15 November 2023 – Warwick Tatford
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(10.00 am)
Mr Beer: Good morning, sir, can you see and hear me?
Sir Wyn Williams: Yes, I can, thank you.
Before you begin examining the witness, Mr Beer, I’d just like to let everyone know, if they’re not aware of it already, that the programme for this week will go ahead as has been scheduled, ie that is it will go ahead with the witnesses which are named on our website and I’ll try to give an update, dealing with the period between the end of this week and Christmas, tomorrow or Friday at the latest. All right?
Mr Beer: Thank you very much, sir.
May I call Warwick Tatford.
Warwick Tatford
WARWICK HENRY PATRICK TATFORD (sworn).
Questioned by Mr Beer
Mr Beer: Good morning, Mr Tatford. My name is Jason Beer and, as you know, I ask questions on behalf of the Inquiry. Can you tell us your full name, please.
Warwick Tatford: Warwick Henry Patrick Tatford.
Mr Beer: Thank you very much for coming to the Inquiry to give evidence today and thank you very much for the provision of a substantial witness statement to the Inquiry. Can we look at that witness statement please. It should be in the bundle in front of you at tab A1.
Warwick Tatford: I have it. Thank you.
Mr Beer: Excluding the index, it’s 57 pages in length and dated 25 October 2023. Can you turn to page 57, please?
Warwick Tatford: Yes.
Mr Beer: Is that your signature?
Warwick Tatford: It is, yes.
Mr Beer: Are the contents of that witness statement true to the best of your knowledge and belief?
Warwick Tatford: Yes.
Mr Beer: For the transcript – it needn’t be displayed – the URN is WITN09610100. A copy of that witness statement is going to be uploaded to the Inquiry’s website and I’m not going to ask you questions about every aspect of it; do you understand?
Warwick Tatford: Thank you.
Mr Beer: Can I start, please, with a short number of questions about your professional background. I think you were called to the Bar in 1993; is that right?
Warwick Tatford: Yes.
Mr Beer: You became a tenant in chambers in 1994 –
Warwick Tatford: Yes.
Mr Beer: – at your present chambers, albeit it’s changed name twice since then; is that right?
Warwick Tatford: That’s right, yes.
Mr Beer: You’ve practised almost exclusively in the field of criminal law, both prosecuting and defending?
Warwick Tatford: Yes.
Mr Beer: Most of my questions today are going to concern the case of Seema Misra. Can I start at the end, as it were, and go to page 56 of your witness statement.
I wonder if that can be displayed on the screen, please – page 56, and the bottom half of the page, please, if we scroll down. Thank you.
This is the concluding paragraph of your statement. Six or so lines from the bottom, you say:
“I am proud of my role as a barrister in the criminal justice system and am extremely sorry that I played an unwitting role in Seema Misra and Carl Page having unfair trials. I am particularly conscious that in Mrs Misra’s case I was Prosecution Counsel at the head of a difficult disclosure exercise that failed.”
Then over the page:
“Over the years, as I have watched and tried to learn from all the Horizon cases, I have thought repeatedly about whether there was something different I could have done, whether I should have asked more or different questions, whether I should have insisted on an independent expert. I cannot see how Professor McLachlan could have worked without considerable assistance from Fujitsu and someone like Gareth Jenkins, but perhaps there should have been the extra precaution of an independent expert on the Prosecution side.”
Then I won’t read the rest. So you tell us in that statement there, unlike a number of other witnesses who have sat in the same witness box as you, that you are extremely sorry that you played a part in Mrs Misra and Mr Page having unfair trials.
Warwick Tatford: Yes. I’d like to offer my unreserved apologies to both of them. I know Mrs Misra, I can see her, and I’m very sorry. I don’t know if Mr Page is here. It’s – I offer my apologies to him.
Sorry, I find this rather difficult. It’s not actually about me but I am – I do feel ashamed about what had happened – what’s happened and – but the best I can do is try and help the Inquiry and try and learn a bit myself, but it’s – well, that’s enough about me. It’s much more important to answer the questions, but I’m sorry. I feel ashamed that I was part of this, but I want to try to help if I can.
Mr Beer: Thank you very much, that can come down.
The Inquiry has heard evidence that the Post Office saw the Seema Misra case as a test case to deter subpostmasters for blaming the Horizon system for alleged shortfalls or advancing Horizon integrity issues as defences when they were prosecuted. Did you get that understanding when you were prosecuting this case? That it was seen as a test case with a deterrent purpose?
Warwick Tatford: No. I knew it was an important case, and important for all parties, but I’ve seen reference to test cases. It seems to me that a criminal trial can’t ever be a test case because the case is decided on the individual case and everything is different. But it was a very important case, and the – Post Office Limited clearly wanted to do whatever they can to – they could, to give a full evidential picture of Horizon. It may be that they, and indeed me, that I was – and that we hadn’t realised the problems. But it seemed to me that it was an exercise not in shying away from the challenge; it wasn’t a test case.
I do appreciate that after the trial, there was an announcement made by my instructing solicitor. For what it’s worth, and it’s only my opinion, I thought that was unwise because my view wasn’t that this was a test case; it was an important case.
One of the ironies of the case is that, when it began, many of those involved in the Post Office would have – I think would have accepted pleas to false accounting. One of the ironies is I think I was the one who put my foot down initially and suggested that we should proceed on the theft trial. So certainly at that stage it wasn’t in any kind of test case. It became important but I think test case – I wouldn’t agree with that title but it was clearly very important to the Post Office.
Mr Beer: Why was it important? In what respect was it important to the Post Office?
Warwick Tatford: Well, because the Horizon system was a system used throughout the business and throughout all the post offices up and down the land, and it was important that that worked. Not only in terms of criminal investigation but for the general public. It’s essential that it works.
Mr Beer: So if we take out of the question the legal language of test case, would you agree that it was seen by the Post Office as an important and significant case –
Warwick Tatford: Yes.
Mr Beer: – that was – and it was important and significant because it was necessary to demonstrate convincingly that there were no problems with Horizon?
Warwick Tatford: Yes, I think I would agree with that, I do think that it was treated as an individual case but there was a significant challenge to Horizon, and the Post Office did think that had to be met and that there was a wider public interest in that being met.
Mr Beer: How did that importance or significance manifest itself in the conduct of the case?
Warwick Tatford: In a strange way, it didn’t. There was just a feeling of a lot of pressure throughout the case. At an early stage before Gareth Jenkins was instructed, there was a lot of pressure because of what we considered, rightly or wrongly, to be very wide-ranging and potentially, to an extent, irrelevant disclosure requests. There was a lot of pressure trying to deal with that situation.
And then, once Mr Jenkins and Professor McLachlan were involved and, as I saw it, cooperating together, it was seen, I think, as important by both sides that they should work together to try to establish whether the problems that were alleged against Horizon, whether they existed or not. That was an important issue.
In a way, it was a slightly strange case to choose because there were lots of complexities to it. There were the complexities of the initial defence statement, and so forth. In a way, I suppose, if the Post Office wanted to choose a test case, they might have chosen a case that was more straightforwardly dependent and dependent alone on Horizon deficiency.
Mr Beer: You mentioned that there was pressure and then when you went on to explain that, you explained it in terms of pressure to administer disclosure requests.
Warwick Tatford: Yes. I didn’t feel – I’m so sorry, I interrupted.
Mr Beer: Was there anything other than the normal work pressure that one has to deal with disclosure requests and late disclosure?
Warwick Tatford: No. I didn’t – for instance, I didn’t have any – apart from an email that’s in the bundle talking about the difficulties of the workload for Investigators, I essentially had no communications from anybody higher or in a wider capacity than my instructing solicitor and the Investigator, Jon Longman.
Mr Beer: Can I turn, then, to your earliest involvement in the case.
Warwick Tatford: Yes.
Mr Beer: I think you received written instructions to settle an indictment, to advise on evidence and to appear for the prosecution at trial?
Warwick Tatford: Yes.
Mr Beer: I wonder whether we can look at that, please. POL00044585. We can see the summary of what you’re asked to do in the underlined emboldened and capitalised section at the top:
“Instructions to Counsel to Settle Indictment and Advise on Evidence and Brief for the Prosecution”.
I think this marks your first involvement in the case?
Warwick Tatford: Yes, that’s right.
Mr Beer: If we go to page 3 and look at the foot of the page, please, we’ll see that these instructions from Jarnail Singh and Mr Taylor, a senior lawyer and legal executive respectively, are dated a day in February 2009?
Warwick Tatford: Yes.
Mr Beer: We haven’t got the original, we’ve got one that’s been pulled from a computer and so the exact date to be inserted, presumably in handwriting, is not included?
Warwick Tatford: Yes.
Mr Beer: So if we look at page 2, please, and the foot of the page, please, bottom two paragraphs, your solicitors ask you to: “advise on evidence and, in particular, whether [you consider] any additional evidence is required”; appear at the Prosecution – at a Plea and Case Management Hearing on 20 March at Guildford Crown Court. So that’s the request, yes?
Warwick Tatford: Yes.
Mr Beer: Can you tell us what an Advice on evidence is, to your understanding, ignoring for the moment here the particular or specific request for consideration of any additional evidence?
Warwick Tatford: Yes. An Advice on evidence is required by most prosecuting authorities in almost every kind of case, from the most straightforward to the most complex. Sometimes an Advice doesn’t need to be in writing. A telephone Advice will be ample and will be sufficient. Sometimes more detail is needed. But the Advice at this stage would simply involve counsel looking at the papers, checking the proposed indictment, which counsel would then draft, as was then the practice for the Post Office.
I, as counsel in this case, would have looked at the witness statements, the exhibits, the unused material, the schedule that was prepared at this stage and, also, the internal Investigator’s report, just to check that everything was in order, and I did that in this case. I didn’t provide –
Mr Beer: Sorry to interrupt you, Mr Tatford. I was asking at a general level to start with, rather than what you in fact did or didn’t do in this case. So an Advice on evidence is what?
Warwick Tatford: Oh, well, it’s advising, first of all, overall, is there reasonable prospect of a conviction.
Mr Beer: That’s what I wanted to understand.
Warwick Tatford: Yes, forgive me.
Mr Beer: This document can come down. Thank you.
So an Advice on evidence, in the context of criminal proceedings, is an Advice as to evidential sufficiency to sustain the allegations?
Warwick Tatford: Yes.
Mr Beer: It’s not an Advice about, or only about, what future evidence or other evidence we might obtain. It’s an assessment of whether there’s a realistic prospect?
Warwick Tatford: Yes. An assessment of that, assessment of the public interest, assessment as to whether it’s the right charge. And then, after those more important matters, then perhaps a consideration of what evidence might be missing, whether everything is in order.
Mr Beer: Can we turn to your witness statement, please, page 20. On page 20, if we can look at paragraph 41, please, and the fourth line:
“I did not provide a written Advice on evidence at this stage: this was not unusual in a case where, as here, I had been provided with all the necessary paperwork and the case appeared properly prepared.”
So you were instructed to provide a written Advice on evidence but you didn’t?
Warwick Tatford: Well, I think when counsel is instructed to advise, I’m not sure it’s necessarily in writing. But sometimes it will be. What I did in this case was to look at the evidence, to look at the indictment, to consider the various matters I’ve outlined and formed a view about it.
I can’t remember now whether I telephoned Jarnail Singh, but one of the main results of advising on evidence is drafting the indictment because – it’s a shame these days counsel isn’t required to draft indictments more regularly, because, if you’d have to draft the indictment you really have to read the papers, and so, by drafting the indictment, you’ll have a very full understanding of the case and be in a position to advise, in a fairly brief and succinct way, as to all the issues I’ve outlined.
Mr Beer: You give us the reasons for not preparing an Advice here, that you’d been provided with the necessary paperwork and the case appeared properly prepared. Evidential sufficiency requires an examination of that paperwork, doesn’t it, not just whether there are pieces of paper –
Warwick Tatford: Oh, yes.
Mr Beer: – in the brief. You say the case appeared properly prepared. Did you, in fact, look at the substance of what the evidence disclosed, as opposed to whether it appeared well arranged?
Warwick Tatford: Oh, yes, no, it’s not a question of arrangement. It’s looking at the case summary, looking at the Investigator’s report, which is often more detailed, and then checking the evidence.
What I was able to do, because I was familiar with this sort of case, was to see that it was in order. I could do that fairly quickly because I was familiar with this sort of Horizon deficiency case where it appeared to be a straightforward deficiency case.
Mr Beer: To what extent did you understand, at this time, and so early 2009, that the Post Office relied upon independent counsel advising on the sufficiency of evidence as part of its governance and oversight of the prosecutorial process?
Warwick Tatford: Oh, I realise that was important to them. They relied on barristers much more, for instance, than the CPS.
Mr Beer: We’ve heard a number of witnesses say “Ah, a part of our system was the use of the independent bar and a member of the independent bar advising on realistic prospect of a conviction”, and some of them have said, “and on the public interest too”. Did you do that in this case?
Warwick Tatford: Yes, but I think I did in writing later on –
Mr Beer: I’m sorry to speak over you.
Warwick Tatford: No, forgive me.
Mr Beer: We’ve got to get through some work.
Warwick Tatford: No, absolutely.
Mr Beer: There is an Advice dated 25 January 2010, which is an Advice about, principally, disclosure?
Warwick Tatford: Yes.
Mr Beer: Not about whether there’s a realistic prospect of conviction. Was there ever any written Advice on evidential sufficiency or public interest?
Warwick Tatford: Not written Advice but I gave telephone Advice to Jarnail Singh on the day of the PTPH, because we discussed pleas.
Mr Beer: Right, and so that was on 20 March; is that right?
Warwick Tatford: Yes.
Mr Beer: So between receiving the instructions and the PTPH – in fact I think back in the day it was a Plea and Case Management Hearing –
Warwick Tatford: Yes.
Mr Beer: – you hadn’t advised on evidential sufficiency and public interest?
Warwick Tatford: No, I don’t think that was – I don’t think that was particularly surprising. I don’t know exactly when the brief came through but I had advised on the indictment, and I took – well, when I advise on the indictment, I’m essentially saying, at least by implication, that there is a reasonable prospect of conviction, otherwise I wouldn’t be drafting the indictment. I’d do an Advice to say there’s no prospect of conviction.
Mr Beer: So the fact that you settle an indictment is an implied statement that there is a reasonable prospect of securing a conviction on the counts that you settle?
Warwick Tatford: I think so, yes.
Mr Beer: Does that mean that you don’t separately, where you’re settling an indictment, advise in writing?
Warwick Tatford: No, I think I did relatively few written Advices for the Post Office and, indeed, for the CPS at this time on fairly straightforward cases. I’m not seeking to diminish the importance of cases but instructions to counsel is to advise. There isn’t a time limit in the instructions, I think, and –
Mr Beer: What –
Warwick Tatford: – it’s an ongoing process.
Mr Beer: What’s the important of that point? That there wasn’t a time limit?
Warwick Tatford: Well, in this case, for instance, this case changed. But I took the view that my duty was to read the papers, to draft the indictment and I would do – only do that if I was satisfied there was a reasonable prospect of conviction. Then my view was that I’d complied by doing all of that with the – my instructions because those are the instructions that come in every single brief, and counsel tries to do written Advices as often as possible but there is simply not time, I’m afraid, in every single case.
Mr Beer: So was it usual in Post Office cases for you to be requested to advise on evidence but you not formally to do so. You either do so by a phone call or by settling the indictment, which carried the implication that there was sufficient evidence?
Warwick Tatford: Yes, I think so, and the instructions were very much in – those were instructions, I think, in every brief, so it’s part of the pro forma of the brief. That’s not to underestimate the important of that. It’s vital that prosecution counsel does review those matters.
Mr Beer: Thank you. That document can come down.
As we’ve seen from the instructions, you were also requested to settle an indictment. Can you explain, for those who don’t know, what settling an indictment means, please?
Warwick Tatford: Well, it means setting out the charges that fit the evidence. So, in this case, it was one count of theft and various counts of false accounting in relation to various monthly branch trading forms from the West Byfleet office.
Mr Beer: I think you’ve confirmed this already: in your view, settling an indictment carries with it an implication that there is a realistic prospect of a conviction?
Warwick Tatford: Yes.
Mr Beer: Would you not accompany your Advice by setting out an analysis of evidential strengths and weaknesses and where the public interest lay?
Warwick Tatford: In an ideal world, yes, but I’m afraid there is simply not enough time to do that in every single case. It’s simply impossible. The Post Office, I think at that stage, paid counsel for written Advices, so there’s an incentive there. But, for instance, in every single case, it’s simply impossible. The workload is too great.
We would all love to do that but I’m afraid, even back then and more so now, it’s very difficult to do written Advices for every single case.
Mr Beer: Accompanying the indictment was a “Schedule of Charges”.
Warwick Tatford: Yes.
Mr Beer: Can we look at that, please. It’s POL00045010. This accompanied your brief and your instructions. Are these the charges in respect of which Mrs Misra had been committed by the Magistrates Court to the Crown Court?
Warwick Tatford: Yes.
Mr Beer: If we pan out a little bit, we see that Charge 1 was a theft allegation of stealing £74,000-odd and the remaining four are false accounting charges –
Warwick Tatford: Yes.
Mr Beer: – as you’ve said. So one theft, four false accounting. The date range in the theft allegation is 15 November 2006 and 14 January 2008?
Warwick Tatford: Yes.
Mr Beer: You say in your witness statement – I’m so sorry.
I wonder whether we can turn to POL00051092. We can see an email from you to Jarnail Singh on 10 March, saying:
“Please find indictment attached for Misra, which needs to be lodged today.”
I think we’ve seen in your instructions that the deadline for you settling the indictment was, indeed, 10 March.
Then if we can look, please, at POL00051149, we can see an indictment. You say in your witness statement that you do not believe that this is a copy of the indictment that you settled and, instead, it was a copy included in your papers as a draft indictment.
Warwick Tatford: Yes, I think that’s right, yes.
Mr Beer: Just dealing with those two things separately, why it might not be a copy of the indictment that you settled: plainly it wasn’t the one enclosed with the email because we can see a T-number written in hand on the top right-hand side. That wouldn’t have been included in the attachment to your email, would it?
Warwick Tatford: No.
Mr Beer: If we look at page 3, please, at the foot of the page, we can see it’s dated 16 March 2009, again in hand, which is after your email of 10 March, yes?
Warwick Tatford: Yes.
Mr Beer: Then if we look at the very foot of the page, we can see that there’s a character string suggesting that this document may have come from a drive or may have been saved in a drive relating to Jarnail Singh; can you see that?
Warwick Tatford: Yes, I do.
Mr Beer: So that, I think, establishes the first part of the proposition that it’s not the one that was attached to your email. But you tell us as well, that you think this was a copy included in your papers as a draft indictment. That’s unlikely, isn’t it, given these features, the three features?
Warwick Tatford: Yes, that’s right, looking at the dates. I said that, I think, because there often would be a draft indictment.
Mr Beer: Well, the instructions that you received set out the enclosures and draft indictment isn’t one of them?
Warwick Tatford: Oh, well, I’ve missed that. That’s me thinking – making a mistake because of other cases, then.
Mr Beer: I just want to look at the substance then, whether this looks to be the indictment that you settled, albeit dates and signatures have been added after you settled it.
Can we just look at page 4, please, which is the next page, and scroll down, and scroll down. Is that the kind of back sheet that you would prepare when you were settling an indictment?
Warwick Tatford: No, I wouldn’t do a back sheet. If I sent an indictment by email, I would simply send it as an attachment to the email, I think. A back sheet – in this – around this time, we were still not using computers anywhere near as much as the barristers use them now but I would only send – attach a back sheet to a written piece of work, which was sent in the DX.
Mr Beer: If we scroll up, please, we can see this has got a “Received” stamp on it of 11 March 2009, the day after you settled it. Do you think you sent one out in the post or by DX too?
Warwick Tatford: No, I don’t think so. I think I simply sent one out by email. The reason – the reason I don’t think this is the indictment I drafted is simply because of the formatting. I don’t think I’d have underlined names in quite the way it is. I may be in error about this because I’ve noticed my formatting generally is very different from now I format matters now.
Looking at the dates, this might well be the indictment I drafted. I thought that it wasn’t because of the way it’s formatted but I’m not sure, I’m afraid. I don’t think there’s any significant difference from the indictment I drafted and the original draft.
Mr Beer: When you say the indictment that you settled and the original draft, what are you referring to as the original draft?
Warwick Tatford: Oh, the charges, I think, in this case, as there wasn’t a draft indictment, it would be the charges. So I used the charges, I compared them against the evidence and drafted the indictment. Maybe – I’m so sorry – sorry.
Mr Beer: In fact, if we look back at page 1 of the indictment, we can see there are some material changes. The theft count, you can see the period of the alleged theft is expanded in terms of its start date – can you see that –
Warwick Tatford: Yes.
Mr Beer: – and this remained so, including up to the point of arraignment and at trial, 29 June 2005. Then if we look at the accounts, remembering previously there were four counts of false accounting, if we just scroll through this document – and keep going.
We can see there are seven counts in total, six counts of false accounting. So it’s expanded from four to six. You think that was your work, the –
Warwick Tatford: Oh, yes, certainly the – focusing on the date is helpful because I’d have begun it with the beginning of Mrs Misra’s time at the West Byfleet office. The more I look at this, it may be I was misled by the way it was formatted. This may well be the indictment I drafted. I’m sorry if I made a mistake about that.
Mr Beer: That’s all right. Just going back to Count 1, then, and the theft, I think you just said that you expanded the period of coverage from the date that Mrs Misra started in the Post Office, at West Byfleet, that being 29 June 2005.
Warwick Tatford: Yes.
Mr Beer: At the point of settling the indictment, had you got anything such as ARQ data?
Warwick Tatford: No.
Mr Beer: Did you subsequently receive ARQ data?
Warwick Tatford: Well, it was certainly – I think I did, I must have done. The defence was served it, I would have had it served at the same time. I know I advised that it be – that it be served on a disk, I think; they wished to print it out. I’m trying to remember whether I had a full copy myself but I would have thought I did, but possibly just on a CD-ROM.
Mr Beer: Thank you. If we just look at some other material that may help you –
Warwick Tatford: Of course.
Mr Beer: – FUJ00122707. This is Penny Thomas, an employee of Fujitsu, her witness statement for the purposes of the Seema Misra prosecution, dated 4 February 2010. You can see what she says in the opening paragraph, if we just scroll down a little bit, to remind you of who she was. If we then turn to page 5, please, in that first substantive paragraph, she produces a copy of some ARQs, and she gives the number as her exhibit PT1, and produces a CD as her exhibit PT2.
Warwick Tatford: Yes, I see.
Mr Beer: Then, if we go to page 7, please. This is a document that she attaches to her witness statement, which appears to give the date range of the ARQ data that she was exhibiting. Can you see the date range in the right-hand column three boxes down –
Warwick Tatford: Yes.
Mr Beer: – 1 December 2006 until 31 December 2007. That period is a limited period covering only the false accounting charges, rather than the whole of the theft period, which ran from when Mrs Misra took over West Byfleet on 29 June 2005 to 14 January 2008. Do you know why that was, why the ARQ data was obtained for a different period of time than the allegations in Count 1?
Warwick Tatford: The – well, I think this ties in with the – what I set out in my abuse of process argument because the Post Office told me that it was – because of their contractual relations with Fujitsu, they wouldn’t be able to have ARQ data to cover the full indictment period and I’ve set out the reasons what – as to what I was told about that in my abuse of process argument.
I acknowledge straightaway that the Court of Appeal in Hamilton have said that the full material must be served but I’ve set out the explanation as to why a shorter period was chosen. It is to do with the cost and the contractual arrangements but, also, a shorter period was chosen so that there could be a focus on a time when the data may not be affected by the thefts that Mrs Misra said that she’d dealt with.
Mr Beer: So that’s the explanation, cutting through matters, that you put when cross-examining the defence expert, Professor McLachlan?
Warwick Tatford: Yes.
Mr Beer: You said – I’m not going to turn it up for the moment – the rationale behind why you were given that 13-month period, ie December ‘06 to the end of December ‘07, is because it’s not tainted by any suggestion of theft, ie suggestion of theft made by Mrs Misra. It’s clean data to look at for computer error.
