22 November 2023 – Gerald Harbinson
Hide video Show video
(10.00 am)
Ms Price: Good morning, sir. Can you see and hear us?
Sir Wyn Williams: Yes, thank you very much.
Ms Price: May we please call Mr Harbinson.
Gerald Harbinson
GERALD OWEN HARBINSON (sworn).
Questioned by Ms Price
Ms Price: Can you confirm your full name, please, Mr Harbinson?
Gerald Harbinson: Gerald Owen Harbinson.
Ms Price: You should have, in a bundle in front of you, a hard copy of a witness statement in your name, dated 17 October this year. Could you turn, please, to page 67 of that statement. Do you have a copy with a visible signature?
Gerald Harbinson: I do.
Ms Price: Is that your signature?
Gerald Harbinson: It is.
Ms Price: I understand there is a correction you wish to make to paragraph 70 of this statement; is that right?
Gerald Harbinson: That’s correct.
Ms Price: Would you like to tell us what that is?
Gerald Harbinson: There are two names there, Brian Sharkey and Ray Platt. That should read Ray Pratt, not Ray Platt.
Ms Price: With that correction made, are the contents of the statement true to the best of your knowledge and belief?
Gerald Harbinson: They are.
Ms Price: For the purposes of the transcript, the reference for the statement is WITN08150100. Thank you for coming to the Inquiry to assist it in its work and for providing the witness statement that you have. As you know, I will be asking questions on behalf of the Inquiry.
You worked for the Post Office for 12 years from 1998 to April 2010, when you moved to Royal Mail; is that right?
Gerald Harbinson: That’s correct.
Ms Price: Your first role was as a TV Enquiry Officer. Can you explain please what this role involved?
Gerald Harbinson: That was going out on site to visit properties that you were sent lists to, to visit to check on the – whether or not they were operating a TV with or without a Licence.
Ms Price: In the year 2000, you were internally recruited into the Post Office Security Team as an Investigation Manager; is that right?
Gerald Harbinson: Yes, that’s correct.
Ms Price: You held this role until early 2005, when you became a Compliance Manager –
Gerald Harbinson: That’s right.
Ms Price: – before becoming a Financial Investigator later in the same year?
Gerald Harbinson: That’s correct.
Ms Price: Did you remain in a financial investigation role until you left the Post Office in 2010?
Gerald Harbinson: Yes, I did.
Ms Price: You have provided some clarification in your statement at paragraph 6 to the effect that the word “Manager” in the job title of Investigation Manager did not, in fact, mean that you held a managing position; is that right?
Gerald Harbinson: That’s correct.
Ms Price: So you were an Investigator conducting investigations, rather than a manager of those conducting investigations?
Gerald Harbinson: That’s correct.
Ms Price: You say in your statement at paragraph 7 that there was a big intake into the Security team at around the time you were internally recruited in the year 2000, with about 15 to 20 people being recruited at that point?
Gerald Harbinson: That’s correct.
Ms Price: Were these people recruited internally, as you were?
Gerald Harbinson: I genuinely don’t know the answer to that but I believe they were.
Ms Price: Do you know why there was a recruitment drive at this point in time?
Gerald Harbinson: I wasn’t aware of the reason. I know it covered both Post Office and Royal Mail.
Ms Price: Did you have any experience in criminal investigations or criminal law when you became an Investigator for the Post Office?
Gerald Harbinson: No.
Ms Price: You recall having training early on, which took place over the course of a few weeks, and you described this course at paragraph 61 of your statement. Could we have that on screen, please. It’s page 24 of Mr Harbinson’s statement WITN08150100 – thank you. Page 24, a little further down at 61, please. You say here:
“When I first joined the Security team as an Investigation Manager, very early on I was required to attend a formal training course at a college in Milton Keynes, which was led by 2 or 3 senior members of the Security team. I recall that Mick Matthews was one of the trainers and I remember he was very thorough in his teaching. Whilst I cannot remember all the modules we were required to learn, I believe that they did cover the following – the duties of investigators to conduct full and thorough investigations, taking witness statements in the course of an investigation, conducting interviews under caution, obtaining evidence in the course of an investigation, seeking evidence from third parties who might hold relevant evidence and drafting investigation reports and the legislation relevant to our role. In order to continue in the role of an Investigation Manager you had to pass an exam at the end of the course. I cannot remember the specific details of that exam, but I do recall passing it.”
Is it right that this training was provided internally by Post Office Security team members, rather than being provided by external trainers?
Gerald Harbinson: That is correct.
Ms Price: Did your initial training cover disclosure, as far as you can remember?
Gerald Harbinson: I can’t remember that initial training, on that subject.
Ms Price: You say at paragraph 10 of your statement that you also received training in the form of shadowing. How did that work?
Gerald Harbinson: When you first joined the team, you would not be allowed to lead an investigation; you would always be a second or third body to the investigation. You’d be shadowing and listening and watching and, back in the office, you would be taking instructions and listening to what the other investigators said about the roles that they were performing.
Ms Price: Could you explain, please, the structure of your team when you first started as an Investigator, and how cases were allocated within the team? Do refer to your statement if you need to.
Gerald Harbinson: When you say the structure of the team, do you mean the Investigation Team or the team that I was in?
Ms Price: The team that you were in, so you cover this at paragraph 11 of your statement. You say here you had team leaders.
Gerald Harbinson: Oh, right. Okay. I was in a team, I had a team leader, the team leader at that time, I think, was Tony Utting, and there would be – the team consisted of about half a dozen Investigators. That was the team I was in.
The Investigation Team, as a whole, would be team leaders around the country with the Investigators, and then there was the – back to the investigation senior people, who run the investigation side of things.
Ms Price: You say that when you started in the role you carried out investigations in relation to potential pension allowance fraud to help identify whether such fraud was committed internally at the Post Office or externally.
Gerald Harbinson: That is correct.
Ms Price: You say at paragraph 12 you also investigated cases where there was a discovery of a cash shortfall at a Post Office branch following an audit?
Gerald Harbinson: That’s correct.
Ms Price: Where there was a discovery of an apparent cash shortfall at a Post Office branch, how did the Investigation Team become involved?
Gerald Harbinson: The – that would come through from the Casework Management Team or the Audit Team and they would be told the branch that had the shortfall and then the team leader will allocate the people that will go out to do the investigation.
Ms Price: You address the process followed, once an investigation commenced in an apparent shortfall case, at paragraph 13 of your statement. If we could have that on screen, please. It’s page 5 of Mr Harbinson’s statement. You say this:
“When carrying out an investigation I would collate the necessary records and documents (such as reports that the Auditor had printed from the Horizon System on the day), take witness statements from relevant persons and conduct interviews under caution with the relevant persons (for example, the SPM).”
Taking this in stages, is it right that the Horizon data you were considering at this stage was that contained in the printout from the Horizon system, obtained from the counter in the branch?
Gerald Harbinson: That is correct.
Ms Price: So you were simply looking at the record of what the Horizon system said should be held in a branch against the record of what the auditors actually found to be held in the branch?
Gerald Harbinson: That would be part of the records that would come off. The Audit Team could print off quite a few days or weeks of information from the system at that time so there’d be quite a roll of information. I’m not sure exactly how far – I can’t remember how far they could go back but it would be quite an extensive roll of information that was printed off.
Ms Price: But it was – they were reports which were printed off from the counter in the branch?
Gerald Harbinson: That’s correct.
Ms Price: Where an audit identified a discrepancy between the Horizon system reports and what was actually held at branch, how soon would you interview the subpostmaster or relevant member of staff?
Gerald Harbinson: That would depend. That could happen almost immediately, it could be days later, depending on the circumstances of the information and who – where the subpostmaster was or who else was in the office. It could be over a period of time but is often fairly early in the investigation.
Ms Price: You go on at paragraph 14 of your statement to say:
“Following this [you] would write up a report of findings and open a case file.”
The report you refer to here, is that the report which would go to the Criminal Law Team, the legal report produced by Investigators?
Gerald Harbinson: That report would eventually arrive at – with the Criminal Law Team, yes.
Ms Price: But the report of findings which you refer to here, that’s referring to the legal report, is it?
Gerald Harbinson: It is, yes.
Ms Price: Did you ever conduct further enquiries or seek further evidence after conducting interviews but before writing that report for the Criminal Law Team?
Gerald Harbinson: I genuinely can’t remember myself but it’s something you would do, is – if you didn’t have all the information that you were going to submit in your report at that time, you might do further interviews with other people or subsequent interviews with the same person. That would depend on a case-by-case, but I can’t recall.
Ms Price: Is it right that you would send the case file, once fully prepared, to your team leader?
Gerald Harbinson: It would normally go through the team leader, yes.
Ms Price: Was it any part of your team leader’s role, on receipt of the file, to review the evidence to determine whether further action should be taken in that case?
Gerald Harbinson: I can’t remember that part of it. I think they would give you advice prior to writing your report as part of the team. It’s such a long time ago, I’m struggling to remember that. I would only be guessing now. I can’t remember.
