1 December 2023 – Jarnail Singh
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(10.00 am)
Jarnail Singh
JARNAIL SINGH (continued).
Questioned by Mr Beer (continued)
Mr Beer: Good morning, sir, can you see and hear me?
Sir Wyn Williams: Yes, thank you.
Mr Beer: Thank you very much.
Good morning, Mr Singh.
Jarnail Singh: Good morning, good morning.
Mr Beer: Can we pick up where we left off yesterday, which was examining issues, in the general sense, on the process and the procedure for prosecuting suspected offenders. Did you ever advise the Post Office to pursue a prosecution to act as a deterrent to other subpostmasters from committing crimes?
Jarnail Singh: How do you mean, sorry? Can you flesh it out a little bit, so I can – I – from my recollection – I– no, no.
Mr Beer: Putting it another way, was the aim of deterring other potential offenders a relevant consideration in deciding whether to prosecute a subpostmaster?
Jarnail Singh: I don’t think so, well – well, no. When I advised no, and –
Mr Beer: Why do you think no?
Jarnail Singh: Because you’re working on the merits and the evidence before you on that particular case. That’s – you’re concentrating on what’s before you. You’re not sort of looking beyond anything, beyond that.
Mr Beer: Okay. Can we look, please, at POL00107869, please. If we just look at the email at the bottom of the page. If we scroll up, so you can see who it’s from and to. It’s from you to Mr Scott and it’s essentially your advice on a charging decision, as I’m going to call it, for Christine Gourlay in Scotland. You say:
“I have read the file and having reviewed the papers, in my opinion there is both sufficient evidence to provide a realistic prospect of conviction of Mrs Gourlay and it is also in the public interest to prosecute her.”
Do you see that?
Jarnail Singh: Yes.
Mr Beer: Then over the following pages there’s an analysis of the allegations, the evidence, possible defences, and the like. If we can turn to page 4, please, and look at the bottom, please. Thank you. Just scroll down a little more, thank you.
Under “Conclusion”, paragraph 28, you say:
“In my opinion, because of the above evidence and matters, there is sufficient evidence to provide a realistic prospect of conviction of Mrs Gourlay.
“In my opinion it is in the public interest to prosecute Mrs Gourlay because of breach of trust, and the large amount of loss. Then prosecution and conviction will act as a deterrent to others.
“Mrs Gourlay in her interview is implicitly attempting to blame other parties.”
It’s the part of the sentence there which says that “prosecution and conviction will act as a deterrent to others”. That tends to suggest that, in deciding whether to prosecute or not, you did take into account the possible deterrent effect of a prosecution and perhaps conviction upon others; would you agree?
Jarnail Singh: Firstly, it’s such a long time ago, I don’t know the full details. I would have read the files in depth, considered it. Maybe in general terms, but not – the main ones are the fact is there’s evidence, the public interest is the breach of trust. There’s a large amount of loss.
Mr Beer: I’m not asking about those; I’m asking you about the reasoning, which says, “prosecution and conviction will act as a deterrent to others”?
Jarnail Singh: Well, that – maybe just complete to the sentence or something, it wouldn’t be – I – to be honest, I – that – I – that’s never actually gone through – it’s not the process I would follow. I don’t know why, in these circumstances, where there was something in the, you know, in the Investigation Officer’s report or in the interview or something that John Scott, I think, specifically asked me to consider but, in general terms, that was not the aim.
Mr Beer: He didn’t –
Jarnail Singh: Certainly – I mean, I accept the fact it’s here, yes. But it’s not the main – it’s never been the main consideration in any of my advices or in my consideration. For some reason it’s there because it’s particular, peculiar, to these details. That’s in this particular case. I don’t know whether he’s particularly asked or the Investigation Officer asked or he asked me to address it, but yes, it’s there.
Mr Beer: In the documents that we’ve got, the investigation report and the other communications from Mr Scott –
Jarnail Singh: Yes.
Mr Beer: – he doesn’t ask you “Please can you include in your advice whether or not prosecution and conviction will act as a deterrent to others and please include one way or the other in your reasoning whether you take into account or leave out of account the possible deterrent effect”. It’s something that comes from you and not him.
Jarnail Singh: Yes, maybe then I – you know, it’s such a long time ago. I don’t know – maybe on that particular day, but certainly generally I wouldn’t of – I mean, the other advices you’ve probably seen, it’s not there.
Mr Beer: Was this a –
The Solicitor: Sorry, can I just interrupt?
(Off mic)
Mr Beer: Sorry sir, you won’t be able to hear.
The Solicitor: Sorry, can I say something there?
Mr Beer: Hold on. Mr Singh’s solicitor has just said:
“I’m sorry, I don’t think this document was provided before.”
I’ll check whether that’s so, and if Mr Singh needs any time at all to read it, he should have it.
Sir Wyn Williams: I agree.
The Solicitor: Thank you.
Mr Beer: Do you need time to read this document?
Jarnail Singh: Is that the only – have you got quite a bit of papers?
Mr Beer: I’m sorry?
Jarnail Singh: Have you got quite a bit of papers to go to the background to it? So can I have as much information as you’ve got?
Mr Beer: I can certainly research that and come back to you later in the day or when you come back next year. If that would assist, I don’t know at the moment whether this was a document that was provided or not. I can just check, however.
Yes, it was part of the batch of documents that was provided last week, tab E92. So you have had it before. I’ll move on.
Were cautions an available outcome?
Jarnail Singh: Sorry?
Mr Beer: Were cautions an available outcome?
Jarnail Singh: Yes, I think yesterday we discussed it, yes.
Mr Beer: Was there a statutory basis for the Post Office issuing cautions to suspected offenders?
Jarnail Singh: I’m sorry, I don’t understand. I mean the normal – what do you mean, “statutory” – it’s something that we considered, yes. I mean, after the evidence, the next bit was whether there’s an alternative way of dealing with it and – in light of the public interest.
Mr Beer: Where did the power come from for the Post Office to issue a caution?
Jarnail Singh: I – I mean, I certainly – we advised as to how it’s given, who gives the caution, whether the police does it for the Post Office or the police got any statutory powers. I don’t know. I can’t – I mean, maybe at that time I did know but what the system was or what the procedure was or what the basis was, certainly we did advise on cautions.
I think in every single case we considered, it’s always – you know, the evidential test and then the public interest and public interest, one of them was the fact that there was alternative ways of dealing with it, rather than, you know, prosecution.
Mr Beer: So was this a consistent practice over the entirety of the period that we are talking about, from August 1995 until, say, April 2012?
Jarnail Singh: You mean the consideration for caution?
Mr Beer: Yes.
Jarnail Singh: Certainly on my cases, I had a checklist of – going through it, and one – first the evidential test, then the public interest, and there was an alternative way of disposing of it, you know, without resorting to prosecution. But then a lot of the – most of the – the majority of the time is a breach of trust and the fact the amount of loss involved or amount of – yeah, amount of loss.
Mr Beer: Was there a Post Office policy which regulated when and in what circumstances cautions should be offered to suspected offenders?
Jarnail Singh: I think we basically applied the Prosecutors Code, if it’s in there, and certainly –
Mr Beer: The Code for Crown Prosecutors?
Jarnail Singh: Yes, sorry.
Mr Beer: That doesn’t address cautions.
Jarnail Singh: But certainly I – that’s the – maybe we – in our training or the way we looked at the case, we certainly considered it. I mean –
Mr Beer: What were the relevant considerations in deciding whether to offer a suspected offender a caution?
Jarnail Singh: Well, in any circumstances, in the sense that – the amount involved, the recovery –
Mr Beer: Sorry the amount involved?
Jarnail Singh: Yeah.
Mr Beer: So what was a permissible level of amount involved for a caution and what was impermissible amount?
Jarnail Singh: I wouldn’t – well, it depends on the circumstances, the whole circumstances of the case but I think around about 5,000, I think, is – a figure of 5,000 comes to mind.
Mr Beer: So if it was below that amount then a caution was permissible; is that right?
Jarnail Singh: I think – there was no strict figure but that was the figure, I think, we – the figure they mentioned that we ought to pay more attention to.
Mr Beer: The next thing you said was “and the recovery”. What does “and the recovery” mean?
Jarnail Singh: Well, if it was a short period of offending or it was just one-off offence or the circumstances surround it, persons – you know, the health issues, the – or the personal –
Mr Beer: No, you’re talking about different things now. I was asking about the thing you just mentioned, which was you said “and the recovery”. What did that mean?
Jarnail Singh: Well, my – money, if the money is repaid, that’s what it means.
Mr Beer: Was that a condition of issuing a caution?
Jarnail Singh: No, there’s no condition, it’s a consideration. That’s the sort of –
Mr Beer: What was a consideration?
Jarnail Singh: The amount lost and the amount recovered. I think that was one of the bases of –
Mr Beer: So did the amount have to have been recovered in order to issue a caution?
Jarnail Singh: To be honest, this is going back a few years, or lots of years, a number of years. I’ve been doing other things. Now, I don’t know and you’ve probably put me on the spot, so I don’t – I can’t give you a definitive answer on that. But certainly it was considered. I think any case I dealt with is always – I always played my mind to it.
Mr Beer: You went on to mention health; is that the health of the suspected offender?
Jarnail Singh: I think the – and the family, I think, any surrounding circumstances. Anything and everything.
Mr Beer: Were there other considerations brought into account? You said the amount of the loss, whether it had been recovered, ie whether the postmaster that paid it back, and the health of the suspect and their family. In addition to those three things, was anything else brought into account?
Jarnail Singh: Now, I don’t know. I mean, I can’t give you definitive answer because it’s such a long time ago since I left the Post Office and left the – prosecution generally. I’ve been doing other things, as you know. I don’t know the answer to that.
Mr Beer: What about an admission –
Jarnail Singh: Well, obviously –
Mr Beer: – of guilt by the offender –
Jarnail Singh: Well, it –
Mr Beer: – which in the outside world, outside the Post Office is –
Jarnail Singh: Full and frank.
Mr Beer: – a condition precedent to the issuing of a caution?
Jarnail Singh: Full and frank admissions, yes, that is one of it, isn’t it, yeah?
Mr Beer: Is that a fourth thing, then?
Jarnail Singh: Well, it’s – yes, it’s – yeah, it’s important. Yes. It’s got to be, hasn’t it?
Mr Beer: Can you remember any guidance or written document that told you and the other senior lawyers how to approach this issue?
Jarnail Singh: I think it’s certainly – I don’t know about internal document or internal training now but, certainly, the outside training, we had the Central Law Training. We – I certainly regularly attended. There was the –
Mr Beer: Was that training about cautions?
Jarnail Singh: Well, they – some of the trainings were about cautions, yes.
Mr Beer: So you received training from “Central Law”, did you say?
Jarnail Singh: It’s Central Law Training, you know, where you get your CPD points each and every year.
Mr Beer: That was training about cautions?
Jarnail Singh: Well, one of the topics would have been, I would have thought, but, I mean, I can’t tell you which one. And then certainly chambers, I think they did quite a lot of training, whether it was on caution, but certainly on the subjects we were sort of interested in. I don’t know whether that – somebody mentioned it and it meant they apply – you know, they trained us on that or what sort of considerations go in it.
But such a long time ago but we did – there was a lot of training but I don’t know whether there was actually a Post Office manual we applied to. I mean, whether it was written down internally, I can’t really say one way or the other whether it was or not.
Mr Beer: Was there a process that had to be gone through for the authorising of a caution?
Jarnail Singh: Well, that’s something we – we advised on or recommended but, as to how it’s applied, I couldn’t tell you. It’s such a long time ago, as to how they did it. But I think it’s certainly – you know, the Security or the Investigation Team carry that out – well, they’re the ones who carried it forward as to how they administered it, whether they had the authority –
Mr Beer: Never mind the administering of it at the moment, I’m thinking about who decided that a caution was appropriate?
Jarnail Singh: Well, we – it was obviously the Legal Team, I think we –
Mr Beer: Who were the decision makers?
Jarnail Singh: We recommended it. We didn’t make the decision; we recommended it.
Mr Beer: Okay, to whom did you recommend it?
Jarnail Singh: To the Security Team, we passed it to the Prosecution Support Office and who, in turn, I think, passed it on to the decision maker or the designate decision maker, I think.
Mr Beer: Would that designated decision maker have changed over time? Sometimes it being somebody in HR, I believe, and then it changed to being the Head of Security?
Jarnail Singh: It was – well, you probably – well, you – that – it probably – yes, I think it probably did, but what I’m saying is that we went to the Prosecution Support Office, they in turn passed it on to the appropriate person, whoever was the designated authority at that particular moment in time.
Mr Beer: So, as matters stand now, you can’t help us with the power that the Post Office used to issue cautions to offenders nor whether there existed guidelines regulating the circumstances in which such a caution could be issued?
Jarnail Singh: Well, I’m trying to think. As, you know, the practicality of it – it’s just – it’s just too long a period between the – when I was advising on it and since I left. I can’t – no, I don’t think I can help you with any more than what I have.
Mr Beer: Thank you. Can I ask you some questions about the duties of a prosecutor in relation to an expert witness. Do you agree that a prosecutor intending to rely on expert evidence in criminal proceedings was under the following duties: firstly, to satisfy themselves as to the expert’s relevant qualifications and expertise?
Jarnail Singh: Sorry, you’ve finished? Yes, sorry. Well, yes. Are you going to read the – I think you’re going to read the whole thing or are you –
Mr Beer: I could read out six things then you’d have to remember them and say which of them you agreed and which you didn’t. It might be best if I did them one by one.
Jarnail Singh: Okay, sorry, yes.
Mr Beer: That’s the first one.
Jarnail Singh: Can you say it again, sorry?
Mr Beer: Do you agree that a prosecutor was under a duty, if they intended to rely on expert witness, to satisfy themselves as to the expert’s relevant qualifications and experience?
Jarnail Singh: Yes, yes.
Mr Beer: Secondly, a prosecutor was required to satisfy themselves that the expert had been appropriately instructed including by the provision of a written and detailed letter or email of instruction or terms of reference?
Jarnail Singh: Yes, yes.
Mr Beer: Thirdly, the prosecutor was under a duty to provide the expert, within those instructions, as to what it is that his or her opinion was sought about, and should set out the issues or questions that they were expecting the expert to answer?
Jarnail Singh: Generally, yes.
Mr Beer: Fourthly, they were under a duty to provide explicit guidance as to what the expert was being asked to do and what material they were being asked to consider, in order to undertake that task?
Jarnail Singh: Yes, yes.
Mr Beer: Fifthly, a prosecutor was under a duty to set out the material upon which reliance had been placed in the prosecution and which of that material may be relevant to the questions which the expert was being expected to answer?
Jarnail Singh: Yes.
Mr Beer: Sixthly, a prosecutor was under a duty to inform the expert as to the expert’s relevant duties?
Jarnail Singh: Yes.
Mr Beer: Would you agree that, even those experts who were trained, accustomed and made their living by giving expert evidence, a prosecutor had to make the expert sure that they understood what the expert’s duties and obligations were?
Jarnail Singh: Yes, yes.
Mr Beer: Would you agree that there was a duty on a prosecutor to satisfy themselves that the expert had understood that they owed duties to the court and that in their work and their report they had complied with their duties to the court?
Jarnail Singh: Yes, yes. Yes, of course.
Mr Beer: Would you agree that a prosecutor at all relevant times was under a duty to satisfy themselves that any material or literature of which the prosecutor was aware and which might undermine the expert’s opinion, was reviewed by the prosecution and, if relevant, disclosed to the expert?
Jarnail Singh: Yes.
Mr Beer: Would you agree that these duties needed to be satisfied in order that the prosecutor could be satisfied that the expert evidence was admissible in court, ie these were conditions of admissibility, rather than just written requirements that it was nice to achieve?
Jarnail Singh: Yes, yes.
Mr Beer: So these went to admissibility?
Jarnail Singh: Yes, I agree.
Mr Beer: Did you, in your work, have all of those duties in mind when you were advising on files and acting as a prosecutor?
Jarnail Singh: I’m trying to think. I don’t – apart from one case, which, again, I’ve never instructed an expert in any of my cases –
Mr Beer: In the –
Jarnail Singh: In the Post Office.
Mr Beer: In the Post Office, you never instructed an expert?
Jarnail Singh: No.
Mr Beer: Never relied on expert evidence?
Jarnail Singh: No.
Mr Beer: Including in Seema Misra’s case?
Jarnail Singh: Well, that, again, I think you’ve seen my witness statement.
Mr Beer: You say you didn’t treat him as an expert, it was the court that did it?
Jarnail Singh: No, I’m not saying anything. All I said was that he came as the only person who could assist with the workings and operation of the Horizon system and I think, as the matter progressed, it became apparent that the only way the defence experts can function or are able to do his duties, or advise the – or assist the court, was with the assistance of the guy who was – the assistance of the Fujitsu employee who knew the system very well, because it’s a very, very specialist system, so you’d need a special knowledge. You can’t just have anybody come in to be able to understand it and then actually assist the court.
Mr Beer: We’re going to come back to that big topic in a moment, whether you treated Mr Jenkins as an expert or not?
Jarnail Singh: Yes, of course, yes.
