12 October 2023 – Robert Wilson
Hide video Show video
(10.00 am)
Mr Beer: Good morning, sir, can you see and hear me?
Sir Wyn Williams: Yes, I can, thank you.
Mr Beer: May I call Robert Wilson, please.
Sir Wyn Williams: Yes.
Robert Wilson
ROBERT GEORGE WILSON (sworn).
Questioned by Mr Beer
Mr Beer: Good morning, Mr Wilson. As you know, my name is Jason Beer and I ask questions on behalf of the Inquiry. Can you give us your full name, please?
Robert Wilson: Do you wish me to stand?
Mr Beer: No, you can remain seated. Please do.
Robert Wilson: Robert George Wilson.
Mr Beer: Thank you very much for coming to give evidence to the Inquiry today and for the provision previously of a witness statement. Before I ask you questions about that witness statement and indeed other questions, the Chairman, I think, will deliver a warning.
Sir Wyn Williams: Good morning, Mr Wilson, you’re giving evidence today and my understanding is that you will, in all probability, return to give evidence on a separate occasion before Christmas. So what I’m about to say relates to both those occasions. You’re probably aware, given that you’re a solicitor, that a witness at a public inquiry has the right to decline to answer questions put to him by Counsel to the Inquiry by any other recognised legal representative, or indeed by me, if there is a risk that the answers to those questions will incriminate the witness. This legal principle is known in shorthand form as the privilege against self-incrimination.
Mr Wilson, I’ve decided that fairness demands that I remind you of that privilege before you begin your evidence. I should also say, however, that it is for you to make clear to me in respect of any questions put to you that it is your wish to rely upon the privilege, if that is indeed your wish. If, therefore, questions are put to you by any of the lawyers who ask questions, or by me, which you do not wish to answer, on the ground that to answer such questions might incriminate you, you must tell me immediately after such question is put.
At that point, I will consider your objection to answering the question and thereafter rule upon whether your objection should be upheld.
I understand from Mr Beer that you have received legal assistance in respect of giving evidence to the Inquiry but that you are not represented at the Inquiry today.
I don’t anticipate that that will prove to be a problem but, if I am wrong in that anticipation and at any stage during your questioning you ask my permission to seek advice from a lawyer, I will consider what you have to say about it at that point and make a decision. Do you understand everything that I’ve said, Mr Wilson?
Robert Wilson: Yes, sir.
Sir Wyn Williams: Thank you.
All right, carry on then, please, Mr Beer.
Mr Beer: Thank you.
Mr Wilson, you should have in front of you a hard copy of a witness statement in your name, dated 11 May 2023.
Robert Wilson: Yes.
Mr Beer: I think there are three corrections that you would like to make to it.
Robert Wilson: Yes.
Mr Beer: If we can display on it so everyone can see, WITN04210100. I think the first correction that you wish to make is on page 21 at paragraph 44.
Robert Wilson: Yes, that’s correct.
Mr Beer: You’ll see in the second line there’s a sentence that begins “Having conducted previous trials counsel”.
Robert Wilson: I think it’s “When the Horizon IT System”.
Mr Beer: Yes, so if we scroll down, so it’s the second line:
“When the Horizon IT System was first implemented, I instructed senior counsel who had undertaken a number of prosecutions … to provide an advice for the [Criminal Law Team]. I understand it included specific wording to cover the production of computer records … and wording to cover the production of business records … Counsel instructed had also received training on a computer terminal that would be used by [subpostmasters], counter clerks and staff conducting transactions with members of the public. I cannot now recall the full extent of the advice prepared by counsel but recall that it was a detailed advice.”
Do you wish to delete the entirety of –
Robert Wilson: I do.
Mr Beer: – the sentences that I’ve just read?
Robert Wilson: Yes, I do.
Mr Beer: So from the words “When the Horizon IT System was first implemented” all the way down to “detailed advice”?
Robert Wilson: Yes, please.
Mr Beer: Secondly if we turn, please, all the way down to page 24 and it’s paragraph 52 at the top, you say:
“The CLT did not prepare a generic witness statement for expert witnesses. I cannot recall comparing witness statements generated by anyone at [the Post Office] or Fujitsu for use in criminal cases …”
Do you wish to delete the remainder of the sentence from “so am unable”?
Robert Wilson: Yes, that’s correct.
Mr Beer: To the end of the sentence?
Robert Wilson: Yes.
Mr Beer: Then, thirdly, please, on page 30 at paragraph 72 – if we just scroll up a bit so we can get the context, please, a little bit further – you’re dealing here in paragraph 71 and 72 with an email that Mr Simpson sent to you in October 2010. In paragraph 72, you say:
“I do not know what the issue was that had been reported by Fujitsu and concerned Mr Simpson.”
Do you now wish to delete those words in that paragraph?
Robert Wilson: I do.
Mr Beer: The entirety of paragraph 72?
Robert Wilson: Yes, I do.
Mr Beer: With those three amendments, are the contents of the witness statement true to the best of your knowledge and belief?
Robert Wilson: Yes.
Mr Beer: As the Chairman has said, I am only going to be asking you a limited number of questions relating to Phase 4 of the Inquiry today, because you’re coming back on 12 December, kindly, to give us evidence on some case studies –
Robert Wilson: Yes.
Mr Beer: – that we’re conducting and three, in particular, in which you were involved. I’m not going to ask you about the detail of any of those three case studies today.
Just before we get into the detail, can we go back to page 21, please, of your witness statement. The passage that is highlighted, could you explain to us just in general terms, please, why you now wish for that to be deleted from your signed witness statement?
Robert Wilson: Yes. I changed representation –
Mr Beer: Stop there. If you can give the answer in a way that does not involve telling us about communications between you and your lawyers, that may be preferable. It’s a matter for you whether you include in your answer any reference to such communications. But if you do refer to such communications, there’s a chance that you waive privilege over those communications and other communications. So just be aware that, when giving the explanation, it may not be necessary for you to involve communications with the lawyers.
Robert Wilson: Basically, I recently reread my statement and, for some reason, I don’t know why, but it suddenly occurred to me that, in fact, I wasn’t in charge at the time Horizon was implemented. The reason I was specific about counsel and named counsel to the inquiry is because he was someone who, on a regular basis, almost exclusively gave me written advice which was thorough and I worked with him on a number of issues.
Mr Beer: What was his name?
Robert Wilson: Stephen John.
Mr Beer: Sorry, carry on.
Robert Wilson: And that’s why I was so specific about who – counsel and, so far as the other details that are in there, I had a picture in my brain of what the advice looked like but it was a completely false picture and I don’t know why I believed that I was in charge at the time, and it was only when I reread the statement recently.
Mr Beer: In the fourth line there, you say:
“I understand that it included specific wording to cover the production of computer records.”
The “it” being counsel’s advice?
Robert Wilson: Yes.
Mr Beer: You used the words “I understand”. From where did you get that understanding when you were writing the statement?
Robert Wilson: From – I had a picture in my brain of that piece of evidence.
Mr Beer: The words “I understand” may suggest that you had been told the information by somebody else, rather than “I recall that it included”, “I believe that it included” or even “It included”?
Robert Wilson: No, nobody told me.
Mr Beer: Why did you use the words “I understand”?
Robert Wilson: Loose terminology. I don’t know why I used the words.
Mr Beer: At the end of the paragraph, you say:
“Counsel instructed had … received training on a computer terminal that would be used by [subpostmasters and others].”
Is that in fact true?
Robert Wilson: Yes, that –
Mr Beer: So that did apply to Mr John?
Robert Wilson: Yes, it did.
Mr Beer: You said the reason that you recently recalled that you had not commissioned this advice was that you realised that you were not in charge when the Horizon IT System was first implemented –
Robert Wilson: Yes.
Mr Beer: – ie about 1999/2000?
Robert Wilson: Yes.
Mr Beer: Would you have needed to have been in charge in order to have instructed counsel to provide an advice?
Robert Wilson: Not necessarily, no.
Mr Beer: Why did your memory of you not being in charge prompt you to wish to delete this paragraph, then?
Robert Wilson: Because when I realised when I’d rejoined the team in 2002, in May of that year, I realised that I wasn’t in charge at the time.
Mr Beer: But why would not being in charge mean that you, as a “mere”, in inverted comma, member of the team could not nonetheless commission advice?
Robert Wilson: I don’t think I was asked to do that – undertake that task.
Mr Beer: It’s quite a detailed recollection that you include here, albeit it ends with the words:
“I cannot … recall the full extent of the advice …”
Robert Wilson: Yes.
Mr Beer: Have you received any information from anyone that the Inquiry has searched for a copy of that advice, and –
Robert Wilson: No.
Mr Beer: – has asked the Post Office to search for a copy of the advice and there has been a nil return?
Robert Wilson: No.
Mr Beer: That hasn’t played any part in your decision to wish to delete this part of the paragraph?
Robert Wilson: No.
Mr Beer: Thank you. Can we move on to page 24, please.
It’s the words from “so am unable to say whether a generic statement had been developed either by POL or Fujitsu for their witnesses”, that you wanted to delete.
Robert Wilson: Yes.
Mr Beer: I think the explanation may be more straightforward in this respect. Can you just explain why you wish to delete that?
Robert Wilson: I received an additional bundle about a week ago and in the additional bundle was a generic statement.
Mr Beer: So a generic witness statement for witnesses giving evidence, which we’re going to look at later today –
Robert Wilson: Yes.
Mr Beer: – you’ve now seen that and so you realise that that what was said there is incorrect?
Robert Wilson: Yes, that’s right.
Mr Beer: Does the same go for the third correction?
Robert Wilson: It does.
Mr Beer: The later provision of documents showed that your memory was incorrect?
Robert Wilson: Exactly.
Mr Beer: Thank you.
Can I start, please, with your career, qualifications and experience. I think you’re a solicitor, is this right, having qualified in October 1980?
Robert Wilson: That’s correct, yes.
Mr Beer: So that means that when addressing the events with which we’re concerned, between the introduction of Horizon in 2000 and you moving over to the Royal Mail Group in April 2012, you would have had between 20 and 32 years’ post-qualification experience?
Robert Wilson: Yes.
Mr Beer: Before you joined the Post Office in mid-1986, I think you had previously worked for a short period of time as a court clerk in the Magistrates Court; is that right?
Robert Wilson: That’s correct.
Mr Beer: You then worked as a prosecuting solicitor for the Northumbria Police; is that right?
Robert Wilson: I did, yes.
Mr Beer: Is that before the advent of the Crown Prosecution Service?
Robert Wilson: Yes, I transferred across into the CPS from Northumbria Police.
Mr Beer: That’s when the prosecuting responsibility used to fall to, essentially, the county solicitors?
Robert Wilson: Yes.
Mr Beer: Then was it 1985, upon the creation of the CPS, that you moved across?
Robert Wilson: To Post Office Limited?
Mr Beer: No, from Northumbria Police –
Robert Wilson: Oh, yes.
Mr Beer: – to the Crown Prosecution Service?
Robert Wilson: Yes, it was a TUPE transfer.
Mr Beer: Then, as you said, in mid ‘86, you moved across to the Post Office?
Robert Wilson: That’s correct, yes.
Mr Beer: Can you explain in summary form, please, the nature of the regulatory obligations of an in-house solicitor, as you understand them?
Robert Wilson: My duties?
Mr Beer: Yes.
Robert Wilson: My principal duty was to run the prosecution team and ensure that the prosecutions were properly dealt with in accordance with the legislation that applied and our prosecution policy. I was responsible for managing agents – because we had agents throughout the country and counsel throughout the country and Wales. So I needed to understand how to brief them and inform them of what was – we were doing. I had a team –
Mr Beer: Mr Wilson, sorry to interrupt you. My question was pitched at a slightly higher level than in the job that you, in fact, were doing from mid-‘86 onwards what were your responsibilities? I was asking what was your understanding of the regulatory obligations, the duties of an in-house solicitor were at that time?
Robert Wilson: Well, my duties were to ensure that we properly prosecuted on behalf of Royal Mail, in accordance with the legislation and in accordance with the Code for Crown Prosecutors when that came out in 1986, so, additionally, the prosecution policy, that we’d adhered to the rules and regulations that we’d prescribed for ourselves in terms of prosecuting offenders.
Mr Beer: Can you please give us your understanding of your professional duties as a solicitor and how they sat with your duties to your employer as an in-house solicitor?
Robert Wilson: My duties as a solicitor were to be independent and objective in terms of prosecuting offenders, which I felt that I was, throughout the – throughout my employment with Post Office and Royal Mail.
Mr Beer: Did you understand those duties to include an obligation or a duty owed to the court as an officer of the court?
Robert Wilson: Yes.
Mr Beer: Some research published by the Solicitors Regulation Authority has suggested that some in-house solicitors may have not had the support and internal controls within their organisations to maintain their independence and that this may be particularly risky where the commercial interests of the organisation are not in alignment with the solicitor’s regulatory obligations.
When you worked as an in-house solicitor for the Post Office between 1986 and 2012, did you ever believe that you lacked the support and internal controls that were necessary to maintain your independence?
Robert Wilson: No, I didn’t. I was never under any pressure from any individual within the Post Office or indeed any team within the Post Office to do – take any action that I was not happy with.
Mr Beer: Did you ever feel that your independence was at risk, where the commercial interests of the Post Office were not in alignment with the – your regulatory obligations?
Robert Wilson: No, I never felt that at all.
Mr Beer: In this period did you understand that you were required to comply with the Code of Conduct for solicitors and the principles issued under it and with the predecessor equivalents of the Code and those principles?
Robert Wilson: Yes, I did.
Mr Beer: Did you understand that at all times that included a duty to act with independence and that included to act with independence from your client?
Robert Wilson: Yes, I understood that and I never felt under pressure at any stage during my career to act other than independently.
Mr Beer: Were there any policies, protocols or guidance in place during your extensive period in office that were designed to protect the independence of in-house solicitors and in-house counsel in your team at the Post Office?
Robert Wilson: No, not that I recall.
Mr Beer: Why not?
Robert Wilson: Why not? That’s a good question. I never felt under any pressure to do anything whilst I was a solicitor. I had – we had contact with the Law Society and I don’t know why we didn’t do it but there were no rules or protocols in place, that I can recall.
Mr Beer: Looking back, do you think that would have been a good idea, in particular for maybe lawyers less senior in the organisation than you, that explained to them the nature of their duties and how that was going to be carried into effect on the ground in the Post Office?
Robert Wilson: It would have been a good idea but, at the time, I never thought it was necessary. I didn’t think that we were ever – either myself or my team were under any pressure from any department within Post Office Limited to take action or not to take action if we didn’t wholeheartedly agree with that course of action.
Mr Beer: So in 1986 you moved into the Criminal Law Team in the Post Office –
Robert Wilson: I did.
Mr Beer: – and I think you stayed there for 26 years –
Robert Wilson: I – I don’t know. Probably.
Mr Beer: – until – I think 1986 until April 2012 –
Robert Wilson: Yes.
Mr Beer: – is 26 years.
Robert Wilson: Right.
Mr Beer: You prosecuted Horizon-based cases, ie cases that relied on data produced from the Horizon system, from the year 2000 onwards; is that right?
Robert Wilson: I think even before that. I think in 1999 Horizon came in, didn’t it?
Mr Beer: Well, there was a rollout in 1999 and so some sub post offices will, in a staged process, have been given the equipment and asked to operate it before 2000.
Robert Wilson: Right.
Mr Beer: So you recall prosecuting cases in 1999 based on Horizon data, do you?
Robert Wilson: Well, there was always a time lag between investigating an offence and –
Mr Beer: A suspected offence, presumably?
Robert Wilson: – a suspected offence, and then actually issuing summonses. So there was always a time lag so some of the cases that we first prosecuted under Horizon must have come in, I guess, in 2001/2002.
Mr Beer: I was going to ask you how long, following the rollout after Horizon, did the Post Office wait before it started to prosecute its subpostmasters?
Robert Wilson: I don’t know the answer to that one. But I know that pension allowance order fraud, which was the big fraud prior to Horizon, continued until 2005 and I understand some of those cases must have had evidence from the Horizon system.
Mr Beer: What, if anything, were the Criminal Law Team told about the reliability and accuracy of data produced by the Horizon system during the national rollout period in 1999/2000?
Robert Wilson: I really can’t remember. I imagine we were told something but I can’t remember. But it must have been that the system was viable and appropriate.
Mr Beer: Can you recall whether enquiries were actively made by you and your team of Post Office departments in that regard, “We’ve got a new computer system it’s producing data, we’re founding our charges on the basis of this data. Can you tell us whether the system is reliable, please”?
Robert Wilson: Well, that request would have gone via the Investigators to obtain evidence from the Fujitsu people who were producing the evidence and would have appeared in their individual statements.
Mr Beer: Right from the start?
Robert Wilson: I imagine so, yes.
Mr Beer: You would expect it to be a necessary element of an investigation to establish the reliability of the data upon which an investigation and then potentially a prosecution was founded?
Robert Wilson: Yes, I would.
Mr Beer: Why would you think it simply just to be an ordinary, necessary part of the investigation?
Robert Wilson: Well, because if they couldn’t establish that the system was working properly, then the evidence had no value.
Mr Beer: So reliability of the data was a fundamental or essential part of any investigation founded upon such data?
Robert Wilson: Absolutely.
Mr Beer: To your knowledge, was your team made aware of the high severity Acceptance Incident known by number 376, which concerned discrepancies and lost transactions, in the course of the national rollout?
Robert Wilson: I don’t recall that at all.
Mr Beer: Do you remember something called Acceptance Incidents?
Robert Wilson: No.
Mr Beer: Do you recall that, as part of the contractual arrangements between the Post Office and Fujitsu, there were a series of criteria that had to be met before, essentially, the system was permitted to go live across the national estate –
Robert Wilson: No.
Mr Beer: – and that incidents – Acceptance Incidents, as they were called – were raised if there were problems; do you recall that?
Robert Wilson: No, I don’t recall that at all.
Mr Beer: And that there were a series of those that concerned the integrity of the data that Horizon was producing?
Robert Wilson: No, I don’t recall.
Mr Beer: Similarly, would it be right, therefore, that you don’t recall the team being made aware of High Severity Acceptance Incident 218, which was about a series of subpostmasters raising issues about their ability to operate the system when it came to balancing their accounts and unexplained discrepancies appearing in their accounts when they did the weekly balance?
Robert Wilson: No, I wasn’t aware of that.
Mr Beer: The way you explained matters earlier suggested that you thought that the Post Office started prosecuting on the basis of Horizon data relatively soon after Horizon was introduced?
Robert Wilson: I thought so, yes.
Mr Beer: It’s been suggested by some senior Post Office witness evidence given to the Inquiry that the Post Office would “give the benefit of the doubt” during and immediately following the national rollout period because of the natural difficulties that would be encountered in introducing and then embedding a new system, and so that, if discrepancies arose, postmasters would be given the “benefit of the doubt” and not prosecuted.
Was that something that trickled its way down from those senior Post Office individuals to you and your team?
Robert Wilson: No. My dealings were purely with the Investigators, the investigation team. I had no real contact within Post Office Limited hierarchy above me and nobody of a senior level ever contacted me and gave me that information.
Mr Beer: Like sort of a moratorium or a period of grace, whilst the system was bedding in and subpostmasters learned how to operate it rather than moving straight to prosecuting them?