Warwick Tatford: Yes, not tainted by theft by employees of Mrs Misra, not Mrs Misra herself. It’s to – clean data to focus on whether any patterns could be seen that might be suggestive of Horizon problems. It was really to focus on that – the three possibilities, that possibility that was raised by her defence at the trial.
Mr Beer: Professor McLachlan replied “But I requested the data for the entire period”, and you said:
“I fully accept that but, if one requested and received every piece of paper for West Byfleet, we would probably fill this room.”
Is that your understanding of why the data was not requested for the entirety of the period of the theft count, ie cost and volume?
Warwick Tatford: Cost, volume, those were the main reasons, I’m afraid. It was also – there was the additional consideration of an untainted period but I – the dominant factors were cost – the dominant factor was cost and the contractual relationship with Fujitsu, I think.
Mr Beer: I think you candidly accept in you witness statement that, on reflection, this was the wrong approach?
Warwick Tatford: Yes. Very much so. And – well, I set out reasons for that. I agree. I accept that. Yes.
Mr Beer: Would I summarise them correctly as follows: the Crown chose to charge an ongoing theft over a long period of time?
Warwick Tatford: Yes.
Mr Beer: Once the defence raised the reliability of Horizon, disclosing the Horizon data for the whole of the indictment period was not a matter of disclosing unused material; it was also the primary evidence upon which the Crown relied in order to prove that the property belonging to another had been appropriated by the defendant?
Warwick Tatford: Yes, that’s right, it was served as evidence.
Mr Beer: In other words, that data was necessary to prove the elements of the offence of theft?
Warwick Tatford: Yes, I would agree with that.
Mr Beer: Therefore, Mrs Misra was entitled to receive the entirety of the data for that period as served evidence, so that her expert could analyse it and see whether the Crown had indeed proved its case?
Warwick Tatford: Yes, I certainly would agree with that now. I’ve explained the reasoning. I think the reasoning now was wrong, as exposed by the Court of Appeal. But, actually, the way that you’ve exposed it shows that it’s wrong simply in its basic logic.
Mr Beer: Did you consider that the theft and false accounting charges were essentially alleging the same criminal conduct?
Warwick Tatford: No. I was aware of the case of Eden, which I referred to in my abuse of process argument, and the Crown has to consider very carefully whether to charge both types of offending. In this case, it was fully justified because it allowed Mrs Misra to plead guilty to what she accepted but also allowed the Crown, if it had the evidence to do so, to pursue the clearly more serious allegation of theft.
Mr Beer: So these were separate offences, reflective of two different types of alleged criminal conduct –
Warwick Tatford: Yes.
Mr Beer: – the first being a theft charge relating to the alleged stealing of the money, the second being a false accounting charge or a series of false accounting charges relating to the alleged covering up of the theft?
Warwick Tatford: Yes, the false accounting was the covering up but Mrs Misra, in her interview, suggested she was covering up for thefts of others, so there was a different motive for that offence, which made it a less serious offence. If she was only convicted of that offence alone and found not guilty of the theft, she’d get a very different sentence.
That’s why I thought it very appropriate to have the two different kinds of offending, albeit they’re linked but the motivations were different.
Mr Beer: Can we turn to the Plea and Case Management Hearing. That took place, as we’ve said, on the 20 March 2009 and you address what happened at page 20 of your witness statement, paragraphs 42 and following, if we can turn that up please. So page 20 of your witness statement, 42, please. I’ll just read these aloud:
“The PTPH [as I have said, I think it was a Plea and Case Management Hearing] took place on 20/3/09. I have a recollection of being asked by Andrew Castle, the solicitor advocate for Mrs Misra, whether pleas to false accounting would be acceptable. I had anticipated being asked this question as it was obvious from the papers that such an offer was going to be made. I had formed a view, before the enquiry from Mr Castle, that such an offer should not be accepted, because the suggestion that Mrs Misra had been entering false figures over a considerable period, only to cover the thefts by members of staff, seemed clearly refuted by the fact that her false figures continued to rise long after the dismissal of the alleged thieves. The figures would simply reach a false plateau if the source of the loss ended. Instead they continued to rise, suggesting that the loss was continuing in spite of the sackings. The obvious inference to me at the time was that the hole in the accounts was growing because Mrs Misra was stealing money. It seemed far more rational that Mrs Misra would use false accounting to hide a hole created by herself than by others. My experience from other cases was that a [subpostmaster] whose shop was struggling might ‘borrow’ money from the funds of their sub post office to put into their shop, hoping in due course that they would be able to return money into the sub post office before an audit occurred. In the absence of an audit the [subpostmaster] could hide the hole in the accounts by false accounting. Only the stocktake involved in an audit could reveal the true deficiency. That was my opinion, but as I only act on instructions it was essential for me to discuss the plea offer with my instructing solicitor. My recollection is that, whilst at court before the hearing, I telephoned my instructing solicitor, Jarnail Singh, to discuss this. He agreed that the pleas were not acceptable. I do not remember exactly what was said … but the advice I would have given would have been along these lines: the account the Defendant had given in interview, that she was the victim of thefts by former employees did not fit the evidence – the apparent holes in the accounts increased after the dismissal of the stealing employees; I thought it did not make sense that Mrs Misra would cover up, by false accounting, a loss caused by the dishonesty of others – a desire not to lose the sub post office did not appear to explain false accounting on such a scale, because there would be no point keeping hold of a business that was haemorrhaging so much money; the Defendant said in interview she had only reported a tiny fraction of the thefts to the police – this did not make sense to me because she was obliged by common sense and by contract to report the theft and if she was prepared to report the theft, why not report all of it?”
Now, in fact, it appears – and you may have forgotten this when you made your witness statement – that Mrs Misra pleaded guilty to the six counts of false accounting at these Plea and Case Management Hearing.
Warwick Tatford: Oh, yes, I didn’t mean to suggest anything else. I was asked whether that would be acceptable on its own. I said no, having taken instructions, but then she entered her pleas. I don’t know if that’s the precise order but she certainly entered her pleas. I didn’t mean to say otherwise.
Mr Beer: Thank you. Can we look, please, at POL00051441.
This is a letter dated 13 May, so two months or so after the PCMH to you or, in the old-fashioned way, to your clerk. You’ll see that are, if we scroll down, right at the foot of the page, it’s from Mr Taylor, a legal executive within the Criminal Law Division, co-author of your instructions.
He says he’d received a telephone call from Jon Longman, the Investigating Officer who took over this case from Adrian Morris:
“Counsel will recall the Defence letter, dated 16 March 2009 [so that’s four days before the PCMH] which advised the Defendant would plead Guilty to all counts relating to false accounting but Not Guilty to theft.
“Counsel will also recall that subsequent to that … letter dated 9 April 2009 the names and addresses of 3 people who worked at the sub post office at various times were notified to the prosecution. Jon Longman has attempted to contact these people and has attended their addresses. None of them now live at the addresses given and one is believed to now be living in India.
“Bearing in mind the matters which the Defendant set out on pages 13 and 14 (Exhibit bundle) John has asked me whether it would be in the public interest to continue with the prosecution.
“Myself (or Jarnail who is also aware of this) would appreciate Counsel’s advice as to whether or not it would be sensible to continue with the prosecution or to accept the false accounting charges.”
So essentially summarising: the Investigator was wondering, in the light of the allegation that other people had been responsible for the thefts, whether it would be in the public interest to continue with the prosecution, ie the prosecution for theft because that was the only contested allegation that remained.
Warwick Tatford: Yes.
Mr Beer: Can we turn, please, to POL00047864.
That’s an errant reference. POL00047864, that seems to be it. Can I try the reference that I was originally going to seek to display: POL00051586.
I’m sorry, sir. There appears to be a ghost in the machine. I wonder whether you would mind taking a 10-minute break now, slightly earlier than usual, whilst we sort that out.
Sir Wyn Williams: No, that’s fine, Mr Beer. So what time shall we start again?
Mr Beer: Maybe 11.05, please.
Sir Wyn Williams: Yes, that’s fine.
Mr Beer: Thank you very much.
(10.52 am)
(A short break)
(11.05 am)
Mr Beer: Good morning, sir, can you see and hear me?
Sir Wyn Williams: Yes, I can, thank you.
Mr Beer: Apologies for that interruption. Can we display, please, POL00051586. Can we look at the foot of this page, please. If we scroll down a bit more, we can see an email from Phil Taylor, the legal executive, to you, dated 22 May 2009. We can see that the Misra case was in a warned list, according to the title of the email, of 12 June 2009, yes?
Warwick Tatford: Yes.
Mr Beer: He says:
“Hi Warwick,
“I am just a little bit in the dark about Misra. You will recall that there is one count of theft and some false accountings. The Defence will plead Guilty to the false accountings [in fact, of course, she already had by then, as we’ve established] and Jon Longman is fairly happy for us to accept those pleas.”
In fact, those pleas, as I say, had already been entered:
“However we are some £70,000-odd light at the moment as I understand it and if we just accept the false accountings it is very difficult for us later to obtain a Confiscation Order and subsequently compensation out of the Confiscation.
“Could you let me have your views on this. I would be very grateful to hear from you.”
You will have seen there that Mr Taylor appears to be drawing a link between the decision whether to proceed with the theft allegation or be content with the false accounting pleas and whether it will be possible to obtain a confiscation order, doesn’t he?
Warwick Tatford: Well, he draws a link. He seems to be ruling it out, but yes.
Mr Beer: Seems to be ruling what out?
Warwick Tatford: Well, he seems to understand that confiscation, which is my view, would be very difficult with false accounting, but – well, I can explain further but I’ll wait for your question.
Mr Beer: So you agree that he’s drawing a link between whether we accept the pleas or not by reference to the availability of a confiscation order?
Warwick Tatford: Well, he is making that link. He’s not a lawyer, he’s very much a case worker. He would be called a case worker in the CPS, albeit he’s extremely experienced. His main concern was preparing cases so witness bundles, organising witness availability, and so forth. It seems to me he’s just approaching everything in the round and asking what’s going on but simply because he doesn’t know what I’ve discussed with Jarnail Singh previously.
Mr Beer: In your witness statement, you tell us – it’s paragraph 43, no need to turn it up – that you had always taken the view that the availability of a confiscations order was an irrelevant consideration in making a charging decision –
Warwick Tatford: Yes.
Mr Beer: – and, do I take it from that, an irrelevant consideration in deciding whether to accept pleas or not or continue with counts on an indictment?
Warwick Tatford: I think so, yes.
Mr Beer: Is it right that that’s always been your view?
Warwick Tatford: Yes. Confiscation is a consequence on conviction, it’s not a – it’s really, it’s out of place, it seems to me, in any consideration of the public interest and what’s acceptable as a plea.
Mr Beer: I was going to ask you why you hold that view. Is that it: the reasons you’ve just given?
Warwick Tatford: Yes. No, precisely. And it depends on other factors, such as whether the defendant has any means but those are factors to be looked at after pleas are decided. It seems to me to muddle the two is very dangerous.
Mr Beer: Why is it very dangerous?
Warwick Tatford: Because cases should be prosecuted if the offence and the evidence merits it not because of the consequences. That applies to other orders as well, I would have thought, disqualification orders are different sorts of offences. I think it’s important to draw a distinction between what the evidence shows, what is in the public interest. That has to be looked at in terms of charges and acceptable pleas.
Consequences then follow automatically according to the law. I think they do need to be separated. That’s my view.
Mr Beer: If we just go back to the email, please, POL00051586 and look at the middle passage in the email chain. There’s your reply of 22 May, the same day:
“Dear Phil,
“I have spoken to Jon Longman about this case.”
Just stopping there, would that be spoken at this time, ie May, or are you referring back to some previous occasion?
Warwick Tatford: I’m not sure but I think it’s previously. I wouldn’t be – it may have been back at the time of the PTPH, Jon Longman might have gone along for that but I don’t know. I’m not entirely sure. I think I’ve spoken to him to this communication, it’s not at the time of this communication. But I’m not absolutely certain about that.
Mr Beer: Was that usual, for you to have direct communications with Post Office Investigators?
Warwick Tatford: Yes, I tried to do that as much as possible because I found, as indeed with police officers, one can achieve a great deal by having that contact with the Investigator. I try and get their mobile number as soon as possible in any case I prosecute. It saves an awful lot of unnecessary – well, it saves a lot of time and it helps get on with the case.
Mr Beer: What about an audit trail of such communications: how is that kept?
Warwick Tatford: Well, the audit trial, I suppose, these days would automatically follow from email. I wouldn’t expect to have to set out an audit trail for every phone call I had with an Investigator in any case.
Mr Beer: So the answer is that there isn’t an audit trail?
Warwick Tatford: No, no, it’s one reason I do try these days to use email for that reason. But there won’t be an audit trail and I don’t think there’s any requirement for any audit trail for that sort of situation.
Mr Beer: You continue:
“The case for theft is strong and we should not accept the pleas. Confiscation would also be a non-starter if we did. Jon is making some further enquiries about the ‘thieves’ the Defence have given us details for. It may be we have been given false details which may strengthen our case.
“Do call me on [your number] if you would like to discuss further.”
So you address evidential sufficiency of the theft charge first, yes?
Warwick Tatford: Yes.
Mr Beer: Then you continue:
“Confiscation would be a non-starter …”
If the availability of confiscation was an irrelevant consideration in deciding whether or not to commence or to pursue charges, why are you addressing it here?
Warwick Tatford: I’m addressing it because Phil Taylor’s addressed it and I want him to know my full position. But what I mean by my sentence structure, the full stop is meant to be there: “The case for theft is strong, we should not accept the pleas”, full stop. That’s the end of that consideration.
Confiscation would also – that also is important. That does reflect, I hope, exactly what I’ve said about how I approach confiscation after considerations of pleas. My grammar is quite deliberate there.
Mr Beer: Did you ever gain a sense, when prosecuting for the Post Office, that recovering money through confiscation orders was a very important consideration for it, the Post Office?
Warwick Tatford: It’s an important consideration. I never got the impression that it was any kind of decisive reason for any prosecution. The Post Office were very – they were most keen in ensuring that confiscation orders were turned into compensation orders, so that they would get the money. But they were realistic about defendants’ means, and so forth.
It was an important matter for them, as it should be for any prosecuting authority. I didn’t get the impression that it was of vital importance in every case. It was a consequence which they took seriously.
Mr Beer: Thank you. Can we move on to the first trial, then, on 2 June 2009. If we can look at your witness statement, please, at page 23. Bottom paragraph, please, from 46 onwards, you say:
“The trial was placed in a warned list and the case eventually listed for trial on 3/6/09 before Recorder Bailey. It was on this day that concerns were raised for the first time in the case about the integrity of Horizon.
“The attendance note of Jarnail Singh [and you give a reference] seems to set out accurately what happened on …”
You call it 3 June, I think as we’ll see it is 2 June.
Warwick Tatford: Forgive me.
Mr Beer: “… when Ms Misra’s trial was listed. I don’t think I saw the attendance note at the time. I was often attended upon when I prosecuted Post Office cases and it was not unusual for the reviewing lawyer to attend on the first day of a trial”, et cetera.
Then if we go down to paragraph 48:
“Until I saw the attendance note … I had believed that Defence Counsel was Keith Hadrill. This was a mistake on my part because of Mr Hadrill’s later role as trial Counsel. I was involved in a couple of cases with Mr Cousens … around the late ’90s and early 2000s and I do now think he was trial Counsel on 3 June 2009 but I am not 100% sure. I do remember clearly that Defence Counsel produced a photocopy of a Computer Weekly article about alleged problems with Horizon and complaints about various [subpostmasters]. This was the first time in the case that I was made aware of the issue of Horizon IT reliability and the first time I was informed about problems at the various sub post offices referred to in the Computer Weekly article.”
So that can come down. Thank you.
Defence counsel produced a copy of an article from Computer Weekly. That was dated 11 May 2009, so only a few weeks before the trial was due to begin on 2 June 2009. Then can we go back, please, to your witness statement, please, page 26. Just pick up the end of paragraph 50, last three lines:
“All I did know was this was an important new issue that needed to be considered properly by both sides. It was therefore vital for there to be an adjournment.”
The trial was indeed adjourned, yes?
Warwick Tatford: Yes.
Mr Beer: In 51, you tell us about a new firm of solicitors. I’m going to skip over that. 52, you tell us:
“I realised that we were about to embark on a demanding disclosure exercise. I was conscious that both sides were treading new ground and the only guide I had so far was the Computer Weekly article. As I thought about matters, it seemed to me it would be important to focus on the West Byfleet sub post office and consider whether any Horizon problems had occurred there. Complaints from [subpostmasters] about problems at different offices might raise evidence of a problem that could be examined in relation to West Byfleet, but it seemed to me that a simple complaint by a [subpostmaster] was of very limited assistance. There would need to be evidence of what the problem was, or at least what its symptoms might be, eg the location within the office stock where the loss appeared to arise. I discussed the way I was thinking with Keith Hadrill and it was decided that there should be a joint visit to the West Byfleet sub post office.”
From your diary, you can say this appears to take place on 6 November 2009.
That can come down, thank you.
What was the purpose of visiting the branch?
Warwick Tatford: Oh, to see Horizon in use by the staff there and also to get an idea of how the branch was – the geography of the branch as a whole. It’s always helpful to look at the shop premises, but the main purpose was to ensure that both sides had seen Horizon in action at the West Byfleet office.
Mr Beer: Did you think there was a problem with the hardware in the branch?
Warwick Tatford: No, because I had the evidence of Mr Vasani(?), who took over control of the branch. He ran other branches as well, and he reported no problem.
Mr Beer: Do you think that the problems raised in the Computer Weekly article related to the operation of hardware in a branch?
Warwick Tatford: I wasn’t sure about that. That seemed likely because they related to individual offices, widely spread apart. But I wasn’t sure because there wasn’t enough detail, for instance that the Callendar Square issue, which I became much more informed about, which very much was a hardware issue within a branch, as I understood it – I wasn’t clear from the detail of the Computer Weekly article, but I was trying to keep an open mind.
Mr Beer: With hindsight, do you think addressing a series of concerns raised in the Computer Weekly article in the operation of the Horizon system would be addressed by going and looking at hardware in a branch?
Warwick Tatford: I simply thought it was a good place to start, because our case was concerned with West Byfleet and I wanted to ensure that the defence saw how it operated because I was aware from other cases that sometimes there were misunderstandings about what the system was like, and how – what it looked like to operate.
Mr Beer: Can we look, please, at POL00053393. We can see from the foot of the page it’s from Mr Taylor, and then, at the top of the page, we can see this letter is dated 15 October 2009, so a couple of weeks before the site visit. It’s addressed to Post Office Security with a copy to the Investigator, Mr Longman. It reads:
“[Prosecution] Counsel Warwick Tatford has been discussing this case with Defence Counsel Keith Hadrill, both of whom are resident [at your chambers].
“What they have decided is to visit West Byfleet … premises and perhaps someone can show them the Horizon system in operation which hopefully will knock on the head this business about the Defence requiring so many years worth of Horizon data.”
Was that your purpose: visiting the branch to knock on the head a request for years of Horizon data?
Warwick Tatford: No. I wanted the defence to see how Horizon worked and that would inform their disclosure request, but I wasn’t seeking to end proper enquiries.
Mr Beer: How would viewing the hardware in the branch inform their disclosure requests?
Warwick Tatford: Well, it would inform them a great deal because most of their – about half of their disclosure requests weren’t about Horizon at all but were about – weren’t about computer problems at all; they were about how easy the system is to operate and how errors arise, and that’s exactly what one could have a good idea about if you saw somebody using the system.
Mr Beer: Do you know where this idea that a demonstration of the operation of Horizon on a particular day, years after the events in question, was seen as a replacement for providing Horizon audit data at times relevant to the events in question?
Warwick Tatford: Well, I never saw it – I never understood that it was an alternative. The – forgive me, I can’t see – this is Phil Taylor’s letter, I think?
Mr Beer: It is, yeah.
Warwick Tatford: The wording is very in character for Phil Taylor. “Knocking on the head”, for instance, isn’t a phrase I would use but I can imagine him using.
The – I suppose it certainly was right we were using – the visit – I hoped the visit would help focus disclosure requests. We’d given an explanation as to why we thought a particular span was appropriate and that was still being considered, as I understood it, by the defence, and I thought overall they’d be helped by seeing the equipment.
I appreciate now, with hindsight, that’s wrong but, at the time, that appeared sensible.
Mr Beer: Why, with hindsight, is it now wrong?
Warwick Tatford: Well, because with hindsight I now know that there are lots of problems about Horizon which are completely out of my knowledge. I had no idea of anything that has been discovered since. At this stage, I knew nothing, other than the Computer Weekly article and I hoped that a visit might give some focus.
Mr Beer: When we come to the trial a year later, we’ll see, in due course, that when you opened and closed the case to the jury you said “How can there have been a computer problem” – I’m summarising – “when, if there was a computer problem, it would have been evident to Mrs Misra because she was the one operating the computer?”
Warwick Tatford: Yes, I can explain what I mean by that because I’ve seen that phrase, I’m aware of various –
Mr Beer: Online criticism?
Warwick Tatford: – online criticism and what I meant by that, and I hope this is a valid point, is that, if there is a problem, Horizon gives you a lot of opportunities to see where the problem might be arising. It delivers fruitful enquiries. Because, as indeed Mr Vasani said in his evidence very clearly, he was able to find the source of a problem by working through Horizon, the various printouts.
I’m not suggesting that one can see a computer problem from the screen of Horizon, you can’t, that’s obviously right. But what you can do is search the office from top to bottom, using all the printouts that Horizon can give, to get a full idea of where the problem might arise, as indeed Mrs Misra had done when she was able to identify thieves, and she did that by using Horizon, as I understand it.
Mr Beer: Did that belief, the belief that you’ve just expressed, inform your thinking of the desirability or necessity of a site visit, “Let’s go down to the branch and see the system in operation”?
Warwick Tatford: Well, it did inform it. I thought it would be helpful to everybody.
Mr Beer: That can come down. Thank you.
I’m going to turn to the appointment of Mr Jenkins in the Misra case. Can I start, please, with some general questions concerning the duty of a prosecutor in relation to an expert witness.
Would you agree – and these propositions I’m about to put to you, come from the evidence that the Chair of the Inquiry has heard from Mr Atkinson, King’s Counsel – that a prosecutor intending to rely on expert evidence in criminal proceedings was subject to an obligation firstly to satisfy themselves as to the expert’s relevant qualifications and expertise?
Warwick Tatford: Yes.
Mr Beer: Secondly, to satisfy themselves that the expert had been appropriately instructed, including by the provision of a written and detailed letter of instruction or an email of instruction, all being provided with written terms of reference?
Warwick Tatford: Yes.
Mr Beer: Thirdly, under an obligation to satisfy themselves that the expert was provided, within the instructions, with identification of what it is that his or her opinion is sought on and set out issues or questions that he or she is expect to answer?
Warwick Tatford: Yes.
Mr Beer: Fourthly, a prosecutor is under an obligation, would you agree, to provide guidance as to what it is the expert is being asked to do and what material they are being asked to consider in order to undertake that task?
Warwick Tatford: Yes.
Mr Beer: Fifthly, a prosecutor is obliged to set out the material upon which reliance has been placed in the prosecution and which may be relevant to the questions which the expert is expected to answer?
Warwick Tatford: Yes.
Mr Beer: Lastly, a prosecutor is obliged, would you agree, to inform the expert to as his or her relevant duties?
Warwick Tatford: Yes.
Mr Beer: Would you agree, again building on that, that, even with those experts who are trained, accustomed to or who make their living by giving expert evidence, ie even if you were preaching to the choir, a prosecutor has to make sure that an expert understands what their duties are?
Warwick Tatford: Yes.
Mr Beer: A prosecutor, would you agree, is under an obligation to satisfy themselves that the expert had understood in the first instance, and then complied, with their relevant duties to the court?
Warwick Tatford: Yes.
Mr Beer: That was a necessary duty in order that the prosecutor could be sure that the expert evidence was admissible, as a basic condition of admissibility?