Ms Price: You say in your statement at paragraph 14 that your team leader would send the file to the Casework Management Team to check it from a procedural standpoint. What do you mean by “procedural standpoint” here?
Gerald Harbinson: I think I’m talking about almost like the compliance, to make sure all the documents were there that were, you know – if they were listed as items in the file, that they were actually in the file. Things – everything was complete, it was going to the right place. It was like a check on it, really, I believe. I’d never worked in casework management so I’m not completely sure.
Ms Price: You also say in your statement at paragraph 14 that the report was then sent to the head of the Security team; is that right?
Gerald Harbinson: I believe that’s where it went, yes.
Ms Price: You refer to Phil Gerrish, Tony Utting, and John Scott having held the role of Head of Security at various points. Do you recall Tony Marsh at all?
Gerald Harbinson: I know of Tony Marsh. I think he was always the senior person in both Royal Mail and Post Office at the same time. He was very senior. I don’t recall him being in charge of the Investigation Team.
Ms Price: Do you recall him holding the role of Head of Security prior to John Scott?
Gerald Harbinson: I thought the Head of Security prior to John Scott was Phil Gerrish, and Tony Marsh was senior to Phil Gerrish, so there was Post Office and Royal Mail. Phil Gerrish, Head of Post Office, and I thought Tony Marsh was head of both groups, Royal Mail and Post Office. But my memory is poor in that area, sorry.
Ms Price: Do you recall that there was a role entitled National Internal Crime and Investigations Manager when you were an Investigator?
Gerald Harbinson: I don’t remember that title, I’m sorry.
Ms Price: Do you think that might have been the role which Mr Gerrish and Mr Utting held, rather than the overarching Head of Security role?
Gerald Harbinson: I’d be guessing now. I can’t remember.
Ms Price: Could we have paragraph 15 of Mr Harbinson’s statement on screen, please. It’s page 5. You say here:
“Once the case file was with the Head of Security team, it is my understanding they would then liaise with the Case Management to get it passed on to the Criminal Law Team in the POL. I do not know if there were any specific factors considered to determine whether to pass it on or not, or whether all case files were passed on in any event. Other than on an evidential basis (which I deal with in paragraphs 18 and 19 below), I do not believe that I had any involvement with liaising directly with any other POL department during my role as an Investigation Manager. I believe that any other necessary cross-department liaison was dealt with by colleagues in a more senior position to me or with Casework Management.”
As far as you can recall, did the Head of Security review the evidence in a case before the case was transferred to the Criminal Law Team to determine whether further action should be taken in the case?
Gerald Harbinson: I don’t know. I don’t know what the Head of Security did with the documents or what evaluation he made of them.
Ms Price: In terms of the decision on whether someone should be prosecuted, you say at paragraph 16 of your statement that you believe it was always the decision of the Criminal Law Team whether to pursue a criminal prosecution or not and you do not recall that decision ever being made by anyone in the Security team. Do you recall the title of Designated Prosecution Authority from the time you were an Investigator?
Gerald Harbinson: I don’t recall that position. No, I don’t remember it clearly.
Ms Price: Could we turn, please – scroll down, please – to paragraph 18 of your statement. You say here:
“In the event that an incident I had investigated was being prosecuted, I would continue to assist the Criminal Law Team on an evidential basis. For example, if the Criminal Law Team required additional evidence, the Criminal Law Team or my team leader would inform me and I’d carry out additional work to obtain such evidence (for example, taking an additional witness statement). Due to the passage of time, I am unable recall any specific examples of this occurring.”
After a decision had been made to prosecute, would it be fair to say that any further enquiries or evidence gathering would be reactive and done when required by the Criminal Law Team?
Gerald Harbinson: I’m sorry, I didn’t understand that.
Ms Price: So after a decision has been made to prosecute –
Gerald Harbinson: Yes.
Ms Price: – so you’ve done your legal report, it’s gone to the Criminal Law Team and a decision has been made to prosecute the individual – with reference to this paragraph that we’ve just looked at, were your further enquiries or evidence gathering done when required by the Criminal Law Team, rather than because you decide you should do further enquiries or evidence gathering?
Gerald Harbinson: It would be on instruction, if I’d been required to do something. That would come, I believe, from the Criminal Law Team.
Ms Price: Were you ever involved in investigating a case which went to trial in the Crown Court or in any other case in which external solicitors or counsel were instructed to prosecute.
Gerald Harbinson: Do you mean at the court, attending the court?
Ms Price: Any case where your investigation led to criminal proceedings in which external solicitors and counsel were involved?
Gerald Harbinson: I think the solicitors always came from our Criminal Law Team. In the court itself, the barristers were from other chambers, I think it’s called, but everything came from our own Criminal Law Team, I believe.
Ms Price: So you don’t recall receiving requests, even if those came via the Criminal Law Team, to conduct further investigations, requests coming from prosecuting counsel or an external prosecuting agent?
Gerald Harbinson: I can’t recall, no.
Ms Price: Were you ever asked to obtain further information as a result of a disclosure request or an assertion contained within a defendant’s defence case statement?
Gerald Harbinson: I can’t recall.
Ms Price: You say at paragraph 19 of your statement that you had to assist the Criminal Law Team with meeting any disclosure obligations, which you say involved compiling a list of all used and unused evidence in the investigation and collaborating those documents into a bundle. Would that bundle then be provided to the Criminal Law Team?
Gerald Harbinson: It would, yes.
Ms Price: Did you understand, when you were an Investigator assisting the Criminal Law Team with disclosure, that you were acting as the Disclosure Officer in the case?
Gerald Harbinson: Yes.
Ms Price: At the time, did you understand that this was a distinct role, over and above your role as an Investigator, which imposed on you additional and distinct duties?
Gerald Harbinson: It was invariably the role of the Investigator that did the – produced the disclosure list and – as part of the committal bundle. But the – I knew about disclosure, that everything you obtained had to be disclosed as used or unused, but I was aware that we had to produce those lists and those documents, and supply them to the Criminal Law Team.
Ms Price: Who would you have gone to if you were in any doubt about whether there was an obligation to disclose material?
Gerald Harbinson: Back then, I think the first port of call would have been to my team leader but certainly I would’ve seen it progressed from there but, initially, certainly the team leader.
Ms Price: Do you recall being aware that, when you were acting as a Disclosure Officer, you had obligations under the Criminal Procedure and Investigations Act?
Gerald Harbinson: I believe I did.
Ms Price: Do you recall being aware, when you were acting as a Disclosure Officer, that you had obligations under the Criminal Procedure and Investigations Act Code of Practice?
Gerald Harbinson: Such a long time ago – I believe that that was the role, yes.
Ms Price: The same question in relation to the Attorney General’s Guidelines on disclosure?
Gerald Harbinson: I don’t remember that particular line that you’ve spoken there. It’s not something that comes back to me – to mind.
Ms Price: Were key pieces of legislation which governed the conduct of investigations and disclosure provided to investigators, as far as you can recall?
Gerald Harbinson: I genuinely can’t remember.
Ms Price: Can you recall ever accessing such legislation when you were an Investigator?
Gerald Harbinson: It would be easy for me to say yes but I can’t remember.
Ms Price: What about key policy documents governing the conduct of investigations and disclosure; were these provided to Investigators, as far as you can recall?
Gerald Harbinson: I don’t recall.
Ms Price: Could we have on screen, please, document reference POL00064235. This is a Disclosure Officer’s report. Is this one of the forms you recall completing when you were an Investigator? You can scroll down a little, please, so we can see the full page. Don’t worry about the specific details on the form at the moment.
Gerald Harbinson: No. It looks familiar, yes.
Ms Price: Scrolling back up, please, we can see, beneath the case name:
“The following items are listed on the schedule(s) for this case and may undermine the prosecution case (primary disclosure)/assist the defence (secondary disclosure)/or are required to be supplied under Section 7.3 of the Code (delete as applicable).”
So this form requires the Disclosure Officer to identify any unused material which may undermine the prosecution case or assist the defence; is that right?
Gerald Harbinson: Yes.
Ms Price: Was that the question which you applied to the unused evidence gathered during the investigation when you completed disclosure forms to assist the Criminal Law Team, or do you not remember applying your mind to that?
Gerald Harbinson: I don’t remember that, no. No.
Ms Price: Who made the final decision on whether material should be disclosed in any given case?
Gerald Harbinson: That would be the Criminal Law Team.
Ms Price: Would you agree that it was important for the Criminal Law Team to be aware of the existence of all material which might undermine the prosecution case or assist the defence?
Gerald Harbinson: Yes.
Ms Price: Did you understand the importance, therefore, of the job you were doing when completing the disclosure schedules?
Gerald Harbinson: Yes, I believe we did.
Ms Price: Were you aware, when you were an Investigator, that there was an obligation on a criminal Investigator to pursue lines of inquiry which pointed away from the guilt of the suspect?
Gerald Harbinson: Yes.