Robert Wilson: That may well have been the case and my memory, again, may be faulty. I just got the impression that when Horizon came in, that we – it was being used and we were obtaining evidence via the investigators.
Mr Beer: Did you or members of your Criminal Law Team meet with any technical staff from Post Office to understand or gain an understanding of how Horizon worked?
Robert Wilson: We – I think the answer probably is yes. I don’t recall the meetings but I think the answer probably would be yes. We, certainly, in terms of training, offered training to a number of counsel and agents who were used for advocacy, and we had a number of training sessions throughout the country where the Horizon system was up and running and could be used by those people. So I imagine, because I went on training sessions as well, that some explanation was given at that time as to what the Horizon system did.
Mr Beer: How long did your training on Horizon take?
Robert Wilson: Well, I think I attended at least two, maybe three sessions with counsel and possibly agents throughout the country. I remember going to Weston-super-Mare on one and I remember in London, having a number of counsel who turned up to one of the training sessions.
Mr Beer: Did those training sessions involve gaining an understanding of how data was produced by the Horizon system and how it could be translated into evidentially sound material for the use of an investigation and a prosecution or was it more about “This is what a keypad does, this is what the system looks like, this is the touchscreen”, that kind of thing?
Robert Wilson: Yes, more the latter explanation that you’ve just given that – not the technical details.
Mr Beer: Were there any meetings between you and Post Office technical teams to gain an understanding of the potential causes of errors or faults within the system that may affect the quality of the data that it produces?
Robert Wilson: No.
Mr Beer: Were there any meetings between you or, to your knowledge, other members of the Criminal Law Team with ICL Pathway, later Fujitsu, at this early stage to determine what were the available records and data streams from Horizon in order that Post Office’s disclosure obligations could be met?
Robert Wilson: No.
Mr Beer: Wouldn’t that have been necessary when a national system was being rolled out, involving a new species of evidence across 19,000-odd branches, that may be used a range of prosecution contexts, to understand what are the data stores within this system, which of them are going to be accessed and which of them are not, in order to found a prosecution?
Robert Wilson: I think we got that information via the Investigators, no doubt in their reports, and via the witness statements from the experts and the Fujitsu personnel. So the instructions that we got would have come from those two sources, and we would have understood from the witness statements that, for example, ARQ data was being accessed or transaction logs, or whatever the information was that we were relying on, and were being exhibited via the witness statement and an explanation from the investigator.
And I think that, if I had not understood something, I would have asked the question.
Mr Beer: I’m talking about, rather than an ad hoc and piecemeal process that developed where perhaps a series of emails are exchanged between Investigators and individual Fujitsu staff to say, “Have you got this? Can Dave go and find that? Has Mike got a copy of that”, which we’ve seen, a fundamental understanding, right at the beginning of the process that “These are the data streams, these are the data stores in this new computer system. We will expect, essentially, at a service level for Investigators to find and obtain X material. It isn’t necessary for them to find or obtain Y material”.
Robert Wilson: It may well be that we did have a written explanation of the system but now, looking back, I can’t remember. I couldn’t swear on oath one way or the other. But I never, looking back now, thought that I didn’t understand where they were getting information from and what type of information was being relied on. I don’t think I ever had a memory that, actually, this all needs to be explained to me.
Mr Beer: Presumably that process was one of revelation to you bit by bit, then?
Robert Wilson: I don’t know. I mean, I don’t know. It may be they produced a document that we read and we understood but, as I say, looking back, I couldn’t swear to it.
Mr Beer: In May 2002 you were appointed head of the Criminal Law Team?
Robert Wilson: Yes.
Mr Beer: Who was your line manager at that time?
Robert Wilson: I think it was Catherine Churchard.
Mr Beer: What was her responsibility, what was her job?
Robert Wilson: She was General Counsel.
Mr Beer: Did your line manager remain the General Counsel for the Post Office?
Robert Wilson: No, it didn’t.
Mr Beer: Can you explain the changes, please?
Robert Wilson: Yeah, sure. I don’t know whether Catherine Churchard retired or what happened but, at some point, we were told that the team was going to be disbanded and made redundant. I know that the Security Director at board level argued to retain the team and he was successful.
So, after Catherine Churchard, I believe I reported to Andrew Wilson and I reported to Andrew Wilson for a number of years, I don’t know how long, but, at some point, General Counsel asked to have the team back and I think that was Doug Evans, and I then reported to Doug Evans.
At each stage of the transfers, when I was reporting to Andrew Wilson, I had dotted line to General Counsel, so I attended team leaders’ meetings and such like, so I wasn’t divorced completely from the leadership in the Legal teams. And from Doug Evans – I think he left in about 2011, possibly 2012, and there was a new General Counsel, who I – in fact, in the middle of it, I may well have reported to Tony Marsh for a short period of time when Andrew Wilson retired. In fact, I think that’s right.
Mr Beer: So you reported to the Head of Security?
Robert Wilson: Head of Security, yes. When Andrew Wilson retired I reported to Tony Marsh and then – for a short period and then, after that, reported to General Counsel Doug Evans, until about 2011.
Mr Beer: Did you ever report to the Company Secretary?
Robert Wilson: No.
Mr Beer: Do you remember Jonathan Evans as a name?
Robert Wilson: I do know him but I never reported to him.
Mr Beer: Who, over the period between the year 2000 and the year 2012, was responsible at board level for oversight of criminal prosecutions and confiscation proceedings?
Robert Wilson: Probably Jonathan Evans but I couldn’t swear to that.
Mr Beer: Why would Jonathan Evans in that period have responsibility, by way of oversight, for the conduct of criminal proceedings in any confiscation?
Robert Wilson: Because I believe the Security Director, who I reported to, reported to a board member and, if I remember rightly, it was Jonathan Evans.
Mr Beer: So the Head of Security reported to the Company Secretary?
Robert Wilson: As far as I can recall, yes.
Mr Beer: You’ve told us that it was only for a short period of time that you reported to Tony Marsh.
Robert Wilson: I think so, yes.
Mr Beer: What about other periods of time, then? Who did your report report in to at board level?
Robert Wilson: Um …
Mr Beer: I’m looking for the identity across this 12-year period, so when Horizon really nationally rolled out until when you left in 2012 –
Robert Wilson: Yeah.
Mr Beer: – who in the board would you say had responsibility for the Post Office’s conduct of criminal proceedings?
Robert Wilson: I think Jonathan Evans did initially and, after that, I don’t know. If you could give me some names, I could probably –
Mr Beer: Well, over that 12-year period, there is a large number of names with frequent changes.
Robert Wilson: I never had any dealings with anybody at board level.
Mr Beer: So that was going to be my next question. To what extent did you have access to the board?
Robert Wilson: No, I never had access to the board. I never had any dealings. Well, I say I never had any dealings. I may have got the odd telephone call from somebody now and again, wanting a general answer to a criminal question or something of that nature, but nothing significant.
Mr Beer: Was there any regular reporting by the Criminal Law Team to the board on its prosecutorial activities?
Robert Wilson: No. Not that – no, no there wasn’t. Reports for cases that were concluded went to General Counsel and the Security Director, and possibly somebody else, but I don’t think they even went to board level.
Mr Beer: When you say reports on concluded cases, do I understand you to mean “We’ve prosecuted Mr X or Mrs Y, that went to Z Crown Court, there was a guilty plea or a trial, it resulted in a finding, usually of guilt, and there were these confiscations proceedings, £20,000 recovered”, something like that?
Robert Wilson: Yeah, basically, yes, and I prepared, at the end of the month, a list of number of new cases, cases concluded, which teams they related to, because there were other teams within POL – other than POL, there was Royal Mail, Parcelforce. So I gave, at the end of the month, a fuller description of what had happened in that month, so people could get a picture of what was going on in the team, apart from, as you’ve just been talking about, the individual reports of concluded cases.
Mr Beer: Was that more from a personnel management perspective?
Robert Wilson: Yes, probably, yes.
Mr Beer: Appreciating that you didn’t attend board meetings and, as you said, didn’t have access to the board, what was your understanding of how it, the board, exercised oversight of the Post Office’s prosecutorial function?
Robert Wilson: Via the Security Director. I understand that the Security Director will have gone to board meetings now and again, possibly not every board meeting, but I certainly recall Andrew Wilson telling me information that had happened at a board level meeting. I can’t recall what it was now but I do recall him going to board meetings now and again.
Mr Beer: The Head of Security, Mr Marsh or Mr Scott, reported to the Security Director?
Robert Wilson: I don’t know about Mr Scott. I had very, very few dealings with Mr Scott. The Security Directors I dealt with and I recall were Andrew Wilson and Tony Marsh.
Mr Beer: You’re referring to them as Security Director?
Robert Wilson: Mm-hm.
Mr Beer: By that title, do you mean Head of Security?
Robert Wilson: Yes, Head of Security.
Mr Beer: Rather than a director of the company?
Robert Wilson: Oh, yeah – no – yes, head of Security.
Mr Beer: Was it your understanding that that position, Head of Security, attended board meetings?
Robert Wilson: I think they did occasionally. I don’t think they did every board meeting, no, but I think I do remember Andrew Wilson coming back from board meetings and telling me something that was pertinent at the time.
Mr Beer: Would I be wrong to take from your evidence that there was, from your perspective, modest intrusive oversight of the Post Office’s prosecutorial function by the board?
Robert Wilson: Yes, it was modest.
Mr Beer: It would be modest?
Robert Wilson: I think so. I think we weren’t causing difficulties. I know we’re here because of difficulties. We weren’t causing difficulties in terms of any criticism from any outside authority. We were doing the job. The vast majority of the cases – individuals, pleaded guilty and I don’t think that our heads went over the parapet, effectively.
Mr Beer: So the board were just letting you get on with it; is that the feeling we should come away with?
Robert Wilson: I think so, yes.
Mr Beer: Moving on, you tell us in your witness statement at paragraph 6 – I wonder whether we can turn that up please, it’s page 4. Can you see paragraph 6 and you’re dealing here with the more general rationale behind the practice of bringing private prosecutions?
Robert Wilson: Yes.
Mr Beer: If we go over the page, please, to page 7 – sorry, to page 5. In the second line, second sentence, you say:
“Investigators were often recruited from counter staff because of their familiarity with accounting documents and procedures. It was felt that such in-house knowledge of accounting systems, practices and procedures was difficult to acquire overnight by police officers who had no knowledge of the workings of [the Post Office]. It was therefore not felt appropriate to pass the investigation of crime within [the Post Office] to the police.”
Yes?
Robert Wilson: Yes.
Mr Beer: So the Investigators – and you’re talking about here the Investigators within the Security team, is that right –
Robert Wilson: I am, yes.
Mr Beer: – were historically and usually counter staff, ie counter clerks or the like?
Robert Wilson: They weren’t always. Occasionally we did recruit police officers and I think we did recruit people from outside Post Office Limited, so it wasn’t exclusively people who had had audit functions or whatever within Post Office Limited.
Mr Beer: But the majority – you use the word here “often” – were counter clerks or ex-counter clerks?
Robert Wilson: A lot of them were, yes.
Mr Beer: They were people who had no investigative or prosecutorial experience?
Robert Wilson: No.
Mr Beer: What role, if any, did the Criminal Law Team play in the training of these former counter clerks?
Robert Wilson: We did have a role. We’ve, as part of their training, we arranged mock trials. I can remember addressing new recruits on various different topics and we would support the training wing, if and when needed.
Mr Beer: Was it needed?
Robert Wilson: Yeah, I think that – I was involved in a number of training packages, yes.
Mr Beer: What were the topics for which the Criminal Law Team offered assistance in the training of the former counter clerks who were now the Investigators?
Robert Wilson: I believe disclosure was a big training pack – package.
Mr Beer: So the Investigators were trained in their disclosure duties; is that right?
Robert Wilson: The Policy and Standards Team, as I can recall, prepared some of the training packages for new Investigators and, from time to time, I would have had an input but we had a specific training wing who had a continually rolling function of training, not just the new Investigators, but the existing Investigators, throughout the years.
So – and they also produced the – the training wing also produced, almost on a weekly basis, any amendments to any legislation or procedures that were – that had been decided. So it wasn’t just “Here’s your training”, it was a continual process. And we had what I would call the intranet, where all of the training packages and the processes and procedures and the policy documents were stored, so that the investigators could historically look back and see what was going on. But they weren’t just left to their own devices. As I say, there was a continual process of updating their knowledge.
And I remember going on, for example, a training package throughout the country on the preparation of committal papers because I think we were having difficulties, or we’d identified some problems or some gaps, and so we put together a training package for that.
Mr Beer: So, from your perspective, would you say overall that the training afforded to Investigators, in relation to their duties under the law, was adequate?
Robert Wilson: Well, hopefully more than adequate.
Mr Beer: What epithet would you use to describe it?
Robert Wilson: Well, I would like to think that it was professional.
Mr Beer: So no Investigator could point towards the training and say, “Well, I didn’t know that the law required me to do that because I wasn’t properly trained”?
Robert Wilson: He shouldn’t be able to, no.
Mr Beer: Would you agree that, if Investigators were mainly drawn from a Post Office counter clerk background and, therefore, they had no prior expertise in criminal investigation and criminal prosecutions, it was important that the Post Office’s policies that regulated their activities were clear and precise as to the roles and duties and the obligations that they owed?
Robert Wilson: I think the roles and duties that they had were probably not in the prosecution policies. They were in the processes and procedures manual that the training wing will have put together.
Mr Beer: So there was a high-level policy, there was a process and procedure document –
Robert Wilson: Yes.
Mr Beer: – and then there was some training that trained on that process and procedure document; is that right?
Robert Wilson: Yeah, I mean that’s basically how it went. The prosecution policy was a very high level document and I imagine that most of the information that would have been pertinent for the investigators was in – was in a document with the heading, you know, “Processes and Procedures”.
Mr Beer: If you had any concerns about gaps in investigations or flaws in process, for example a reasonable line of inquiry was not being pursued, what would you do?
Robert Wilson: Well, I’d contact the Investigator directly.
Mr Beer: Would that be it?
Robert Wilson: Well, not necessarily. It depends on what the problem would be. So, for example, what I was referring to earlier, the committals, I remember putting together a package on committals because we were getting statements and exhibits that were all over the place and were not dealt with appropriately, and so we put together a package so, if I’d identified a problem and it was something that I thought was either serious or persistent, then I would contact one of the Investigators in the – not necessarily the training wing but the wing that dealt with processes and procedures, and we would get our heads together and we’d sort the issue out.
Mr Beer: So, to your understanding, between this period of 2000 to 2012, all Investigators ought to have understood their duty of candour when applying for a summons to institute a prosecution?
Robert Wilson: They should have done, yes.
Mr Beer: They ought to have understood their duty to pursue all reasonable lines of inquiry?
Robert Wilson: Yes, it would be implicit in what they’re doing that they should be understanding that, yes.
Mr Beer: I’m asking whether it was explicit, that they were trained that there was a duty under the law to pursue lines of investigation that pointed away from the guilt of the suspect as well as towards it?
Robert Wilson: That would have been included in a training package.
Mr Beer: They would have all understood that it was part of their duty to establish the reliability of the evidence, including the data upon which they were founding a case against the suspect?
Robert Wilson: Again, that would be in a training package and they should have understood that, yes.
Mr Beer: What steps were in place to monitor the professional performance of Investigators against the standards required by the law?
Robert Wilson: Sorry, can you repeat that?
Mr Beer: Yes. What steps were in place to monitor the professional performance of Investigators against the standards required by the law?
Robert Wilson: Well, I think that if there had been a failing, then that issue would have been raised both to myself and the Head of Investigations and, depending what the failure was, it would either have been addressed individually or as a group issue, where we would have put out communications to address any problem.
Mr Beer: So it was only if failings were identified that something would be done? I’m talking about something more systemic and fundamental monitoring the performance of people, in the conduct of their investigations and prosecutorial activities, to ensure that it’s not until something goes wrong that the balloon goes up?
Robert Wilson: Yeah, there was a Casework Management Team where the files from the Investigators were forwarded to the Casework Management Team, who then forwarded them to my team or to me and, part of the case work management team function was to check that the investigators had done what they’re supposed to have done.
I think there was a big checklist which needed to be ticked and I think that, in the event that they hadn’t complied with what the processes and procedures were, then the file would necessarily be returned to the Investigator to address the issue.
So I think this middle function was the Casework Management Team and I guess that, if there’d been a massive failure or something that was pretty serious, then it would have been flagged up to the Head of Investigations and possibly myself.
Mr Beer: So this massive checklist, and we might look at this after the break, was operated by the Casework Management Team who performed a sort of quality control function?
Robert Wilson: Yeah, that’s how I recall it, yeah.
Mr Beer: How many people were in the Casework Management Team?
Robert Wilson: I don’t know. I mean, I think I recall going to Leeds, which I believe is where it sort of ended up, at least two or three times, and I think there were about, if I can remember rightly, probably about six to ten people in it.
Mr Beer: Under whose supervision did they operate?
Robert Wilson: I don’t know who was the head of the team. I can’t remember.
Mr Beer: Were they part of the Security Department?
Robert Wilson: Well, I believe that most of them – but I may be wrong about this – most of them were ex-Investigators or they’d been Investigators and they had been moved into the Casework Management Team. Now, that might not be 100 per cent right, some of them not have been but I think that, at least – I don’t know. I can’t, actually – I’d be making it up.
Mr Beer: Were there any lawyers within that team?
Robert Wilson: No.
Mr Beer: You got the files after they had passed through the Casework Management Team?
Robert Wilson: Yes.
Mr Beer: The three issues that I mentioned – knowledge of the duty of candour, knowledge of the duty to pursue all reasonable lines of inquiry and knowledge of the duty to obtain evidence that established the reliability of the data upon which a prosecution or investigation was founded – were they the kinds of things that the Casework Management Team were checking compliance with?
Robert Wilson: I imagine so.
Mr Beer: Sir, I wonder whether we can take an early break because, in the light of the answers given, I want to show some documents that I don’t think I’m going to be able to right now. So if we took the break early now and came back at 11.20?
Sir Wyn Williams: That’s fine, then, Mr Beer, yeah.
Mr Beer: Thank you.
Sir Wyn Williams: 11.20.
Mr Beer: Thank you.
(11.03 am)
(A short break)
(11.20 am)
Mr Beer: Sir, good morning. Can you continue to see and hear me?
Sir Wyn Williams: Yes, thank you.
Mr Beer: Thank you very much.
Mr Wilson, can we look, please, at POL00119917. You mentioned before the break a system operated by the Case Management Team, which involved checking against standards the files that were submitted to them before they went on to the Criminal Law Team, and you mentioned a big long list, I think, or words to that effect.
Robert Wilson: That was my recollection, yes.
Mr Beer: If you just take your time, just to look at this, does that look like the big long list that you were speaking about?
Robert Wilson: Probably, yes.
Mr Beer: This is an example. We’ve got lots of these where, against the set of criteria, a file is marked, and in the right-hand column a score is given, which if we scroll down, we can see potentially adds up to 100. This Investigator got 94 out of 100 for their file.
Robert Wilson: Yes.
Mr Beer: You see that it says, “Compliance check undertaken by” and it says, “Paul Southin” about five lines from the top in the last line in blue?
Robert Wilson: Yes.
Mr Beer: Would that be somebody in this Case Management Team?