Warwick Tatford: Yes, that’s right.
Mr Beer: Lastly, would you agree that a prosecutor was under a duty to satisfy themselves that any material or, indeed, literature, which might undermine the expert’s opinion, was reviewed by the prosecution and, if potentially relevant, disclosed not only to the defence but to the expert?
Warwick Tatford: Yes.
Mr Beer: Before we get into the weeds of emails and letters and draft witness statements, would you agree with the following three points, just as a matter of generality and stepping back:
Firstly, Mr Jenkins was never provided with a written document which met any of the requirements that we have just identified?
Warwick Tatford: That appears to be right. I think I may have assumed that he had been because I worked on the assumption that he’d been instructed properly. But I should have checked that and I didn’t. My assumption was wrong, perhaps.
Mr Beer: Would you agree that there’s no documentary record which can be pointed to that confirms that Mr Jenkins understood any relevant expert duties of which he was subject?
Warwick Tatford: Well, I think that must be right because I haven’t seen anything and it would have been shown me, if it existed.
Mr Beer: Lastly, there’s no documentary record which confirms that any prosecutor themselves, any part of the prosecution team, was satisfied that Mr Jenkins understood any of the relevant expert duties to which he was subject?
Warwick Tatford: No, there appears to be no document. That’s right.
Mr Beer: Would you agree that, by at least 2009/2010, the time that we’re considering – in fact it had been the position for many years before – the following were necessary inclusions in an expert report:
Firstly, details of the expert’s academic and/or professional qualifications, their experience, their accreditation, that was relevant to the opinions expressed in the report?
Warwick Tatford: Yes.
Mr Beer: Secondly, the range and extent of their expertise and any limitations upon that expertise?
Warwick Tatford: Yes.
Mr Beer: Thirdly, an expert report was required to include a statement setting out the substance of all instructions received, whether that’s oral instructions or written instructions, questions upon which their opinion was sought, the materials provided by their instructing client and considered by them, the documents, statements, evidence, information or assumptions that were material to the opinions that they were about to express?
Warwick Tatford: Yes.
Mr Beer: Fourthly, a report necessarily had to include information relating to who carried out any examinations or investigations, the methodology used and whether or not such investigations were carried out under the expert’s personal supervision?
Warwick Tatford: Yes.
Mr Beer: Fifthly, a report was required to include whether there was a range of opinion in relation to the matters dealt with in the report, a summary of that range of opinion and the reasons given by the expert for adopting a position within that range?
Warwick Tatford: Yes, I think that might depend on the particular case and what range might be relevant to the particular case. But, generally, I agree with that.
Mr Beer: Yes, if there was a range –
Warwick Tatford: If there was a range, yes.
Mr Beer: If there was a range, then it should include it?
Warwick Tatford: Yes.
Mr Beer: That carried with it a concomitant duty to set out any material facts or matters that detracted from the opinion that the expert was proffering –
Warwick Tatford: Yes.
Mr Beer: – ie any points that might fairly be made against the opinion that they were offering?
Warwick Tatford: Yes.
Mr Beer: A report was required to include, sixthly, I think, relevant extracts from literature or any other material that might assist the defence or the court?
Warwick Tatford: Yes.
Mr Beer: Seventhly, the report was required to include a statement that the expert had complied with their duty to the court to provide independent assistance by way of objective and unbiased opinion, in relation to matters within their expertise, and an acknowledgement that the expert would inform the parties and the court that, if their opinion changed, they would tell the court and the defence so?
Warwick Tatford: Yes.
Mr Beer: Did you understand that those duties not only existed but that the requirements went to the substance of an expert’s report, rather than just being administrative details that needed to be complied with?
Warwick Tatford: Well, I certainly realised that they were requirements and they might well determine the admissibility of the report.
Mr Beer: So they’re not just about form?
Warwick Tatford: No, no, it’s not just about form.
Mr Beer: It’s about substance?
Warwick Tatford: Yes.
Mr Beer: We know that those requirements were incorporated into the Criminal Procedure Rules, Rule 33, which came into effect in November 2006. At the time that you were prosecuting Mrs Misra in 2009/2010, did you know that those requirements had been introduced into the Criminal Procedure Rules?
Warwick Tatford: I did know they were in the Criminal Procedure Rules. I quite clearly didn’t consider them properly. I can give an explanation for that but, clearly, I failed in that and I – and that’s a clear failing.
Mr Beer: You tell us in your witness statement – we needn’t turn it up – you refer to a case called Stubbs, the decision of the Court of Appeal Criminal Division –
Warwick Tatford: Yes.
Mr Beer: – that a witness who is not functionally independent of a party, for example because they’re an employee of a party, may nonetheless be called as an expert on behalf of the prosecution. Would you accept that, in such cases where the witness is not functionally independent of the relevant actors in the case, it’s all the more important that the expert witness understands and complies with the duties that I’ve just mentioned?
Warwick Tatford: No, I absolutely agree with that. Yes.
Mr Beer: Would you agree that there’s a particular duty to ensure understanding with and compliance with such duties in such a witness’s case, because of the particular risk that an individual, whose day job is not being an expert witness and who is asked to give evidence about issues including their own work, may not understand the nature of their expert duties?
Warwick Tatford: No, absolutely. Absolutely.
Mr Beer: They may also have skin in the game?
Warwick Tatford: Yes.
Mr Beer: Was this a risk that you appreciated?
Warwick Tatford: Oh, yes, and we were utterly transparent. I fully accept that we haven’t – that the statements of Mr Jenkins didn’t comply with the Criminal Procedure Rules but we made – and I certainly made considerable efforts to ensure that the witness did understand his duties.
I accept that the best way to do it is to follow the rules. That protects all parties, including Mr Jenkins, and I can see now that by – well, what I remember – just so the explanation is clearly understood, I do remember, particularly when I saw Mr Atkinson’s evidence, I do remember thinking that the statement that we’d eventually been – received from Mr Jenkins was the final statement, essentially was his main statement, I appreciated that didn’t comply but I was aware of the time constraints.
I have a recollection of speaking with Keith Hadrill about that to check whether there was any issue as to admissibility. It’s only a recollection. I can’t be absolutely sure about that. I concede, though, that is nowhere near enough to comply with the rules.
What I can see now is that, because of the difficulties of timing and various other stressors within the case, I tried to cover the points myself by explaining things orally when that simply isn’t the safe way to proceed, and I was in error in that.
Mr Beer: Again, before embarking on the detail, would that in Mrs Misra’s case, no statement relied upon by the prosecution, by the Post Office, from Mr Jenkins, included any of the necessary in conclusions required by the common law and the Criminal Procedure Rules, in order to conform to the requirements of proper expert evidence?
Warwick Tatford: Yes, I would. There’s a reason for that, though and it comes from the – I would accept, the muddled way in which he was instructed. Our thinking in the prosecution side wasn’t – was muddled. He became involved, initially, in the case simply as a way of responding to the disclosure requests because the officer in the case was unable to deal with that.
So a person at Fujitsu needed to be identified who could help with that and then he – by a process that is unclear to me, he was then presented to me as our expert. Now, I think I assumed that letters of instruction, and so forth, had been sent and that doesn’t appear to be the case. But there was muddled thinking to do with the demanding exercise of complying with the disclosure requests, and that led to muddled thinking and a failure to follow the rules.
I tried to follow the substance but I accept that the rules are there not just for form but also for substance, and the efforts I made were not adequate and the rules should simply have been followed. That would have been the proper way. But it started off in an unusual way, and that was the original cause of the problem.
For instance, Mr Jenkins, on my advice, was providing a series of witness statements, which essentially were responses to interim reports by Professor McLachlan to try to assist him, because we had a flurry of these reports and I thought it important that it was set down in writing so that Mr Jenkins could be cross-examined on it in due course, if necessary, what his position was, so that there was in effect an audit trail, and it was clear what he was saying.
But that muddled beginning tarnished the thought process throughout Mr Jenkins’ instruction and I regret that. It was a mistake.
Mr Beer: Just generally, again, before we get into some of the detail, the muddled beginnings, ie starting the process of engaging Mr Jenkins in any way in the case, in an unusual way, as you’ve just described it, that was itself the choice of the prosecution, wasn’t it?
Warwick Tatford: Yes, and it was a choice made because we were very concerned about complying with our disclosure obligations by responding to requests. We should have sat down and thought about it much more clearly. Our response was a knee-jerk response to the requests.
Mr Beer: Secondly, you said that you’d assumed that a letter of instruction was sent?
Warwick Tatford: Yes, I did assume that.
Mr Beer: Wouldn’t you want to see it and ensure that it should have been disclosed?
Warwick Tatford: No, I agree. I should have asked to see it.
Mr Beer: Thirdly, you said that you complied or sought to comply with substance of what the rules required by engaging in conversations with Mr Jenkins?
Warwick Tatford: Yes.
Mr Beer: Is there any record of those conversations?
Warwick Tatford: No, it’s only my recollection.
Mr Beer: So, if it came to an issue at court, either as to admissibility on a voir dire of the expert evidence or in the event of challenge at trial as to what the expert had been told as to their duties, the material with which they had been provided, whether they’d been informed of their duties and the like, there would be no record which could be produced?
Warwick Tatford: I agree. It was muddled thinking throughout, and that was – I had overall responsibility, I should have corrected that. I didn’t think it through.
Mr Beer: If it came to that, in an argument over admissibility, you would end up calling yourself as a witness?
Warwick Tatford: Yes, I hadn’t thought that through. I did think that that was essentially impossible in the case, though, the way it was working through it, because the way that I thought we had found, which was unconventional and certainly not in accordance with the rules, but actually involved mutual cooperation between the experts in a way that seemed to be beneficial to both.
And it was actually the only way of making progress in the case, because we were essentially having an unending circle of interim reports with hypotheses which didn’t match our understanding of Horizon but we needed somebody with expertise to explain that to the expert. We needed two experts to work together, as they did, eventually providing a joint statement showing agreement and disagreement.
So I suspect – well, looking at it now, I was lulled into a false sense of security that this was an unconventional way of doing the right thing in this case. But it was wrong.
Mr Beer: You say in your statement – I’m not going to turn it up – that you took great pains in all your conversations with Mr Jenkins to make sure that he understood the duties of an expert witness?
Warwick Tatford: Yes.
Mr Beer: You explained it was his overriding duty to assist the cost –
Warwick Tatford: Yes.
Mr Beer: – to give an opinion that was objective and unbiased, and that that duty overrode any obligation that he might feel to the party calling him: the Post Office. You explained that it was his duty to disclose anything that might undermine his position and that he should be entirely open with both the Post Office, as prosecutor, and Professor McLachlan, about any Horizon problems?
Warwick Tatford: Oh, yes, because the – I had asked previously in my advice for Fujitsu to be contacted and to inform us of any problems and I saw Mr Jenkins as an obvious route to doing that. That’s how I saw things. And it seemed to me, particularly from the feedback I was getting from the defence, that this approach was working.
Mr Beer: Sorry, you’ve referred to “the defence” a number of times now.
Warwick Tatford: Yes.
Mr Beer: Are you saying that conversations with a colleague in chambers –
Warwick Tatford: No, I really mean Professor McLachlan.
Mr Beer: I see.
Warwick Tatford: It was perfectly clear to me that he found it helpful to work with Mr Jenkins. It seemed to fit his way of doing things because his way of approaching things was to suggest hypotheses which needed somebody to help him with. They needed to sit down together and it’s absolutely clear that they did that, from the evidence they gave at the trial.
Mr Beer: Before we get into the detail of the communications between you, the Post Office and Fujitsu and Mr Jenkins, if you were mindful of these expert duties and the need to make them crystal clear in somebody who did not enjoy functional independence from the party that was calling them, and you explained them to Mr Jenkins, how is it that every witness statement which the Post Office sought to rely on from Mr Jenkins omitted any of the necessary in conclusions for an expert report?
Warwick Tatford: Because most of – until the last statement, all of those were responses to Professor McLachlan. It is important to bear in mind that there had been an abuse of process argument that had been dependent entirely on submissions made about responses and what the defence were saying were inadequate responses. I had undertaken, at that hearing, to ensure that the experts would work together. That’s why we did it. I was essentially trying to ensure that the undertakings I gave in the abuse of process argument were fulfilled.
Mr Beer: How does that explain the absence of any of the required content in any of the witness statements?
Warwick Tatford: Well, it should have – they should have been in all of the witnesses and I thought of this point particularly when the final statement was forthcoming because, as I’ve said, the earlier ones were meant to assist. They were essentially answers to questions posed. And the idea, or my idea, was to have the final statement setting out all matters.
That final statement should have complied properly with the Criminal Procedure Rules. It didn’t, but that statement wasn’t available until about two days before the trial and my recollection is I spoke with the defence to see if that was going to raise any problem with admissibility and I understood it wasn’t going to be because their understanding was that the two experts were working well together, and that Professor McLachlan needed the assistance he was getting from Mr Jenkins.
Mr Beer: Does the fact that none of the statements include the required content for an admissible expert report and there isn’t a single document that records the explanation to Mr Jenkins of the existence of his duties instead show that the Post Office and its lawyers failed properly to consider what duties Mr Jenkins was subject to?
Warwick Tatford: I think, as a whole, that may be right. I was trying and I thought it had been – I assumed – it was an assumption. I assumed that these obligations were being explained by my instructing solicitor as well.
Mr Beer: On that point, I’m focusing on you at the moment but you suggest that you explained orally to Mr Jenkins some of the duties to which he was, in fact, subject. Given it was the Post Office’s solicitors who were responsible for instructing Mr Jenkins and the Post Office who bore the statutory duties and common law duties in respect of disclosure, rather than having conversations with the expert that aren’t recorded, did you not make it clear to or advise the Post Office that they should be the ones who should approach Mr Jenkins on the basis that he was an independent expert and they should be the ones that discharged the duties of compliance that I’ve mentioned?
Warwick Tatford: I didn’t make that clear because I thought that had been followed and that’s how he came to be instructed. It goes back to the muddled and unclear way in which he came forward as an expert. He went from one day, as I understood it, to the person who was helping with the disclosure enquiries, to becoming our expert. And I may have – well, I did assume that instructions had been properly made. I should have required to see the paperwork, as I’ve said earlier.
Mr Beer: You tell us in your witness statement that your Advices to the duties that you mentioned occurred in the course of conversations with Mr Jenkins. When did those conversations occur?
Warwick Tatford: I think I had phone conversations with him and there was also a conference shortly before the trial. I don’t remember the conference but I can see it is referred to in emails. And what I imagine I did, because it’s the sort of thing I would have done at that time in my practice, would have gone – would have actually had to have my Archbold with me and go through with him in the conference what the requirements of an expert was.
But I don’t have a recollection of the conference, but that’s the sort of thing I would have done as part of my practice. But, again, I have no specific recollection of that.
Mr Beer: In relation to the phone conversations first, dealing with the conference second, was there a solicitor present, taking a note of the –
Warwick Tatford: No.
Mr Beer: – conversations that you were having with the prosecution’s expert?
Warwick Tatford: No.
Mr Beer: Is that advisable or suboptimal?
Warwick Tatford: No, it’s certainly suboptimal.
Mr Beer: How would you rely, if any issue had been raised at trial, as to whether Mr Jenkins had been informed of his expert duties or, indeed, on an appeal, if your solicitors weren’t making a record of what he had been advised?
Warwick Tatford: Well, I agree, that encapsulates the failing.
Mr Beer: Turning to the conference, we’ve seen only reference to one conference, I think –
Warwick Tatford: Yes.
Mr Beer: – likely mentioned in emails, of October 2010. Was that an occasion on which advice was given?
Warwick Tatford: That’s what I believe, although I don’t have a specific recollection of it but, as I say, that’s the sort of thing I would do. The whole point of meeting with Mr Jenkins was to ensure as – well, my main point was to ensure that he understood what his job was because I was well aware he hadn’t been an expert before and I wanted to help him.
I’ve obviously failed in that but, actually, what I wanted to do was to help him.
Mr Beer: Can I turn, then, to specific communications –
Warwick Tatford: Yes, certainly.
Mr Beer: – in the Misra case to try to track the initial instruction of Mr Jenkins to work out how it came about in October 2010, he was called to give evidence as an expert witness. Can we start, please, with FUJ00152843.
We can see, I think, that this is an email of 26 November 2009, from the Investigator, Mr Longman, to Jane Owen – just to remind you, she was a Security Team Advisor in the Post Office’s Security team – and to Andy Dunks, also a member of the Post Office’s Security team. You’re not copied in on it but it refers to some advice that you are said to have given:
“Jane
“I attach a report from the defence expert where he has highlighted a number of problems with the Horizon system.”
The attachment was the second interim report of Mr McLachlan:
“Our barrister, Warwick Tatford, has asked that the problems with Horizon that he has raised in his report are replied to in a witness statement form. I presume that an employee of Fujitsu would have to produce the witness statement.”
Does that reflect the advice that you originally gave as to how Professor McLachlan’s report ought to be responded to?
Warwick Tatford: Yes, I advised that it be put in a witness so that, as a witness, he could be cross-examined on it but I was anxious that he had the information as quickly as possible so he could make progress.
Mr Beer: There’s no suggestion here, if this summarises your advice, that Professor McLachlan’s report would be responded to by expert evidence?
Warwick Tatford: No, at that stage, I didn’t envisage that.
Mr Beer: Why?
Warwick Tatford: Because – well, because what I thought we were trying to do was simply to give him an informed position on Horizon and then he could provide a report, rather than an interim report based on hypotheses that may not even apply to Horizon. I think – it’s difficult to remember now, it’s a long time ago, but I think I may have thought that, if a report came forward, we might have to consider then an expert.
But I didn’t form any final views on this. I was – I was doing my best, with my solicitor, to respond to very strenuous, wide-ranging disclosure requests, which were supported in a rather unhelpful way, I thought at the time, by interim reports of an expert. And it was a case of firefighting, which – and which produced muddled thinking.
Mr Beer: Can we see what the Post Office Security team did with this when they received it. FUJ00152847. Can we look at page 2, please.
I should just look at page 3 first, just so you can see it. There’s the email we’ve just looked at, “Jane, I attach a report from the defence expert”; can you see that?
(No audible answer)
Mr Beer: Then if we look at the foot of – sorry, if we look at page 2. Thank you. Jane Owen, the Security Team Advisor – if we scroll up – forwards the email to Penny Thomas in Fujitsu, saying:
“Penny
“This is the email and attachments that we chatted about. Please let me know if you need anything else from me and if this kind of request needs to be raised in a more official way.”
Then page 1, foot of the page, please. Penny Thomas replies:
“Do you know what the return/court requirements are for this case, please?”
Then at the top of the page.
“[I have] Spoken to the investigator and he has asked is there any chance of us having the information by Christmas?”
So there are some administrative details. Would you agree that this collection of emails is an insufficient and improper way of commissioning expert evidence from an employee of Fujitsu?
Warwick Tatford: Yes, I’m not sure it’s quite reached the stage of obtaining expert evidence, as an expert witness, but it’s wrong, clearly.
Mr Beer: That can come down. Thank you.
Can we move forwards a little bit, please – that was December 2009 – to your disclosure advice of 5 January 2010. POL00044557. If we look, please, at the last page, which is page 9 – scroll down, please – we can see that you sign it off, dated 5 January 2010.
Warwick Tatford: Yes.
Mr Beer: Yes? Then if we go back, please, to page 2, you say, under the heading “Section 8 disclosure application”:
“I have [reviewed] paperwork held by the Civil and Criminal departments in relation to all the ‘case studies’ set out in the Computer Weekly article which is attached to the Section 8 application.”
Just for those watching, what’s a Section 8 application?
Warwick Tatford: Oh well, that’s an application if the defence are unhappy with the secondary disclosure, following a defence statement.
Mr Beer: They had made an application asking for disclosure of material relating to or relevant to the case studies set out in the Computer Weekly article?
Warwick Tatford: Yes, they had. They hadn’t, at this stage, I think, served a defence statement relating to those issues at all, so it was a little cart before the horse, really, because a Section 8 application should follow on from a defence statement that actually raises the issue of Horizon. At this stage, we just simply had a defence statement saying it was other thieves in the office.
Mr Beer: You say:
“In deciding whether any material should be disclosed I have kept the following test in mind: is there material that is capable of casting an objective doubt on the reliability of Horizon?”
What did you mean by “casting an objective doubt”?
Warwick Tatford: Oh, so that there was evidence of a problem, rather than simply a complaint by a subpostmaster. So somebody – so that there are records showing a problem.
Mr Beer: What do you mean “records showing a problem”?
Warwick Tatford: Well, that there could be all sorts of records. (1) the – the difficulty is if you have a subpostmaster who says, “I have a problem but I’ve dealt with the problem by putting false figures in so the accounts balance” then you don’t have the evidence; you’ve simply got the complaint.
If, for instance – and this didn’t happen at all from what I came across – but if a subpostmaster had a problem, did a printout, for instance – I take a silly example because I always use stamps as a silly example – they take a printout from Horizon for the number of stamps they have in a particular stock and the printout says they have 100 books and they can see they only have one, they could video that, for instance, with the printout, and that would be evidence, that would be objective evidence.
Now, nobody, I don’t think, ever did something like that but that would be a way of having objective evidence – or have somebody who has seen that there is a problem.
Mr Beer: Like a trainer?
Warwick Tatford: Like a trainer, that’s possible, yes, or an expert who has been asked to look at it.
Mr Beer: Or a more Senior Manager at the Post Office?
Warwick Tatford: Yes, somebody independent, some – an Area Manager, for instance, who might have –
Mr Beer: Who had been in the branch?
Warwick Tatford: Yes.
Mr Beer: – watching figures mysteriously increase or decrease on the screen in front of their very eyes?
Warwick Tatford: Yes.
Mr Beer: Were you ever told about such matters?
Warwick Tatford: Well, the matters – I remember being told about those matters in Mrs Misra’s evidence. But, as I understand it, there wasn’t evidence from any trainers of that sort of problem, but –
Mr Beer: I’m going to come to –
Warwick Tatford: No, no, please, I need to re-refresh by looking at the – my memory to be refreshed by looking at the documents.
Mr Beer: Other than Mrs Misra’s case, did the Post Office reveal to you evidence that met your objective test, ie which proved by means other than the word of the subpostmaster themselves?
Warwick Tatford: Well, what I discovered was the Callendar Square problem, which I discovered from reading the judgment but I knew that needed to be further investigated. So that was a piece of objective evidence, precisely the sort of thing I was looking for.
Mr Beer: Were you aware that subpostmasters made complaints about errors in Horizon that weren’t investigated and, therefore, the availability of so-called objective evidence would never arise?
Warwick Tatford: Well, I would have been aware of that as a theoretical possibility. All I had done so far, following the steps I had been asked to do, was to bring the Computer Weekly article to the attention of the Post Office and ask to see the civil files. I did that for two days and I found the Callendar Square problem.
It may be that I should be given more evidence about other matters on those two visits. But that would – that’s what I was trying to do, to find objective evidence because it did seem to me that simple complaints were going to be inadmissible and wouldn’t assist any party.
Mr Beer: What about lines of inquiry that it might allow the defence to pursue?
Warwick Tatford: Oh yes, well, it depends on – I have to – what I needed to do – to see was to see the details of the complaints. That’s why – and the details were not there in the Computer Weekly article. That’s why I wanted to look at civil files to see if I could find more details. More details might lead to an enquiry which would give that piece of objective evidence.
Mr Beer: Were you aware at this time when you attended and spent – I think it was a day; is that right?
Warwick Tatford: Two days, and separated, as well, by a period of time so that gave an opportunity to reflect, on the part of the Civil department if there was anything that I hadn’t been shown.
Mr Beer: At this time, when you conducted the two-day visit to Post Office offices, were you aware of something called the Horizon Helpdesk?
Warwick Tatford: Oh yes, well, that was part of the evidence in our case and I was aware of it from other cases, as well, I think.
Mr Beer: Were you aware of other levels of support available –
Warwick Tatford: Yes, I think so, yes.
Mr Beer: – something called the SSC –
Warwick Tatford: Yes.