Ms Price: In an apparent shortfall case, did you understand it to be any part of your role to make enquiries into the reliability of the core evidence being relied upon, to evidence, for example, theft?
Gerald Harbinson: Sorry, I didn’t understand that.
Ms Price: When you were an Investigator and you were investigating an apparent shortfall case, did you understand it to be any part of your role to enquire into the reliability of the evidence you were relying upon to demonstrate, for example, theft?
Gerald Harbinson: Oh, I see.
Ms Price: So, specifically speaking, Horizon reports?
Gerald Harbinson: I’m not sure that it’s a piece of information that I could have obtained but I’m aware that on – where Horizon data was used in evidence, I believe there was a witness statement from Fujitsu to say that the system was working correctly at the time, at the material time.
But I’m not sure how, as an Investigator, I would have checked the reliability of the system. But I understood that was part of – it became part of the investigation, yes.
Ms Price: We’ll come on to evidence from Fujitsu shortly but, staying with what you understood your role to be in terms of enquiries when you were conducting your investigation, in an apparent shortfall case, where an essential element of an offence to which an investigation related was dishonesty, did you, as a matter of course, make financial enquiries relating to the suspect as part of your investigation?
Gerald Harbinson: Would I or did I?
Ms Price: Did you?
Gerald Harbinson: I can’t remember cases back then but, part of it – no, I can’t remember cases back that far – you would have looked at the financial position of people, yes.
Ms Price: In an apparent shortfall case, where a suspect was saying that they did not understand where an apparent shortfall had come from, did you make enquiries relating in particular to the operation, reliability and accuracy of Horizon data?
Gerald Harbinson: I can’t remember doing that no.
Ms Price: Was there a checklist of steps to take or any other guidance to ensure all relevant information was identified, collected and sent to the Criminal Law Team in proceedings brought by the Post Office against subpostmasters?
Gerald Harbinson: I don’t recall a checklist.
Ms Price: When you first became an Investigator, were you aware of the rollout of the Horizon system?
Gerald Harbinson: Sorry?
Ms Price: When you first became an Investigator, and that was in 2000, and in the early point of being an Investigator, were you aware of the rollout of the Horizon system, its introduction?
Gerald Harbinson: I knew it was a new system that had come in, yes.
Ms Price: Did you have any awareness of there being bugs, errors and defects or any Acceptance Incidents during the rollout of the Horizon system?
Gerald Harbinson: Not that I recall, no.
Ms Price: Were you given any training on the Horizon system at any stage?
Gerald Harbinson: I seem to recall some training on how to obtain data off the system, how to produce the data. But, genuinely, that was usually done by the Audit Team.
Ms Price: By obtaining data, do you mean printing off the reports –
Gerald Harbinson: Yes.
Ms Price: – from the counter in the branch?
Gerald Harbinson: Yes.
Ms Price: Could we have on screen, please, paragraph 64 of Mr Harbinson’s statement, that’s page 25 of WITN08150100 –
Page 25. At paragraph 64, you say this:
“In relation to training about obtaining information from third parties, particularly Fujitsu, I do recall receiving training on the processes to follow, however, I cannot recall when and how this training was delivered. I deal further with such processes under the subheading ‘Analysing Horizon data and requesting ARQ data from Fujitsu’ below.”
Can you recall how long this training lasted, the training on obtaining information from third parties?
Gerald Harbinson: From the Fujitsu training?
Ms Price: You’ve referred here to receiving training about obtaining information from third parties, particularly Fujitsu, and being trained on the processes. You say you can’t recall when and how the training was delivered, but can you recall how long the training lasted?
Gerald Harbinson: No.
Ms Price: Can you remember who delivered it?
Gerald Harbinson: I don’t remember clearly. It might have been by the Audit – some of the Auditors, I don’t recall. But I think it might have been by the Audit Team.
Ms Price: So when you refer to obtaining information from third parties, are you referring here, again, to the printing out of data from the counters in branches or something different?
Gerald Harbinson: I think that’s what I refer to, yes.
Ms Price: Did anyone tell you that there was a duty on you as an Investigator to obtain and consider third-party material from, for example, financial institutions and Fujitsu in appropriate cases?
Gerald Harbinson: I believe that would have been part of it, the training, yes, and understanding that. The Fujitsu – you could obtain further Fujitsu data. There was the ability to do that.
Ms Price: You deal with the process by which Horizon data was obtained at paragraph 75 of your statement. Could we turn to that, please. It’s page 31. You say here at paragraph 75:
“I can comment on how Horizon data was obtained and analysed in more general terms where a cash shortage was discovered during an audit. The relevant Horizon printouts were obtained by the Auditor on the day at the branch. If anything further was required during an investigation, for example, printouts from an earlier period to determine at which point the accounts no longer balanced, then you could receive this information directly from Fujitsu. An Investigation Manager could simply ask the Casework Management Team to make this request to Fujitsu.”
In general terms, did you consider that the Horizon printouts obtained by an Auditor – the counter printed reports – were sufficient evidence of a loss?
Gerald Harbinson: Sorry the last bit?
Ms Price: Were sufficient evidence of a loss? So the printouts that were obtained by the Auditor, in general terms, did you consider those to be sufficient evidence of a loss, alone?
Gerald Harbinson: Yes, they were evidence – I would consider them evidence of the loss. But depending on – if it was me investigating, depending on what the – came up on interviews, you might need to go back further to establish and to look at further documents, and go to the casework and obtain further data.
Ms Price: What guidance was given to Investigators to assist them in obtaining Horizon data from Fujitsu?
Gerald Harbinson: I don’t know what guidance was given.
Ms Price: Well, do you recall there being any, apart from being aware you could request data?
Gerald Harbinson: Yeah, I knew you could – that further data could be requested. I’m not sure you – what guidance there was on that.
Ms Price: What further data or audit reports did you understand could be produced by Fujitsu over and above the printouts?
Gerald Harbinson: I genuinely don’t remember.
Ms Price: Were you ever made aware that an enhanced interrogation of the audit trail could show when a transaction or event had been performed by the system?
Gerald Harbinson: I’m not aware of that.
Ms Price: Who was responsible for deciding whether to retrieve Horizon data from Fujitsu?
Gerald Harbinson: I think initially would be the Investigator. But, further, that might come from – the Criminal Law Team might advise you to get further data but, on a case-by-case, I don’t know.
Ms Price: Were there ever circumstances in which you would request more detailed audit data from Fujitsu before you interviewed a subpostmaster or a member of their staff?
Gerald Harbinson: I don’t recall that happening.
Ms Price: Was that step ever taken before a decision was made to prosecute?
Gerald Harbinson: I don’t recall.
Ms Price: Were you aware that there was a quota placed on audit request queries made of Fujitsu?
Gerald Harbinson: No.
Ms Price: At paragraph 75 that we’ve just looked at, you describe processes for obtaining Horizon data in the context of cases where a cash shortage was discovered during an audit. But you say at paragraph 74 of your statement that you do not ever recall a situation where a cash shortfall that you were investigating was attributed to problems with Horizon by anyone subject to the investigation. By that, do you mean that you cannot recall anyone saying the shortfall is caused by problems with the system?
Gerald Harbinson: I don’t recall that, no.
Ms Price: When you were an Investigator, were you aware of any other Investigators having investigations where a shortfall was attributed to problems with Horizon?
Gerald Harbinson: I don’t recall.
Ms Price: Did you ever have an apparent shortfall case where someone was saying they simply couldn’t explain how an apparent shortfall had occurred?
Gerald Harbinson: No, not that I – I don’t recall that, no.
Ms Price: Were you ever aware that there were bugs, errors or defects in the Horizon system, which had the potential to cause discrepancies in branch accounts?
Gerald Harbinson: Certainly not, no.
Ms Price: Would you agree that it was critical for Investigation Managers and those overseeing investigations to be informed of any ongoing technical issues with the Horizon system?
Gerald Harbinson: Yes.
Ms Price: You refer at paragraph 76 of your statement to believing it to have been common to have a Fujitsu manager as an expert witness in criminal proceedings relating to cash shortages, to provide their own analyses on the data and to determine whether Horizon was operating properly. What is the basis for that belief?
Gerald Harbinson: I believe that they were a witness at any trial, if not in attendance but, certainly, part of the committal bundle would contain a witness statement. That’s what I always thought and always believed occurred because it was a question of the reliability of the evidence that you were producing.
Ms Price: Do you recall when a Fujitsu manager was engaged in this way: before or after a charging decision?
Gerald Harbinson: I don’t know.
Ms Price: Do you recall the name of any Fujitsu manager engaged in that way?
Gerald Harbinson: No.
Ms Price: Were you ever involved in providing instructions to any Fujitsu manager engaged in this way?
Gerald Harbinson: No.
Ms Price: When you used the term “expert”, are you referring to the status of an expert witness statement in legal proceedings or do you mean that they had expertise in the system?
Gerald Harbinson: I thought it was because they were an expert – they were producing a witness statement, or in person, as an expert on the system and the reliability of the system, at that particular time.