Robert Wilson: No, I think – oh, hang about. Yes, it must have been. I think I recall Paul Southin being an Investigator but he may well have been in the Compliance team as well –
Mr Beer: I see.
Robert Wilson: – later on.
Mr Beer: I see. As you said before the break, there may be former Investigators who have moved on to the Case Management Team?
Robert Wilson: Yeah, that’s my recollection, that some of them will have been Investigators and I’m pretty sure – well, I don’t know. But I think probably more had been Investigators than weren’t, if I can put it that way.
Mr Beer: Okay. If we look at this, if we just go back up, please, we can see that some of the criteria, against which compliance was judged, are administrative in nature, can you see (1), the right label was used?
Robert Wilson: Yes.
Mr Beer: Yes? Number 4, the correct font, namely, it had to be Chevin Light 12, was used?
Robert Wilson: Yes.
Mr Beer: Yes? If you look at number 7, the file was submitted within 12 working days, yes?
Robert Wilson: Yes.
Mr Beer: If you look at, under “Offender … details”, at number 13, “Details of suspect interview and searches as applicable”; “Adequacy of interview”?
So adequacy of interview does suggest some something more than administrative, doesn’t it?
Robert Wilson: Yes.
Mr Beer: A qualitative assessment of the adequacy or inadequacy of a piece of investigative work?
Robert Wilson: Yes.
Mr Beer: Would that be your understanding that this Case Management Team looked at qualitative issues, as well, rather than the more perfunctory issues like font size?
Robert Wilson: Yes.
Mr Beer: Then if we go down, please, to “Post interview details”, can you see, at – I think it’s 19, “Assessment of evidence available to support charges”?
Robert Wilson: Yes.
Mr Beer: Can you see that?
Robert Wilson: Yes.
Mr Beer: Then two on, “Reliability of witness reported”, so seemingly a check over whether the file, the report, contained an assessment of the evidence available to support the charges, and the reliability of any witness, yes?
Robert Wilson: Yes.
Mr Beer: For those things, can we look, please, at what might be an associated policy document, keeping those two things in mind, and look at POL00118101. You’ll see this is a Compliance document or “Guide to the Preparation and Layout of Red Label Case Files” for the Security and Operations Team?
Robert Wilson: Yes.
Mr Beer: Can we go forwards, please, to page 7 and look at the foot of the page, please. Thank you. Essentially, these headings in bold, for the most part, match the criteria that we’ve seen in the spreadsheet that we just looked at; do you understand?
Robert Wilson: Yes.
Mr Beer: So the one that we’re looking at, at the moment, was the heading against 19, at the bottom of the page, which is paragraph 1.15, “Assessment of evidence available to support charges”. Then over the page:
“This should contain the investigator’s assessment of the evidence available to support the [charges] detailed in the preamble to the report it should identify conflict interesting evidence statements or admissions and include comment on [the] demeanour of [the] offender, an assessment of their response to questioning, whether [the] full scope of [the] offence has been admitted to and suggested reason as to why [the] crime [was] committed (ie greed [or] gambling).”
I’ve added a few words in there so that it makes sense in English.
Was it your understanding, therefore, that the case file and, in particular, the report within it had to contain the assessment that is set out there?
Robert Wilson: Yes, I think so, yes.
Mr Beer: Therefore, when we read, in the case compliance matrix, assessment of evidence available to support the charges, this is essentially what it’s being judged against?
Robert Wilson: Yeah, I believe so, yes.
Mr Beer: Then if we scroll down to 1.17, which is again the heading – I’ve skipped over “Details of domestic and financial details of offender/s” – “Reliability of witnesses”:
“This should contain the investigator’s assessment as to reliability of any relevant witness or witness statement in the case.”
Again, that matches the heading in the compliance matrix that we just looked at?
Robert Wilson: Yes.
Mr Beer: So far as you can recall, in Horizon cases, did such case files and, in particular, the offender reports within them contain assessments as to the reliability of the data on which the proposed prosecution was to be founded?
Robert Wilson: I don’t know. I – yeah, I don’t know.
Mr Beer: Would you accept that they should have done, that, if it wasn’t a witness-based case, it was essentially a data-based case?
Robert Wilson: Yes.
Mr Beer: An assessment should have been made in the file as to the reliability of the data on which the proposed prosecution was founded?
Robert Wilson: Yeah, yes. I think there was a general assumption that the data was sound.
Mr Beer: Do assumptions wash in the criminal courts?
Robert Wilson: No, they don’t.
Mr Beer: No. What washes in the criminal courts?
Robert Wilson: Well, it has to be certain.
Mr Beer: It has to be evidence?
Robert Wilson: Yeah.
Mr Beer: It has to be evidence based, doesn’t it?
Robert Wilson: Yeah, I don’t know. I don’t know whether Post Office Limited went into that detail. I can’t recall.
Mr Beer: Okay, in the case files that we’ve seen, they don’t.
Robert Wilson: Right.
Mr Beer: Do you accept that, in a case that’s based substantially on evidence produced by a computer, there needed to be an assessment in the file which said, “Our data in this case is obtained from this computer. These are the security controls around that computer, which ensure that it has, as a matter of physical integrity, security. These are the controls that are in place that ensure the information security within the computer. These are, if necessary, the continuity documents that establish the production of the data. We have, on enquiry, found that the system suffers from some bugs, errors and defects. However, the evidence is either that they didn’t cause discrepancies or they didn’t cause material discrepancies in this case”; that kind of assessment was necessary?
Robert Wilson: Yes.
Mr Beer: Thank you, that can come down. Can we turn, please, to Post Office Prosecution Policies and look, please, at POL00030659.
If we just flip to the end of it, please, which is page 4, and scroll down, we can see this is dated December 1997 and produced by Andrew Wilson.
Robert Wilson: Yes.
Mr Beer: What would have been his function at that time?
Robert Wilson: He would be the Security Director.
Mr Beer: Back to the first page, please. You’ve looked at this policy, because it was disclosed to you way back when you wrote your witness statement, and you address it in your witness statement.
Robert Wilson: Yes.
Mr Beer: You will see that it says that it proposes a rationale for prosecution policy, and I’m not going to take you through it in detail but, essentially, it reads like a discussion paper about whether or not the prosecutorial function should be retained by the Post Office or not, yes?
Robert Wilson: Yes.
Mr Beer: Up until this point, 1997, was there a prosecution policy or, to your knowledge, was this the first?
Robert Wilson: I think this was the first.
Mr Beer: If we look at the foot of page 1, under “The Case for Prosecution”, thank you:
“The Post Offices prosecution policy appears to have evolved after a considerable period with little formal evaluation or review.”
Would you agree with that sentiment?
Robert Wilson: Yes, that’s probably right, yes.
Mr Beer: Mr Wilson identifies that the principles underlying prosecution were deterrents and serving the public interest. Then there’s a theoretical discussion of each of those, at the foot of the page and then over the page.
Then he discusses the “Case Against Prosecution” and identifies three factors pointing away from the desirability of the Post Office conducting its prosecutions: costs, adverse publicity and industrial relations consequences, and then there’s a discussion of each of those, which I’m not going to address.
Then if we go to the foot of the page, paragraph 5, “Proposed Rationale for Prosecution”, and he says:
“Work which has already been carried out into the profiling of internal offenders within the Royal Mail enables a rationale for prosecution to be constructed which can inform policy development. In broad terms, offenders can be placed into one of three categories …
“Criminal
“Irresponsible [or]
“Irrational.”
Then he addresses each of the three of them by use of his italics; can you see that?
Robert Wilson: Yes.
Mr Beer: He says:
“The criminal category is involved in theft of mail for personal gain …
“The irresponsible category is usually involved in wilful delay and/or destruction of mail …
“The irrational category are a minority and are characterised by longer service and crimes which are frequently easily detected (eg opening [the] mail … and leaving … debris.”
Then at the foot of the page, he says:
“From the above, it is possible to formulate a prosecution policy as follows:
“The [prosecution] policy is normally to prosecute those of its employees or agents who commit acts of dishonesty against the Post Office for the purpose of illegally acquiring Post Office property or assets, or the property or assets of Post Office customers and clients while in Post Office custody, where this is deemed to serve the public interest. Other wrongdoings will normally be dealt with via the discipline code.”
Was that the prosecution policy until we see the next policy issued in 2010?
Robert Wilson: No, I don’t think so. There was – from my recollection, there was a prosecution policy in 2007.
Mr Beer: Was it, therefore, the prosecution policy until 2007?
Robert Wilson: I don’t know. I would imagine that there would have been a policy in between there at some point. I know that the policies were reviewed every year or they were referred to as being reviewed every year in the later policies.
Mr Beer: That’s a bit of a distinction, isn’t it, that a document says that they were to be reviewed and whether they were in fact reviewed?
Robert Wilson: No, I think that – I think they will have been reviewed because there may have been changes in legislation which would require them to be changed, but I don’t think they were necessarily amended if there was no need to amend them.
So I think on a yearly, annual basis, the – I forget which team it was now. I think it was one of the process teams – I’ve forgotten the name of it now – would review them on an annual basis but not necessarily, as I say, change them.
Mr Beer: Let’s assume that this did remain the prosecution policy –
Robert Wilson: Right.
Mr Beer: – between 1997 and 2007.
Robert Wilson: Right.
Mr Beer: Do you see anything wrong – if we just scroll up so we can see the entire statement of the policy. It’s just the bit in italics. Thank you.
Robert Wilson: This is “The Post Office’s policy is normally to prosecute those of its employees”?
Mr Beer: Yes.
Robert Wilson: I think that’s the Security Director giving his opinion of the position at that time in 1997. I think the policy will have changed when the Code for Crown Prosecutors came out and we followed –
Mr Beer: That was a decade earlier, though, in 1986.
Robert Wilson: Right. So – yes, of course you’re right. Well, I think the later policies were more specific in terms of referring to the Code for Crown Prosecutors and the requirement that was specified in there. For – no, sorry, I’m getting myself confused here.
Mr Beer: Well, is the problem with that statement that it doesn’t say “We’ll prosecute if there’s sufficient evidence to do so”?
Robert Wilson: Yeah, I mean it doesn’t say that. But I think the later policies will have said –
Mr Beer: I’m just looking at the moment of what may be in operation for a 10-year period, ie this document.
Robert Wilson: Yeah, I don’t think that would have been in operation for 10 years though. I think there will have been other policies that possibly have not been identified.
Mr Beer: Okay, then. For however long this operated, would you agree that it’s problematic, in that it appears to assume that somebody is guilty and doesn’t include any evidential test?
Robert Wilson: Yes.
Mr Beer: It contains no reference to the Code for Crown Prosecutors that had been in place for a decade by this time?
Robert Wilson: Yes.
Mr Beer: Thank you. Can we move forward to the 2007 policy that you mentioned, POL00030578. Thank you. If we look just at the foot of the page, it’s at the foot of every page, we can see it is dated 1 December 2007, yes?
Robert Wilson: Yes.
Mr Beer: If we go to the last page, which is page 5, we can see the owner of the policy is set out and those who gave assurance to the policy set out –
Robert Wilson: Yes.
Mr Beer: – which included you?
Robert Wilson: Yes.
Mr Beer: If we go back to page 1, please, and scroll down to 3.1.4. Can you see that reads:
“The conduct, course and progress of an investigation will be a matter for the investigators as long as it is within the law, rules and priorities of the business.”
Robert Wilson: Yes.
Mr Beer: “Investigators will ultimately report to the Director of Security with regard to the conduct of criminal investigations.”
Do you see anything difficult or problematic with that first sentence?
Robert Wilson: The priorities of the business.
Mr Beer: What’s difficult or problematic with that?
Robert Wilson: Well, they should be independent.
Mr Beer: Can we go forward to 3.2.9, please, on page 3:
“Suspect offenders will be prosecuted where there is sufficient evidence …”
I think this is what you were referring to earlier, that later policies included a cross-reference to the sufficiency of evidence:
“… and it is in the public interest in accordance with the Code for Crown Prosecutors.”
In your view, was it sufficient to include a cross-reference to the Code in this way, rather than explaining the way in which the Code operated and was to be carried into effect in the context of a private prosecutor and, in particular, where that private prosecutor was the Post Office?
Robert Wilson: I think the Code for Crown Prosecutors would have been more fully explained in the training information that was passed to Investigators and new Investigators. And the Code itself will have – certainly in my team, every lawyer had a copy of the Code, all of the decision makers had a copy of the Code and, rather than break it down in what I would say would be a high-level document, in this document, the Code itself stood on its own but also will have been more fully explained in the training information, is my recollection.
Mr Beer: Was it recognised that special issues may arise in the case of an organisation that was the alleged victim of an offence, a possible witness to the offence, where that organisation had investigated the offence, would then decide whether to prosecute the offence and, if so, go ahead and prosecute the offence?
Robert Wilson: I think we tried to divorce the decision to prosecute from the investigation function and my function by putting it into the business for a more objective look at the decision.
I think that, prior to 1997, the decision to prosecute was made by a senior investigator within the investigation part of the business and, subsequently, in 2012, it reverted back to the Investigator and I think that was because it was imagined that, with the separation of Post Office and Royal Mail, that, in order to obtain consistency because people were changing their jobs within POL and people were moving, people were leaving, that it went back to the Investigator.
But that was purely for consistency and, within that period, the role swapped between, I think, the Head of Human Resources or nominated individuals within the business.
Mr Beer: We’re going to come in a minute to look at that decision-making responsibility?
Robert Wilson: Right, yeah.
Mr Beer: But are you saying that, essentially, in summary, that the way the Post Office addressed the fact that it was victim, witness, investigator, decision maker and prosecutor, all in one, was to get the lawyers to make decisions on prosecutions?
Robert Wilson: So far as the evidence was concerned, yes.
Mr Beer: And to get somebody who wasn’t involved in the investigation to make the decision on public interest?
Robert Wilson: Yes.
Mr Beer: What this does is it says decisions will be made in accordance with the Code for Crown Prosecutors and everyone had a copy of it?
Robert Wilson: Yes.
Mr Beer: Everyone relevant had a copy of it?
Robert Wilson: Yes.
Mr Beer: Was there anything which sat between those two poles, “We’re going to apply the Code”, “Here’s a copy of the Code”, which explained the particular difficulties that may arise in an organisation that would be investigating and prosecuting theft from itself.
Robert Wilson: I don’t think that that specifically will have been addressed but we did address training for the decision makers. Myself and the Head of Investigations did provide training to those people who were making the decision and I was the contact point for anyone who was a decision maker, if they had an issue or a problem or wanted to discuss anything.
Mr Beer: What would you train them as to the permissibility or impermissibility of taking into account the “priorities of the business” in such decision making?
Robert Wilson: Well, I don’t – yeah, I don’t think that the priority of the business I would have trained them on at all. As far as I was concerned, the decision had to be an independent decision.
Mr Beer: Can we turn forward to 2010, please, and look at POL00030580.
If we look, please, at the bottom right-hand corner of page 1, we’ll see that it’s dated 4 April 2010; can you see that?
Robert Wilson: Yes.
Mr Beer: If we just scroll up, please, the owner is said to be Head of Security, who at that time was Mr Scott?
Robert Wilson: Yes.
Mr Beer: What did it mean to be the “owner” of a policy?
Robert Wilson: Well, he will have been responsible for ensuring that his Investigators adhered to the policy and would have been responsible for checking that it was accurate in terms of – if it was dealing with legislation.
Mr Beer: If we scroll down, please, and look at “Assurance” and “Authorised”, on “Assurance” what would you understand it to mean if a person had given assurance for a policy?
Robert Wilson: That they would have read the policy, be happy with the policy, happy that it addressed any issues, and that was not inaccurate and have checked that it complied with any legislation that was appropriate.
Mr Beer: Again, what would you understand it to mean if somebody is shown as having authorised the policy?
Robert Wilson: Well, effectively, I think I would have thought that that was that they’d written the policy and certainly were – having written the policy or got somebody to write it, that they were responsible for it.
Mr Beer: You see in the right-hand column there it’s got a date for both of those things to happen, ought they to be completed against “Assurance” and “Authorised”, right-hand side, date?
Robert Wilson: Yeah, meaning 4 April 2010?
Mr Beer: No, do you see under the words “Assurance” and “Authorised”?
Robert Wilson: Oh, right, yes.
Mr Beer: Yesterday Mr Scott told us that this means nothing because the date hasn’t been included against “Authorised” or “Assurance”.
Robert Wilson: So, effectively, he’s saying that this is a policy that didn’t hit the public domain?
Mr Beer: Well, he said it – he called it a draft.
Robert Wilson: Oh, right. I don’t know whether it was or it wasn’t. I mean, I don’t know – I don’t think my name is on that policy.
Mr Beer: No, it hasn’t got a review section in it, unlike the last one.
Robert Wilson: I don’t know. Having not had any responsibility for it, is what I assume happened. I can’t contradict or add any value to what you’ve just told me.
Mr Beer: Again, if we go forwards to page 3, please, we see the policy set out. Under the heading, “Protecting the Business”, it reads:
“Highlighting crime facilitators, investigators will identify (i) non-compliance with security and operational procedures, (ii) non-compliance with the code of business standards (iii) failings in management control and (iv) shortcomings in physical security.”
Then under “Conduct of Investigations”:
“The conduct, course and progress of an investigation will be a matter for the investigators as long as it is within the law, rules and priorities of the business. Investigators will ultimately read to the Head of Security with regard to the conduct of criminal investigations.”
Again, do you identify the same difficulty with that?
Robert Wilson: Yes, I would.
Mr Beer: Can we move forwards, please, to POL00030598. This is January 2011.
If we scroll to the foot of the page, please. We can see the date of January 2011; can you see that?
Robert Wilson: Yes.
Mr Beer: In the top right, as well, “V2”, January 2011.
Robert Wilson: Yes.
Mr Beer: If we scroll down to “Standards”, please, thank you:
“The general standard is to prosecute those whose suspected offences significantly damage the public interest. Compliance with the Code for Crown Prosecutors will ensure that inappropriate prosecutions are not pursued.”
Then at 4.3:
“The … Criminal Law Team will be familiar with both the evidential and the public interest tests in the Code … and advise accordingly.”
Just in relation to that line, 4.1 the Post Office will “prosecute offenders whose offences significantly damage the public interest”, was that meant to add a gloss to what is the public interest test?
Robert Wilson: I don’t think that would have been adding a gloss.
Mr Beer: Do you know what –
Robert Wilson: I don’t think it would have been put in there to add a gloss. I think it’s probably – the word “significantly” shouldn’t have been added.
Mr Beer: Well, also, “significantly damage the public interest”, whereas the public interest test is rather different to that.
Robert Wilson: Yeah.
Mr Beer: It’s whether it is in the public interest to prosecute –
Robert Wilson: Yes, exactly.
Mr Beer: – rather than whether the offence itself significantly damages the public interest.
Robert Wilson: Sorry, I understand what you’re saying, yeah. Yes, I agree.
Mr Beer: That isn’t the test within the Code for Crown Prosecutors?
Robert Wilson: No.
Mr Beer: Thank you. That can come down.
In your witness statement, you state that policies were drafted by the Post Office. Who in the Post Office was responsible for drafting policies relevant to criminal investigation and prosecution?
Robert Wilson: I think, generally speaking, it would be the Security Director, although there were a couple of policies I understand my name is on. I can’t remember the year. But I can remember why it was probably delegated to me and it was because we’d had a problem in one of the businesses where the decision makers had effectively put people back on duty, despite the fact that we’d recommended that the evidential test had been met and, I think, because of that, myself and the Head of Investigations agreed that an additional clause should go in that particular policy that I signed my name to.