Mr Beer: – sorry, the SEC?
Warwick Tatford: Yes, I’m not very good on remembering what these stand for but I think I was aware, yes.
Mr Beer: You were aware of other tiers of support?
Warwick Tatford: Yes, yes.
Mr Beer: Were you shown any records within those computer databases of complaints by other subpostmasters?
Warwick Tatford: No. No. I’m not sure, I didn’t think of that enquiry, so it may be partly the fault is mine. But I don’t think – what I was shown were the files that related to the particular complaints and all I could see within those files were the fact that a complaint had been made but there may not – there was no evidence to support it one way or another. Sometimes there wasn’t a requirement for the money to be paid back, but I was rather frustrated, quite frankly, from my two visits because I didn’t really have very much information, apart from the Callendar Square, which I needed to investigate.
Mr Beer: You say that the test that you had in mind: is there, rewording it a little bit, objective evidence that is capable of casting a doubt on the reliability of Horizon?
Warwick Tatford: Yes.
Mr Beer: You discussed that with the defendant’s legal representatives when you met in the Post Office. Was that with Mr Hadrill from chambers?
Warwick Tatford: Yes. I think he was there and I discussed it – I had discussed it with him on other occasions, in any event. I think I first raised it on the visit to West Byfleet and I think Mr Hadrill and Issy Hogg were present then, I think. I’m not absolutely sure of that.
Mr Beer: They agreed with the test, you say?
Warwick Tatford: Oh, yes. I thought it very important to discuss it together because they might have useful additions to the test I was considering.
Mr Beer: So you were looking for evidence where it had already been established that Horizon, in some respect or other, was lacking in reliability?
Warwick Tatford: Yes. That was absolutely key.
Mr Beer: Not mere complaints, no matter whether they came from tens, hundreds or thousands of subpostmasters?
Warwick Tatford: No, because it seemed to be a complaint was simply a complaint. It wasn’t actually – I would see it would be difficult actually to be admissible in a trial.
Mr Beer: What about the point that I’ve made about it might put the defence on a train of inquiry?
Warwick Tatford: Well –
Mr Beer: Rather than applying a test for disclosure of whether the product of disclosure would ultimately be admissible?
Warwick Tatford: I agree with that. That’s part of the disclosure exercise, to put the defence on a route to inquiry. But they had a series of complaints. They were well aware of the complaints in Computer Weekly and I think were brought up to speed about other complaints as and when they arose.
I knew that they were being proactive there in a very sensible way. But I was just trying to find something that went just slightly beyond the fact of a complaint, because a complaint can be genuine or it can be an excuse for inappropriate behaviour.
Mr Beer: Can we move on. You say, in paragraph 5:
“The only material that should be disclosed … is the Judgment in the Castleton case. I attach a copy of the final Judgment to this Advice. All the other material simply contains unsubstantiated claims by subpostmasters. When those claims have been investigated no supporting evidence has been found.”
Yes.
Mr Beer: You say in paragraph 6 you would wish some further enquiries to be made from Fujitsu:
“Paragraph 23 of Castleton … refers to the evidence of Anne Chambers, a system specialist employed by Fujitsu. When she was cross-examined she appears to have had full knowledge of an error in Horizon that appeared to have occurred in Callendar Square in Falkirk. This [is] ‘case study 6’ [seemingly in Computer Weekly]. I have seen some civil paperwork in relation to Alan Brown, but not concerning a Horizon error. I don’t know if Anne Chambers still works for Fujitsu but it should be relatively straightforward for Fujitsu to provide full information about what appears to have been a well-known problem at Callendar Square.”
At this time, did anyone in the Post Office tell you about something known as a Known Error Log.
Warwick Tatford: I don’t remember, I don’t remember.
Mr Beer: By the time of the trial, next year, the following year, by October 2010, had you been told by either Fujitsu, through Mr Jenkins or otherwise, or by the Post Office, of a species of document called a Known Error Log?
Warwick Tatford: I don’t think so. I don’t think the title means anything to me that I can think of at the moment.
Mr Beer: A document that records Fujitsu’s own assessment of there being –
Warwick Tatford: Oh –
Mr Beer: – an error in Horizon, either in hardware, in coding, in communication?
Warwick Tatford: No. That’s the sort of thing I set out in my Advice I’d like – the sort of thing I might hope to get but I wasn’t aware of anything like that.
Mr Beer: That’s precisely the thing you’d be looking for, a self – a recognition by Fujitsu itself –
Warwick Tatford: Oh, that would be the best evidence of all.
Mr Beer: So far as you can recall, now did anyone mention the word KEL or Known Error Log at any time in your instructions –
Warwick Tatford: I don’t think so, no.
Mr Beer: We’ve heard evidence from Mr Atkinson that every part of the Post Office was subject to a duty to record and retain evidence potentially relevant to the conduct of prosecutions. Did you ever advise the Post Office to conduct a disclosure exercise itself as to what records it held in relation to any problems or issues with Horizon?
Warwick Tatford: No, I didn’t ask the Post Office. I thought the enquiry should be made to Fujitsu. But you’re right, it’s a sensible enquiry. I didn’t think of that.
Mr Beer: Why did you limit the exercise to looking at the case papers that happened to be identified in a Computer Weekly article?
Warwick Tatford: Well, I didn’t limit them to that. That was my starting point. I’ve made it absolutely clear, and my Advice is very clear on this, that I needed to have disclosure of any problems relating to the reliability of the Horizon system. That is what I make very clear I need in that Advice, and I made it clear in all my dealings with those instructing me. They were well aware of that.
From all I can tell, the Criminal Law Department were trying to achieve that end, as well. But everybody knew and you asked me earlier about whether this was a test case and I said it was an important case. I assumed, and it was a very obvious assumption, that people much higher than I would ever come across in the Post Office and Fujitsu knew about the case and knew about the pieces of disclosure, I wanted to see if they existed.
I assumed I had set in process something that should have readily brought forth important pieces of disclosure and, because nothing came forward, I assumed that the Callendar Square was the problem.
Mr Beer: Why not ask the actual party that is prosecuting, which itself is subject to the disclosure obligations, for any documents that it holds or to conduct a disclosure exercise to identify any documents that it holds in relation to problems or issues with Horizon?
Warwick Tatford: Well, I thought – I rather thought that was implicit in my general advice. I’d been rather vague about matters, I suppose, but deliberately so, to ensure that we could capture – the net could be spread wide.
Mr Beer: Can we go back to your advice, then, to look at the focus on Fujitsu, POL00044557. Page 3, please, paragraph 7. You say:
“I also think that our disclosure duty requires us to ask Fujitsu whether they are aware of any other Horizon error that has been found at any sub post office. I anticipate that there will be none, but it’s important that the check is made.”
I think you’ve acknowledged in answer to a question I asked a couple of questions ago that you think, on reflection, that you were in error in focusing on only Fujitsu and that you ought to have asked the Post Office to look in its own depositories for any records of problems or issues with Horizon.
Warwick Tatford: Yes, I should have said – it requires us to ask Fujitsu and consider within the Post Office whether anybody is aware of any Horizon error. That would be a better way to formulate it. I did assume that this – I did draft this very widely. I assumed, perhaps wrongly, that Fujitsu would be well aware of something that was the Post Office was well aware of. It’s a joint system, as it were.
Mr Beer: On what evidential platform did you say you anticipate that there will be none but it is important that a check is made?
Warwick Tatford: Because nobody had ever told me about anything. I’d found the one piece of objective evidence on my own and nobody told me about anything else, and I was – and I – I mean I’ve said elsewhere that I was aware of the danger of the robust term being a mantra. It needed to be justified. But I was given quite clear confidence from all I spoke to that there wasn’t a problem with Horizon.
I thought I’d found a one-off problem at Callendar Square. That’s why I thought I’d found nothing at the Civil department. And that was the impression I had from having conversations with Mandy Talbot at the Civil department, I think. I can’t remember those exact conversations. My understanding was that this was the only thing and I think I was the one who found it. I’m not sure she bought it to my attention. I found it within the judgment and it was striking to me that Gareth Jenkins wasn’t familiar with this problem. He needed to research it himself.
All this met together to suggest that this was a good system, I’d found something that needed to be investigated, I acknowledged that any computer system can have lots of glitches. That’s perfectly possible, and they can arise at future dates as well, but this was how I thought the process was working well.
Mr Beer: Can we go forward to page 9, please. After paragraphs 25 and 26 under the heading “Other Matters”, you say:
“[Mr Longman] has sensibly suggested that the Defence expert might want to meet with one or more representatives from Fujitsu to discuss technical issues and to reach as much agreement as possible. This is an obvious way of avoiding much wasted time and such an invitation should be given to the Defence.
“Gareth Jenkins at Fujitsu has provided Mr Longman with a number of comments about the Defence 2nd interim report which confirmed my suspicion that the theory that Horizon cannot deal with refused credit card transactions is simply wrong. He suggested in his comments that there are also a number of areas where [the Post Office] could provide assistance. It seems it would be relatively easy to disprove the theories of the 2nd report by witness statements from Mr Jenkins and a suitable witness at [the Post Office]. Those statements should be sought now. Although the Defence are likely to come up with other theories, it will hopefully save time and expense on both sides if we try to rebut false theories as and when they arise.”
Would you agree that still at this stage, this was not advice that treated Gareth Jenkins as an expert witness?
Warwick Tatford: Oh, yes, I was using him as a way of responding, to the disclosure requests.
Mr Beer: Despite the fact you were advising that Mr Jenkins reply to a defence expert report?
Warwick Tatford: Well, because I saw him as a witness and I thought it important that it was set out in writing so he could be cross-examined on any answers. I didn’t see him as an expert witness at that time, although albeit I appreciated he had considerable expertise.
Mr Beer: Can you explain why you did not appear to consider that any statement from Mr Jenkins replying to an expert report would itself be expert evidence?
Warwick Tatford: Oh, well, if there was a statement from Jon Longman in reply, that wouldn’t be expert evidence either. I saw him as a witness of fact at this stage from his – but as an employee of Fujitsu. He could give factual answers to inform Professor McLachlan who was – who needed information about Horizon. That’s what the professor needed. He had hypotheses but he had no idea whether they were relevant to Horizon. That’s why I thought Mr Jenkins could help. Not as an expert witness necessarily at that stage but a witness of providing facts from his knowledge as an employee of Fujitsu.
Mr Beer: Is that what happened: that Mr Jenkins only provided facts?
Warwick Tatford: Well, then it becomes muddled. I would have to see what’s being provided. I can’t think – I can’t remember every single statement and every line of it. But it becomes muddled and I can see that. I’m sure.
Mr Beer: Can we turn back to the chronology, please, FUJ00152887, and look at page 2, please. At the foot, and keep going, thank you – a little bit more, thank you.
This is a continuation of the email trail that we were looking at before the excursion into your Advice. So before we examine what happened as a result of your advice, let’s just track back to see what happened following the administrative arrangements being discussed between Jane Owen and Penny Thomas. At the foot of the page is an email from Penny Thomas to Jane Owen:
“I hope all is well with you.
“Our expert, Gareth Jenkins, has made comments on the 2nd Interim Technical expert’s report which I attach for review by Prosecution counsel. Please note that where [the Post Office] is required to respond he has state so in the text. We agreed that in the New Year we would discuss how this would be presented.”
Mr Jenkins is here being referred to as an expert, which of course may mean either a person with expertise or a person who qualifies as an expert witness in legal proceedings. At this point, what was your understanding of Mr Jenkins’ status?
Warwick Tatford: Well, I didn’t understand him to be an expert witness yet. I thought he was answering disclosure requests through his expertise. But I can see how it’s becoming blurred, that’s the trouble, and I acknowledge that.
Mr Beer: Then page 1, please. An email from Mr Longman to Penny Thomas, of 27 January:
“Our defence barrister has asked for all of Gareth’s replies in relation to the Defence’s 2nd Interim Report … to be produced as a witness statement. I would suggest that the question from the defence is reproduced and then Gareth’s replies are recorded immediately after for clarity purposes.”
Then the second paragraph is not relevant. That is reflecting what you had advised, isn’t it?
Warwick Tatford: Yes.
Mr Beer: Again, at this stage, it wasn’t suggested, I think, in this email train that Mr Jenkins was being treated as an expert witness?
Warwick Tatford: Yes, that’s right.
Mr Beer: Would you agree that, so far, the requests made to Fujitsu did not constitute the proper instruction of Gareth Jenkins as an expert witness?
Warwick Tatford: Yes.
Mr Beer: Can we move on, please. FUJ00152902. We’re moving on to the second page, please. 1 February 2010 and over the next five or six days there’s quite a bunch of emails that we’re going to have to go through before lunch.
1 February 2010, Mr Longman, the Investigator to Penny Thomas at Fujitsu:
“Penny
“At a pre-court hearing today the judge ordered that all the defence requests for further information be answered by … Monday 8 February.”
So that’s a seven-day order:
“Our solicitor in the case has asked that Gareth’s statement is completed by Wednesday so that he and our barrister can examine the statement.
“Gareth’s statement needs to cover the following four points.
“1. Our defence barrister …”
I think that’s you.
Warwick Tatford: Yes, it’s a typo.
Mr Beer: “… has asked for all of Gareth’s replies in relation to the Defence’s 2nd Interim Report … to be produced as a witness statement.”
Then the repetition of what we’ve seen already:
“2. My barrister [I think that’s you, again] telephoned me yesterday evening and requested that I find out any information that Fujitsu may hold in relation to an office called Callendar Square in Falkirk. Apparently, Anne Chambers a Systems Specialist employed by Fujitsu was cross-examined and it is said that she had full knowledge of an error in the Horizon system at this Post Office.
“3. When Gareth completes his statement could he also mention whether there are any known problems with the Horizon system that Fujitsu are aware of. If none, could this be clarified in the statement.”
That’s a reflection, I think, of paragraph 7 of your advice, isn’t it?
Warwick Tatford: Yes.
Mr Beer: Then:
“Could Gareth read the statement from Eleanor Nixon attached below …
“In addition, our barrister would like to speak to Gareth directly and would be grateful if in the first instance whether Gareth could either send him his contact details or give him a call on his mobile.”
Then details are given.
So paragraph 2, a request to find out information in relation to Callendar Square in Falkirk and the issues with Horizon that arose there. That arose as a result of reading the judgment of His Honour Judge Havery?
Warwick Tatford: Yes.
Mr Beer: “Disclosure about any known errors in Horizon”. It is translated into:
“… Gareth completes his statement, can he please mention whether there are any known problems …”
The request that you’d made was slightly different to that, wasn’t it?
Warwick Tatford: Yes, and it’s –
Mr Beer: It’s been watered down?
Warwick Tatford: It’s watered – well, yes, and it’s unfortunate, that because, if it had remained at Fujitsu, we may have perhaps got some more answers, I don’t know.
Mr Beer: Unfortunate why?
Warwick Tatford: Well, it shouldn’t just be for Gareth Jenkins and it’s – I think I should have pressed on that requirement in paragraph 7 of the advice. I think I – it’s now become – it’s Gareth Jenkins is going to deal with it. It has been watered down. That’s an appropriate phrase and it’s not – it’s watering down what I wanted, and that was wrong.
Mr Beer: So it’s gone, would this be the fair characterisation of it, from asking for a disclosure exercise to be undertaken by a third-party provider of the computer system, of any known problems or issues with Horizon, which would be a proper request to a third party, to one man mentioning in a witness statement if there are any known problems?
Warwick Tatford: Yes, but I still expected to be told, because Fujitsu and the Post Office were aware of this case, were aware of what I wanted, and I expected to be told if there was a problem. As I understand it, although I don’t pretend to fully understand all the problems that have been identified, there was plenty that should have been disclosed and it wasn’t forthcoming. So I assumed that it wasn’t there to be given.
So in a way, I would have been – if I’d thought about this being watered down, I wouldn’t have seen the danger because I assumed that those who had information, who knew about the case, would do what had been requested of them.
Mr Beer: Can we turn to POL00054085 and look at the second page, please. This looks like it was meant to be an email to you, because of the salutation, “Jarnail/Warwick”, but I can’t see that it’s sent to you?
Warwick Tatford: Yes, I don’t think it was, no.
Mr Beer: In any event, Mr Longman says to Mr Singh:
“I have spoken to Penny Thomas and she has arranged for a meeting to be held today to discuss the statement that we require from them. After that meeting she will then be in a position to confirm the timescales involved and the cost to [the Post Office] for the statement. An authority to proceed will then need to be authorised …
“She is … aware of the [deadlines].”
So it seem that there was then to be a meeting between the Post Office, including Mr Longman, and Penny Thomas on behalf of Fujitsu, concerning the nature of the statement that was required from Fujitsu.
Warwick Tatford: Yes.
Mr Beer: Can we turn, please, to UKGI00014895. Thank you.
We can see that this is an email from the defence solicitor Issy Hogg to Jarnail Singh, copied to her counsel, Keith Hadrill, and copied to you, dated 3 February still. In the fifth paragraph, if we scroll down a little bit, the one beginning “You have”, it states:
“You have indicated you do not propose to rely on an expert but on the employees of Fujitsu. For the first time, at the hearing on 1 February 2010, you identified that witness as an employee named Jenkins. However, not only have you not served his evidence prior to suggesting a meeting, you accept that you haven’t even taken a statement.”
At this point, does that characterisation by the defence accurately reflect the position that Mr Jenkins was neither instructed nor regarded as an expert by the prosecution?
Warwick Tatford: Yes, and it ties in later with what they said at the abuse of process argument, that the expert hadn’t been properly instructed, which is a very valid criticism. Perhaps I didn’t take it on board and think it through as much as I should have done.
Mr Beer: Can we move on to a couple of days later, a series of emails exchanged between Post Office and Fujitsu on 5 February 2010 in relation to a provision of a witness statement from Mr Jenkins. Can we start, please, at FUJ00122713. If we start at the very bottom of the page and go over to the next page, we’ll see an email of 5 February at 12.34 from Jarnail Singh to David Jones – he’s a lawyer in Fujitsu, David Jones – asking if Mr Jenkins could give a witness statement in the Misra case once he returned from leave:
“I refer to our conversations of 4 and 5 February … with regards to obtaining a witness statement of the Defence challenging the reliability of Horizon. I understand that Mr Jenkins has been identified as an experienced person to give this statement. I would be grateful if you could confirm to me”, when he’ll be available, essentially.
So Mr Singh, into a lawyer in Fujitsu.
Then scroll up to the first page, please. Mr Jones’ reply to Mr Singh, copying in Mr Jenkins and Penny Thomas:
“Thank you for your … email – which I have now received!
“I met this morning with [Mr Jenkins] who came into the office briefly to meet with me. Gareth will help with this matter … he should be back to normal working next week. His input will be coordinated by Penny who is responsible to delivery to [the Post Office] of support in this Security area.
“Attached is a first draft to a statement from Gareth. I would like you to review it and indicate if it answers the questions in the detail you require.
“… there are some areas where Fujitsu cannot deal with the Defendant’s expert’s criticisms as they are about Post Office procedures or requirements and it seems evident that there will need to be a [Post Office] internal ‘expert’ who can work with Gareth to deal with these areas.”
So they continue, sorry:
“One concern is that [the Post Office] have not apparently requested transaction data for West Byfleet for the period and transactions in question. This would normally be provided in previous cases and would include Fujitsu extracting log files from the system to enable us to provide details of transactions. Surprisingly, this has not been requested in this case. Perhaps you will consider the need for this.”
At this point in time, you’re not a copy-ee of this chain at the moment, did you understand the problem with asking a person with expertise, Mr Jenkins, to comment on what the defence expert was saying, without having requested transaction data for this branch?
Warwick Tatford: No, I didn’t realise that was – or fully realise that that was a problem. I thought he’d be able to deal, at least in part, with answering the questions, particularly to deal with the questions that were based on a misunderstanding.
Mr Beer: Can we go, please, to POL00029369. Can we look, please, at page 2, and scroll down. This is the first time the statement emerges at 2.53, an email to you and Mr Longman:
“Dear Jon and Warwick
“Herewith statement from Gareth Jenkins. Just all of the press. Please let me have your comments and whether this adequate for our purpose or does it require additions before being served on the defence.”
So Jarnail is asking the Investigator and you, as prosecution counsel, whether the statement is adequate and for your comments. Then if we go to page 1, please. At the foot of the page, we see Mr Longman’s reply.
“Jarnail
“Points 2-4 have not been answered”, and he reproduces them below:
“My barrister telephoned me yesterday evening and requested that I find out any information that Fujitsu may hold in relation to Callendar Square”, et cetera.
Do you remember that?
“3) When Gareth completes his statement could he also mention whether there are any known problems with the Horizon system that Fujitsu are aware of.”
So that’s the watered down, if I can call it that, requirement emanating from paragraph 7 of your advice?
Warwick Tatford: Yes.
Mr Beer: Then over the page, please.
“If none could this be clarified …
“4) Could Gareth read the statement from Eleanor Nixon”, et cetera.
So Mr Longman is saying points 2 to 4 have just not been addressed by Mr Jenkins, yes?
Warwick Tatford: Yes.
Mr Beer: Go back to page 1, please. You reply the following morning at 7.07, can you see that?
Warwick Tatford: Yes.
Mr Beer: You only reply to Mr Singh, taking Mr Longman out of the copy list, and you say:
“[Mr Longman] sets out in his email … the extra matters that I asked Mr Jenkins to look at. In relation to the Eleanor Nixon statement Mr Jenkins should also be made aware of the information we recently received [et cetera].
“The areas where Mr Jenkins says ‘for [Post Office] to respond’ should be deleted from the statement. These areas will only lead to a flood of further disclosure requests and I am afraid that [the Post Office] will never respond.”
Why were you suggesting that where Mr Jenkins was saying, “This is not something where I can respond to, it’s a matter for Post Office to respond to” should be deleted?
Warwick Tatford: Well, it didn’t seem to me to be part of his witness statement but I think I was simply frustrated at the various delays there had been that were causing so much problems with the chronology of the case trying to get it towards a trial.
Mr Beer: Wasn’t that important information, or relevant information, that the expert felt – or the person with expertise felt unable to answer a question and said, “This is for the Post Office to reply”?
Warwick Tatford: Well, yes, but the enquiry that already been made, and the – I’d have to look at the document because I can’t remember exactly what the enquiries were but I’m afraid it all comes out of a generally very frustrating situation, where there are an enormous amount of disclosure requests that it’s proving very difficult to respond to. And I was just trying to limit them, because it was out of control and efforts that I had made to try to put it under control had failed.
Mr Beer: Why did you think the Post Office would never respond?
Warwick Tatford: Well, I think that’s – those are heated words that perhaps aren’t fully thought through but I was frustrated that it was taking so long and frustrated that I was being told that, essentially, the Investigation Team was going to be clogged up completely for an indefinite period while requests – efforts were made to respond to requests.
At the same time, I have a court – judges at Guildford Crown Court making very strict requirements for progress to be made and it’s a very frustrating situation generally and I’m expressing the frustration, I suppose.
Mr Beer: Does it follow from that that, although you advised that the sections of the witness statement, where Mr Jenkins had said, “Post Office should respond”, should be deleted, you didn’t give any advice to the Post Office that it should meet its disclosure obligations in relation to them?
Warwick Tatford: No, I should have done that and it’s – I was finding this all very stressful and that’s a symptom of it and it’s my fault, but this was difficult.
Mr Beer: Sir, that’s a convenient moment to break, bearing in mind that we took an early break and it was short and we haven’t taken a second break, and I’ve done that deliberately in order that we can get through all of the business that we need to today. I wonder whether you might break until maybe 1.35?
Sir Wyn Williams: Yes. By all means.
So I’ll see you all at 1.35?
Mr Beer: Thank you very much, sir.
(12.42 pm)
(The Short Adjournment)
(1.35 pm)
Mr Beer: Good afternoon, sir, can you see and hear me?
Sir Wyn Williams: Yes, I can, thank you.
Mr Beer: Good afternoon, Mr Tatford. Can we pick up where we left off in the late afternoon of 5 February 2010, by looking at FUJ00122735.