Mr Beer: Would you agree that in terms of inclusions in an expert report that, by 2006, the following matters were necessary conclusions in an expert report:
Firstly, details of the expert’s academic and professional qualifications, experience and accreditation, insofar as they are relevant to the opinions expressed in the report?
Jarnail Singh: It’s something that I think we very much heavily would have relied on advice from counsel. Certainly, I think that’s as far as I can take it, because – the only time – but I think you said you – you said you were going to come to that topic in a minute – that’s one of the reasons why we relied very heavily on counsel because we used their vast experience in other cases, not just the Post Office cases, but outside, because a lot of our counsel were very experienced and knowledgeable about prosecuting for the CPS and other bodies.
Mr Beer: I’m asking you whether you knew yourself that, certainly by 2006, an expert report needed to include details of the expert’s academic and professional qualifications, their experience and accreditation that was relevant to the opinions expressed in the report?
Jarnail Singh: Well, yeah, I would have thought that was obvious, yes.
Mr Beer: So, yes, you did?
Jarnail Singh: I did but, as to the – I’ve instructed, I think, experts in the civil matters but, certainly, in the criminal matters, that was the first experience of it, I think, and I’ve never even had a defence expert’s report on any of my cases.
Mr Beer: So Professor McLachlan, he wasn’t an expert –
Jarnail Singh: Well, no, we’re not talking about that yet. You said you were coming to it. But, certainly, I saw his reports over and over again, but you’re talking about in general terms, aren’t you, or are you saying –
Mr Beer: I’m asking you whether you knew that both the common law and the Civil Procedure Rules Part 33, which came into effect in November 2006, said that an expert report had to contain details of an expert’s academic and professional qualifications, their experience, and their accreditation, insofar as it was relevant to the evidence that they were going to give?
Sir Wyn Williams: Before you answer, Mr Beer, I think there was a slip of the tongue. You said, “Civil Rules”, did you mean Criminal Rules?
Mr Beer: I meant the Criminal Procedure Rules, yes, thank you, sir.
Jarnail Singh: I think I had generally read about it, like I said, and also I did repeat – I did read the defence expert’s reports. Certainly was all there. As to whether that was something of a second nature to me, I would say no, purely because I’ve never had a case where I had to instruct an agent – instruct an expert in the criminal proceedings.
Mr Beer: Did you know that, by that time, 2006, the law required a report to include a statement of the range and extent of the expertise of the expert and any limitations that they identified as to their expertise?
Jarnail Singh: I don’t know. I mean, I’m trying to think what I knew at that year, the time period I was employed by the Post Office. But, certainly, if I was instructing an agent – instructing an expert, I would have done a research around it as to what my obligations were.
Mr Beer: Did you know that, by that time, the law required an expert report to contain a statement setting out a substance of the instructions that the expert had received, the questions upon which their opinion was sought, the materials that they had been provided, the documents, statements, evidence, information and assumptions, which were material to the opinions expressed within the report?
Jarnail Singh: In general terms but then, if I was going to instruct an expert, then I would have had a conference or got advice from counsel, read around the topic. But, as to the knowledge, it’s not something I would have retained readily. I mean, like any new experience or anything I would have done, which I’ve not done before, certainly I’d have read around it, got to know it very well, and then had probably sought counsel’s advice before doing it.
But it’s the – as to – I don’t know what you’re asking in – I knew – obviously in general terms, I probably knew quite a lot. But when it actually come to specifics then I would have sat down and worked it out, and then sought advice, and maybe sought advice from other experienced lawyers within the Criminal Law Team, and I think I would have gone to, you know, the Head of Criminal Law Team to say, “Look, this what I’m doing, is there pointers I need to know?” And then I would have directed my mind to it.
And, certainly, before embarking on anything of that nature, that’s my background, experience, and reading around it, and then going to counsel. That’s what we would do.
Mr Beer: Did you know that, by 2006, the law required a report where there was a range of opinion in the matters dealt with by the expert to include a summary of the range of opinion and the reasons for the opinion given by the expert within that range?
Jarnail Singh: I don’t know, I mean, I – to that. I mean, I wouldn’t know anything like that to – maybe to that detail. I can’t say one way or the other but, certainly, if I was going to – instruct an agent – instruct an expert, then I would have been able to bring my knowledge up to date to that level but, I mean, it’s not something I would have retained because it’s not something I would have used on a daily basis.
Mr Beer: Did you know that, by 2006, an expert report was required by the law to include relevant extracts of literature or other material that may be of assistance to the court?
Jarnail Singh: Again, same answer. Again, I would have – if I was going to instruct an expert, that’s what I would have done and, certainly, I would have a back-up of an opinion or advice from counsel.
Mr Beer: Lastly on this, did you understand that by 2006 the law required an expert report to contain a statement to the effect that the expert had complied with their duties to the court to provide independent assistance, by way of objective and unbiased opinion, in relation to the matters within their expertise and an acknowledgement that the expert would inform the parties and, where appropriate, the court, in the event that his or her opinion changed on any material issue?
Jarnail Singh: In general terms, yes, but then, as I said before, before instructing an expert, I would have got to know it in detail and, certainly, I would have got advice and opinion as to what needs to go into the expert’s report and, also, as and when the expert need to be told about. Well, when the expert is instructed, I would have included that, in his instructions.
Mr Beer: Would you that have understood at this time that the requirements that I’ve just listed went to the substance of the expert’s opinion and weren’t merely box ticking exercises that had to be complied with on the pieces of paper written by the expert? These went to whether the expert understood their duties and had approached their task, compliant with their duties and, therefore, this was a question of admissibility?
Jarnail Singh: I think the answer would be the same as before, because it’s not something I would do on a daily basis, it’s something I have not done within the prosecution – whilst prosecution for the Post Office.
Mr Beer: Before embarking on the detailed evidence, can we agree on the following: firstly, in the case of Seema Misra, no witness statement relied upon by the Post Office from Mr Jenkins included any of the necessary conclusions required by the common law and the Criminal Procedure Rules that I’ve just listed?
Jarnail Singh: No, because I – he wasn’t – he wasn’t – he didn’t come in as an expert, in the sense of an expert; he was an expert who was experienced in the system in itself because it’s such a specialist system and he – assisting the prosecution, the defence and the court, into understanding how the system worked or the operation of the system. I think that’s why and how he came into advising, he came in as somebody who knew the system well.
Mr Beer: So I think you agree that none of the witness statements –
Jarnail Singh: No.
Mr Beer: – supplied by Mr Jenkins and relied upon by the Post Office in the case against Mrs Misra included any of the necessary elements that I have just listed?
Jarnail Singh: Yeah, purely because he was (sic) instructed as an expert.
Mr Beer: I’m sorry?
Jarnail Singh: He was not instructed as an expert.
Mr Beer: I think, as a matter of generality before we come to the detail, you would therefore agree that you did not provide Mr Jenkins with any instructions as to the duties of an expert?
Jarnail Singh: No.
Mr Beer: You did not provide Mr Jenkins with any instructions as to the need to document, for example, the work carried out by him and by others, which formed any part of the evidence that he was to give?
Jarnail Singh: No, purely because he came in as a witness of fact. He was put forward or recommended by Fujitsu as the best person who can answer or advise the prosecution and, in turn, the defence, and I think all he did was to – the questions posed by the defence expert to assist him to understand the system.
Mr Beer: I think it follows that you did not provide Mr Jenkins with any sort of document or schedule upon which he should record, for example, the material that he had considered in order to form his expert view?
Jarnail Singh: I don’t know what material you – what material I’m supposed to provide. It’s like – the way the whole – he came into being was purely – whatever information we had from the defence expert, and he was basically forwarding it on to him to respond to it, like any other witness. He – I didn’t take any witness statement from him and I don’t think I’ve actually physically met him until – from now, from the documents the Inquiry has provided me with, I think the first time was probably in a conference round about October and I think two or three weeks before, prior to the actually – actual trial.
The normal practice of the Post Office was not the solicitor to take a witness statement but to the Investigation Officer to do so, and that’s how it worked out. Certainly, the defence solicitors would send their enquiries, and I think – and I think maybe once they’ve put forward the challenge to the Horizon system, they instructed their expert, they in turn put forward these reports, plus further enquiry – further enquiries. That went to the Investigation Officer.
He, in turn – this is – this information needed to be dealt with by Fujitsu and I think there was in place some sort of procedure, system, or process in place that needed to be followed and I think, because of the time constraints or certain – we needed to respond within a certain period of time, that’s when I phoned or got in touch with the Prosecution Support Office, Fujitsu’s Prosecution Support Office, and they said, “No, you’ve got to follow certain procedures”, which was would be time consuming, and just to escalate the matters, I was given a phone number for the Head of Legal at Fujitsu who I contacted and he recommended Mr Jenkins. That’s how he came into being.
Mr Beer: Mr Singh, can I cut through this. I am just asking you at the moment whether you provided instructions, reminders to Mr Jenkins of duties that I have outlined, instructions as to the need to document work carried out by him or by others that was going to form a part of his evidence, with a schedule or work record that detailed the material that he had considered as part of his work.
I think your answer is “No, because I didn’t think he was an expert”?
Jarnail Singh: No, well, I think you followed it up and you presumably wanted me to elaborate, but yes – well, if – no. That’s right. You’re right.
Mr Beer: I think it follows that there’s no documentary –
Jarnail Singh: No, because we didn’t have any documents at that time. What documents could we have provided? So I didn’t have any documents that –
Mr Beer: I think you’re misunderstanding me. I’m asking whether you approached Mr Jenkins on the basis that he was an expert and then said to him, “Look, Mr Jenkins, as you’re going to be giving expert evidence, it’s necessary for you to record, in order that we, the prosecution, can disclose, the work that you carry out in order to form your expert view, including a record of who you spoke to and communications that you received from others, insofar as they end up being part of your report.”
Jarnail Singh: At that –
Mr Beer: You didn’t say that?
Jarnail Singh: No, well, at that stage, he wasn’t considered as an expert. He was just more or less responding to the expert’s report or enquiries, or their questions, if you like, because he was the only – he was put forward as the person who could deal with them. So he was – you know, he was like any other witness. He would have him called to give evidence.
Mr Beer: Do you have conferences with any other witness? Do you sit down with witnesses of fact and custody their fact and custody their evidence with them, a couple of weeks before trial in a barristers’ chambers?
Jarnail Singh: Well, we didn’t have any trials. I mean, certainly, I –
Mr Beer: Sorry? No, I’m talking about Seema Misra. You’ve told us you attended a conference with counsel Warwick Tatford in October 2010 and Mr Jenkins was present, which you mentioned earlier.
Jarnail Singh: Yes.
Mr Beer: Was it usual for you to sit down with witnesses of fact and chat through their evidence with them?
Jarnail Singh: I think, it depended very much on the case.
Mr Beer: So you would sometimes chat through a witness’s evidence with them in a prosecution?
Jarnail Singh: I think some of the times, some of the – these areas, certainly we did, in the sense that trying to understand the actual system or the, you know, the technical aspect of it, I think. I don’t know, maybe it’s a – I can’t – I mean – I think – I’m sure we have.
Mr Beer: Presumably you would want to keep a pretty careful record, if you were chatting through the evidence of a witness of fact a couple of weeks before trial, wouldn’t you?
Jarnail Singh: Well, certainly but, I mean, you know, certainly the Investigation Officers, I – to be honest – I can’t – I can’t recall exactly where we were, how we dealt with it now, but certainly I always had my notepad with me.
Mr Beer: Or is the fact that you met Mr Jenkins in consultation with counsel a couple of weeks –
Jarnail Singh: But I haven’t taken any papers with me from the Post Office when I left. Everything is there.
Mr Beer: Hold on, I haven’t asked the question yet.
Jarnail Singh: Well, that’s where you’re coming from – okay, ask the question.
Mr Beer: Just wait and see.
Jarnail Singh: Okay, all right.
Mr Beer: Is the fact that you were attending a consultation or conference with counsel, with Mr Jenkins, a couple of weeks before trial, an indication that, in fact, you treated him as an expert witness because that’s what one might do with an expert witness –
Jarnail Singh: I –
Mr Beer: – rather than a witness of fact? Pretty unusual to sit down with prosecution counsel and chat through a witness of fact’s evidence, isn’t it?
Jarnail Singh: I can’t really tell you how these came about. I think certainly counsel asked for a conference, and I – again, I think in – originally, I didn’t – I mean, it was such a long time ago, I didn’t actually put it in my witness statement and I think you provided further papers, and I think, and then I think Mr Jenkins was nice to put, you know, “Nice to meet you”, and all the rest of it, and then I started remembering there was a conference.
As to how that came about or why, what the circumstances were, I couldn’t tell you. But certainly, yeah, I mean we got a very experienced counsel who had been dealing with not just the Post Office cases but wide experience of the prosecution for the CPS. He would have been well aware and he would have made me well aware as to what I needed to do, as well as him – his duties, and I think he must have – either the specifics of him being, you know, his duties, my duties, we would have done that. But –
Mr Beer: I think it’s right that there’s no documentary record to which you can point that confirms that Mr Jenkins understood, to your understanding, any relevant expert duties that he owed to the court; is that right?
Jarnail Singh: Well, it follows, because, as I say, we – he didn’t – he was never instructed as an agent from the outset – as an expert, sorry, by – I’m trying to think at the same time as – because his speciality was – or his expertise was very, very specific, very specialist, and that was the special tailor-made system for the Post Office, which his employer provided for the Post Office.
So he wasn’t – I think that’s where we were – that’s where we were confused.
Mr Beer: What were you confused about?
Jarnail Singh: Confused as to whether he came as an expert or as fact, because he was basically, literally assisting and assisting the defence expert, because the defence expert was not an expert on the Horizon system, if I can put it that way.
Mr Beer: Did you feel confused at the time?
Jarnail Singh: I don’t know. I mean, I – I wasn’t confused in the sense of I think you mean, certainly I’m not, like I said to you, in these particular circumstances or in this particular incident, I’ve never instructed an expert for the Post Office in these circumstances – in this incident, so I was new to it in that sense, because it wasn’t second nature.
If you’d been dealing with something, you know, on a regular basis you would have everything in place. I would have had to basically start from scratch and work out the particular terms, or the law, so to speak, as to my duties, duty of the expert, because I don’t think any within – anybody within the Criminal Law Team had actually instructed an expert in that sense.
Mr Beer: Can we look at your witness statement, please, at page 24, paragraph 69, please. If we scroll down, thank you. You say:
“In the Misra case the defence expert raised questions. I contacted the Investigation and Security Team to ask whether they could answer these questions. I was told the request needed to be made in writing and it could take weeks for a response. I was worried that the normal systems and procedures for obtaining information from Fujitsu would be too slow and so I also contacted David Jones, Head of Legal at Fujitsu, to escalate the request so it would be dealt with as quickly as possible to comply with the court order. Subsequently, Gareth Jenkins was put forward to deal with the defence requests as someone who was in a position to deal with the issues raised by the defence expert, but I understand that his role was initially limited to that of a lay witness who knew the Horizon system well. As far as I can recall, the Post Office did not seek to rely on him as an expert witness or at least initially. Subsequently, due to his expertise and qualifications, the court considered him an expert.”
Do you see that?
Jarnail Singh: Yes.
Mr Beer: So you’re saying that you and others in the Post Office did not seek to rely on him as an expert witness, at least initially, but the court did.
Jarnail Singh: Well, I think, isn’t that what –
Mr Beer: Is that correct? Is that what you’re saying?
Jarnail Singh: Yeah, isn’t that what I’ve been –
Mr Beer: Right, good.
Jarnail Singh: – saying all along to you, in any case. I don’t think that’s any different to what I’ve just been telling you.
Mr Beer: If we can turn, please, to page 67, paragraph 198, you say:
“Initially, I did not consider Mr Jenkins to be acting as an expert but to be brought in as a lay witness with technical knowledge who could respond to matters raised by the defence expert.”
Then at the end, you say:
“However, this was an unusual case in that he was not regard by the prosecution as an expert witness but from recollection went on to be treated as an expert by the court.”
In both of those paragraphs, you say that initially you did not treat him as an expert witness, agreed?
Jarnail Singh: Yes.
Mr Beer: In both of those paragraphs, you say that he, Mr Jenkins, was treated by the court as an expert, agreed?
Jarnail Singh: Well, that’s what I say, but –
Mr Beer: Yes.
Jarnail Singh: Yes.
Mr Beer: So, if you initially did not consider him to be acting as an expert, it follows, doesn’t it, that there came a stage when you did consider him to be an expert, agreed?
Jarnail Singh: Not – not by – I don’t – I don’t – it’s difficult because I think you’re – it’s very easy to play with words but in the –
Mr Beer: Is that what you think I’m doing?
Jarnail Singh: No, I’m –
Mr Beer: I’m just reading out parts of your witness statement.
Jarnail Singh: Maybe I’m – let me think, then. Let me think quietly to myself. I was thinking loud. Maybe it’s not the place to think loud. Let me put it differently to you, then.
Mr Beer: Just so you can refocus on the question.
Jarnail Singh: Yes.
Mr Beer: In two paragraphs in your witness statement you said:
“Initially, I did not consider him to be acting as an expert …”
Jarnail Singh: Yeah.
Mr Beer: My question is: does it follow that later, ie after the initial bit had finished, you did consider him to be an expert?
