11 October 2023 – John Scott
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(10.00 am)
Mr Beer: Good morning, sir, can you see and hear me?
Sir Wyn Williams: Yes, I can, thank you.
Mr Beer: Thank you very much. May I call John Scott.
John Scott
JOHN MICHAEL SCOTT (sworn).
Questioned by Mr Beer
Mr Beer: Good morning, Mr Scott. As you know, my name is Jason Beer and I ask questions on behalf of the Inquiry. Can you tell us your full name please?
John Scott: John Michael Scott.
Mr Beer: Thank you very much for coming to assist the Inquiry in its work and for previously providing two witness statements to the Inquiry, we’re very grateful. Before I ask you questions, about your witness statements, I think the Chairman will deliver a warning.
Sir Wyn Williams: Mr Beer, can you tell me whether Mr Scott is legally represented this morning?
Mr Beer: Yes, he is.
Sir Wyn Williams: By a solicitor and counsel or just solicitor?
Mr Beer: Both.
Sir Wyn Williams: Thank you.
Mr Scott, a witness at a public inquiry has the right to decline to answer a question put to him by counsel to the Inquiry, by any recognised legal representative or by me if there is a risk that the answer to that question would incriminate the witness.
This principle of our law is known in shorthand form as the privilege against self-incrimination. I have decided, Mr Scott, that fairness demands that I remind you of that principle before you give your evidence. However, I should also tell you that it is for you to make clear to me that, in respect of any question put to you, it is your wish to rely upon the privilege.
If, therefore, there are any questions put to you by any of the lawyers who asks you questions, or by me, which you do not wish to answer, on the grounds that the answer to such questions might incriminate you, you must tell me immediately after the question is put to you. At that point, I will consider your objection, and thereafter rule upon whether you should answer the question or whether the objection should be upheld.
As you’ve just heard me enquire, you are represented here today by counsel and a solicitor. No doubt, if the issue relating to self-incrimination arises, they will assist you and if, at any stage during the questioning, you wish to consult your lawyers about the privilege, you must tell me so that I can consider whether that is appropriate.
Do you understand what I’ve just sought to explain to you, Mr Scott?
John Scott: Yes.
Sir Wyn Williams: Thank you very much. Then please begin the questioning, Mr Beer.
Mr Beer: Thank you very much, sir. Mr Scott, you should have in front of you a hard copy of a witness statement in your name, dated 12 May 2023. If you turn to the last page of it, which should be page 47, there should be a signature; is that your signature?
John Scott: Yes.
Mr Beer: With the corrections that you subsequently made in your second witness statement, more of which in a moment, are the contents of that first statement true to the best of your knowledge and belief?
John Scott: Yes.
Mr Beer: Thank you. For the purposes of the transcript the URN for that first witness statement is WITN08390100, there is no need to display that at the moment.
You produced a second witness statement of your own volition yesterday and there should be a hard copy of that in front of you; is that right?
John Scott: That’s correct, yes.
Mr Beer: If you go to – I think it’s the ninth page, is that right?
John Scott: Page 10, yes.
Mr Beer: 10 in fact, okay, is that your signature?
John Scott: Yes.
Mr Beer: Are the contents of that witness statement true to the best of your knowledge and belief?
John Scott: Yes.
Mr Beer: The URN for that is WITN08390200. Again, there is no need to display it. Can I start, please, with your career, qualifications and experience. I think it’s right, isn’t it, that you were employed by the Post Office and cognate organisations between February 1993 and September 2016; is that right?
John Scott: Yes.
Mr Beer: So for 23 and a half years?
John Scott: Yes.
Mr Beer: If we go to your first witness statement, please, WITN08390100 – it’ll come up on the screen for you, thank you – go to page 2 and look under the heading “Background” at paragraph 5. Under the heading “Background” you tell us:
“I have an MSC in Security & Risk Management focusing on preventative security and criminology. I also have other supporting industry qualifications such as a Diploma in Anti-Money Laundering.”
Is that right?
John Scott: Yes.
Mr Beer: I think it’s also right that you are a former police officer?
John Scott: Yes.
Mr Beer: Can you tell us how long you served in the police service for?
John Scott: About seven years.
Mr Beer: Between what years was that?
John Scott: 1984 to 1992.
Mr Beer: ‘84 to ‘92?
John Scott: Yes.
Mr Beer: Thank you very much. Were you a uniformed officer or a detective?
John Scott: The vast majority uniform. A very small part as a detective, for about three months.
Mr Beer: What rank were you when you left?
John Scott: Sergeant.
Mr Beer: Were you trained in and did you operate under the Police and Criminal Evidence Act 1984?
John Scott: Yes.
Mr Beer: Did you construct files for advice to be given on charging decisions?
John Scott: I submitted files to the CPS, yes.
Mr Beer: I’m sorry?
John Scott: I submitted files to the CPS.
Mr Beer: Yes, so you put files up to the CPS to make charging decisions; is that right?
John Scott: Yes.
Mr Beer: Did you ever make decisions about charging suspects with offences yourself?
John Scott: Not that I recall, no.
Mr Beer: Were you familiar with the terms of and operation of the Code for Crown Prosecutors?
John Scott: At that time, I can’t recall, to be honest.
Mr Beer: You tell us in this statement here your background and you tell us about your MSC in security and risk management. You don’t mention here that you were a police officer. Was there any reason for that?
John Scott: No, not really. It’s – we got a significant amount of documentation and pages with a very limited time in which to respond to lots of questions, so it was a challenge just to get the statement in, to be honest.
Mr Beer: Did the documents that we sent you assist you to remember whether or not you were a police officer?
John Scott: I knew I was a police officer.
Mr Beer: So I am asking you: in your background here you tell us about your MSc, you don’t tell us about you being a police officer?
John Scott: My MSc was done during the Post Office period. They sponsored it and it’s around the preventative which was the strategy that I was taking within the Post Office.
Mr Beer: You knew that in the questions we were asking you to create the witness statement you were being asked questions about adherence to the law concerning the conduct of criminal investigations and prosecutions, didn’t you?
John Scott: Um –
Mr Beer: That’s what the request was all about?
John Scott: Okay, understand.
Mr Beer: Did you not think it was relevant to say that you were a police officer?
John Scott: As I say, it was a challenging time to get the statement in and read all the documents.
Mr Beer: So it was the volume of documents that meant that you didn’t include the fact that you were a police officer?
John Scott: I have to say, I can’t recall at that time trying to get the statement in, to be honest, in a challenging time.
Mr Beer: You held various roles in the Security team in the Post Office, between joining in 1997 and 2004; is that right?
John Scott: Yes.
Mr Beer: From 1999 to 2004 you were Head of Security for Royal Mail International; is that right?
John Scott: Yes.
Mr Beer: What were the primary responsibilities of that job?
John Scott: It was all preventative around the theft or loss of international mail.
Mr Beer: Were you aware, in that period of time, of the development of the Horizon System?
John Scott: No.
Mr Beer: So in the five-year period between 1999 and 2004, you had not heard of Horizon; is that right?
John Scott: As far as I recall, no.
Mr Beer: So you weren’t aware that the Benefits Agency had been involved in the project and had withdrawn from it?
John Scott: No.
Mr Beer: You weren’t aware of any what were described as acceptance issues, ie in high level summary, whether the Horizon System was performing as expected or not during the development of Horizon?
John Scott: No.
Mr Beer: You weren’t aware of issues that arose concerning the reliability and accuracy of the data that Horizon produced during the rollout of Horizon?
John Scott: No.
Mr Beer: You wouldn’t have been aware that the rollout of Horizon had to be paused –
John Scott: No.
Mr Beer: – nor the reasons why rollout had to be paused?
John Scott: No.
Mr Beer: From 2004 to 2007, you were the Senior Security Manager for physical security; is that right?
John Scott: For the Post Office, yes.
Mr Beer: Were you required to perform task in that role that required an understanding of how Horizon functioned in branches?
John Scott: Very limited for Christmas duty.
Mr Beer: Can you explain, please?
John Scott: So all employees would support the branch network at Crown Offices and would go onto the counter and do the very most basic of services, like selling stamps.
Mr Beer: So it was just a knowledge sufficient to work at a temporary cover level at Christmas?
John Scott: Even more limited than that, because it is very basic products we would have been selling.
Mr Beer: Sorry, if you just keep your voice up. It was very basic products?
John Scott: Such as selling stamps. It wasn’t even extended past those sort of areas. Very basic products.
Mr Beer: Between 2004 and 2007, did you receive any training on the use of Horizon?
John Scott: To do that, it would have probably been a one day’s training course to sell those basic products.
Mr Beer: A one-day training course once, not each year?
John Scott: Once.
Mr Beer: Did you receive any refresher training?
John Scott: Not that I recall.
Mr Beer: In that period up until 2007, ie until you became Head of Security, had you heard of any issues with the integrity of Horizon or the reliability and accuracy of the data that it produced?
John Scott: No.
Mr Beer: From 2007 onwards, you became Head of Security; is that right?
John Scott: Yes.
Mr Beer: You took over from Tony Marsh –
John Scott: Yes.
Mr Beer: – and Mr Marsh moved to be in charge of security at the Royal Mail Group; is that right?
John Scott: Yes.
Mr Beer: You hesitated.
John Scott: No, he did go to the Royal Mail Group, as Head of Security, and then it evolved a little bit after that, I think.
Mr Beer: Tell us about the evolution?
John Scott: The Security Director or Group Security Director left around about 2008 and he took on that role, as well as the director of – his existing role so it merged two roles.
Mr Beer: So he didn’t move to Royal Mail Group to be the Head of Security; he moved for another role and then a year later also took over that role?
John Scott: No, he did go over to be the Head of security or Director of Security for Royal Mail Letters and then when the Royal Mail Group Director left he took on that role as well as the Royal Mail Letters role.
Mr Beer: Was there any chain of responsibility between you and Mr Marsh, after Mr Marsh moved to the Royal Mail Group?
John Scott: Once he took over the Group Security Director, yes, there was dotted line.
Mr Beer: What did the dotted line consist of?
John Scott: He was the Group Security Director responsible for security across all business units within the Royal Mail Group.
Mr Beer: So, for example, how often would you meet or otherwise communicate?
John Scott: I do recall going and meeting him two or three times in the first 18 months or couple of years, and less so thereafter.
Mr Beer: If you can tell us more about what a “dotted line” means. Was he responsible in any way for your management or supervision?
John Scott: Day to day, that’s the responsibility of Post Office line management. He was responsible more for the security and – yeah, the security requirements across the business.
Mr Beer: What does that mean, “He was responsible for the security requirements across the business”, insofar as that concerned you?
John Scott: So he had overall oversight of the security within the Post Office, the strategy, the direction, what we’re delivering to, our performance, et cetera.
Mr Beer: So would you say he had oversight of the discharge of the responsibilities of the Security Department within Post Office, including its leadership by you?
John Scott: I guess so, yes.
Mr Beer: We’ve heard from Mr Marsh – it’s the transcript for 5 July 2023, page 213, line 30 and on to page 214 – that he did not enjoy a good working relationship between you. He said it wasn’t a great working relationship and it wasn’t a good working relationship. First, is that right?
John Scott: We had a good working relationship up until about a certain point around about 2008 and, thereafter, it was a bit more of a distant relationship.
Mr Beer: Why was it a bit more of a distant relationship?
John Scott: There was a complete disagreement in terms of strategy around investigation and prosecution.
Mr Beer: Was it a personality issue between the pair of you?
John Scott: No.
Mr Beer: What was the nature of the disagreement, then?
John Scott: I’d taken over as Head of Security for the Post Office. The Investigation team, which I created into the Fraud strand, was very much focused on purely investigation and prosecution, whereas I wanted to take a very much more preventative approach, so to deter, to prevent, to disrupt and then, if necessary, investigate and prosecute.
And that approach took an analytical approach, where we did a root cause in terms of the MI on all the different products. We’d see where we were getting our largest losses or we were repeating the same type of investigations and prosecutions, and I wanted to do it more preventative, stop it at the outset, whether it’s fraud or non-compliance, rather than just keep on investigating and prosecuting.
As such, the analysts would then draw up the outliers, so we could see our branch profile, and it was not within the – sort of, the boundaries of what all the other profiles of that Post Office are, it was an outlier, and that could be 1 to 50, 1 to 100 post offices and, rather than investigating and looking to prosecute all those outliers, I took a preventative approach.
So we did letters out to them, we’d done phone calls, we offered training, et cetera.
And his was very much he wanted every single one investigated and, if necessary or appropriate, prosecuted.
Mr Beer: How did he make this clear to you, that he wanted everyone investigated and, if appropriate, prosecuted?
John Scott: I can’t recall the discussions that we had when I went to meet him but, ultimately, he left me a message to say that, as Group Security Director, he was going to take over the Investigation team, as from the following week, and have it reporting into his Head of Criminal Investigations.
Mr Beer: If you didn’t do what he said?
John Scott: No, it was –
Mr Beer: In any event?
John Scott: He was going to do that in any event.
Mr Beer: Did that happen?
John Scott: No.
Mr Beer: Why didn’t it happen?
John Scott: I reported it to my line manager –
Mr Beer: Which was who?
John Scott: I believe it was Mike Young at that time but it is only I believe. It could have been Ric Francis but I believe it was Mike Young.
Mr Beer: Sorry, I interrupted you. You reported it to Mike Young and?
John Scott: Obviously, I think there was conversations more senior, then I was requiring to write a report on the reasons and rationale of the strategy. I think I got the Head of Fraud to write that. That was submitted to Mike Young and I understand the MD, Alan Cook, had conversations with his senior executives in Royal Mail Group and then it came back to say I can continue with the prevention approach.
Mr Beer: So would that be from about 2008 onwards?
John Scott: 2008/2009. I can’t actually be precise.
Mr Beer: Had you encountered any difficulties with Mr Marsh before he moved on to the Royal Mail Group?
John Scott: No, he was my line manager for three years before that.
Mr Beer: Did you enjoy a good working relationship with him then?
John Scott: Yes.
Mr Beer: In any event, you assumed the role of the Post Office’s Head of Security in 2007 and you stayed in that position until you left the organisation in 2016; is that right?
John Scott: Yes.
Mr Beer: Therefore, you were accordingly Head of Security during one of the heaviest periods of subpostmaster prosecutions; you know that now?
John Scott: I accept that.
Mr Beer: You presided over the cessation of prosecutions from 2014 onwards?
John Scott: I thought it was 2013 but if it’s 2014 –
Mr Beer: The last months of 2013.
John Scott: Yes.
Mr Beer: What was the driver for the change of policy?
John Scott: Because the subject matter expertise (sic) within Fujitsu had been discredited, apparently, by the information that he’d been giving, the evidence he’d been giving, and Cartwright King said he cannot be used and, therefore, the Post Office needed to find another subject matter expert to support any evidence.
Mr Beer: Could you find another subject matter expert to support reliance on the Horizon System?
John Scott: By the time I left the Post Office, which is in 2016, no.
Mr Beer: So no expert could be found in three years or so to support the reliability of Horizon; is that right?
John Scott: No. I wasn’t really involved in those discussions, so I’m not too sure what was in the background but, as far as I’m aware, no.
Mr Beer: You were the Head of Security, the department responsible for investigating and submitting files for prosecution and, in your case, making decisions on prosecutions?
John Scott: For a short period of time, yes, I made decisions on prosecution.
Mr Beer: You must know, therefore, what was done in order to find an expert to speak to the reliability and integrity of Horizon, mustn’t you?
John Scott: Sorry, can you repeat that?
Mr Beer: You must know, therefore, as Head of Security with those responsibilities, what was done to find an expert witness who could speak to the reliability and integrity of Horizon?
John Scott: I was aware that there were enquiries going on. I only recall being in one meeting with an external potential SME.
Mr Beer: Who was the potential external?
John Scott: It was a London university. I don’t know which one.
Mr Beer: Were they prepared to give expert evidence standing up the reliability of Horizon?
John Scott: It was an early meeting and, no, I don’t think it was progressed thereafter.
Mr Beer: So the reason for the cessation of prosecutions was twofold, is this right, on your recollection: firstly, the subject matter expert from Fujitsu had been discredited, according to advice given by Cartwright King; a new expert was needed but none could be found?
John Scott: Correct.
Mr Beer: I think you retired in 2016, or you left the Post Office in 2016, the year the Group Litigation was launched and a claim was issued. Did you know about that before you left?
John Scott: Not that I recall, no.
Mr Beer: Did you retire then or did you move on to another job?
John Scott: Moved on.
Mr Beer: Was there any relationship between the commencement of the Group Litigation in 2016 concerning the Horizon System and the data that it produced being used for prosecutions and you leaving the Post Office?
John Scott: No.
Mr Beer: They were entirely unconnected events?
John Scott: Yes.
Mr Beer: Can I turn to start asking you about the substance of issues by looking at an issue which arises towards the end of the era of private prosecutions, so it’s therefore out of turn in the chronology. I want to start with it to work out whether it tells us anything about the values of the investigation and prosecution functions of the Post Office more generally in the earlier period. The topic is the recording of information and the disclosure of material in criminal proceedings. Okay?
I’m going to deal with matters chronologically within this topic to give you some context. We’re in the year 2013, which, right at the end of which, the prosecution function, as we’ve discussed, came to an end, okay?
Can we start by looking at something which happen on the 3 July 2013. Do you remember a man called Simon Clarke?
John Scott: Yes.
Mr Beer: What do you recall about him?
John Scott: He was a lawyer with Cartwright King.
Mr Beer: So he was an in-house barrister, do you remember, at the solicitors firm Cartwright King?
John Scott: When you say “in-house”, for us, he was an external lawyer.
Mr Beer: Yes, he was a barrister in Cartwright King or did you just know him as a lawyer?
John Scott: A lawyer.
Mr Beer: Okay. Did you enjoy a working relationship with him?
John Scott: I don’t recall actually having a working relationship with him. I may have met him once or twice but there wasn’t a working relationship. There was nothing –
Mr Beer: Cartwright King were the firm of choice for the conduct of private prosecutions, is that right, for the Post Office?
John Scott: Yes.
Mr Beer: Was that for the entirety of the period up until now when you were the Head of Security, so from 2007 to 2013?
John Scott: I only recall them around about separation, either at separation or just prior to separation.
Mr Beer: Ie from 2011 onwards; is that right?
John Scott: Well, separation was 2012, so it was either just before that or around that time.
Mr Beer: In any event, on 3 July 2013, Mr Clarke attended a conference at Post Office Headquarters to consider issues relating to the reliability of the Horizon System and the prosecution of subpostmasters for criminal offences. There’s no note that we have of this meeting of 3 July 2013 but the advice that he gave at that meeting is addressed in a later advice that he wrote, which is dated 2 August.
Can we look at that first, please. It’s POL00006799. So this is an advice dated 2 August 2013 – take it from me rather than looking at the end of the document – and can we just read paragraphs 1 and 2 together. He says:
“On 3 July 2013 I attended [the Post Office] in conference at [Post Office] Head Office to consider issues relating to the Horizon computer system and the prosecution of criminal offences committed against [Post Office] by subpostmasters and clerks.
“One of the topics considered by the conference was that of disclosure: I advised that there ought to be a single, central hub, the function of which was to act as the primary repository for all Horizon-related issues. The hub would collate, from all sources into one location, all Horizon-related defects, bugs, complaints, queries and Fujitsu remedies, thereby providing a future expert witness, and those charged with disclosure duties, with recourse to a single information point [where] all Horizon issues could be identified and considered. The rationale behind this advice derived from the need to protect [the Post Office] from the current situation repeating itself in future.”
Did you attend that conference, the 3 July 2013 conference?
John Scott: I don’t recall attending.
Mr Beer: That answer, “I don’t recall”, is capable of a wide range of possibilities, including “It’s very likely that I did attend but I’ve got no present recollection, it being 10 years on, that I did”, right down to, “I don’t think that did. If I had attended I would remember it, albeit I’ve got no present recollection”.
John Scott: The latter.
Mr Beer: Where in the spectrum are we?
John Scott: The latter.
Mr Beer: You don’t think that you did?
John Scott: Correct.
Mr Beer: Do you recognise what is said there, the need to create a single, central hub to collate from a range of sources information about defects, bugs, complaints, queries and remedies?
John Scott: Yes.
Mr Beer: So, one way or another, you were told about the need to create this hub; is that right?
John Scott: I was told, I’m not necessarily saying I was, perhaps, fully briefed in terms of its requirements.
Mr Beer: You said you were told but not necessarily fully briefed?
John Scott: I don’t recall getting a real briefing in terms of the requirements of setting up the weekly meetings.
Mr Beer: Moving on to paragraph 3, he says:
“[The Post Office] accepted that advice and [accordingly] a weekly conference-call meeting was established so as to meet the requirement of the central hub. Participants were informed that they should bring all Horizon-related issues that they had encountered to the meeting; minutes were to be taken, centrally retained and disseminated to those who required the information, this list to include [Post Office’s] Horizon expert witness.”
Is the first part of that paragraph correct, going back to the bottom of page 1:
“[Accordingly] a weekly conference call meeting was established so as to meet the requirement of the central hub.”
John Scott: Yes.