If we scroll to the bottom half of the page. We’ll see that on 5 February 2010 at 4.47 Mr Jenkins emailed David Jones – remember, a lawyer in Fujitsu – and Penny Thomas, also at Fujitsu, saying:
“David,
“I’ve provided in line comments to the document as revisions.”
This was the third supplemental report of Professor McLachlan and – I don’t want to turn the document up at the moment but, essentially, he had gone through Professor McLachlan’s report and had added this comments to it:
“I’m happy for this to be passed to [the Post Office] if you feel it is appropriate.”
Then Mr Jenkins said:
“The simple answer is that without retrieving the logs everybody is speculating and as discussed this morning nobody has bothered to ask us for any logs. At this stage it is not at all clear what transactions are thought to be missing at what time or even in what time period. Analysing logs over a long period (and I think this is over two or three months) is very, very time consuming. This is NOT going to happen by Monday.
“Does anybody have a copy of Andy’s witness statement?”
Then if we scroll up, please. We can see that Mr Jones forwards that to Jarnail Singh, copying in Gareth Jenkins and Penny Thomas. So this is Mr Jenkins saying, is this right, that in order to respond to Professor McLachlan’s report, the Post Office needed to obtain underlying data the transaction data?
Warwick Tatford: Yes, sorry, yes.
Mr Beer: By this time, that’s February 2010, had you been aware, for a very considerable time, that the defence wanted exactly the same data? The transaction logs, as they’re called, and that such logs had not been obtained?
Warwick Tatford: Yes. Well, there was an ongoing dispute about what period of logs was necessary. I appreciate with hindsight the Post Office was in the wrong but that was a number of many disclosure requests and I do think that the full context needs to be looked at. If anybody thinks this was easy to deal with, they are deluding themselves. This was very difficult and we were all trying our best, I thought. Obviously it didn’t work but we were trying our best.
Mr Beer: Let’s just look at the defence requests for exactly the same things as Gareth Jenkins was saying are important and that, without retrieving the logs, everyone is speculating.
Can we look, please, at POL00052202. Can we look at page 3, please, starting with an email, the year before, 14 July 2009, between Jon Longman and the fraud team:
“Can you please assist with the following three points …
“2. The defence will be calling their own expert to analyse the Horizon data as the defendant is now claiming that some of the loss in the case is caused by errors within Horizon. Therefore, I will need transaction log data covering the period 30 June 2005 to 14 January 2008 together with a covering witness statement.”
Then page 2, please, scroll down. A reply from Mr Posnett:
“Due to the size of the ARQ request I cannot authorise Fujitsu to proceed at this stage … We have an annual allowance of 670 ARQs … we can only 60 ARQs per month … this Defence request could be detrimental to other Prosecution requests.
“We have a contract with Fujitsu to [require] ARQs for our prosecution cases, and we pay for these …
“For ‘lumpy’ Defence requests, we can obtain a quote from Fujitsu …
“Aside from the costs and our quota, another reason for this approach is because many cases plead guilty at the eleventh hour and/or nothing is found by ‘experts’ to challenge the Fujitsu data – the usual attempts at muddying the waters.
“Can you consider and seek views/input from our Criminal Lawyer in the case. Happy to discuss …”
Then page 1, please. Email, Mr Longman to Jarnail Singh:
“At the hearing … the Defence indicated they would be seeking the services of a forensic accountant to analyse the Horizon data … I have tried to order the data from the time Ms Misra was subpostmaster (3 years) but as you can see … there are a number of issues.
“Please could you advise counsel of these issues and inform me as to what action to take …”
Do you recall being involve in this?
Warwick Tatford: Yes, I do. But I don’t think via email but, obviously, I was speaking with Jarnail Singh on the phone, so I may have been speaking on the phone around this time. I don’t have a specific recollection but I was aware of the ongoing issue, and I was trying to see if it might be possible to have a less wide span.
I appreciate now that’s obviously wrong but that’s what we were trying to do – the way of dealing with the competing demands that are obvious in these emails.
Mr Beer: Do you now have a recollection of being asked to being asked to advise on this issue?
Warwick Tatford: I don’t think – I can’t remember a specific request. There was an ongoing conversation and, in my earlier Advice, I tried to set – forgive me, I’m getting the time period wrong now.
Mr Beer: So we’ve gone back to 2009.
Warwick Tatford: We’ve gone right backwards. Oh, sorry, I think there was an ongoing discussion but we’ve gone backwards so – this will lead up eventually to what we come up with or what the Post Office decided to produce.
Mr Beer: What I’m looking at is Mr Jenkins in February 2010 saying, “I can’t assist you unless you get the underlying data”.
Warwick Tatford: Yes.
Mr Beer: I’m going back to the summer before saying the defence are asking for the underlying data and trying to work out what happened with that request. At the moment, the Investigator, Mr Longman, has asked Mr Posnett. Mr Posnett said, “We’ve got a contract; it would exceed our requirements, essentially, under the contract; it will be expensive”. That’s forwarded to Jarnail Singh by Mr Longman and he says, “Could you advise counsel of these issues and inform me as to what action to take”.
I’m asking: at there is time, in summer 2009, did you provide advice on the approach to take to disclosure of the underlying data?
Warwick Tatford: I don’t know. I may have provided advice over the phone but I simply I can’t remember, it is quite a long time ago.
Mr Beer: Yes.
Warwick Tatford: Obviously didn’t provide anything in writing, so there may be nothing, I don’t know.
Mr Beer: Can we a look, please, at FUJ00154851, and look at page 4, please. This is a letter dated 14 August 2009. If we scroll down to the next page we can see who wrote it: Phil Taylor. Back up, please. We can see it’s to the then defence solicitors – if we scroll up a little bit, thank you – the Castle Partnership:
“I understand from Prosecuting Counsel that on the last occasion Defence Counsel asked for Horizon data for the period during which your Client was subpostmistress at West Byfleet sub post office.”
Is that right: that defence counsel asked you for disclosure of Horizon data for the entire period when Mrs Misra was subpostmistress?
Warwick Tatford: Well, that was certainly an ongoing request. I can’t remember when – a request at court, I’m not going to remember at this time (unclear).
Mr Beer: No, understood:
“As you may be aware the Horizon system is a product of Fujitsu Limited and the Post Office has purchased this system from Fujitsu in the same way that any other company would purchase goods or services for its business. Other than that Fujitsu is not in any way an associated company of the Post Office.
“The request has been put to Fujitsu and a reply has been received by the person who liaises with this company.
“The data will take 6-8 weeks to produce … your Client made 107 calls to the Horizon Helpdesk during her period of tenure which equates to roughly 2-3 calls per month. In order to provide the data Fujitsu will wish to know exactly what is required and for exactly what period. Please could you also advise as to why you consider the data relevant. You … already [know] from the NAE from Andrew Dunks … dealing with the calls to the Helpdesk.
“The retrieval of data by Fujitsu is not a free service. It is very expensive and depends upon the amount of data which has to be retrieved which is why you requested to be very precise. At that stage a firm quotation can be obtained and Counsel will be asked to give further advice as to disclosure and payment for this service. The Post Office will not underwrite the cost if Counsel considers the data irrelevant. You will of course be aware that the same system operates throughout the country and was not particular to your Client’s sub post office.
“I have set out the matter above quite clearly because in the past many thousands of pounds have been spent on obtaining this type of data subsequent to which a late plea of Guilty is tendered which means that the exercise has been a complete waste of time and money.”
So that, essentially, reflects the Posnett answer, doesn’t it?
Warwick Tatford: Yes. No, it does.
Mr Beer: If we go to page 3, we can see that Mr Taylor, on the same day, 14 August, sends a copy of the letter to Post Office Security, cc’d Jon Longman and says:
“Here is a letter which I have written to the Defence and copied to Counsel for your information.”
I can’t see any evidence, on the face of it, that it was copied to you. But can we deal with it this way –
Warwick Tatford: Oh, certainly, if I see the letter, I’m happy to deal with it. It may well have been sent to me. There’s no reason for saying, “copied to counsel” unless it’s been done.
Mr Beer: Did what is set out in the letter reflect any advice that you had given to the Post Office as to the correct approach to obtaining what we now know to be ARQ data?
Warwick Tatford: I can’t remember now. I was simply aware of the ongoing dispute and trying – on the prosecution side, trying to see if a shorter period would be possible, and not – and essentially having the answer no or not having a response. That’s the impasse, as it were.
Mr Beer: Can we deal with it in this way: had the impasse lasted until at least February 2010, when Mr Jenkins himself was asking for this data in order to be able to advise?
Warwick Tatford: Yes, but then it – with the abuse argument, just before then, the Post Office, off its own bat, decided to disclose a significant span of data after having no alternative suggestions from the defence. I appreciate, with hindsight, that’s the wrong approach. But one can see the pressures, cost and time, and so forth.
Mr Beer: Can we go forwards, please, to FUJ00152966. Thank you.
If we go to page 2, please, and scroll down. Thank you.
A little later in the afternoon, Gareth Jenkins emailing David Jones and Penny Thomas:
“Brief responses as follows, but not sure that I should put them in a Witness Statement …”
3 – as you remember 3 was originated in paragraph 7 of your Advice: Fujitsu tell us about any issues or problems acknowledged with Horizon – I’m summarising.
Mr Jenkins says:
“This is where I’m reluctant to make a clear statement. I am aware of one problem where transactions have been lost in particular circumstances due to locking issues. When this happens we have events in the eventing logs to indicate that there was an issue and whenever we provide transaction logs to [the Post Office] we check for any such events. In the case of West Byfleet we have not provided any transaction logs and so have not made these checks.”
Did you ever get to see this, that Mr Jenkins was reluctant to make a clear statement over whether there were any problems with Horizon?
Warwick Tatford: No. I say no simply because, if I’d seen this, I would have realised that there was a problem with dealing with paragraph 7 of my advice. I’d have gone back to that and tried to sort it out and I would have started asking more questions. Perhaps I should have been pressing it anyway but I’m troubled, reading this. Well, this is bound to make me ask questions and I don’t remember seeing this.
Mr Beer: There’s two problems with this paragraph that arise, aren’t there? First is the refusal of the person with expertise being reluctant to make a clear statement about whether there are problems with Horizon; and, secondly, in any event, saying that he’s aware of a problem where transactions have been lost, and we can’t tell at the moment whether this afflicted West Byfleet because we haven’t got the data and, therefore, we haven’t made the checks.
Warwick Tatford: Yes, and it’s unclear to me what this problem is. It seems to be a different problem of which I’ve not been made aware.
Mr Beer: Can we go to POL00167159. Thank you. Just dealing with it from the top, we can see that it’s sent by Mr Singh, I think that’s his PA or assistant, Marilyn Benjamin, to you on 8 February – we were looking at an email chain of 5 February:
“Warwick and John,
“For your information and comments.”
Then if we scroll down:
“Jarnail
“This is an email I received earlier from Gareth. You will see that he is clear that in order to answer Counsel’s question about any issues he needs to be able to check the underlying transaction logs to be able to say whether there were any issues. On the specific issues you raise Gareth’s view is:
“2. He needs information and time to research the background to this before providing any response …”
Then 3, cutting in what has been said:
“He is not currently in a position to make a clear statement. It is possible for there to be problems where transactions have been ‘lost’ … due to locking issues”, et cetera.
So it does look, Mr Tatford, does it not –
Warwick Tatford: No, I agree.
Mr Beer: – as if this has been forwarded to you?
Warwick Tatford: Well, I have to accept that. I don’t remember seeing this but it’s obviously something I’ve missed. If I’d – it’s my fault. I’m sorry, I didn’t remember seeing this. It would have made me ask questions.
Mr Beer: So do you agree that you were on notice from your solicitors that Mr Jenkins had explained that there could be locking errors in Horizon which would cause transactions to be lost?
Warwick Tatford: Well, yes, clearly. I’ve obviously missed this and haven’t taken it on board.
Mr Beer: Would you agree that this chain was forwarded to you in direct response to Mr Longman’s translation of paragraph 7 of your Advice?
Warwick Tatford: Yes, I think it was.
Mr Beer: I think it follows, from you not remembering having received this, you can’t help us as to what your response was to learning that the man with expertise, Mr Jenkins, felt unable currently to make a clear statement as to whether or not there were problems or issues with Horizon?
Warwick Tatford: Yes.
Mr Beer: You can’t help us with what your response was to knowledge that there was a problem with Horizon, according to the man with expertise, of lost transactions?
Warwick Tatford: Well, no, I can’t remember this, so I don’t know if it appears later on. It’s obviously something I’ve missed. I haven’t remembered this at all or don’t remember seeing this at all, and if I had seen it and thought it through, I would have taken action.
Mr Beer: I think it follows that, if you had realised the significance of what was being said to you in this paragraph here, you would realise the need to advise the Post Office to take steps to meet its disclosure obligations in relation to this issue?
Warwick Tatford: Yes.
Mr Beer: For example, what was the nature of the issue, what was the scope of the issue, what was its severity and how that information ought to be provided to the defence?
Warwick Tatford: No, absolutely.
Mr Beer: Overall, would you agree that this chain shows that Mr Jenkins did say, at this point in time, he was unable to make a clear statement about Horizon not having problems?
Warwick Tatford: Well, yes. I suspect – I mean, if I was reading this document, if I hadn’t quite cross-referred it with other documents, that may have been the error but it’s obviously something I’ve missed and this is important, and I’ve missed it. I’m sorry about that.
Mr Beer: Can we turn, please, to FUJ00122808. We’re moving forwards, if we look at the time at the top of that email, to 2.33 on 8 February. Mr Jenkins sends through to Jarnail Singh, copying Penny Thomas and David Jones:
“… a new Witness Statement saying what I don’t know about Falkirk and also comments on the 3rd report.
“I doubt they are of much use without getting the various detailed logs.”
Can we look at the attached statement, please, at POL00001569. This is the attachment to that email, Mr Jenkins’ witness statement, then dated 8 February 2000. In the second paragraph, he says:
“I have been asked if issues found at Callendar Square Post Office in Falkirk could have caused the discrepancies in the case of SEEMA MISRA. At this stage, I am not aware of the details of the problems in Callendar Square Post Office in Falkirk. However I expect to be able to find out the details of that case and also to compare the failing scenarios with the detailed logs that are to be extracted for the SEEMA MISRA case and should then be able to make it clear if the scenario is relevant.”
Then the rest of the statement consists of a number of other references to the fact that the Post Office hadn’t made any requests to Fujitsu for any data relating to West Byfleet that would enable Mr Jenkins to respond to Professor McLachlan’s report. Okay?
Warwick Tatford: Yes.
Mr Beer: Can we go to POL00054056. This is an email to you from Jarnail Singh:
“For your information I attach two statements by Gareth Jenkins which [were] served on the Defence Solicitors today by email.”
The second of those is the 8 February statement that we’ve just looked at. So, at this stage, Mr Jenkins was still saying, and indeed saying in witness statements being served on the defence, “I can’t respond to the expert because I haven’t got the data”?
Warwick Tatford: Yes.
Mr Beer: By this stage, a month or so before the anticipated March 2010 trial, do you agree that you had not advised the Post Office that Mr Jenkins ought to be treated as an expert witness?
Warwick Tatford: Yes, I agree. I don’t think I ever advised that he be an expert witness. I was – I don’t remember how – it was essentially presented to me but I don’t remember how that came about. It wasn’t as a product of my advice but, as I concede, that was down to muddled thinking, for which I have to take overall responsibility.
Mr Beer: Would you agree that by this stage, February 2010, the Post Office had not sought to instruct Mr Jenkins as an expert witness –
Warwick Tatford: That seems to be right, yes.
Mr Beer: – and that none of the statements that Mr Jenkins had provided incorporated in any way the necessary inclusions for a statement to amount to expert evidence?
Warwick Tatford: Yes, I agree, yes.
Mr Beer: Can we move forwards, please, to POL00093946. This is a skeleton argument settled by Keith Hadrill on 24 February 2010, in support of his client’s application for a stay of the proceedings as an abuse of process. Can we just look at paragraph 2, please, about five lines in, four lines in, it says:
“Trial on Count 1 was fixed to take place on 30 May 2009 [as we know] but was stood out on the day on the defence application for enquiries to be made as to the integrity of the Post Office Horizon computing system, which is central to the Prosecution case.”
I just want to see what was being argued by the defence, by looking at page 3, please. The bottom half of the page, under “Trial history”, paragraph 4 repeats what we’ve just read. Paragraph 5: listed for PTR and directions on 14 July, directions are given which included the service of experts’ reports.
Do you recall that, that at a PTR there was a direction made for the service of expert reports, plural?
Warwick Tatford: Yes, no, I think there’s an attendance note to for that but I can’t recall the date of the hearing. I think it was before His Honour Judge Critchlow, I think.
Mr Beer: The resident judge?
Warwick Tatford: Yes.
Mr Beer: Can you recall how you reacted to an order which directed the service of expert reports by a timetable and yet the prosecution was not relying on an expert?
Warwick Tatford: Well, the trouble – well, I reacted with dismay, I suppose, but the trouble was that we were given very strict directions by the courts and yet it didn’t seem to fit with what we were going to be able to do in time. It’s a product of muddled thinking but the disclosure requests are very wide.
We – you’ve been very properly focusing on the logs, which is the key, I accept. But they were much wider than that and I suppose, to an extent, I’ve – well, directions are made for a timetable because the court wants to try to make progress in the case. I probably should have said on that day, “We’re not going to be able to deal with this”, but I was doing my best to try to keep things going.
Mr Beer: In paragraph 6:
“The Prosecution, by a letter dated 14 August 2009 … said it would instruct Fujitsu, the supplier and operator of the Horizon system, to assist as experts. In that letter the prosecution stated that the request for data had been submitted to Fujitsu and acknowledged.”
Then over to page 5, please:
“This is in total contradiction to the statement received by Gareth Jenkins of Fujitsu who states that no requests have been made for any data relating to the West Byfleet branch.”
I think that was accurate. We can skip over paragraphs 7, 8, 9 and 10 on this page and go on to page 7, please, paragraph 12:
“The Prosecution had failed, until 01/02/10 to instruct an expert. At the Court hearing on 01/02/10 the Prosecution stated it had identified their expert, Gareth Jenkins from Fujitsu, but not yet instructed him. The Court confirmed that the Prosecution expert should report by 08/02/10.”
Warwick Tatford: That’s seven days. One can see the pressure that’s being looked on us by the court. Actually, looking at it now, it’s completely unrealistic but I was trying my best and the prosecution as a whole was trying its best to keep the trial going and trying to keep to the trial date. But that’s – looking at that, one only has to read it to see how unrealistic it is.
Mr Beer: Would you maintain that position, even if there had been a direction of July the previous year requiring the service of experts’ reports. This wasn’t the first time the court –
Warwick Tatford: No, I appreciate that. I appreciate these are legitimate criticisms and there has been a lot of muddled thinking and that’s why we ended up having an abuse of process argument and we missed the trial date it. I accept all that.
Mr Beer: In paragraph 13, Mr Hadrill says:
“A short statement, dated 8 February [that’s the one we’ve just looked at], was served from Mr Jenkins … In that report Mr Jenkins could generally not assist because:
“(a) he had not been given sufficient material and documentation by the prosecution …
“(b) he had only just been instructed to assist and would need time …
“(c) some of the questions raised by Professor McLachlan he did not understand …
“(d) some of the information requested from Fujitsu should, in fact, come from the Post Office.”
Then he says this:
“It is apparent that the Prosecution has given no clear instructions to its own expert, or provided him with adequate material to assist the Court.”
On reflection, would you agree that that’s a fair criticism?
Warwick Tatford: Yes, and I think I agreed that they were fair criticisms in the abuse argument. My essential argument was to say we have to move on and we’ve found a way to solve these problems.
Mr Beer: Was – cutting through it – the essential approach taken, that one sees quite often, that these are all issues that can come out in the wash to ensure that a fair trial is achieved?
Warwick Tatford: No, I think that’s unfair. It’s not coming out in the wash. A fair trial can be achieved within a reasonable amount of time because what happened after the abuse of process argument was the experts did cooperate. They cooperated very fully, provided in due course a statement of their agreements and disagreements, and then gave evidence back to back, lasting two days, so that the jury, I thought at the time, were given a very full understanding.
The correspondence in this case was very demanding indeed and, essentially, in some of the disclosure requests we were being asked to look at every single post office for all manner – some of the disclosure requests were so wide we had to give disclosure of every time there’s been an investigation at a Post Office.
There was no focus, and that’s what I was doing my best to try to get a focus. I was trying to get the focus back to West Byfleet, which, in fact, Gareth Jenkins is trying to do by saying “We need the logs”.
It was a difficult mess and I found it a mess and I found it very difficult and, if that’s my weakness and my inability to cut through all these things, I take full responsibility for it.
Mr Beer: Can we move on, please, to FUJ00152996. So we’re now in late February. An email from Mr Jenkins within Fujitsu and he’s referring to a conversation with you. You’re not copied into this email but I want to ask you about what he says that you said.
“Following the email exchange below I’ve now had another call from [the Post Office’s] Prosecution Barrister (Warwick Tatford) asking me to do some analysis of the various logs associated with this case.
“He is going to arrange for me to be sent details of what has been alleged and also what has been admitted so that I can identify some part of the logs to look through and discuss with the expert.
“Even if we limit the scope this sounds like a very time consuming task. I’m not sure I really want to be doing that and need some guidance as to the priority of this compared with everything else.
“Apparently the defence are saying it is too hard to get detailed in for and therefore there can’t possibly be a fair trial and [Post Office] are clearly keen to counter that argument. Trial date is in two weeks time so this is likely to be urgent!
“What do I do and who can sort out with the Post Office exactly what we should and shouldn’t be doing to support this?”
So, by this time, you had got Mr Jenkins’ phone number, either mobile or his desk. Again, this form of instruction, an oral instruction from prosecution counsel to prosecution, putative expert witness, was it normal for you in Post Office cases to work in this way?
Warwick Tatford: No, because I’d never been involved in anything like this before. I’d never been involved, although I’d been involved in the case of Page, there was no expert in that case on the prosecution side. This was an entirely new situation for me and I was finding it very difficult, and just trying to find a way through to make – to have a practical way forward.
Mr Beer: So does it amount to this: that the defence had identified that the Post Office had failed to provide Mr Jenkins with any material, and then Mr Jenkins is now speaking with you about what should happen?
Warwick Tatford: Well, as a way to try to make progress, because at the moment, Mr Jenkins had no idea what to look for. So we were discussing ways of looking at the logs to see if problems could be identified. It was a way of thinking it through.
Mr Beer: Would you agree that this doesn’t amount to any sort of proper expert instruction?
Warwick Tatford: No, I do agree with that but I also suggest that this isn’t a case where the – the disclosure requests were very wide and going beyond the ordinary case where one would have one expert on each side. There’d been a lack of focus, and it caused confusion and I was obviously a victim of the confusion as well, and I – well, I’ve obviously made a lot of mistakes. I acknowledge that.
Mr Beer: Can we move forward, please, to POL00054213. So within a couple of hours of the email that we were just looking at, at just after 4.00 on the same day, Mr Jenkins is emailed by Mr Singh, saying:
“As per discussions I now enclose:
“Copy Case Summary
“Copy Indictment
“Copy Defence Statement
“Copy of the interview
“Copy Defence Expert’s name is Charles McLachlan …
“… important that we are proactive on this and that you contact him as soon as possible with a view to concluding this”, and then some words of thanks.
Is this the closest we get to a formal instruction by the Post Office of Mr Jenkins.
Warwick Tatford: Yes, I think it probably is. It’s certainly the only – yes, I suppose it must be. It’s the only printed form of instruction that I’ve seen.
Mr Beer: But, in reality, it doesn’t amount to a proper instruction of Mr Jenkins as an expert witness?
Warwick Tatford: Yes.
Mr Beer: In particular, on the question of a joint meeting with Professor McLachlan, it doesn’t provide any sort of instruction as to how Mr Jenkins was supposed to undertake such a joint expert meeting?
Warwick Tatford: No. I don’t know what other – I don’t – there’s no evidence, from what I can see, of any other communications between Jarnail Singh and Mr Jenkins, so it appears from this that he’s not been given all the information he needs; he’s not been given the assistance he needs.