Jarnail Singh: Only as an expert in the Horizon system, because we did not have anybody else to – who had that specialist experience into the operation of it, the workings of it and, also, even to analyse the transaction logs. And I think, overall, in the scheme of things, in the case itself, he – and in turn, because of his expertise and knowledge, he was able to bring the defence expert to a level where he could actually understand the system –
Mr Beer: Mr Singh, in these two paragraphs you’re dealing with Mr Jenkins’ status –
Jarnail Singh: Yes –
Mr Beer: – as to whether he was a lay witness or an expert witness. In both paragraphs, you say, initially, you did not consider him to be acting as an expert witness.
Jarnail Singh: Well, I – I think throughout –
Mr Beer: But then, and I’m asking you, after that initial period had passed, did you treat him as an expert witness?
Jarnail Singh: Okay, can I share something with you? There would – I – the way this should have come about or the way I visualised it, was that there would come a stage where we would get an external expert, whereby the – Mr Jenkins would be able to assist our expert – our independent expert. I think that’s probably true meaning, where we should have done, but, at the same time, I think I was relying very much on the expertise and the knowledge and experience of our counsel, and that didn’t come together.
But, initially, I think it would have been – I think maybe the way it should have been done would have been – maybe we would have got another professor in, I don’t know. But certainly here, he did – in the true meaning of the word, he didn’t come in as an expert. Maybe here – it was very difficult to put it into words what I was trying to say, but he was treated as a witness of fact all the way through, up to including the trial.
But maybe it should have been done differently, he should have been – we should have got another professor in, from the outset, as an independent expert but then who would have instructed him? Who would understand the system? Who would – it was that sort of real-world problem –
Mr Beer: Can we go back to page 24, please, paragraph 69 at the bottom, last sentence:
“Subsequently, due to his expertise and qualifications, the Court considered him an expert.”
Did the Post Office argue against the court’s treatment of Mr Jenkins as an expert?
Jarnail Singh: Not to my knowledge. I wasn’t in court. Certainly, we were represented by a very experienced knowledgeable counsel and, certainly, he was instructed by the Investigation Officers that were there and I think one of our legal executives was there. I didn’t get any – anything to – anything like that, that we said “No, no, he’s an expert, he’s only an expert of fact”.
Mr Beer: So did the Post Office acquiesce in the court’s treatment of him as an expert?
Jarnail Singh: I don’t know. I mean, I can’t answer that. I mean –
Mr Beer: When did the court subsequently consider him an expert?
Jarnail Singh: Well, that was – I – I – well, maybe it was wrong. I, you know, doing this statement after a long period – the conclusion or the case has been concluded, it was a difficult one. I would have –
Mr Beer: From when? What moment did the court treat him as an expert?
Jarnail Singh: I don’t know. I can’t answer that.
Mr Beer: Was Mr Jenkins made aware of the change in status that he had enjoyed?
Jarnail Singh: How do you mean?
Mr Beer: Well, one moment he’s a witness of fact in the person who’s calling him as a witness, and then the court is treating him as an expert. Was he informed of his change of status?
Jarnail Singh: He basically was treated as somebody who knew the system well because that’s more or less what the court’s issue in the case was and I think, as you would be aware, if it – I think the judge actually said to the defence expert and Mr Jenkins to have as much meeting, as much time as possible, with a view to narrowing the issues, to a point where there was actually a joint report, which both these gentlemans agreed to.
Mr Beer: Is that normal, in your experience, for the court to order two parties to meet, one of whom is an expert and the other who is a lay witness of fact, and to produce a statement of agreement and disagreement or a joint report?
Jarnail Singh: Well, I’ve just said that I think it’s – we’ve been – for the last few minutes, I’ve told you. This is the first experience in the Post Office cases I’ve ever had, and I think I was very much relying on, you know, our barrister. And basically saying “No, no, no, we can’t use him”. I mean, if he said to me, right from the outset, “Jarnail, we can’t use him”, then I would have stopped at that moment and see if we can have – try to find an expert outside, you know, who was basically a professional expert – you know, who gave evidence in court.
But this was the only person that we were – or who was put forward who knew the system very well, because these is – this was a very, very specialist system. Only person who could actually – not only assist the court, but actually went on to assist the defence expert.
Mr Beer: In this paragraph, you refer to the normal systems and procedures for obtaining information from Fujitsu. What were the normal systems and procedures for obtaining information from Fujitsu?
Jarnail Singh: I think I’m maybe the wrong person to ask. I don’t know to that, because I’m not – wasn’t privy to the contract or the even the relationships. I didn’t know people like Penny Thomas existed, you know, the Prosecution Support Office, who was basically –
Mr Beer: You say here that you were worried that the normal systems and procedures would be too slow?
Jarnail Singh: Yes.
Mr Beer: So you must have understood what they were?
Jarnail Singh: What they were was when the Investigation Officer said, “Jarnail, this can’t be done, we’ve got to do this, we’ve got to do that”, that’s when I got hold of Penny Thomas and I think there came a time when she actually – I think sent me some email as to what the Post Office needed to do, and I think that’s what we were discussing yesterday, weren’t we, when we were trying to get information from them?
But like anything in life, they probably have got set procedures and systems in place, because we – I’ve never used them, it wasn’t something that I was aware of, intimately. I knew probably there would be because, you know, theirs is a contractual, commercial relationship between two parties: Fujitsu and the Post Office.
But as mine is a legal – is, you know, of the prosecution solicitor in-house, something that I didn’t use, I wouldn’t be aware of in detail. I mean, I would know in general terms because there would be some relationship, there would be something in writing, some contract or agreement, but I can’t tell you now as to what they were and, even at that stage, I wasn’t aware of it.
All I was trying to do, from a practical point of view, from an empirical point of view, from the real-world point of view, was trying to get this thing moving because it’s in court, and the judge had to give directions, you know, a timetable as to certain things needed to be done.
Mr Beer: By the experts?
Jarnail Singh: Yes, I – well, yeah –
Mr Beer: So was it from that moment, from when the judge gave directions as to the service of expert reports and the meeting of experts, that you treated Mr Jenkins as an expert?
Jarnail Singh: Well, we couldn’t find any experts in the outer world who knew the statement and I did look. I –
Mr Beer: No, my question – and I would really appreciate it if you would –
Jarnail Singh: Sorry, let me –
Mr Beer: No, hold on –
Jarnail Singh: No, let me –
Mr Beer: I’d appreciate it if you would focus on my question rather than talking about other stuff.
Jarnail Singh: Okay, fine. Okay.
Mr Beer: Was it from the moment that the judge directed a timetable for the service of expert reports and that the experts should meet and produce a statement of areas of agreement and disagreement that you treated Mr Jenkins as an expert?
Jarnail Singh: No.
Mr Beer: So despite the court treating him as an expert –
Jarnail Singh: No.
Mr Beer: – you did not?
Jarnail Singh: At that time, I’m talking about – no, no. Mr – I’m talking – I’m maybe at cross purposes. The time and the dates I’m talking about, Mr Jenkins didn’t exist. I didn’t know anything about – I didn’t know Mr Jenkins.
Mr Beer: Okay, let’s talk about the thing I’m talking about.
Jarnail Singh: Okay.
Mr Beer: When the court directed a timetable for the production of expert reports and directed that the experts should meet to produce statements of agreement and disagreement, from that moment on, did you treat Mr Jenkins as an expert?
Jarnail Singh: What date are you – we talking about? What are you – because there’s a date where they – or –
Mr Beer: Autumn 2009.
Jarnail Singh: I think if you’ve – I think that they wanted the experts report but we didn’t have an expert at this time –
Mr Beer: No, when the court issued – we’re going to come to them later, I’m just asking you on this at the moment, we’re going to come to look at all of these documents at the moment, but when, in autumn 2009, the court issued directions that mentioned experts on each side, after that point, did you treat Mr Jenkins as an expert?
Jarnail Singh: No, because Mr –
Mr Beer: Why not?
Jarnail Singh: Mr Jenkins wasn’t there. Mr Jenkins only came around about February time.
Mr Beer: So did you know that Mr Jenkins, as an employee of Fujitsu and somebody who worked day-to-day on Horizon, was a person where the prosecution, perhaps more than in other circumstances, needed to ensure that he understood his duties to the court?
Jarnail Singh: Well, obviously I knew he was an employee because he was recommended by Head of Legal for Fujitsu, by his employer.
Mr Beer: What about the second bit of the question, then?
Jarnail Singh: What’s that?
Mr Beer: Did you know that it was all the more important – he wasn’t somebody that enjoyed functional independence, he wasn’t independent – that it was all the more important that you should ensure that he understood his duties to the court?
Jarnail Singh: Well, you’re posing this question, about 10, 15, 20 years after. The fact that the – the focus there –
Mr Beer: 13, I think.
Jarnail Singh: Well, whatever, 13, then. At that moment, I think my other primary concern was to find somebody who knew this very special, specialist system, who knew the system and, as, when the directions were given, around about December – I don’t know whether it was December or – I don’t know what the actual dates were, but the year 2009, say, obviously my concern or the Post Office’s concerns should have been – because I did sort of generally let it be known that this is where we are, we need to get an expert to explain the system.
And I think the Head of Legal, Rob Wilson, said “Well, we’ve never had anybody”, and I think a few others, Juliet McFarlane, who was basically a head or leading the subpostmasters’ cases, she couldn’t come up with a name. I looked in the Law Society Gazette for an expert, and I think I went further afield, I think I spoke to a university or – and they didn’t know the system well.
And I think that’s where David Jones’ recommendation of Mr Jenkins came in to being and he came in as somebody who knew the system well. There was obviously – you know, he’s an employee of the employer. Yes, of course, I mean, you know, that follows, then, doesn’t it – well, it doesn’t follow but, obviously, yes, I would have been aware of that. But that wasn’t the prime consideration.
The first consideration was like any person who could assist the prosecution and the court, and then, I think, was to understand the system at that stage and maybe at that stage, we should have brought in somebody from – externally, who was an independent, a bit like the defence expert, to take it all the way to the court as an independent. And that’s when the duties you’ve – under the common law and under statute, would have come into play. That’s when we would have formulated it in a sort of – well, if he was a professional expert –
Sir Wyn Williams: Mr Singh, I’m sorry to interrupt you but you just told me in one part of a very long answer that you were looking for an expert to deal with the issues arising from Horizon. You told me that you were unable to find such a person and, therefore, Mr Jenkins was introduced to you. What better evidence do I need for the fact that Mr Jenkins was an expert than that which you’ve just said?
Jarnail Singh: Well, sir, I understand that but then the –
Sir Wyn Williams: Well, then if you understand it, will you concentrate on Mr Beer’s questions and answer them a bit more succinctly, please.
Jarnail Singh: Sir, it’s very difficult to work something in my head as quickly as Mr Beer can, because I’m up at an age and I’ve been out of practice such a long time –
Sir Wyn Williams: Well, take a breath before you answer, think about your answer –
Jarnail Singh: I will, sir –
Sir Wyn Williams: – and then answer –
Jarnail Singh: Is there any way I can have a pen and paper and I can sort of do that because I can’t –
Sir Wyn Williams: Let’s have a morning break and let Mr Singh have some paper and pen to prepare himself.
Jarnail Singh: That’s very kind, sir. I’m very grateful. Thank you.
Mr Beer: Sir, can we say 11.25, please.
Sir Wyn Williams: Yes.
(11.11 am)
(A short break)
(11.25 am)
Mr Beer: Good morning, sir, can you continue to see and hear us?
Sir Wyn Williams: Yes, thank you, yes.
Mr Beer: I’m pleased to say Mr Singh has now got both a pen and –
Jarnail Singh: Thank you very much.
Mr Beer: – paper.
Can we turn to your witness statement at page 25, please, paragraph 70, fourth line. You’re dealing here with the conference that you referred to earlier in October 2010 and you say, in the fourth line:
“As far as I can recall …”
Then you corrected this to:
“… I had more involvement with Mr Jenkins. I cannot recall any discussions where he was informed of his duties to the court although I would have assumed counsel would have informed him of the same.”
If you were not treating Mr Jenkins as an expert witness, why did he need to be informed of duties that he owed to the court?
Jarnail Singh: Well, it’s such a long time ago, there’s been a lot of papers which the Inquiry has provided to me. I honestly can’t say that but, certainly, as far as I was concerned, he was a normal witness who was – who knew this particular system, which the court needed assistance with, and so did the prosecution and the defence as to – again, an assumption, an assumption from reading the papers.
I don’t know the ins and outs, don’t forget I’d been out – I’ve not – I’ve not been out – I’ve been not doing prosecutions for a long period of time. At that time, I would have known, because I attended a lot of courses, I had a lot of the papers with me but, at that particular moment in time, when I am making these witness statements, is relying on a lot of the information, and I’m trying to summarise or be as brief as possible. So I can’t honestly answer you why I said what I did.
Mr Beer: So your position is that you, at no stage, treated Mr Jenkins as an expert witness, but the court did, correct?
Jarnail Singh: I – yeah, he was somebody who was there to help and assist like any normal witness would do.
Mr Beer: Can we look, please, at POL00020489. Thank you. If we scroll to the middle email, thank you. A bit further down.
Dealing with a different case here in 2012, September 2012, do you see? You’re engaged in a discussion about the choice of expert for it, with Mr Flemington, Mr Bolc, Martin Smith and Harry Bowyer; yes, can you see that?
Jarnail Singh: Yes, cc’d by Andy Cash, I think was –
Mr Beer: Yes, the email is directly to Andy Cash?
Jarnail Singh: Yes, it’s about a discussion with him.
Mr Beer: So this is about a different case it’s two years on?
Jarnail Singh: Yeah.
Mr Beer: You say in your email:
“Thinking about choice of expert in this case.”
That’s the Wylie case, okay?
“I have in the past instructed Gareth Jenkins of Fujitsu in the case of Misra, which [incidentally] was the only challenge on Horizon. He provided expertise in dealing with defence’s boundless enquiry into the whole system. Perhaps we need to reconsider whether to instruct him as he may be viewed to a close to the system but instruct.
“Somebody entirely independent? Your thoughts please …”
You say there “I have in the past instructed Gareth Jenkins of Fujitsu in the Misra case”; that’s true, isn’t it? You instructed Gareth Jenkins in the Misra case.
Jarnail Singh: Well, instruct – well, I –
Mr Beer: Is that true?
Jarnail Singh: He was put forward. I mean, I didn’t – well, what instructions have I given him? That’s the whole point. He gave instructions to our Investigation Officer, I didn’t take any. I never instructed him as such.
Mr Beer: Why did you say, if you had never instructed him, “I have instructed him”?
Jarnail Singh: It’s terminology, it’s wording. Maybe it’s clumsy wording. But then, when you’re – this is a while back. This is going back. You’re writing something out under pressure. Now, looking at it now, it was clumsy. It shouldn’t have been. “In the past, we have used as a witness”, or something like that, maybe something – the word “instructed”, in that sense, is probably –
Mr Beer: You agree that the language that you used is suggestive of you viewing Mr Jenkins as an expert witness?
Jarnail Singh: It’s clumsy. I –
Mr Beer: No, just focus on the question. You agree that the language you used in this email is suggestive of you viewing Mr Jenkins as an expert witness?
Jarnail Singh: It’s – I –
Mr Beer: Yes?
Jarnail Singh: The meaning isn’t in that sense that he’s instructed as an expert –
Mr Beer: Does a solicitor ever instruct a witness of fact?
Jarnail Singh: No, but, I mean –
Mr Beer: Does a solicitor instruct an expert?
Jarnail Singh: Yes.
Mr Beer: You said you “instructed Mr Jenkins”. Agreed?
Jarnail Singh: I think maybe – that’s the wrong word.
Mr Beer: Why did you use it?
Jarnail Singh: I – well, this is – you know, 12 September ‘12 at 15.36, and now we are ‘23. So I don’t know. I mean, I can’t put my hand on heart and tell one way or the other but it’s clumsy, it shouldn’t –
Mr Beer: Let’s look at POL00031352. This is an email from you to Hugh Flemington and others, dated 1 July 2013, with the subject of “Discuss of defect in Horizon in court Seema Misra and Lee Castleton”, yes?
Jarnail Singh: Yes, yes. Sorry, yes.
Mr Beer: Then if we scroll down, please, paragraph 3 – if that can be highlighted – you say in your email:
“We instructed our own expert, Gareth Jenkins, from Fujitsu.”
If you did not instruct Mr Jenkins as an expert, why did you say “We instructed” Mr Jenkins as an expert?
Jarnail Singh: Clumsy. It shouldn’t have been. It’s wrong. I can’t explain to you. I mean, this is years on. He was – if you – the best I can put it to you, he was expert – or he knew the system, Fujitsu, like no other person and he was there to assist all parties, prosecution, defence and the court.
Mr Beer: Isn’t the reality of the position that you either didn’t understand what the duties were in relation to the treatment of a person as an expert witness or you simply didn’t care enough to see what those duties were and ensure that they were discharged and that, after the fact, you’ve invented this idea that you were treating Mr Jenkins as a witness of fact throughout and not an expert, to cover for the fact that you very well know that you complied with none of the duties that you owed to him?
Jarnail Singh: None of what you said is true.