Mr Beer: You also tell us in paragraph 9 of your witness statement that the policies were owned in the main by the Security Directors at the time of their implementation?
Robert Wilson: Yes.
Mr Beer: That is Messrs Wilson, Marsh and Scott?
Robert Wilson: Yes.
Mr Beer: You say that your role was to advise on policies. What would that consist of?
Robert Wilson: Well, that would be basically, if there had been any change in legislation, any requirements that needed to be altered or removed and generally given oversight to what was being written.
Mr Beer: In all of these policies, we don’t see any mention of, for example, the duty of candour, the duty to pursue reasonable lines of inquiry and the disclosure obligations of a prosecutor?
Robert Wilson: Yeah, disclosure was a massive topic and I think that the idea of having the policy was to have a very short, sweet, high-level document that somebody who was a third party could read and understand. And that, therefore, disclosure will have been dealt with by the training wing in a much more comprehensive way than to add it into the policy. I think we – the decision would have been to keep them separate.
Mr Beer: But, for example, “We will comply with the CPIA and the Code issued thereunder” or “We will comply with the Attorney General’s Guidelines on disclosure”, and then updating when new guidelines were issued in 2000, 2005, 2010, for example, not even those cross-references?
Robert Wilson: No. I think it was regarded as a ring-fenced topic that needed to be looked at on a regular basis and no doubt amended, as and when the Attorney General made new guidelines, or whatever.
Mr Beer: You tell us that each policy was reviewed annually. What did the annual review consist of?
Robert Wilson: Well, I think, the old policy will have been looked at and checked and a decision would have been made: is it fit for purpose for continuing for another year or do we need to add or detract from it?
Mr Beer: Who undertook that annual review?
Robert Wilson: I think Ray Pratt was Head of the Policy and Standards Team at the time.
Mr Beer: Was it the function of the Policy and Standards Team, then, to undertake the annual reviews rather than –
Robert Wilson: I believe so –
Mr Beer: – the Criminal Law Team?
Robert Wilson: No, I believe it will have been – the Policy and Standards Team will have reviewed it on a yearly basis. He may well have come and spoken to me about it and asked a view.
Mr Beer: Can we look, please, at paragraph 9 of your witness statement, which is on page 6. Do you see halfway through, you say:
“My role was to advise the Security Director and critique the content of those policies. I was also required to review the existing policies and advise on any changes that may be [required]. Each policy that was developed was reviewed annually but was not necessarily changed each year.”
Just stopping there, doesn’t that suggest that it was your responsibility to review and critique the content of policies, advise on changes and to do so annually?
Robert Wilson: Yeah, no, it does. But I think what would happen was, in reality, that Ray Pratt would come to me and say, “We need to have a look at the policy again”, and we would sit down and look at the policy. And, from a legal perspective, that side of it would have been my responsibility.
Mr Beer: So for the years that, by way of example, the policies said that in deciding on prosecutions or investigations regard is to be had to the priorities of the business, that was simply overlooked, was it?
Robert Wilson: Yeah, I think so, yes.
Mr Beer: Or did that, in fact, reflect the reality that the priorities of the business were an important element in deciding on what to investigate and who to prosecute?
Robert Wilson: No. I don’t think – the business interest was not of any concern to my team.
Mr Beer: We’ve seen a series of documents identifying over the years – I’m not going to take you to them now – objectives being set for the Security Department to reduce the loss to the business through investigation and prosecution?
Robert Wilson: Right.
Mr Beer: Did any of that filter through to your team’s decision making?
Robert Wilson: I don’t believe it did no.
Mr Beer: In the last line here, you say:
“I was responsible for seeing that any stipulations included in the policies were adhered to.”
That may be an incredibly broad statement.
Robert Wilson: Yes.
Mr Beer: What did you mean by it?
Robert Wilson: Well, if we saw a file that was outside the policy, then that would be my responsibility to identify and address.
Mr Beer: You’ve written that in an expansive fashion there, which might be taken to include responsibility for ensuring that all of the Investigators were doing all of the things that the policies required them to do. That plainly wasn’t the case?
Robert Wilson: No, I – no. That wouldn’t have been the case, no.
Mr Beer: So what did you, in fact, mean, then?
Robert Wilson: Well, what I mean is that, at a high level, ultimately I was responsible for every prosecution, it was my call and that, because it was my call and because it was my responsibility, if I’d identified anything that was outside the policy, then I needed to deal with it.
Mr Beer: You said there “it was my responsibility and my call”.
Robert Wilson: Yes.
Mr Beer: What did you mean by that?
Robert Wilson: Well, I was head of the Criminal Law Team so I was responsible for the prosecutions. At any particular stage, I could be summonsed into court, maybe a Crown Court – which did actually happen on one occasion – and I couldn’t say, “Well, this is the Investigator’s fault”. I had to admit any responsibility if there was a problem because it – I was in charge.
Mr Beer: When you said, “it was my call”, did you mean it was your call to decide whether to prosecute or not?
Robert Wilson: No, no, no, not that.
Mr Beer: What was your call, then?
Robert Wilson: My call was I was responsible for every prosecution that we signed our name to. That’s what I mean.
Mr Beer: Can we turn to the decision maker in prosecutions then, please, and can we turn to paragraph 6 in your witness statement, which is on page 4.
You set out for us helpfully here – and, in fact, it’s just above that. It’s paragraph 5, at the top of the page, thank you.
You set out for us helpfully here the prosecution decision maker and you say, when you first came into the CLT:
“… the decision to prosecute was taken by Senior Investigation Managers … The 1997 policy references to the decision maker as being from the Personnel Department of each Business Unit following advice from the [Criminal Law Team]. This later changed to a nominated representative in the Business [that’s the policy of April 2010]. The [2011 policy] specified the decision maker as the Senior Security Manager for [the Post Office].”
Just breaking that down, in 1997 until you joined, the decision maker on whether to prosecute was a member of the Personnel Department?
Robert Wilson: Yes.
Mr Beer: So from Human Resources?
Robert Wilson: Yes.
Mr Beer: It says, “from each Business Unit”. What does that refer to in this context?
Robert Wilson: Well, the business units were Royal Mail, Post Office Limited, Parcelforce. I think there were just the three.
Mr Beer: So somebody in Personnel, in our case, from Post Office Limited?
Robert Wilson: Yes. Ah, now, no, I think – some of the prosecution policies refer in some of the – in one of the paragraphs towards the end of the policy that Post Office Limited adhered to the general Royal Mail policy but also had their own specific guidelines processes and procedures, and I think it’s a paragraph towards the end of the 2007 and 2011 policies.
Mr Beer: We’ll come to that later. At the moment we’re just dealing with 1997 –
Robert Wilson: Right, okay.
Mr Beer: – and decision maker from Human Resources.
Robert Wilson: Yes, that must be right, yes.
Mr Beer: So did the person from Human Resources have a copy of the Code for Crown Prosecutors?
Robert Wilson: Yes, yes, they were trained specifically by myself and Phil Gerrish, who was Head of Investigations. We went around the country. We prepared a – what was a dummy investigation file. We – and we prepared a dummy standard letter that the – one of the solicitors would have written, in terms of the evidence and the public interest, and we gave them a copy of the Code for Crown Prosecutors and we explained – we went through and explained what to look for in the file, what to look for in the Code and went through the public interest test that was in the Code.
Mr Beer: That dummy letter, was that essentially a template for them to issue?
Robert Wilson: No, that –
Mr Beer: – if they decided to prosecute?
Robert Wilson: No. The dummy letter was a letter that they would receive on the papers that had been written by one of the lawyers authorising prosecution – sorry, providing information about the evidence. They were the one who authorised the prosecution.
Mr Beer: Do you know what the rationale was for giving the prosecutorial decision-making function to people within HR?
Robert Wilson: Yeah, I think it was basically Andrew Wilson had identified a team that was independent of the Investigation team and that could give an overall view of what was in the public interest; somebody who was independent, basically.
Mr Beer: So these people would be looking at the offender report that they were given and all of the underlying material, witness statements and exhibits; is that right?
Robert Wilson: Yeah, so they’d be looking at a complete file.
Mr Beer: They would be expected to read the witness statements and the exhibits?
Robert Wilson: Um, actually – I – no. I don’t – I can picture the file in my brain, which seems like a large file but it may not have been. It may have simply been a truncated file.
Mr Beer: In what respect was it truncated? What did it not include?
Robert Wilson: Yeah, well, their decision was whether it was in the public interest or not. They weren’t there to look at the evidence in terms of whether there was sufficient evidence. We –
Mr Beer: Hold on. Why was that –
Robert Wilson: Well, because –
Mr Beer: – and where does it say that?
Robert Wilson: Because the lawyer was the person who made the decision on whether there was sufficient evidence to prosecute. They were simply deciding on whether it was in the public interest.
Mr Beer: Right, and so the decision on sufficiency of evidence had already been made?
Robert Wilson: Yes, effectively, the lawyer had made the decision that the evidence was sufficient to prosecute. What we wanted from them was to make an independent decision on the public interest test.
Mr Beer: What material were they given in order to make that decision?
Robert Wilson: Well, yeah, following your question before the last one, I don’t know whether they did get a full file now but they got a version of the file.
Mr Beer: What was the version of the file?
Robert Wilson: I imagine –
Mr Beer: – they got?
Robert Wilson: – it was information about the alleged crime, so it will have been, I guess, a report, possibly the interview, maybe one or two other documents. I can’t remember.
Mr Beer: So they made no decision at all on evidential sufficiency?
Robert Wilson: No.
Mr Beer: That decision had already been taken by a lawyer?
Robert Wilson: Yeah, the lawyer had already – effectively saying there was sufficient evidence to prosecute, yes.
Mr Beer: Your statement says that they would take the decision following advice from the Criminal Law Team. Was that advice about the public interest test too?
Robert Wilson: Yes. Usually, the advice would be pretty limited in terms of the size of the theft or any other information that was pertinent.
Mr Beer: Can we go, please, to POL00030659. And look at page 4, please, under paragraph 6, “The Prosecution process”. This is the 1997 Andrew Wilson policy. It reads:
“In order to streamline the process and to facilitate a consistent approach, it is recommended that a single point within the Personnel Department of each Business Unit should make decisions on prosecutions, following advice from Legal Services Department as to the likelihood of success and the potential for embarrassment to be caused to the Post Office.”
That’s rather different from how you explained it just now, isn’t it?
Robert Wilson: Yeah, I mean, this is a policy in 1997 that –
Mr Beer: I’m only dealing with the 1997 policy at the moment.
Robert Wilson: Right.
Mr Beer: I’ve not moved forward to 2007, to 2010 or 2011.
Robert Wilson: Yeah, that’s not my understanding of what actually happened.
Mr Beer: Because this, on its face, suggests that the HR person is going to make all decisions on prosecution, yes? It doesn’t divide it up into –
Robert Wilson: No, it doesn’t.
Mr Beer: – sufficiency and public interest, does it?
Robert Wilson: I’m not sure how you describe this document, the words that you used when you actually described the document. But this, for me, is not a prosecution policy document; it’s a paper that –
Mr Beer: I was taking – I mean, I described it as a discussion paper.
Robert Wilson: Yeah.
Mr Beer: In your witness statement, you say, “The 1997 policy refers to the decision maker as being from the Personnel Department” –
Robert Wilson: Yes.
Mr Beer: – referring to this.
Robert Wilson: Yes, I accept that it was the policy that Andrew Wilson put out but I think that you are accurate in what you say: it’s more of a discussion document than a proper policy.
Sir Wyn Williams: Sorry to intervene but does that mean that there was no written policy, at least that the Inquiry has discovered, until 2007?
Robert Wilson: Well, sir, I think there were policies. Whether they’ve been discovered or not and where they’re lurking and what year they were prepared, but there was – you know, I’m pretty sure there was more than that, but I can’t tell you when or where they are. And I can’t believe that it went from 1997 to 2007, 10 years, without a prosecution policy being in place, a proper one.
Sir Wyn Williams: Forgive me, but the impression I’m getting from you is that this document itself did not become, in the formal sense, a policy. It was, as Mr Beer and you have discussed, more in the nature of a discussion paper.
Robert Wilson: Well –
Sir Wyn Williams: So that would mean that, for very many years, so far as we know at the moment, let me put it in that way – or in case other people know more than me, so far as I am aware – there is no written adopted policy covering the period 1997 to 2007.
Robert Wilson: Yes, sir, that appears to be the position, yes.
Mr Beer: We can look at paragraph 7 to see what the nature of this document is for a bit of further help. It says:
“The proposals in this paper have been formulated [et cetera]. Personnel Strategy Steering Group are invited to endorse them as Post Office POLICY”, in capital letters.”
But I don’t think we’ve got a document that either carries that into effect or says, “No, something different is going to occur”.
So, just on paragraph 6 as it’s worded, it would be wrong to take from that that the HR people were making decisions about both limbs of the test, correct?
Robert Wilson: Yes, correct.
Mr Beer: It would be wrong to take from that that the Legal Services Department were giving advice to the HR team about sufficiency of evidence. They were taking decisions on sufficiency of evidence?
Robert Wilson: Yes, the Criminal Law Team were taking decisions.
Mr Beer: Thirdly, it would be wrong to say that the Criminal Law Team were giving advice as “to the potential for embarrassment to be caused to the Post Office as a relevant consideration”?
Robert Wilson: Yeah, I can’t – I don’t recall ever doing that.
Mr Beer: Can we move forwards then, please, to 2007, which we’ve looked at already. It’s POL00030578. It’s page 3 and paragraph 3.2.9:
“Suspect offenders will be prosecuted where this sufficient evidence and it is in the public interest in accordance with the Code for Crown Prosecutors. Decisions to prosecute in [non-CPS] cases will be taken by nominated representatives in the business with consideration to the advice provided by the Royal Mail Group Criminal Law Team.”
So from 2007, taken out of the hands of Human Resources; is that right?
Robert Wilson: Yes, but it was, again, somebody within the business. I think it was – the wording was used is “nominated representative”?
Mr Beer: Yes. Who were the nominated representatives within the business –
Robert Wilson: In 2000 –
Mr Beer: – from 2007 onwards, taking decisions on prosecutions?
Robert Wilson: I don’t recall which team was nominated representatives. I can’t recall.
Mr Beer: As a matter of practice, from 2007 onwards, who was taking decisions on whether a subpostmaster or counter clerk should be prosecuted?
Robert Wilson: Somebody outside of the Investigation team.
Mr Beer: But who?
Robert Wilson: I don’t remember which team it was.
Mr Beer: But they were now taking decisions on both limbs of the test; is that right?
Robert Wilson: No.
Mr Beer: What was happening, then?
Robert Wilson: Well, it was the same as before. Basically, the Criminal Law Team would advise on the evidence and, if there was sufficient evidence with a realistic prospect of securing a conviction, the papers would then go to whoever was the nominated representative within the business to decide on the public interest factor.
Mr Beer: So this is wrong too?
Robert Wilson: Is it wrong?
Mr Beer: Well, this appears to suggest that both limbs are being taken by this nominated representative – sorry, both limbs of the test are being considered by this nominated representative of the business but that’s with consideration to the advice provided by the Criminal Law Team. Whereas, on your account, what it should say is “There are two limbs to the test, evidential sufficiency and public interest. The Criminal Law Team will take decisions as to the first limb, sufficiency of evidence, and will make a decision as to whether there’s a realistic prospect of conviction”. Full stop. “A nominated representative of the business will take decisions as to the second limb of the test, the public interest test, in accordance with the Code for Crown Prosecutors. They may do that by considering the advice provided by the Criminal Law Team”.
Robert Wilson: Yeah. The nominated representative didn’t take decisions on the evidence. It was purely the public interest test.
Mr Beer: So this policy doesn’t represent reality either?
Robert Wilson: Not on that wording, no.
Mr Beer: Can we turn, please, to September 2008 and POL00030800. Can you see that you’re the owner of this policy?
Robert Wilson: Yes.
Mr Beer: It says it was dated or created in September 2008 but it’s effective from two and a half years later?
Robert Wilson: Yes.
Mr Beer: Can you help us with what’s happened there?
Robert Wilson: Basically, I think that what that means is that, in September 2008, this policy came to fruition and then, between 2008 and 2011, it will have been reviewed each year but this, in 2011, was being reissued.
Mr Beer: I see. So the update was effective from April 2011, albeit the policy in a potentially different form had been created from and was effective from September 2008?
Robert Wilson: Yeah, I think that’s what this means, yes.
Mr Beer: Okay, let’s take this as being effective from September 2008 then and can we turn to the second page, please, and look at paragraph 4, and 4.1:
“The decision to prosecute Royal Mail Group investigation cases in England and Wales will be reached in agreement between the Human Resources Director for the affected business unit or his or her nominated representative, the nominated representative from the Investigation team and the lawyer advising.”
Can you see this is a yet further difference from that which we’ve seen before?
Robert Wilson: Yeah, I mean, I think what’s – what that’s saying is, effectively, the lawyer will advise, and the – again – I mean, it’s not worded in this way, but again, the Human Resources Director will make the decision.
Mr Beer: Which decision?
Robert Wilson: On the public interest test.
Mr Beer: Again, it doesn’t say any of that, does it?
Robert Wilson: No, it doesn’t say that.
Mr Beer: So this is the third policy that we’ve looked at that doesn’t say what it should; is that right?
Robert Wilson: That’s right.
Mr Beer: So how has that come about? You, I think, wrote this?
Robert Wilson: Yeah, I – I don’t know how it’s come about. It would have been so easy to put it in more appropriate wording.
Mr Beer: But you’re telling us that’s what written as the prosecution decision-making policy here is not correct, in that it did not reflect reality?
Robert Wilson: Well, in one sense, the Human Resources Director will reach the decision to prosecute because he has the final decision on whether it’s in the public interest. And the lawyer was advising that the evidential test had been met, so it just is not specifically referring to those two facts.
Mr Beer: Well, it’s saying that it’s a three-way decision, in which there must be agreement, and it doesn’t divide the test into two. Correct?
Robert Wilson: Yes.
Mr Beer: To what extent did a nominated representative from the Investigation team, in fact, participate in decision making on either evidential sufficiency or the public interest?
Robert Wilson: They – I don’t know whether this is one of the policies which changed the wording in relation to where somebody had been placed back on duty or not. But if this was one of the policies, I think the wording for that included the Head of Investigations and myself, as being – advising the nominated representative.
This I what I referred to before where a number of individuals were put back on duty and effectively precluded us pursuing a prosecution.
Mr Beer: Can I ask the question a different way again. Did a member of the Investigation team participate – sorry, a nominated representative from the Investigation team participate in decision making on evidential sufficiency?
Robert Wilson: No.
Mr Beer: Why does it say that they do?
Robert Wilson: The only reason I can think of is where, as I just pointed out, that we had this problem but, no, they didn’t.
Mr Beer: Did a nominated representative from the Investigation team participate in decision making on the public interest?
Robert Wilson: No.
Mr Beer: Why does it suggest that they do?
Robert Wilson: It shouldn’t have.
Mr Beer: But why does it? Why is it, in almost every material respect, wrong?
Robert Wilson: I don’t know.