Mr Beer: Can we go on to paragraph 4:
“Three such conference calls were convened, each conducted on a Wednesday morning. A representative from Cartwright King solicitors ‘attended’ each meeting. A minute-taker was appointed for each call and I understand that each of the minute-takers retain their own handwritten minutes.”
We’ll come back to all of that in a moment. Can we move forward, please, to 15 July. That’s POL00006357. If we go to the last page, please, which is page 14, and scroll down, please, you’ll see that it’s dated 15 July 2013. This is known as the first Clarke Advice, yes?
If we go back to the first page, please, and look at the first paragraph, Mr Clarke says:
“I am asked to advise [the Post Office] on the use of expert evidence in support of prosecutions of allegedly criminal conduct committed by those involved in the delivery of Post Office services to the public through sub post office branches. By and large these allegations relate to misconduct said to have been committed by [subpostmasters] and/or their clerks.
“This document considers the provision and use of such evidence in past prosecutions and those currently under way. [He] will deal with future prosecutions separately.”
Did you receive a copy of this advice?
John Scott: I don’t believe I did.
Mr Beer: Were you told about the contents of it?
John Scott: I don’t believe I did.
Mr Beer: Can we look, please, at page 13, paragraph 38 and following. I’m not going to go through the entirety of the advice but just go to Mr Clarke’s conclusions. I’m going to replace where Mr Clarke says “Doctor” or uses the word “Jennings” with “Mr Jenkins”:
“The reasons as to why [Mr Jenkins] failed to comply with his duty are beyond the scope of this review. The effects of that failure however must be considered. I advise the following to be the position:
“[Mr Jenkins] failed to disclose material known to him but which undermines his expert opinion. This failure is in plain breach of his duty as an expert witness.
“Accordingly [Mr Jenkins’] credibility as an expert witness is fatally undermined; he should not be asked to provide expert evidence in any current or future prosecution.
“Similarly, in those current and ongoing cases where [Mr Jenkins] has provided an expert witness statement, he should not be called upon to give that evidence. Rather, we should seek a different independent expert to fulfil that role.
“Notwithstanding that the failure is that of [Mr Jenkins] and, arguably, of Fujitsu Services Limited, being his employer, this failure has a profound effect upon [Post Office] and [Post Office] prosecutions, not least by reason of [Mr Jenkins’] failure, material which should have been disclosed to defendants was not disclosed, thereby placing [the Post Office] in breach of their duty as a prosecutor.
“By reason of that failure to disclose, there are now number of convicted defendants to whom the existence of bugs should have been disclosed but was not. Those defendants remain entitled to have disclosure of that material notwithstanding their now convict status. (I have already advised on the need to conduct a review of all [Post Office] prosecutions so as to identify those who ought to have had the material disclosed to them. That review is presently under way).
“Further, there are a number of current cases where there has been no disclosure where there ought to have been. Here we must disclose the existence of the bugs to those defendants where the test for disclosure is met.
“Where a convicted defendant or his lawyers consider that the failure to disclose the material reveals an arguable ground of appeal, he may seek the leave of the Court of Appeal to challenge his conviction.
“In an appropriate case the Court of Appeal will consider whether or not any conviction is unsafe. In doing so, they may well enquire into the reasons for [Mr Jenkins’] failure to refer to the existence of bugs in his expert witness statements and evidence.”
Out of that, how much were you told?
John Scott: I don’t recall being told that.
Mr Beer: You were told none of this?
John Scott: I don’t recall seeing this document.
Mr Beer: That’s a different question to whether you saw the document, but you’ve already said that you don’t recall being – seen it (sic), to how much of what is written there you were told?
John Scott: The only thing I remember being told was that he couldn’t have been used because he’s no longer a – he’s a discredited witness.
Mr Beer: You were told the bit about Mr Jenkins being a discredited witness. Were you told the bit, and I’m summarising, about that fact calling into question the safety of past convictions?
John Scott: I don’t recall that.
Mr Beer: Who told you that Mr Jenkins was a discredited witness?
John Scott: I suspect that would have been my line manager, Susan Crichton.
Mr Beer: Susan Crichton?
John Scott: Mm-hm.
Mr Beer: Did she mention it in a meeting or in passing?
John Scott: I can’t recall, I think it was probably more than once it was discussed.
Mr Beer: Did you say “Why? What’s Mr Jenkins done wrong?”
John Scott: I suspect I did ask. I can’t particularly recall.
Mr Beer: Did you think “Well, hold on, if he’s a discredited witness, he’s given evidence in a number of prosecutions for which my department is responsible”?
John Scott: So I do recall the solicitors discussing, in terms of reviewing the cases, and I believe they reviewed the cases going back a number of years.
Mr Beer: Did you ask to see the advice?
John Scott: I don’t believe I knew the advice was there.
Mr Beer: So you’re the Head of Security responsible for nearly a decade for the prosecution of subpostmasters, your department carries out those functions and you neither saw this document nor had its contents explained to you; is that right?
John Scott: That’s what I believe, yes.
Mr Beer: Whose responsible would it be to show you this document?
John Scott: That would have been my line manager, Susan Crichton.
Mr Beer: Do you agree, looking at it now, that you should have been shown it?
John Scott: Yes.
Mr Beer: Why do you think you should have been shown it?
John Scott: Because, obviously, my team was responsible for investigations and submitting case files to the lawyers.
Mr Beer: And you yourself had made a number of decisions to prosecute?
John Scott: Yes.
Mr Beer: That can come down, thank you.
The next step is 19 July 2013 and you’ll recall that in the second Clarke advice, the one that we looked at first, Mr Clarke had advised the setting up of a single central hub, that the Post Office had accepted that advice and, accordingly, a weekly conference call was established, and you’ve agreed that that is accurate?
John Scott: Yes.
Mr Beer: Now, the first hub meeting was on 19 July 2013. Can we look at that, please, POL00083932. Can you see this is a note of what’s described as a “Regular Call re Horizon Issues” on 19 July 2013.
John Scott: Yes.
Mr Beer: Now, I don’t think you’re listed as being in attendance; is that right?
John Scott: Yes.
Mr Beer: Can you see under “Security”, Dave Posnett and Rob King are listed as being in attendance? I think this was a telephone call, rather than an in-person call; is that right?
John Scott: I can see their names. I don’t know whether it’s telephone call or in person.
Mr Beer: Can you tell us at this time, so July ‘13, the function that Rob King performed?
John Scott: He was the Senior Security Manager or otherwise Head of Security Operations, which covered the fraud and prosecutions.
Mr Beer: So was he a deputy to you?
John Scott: No, the way that I structured the department was that there were five strands, each with their own security discipline, and he was the head of the – what was originally the Fraud strand but merged with another to become the Security Operations. So I had five direct reports, all head of their own respective security disciplines.
Mr Beer: Did he report to you?
John Scott: Yes.
Mr Beer: So you were his line manager?
John Scott: Yes.
Mr Beer: Looking back now, do you think you sent him along as, essentially, your deputy for this meeting?
John Scott: Deputy, um, I think I’d asked him to actually take a lead rather than deputise for me.
Mr Beer: So you asked him to conduct the meeting –
John Scott: Mm-hm.
Mr Beer: – is that right?
John Scott: I believe so, from looking at the documentation.
Mr Beer: You tell us in your new witness statement, the one you filed yesterday, that you think you delegated the task to Rob King of chairing the meeting; is that right?
John Scott: Yes.
Mr Beer: If we scroll through the minute, please, stop there:
“Outlined the purpose of the meeting; to identify any issues around the integrity of Horizon from a technical prospective and take any necessary action.”
Does that describe, as you understand it, the function or purpose of the meeting?
John Scott: Yes.
Mr Beer: It says:
“A process needs to be set up within each directorate where each representative proactively seeks out any technically with Horizon.
“No minutes circulated, but we will be taking notes. In scope were issues and problems the group were made aware of.”
As to the line, “No minutes circulated but we will be taking notes”, said by or attributed to Rob King, had you given any instruction or direction that no minutes of the meeting were to be circulated?
John Scott: So, looking at the documentation that’s been sent to me, the email exchange between myself and Susan Crichton –
Mr Beer: That’s on 13 and 14 August?
John Scott: – yes –
Mr Beer: We’re going to come to that in a moment, yes.
John Scott: – and, therefore, based on that document, I was given a brief by Susan Crichton, which appears, therefore, to have fed down into Rob King through me.
Mr Beer: So the answer is yes, you did say that minutes would not be circulated but that’s because Susan Crichton told you that that was what was to happen?
John Scott: Yes.
Mr Beer: Is that right?
John Scott: Yes.
Mr Beer: Were you merely the conduit for Susan Crichton’s orders then?
John Scott: Yes.
Mr Beer: You were just following orders?
John Scott: Looking at the document, that’s how I received the brief and that’s how I briefed Rob King.
Mr Beer: Then the part of the sentence “but we will be taking notes”, ie Security will be taking notes; is that how you would understand it?
John Scott: Yes.
Mr Beer: Was that part of the order that you passed on: that it would be the Security Department that would be taking notes?
John Scott: Yes, looking at the email exchange, it was clear that I wanted notes taken.
Mr Beer: If we carry on scrolling through the document, please, and then stop there. Under “Martin Smith”, do you remember who Martin Smith was?
John Scott: Yes.
Mr Beer: Who was Martin Smith?
John Scott: A lawyer at Cartwright King.
Mr Beer: So he was a solicitor at Cartwright King, yes? He, in the second part of the note that’s attributed to him says:
“Clarification on disclosure and email correspondence.”
Then in a sentence that is difficult, perhaps, to decipher:
“Emphasised need to ensure that any document produced would be potentially disclosable.”
Do you remember giving any instructions along those lines?
John Scott: I don’t recall.
Mr Beer: Would you understand this to mean that this is simply recording the fact that, if a document is produced, it needs to be retained so that it can be disclosed?
John Scott: Yes.
Mr Beer: There’s nothing wrong with that?
John Scott: Doesn’t look wrong. Doesn’t say what if you don’t write it down but doesn’t look wrong.
Mr Beer: Yes. It’s saying, if any document is produced, one reading of it is there is a need to ensure that it is retained so that it’s disclosable?
John Scott: Mm-hm.
Mr Beer: Mr Posnett makes a contribution and Andrew Parsons then speaks. Who was Andrew Parsons?
John Scott: A lawyer with Bond Dickinson.
Mr Beer: Did you, at this time, have any dealings with Bond Dickinson?
John Scott: I don’t recall particularly at that time but there may have been engagement at some point over the years. There was a couple of occasions where I dealt with Bond Dickinson but very rarely.
Mr Beer: Anyway, the solicitor from Bond Dickinson says there was a:
“… need to limit public debate on the Horizon issue, as this [might] have detrimental impact on future litigation.”
Then if we scroll on, please, and keep going. Then if we go to Mr Parsons again, Mr Parsons is recorded as saying, in the second part of this paragraph, that he:
“Spoke about emails, written [communications], etc … if it’s produced it’s then available for disclosure, if it’s not then technically it isn’t.”
What do you understand that to mean?
John Scott: The way that it’s written there, that if something is written down, it’s definitely disclosable, but if something is not, then, as he says, technically it isn’t.
Mr Beer: Is that a view to which you would subscribe?
John Scott: No.
Mr Beer: Why not?
John Scott: Because everything would need to be disclosable.
Mr Beer: Was it fed back to you that Mr Parsons had given this advice at this meeting?
John Scott: I don’t recall.
Mr Beer: Can we move forwards, please, to 24 July, the next meeting, the second hub meeting. The reference for that is POL00083933. Thank you. So we can see similar format, “Regular Call re Horizon Issues”, meeting on 24 July, and we can see that you’re not recorded as being present but, from Security, there’s Mr King again and Andrew Wise. Who was Andrew Wise?
John Scott: A Security Manager within the Security Operations team, Investigator.
Mr Beer: Again, we can see that Mr King starts the meeting off and, again, was it your understanding that he was essentially chairing the meeting?
John Scott: Yes.
Mr Beer: Was he reporting back to you what was happening at each meeting?
John Scott: From the email exchange with Susan Crichton, it says he was being – I was being debriefed.
Mr Beer: You were being briefed about it?
John Scott: Yes.
Mr Beer: Again, in the second paragraph there, Mr King is recorded saying:
“No minutes circulated, but we will be taking notes. In scope were issues and problems the group were made aware of.”
So that’s materially the same as the warning given at the beginning of the first meeting, yes?
John Scott: Yes.
Mr Beer: Again, does that reflect the instruction that you gave to Mr King, passing on what Susan Crichton had told you to tell the meeting?
John Scott: Yes.
Mr Beer: Can we move forward to 31 July, please. POL00139732. So this is the date of the third hub meeting on 31 July 2013. We can see that, again, you’re not recorded as being present or joining the call. It’s Mr King and Mr Posnett representing the Security Department, and Mr Posnett is opening the meeting. Does that mean, by this time, Mr Posnett had been put in charge of chairing the meeting?
John Scott: No, it would be Rob King.
Mr Beer: He remained the chair or the leader of the meeting, is that right, to your knowledge?
John Scott: Until mid-August.
Mr Beer: When you took over?
John Scott: Yes.
Mr Beer: Again, you’re not in attendance. I don’t think there’s the warning at the beginning there.
Can we move forwards, please, to 31 July 2013, that’s POL00139745. This is an attendance note dated 1 August 2013, written, we understand it, by Martin Smith, whose name is in the top right-hand corner – can you see that –
John Scott: Yes.
Mr Beer: – in relation to a call that he had with you the day before, 31 July 2013? Can you see under “Detail”, it says “TC”, which may be telephone call, “JS”, which I presume is you at 6 pm on 31 July 2013:
“… Discussing disclosure issues: JScott has instructed that typed minutes be scrapped.”
First off, is that a call with you or is that a call with Jarnail Singh?
John Scott: I don’t recall but my belief would be it wasn’t with me.
Mr Beer: Why is it your belief that it was not with you?
John Scott: Because I don’t recall having a relationship like that with Cartwright King at that stage, because it was very early on, but it’s not to say I didn’t have the call with them. But I don’t believe that it would have been me.
Mr Beer: You’ll see that the way that Mr Smith wrote his attendance note is one person is referred to as “JS”, can you see that in both the summary and in the detail?
John Scott: Yes.
Mr Beer: And the other person is referred to as “JScott”?
John Scott: Yes.
Mr Beer: Let’s assume, for the moment, that this is Mr Smith speaking to Jarnail Singh, at 6.00 pm on 31 July 2013, and was telling Mr Smith that you, “JScott”, had instructed typed minutes to be scrapped. Did you give an instruction that typed minutes would be scrapped?
John Scott: I do not recall what I said or how I said it or in what clunky – way.
Mr Beer: Did you say “in what clunky way”?
John Scott: Yeah, or how it was interpreted. But I don’t recall asking for any minutes to be scrapped. “Scrapped” is not a word I would have particularly used to destroy or delete minutes. “Scrapped” is more like a process, ie scrap a process going forward.
Mr Beer: You said in that sentence “whatever clunky words you use”, why would you assume that you spoke in a clunky way, rather than in a clear way?
John Scott: I’ve no idea. But I would not go around asking for things to be destroyed or deleted. That’s just not me.
Mr Beer: We’ve seen that in the typewritten minutes of the meeting there was an instruction that minutes were not to be circulated, but that the Security Department were going to keep their own notes. That was the instruction that you had given, passing it on from Susan Crichton, yes?
John Scott: Yes.
Mr Beer: So if typewritten minutes were, in fact, being kept as we’ve seen they were, that would be contrary to the instruction that you had given, wouldn’t it?
John Scott: Sorry, say that one again?
Mr Beer: Yes. You told us, and it’s reflected in two of the first three sets of the minutes, that the instruction that you passed on from Susan Crichton was that minutes were not going to be circulated but that the Security Department were going to keep their own notes?
John Scott: Correct.
Mr Beer: We’ve seen that typewritten minutes were, in fact, being kept. We’ve just looked at three lots of them, haven’t we?
John Scott: Correct.
Mr Beer: That would be contrary to the instruction that you gave, wouldn’t it?
John Scott: I’m a bit lost on the point.
Mr Beer: If the Security Department were going to keep their own notes –
John Scott: Yes.
Mr Beer: – and somebody else had, in fact, been keeping a typewritten version of what had happened at the meeting, ie the three documents we’ve just looked at –
John Scott: Mm-hm.
Mr Beer: – that would be contrary to the instruction you had given, wouldn’t it?
John Scott: Yes, in principle, yes.
Mr Beer: Therefore, if it was contrary to the instruction you had given, you would want it to be stopped, wouldn’t you?
John Scott: Once they are there, they’re there. I might have wanted, in the future, the process to be stopped – in the future – but once the notes are there, they’re there. And if you refer back to my email exchange, I was very clear in terms of that notes had been retained – had been made and had been retained and were available.
Mr Beer: So you would want typewritten notes not to be kept in the future because that was contrary to the instruction that you had given passing it on for Susan Crichton; is that right?
John Scott: In principle, that may have been the case, looking at the documentation.
Mr Beer: That would be consistent with you telling Mr Singh to scrap typed minutes, wouldn’t it, ie what’s written here?
John Scott: I don’t recall a conversation with Mr Singh. I don’t recall anything of that nature. I would not – I would not go around asking for things to be destroyed or deleted.
Mr Beer: I’m not asking you at the moment about the destruction of anything. I’m asking you about the cessation, the stopping, the scrapping, of the creation of typewritten notes?
John Scott: That I can’t recall.
Mr Beer: Well, it would be consistent with the instruction that you had given, wouldn’t it?
John Scott: Yes.
Mr Beer: “Let’s not keep typewritten notes” –
John Scott: Yes.
Mr Beer: – to be circulated amongst the wider readership?
John Scott: Mm-hm.
Mr Beer: Is that fair?
John Scott: Yes.
Mr Beer: Instead, notes should be kept by the Security Department alone?
John Scott: I imagine other people would have written their own notes.
Mr Beer: Was that permitted or forbidden, according to the direction that you passed on from Susan Crichton?
John Scott: No, it would be permitted.
Mr Beer: So what was forbidden, then?
John Scott: I can only go by the email exchange with Susan Crichton is to reduce the circulation of minutes.
Mr Beer: What explanation did she give for the need to reduce the circulation of minutes?
John Scott: Reduce the risk of being widely circulated and then being subject to Freedom of Information or disclosure, as per my email.
Mr Beer: Can we move to the next day, please, 1 August 2013, and look at POL00139746. An email from Jarnail Singh at 9.00 in the morning to Martin Smith, copied to Rodric Williams. Who was Rodric Williams?
John Scott: Post Office lawyer.
Mr Beer: “Martin
“I know Simon [I think that must be Mr Clarke] is advising on disclosure. As discussed can he look into the common myth that emails, written communications, etc, meetings. If it’s produced then it’s available for disclosure. If it’s not then technically it isn’t. Possible [which may mean ‘possibly’] true of civil cases NOT CRIMINAL CASES?”
“Thanks.
“Jarnail Singh.”
So would you understand this to be Mr Singh asking Cartwright King and, in particular Mr Clarke to advise on what’s described as a common myth, that information not reduced to writing need not be disclosed?
John Scott: Yes.
Mr Beer: Was that a myth that you had heard percolating within the Security Department of the Post Office?
John Scott: I can’t be explicit but I seem to recall there was some element of that within the wider Post Office.
Mr Beer: What do you mean by the “wider Post Office”?
John Scott: Just within the Post Office itself.
Mr Beer: What, a clerk in Cleethorpes or a branch manager in Bodmin, or what, within the wider Post Office?
John Scott: I would say the corporate level community.
Mr Beer: Who, please?
John Scott: I can’t recall.
Mr Beer: How widespread was this myth?
John Scott: I can’t recall.
Mr Beer: Was it a myth that you actively encouraged and fostered?
John Scott: No.
Mr Beer: Was it a myth that you disabused people of?
John Scott: No.
Mr Beer: You let it persist?
John Scott: By the email exchange with Susan Crichton, I ensured that there were minutes made. We were briefing solicitors in that meeting, so that they were fully informed of what’s going on, and then they could then decide what they wanted to disclose or use.
Mr Beer: In your witness statement of yesterday, you pick up on the language used in this email here, and draw a comparison to what Andrew Parsons said in the first meeting on 19 July.
John Scott: Yes.
Mr Beer: What’s the point that you’re making?
John Scott: That’s the communication that was coming from lawyers.
Mr Beer: What’s the point that you’re making?
John Scott: In terms of lawyers, we were saying that, if it’s written down, it’s disclosable; if it’s not, then technically it’s not. And that’s from an external lawyer as well.
Mr Beer: What’s the significance of that, in your mind?
John Scott: Just relaying around this myth element of where it may have come from or what was going on in the Post Office.
Mr Beer: So I understand it correctly, you’re saying it is maybe an explanation for the request for advice, that the common myth might be a reference, given the similarity and language used, to what Andrew Parsons from Bond Dickinson had said in that first meeting?
John Scott: Reading into that, yes.
Mr Beer: Thank you. But, in any event, aside from what Andrew Parsons from Bond Dickinson said, about if it’s not written down then, technically, it’s not disclosable, you’re telling us that it was also a myth that was circulating within the Post Office more generally at this time?
John Scott: Yes.