Mr Beer: So why –
Jarnail Singh: I don’t agree with it.
Mr Beer: Why have I been able to find two emails in which you have said, in black and white, that you instructed Mr Jenkins as an expert when you say that’s exactly what you didn’t do?
Jarnail Singh: The reality is, I attended a lot of courses. I – at that particular –
Mr Beer: That document can come down, by the way.
Sorry, you were telling us about courses you attended.
Jarnail Singh: Yeah, I knew at that time what my responsibilities and duties were. Mr Jenkins, as I explained to you, at that time came in as somebody who knew the system very well, better than anybody else, and he could assist the prosecution, the defence and the court, and that’s what he did and he didn’t came in as an expert in anything apart from being an expert in the system itself.
Mr Beer: That explains what you now say. I’m asking you to explain why, in these emails that I’ve just looked at, you say, “I instructed Gareth Jenkins” and “We instructed own expert, Gareth Jenkins”, when you say that’s precisely what you didn’t do?
Jarnail Singh: I –
Mr Beer: You say it’s just clumsiness?
Jarnail Singh: Clumsiness, laziness, you name it, but it’s – he, I think –
Mr Beer: Why were you being lazy?
Jarnail Singh: I think it’s probably the day-to-day pressures and I think the other thing is, like any good lawyer, is that you need to –
Mr Beer: Use language precisely?
Jarnail Singh: Well, maybe I should have been more precise and concise. Maybe I’m probably being more informal because it’s internal. But, certainly, he was not – if I – if the witness statement, that’s what I – is what I’ve signed up to and that’s what I did, and I can’t even say why you are asking me that when I’ve got that witness statement here to that fact that he wasn’t instructed as an expert from beginning to end, not by me, and that’s the reason why a lot of the – you know, the statute, common law terms and conditions were not put in that way because he didn’t do any of that.
All he did, he came in and he explained the Horizon system.
Mr Beer: So you say you’ve got a witness statement saying he wasn’t an expert?
Jarnail Singh: No, no.
Mr Beer: Is that your witness statement?
Jarnail Singh: This what I’m telling you, this is –
Mr Beer: Just because you’re saying it in a witness statement, doesn’t mean it’s true, is it?
Jarnail Singh: Why not? That’s why I believed. That’s why I signed up to.
Mr Beer: Right. Okay, got it. So you’re saying that because it’s in the witness statement you’re pointing to on the desk there, it can’t be the case that you treated Mr Jenkins as an expert?
Jarnail Singh: No. No.
Mr Beer: Aren’t you just covering up the fact that –
Jarnail Singh: No, no.
Mr Beer: – that you know that he was treated –
Jarnail Singh: Why would I cover up – no, no.
Mr Beer: Because know that you complied with none of the duties that you owed as a prosecutor, so you’ve rewritten history.
Jarnail Singh: No.
Mr Beer: You said, “I didn’t treat him as an expert at all. He was a witness of fact throughout”, despite how you’ve described him in these two emails and despite the fact that you attended a conference with counsel with him and chatted through his evidence.
Jarnail Singh: I don’t know – I mean, I don’t know where you get that we chatted through his evidence. I –
Mr Beer: What did you do? Did you sit there in silence?
Jarnail Singh: I’ve no recollection of what – I mean, I don’t know whether you – but there’s a – an attendance note to that –
Mr Beer: No, that’s significant. We haven’t had disclosed to us an attendance note of what happened at the October 2010 conference.
Jarnail Singh: Well, as I said to you, when I left the Post Office I didn’t take any papers with me. So I can’t tell you – can’t assist you any further.
Mr Beer: Can we turn, then, to the unfolding correspondence over the Seema Misra case and Mr Jenkins’ involvement in it and start with FUJ00152843. This appears to be the first communications concerning what was eventually to be Mr Jenkins’ witness statements. What I’m going to do is track through they how came to be provided. Okay?
This is an email exchange, I think, not involving you, from Mr Longman. He says:
“Jane
“I attach a report from the defence expert where he has highlighted a number of problems with the Horizon system. 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.
“In addition to this, the defence have also requested the following information …”
Yes?
Jarnail Singh: Yes.
Mr Beer: Can you help with why it was the Investigator, rather than you who was seeking a response to the expert evidence?
Jarnail Singh: I honestly don’t know. I can’t help you with that.
Mr Beer: Was that usual, that the Investigator would commission evidence like this from Fujitsu rather than you doing it?
Jarnail Singh: I don’t know. I mean, I can’t explain it. It’s such a long time ago. I mean, I can’t really – I’ve been out of this area of law. I can’t really deal with too much detail you’re looking into. I can’t help you.
Mr Beer: But would you agree that, at the moment here, the communication from the Investigator is not treating Mr Jenkins’ evidence as potentially expert evidence. It’s asking for a reply to expert evidence in a witness statement.
Jarnail Singh: Yes.
Mr Beer: You’re not copied into this, I think?
Jarnail Singh: No. No.
Mr Beer: Now, at the same time as this was going on, can we look, please, at POL00053723. Can you see this is dated – sorry, if we scroll down, please – 11 December 2009. Mark Dinsdale, can you remember who he was?
Jarnail Singh: I don’t know, one of the Investigation Officers I think, but I’ve –
Mr Beer: Okay.
Jarnail Singh: – whether I’ve had direct instructions from him, I don’t know.
Mr Beer: He emails Mr Wilson:
“Rob, I am looking for a bit of guidance on this request from Jon Longman in respect of Seema Misra.”
That’s the one we’ve just looked at.
Jarnail Singh: Yes.
Mr Beer: “This is a huge piece of work that could potentially wrap up my team for weeks and then only to be asked more questions of a similar nature. I have also concerns over the types of questions that are being asked and whether we can actually provide the information …
“We are a new team and would really appreciate your guidance on this, on how to move this one forwards. Are these questions that yourselves need to answer from a legal perspective? Clearly some of these questions are so unspecified, that we could be dragging up Horizon reports for almost every branch over a ten-year period for every single week in [question].
“I hope you can help provide some advice and guidance on this one. Thank you.”
Then if we scroll up, please, you send that on to Warwick Tatford. You reference the email and say:
“… he raises number of queries and wants solutions to the disclosure which have in my view unreasonably and unnecessarily been raised by the Defence.”
You seek advice and you say:
“This may have a wider implication for the business and … look forward to receiving [his] advice as soon as possible.”
Can you explain, in relation to this request, why you regarded the defence request as unreasonable and unnecessary?
Jarnail Singh: I can’t. Because I don’t know what information they’re requiring.
Mr Beer: If we scroll down, we can look at it. It’s at the foot of the page, it starts with (1):
“Please find attached a statement from Eleanor Nixon … please provide the following information …”
Then over the page. If you read that slowly to yourself, and then scroll down. If you read (2) and (3) to yourself, and then scroll down. There’s a reference to some other cases, including Macdonald and Hosi.
Then over the page:
“Please provide details of:
“Post offices, past and present, that have experienced losses with the Horizon system.
“Prosecutions, past and present, that have been brought for theft or false accounting, as a result of alleged losses.”
Let’s go up to page 1. Why did you regard the defence request as unreasonable and unnecessary?
Jarnail Singh: I can’t answer that. I don’t know, you know, years on.
Mr Beer: Can we see what Mr Tatford said when he replied, POL00044557. This is Mr Tatford’s advice. Take it from me it is dated 5 January 2010.
Jarnail Singh: Yes.
Mr Beer: If we can go to paragraph 6 and 7, please, which I think is on page 2. He says:
“… I would wish some further enquiries to be made from Fujitsu. Paragraph 23 of the Castleton judgment refers to the evidence of Anne Chambers. When she was cross-examined she appears to have had knowledge of an error in Horizon that had occurred at Callendar Square in Falkirk …
“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.”
Then 7:
“I think our disclosure duty requires us to ask Fujitsu whether they are aware of any other Horizon error that has been found at any other sub post office”.
Then he says:
“I anticipate that there will be none but it is important that the check is made.”
Before approaching Fujitsu, would you agree that, as the prosecutor, the Post Office was under a duty to disclose any information which it, the Post Office, held about, firstly, the Callendar Square bug, or, secondly, awareness of any other Horizon errors that had been found at any sub post office?
Jarnail Singh: Certainly, if it undermines the prosecution case and it assisted the defence, that’s what the test is.
Mr Beer: So what did you do, then, to obtain from the Post Office itself, before going to Fujitsu, documents falling within either of those categories?
Jarnail Singh: I don’t recall what I did or didn’t do. I mean, it’s years ago. I can’t tell you chapter and verse what we did or didn’t do. I can’t answer that, you know, 10/12 years on, I –
Mr Beer: Did you ever consider that the Post Office itself owed disclosure duties of the kind that I’ve mentioned, before turning to Fujitsu, ie looking within itself at all departments or branches within the Post Office for information that tended to suggest that there were errors within Horizon capable of affecting the integrity of financial accounts?
Jarnail Singh: Again, I can’t answer that but, certainly, it would have been highlighted to the team internally.
Mr Beer: How would it have been highlighted to the team internally?
Jarnail Singh: Certainly, this advice would have gone to the Head of Criminal Law Team. And then I would have got – seek guidance – directions from it as to how we go about doing it. But, I mean, I can’t –
Mr Beer: I’m asking about a different thing at the moment. I’m asking about, before you go to Fujitsu and asking them whether they have got information about Horizon integrity issues, to use a portmanteau phrase –
Jarnail Singh: Yes.
Mr Beer: – whether you went to anyone within the Post Office to see whether there was such information?
Jarnail Singh: I don’t know. I mean, I can’t tell you what we did. It was so many years ago. But certainly we got – certainly, if we had the information, we would have considered it and we would have dealt with it.
Mr Beer: You see the way that Mr Tatford has expressed himself here –
Jarnail Singh: Mm.
Mr Beer: – would you agree that he is asking that enquiries be made of Fujitsu, the corporation, on both fronts, not enquiries be made of Mr Jenkins?
Jarnail Singh: Yes, that’s what he implied – well, that’s what he’s saying or that’s what he’s saying, but it doesn’t mean to say that we haven’t carried out internal enquiries. But I can’t tell you what we – how we went about doing that. I don’t know the answer to that question, I don’t recall. I mean, as to how we went about doing it.
But, certainly, if we had the information or we would have sought it, I suppose. But I don’t – I can’t answer that. I can’t give you, you know – so I don’t recall now, so many years ago.
Mr Beer: But on the separate issue of – let’s put aside what documents the Post Office has got going to each of these two points. When we turn to a third party, Mr Tatford is advising that the corporation be approached in relation to both issues, not that Mr Jenkins be approached in relation to both issues?
Jarnail Singh: Yes.
Mr Beer: Agreed?
Jarnail Singh: Yes.
Mr Beer: Can we go on, please, to FUJ00152887. We’re now at 27 January 2010. This is a communication from Mr Longman to Fujitsu, Penny Thomas in Fujitsu. Can you see he says:
“Our defence barrister has asked for all of Gareth’s replies in relation to the defence’s second 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 there’s some timing issues.
Again, why was Mr Longman, rather than you, communicating with Fujitsu as to the evidence that needed to be sought?
Jarnail Singh: That’s the Post Office system. That’s what we did. I mean, even the – certainly in private practice, I took – or the solicitor or his assistant, if you like, or his personal representative took the witness statements but in Post Office, ever since I’ve been there, it was always the Investigation Officer who did the – did that. And – but, in these circumstances, I don’t know. That’s – that’s what the process was.
Mr Beer: You’re not even copied in on this, so this is going on without your knowledge; is that right?
Jarnail Singh: Isn’t that – I can’t, I don’t, I mean, I’m not copied into this particular one. I don’t know whether he sent me anything else. I can’t recall, I don’t remember.
Mr Beer: Let’s go on to POL00053745. You can see that you’re the author of this memo.
Jarnail Singh: Mm.
Mr Beer: It’s addressed to Post Office Security, with a copy to the Investigator, Mr Longman. You say:
“I now enclose Counsel Warwick Tatford’s advice and would be grateful if you would kindly please deal with the outstanding matters with regard to the disclosure which the defence are seeking and should deal with it paragraph by paragraph so it is probably easier to deal with.”
Yes?
Jarnail Singh: Yes.
Mr Beer: So, essentially, you’re postboxing on counsel’s advice, saying “Can you, please, Investigator, deal with it all”?
Jarnail Singh: I think that’s – that’s how we – that’s what the process was. We didn’t – was to actually send the advice to the Investigation Officer not to – I mean, there’s certain bits he obviously couldn’t deal, which we would have dealt with or somebody else he could – who would have knowledge of. But that the way the system or the process worked. I mean, I can’t say any more than that but, I mean …
Mr Beer: You remember Mr Dinsdale had raised questions about the scope of the disclosure that the defence were seeking?
Jarnail Singh: Yes.
Mr Beer: You had commented that it was unreasonable and unnecessary. Then Mr Tatford had advised that these are the things you need to do. Where you say in the last line or the penultimate line, “Please advise Mark Dinsdale accordingly”, were you telling Mr Longman that he should feed back to Mark Dinsdale the response to his concerns of the parameters of the defence’s disclosure requests?
You weren’t responding to Mr Dinsdale yourself, “This what I think, this what counsel thinks about the disclosure requests, it’s going to tie up the department, it’s going to grind work to a halt”. You were saying, “Here’s the advice, you, Jon Longman, tell Dinsdale that’s the outcome”. Correct?
Jarnail Singh: I don’t know, I mean, at that particular moment in time, I don’t know where we were or what we were thinking but it’s presumably just a simple thing, “Well, look, Mark, I’ve got counsel’s advice, I’m dealing with it”, you know, just to keep him informed, and say “Well, look, it’s been dealt with” or “It’s in hand”.
I mean, I can’t tell you precisely. I don’t know the answer to that, as to, you know, what you’re asking me about that. But all I’m saying is that, you know, they presumably, both Investigation Officers – to say, “Look, Mark it’s been dealt with”, or, “I’m dealing with it”.
Mr Beer: So you faithfully sent on counsels’s advice to Mr Longman, yes, agreed?
Jarnail Singh: That’s what? Yes. I mean, yes, that’s what I’m doing.
Mr Beer: You’ll remember that Mr Tatford had advised:
“Our disclosure duties require us to ask Fujitsu whether they’re aware of any other Horizon error that has been found at any sub post office.”
Remember?
Jarnail Singh: Yes.
Mr Beer: If we just go back, please, to FUJ00152887, and scroll down. This email from Mr Longman to Penny Thomas in Fujitsu doesn’t include that question, does it?
Jarnail Singh: What question, sorry?
Mr Beer: Let’s try and look at two questions on the screen at the same time to try to help you. Can we have on the left-hand side POL00044557, and look at the second page of the left-hand document – sorry, third page. Can you read paragraph 7:
“I think 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.”
Yes?
Jarnail Singh: Yes.
Mr Beer: Then look at the email on the right-hand side: what was, in fact, communicated to Fujitsu.
Jarnail Singh: Yes.
Mr Beer: It doesn’t include that, does?
Jarnail Singh: What’s he attaching? “See attached below”, I don’t know – to be produced as … is that –
Mr Beer: That’s Professor McLachlan’s second interim report?
Jarnail Singh: Oh, yes, sorry. It’s not there. Yeah. I confirm. Yeah, I agree.
Mr Beer: That’s a significant omission, isn’t it?
Jarnail Singh: I – yes. Yeah.
Mr Beer: Prosecution counsel has said that “The prosecutor’s disclosure duties require us to ask Fujitsu whether they’re aware of any other Horizon error at any sub post office”, and that question is not asked there, is it?
Jarnail Singh: No, it doesn’t appear to be, no.
Mr Beer: All of this was going on without your knowledge, wasn’t it? You just weren’t involved in it, were you?
Jarnail Singh: I’m not copied in.
Mr Beer: Why was it going on without your knowledge?
Jarnail Singh: I’m not – I can’t answer that, I don’t know why. But that’s – I can’t answer that. I don’t know. I don’t recall.
Mr Beer: Can we go to POL00044553, please. This is your letter – if we just go to the last page, see you signed it off, go to the first page, please – of 27 January to the defence solicitor, Issy Hogg:
“Counsel is drafting his response to the Section 8 disclosure application.”
Turning to the request for further disclosure. Scroll down, please. You deal with the contract, training.
Over the page, please. You respond to investigations.
Scroll down, please, and scroll down again. Under “Horizon System”, you say:
“We can understand why you would want to see specific areas of the Horizon data. Your expert will want to check his theories against the relevant data. Your client will also presumably be able to direct you through specific types of transactions where she feels errors may have occurred. We do not understand how your expert will be assisted by being presented with a mountain of data covering five years.”
You say that:
“Horizon has undergone stringent testing before it was installed.”
Then, over the page, please, and then under 19, you say in the second part of it:
“The Investigation Officer Jon Longman said he is preparing to meet the Defence Expert with one or more representatives from Fujitsu to discuss technical issues and reach as much agreement as possible. This will obviously avoid much wasted time. Could you consider the point and revert back to [you].”
So you were making an offer that Mr Longman would meet the defence expert with some representatives of Fujitsu to discuss technical issues, correct?
Jarnail Singh: Well, that’s my instructions. It’s not something I arranged. It was something I was instructed to put forward.