Mr Beer: Can we go forwards, please, a couple of days later, POL00054267. 1 March, Jarnail Singh to Gareth Jenkins:
“I now enclose Defence Expert’s 4th and 5th reports after his conversation with you of 12 February. As you are our Horizon Expert you need to telephone Charles McLachlan, his mobile telephone number is … to arrange a meeting where you can discuss all his reports and his concerns about the Horizon so you can deal with it and rebut it which you have done in your long telephone conversation about his various hypothesis and then write a detailed report which would go some way of progressing and concluding this matter and importantly preserving the Horizon system.”
“Importantly preserving the Horizon system”, was that a feature of the instructions that you received, that the evidence in the case should have as its aim the preservation of the integrity of the Horizon system?
Warwick Tatford: No, not that I received no. I can see what it says here and, clearly, this is not an open-minded enough set of instructions. There’s much more to it than preserving – it’s about ensuring that Mrs Misra has a fail trial. I wasn’t under any pressure from what I feel – from what I remember, that I was essentially being told to arrange things so that we preserved the Horizon system. I didn’t feel that that was pressure being put on me. Obviously, these words show thinking that’s not conducive to a fair analysis.
Mr Beer: Anyway, this may be the second of the two emails that we’re looking at, that comes closest to an instruction of Mr Jenkins. Mr Singh continues:
“Maybe the simplest and practical way of dealing with this whole question is to find the shortest span of logs, analyse it, disprove or rebut what the Defence Expert is saying in his reports.”
Do you agree that’s an inappropriate instruction to –
Warwick Tatford: Yes, that’s completely wrong.
Mr Beer: Then I think the closest that we ever come to a reminder of an expert’s duties:
“Just a reminder you are an Expert for Fujitsu. You’ll be giving evidence in Court. The judge and jury will be listening to you very carefully and a lot will hang on the evidence.”
Warwick Tatford: No, it’s –
Mr Beer: Risible?
Warwick Tatford: Well, disastrous, I was going to say. I’m sorry, this shouldn’t have happened, and – this isn’t what I intended to happen, but I – that’s not an excuse because, as far as I’m concerned, I was prosecution counsel in the case, I have responsibility for the case as a whole, and this is – I have obviously failed to ensure that there’s an atmosphere where an expert can be properly instructed, and wrong decisions are being taken, and I understand the evidence about Post Office not being aware of its duties in relation to expert evidence, and this is the natural result.
I wasn’t – I don’t think I was aware of this sort of instruction. I like to think if I’d seen it, I would have done my very best to resolve this and put an end to this but it’s very troubling reading.
Mr Beer: Can we move forwards to two days later, 3 March, FUJ00153027. If we scroll down, we can see, to start with, an email from Jarnail Singh or on behalf of Jarnail Singh to Penny Thomas. Yes?
Warwick Tatford: Yes.
Mr Beer: If we just look at the top of the email chain we can see Penny Thomas sending it on to Gareth Jenkins, yes?
Warwick Tatford: Yes.
Mr Beer: I appreciate in these emails that I’m showing you more recently, you’re not a copy-ee and so far, as I can see, you weren’t sent these. This is all going on beneath the surface. So if we just scroll down to see what Jarnail Singh said to Penny Thomas, which got forwarded to Gareth Jenkins:
“What has been requested … is transaction logs for best Byfleet (this is the whole of the false accounting period to which Ms Misra has pleaded to) from 1 December 2006 to 31 December 2007. This should then be given to Gareth Jenkins at Fujitsu to confirm by his witness statement whether there are any errors within the Horizon system for the transaction log period.
“Gareth Jenkins will need to study the Defence expert’s reports which he has in hand and he had lengthy discussions with the Defence expert Charles McLachlan … There is a need for an urgent meeting …”
Next paragraph:
“It may be the practical approach for Gareth Jenkins to find the shortest period span of transaction log data”, et cetera.
So the cutting and pasting into this email that which we’ve seen before. So this amounts perhaps to the third instruction to Mr Jenkins, would you agree?
Warwick Tatford: Yes.
Mr Beer: In that antepenultimate paragraph, three lines in, it says:
“Mr Gareth Jenkins is an expert for Fujitsu. He will give evidence in Court.”
Then a passage about the jury and the judge will be listening very carefully.
Do you agree that, insofar as it can be said that this document constituted some form of instruction, it was limited to the examination of logs for a specific period to determine whether there was evidence of a problem within that period relating to West Byfleet?
Warwick Tatford: Yes.
Mr Beer: That was, I think, consistent with what you appear to have told Mr Jenkins to do in your telephone conversation of the 26th; is that right?
Warwick Tatford: Yes.
Mr Beer: But the bigger task, paragraph 7 of your Advice task, appears to have been lost by now, doesn’t it?
Warwick Tatford: Yes. No, it’s – it does seem to have been completely lost, and we go from an expert I understood to be – that I wanted to look at the logs with an open mind, to be being given the instructions we can see here that are so one sided and unfair. I’m afraid it betrays a complete lack of understanding of what an expert is for and that’s obviously very wrong and, actually, very unhelpful to Mr Jenkins as well.
Mr Beer: Can I ask to what extent were you involved in the selection of the date parameters for the ARQ data?
Warwick Tatford: I don’t think I was involved in – well, I approved the dates on the basis that it was free of the thefts. I can’t remember now if I – that’s something I approved after the event or whether I advised before. I’m afraid I can’t remember that.
Mr Beer: Can we see if we can get any help from the skeleton argument that you lodged for the abuse of process argument. That’s POL00054346. If we can look at page 5, we can see you signed this off on 7 March. Can we look on page 2, please, and paragraph 7 at the foot of the page. You say:
“One of the main sticking points in the disclosure process has been the cost of obtaining Horizon data … The Defence’s request has been for logs from 6 months prior to the Defendant’s tenure to the present day. [That] is far too wide and the cost of obtaining that data would frankly be astronomical (see paragraph 8 for the cost …). The Crown has explained on numerous occasions how expensive it is to obtain this material. The expense simply results from Royal Mail’s contractual obligations to Fujitsu. We have asked the Defence repeatedly to consider a narrow timespan for their request or a narrow field of types of transactions. The reason for this suggestion was that the Defendant’s false inflations increased consistently over a long period of time.”
Then 8:
“The Defence has made no proposal as to an appropriate span of data, even though it has the potential advantage of the Defendant’s insider knowledge. This failure by the defence has been rather frustrating but it may have been in part because the defence put its request on hold while it asked for justification of the cost … the Crown has chosen therefore, at a cost of over £20,000, to obtain logs for the period December 2006-December 2007. The chosen time period covers the full extent of the Defendant’s admitted false accounting. It also post-dates the time when the Defendant claims to have put a stop to thefts by employees.”
To what extent here were you rehearsing your instructions, or were you rehearsing your own advice, or repeating your own advice, as to the date parameters.
Warwick Tatford: I can’t remember, that’s the difficulty, because it’s not in the – it’s not in a written document. So I can’t remember. I can’t remember whether this was suggested to me and I approved it or whether I suggested it. I suspect it’s the former, actually, from the wording here, because – but I can’t remember, I’m afraid.
Mr Beer: Okay, I understand. Can we move forwards, please, to look at Mr Jenkins’ witness statement of 9 March. POL00001643. Can you see that this is his witness statement of 9 March?
Warwick Tatford: Yes.
Mr Beer: If we scroll down, please. He says that:
“Further to [the two statements that we’ve seen earlier were served by Mr Singh] on 8 February … I would like to add the following:
“I have examined the 5th Interim Technical report”, and then he comments on it and that’s how the statement proceeds.
If we just go to the top, please. This is in Criminal Justice Act form isn’t it? It’s an MG11 –
Warwick Tatford: Yes.
Mr Beer: – if it was a police case format. How is it, if, by this time, Mr Jenkins was being treated as an expert witness, that he was giving his evidence, by way of a Criminal Justice Act, a section 9 witness statement that doesn’t comply with either the common law or the Criminal Procedure Rules for expert evidence?
Warwick Tatford: That was – I think, follows from my advice that his responses to the expert, which were meant to assist, rather than being a formal report –
Mr Beer: These are served evidence in the case?
Warwick Tatford: Well, they are served evidence and I suggested putting in a witness statement. What I should have done was to say “Oh, actually, the time has clearly come where it needs to be set out more clearly as an expert’s report”. But my advice was given in order to speed matters along. It clearly wasn’t the right advice.
Mr Beer: Can we move forwards to July 2010, please, and look at FUJ00153157, and can we look at the second page, please, and scroll down? Thank you. Can you see there an email of 22 July 2010 sent at 7.30 in the morning by the defence solicitor Issy Hogg –
Warwick Tatford: Yes.
Mr Beer: – to the prosecution solicitor Mr Singh, in the case of Misra:
“Jarnail,
“As a result of the meeting that took place between Charles McLachlan and Gareth Jenkins, as directed by the judge, we now need to have:
“access to the system in the Midlands where it appears there are live, reproducible errors.
“access to the operations at Chesterfield to understand how reconciliation and transaction corrections are dealt with.
“access to the system change requests, Known Error Log and new release documentation to understand what problems have had to be fixed.”
So this is a defence shopping list or request for disclosure, arising out of an expert meeting. You’ll see that it includes Known Error Logs. Can we scroll up, please. Mr Singh forwards that email to you and to the Investigator, Mr Longman:
“I enclose a copy of an email received from Issy Hogg … content … is self-explanatory. Could you please be kind enough to let me have your urgent instructions as to the access and information she is requesting in respect of the system in the Midlands, the operation at Chesterfield and the error logs. [He’ll] contact Gareth to find out what happened at the meeting with Charles …”
I think it follows from this that the evidence you gave earlier that you hadn’t heard of Known Error Logs must be in error after all this time?
Warwick Tatford: Well, yes precisely. I mean, it is a long time ago.
Mr Beer: Just scrolling down, if you, at the time, had seen an email such as this, would Known Error Log have jumped out at you as having a special significance, or would it be just one of another species of material that –
Warwick Tatford: It should have leaped out at me because the very words have that objective quality that I was seeking and I suspect, in considering this, I’ve been blinded by the first two requests, which are less obviously important for the trial.
Mr Beer: So scrolling back up, then, we see that it was sent to you five days later, on 27 July and then scroll up again, please. Mr Longman sends it on to Fujitsu through Penny Thomas:
“Could you ask Gareth to explain in more detail how the three points raised by Issy Hogg below came about.”
Then scroll up.
We can see Penny Thomas’s reply to Mr Longman, and she says she’s had a conversation with Gareth, and his views on the email string are as follows. This is essentially an email cut into her email. I’m going to skip 1 and 2, which is about access to the system:
“3. System Change Requests: Basically, he was asking to look at all system faults. I suggested that as we kept all testing and Live faults in the same system and that there were around 200,000 of them, then this wasn’t going to get him far. He then suggested looking at the system changes and would like to see all changes that have happened to the system. Again, I don’t think this will help and I don’t know how practical it is for Fujitsu’s Release Management to provide that. I think all we can do is ask the question.”
Do you see what this overlooks is a response by Mr Jenkins to– when I say “overlooks”, I put that to – does not include, putting it very neutrally, any response to any request for Known Error Logs?
Warwick Tatford: Yes.
Mr Beer: Would you agree this is not really a response of substance to the defence’s disclosure requests, is it?
Warwick Tatford: Well, no, it’s not properly thought through, I agree.
Mr Beer: Can we go, please, to POL00055073. We can see that that email of 3.39 on the 27th from Longman to Singh was almost immediately eight minutes later, sent on to you. Does it follow that you didn’t pick up that the defence were asking for something of potential significance, Known Error Logs, the type of material that you were looking for, some objective recognition of fault?
Warwick Tatford: Yes, I agree. Precisely.
Mr Beer: And that Mr Jenkins had not answered that question?
Warwick Tatford: Yes, I agree.
Mr Beer: Can you recall what your response was to what was said, that there were some 200,000 system faults in Horizon?
Warwick Tatford: Could I just – could it just be scrolled down because I can’t see it in front of mine –
Mr Beer: It’s at paragraph 3, the cut-in part of the email.
Warwick Tatford: Thank you.
Well, I haven’t – I obviously haven’t considered this properly because that’s …
Mr Beer: I can’t see, Mr Tatford, any follow-on advice from this.
Warwick Tatford: I know. I think –
Mr Beer: Telling the Post Office the steps that it needed to take to ensure that it met its disclosure obligations by reference to what is disclosed by paragraph 3?
Warwick Tatford: No, I agree. I haven’t thought this through. I think I’ve been distracted by the other requests and haven’t thought this through. I’m sorry.
Mr Beer: Sir, I wonder whether that would be an appropriate moment to take a break –
Sir, I wonder if that would be an appropriate moment to take a break. We can’t hear you at the moment. I think you’re saying yes.
Sir Wyn Williams: (The Chair nodded)
Mr Beer: You are. Can we say again by non-verbal communication, 2.55, please?
Sir Wyn Williams: (The Chair nodded)
Mr Beer: Thank you very much. 2.55.
(2.39 pm)
(A short break)
(2.55 pm)
Mr Beer: Sir, good afternoon, can you see and hear me?
Sir Wyn Williams: I can, much to my relief. I should explain that, just as you were asking me to break, the battery in my mouse ran out and so I couldn’t unmute myself, but I managed to cure that.
Mr Beer: There’s a number of quips I could make there, sir, but I’ll resist the temptation!
Sir Wyn Williams: Yes, I’m, shall we say, nervous about some aspects of not being with you, Mr Beer.
Mr Beer: Yes.
Mr Tatford, we were looking at the email exchange of 27 July that was forwarded to you by Mr Singh for your information and consideration. Can we look at what happened when you got it, ie the next day, 28 July 2010, by looking at POL00055118. So this is the day after you were forwarded the email exchange containing the three Issy Hogg disclosure requests, two about access to systems, the third about a variety of things, including system change requests and Known Error Logs, and Mr Jenkins’ reply, including the “There are 200,000 system faults”.
The attendance note is:
“One telephone call received from Warwick Tatford … After discussion he confirmed that they [I think that’s the defence] are seeking exactly what they were seeking before and to respond to the Defence that if they wish disclosure of these items they need to make a Section 8 application to the Court and also that our Expert Mr Jenkins has informed their Expert that the material from Chesterfield that is the Logs is not relevant information that would assist them.”
I suspect you no longer remember this telephone conversation?
Warwick Tatford: No.
Mr Beer: The gist of it is that what the defence was now seeking, the Issy Hogg email request, was what they were seeking before. That’s, in fact, not correct, is it?
Warwick Tatford: Well, I think it’s – I think I’m concentrating on the first two requests, and – well, not deliberately ignoring but missing the third one, which is actually the one that really matters. But it’s clearly – I mean, I’ve no reason to suggest – to think that this is inaccurate in any way. I understand –
Mr Beer: Why would disclosure of the Known Error Logs require a defence Section 8 application?
Warwick Tatford: Well, no that wouldn’t. That’s precisely the point I’m trying to make, that I think – I’m presuming that I’m referring to the first two. So request for an access – to another site in the Midlands, request to access to Chesterfield. That’s, I think, what I’ve thought of in relation to a Section 8 application.
I’ve obviously missed the third one and the third one, as I’ve just said. That’s primary disclosure, the first one. That’s exactly I’ve said I was looking and now I’ve obviously failed in my own test, and I apologise for that.
Mr Beer: Can we go to POL00055126. This is from Jarnail Singh on 28 July 2010. It’s sent to Hannah Ivory, who is another solicitor in the defence firm:
“I refer you to Ms Issy Hogg’s email of 22 July 2010.
“These have been previously requested by you and our view is consistent. The prosecution do not have [I think the word ‘an’ is missing] obligation to grant you access and [then I think ‘that’ is missing] you require or are not prepared to disclose this material. However you are perfectly entitled to make a Section 8 application to the Court.”
You accept that Mr Singh’s response to Mrs Misra’s solicitors reflects the advice that you’re recorded as giving on –
Warwick Tatford: Oh, yes, and it reflects the answer I gave previously.
Mr Beer: So here, the important parts of the defence disclosure requests have been overlooked?
Warwick Tatford: I’d agree with that. Well, I certainly agree with it now. The problem that I faced throughout this case was that there were so many disclosure requests and I’ve obviously made mistakes, but that’s the context. That’s all I’m trying to say. As I said earlier, you’ve just shown that I failed my own test.
Mr Beer: Can we turn, then, to Mr Jenkins’ draft witness statements of October 2010. That can come down.
Before we look at them, would you agree that by 2010, there was a requirement under the Code of Practice issued under the Criminal Procedure Investigations Act 1996 to retain and record final versions of witness statements and draft versions of witness statements where their content differs from the final version?
Warwick Tatford: Well, I think that is right. Whether I applied that to my mind, I rather doubt, from what I know of the notes and suggestions. But …
Mr Beer: I’m reading from paragraph 5.1 of –
Warwick Tatford: Oh, I’m quite happy to accept it.
Mr Beer: – the 2005 edition.
Warwick Tatford: No, I do accept it. I can see, thinking things through, where I’m going to be at fault. I accept it says that and I accept being aware of it, I think. But – yes.
Mr Beer: Can we turn, with that in mind – the duty to retain drafts where contents differ from the final version and record them on a schedule of unused material – to what became Mr Jenkins’ October 2010 witness statement. Can we look, please, at FUJ00123006. Can you see this is a draft witness statement dated 6 October 2010 –
(No audible response)
Mr Beer: – in Mr Jenkins’ name. If we scroll down, please, and again, then look at page 2., can you see in the second paragraph there Mr Jenkins writes:
“In Section 1.2 of his report, Professor McLachlan lists a number of ‘Hypothetical issues’ with the Horizon system. However there doesn’t appear to be a thorough justification as to why these might be relevant.”
Then there’s some text that appears after it, which, in the original, was red.
Warwick Tatford: Oh, I see, yes. I understand.
Mr Beer: Can you see?
Warwick Tatford: Yes.
Mr Beer: I wonder whether that can be marked up, the “I wonder if you might be”, and the rest of the paragraph down to “hypotheses at all”. Thank you.
So what happened was Mr Jenkins’ draft statement was sent to you for comment and you replied, and these are your replies –
Warwick Tatford: Yes.
Mr Beer: – in what was originally red.
Warwick Tatford: Yes.
Mr Beer: Can you see there that Mr Jenkins said:
“… there doesn’t appear to be a thorough justification as to why these [issues listed by Professor McLachlan] might be relevant.”
You said:
“I wonder if you might be prepared to use slightly stronger wording. There doesn’t appear to be any evidential basis for the hypotheses at all.”
Yes?
Warwick Tatford: Yes.
Mr Beer: Can we move forwards, please, to page 8. Can we see, on page 8, the red text beginning with “Can you expand on this?” So:
“Professor McLachlan explores issues with training of Users in section 2.3.4 of his report. I support his finding regarding discrepancies in cash in almost every period.”
Then you added:
“Can you expand on this and explain in layman’s terms, perhaps giving a couple of examples? I do not understand exactly what [Professor McLachlan] is referring to and your agreement might be interpreted as a concession that the Crown’s case is entirely flawed. Discrepancies are always to be expected.”
Yes?
Warwick Tatford: Yes.
Mr Beer: Then if we carry on reading, scroll down, please. Towards the end of the red section beginning with “M”:
“M seems surprised that thefts over a long period should go undiscovered.”
You wrote:
“This is rubbish. If a [subpostmaster] is cooking the books only an audit will reveal the truth.”
Then can we go forward to page 10, please. Second line onwards, it’s the entirety of this paragraph.
“Please provide your full explanation of why Callendar [Square] doesn’t apply so that this statement can stand alone. The Defence are going to bang on about this.”
Then five lines on:
“My understanding is that Misra is unable to describe at all what may have been going wrong with her system. According to her Defence Statement she simply put the losses down to theft by employees and/or incompetence. This appears to be to me to be ludicrously vague. She should at least be able to say where the losses were occurring. Are you not surprised that [Professor McLachlan’s] reports appear to have received no guidance whatsoever from Misra? Were you surprised to see that Callendar [Square] was still an issue for [Professor McLachlan]? Did you have any idea that he wanted the earlier logs before you received his final report?”
Page 13, top part:
“Finally, towards the end of the section Professor McLachlan hypothesises ‘There are missing Transaction Corrections which would reduce the cash balance expected by the Horizon system (ie be in favour of Misra)’.”
Then Mr Jenkins said:
“This may indeed be true.”
Then you said, if this can be highlighted:
“Why? Isn’t this wish “Thinking by [Professor McLachlan]? There is no evidential basis whatsoever for his assertion. Have the transaction corrections disappeared by magic? However my understanding is that normally”, and I think that’s back to Mr Jenkins’ writing.
Then further down the page, Mr Jenkins writes:
“Section 2.5.2 of the report discusses remittances. However I don’t understand the relevance of this discussion to the case. Professor McLachlan mentions that my analysis ‘identified a pattern or remittance transactions which is consistent with Misra’s statement that she declared cash held in remittance pouches in the safe which were not actually present’.”
Mr Jenkins continues:
“In my view is this not an indication of guilt?”
Then you added:
“Please rephrase and expand. It is surely surprising that a [subpostmaster] should go to all the trouble of preparing scores of empty bags rather than trying to find out what the problem was. In fact Misra had considerable computer experience – you may want to speak to Jon Longman as to her CV.”
Then lastly page 14, the foot of the page:
“Section 3.2 mentions screen calibration issues. While I can’t [I think that’s supposed to say 100%] rule out such issues as causing some issues. However I can’t see how this could account for anything like the full extent of the losses.”
You added:
“Please rephrase. This will be taken as a damaging concession. You need to explain what is meant by ‘screen calibration issues’. Give examples if you can. How can any such issue lead to a deficiency? Above you any refer to the possibility of confusion arising, not a deficiency.”
Thank you, that can come down here.
Mr Tatford, is what we see here prosecution counsel seeking to harden up his expert?
Warwick Tatford: Well, I’m seeking him to consider various points, points that I see as legitimate, and I was trying to express it in a way that merely to invite further consideration, but I’m asking him to focus on what I understand to be the evidence.
Mr Beer: Would you agree that the way you went about it was inappropriate?
Warwick Tatford: In the context of everything that we’ve gone through, I should have acted differently, I think. I think it’s – I think I may have been lulled into feeling that your experts are cooperating and I was merely clarifying details to make sure that Mr Jenkins really meant what he said. But it all comes back to the safeguards that are there in the Criminal Procedure Rules, that they should have been followed, and –
Mr Beer: But here this isn’t about just the rules; this is about what you personally did?
Warwick Tatford: Oh, yes. No, I agree. It’s –
Mr Beer: You ask questions in a very leading way, don’t you, in this? You point out what your view is.
Warwick Tatford: I do, I do. I should have been – I should have handled it differently.
Mr Beer: Consistently with the Criminal Procedure Rules, do you agree that this draft statement marked up by you should have been retained and recorded on a schedule of unused material?
Warwick Tatford: Yes, I think that’s right and that’s something I didn’t consider. I obviously wasn’t thinking these things through at all. I’m sorry for that.
Mr Beer: Thirdly, do you agree, as a consequence, that the defence at trial were denied the opportunity to explore with Mr Jenkins how his written evidence came to look as it did at trial, if the facts of this exercise and the records of it were not revealed to the defence and to the court?
Warwick Tatford: Well, that would follow.
Mr Beer: Would you agree that that is not only a breach of the rules but an unfairness in itself?
Warwick Tatford: No, I think it is unfair and I’m sorry for that. I can – I think what I was doing was just trying to clarify matters and make things clear but I do agree that I’ve overstepped the mark there.
Mr Beer: You said in your witness statement that you were at pains throughout to ensure that Mr Jenkins understood that he was subject to a duty of independence, that he was the subject of a duty to be impartial and that he was under a duty to assist the court and not the Post Office. Do you think that the approach that we see in the examples I’ve given you of trying to press Mr Jenkins to say that it was likely that Mrs Misra had stolen the money is consistent with those claims that you’ve made?