Ms Price: Would such a statement usually simply produce audit data or Horizon helpline call logs or would they include specific analysis of the data or call logs in that specific case, as far as you can recall?
Gerald Harbinson: I don’t recall the specifics of their statement.
Ms Price: Turning please to the Compliance Manager role you held in 2005, you say in your statement that you were internally promoted to this role in early 2005; is that right?
Gerald Harbinson: That’s correct.
Ms Price: Who did you report to in this role?
Gerald Harbinson: David Pardoe.
Ms Price: What did your role entail?
Gerald Harbinson: To start with, I was uncertain about what it was that I was doing, but it was really panned out as the compliance of – of the case file, the construction and times of case files, to try to raise the standard of the file itself.
Ms Price: Can you recall now the type of forms you would have expected to see an Investigator completing?
Gerald Harbinson: Sorry?
Ms Price: Can you recall now the type of forms you would have expected to see an Investigator completing, in 2005?
Gerald Harbinson: Some of them, yes, but for me, it was about the file itself, the green file with the – how everything was meant to be laid out in it, with the different documents, different appendices, that type of thing.
Ms Price: As a Compliance Manager, did the issue of the accuracy of Horizon ever arise?
Gerald Harbinson: No.
Ms Price: In the short time that you held this role, did you come across the Identification Codes document that you address at paragraph 73 of your statement?
Gerald Harbinson: I knew there was identification codes but I don’t recall that document.
Ms Price: You say in paragraph 73 of your statement that you do recall Investigation Managers being instructed to assign identification codes to suspected offenders. Does it remain the case that you cannot recall the reasoning behind that?
Gerald Harbinson: It’s true, yes.
Ms Price: You say at paragraph 73 – and if we can just go back a page, please – that you cannot remember seeing this document. Is that at any point that you were employed by the Post Office?
Gerald Harbinson: I don’t remember seeing that document.
Ms Price: Is that why you say you cannot recall what your view at the time was of the appropriateness of the codes described?
Gerald Harbinson: I don’t – I didn’t see that document, I don’t believe. I don’t recall that, no, or its appropriateness.
Ms Price: Moving, please, to your role as a Financial Investigator. You say at paragraph 22 of your statement that you and Mick Matthews were both put forward for a new role for the Security team, that of Financial Investigator, by David Pardoe; is that right?
Gerald Harbinson: Correct.
Ms Price: This would have been late 2005, you think?
Gerald Harbinson: That’s correct.
Ms Price: You say this new role was campaigned for by David Pardoe. Is it right that the purpose of creating the role was to recoup losses through the Proceeds of Crime Act 2002?
Gerald Harbinson: Yes.
Ms Price: You and Mr Matthews were both successful in obtaining the role. Was it initially just the two of you who held that role?
Gerald Harbinson: I think Graham Ward was with us for a very short – for a few weeks or a month, but he went back to being Casework Manager and it remained as myself and Mick Matthews.
Ms Price: You had a national remit covering all areas of the UK?
Gerald Harbinson: Not Scotland.
Ms Price: You discussed the training you received for the role at paragraph 24 of your statement. Could we have that on screen, please. It is page 8 of the statement. At paragraph 24, you say this:
“All training for my Financial Investigator role was provided under the Asset Recovery Agency (ARA), who at that time were the Government department established under the Proceeds of Crime Act 2002 (‘POCA’) to take action against those benefiting from crime. As far as I am aware, the Financial Investigation Unit within POL were one of the first non-police bodies who applied to exercise powers of recovery under POCA. The ARA took the lead in delivering the relevant training to myself and Mick Matthews in order for us to become Accredited Financial Investigators. In doing so, they provided us with a mentor, Elaine Blewitt, who was an experienced Accredited Financial Investigator in the police. Initially, we received mentoring from Elaine Blewitt and carried out our work under her supervision and accreditation. This continued until we passing the necessary exams in place to become accredited ourselves. I cannot recall what the specific exams were, but I remember them being very difficult and requiring a lot of preparation and application of the knowledge we had gained from our mentoring and experience so far. I was qualified in POCA parts 2, 4 and 8.”
You say at the next paragraph, at paragraph 25, that:
“Once [you] passed [your] exams and became accredited [you] were able to carry out your duties as an Accredited Financial Investigator independently.”
Do you mean by that that you no longer carried out your work under the supervision of Elaine Blewitt, the police Accredited Financial Investigator.
Gerald Harbinson: That’s correct.
Ms Price: But you did report to David Pardoe, who was your Senior Authorising Officer?
Gerald Harbinson: We did, yes.
Ms Price: Mr Pardoe would review and approve any work you had done, where necessary, in line with ARA guidance?
Gerald Harbinson: Correct.
Ms Price: You deal with what your role as a Financial Investigator entailed at paragraph 26 of your statement, about halfway down the page, and you say this:
“My role as a Financial Investigator essentially involved the recovery of financial loss suffered by the POL following a conviction for crimes such as theft of POL assets and false accounting. This involved investigating what assets were held by the convicted individual and how they could potentially cover the loss suffered, and the likelihood of recovery. In some cases it also involved making a case for restraint over particular assets found, in order to stop them from being dissipated prior to any application for a confiscation order being awarded following a conviction. Any restraint considered would not be done without the approval of my Senior Authorising Officer (David Pardoe), and ultimately the approval of the Criminal Law Team.”
You go on at paragraph 27:
“I would also put together an application to the court for a confiscation order. In doing so, I would produce a Section 16 statement, completed on a pro forma available from the ARA. Such statement would attach and address all the evidence obtained during my financial investigation against the convicted individual and attempt to logically set out my reasoning, aims and objectives around obtaining a confiscation order, for the judge to consider. It would be passed on to the Criminal Law Team to review and approve. If approved, they would then arrange for it to be served on the defendant’s solicitor and filed at court.”
You say at paragraph 28 that, where the court proceeded to grant a confiscation order, it would always be requested that a compensation order be attached for the same amount. You address this in a little more detail at paragraph 115 of your statement. Can you explain, please, why this was done, the request for a compensation order?
Gerald Harbinson: Yes. The – any funds obtained from a confiscation order were then – would then go centrally to the Asset Recovery Agency and that money would be distributed between all those bodies carrying out financial investigations and was used to drive forward further confiscation initiatives throughout the UK. So that money would not come back to Post Office Limited as the loser in this case, the public money.
So, therefore, you were acquired to attach a compensation order which then would take the confiscated amount and pay that exact same money in compensation back to Post Office Limited. So it didn’t disappear into the Asset Recovery Agency coffers for distribution; it came back to Post Office Limited. There was no double jeopardy; it was the same money.
Ms Price: You say in your statement that the Financial Investigation Unit had no role in enforcing a confiscation order once obtained. Can you just explain why that was?
Gerald Harbinson: Once we’d gone through the court process of confiscation and the order was made, it then went to the Regional Asset Recovery Teams, whether that’s by the Asset Recovery Agency or by the courts themselves. They would follow through and they were the people programmed to make recoveries once the order was made. It didn’t come back to our team. We were kept informed about when money was received and when it was going to come back, and it was – it came back to the Criminal Law Team.
But we were kept informed about the process – not the process, but the actual amounts that were recovered. But the process of recovery was outside of the Post Office Limited.
Ms Price: You also say, at paragraph 30 of your statement, that the Financial Investigator did not play any part in investigating the potential criminal incident. In relation to a number of the specific cases you address in your statement, you were copied into correspondence about the progress of a criminal prosecution. Can you assist with why that was?
Gerald Harbinson: I think once the – it was coming to the Financial Investigators for confiscation, people just naturally started to copy us in and keep us informed about the process and where we were. It was quite important for us to know the court process because we needed documents ready so that we could produce them at the sentencing hearing, for example a – I think it was a Section 18, which was a provision of information, which would have to be served on the day, so we would need to know when – or what stage cases were in the prosecution process.
But they kept us informed of all those types of – once the cases were going to be picked up by the confiscation team.
Ms Price: You say at paragraph 30 that the Financial Investigator might start the recovery process earlier than post-conviction, in cases where a subpostmaster had admitted to actions of theft or false accounting from the outset; is that right?
Gerald Harbinson: That’s correct.
Ms Price: You say in your statement at paragraph 31 that, when Mr Matthews left the Post Office in late 2006 or early 2007, you were left with the entire Financial Investigation caseload. Do we take it from that that, apart from the short time you remember Graham Ward being involved, until that point, the Financial Investigation Team consisted of you and Mr Matthews reporting to David Pardoe?
Gerald Harbinson: That’s correct.
Ms Price: But after Mr Matthews left, two others were brought in to help manage the workload?
Gerald Harbinson: That’s correct.
Ms Price: Those other two were Paul Southin and Graham Ward?
Gerald Harbinson: That’s correct.
Ms Price: At that point, is it right that you became Financial Investigation Unit Manager and you trained Mr Southin and Mr Ward to manage their own recovery cases?