Mr Beer: Can we move forwards, please, to January 2011, and we looked at this before. It’s POL00030598. Remember, we looked at this, January 2011. If we go down to paragraphs 4.3 and 4.4, which is at the foot of the page, 4.3:
“The … Criminal Law Team will be familiar with both the evidential and the public interest tests in the Code … and [will] advise accordingly.
“The … Human Resources Director, or in Post Office Limited cases the Senior Security Manager …”
Just shopping there, the cases that we are considering are all Post Office Limited cases –
Robert Wilson: Yes.
Mr Beer: – so it’s the Senior Security Manager that we are considering?
Robert Wilson: Yes.
Mr Beer: “… will act as the ‘Decision Maker’ in authorising prosecutions or not. All Decision Makers will be familiar with evidential and the public interest tests of the Code for Crown Prosecutors and make decisions accordingly.”
The document embeds the Code in it and draws attention to the pages on which the two tests are set out. So does it follow that, from January 2011 onwards, the Senior Security Manager took all decisions as to authorise a prosecution and they took decisions both as to evidential sufficiency and public interest?
Robert Wilson: It shouldn’t have been evidential.
Mr Beer: So this is wrong too?
Robert Wilson: Yeah. The lawyer would have done that. But they did take the overall decision whether to prosecute or not.
Mr Beer: So, again, this should bifurcate the process between evidential sufficiency and public interest, saying that evidential sufficiency is the decision of the lawyer and public interest is the decision of the Senior Security Manager?
Robert Wilson: Yes.
Mr Beer: So all relevant policy documents failed to describe accurately the Post Office’s prosecution decision-making process; is that right?
Robert Wilson: Yes.
Mr Beer: Can we take that down, please, and move on.
In paragraph 5 of your witness statement, perhaps if we turn that up, which is on page 3 of your witness statement, you say:
“The [Criminal Law Team’s] role so far as the policies and practices relating to the prosecution of subpostmasters, managers, assistants and Crown Office employees was to assess the evidence obtained, independently and consider whether the evidence was reliable and credible.”
Yes?
Robert Wilson: Yes.
Mr Beer: That mirrors an answer to a couple of questions that I asked you earlier about whether the lawyer was to include, as part of their function, an assessment of reliability and credibility of evidence.
In cases founded on Horizon data, did the lawyer’s function, therefore, include an assessment of whether the Horizon data was reliable and credible?
Robert Wilson: Yes.
Mr Beer: Did it include that duty, even if the suspect had not suggested in interview or otherwise that there was likely to be or potentially a problem with the Horizon system?
Robert Wilson: Yes.
Mr Beer: Is that because of the answer that you gave earlier: that if you’re founding a prosecution on computer-based evidence, you need to assess the reliability and credibility of the evidence produced by the computer?
Robert Wilson: Yes.
Mr Beer: Is it right that there was some resistance within the Criminal Law Team to the CPS prosecuting any cases involving Horizon data?
Robert Wilson: Yes, we would prefer to have prosecuted our own cases.
Mr Beer: Why was that?
Robert Wilson: Well, because we – we had a team of investigators who were familiar with the processes and procedures in Post Office Limited, and we felt that we, of course, were familiar with the prosecutions and we thought it would be easier for us to continue the prosecutions. I mean, I know that some CPS did actually prosecute our cases but, if they wanted to retain the papers, then they would retain the papers and that was the end of it.
Mr Beer: Can we look, please, at POL00106867, please. This is a long email chain. Can we look at page 7, please. We’re going to come back to this chain later on today but can we see here an email from you to Sue Lowther, Andy Hayward, Dave King, Dave Posnett and David Smith, that’s David X Smith – yes –
Robert Wilson: Yes.
Mr Beer: – dated 9 March 2010. You say:
“We have additional difficulties in relation to challenges to Horizon. Today I have been made aware of a prosecution being conducted by the CPS where Horizon is being challenged. The case may already have been identified by you. The difficulty however will be our lack of control over any case that’s not being prosecuted by my team.”
What were the additional difficulties you referred to in the first line?
Robert Wilson: Well, it would be to do with whether the police could obtain the relevant information from Fujitsu, whether they would know where to obtain the evidence in relation to the – that they would need in relation to the prosecution and, basically, how the system worked, whether they would be able to glean enough information to sustain the prosecution.
Mr Beer: This exchange here is all in the middle of a discussion, I think you’ll be aware, over what, in the title is described as “Horizon disputed cases”, and whether to get in an external reviewer to validate the robustness of Horizon?
Robert Wilson: Yes.
Mr Beer: If there was no concern or question about Horizon’s integrity being able to be evidenced in court, why were you expressing a concern that you would lack control over any case that isn’t prosecuted by your team?
Robert Wilson: Well, it depended how the CPS would react to the prosecution and react to requests for disclosure.
Mr Beer: But, Mr Wilson, if the CPS were applying the same Code tests, why would the Post Office be concerned about any question of Horizon integrity being raised in a CPS-led prosecution?
Robert Wilson: Because they might not know where to go to to obtain the evidence.
Mr Beer: You could tell them, “Just go off to Fujitsu, they’ll help you out like they help us out”?
Robert Wilson: Yes, I could, if they asked a question, yes.
Mr Beer: You refer in the last paragraph to the “lack of control”. In what way did your team exert control over prosecutions involving Horizon challenges?
Robert Wilson: Well, our control would be over the Investigators and whether they’d obtained sufficient evidence.
Mr Beer: Were you concerned that, if the CPS were involved in cases concerning challenges to Horizon integrity, that the control that your team exerted over the revelation of problems with Horizon integrity would be lost?
Robert Wilson: I don’t think we were controlling the revelation of Horizon issues.
Mr Beer: Is this a reference to the need to close down challenges to the integrity of Horizon –
Robert Wilson: No.
Mr Beer: – to protect the position or the commercial position of the Post Office?
Robert Wilson: No.
Mr Beer: So why couldn’t the Post Office just signpost the CPS, if it was necessary, to Fujitsu?
Robert Wilson: Well, we could have done, if they’d asked us the question – asked the question.
Mr Beer: You think that they wouldn’t ask the question?
Robert Wilson: Well, I don’t know what they would have asked. All I think that had happened here is I’d been told that the CPS were prosecuting one of the cases. So I’m not sure that I even knew where it was at the time.
Mr Beer: Were you essentially highlighting a red flag or raising a red flag here by saying, “Hold on, we can’t just control our own prosecutions, the ones conducted by my team. If we start independently investigating Horizon through the use of an external expert, we’ve got to take into account what the CPS might do with such evidence”.
Robert Wilson: No, I mean, I can remember speaking to the Crown Prosecution Service about some of our cases that they had but I would speak to them because I had knowledge of where they were and who they are and I had a contact point and, no doubt, that was found out by the Investigator. So I’d ring them up and have a discussion. So I was perfectly happy to help the CPS if they needed assistance.
Mr Beer: That can come down, thank you.
Can we turn to a different topic, disclosure. How did you and your colleagues in the Criminal Law Team supervise the conduct of the disclosure process in criminal proceedings?
Robert Wilson: You mean on an individual case basis?
Mr Beer: Yes. Yes, if you can describe what processes were in place, the roles undertaken by your team?
Robert Wilson: Well, we would receive the case papers from the investigator and he would be asked to prepare a schedule of non-sensitive unused material and highlight whether there was any material that undermined or assisted – undermined our case or assisted the defence. And, when the case had been committed for trial, we would receive defence case statements from the defence and we would submit those to the Investigator to identify any material that required to be disclosed.
If there was any issue in relation to the defence statement and it needed explaining, we would contact the solicitor and request an explanation. We would resubmit any papers to the defence that provided additional disclosure that the Investigator had identified from the defence statement and we would keep the case continually under review until its conclusion.
Mr Beer: Thank you. In all of that, you mentioned going back to the Investigator. You didn’t mention a Disclosure Officer.
Robert Wilson: Well, yeah, the Disclosure Officer could be the Investigator, normally was the Investigator. If the case was particularly complex or voluminous, then a separate Disclosure Officer would be designated to deal with disclosure on that particular case.
Mr Beer: Did that happen in practice?
Robert Wilson: Yes.
Mr Beer: Was the process any different in cases which involved a challenge to the integrity of Horizon data?
Robert Wilson: No, I don’t think so.
Mr Beer: Were any special instructions given to Investigators or Disclosure Officers in cases involving challenges to the integrity of Horizon, as to what they should do about disclosure, in terms of to whom they should turn in Fujitsu or within other parts of the Post Office to obtain appropriate disclosure?
Robert Wilson: I think the Investigators knew more about who worked in the different areas within Fujitsu than we – than the lawyers will have known. And, therefore, they will have had – they will have developed contact points within Fujitsu to obtain the relevant information that they needed to obtain.
Mr Beer: Can I look at something that the Court of Appeal Criminal Division noted when considering disclosure in its judgment in the Hamilton and others appeals. It, in fact, involves the Seema Misra case. We’re going to return to that in detail in December but I just want to look at this for present purposes because it concerns the completion of an unused material schedule.
Can we turn up, please, POL00113278 and can we turn to page 24, please. It’s paragraph 91. The court says:
“The material which we have seen includes other indications of the approach to Horizon issues taken by at least some [Post Office Limited] personnel involved in the conduct of these and similar prosecutions. For example, in relation to the prosecution of Seema Misra, an appellant in whose case it is now accepted that there was a failure of disclosure …”
Then it continues. It goes to (ii). It speaks about a schedule of sensitive material being prepared. I’m not actually convinced that this schedule of material was a schedule relating to Seema Misra’s case, despite what Lord Justice Holroyde says, but that does not matter for present purposes because it is an unused material schedule.
It reads:
“On 15 January … a schedule of sensitive material was prepared. The Disclosure Officer who signed it stated that she believed the single item listed on the schedule was sensitive. The item was described as ‘Article relating to integrity of Horizon system, supplied with accompanying letter by defendant’. The reason for sensitivity was said to be ‘Could be used as mitigation, ie to blame Horizon for loss’. Given that the item appears to have been a document supplied by the defence, the appellant was not in fact deprived of material she should have seen; but the important point for present purposes is that a [Post Office] employee acting as Disclosure Officer felt it appropriate to treat a document as sensitive, and withhold it from disclosure, because it could be used to assist the defence. Such an approach to disclosure is plainly wrong, but it does not appear that any action was taken by anyone on behalf of [Post Office Limited] to correct the officer’s serious error.”
I think you would probably agree that an approach of listing an article that came from the defendant, which sought to blame Horizon for the loss and, therefore, could be used as mitigation is not a sufficient reason to put an item on an unused material sensitive schedule?
Robert Wilson: Yes.
Mr Beer: What level of supervision did your team exercise over the completion of unused material schedules, both sensitive and non-sensitive?
Robert Wilson: Well, we would look at the schedule, we would copy the material and we would tick off, effectively, whether it was – whether we agreed that it was rightly placed on the schedule of unused material or whether it should have been placed on another material, or whether it undermined the prosecution case or supported the defence.
So we would have a look at the individual items. We would ensure that where there were a large number of documents that were being produced under a generic title, that they were split up and described more properly, and we would generally critique what we’d received.
Mr Beer: So it follows that this schedule would have passed through or passed across the eyes of a member of your Criminal Law Team?
Robert Wilson: Yes.
Mr Beer: I think you’d probably agree that it therefore paints something of a poor picture in relation to the safeguards in place?
Robert Wilson: Yes.
Mr Beer: Was what we read here indicative of the attitude of the Security team to challenges to Horizon, namely that they were seen as sensitive and something that should be hidden away?
Robert Wilson: I don’t think that was indicative. I think – I don’t know who the Disclosure Officer was, but it was completely inappropriate that – and plainly wrong that that item should have been on a schedule of sensitive material.
Mr Beer: Was it the case that the unearthing of any criticism of Horizon, even if it came from the defence, ought to be avoided because it was sensitive for the Post Office?
Robert Wilson: You’ll have to ask the Investigators that, but I wouldn’t have believed – it’s an extraordinary decision that this particular Investigator made in relation to that document.
Mr Beer: Thank you.
Sir, we’re about to turn to a new topical. I wonder whether we might break until 2.00.
Sir Wyn Williams: Of course. So we’ll resume at 2.00.
Mr Beer: Thank you very much, sir.
(12.59 pm)
(The Short Adjournment)
(2.00 pm)
Mr Beer: Good afternoon, sir, can you see and hear me?
Sir Wyn Williams: Yes, thank you.
Mr Beer: Thank you very much. In a moment I’m going to turn back to one additional set of questions on prosecutorial policies and who was responsible for decision making, but there’s a slight IT problem which needs to be resolved before I do so. So can we turn to a separate topic, please, which is expert evidence.
Can we turn up page 23 of your witness statement, please. It’s paragraph 51. You tell us the guidance given to expert witnesses called on behalf of the Post Office was the same as that of a non-expert witness, namely that the witness statement should be truthful and, if it were otherwise, they could be liable to prosecution, yes?
Robert Wilson: Yes.
Mr Beer: Then, in the remainder of the paragraph, is this right, you go on to tell us about some duties that an expert, in fact, owes?
Robert Wilson: Yes.
Mr Beer: So dealing with the first sentence then, what guidance was given to expert witnesses –
Robert Wilson: I don’t recall –
Mr Beer: Hold on. I haven’t asked the question yet, sorry. I was pausing myself.
Robert Wilson: Okay.
Mr Beer: In relation to what you say there, the guidance given was the same as a non-expert witness namely they should be told to tell the truth and, if it proved otherwise, they could be liable to prosecution. That tends to suggest that they were told two things, yes, and they were only told those things that also applied to a witness of fact, a non-expert; is that right?
Robert Wilson: Sorry, say that again, please?
Mr Beer: Yes. It tends to suggest that they were told the same things as applies applied to a witness of fact, a non-expert witness, namely the duty to tell the truth, and the consequences if they didn’t tell the truth, ie they could be prosecuted?
Robert Wilson: Yes.
Mr Beer: You may know that we’ve received some expert evidence ourselves on the duty of an expert witness across the period 2000 to 2013 on the relevant duties of an expert witness, and upon the duties upon a prosecutor seeking to rely on an expert witness across that period. I want to put, if I may, some elements of the evidence that we heard to see whether you agree or disagree with them.
Would you agree that the prosecutor must provide an expert with instructions as to the issue or issues upon which his or her opinion is sought?
Robert Wilson: Yes.
Mr Beer: Would you agree that the prosecutor must provide the expert with questions which the expert is expected to address or to answer?
Robert Wilson: Yes.
Mr Beer: Would you agree that the prosecutor must supply an expert with material upon which the prosecution relies and which may be relevant to the questions which the expert is expected to answer?
Robert Wilson: Yes, if the evidence is relevant, yes.
Mr Beer: Do you agree, secondly, that, throughout this period, 2000 to 2013, a prosecutor intending to rely on expert evidence in criminal proceedings was under a duty to satisfy themselves as to the expert’s relevant qualifications and expertise?
Robert Wilson: Yes.
Mr Beer: They were required to satisfy themselves that the expert had been appropriately instructed, including by the provision of a letter of instruction or terms of reference?
Robert Wilson: Yes.
Mr Beer: That they were required to satisfy themselves that the expert had been informed as to their relevant duties, including a duty to the court?
Robert Wilson: Yes.
Mr Beer: The prosecutor, in that period, was required, would you agree, to satisfy themselves that the expert had understood and had complied with their duties to the court?
Robert Wilson: Yes.
Mr Beer: They, the prosecutor, would you agree, was required to satisfy themselves that any literature or material which undermines the expert’s conclusions had been reviewed by the prosecutor and, where appropriate, disclosed to the defence?
Robert Wilson: Yes.
Mr Beer: And lastly, the prosecutor was required to bring to the attention of the defence and to the court any material which the prosecutor was aware was reasonably capable of undermining the expert’s opinion –
Robert Wilson: Yes.
Mr Beer: – and that includes matters relating to the expert’s qualifications, the factual basis for their opinions and their credibility?
Robert Wilson: Yes.
Mr Beer: Thirdly, would you agree that, if a prosecutor wishes to rely on an expert witness in this period, the prosecutor must be or is duty bound to ensure that the individual concerned, the expert, actually understands that they’re giving evidence in the capacity of expert witness and, therefore, special duties apply to them?
Robert Wilson: Yes.
Mr Beer: Fourthly, would you agree that any duties of disclosure that are required to be discharged are those of the prosecutor and that they can’t subcontract them to the expert themselves?
Robert Wilson: Yes.
Mr Beer: Fifthly, would you agree that, if a party seeks to rely on an expert who is not functionally independent of a party in the case, then the party is under a particular obligation to show that the expert understands the duties to which he or she is subject –
Robert Wilson: Yes.
Mr Beer: – and that that applied, in this case, in that, if expert witnesses, such as Mr Gareth Jenkins, were called, who were not functionally independent from the Post Office, they were not akin to conventional experts, who were accustomed and trained to giving expert evidence.
You were under, your team was under a particular duty to ensure that those individuals, including Mr Jenkins, understood the duties to which they were subject?
Robert Wilson: Yes.
Mr Beer: You tell us at the beginning of this paragraph that the guidance given to expert witnesses, was that they were told that they needed to tell the truth and, if they weren’t, they could be prosecuted, does it follow that the list of things that I’ve just read out were not undertaken in relation to experts called by or on behalf of the Post Office in the relevant period?
Robert Wilson: Yes.
Mr Beer: How did that come about, then?
Robert Wilson: Because, at the time, I believed that Gareth Jenkins understood his duties, that he was cross-examined by the defence and examined-in-chief by the prosecution to outline his expertise and that, from that information, I believed that he fully understood that he was independent and objective, irrespective of the fact that he was employed by Fujitsu and was giving evidence in relation to his employer and Post Office Limited.
Mr Beer: The things you’ve just spoken about there all happened once he was in the witness box?
Robert Wilson: I understand that.
Mr Beer: The things I’ve spoken about happen before we get to the witness box, don’t they?
Robert Wilson: Yes.
Mr Beer: What was done to ensure the list of things that I have read out, that all happen before somebody walks into the witness box, were done?
Robert Wilson: I don’t recall. I don’t specifically recall ever seeing Mr Jenkins, although I must have met him at some point in time, and I believe I may well have been present when he was in court, although I can’t recall that happening.
Mr Beer: If we go forward to paragraph 54 of your witness statement, please. Thank you. It’s the last line. You say something similar to that which you said a moment ago:
“Gareth Jenkins was aware that his duty was to the court and not to the [Criminal Law Team] who instructed him or Fujitsu who paid him.”
Robert Wilson: Yes.
Mr Beer: On what basis do you say that Gareth Jenkins was aware that his duty was to the court?
Robert Wilson: I believe that he will have understood that from either the solicitor dealing with him in the particular case/cases that he was involved or, indeed, from when he was cross-examined by the defence or examined-in-chief by the prosecuting barrister when he was giving evidence. I believe it will have been explained to him then and that he would have known on the first occasion.
Mr Beer: Thank you. That can come down.
Was there any Post Office policy guidance or protocol which reflected any of the principles which I grouped into five and which I mentioned a moment ago?
Robert Wilson: No.
Mr Beer: Was there, therefore, a complete absence of any Post Office policy guidance or protocol giving instructions either to investigators or to prosecutors as to how to handle expert evidence?
Robert Wilson: Yes.
Mr Beer: Can you identify any steps that were taken to satisfy the Criminal Law Team that Mr Jenkins enjoyed relevant qualifications and expertise?