Mr Beer: Can we move to the next day, please, 2 August 2013, POL00006799. This is the second advice, the so-called shredding advice of 2 August 2013 that we looked at earlier to hear about the inspiration for the weekly hub meetings and, do you remember, we looked at paragraphs 1, 2, 3 and 4.
If we look again at 3, please, at the foot of the page, I asked you about the first sentence and whether it was accurate and you said yes. The second sentence:
“Participants were informed that they should bring all Horizon-related issues they had encountered to the meeting; minutes were to be taken, centrally retained and disseminated to those who required the information, this list to include [the Post Office’s] Horizon expert witness.”
That appears to be the suggestion that Mr Clarke made. That wasn’t translated into practice, was it?
John Scott: No.
Mr Beer: Was that because of the intervention of Susan Crichton?
John Scott: Going by my email, that appears to be the case.
Mr Beer: In that there weren’t to be centrally retained minutes, and such minutes were not to be disseminated?
John Scott: Minutes were to be taken, that was very clear in my email exchange, and they were taken. They were retained and were available. But, yes, in terms of the dissemination.
Mr Beer: Can we move down to paragraph 4.
“Three such conference calls were convened, each conducted on Wednesday. A representative of Cartwright King ‘attended’ each meeting. A minute-take was appointed for each call and I understand that the minute-takers retain their own handwritten minutes.”
Is that accurate, to your knowledge –
John Scott: Um –
Mr Beer: – or was that accurate by 2 August?
John Scott: I can’t recall because I wasn’t there. I presume Rob King or Dave Posnett, who were attending, were making the minutes.
Mr Beer: Do you know what happened to any of those handwritten minutes?
John Scott: Well, they were all retained because the minutes were ultimately circulated from my email exchange with Susan Crichton.
Mr Beer: Was that typed-up versions of the Posnett-King handwritten notes?
John Scott: I don’t know.
Mr Beer: Moving on to paragraph 5:
“At some point following the conclusion of the third conference call, which I understand to have taken place on the morning of Wednesday, 31 July, it became unclear as to whether and to what extent material was either being retained centrally or disseminated. The following information has been relayed to me:
“i. The minutes of a previous conference call had been typed and emailed to a number of persons. An instruction was then given that those emails and minutes should be, and have been, destroyed: the word ‘shredded’ was conveyed to me.”
Did you give that instruction, that the electronic records and emails of a previous conference call should be destroyed?
John Scott: I have no recall from that period, from 10 years ago, but that is not me. That’s just not me, what I would say or ask.
Mr Beer: Have you any knowledge of such an instruction being given?
John Scott: No.
Mr Beer: Who would be in a position to give such an instruction, who would have the power, the responsibility, the function to give such an instruction?
John Scott: A number of people, I’d guess.
Mr Beer: Who is within that number?
John Scott: Obviously, my line manager, me –
Mr Beer: So if you can name them: Susan Crichton?
John Scott: Susan Crichton.
Mr Beer: You?
John Scott: Me, and then Rob King as chair of that and, probably, I don’t know, other people.
Mr Beer: Who else?
John Scott: It’s hard to say. I wouldn’t expect lawyers to be saying that.
Mr Beer: I’m talking at the moment the people involved in this enterprise, who amongst them would have the power to give an instruction like that?
John Scott: I guess those three.
Mr Beer: Those three, okay.
At (ii), Mr Clarke says:
“Handwritten minutes were not to be typed and should be forwarded to [Post Office] Head of Security.”
On that issue, did you give that instruction?
John Scott: I don’t recall.
Mr Beer: That’s more similar to what you have said you had passed on originally to Mr King?
John Scott: I don’t recall whether I’ve actually asked for that or he’s decided to say that.
Mr Beer: Did you want to be the custodian of any minutes?
John Scott: That would be very unlikely that I’d want to.
Mr Beer: Why would it be unlikely?
John Scott: Because that’s not what I see my role as. If he’s chair then he would have retained the minutes, the notes.
Mr Beer: Were you aware of any such instruction being given that the handwritten minutes that the Security Department were writing up were not to be typed but, instead, should be forwarded to you?
John Scott: I don’t recall.
Mr Beer: “iii. Advice had been given to [the Post Office] which I report as relayed to me verbatim:
“‘If it’s not minuted it’s not in the public domain and therefore not disclosable.
“‘If it’s produced it’s available for disclosure – if not minuted then technically it’s not’.”
That second one is a facsimile of what Mr Singh asked in his email to Mr Smith, isn’t it?
John Scott: Yes.
Mr Beer: To (iv), please:
“Some at [Post Office] do not wish to minute the weekly conference calls.”
Do you know who at Post Office may not have wanted to minute the weekly conference calls at all?
John Scott: I can only go by my email exchange with Susan Crichton and that’s the brief.
Mr Beer: What does that mean?
John Scott: She didn’t want minutes being circulated to reduce the risk.
Mr Beer: This is a different issue again. This is not minuting the calls at all. Were you aware of any such instruction being given?
John Scott: No, because, in my email exchange, I made it very clear that minutes were taken or notes were taken and retained and were available.
Mr Beer: Were you shown a copy of this advice at the time?
John Scott: No, I don’t recall seeing either of the Clarke Advices at the time.
Mr Beer: Were you told the gist of it?
John Scott: No, I remember having a conversation with Susan Crichton and she raised a couple of areas about getting the central log more organised and, secondly, for the Security team to have disclosure training.
Mr Beer: What was the central log that needed to be more organised?
John Scott: Of the issues that have been escalated.
Mr Beer: In what respect did it need more organisation?
John Scott: I think all the issues, looking at the documentation, that they were in the minutes rather than actually having say, for example, a central single Excel spreadsheet, which they can be looked at and maintained and tracked.
Mr Beer: But nothing was passed on to you of the nature of the four things that we’ve seen that Mr Clarke had been told?
John Scott: No, I don’t recall having that conversation.
Mr Beer: Also on this date, 2 August, can we look, please, at POL00139747. Can we start, please, by looking at the second page, an email from Mr Clarke:
“Chaps,
“Please consider first draft.
“I would not object to any suggested alteration, including typos.”
We can see from the foot of page 1 that the subject is “ADVICE – First Draft”, sent, I think, to a series of lawyers within Cartwright King?
Then further up the page, we can see an email from Steve Gelsthorpe to the same description list:
“Dear All
“I attach a note which I believe captures all we talked about this morning. Please check. You chaps are closer to this than RH [I think that’s Rupert Hawke] and I and if there’s anything I have not grasped or covered you must let me know. Equally if there is anything that is plain wrong you must let me know.
“I have seen [Simon Clarke’s] note. The comment I have is how we’re going to impart the advice to the [Post Office] that if there are factions within it who are running around trying to lay off blame for their own shortcomings by lying about the advice they have received then they lose privilege. I thought [Simon Clarke’s] advice would cover this. On reflection it may be something for Andy [I think that’s Andy Cash] to raise with Hugh and to note or confirm in a letter to him.”
Do you know who the “faction” within the Post Office Mr Gelsthorpe is referring to there – ie a faction running around trying to lay off blame for their own shortcomings by lying about the advice they’ve received – is referring to?
John Scott: No.
Mr Beer: Can you assist us with any help as to who he may be referring to?
John Scott: No.
Mr Beer: Is he referring to you?
John Scott: I can’t comment on what he’s referring to but I don’t consider it to be me.
Mr Beer: Were you aware at this time of people within your department who were beginning to realise that there were problems with the integrity of Horizon that ought to have been disclosed to the criminal courts and that they were seeking to lay blame by lying about the advice they’ve received from lawyers?
John Scott: No.
Mr Beer: Were you aware of anyone in relation to the exercise that was being undertaken, the setting up of the hub, and bringing of issues to the hub and the recording of information by the hub, lying about the advice they’d received from Cartwright King?
John Scott: Sorry, what’s the exact question there, please?
Mr Beer: Were you aware of anyone involved in the hub exercise lying or seeking to lie about the advice they had received about the retention of material and the disclosure of material?
John Scott: No.
Mr Beer: Have you any clue why these lawyers might think that their clients may subsequently seek to lie about the advice that they’d received?
John Scott: No.
Mr Beer: On your evidence, there’s no grounds for these lawyers to think that at all, is there?
John Scott: Correct. We’re taking notes, lawyers were on the call.
Mr Beer: Can we turn to the 13 August, please, POL00139690. This is the email exchange that you’ve referred to a number of times, so far, correct?
John Scott: Correct.
Mr Beer: Can we start, please, at the foot of the page and it’s the exchange, as I’ve said, of 13 and 14 August 2013. It’s an email to you from Susan Crichton at 8.34 on 13 August, with the subject heading of “[Wednesday] call”. That’s a reference to the Horizon hub calls that we’ve been talking about, which, for the most part, happened on a Wednesday, correct?
John Scott: Correct.
Mr Beer: She says to you:
“John – as part of our remedial action I had asked you to set up and chair this call, I have had very worrying feedback re this call from [Cartwright King] and it sounds like this is not being chaired, the participants are unclear as to its purpose and no minutes are being kept – or is there confusion.
“Can we discuss?”
Do you know what the very worrying feedback was?
John Scott: No, I don’t recall.
Mr Beer: Can we look up and see your reply, please. Just if we can check the date, 14 August 2013, at 7.39 in the morning. You say:
“Susan.
“The brief given by yourself for this meeting was to provide in effect an under the radar escalation point from across the business of issues that may impact the integrity of the Horizon System. You were frustrated in regards to the production and circulation of the Helen Rose report and therefore did not want any electronic communication which may be subject to FOI [Freedom of Information] or Disclosure.”
Is it right that, essentially, in this first paragraph, Susan Crichton made – or you’re referring to three points that Susan Crichton made to you: firstly, the meeting should be under the radar, yes?
John Scott: I have written that, yes.
Mr Beer: Well, did that faithfully reflect what she told you?
John Scott: I can only read what I’m reading here now. So if that’s what I’ve said, then yes.
Mr Beer: Secondly, that she told you she was frustrated by the production of the Helen Rose Report, yes?
John Scott: Yes.
Mr Beer: Thirdly, she told you that electronic communication should not be created because they might fall to be disclosed, in one way or another?
John Scott: Yes, I think it was probably – if you look at my interpretation of the next email, is reducing it to legal privilege, which is the second paragraph, as much as possible.
Mr Beer: Can I examine each of those three in turn, please. Firstly, you say:
“The brief given by yourself [ie you, Susan] for the meeting was to provide in effect an under the radar escalation point …”
This was to be a hub concerning issues about the integrity of Horizon, correct?
John Scott: Correct.
Mr Beer: “Under the radar”, would you agree, means things which should go undetected, which should leave no trace, which cannot be seen? Correct?
John Scott: I wouldn’t necessarily agree with that, looking at my – another paragraph in there. It was – the meetings were conducted with lawyers, therefore, everything was being reported to lawyers and escalated to lawyers. But, taking an interpretation of this, she didn’t want it widely circulated, which would then avoid legal privilege where that could be applied.
Mr Beer: You’re saying this is all about privilege, now. It’s nothing to do with the creation of documents in the first place; is that what you’re telling us?
John Scott: Looking at my – one of my paragraphs, I believe it was reducing the risk and keeping it within legal privilege, wherever it could be.
Mr Beer: The words you used are an “under the radar escalation point”. Just as a matter of language, would you agree that “under the radar” means something that cannot be detected, something which leaves no trace, it doesn’t show up, it cannot be seen?
John Scott: As language, yes.
Mr Beer: Why was it important that discussion of issues which may impact the integrity of the Horizon System should not be detectable, that no trace of them should be left? That they should be conducted in a way that meant that they couldn’t subsequently be seen?
John Scott: You see, I don’t agree with that because it’s been reported to solicitors on the meeting, and I think it’s more about reducing the risk of disclosure by using legal privilege.
Mr Beer: Sir, that’s a convenient moment before we move to the rest of the email. I wonder whether we can take a break until 11.40.
Sir Wyn Williams: Yes, of course. Thank you very much.
Mr Beer: Thank you, sir.
(11.26 am)
(A short break)
(11.40 am)
Mr Beer: Sir, good morning, can you see and hear me?
Sir Wyn Williams: Yes, I can, thank you.
Mr Beer: Thank you very much.
Mr Scott, can we continue to look at POL00139690. We were looking at the first paragraph. I’d asked you about the “under the radar” comment. You continue:
“You [that’s you, Susan Crichton] were frustrated in regards to the production and circulation of the Helen Rose report …”
Why was Susan Crichton frustrated that the Helen Rose report had been produced?
John Scott: I cannot recall.
Mr Beer: Was it because it revealed a problem with the integrity of data produced by Horizon?
John Scott: I cannot recall.
Mr Beer: Why was she frustrated that the Helen Rose report had been circulated?
John Scott: I cannot recall. I can only go by this email.
Mr Beer: Was it because there was a report that was critical of the integrity of Horizon now available for disclosure –
John Scott: I don’t know.
Mr Beer: – and that reports should not be written, less still circulated, that revealed problems with the integrity of the data produced by Horizon?
John Scott: I don’t know what she’s thinking.
Mr Beer: Wouldn’t you challenge her and say, “Hold on, if there’s a report that’s critical of the integrity of the data that Horizon is producing, we prosecute people using that data and they get sent to prison; it’s good that such reports are produced and it’s really good if they’re disclosed”.
Isn’t that what a Head of Security, a former police officer, would say, to somebody who is saying, “Don’t write reports and don’t circulate them”?
John Scott: I guess that’s a good opinion.
Mr Beer: Did you say that?
John Scott: I can’t recollect. I don’t know whether I challenged or not.
Mr Beer: Your email continues that:
“… and therefore [she] did not want any electronic communication which may be subject to [Freedom of Information] or Disclosure.”
“Disclosure”, capital D there, means disclosure to a court, yes?
John Scott: I can only go by that and I presume the interpretation, yes.
Mr Beer: How did you come to believe that the Post Office’s General Counsel, Susan Crichton, did not want any electronic communications created which may be the subject of disclosure to a court?
John Scott: Sorry, what’s the first part of the question: how did?
Mr Beer: How did you come to believe that Susan Crichton did not want any electronic communications created which may be the subject of disclosure to a court?
John Scott: Must have been a conversation with her.
Mr Beer: So the General Counsel was saying, “In this enterprise concerning the integrity of Horizon, I don’t want electronic communications created which may be the subject of disclosure to a court”, correct?
John Scott: I can any go by this email.
Mr Beer: So the answer would be yes, then –
John Scott: Yes.
Mr Beer: – because that’s what the email says in terms?
John Scott: Yes.
Mr Beer: Again, would you have challenged her?
John Scott: I may have. I may not. I can’t recollect.
Mr Beer: Why may you not have challenged her?
John Scott: Because I just cannot recall. I’d like to think I challenged her.
Mr Beer: Was the reality that you wouldn’t challenge her because you were part of an enterprise too that didn’t want the creation of electronic communications which may be the subject of disclosure to a court?
John Scott: No. I ensured that there were notes taken.
Mr Beer: Handwritten notes?
John Scott: Handwritten notes or whatever notes –
Mr Beer: No, handwritten notes: that’s what you ensured, isn’t it?
John Scott: Yes.
Mr Beer: Why did you want handwritten notes to be created?
John Scott: To ensure that all the information was captured.
Mr Beer: Why not electronic notes?
John Scott: Because that’s the brief I had from Susan Crichton.
Mr Beer: It’s because they’re not easily discoverable, isn’t it?
John Scott: I don’t know on that one.
Mr Beer: They leave no trace, don’t they? They can be hidden away in a cupboard, can’t they?
John Scott: I can only take my brief from Susan.
Mr Beer: An electronic note leaves a footprint, doesn’t it?
John Scott: Yes.
Mr Beer: The fact that it existed but has been deleted leaves a footprint, doesn’t it?
John Scott: Yes.
Mr Beer: That’s why you don’t want electronic notes created, isn’t it?
John Scott: But notes were created. Notes were maintained.
Mr Beer: I’m asking you about why you wanted handwritten notes not electronic notes?
John Scott: Because that’s the brief I had from Susan Crichton.
Mr Beer: It’s because they are less likely to be found and disclosed, isn’t it?
John Scott: (Non-verbal answer)
Mr Beer: Mr Scott?
John Scott: Mm-hm?
Mr Beer: It’s because they are less likely to be founding and disclosed, isn’t it?
John Scott: In terms of that she – I can only assume from my second paragraph that she wanted to reduce the risk of FOI disclosure with the legal privilege not wrapped around it.
Mr Beer: Let’s turn to the second paragraph:
“The conference calls have been set up and they are chaired by a senior manager from the Security team and then I’m briefed thereafter (I wasn’t aware I had to specifically Chair, but that is easily remedied). At the outset the purpose of the call was given that this was an informal escalation point and no electronic notes would be taken or circulated [and then] and communication would be created”, which looks likely an incomplete part of a sentence.
“Written notes have been taken for each call and activity has been driven behind the scenes.”
Just stopping there. Why would electronic notes not be taken?
John Scott: Because that’s the brief.
Mr Beer: Is it because the taking of an electronic note would create a potentially disclosable record of the call?
John Scott: Potentially, yes.
Mr Beer: Was it so that disclosure obligations in criminal proceedings could be avoided: if you don’t create an electronic record of a discussion, you don’t have to disclose it?
John Scott: No, because the meetings were involving lawyers, both internal and external. They were being briefed on all the issues being escalated and notes were being taken.
Mr Beer: An electronic record has the distinct disadvantage, doesn’t it, would you agree, for a person who wishes to subvert their disclosure obligations, that an electronic record can be looked for and more easily found by others?
John Scott: Correct, it’s more easily –
Mr Beer: Sorry?
John Scott: Correct, it’s more identifiable.
Mr Beer: It’s difficult to remove all traces of an electronic record, isn’t it?
John Scott: Yes.
Mr Beer: It leaves a footprint, even if it’s deleted, doesn’t it?
John Scott: Yes.
Mr Beer: Whereas a written note can be hidden, concealed or even destroyed, can’t it?
John Scott: In principle.
Mr Beer: You say here:
“Written notes have been taken for each call and activity has been driven behind the scenes.”
Was that done on the instructions of Post Office’s General Counsel, Susan Crichton?
John Scott: Going by this email, I’d say, yes.
Mr Beer: Did she instruct you that only written notes should be kept?
John Scott: Going by this email, I’d say, yes.
Mr Beer: It says, just in the line above the ones highlighted:
“At the outset the purpose of the call was given that”, and then following.
Did you give Mr King the instruction that’s referred to there?
John Scott: Sorry, say that one again, please?
Mr Beer: Yes, the line which says, “At the outset,” ie at the outset of the conference calls:
“… the purpose of the call was given that this was an informal escalation point and no electronic notes would be taken or circulated …”
Did you give that instruction to Mr King?
John Scott: Going by this email, I suspect I did pass that brief on to Rob King.
Mr Beer: Did anyone that you spoke to ever push back and say, “Hold on, why aren’t we allowed to keep an electronic record?”
John Scott: I’ve no recollection.
Mr Beer: Did anyone say, “Hold on, why aren’t we allowed to communicate about these matters using electronic means?”
John Scott: No recollection.
Mr Beer: Was there a common understanding, a meeting of minds, amongst those in the Security Department and those on the call that the reasons for not creating disclosable records about Horizon integrity issues was that that would avoid having to disclose documents about Horizon integrity issues in the future?
John Scott: I’ve no recollection but that wasn’t the culture within the team.
Mr Beer: It wasn’t the culture?
John Scott: No. Notes were made, solicitors were briefed.
Mr Beer: You continue:
“For example, a potential Horizon glitch was raised that had been reported previously to Simon Baker. This was then managed consequently directly with Rodric Williams and Steve Beddoe by myself in a manner to bring it under legal privilege as far as possible.”
So you managed an issue to bring it under legal privilege as far as possible. What did you do to bring this issue under legal privilege as far as possible?
John Scott: I can only go by that email, as in I must have brought Steve Beddoe into contact with Roderick Williams, who would have then dealt from there on in.
Mr Beer: So you involved a lawyer, is that right? Is that what you’re saying?
John Scott: (The witness nodded).
And he would determine what’s legal privilege or not.
Mr Beer: Why did you want to manage the issue under the cloak of legal privilege?
John Scott: Because that’s the direction in terms of the Legal Services wanted to take. They wanted to have access and sight and decide whether they wanted legal privilege, as applicable, or not, going by that email.
Mr Beer: You were aware of Horizon system issues that would require management by both the Post Office and Fujitsu at this time –
John Scott: Yes.
Mr Beer: – including Horizon system issues that could lead to discrepancies or shortfalls or losses being shown?
John Scott: I was aware there was issues being raised.
Mr Beer: Why would those require to be managed “in a manner to bring them under legal privilege as far as possible”?
John Scott: I can’t recollect.
Mr Beer: Whose idea was it to manage Horizon system integrity issues in a way to bring them under legal privilege, as far as possible?
John Scott: I can’t recollect.
Mr Beer: Was it a decision of Post Office or Fujitsu or both?
John Scott: I’ve no idea on that.
Mr Beer: If it was within the Post Office, who was responsible for determining that Horizon integrity issues should be managed, so far as possible, under legal privilege?
John Scott: I have no idea.
Mr Beer: Who are the possible candidates for it?
John Scott: Clearly my line manager Susan Crichton. There may be others.