Gerald Harbinson: I did. I took them through the same process that we went through with the Asset Recovery Agency taking the lead role in the examinations and training as well.
Ms Price: So they had the same experience that you did?
Gerald Harbinson: Yes, but I was their mentor.
Ms Price: I see. Was it at this point when the Financial Investigation Unit formally came into being, when Mr Matthews left and you were given two other people?
Gerald Harbinson: Sorry?
Ms Price: So, prior to this point, had the Financial Investigation Unit existed formally as a unit, or had it just been you and Mr Matthews doing the work?
Gerald Harbinson: Before, it was – if we – we were a team together, Mick Matthews and I, and the team became three people, when it was myself, Graham Ward and Paul Southin. But that was the Financial Investigation Unit, yes.
Ms Price: Had you always been known as the Financial Investigation Unit, from the point you and Mr Matthews took up your roles?
Gerald Harbinson: I see where you’re coming. I’m not sure when this – the word “Unit” was added on but I think probably you’re right that it was when there was three of us.
Ms Price: You went on to become the Senior Authorising Officer for Mr Southin and Mr Ward?
Gerald Harbinson: That’s correct.
Ms Price: You say at paragraph 42 of your statement that the Financial Investigation Unit sat within the investigatory arm of the Security team?
Gerald Harbinson: That’s correct.
Ms Price: But its role was distinct from the role of Investigation Managers?
Gerald Harbinson: That’s correct.
Ms Price: Sir, I have reached the end of one topic. I wonder if we might take our morning break at that point, slightly earlier than usual.
Sir Wyn Williams: Yes, certainly, yes. So what are we going to do, begin again at 11.25?
Ms Price: Yes, sir, thank you.
Sir Wyn Williams: Fine. Thank you.
(11.09 am)
(A short break)
(11.25 am)
Ms Price: Hello, sir, can you see and hear us?
Sir Wyn Williams: Yes, thank you.
Ms Price: Mr Harbinson, you deal at paragraph 45 of your statement with policy and guidance applying to the work of Financial Investigators. Could we have paragraph 45 on screen, please. That’s page 18 of Mr Harbinson’s statement. You say:
“I have been asked to set out the legislation, policies and/or guidance that covered the conduct of criminal and financial investigations during the period I worked within the Security team. When I worked as an Investigation Manager within the Security team, I do not remember any particular internal policies or guidance that governed the work I carried out. I believe that policies were created and introduced over time but I am unable to pinpoint when or what they related to. I can only rely on the policies provided to me with the Request, and as explained above, most of those policies post-date my time at the POL. However, as I was investigating incidents that may have a potential criminal element, which involved carrying out interviews under caution and taking witness statements during an investigation, I was of course required to understand and adhere to the Police and Criminal Evidence Act 1984 and the PACE Codes of Practice. There were other acts that I had to refer to and whilst I would not be able to reference these from direct memory, I believe it would have been all the legislation listed in Section 3.15 of the document.”
At paragraph 46 you talk about when you joined the Financial Investigation Unit and you say:
“Again, when I joined the Financial Investigation Unit, I believe there were no internal policies or guidance to govern our practice in place. We were a new subsection within the Security Team, therefore, internal policies and guidance documents were yet to be created. We relied on the policies and guidance put in place by the ARA, which our police mentor, Elaine Blewitt, would have made us aware of. Unfortunately I cannot recall what those specific policy or guidance documents were, especially as they evolved continuously in line with developments to POCA and changes within the ARA itself.”
When you stopped being supervised by your police mentor, how would you have been made aware of any changes in policy or guidance?
Gerald Harbinson: The Asset Recovery Agency continued and maintained contact with us, as they did with all other Financial Investigators, and there was continual updates sent to us later on, I recall, that they gave us weekly or monthly tests. They sent us changes in the Proceeds of Crime Act, they kept us informed with changes and updates, so we were constantly – we were always in contact with the Asset Recovery Agency and their trainers.
Ms Price: You say you would have relied heavily on the Proceeds of Crime Act itself to ensure that you were carrying out your practice appropriately –
Gerald Harbinson: Absolutely.
Ms Price: – and this was the central piece of legislation that governed your activities as a Financial Investigator?
Gerald Harbinson: Yes.
Ms Price: You note in your statement that the policy documents which do specifically relate to Financial Investigation Policy post-date your time as an employee of the Post Office. There is, however, an undated document which you were provided with for the purposes of preparing your statement, which you describe as an early attempt as a process map relating to the work undertaken by the Financial Investigation Team, in line with the guidance put in place by the ARA. Could we have that on screen, please. The reference is POL00084989.
The title is “Security & Investigation Debt Process Text”, the document is, as you observe, undated. It has two sections, one starting on the first page, dealing with “Security & Investigation Financial Investigation Unit Criminal Debt Recovery Process” for amounts under £25,000 (sic).
Then on page 11 of this document, please, there is a section dealing with “Security & Investigation Criminal Debt Recovery Process” for more than £20,000. Going back to the first page, please. Towards the end of the first paragraph here, there is a reference to you being the Financial Investigation Unit Manager.
Gerald Harbinson: Yeah.
Ms Price: Based on the reference to the Joint Asset Recovery Database, which you think the Post Office only started using from 2009, is it right that you think this document is likely to have been created at some point in that year, in 2009?
Gerald Harbinson: I believe so. I’m not sure when this document was created.
Ms Price: Well, if it assists to look at your statement, it’s paragraph 41 of your statement. You say the reference to you as a Financial Investigation Unit Manager indicates the document must have been created at some point from 2007 onwards?
Gerald Harbinson: And JARD, yeah. I understand now, yes.
Ms Price: You say:
“[It’s most] likely to have been created sometime in 2009, as it refers to the Joint Asset Recovery Database.”
Gerald Harbinson: Yes.
Ms Price: “JARD was a system maintained by the ARA to log the actions taken in Financial Investigation, and was implemented later on in my career.”
But you believe that the Post Office only started using that from 2009 onwards?
Gerald Harbinson: Correct.
Ms Price: So that’s the basis on which you say you think this document was likely created in 2009?
(No audible answer)
Ms Price: As far as you’re aware, is this the first policy or guidance document that dealt with the role of the Financial Investigations Unit?
Gerald Harbinson: It’s the first one I’ve seen and I don’t recall this one.
Ms Price: You say you don’t recall it. Have you had a chance to read through the processes set out in it for the purposes of preparing your statement?
Gerald Harbinson: I’ve read it through, yes.
Ms Price: As far as you can recall, do the processes set out in this document reflect the processes which were followed during the time you were the Financial Investigation Unit Manager?
Gerald Harbinson: I think so, yes.
Ms Price: You say at paragraph 59 of your statement that, although Financial Investigators would provide an opinion on the best mode of recovery, you never made the ultimate decision on whether criminal enforcement proceedings should be pursued. Who did make the ultimate decision?
Gerald Harbinson: It would be the Criminal Law Team and the senior people within the Investigation Team. It usually came back to us from Dave Pardoe, who was the senior person managing myself and the team, but it came from, I believe, the Criminal Law Team or seniors in the Investigation Team.
Ms Price: As far as you can recall, was any application for a confiscation order prepared by you not approved by the Criminal Law Team?
Gerald Harbinson: It was always – had to be – a confiscation order had to be approved by the Criminal Law Team.
Ms Price: But where that was being proposed, because you’d drafted up paperwork proposing a confiscation order, did the Criminal Law Team ever disagree with the proposal that a confiscation order should be sought?
Gerald Harbinson: I wouldn’t draw up a Section 16 if it hadn’t already been agreed that that’s where we were going.
Ms Price: I see. In terms of the possible modes of recovery, as you term them, can you explain, please, the difference between a restraint order and a confiscation order?
Gerald Harbinson: Yes. A restraint order restrains an asset and prevents a person from disposing or reducing that asset until it’s resolved in the courts, whereas a confiscation order is the order made by the courts to remove the benefit of a criminal conduct in an order.
Ms Price: What were the considerations in play when it came to restraint orders?
Gerald Harbinson: It had to be proportionate. There had to be a realistic asset to restrain, a benefit within it. But it had to be proportionate: you wouldn’t restrain a property for a few thousand pounds or a bank account for a few thousand pounds.
There had to be a proportionate effect and there had to be consideration made to the defendant’s living – their ability to live normally within that restraint, so you wouldn’t block them from living. You were trying to secure assets that could be used to service a confiscation order in the future.
Ms Price: Where a decision was made to pursue a restraint order, what was your role in relation to the process?
Gerald Harbinson: As the Financial Investigator, I would have to come to a rationale about why I wanted to restrain, what was the objective in restraining the assets. I would have to get the agreement of the Senior Authorising Officer and I would then have to take it to the Criminal Law Team for them to agree for an asset to be restrained. I’d then have to write up the restraining order myself, and I’d have to present it in court for a judge to authorise the restraint. Then I would have to return that back to the – that would have to be then served on the defendant.