Robert Wilson: Sorry, can you –
Mr Beer: Yes, are you aware of any steps that the Criminal Law Team took to satisfy itself or themselves, the members of the Criminal Law Team, that Mr Jenkins enjoyed the relevant qualifications and expertise to give evidence as an expert?
Robert Wilson: I believe that his credentials were looked up. I may be wrong in saying that I thought he was a professor. He certainly had some qualifications that appeared to be relevant to his position within Fujitsu. I forget whether it was a doctorate or some other qualification. So my understanding from his qualifications is that he appeared to be an expert in his particular field.
Mr Beer: Are you aware of any steps taken by members of the Criminal Law Team to ensure that Mr Jenkins was appropriately instructed by provision of a relevant and detailed letter of instruction or terms of reference?
Robert Wilson: I don’t know when he was identified as an expert witness. That could have been before I took over the team but, if it was when I was in the team, then that issue was not addressed.
Mr Beer: Are you aware of any steps taken by members of the Criminal Law Team or by yourself to satisfy themselves or yourself that Mr Jenkins had understood and thereafter complied with his duties as an expert witness?
Robert Wilson: I don’t recall.
Mr Beer: What steps, if any, were taken to ensure that the documents that Mr Jenkins produced and which were submitted to the court by way of a witness statement, rather than an expert report, complied with the requirements at common law before 2006 and then by reference to the Criminal Procedure Rules from 2006 onwards as to the contents of an expert report?
Robert Wilson: I don’t know what steps were taken, but I believe that – from his witness statements that had he – had we failed to deal with that properly, then counsel would have pointed that out to me.
Mr Beer: Are you aware of what were called the Ikarian Reefer duties in terms of the contents of an expert report?
Robert Wilson: I don’t recall that, no.
Mr Beer: Do you remember those requirements which arose in a civil case called the Ikarian Reefer being applied at common law to criminal proceedings?
Robert Wilson: I don’t recall.
Mr Beer: Do you remember in 2006 the Criminal Procedure Rules incorporating them as a matter of law from the common law into the Criminal Procedure Rules? There are 13 requirements, or so, of an expert report?
Robert Wilson: I may have done at the time – I may have at the time but I can’t recall now I’m afraid.
Mr Beer: You mentioned a moment ago that you would assume or believe that, if the report was in any way division, that counsel would have pointed it out to you?
Robert Wilson: Well, not necessarily prosecution but defence counsel, as well, yes.
Mr Beer: That’s not really how the law operates though, is it?
Robert Wilson: No, I –
Mr Beer: I think you’ll understand.
Robert Wilson: I fully understand that, yes.
Mr Beer: That duties imposed by the law by statute or in delegated legislation, or another form of legal instrument, are imposed on the prosecution and one can’t delegate that to the defence to pull you up?
Robert Wilson: No, I do understand that, yes. It was my responsibility.
Mr Beer: In your witness statement at paragraph 19, I wonder whether we could turn that up, please, it’s on page 10, this was in answer to a question that I think we directly asked you as to what independent oversight was exercised in respect of the conduct of prosecutions. You answered at 19:
“There was no independent oversight exercised in respect of the conduct of prosecutions.”
Is that right?
Robert Wilson: Yes.
Mr Beer: Does it follow that you wouldn’t regard the instruction of counsel to prosecute a case as a form of independent oversight?
Robert Wilson: I didn’t consider counsel in the context of the question. I thought you meant some external body like the Attorney General’s office or the Crown Prosecution Service.
Mr Beer: Thank you. That can come down. Do you, with me reformulating the focus of the question, think that counsel instructed by the Post Office provided some form of independent oversight in respect of the conduct of prosecutions?
Robert Wilson: Yes.
Mr Beer: Who ordinarily settled the indictment in a case that was committed to the Crown Court?
Robert Wilson: Counsel. However, the solicitor drafted the indictment for counsel’s consideration and approval.
Mr Beer: Was there a policy that counsel had to advise on evidential sufficiency in each case?
Robert Wilson: Yes.
Mr Beer: Did they, therefore, have to advise in every case that there was sufficient evidence of a realistic prospect of a conviction?
Robert Wilson: Yes.
Mr Beer: Can we just turn up paragraph 33 of your witness statement, please, which is on page 15. If we scroll down, thank you. You say:
“There were occasions when counsel’s advice was sought prior to a decision to prosecute being reached. The CLT did not seek advice from external lawyers. Seeking advice from counsel on certain matters continued throughout my role in the CLT. Such advice was occasionally sought in complex [matters].”
That was rather different from what you just said, which was, in all cases, counsel advised on evidential sufficiency.
Robert Wilson: Yeah, what I’m saying there is that, in complex cases, we would ask counsel for their initial advice prior to drafting charges, but this paragraph 33 – so that’s paragraph 33. What I was saying before was once we had charged and case had been committed to the Crown Court, we would seek counsel’s advice on every case.
Mr Beer: Counsel’s advice about what?
Robert Wilson: The evidence.
Mr Beer: What about the evidence?
Robert Wilson: Whether it was sufficient, whether we needed to expand the investigation, lines of inquiry, anything to do with the up and coming Crown Court case.
Mr Beer: So have I got this right: there was no policy that counsel had to advice pre-decision to charge or decision to initiate a prosecution?
Robert Wilson: Yeah, only –
Mr Beer: That happened occasionally?
Robert Wilson: That happened occasionally in complex cases. If we weren’t sure of the direction where it was going, what we needed, if we needed any assistance, that initial case would go to counsel. Usually only complex cases.
Mr Beer: Right. That’s paragraph 33.
Robert Wilson: Yeah.
Mr Beer: That can come down. Then, on the other hand, you’re telling us that, in every case, counsel advised, as a matter of course, post-initiation of proceedings on whether there was sufficient evidence to secure a realistic prospect of a conviction?
Robert Wilson: Yes.
Mr Beer: So, in all of the cases we’re going to look at, we should find such an advice?
Robert Wilson: Well, it was not whether there was a realistic prospect of conviction; it’s whether we needed to get other evidence, whether there were lines of inquiry that counsel would suggest that we ought to pursue.
Mr Beer: Ah, right. Well, that’s rather different from what you said a moment ago.
Robert Wilson: I’m sorry that I’ve misled you.
Mr Beer: We’ve certainly got advices and advice on evidence where counsel says, “On page 444 there’s a reference to Mr So-And-So, he ought to be traced”.
Robert Wilson: Mm, yeah.
Mr Beer: “On this exhibit, it’s got the exhibit reference SG1, I think that should be SG4, or is there an SG4?”, or something like that.
Robert Wilson: Yeah –
Mr Beer: Or “We need to bottom this out” or “that out”?
Robert Wilson: Yes.
Mr Beer: Not in each and every case addressing fundamentally, or addressing at all, the question “On the evidence before me, there is or there is not a realistic prospect of conviction”?
Robert Wilson: No, I’m sorry; I misunderstood your question.
Mr Beer: Why wasn’t such advice sought?
Robert Wilson: About the realistic prospect of conviction?
Mr Beer: Correct.
Robert Wilson: Because I believe that when the case had been committed for trial, there was sufficient evidence to afford a realistic prospect of conviction.
Mr Beer: What duties did you understand counsel to be subject to after a prosecution had been initiated, in reviewing the state of the evidence?
Robert Wilson: Well, I think counsel’s duties would be to point out to us, if there were any failings in the evidence, whether the case was robust enough to continue within the Crown Court and – but advise on additional evidence, if appropriate.
Mr Beer: So, even if they weren’t asked to advise on whether there was a realistic prospect of a conviction, did you understand them to hold a professional duty to review the evidence and to advise if they considered that the evidential test or, indeed, the public interest test had not been met?
Robert Wilson: Yes, I’m sure counsel would have done that automatically.
Mr Beer: Can you recall cases in which that happened?
Robert Wilson: No.
Mr Beer: Can we turn to a new topic please. Ah, good. I’m told that we can now turn to the hangover from this morning. Can we go to POL00031010?
Ms Price, over the lunch hour, helpfully pointed out that there was an additional document in the run of policy documents that addressed the issue of who took the decision to prosecute subpostmasters and counter clerks that I ought to draw to your attention. Can we just look at the foot of the first page, please, a bit more. Thank you.
Can you see this is dated June 2002?
Robert Wilson: Yes.
Mr Beer: If you look at the top of the page it’s described as an “Investigation and Prosecution Policy”. It’s purpose is to:
“… set out the criteria against which Consignia investigates crimes and suspect crimes committed against the Businesses and also define when actions proceed under the criminal law.”
Would this policy apply to the prosecution of subpostmasters and counter clerks?
Robert Wilson: Without seeing it all, I’m not sure.
Mr Beer: Well, thankfully, it’s only a page long. So if we can just scroll down slowly and let you read it because I don’t think you will have seen this before.
Robert Wilson: Certainly 3.2, “Reporting Offences”, they’re all Royal Mail offences.
Mr Beer: The reason for asking you is that there’s a sign-off box on the second page –
Robert Wilson: Yes.
Mr Beer: – and, if we just go to the second page, you can see that, amongst those who gave assurance to the policy, you are named.
Robert Wilson: Yes. It looks to me as though that’s a Royal Mail, as opposed to Post Office Limited document, because of the people who were involved, Garth McCarron and Paul Woods and Paul Booth, as far as I’m aware, were never in Post Office Limited. They were Royal Mail Investigators.
Mr Beer: So this policy wouldn’t apply to the class of suspects and defendants that we’re here considering?
Robert Wilson: No, it wouldn’t have.
Mr Beer: Can I just, out of completeness, however, draw your attention to what 3.3 says on the first page. If we scroll down, thank you:
“Each case will be dealt with on merit and action taken (if any) will be in accordance with the disciplinary code of the business.
“Where evidence of a crimes committed by a Consignia employee against Consignia or its customer is established, the offending employee may also be dealt with in accordance with criminal law. The prosecution guidelines of the business will be used in making any decision to proceed under criminal law, in consultation with SIS [that’s the Security and Investigation Services] and the Legal Services Criminal Law Division where appropriate.”
Robert Wilson: Yes.
Mr Beer: Does that also indicate that this isn’t a relevant policy?
Robert Wilson: Yeah, I think what it’s saying is it could be Parcelforce, it could be Royal Mail but, as I say, those three individuals that are named were not Post Office Limited Investigators.
Mr Beer: In which case, I’m not going to ask you questions about where that statement of policy may fall short. Can we move on then, please, to the issue of guilty pleas.
Robert Wilson: Yes.
Mr Beer: The Inquiry is in possession of a large body of material which appears to suggest that pleas would not be accepted, guilty pleas would not be accepted, in cases where the basis of plea called into question the integrity of Horizon?
Robert Wilson: Yes.
Mr Beer: Does that sound, as a high-level statement, something with which you were familiar in the relevant period we’re looking at?
Robert Wilson: Yes.
Mr Beer: Can I just look at three examples of that in action. Can I again start with the Court of Appeal’s decision in Hamilton, and I’m using it because it collects together quite a bit of material conveniently. POL00113278. It’s page 41, please.
Can we look, please, at paragraph 167, which starts at the foot of the page. The court says:
“These factors [that’s the factors addressed in the preceding three paragraphs] are sufficient for the court to quash Mrs Hall’s conviction on both Grounds 1 and 2. We were however presented with further information which bolsters our conclusion that Mrs Hall’s prosecution should not have been brought and which forms the basis of [the Post Office’s] concession under Ground 2. On 30 June 2011, [the Post Office’s] external solicitor wrote to [you] recording what had taken place in court that day, including the basis on which Mrs Hall had pleaded guilty to fraud as an alternative to theft. Despite the fact that Mrs Hall had not sought to make any express criticism of Horizon in her defence, the attendance note records the fact that it was made clear that:
“‘The Prosecution would not accept any criticism or blame concerning the Horizon system’.
“[The Post Office] accepts that it was improper to make the acceptability of Mrs Hall’s basis of plea to fraud conditional on not making any criticism of the Horizon system.”
Can we look at the second source of evidence. I’m going to look at all three and then ask you some questions, please. POL00055783. This is an exchange of emails with Dianne Chan, who I think was counsel who prosecuted cases for the Post Office; is that right?
Robert Wilson: Yeah, that’s right.
Mr Beer: It’s an exchange with you and I think we can glean what’s necessary from the top of this page. You say to her on 17 November 2010:
“Dianne
“Have received a defence statement today, despite the telephone conversation yesterday. A hard copy has been put in the post …
“At point 2 the Defence allege that any discrepancy was as a result of the Horizon system. There is also a challenge to the initial missing figure of £18,000 which was reduced according to the Defence statement in a matter of minutes. The statement also maintains that further investigation by the auditor ‘would have discovered the whereabouts of the alleged missing sum’.”
Then you say:
“Clearly if there were to be a plea to false accounting but on the basis that the Horizon system was at fault that would not be an acceptable basis of plea for the prosecution.”
Then the last piece of evidence, please, POL00069878, and if we look at page 2, please. This is from a member of your team, Ms McFarlane, yes?
Robert Wilson: Yes.
Mr Beer: If we just scroll up, please, to the page above, so we can just get a date, 1 December 2006. Yes? Then scroll down, please:
“Mandy
“Thomas is my Case.
“He was charged with Theft of [about £48,000]. He blamed the online banking system claiming that reports had several transactions showing NIL transaction. This was looked into and the investigator remained of the opinion that the entries were deliberate & to facilitate fraud. Mr Thomas’s expert examined the Horizon I understand from the officer that he took no issue with the system and informed the officer that we would be hearing no more. No Defence expert report was served.
“Following the visit, Mr Thomas’s Solicitor offered a Plea to False Accounting that in doing so he would not blame Horizon. This was accepted to avoid the cost of a trial.
“… nine months imprisonment. Confiscation proceedings …”
This is describing a plea negotiation involving Hughie Thomas, yes?
Robert Wilson: Yes.
Mr Beer: On the basis that the plea would not involve blame being directed towards Horizon?
Now, you address this practice, plea negotiations on the basis of Horizon never being blamed, in your witness statement at page 25. I wonder whether we could turn that up, please. It’s paragraphs 57 to 59. You say:
“There are examples in a number of prosecutions where plea bargains were struck before trial where the [Post Office] would offer no evidence on a charge of theft in exchange for a guilty plea on a charge of false accounting.”
You give some references.
“I did not draft charges [you say in 58] of theft in order to put pressure on defendants to offer guilty pleas to charges of false accounting. Charges of theft were only drafted when the evidence was such that it was believed that there was a realistic prospect of conviction of the offender in relation to the theft charge.
“59. I consider that a plea to false accounting would not be acceptable if it was put on the basis that the Horizon IT System was at fault because I did not believe this was true and as such felt that such a plea could not be properly accepted.”
In your years of operating as a lawyer in the Criminal Law Team and then as head of it, had you ever heard of a decision of the Court of Appeal called Eden, addressing the Post Office charging practice of charging counts of theft and false accounting?
Robert Wilson: Yes.
Mr Beer: What guidance was issued to prosecutors about the Court of Appeal’s comments about the Post Office’s practice of charging those counts on an indictment?
Robert Wilson: The guidance that I gave was that they should not charge alternative allegations of theft and false accounting; that they should follow Eden.
Mr Beer: Where is that written down?
Robert Wilson: I wrote it to my team.
Mr Beer: In a guidance document?
Robert Wilson: No, I noticed that there was a practice amongst some lawyers of charging both theft – and with an alternative of false accounting, which I disapproved of.
Mr Beer: Why did you disapprove of it?
Robert Wilson: Well, because it didn’t follow R v Eden.
Mr Beer: In what respect was it wrong?
Robert Wilson: Well, it was wrong because R v Eden effectively said you should pin your colours to the mast. There is a case of R v Julian Wilson amongst the papers, where I took on some papers that one of my colleagues had – was responsible for. They were on holiday. My practice, when in charge of – being in the Criminal Law Team was that, if somebody was on holiday, it was an opportunity for me to undertake work that was necessary at the time, to see what was going on on cases. It was one of the measures that I took, in this particular case, Julian Wilson. The lawyer had charged both theft and false accounting.
I prepared the instructions for counsel because the case had been committed for trial and I dropped the charge of theft, proceeded with a charge of false accounting and, in the instructions, I referred counsel to my opinion that there was – the evidence in relation to theft was not – I can’t remember how I described it, but was not good and that’s why I had drop the theft charge and preferred the false accounting.
Now, I will have taken that up with the lawyer involved and, at that stage, I would have probably reminded the team that my instructions were that you shouldn’t charge both theft and false accounting. You should be pinning your colours to the mast.
Mr Beer: Thank you. Was there anything akin to a playbook or a rulebook for the Criminal Law Team?
Robert Wilson: A playbook?
Mr Beer: Yes, a set of standing instructions as to how they were to go about their work?
Robert Wilson: No. But, as the head of the team I received the post every morning, so I could monitor what was going on in relation to individual files and, if I had any concerns about what was going on, I could sometimes see it with the post. Like I’ve just told you about the case that I took over for somebody who I believe was on holiday at the time, that was another way I tried to monitor cases and, if I had any – and I also did a random check on committal cases that were in the legal exec’s room, where the cases had been committed for trial. I did a random check on a, I don’t know, six-monthly basis, three-monthly basis, I’m not sure what it was.
Mr Beer: Like a dip sample?
Robert Wilson: Yeah. So I did that sample and, as a result of those checks, if I felt there was something amiss, then it would be flagged up to the team. And one of my concerns did involve a number of lawyers charging both theft and false accounting.
Mr Beer: Did that happen more than once?
Robert Wilson: Yeah, more than once.
Mr Beer: Why was it happening more than once?
Robert Wilson: Because people weren’t probably listening to me.
Mr Beer: You tell us in paragraph 59 that:
“… a plea to false accounting would not be acceptable if it was put on the basis that the … system was at fault because [you] did not believe [it to be] true.”
Robert Wilson: Yes.
Mr Beer: Was that a belief which you shared with the rest of the Criminal Law Team?
Robert Wilson: I will have done, yes.
Mr Beer: Was, therefore, this belief something that was turned into a policy, applied in a similar fashion by other prosecuting solicitors under your supervision?
Robert Wilson: Not necessarily.
Mr Beer: Do you think some of them accepted pleas to false accounting on the basis that the Horizon IT System may be at fault, then?
Robert Wilson: No. The Code for Crown Prosecutors in 2010, at paragraph 10.4, if I’ve quoted it right, headed “Acceptance of Guilty Pleas”, is fairly specific in that it says that, if the prosecution and the defence disagree in terms of the basis of plea, then the matter may be referred for the prosecution to actually call evidence.
So my understanding was that it was perfectly proper to require – to put our case, effectively, to the defence, “This is our view”, and, following from that, if I’d not said that we were challenging what the defence’s view was, then it would be tantamount to me saying, “We accept there’s a problem with Horizon”. So –
Mr Beer: Where did your – I’m sorry.
Robert Wilson: So I was really following what was in the 2010 Code for Crown Prosecutors at that section.
Mr Beer: What you’re referring to there, I think, existed in practice before then, that if there was a material dispute as to the basis on which a person might be sentenced, in some cases it would be permissible to, essentially, canvas that with a court but, in others, it would be necessary for the dispute to form up to a Newton hearing.
Robert Wilson: Yes.
Mr Beer: So I don’t think there was anything new in the Code, then?