Mr Beer: Can we move on, please, to paragraph 5, which is the last paragraph the one beginning “Clearly”:
“Clearly I will now attend the conference calls as Chair and following on from the previous discussions and the steer below, unless otherwise directed, this will become a formal meeting with terms of reference, electronic notes, actions and appropriate governance within such approach. This will be built into the operating and governance model and the previous notes and actions over the last three will now be electronically recorded and circulated. This does run the risk that more communication will be generated electronically with issues, reports and actions responded to etc that may include inappropriate comments, opinion, assumptions that may be subject to FOI and Disclosure (as in the Helen Rose report).”
To your recollection, was there a reply to this from Susan Crichton?
John Scott: I don’t recall. I don’t even recall this email until it was sent to me.
Mr Beer: To the best of your recollection, did she say, “Hold on, we’ve got disclosure obligations. That’s not a reason not to create documents”?
John Scott: I’ve no recollection.
Mr Beer: Why were you raising the risk of the generation of information electronically that may be the subject to disclosure in a court?
John Scott: Sorry, can you –
Mr Beer: Yes. In that last paragraph, why were you running the risk, saying, “If I do what you’re now telling me to do, which is have a more formal meeting with some terms of reference, creating electronic notes, operating under a governance model, you should know that that’s going to create documents that might be disclosed”; why were you telling her that?
John Scott: Because it appears from the earlier paragraphs that she didn’t want documents widely circulated. Then that would come – avoid legal privilege.
Mr Beer: So were you saying, “Be careful what you wish for, Susan”?
John Scott: I can only go by this email.
Mr Beer: Is that what you’re essentially saying?
John Scott: I’m not too sure what I was saying, in terms of –
Mr Beer: Well, help us.
John Scott: I’m just advising her, then, that where she was challenging around circulation of the Helen Rose report, then, obviously, that’s similar. It may be available for more disclosure or Freedom of Information.
Mr Beer: In any event, does this exchange indicate that there hadn’t been a similar formal route or mechanism for regular liaison between Legal and Security on Horizon integrity issues until after the first Simon Clarke advice was written?
John Scott: I can’t recollect.
Mr Beer: Well, he was suggesting it be introduced, if you remember.
John Scott: Mm-hm.
Mr Beer: Does that tell us that it doesn’t exist beforehand?
John Scott: That may have been the case but obviously I wouldn’t have known if the Security Operations team for fraud were having conversations already with Cartwright King. So I wouldn’t have known what their activity was.
Mr Beer: Can we turn to the next day, please – that document can come down – and look at POL00139749. This is an attendance note of Martin Smith of Cartwright King of the 14 August 2013. Under the “Detail”, it records “MJS to SC”, who at the moment I’m going to take to mean Susan Crichton?
John Scott: Mm-hm.
Mr Beer: “John S will not be on conference call. He admitted in an email to her last night to sending out [instructions] to shred.”
Did you send such an email to Susan Crichton?
John Scott: No, I would not do that.
Mr Beer: Did you say anything to that effect to Susan Crichton?
John Scott: I can’t recall if I’ve had a conversation with her but that’s not a thing would say.
Mr Beer: Do you know where Susan Crichton may have got such an idea from?
John Scott: No.
Mr Beer: Can we turn to POL00139748. This is later that day, 14 August. Again, an attendance note by Mr Smith, and look at the “Detail”, “[Telephone call] from JS”. Again, I’m going to assume that that’s Jarnail Singh because of the description of you as John Scott rather than JS:
“[Telephone call] from [Jarnail Singh]. John Scott will be in the [conference] call, [Martin Smith] said not appropriate.”
Had you done anything to your understanding, that was wrong that meant it would be inappropriate for you to be included in the next conference call?
John Scott: No.
Mr Beer: On your account, you’d just been following orders?
John Scott: Yes.
Mr Beer: Yet it seems that it was not appropriate, according to Mr Smith, for you to be on the call?
John Scott: That’s what he’s stated.
Mr Beer: Had you done anything that might make it inappropriate for you to join the conference call?
John Scott: No.
Mr Beer: In fact, I think the record shows that you did attend the conference call on the 14th?
John Scott: Yes.
Mr Beer: Can we divert for a moment from this period of July and August 2013 and look back at an earlier episode to see whether it assists us. It’s POL00107696. I wonder if we can just start at the bottom of page 2, please, thank you.
Can we see a message from Emily Springford – do you remember who she was –
John Scott: No.
Mr Beer: – to a collection of people, including Angela van den Bogerd, Hugh Flemington, Susan Crichton and you. The heading is “JFSA claims – disclosure and evidence gathering”, and the email is titled “Privileged and confidential”.
“Dear all, [then over the page]
“As you are aware, [the Post Office] has received 4 letters of claim from former subpostmasters, making a number of allegations about the training they received, the support available to them in using the Horizon System, and the Horizon System itself. There is a possibility that these [claims] will be followed up with Court proceedings, in which case [the Post Office] will have a duty to disclose to the claimants all documents relevant to the claims, even if they might adversely affect [the Post Office’s] defence.”
Do you agree with everything so far that’s said?
John Scott: Yes.
Mr Beer: “This obligation extends to soft copy documents (emails, and all documents stored on the IT network, hard drives, handheld devices and so on) as well as hard copy documents and manuscript notes.
“Please ensure that this communication reaches everyone in your department who has access to, or who is in a position to create, documents relating to the issues arising in the claims (as set out more fully below). I have started a list of teams which we believe may hold relevant documents. The list is attached: I should be grateful if you would let me know of any other teams which might hold documents relevant to the claims.”
So this is saying we’ve got four letters of claim in from JFSA claims and there are some disclosure obligations that arise accordingly, agreed?
John Scott: Yes.
Mr Beer: If we scroll down, “Document preservation”:
“[The Post Office] must take immediate steps to preserve all documents which might potentially be relevant to these claims. ‘Relevant’ documents are those which contain information about the issues below:
“the subpostmasters or branches in question …
“the recruitment of subpostmasters
“the training given to subpostmasters
“the support given to subpostmasters in using the Horizon System …
“the integrity of the Horizon System
“[the Post Office’s] branch accounting procedures.
“Please note that no historic time limit applies, so that all documentation within these categories should be preserved, regardless of when it was created.
“Could … you please inform the members of your teams who hold or create documents in these categories that they should not delete or destroy any documents in these categories until further notice.
“It is important that you keep a note of any routine document destruction policies that you suspend within your department, and the dates on which they are suspended, together with a note of any other steps you take to ensure that your department complies with the above requirements.”
Do you agree with everything so far –
John Scott: Yes.
Mr Beer: – as an understanding, correctly, of disclosure obligations?
John Scott: Yes.
Mr Beer: Under “Document creation”, then:
“It is very important that we control the creation of documents which relate to any of the above issues and which might be potentially damaging to [Post Office’s] defence to the claims, as these may have to be disclosed if these claims proceed to litigation. Your staff should therefore think very carefully before committing to writing anything relating to the above issues which is critical of our own processes or systems, including emails, reports or briefing notes. We appreciate that this will not always be practicable, however.
“Where it is necessary to create a document containing critical comment on these issues, it will in certain circumstances be possible to claim privilege over the document, so that [the Post Office] will not have to disclose it in any proceedings. As litigation is now a distinct possibility, the document will be privileged if its dominant purpose is to give/receive legal advice about the litigation or to gather evidence for use in the litigation. This also applies to communications with third parties – ie with other organisations – provided they are confidential and their dominant purpose is as set out above. All of the following steps should be taken in order to maximise the chances of privilege attaching to [a] document:
“If the dominant purpose of the communication is not to obtain legal advice, try to structure the document in such a way that its dominant purpose can be said to be evidence gathering for use in litigation;
“Mark every such communication ‘legally privileged and confidential’;
“If you are sending the document to someone, state in the covering email [et cetera] that you are not waiving privilege by doing so;
“Request that the recipient of a communication confirm that the document will be kept confidential and that he/she will not forward it to anyone else;
“Think very carefully before ‘replying to all’ on an email …
“Where possible and appropriate, copy a member of Legal Services into the communication, and make [sure] that you are doing so to enable them to advise on the content. Please note that copying a member of Legal Services into the communication alone will not necessarily suffice.”
Now, we may in due course investigate the propriety of some of the advice given there with other witnesses and how it was subsequently acted upon, but how did you understand the advice that you were given here?
John Scott: Is there a particular part or the whole lot?
Mr Beer: The whole lot.
John Scott: It was giving advice on disclosure.
Mr Beer: Was it saying to you, “Be careful about the creation of documents that might be damaging or potentially damaging to our defence of the claim, and do everything you can to badge them up as privileged”?
John Scott: In part, looking at that, yes.
Mr Beer: Did that form part of your considerations when, in August 2013, you had to make decisions as to the approach to be taken with the Horizon hub meetings on Wednesdays?
John Scott: So I don’t recollect this email at all and whether it had a part on that decision, 2013, or not, I have no idea.
Mr Beer: It says “It is important that we control the creation of documents. Your Staff should think very carefully about committing anything to writing, in particular if they are critical of the Horizon System or the reliable of its data”. Isn’t that what you were instructing should occur in the July and August Horizon hub calls?
John Scott: In terms of the hub calls it was about informing the solicitors in terms of all the issues and for them to decide whether legal privilege would then apply.
Mr Beer: Sorry, say that again: in terms of the hub calls it was about informing the solicitors for them to decide whether legal privilege should apply?
John Scott: So, obviously, the issues were being picked up and dealt with and progressed but, of course, you had lawyers on the call to make an assessment whether something was disclosable or not.
Mr Beer: What’s that got to do with only writing things on pieces of paper and not recording them electronically?
John Scott: Because, once it goes much more broader, then – to a broader audience, then it’s outside of the legal framework, the lawyers can’t make an assessment or can make an assessment but it’s broader.
Mr Beer: Can we go back to Mr Clarke’s so-called shredding advice at POL00006799, and can we turn to page 5, please, and look at paragraph 9. He advises the Post Office:
“The duty to record and retain material cannot be abrogated. To do so would amount to a breach of the law and, in the case of solicitors and counsel, serious breaches of their respective Codes of Conduct. Accordingly, no solicitor, no firm of solicitors and no barrister may be a party to a breach of the duty to record and retain. Neither may they act in circumstances where they are aware, or become aware, that a practice has developed within the investigative or prosecutorial function such that the duty to record and retain is being deliberately flouted, or avoided. Again to do so would amount to breaches of both the law and Codes of [Practice].”
Then this:
“A decision-based failure to record and retain material would readily amount to such a practice. Such a decision, where it is taken partly or wholly in order to avoid future disclosure obligations, may well amount to a conspiracy to pervert the course of justice on the part of those taking such a decision, and those who implement such a decision where they do so in the knowledge that it was taken partly or wholly for that purpose.”
Was the purpose of the instruction that you gave a decision to not record and retain material in order to avoid disclosure obligations?
John Scott: No. We were recording. We were taking notes.
Mr Beer: Sorry?
John Scott: We were taking notes.
Mr Beer: On pieces of paper?
John Scott: On pieces of paper but they were there. They were retained and on the August they were still there and retained and able to be used and circulated.
Mr Beer: Can we go, after that excursion, back to where we were in the chronology, to POL00083930. As I mentioned earlier, the conference call on 14 August shows that you’re present. Despite what we’d read earlier about it being inappropriate for you to join the call, you and others are on it.
Were you ever told that there was doubt about whether you were going to be permitted to take part in this call and future conference calls?
John Scott: No, I don’t recall that at all.
Mr Beer: After your email exchange of the 13th and this day, the 14th, with Ms Crichton, you just turned up on the phone?
John Scott: No. I said in my email that I would now be attending and chairing.
Mr Beer: Yes, but you didn’t know that there had been in the background this discussion amongst lawyers about whether –
John Scott: No.
Mr Beer: – it would be appropriate for you to attend or not?
John Scott: No.
Mr Beer: You just joined the call?
Can we move forward to 19 August, please, POL00139691. This is a later email trail involving Rob King, Jarnail Singh and then earlier Dave Posnett and Andy Parsons. I don’t think you’re copied into it. Can we look at the second page, please, then look at the foot of the first page, please – and then scroll up, please. We see an email from Mr King of your department to Mr Singh:
“Apologies if I seemed a little evasive earlier. To date I have worked to the remit of establishing a group whereby issues and concerns are raised and recorded (see below). However with an initial mandate of not circulating notes made, it is difficult to apply the usual governance on the process. Notes have been typed, actions captured and will be circulated. This should provide the proper framework for resolving issues. I was under the impression that a working group would be set up to deal with these, placing the weekly conference call superfluous. Investigators have been instructed to report back any issues raised during interview. These will be fed through to legal and a record made of them. I still maintain that security is not the best place though to resolve issues with the Horizon System. As you know John Scott is chairing this con call going forward. It may be useful if you reply to John Susan’s concerns. Speak tomorrow.”
The line “However with an initial mandate of not circulating notes made”, does that reflect your understanding of the initial mandate there was to be no records circulated for these meetings?
John Scott: Yes, but notes were to be made.
Mr Beer: He says that Security is not the best place to resolve issues with the Horizon System. Do you know why that was?
John Scott: Because I think the – any issues escalated may be much broader than Security.
Mr Beer: Was this discussed with you?
John Scott: I can’t recall.
Mr Beer: The last line “It may be useful if you reply to John or if you relay to John Susan’s concerns”, do you know what Susan Crichton’s ongoing concerns were?
John Scott: He sent a document which outlines – ie identify the issues and hunt down the issues and root cause and deal with them.
Mr Beer: That can come down. Thank you. There are “Regular Calls re Horizon Issues” on 21 August, I’m just going to give the reference rather than looking at it, POL00139726 – at which you’re an attendee, and 28 August, POL00083935, and you are an attendee.
In September 2013, Susan Crichton left the Post Office, correct?
John Scott: I believe it’s about that time.
Mr Beer: There wasn’t an immediate replacement for her, was there? Somebody had to act up as an interim, do you remember that?
John Scott: No, I thought a – well, an interim person was employed. Not – an interim General Counsel from external.
Mr Beer: Why did Susan Crichton leave?
John Scott: I have no idea.
Mr Beer: She was somebody with whom you worked closely?
John Scott: She was my line manager, yes.
Mr Beer: And she was somebody who you worked closely with?
John Scott: Yes.
Mr Beer: Was there no discussion as to why she left?
John Scott: No.
Mr Beer: Did she leave suddenly?
John Scott: I think she left the next day, after informing me or others.
Mr Beer: Was there no discussion about why she departed?
John Scott: I would not discuss that with a line manager. That’s personal to them.
Mr Beer: Did she not say to you “I’m leaving because X and there isn’t somebody in place ready to take over from me. We’ve got to get an interim in”?
John Scott: I don’t recall, no.
Mr Beer: Was her departure anything to do with the issues we’ve just been looking at this morning?
John Scott: I have no idea at all.
Mr Beer: I’ll leave the Susan Crichton thing. We’ve got no documents that help us at all as to why she said she was leaving one day and disappeared the next.
Can we turn, please, to 9 October and look at POL00139695.
Can we see an email of 9 October, and I don’t think you’re on the copy list; is that right?
John Scott: I can’t see my name.
Mr Beer: It’s an email from Gayle Peacock from Branch Training and Support attaching something called “The protocol”. She says:
“Apologies for the delay in circulating these notes from last week’s notes. We had a mix up with who was taking them so I’ve put some together based on the bits that I have captured …
“I’ve also attached the Protocol document which Martin talked about on the call last week. I think there are still a few tweaks to be made to this but you can see the general principles.”
So this is an email, would this be right, to a working group, but not including you, enclosing a protocol?
John Scott: Can I see the names again, please?
Mr Beer: Sorry?
John Scott: Can I see the names?
Mr Beer: Yes. If we just scroll up, please.
John Scott: I don’t recognise a couple of the names but most of them are those who attend the meeting, that I’ve seen in the minutes.
Mr Beer: Can we look at the protocol itself, please, which is POL00139696. I want to try to do this quite briefly because it’s a seven-page document but what I’m going to suggest is, when we read through it, we can see that it’s a rather good if not excellent protocol about how the Wednesday morning telephone conferences should be conducted about how to identify material, to record material, to retain material which may be the subject of duties of disclosure.
It starts off with a citation, can you see, under the preamble, from something which is in fact from the foreword to the Attorney General’s Guidelines on Disclosure, that disclosure is one of the most important issues in the criminal justice system. It reads:
“As a prosecutor, Post Office Limited is under a positive duty to identify, record and retain any information which might assist a defendant in preparing or presenting his case or which might undermine the prosecution case against him … we must … be able to prove that, where we rely information provided by Horizon Online to prosecute, that system is reliable and accurate; that those using the system have been properly trained; and that appropriate support systems are in place and available to users. The duty extends to all information held by the prosecutor; or to which he may have access; and to information which came into existence before any crime was detected but which meets the test for disclosure.
“As a fair and public-spirited prosecutor and always acting in the interests of justice, Post Office will take all reasonable steps to ensure that we are … in a position to fully meet our disclosure duties. Accordingly we will in future collect and retain any and all information which might suggest that Horizon Online may not be working as it should, or that our training and back-up systems are less than we would …”
I suspect there is nothing with which you disagree in those two paragraphs?
John Scott: Correct.
Mr Beer: “Those best placed to provide the information we are required to identify, record and retain are those within the organisation who are Horizon Online users or those who on a regular basis come into contact with Horizon Online and its users. It is those persons, departments and sections therefore at whom this protocol is directed and who will be our front line in the information gathering exercise.
“Defendants are entitled to this information where it meets the test for disclosure and we would not wish to be associated with any wrongful conviction.”
Over the page:
“Wednesday morning telephone conferences
“Post Office will conduct a telephone conference on each and every Wednesday morning …
“The primary purpose … will be to Identify, Record, Retain and disseminate all such material … set out in [a clause] below.”
2:
“Post Office will appoint a … chair …
“The Chair will not be a Head of Department or section mentioned in clause 3.2 below or a representative thereof, but may be a member of staff of such a Department … The Chair will not be a person mentioned in [a clause below].
“The functions … of the Chair are set out in [the clause below].
“3. Attendance
“The Chair will ensure the attendance at conferences of those Heads of Department or sections set out [in a clause] below, or such departments or sections as are responsible for the functions indicated in that clause …
“3.2. The following are the Departments to which [a clause] above refers.
“Criminal Law, Litigation …
“Civil Law …
“Post Office Security [and others]
“3.3. In addition … the Chair will ensure the attendance at each and every conference of the following …”
Scroll down please: a solicitor from Bond Dickinson; a solicitor from Cartwright King; a minute-taker appointed by Bond Dickinson. They will:
“… take all reasonable steps to ensure that the appointed representative and the minute-taker is the same individual at each and every conference.
“4. Functions and duties of the Chair …”
I’m going to skip over those.
If we go over the page, please, and go to 5, “Duties and responsibilities of persons attending Wednesday morning Telephone Conferences”, you will see the duties set out in 5.1 to 5.5.
Then 6, a definition of equipment and material subject to the protocol.
Then 6.2, additional categories of material subject to the protocol:
“Any information, in whatever form, which relates to or is associated with, any aspect of the Horizon Online … which may
“Indicate the presence … of a defect, ‘bug’ fault or virus;
“Tend to suggest that any data produced may be inaccurate, false or otherwise unreliable;
“Tend to suggest that any balance produced may be inaccurate … or otherwise unreliable;
“Indicate a failure, error, inadequacy or insufficiency in the presentation of data.
“Indicate a requirement for further training …
“Indicate an inadequacy of back-up or support …
“Indicate a requirement to alter, modify, rearrange or redefine any process”, et cetera.
Would you agree that this protocol appropriately captures the duties to create, identify, record, retain material which may be subject to duties of disclosure?
John Scott: Yes.
Mr Beer: Why was it not in place for a decade before?
John Scott: I have no knowledge on that one.
Mr Beer: You were Head of Security?
John Scott: Yes.
Mr Beer: Your department was responsible for investigating and instigating criminal proceedings –
John Scott: Mm-hm.
Mr Beer: – against hundreds of subpostmasters?
John Scott: (The witness nodded)
Mr Beer: Why was a protocol like this not in place before late 2013?
John Scott: I did not know that these issues were not being captured. I’d have expected the IT Department to have been capturing these and feeding these through, had they had concerns.
Mr Beer: Do you agree that a protocol like this should have been in place –
John Scott: Yes.
Mr Beer: – at all material times when subpostmasters were being prosecuted?
John Scott: Yes, I think that would have been best practice.
Mr Beer: When you say “best practice” you mean required practice by the law?
John Scott: Right.
Mr Beer: That document can come down, please. In your witness statement of yesterday you’ve analysed the contents of a series of documents that were created concerning the July and August 2013 weekly meetings and you’ve made points about them, drawing extracts from them and analysing them, over the course of 10 pages or so.
John Scott: Yes, I’ve made observations.
Mr Beer: That’s in relation to an allegation that’s been made against you in the past, that you were responsible for an order that minutes should be shredded?
John Scott: Yes.
Mr Beer: When you were reviewing the sufficiency of evidence to prosecute subpostmasters, did you subject that evidence to the same level of scrutiny?
John Scott: In terms of prosecution decision?
Mr Beer: Yes.
John Scott: I’d have expected to have done so, yes.