Warwick Tatford: No, I accept that it isn’t but what I was trying to do in my witness statement was remember the overall picture, which I did think – genuinely thought involved mutual cooperation and trying to focus on the issues. But – well, I’ve summarised matters in that way, in a way that’s – that makes me appear better than I clearly have been. I accept those failings, you rightly pointed them out.
Mr Beer: Finally on this topic, do you see any inconsistency with your view that Mr Jenkins was called at trial as an expert witness and your approach as disclosed by this marked-up witness statement of seeking to push the independent expert to take a more unequivocal view in his witness statement?
Warwick Tatford: I was seeking to push him on the issues and to focus clearly on the issues. But I agree, looking at it now, I don’t think I should have done it.
Mr Beer: Can we look now at what Mr Jenkins did in response to some of the comments that you made. POL00167219, thank you. This is going to be very difficult to read because there are four colours going on in it.
This is essentially a version of Mr Jenkins’ October 2010 witness statement, returned by him to you and the prosecution team, setting out amendments that he’d made which are coloured in red when he makes it an addition, are struck-through and coloured in red when he makes a deletion and then, including in a box, which sets out in yellow and sometimes blue his response to your comments.
So can we look, please, as an example, the bottom of page 5. I wonder whether we can display the text just at the top of page 62. So we can see what your comment was, “WT”, Warwick Tatford:
“I wonder if you might be prepared to use slightly stronger wording. There doesn’t appear to be any evidential basis for the hypotheses at all.
“Gareth Jenkins: is that better?”
Then if we go up to see what changes he made. Originally as drafted, the sentence read:
“However there doesn’t appear to be a justification as to why these might be relevant.”
It’s been changed to:
“However there doesn’t appear to be any real justification as to why these might be relevant. The purpose of these statements appears to be to plant seeds of doubt without a factual basis.”
You see he’s picked up your point, there isn’t any factual basis for this, yes?
Warwick Tatford: Yes.
Mr Beer: Then can we look, please, at the bottom of page 16, thank you:
“WT: Can you expand on this and explain in layman’s terms”, et cetera.
We just read that, yes, in the previous marked-up version?
Warwick Tatford: Yes.
Mr Beer: Then scroll down to see what his reply is:
“Gareth Jenkins: I’m not sure I can cover all you suggest, but have made an attempt above.”
We can see, if we go up to page 16, the entirety of that page is new text, yes?
Warwick Tatford: Yes.
Mr Beer: Then if we can go on to page 17, please, and scroll down – if we scroll up a little bit, thank you:
“WT: Isn’t theft rather more likely? Are these equally valid possibilities? Why would a [subpostmaster] not monitor the system well on a daily basis? Not to do so risks throwing their own money down the drain.
“Gareth Jenkins: I would tend to agree, but surely that is something for Post Office to show. My expertise is in the system and not in how a Post Office is operated.”
So this is the expert pushing back on you, isn’t he?
Warwick Tatford: Yes, he is.
Mr Beer: At the bottom of page 24, please, and on to page 25. Thank you.
“WT: Please rephrase and expand. It is surely surprising that a [subpostmaster] should go to all the trouble of preparing scores of empty bags rather than trying to find out what the problem was. In fact Misra had considerable experience – you may want to speak to Jon Longman as to her CV.”
Reply:
“I’ve tried to do that. Not sure what the relevance of her CV is to me. I’m just trying to describe how Horizon works not her competency.”
Again, Mr Jenkins pushing back.
Warwick Tatford: Yes, to his credit.
Mr Beer: Bottom of page 25, please.
“WT: As I mention above, if the [subpostmaster] is fiddling the accounts only an audit will uncover the problem. Misra will have known this.
“Gareth Jenkins: Agree, but it is not for me to say.”
Again, pushback by Mr Jenkins?
Warwick Tatford: Yes. No, absolutely.
Mr Beer: That can come down, thank you.
Overall it seems, would this be right, that you were trying to materially to alter the content of Mr Jenkins’ evidence and, in some cases, you succeeded and, in other cases, he stood his ground; would you agree?
Warwick Tatford: I wouldn’t agree materially to all – all to the content. I was asking him to focus on issues as I understood them to be, albeit the distinction is quite narrow. Looking at it now, if I was doing it now, I wouldn’t have done it in that way.
I think it’s dealing with a different – a new and what was for me an unusual case and I think I hadn’t thought things through properly. And that’s my error, and I apologise for it.
Mr Beer: Thank you. Can we turn to a new topic, please, disclosure of training material. Can we just turn up your witness statement, please, at paragraph 50, which is on page 25 – in fact, it’s the second part of paragraph 50 on page 26. You’re referring to Mrs Misra’s interview and you say:
“On the contrary, she said that she had been able to find the cause of the losses – her dishonest employees. Her interview had not made mention of her suffering losses right from the beginning, in the presence of her trainers while they were training her, before any possible theft was involved, which was something that she later relied on heavily in her evidence at trial.”
So the point that you’re making here, is this right, that at trial Mrs Misra relied on an occasion or occasions where a loss was suffered whilst a trainer was in the premises with her, in the post office with her?
Warwick Tatford: Yes.
Mr Beer: You’re making the point: but, hold on, that’s not something she relied on interview?
Warwick Tatford: Well, I think she – I dealt with this. I specifically went – well, normal practice is to go specifically to the questions to see whether it is a matter that could legitimately be raised at that time. But I’m trying to remember exactly how it was.
I appreciate I made the point and – that I made that point in my speech and then persuaded the judge that there was a potential adverse inference on that point.
Mr Beer: So a Section 34 inference –
Warwick Tatford: Yes.
Mr Beer: – against her. But, in any event, you’re making the point here that Mrs Misra relied significantly on the fact that some of the losses occurred in the presence of her trainer?
Warwick Tatford: Yes.
Mr Beer: I just want to look at what was disclosed in the trial, as against material that the Inquiry has now uncovered?
Warwick Tatford: Oh, right. All right.
Mr Beer: The Post Office has disclosed to us the following document. It’s called a “Request for Ad Hoc Training”, specifically in relation to balancing procedures. Can we look at it, please. POL00047578. Can you see it’s called “Request for Ad Hoc Training”?
Warwick Tatford: Yes.
Mr Beer: Name of the outlet, West Byfleet, and its identification code. “Agent’s name”, misspelt Mrs Misra.
Warwick Tatford: Yes.
Mr Beer: Then if we scroll down:
“Ad Hoc Training Required …
“Balancing procedures.”
Warwick Tatford: Yes.
Mr Beer: “Training Delivery Team to complete”, at the foot of the page. Request received, 25 July 2005; days allocated, 27 July and Wednesday, 3 August 2005. The trainer Michael Opebiyi, yes?
Warwick Tatford: Yes.
Mr Beer: If we just look at the rest of the page, “Balancing Procedure”, this is for the field trainer to complete. “Balancing procedure”, topic covered:
“Check daily procedures, weekly procedures, weekly Horizon reports and cash account.”
So it looks like there’d been a request for ad hoc training, specifically in relation to balancing procedures, that looks like it led to Michael Opebiyi being allocated to perform training on 27 July and 3 August.
Mr Beer: So, overall, this is a request for training relating to Mrs Misra specifically relating to balancing, yes?
Warwick Tatford: Yes.
Mr Beer: Can we look, please, at POL00065114, an “Intervention Manager Visit Log”. This looks like it’s completed by the Intervention Manager for the area, called Alan Ridoutt, and he’s recorded:
“This branch was visited on 10, 17 and 27 August 2005 regarding balancing issues and the setting up of individual stock units. I have spent many hours sorting out balancing issues and helping with the stock setup as well as arranging ad hoc training.
“The [subpostmaster] is still new and is looking for support on many issues – she has the capability but needs occasional guidance.”
Then this, if we can just scroll down and highlight it:
“This branch is currently holding a loss of £466.73 and an over of £96.80. That was put into the suspense account by the trainer ‘Michael’. Who told the [subpostmaster] that a voucher would be issued to clear it. I have spoken to Michael who confirmed that he did this. I have warned the [subpostmaster] that unless an error comes back they could be liable.”
Would you agree that this appears to be a record that, whilst a trainer was there, he agreed that an amount of £466.73 and an over of £96.80 could be put in a suspense account.
Warwick Tatford: Yes, it does. Can I just clarify, it’s me not understanding this: was this something that was disclosed in the trial or it has come forward more recently?
Mr Beer: More recently.
Warwick Tatford: Well, it rather looks like I’ve made an error and a bad, unfair point.
Mr Beer: You’re ahead of me because I think you’re thinking ahead to the cross-examination of Mrs Misra –
Warwick Tatford: Yes.
Mr Beer: – when, essentially, you said that what she was saying wasn’t true.
Warwick Tatford: Yes, and it looks like a bad point. I’m sorry about that. My understanding was, from what I remember, the training records were disclosed.
Mr Beer: Well, let’s before we get ahead of ourselves –
Warwick Tatford: Forgive me, I’m getting ahead. My fault, I’m sorry.
Mr Beer: Just see how disclosure unfolded at the trial. Can we look, please, at POL00058503. Can we see at the foot of this page an email from 28 November 2009 from Keith Hadrill to you:
“Hi Warwick
“Sorry to disturb your weekend. However, herewith the further disclosure request drafted by Issy.
“Call me if you need any further clarification.”
Then if we can look at the disclosure request, next page, please. Look under the foot of the page, under the cross-heading “Training”, copy of the training manual, when it was supplied, all records provided to the defendant qualifications of the trainer. Then this at paragraph 5:
“During the second week of the Defendant’s tenure as a subpostmistress at West Byfleet the trainer was present during the weekly reconciliation. He called the helpline to request explanation as to a loss as, in his opinion, the Defendant had at all times followed procedure. No explanation was given and the Defendant made good the loss. Please provide the following information:
“a) The name and contact details of that trainer (to assist in identification the defendant recalls his name was Michael and he was black).
“b) What enquiries were made, bearing in mind the request came from a trainer, as to the cause of this loss.”
If we go back to page 1, please. You forwarded this, so you were getting it directly from defence council. You forwarded it that night, so the following night, to Jon Longman and Phil Taylor:
“Dear Jon & Phil,
“Please find yet another disclosure request from the defence, albeit, to an extent, a rehash of what has gone before.”
Does the language you’ve used there reflect your frustration at the defence making disclosure requests?
Warwick Tatford: Yes. Not the act of making disclosure requests; that’s not a problem. The problem was their wideness and they were very wide, and they – well, the trouble with very wide defence requests that don’t focus on matters is that it’s possible to be distracted by some things and not concentrate on other more important things. That’s a potential danger.
A good prosecutor should be able to deal with everything. But there were a lot of disclosure requests, as I think is clear from the paperwork, and they were very wide.
Mr Beer: That one we’ve looked at was pretty specific, wasn’t it, in the –
Warwick Tatford: Oh yes, it’s one of the ones and I think I’d dealt with that in my advice and I think Jon Longman was providing information on that. It maybe that he – he wasn’t aware of the full information when he made disclosure but I’m sure we’ll come to that.
Mr Beer: Can we look at what happened at trial, please, UKGI00014845. So this is the transcript of the trial for 18 October 2010. If we can turn up page 52, please. I’m jumping right in here, this is her evidence-in-chief:
“What happened whilst Michael was there? Did he also sit behind and watch what you were doing?”
Mrs Misra says:
“Yeah, he was sitting behind me, but I mentioned to him – as he come in ‘how is it going?’ I said ‘not good. I am having to put money in every day to the post office’. He was more concerned than Junaid. He said ‘that should not be happening. Let us see how it goes’.
“Question: Did it get any better?
“Answer: No. I have to again put money in every day and then when balancing with Michael it came round at £400 short.
“Question: At the end of the week?”
Then scroll down. End of D:
“… second balancing in office with Michael.
“Question: So the first day with Michael on the second week?
“Answer: That is right – no – yeah. That is right.
“Question: It is £400 short?
“Answer: No, no, no, that is on the second balancing £400 short.
“Question: So that is the end of the second week?
“Answer: End of second week.
“Question: Did you get any error corrections there?
“Answer: No. Michael said ‘it is a bit unusual. I know you have been doing the transaction correctly’. Then I remember him staying behind and he made a phone call from [my] office … he said he had been observing we are doing the transaction correctly … they have been putting the money in every day to balance the till and he can’t understand why the £400 shortfall is.”
So she was showing quite a good recall for the figures there, the £400, wasn’t she?
Warwick Tatford: Yes.
Mr Beer: Can we go towards page 132, please, B:
“Question: It is this interview I am looking at. All right?”
This is you cross-examining:
“Answer: Okay.
“Question: In this interview you have not mentioned Michael, Junaid, what auditor threatened you with, the £500 and then you will lose the post office. You don’t mention Timiko Springer. Yes? All those things are missing from this interview. Do you accept that?
“Answer: I accept I gave answer to the questions what they asked for.
“Question: Right what I want to understand is why these things are missing because in fact you have just given us another potential reason. Is it because you were not asked the question or is it because you had not realised how important these things were at the time of interview?
“Answer: I can’t remember, basically …
“Question: If you cannot remember, Mrs Misra –
“Question: – in an interview in 2008 how is it you remember your dealings with Michael and Junaid in 2005?
“Answer: It happen. It happen in my post office.
“Question: If it happened why didn’t you tell the Post Office this in interview?”
You were suggesting here, not directly, but by implication, through the use of the word “if”, followed up by the failure to mention something in interview, that what she was saying was false, weren’t you?
Warwick Tatford: Well, yes, that would follow from the not being mentioned there that I’m not sure I was that piece of more recent disclosure. But it may – if I’m wrong about that and I’ve made a mistake, I’ll let you go to where we need to go.
Mr Beer: If it’s the case, which appears to be the case that those records were not disclosed to the defence or disclosed to you, relating to the trainer Michael’s experience, when he was in branch, that led you to cross-examine Mrs Misra on a false basis, didn’t it?
Warwick Tatford: Yes, it was a bad point. My understanding was that the training records had been disclosed and that they couldn’t remember the details but I’m trying to remember where that was from. But it certainly appears clear and it’s unfortunate, if there’s a piece of disclosure I didn’t have that’s caused me to take a bad point then it’s an unfair point. It’s not Mrs Misra’s point it’s the fault of the prosecution as a whole.
Mr Beer: Can I turn, please, to the call logs and I’d like, if I may, to explore a different aspect of how the prosecution team went about giving disclosure of evidence to Mrs Misra and her legal representatives, and that’s disclosure of the logs of calls made by Mrs Misra to Helpdesks about problems that she was having with the Horizon system, including in relation to balancing and discrepancies.
We know that there were 135 calls that she made. Let’s start with the raw material, a record of a call. Can we start, please, with POL00061793. Can we turn to pages 25 and following, please. Look at the bottom half of the page, and keep going. Thank you.
We can see that this is a record of a call dated 23 February 2006. Thank you. The caller, left-hand side, is Mrs Misra, the postmaster, yes?
Warwick Tatford: Yes.
Mr Beer: If we go over the page, please, we can see new call taken by Joanne Rowland:
“[Postmaster] states that she has losses every week in two stock units.
“NBSC states they have gone through all checks with [postmaster].
“NBSC states that on the CC stock unit [postmaster] has rolled over with 1,500 loss, JSA stock unit PM has rolled over with a £200 loss. NBSC states that on Saturday, 18 February [postmaster] declared her cash and she had a £900 loss up until Saturday and then when the [postmaster] declared her overnight cash on Sat at 1.00 went back to £200 loss. NBSC also states that her AA stock unit has a £6,000 loss [postmaster] has rolled over this as well.”
Then reading four or five lines on:
“[Postmaster] states she has that 3 stock units which are showing losses. [Postmaster] has rolled over and [postmaster] states NBSC went through checks with her.”
Then a little bit further down about, a third of the way down that page there, KEL reference number, “No KEL found”, so no Known Error Log found.
Warwick Tatford: Yeah.
Mr Beer: “Please check [two lines on] why [postmaster] has losses in three of her stock units. [Postmaster] has rolled these over before. I could check her system. NBSC states they have gone through all her paperwork with her. Please see call for details.”
Then at the foot of the page, an intervention by Anne Chambers. Can you see that at the foot of the page? If you just scroll down, please. “Update by Anne Chambers”.
Can we just go to the summary of this call in Mr Dunks’ witness statement, please. POL00058457.
This is a witness statement of Mr Dunks of 29 January 2010. Just scroll down, please. He introduces himself and says he has a working knowledge of the computer system known as Horizon. He’s authorised by Fujitsu to undertake extractions of audit data held on the Horizon system.
Then page 2, please, the middle paragraph there beginning, “I have reviewed”:
“I have reviewed the [Horizon Helpdesk] calls pertaining to the West Byfleet branch [between] 30 June 2005 to 31 December 2009. There were 135 calls … to the HSH. This equates to [2 to 3] calls … which is average for this size Post Office. All the calls are of a routine nature and do not fall outside the working parameters of the system or would affect the working order of the counters.”
He then proceeds to summarise them –
Warwick Tatford: Yes.
Mr Beer: – the calls, if we scroll on, next page. Can you see? If we skip to page 8, if we can scroll down, please, to number 29 at the foot of the page there. That’s the summary of the call log that we have just read, and the summary is:
“Annetee NBSC – PM states that she has losses every week in two stock units.
“Call close by Dave Dawe: PM was getting discrepancies. SSC have investigated and advised that the NBSC take a second look at this as the office stock units appear to be in a mess.
“Outcome
“SSC advice that call be passed back to NBSC for further investigation.”
At trial, was this the extent of the information disclosed in the hearing as to the nature and extent of the calls that Mrs Misra had made.
Warwick Tatford: Do you mean the statement and the log that we looked at as well?
Mr Beer: Yes, was the log disclosed too?
Warwick Tatford: I think so. I can’t actually remember – I thought it had been –
Mr Beer: You agree that this summary of it doesn’t really do justice to what we read?
Warwick Tatford: No, it doesn’t deal with the amounts, and so forth. It’s not quite as much detail, I agree.
Mr Beer: Well, it’s an inadequate summary of it, isn’t it?
Warwick Tatford: Yes, but my recollection was the call logs were disclosed.
Mr Beer: What are you basing that recollection on?
Warwick Tatford: Well, it’s just what I remember. I mean, if I’m wrong about that, then I’m wrong, but I would expect them to be disclosed. Not simply a statement.
Mr Beer: Not simply a statement summarising?
Warwick Tatford: No. And if – but – I mean, obviously it can be checked easily enough. I don’t want to waste time if I’ve misremembered something. Looking at it now, if I was prosecuting a case now, I’d expect the call logs to be disclosed together with the witness statements. That’s what I’m assuming happened but I can’t actually remember it now. I thought that had happened but I can’t actively remember it.
Mr Beer: Can you recall whether at trial the contents of the call logs themselves, the underlying data, was brought in to evidence?
Warwick Tatford: I can’t specifically recall it. That’s what I thought had happened but, actually, a memory of it and seeing a document of it, I can’t remember at the moment. But I’m sure it can be checked. It’s either there or it isn’t, I would have thought.
Mr Beer: Well, we do have a document from Mr Dunks exhibiting something –
Warwick Tatford: Yes.
Mr Beer: – and we don’t know what the something consists of?
Warwick Tatford: Well, you see, he was cross-examined at some detail and I can’t see how he can be cross-examined without the log. That’s what made me think we had the logs. It is obvious that one should disclose the logs. If a statement summarises, one should disclose the logs that are being summarised. That’s obvious and that should happen. I thought it had happened. If it hadn’t, then that was wrong. It should have happened.
Mr Beer: Thank you. Lastly on the Misra case, your opening and closing speeches to the jury. Can we look, please, at UKGI00014994. We can see this is a transcript for the 11 October 2010 and, if we scroll down, we can see you’re listed as prosecution counsel.
If we go to page 30, please, and scroll down, please, we can see there where your opening speech commences.
Warwick Tatford: Yes.
Mr Beer: Can we go to page 49, please. At B you describe what the Horizon system is. You say:
“The system the Crown say is actually a fairly simple system to use. It has got nice coloured buttons, big buttons, and it has got clear instructions in English, but it has also been a system that has been used for a very long time now and it has in fact recently been replaced by an upgraded Horizon system but it was rolled out to post offices between 1999 and 2002 and has continued until … 2010.
“So at the time we are concerned with there would have been – a lot of post offices shut down of course recently – but in the time we are concerned with there would have been around 14,000 post office branches, and you can just imagine how many transactions the Horizon system has to go through when you think of that number of branches. The computer system will literary process millions of transactions every single day, and in peak times like around Christmas perhaps nearly 20 million transactions per day.
“So it has got to be a pretty robust system and you will hear some evidence from an expert in the field as to the quality of the system. Nobody is saying it is perfect and you will no doubt hear about a particular problem that was found, but the Crown say it is a robust system and that if there really a computer problem the defendant would have been aware of it. That is the whole point because when you use a computer system you realise there is something wrong if not from the screen itself but from the printouts you are getting when you are doing the stocktake.
“So that is one issue in the case, whether the Horizon system is any good or not. The Crown say it must be good otherwise the whole Post Office would collapse but you are nevertheless going to have to consider that very carefully and consider all the evidence that you are going to hear.”
Would you agree that what you’re saying there is a version of a prosecutor’s fallacy, namely the chances of Horizon getting fictitious shortfalls must be small because it works reliably in 14,000 offices, millions of times a day and, therefore, you can conclude Mrs Misra is guilty?
Warwick Tatford: I don’t think so, no. I’m saying that generally it works but I also say, in my – I think in both opening and closing speeches, all computers can have glitches and these things happen. But all I think I’m saying by that is not that it’s a probability exercise; I’m saying it’s generally a robust system. It’s not perfect and I made it clear that it was not perfect; it wasn’t infallible.
When the defence suggested the Crown were saying that, I made clear that wasn’t what we were saying. I don’t think – I certainly didn’t mean it as some sort of exercise in probability.
Mr Beer: Why were you mentioning all of the other post offices in –
Warwick Tatford: So –
Mr Beer: – which it worked and all of the other transactions –
Warwick Tatford: Well, because – to show that it was generally a robust system, which is what I understood it to be. If a system does work in a lot of offices, there must be a lot of good to the system. It’s not excluding the possibility there might be glitches. Glitches happen on computers. Every day in a courtroom, if something happens with a computer, it doesn’t mean the computer itself is bad. It means that glitches are relatively a part of – part and parcel of a system that, in general terms, is relatively good.
Mr Beer: From whom did you receive instructions that the integrity of the system was such that it could be described as robust?
Warwick Tatford: Well, the robust term was used regularly by the Post Office and I sought to justify it by argument, not to rely on it simply being a mantra. I was affected also by the evidence, as I understood it, from Mr Jenkins and also from the proposition, which I thought at the time was significant that I understood from my instructing solicitor, that Crown Offices, where there wasn’t a shop attached, didn’t seem to have the same sort of problems.
But I appreciate that I may have missed things, I may have been misinformed but that’s the information as I understood it to be.
Mr Beer: You say in your witness statement:
“I did not seek to hide behind the mantra that Horizon was robust.”
Warwick Tatford: No, I don’t seek to hide behind a mantra; I sought to justify the term. That’s what I mean.
Mr Beer: You’re justifying the term in terms of probabilities here, aren’t you?
Warwick Tatford: No – well – well, there’s a difference between saying “A system generally works” and “It’s very unlikely it’s failed in this case”. I’m not making the second point. I’m making the point that it works generally, which means generally it’s probably pretty good. But nothing is perfect and some glitches happen. I was very clear about that, in both opening and in closing. Very clear to tell the jury that, if they thought the loss might largely be explained as a result of computer error, they’d be very likely to acquit.
Mr Beer: Thank you. That can come down.
In relation to Mr Jenkins’ oral evidence at trial, I think it’s right that when you called him, you didn’t seek to establish that he understood his expert duties.
Warwick Tatford: Not in the witness box, no, but I thought it was obvious from everything I saw of him, and I give an example in my witness statement of how careful he was.
Mr Beer: Thank you very much, that’s all I ask on Mrs Misra’s case.
Can I turn to two other cases much more shortly. Firstly, Carl Page.
