan Atkinson: Yes, yes.
Mr Stein: Okay. Let’s then move on to the next part, which is a stay of proceedings.
Duncan Atkinson: Yes.
Mr Stein: Now, a stay of proceedings is a familiar term to people that work within both civil areas of work in law and criminal. A stay of proceedings is a reference to an abuse of process?
Duncan Atkinson: Yes.
Mr Stein: Fundamentally, we, working within the criminal justice system, are used to the two different levels of abuse of process, one which is that a trial should not occur because to try an individual in those circumstances is unfair, yes?
Duncan Atkinson: Yes.
Mr Stein: And the second, which is where there is some unfairness that, in the circumstances of that particular case, in other words relevant to that case, that may mean that particular trial should not go ahead; is that right?
Duncan Atkinson: Yes, either that they cannot, for whatever reason, receive a fair trial or that it would, in any event, be unfair to try them.
Mr Stein: Yes. So we’ve just analysed the question of exclusion of evidence and then the stay of proceedings. And the evidence that forms the basis for making applications to remove part of a prosecution case or indeed to stay proceedings often actually has to come from the prosecution?
Duncan Atkinson: Yes.
Mr Stein: That can often happen in circumstances where the defence have absolutely no knowledge that there could be such an application, either to exclude or indeed to stay the case?
Duncan Atkinson: No, that’s right.
Mr Stein: So helping put this all together, do you agree it means that prosecutors and investigators need to be aware that their duty extends to the disclosure of information that may thoroughly undermine, effectively ruin their case entirely, that if they were in the job of just winning with no regard to truth or justice, they wouldn’t in 1 million years disclose, that actually they have to disclose?
Duncan Atkinson: They have to do rather more than that. They have to disclose in that situation that you posit, but they don’t have to be – to think that this is actually going to ruin their case. If they think it is a proper argument for the defence to run, even if they think it’s one that they have an answer to, they still have to disclose it to give them the opportunity to try.
Mr Stein: Yes. So if I take you now, please, then to, within the same report, your report, page 117, paragraph 266. Now, to an extent, we’re about to emphasise really the same point that you’ve just made. Paragraph 266.
So this is in reference now to the 2005 Attorney General’s Guidelines. So we’ve moved on slightly in terms of time, fundamentally the basic position remains.
Duncan Atkinson: Yes.
Mr Stein: If we look at 266, what’s described as primary disclosure is now defined as follows, paragraph 8 within the Guidelines:
“… ‘Disclosure refers to providing the defence with copies of, or access to, any material which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused, and which has not previously been disclosed’.”
So if we break this down, in terms of the two points that I’ve just been asking you about, in other words the ability for the defence to mount an argument to exclude information or exclude evidence, or the defence to put forward an abuse of process application, the prosecution duty isn’t just to disclose it where it is, if you like, a home run for the defence; it is to disclose it where it might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused.
So in the two regards, do you agree, that I’ve been asking you questions about, applications to exclude evidence or stay proceedings, where the words say “or of assisting the case for the accused” we might read that including “or assisting the case of the accused”, in terms of putting forward an application to include evidence or to stay the proceedings; is that right?
Duncan Atkinson: Yes, yes it is.
Mr Stein: So in adding up the position that you reached when you are the prosecutor, you have to make sure that you are keeping in mind all of the different range of applications that might be made within the trial process and considering those as though you are in the shoes of the defence, if you’re aware of the information; is that fair?
Duncan Atkinson: Yes, and that’s why it is explicitly recognised that it’s a continuing obligation, because things will develop and you could not potentially be criticised for anticipating an argument at the very beginning of the process when you first see the papers but, as information comes in, you should always be considering what does this mean and what does this mean for my disclosure obligations? Because it might be that a defence line occurs to you that they should be entitled to explore, and that means you have to disclose them.
Mr Stein: Yes. That’s paragraph 267, reference to the continuing duty?
Duncan Atkinson: Yes.
Mr Stein: So the continuing duty is both before the proceedings start, so in the run-up to the trial itself; is that right?
Duncan Atkinson: Yes.
Mr Stein: Through the trial process?
Duncan Atkinson: Yes.
Mr Stein: Just to nail this down, what about when the jury has gone out, if it’s a jury case?
Duncan Atkinson: Your disclosure obligations would continue up to and including the point of verdict. They would still continue even after that, although, post-conviction, the post-disclosure obligations are slightly different but they still exist.
Mr Stein: So these duties, in relation to the very points that we’ve looked at regarding disclosure, regarding a possible application for exclusion, stay of proceedings, these are all wrapped up within the continuing duty to disclose?
Duncan Atkinson: Yes.
Mr Stein: Okay. Now, the question of consideration, therefore, as we’ve seen from the 2000 Attorney General’s Guidelines, has been well known to prosecutors since at least the year 2000, probably, in fact, if we look back a bit, before that, that the disclosure duty applies to the stay of proceedings and exclusion of material. This is built in to the system?
Duncan Atkinson: Well, I forget off the top of my head when Ward was but Ward was all about the exclusion of material and material that should have been disclosed to allow for the exclusion of material. So that, certainly, is very much part of the fabric of what a prosecutor should have in their – mixed metaphor – but should have available to them.