Mr Beer: Who instructed you?
Jarnail Singh: Um –
Mr Beer: Would that be the Investigator?
Jarnail Singh: Um … um, that’s what it says. I mean, it wouldn’t be – I wouldn’t be doing it on my own back. It would be instructions come from The Investigation Security Team, via Jon Longman. As to who authorised it, presumably he has spoken to Fujitsu and who are happy to do it. So –
Mr Beer: Would your understanding – and, after all, this is your letter – be that such Fujitsu representatives who attended such a meeting would be attending the meeting in the capacity as operators of the system with some knowledge of it, or attending such a meeting as instructed expert witnesses?
Jarnail Singh: I don’t know what you’re asking me here. I mean, if you break it down a little bit, because this is years on. I mean, I’m trying to assist the Inquiry as much as I can. I don’t, you know, know the case now in as much detail as I did at that particular moment in time.
So if you break it up, then certainly I can help, otherwise I can’t recall as to precisely the nature of that communication as to – but I can tell you it would be something, you know, like any client instructing a solicitor to do, and that’s why I’m putting it forward to the defence solicitor.
Mr Beer: So can I take from that, that you would just relay instructions, you didn’t apply your mind what’s happening here: a defence expert coming in to the premises of the operators of our system and meeting them? What’s really going on here? In what capacity are these representatives from Fujitsu meeting this defence expert?
You would have just forwarded, essentially, what your instructions were?
Jarnail Singh: No. I don’t know what I did at that particular moment in time, it’s such a long time ago. But it certainly would have been discussed and considered. I mean, certainly Fujitsu wouldn’t allow any person just to enter. There would be certain conditions as to it and I think it may just be – I mean, maybe I shouldn’t really speculate.
I honestly cannot assist and help the Inquiry with that but, certainly, it would be considered. It wouldn’t be post and paste job saying “Well, look – you’re welcome to do this”. It’s not as simple as that.
Mr Beer: Okay, we’ll move on. 1 February, please. FUJ00152902. If we scroll down, please, so it’s over the page. Thank you. Jon Longman to Penny Thomas:
“At a pre-court hearing today, the judge ordered that all the dense requests for further information be answered by 4.00 pm on Monday, 8 February.
“Our solicitor in the case has asked that Gareth’s statement is completed by Wednesday of this week so that he and our barrister can examine the statement.”
Just stopping there: the solicitor in the case, that would be you, would it?
Jarnail Singh: Yeah, yeah.
Mr Beer: “Gareth’s statement needs to cover the following four points:
“1) Our defence barrister has asked for all of Gareth’s replies in relation to the defence’s second interim report to be produced as a witness statement.”
That’s essentially repeating the email we saw earlier.
“2) My barrister telephoned me yesterday evening and requested that I find out any information that Fujitsu may hold relate to an office called Callendar Square in Falkirk. Apparently, Anne Chambers, assistant specialist employed by Fujitsu, was cross-examined”, et cetera, et cetera.
“Our barrister would like Gareth to deal with this matter and expand upon whatever issue Anne Chambers raised at court.”
So you remember, that reflected paragraph 6 of Mr Tatford’s advice, agreed?
Jarnail Singh: Well, I – yes, yeah.
Mr Beer: Okay. Then, next, third:
“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 different from what Mr Tatford had advised, isn’t it?
Jarnail Singh: Yes, it is. Of course it is.
Mr Beer: What do you notice about the difference?
Jarnail Singh: In hindsight, yes, but at that moment, I don’t know what it was. But, certainly, you know, if you – I can’t recall word for word what that was but, if you bring the other one up and then you can see there is a difference, there is a marked difference.
Mr Beer: Let’s do the left-hand/right-hand side thing again. Left-hand side, POL00044557, page 3, paragraph 7.
Jarnail Singh: (The witness read to himself)
Mr Beer: Compare paragraph 7, left side, to paragraph 3.
Jarnail Singh: There appears to be something missing, isn’t there? I don’t know what?
Oh, yes. Yes. That Horizon error should have been in there, yes.
Mr Beer: Sorry, I can’t hear you?
Jarnail Singh: Yes, there obviously is a difference, yeah –
Mr Beer: What differences do you notice?
Jarnail Singh: Well, the Horizon errors. It doesn’t say anything about that, does it, Horizon system that Fujitsu were aware of? It doesn’t mention errors.
Mr Beer: Well, the first thing is that the advice from Mr Tatford is that it should be a request made to Fujitsu, yes?
Jarnail Singh: Yes.
Mr Beer: That’s been translated into a request for a mention by an individual, namely Gareth Jenkins. They’re different things, aren’t they?
Jarnail Singh: Now, I’m looking at it with the time, careful focus, yes.
Mr Beer: It’s a watering down, isn’t it?
Jarnail Singh: It shouldn’t have been but it did – it is what it is. To be honest, I – now that we got the time and being able to focus on it and you’ve certainly highlighted it, yes. But I can’t recall what we did at that particular moment or when – or the way it came back, or whether we did anything after that. I don’t know. But I can’t explain that to you. Or I – because I don’t remember. I don’t recall.
Mr Beer: Did you have any input into how the question was reformulated, that it was turned from a request to ask Fujitsu, the corporation, of whether it was aware of any other Horizon error in any sub post office to a request to an individual to mention if there are any known problems that Fujitsu are aware of?
Jarnail Singh: I don’t recall.
Mr Beer: You don’t recall whether you had any input into the reformulation of the question?
Jarnail Singh: That bit I obviously – that is, you know, Jon Longman’s email. But, certainly, I don’t recall what transpired after that.
Mr Beer: Do you agree that the request that’s now directed to Mr Jenkins has conflated the separate issues of a response to the defence expert report and the Post Office’s own response to the defence’s request for disclosure, in respect of which Mr Tatford had advised?
Jarnail Singh: So long – I can’t explain, because I haven’t got the details or – you know, 10 years on, 12 years on, it’s different. But, I mean, I can’t answer that, I don’t know to – to your question. I don’t recall and I can’t really answer that.
Mr Beer: Were you aware at the time of a prosecutor’s duties in respect of third-party disclosure or obtaining material from a third party?
Jarnail Singh: What, you mean internally or generally; how do you mean?
Mr Beer: I’m afraid I can’t express it any better than that, even if I rearrange the words in the sentence.
Jarnail Singh: I don’t – at the moment, I can’t tell you what the duties were. Maybe at that time, certainly I would have been but, I mean, to look at it in that much depth and detail now, I – I don’t know. I mean, the answer to that, I don’t recall where we –
Mr Beer: Would you agree that when a prosecutor is approaching a third-party, in order to assist it, the prosecutor, in discharging its disclosure obligations, it should explain to the third party that it is doing so and the importance of third party conducting enquiries itself that are both recorded and auditable in order that the prosecutor can then explain to the court what it has and hasn’t done to discharge its disclosure obligations?
Jarnail Singh: I can’t recall as to whatever you’re asking me; purely, at that time, I probably would – I would assume so, because I had been up to date with a lot of the legislation or a lot of the requirements, but I can’t answer to you now, moving on, because all the information you provided.
And now it’s completely different in the sense that I had the chance to look at it but even then I had – my head is not – the prosecution hat on it, or head on it, purely trying to assist the best I can the Inquiry.
Mr Beer: Would you agree that a prosecutor seeking disclosure from a third party should explain to the third party the nature of the duties that both it, the prosecutor and the third party, were under; give some guidance to it?
Jarnail Singh: I don’t know. I don’t recall as to what we – what the relationship is here within Fujitsu in partnership. I mean, as I say, I don’t – not got involved in the contractual or commercial side of the business, as to how we went about getting information of Fujitsu and – but, certainly, I – you know, years on now, I can’t tell you what I knew then or I didn’t know at that particular moment in time. So I can’t assist you any more than what I’ve just said.
Mr Beer: Do you agree that this watering down that we see here, essentially means that what was advice from counsel to ask a corporation whether it was aware of any other Horizon issue at any other sub post office, has been turned into a rather casual request to an individual that they might mention anything in their witness statement of problems of which Fujitsu was aware?
Jarnail Singh: Well, that’s what it appears to be but, as to what the reality was at that particular moment years ago, I don’t know. But, certainly, indeed, from the information you’ve given me, I can’t really give you much depth, detailed –
Mr Beer: In any event, this didn’t, on the face of it, amount to an instruction to Gareth Jenkins, as an expert witness in the case, did it?
Jarnail Singh: Well, as you said, that email is not copied to me, so I’m not aware as to what the – whether, you know, Gareth – well, he’s obviously saying Gareth Jenkins should deal with it but, certainly, I can’t give you any more detail than the fact that I don’t know.
Mr Beer: I mean, taking a step back, would you agree overall that what we’ve seen so far is that the Post Office appears to be proceeding on the basis that it needs some information from Fujitsu in order to disclose its obligations as a prosecutor by way of disclosure, and that has been conflated with a request being made to Mr Jenkins to provide a response to a defence expert report?
Jarnail Singh: I –
Mr Beer: That’s what it looks like, doesn’t it?
Jarnail Singh: Well, it looks that way but I can’t say for sure as to – a lot of the time, as the information comes, and then you look at it and you review it and then you, you know, flesh it out a little bit more. I mean, that’s our – some of the information is dealt with, but I can’t really assist you or the Inquiry any further than what’s in front of you.
Mr Beer: Can we move forward a few days to see when you become directly involved, to 5 February 2010, FUJ00122713. If we scroll down, please, can we see at the foot of the page your email to David Jones at 5 February, at 12.34, and you say, “Dear Mr Jones”, if we carry on down the page:
“I refer to our telephone conversations of 4 and 5 February 2010 with regard to the obtaining of 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, after your meeting this morning, if you could confirm to me when Mr Jenkins would be back to return to duty after his sick leave …”
There’s a court order with a deadline of the 8 February.
By this time, had you seen the exchanges of 1 and 2 February that we’d looked at earlier?
Jarnail Singh: I don’t know. I mean, I – I can’t recall as to where we are. You know –
Mr Beer: Just scroll down a little bit further. I think that’s the end. So this doesn’t appear to attach the chains that we’ve looked at earlier of 1 and 2 February, with communications from Mr Longman into Penny Thomas.
If we scroll back up to your email. It seems like you spoke with Mr Jones on 4 and 5 February.
Jarnail Singh: Yes.
Mr Beer: Why had you become involved at this stage?
Jarnail Singh: I don’t – I don’t – I don’t know, to be honest with you. I don’t recall as to – all I know is I’ve spoken to him and he’s – I’ve asked for help, assistance with somebody who can help and assist with the prosecution.
Mr Beer: Okay, if we scroll up, please –
Jarnail Singh: That’s about it. I mean, I don’t know the ins and outs of why not –
Mr Beer: – and look at Mr Jones’ reply:
“Jarnail,
“Thank you for your attached email – which I have now received!”
It looks like there have been some problem getting there:
“I met this morning with Gareth Jenkins who came [back] into the office briefly to meet with me. Gareth will help with this matter. His input will be coordinated by Penny who is responsible for delivery to [Post Office Limited] of support in the Security area.
“Ahead is a first draft of a statement from Gareth. I would like you to review it and indicate if it answers the questions in the detail you require.
“You will see that there are some areas where Fujitsu cannot deal with the Defendant’s expert’s criticisms as they are about [Post Office Limited] procedures or requirements and it seems evident that there will need to be a [Post Office Limited] internal ‘expert’ who can work with Gareth to deal with these areas.
“One concern is that [Post Office Limited] 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 would consider the need for this.”
So Mr Jones, the Head of Legal within Fujitsu, is saying, firstly, that Mr Jenkins is going to help you, he’s enclosing a copy of Mr Jenkins’ statement and asking you to look at it and see whether it answers the questions that you require in the right detail. There’s going to be some things that he can’t address, that there needs to be somebody from within the Post Office who can work with him to deal with those areas, but there’s a concern that transaction data hasn’t been requested and that’s surprising, agreed?
Jarnail Singh: Yes.
Mr Beer: Mr Singh?
Jarnail Singh: Oh, sorry.
Mr Beer: Yes?
Jarnail Singh: Yeah, that’s what it says.
Mr Beer: Okay. Can we look, please, at POL00029369. If we scroll down, please, your email at 3.39 on 5 February. I’m so sorry, scroll down a bit further. Thank you.
Your email sent by your secretary at 2.53 to Jon Longman and to Warwick Tatford. Can you see that?
Jarnail Singh: Yes.
Mr Beer: “Dear John and Warwick,
“Herewith statement from Gareth Jenkins. Just all of the press. Please let me have your comments and whether this is adequate for our purpose or does it require any additions before being served on the Defence.”
If we just scroll down a bit further, we can see that you sent them as well, Mr Longman and Mr Tatford, Mr Jones’ email that we just looked at, yes?
Jarnail Singh: Sorry, say that again? Mr Jones’ email?
Mr Beer: Yes, you’re forwarding, to Mr Tatford and Mr Longman, Mr Jones’ email. You’re giving them the first draft of the Gareth Jenkins statement?
Jarnail Singh: Yes, yes.
Mr Beer: You’re also giving them the text of Mr Jones’ statement, raising the four issues that I’ve mentioned. Yes?
Jarnail Singh: Can you put two – I don’t know. I can’t see the – yes, okay, yeah. Yeah.
Mr Beer: Then if we scroll up, please, and keep going. Thank you, stop there.
If we look at Mr Longman’s reply to you, same day at 3.39. He says:
“Jarnail.
“Points 2-4 have not been answered which I reproduce below.”
So he’s cutting in the request that he, Mr Longman, had made to Penny Thomas into an email to you and saying Mr Jenkins hasn’t answered them. We can see them cut in, points 2, 3 and 4. Point 2 is the Callendar Square bug in Falkirk, yes?
Jarnail Singh: Yes.
Mr Beer: Point 3 is:
“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.”
So what Mr Longman is telling you is that even the watered down request hasn’t been addressed by Mr Jenkins in his draft statement, agreed?
Jarnail Singh: Yes.
Then 4 isn’t relevant for our purposes.
Then if we scroll up, please – stop there – Mr Tatford replies to you the next day:
“[Mr Longman] sets out in his email below the extra matters I asked Mr Jenkins to look at.
“The areas where Jenkins says ‘for POL to respond’ should be deleted. These will lead only to a flood of further disclosure requests and I am afraid that Post Office will never respond.”
But let’s see what you did with Mr Longman’s response, FUJ00122729.
If you remember, you received the email at 3.39 from Mr Longman. You say to Fujitsu, ie David Jones and Penny Thomas and Gareth Jenkins:
“Dear David and Penny,
“On first glance points 2-4 have not been answered which I reproduce below.”
Then you cut in points 2, 3 and 4 from Mr Longman’s email; do you see that?
Jarnail Singh: Yes.
Mr Beer: “Please give this matter your urgent attention. Look forward to hearing from you.”
So you were going back to Fujitsu here and saying, “We’ve asked you to mention whether there are any known problems with Horizon of which Fujitsu is aware, and you haven’t answered the question”. Was that a concern to you?
Jarnail Singh: I don’t recall. I mean, I can’t give you any reply to that. I obviously considered it at that particular moment in time, I think, as you know, straightaway, in trying to put something together, because there is time constraints on it.
But I – you know, I mean – with these enquiries, with the papers, I haven’t had time to, you know, reconsider to the detail you’re asking me, so I am sorry, I can’t help you as to what you’re asking me, you know, years on, and –
Mr Beer: What we’ve seen is a defence disclosure request being sent to prosecution counsel, him advising that a course of action needs to be taken. That course of action being watered down. That being sent to Fujitsu and Fujitsu not addressing it. Then you writing to them and saying, “You’ve not answered our questions”, agreed?
Jarnail Singh: Yes, that’s what – yes.
Mr Beer: Again, still at this point and looking at the issue of your treatment of Mr Jenkins, in the emails we’ve seen, you are not seemingly instructing Mr Jenkins as an expert by reminding him or drawing to his attention of any of the matters that the Criminal Procedure Rules or the common law required, correct? That’s just not a feature of these email exchanges, is it?
Jarnail Singh: No, this is – yeah, agreed. Yes.
Mr Beer: Was it a significant concern to you that Mr Jenkins had not addressed the issue of whether there were any known problems in the Horizon system?
Jarnail Singh: Again, I don’t – I can’t answer that.
Mr Beer: Because it ought to have been, oughtn’t it?
Jarnail Singh: Sorry, I don’t know.
Mr Beer: You’ve got a defence expert saying there are problems with the Horizon system, you’ve asked somebody with expertise within Fujitsu whether there are known problems with the Horizon system and he hasn’t addressed it.
Jarnail Singh: I can’t answer that for –
Mr Beer: Did that position ever change?
Jarnail Singh: I don’t know. I –
Mr Beer: The question that Warwick Tatford had asked, whether in its original form or in its watered down form, was that ever addressed squarely and head on by either Fujitsu or Mr Jenkins?
Jarnail Singh: I can’t recall. I can’t give you yes or no answer to that.
Mr Beer: Did you press that point, “We need an answer, Fujitsu, to this fundamental question”?
Jarnail Singh: I don’t know. I mean, I haven’t read the papers – I mean the only thing is that what you supplied me in the – you know, the Inquiry papers. I – years on, I can’t ask – you know, I can’t answer that in detail.