Firstly, a general question. Can you help us as to whether or not Mr Jenkins had any role in the prosecution of Carl Page, whether by provision of a witness statement or giving evidence at trial?
Warwick Tatford: He had no role. My understanding is that his first involvement as a witness – this is my understanding but it is – from my conversations with him, I think his first involvement as a witness in a trial was the Misra case.
I understand that Debbie Stapel – I knew her as Debbie Helszajn – that she suggested Gareth Jenkins gave evidence at the Dudley trial and that’s simply incorrect. It’s simply misremembering. I was at the trial for six weeks. I called a number of witnesses. I took notes of all the evidence – I wish I had the notes still, they’re long gone on an old computer – but I heard all the evidence. Gareth Jenkins was not a witness in that case.
And also, I’ve – there’s an email that’s – I don’t need to take you to it but you’ll remember the email when Gareth Jenkins says it was nice to put names to faces after the conference. If I’d met him before at Merry Hill, Dudley, then he wouldn’t have said that. So it seems clear to me that, from my memory but also the logic of the evidence, Gareth Jenkins wasn’t involved in the Page case at all.
Mr Beer: I think it’s right that you’ve seen, like us, no witness statement from him?
Warwick Tatford: Yes, and that’s the reason, and I checked because I looked at Debbie Stapel’s evidence yesterday and I checked it against the witness statements I have, and there’s an absence of any reference to computers working. The Inquiry will be aware that often the Post Office tried to rely on Section 69 of PACE, long after it had fallen away, but my recollection is that nobody sought to suggest the computer systems – anything about the computer systems in the Page case. It was really dealt with on the basis of the branch trading accounts.
Mr Beer: He’s not mentioned in yours and Mr John’s opening note, is he?
Warwick Tatford: No, he’s not mentioned by the experts. He’s not mentioned significantly in a list of witnesses, so I find it very hard to see how he could possibly have become involved.
And Debbie Helszajn – Debbie Stapel, I should say now – she was present for the first week of the trial, because it’s far away. From London you have to stay up there, it’s quite awkward to get to the Merry Hill site, and she, I think, would have seen some witnesses because I think she was there for the first week but she wasn’t for the remainder.
So when she said, “I remember seeing Gareth Jenkins give evidence”, it seems to me that she may be confused on that point.
Mr Beer: Thank you.
In view of the time, I’m not going to ask you about the other case, the Susan Rudkin case. Thank you very much.
Warwick Tatford: Thank you.
Mr Beer: Those are the only questions I ask Mr Tatford.
I think there are some questions from Core Participants. No from Howe+Co.
No, thank you, from Hudgells.
But yes, from HJA, so Mr Henry. Thank you.
Questioned by Mr Henry
Mr Henry: Mr Tatford, I represent several subpostmasters, one of course is Seema Misra who hits besides me.
Thank you for your apology and, without any desire to harrow your feelings, I would like to remind you of what happened to Mrs Misra as a result of her being prosecuted to conviction.
As you recall, on the 11 November 2010, she was sentenced to 15 months’ imprisonment for the offence of theft and six months’ imprisonment on each of the false accounting charges to run concurrently. She went to prison on her son Adi’s 10th birthday, at a time when she was ten weeks’ pregnant with her second son, Jai.
Immediately upon being sentenced, she collapsed in shock, complaining of severe abdominal pain and was taken straight to hospital for overnight observation, before being removed to HMP Bronzefield the following evening.
You may not be aware of this but she was pilloried in the local press before and after her imprisonment as a pregnant thief who got off lightly. She was released on tag after nearly four months inside. It was a hellish time. Her husband, Davinder, was racially abused and beaten up in the street. He suffered the vilest, racist abuse in the months that followed his wife’s trial and imprisonment and Mrs Misra, on her release from prison, was a pariah. No one would talk to her, offer friendship, support or consolation.
Because she was ostracised, the childminding business she’d started failed, as no one wanted to employ her.
As for her eldest son, Adi, she deliberately took him late to school, so that she wouldn’t be shunned by the other parents at the school gate, and she tried to conceal the shame of her imprisonment from him saying she’d been in hospital when she had not. Adi, who knows, may have become complicit in this pretence to protect his mother, but was not officially told the truth, whatever he may have gathered in the playground or elsewhere, that his mother had been jailed whilst carrying his brother Jai, until the results of the Bates litigation, some nine years later.
Turning to the family’s financial position, perhaps you were aware, I’m sure you were, that a considerable amount of family wealth had been used to make up for shortfalls before she was prosecuted.
Warwick Tatford: Yes, and that came out in the evidence.
Mr Henry: You were aware of that?
Warwick Tatford: (The witness nodded)
Mr Henry: Then, of course, compounded by her subsequent conviction and disgrace, that family wealth was obliterated. Her family lost almost everything and, despite the Bates litigation, Mrs Misra was, as a convict person, excluded from being a claimant and was only given a meagre ex gratia payment by those who settled the case. Perhaps you weren’t aware of that?
Warwick Tatford: I wasn’t aware of that, no.
Mr Henry: No. Even now, her family’s financial state remains insecure and they live a precarious existence.
So thank you for your apology but, having listened to what I’ve just precised from the Human Impact hearing, which was heard on 25 February 2022, is there anything further you would wish to say to her about how you, as independent counsel, were misled and how you, despite, as you say, trying your best, came to preside as independent prosecution counsel over what you have accepted yourself was a disaster?
Warwick Tatford: Yes. Well, I’ve thought about Mrs Misra’s case for a very long time and I found it difficult at the time, I found it a stressful case to prosecute, and have thought about it on many occasions afterwards, and I’ve followed the publicity. And it’s taken me a very long time, in fact, to come to the view that I expressed at the beginning of my evidence.
I’ve actually found – I’ve actually found the exercise – and it’s been quite a demanding exercise to do a witness statement and go through matters – I have found that’s clarified my mind as to what happened and, when I said I felt ashamed, I do. I actually feel worse because it’s become quite clear in the way that the evidence has properly been put before me that there are many failings that I had ignored on my part and I perhaps created a rosier vision in my memory that wasn’t really there.
I apologise unreservedly for what happened. I hope it can be remedied in some way. I hope that – I don’t know what happens with compensation in the future. That’s obviously something outside of my control but this Inquiry process has been highly informative, and it’s some good, I hope, will come from it.
I have changed my view. It’s taken me a long time. I suspect I was in denial for a long time, perhaps in a self-justificatory way, and I apologise for that.
Mr Henry: Mr Tatford, thank you very much. I do not doubt your feelings as expressed. Do you now consider, particularly in the light of Counsel to the Inquiry’s questions to you and the way in which matters, even today, have been revealed to you, do you now consider that you were misled by the Post Office as to the reliability and robustness of the Horizon system before and during Mrs Misra’s trial?
Warwick Tatford: I think I was misled. I find it difficult to understand where the original source is and that’s something the Inquiry will no doubt show. But the – to give an example, I hope this helps, because I haven’t been asked about the –
Mandy Talbot, for instance, was asked about some documents that she – in her evidence, about a draft report in relation to the Castleton case, and also some – a report from Mr Coyne and an Advice from counsel in a case from Blackpool – Wolstenholme, I think, is the name of the case. I wasn’t shown that material.
Now, I haven’t – I did go to some trouble to try to discover material, and I remain very surprised that those two items were not given to me, particularly as I attended the civil office on two separate days with a period of time in between.
But I am conscious of a way of thinking which is betrayed in that robust – the robust mantra that is used, and so it’s difficult for me to – I remain in a certain sense of confusion. I’m not trying to be difficult. It seems to me that, if it is right, and I don’t know the full facts in terms of the disclosure from the appeal and other matters about Horizon – it appears that there clearly were matters that should have been brought to my attention from the very beginning, should have been brought to my attention, potentially the Criminal Law Department.
Quite where the failure to provide evidence – information has come from is unclear to me. But I was not given a full position of the problems with Horizon, that’s absolutely clear, which involves being misled in some way. By whom, it’s difficult for me to say and I have to be careful about this because I simply don’t know.
But what is clear, and I discover more about it and I’ll be learning more as the Inquiry progresses, but there are problems that should have been relatively straightforward to put before those who prosecute the cases and who decide whether to charge people. And that didn’t happen and quite why that happened is – I remain unclear about that.
Mr Henry: So you mentioned there that you visited the civil offices and important documents concerning, for example, the Cleveleys case were not shown to you?
Warwick Tatford: No, and I should be careful. Certainly, the Cleveleys documents. I looked at Castleton files – it’s so long ago I can’t remember now what exactly I saw, but I would be very surprised if I had missed a draft report that suggested a Horizon error because that’s precisely what I was looking for, and I didn’t see all the boxes.
Mr Henry: So if I were to put names to you, you would not wish to – because of the uncertainty that still exists in your own mind, you would not wish to, for example, point the finger at any individual. Is that –
Warwick Tatford: Well, I think – no, that is right. I don’t know. The –
Mr Henry: From what you have seen today, however, particularly given Counsel to the Inquiry’s questions, a certain sort of mindset, do you now accept that there appeared to be, within the Legal department and those connected to the Legal department at the Post Office, a certain siege mentality, that Horizon was under attack, it was being assailed by, for example, Mrs Misra and others, and that, if the walls were breached, then chaos, confusion and widespread theft by subpostmasters would follow?
Warwick Tatford: Well, there was certainly a fear about – well, as was shown in the email that was shown to be from my instructing solicitor, which I don’t think I was aware of – the suggestion to Mr Jenkins what he should do. I have to confess, I seem to have been guilty of similar suggestions. But there was a very clear mindset there, I think the word “risible” was suggested in terms of how to instruct an expert and that is indicative of my mindset, I’d have to accept that.
And the – I wouldn’t – the feeling of – that the Horizon system worked, it seemed to me that was a feeling genuinely widely held but it may follow from that that there’s a fear that an attack to a system that’s thought well of needs to be confronted, and so that, in a way, that’s a siege mentality; in a way, that is a way to describe it, I suppose.
Mr Henry: So there could be the benign siege mentality based on overconfidence in the system or there could have been – and I don’t suggest that you would have been a part of this – a malign siege mentality, being aware of the deficiencies and defects but deliberately seeking to suppress them?
Warwick Tatford: There – certainly in terms of – the email I talked about, Jarnail Singh to Gareth Jenkins, that’s a good example of potentially a benign siege mentality, I’d agree with that. Quite to what extent there was a deliberate attempt by any person to withhold information, that remains to me – a little unclear to me.
I simply don’t know enough about what has been disclosed in the appeal process. For instance, I’ve never seen – I’ve seen – I simply have seen the judgment in Hamilton and others. I haven’t seen any disclosure. I was asked a question about a piece of disclosure, for instance, which I haven’t seen since, which I refer to in my witness statement. I’m not sure I quite have enough information. I’m not trying to be unhelpful.
Mr Henry: No, I accept that.
Warwick Tatford: But I am very conscious that one – I can only really deal with what I have knowledge of.
Mr Henry: Well, can I move on now to Fujitsu. Do you now consider you were misled by Fujitsu as to the reliability and robustness of Horizon, at the time of Mrs Misra’s trial?
Warwick Tatford: Again, I don’t know the full extent of faults, although I remember – as I said earlier, I watched Debbie Stapel’s evidence yesterday and what she said about that dynamite document.
I remain very troubled about what I said in my advice, that Fujitsu needed to be asked and I appreciate it may have been more complicated than that, the watering down effect, I acknowledge. But I did ask the question and it doesn’t ever seem to have been answered.
Mr Henry: But concerning – and I suppose arising from what you’ve just said – the vital issue of disclosure, you unequivocally accept that, because of a flawed approach to disclosure, Mrs Misra did not receive a fair trial?
Warwick Tatford: Oh, yes, and that’s – it’s more important that’s what the Court of Appeal have decided, and what was conceded significantly by the most experienced criminal team for the respondents that one can imagine.
Mr Henry: As was elicited and elucidated by Counsel to the Inquiry, the manner in which she was cross-examined and the premise upon which the case was open and closed was regrettably specious and spurious was it not?
Warwick Tatford: Well, at the time I felt it was fair. That was based on the evidence. Now, I feel uncomfortable reading what I say about a robust system, and so forth.
Mr Henry: More than uncomfortable, surely?
Warwick Tatford: Oh yes, well, I don’t have the full information, but I feel – I do feel very uncomfortable reading that, yes.
Mr Henry: Now, you have, in answer to questions posed by Counsel to the Inquiry and just recently, in your – one of your recent responses to me, you acknowledge the possibility, don’t you, that you got caught up in the battle over Horizon’s reliability, for example, in the way in which you were interacting with Mr Jenkins?
Warwick Tatford: Well, I certainly – that may be right. I got caught up in what was a very stressful disclosure exercise and, in a way, that’s being caught up in the battle. It wasn’t on my part, I hope, any idea to want to preserve Horizon because, of course, I’m a self-employed barrister. I’m not –
But I was certainly caught up in the pressures of the situation and, looking at it now, I did some things that nowadays I wouldn’t do. I’m more experienced now than I was then but I was pretty experienced at the time.
Mr Henry: I mean, essentially, you became embroiled in the battle, and I’m not suggesting that you had any stake in the battle, because you were independent counsel, but you became embroiled in it, didn’t you?
Warwick Tatford: I think it did affect me, yes.
Mr Henry: I mean, I suggest to you that, at times, you failed to exercise detachment and objectivity concerning your own witness, who was to become an expert witness, at that. Do you accept that?
Warwick Tatford: No, I think that is right, yes.
Mr Henry: So I don’t take you to the statement of 6 October 2010 that you commented upon but you will accept, don’t you, that many of the changes that you were suggesting were not out of clarification or elucidation but they were designed to insulate the prosecution case from attack, weren’t they?
Warwick Tatford: They were designed to meet points raised by the defence expert, which –
Mr Henry: Which would be to insulate –
Warwick Tatford: Well, in a way, yes, that would be right. I saw it, at the time, as clarifying issues. That may – I can look at that now and think that’s perhaps wishful thinking on my part.
Mr Henry: Well, I now want to come to the issue of robustness. If your witness statement, Mr Tatford, WITN09610100, could be put up on screen, I want to concentrate on part of paragraph 98, which is to be found at page 53 of your witness statement, Mr Tatford.
Warwick Tatford: Thank you.
Mr Henry: Thank you. You can see, in that paragraph:
“… I hope my speeches were fair – they are all set out in the transcripts, so others can judge. I did not seek to hide behind the mantra that Horizon was ‘robust’. I argued that point on the evidence. I did not suggest that the system was infallible and I conceded that all computer systems can have glitches, which is a matter of common sense and human experience …”
May I ask you this, Mr Tatford: do you not think that the prosecutorial decision not to obtain the services of an independent forensic IT expert for the prosecution ought to have caused you to be highly cautious and circumspect, in respect of all of your submissions, whether to the court or the jury, on the central issue of Horizon’s reliability?
Warwick Tatford: Well, it certainly had an impact that – the way we dealt with expert evidence in the case and, I mean, if it is the case that there are manifold weaknesses and problems with Horizon that I wasn’t aware of, then my words are very hollow indeed.
Mr Henry: Can I take you to a transcript from your closing speech, and this is POL00065708 at pages 23 to 24. Thank you. Pages 23 to 24. Just scrolling down please, just scrolling down. Yes.
At letter G there, Mr Tatford:
“I conceded in my opening speech to you that no computer system is infallible. There are computer glitches with any system. Of course there are. But Horizon is clearly a robust system, used at the time we are concerned with in 14,000 post offices. Mr Bayfield talked about 14 million transactions a day. It has got to work, has it not, otherwise the Post Office would fall apart? So there may be glitches. There may be serious glitches. That is perfectly possible as a theoretical possibility, but as a whole the system works and has been shown in practice.”
Now, Mr Tatford, very briefly, because this has already been addressed by learned Counsel to the Inquiry, if it hasn’t happened on 14 million occasions, then it cannot have happened on the 14 millionth and 1st. That is a version of the prosecutor’s fallacy, isn’t it?
Warwick Tatford: Well, I wasn’t trying to seek to make that argument.
Mr Henry: Do you think, though, that it could easily have been misconstrued? The chances, for example, of Horizon generating fictitious shortfalls are very small because, as you’ve told the jury, it works reliably in 14,000 offices with 14 million daily transactions and, from there, it is not difficult for a jury to understand your submission that, therefore, Mrs Misra must be guilty?
Warwick Tatford: No, there is a danger of that and I’m actually looking at my words, as well. I’m very uncomfortable, actually, at the words “theoretical possibility”. I think that’s a word that I shouldn’t have used. What I tried to do, in my speech, was actually to say that glitches are possible, and if – but –
Mr Henry: But then you would have offered no evidence.
Warwick Tatford: Well, if I’d known that – which may be the case – it’s a matter, I think, for the Inquiry to determine and they’re matters that I don’t know – but I rely to a great extent on decisions that Mrs Misra made, things that were said later, changes of the defence, and so forth. I accept all of that doesn’t amount to a hill of beans if the prosecution case is based on foundations of sand.
And if the reality is, as Debbie Stapel said yesterday – I’ve said that she may be mistaken about something she remembers, I actually think of her very highly, and was a very able lawyer, and she was the person, for instance, that explained the case of Carl Page to me. But her reaction I found very powerful yesterday and it’s part of my continuing reflection on this.
When she said that document was dynamite, well, I rather agreed with that and it caused me considerable concern. I didn’t – I still don’t have the full context of that. I hope to find out as the Inquiry goes along.
Mr Henry: I’m not suggesting you would be up to speed on this, but it’s the Horizon IT Issues judgment and, in contradistinction to your submission, which was a submission which was made to the learned judge in that case, Mr Justice Fraser, as was, he deprecated that approach and he stated that the proper approach – or to use his exact words:
“The correct analytical approach is to consider the branch activity for that branch for that period, consider the evidence both for and against (i) the existence of a bug and (ii) the likely cause of the discrepancy, bearing in mind both the burden and standard of proof, make findings on the cause of the discrepancy and then apply those findings.”
So based on that, Mr Tatford, and bearing in mind, of course, the burden and standard of proof in a criminal trial, the correct question for the jury was whether they could be sure that Horizon generated the shortfall at West Byfleet as a genuine loss of cash from the tills over the indictment period or whether it was an artifact. So it has to be analysed that the jury have to be sure, on your case, that the Horizon-generated shortfall reflected a genuine loss of cash from the tills. You accept that?
Warwick Tatford: Yes.
Mr Henry: If, based on all the evidence about the existence of bugs, errors and defects, the shortfalls were likely, or may have been, the result of bugs, errors and defects, then the right verdict would have been not guilty, would it not?
Warwick Tatford: Yes.
Mr Henry: Can I now move on to my final subject, which is flaws obvious to the user. During your opening and closing statements, as well as during cross-examination of witnesses, you asserted repeatedly that errors would be obvious to the user. That isn’t controversial, is it? You remember saying that?
Warwick Tatford: Well, what I meant by that – I hope I’ve tried to make clear – is that the user is able, by the Horizon printouts, to see where problems arise. I wasn’t seeking to show that one can simply see the errors emerge in front of one just by looking at the screen. I didn’t seek to make that point. If that’s how it’s understood, then that would be wrong and, if I haven’t made that clear enough, then I was wrong.
Mr Henry: Could it have been that the theme that such flaws would have been obvious to the user was a strategy to convince the judge, on the application, and the jury for the verdict, that Mrs Misra should have been keenly aware of any Horizon problems, that she should have been able to discern and diagnose bugs, errors and defects?
Warwick Tatford: I wasn’t trying to make that point. If it came across that way, then I haven’t made it clear enough. All I was trying to make the point was that, by the various printouts, it’s possible to determine where a loss is arising. That’s the point I was trying to make. From your repeated questioning, it seems to me I obviously didn’t make that clearly enough and clarity is important in prosecuting.
Mr Henry: Well, I’m grateful for your concession. Do you also think that framing the issue in that way was to reverse the burden of proof because, of course, in law, it was the Post Office’s duty, prosecuting the case in the name of the Crown, to prove that the system was working, to satisfy the jury that they were sure that the system was working. It was not for Mrs Misra to identify when it may not have been?
Warwick Tatford: But I wasn’t trying to take it quite as far as that. I was suggesting that Mrs Misra might be in a position to say where problems might be arising. I can see the danger in that, though. I can see, by pushing it just a bit too far, the danger you have alerted me to can arise and, if I took it too far, then that’s a mistake. I tried not to do that but I can see the danger potentially there.
Mr Henry: Do you recall – and no need to put it up on screen if you do recall it, but it’s POL00054346 – this was your response to Mr Hadrill’s abuse of process.
Warwick Tatford: Yes.
Mr Henry: “If, as the defence allege, there was a continuing problem [this is your paragraph 2] with the Horizon system at West Byfleet, Mrs Misra should have been keenly aware of it at the time it was occurring.”
Warwick Tatford: By that, I meant by losses occurring.
Mr Henry: I see.
Warwick Tatford: All I was seeking to make the point, in that argument, was simply to suggest it might be a basis for a more – for what I saw as more focused disclosure requests.
Mr Henry: I see. I now want to go, in conclusion, to an example or an extract, I should say, from your closing speech, which is POL00065708. While that is being put up on the screen, it occurs to me that, of course, in view of your last answer, that it would have been vitally important that the summary of calls to the Helpdesk were very, very accurately precised, if they were going to be precised at all, because, otherwise, again, the trial would proceed on a false premise. You accept that?
Warwick Tatford: Yes.
Mr Henry: So could we please go to the top of page 26.
The top of page 26:
“… but the point the Crown make is if something is going wrong, the operator knows it, that is the point, and Mrs Misra has given you no evidence whatsoever of being aware of a computer problem.”
That would tend to have been contradicted by the full logs to the Helpdesk, wouldn’t it?
Warwick Tatford: Yes. Would you mind, could we just scroll up to the bottom of the previous page –
Mr Henry: Of course. By all means. Bottom of page 25.
Warwick Tatford: Yes, if we can scroll down to the next page, please. I’m sorry.
Yes, I’ve got the context. I’m sorry, could you repeat the question? It’s my fault. I’m sorry.
Mr Henry: Of course. The theme was the same:
“… if something is going wrong the operator knows it, that is the point, and Mrs Misra has given you no evidence whatsoever of being aware of a computer problem.”
That would tend to be contradicted, wouldn’t it, by the more full account of the calls to the Helpdesk?
Warwick Tatford: Yes, I think those calls, though – the losses they relate to may, I think, refer to the time of the thefts from employees, rather than the later computer problem. It’s quite early in the time period.
Mr Henry: I see. But returning to it in general, and this is my final point, again –
Sir Wyn Williams: That’s the third final point, Mr Henry, so I’m going to hold you to it now.
Mr Henry: I’m very sorry, sir. I do apologise. This is my final point and it’s one sentence.
Based upon what you have submitted to the jury there, Mr Tatford, and I’m grateful for your assistance thus far:
“… if something is going wrong the operator knows it, that is the point, and Mrs Misra has given you no evidence whatsoever of being aware of a computer problem.”
You, of course, are now aware that there are a number of bugs, errors and defects that were not disseminated to the network of subpostmasters and were withheld – the knowledge of them was withheld; you’re aware of that?
Warwick Tatford: Yes.
Mr Henry: But do you again, on reflection, feel that you framed the issue in a way that it inevitably reversed the burden of proof?
Warwick Tatford: Well, I think that the wording I use in that passage is too strong. I agree with that.
Mr Henry: Mr Tatford, those are the questions I ask. Thank you.
Sir Wyn Williams: Is that it, Mr Beer?
Mr Beer: Yes, it is, sir.
Sir Wyn Williams: Well, I know that Mrs Misra is present and the day has been about her case, virtually exclusively, but certainly very largely. So I hope, Mrs Misra, that you’ve found today informative.
So far as you, Mr Tatford, are concerned, I’m very grateful to you for a detailed witness statement and for answering a great many questions today.
So we’ll now close today’s session and resume again at 10.00 tomorrow morning.
Mr Beer: That’s right, sir.
Sir Wyn Williams: Thank you.
Mr Beer: Thank you.
(4.33 pm)
Mr Beer: (The case adjourned until 10.00 am
the following day)