Basically, I think I’ve run through about all I meant to – as I recall. That would be my job. But it would be – it would have to authorised, it would have to be signed by a judge. All those things would have to be in place.
Ms Price: What were the considerations in play when it came to confiscation orders?
Gerald Harbinson: The confiscation order needed to list all the assets available for the confiscation. We’d have to list what the confiscation – what the amount was that the confiscation was for. That would – the Financial Investigator would have to – there was quite a process before you arrived at it but you would have to write the Section 16 statement and – having obtained all the documents, and that would all have to be served on the defendant. They would have an opportunity to reply to that and the court may have made an option for you – for a further response for the Section 16. But it would then go to court, and the order would be made one way or the other.
Ms Price: You deal at paragraph 58 of your statement with the case for confiscation where the conviction was for false accounting.
Gerald Harbinson: Yes.
Ms Price: Could we have that on screen, please. It’s page 23 of the statement.
At paragraph 58, you say:
“Although not impossible, it was a lot harder to justify a case for confiscation where a person had been convicted for false accounting. This is because confiscation essentially relates to removing the convicted person’s benefit that they received as a result of criminal conduct, in order to recover the losses faced by the POL. It could be extremely difficult to work out what the benefit received actually was in a false accounting case.”
When you say it was a lot harder to justify a case for confiscation where a conviction was for false accounting, do you mean in comparison to a conviction for theft?
Gerald Harbinson: Yes.
Ms Price: Can you explain why it is easier to achieve a confiscation order following a theft conviction, please? You deal with this a little further at paragraph 109 in your statement.
Gerald Harbinson: I understand. Because on a theft you have a figure of benefit of the criminal conduct, and so it’s quite easy to set out your objective in the confiscation order to say, “I want to recovery the – that figure, because that’s the figure that was involved in the theft”.
Whereas, in false accounting, you’ve got to come up and arrive at a figure how the person benefited by that figure in a false accounting. So one is easier than – they’re not impossible, but they’re – one’s easier than the other.
Ms Price: Could we have on screen please document reference POL00121639. This is a presentation handout, which you comment on at paragraph 66 of your statement. You describe it as being an attempt to raise the understanding and profile of recovery through POCA and the role of the Financial Investigation Unit within the Post Office.
The title here is “Financial Investigations Partnership for Recovery”. Your name and Graham Ward’s on that front slide.
Was this presentation delivered to the Post Office Criminal Investigators.
Gerald Harbinson: I don’t remember this – I can see that we produced it but I don’t remember it. Its purpose would have been to go out to the Investigation Team.
Ms Price: Do you recall being involved in producing the content of this?
Gerald Harbinson: I don’t recall being involved in the – producing the contents of it, no.
Ms Price: Do you think that you were, given that your name appears on it?
Gerald Harbinson: It’s most likely, yes.
Ms Price: Could we turn to page 14 of this document, please. The heading on this slide is “How can I make the offender pay when the courts don’t ever award compensation or costs. (Get the ‘offences charged’ right)”. The slide goes on as follows, the first bullet point:
“Theft, fraud and money laundering offences support the POCA 2002 and Criminal Justice Act 1988 confiscation process and in consequence recovery of the loss.”
Bullet point 2:
“Settling for false accounting as the predicate offence creates massive problems with recovery (what is the offender’s benefit).”
Bullet point 3:
“The investigation and the interview should be programmed to establish what has happened to, what is and where is the criminal property, what offences have occurred, and to what extent others are involved in those offences and/or have benefited.”
Is this you sharing your view, expressed at paragraph 58 of your statement, with the Criminal Investigation Team, namely that it was harder to get a confiscation order for false accounting than it was for theft and other offences?
Gerald Harbinson: I think that’s within it. I don’t think that’s the extent of it – of my view there.
Ms Price: Could we have on screen, please, page 3 of this presentation. This covers the Fraud Team’s recovery objective for 2007 to 2008. The first bullet point says:
“Deliver casework effectively to ensure sure 30% loss recovery, or greater, is achieved 2007/08.
“It would not be unreasonable to project future Fraud Strand recovery targets to increase year on year.”
The next bullet point:
“Deliver casework effectively to ensure 35% loss recovery, or greater, is achieved 2008/09.”
3:
“Deliver casework effectively to ensure 40% loss recovery, or greater, is achieved 2009/10. Etc. Etc.”
Is it fair to say that recovery was a key goal for the Fraud Team?
Gerald Harbinson: It was a goal for the Financial Investigation Team. I would have hoped that it was a – that more Investigators would look at the recovery side of things.
Ms Price: Could we have on screen, please, POL00051539. Looking please at the email about halfway down the page, from Phil Taylor, a Legal Executive in the Criminal Law Team, to Warwick Tatford, counsel in the case to which this email relates, the case of Seema Misra, this is dated 22 May 2009. The email reads as follows:
“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 and Jon Longman is fairly happy for us to accept those pleas. However, we are some 70-odd thousand pounds 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.”
Did you share your view on getting the charges right and the difficulty of achieving a confiscation order off the back of a false accounting conviction or plea with the Criminal Law Team; do you remember having any discussions with them about that?
Gerald Harbinson: I think, later we see a document where I exactly say that to the Criminal Law Team. I’m not surprised by that, no.
Ms Price: You provided some advice on confiscation in relation to the prosecution of Josephine Hamilton and you deal with that at paragraphs 106 to 110 of your statement. Could we have on screen, please, document reference POL00049154. This is a memo from Juliet McFarlane – so scrolling down, please, to the bottom – Principal Lawyer, Criminal Law Division, to the Investigation Team – scrolling up to the top, please – copied to you, among others, including Graham Brander and Dave Pardoe. It is dated 15 November 2007 and we see there it relates to the case of Josephine Hamilton. It reads as follows:
“I refer to previous correspondence regarding this matter.
“As you know there has been some discussion as to whether or not pleas to false accounting would be acceptable. I note this would be agreeable providing that Mrs Hamilton were to repay the full amount.
“On Counsel’s request this matter has been listed for Mention on 19 November 2007. The purpose of this is to see whether or not the trial can be vacated. It is possible that Mrs Hamilton may wish to enter pleas to false accounting. I understand however that she is not yet in a position to repay and has not given a date as to when this can be done.
“One option would be for the theft count to be left on file pending payment by the date of trial or some later date.”
Then in bold:
“Ged
“Could you let me have your views as to confiscation in this matter, and if appropriate the prospect of recovery under such an order. A copy of the indictment is attached.”
Do you recall giving advice in this case now or are you reliant on the documents?
Gerald Harbinson: I’m reliant on the documents.
Ms Price: Your response was provided by email on 16 November 2007. Could we have that on screen, please. It’s POL00049168. It’s page 2 of that document, please. You see the email from you to Juliet McFarlane, copied to Graham Brander, 16 November 2007. You say this:
“Juliet
“Thank you for your memo.
“I am never confident with false accounting charges in relation to recovery under POCA 2002 and the theft charge makes life so much easier. The defendant has General Criminal Conduct under the proposed charges and this would be so with just the false accounting however we have been challenged once before when proceeding to POCA where only false accounting was charged, and I would probable be more inclined to except Particular Criminal Conduct when dealing with confiscation in that scenario. I fully understand the balance of cost in court time against recovery and if the charge of theft was dropped for a guilty plea then I would still believe it appropriate to follow to confiscation and ask for a ‘Benefit figure’ of £40,201.58 (increase in the value of money).”
Then you deal with the apparent assets in the case and, at the bottom, you summarise your opinion. Your opinion is:
“1. Charge her with theft and go to confiscation, or
“2. Accept a plea of false accounting and go to confiscation
“3. If she pays us before we can always draw back out of the case but we need minimum £40,201.58.”
What stage did you understand the proceedings to have reached when you were providing your opinion? I know it’s difficult casting your mind back now.
Gerald Harbinson: I can’t recall exactly. I would imagine we were looking at sentencing – sorry, no, that’s not right. Looking at going to court. But I’m really not sure what position we were at there.
Ms Price: But you –
Sir Wyn Williams: I think we must be in a position where criminal proceedings had started –
Gerald Harbinson: Yes.
Sir Wyn Williams: – wherefore a charge had been laid, because counsel is talking about getting is listed for mention a couple of days later, isn’t he, to sort it out? So there clearly are charges by this stage.
Ms Price: So you were not being asked to advise in relation to what charges should be brought in the first place here, were you –
Gerald Harbinson: No.
Ms Price: – but asked to advise in the context of whether the theft charge should be dropped?
Gerald Harbinson: No. I think I was being asked my opinion on how it might have affect confiscation.
Ms Price: Indeed. Do you recall ever being asked to advise on the confiscation implications of potential charges at the time that a reviewing lawyer was making the initial decision whether to charge a suspect and, if so, with what?
Gerald Harbinson: No.