Mr Beer: Would you have realised that, if Fujitsu revealed known problems with the Horizon system, that would be significant information, not only for this prosecution but for a number of prosecutions?
Jarnail Singh: Of course it would be.
Mr Beer: It could bring an end to prosecutions?
Jarnail Singh: Yes, it – well, if there is problems and an error, it should bring an end to prosecutions. We shouldn’t proceed with it.
Mr Beer: So it’s a point that needs to be pressed hard, isn’t it?
Jarnail Singh: But I – as I say, I’m not the only lawyer dealing with these cases. Certainly, you know, if I’m aware of something like that, then, yes, it should be. Should be, yes.
Mr Beer: Can we move on, please. FUJ00122731. This is still later in the day, on the 5th, 4.28 pm. You to Fujitsu again, Jones, Thomas and Jenkins:
“Dear David,
“Please also get Gareth Jenkins to comment on the enclosed report.”
That’s the third McLachlan report, with a deadline of Monday, 8 February. So I think you’re sending this at 4.30 on a Friday, by the look of it.
Jarnail Singh: I have no idea as to what day it was.
Mr Beer: Well, if Monday was the 8th –
Jarnail Singh: Well, I – probably –
Mr Beer: The 5th would have been the Friday, wouldn’t it? Yes?
Jarnail Singh: I don’t know but if you say so. I agree with you.
Mr Beer: Let’s work out.
Jarnail Singh: No, no, you don’t have to work it out. If you say so, it must be –
Mr Beer: I don’t want to get to the stage in asking you questions of how a calendar works, Mr Singh.
Jarnail Singh: No, if –
Mr Beer: You oughtn’t to be so suspicious of me that if I tell you that Friday was the 5th –
Jarnail Singh: No, I’m not suspicious, I’m just saying – well, years on. I can’t tell you the reason why but, certainly, I’m trying to get the –
Mr Beer: Do you agree that Friday was the 5th?
Jarnail Singh: Yeah, yes I agree.
Mr Beer: Excellent.
Jarnail Singh: Fine.
Mr Beer: So Saturday would be the 6th, wouldn’t it?
Jarnail Singh: Must be.
Mr Beer: Sunday would have been the 7th?
Jarnail Singh: Yes, agreed.
Mr Beer: Good.
Jarnail Singh: Presuming Monday was –
Mr Beer: You were sending a request at 4.28 on a Friday to Mr Jenkins, saying there’s a court deadline for you to respond to this by 4.00 pm on the Monday, weren’t you?
Jarnail Singh: Well, that’s what the court deadline – I’m stating a fact. I can only deal with what I have – and I’m certainly – my habit is that whatever matters in front of you, you deal with it as much as you can, I mean, instead of going backwards and forwards. You know the – it’s – a Friday, but, you know, whatever it is, I’m highlighting what we need to do, but –
Mr Beer: Again –
Jarnail Singh: – whether is able to do it or not is another thing and then, presumably, we’d have to go back to the court and say, “Look, we couldn’t do it, we done all we can, please help”.
Mr Beer: Again, this doesn’t incorporate even the most basic elements of an expert instruction, does it?
Jarnail Singh: I don’t know what more do you want me to say. Obviously, it doesn’t –
Mr Beer: An answer to the question.
Jarnail Singh: No, it doesn’t.
Mr Beer: Thank you. Can we move on, please, to FUJ00122735. If we look at 4.57 on the Friday, Mr Jones says, “Please see attached”, and that’s Mr Jenkins’ comments on the third interim technical report:
“… and Gareth’s comments on the need for an examination of the underlying log files and timing on this.”
If we scroll down and see what Mr Jenkins said. He said:
“David,
“I’ve provided in line comments to the document as revisions. I’m happy for this to be passed on to [Post Office Limited] if you feel it’s appropriate.
“The simple answer is that without retrieving the logs, everyone 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 over two or three months] is very, very time consuming. This is not going to happen by Monday.”
Then he because for a copy of Mr Dunks’ witness statement.
So Mr Jenkins is pointing out to Fujitsu and, in turn, you that, in order to respond to Professor McLachlan’s interim report, the Post Office needed to obtain the underlying data, yes?
Jarnail Singh: Sorry, yes.
Mr Beer: Do you know why the underlying data had not been obtained?
Jarnail Singh: Well, I – certainly it’s been requested. As I said, there is a process in the procedure within the contractual commercial relationship in the Post Office. I think some of the emails I think we looked at yesterday, that’s been dealt with in the background which I’m not copied into, and I think Mr Jones, in turn, is dealing with somebody else within the Post Office, with regards to that, and –
Mr Beer: So this is 4.57 on a Friday with a court deadline of 4.00 on a Monday, with the Fujitsu employee saying “I can’t answer these questions without sight of the underlying transaction data”.
Jarnail Singh: Yes.
Mr Beer: Yes?
Jarnail Singh: Yes.
Mr Beer: Let’s go back in history, please. POL00052202. If we scroll down, please, thank you, an email from Mr Longman to you, of six months earlier:
“At the hearing on 14 July, the defence indicated they would be seeking the services of a forensic accountant to analyse the Horizon data as Ms Misra is now challenging the accuracy of Horizon. I have tried to obtain the data for the time Ms Misra was subpostmaster (3 years) but as you can see from the email from Dave Posnett there are number of issues.
“Please could you advise counsel of these issues and inform me as to what action to take … “
We can look at the Dave Posnett email, if you want, but …
So this six months earlier, Mr Longman raising with you obtaining access to the underlying Horizon data?
Jarnail Singh: Yes.
Mr Beer: Why hadn’t it been sorted out in the six months that had elapsed?
Jarnail Singh: Well, it’s gone off of my desk and landed on somebody else who can deal with it. It’s not a lack of trying; it’s the contractual commercial relationship, and also the authorisation and also as to obtaining of it. I mean, it’s not a – it’s not something – this is the – this is something within my remit.
If I – like I said, to you yesterday, if it was up to me, then certainly I’m not concerned with the – you know, the cost of it, because I’m as a prosecutor, and then a duty and obligation to provide it and the simple answer would have been to say “Look, you can’t provide it and, you know, offer no evidence”.
That’s probably where it’s – would come to, and I think, as you can see David Posnett’s letter – concern, he’s in a position whereby he’s concerned with one expect. You’ve got somebody else, the lawyers in the commercial and contract team, dealing with something else, and then you’ve got somebody else who’s in a position or role of requesting it.
So I’m not sure, you know, what are you asking me to do.
Mr Beer: I’m asking you why you sent a request on at 4.30 on a Friday –
Jarnail Singh: To?
Mr Beer: – to Mr Jenkins, essentially, asking him to opine on Professor McLachlan’s third expert report, and he says, “I need the underlying data”.
Jarnail Singh: Yeah.
Mr Beer: It was known for six months that the underlying data was something that was necessary to obtain. I’m asking, well, what had happened in the six months?
Jarnail Singh: I –
Mr Beer: It had been passed around people’s desks, is that the answer?
Jarnail Singh: No, the answer is it’s going through – the Post Office – you know, I can honestly say it works very slowly. But it’s not like a commercial organisation where I’ve been concerned with in private practice. It’s completely different way of dealing with it. I mean, certainly here, it’s – there’s processes, systems, contracts, commercial relationships. As a prosecutor, as a lawyer, you’re basically in other people’s hands.
Mr Beer: Okay, anyway –
Jarnail Singh: So I’m –
Mr Beer: – let’s go back to 5 February 2010, then, six months on. FUJ00152930, email at 5.10 on the Friday, David Jones to you:
“Jarnail
“This is an email that I received earlier from Gareth. You will see that he is clear that in order to answer counsel’s questions 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 …”
Then number 3 – you remember what number 3 is about, Mr Singh?
Jarnail Singh: Yes, yes.
Mr Beer: Whether there were any known issues or problems with the Horizon system of which Fujitsu is aware. He says:
“He [Mr Jenkins] is not currently in a position to make a clear statement. It is possible for there to be problems where transactions have been ‘lost’ in particular circumstances due to locking issues. When this happens then we have events in the underlying eventing logs to indicate there was an issue. Whenever we provide transaction logs to [the Post Office Limited] we check for such events. In the case of West Byfleet we have not been asked to provide any transaction logs and so have not made these checks.”
Jarnail Singh: Yes.
Mr Beer: Presumably you regarded that as a huge red flag?
Jarnail Singh: Well, obviously, yeah – as I said to you earlier, I explained to you what the situation was. There were problems in the background, which I wasn’t aware of.
Mr Beer: You’re being made aware here –
Jarnail Singh: Yeah, by –
Mr Beer: – by Fujitsu.
Jarnail Singh: – David Jones, yes.
Mr Beer: That they cannot say – they’re not in a position to provide a clear statement as to whether there were problems with Horizon or not.
Jarnail Singh: Yes.
Mr Beer: As a prosecutor, does it get any more significant than that?
Jarnail Singh: Well, no, but I mean, as I say –
Mr Beer: What do you do?
Jarnail Singh: I don’t know. I mean, I – I haven’t got the paperwork. I can only go by years on and with what you’ve provided me with. I mean, I don’t – I can’t see what I – this is, again, 5 February. There’s been lots of information going backwards and forwards trying to deal with it, so I can’t answer that, as to – well, obviously, you know, it’s important, and I think we have emphasised it, and then, I think, subsequently finally we do get them, don’t we, in March?
Mr Beer: I mean, presumably, at the very least, this kind of communication is something that you would want to ensure goes on a disclosure schedule, just at the very least?
Jarnail Singh: Is it not on the final disclosures? Not on the one on –
Mr Beer: So far as we can see –
Jarnail Singh: 7 –
Mr Beer: – this information was not disclosed.
Jarnail Singh: – September ‘10?
Mr Beer: Correct.
Jarnail Singh: That’s the final one. That’s not on there. Do you know who actually signed that off?
Mr Beer: I can check over lunch.
Jarnail Singh: Okay, please do.
Mr Beer: But – thank you very much – at the very least you would want to ensure that this would go on a disclosure schedule, wouldn’t you?
Jarnail Singh: Yes, essential. Yes, agreed.
Mr Beer: Did you say “essential”?
Jarnail Singh: Of course – you know, yes.
Mr Beer: The operators of the system are saying they can’t make a statement –
Jarnail Singh: Because –
Mr Beer: – a clear statement that there are no problems with Horizon –
Jarnail Singh: Yes.
Mr Beer: – or known issues with Horizon?
Jarnail Singh: Obviously there’s confusion, there’s mistakes, there’s errors, all sorts of things on here but it’s a big organisation. How do you control it?
Mr Beer: Sir, I wonder whether we could stop there, please, and come back at 1.50.
We’re finishing at 3.00 pm today, so I think we can do one session after lunch from 1.50 until 3.00.
I’ve informed the Core Participants who had submitted questions that the progress that I’ve made isn’t as swift as I’d intended, for one reason or another and, therefore, I would propose that I continue asking questions until 3.00 pm, that they defer any questions that they wish to ask of Mr Singh until when he returns on the next occasion next year.
Everyone, I think, has been agreeable to that.
Sir Wyn Williams: Any questions that you may still have will also be dealt with next year; is that right, Mr Beer?
Mr Beer: Yes, exactly. I’m afraid it’s taken me longer than I’d hoped.
Sir Wyn Williams: No, no, I follow. Could I just have confirmation from all the Core Participants that they’re content with that?
Mr Beer: Yes, there’s lots of nodding.
Sir Wyn Williams: Good. All right.
So we’ll break off until 1.50 and then we’ll go until 3.00, or obviously a minute or two beyond, if you want to complete some particular line of questioning, and then we will resume in the New Year.
Mr Beer: Thank you very much, sir.
(12.50 pm)
(The Short Adjournment)
(1.50 pm)
Mr Beer: Good afternoon, sir, can you see and hear me?
Sir Wyn Williams: Yes, thank you.
Mr Beer: Thank you.
Good afternoon, Mr Singh.
Can we turn to an issue that you raised before lunch, namely what was on the Schedule of Non-Sensitive Unused Material on 8 September 2010 – you called it the September 2010 schedule – and who signed it, and just close that issue off, if we may, by looking at POL00055217.
Can you see this is a Schedule of Non-Sensitive Unused Material in the case of Seema Misra?
Jarnail Singh: Yes.
Mr Beer: Would this be completed, ie the typing on it, in column 1, 2 and 3, by the Disclosure Officer?
Jarnail Singh: Yes.
Mr Beer: Would be comment column in column 4 be completed by the reviewing lawyer –
Jarnail Singh: Should be, yes.
Mr Beer: – in Legal Services?
Jarnail Singh: Yes.
Mr Beer: If we look at this schedule, if we scroll down to the foot, we can see it’s dated 8 September 2010 –
Jarnail Singh: Yes.
Mr Beer: – ie the one that you were referring to, and you asked whether the email exchanges that I was asking you about were on the Schedule of Unused Material, and I said “No, they’re not”.
So if we just look at the schedule to start with. If we scroll up, please. If you just scroll through all of those items, we can probably do this quite quickly.
Then scroll down. Then over the page. Scroll down.
You can see that no emails are referred to.
Jarnail Singh: No.
Mr Beer: So not just the ones I was speaking about at the time but no emails concerning liaison with Fujitsu or Gareth Jenkins over the commissioning or contents or parameters of his witness evidence are included, are they?
Jarnail Singh: No.
Mr Beer: If we go back to page 1, please. Whilst we’re here – we’ll come back to it later – but this Schedule of Unused Material does not contain any drafts of any of his witness statements, does it?
Jarnail Singh: No, it doesn’t, no.
Mr Beer: Did you know, in 2010, that there was an obligation under the law that had existed under the Code of Practice promulgated under the CPIA 1996 to disclose, as unused material, drafts of witness statements, where they were materially different from the served version?
Jarnail Singh: I can’t remember now, to be honest, but I would assume – I’ve been on the courses, I would have been aware. But I can’t – I don’t – I can’t recall it.
Mr Beer: Assuming that you were aware of that –
Jarnail Singh: I should have been, yes.
Mr Beer: – we’re going to see, later this afternoon, that there were a series of draft statements that pass through your hands, which were very materially different from initial drafts and, in particular, they contain drafting suggestions made by Warwick Tatford –
Jarnail Singh: Yes, Mr Tatford, yes.
Mr Beer: – and none of those were disclosed. How did that come about?
Jarnail Singh: Who signed this? Have I?
Mr Beer: You can see at the foot of it, it is signed by Mr Longman?
Jarnail Singh: No, but the reviewing lawyer, is it me? Because I know there was number of people dealing with it.
Mr Beer: Let’s start with how it was supposed to work.
Jarnail Singh: Yeah, please.
Mr Beer: The Disclosure Officer was responsible for collecting together the material –
Jarnail Singh: Yes.
Mr Beer: – and deciding, in the first instance, whether it required to be listed on this schedule or a sensitive schedule or not at all, agreed?
Jarnail Singh: Yes, agreed.
Mr Beer: They would submit the schedule to the reviewing lawyer?
Jarnail Singh: Yes.
Mr Beer: What function did the reviewing lawyer perform in relation to the schedule of non-sensitive material?
Jarnail Singh: Well, he needed to – well, certainly review all, every single information he has or he should have or, if he hasn’t, to get the Investigation Officer to get it over to him, or put it in the schedule for him, or – and then, having reviewed it, finally conclude that it’s on here.
Mr Beer: Would the reviewing lawyer sign it?
Jarnail Singh: If he’s happy with it, he would only sign it if he’s happy it’s all complete, yes.
Mr Beer: You’ll see the way this form is designed, that there isn’t an obvious place for the reviewing lawyer to sign. The signature that’s underneath “GRO” there is Mr Longman’s signature?
Jarnail Singh: Oh. Oh, is it? I don’t know. I mean, I presume there’s a reviewing lawyer, who need to – I don’t know whether I dealt with it, whether I signed it next to where this reviewing lawyer is.
Mr Beer: That’s what was supposed to happen, was it –
Jarnail Singh: Yes.
Mr Beer: – that it was signed next to the words “Reviewing Lawyer” to show that the two-person process of the Disclosure Officer, on the one hand, and the independent of the Disclosure Officer, the reviewing lawyer on the other, had each applied their minds to the contents of the schedule?
Jarnail Singh: Yes.
Mr Beer: So would you get copies of these documents here, 1 to 11 –
Jarnail Singh: Yes, yes.
Mr Beer: – when you got this schedule?
Jarnail Singh: Absolutely, yes.
Mr Beer: Right.
Jarnail Singh: It should be enclosed with it.
Mr Beer: So that’s what the Disclosure Officer is submitting to you, a schedule, plus a copy of the documents that are mentioned in the schedule?
Jarnail Singh: Yes.
Mr Beer: Yes? What about material that’s not mentioned in the schedule? How did the reviewing lawyer go about ascertaining what steps had been made to collate material, to decide whether it should go on the schedule?
Jarnail Singh: Well, you were meant to review the whole case and presumably make a list of what should be there. The matters just mentioned about the, you know, the drafting of the statement or the amending of it and, as you go through it, presumably you make a list and I think yesterday you enclosed in one of the documents as to what should be on it, plus – depending on the kind of case it is and, presumably here, we’re requesting a lot of information from Fujitsu, and it’s not forthcoming, and if those matters that, you know, underline the prosecution case and assist the defence, that’s the test.