Mr Beer: Because we can see from your witness statement that, where the allegation is made against you, you analyse all of the material, pull parts from here and there, put them together and draw inferences from them?
John Scott: (The witness nodded)
Mr Beer: Make denials, agree with certain things, yes?
John Scott: (The witness nodded)
Mr Beer: Is that what you did when you were reviewing files against subpostmasters?
John Scott: I’d have read all the file documents that were forwarded to me. I would have read the suspect offender report. I’d have probably read the tape summary and most definitely the legal advice that would have been provided.
Mr Beer: Did you read the underlying material?
John Scott: Online material?
Mr Beer: Underlying material, rather than somebody else’s summary or views of it?
John Scott: I may have looked at, on occasions. I’m not saying that I would look on every single occasion.
Mr Beer: Or did you think, because it had passed through Legal and they had recommended prosecution that it was your job to rubber stamp it?
John Scott: No, I would still be looking to – just to know and understand.
Mr Beer: Did you ever say a case should not be prosecuted?
John Scott: Obviously, you sent me a document where it does say prosecution won’t go forward.
Mr Beer: In your nine years as Head of Security –
John Scott: Yes?
Mr Beer: – how many times did you say that a case should not be prosecuted?
John Scott: I can’t recall.
Mr Beer: Can we turn to the offender report, which you just mentioned.
John Scott: Mm-hm.
Mr Beer: So moving way from the approach taken to disclosure to the creation of reports for the purposes of bringing criminal and disciplinary proceedings against subpostmasters and clerks. Do you recall a document called “Security Operations Case Compliance”?
John Scott: No, you’ve sent it to me in the bundle but I don’t recall that at all.
Mr Beer: Can we look at it, please. POL00119917. Thank you.
Can you see that this is a document headed up “Security Operations Team – Case Compliance” so the Security Operations team came under your responsibility?
John Scott: Yes.
Mr Beer: This is in relation to a particular case. We’ve got lots and lots of these, in the same or similar format. Can you see that, in the left-hand column, there is a reference to, variously, the case file, the offender report, the taped interview record, appendices A, B and C, and then, scrolling down, the discipline report, and then stakeholder engagement, yes?
John Scott: Mm-hm.
Mr Beer: There are 50-items against which compliance is seemingly judged; can you see that?
John Scott: Yes.
Mr Beer: Then, in the right-hand column, there is a mark, a compliance score as a percentage, which, if the person submitting the file gets it all right, they get 100, so 100 per cent. This person submitting this file got 94 per cent; can you see that?
Do you remember this case compliance approach –
John Scott: No, I’ve no recollection at all.
Mr Beer: – in which issues are identified and a weighting is given to each of them?
John Scott: No, this will be a – sort of, a level of operational detail that I wouldn’t have engagement with. This would be with the Head of Security Operations.
Mr Beer: How many people were you responsible for, when you were Head of Security?
John Scott: At the outset, I think it was about 110 and that dramatically reduced over the years.
Mr Beer: To?
John Scott: I think – well, less than 50, I think.
Mr Beer: So you, in your nine years, wouldn’t be responsible that there was a process being undertaken to measure case compliance with a series of standards?
John Scott: I’d expect it to be there but I wouldn’t be getting involved in it. That would be the Head of Security Operations or Head of Fraud, in the earlier days.
Mr Beer: Wouldn’t you receive reports to say, “We’re doing well, we’re not doing very well, on case compliance”?
John Scott: I don’t recall receiving reports. That’s not to say I didn’t get an overall measure.
Mr Beer: Were you aware of a suite of documents that were circulated very frequently within your department informing their staff that they were to be the subject of case compliance checks?
John Scott: I’ve seen it in the bundle but I don’t recollect seeing that before.
Mr Beer: So this was going on, as you now recall it, without you knowing?
John Scott: As far as I’m aware, yes.
Mr Beer: Can we look at another one of the suite of documents, please, that was distributed along with these case compliance score sheets. POL00118101. Can you see the heading of this document “Post Office Limited Security Operations Team”, so the same team “Compliance, Guide to the Preparation and Layout of Investigation Red Label Case Files”, and then a subheading “Offender reports & Discipline reports”?
Can you see that it’s, at the bottom of the page, said to be “In Confidence”, and that’s at the bottom of each page.
If we go over the page to page 2, please, and if we just read through the purpose of the document:
“The purpose of the Suspect Offender report is to provide a storyboard of events and evidence of an investigation to the relevant stakeholders and Criminal Law Team to enable a decision to be made as to the future conduct of a case.”
So these are the reports that you got, yes?
John Scott: Yes.
Mr Beer: “This guide is produced for all Security Operations managers, irrespective of location …
“The general principle is that the description of investigation activities should read in the sequence they occurred so it may be necessary to reorder paragraphs or elements within them. The following is only a guide …”
Then if we look at the foot of the page, please. Can you see –
Sorry, I’ve missed a part out that I should have gone to. It’s the fifth paragraph. The one beginning “The text”:
“The text element of the Suspect Offender report should commence immediately underneath the preamble/s. The Header/Footer on the report should read ‘Post Office Limited Confidential – Investigation, Legal’.”
We’ll come back to that in a moment.
Then if we scroll down, please, we’ll see the contents starting to be listed of an offender report: a preamble; it should have a header and footer; and the investigation background; the offender interview details; what happened post-interview. Scroll down, please.
Then the contents of a discipline report under paragraph 2; headers and footers; background; offender interview details; then, over the page, post-interview.
Then we scroll down. Hold on, if we go back, please. Back up a page. Thank you.
The offender report, more detailed guidance is given; preamble; headers and footers; it repeats the point that “Post Office Limited Confidential Investigation, Legal” should be printed.
Does that reflect the fact that legal professional privilege was claimed over the offender reports?
John Scott: I believe it was.
Mr Beer: Can we go to – I’m not going to read it all – page 9, please. We’re still in the part of the document that’s dealing with the offender report, rather than the discipline report. 1.24:
“Details of failures in security, supervision, procedures and product integrity. This must be a comprehensive list of all identified failures in security, supervision, procedures and product integrity. It must be highlighted bold in the report. Where the investigator concludes there are no failures in security, supervision, procedures and product integrity a statement should be made and highlighted in bold.”
Would you agree that that statement of the things to be included in the offender report, insofar as it refers to product integrity, would include anything that emerged in the investigation, whatever its source, about issues with the accuracy or reliability of Horizon data?
John Scott: I’d expect so, yes.
Mr Beer: It would include issues about the integrity of the Horizon System and the data that it produced?
John Scott: Yes.
Mr Beer: Would that be because those are things that are all capable of undermining a prosecution case?
John Scott: It seems so, yes.
Mr Beer: They are relevant issues for a person deciding whether there is a realistic prospect of a conviction to consider –
John Scott: Yes.
Mr Beer: – and that such people positively need to have such material identified to them, don’t they?
John Scott: Yes.
Mr Beer: It will also assist, would you agree, in the discharge of disclosure obligations to have the material collected together and highlighted in bold in one place?
John Scott: Yes.
Mr Beer: Can we scroll on, please. Just stop there. Just scroll up just a little bit, please, bit more.
We then, in paragraph 2, turn to the discipline report. We see that the header and footer of this is, by contrast, only to be “Post Office Limited Confidential: Investigation Personnel”, yes?
John Scott: Yes.
Mr Beer: Then can we get scroll through to page 10, until we get to paragraph 2.15. Thank you. It reads:
“Details of failures in security, supervision, procedures and product integrity. This must be a comprehensive list of all failures in security, supervision, procedures and product integrity. It must be highlighted in bold in the report. Where the investigator concludes there are no failures a statement to this effect should be made and highlighted in bold.”
So the same as in relation to the offender report, agreed?
John Scott: Yes.
Mr Beer: Again, it continues, however.
“Significant failures that may affect the successful likelihood of any criminal action and/or cause significant damage to the business must be confined, solely, to the confidential offender report. Care must be exercised when including failures within the Discipline Report as obviously this is disclosed to the suspect offender and may have ramifications on both the criminal elements of the enquiry as well, as being potentially damaging to the reputation or security of the business. If you are in any doubt … discuss with your Team Leader.”
Would you agree that this is, in Post Office written policy, a command to include only in a document that enjoys privilege any issues that may affect the successful likelihood of criminal proceedings?
John Scott: That’s how it reads.
Mr Beer: It therefore included an explicit instruction to keep secret and not to disclose any Horizon integrity issues, didn’t it?
John Scott: No, because that would be reported to the lawyers, who would then consider the requirement for disclosure out to a suspect offender or his or her lawyers.
Mr Beer: But not disclosing in a report that a suspect would see any issues that may affect the success of criminal proceedings. The reason given for that is that it was potentially damaging to the reputation of the business, isn’t it?
John Scott: The report that was given to the suspect offender would have been a discipline report around their employment or around their contract, not about any criminal investigation. That would be reported to the lawyers, who would then make a decision of what they disclose to that individual.
Mr Beer: So this is saying “Be careful not to let things leak out that might cause damage to the business”?
John Scott: In part, yes.
Mr Beer: Was that the prevailing attitude of mind whilst you were Head of Security?
John Scott: I’d say no, bearing in mind that we were communicating out as part of the prevention strategy of saying what some of the security weaknesses were, so that we could actually then let them know that we were monitoring it and we will be putting prevention in.
Mr Beer: This document and documents in the same terms or similar terms were distributed according to emails that the Inquiry has received to very many Security staff under your command during your tenure –
John Scott: Mm-hm.
Mr Beer: – in your nine years, and they were told that not only must they do that which is included in these paragraphs but they would be audited to ensure compliance to make sure that they didn’t breach the restrictions included here. Did you know that was going on?
John Scott: No.
Mr Beer: But it happened on your watch; how did that happen?
John Scott: I just have to give my apologies that I did not see that or the senior management of the Security Operations Team didn’t spot it.
Mr Beer: Can we turn, please, to POL00118152. This is another one of the suite of documents that was regularly distributed to your staff. In the pro forma for the discipline report and the offender report, there was a section which required the maker of the report to include an identification code and this document was part of the suite of documents distributed to them, telling them which identification code to use. Do you see anything wrong with this document?
John Scott: Very much so. It’s very racially offensive.
Mr Beer: Which parts?
John Scott: I’d say it’s all.
Mr Beer: Sorry?
John Scott: All.
Mr Beer: This was distributed regularly to your staff on your watch telling the staff that they needed to use these codes and they would be audited for compliance if they didn’t. How did that come about?
John Scott: I have no recollection. I do not recall this document. Had I seen it, I’d have challenged and had it resolved.
Mr Beer: Did any of your 100 staff – falling to 50 staff – come to you in the nine years of your tenure to say, “Hold on, boss, we’ve been asked to fill out a document to say whether somebody is a ‘Negroid type’. I don’t think that’s really appropriate”?
John Scott: No.
Mr Beer: What was the purpose of using identification codes for suspects and offenders?
John Scott: I believe it’s to do with official reporting to the police.
Mr Beer: How was official reporting to the police undertaken?
John Scott: I can’t recall.
Mr Beer: Who was responsible for reporting to the police?
John Scott: It would be the Investigator who’s in charge of the case.
Mr Beer: How were they to report to the police?
John Scott: Oh, I have no idea.
Mr Beer: What was the purpose of making a report to the police of the suspect’s identification?
John Scott: I have no idea.
Mr Beer: At what stage in the process would they report to the police the suspect’s identification code?
John Scott: I have no idea. I don’t have that level of operational detail.
Mr Beer: If reporting to the police was the purpose of noting identification codes down for suspects, wouldn’t one need to know what the police identification codes were, rather than these Post Office ones?
John Scott: That would make sense.
Mr Beer: Can you think of any other purpose, if the purpose wasn’t to report matters to the police, for recording a suspect’s identity –
John Scott: No.
Mr Beer: – ie their ethnic or racial origin?
John Scott: No.
Mr Beer: Were any statistics compiled of how many “Siamese” people were prosecuted, how many “Negroid types” were prosecuted, and how many “Sicilian” people were prosecuted?
John Scott: I’ve no recollection of ever doing that.
Mr Beer: Would therapy any purpose in recording that information?
John Scott: No.
Mr Beer: When you saw this document, it therefore came as a complete surprise to you?
John Scott: Yes.
Mr Beer: Who was responsible for issuing case compliance instructions to the 100, falling to 50, staff?
John Scott: Can I just clarify, when I talk about 100 down to 50 staff, that was across all the five strands, not just purely the Fraud strand or the Security Operations strand, when you make reference to that number.
Mr Beer: Okay. So presumably a smaller number then?
John Scott: Yes.
Mr Beer: For those involved in fraud investigation and security operations, how many did you start with and how many did it fall to?
John Scott: I’d say probably in the region of around about 60 to start off with. Towards the end, I will struggle to think, because we – or I merged two teams together, the preventative physical team with the fraud team, to make the security ops, and there was an element of multi-skilling. So how many were actually left to do the investigation, I couldn’t actually recall.
Mr Beer: But that number, 60 at the beginning and then less than 60 at the end, who was responsible for issuing to them the kind of documents, the three documents, that I have mentioned?
John Scott: Yes, that would have been down to the senior management of the Security Operations team.
Mr Beer: Who was that in the relevant period?
John Scott: What year are we talking?
Mr Beer: We’ve got emails showing that this was in circulation between 2008 and 2012 and there was further circulation, I think, up until 2016, so really across your period of office?
John Scott: Okay. I think I have listed it in my statement and so I think Dave Pardoe –
Mr Beer: Yes.
John Scott: – Iain Murphy –
Mr Beer: Yes.
John Scott: – rob King and Amy Quirk.
Mr Beer: Would they not come to you and say, “Look boss, we’re introducing this thing called case compliance. These are the things we’re going to ask for compliance with, one of them is we require a particular font and line spacing”, and you say to them, “Well, hold on that’s a bit petty”, or “That’s a good idea, I like everything to be produced in the same font”; would they not come to you with things like that?
John Scott: No, that’s not the level of detail that I would be involved in.
Mr Beer: Would they not tell you “We’re issuing case compliance requirements and auditing staff against them”?
John Scott: I may have been briefed at a one-to-one.
Mr Beer: But the documents that I’ve shown you – the instructions on case file compilation, the Excel spreadsheet of case compliance scoring and the identification codes document – were all a surprise to you when you saw them recently?
John Scott: Yes. They may have come across my desk at some point but it’s not documents that I’d actually get involved in because it’s at an operational level, that I would leave to the senior managers of the strand.
Mr Beer: Sir, thank you. I’m about to move to a separate topic and it’s just coming up to 1.00. I wonder whether we might break until 2.00.
Sir Wyn Williams: Of course, yes.
I take it you’re aware that you shouldn’t speak to anyone about your evidence during the lunch break, Mr Scott. I’m sure you probably don’t want to but, if there are things that you would wish to speak to your lawyers about, then just let Mr Beer know what you want to talk to them about so he can decide whether anyone should make a decision about whether that’s appropriate, all right?
The Witness: Okay, thank you.
Mr Beer: Thank you, sir. So 2.00, please.
Sir Wyn Williams: Yes.
(12.58 pm)
(The Short Adjournment)
(2.00 pm)
Mr Beer: Sir, good afternoon, can you see and hear me?
Sir Wyn Williams: I can, thank you.
Mr Beer: Thank you very much.
Mr Scott, can we turn please to our next topic. I would like, if I may, to examine your role in the genesis, creation and purpose of the Ismay report of 2010. Can we start, please, back in February 2010 by looking at FUJ00156120.
This is an email chain, so we’re going to have to start at the back which is at page 8, please.
If we just scroll down a little bit, please, and a bit more. We can see this is an email from Carol Ballan, a contract advisor in South East England area. Then scroll up, please, to the top of the page. It’s to Mandy Talbot, a lawyer within the Post Office, and others, Lin Norbury, Jessica Madron and Dominic Williams, and it’s to do with a large debt outstanding in the Alresford branch, okay?
She says:
“Mandy, I am aware that there are many cases at the moment, both current and [ex-postmasters], where there are challenges regarding the integrity of the Horizon system.”
Just stopping there at the moment, at that time, were you aware of many cases in which the integrity of the Horizon system was being challenged, February 2010?
John Scott: I was becoming aware because of the JFSA but I wasn’t aware of explicit examples.
Mr Beer: We’re going to see in a moment that you’re copied in to this chain?
John Scott: Mm-hm.
Mr Beer: Okay. But you say you were aware because of the JFSA. What were you aware of because of the JFSA?
John Scott: They’d just been set up.
Mr Beer: What did that tell you or what did you learn from the setting up of the JFSA?
John Scott: That there were challenges around the Horizon integrity.
Mr Beer: Had you seen an article in Computer Weekly in 2009?
John Scott: I’ve seen it in the bundle. I don’t recollect it but I may have seen it.
Mr Beer: Were you aware of some coverage by the BBC in 2009/10 over Horizon integrity problems?
John Scott: I don’t recall that.
Mr Beer: In any event, this contract advisor for South East England, or one of them, is aware of many cases where there are challenges regarding the integrity of Horizon.
Then in the next three or four paragraphs she sets out some background to the case in particular, okay, which we needn’t read. Essentially, there was a debt and she wants some advice, please, from Mandy Talbot, the lawyer, about how to handle it. It seems like there must have been an attachment to it, which we haven’t got, concerning a request for access for the purposes of an examination by an expert witness.
She says at the end, Ms Ballan:
“Please can I have your advice on a response to her solicitors.”
Then can we go, please, to page 7 and look at the foot of the page. We can see this is an email, if we just scroll on, from Mandy Talbot on to David X Smith, who was the Head of Change & IS and she says to him:
“Has [the Post Office] received requests like this before and if so how has it responded to them? Does the business in principle have any objection to meeting with a ‘computer expert’ and explaining to him how the system works. Possibly even showing him the data. It may be beneficial in resolving this case but it will set a precedent. If we refuse I anticipate there is no way that we will be able to recoup any money on the sale of the branch without litigation which will revolve around computer evidence. I have looked up Vella who appears to be featured on a number of websites as a computer expert but what his experience is in the field is impossible to tell. Your opinion would be really useful to us in advising the business how it should respond to the request against the background of attacks on Horizon in the press and Courts.”
So we’ve got somebody in the southeast of England asking for advice on a particular branch, it being routed by Mandy Talbot to David Smith.
Then if we can look, please, at his reply. We can see it’s signed off at the end of the page there. We actually have to go to page 5, the foot of the page at page 5:
“Mandy,
“Forgive me if this is a rather long response but it’s important given my impending departure from the Post Office that my logic is fully understood after I’m no longer around to ask.
“I’ve been embroiled in the various newspaper, TV and flag case letters all claiming that Horizon is at fault. As yet I haven’t seen a single shred of evidence to back up … these claims. However, a recent meeting with MPs encapsulated the issue we face very nicely. People know that computer systems go wrong from time to time, particularly government computer systems, and, therefore, believe that a computer system such as Horizon could have caused these discrepancies. As long as the argument is carried out on the level of what could happen then we will always struggle to win it. Our greatest chance of winning the argument case by case is to fix the debate on what actually happened.
“Two cases of which I believe you are familiar further reinforce this view and shape my response to your question. In the case referred to as Cleveleys an independent expert was appointed. Unfortunately [the Post Office] and Fujitsu did not manage this spectacularly well and probably fielded the wrong people or at the very least insufficiently briefed people. I read the so-called experts report and I have to say it was far from the professional effort I would have expected. There was no sign of a systematic approach to evidence gathering or that the expert had gained essential knowledge of how Horizon enables accounting integrity to be maintained. The expert concluded that Horizon could have created discrepancies. Crucially the audit logs which would have proven what did happen on the system had not been retained. We settled out of court. This matter was determined on what could have happened.”
Stopping there, the reference to the Cleveleys case, when did you first become aware of the Cleveleys case?
John Scott: I don’t recall it. I think – no, just don’t recall it.
Mr Beer: So, in due course, we will see you got this email chain?
John Scott: Yeah.
Mr Beer: So you will have been aware of it, at least by February 2010 –
John Scott: Okay.
Mr Beer: – ie that description of it?
John Scott: I don’t remember even seeing this in my bundle so …
Mr Beer: Okay, well, if we go forwards to page 4, we can see an email that you sent on this chain; can you see that?
John Scott: Yes.
Mr Beer: From you to Sue Lowther –
John Scott: Yes.
Mr Beer: – and when we get to the top of the chain we’ll see more correspondence from you?
John Scott: Okay.
Mr Beer: Going back, please, I think we were on Mr Smith’s long reply, on page 6. If we scroll down:
“In the case of Castleton we were able to disclose the audit log. My recollection is that Castleton’s solicitor, or an expert retained by the solicitor, examined the log and concluded that Horizon did not cause the discrepancy. I seem to remember that Castleton fired this solicitor and decided to continue with his counterclaim. He lost! Having heard Castleton’s arguments, the Judge decided that there was ‘no flaw’ in the Horizon system, and that ‘the logic of the system is correct’: he said ‘the conclusion is inescapable that the Horizon system was working properly in all material [respects ‘. We won the case on the basis of what had actually happened.”
Never mind for a moment whether that is in any way an accurate summary of what actually happened, that you heard of the Castleton case before now, 2010?
John Scott: No, I don’t recall it, no.