Robert Wilson: No, there wasn’t but I did double check it because my understanding was that you would have a Newton hearing, as you’ve just said.
Mr Beer: But, by the same token, what was the basis for your belief that there were no faults with the IT system, the Horizon IT System, that were capable of forming a basis of plea or, indeed, relevant mitigation?
Robert Wilson: Well, because, at that stage, we’d – we will have had a committal bundle which will have had evidence from Fujitsu, possibly from Gareth Jenkins himself, effectively saying that the system is sound.
Mr Beer: So it was the Fujitsu evidence that allowed you to have the belief that there were no material faults with the Horizon IT System?
Robert Wilson: Absolutely, yes.
Mr Beer: By this time, if one picks the period of 2010, had there been any independent assessment of Horizon’s integrity?
Robert Wilson: There hadn’t been an independent assessment but Rod – I’ve forgotten –
Mr Beer: Ismay?
Robert Wilson: – rod Ismay had prepared his report, I think it was in August 2010, which effectively vindicated the Horizon system.
Mr Beer: Is that how you read the Ismay report: that it was a vindication of the Horizon system?
Robert Wilson: Yes.
Mr Beer: Did you regard it as thoroughly independent and objective?
Robert Wilson: Yes, it – yes, I believe it did. As far as I was concerned, it vindicated the system, yes.
Mr Beer: We’re going to come back to Mr Ismay’s report later but he’s told the Inquiry that his instructions, his terms of reference, were to look for and to include only evidence that showed that Horizon was a robust system and that the data that it produced enjoyed reliability and integrity and not to include anything that showed otherwise; did you know that?
Robert Wilson: No.
Mr Beer: That it was a deliberately one-sided effort?
Robert Wilson: No, I didn’t know that at all.
Mr Beer: That the dice were loaded before he even set pen to paper, because it was a myopic view that only looked at material to back the system?
Robert Wilson: No.
Mr Beer: You didn’t know that?
Robert Wilson: No. No, I didn’t at all. I think –
Mr Beer: He’s told us these things from the seat that you’re sitting in.
Robert Wilson: Yes. No, had I known that, then I wouldn’t have given any credence to the – well, I think I’d have asked him “Well, what was wrong with the system at the time, then”?
Mr Beer: I think he’d have replied “I’m not allowed to look”.
Robert Wilson: Well …
Mr Beer: Were you relying on Mr Ismay’s report after August 2010, therefore, in adopting this practice of refusing to enter plea negotiations if they involved any blaming of the Horizon system?
Robert Wilson: Well, I wasn’t refusing to enter plea negotiations. What I was saying to the defence is, depending on what they said in the defence statement, look, our view is contrary to your view and that, therefore, this issue may have to be resolved by calling evidence.
Mr Beer: Thank you. That can come down. Were you aware, by autumn 2010, of the discovery of the receipts and payments mismatch bug?
Robert Wilson: Was that the Juliet McFarlane bug?
Mr Beer: No, I don’t think it was, from memory.
Robert Wilson: Is this the 40 offices?
Mr Beer: I’m sorry?
Robert Wilson: There were 40 –
Mr Beer: 40 –
Robert Wilson: – offices.
Mr Beer: 14.
Robert Wilson: 14?
Mr Beer: Yes, I think.
Robert Wilson: No. I was aware of the Juliet McFarlane where I think there were two of the – it was the new Horizon problem, I was aware of a Dave Posnett single office problem and I was aware of Jon Longman’s. I don’t recall the 14 and I don’t believe that there are any documents in my papers that refer to that one.
Mr Beer: Did the information that you received about the problems that you have just identified to us affect your faith in the integrity of Horizon?
Robert Wilson: Horizon, the 2007 problem that Dave Posnett referred to, as I recall, was a single office. A fix had been implemented the year after and we were told in 2009 and I wrongly took the view that that needn’t be disclosed, I felt at the time. Now, looking at it, I should have disclosed that issue. I don’t think I considered that the integrity of Horizon had been destroyed by that.
The Juliet McFarlane issue we disclosed to the defence and I believe it was referred to in a generic witness statement that was prepared by Fujitsu. And the Jon Longman case, I’ve recently received some papers from you which explained what the case was, concerning 40 offices where there was a problem, and I’ve been able to read that, and I don’t know what happened with that case.
But that, as far as I can understand, was a new Horizon issue. So, so far as old Horizon was concerned, I didn’t have any belief that there was a problem (a) because of the Rod Ismay report; and (b) because the Seema Misra case had been comprehensively challenged and we’d secured a conviction, and I thought that that supported what we were doing.
Mr Beer: Thank you. We’re going to come back to those three disclosures of bugs when you return on 12 December –
Robert Wilson: Right.
Mr Beer: – and some others too –
Robert Wilson: Right.
Mr Beer: – and whether or the extent to which you knew about other bugs when making disclosure decisions.
Robert Wilson: Right.
Mr Beer: Can I turn, as you’ve mentioned it, therefore, to the Ismay report. Can we look, please, at POL00106867. If we look, please, at page 3 and scroll down, please, we can see a message from Mr Hayward of 26 February 2010 at 5.01 to a range of people, rather senior people, within the Post Office, but not including you.
Robert Wilson: Yes.
Mr Beer: You can see that it refers to a conference call earlier in the day and I think that’s a conference call in which you did not participate; is that right?
Robert Wilson: That’s right, yes.
Mr Beer: It sets out some agreed next steps, can you see those listed at 1, 2 and 3?
Robert Wilson: Yes.
Mr Beer: The first one, Mr Hayward and Ms Talbot to provide Sue Lowther and David King with information on past and present cases with reference to the Horizon challenges, both criminal and civil cases, and Mr Hayward notes:
“I have asked the fraud team to review approximately past 2 to 3 years case file although these challenges are of a more recent nature.”
Then paragraph 3:
“Subject to … 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 responses to these challenges. (Recommend Ernst & Young as most suitable partner to complete this … [to be advised]).”
Would you agree that this evidences a plan amongst relatively senior member of the Post Office team, setting out a plan to investigate Horizon integrity concerns and challenges?
Robert Wilson: Yes.
Mr Beer: First, there was going to an investigation within the Post Office, an internal investigation, and then an independent review by sudden consultants, possibly Ernst & Young?
Robert Wilson: Yes.
Mr Beer: Would you agree that this apparently suggests that there was sufficient concern to consider an investigation to be necessary?
Robert Wilson: Yes, I imagine it was.
Mr Beer: Would that be, would you agree, because it would be important for the Post Office as a business, but also as a prosecutor, actually to appreciate whether or not there were integrity issues with Horizon?
Robert Wilson: Yes.
Mr Beer: That would be important to know to determine whether future investigations and prosecutions could be conducted but also whether duties of disclosure might arise in respect of cases where convictions had already been obtained?
Robert Wilson: Yes.
Mr Beer: Did that independent review, to your knowledge, ever happen?
Robert Wilson: Not in the time that I was in the Post Office, no.
Mr Beer: Can we go forwards, please, to POL00054371 and go to page 2 at the bottom, please. Keep going a bit more, please. We can see an email an hour later from Mr Hayward to the same group of similar people, again not including you?
Robert Wilson: Yes.
Mr Beer: Albeit a month later, I think, you get this chain because we just saw from the top you get it in March. He, Mr Hayward, says:
“Further to our discussion … today, additional information in the attached pdf article below. As part of the wider review it may well be worthwhile understanding the ‘outcome’ of each of the case studies referenced, where applicable … and that may assist in our review.”
So this was Mr Hayward apparently circulating an article that covered issues about Horizon integrity and contained some references to cases that might need to be included in the review?
Robert Wilson: Yes.
Mr Beer: Can we go to POL00106867 and go to the bottom of the page, please, keep going a little bit more, thank you. Picking up the chain where we left it off, you’re now added to this chain as a copy-ee, can you see that?
Robert Wilson: Yes.
Mr Beer: Mr Posnett says:
“All,
“Can we please ensure that Rob Wilson (Head of Criminal Law …) is kept appraised of the situation and included in any further meetings … on this subject. Our prosecution cases have faced an increase in challenges as well as our civil cases, so the activities below, and indeed going forward, are applicable to both Legal teams.”
Would you understand the reference to both legal teams being the civil in the criminal law teams?
Robert Wilson: Yes.
Mr Beer: Thank you. So you’re now being included?
Robert Wilson: Yes.
Mr Beer: Can we go to the top of the page, please. Top of page 1. We now have your response –
Robert Wilson: Yes.
Mr Beer: – on 3 March. So five or so days later.
Mr Beer: Can we deal with that after the break, please, sir, and take a 15-minute break until 3.15?
Sir Wyn Williams: Sorry, I was on mute. I said certainly.
Mr Beer: Thank you very much, sir.
(3.00 pm)
(A short break)
(3.15 pm)
Mr Beer: Good afternoon, sir, can you see and hear me?
Sir Wyn Williams: Yes.
Mr Beer: Thank you.
Mr Wilson, we were looking at POL00106867. Just to remind ourselves of where we are, on the foot of the page, Mr Posnett had copied you in on 1 March to the exchange that had happened on 26 February and you replied on 3 March 2010, if we look at the top of the page.
Do you know why you weren’t involved in this conversation from the outset?
Robert Wilson: No, I have no idea.
Mr Beer: You were a bit annoyed about that, weren’t you?
Robert Wilson: I certainly was.
Mr Beer: We can see that from the last paragraph of your email, where you say:
“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.”
Why were you staggered?
Robert Wilson: Well, because my team needed to know what was going on and, if there was such a concern within the business, when I needed to know that.
Mr Beer: Why did you need to know it?
Robert Wilson: Well, because I was responsible for the prosecutions, if I – you know, if I wasn’t aware of what was going on around me, what was I going to do, as a prosecutor? I needed to know that, if there was a problem in the system, what the problem was and, yeah, I was completely staggered.
Mr Beer: Your response, however, isn’t to say, “I needed to be included because I need to know, in order for me and my team to discharge our responsibilities”?
Robert Wilson: No.
Mr Beer: Your response is to give a list of reasons to not do what was proposed?
Robert Wilson: No. I mean, the first sentence in that response is effectively saying that, if it’s thought there’s a difficulty with Horizon, then clearly the actions set out in your memo is not only needed but imperative. I mean, that’s the response.
Mr Beer: But then the rest of it is a “but”, isn’t it? The entirety of the page is then a “but”, “Clearly, if you think we – if there’s a problem, we need to do something, however”, and then you give a list of half a dozen reasons not to do that, don’t you?
Robert Wilson: Well, within five days of this, I’m being told by Dave King that they’re going to do a report, and I’m not saying don’t do the report. I think this was just a reaction to having been excluded from what I considered to be very important and, basically, it was me throwing everything onto the page that I probably would have said in a different way had I been in the meeting.
Mr Beer: Are you saying that you can explain away the fact that that this lists, by my reckoning, seven reasons not to commence an independent investigation, the reason for that is pique or anger at not being invited to the meeting?
Robert Wilson: Yeah, I’m not trying to explain it away, it’s just my mindset at that particular time was I need to know if there is a difficulty with Horizon and, yet, there was a meeting that went ahead, I don’t know how long it took but, you know, what detail they went into I need to know this.
Mr Beer: But you don’t say that?
Robert Wilson: No, I know I don’t say that but what I’m saying to you is that my mindset at the time was – I was angry and I have just – I’ve acknowledged that, yeah, if there’s a problem, there’s a problem and we need to deal with that, but, you know, here’s some stuff that I might have been saying at the meeting, as I say, not necessarily in that particular way, but I would have obviously been able to listen to what was going on in the meeting, what the concerns were and tailored my answer to that meeting, as opposed to having a blank page because I didn’t know what had been going on and throwing everything down.
Mr Beer: Are you tailoring what you say now to try to explain away the contents of this email, trying to explain it away on the basis of anger or frustration?
Robert Wilson: No, because, like I said before, within five days, I’m contacted by Dave King saying, “We’re going to do this exercise”, and I don’t say, “Well, you can’t” or “Don’t do it” or whatever, I just say, “Okay”.
Mr Beer: But that never happened either, did it? What happened was the Ismay report?
Robert Wilson: Yeah, I imagine that this moved into the Ismay report.
Mr Beer: The one sided “Let’s look for material that supports the integrity of Horizon”?
Robert Wilson: Yeah, I mean, I hear what you say, and I did –
Mr Beer: Well, it was Mr Ismay saying it.
Robert Wilson: Sorry?
Mr Beer: It was Mr Ismay who actually said it.
Robert Wilson: No, no, I hear what you’re saying now but I didn’t know that it was – that you would describe it as a one-sided report.
Mr Beer: You’re not saying, overall in this email, “If there is a basis to investigate the integrity of Horizon, we should get on and investigate the integrity of Horizon, this really important”, are you?
Robert Wilson: Not in so many words, no.
Mr Beer: What you were saying by this email is “The Post Office will be in serious trouble if we get on with an independent investigation into the integrity of Horizon”.
Robert Wilson: Well, not necessarily. It depends what the independent report was going to say.
Mr Beer: No, you say that there were a whole bunch of reasons not even to look, don’t you? You come up with a list of reasons – we’re going to go through each of them – not even to start an investigation?
Robert Wilson: Yes, okay, I accept that, but that was my – that wasn’t my intention. I think that I overreacted to being excluded from what I saw as being critical to me as the Head of the Criminal Law Team.
Mr Beer: Did you speak to anyone directly before writing this email or afterwards?
Robert Wilson: I don’t think so no.
Mr Beer: Did you speak with John Scott or Andrew Hayward about it?
Robert Wilson: I don’t think so. I didn’t have a great of dealings with John Scott and I’m not sure I knew who Andy Hayward was.
Mr Beer: If there was a sufficient level of concern amongst senior members of Post Office staff about the integrity of Horizon, wasn’t the right thing to do to conduct a full Inquiry as an imperative, full stop?
Robert Wilson: Yes.
Mr Beer: Doesn’t it appear that that had been the plan of senior members of the Post Office right up until your input?
Robert Wilson: I’m sure my input didn’t dissuade them one way or another.
Mr Beer: Let’s look at the reasons that you give, second line. You say:
“The consequence … will be that to commence or continue to proceed with any criminal proceedings will be inappropriate.”
That’s reason 1, yes?
Robert Wilson: Yeah.
Mr Beer: So, if we start in investigation, looking at the integrity of the data we rely on, we cannot continue with any criminal proceedings.
Robert Wilson: Yeah.
Mr Beer: Was that an overstatement?
Robert Wilson: Yeah, probably.
Mr Beer: Why did you make an overstatement?
Robert Wilson: I think I just wanted to impress on these people that, if there was issues going on, I needed to know what they were.
Mr Beer: You say:
“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.”
Now, at this time, you obviously don’t benefit from the wisdom of Mr Ismay’s report. What were you referring to there, that your understanding is that the integrity of Horizon data is sound?
Robert Wilson: Based on the prosecutions that had been successful.
Mr Beer: In how many of those had a question been raised as to the integrity of Horizon data?
Robert Wilson: I can’t remember. But, you know, I guess a number.
Mr Beer: Were the vast majority of them guilty pleas?
Robert Wilson: I think they ended up as guilty pleas, yes.
Mr Beer: What do you mean by that?
Robert Wilson: Well, I think we had a number of cases where we were facing trial and the defence decided to plead guilty at the last moment.
Mr Beer: Often to false accounting?
Robert Wilson: Yes.
Mr Beer: On the dropping of the theft charge?
Robert Wilson: No – well, in the papers there are, I think, seven references to my charging of offences: three were for theft on their own; three were for fraud on their own; and one was in relation to a theft and a fraud, albeit in the advice letter I say that the theft and the fraud are not alternatives.
So I was not charging false accounting and a theft or a Fraud Act offence as alternatives. I tried to avoid doing that at every opportunity.
Mr Beer: You continue:
“These challenges are not new and have been with us since the inception of Horizon as it has 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.”
Robert Wilson: Mm.
Mr Beer: What you’re saying by that is “What’s new here? They’re all guilty of theft, they’re just coming up with this as an excuse, blaming Horizon”, aren’t you?
Robert Wilson: No, I wouldn’t interpret it in that way. I’m – what I’m saying –
Mr Beer: What are you saying by “the only way that defendants are left to challenge our evidence when they’ve stolen money”?
Robert Wilson: Well, that’s if they’re a thief.
Mr Beer: You’re not saying that at all, are you? You’re saying that the challenges made to Horizon are a figment of guilty thieves’ imagination and it’s the only thing they can come up with when they know they’re guilty and they’ve stolen the money. That’s what you’re saying by that sentence, isn’t it?
Robert Wilson: Well – well, I don’t view it in that way but I can see why you do, yes.
Mr Beer: Can you explain to us what it does mean, then?
Robert Wilson: Well, we had, right from the inception of Horizon, experienced defendants saying “It wasn’t me; it was the system”, yet they plead guilty, and that’s part of something that I couldn’t understand: why somebody who was saying, “I’m effectively innocent” would ever plead guilty.
Mr Beer: Have you ever thought of the possibility that people did so in order to get a shorter term of imprisonment or a suspended sentence –
Robert Wilson: Well –
Mr Beer: – being of good character, quite often being trusted Post Office employees?
Robert Wilson: I have to say that my mentality would be that, if I was prosecuted for theft and I was not dishonest, I would not admit it.
Mr Beer: So, again, this doesn’t mean, the sentence “The only way they’re left to challenge our evidence when they’ve stolen the money is to blame Horizon”?
Robert Wilson: Well, like I say, hear what you say.
Mr Beer: Well, what do you mean by you hear what I say? I’m reading out some words in black and white to you –
Robert Wilson: Yeah, I know.
Mr Beer: – and you’re saying they don’t mean what I’m suggesting. Please tell us what they do mean.
Robert Wilson: Well, when I wrote that email, I was annoyed and I think that’s – what I’ve put in there went over the top and, had I been in the meeting on the day, I hope that I would have been a lot more constructive in terms of what I contributed towards the meeting.
Mr Beer: Okay, so that’s the second reason. The first reason is we’ll have to stop all criminal proceedings; the second reason is but these challenges have been around since time immemorial.
Can we turn, please, to the next paragraph:
“What is being suggested is that 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.”
Why would it be undermining?
Robert Wilson: Well, it would be undermining on the basis that – if it reveals that there was anything wrong with the system.
Mr Beer: Well, it doesn’t say that, does it? Your understanding was that Horizon data was sound and that all past challenges had failed. What you’re saying here is that the fact of an investigation will be disclosable as undermining the defence.
Robert Wilson: Yeah.
Mr Beer: Why would the fact of an investigation be disclosable as undermining evidence?
Robert Wilson: Well, it wouldn’t be, you know, it’s something that I put in that’s erroneous.
Mr Beer: So that’s the third reason. If we continue:
“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.”
That’s the fourth reason.
Robert Wilson: Yeah.
Mr Beer: Does that involve a very significant overstatement too?
Robert Wilson: Well, I mean if – yes, probably. Yes.
Mr Beer: “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 [the Post Office] as it would be seen by the press and media to vindicate the current challenges.”
That seems like a more moderate possibility, doesn’t it? If you’re conducting an investigation into the integrity of your data, a defendant who is affected by that data may say, “Stop the prosecution for the moment, adjourn the proceedings”.
Robert Wilson: Yes.
Mr Beer: Yes?