And the fairness of the trial, all that needs to be requested, asked for, searched for and then subsequently listed before you sign it off or submit it to the defence.
Mr Beer: In this case, this wasn’t one of those cases where the investigatory work had been carried out by, and only by, the Investigator and the reviewing lawyer was not cited on any of it. We’ve seen from the email exchanges that we’ve looked at so far that you were included in a series of emails, which made it clear that you were in possession of relevant material?
Jarnail Singh: Yes. It’s on the file. It should be on the file.
Mr Beer: So why was that material not listed on the schedule?
Jarnail Singh: I honestly can’t say why but I don’t know – when was the actual information sent, the non-sensitive material in this schedule, when was it sent to the defence?
Mr Beer: Sorry, when was the non-sensitive material –
Jarnail Singh: It must have been served on the defence, if it’s been –
Mr Beer: I don’t know. At some point, presumably after 8 September 2010.
Jarnail Singh: Yeah, I know certainly this matter was dealt with – the other lawyers in the office, and I think around about that September ‘10, I was away for a long, long period. I wasn’t even in the country. That’s the reason why. I can’t really –
Mr Beer: So what did you do to tell the new lawyer, “Look, I’ve been party to dozens of emails in which the third party, Fujitsu, has been asked a series of questions, some of which they’ve answered, some of which they’ve declined to answer or feel unable to answer, that material needs to go on an unused schedule, here it is”?
Jarnail Singh: The person who would have dealt with it would have been my supervising officer –
Mr Beer: Who was that?
Jarnail Singh: Supervising officer.
Mr Beer: Who was that?
Jarnail Singh: You know, the Head of Criminal Law Team.
Mr Beer: Who was that?
Jarnail Singh: Rob, I think Robert, Rob –
Mr Beer: So he took over the file whilst you were away, did he?
Jarnail Singh: I think he always kept in eye on it.
Mr Beer: No, no. You’re talking about something different here, Mr Singh?
Jarnail Singh: Yes, he –
Mr Beer: You’re telling us –
Jarnail Singh: He took over for that period when I was away.
Mr Beer: When did he take over from?
Jarnail Singh: I don’t know. I think probably about end of August, beginning of October.
Mr Beer: Sorry, he took over from the end of August until the beginning of October?
Jarnail Singh: Yeah, I think I was away for a long, long period of about three or four months. I wasn’t even in the country. I had some things to sort out and I got the leave to go.
Mr Beer: Presumably you said, “Look, Rob, we’ve got all of this unused material here. I’ve got it, it’s on my file, it’s in my email inbox and outbox. Here it is, this needs to be listed on the unused”.
This is one of the cases I think we sat together, reviewed it constantly over a period of time. I think he was more of less up to date because it was one of those cases where I felt a lot comfortable with the fact that it’s been looked at, reviewed by the barrister who would deal with the trial, if it came to the trial, and subsequently my line manager. So if there was anything I overlooked, he would pick it up, and vice versa.
And that’s one of the reasons why the disclosure was dealt with in the way it did, in the fact that I kept the counsel, the barrister in the case, up to date with everything, and all seeking advice as the matter progressed because there’s –
Mr Beer: I’m asking you, Mr Singh, about what steps you took, to ensure, in this period of absence that you’re telling us about –
Jarnail Singh: Well, I –
Mr Beer: – hold on –
Jarnail Singh: Sorry, okay.
Mr Beer: – that the material you were in possession often, that undermined the prosecution case, was included on a disclosure schedule. What steps did you take?
Jarnail Singh: I think, firstly, the fact that I think he was – he was my line manager and top of it, that he – we were dealing with it, you know, together. And then I think before I left, I think we had the case for the – we had the date for the trial, and I think – I don’t know whether we sat together or he made notes or I actually dictated notes. I don’t know now exactly how this came about.
Mr Beer: Do you accept, Mr Singh, that it’s a serious dereliction of the prosecution’s duties –
Jarnail Singh: Yes, of course.
Mr Beer: – not to have included –
Jarnail Singh: Yes.
Mr Beer: – on this schedule or any schedule of unused material the email exchanges that we were looking at earlier?
Jarnail Singh: Yes, agreed.
Mr Beer: And a serious dereliction of the Prosecution’s duty not to include, on this schedule or any schedule, the draft witness statements of Mr Gareth Jenkins which were materially different from the signed version?
Jarnail Singh: Yeah, yeah.
Mr Beer: Your answer to that is essentially: “You need to ask Mr Wilson about them”?
Jarnail Singh: Yes.
Mr Beer: It’s not down to you?
Jarnail Singh: No, I accept that maybe I should have done more, but, certainly, in that particular period –
Mr Beer: What do you mean you should have done more?
Jarnail Singh: More in the sense that I should have had something – more in the sense that I don’t know, made everybody aware of it, maybe I should have listed it, I don’t know but I think I sat with him, almost constantly and also I think he more or less, on and off, took over the case to have a look.
I think he was reviewing it all the time, I don’t know whether he made notes of it but it’s such a long time ago, I can’t recall exactly what –
Mr Beer: Thank you, that can come down.
Can we return to another issue that we addressed before lunch, the extent to which you treated Mr Jenkins as an expert.
Jarnail Singh: Yes.
Mr Beer: Remember, I showed you some emails after the event from, I think, 2012/2013, which referred to you having instructed him as an expert. Can I just look at some material that bears on that issue from a different angle.
Can we start, please, by looking at POL00045565. If we look at the second page, please, it’s a note from Warwick Tatford. If we go back to the first page, it’s an attendance note for a mention on 7 May 2010.
Jarnail Singh: Yes.
Mr Beer: Can you see that?
Jarnail Singh: Yes.
Mr Beer: If we look at the third paragraph, please, if that can be blown up, please:
“The Judge was prepared to break the fixture because it had been fixed without the knowledge of Keith Hadrill’s dates to avoid [he was defence counsel]. The Judge ordered that the experts should compile a schedule of their points of agreement and disagreement. No further directions were made”, et cetera.
You would have known by the time of receipt of this document that the court was regarding Mr Jenkins as an expert, agreed?
Jarnail Singh: Well, that’s what it says, yes.
Mr Beer: No, you would have known personally that, by the time of receipt of this document, 7 May 2010, the court was treating Mr Jenkins as an expert, agreed?
Jarnail Singh: That’s noted by our counsel. I mean, presumably he was at the hearing and he –
Mr Beer: Yes, but he was giving you a note of what happened at the hearing?
Jarnail Singh: Yes, yes, he –
Mr Beer: The judge is referring to the “experts”, plural, compiling a point of “their points”, plural, of agreement and disagreement. So you would know that, by this time, the court was treating Mr Jenkins as an expert, agreed?
Jarnail Singh: Agreed, yeah.
Mr Beer: So when, in your witness statement – do you remember those two paragraphs that I showed you first thing – you said “I didn’t regard Mr Jenkins as an expert but the court did”. You would have been referring, there, to at least this point onwards, wouldn’t you: May 2010 onwards? You knew the court was treating Mr Jenkins as an expert?
Jarnail Singh: What can I say? I certainly – that’s what the court –
Mr Beer: Yes, so what did you do from May 2010 onwards to ensure all of the things that I mentioned this morning that a prosecutor must do in relation to an expert were done?
Jarnail Singh: I – as I say, I obviously –
Mr Beer: None of them?
Jarnail Singh: – in error.
Mr Beer: Is the answer none of them?
Jarnail Singh: None of them, yeah.
Mr Beer: Why did you do none of those things?
Jarnail Singh: I cannot tell you. Obviously, you know, it’s my fault. I take responsibility that I should have done, which I didn’t, for some reason or another. I don’t know. I can’t explain it to you now but, certainly, we would have been aware of it because of the note, and certainly – certainly, at some stage, maybe even in the conference or beforehand, we should have done something about it in order to comply with it, and we didn’t.
Mr Beer: Can we move on to POL00054763. You’ll see this your own attendance note.
Jarnail Singh: 18 May?
Mr Beer: Yes, so 11 days later. You say:
“The Defence had the case listed for mention at Guildford Crown Court on 7 May as they were unable to serve the full Defence Expert’s Report by the 28th as directed by the court.
“At the mention hearing at Guildford on 7 May, the matter was heard by the Resident Judge [I think that’s meant to be Critchlow] who ordered the defence to serve a full and proper Defence Expert’s Report on the prosecution and then the two experts to meet to agree a point of agreement … listed the trial for 11 October.”
So this is in your own hand, a note for the file, where you are recording Mr Jenkins as being one of two experts, aren’t you?
Jarnail Singh: Yeah. Well, clearly.
Mr Beer: Again, at this time, what did you do to ensure that all of the duties and obligations that you owed as a prosecutor were complied with at this time?
Jarnail Singh: I – in error or oversight, I didn’t. I should have done.
Mr Beer: Can we move on to POL00055118. Attendance note in your hand, again, 28 July 2010:
“Telephone call received from Warwick Tatford of Counsel in this case. After discussion he confirmed that they are seeking exactly what they were seeking before and to respond to the Defence that if they wish to disclose these items they need to make a Section 8 application to Court and that also 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.”
So here you’ve got your counsel referring to Mr Jenkins as “our”, ie the Post Office’s, expert, yes?
Jarnail Singh: Well, yes, that’s what it says, yes.
Mr Beer: What did you do at this time, July 2010, to ensure that the duties and obligations that we went through earlier were complied with?
Jarnail Singh: I’m sorry, it’s obviously been an oversight. I mean, certainly, I was – it’s there in black and white and should have been done and wasn’t done.
Mr Beer: Can we move to POL00001882, please, and scroll down, thank you. This a joint statement of areas of agreement and disagreement prepared by Gareth Jenkins and Professor McLachlan; can you see that?
(No audible answer)
Mr Beer: If we go over the page, please, and go to the last page, and just scroll down, thank you. You can see it’s dated 11 October 2010, so just shortly before trial.
If we go back to page 2:
“This document comprises a schedule of agreement”, et cetera, et cetera.
Jarnail Singh: Yes.
Mr Beer: So this is, would you agree, the kind of schedule of agreement and disagreement that one commonly sees in cases involving expert witnesses?
Jarnail Singh: Well, as I said, this is the first experience of any of this nature, yes. Agree.
Mr Beer: When you saw this, did you think “Well, hold on a moment, Mr Jenkins isn’t an expert, he’s a lay witness of fact. What’s he doing signing off an expert schedule of agreement and disagreement?”
Jarnail Singh: I don’t – I can’t recall what I was thinking at the time, certainly all that was referred to the counsel and also my line manager. I don’t know, nobody is – it’s down to me, I agree, I should have picked it up and done something about it.
Mr Beer: Do you agree that that’s a serious dereliction of your duties as a prosecutor?
Jarnail Singh: Yes, yes it is.
Mr Beer: Thank you very much, that can come down.
Picking up where we left off before lunch, we were looking at the email that Mr Jones, the Head of Legal at Fujitsu, had sent you on 5 February 2010. Perhaps if we just remind ourselves of that, FUJ00152930. Do you remember we were looking at this before lunch, and it’s this critical issue of what started as paragraph 7 of Mr Tatford’s advice about getting out of Fujitsu known or recognised errors or issues within the Horizon system; the watering down, as I’ve called it, of that request; the putting of that to Fujitsu and Mr Jenkins; and the reply coming back, “He’s not currently in a position to make a clear statement”.
Jarnail Singh: Yes.
Mr Beer: Can we just look at the draft witness statement that was attached to the emails, by looking at FUJ00122723. If we look at page 2, please, can you see that Mr Jenkins internally says, ie to Mr Jones and Ms Thomas:
“Brief responses as follows, but not sure that I should put them in a Witness Statement.”
Then number 3:
“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”, et cetera, et cetera, which was cut into the email that you yourself received.
Then if we scroll up, please, and a little further. You can see that is indeed forwarded on to you; can you see that?
Jarnail Singh: Yes.
Mr Beer: What did you think when you read that Mr Jenkins said he was reluctant to make a clear statement over whether there were known issues or problems with the Horizon system?
Jarnail Singh: Sorry, say that again? Sorry.
Mr Beer: What did you think when you received a communication which said that Mr Jenkins was reluctant to make a clear statement over whether there were any known problems with Horizon?
Jarnail Singh: I don’t – I – I don’t – I don’t know. I can’t think now as to what – what I was thinking at that time or what we did about to deal with it.
Mr Beer: What about what is said there: “It is possible for there to be problems where transactions have been lost in particular circumstances due to locking issues”? What further information did you seek from Mr Jones, or Fujitsu more generally, as to what this problem was and what the background to it was?
Jarnail Singh: I honestly don’t know. I mean, I don’t know what it was because I haven’t got the whole file. And, certainly, you know, I was working with other people, I would have sought advice as to what directions we take from there. Certainly, you know, the barrister, working alongside of me, together with the head of the Criminal Law Team.
I mean, I – as I say, this is the first case of this nature, that’s why I wouldn’t have done these – taken that case on by myself, I would have had other people working alongside with me. And it was that period, I think in that year, where I think I took time off, certainly, and we had our Head of Criminal Law Team working alongside me who was caretaking while I was away.
Mr Beer: Did you take any steps to understand what the issue was with Horizon, which could cause transactions to be lost?
Jarnail Singh: I don’t recall. From what you – this is the only thing or whatever you’ve given in your – you know, the papers you’ve submitted to me, apart from that, I can’t really add any more.
Mr Beer: Given that your counsel, Warwick Tatford, had originally advised the Post Office in relation to its disclosure obligations to ask Fujitsu whether it was aware of any other Horizon errors that had been found at any sub post office, and this information was conveyed in response, did you take any steps to ensure that the Post Office met its disclosure obligations in relation to at least this information?
Jarnail Singh: I don’t recall. I mean, I don’t – I can’t – I don’t know, I haven’t got the full information in front of me as to what steps we took.
Mr Beer: We’ve seen on the disclosure schedule that there is no mention of any document exchanged with Fujitsu, nor any email exchanged with Fujitsu. There’s no disclosure on the unused schedule of any communications with that third party provider, is there?
Jarnail Singh: Not on that schedule. Should be. Should have been.
Mr Beer: So this is 5 February. Can we look, please, at POL00054162, your email of 22 February to Warwick Tatford and Jon Longman, and you say:
“Herewith my replies to the Defence’s third [schedule]. I would be grateful to Jon if he could read through all the replies but in particular … detailed responses to [a list of them].
“… responses by end of business today so [you] can forward on to the Defence Solicitors.”
Then at (2) you proposed to say to Issy Hogg:
“We are well aware of our statutory duty of disclosure. As you know, the prosecution have reviewed a large volume of material. The only material disclosable is Callendar Place [I think you meant Callendar Square]. As we know Mr Jenkins is making full investigations so the position can be ascertained.”
The information that you received from Mr Jenkins via Mr Jones and Fujitsu was not disclosed by you in this proposed communication to the defence solicitors, was it?
Jarnail Singh: I don’t recall.
Mr Beer: Well, it’s not there, is it?
Jarnail Singh: Can I just stop for five minutes and have a chat with my solicitor on this, if it’s possible, sir?
Sir Wyn Williams: Well, that’s a rather unorthodox request, in the sense that witnesses don’t normally have a chat with their solicitor –
Jarnail Singh: Well, advice, then, because –
Sir Wyn Williams: If it relates to the warning I gave you at the beginning of your evidence about self-incrimination, then I will permit it. Does it relate to that?
Jarnail Singh: Well, sir, to a degree, because this information is very old and I – you know, you’re 12/13 years on. I have not seen the file. I’ve been away from this type of case. Even the – my honest belief as to the previous questions asked of me by your Inquiry counsel, as to whether that – as to whether Mr Jenkins was expert or not expert, again, there’s a lot of information, isn’t solely down to me because it’s sort of done by the whole team, because of the nature of the case and because of this being the first of Post Office cases where the matter has gone –
Sir Wyn Williams: All right. Hang on, Mr Singh.
In the circumstances that are developing, Mr Beer, can you think of any cogent reason why I should refuse Mr Singh’s request?
Mr Beer: Sir, I think there needs to be a limitation placed upon it because the –
Sir Wyn Williams: I think the limitation, in reality, will be that I will limit it to five minutes, Mr Beer.
Mr Beer: Yes, because the – I wasn’t thinking in terms of time; I was thinking in terms of content.
Sir Wyn Williams: I know. I was simply observing that, if I limited it in time, the content is likely to be limited as well. But maybe that’s too pragmatic.
Anyway, all right, is anyone else representing a Core Participant? Does he or she wish to provide a cogent reason why I shouldn’t accede to this request?
Mr Beer: No, I’m getting shakes of heads from Post Office, Howe+Co, Hudgells, Fujitsu and Gareth Jenkins’ representatives.
Sir Wyn Williams: Right.
Mr Beer: It is just HJA, I think, are thinking about it.
Sir Wyn Williams: Mr Singh, I’m going to afford you five minutes, literally. I’m going to specify, since it arose in relation to this document, that the discussion must relate only to the document which is now on the screen and, in particular, the highlighted part at paragraph 2, and anything which bears upon that in relation to self-incrimination. All right?