Mr Beer: He, Mr Smith, continues:
“I believe that we should therefore allow an expert to examine in the audit log having been fully briefed on how Horizon maintained integrity as this gives us the best chance of winning the argument. However we need to do so in a controlled manner and I suggest the following way forward.
“1. It is not clear whether we have examined the audit log for this branch over the period during which the discrepancies occurred. If not we should do so. It would also be useful to understand the details of the investigation including a statement from [Product and Branch Accounting] as to whether it is possible that there are outstanding transaction corrections.
“2. Horizon is a very complex system. We should ensure that the experience of the expert equips him to carry out the task. Being a bit of a whiz on a PC wouldn’t make the guy an expert – I’d expect a background in the technical detail of say large scale banking system as the experience that would equip someone to carry out this task. This is not just in our interest it is also in the interest of the subpostmistress.
“3. We should control the process. Firstly whoever faces off to the expert – and I’d suggest a combined Post Office/Fujitsu effort – should have first immersed themselves in what we discover from 1 so that they can prepare their explanation in the light of what we know. Secondly we should set out how Horizon maintains integrity and illustrate how this is ensured and explain how the audit log demonstrates this integrity. Then and only then should we hand over the audit log. Finally we should ensure that the expert has an open channel to our experts to follow up any queries. Finally, and we possibly can’t insist on this, we should try to get the opportunity to comment on any report that is drafted before it is finalised.”
So, overall, Mr Smith was saying, would you agree, in summary, that he was keen to ensure that the expert has got to be the “right expert”, he has got to understand the processes which protect the integrity of the Horizon system and he points to the Castleton case to support his approach?
John Scott: Yes.
Mr Beer: Can we go, please, to page 5. We can see, if we just scroll down a little bit, it’s Mandy Talbot’s email. Then scroll back up again. She replies:
“Dave
“[Thanks] for the comprehensive reply.
“Who do you suggest we go to within the business and Fujitsu to obtain the full audit logs … sorry that you’re going to be leaving us, can you suggest who we should talk to about Horizon issues after you are gone …
“I agree that once we get everything we can together it should be examined by POL and Fujitsu – again can you suggest some useful candidates who are expert but also quite robust so as to be capable of rebutting anything that the subpostmistress’s expert can throw at us.”
Just stopping there, would that have been the prevailing attitude, on your understanding at the time, that the imperative was to be robust and rebut anything that suggested that Horizon lacked integrity?
John Scott: I don’t recall that.
Mr Beer: What was the prevailing attitude at the time: one of openness to the possibility that there might be Horizon flaws?
John Scott: No, I think the feedback from the business and from people like Dave Smith was that the Horizon system was robust and reliable.
Mr Beer: Therefore, if you read this, you wouldn’t see anything wrong in getting somebody who was themselves robust so that they could rebut anything that an independent expert might throw at them?
John Scott: I mean, clearly that’s what Dave Smith is recommending.
Mr Beer: I’m sorry, I missed that.
John Scott: That’s clearly what Dave Smith is recommending.
Mr Beer: Yes. You wouldn’t see anything wrong in that?
John Scott: No.
Mr Beer: She continues:
“Ultimately given the complexity of the Horizon system are there any external individuals or firms who you can recommend who would have the appropriate background to create a proper report in case POL has to defend itself?”
Then the reply, please, on page 4, at the foot of the page, David Smith replies:
“I’m on holiday in Mexico …
“John and Rod have individuals who access the audit log via Fujitsu.”
If we scroll up, we can see this is when you’re copied into the email. Can you see?
John Scott: Yes.
Mr Beer: So you entered the chain at this point. What individuals did you have who accessed the audit log at Fujitsu?
John Scott: The team didn’t access directly to Fujitsu; they made requests for records.
Mr Beer: What part of the Security team that you led did that?
John Scott: That would be the Fraud strand, which then moved into the Security Operations strand.
Mr Beer: Were there any written instructions that you were aware of that told them how to do it and what to request?
John Scott: In the early years, I can’t recall but, clearly, I’ve seen in the bundle that there was a procedure written up later on. I think 2013.
Mr Beer: In late 2013?
John Scott: Sorry in the late tenure or in the late part of my tenure in 2013.
Mr Beer: Was that written up almost at the same time that the Post Office stopped prosecuting?
John Scott: Well, that would be about the same time, yes.
Mr Beer: So what about such a protocol for the period of time that the Post Office was prosecuting, were you aware of anything?
John Scott: No.
Mr Beer: Was there a menu of material that the people who had the function of obtaining the material from Fujitsu could look at to determine what they should seek?
John Scott: I have no knowledge of that sort of level of operation at all.
Mr Beer: Or what was available?
John Scott: I have no knowledge. I just didn’t know that type of information at the operational level.
Mr Beer: Mr Smith continues:
“Within Fujitsu I believe Gareth Jenkins is the individual best to interpret the audit log but also explain how Horizon is set up to maintain integrity both in normal running and when failures occur. Rod would have to field someone to explain the back office controls we have. I will contact Fujitsu to make sure that Gareth or a suitably qualified alternative is in place.
I would suggest that one of the big accounting firms would be the best bet for an expert report. They have system experts. This is likely to be quite expensive as Horizon underwent very frequent change.”
Scrolling up the page, please. You yourself forward the chain on to Sue Lowther; do you see that?
John Scott: Yes.
Mr Beer: You say:
“Can you please support and advise Mandy & Co in this exercise and provide some initial thoughts.
“… Sue leads on Information Security for [the Post Office].”
What function did Sue Lowther then perform in February 2010?
John Scott: I don’t know, I can’t recall.
Mr Beer: Was she within your report?
John Scott: I believe at that time, yes.
Mr Beer: Was there an element of your Department that had, as its responsibility, information security?
John Scott: Yes, that was led by Sue Lowther.
Mr Beer: How many people were in the Information Security Department?
John Scott: I think there were about three or four permanent and couple of contractors.
Mr Beer: Can you recall the names of any of them?
John Scott: Sue Lowther – no, Sue Lowther was a direct report to me. I can’t remember the team members underneath.
Mr Beer: What function did Information Security perform?
John Scott: They provided the policies, standards and oversight and assurance of the IT within the business.
Mr Beer: Were they responsible in any way for the obtaining or the extraction of data?
John Scott: No, I don’t believe they were. But they may have – I don’t know. I’d have to say not for investigations.
Mr Beer: If we go further up the page, a reply comes back:
“John,
“More likely to be Dave Posnett that will be of assistance to Mandy.”
Then scroll up a little bit further. You then forward the chain to Dave Posnett:
“… if you can support and assist Mandy … in the issue described, I’ll leave you to get engaged with those involved.”
So you are farming that out to Mr Posnett, essentially?
John Scott: Yes. Delegating, yes.
Mr Beer: Then further up the page, please. Mr Posnett replies:
“Mandy,
“For info as discussed.”
Essentially seeking information.
Scroll down, please, and scroll down again. He says:
“Once I have [that information], I’ll look to arrange a [conference] call …”
Do you know what happened to the discussion over the appointment of an independent expert from one of the big accountancy firms, for example, or consulting firms who had systems and IT experts within them to undertake a review?
John Scott: No, I can’t recall.
Mr Beer: Is that because you delegated this to Mr Posnett and that was the end of it?
John Scott: That may be a potential but, again, I can’t recall.
Mr Beer: Can we move forward in the tale to POL00119858. Can you see an email, if you look at the foot of the page, from Mr Ismay, the head of Product and Branch Accounting, to you and Mandy Talbot – can you see that –
John Scott: Yes.
Mr Beer: – dated 24 February? So shortly after the email chain that we’ve just looked at. Would you agree that this is a discussion at quite a high level within – or quite a senior level within the Post Office, head of P&BA and Head of Security?
John Scott: Yes, we’re obviously heads of our own departments.
Mr Beer: At this time, what would your understanding of Mandy Talbot’s role be in relation to the Horizon challenges?
John Scott: I don’t recall. I don’t particularly recall Mandy Talbot, to be honest.
Mr Beer: In any event, Mr Ismay says to the pair of you:
“Further to your emails with Dave …”
I think that might be a cross-reference to the Dave Posnett emails that we’ve just seen, which is why I showed them to you:
“I think we do need to get some independent heavyweight assurance to rebut the challenges.
“Dave’s outline made sense.
“He suggested one of the big accounting firms. I actually received a ‘cold call’ proposal from Deloittes recently for exactly that work after they read the articles about Horizon in Accountancy Age Magazine.”
Can you recall the articles in Accountancy Age Magazine?
John Scott: No, not in an accountancy magazine, no.
Mr Beer: When you get an email like this, what would you do? There’s somebody referring to articles about the Horizon system in a publication that you maybe don’t subscribe to, what would you do? Would you think “I’d better find out what that is”?
John Scott: I can’t recall, if it’s an accountancy magazine, I probably wouldn’t have access. You may speak to Rod who does access but I just can’t recall.
Mr Beer: In any event, he says:
“Deloittes are engaged with Group Audit already in a set price framework agreement. I think we should consider them. I shall speak to them in a ‘no commitments’ sense. Given the existing framework deal I don’t know if we could just use them (if they fitted the bill) or whether we have another preferred supplier or whether weird need more of a ‘tender’. The other obvious candidates are our auditors [Ernst & Young] plus KPMG and PwC.
“I think it would be worth us having a 3 way call. Looks like you are in workshops …
“I think we … need to understand what cases are under way in this area.”
Then scrolling down:
“I found out that Carol Cross in my team and Jon Longman from yours … are in court soon for West Byfleet (or West Byfield). This … is an office who as part of their defence is challenging the integrity of Horizon. I didn’t know if you were involved Mandy? I think we need to be clear about all live cases so we can ensure the same consistent robust response throughout and based on the sensible principles of Dave’s emails about pinning down the exact transaction logs and talking about facts not speculation.”
So would you agree that this email is starting up a conversation about two things: the benefit of an independent review and how to take that forwards, and, separately, the recommendations made by Mr Smith, Dave Smith, for an approach to investigations to support the Post Office’s position in challenges to Horizon.
John Scott: Yes.
Mr Beer: The message from Mr Ismay here is suggesting that he push forward the conversation about an independent audit or review with Deloittes in the first instance?
John Scott: Yes.
Mr Beer: Occupying the senior position that you did, was that a decision that Mr Ismay could take himself or would it need to go off to the board or some other decision-making body for approval?
John Scott: I suspect it would have to go off to somewhere else.
Mr Beer: The someone else being what or who?
John Scott: I’d expect it to be the Executive Committee at that level, or higher, the board.
Mr Beer: So the Executive Committee or the board. What was your role in this? Did you need to agree to or authorise his proposal to go off and get an expert report on Horizon from an external body?
John Scott: No.
Mr Beer: Could you have shut it down? Could you have said, “Hold on, stop”?
John Scott: No.
Mr Beer: We see in the email, in the last paragraph, Mr Ismay saying that “We need to understand what cases are under way in this area”. At this time, by February 2010, was there no tracking mechanism within the Post Office, whether within security or more widely, that monitored the number and nature of challenges to Horizon?
John Scott: Not that I can recall, no.
Mr Beer: Is the October 2013 protocol the first attempt at such a mechanism, to your knowledge?
John Scott: To my knowledge, yes.
Mr Beer: Can you recall what you did as a result of this email?
John Scott: No, I can’t recall.
Mr Beer: Can you recall whether the three-way call that he suggests happened?
John Scott: No, I can’t recall that.
Mr Beer: Therefore, you can’t recall what was discussed?
John Scott: No.
Mr Beer: Can you recall what happened next?
John Scott: No.
Mr Beer: Can you recall whether there was any discussion with Fujitsu or involving Fujitsu at this stage?
John Scott: No, I can’t recall.
Mr Beer: Can we turn forwards then again, please, to POL00054371. If we look, please, at page 3, at the foot of page 3, the start of this chain on 25 February is an email from Andrew Daley to Jason Collins and Graham Brander, blind copied to Andy Hayward; can you see that?
John Scott: Yes.
Mr Beer: “Andy [I think that’s Andy Hayward in context] called me yesterday and asked whether you guys … could put together some stats on these cases …”
Remembering that the subject of the email was “Horizon disputed cases”:
“… where the accused’s defence was/is that the Horizon data is unreliable for any amount of reasons given by the accused.
“This should be sent to Iain within the next few days. [He] will need as much information as possible.”
Again, does it follow that, by this time, February 2010, there was no central repository of issues that subpostmasters had raised with the integrity of Horizon data?
John Scott: Not that I can recall.
Mr Beer: If we go back to the third page, please. We see the reply:
“Andrew,
“Thanks for this …
“When completed can you also [forward] details to Sue Lowther as she is leading on behalf of Security”, which I think is consistent with the email we saw right at the beginning but inconsistent with then Mr Smith saying is that Dave Posnett might be the better option:
“Please also send Sue any additional documents or reports pertinent to the specific cases (ie Jason the forensic report from John L’s case).
“… bullet points will suffice, if more is needed we can supply …”
Then further up the page, Graham Brander replies:
“I’m aware of two ongoing cases at West Byfleet (Jon Longman) & Orford Road (Lisa Allen) and also some historical cases … but as FIs …”
Is that Financial Investigators?
John Scott: I presume so, yes.
Mr Beer: “… we wouldn’t have Horizon disputed cases other than those report by the Investigators, who will have far more details on the issues than us.
“I’ve attached an article from an IT magazine which may have brought this issue to the fore in the 1st place and which may of interest to Ian.”
Then page 2, please. At the foot of the page, we see this chain being sent to you:
“All,
“Further to our discussion earlier today, additional information in the attached pdf article below [which I think is the IT magazine that’s referred to]. As part of the wider review it may well be worthwhile understanding the ‘outcome’ of each of the case studies referenced, where applicable (ie criminal/civil) and that may assist …”
Further up the page – a little bit further please – you’re copied in on this email of 8 March 2010:
“As was discussed on the conference call and taking into account Rob’s comments, to confirm what we’re looking at is a ‘general’ due diligence exercise on the integrity of Horizon, to confirm our belief in the robustness of the system and thus rebut any challenges.”
Can you recall discussion at this time about the need to seek a general due diligence exercise, the purpose of which was to confirm the Post Office’s belief in the robustness of the Horizon system?
John Scott: No, I don’t recall.
Mr Beer: Wouldn’t you think the better question would be, “We’re looking for a due diligence exercise on the integrity of Horizon to see whether it is robust or not” –
John Scott: Yes.
Mr Beer: – rather than, “to confirm our pre-existing beliefs”?
John Scott: Yes.
Mr Beer: “The information Security team have looked at the information that has been forwarded to them re the above and it seems that the issues raised are mainly around procedural items and about ‘Accounting’ reconciliation.”
Then there are some requests. Then over to the first page, please – scroll up, please, a little bit more – to Mr King’s email:
“Rob
“Thanks for your time earlier.”
He copies in Rob Wilson, the Head of Criminal Law in the Post Office:
“As discussed, I can confirm we are in no way questioning/investigating the financial integrity of Horizon, or of the accounting system as a whole.”
Can you help us how Mr King came to the view that an independent expert report into the integrity of the Horizon system would be in no way questioning or investigating the financial integrity of Horizon?
John Scott: No, I can’t comment on what Dave King was thinking.
Mr Beer: Isn’t this redolent of a mindset within the Post Office at this time that “We’re not actually looking to find out whether there is something wrong with the system, we only want to hear that there’s nothing wrong with the system”?
John Scott: That’s not how I recall it, no.
Mr Beer: But why don’t we see in a single email it put in that rather neutral and open way? Why are all of the emails written “We want a report that will confirm our existing beliefs that it’s robust, we’re not going to question or investigate the integrity of Horizon”? Why are they all written the wrong way round?
John Scott: I can’t explain that.
Mr Beer: Well, is it because – is this the simple truth: that they accurately reflect the mindset of the day?
John Scott: I can’t recall. I don’t – I can’t recall it being like that, but no.
Mr Beer: If everyone did have an open mind, wouldn’t we see that written across these pages that I keep showing you?
John Scott: Yes, I’d say so.
Mr Beer: Does its absence from any of the pages that we’re going to look at and that we have looked at mean that there wasn’t that open mind to the possibility of Horizon lacking integrity?
John Scott: I don’t recall it as that being at the time but, clearly, with hindsight, it shows a different picture.
Mr Beer: Why does it take hindsight? I’m asking you about contemporaneous material that all seems to point in one direction: a group of people looking to stand the system up, not a group of people with open minds looking genuinely to enquire whether their system works or not. It doesn’t take hindsight. This is just a reflection of the values of the day, isn’t it, Mr Scott?
John Scott: It’s not what I recall, no.
Mr Beer: At this time, that’s late February 2010, what did you know about bugs, errors or defects in Legacy Horizon, the old Horizon before it became Horizon Online?
John Scott: I wasn’t aware of any bugs, issues or defects that impacted investigations.
Mr Beer: Would you agree that, if there were bugs, errors and defects in Horizon, in particular if they affected the integrity and reliability of the financial data produced by Horizon, you should have been aware of them?
John Scott: Yes.
Mr Beer: Were you actually keen to find such information or did you close your eyes to it?
John Scott: No, I would always be open to understand whether there’s any issues with it and whether anything needed to be examined.
Mr Beer: By this time, it seems, from the email exchange, there would be a sufficient number of Horizon disputed cases to be able to compile statistics of them. So a number of them, yes?
John Scott: (The witness nodded)
Mr Beer: If that were the case, why had no effort been made previously to compile a clear picture of how often and why the system was challenged by accused subpostmasters?
John Scott: I can’t explain why it wasn’t.
Mr Beer: Again, is that because the principle that operated was ‘least said soonest mended’?
John Scott: No.
Mr Beer: Can we turn, please, to POL00106867. Can we start with page 3, please.
Just give me a moment to catch up with my hard copy papers.
If we scroll down, please. We can see a message from Mr Hayward to a number of senior people at the Post Office, including Rod Ismay, David X Smith and you.
John Scott: Yes, I’m cc’d in.
Mr Beer: Can you help us with some of the others on this distribution list: Rebekah Mantle?
John Scott: No.
Mr Beer: Iain Murphy?
John Scott: He was a Senior Security Manager Head of Fraud at the time, I believe.
Mr Beer: So within your area of responsibility, within your Department?
John Scott: Yeah.
Mr Beer: So we can see this is sent at 5.01 on 26 February and this is after the previous message that we had seen Mr Ismay had sent to you and Mandy Talbot, suggesting Deloittes as a possibility, yes?
He says:
“Following our conference call today, below is a brief summary of the agreed key activities to progress the next steps on relations to the above piece of work …”
The heading is “Challenges to Horizon”:
“AH & MT …”
Can you help us with who “AH” might be in that context: him, Andy Haywood?
John Scott: Yes.
Mr Beer: “… [and Mandy Talbot] to provide SL/DK …”
“SL”?
John Scott: I will make a presumption that’s Sue Lowther.
Mr Beer: “DK”?
John Scott: Dave King.
Mr Beer: “… with information on past and present cases with reference to the Horizon Challenges, (Criminal & Civil cases).
“(Note: I have asked the fraud team to review [approximately] the past 2-3 years case file although these challenges are of a more recent nature).”
Do you know why the review was to be of the past two to 3 years of case files, ie why it was limited to about 2007/2008 to 2010 –
John Scott: No, I don’t recall.
Mr Beer: – rather than going back to when the prosecutions commenced in 2000, in reliance on Horizon?
John Scott: No, I don’t recall.
Mr Beer: Presumably – I mean we will see in a moment your contributions to this chain – you didn’t say at the time “Hold on, haven’t we been prosecuting for 10 years on the basis of Horizon? Why are we only looking at two to three years?” Why not?
John Scott: I don’t recall why.
Mr Beer: He continues in paragraph 3:
“Subject to agreement of 2 above, conduct full investigations into integrity issues, with conclusions/report provided. Once investigated and conclusions drawn, gain external verification to give a level of ‘external gravitas’ to the response to these challenges (recommend Ernst & Young as most suitable partner to complete this … [to be advised]).”
So this was setting out a plan to investigate the challenges to Horizon integrity, yes?
John Scott: Yes.
Mr Beer: First, the investigation was going to be an external one, yes, that was the plan?
John Scott: Yes.
Mr Beer: It was going to reach conclusions, yes, and only then was there to be an independent review by someone outside the organisation, potentially Ernst & Young.
The witness was nodding, rather than giving an oral verbal answer.
Can you, when you wish to give a non-verbal communication – ie shaking your head, nodding, this morning you put your hands – up explain what you mean in words so the stenographer can type them into the record, please.
Yes, so the question was: the independent investigation was going to reach conclusions and then it was going to be referred to an outside organisation to “give a level of external gravitas” to it?
John Scott: Yes.
Mr Beer: It seems by this stage that Ernst & Young were to be recommended as most suitable, and Mr Ismay’s suggestion earlier in the day that Deloittes were going to be contacted has fallen by the way side, hasn’t it?
John Scott: From this, it appears so.
Mr Beer: Was there sufficient concern within your team to consider that the challenges to Horizon needed to be explored, investigated and then conclusions drawn?
John Scott: I don’t recall but there’s indication here, isn’t there?
Mr Beer: And sufficient concern that any conclusions should be accompanied by a level of external oversight?
John Scott: Yes.