Mr Stein: So let’s go back to paragraph 266, page 117 of your report:
“… ‘Disclosure refers to providing the defence with copies of, or access to, any material which might reasonably be considered capable …’”
Can I just concentrate on the words “any material” for a moment, please. You’ve been asked number of questions by Mr Beer today about what sort of information might be useful in terms of useful to be disclosed to the defence. Mr Beer was raising the question in terms of an allegation being made against a postmaster, and the postmaster is saying, “Not me. I did not nick the money, I didn’t take that money. There’s something wrong with this system”. Okay?
So I put it in a different anyway to Mr Beer, who did it much more elegantly, but that’s roughly what he was saying; do you agree?
Duncan Atkinson: Yes.
Mr Stein: All right. Now, help us a little bit further in that. The questions you were asked by Mr Beer was about the situation whereby there are known to be some defects, let’s be generous, within the Horizon System. So knowledge of problems with the Horizon System, from what you’ve said to Mr Beer and in your report, essentially should be disclosed, yeah?
Duncan Atkinson: It would always depend to an extent on your appreciation of what those defects were and so, just as the concern before they repealed Section 69 was that there was this misunderstanding of how Section 69 worked, that if you were using a computer and there was anything wrong with it, then the computer evidence was out, even if it had nothing at all to do with anything you were relying on. You would have to – and so if there were a defect that had nothing at all to do and could have nothing at all to do with what was in issue, then that wouldn’t necessarily give rise to disclosure, but if it might, then you would.
Mr Stein: So a non-material defect that related – I don’t know – to it taking there were three days to back-up and, in fact, it should only take two and a half days?
Duncan Atkinson: Yeah.
Mr Stein: Well, we might consider that as being non-material.
Duncan Atkinson: (The witness nodded)
Mr Stein: If the machine could cause shortfalls, we’re talking about something quite different?
Duncan Atkinson: Yes.
Mr Stein: Now, help us where there is knowledge within the Post Office of the fact that it is either very difficult or impossible to prove a loss. So we have an individual, a subpostmaster, who is facing an allegation by the Post Office of having taken money, essentially taken money, from the Post Office. The Post Office want to prove that allegation of theft against that individual and they may or may not have a false accounting charge on the charge sheet or indictment.
Now, if the Post Office is aware that they can’t or it is extremely difficult and very expensive to prove the loss through the system, so in other words proving a negative – they can’t do this, they can’t prove a loss – should that material, should that information be disclosed? So proving, in the sense, a negative, “We can’t do this”?
Duncan Atkinson: It would potentially and only potentially – and it would depend on the facts rather more than I understand them at present – but it would potentially depend on how they were putting their case. If their case was the computer says this amount of money was stolen by you, that’s what this data shows and, in fact, they can’t prove that there was a loss at all, then that is something that undermines their case, because it’s directly contrary to what they’re asserting and, on that situation, they should, if they want to go ahead with the prosecution, be disclosing the material that shows that.
Mr Stein: So the fact that something may not, in fact, be directly in writing somewhere, in other words it’s corporate knowledge that the Post Office can’t prove a loss using the Horizon System, that is still perfectly capable of being disclosed?
Duncan Atkinson: Depending on the circumstances, yes.
Mr Stein: Depending on the circumstances.
I think that the report you’re working on at the moment is going to be looking at individual cases.
Duncan Atkinson: Yes, it is.
Mr Stein: Excuse me for one moment.
Thank you, Mr Atkinson.
Sir, no further questions.
Questioned by Sir Wyn Williams
Sir Wyn Williams: Mr Atkinson, Ward was decided in 1993, so you tell us at paragraph 366, or at least the footnote to that paragraph.
Duncan Atkinson: Yes.
Sir Wyn Williams: I take it that that was the first authoritative exposition of disclosure in the way that you have described it following the Act. The Act was in 1985, was it? Yes?
Duncan Atkinson: So Ward was very much concerned with a failure of disclosure by the combination of an expert, and the prosecution relying on the expert, of material that undermined the expert’s conclusions. And it put into clear focus the need for there to be disclosure in that kind of situation, and the fact that if there wasn’t a disclosure in that kind of situation, there would at least be a risk, and on the facts of that case, there was a miscarriage of justice as a result.
And the whole structure since then, through things like the CPIA, has been designed to try and prevent that happening again.
Sir Wyn Williams: Yes. My point is I think, all that was going through my mind, really, given that our time period for investigation begins in about 2000, those engaged in the prosecution of suspects – or the investigation and prosecution of suspects, rather – would have had plenty of time to digest what the Court of Appeal had said in Ward, yes?
Duncan Atkinson: Very much so, yes.
Sir Wyn Williams: Fine. All right.
Well, I thanked you yesterday for your evidence and for your clarity and economy of words, and today deserves a very similar thanks. So thank you very much, Mr Atkinson, for all the help you’ve tried to give me.
The Witness: Thank you, sir.
Sir Wyn Williams: I look forward to hearing from you again before Christmas.
The Witness: Thank you, sir.
Mr Beer: Sir, can Mr Atkinson be released from the embargo on speaking to anyone because we will need to speak to him between now and when he give evidence in December?
Sir Wyn Williams: Unless anybody jumps up and says that is inappropriate, Mr Beer, I intend to release him.
Mr Beer: Thank you very much, sir.
Sir, we return at 10.00 on Tuesday.
Sir Wyn Williams: Very well. Thanks very much. See you on Tuesday.
Mr Beer: Thank you very much, sir.
(3.06 pm)
(The hearing adjourned until 10.00 am on Tuesday, 10 October 2023)