Ms Price: Going, please, to page 1 of this document, towards the bottom of the page there’s an email from Juliet McFarlane to Graham Brander, dated 16 November 2007. It is copied to you and the material parts of it read as follows:
“Graham
“I have forwarded Ged’s memo to Counsel, Richard Jory. I have informed him that whilst there is no outright objection to proceeding with the False Accounting, there is a concern as to recovery of Money. We have to date been able to recover where False Accounting only is charged though on one or two cases the Defence will argue against.
“Whilst a plea to Theft would be preferable, in the event of non-payment the intent would be to proceed to confiscation.”
Then, at the top of the page, the first page, we have an email from Graham Brander to Juliet McFarlane, dated 19 November, and it reads:
“Juliet
“REF: Hamilton Mention Hearing 19 November 2007 – Winchester Crown Court.
“Richard Jory advised me earlier today that he hadn’t received this email. Any chance you could forward it to him again.
“Hamilton pleaded guilty to the 14 FA [false accounting] charges.
“Agreement by both counsels that provided full amount (I advised Richard of increase in value of money) is repaid by sentencing date (25/01/08) then the single theft charge would be dropped.
“Richard stipulated that if the full amount wasn’t repaid by that time, we would go to trial in respect of the theft charge, unless it could be shown that payment would soon be forthcoming; in which case sentencing would be adjourned.”
Had you ever intended that your view would form the basis of a stipulation that all sums should be repaid in order to avoid a theft trial?
Gerald Harbinson: No.
Ms Price: Are you aware now that the way this was dealt with, that making repayment a condition of dropping the theft charge, was criticised by the Court of Appeal when it overturned Mrs Hamilton’s conviction?
Gerald Harbinson: No.
Ms Price: There is a memo from Juliet McFarlane also dated 19 November 2007, which you were copied into. Can we have that on screen, please. The reference is POL00044388. We see that this memo goes to the Investigation Team, copied specifically to Graham Brander, you and David Pardoe. It reads as follows, and this again relates to the Josephine Hamilton case:
“The Defendant appeared before the Court today. The prosecution was represented by Mr Richard Jory of 9-12 Bell Yard … and the Defendant was represented by Anita Saran.
“The Defendant pleaded Guilty to the false accounting counts 2-15 on the indictment. The case has been adjourned to 25 January 2008 for pre-sentence reports.
“The Defendant has been informed that full payment must be made prior to that date. The theft count has remained on file on the understanding that it should be proceeded with if the money is not repaid.
“It is believed that the Defendant has monies which will be available at the end of the year. If the Defendant does not repay then consideration will need to be given to the practicalities of proceeding with the charge of theft or whether confiscation proceedings should pursue.
“I note that the compensation outstanding is £36,644.89.
“I note that the figure canvassed of £40,201.58 is a sum which includes interest, the greatest sum will no doubt be pursued should confiscation proceedings be brought.”
Then this:
“It has been made clear to the Defence that there must be some recognition that the Defendant had the money short of theft and that a plea on the basis that the loss was due to the computer not working properly will not be accepted.
“As stated above the next hearing is on 25 January 2008.”
Do you now recall Mrs Hamilton raising allegations that the Horizon system was not working properly?
Gerald Harbinson: No, I don’t remember that memo.
Ms Price: You were being told, among others in this memo, that a plea on the basis that the loss was due to the computer not working properly would not be accepted. Can you recall whether you formed any view at the time on the appropriateness of that?
Gerald Harbinson: No.
Ms Price: What is your view on the appropriateness of that as you sit here now?
Gerald Harbinson: With the knowledge of where we are now, then it probably was – not probably, it wasn’t appropriate.
Ms Price: Was this a Post Office line to take, that the computer not working properly was not to be entertained as a defence to a criminal allegation?
Gerald Harbinson: It’s something I’m not aware of, no.
Ms Price: Could we have on screen, please, document reference POL00119228. This is a memo dated 16 September 2009 and, scrolling down, actually, we can see there from Paul Southin to the Fraud Team. It’s copied to you.
Scrolling back up, please, it reports on the outcome of a case and the first paragraph reads as follows:
“Following successful negotiations between the FIU, the Investigator and the solicitor representing the defendant, the full amount of the loss (£27,407.43) was repaid via a BACS payment into a bank account of Post Office Ltd.”
Was it common for the Financial Investigation Unit to be involved in negotiations in the context of criminal investigations?
Gerald Harbinson: No.
Ms Price: Can you help with why the FIU was being referred to there as being involved in negotiations?
Gerald Harbinson: No, I don’t know whether Paul Southin is referring to himself or as the team, but I don’t remember that.
Ms Price: Where a confiscation order was pursued, did your role involve anything over and above the steps you’ve already discussed in relation to confiscation proceedings?
Gerald Harbinson: No.
Ms Price: You have been provided with a number of memos, among the documents which had been provided to you quite recently by the Inquiry, which suggest that you were notified following an audit where shortfalls were identified on some occasions. In what circumstances would the Financial Investigation Unit be notified following an audit?
Gerald Harbinson: You mean by the Auditors to us, or just following an audit?
Ms Price: Well, either by the Auditors or by someone else, following an audit but at that stage of proceedings where a shortfall had been identified on an audit?
Gerald Harbinson: I think normally we’d be informed once there was an investigation into a loss over a certain amount but, normally, it came later than that. But we were – no, we normally were informed once there was an investigation into a loss.
Ms Price: Also among the documents more recently provided to you by the Inquiry, are a number of memos which suggest that, because a case was not being criminally investigated or prosecuted, the Late Account Team should pursue any outstanding losses. Does that represent a default position on the part of the Post Office to pursue a suspect via a criminal investigation or prosecution and, if that failed, to refer to the suspect’s case to the Late Accounts or Debt Recovery Team?
Gerald Harbinson: I’m sorry, I don’t understand.
Ms Price: Are you aware of the memos I’m referring to where there is a one-liner, essentially, saying, “No further action is going to be taken, the matter should be referred to the Late Accounts Team”?
Gerald Harbinson: Yes.
Ms Price: So the Debt Recovery Team on the civil side.
Gerald Harbinson: Yes, I saw that document.
Ms Price: Yes. My question is whether that reflects a default position of the Post Office, initially to pursue a suspect via a criminal investigation or prosecution and, if that failed, to reference their case to the Late Accounts Debt Recovery Team?
Gerald Harbinson: Not that I’m aware of, no.
Ms Price: Sir, those are all the questions I have for Mr Harbinson. I’m turning to see whether CPs have any questions.
Sir Wyn Williams: Yes.
Ms Price: Mr Jacobs?
Questioned by Mr Jacobs
Mr Jacobs: I do have a question, yes, thank you.
I act for 156 subpostmasters, one of who is the widow of Peter Holmes. You deal with his case in your statement at paragraph 159. Do you recall?
Gerald Harbinson: No, I don’t.
Mr Jacobs: Prosecution of Peter Holmes. Maybe we could turn, then, to your statement at page 159, that’s 63 of 78, and have that on the screen, please. You see there “Prosecution of Mr Peter Holmes”?
Gerald Harbinson: Yes.
Mr Jacobs: At paragraph 162, you say that you have reviewed emails dated 30 January 2009, if we could go to paragraph 162, please. Maybe if we could just pull up POL00050817, so we know what you’re referring to there. This is an email dated 30 January from you to what appears to be the Criminal Intelligence Team within Post Office Limited; is that right?
Gerald Harbinson: Yes.
Mr Jacobs: You’re authorising cheques in relation to Marion Holmes and we understand that was in relation to her financial matters.
What was the Criminal Intelligence Team; who were they?
Gerald Harbinson: They were an internal team that sat in Croydon who would obtain documents they had, things like – for vehicle checks, that type of thing, that would go to the DVLC, and those type of documents.
Mr Jacobs: Now, I know you’ve said at paragraph 3 of your statement that you don’t remember much about the documents that you’ve been shown by the Inquiry.
Gerald Harbinson: Yeah.
Mr Jacobs: What was your involvement with the Criminal Intelligence Team? What sort of cases did you refer to them and why would you contact them?
Gerald Harbinson: I didn’t refer cases to them. They – part of your – as a Financial Investigator, as part of your – the gathering of information about assets that might be used in a confiscation order, you go to them to get DVLA records about a vehicle, to know whether or not it was financed or whether – or the make, models, those types of things, would come from DVLA.
A person’s – I can’t remember the document, but when you applied for the financial data about something, you know – I’m sorry, but I can’t remember the actual document, but it would have the history of your payments and things like that. They would be the type of documents that they would be able to receive, but they would need to – you’d need to apply to get those.
Mr Jacobs: Right.
Gerald Harbinson: And there were the connections within that team that were established with the police and the DVLA and different departments that obtained those documents.
Mr Jacobs: If we could go to paragraph 163 of your statement, please. Sorry to jump around.
Gerald Harbinson: Sorry.
Mr Jacobs: That’s WITN08150100, paragraph 163, please, which is on page 65 of 78.
In this part of your statement, you refer to a memo and that is a memo from Ms McFarlane, referring you to an accountant’s report.