Mr Beer: Given members of your team were acting as Investigators in Horizon cases and as the prosecuting authority for the Post Office, was that something of a significant concern to you?
John Scott: I can’t recall.
Mr Beer: Well, help us. Looking at this now, do you think it would be a significant concern to you?
John Scott: Yes.
Mr Beer: It would be important to appreciate whether there were or were not integrity issues with Horizon –
John Scott: Yes.
Mr Beer: – both to appreciate whether you could continue with existing investigations and prosecutions – agreed –
John Scott: Yes.
Mr Beer: – and to consider whether you may have any duties in respect of cases where convictions had already been secured?
John Scott: Yes.
Mr Beer: Did that independent review ever happen?
John Scott: As far as I recall, no.
Mr Beer: Did the internal investigation that has been mentioned here in the way that’s described here ever happen?
John Scott: I don’t recall. I don’t know whether it was conducted or not and I wasn’t aware.
Mr Beer: Are you aware of anyone intervening to prevent it from happening?
John Scott: No.
Mr Beer: Further up the page, please. We see here the end of an email signed off by Dave Posnett, yes?
Then if we can go to the foot of page 1, please, to miss out the blank page. We can see at the foot of the page Dave Posnett, I think same distribution list, but I think Rob Wilson has been added now:
“All,
“Can we ensure that Rob Wilson (Head of Criminal Law) is kept appraised of the situation and included in any further meetings/updates … Our prosecution cases have faced an increase in challenges as well as our civil cases, so the activities outlined below, and indeed going forward, are applicable to both Legal teams.”
Then if we scroll up to the top of page 1, please. We’ll find an email – thank you – to a number of people on the distribution list, but you seem to have been excluded; can you see that?
John Scott: Yes, I think I was excluded on the one below.
Mr Beer: If we just scroll down, please. Yes, I think you’re right. Dave Posnett has cut you out. Then if we go back to Mr Wilson’s reply to Dave Posnett of your team, he, Mr Wilson, says:
“If it is thought that there is a difficulty with Horizon then clearly the action set out in your memo is not only needed but imperative. The consequence however will be that to commence or to continue to proceed with any criminal proceedings will be inappropriate. My understanding is that the integrity of Horizon data is sound and it is as a result of this that persistent challenges that have been made in court have always failed. These challenges are not new and have been with us since the inception of Horizon as it has always been the only way that Defendants are left to challenge our evidence when they have stolen money or where they need to show that our figures are not correct.
“What is being suggested is an internal investigation is conducted. Such an investigation will be disclosable as undermining evidence on the defence in the cases proceeding through the criminal courts. Inevitably the defence will argue that if we are carrying out an investigation we clearly do not have confidence in Horizon and therefore to continue to prosecute will be an abuse of the criminal process. Alternatively we could be asked to stay the proceedings pending the outcome of the investigation, if this were to be adopted the resultant adverse publicity could lead to massive difficulties for POL as it would be seen by the press and media to vindicate the current challenges. The potential impact however is much wider for the Post Office in that every office in the country will be seen to be operating a compromised system with untold damage to the Business. Our only real alternative to avoid the adverse publicity will be to offer no evidence on each of our criminal cases. This should mitigate some adverse publicity but is not a total guarantee.
“To continue prosecuting alleged offenders knowing that there is an ongoing investigation to determine the veracity of Horizon could also be detrimental to the reputation of my team. If we were to secure convictions in the knowledge that there was an investigation, where the investigation established a difficulty with the system we would be open to criticism and appeal to the Court of Appeal. The Court of Appeal will inevitable be highly critical of any prosecutor’s decision to proceed against Defendants in the knowledge there could be an issue with the evidence.
“What we really need to do is impress on Fujitsu the importance of fully cooperating in the provision of technical expertise and witness statements to support the criminal and civil litigation now and in the future.
“Given the nature of the discussions that took place on [26 February] I am staggered I was not invited to take part in the conference.”
Do you read this as Mr Wilson saying, “If there is a basis to investigate problems, we’d better get on and do it”, or is he saying, “If we get on and investigate, we’ll be in serious trouble if we do”?
John Scott: It does come across like that, yes.
Mr Beer: The latter?
John Scott: Yes.
Mr Beer: So he wasn’t saying there’s an imperative to investigate; he’s saying, “We simply can’t question Horizon because it’s got all of these adverse consequences”.
John Scott: I think it’s for Rob Wilson to give his interpretation of what he was trying to say.
Mr Beer: But, Mr Scott, you had been the subject of a number of discussions and email exchanges about the need to conduct an independent investigation –
John Scott: Mm-hm.
Mr Beer: – either by getting in external consultants or by the Post Office itself conducting an internal investigation and sending the conclusions to an external body for external gravitas.
You must have wanted to know what happened to those two proposals?
John Scott: I can’t recall.
Mr Beer: Did you not say, “Hold on, one moment, we were going to investigate the entire basis on which we prosecuted a whole cohort of people, some of whom have gone to prison, and the next minute we’re not. What’s happened between A and B?”
John Scott: I’m sorry, I just can’t recall what was happening.
Mr Beer: You were also responsible for Mr Posnett and Mr Hayward and Mr King, addressees to this email?
John Scott: Yes.
Mr Beer: Did none of them come back to you and say, “Boss, the whole thing has had the brakes put on it because this lawyer has got involved and the lawyer, who is staggered that he wasn’t included in an earlier meeting, is now saying ‘We can’t do this because it might generate adverse publicity to the organisation’”?
John Scott: Sorry, I can’t recall them coming to me to say that.
Mr Beer: Would you agree that, objectively, if there was any concern about the integrity of Horizon, the right thing to do was to conduct a full inquiry as an imperative?
John Scott: Yes, if there was doubt over its integrity, yes.
Mr Beer: Had that been the plan of the senior team members involved in the earlier telephone conference until Mr Wilson’s input?
John Scott: That appears to be the case.
Mr Beer: Was the effect of Mr Wilson’s input to shut down any internal or external substantive examination of the integrity of Horizon?
John Scott: I can’t recall this email because, obviously, I didn’t see it so I don’t know what the – he was actually trying to achieve, whether he was actually trying to achieve that or not.
Mr Beer: But, Mr Scott, we’ve seen that you were involved in a number of discussions –
John Scott: Yes.
Mr Beer: – up until now that were on, if not train tracks, heading in a direction, and, as you’ve agreed, neither of the things ever happened. Were you not curious at the time why the two alternative plans were not seen through to completion?
John Scott: No, sorry, I can’t recall.
Mr Beer: Was there a concern, as expressed in this email here, an overriding concern in the Post Office, to avoid adverse publicity for the business?
John Scott: I think all businesses want to avoid adverse publicity.
Mr Beer: Did anyone mention what might be in the other hand, “Adverse publicity, on the one hand, and, on the other, we’ve prosecuted hundreds of people, many of them have gone to prison. We might have done so on the basis of data that lacked integrity, let’s weigh them up”?
John Scott: I don’t recall such conversations.
Mr Beer: Was there ever an ‘other hand’, a “Hold on, there might just be a problem with the integrity of Horizon here. People may have been convicted on the basis of unsound data. We need to do something about it”?
John Scott: I can’t recall. I’d expect the lawyers to have shouted.
Mr Beer: The recipients of this email at least would have been aware, because the email says so, that the challenges to Horizon are not new and have been with us since the inception of Horizon. Did you know that: that the challenges to Horizon had been there from the start, right back to 2000?
John Scott: I don’t recall that.
Mr Beer: When you became Head of Security, did anyone brief you to say, “Look, Boss, we prosecute people on the basis of data that’s produced by this system called Horizon. For the past seven years there have been a myriad of complaints about the reliability of the data it produces”?
John Scott: I don’t recall that.
Mr Beer: Sir, I wonder if that’s an appropriate moment to take the afternoon break.
Sir Wyn Williams: Yes, by all means.
Mr Beer: So 3.15, please.
Sir Wyn Williams: Very well.
Mr Beer: Thank you very much.
(2.58 pm)
(A short break)
(3.15 pm)
Mr Beer: Good afternoon, sir. Can you see and hear me?
Sir Wyn Williams: Yes, I can thank you.
Mr Beer: Mr Scott, we’ve seen a series of emails in which various members of the Post Office expressed their confidence in the integrity of Horizon and the data produced by it. If you had been aware, by 2010, that Fujitsu had got concerns from the outset, from the national rollout in 1999 to 2000, that the EPOS system, the Electronic Point of Sale system at the start of Horizon, might require a rewrite or a design, might that have impacted upon your confidence?
John Scott: If I’d known that, then yes.
Mr Beer: If you’d been aware of a series of bugs, errors or defects being identified in Horizon, including some which could impact upon discrepancies and balancing, would that have impacted upon your confidence in Horizon?
John Scott: If I’d known, yes.
Mr Beer: Can we turn forwards, please, to POL00120479. Now, if we look at the foot of the page first, we can see Mr Ismay distributing a document called “Horizon Challenges – draft report”, and you’re not included on that?
John Scott: Yes.
Mr Beer: If we go up, please, and a bit more, we can see Mr Ismay sending it to a wider collection of people, including Mandy Talbot, Rob Wilson and Sue Lowther. Was anyone in that list within your Department?
John Scott: Yes.
Mr Beer: Other than Sue Lowther?
John Scott: Yes.
Mr Beer: Who else?
John Scott: Dave Pardoe.
Mr Beer: Yes, of course. Thank you. Anyone else?
John Scott: No.
Mr Beer: He, Mr Ismay, says:
“Dear all – Latest version incorporating, as best I can manage, all the input you have made.”
Did you know, in mid-2010, that members of your Department were providing input into a report written by Rod Ismay about Horizon challenges?
John Scott: Sorry, I can’t recall whether I did.
Mr Beer: He says:
“Thanks for your time and comments in the last couple of days.
“This is a complex area and I would value any further comments you have, but realistically [they] have to be by lunch tomorrow [et cetera].
“Regardless of how this document is finalised, there are number of improvement points which we will need to work on together …”
Then this:
“The priority should probably be to provide any input considered appropriate for closing down the issues that cause Channel 4 to consider this a news item. Also to ensure we’re prepared for the next court cases.”
Now, you’re not included on this email but want to ask you about that last paragraph and the sentiments included in it. Did that reflect the prevailing mood in the senior levels of the Post Office at the time, that the priority was to close down any issues that the media considered to be newsworthy?
John Scott: On the basis that everyone was being told that the system was robust and reliable, I guess that was one of the areas that they were looking at.
Mr Beer: What investigation had taken place to establish whether or not the system was reliable?
John Scott: I don’t know.
Mr Beer: How were people allowed to convince themselves that the system was reliable, if an investigation hadn’t taken place?
John Scott: Sorry, I don’t know.
Mr Beer: But, again, did this, what we see written here, to a wide range of people including members of your Department, reflect the culture and values of the Post Office at the time, that the priority, the main thing, should be to close down issues that cause, in this case, Channel 4 to consider this to be a news item?
John Scott: No, I think on the basis that everyone has been told the system is robust and reliable, then that’s why they’re looking to change challenge the adverse media.
Mr Beer: To your knowledge, did anyone ever put their hand up and say, “Hold on, actually, the priority is to see if there’s a problem with Horizon”?
John Scott: I can’t recall but there may easily have been.
Mr Beer: Or “Actually, the priority – I’m sorry to have to raise this, everyone, the priority is actually to see if we have sent anybody to prison that shouldn’t have gone to prison”?
John Scott: Mm-hm. No, sorry, I can’t recall.
Mr Beer: “The priority is establish whether anyone innocent has been convicted on the basis of data that’s unreliable, that’s the priority”. Did anyone ever say that, to your knowledge?
John Scott: No, I don’t recall that.
Mr Beer: Ever been in a meeting where anyone raised that point?
John Scott: I can’t recall that.
Mr Beer: Have you seen any email where anyone raised that point, “Our priority should be our postmasters, and whether any innocent men and women have been sent to prison”?
John Scott: Sorry, I just can’t recall that.
Mr Beer: Can we move forward to the Ismay report itself, 2 August 2010, POL00029475. This is a copy of the Ismay report itself and we can see it’s dated 2 August, and you’ll see that you’re a named recipient of it?
John Scott: Yes.
Mr Beer: Can we go forwards, please, to page 19 and look at the bottom half of the page, “Independent Review and Audit Angles”, Mr Ismay says:
“[The Post Office] has actively considered the merits of an independent review. This has been purely from the perspective that we believe in Horizon but that a review could help give others the same confidence that we have.”
To your recollection, was that the frame of reference for any consideration of an independent review –
John Scott: I can’t recall. May have been. I can’t recall.
Mr Beer: – ie we’re not actually going to look to see whether there’s anything wrong with the system; we’re only going to look at it because we believe the system is robust, and we need to convince others?
John Scott: There was the belief that the system was robust and reliable.
Mr Beer: He continues:
“Our [discussion] between IT, Legal, [Product and Branch Accounting], Security and the Press Office has continued to be that no matter what opinions we obtain, people will still ask ‘what if’ and the defence will always ask questions that require answers beyond the report. Further such a report would only have merit as at the date of creation and would have to be updated at the point at which Horizon or the numerous component platforms are upgraded.”
You see it says, “Our [discussion] between”, amongst others, Security, did that discussion –
Sir Wyn Williams: Sorry, Mr Beer. It’s “decision”.
Mr Beer: Quite right:
“Our decision between [amongst others] Security … has continued to be that no matter what opinions we obtain”, et cetera.
Was that decision one to which you were a party?
John Scott: I don’t recall. It’s most likely I’d have delegated that down to the people involved in the draft report.
Mr Beer: Were you party to any discussions or decision-making process that the Press Office contributed to?
John Scott: Sorry, can you give a bit more clarity on that?
Mr Beer: Yes. Were you a party to any discussion or decision-making process to which the Press Office was a party?
John Scott: Not that I recall.
Mr Beer: Mr Ismay gives us a reason for not seeking an independent report, that such a report would only have merit as at the date of creation and would have to be updated. Would you agree that that’s true of all reports that are seeking to assess the reliability of, for example, a computer system?
John Scott: I guess there’s an element to that but I’d say that a report wouldn’t last – it has more than just the date of the creation, I’d say.
Mr Beer: Well, in this case, at 2010, it had the ability to look 10 years backwards, hadn’t it?
John Scott: (The witness nodded)
Mr Beer: Wouldn’t that be a value in itself?
John Scott: Yes.
Mr Beer: So how do you understand the expression of a reason for not getting an independent review, that the report would only have merit at the date of its creation?
John Scott: I can’t say I could agree with that.
Mr Beer: But is it a bit worse than that: it’s palpably weak as a reason?
John Scott: No, I think it doesn’t – doing a review over 10 years, that is worthwhile because then you flush everything out.
Mr Beer: He says:
“Ernst & Young and Deloittes are both aware of the issue from the media and we have discussed the pros and cons of reports with them. Both would propose significant caveats and would have limits on their ability to stand in court … we have not pursued this further.”
Do you know what the caveats that Ernst & Young and Deloittes said that they would have to make.
John Scott: No, sorry, I don’t even recall being in any of those conversations.
Mr Beer: Do you know why external auditors or experts would have difficulty in standing in court and speaking to their report?
John Scott: No.
Mr Beer: Over the page, please.
“It is also important [says Mr Ismay] to be crystal clear about any review if one were commissioned – any investigation would need to be disclosed in court. Although we would be doing the review to comfortable others, any perception that [the Post Office] doubts its own systems would mean that all criminal prosecutions would have to be stayed. It would also beg a question for the Court of Appeal over past prosecutions and imprisonments.”
When you received this report, did you understand that a reason for not getting outside experts in is that a product of their work may have to be disclosed in court proceedings?
John Scott: I don’t actually recall this document from back then and I think I saw Rob Wilson’s name on it, so I think that would have been covered off by Rob Wilson.
Mr Beer: What do you think of it now, as a reason not to get an independent report, that it might uncover things that you have to disclose in court, as a reason for not going and getting an independent expert report?
John Scott: It’s not.
Mr Beer: I’m sorry?
John Scott: It’s not.
Mr Beer: It’s not a good reason, is it?
John Scott: No.
Mr Beer: So when you get this report, presumably you read it?
John Scott: Almost certainly, I would have thought so.
Mr Beer: Wouldn’t these things strike you “Hold on, the reasoning here is paper thin for not getting an expert report. Why aren’t we doing this”?
John Scott: I can’t recall, although knowing that Rob Wilson’s on the circulation as Head of Criminal Law, I’d have expected him to have responded.
Mr Beer: Well, indeed, that appears to be a reflection or a summary of the Rob Wilson advice, doesn’t it?
John Scott: Yes, which I didn’t see. I wasn’t on that email.
Mr Beer: The warning shot, “Be careful what you wish for, if you go and get an expert report, you might have to disclose it in criminal proceedings”. That’s essentially what’s being said here.
Again, is the absence of any kickback or reaction to this by you or, indeed, others symptomatic of the fact that you like what this report said, “We don’t need to go and get independent expert evidence, we’ve got our guy, Rod Ismay, to say that everything is fine, let the caravan move on?” Was that the prevailing attitude at the time?
John Scott: Sorry, no, I just don’t recall it as that.
Mr Beer: Can we go back to page 1, please. Halfway down, please, he says:
“This paper has been compiled as an objective, internal review …”
Did you know what Mr Ismay’s terms of reference were?
John Scott: I don’t recall and, probably, I wouldn’t have known if I’ve just received that and not been involved in the draft.
Mr Beer: He has told the Chairman on his oath that his terms of reference were only to look for and to include evidence that supported the integrity of Horizon, to not be objective and not included any material that undermined the integrity of Horizon. Did you know that?
John Scott: No.
Mr Beer: So what did you do with this report when you got it?
John Scott: I don’t recall what I did with the report, to be honest.
Mr Beer: Did you issue any instructions about the necessity of disclosure of it in any criminal proceedings?
John Scott: I don’t recall –
Mr Beer: Were you aware of any criminal proceedings in which it was disclosed?
John Scott: No, I don’t recall that.
Mr Beer: Can we turn to a new topic, please. That can come down. Your role in Horizon integrity cases. Can we turn up paragraphs 20 to 26 of your first witness statement, please. That’s WITN08390100. Paragraph 20 starts on page 7. Between paragraphs 20 and 26, you tell us about your role as Head of Security. You tell us in 20 there are a range of serious issues that required your attention.
In 21 and 22 you tell us about physical threats and attacks on subpostmasters and then, over the page, to paragraph 23, you carry on talking about physical threats. Then on 24, you say that, on taking up the role:
“… I brought with me a personal interest in information gathering and data/intelligence to identify and drive down losses.”
You were keen to drive the compilation and analysis of POL information across the security business. Your ethos was one of loss prevention rather than being reactive. That’s essentially what you told us first thing this morning?
John Scott: Yes.
Mr Beer: In 25, over the page, please, on page 9, in the third line, you say you commissioned:
“… Detica, a subsidiary of BAE Systems to conduct an initial review of [Post Office’s] systems with a loss and fraud digitalisation goal in mind.”
Then over the page at 26, you say:
“To summarise, my role as Head of Security was [multifaceted] which, amongst other things, required me to manage sensitive and demanding situations, travel frequently and oversee various large and complex projects.”
John Scott: Yes.
Mr Beer: In those paragraphs, you appear to suggest that your knowledge of the day-to-day activities of your staff was limited, would that be right?
John Scott: Yes, I operated more strategically and left that to the heads of the respective strands.
Mr Beer: If we go back to page 6, please, you tell us in paragraph 18, second sentence:
“I was informed by my predecessor, Tony Marsh, that the Fraud Team was well established, that the investigative framework was effective and running well, and that the investigators were proficient in their role and able to effectively organise and run investigations. That was also my experience.”
Then about ten lines on:
“I was not involved in carrying out or overseeing criminal investigations on a day-to-day basis …”
Then the last line:
“To [an extent] the Fraud team ran itself …”
John Scott: Yes.
Mr Beer: Does it follow that you did not have oversight of and, therefore, no responsibility for the actions of some to of those under your command, who had a part in the prosecution of subpostmasters?
John Scott: I was the Head of Security, so overall in charge, but the day-to-day operations was managed by the respective heads of the respective strands.
Mr Beer: So would you put it this way: that, although you might have theoretical accountability for the actions of some of them who were operating under your command, in fact, you’d got no factual responsibility for what they did or failed to do?
John Scott: No, overall, as Head of Security, ultimately, it comes up to me if anything gets escalated or reported to me or it’s not working in the correct fashion. But the day-to-day management of the operations and the teams was delegated to the heads of the strands.
Mr Beer: But, as a matter of fact, you didn’t have oversight of and responsibility for their actions?
John Scott: Not on a day-to-day basis.
Mr Beer: Was, therefore, the Security Department structured in a way that meant that you had no proper oversight of what they were doing on a day-to-day basis?
John Scott: No, I did have formal meetings, one-to-ones, with the heads of – and if we’re talking about the Fraud and Security Operations, so we did meet on formal one-to-ones. They’d also have a formal Security lead team meeting on a monthly basis where things were raised, et cetera.