Robert Wilson: Yes.
Mr Beer: But you give it, as a fourth or a fifth reason here, “It will adversely affect the Post Office in the media”.
Robert Wilson: Yes.
Mr Beer: When you’re weighing up, on the one hand, whether to conduct an investigation into concerns about the integrity of data that’s used to prosecute people in the criminal courts and potentially send them to prison and, on the other hand, some negative press, which wins the day?
Robert Wilson: The first.
Mr Beer: You continue:
“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 combined system with untold damage to the Business.”
Doesn’t that and the sentence right at the beginning of this paragraph, “Such an investigation will be disclosable as undermining evidence”, suggest that you thought, as well, “Hold on, there might be some system integrity problems here”?
Robert Wilson: I never thought that, no.
Mr Beer: Why would an investigation, or an investigation which resulted in a conclusion that the Horizon system enjoyed complete integrity, be seen as the Post Office operating a compromised system in every office in the country.
Robert Wilson: Well, it wouldn’t.
Mr Beer: Would only a report that said, “No, there are data integrity problems” lead to that kind of untold damage?
Robert Wilson: Yes.
Mr Beer: So why have you written this in this way? If you didn’t think there was anything at all wrong with Horizon, why would untold damage be caused?
Robert Wilson: I really go back to what I was saying to explain everything, apart from the first sentence, in that I hadn’t been included in the meeting, I was annoyed and I reacted to that. And I just wanted to put everything on paper which may or may not have been discussed in the meeting, I didn’t know. And, yes, it was an overreaction, I accept that.
Mr Beer: You continue:
“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.”
That’s, essentially, a, repetition of a point earlier.
Robert Wilson: Yes.
Mr Beer: “To continue prosecuting alleged offenders knowing there is an ongoing investigation to determine the veracity of Horizon could … be detrimental to the reputation of my team.”
This is, I think, the sixth reason you give for not doing it:
“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 inevitably be highly critical of any prosecutor’s decision to proceed against Defendants in the knowledge that there could be an issue with the evidence.”
Isn’t the problem with from that that you knew from the exchange that it was proposed to be an investigation, which is to establish whether or not there was a difficulty with the system, and you were nonetheless proposing to proceed with prosecutions?
Robert Wilson: Yes.
Mr Beer: You say:
“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.”
So were you saying here, “All we need to do is for Fujitsu to stand up and continue to back their system by providing us with their evidence in court that the evidence is sound”?
Robert Wilson: No, I wasn’t suggesting that, if it wasn’t sound, that they should lie. What I was suggesting was that, you know, as a matter of course, we should be getting the full cooperation of Fujitsu on each and every prosecution and civil case.
Mr Beer: Were they not fully cooperating?
Robert Wilson: Well, I think there were tensions between Fujitsu and POL, which certainly came out in the Misra case, in terms of apparently not wanting experts to talk to other experts.
Mr Beer: That hadn’t happened yet.
Robert Wilson: No, but, I mean, I think –
Mr Beer: That was later in the year?
Robert Wilson: Was it? Okay.
Mr Beer: Yeah, we’re March, I think.
Robert Wilson: Well, I just have an impression that there were tensions between Fujitsu and then the dealing with POL or the investigators, or wherever it was.
Mr Beer: Isn’t this you really proposing an alternative to an independent investigation that actually looks objectively at whether there was anything to the challenges or nothing to the challenges, “Let’s shut this down by getting Fujitsu to back their system”?
Robert Wilson: I never believed that I was senior enough to be able to do anything like that in any event. I mean, I thought that there was no problem in relation to the Fujitsu evidence or Horizon and, as I keep saying, that I think this was me going over the top, because I was annoyed that I had not been included in the initial meeting.
Mr Beer: I take it you regret deeply sending this email now?
Robert Wilson: Obviously.
Mr Beer: Because, on its face, it reads like an attempt to shut down –
Robert Wilson: Yeah.
Mr Beer: – the commencement of an independent investigation into the integrity of Horizon, doesn’t it?
Robert Wilson: All I can say is the first sentence – “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 is imperative” – that, for me, is the crucial bit.
Mr Beer: That’s where the email should have ended, shouldn’t it?
Robert Wilson: Absolutely, yeah.
Mr Beer: Would you really say all of these things, with these overstatements and gross overstatements, as we’ve agreed them to be, were because you were fed up that you hadn’t been invited to a meeting?
Robert Wilson: No, I think it wasn’t that I was fed up that I hadn’t been invite to a meeting. What the problem was was, if they’re hide – well, not hiding this but, if they’re not including me in something like this, then that’s pretty crucial to me and my team, me particularly, running the criminal prosecutions.
I need to know if there’s a problem. You know, I need to know immediately if there’s a problem and, clearly, whatever had generated the meeting must have generated it some time before, and so I’m being kept in the dark, and that’s what was rankling me, in relation to this.
Mr Beer: Did you take it up beyond the sending of this email?
Robert Wilson: Well, as I said earlier, five days later, Dave King emails me saying, “We’re going to do this, we’re going to have an internal inquiry”, and I think I ask him about a question about what does – I think there was mentioned information security or something on that line. I asked “What did that mean?” And I didn’t, sort of say, “Don’t do it. You know, I’ve already advised don’t do it”. I just said, “Thank you very much”.
Mr Beer: What happened to that internal inquiry?
Robert Wilson: I believe that was the Rod Ismay inquiry.
Mr Beer: Can we turn, please, to POL00120479. Just look at the top of the page, please. We’re just before the final Ismay report comes out on 2 August and he’s circulating a draft report, including to you; can you see that?
Robert Wilson: Yes.
Mr Beer: Why were you being included as somebody who could give comments on the draft report?
Robert Wilson: I don’t know, presumably because I kicked up a fuss. They were keeping me in the loop.
Mr Beer: So the proposal that had been initially for an independent investigation had morphed into what became the Ismay report?
Robert Wilson: It looks like it, yes.
Mr Beer: When did you first know that the Ismay report was being undertaken, investigating the integrity of Horizon?
Robert Wilson: I don’t know.
Mr Beer: Well, when you did find out, did you say, “Hold on, we’re investigating the integrity of Horizon. The consequence of that will be we must stop prosecuting every case”?
Robert Wilson: No.
Mr Beer: Did you say, “Defendants will argue that the proceedings against them are an abuse of process”?
Robert Wilson: No.
Mr Beer: Did you say, “The consequence of us investigating the integrity of Horizon will be that they will ask to stay the proceedings pending the outcome of the investigation”?
Robert Wilson: No.
Mr Beer: Did you say that “The Court of Appeal may be critical and it will be detrimental to the reputation of my team if we continue to prosecute cases whilst there is an investigation into the integrity of Horizon”?
Robert Wilson: No.
Mr Beer: All of the reasons that you gave in your 3 March document applied equally to a different species of investigation into the integrity of Horizon, didn’t they?
Robert Wilson: Yes.
Mr Beer: The Ismay report would fall to be disclosed in future criminal proceedings?
Robert Wilson: Yes, only it, in my eyes, vindicated the Horizon system.
Mr Beer: Let’s look at what Mr Ismay is telling this audience Post Office’s priorities are. First paragraph: here’s the latest version, it’s a complex area, I’d value further comments.
Then he gives some timing.
Paragraph 3:
“Regardless of how this document is finalised, there are [some] improvement points which we will need to work on together …”
Then this, “The priority”:
“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 that we are prepared for the next court cases.”
Was that the prevailing ethic amongst the senior leadership of the Post Office at this time: the priority was to close down issues that were newsworthy?
Robert Wilson: Well, if you’re telling me that Rod Ismay was told not to report on anything that was detrimental, then he probably was.
Mr Beer: Did you provide any additional input with the aim of closing down issues that caused the media to consider this to be newsworthy?
Robert Wilson: I don’t recall giving any input to his report. It may have been that I supplied some statistics in terms of numbers, but I recollect – my recollection is that I received the report and that was it. I didn’t contribute to it in any way. Now, I don’t know what Rod Ismay would say my contribution was but I can’t recall one.
Mr Beer: Well, he said that the list of people to whom it was distributed, he couldn’t explain why, in relation to a lot of them, it was distributed to them.
Robert Wilson: Yeah.
Mr Beer: Can we turn then to the report itself, POL00026572. We can see it is dated 2 August and you’re one of the addressees?
Robert Wilson: Yes.
Mr Beer: If we scroll down on the first page, please. The first paragraph of – sorry, the paragraph above “Executive Summary”:
“This paper has been complied as an objective, internal review of POL’s processes and controls around branch accounting.”
Mr Ismay told us that that sentence was incorrect. It wasn’t objective at all; it was a one-sided picture, which didn’t look at any evidence that there may be problems with Horizon. It only collected together existing accounts of how reliable Horizon was. He continues under his “Executive Summary”:
“The allegations to which we are responding follow on from cases where thousands of pounds were missing at audit. We remain satisfied that this money was missing due to theft in the branch – we do not believe the account balances against which the audits were conducted were corrupt.”
Is that the headline that you took from this?
Robert Wilson: Yes, I think – yeah, one of the headlines, yes.
Mr Beer: Can we go forward to page 19, please. Scroll down, please. Here he addresses the possibility of independent review or independent audit and he 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.
“Our decision between IT, Legal, [Product & Branch Accounting], Security and 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.”
Just stopping there, were you party to a decision, as a representative of Legal, that included that amongst its reasoning?
Robert Wilson: I don’t think so. As I said so before, I can’t recall having any input to this document. A lot of the information in it I wouldn’t have been privy to, with the exception of possibly the case numbers.
Mr Beer: But this isn’t about a conclusion that’s reached; this is explaining why we haven’t gone to an independent reviewer or auditor and it’s suggesting that amongst those that were party to a decision not to do so was Legal. Was that you?
Robert Wilson: I don’t recall ever having had dealings with Rod Ismay on the phone or in meetings. I don’t think I ever met him and I didn’t recognise the name when it first came up. I don’t think it was me, no.
Mr Beer: We’ll skip over the next couple of paragraphs, please, and go to the next page. He then says:
“It is also important 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 comfort 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.”
The first two sentences of that paragraph are essentially what you were saying in your March email, aren’t they?
Robert Wilson: Yes.
Mr Beer: The last sentence:
“It would also beg a question for the Court of Appeal over past prosecutions and imprisonments.”
That’s not something that you raised in your email, was it?
Robert Wilson: I don’t recollect raising it, no.
Mr Beer: Do you know where that came from, which sounds like something that a lawyer might advise, “if we get an independent review, you should be aware that it might call into question all of the convictions of the subpostmasters that we’ve obtained over the years”?
Robert Wilson: Yeah, I think that I remember speaking to Dave King, who I think was part of the group that – involved with this – involved this report. So it may have come from me to Dave King but I don’t ever recall speaking directly to Rod Ismay.
Mr Beer: Can we, shortly before we break for the day, turn lastly to POL00105593. This is a new document that we haven’t looked at before, I think. It’s dated 28 March 2012. So we’re a year and a half on. It’s an email exchange between Chris Darvill and Susan Crichton. If we scroll down to the foot of the page, please, we can see who Chris Darvill was. Is that a name that’s familiar to you?
Robert Wilson: No.
Mr Beer: Looking at his designation and the address given, and bearing in mind this is March 2012, where do you think Mr Darvill sat within the Legal Services offering of the Post Office?
Robert Wilson: I think he was in the Post Office Limited team, solicitors team.
Mr Beer: So that’s, what, neither the Criminal Law Team nor the civil law team –
Robert Wilson: Yeah, but –
Mr Beer: – but something else?
Robert Wilson: Something else, yes.
Mr Beer: If we go up, please, he says under the heading “Comments from Rob Wilson”:
“Susan
“The earliest Rob can speak to me is 3 pm. (I have told him that you are meeting with Alice [I think probably Alice Parsons] at 3.30 pm). He has, however, sent over a few initial comments …”
Just scroll up. We will see when we look at the whole context here that this appears to be another exchange about commissioning an independent audit in 2012. Mr Darvill says that you have:
“… concerns regarding the [public relations] implications over an audit being conducted. I guess the point here is carrying out an audit in response to the ‘noise’ surrounding the integrity of the Horizon system potentially looks reactive and will be seen as [the Post Office] having lost confidence in the system.
“Rob also has concerns regarding the costs that would be incurred in carrying out an audit. Depending on the scope of the audit, the costs could potentially be significant.
“An audit commissioned by [the Post Office] may not have the desired effect of curbing these challenges in any event. It will always be said that the audit was not independent. Ultimately the only way to avoid criticism would be to appoint a joint expert.
“Rob does not believe an audit would have a great impact on current prosecutions in the sense of finding a ‘smoking gun’ which explains that the losses were due to computer error, but if [the Post Office] is required to disclose that an expert has been appointed to conduct a review there would be a strong argument that the cases should be adjourned pending the outcome of the review. I will need to test with Rob the extent to which this would need to be disclosed.
“Rob remains firmly of the view that an audit should not be carried out. In his words: ‘POL has to grit its teeth and get on with prosecuting and defending civil actions’.”
Was it your view that POL should just grit its teeth and get on with prosecuting people?
Robert Wilson: I think so, yes.
Mr Beer: Just carry on regardless?
Robert Wilson: Well –
Mr Beer: More important than whether or not there was a problem with the system was public relations and cost?
Robert Wilson: Well, I didn’t believe that we had a problem with the system because of the Rod Ismay report and, by this time, we’d had the Seema Misra case which had been fully challenged.
Mr Beer: Did you regard that as a resounding success?
Robert Wilson: Well, I didn’t regard it in the same way as Mr Singh, no. I didn’t think it was going to deflect the defence from continuing to say they had problems with Horizon. I imagined that there would still be challenges in relation to the Horizon system.
Mr Beer: The views that you’re recorded as giving here, do you doubt that you gave them in any way? We haven’t tracked down a communication from you to Mr Darvill.
Robert Wilson: No, I’ve no reason to suspect that he’s got it wrong. I mean, he may have emphasised it – I may have emphasised it in a slightly different way but I think, essentially, I was saying “Look, we – from my perspective, the system has been vindicated by a report. If you want to do another report that’s internal, you’re wasting your time, basically. If you want to do an external report, well, that may be a different matter”. But –
Mr Beer: This was about an external audit –
Robert Wilson: Right, okay.
Mr Beer: – because I think it talks about the costs?
Robert Wilson: Yeah. So, you know, in the end of the day it’s going to be your decision. I’m staying in Royal Mail, you’re going – you’re in POL. You know, you’re going to have to decide. But, as far as my view is concerned at the current time, is that we’ve already had a report and it’s vindicated us.
Mr Beer: The Ismay report. So it all stacks – all of this hinged on Ismay, did it?
Robert Wilson: Well, yes, but I didn’t know that – what you’ve told me this afternoon. I never understood that that was the position. If I’d realised that that was the position, then it would be completely different.
Mr Beer: Thank you very much, they’re the only questions I ask you presently until December.
Sir, I understand that none of the Core Participants are going to ask –
Oh, in fact, my apologies. Mr Jacobs is going to ask some questions. My mistake.
Questioned by Mr Jacobs
Mr Jacobs: Sir, just a quick question from me.
I want to ask you about paragraph 18 of your statement. I represent 157 subpostmasters and I am instructed by Howe+Co. So if we go to page 10 of 36 and that’s WITN04210100, page 10. What you say there is:
“In the event that the defendant was acquitted following trial I would contact prosecuting council and ask for a full report with a view to understanding the reason for the acquittal.”
One of our clients is Suzanne Palmer. She was acquitted by jury after a three-day trial, in relation to three counts of false accounting, that was in January 2007. The jury accepted that she had not acted dishonestly and accepted what she said about the problems in the system.
What I want to ask you is what it was that you were trying to understand after an acquittal. Did acquittals, such as this one and others, cause you to think that maybe there was something in what the subpostmasters were saying about the Horizon system and that at least there should be an investigation?
Robert Wilson: Yes, if counsel had said to me “Yes, I do have concerns over the Horizon system”, then yes. Sorry, but I – apologies, but I can’t recall the case and I can’t recall what counsel said in relation to the acquittal. But, yeah, I mean I think had counsel said to me “Look, Rob, we have a serious problem here”, then, yes, I would have done something about it.
Mr Jacobs: But if the fact that a jury had rejected what the Post Office was saying about the honesty and integrity of a person who was appointed because they’re a person of good standing in their community, if a jury had rejected that there could possibly be an integrity issue with the Horizon system, surely that ought to have caused you to have paused and it should have been an alarm bell, regardless of what counsel said?
Robert Wilson: Well, I don’t know why the jury acquitted your client.
Mr Jacobs: Right. Now, it seems to our clients, particularly in light of the passage that Mr Beer took you to, when you say “These challenges are not new. They’ve been with us since the inception of Horizon. It’s always been the only way the defendants are left to challenge our evidence when they’ve stolen money or when they need to show our figures are not correct”, it seems that your view, and the view of Post Office, were entrenched and, when you say in your statement that you tried to understand the reasons for an acquittal, what you were really doing was looking to see what you could do in future to make sure that didn’t happen again and secure more convictions to get it right next time?
Robert Wilson: No.
Mr Jacobs: That’s right, isn’t it?
Robert Wilson: No, no, it wasn’t. No. It was a genuine request for information to understand what had gone on, not to strengthen our case in the future, no.
Mr Jacobs: So, finally, you didn’t think, then, did you that an acquittal is a significant event that ought to have at least caused some sort of internal inquiry or investigation?
Robert Wilson: Well, no – well, it did, in the sense of requesting a report from counsel and, had counsel expressed any reservations, I would have obtained a transcript of the trial and that would have been examined. I do recall, during the course of my period as the team leader, requesting transcripts – not very often but I do recall doing that – because I wanted to find out whatever it was that I needed to find out.
Mr Jacobs: Thank you. I haven’t any further questions for you.
The Witness: Thank you.
Sir Wyn Williams: Mr Beer, Mr Wilson is returning in December. With other witnesses who have had such a long delay between their tranches of evidence, I have released them from the prohibition on them talking about the evidence generally, as far as I recall, ie I haven’t said anything along the lines of “You mustn’t discuss the evidence which you have already given”, or anything like that.
In this case, I don’t see any reason to depart from that general practice but I’d be grateful if you or anybody else has any observations about that.
Mr Beer: Thank you, sir. No, there’s no reason to depart from what you’ve just said and every reason to do it. In particular, because Mr Wilson has got to write his second witness statement and may require the assistance of his lawyers to do that.
Sir Wyn Williams: Yes. Nobody else is shaking their head vigorously saying we’ve got it wrong, are they?
Mr Beer: No, they’re not, sir.
Sir Wyn Williams: Right.
Well, Mr Wilson, thank you for giving evidence during the course of today and you are now able to speak about your evidence with your lawyers or, for that matter, anyone else but you appreciate that you will be required to return on a date in December to give further evidence?
The Witness: Yes, I do, sir. There’s nobody else that I could really speak to.
Sir Wyn Williams: Fine. Well, you don’t have to offer an explanation but thank you anyway.
The Witness: Thank you, sir.
Mr Beer: Sir, we return tomorrow at, I think, 10.00 am for Paul Inwood and Thomas Pegler.
Sir Wyn Williams: Yes. Thank you very much, Mr Beer.
I will see everyone in the morning.
Mr Beer: Thank you very much, sir.
(4.09 pm)
(The hearing adjourned until 10.00 am the following day)