Gerald Harbinson: Yes.
Mr Jacobs: Now, Mrs Holmes has given evidence to the effect that Post Office thought that some money that was in her joint account had been taken by her husband and put into that account and they engaged a forensic accountant and he prepared a report and, as a result of that report, Mr and Mrs Holmes were completely vindicated and Post Office didn’t pursue that further.
But the question I want to ask you is: why was it had you were looking at accountant’s reports? Did you have any experience in accountancy or any particular knowledge of that field?
Gerald Harbinson: I did not, no.
Mr Jacobs: No. Do you recall looking at or analysing an accountant’s report in relation to this case or in other cases?
Gerald Harbinson: I don’t recall that, no.
Mr Jacobs: This may be a difficult question for you to answer, but are you able to say why it is, then, that you were given a forensic accountant’s report to look at?
Gerald Harbinson: I could only speculate, if you want me to do that.
Mr Jacobs: Well, yes.
Gerald Harbinson: Because we had the title Financial Investigations, people thought we had greater understanding, probably, than we did have in some cases and I think Juliet may well have been saying “Look at this, what’s your opinion?” rather than me having a great understanding of what it was. And I think – I know we can’t ask Juliet but I really don’t know why she sent it to me. I can’t remember.
Mr Jacobs: Now, the Court of Appeal found that Mr Holmes’ prosecution had been an abuse of process. They found that ARQ data had been obtained but it wasn’t clear whether it was disclosed and they found there was no evidence to corroborate Horizon evidence, no investigation into the integrity of Horizon figures and there was no proof of any actual loss to the Post Office. Was this something – was this information that you would have been party to or aware of at the time when you were involved?
Gerald Harbinson: No, sir.
Mr Jacobs: No.
Gerald Harbinson: No, sir.
Mr Jacobs: Finally, at the end of your statement, paragraphs 166 and 167 – we don’t need to turn these up – you say:
“I was not aware of any concerns regarding the robustness of the Horizon IT system during my entire career with the [Post Office]. As far as I was aware, the system operated as was expected.”
Then you go on to say:
“If I had ever been aware that there was a potential problem with the robustness of the … system, I would have raised this with senior colleagues and flagged to them that in my opinion any criminal investigation would need to cease.”
Now, the subpostmasters and mistresses that we represent are very keen to know the names of the individuals who were the decision makers, who would have been able to put a stop to prosecutions once it became clear – or once it should have reasonably become clear – that there were problems with the system because of what subpostmasters were saying.
So my question for you is: can you name the senior colleague or colleagues, to whom you’ve referred, who you would have discussed any potential problems with the Horizon system with, with a view to stopping prosecutions if you’d come to know about these problems with Horizon?
Gerald Harbinson: Well – thank you. I think, sir, that, if, as an Investigator, I’d become aware of something like that, I would have spoken to my team leader straight away. If as a Financial Investigator, I was aware of that, I would have spoken to Mr Pardoe.
But, you know, it’s – that information would have to go up, wouldn’t it? You’d feed up.
Mr Jacobs: So would Mr Pardoe, for example, have had the authority to investigate and put a stop to prosecutions on the basis of what he was being told from people like you in your position? Or would that have had to have gone up?
Gerald Harbinson: I think Mr Pardoe – a question for Mr Pardoe, but I don’t – I think it would need to go up further, yeah.
Mr Jacobs: Right. What about Mr Utting and Mr Scott? Are they people that you might have spoken to?
Gerald Harbinson: It’s unfair of me, I think, to speculate on what their positions were, sir.
Mr Jacobs: The question I’m asking is: who would you have gone to, regardless of what they would have done?
Gerald Harbinson: As an Investigator, I’d have gone to my team leader. As a Financial Investigator, I’d have gone to Mr Pardoe.
Mr Jacobs: Who was your team leader?
Gerald Harbinson: When I was an Investigator, it changed a few times. It started off as Tony Utting. There was a guy called Paul Dawkins, who was my team leader. There were different people, but that’s 20 years ago, so I apologise if –
Mr Jacobs: That’s quite all right. Thank you.
I just need to ask if I have any more questions that I need to ask you. I’m told that I don’t, thank you very much.
Sir Wyn Williams: Anyone else?
Ms Price: Sir, there are some questions from Ms Page.
Sir Wyn Williams: Yes.
Questioned by Ms Page
Ms Page: Thank you, sir.
Just very briefly, Mr Harbinson, I appear for a group of subpostmasters also, one of whom being Jannet Skinner, who sits besides me on my right. Is that a name that rings any bells for you?
Gerald Harbinson: From the documentation, yes.
Ms Page: You’ve told us about your opinion that it more difficult to obtain confiscation in cases where a theft charge had been dropped, leaving only a false accounting charge, yes?
Gerald Harbinson: Not dropped, but the difference between a theft charge and a false accounting charge, yes.
Ms Page: Well, in Ms Skinner’s case, that was what happened and the theft charge was dropped, leaving only a false accounting charge.
Even so, there was a – confiscation proceedings proceeded and there was an application from the defence saying that those confiscation proceedings were an abuse of process. Does that ring any bells for you?
Gerald Harbinson: No.
Ms Page: I ask because you’ve told us that there were cases where there were challenges when the only charge left was false accounting. Is this not one of those cases?
Gerald Harbinson: No.
Ms Page: What were the cases, then, that you –
Gerald Harbinson: I don’t remember the specific case but they’re not – they weren’t challenges against confiscation. It’s about the amount, what was the value – when it’s a false accounting, how did the – what value did they benefit by? And there’s different ways you can work out the benefit figure.
It’s not always totally just the amount that’s gone but you can benefit from continuing to receive pay, having false accounted. So the person’s payment – so they maintain their job but their money after that period of time could be considered as benefit from criminal conduct. So you – it’s – I didn’t say it’s impossible; I said it’s more difficult.
Ms Page: Well, certainly in Ms Skinner’s case and also in Mrs Adedayo’s case, another of our Core Participants, it was very straightforward: the Post Office simply proceeded in the same way as it would if it had been a theft charge, for the full amount that was the shortfall or that they said was the shortfall.
Gerald Harbinson: Absolutely. Because, in fairness, it wasn’t for the prosecution to talk down the value of the benefit but for the defence to say, you know, “How do you obtain your – you know, what is your benefit figure? How did you obtain that benefit figure?”
But you would always go – the object of the confiscation within Post Office Limited was to try to recover the loss amount, the benefit – as the benefit figure. We didn’t go beyond that. A lot of – POCA would allow you, in some respects, to accumulate massive benefit figures. The objective of the confiscation was to recover the loss figure.
Ms Page: Can you think of any case where you didn’t recover the loss figure, even if it was only a false accounting charge, or the figure that Post Office claimed was the loss?
Gerald Harbinson: I can’t remember now, no.
Ms Page: The advice, then, that you were giving to continue with theft charges, on the basis of recovery, was then based on no cases, as such?
Gerald Harbinson: I never – advice – my advice wasn’t to continue on theft charges. My advice was one is easier and then, I think if you see underneath, I say “Whichever one you do, whatever you do, this is what we should proceed – you know, we should go for these figures”. It was – I was giving my opinion. The decision for the charging was for the Criminal Law Team.
Ms Page: Yes, thank you. Those are my questions.
Questioned by Sir Wyn Williams
Sir Wyn Williams: On this issue of the comparative difficulties of pursuing confiscation in false accounting cases, does it really come to this, that if the charge was theft and there was either a finding of guilt or a plea of guilty, then there was acceptance that the money stolen, say £20,000, was the benefit figure, yeah?
If the charge was false accounting, there would be a variety of ways in which benefit could be looked at but some of those ways would be that the defence would argue that the benefit figure was nothing like as much as the alleged loss to the Post Office.
Gerald Harbinson: Exactly, sir, yes.
Sir Wyn Williams: Yes, and you were anticipating, quite correctly, that, in some such cases, the advocates for the defence would maintain that argument before the court and the court would accept it.
Gerald Harbinson: Yes.
Sir Wyn Williams: So from a purely pragmatic point of view, it was much easier if the charge was theft; that’s what it boils down to, isn’t it?
Gerald Harbinson: Yes.
Sir Wyn Williams: Yes, fine. All right. Thank you very much, Mr Harbinson.
Thank you for –
Oh, sorry. Are there any other questions?
Ms Price: No, sir. I think those are all the questions from Core Participants.
Sir Wyn Williams: Fine.
Well, then, thank you Mr Harbinson, for making your witness statement and for giving evidence this morning. I’m grateful to you.
The Witness: Thank you, sir.
Sir Wyn Williams: So we adjourn until Friday; is that right, Ms Price, and we have two witnesses on Friday?
Ms Price: We do. We resume at 10.00 on Friday to hear from Diane Matthews, followed by Lisa Allen.
Sir Wyn Williams: Thank you very much. See you all then.
Ms Price: Thank you, sir.
(12.27 pm)
(The hearing adjourned until 10.00 am on Friday, 24 November 2023)