Mr Beer: If we go forward to page 16 of your witness statement and look at paragraph 43. You say:
“The Fraud strand senior management and team leaders were responsible for the conduct of the investigations along with the investigators. As explained in paragraph 18 [which I’ve just taken you to], I was told by my predecessor that the investigators in the team were experienced and I understood they were well versed in investigative processes. I therefore assume that it would have been the investigators themselves who would decide how a criminal investigation would be conducted, applying the relevant policies as appropriate.”
Did you ever think to question that or did you proceed on the assumption that you have set out?
John Scott: In – set out?
Mr Beer: You assumed that everyone was doing things correctly, they were well versed in investigative processes. They would decide how to conduct a criminal investigation and, therefore, you didn’t involve yourself in it?
John Scott: No, so, as I said, I did meet up with the head of the Fraud strand and security operations. I’d meet with lawyers as well and have discussions around the performance and proficiency of the cases and case files and the evidence. I even travelled to Scotland and Northern Ireland once to see our external criminal lawyers and they gave me comfort that all was appropriate and correct. So there was a number of different channels that I was looking at.
Mr Beer: In his witness statement – I’ll give the reference, no need to bring it up, it’s WITN08160100 – at paragraph 47, Mr Hayward of your department said that he was made aware of issues raised regarding Horizon integrity, although he had no direct involvement in dealing with them:
“This was being led by others within the business. With regard to the Security team, updates were provided by the Head of Security, JS, in summary, these being that the Horizon integrity issues were being reviewed. JS also requested that all case files were passed to him for personal review.”
Are you the “JS” that Mr Hayward is referring to there?
John Scott: Potentially. What year?
Mr Beer: Well, he refers to – I’m not sure if this will be on the system but POL00095547.
No, not on the system. I believe it’s 2011. He refers to a document in the introduction to that paragraph –
John Scott: Yes.
Mr Beer: – and says, “With regard to this document, I say as follows”. I believe that’s 2011?
I think you say in your first witness statement it was only in 2013 and in your second witness statement you say, “I’ve been shown some more documents”, and you think that it was 2012.
John Scott: Ah. So that’s different, talking about different things –
Mr Beer: Okay.
John Scott: So if you’re talking 2011, I do not recall case files being sent to me, because you’ll be talking – they had 200 or 300 on the go at any one point and I can’t recall receiving 200 or 300 case files. In terms of 2012/2013 that you just mentioned is around being asked by my line manager, Susan Crichton, to take on the role of decision-maker for prosecution, so that would be at some point in 2012, most likely the separation would’ve triggered that, but I believe now, looking at documents, that would have ceased mid-2013.
In terms of all the case papers, in my statement, what I have said is that I initiated then a monthly review meeting for the investigation and prosecution status, which all the cases were reviewed. At that meeting I had Cartwright King solicitors in the meeting as well.
Mr Beer: So, in summary, then, when did you first take over the responsibility for decision making on whether there should be a prosecution or not?
John Scott: So I believe now it’s around about 2012.
Mr Beer: What was the instigation or the reason for you taking that over?
John Scott: I can’t recall. It may have been the separation of Royal Mail Group.
Mr Beer: Why would the separation from RMG have necessitated you taking over that function?
John Scott: I don’t know. I remember speaking to Susan Crichton as to whether we will continue with prosecutions or not in separation, because I needed to know whether to – how to manage the structure of the team and it may have been instigated from that discussion but I can’t recall.
Mr Beer: In your witness statement, if we look at page 6, please, at the foot of the page, page 19, you say:
“My remit in respect of investigations did slightly change towards the end of 2013 …”
That’s what you’ve corrected to “2012”?
John Scott: Yeah.
Mr Beer: “… when I was asked by my line manager at the time … Susan Crichton, to review and sign off on any new investigation files …”
What do you mean by “sign off”? That may give the impression, if you sign off on something, that you are merely endorsing that which has already been decided.
John Scott: Well, I obviously am signing to say that we will continue progressing to a prosecution.
Mr Beer: “We will continue to progress” or “I authorise the institution of criminal proceedings”?
John Scott: I guess it will be authorised.
Mr Beer: Again, it’s the language that you’ve used and, appreciating this is 10 years on, did your understanding of your function amount to you signing off on a decision that had already been made by the lawyers?
John Scott: I believe so, yes.
Mr Beer: So to what extent did you review the underlying material?
John Scott: I would have reviewed it. If it was case papers, I’d have gone through all the case papers.
Mr Beer: Sorry, can you just say that again? I missed what you said there?
John Scott: Yeah, if the case papers were sent to me, I’d have read all the case papers, including the suspect offender report, the tape summary, any other sort of material and, obviously, the legal advice.
Mr Beer: Did it always consist of all of that material or sometimes did you just get offender report plus legal advice?
John Scott: I can’t recall, I think it was generally always more stuff, to be honest.
Mr Beer: In the course of reviewing those cases for the prosecution, can you recall asking for enquiries to be made or investigations being undertaken, in the light of what we’ve seen happen in 2010 and 2011 about Horizon integrity issues, for those questions to be actively considered in the investigations that you were signing off for prosecution?
John Scott: I can’t recall saying that or doing that.
Mr Beer: But why not?
John Scott: I can’t recall whether I did or didn’t.
Mr Beer: You think you might have asked for statements proving the integrity of Horizon?
John Scott: On that, most likely not. I don’t recall doing that.
Mr Beer: Can I turn to a separate topic – that can come down, thank you – your role in reporting to the board. Did you report to the board?
John Scott: I don’t recall reporting to the board, RMG or Post Office.
Mr Beer: Did you report to the Risk and Compliance Committee?
John Scott: Yes.
Mr Beer: What was your understanding of what the Risk and Compliance Committee’s function was?
John Scott: To provide oversight from a risk and compliance perspective of Post Office.
Mr Beer: How frequently did you attend upon the Risk and Compliance Committee?
John Scott: I don’t think I was quorum. I believe I was a member and attended as and when. I can’t recall. They varied throughout the 10 years, so I can’t recall whether they were monthly or quarterly, and that may have changed throughout the 10 years.
Mr Beer: Can we look, please, at an example of attendance, POL00021422. Thank you. If we can just expand that, the first page is landscape. Thank you.
The chairman was Peter Corbett. We can see the attendees, Paula Vennells, you and David Pardoe, Secretariat. Was that the same person that became part of Security?
John Scott: Sorry, yes, he was Security.
Mr Beer: Was he Security at this time?
John Scott: Yes.
Mr Beer: So Security provided the Secretariat function for the Risk and Compliance Committee?
John Scott: Looking at that, yes.
Mr Beer: Can you recall how frequently the Risk and Compliance Committee met?
John Scott: No, it would either be monthly or quarterly.
Mr Beer: I’m sorry?
John Scott: No, I can’t recall exactly but it would either be monthly or quarterly.
Mr Beer: We haven’t got a complete set, I think, of the minutes to be able to see with precision how frequently it met. What would determine whether you attended or not?
John Scott: At this particular time?
Mr Beer: Yes.
John Scott: Yes. Um …
Mr Beer: So this a year or so into your role?
John Scott: I suspect I would be attending them all at that stage.
Mr Beer: You would expect?
John Scott: To be attending them all at that stage.
Mr Beer: Can we look, as an example, of the kind of contributions you made at page 8, please, and scroll down please.
You’re recorded as telling the Committee that you planned to see your team lead an initiative on further reducing Crown losses, 2008/09, by at least 25 per cent. You were pleased to see that consideration was being given to renewed focus in this area:
Keith Woollard …”
Can you remember what his function was?
John Scott: I think he was Head of Compliance.
Mr Beer: “… concurred and expanded on option one by saying that this could well see a first quarter ‘blitz’ on the Crown estate.”
Was this a theme at this time, at 2008, early 2008, to seek to reduce losses from both the Crown estate and from subpostmasters?
John Scott: Yes.
Mr Beer: Was investigation and prosecution, including the use of confiscation proceedings, the means by which that was to be done?
John Scott: No. I was taking a very much preventative approach and putting in other mechanisms or programmes in which to drive up compliance.
Mr Beer: So the “blitz” here is a preventative blitz?
John Scott: Yes.
Mr Beer: Not a prosecution blitz?
John Scott: Preventative.
Mr Beer: How would you preventatively blitz Crown Offices?
John Scott: I can’t exactly recall but I imagine we would have done analysis to see where recorded losses are happening in the Crowns and there would have been interventions, whether directly training comms, et cetera.
Mr Beer: Can we look, please, at POL00031322. This is a report of the Risk and Compliance Committee from the following year – or a report, I think, to the Risk and Compliance Committee, of the following year. You can see that, by now, it records the members on the one hand and then other attendees on the other, and you’re listed as an “other attendee”. Does that mean that, by this time, you weren’t a standing member?
John Scott: By the looks of this, yes.
Mr Beer: I just want to pick up a couple of pieces of information given here. Can we look at slide 15, please, page 15. This slide gives diagrammatic explanations of “Asset Recovery Against Fraud”, the commentary being for all closed cases, the year to date figure is £237,000 recovered against identified losses of £360,000, and the current year to date figure for recoveries is 66 per cent.
Then, in the explanation below, it’s said that the Security team currently has 56 cases on hand with a total loss of £4.8 million being investigated under the Proceeds of Crime Act. Through the provisions of the Proceeds of Crime Act legislation, the Security team continue to robustly restrain identified assets. This has resulted in significant understands being recovered when cases are progressed to confiscation than may otherwise have been dissipated.
Then an example is given of a case at Kingston Crown Court, a confiscation order of £43,600 was set, this being the available amount from assets identified, of which £21,500 in cash had been restrained in various bank accounts. The Post Office was awarded the full amount in compensation. A total the benefit from crime figure was set at £99,400. The initial investigation was £73,000.
Does this report show that seizing money through confiscation proceedings from subpostmasters and Crown Office agents was still an important element of your investigative and prosecutorial strategy?
John Scott: It was an established team that, when I took over, it was a requirement for me to continue but yes, that’s what that team was there for, was asset recovery, when someone has been convicted at court.
Mr Beer: The figures there in that last case, a total benefit from crime figure was £99,000 but the loss was only £73,000.
John Scott: Yes.
Mr Beer: Was that quite common, that the benefit from crime figure was assessed to be greater than the amount that the Post Office had lost?
John Scott: Obviously, I can see that there. So I did have an escalation in regards to an increase. Went and reviewed it with the FIU team, found that they had added a calculation that was more than a loss and, at that point, I put in an instruction to say that you only claim what was actually stolen and proven at court.
Mr Beer: Was the Risk and Compliance Committee your route as the Head of the Security team, into reporting issues into the board, essentially?
John Scott: Essentially, that’s where I reported into. Whether that went into the board or ExCo, I’m not too sure which way it went.
Mr Beer: Who was your direct report, as Head of Security? To whom did you report directly?
John Scott: So, over the period, it was Ric Francis, Mike Young, Susan Crichton, Chris Aujard, Jane McLeod.
Mr Beer: So for a period it was General Counsel?
John Scott: From around about 2010/2011 until I left the Post Office.
Mr Beer: Thank you very much. If you just give me one moment, I’ll just check my notes.
Yes, one set of last questions, please. If we can turn up page 73 of your witness statement, which is on page 26. You say in paragraph 73, at the foot of the page:
“The Inquiry has asked me to consider the following policies and explain my role in their development …”
You then list 13 policies that we asked you to look at. You say:
“I do not recall these policies and had no role in their development, including those that list me as an owner or assurer, such as POL00030580. Any policies on prosecution would have been decided by RMG prior to separation, and post separation by the POL Board and the Legal Team.”
Can we just look at one of those, I’m not going to go through all 13. The one that you list, POL00030580. This is a policy of April 2010. So it’s three years after you took up the role as Head of Security. It’s about fraud investigation and prosecution. Can you see that it says the owner of the policy is you?
John Scott: Yes.
Mr Beer: If we scroll down, please, it says the assurance of the policy was given by you, yes?
John Scott: Well, it’s not dated.
Mr Beer: In what respect is it not dated?
John Scott: As in me actually saying it’s assured and dated as and when I did it.
Mr Beer: I see, so on the right-hand column?
John Scott: Yes, and also, I’m not too sure I’d have been able to sign it off, because Royal Mail Group was the group parent and it’s their prosecution policy that was the overarching one.
Mr Beer: Would you make the similar comment for it being authorised by you?
John Scott: Err –
Mr Beer: The sentence underneath –
John Scott: Yes.
Mr Beer: – “Authorised, Head of Security – Post Office Limited”?
John Scott: Yes.
Mr Beer: So, essentially, you’re being verballed up on this policy here, aren’t you? It’s being said that you own it, you assured it and you authorised it?
John Scott: I can’t recall it and I can’t recall seeing it before. So I’m not too sure what its existence is there for.
Mr Beer: If I showed you a number of other policies where you’re the owner, you gave assurance, you’d say the same thing, would you?
John Scott: Some of them, I can see, have been – my name put on as for the seniority of the head of, but I wasn’t into policy writing. That would be someone else.
Mr Beer: Was it common practice within the Post Office to list the wrong person as being the owner of a policy, the wrong person for assuring a policy, and the wrong person for authorising a policy?
John Scott: No, I’m not – well, I don’t recall this because there’s no date and I’m not too sure I would have signed it off because it’s a Royal Mail Group overarching prosecution policy. Post Office couldn’t have its own prosecution policy.
Mr Beer: So whoever has written this has wrongly included your name? There should be one or two or three different names on here?
John Scott: Well, it shouldn’t have been written because the Royal Mail Group prosecution policy should have been in existence. But, potentially, yes.
Mr Beer: Again, was that a common thing, that people who owned policies were not listed on them, but the wrong person was?
John Scott: Not that I recall. I mean, if this still in draft, then it’s not gone to live.
Mr Beer: You say this is still in draft.
John Scott: It may be because there’s no date.
Mr Beer: So, in order to show that this was a policy that was extant, you would want, in that right-hand column, would you, two dates against “Assurance” and “Authorised”?
John Scott: In principle, yes.
Mr Beer: You say in principle, do you mean, actually, yes?
John Scott: Yes.
Mr Beer: So does it follow that we shouldn’t rely on any policy as being that of the Post Office, unless it has got a date against all relevant boxes of owner assurance and authorisation?
John Scott: It gives more evidence to say that, actually, it’s been approved, it’s been assured and it has therefore gone live. Without a date, it puts it into doubt.
Mr Beer: Yes, thank you very much, Mr Scott.
I think there’s one set of questions from the Hodge Jones & Allen representative, sir.
Sir Wyn Williams: All right.
Questioned by Ms Page
Ms Page: Thank you, sir.
Mr Scott, I represent a group of subpostmasters –
Hello, I represent a group of subpostmasters, including Seema Misra. You were taken to an email earlier on, just to help us with the questions on it and to ask some other questions on it, I’ll ask that it’s brought up. It’s POL00119858. If we can go down to the final paragraph in that email and refresh your memory of it, it says:
“I found out today …”
This was the email from Rod Ismay, which was dealing with whether there should be an independent report on Horizon in 2010. But he also says here at the end:
“I found out today that Carole Cross in my team and Jon Longman from yours … are in court soon for West Byfleet … This, apparently, is an office who as part of their defence is challenging the integrity of Horizon.”
So that raises the trial that was – became quite well known and you’re obviously finding out about it here in mid-2010, yes?
Did you know anything about it before then?
John Scott: No, I don’t recall and he’s obviously only mentioned it by the Post Office name.
Ms Page: Yes. Well, he goes on to say – after asking Mandy whether she’s involved, he says:
“I think we need to be clear about all live cases so that we ensure that the same consistent robust response throughout and based on the sensible principles of Dave’s email”, et cetera.
So, in other words, he’s suggesting that the three of you – the three of you in this email chain – need to be clear about all live cases from this point forward, yes?
John Scott: That’s what he’s indicating.
Ms Page: So you will have – you, Mr Ismay and Ms Talbot, will have kept a bit of watching brief thereafter on that case; is that a fair assumption?
John Scott: I don’t recall. It’s not necessarily the case, just because someone wrote me an email and said that’s what they’re doing.
Ms Page: So are you saying that you don’t remember the West Byfleet trial, the Seema Misra trial?
John Scott: I don’t particularly recall it when it’s obviously come out over the last couple of years. So it didn’t trigger anything, I don’t recall it.
Ms Page: So when he suggests that the three of you need to keep an eye on all live cases, you just ignored that, did you?
John Scott: No, we obviously must keep a look on all live cases but I don’t recall looking out for this particular one on its own.
Ms Page: Even in the context of the fact that the challenge to the integrity of Horizon was the key theme in that case?
John Scott: Sorry, I don’t recall.
Ms Page: All right. Well, let’s take that document down, then, and look at the next one, which is the only other one I’m going to show you. It’s FUJ00155516. If we just go down to the end of this two-page chain, we can see this is an email from someone called Tom Lillywhite and he’s at Fujitsu, yes?
John Scott: Yes.
Ms Page: Is that a name that rings a bell or not particularly?
John Scott: No.
Ms Page: Well, if we go up, just to the top of this email, we can see that he’s sent you this email on 14 September 2010 and he’s copied in two others. He says:
“John,
“The email text I promised, following our telephone call …”
So evidently the two of you have spoken just prior to him sending this message, yes? Does that make sense to you?
John Scott: Yes.
Ms Page: He says this:
“Our RMG Account Fraud and Litigation Service are currently acting on an ARQ [and he gives a reference]. This request for transaction records which covers March 2010, is in respect to an outlet (Derby) which is already migrated to HNG-X.”
He says:
“Because of number of technical issues (errors detected) that arose during migration up to June 2010, and which POL technical specialists are aware of, the information gathered in respect of this particular ARQ may be subject to issues of integrity. Our technical staff have investigated the record in question and, at this stage, although they report that there is no obvious evidence of suspicious behaviour, they can add nothing further with any certainty and they do not have the ability to determine if there really are any financial implications with the messages. In other words, any response from us would have to bear the health warning that there was no guarantee as to the integrity of the data provided by us.
“The issue is of particular relevance in light of the fact that provision of an ARQ could result in a request for a Statement of Witness to support litigation activity. As such, any Statement of Witness provided would, in real terms, have to reflect this.”
So let’s just be clear about what he’s saying there. He’s saying that an ARQ request has come through for a particular outlet, that is Derby. An ARQ request is evidently one where somebody in your team, the Security team, have asked for data from the branch, yes?
John Scott: I presume so, yes.
Ms Page: What he’s saying is that, because of a known issue they can’t say that that data has any integrity, yes? So there is a known issue about Horizon data integrity –
John Scott: On that particular one, yes.
Ms Page: – and he’s alerting you to it, yes?
John Scott: Yes.
Ms Page: If we go further up, we can see your response. On 18 September you respond, and say:
“Tom.
“Thank you for your telephone call and email in regards to the matter below.
“Just to let you know the outcome, the ARQ was raised due to a key entry discrepancy in a customer deposit. There is no investigation in this matter and will therefore not be used in Court.
“I would also be grateful if you could advise if there are any other ARQs at risk.”
If we scroll up, we can see that seems to be pretty much the end of the matter, as far as you are concerned.
What you don’t say is “You’ve alerted my attention to a known Horizon data integrity issue”, do you?
John Scott: No, not that I can see.
Ms Page: This is in September 2010. This is just after you had received the Rod Ismay August 2010 report, which claimed that there were no Horizon integrity issues. Do you see anything problematic about your response, Mr Scott?
John Scott: I can see that it was a known technical issue. It was known. They went to the root cause to understand it and, therefore, from my perspective looking at that, it’s an isolated issue that was known, root caused and resolved.
Ms Page: What led you to think it was a known, root caused issue?
John Scott: From the – well, it says it’s a technical issue –
Ms Page: Yes.
John Scott: – from what I’ve seen there.
Ms Page: Yes.
John Scott: I mean, I’ve literally only just seen this. I don’t recall seeing this document before.
Ms Page: There’s nothing in it that suggests that this is a limited issue or that it’s only related to this branch. It’s a known issue and you haven’t raised it, have you, with Mr Ismay, who has just written a report on the integrity of Horizon?
John Scott: I don’t recall whether I have or not.
Ms Page: You haven’t raised it with the Seema Misra defence team who were, at that very time, conducting a defence which raised the issue of the integrity of Horizon?
John Scott: Sorry, I don’t recall.
Ms Page: Do you wish to take any share of responsibility for the fact that your team – you, in particular – knew about a Horizon data integrity issue in the month before Seema Misra was tried and convicted? Do you wish to take any responsibility for the failure to disclose that to her team?
John Scott: I can see it. I don’t know whether I did disclose it or not or forward it on. If I should have done, my apologies, but I don’t know whether I did or didn’t. I just can’t recall.
Ms Page: Thank you. Those are my questions.
Sir Wyn Williams: Thank you, Ms Page.
So is that it, Mr Beer?
Mr Beer: Yes, it is, sir.
Sir Wyn Williams: Well, thank you for your witness statement, and thank you for coming to give oral evidence and answering a good many questions.
The Witness: Can I just confirm I’m released and I can speak to my lawyers?
Sir Wyn Williams: Yes.
Mr Beer: Yes, that’s right. Thank you very much.
Sir Wyn Williams: So we start again at 10.00, Mr Beer, yes?
Mr Beer: Yes. Rob Wilson.
Sir Wyn Williams: All right. Thank you very much.
(4.14 pm)
(The hearing adjourned until 10.00 am the following day)