So with those words, what’s the time now, Mr Beer?
Mr Beer: It’s just gone 2.25. Shall we say 2.35, sir?
Sir Wyn Williams: Yes, 2.35 we will return, all right. So you need to get your skates on, Mr Singh. All right.
The Witness: No problem.
Sir Wyn Williams: Thank you.
(2.26 pm)
(A short break)
(2.35 pm)
Mr Beer: Sir, can you see and hear us?
Sir Wyn Williams: Yes, I can, thank you.
Mr Beer: Mr Singh, is there anything you wanted to convey to the Chairman, having had –
Jarnail Singh: No, sir, thank you, sir. Thank you for the time. It was just to clarify my head. I think I needed the time.
That’s fine, that’s okay. Can you ask the question again, and I can –
Mr Beer: Thank you. This draft communication to the defence solicitor, Issy Hogg, was to tell her that you, the prosecution were:
“… well aware of our statutory duty of disclosure. As you know, the prosecution has reviewed a large volume of material. The only material disclosable is Callendar Place …”
My question was: why did you not reveal the information that Mr Jenkins had provided you through Fujitsu about a known problem which caused transactions to disappear or to be lost?
Jarnail Singh: This to Mr Warwick Tatford and Longman, isn’t it?
Mr Beer: Yes, it’s a draft email.
Jarnail Singh: Draft email. I’m working alongside the counsel but I don’t recall or remember this. I can’t answer. I don’t know the – I don’t recall.
Mr Beer: Do you agree that the information that you had received should have been revealed to the defence? I think you’ve agreed that already, in fact, before the break. But do you agree that it should have been revealed in this response to the defence?
Jarnail Singh: Again, it’s such a long time ago. I am trying to – a lot of it is basically since I’ve left doing this sort of work, it’s just – it’s unmanageable, the amount of material that I had. Certainly, I do not remember, I do not recall. I can’t really assist the Inquiry any more than that because it’s not something that I would have retained to give you an answer for. So I don’t remember, I don’t recall.
Mr Beer: Can we look, please, at POL00054185.
Can we see the email that, in fact, went out from you to Issy Hogg, and can you see numbered paragraph 2 of it is in exactly the same terms?
Jarnail Singh: Yes.
Mr Beer: You’d been told by this stage that there was a known problem with Horizon causing transactions to be lost. Why not tell the defence?
Jarnail Singh: I don’t know. I don’t – I don’t recall as to where we are at that particular moment in time. I think it’s 24 February ‘10, so I don’t recall. I can’t assist any more than that.
Mr Beer: Let’s move on. FUJ00122808. Mr Jenkins on 8 February is emailing you directly, copying in Penny Thomas and David Jones, and he says:
“Attached is a new witness statement saying what I don’t know about Falkirk [that’s Callendar Square] and also comments on the third report.”
Can we look, please, at the draft statement POL00001569. Can you see Mr Jenkins’ draft statement here, attached to that email to you?
Jarnail Singh: Yes.
Mr Beer: He says, if we just scroll down a little bit:
“I have been asked if issues found at Callendar Square Post Office in Falkirk could have caused the discrepancies in Seema Misra’s case. 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.”
So the witness from Fujitsu is saying, “I don’t actually know about the one problem with Horizon that has been disclosed to the defence”, isn’t he, “but I’m going to try and find out”?
Jarnail Singh: I don’t – the – I think – I can’t really recall. I cannot really say. It’s just too minute details in this moment in time. I don’t know what I was thinking at that particular moment. I don’t recall most of what you asked me this afternoon, purely because I have been given a lot of information, and I’m not at a time and place and age to be able to digest all that and say to you one way or the other.
I mean – so I don’t know, I don’t recall and I don’t remember. So that’s all I can assist you with. I don’t remember any of that as to how we dealt with it or why we dealt with it. It’s just I don’t recall, and I think, at the end of today, what I’ve done is I’ve had a second set of eyes looking at it all the time, or even third set of eyes. You’ve got the Head of Criminal Law Team and you’ve got the barrister looking at it, purely because it’s something we have never experienced before and it’s the first time, I think, the Post Office have gone through this sort of process and system. So that is one of the reasons why I’m copying everything to the counsel, who is well experienced and knowledgeable, together with the Head of Criminal Law Team who had, I think been in practice since 1980. So I am –
Mr Beer: You sent this to the Head of Criminal Law, did you?
Jarnail Singh: He was part and parcel of the – working alongside me. I mean, it’s not something that I’d done alone.
Mr Beer: Have you decided, since the break, to come back and say, “I don’t recall, I don’t remember”.
Jarnail Singh: No, absolutely not. I mean it’s something, you know, 10, 12 years ago, I’ve not been in practice. I’ve been doing other things. I’ve, you know – you work hard early on to be able to enjoy life at certain stage, and I have been. And I – it’s not not wanting to assist the Inquiry; I think that’s never been my intention, and I have been very clear.
I think maybe on the first day I was a little bit nervous because – I was nervous in the sense that I’ve been out of practice but I think slowly, slowly, I’ve been able to slow down, understand what you are asking, and I’ve – in those circumstances, I’m trying to assist. I do not recall this, and I would not recall to it this much detail at this stage in my life and in my career. Because I’m not a prosecutor, any more, and I have not been for the last, you know, 12 years or so.
And I can rest assure this has been done with a barrister on one side and the Head of Criminal Law on the other, plus a principal lawyer, and I think –
Mr Beer: Who was the principal lawyer who was also –
Jarnail Singh: Juliet McFarlane.
Mr Beer: She was being copied in on all these emails too, was she?
Jarnail Singh: She had the files on and off.
Mr Beer: What do you mean she had the files?
Jarnail Singh: Well, the files was, well, basically shared in that respect.
Mr Beer: How were they shared?
Jarnail Singh: Well, the shared – I think there’s an email subsequently, we will see, that she dealt with various aspect of it because the fact that she was senior, she would take up various matters alongside it, which I was agreed –
Mr Beer: We’ll maybe get to that email that you do remember a little later.
Jarnail Singh: Yeah, sorry. But you can rest assured it was not a sole – it was a team effort in effect because I wasn’t comfortable dealing with it alone because, you know, it’s like requesting information, time to understand it. That’s one of the reasons why the barrister, I think you will – he’s always been copied in, purely because you had to have his advice –
Mr Beer: I haven’t challenged you on that at all. I haven’t challenged you that many of these things were run past Warwick Tatford. What you’ve just told us, that this was a team effort, by that do you mean: decisions not to disclose what Gareth Jenkins had informed you, there was a collective decision not to disclose it?
Jarnail Singh: No, not at all. What I mean is that – it’s not a collective decision not to disclose it. For some reason or other, I do not recall what we did or what we didn’t do, but that is the position. I can’t, 12 years on, assist you, purely because I don’t recall. I don’t remember.
Mr Beer: Can we move on, please, to POL00054056, the same day now at 3.09. You send Mr Jenkins’ witness statement of 2 February and his witness statement of 8 February to Warwick Tatford and the Investigator, Jon Longman. Can you see?
Jarnail Singh: Yes.
Mr Beer: You say that you’ve served them on the defence, yes?
Jarnail Singh: Yes.
Mr Beer: So, at this point in time, 3.00-ish on 8 February, would you agree that the only instructions that the Post Office had given to Mr Jenkins were those that were set out in the email from Jon Longman that we saw earlier, “Please comment on the witness statement or the expert report of Professor McLachlan, versions 2 and 3”, and asking him to address his written points 1 to 4. That’s the only form of instruction that Mr Jenkins got, agreed?
Jarnail Singh: I don’t – I don’t recall. I mean, I don’t know. I mean, I – unless I revisit the whole paperwork from the beginning to the end, and we put the clock back, you know, to the year 2010, I can’t really assist you one way or the other what we did or didn’t do.
Mr Beer: On the documents we’ve seen, the only form of instructions that Mr Jenkins got were requests to comment on Professor McLachlan’s reports 2 and 3 and to address the four issues mentioned in the Jon Longman email?
Jarnail Singh: Well, that’s what we’re trying to correlate is to get the two gentlemens together to work out where we go from here. I mean, certainly, there’s no intention on any of it, that’s the practical approach to it, and, as far as to where we are, at that particular moment in time now, I can’t – I don’t – I don’t recall it and I don’t remember anything. So I don’t recall on that. I can’t assist you any further.
Mr Beer: Would you at least agree that neither of the witness statements that Mr Jenkins had provided at this time in draft incorporated the necessary elements of an expert report?
Jarnail Singh: I – which – well, as I said to you, my – it’s obviously been overlooked. You showed me the, you know, the court’s decision and my own attendance note, but I – at that time maybe it’s overlooked, it’s pressure of work, or whatever it is. I’m sorry it wasn’t done, but I –
Mr Beer: As a matter of fact, it wasn’t done though?
Jarnail Singh: Yeah.
Mr Beer: So, by this time, you’re serving two witness statements in ordinary form on the defence and, by that time, neither of those witness statements incorporated the necessary elements of an expert report, the things that we discussed this morning?
Jarnail Singh: Well, I think he was – well, I – it was 8 February ‘10, he wasn’t considered to be – he’d just walked in to get everybody to understand the system itself because he’s a specialist. It’s a special system and he’s the specialist able to assist the prosecution, the defence and the court.
So I can’t say more than that. I mean, presumably, now you’ve pointed it out, there would have been – I mean I – again, you know, it’s – in time, I didn’t know – you know, well, maybe it was overlooked by everybody concerned, as there was a number of people involved in it, that we should have done what was required of us.
So it’s not anything more than that but he was brought in purely because he was a specialist looking at special system which he was the best person to assist the court, the prosecution and the defence.
Mr Beer: That can come down. Thank you.
Can we move on to the 9 February, POL00054085. If we scroll down, please – sorry, over the page. Sorry, scroll up a little bit, please. I think that must be an errant reference. I’ll move on.
FUJ00152979, please, 22 February. You’re writing directly to Mr, Jenkins, saying:
“Thank you for providing the two witness statements in the case. I have given your details to the defence expert Alistair McLachlan to contact you with a view to discussing the issues in the case …”
Just stopping there, the document that I was trying to show you was you sending Fujitsu Mr Jenkins’ contact details, and you’re confirming here that you’ve done so. You continue:
“… with a view to discussing the case further and analysing the data as discussed. I’d be grateful if you can confirm whether he has been in touch with you and you have arranged a mutually convenient time for a meeting. Got to be sun as soon as possible in view of the trial date of 15 March at Guildford Crown Court.”
Do you agree that you provided no instructions to Mr Jenkins as to how he should approach this discussion with Professor McLachlan?
Jarnail Singh: Well, it was a mutual meeting into Mr – the defence expert been – I don’t know, averse with the system – with a view to discussing the system, more than that. Our guy’s the expert in the system, in the sense that his expertise are specialist in the system, and he’s more or less bringing the defence expert up to date as to trying to get him to understand the system itself.
I think it’s no more than that. I don’t know what instructions I gave. I don’t remember or I don’t recall exactly now, in detail, what this meeting is and what I am asking him to do or what –
Mr Beer: You don’t tell him what you’re asking him to do, do you?
Jarnail Singh: I don’t remember what – I think this meeting came about purely because these gentlemen, I think, either met together or they wanted to get together, to really set out what they’re going to discuss. I mean, I don’t know, prepare some sort of agenda, but certainly I do not recall what my involvement in this was, involvement in –
Mr Beer: Well, it was you sending an email to Mr Jenkins saying, “Have you had a meeting”?
Jarnail Singh: I don’t recall exactly where we are with it because, to be honest, the amount of minute detail you’re going at, at this moment in time, I can’t assist you because I don’t – the time is – you know, so much time has passed from there to know, that I don’t really be able to assist you more than I can –
Mr Beer: Do you agree Mr Singh that you failed to tell Mr Jenkins: (a) how he should approach the discussion with Professor McLachlan; (b) in what capacity he was instructed to conduct the discussion with Professor McLachlan; (c) what issues the discussion should cover; and (d) importantly, what records should be made of the discussion?
Jarnail Singh: I don’t recall any of – any of that, but I –
Mr Beer: Why didn’t you do any of those things?
Jarnail Singh: I don’t recall. I don’t know what these circumstances, the way their meeting was set up, was it a preliminary one just to see – just to get him to understand the whole system or not. I mean it wasn’t –
Mr Beer: Well, even if it was a preliminary one, to get him to explain the whole system, he would say, “This is just a preliminary meeting to explain the whole system, don’t go beyond that for the moment, Mr Jenkins, but please ensure that a record is made of what you say to the defence expert, because that will be disclosable in due course”.
Jarnail Singh: I –
Mr Beer: You must have known that least, Mr Singh?
Jarnail Singh: I don’t recall. I mean, I don’t recall as to how these circumstances came about and I think –
Mr Beer: The circumstances came about that you sent Mr Jenkins’ contact details to the defence and then you sent Mr Jenkins an email saying, “Have you had a meeting yet?” They are the only circumstances.
Jarnail Singh: Well, I think it’s in agreement with the defence that they wanted this meeting, purely because in order to assist them to defend their client. I can’t – I don’t know any more than what I’m telling you. I don’t recall what happened, what didn’t happen.
Mr Beer: Can we turn, please, to POL00093946. This is an application, dated 24 February, if we go to the last page, please. 24 February 2010 settled by Keith Hadrill of Furnival Chambers. If we go back to page 1, please. It’s an application to stay the indictment against Mrs Misra on Count 1 of the indictment, on the grounds of abuse of process.
Jarnail Singh: Yes.
Mr Beer: If we just scroll through it so you get some context. Look at paragraph 2, which tells us the background.
Jarnail Singh: Yes, yes.
Mr Beer: Paragraph 3, which tells us what the case is.
Jarnail Singh: Yes.
Mr Beer: If we move on to paragraph 4, please. Then 4, 5 and 6 tell us about the back history. Just stopping there, Mr Hadrill says:
“The case was called on for trial in May 2009, stood out because of concerns over the reliability of the Horizon computer system. Time was given for this area of evidence to be explored. New solicitors were instructed by the defence.”
Then at 5:
“Case was re-listed for a pre-trial review and directions on 14 July 2009 and directions were given which included the service of experts’ reports.”
That’s where I got the reference, before lunch, to the autumn of 2009, a direction having been given for the service of experts’ reports; do you see that?
Jarnail Singh: Yes.
Mr Beer: Did you know had a direction had been given for the service of experts’ reports –
Jarnail Singh: Well –
Mr Beer: – as early as 2009?
Jarnail Singh: I don’t recall. I mean, I don’t – I mean – I don’t recall now in that much detail, you’re asking me to remember going back –
Mr Beer: Okay, paragraph 6:
“The prosecution, by letter dated 14/8/2009 said it would instruct Fujitsu, the supplier and operator of the Horizon computer, to assist as experts. In that letter the prosecution stated the request for data had been submitted to Fujitsu and acknowledged. This is …”
I think we’ve missed a bit out at the bottom of the last page but one, “and acknowledged” – oh, sorry:
“The prosecution had stated that the request for data had been submitted to Fujitsu and acknowledged.”
Then to paragraph 7, please.
“This is in total contradiction to the statement received from Gareth Jenkins of Fujitsu who states that no requests had been made for any data relating to the West Byfleet branch.”
That was the issue we were looking at earlier, the defence requesting disclosure of the underlying transaction data as early as 2009 and, by February 2010, it still hadn’t been obtained. 7, we can skip over; 8 we can skip over:
“9. A view of the Post Office machinery and method of working at West Byfleet was undertaken by counsel and solicitors on 6 November. Professor McLachlan permitted to view the same on 17 November ‘09.
“10. At the hearing on 20/11/09 the prosecution requested the defence help by producing more detailed requests for disclosure. That was done and served on 30/11/09. Despite this, no responses were forthcoming until after the defence listed the matter for mention.”
Then over the page:
“At the hearing on 1/2/10 the defence were ordered to notify the prosecution of those matters which it regarded as still outstanding …
“The prosecution had failed until 1/2/10 to instruct an expert. At the court hearing on 1/2/10 the prosecution stated it had identified their expert, Gareth Jenkins from Fujitsu, but not instructed him yet. The court confirmed that the prosecution expert should report by 8/2/10.
“A short statement was served from Mr Jenkins. In that report Mr Jenkins generally could not assist because:
“He’d not been given sufficient material and documentation.
“He’d only just been instructed to assist and would need time.
“Some of the questions raised by Professor McLachlan he didn’t understand.
“Some of the information requested from Fujitsu should come from the Post Office.”
Then the defence say this:
“It is apparent that the prosecution has given no clear instructions to its own expert, or provided him with an adequate material to assist the court.”
You would agree, on reflection, that that’s true, wouldn’t you?
Jarnail Singh: I don’t know. I don’t quite – the dates – I didn’t realise that Mr Jenkins had been identified that early. I don’t recall any of that.
Mr Beer: Had you given clear instructions to Mr Jenkins?
Jarnail Singh: I think the – I don’t know. I don’t recall.
Mr Beer: Had you provided him with adequate material to assist the court?
Jarnail Singh: I don’t recall. I mean, I think, as I have been saying, is that these was there basically to help or assist the prosecution and the defence to understand the system, because I’m not a technical person. I don’t know the basics, let alone the actual technology involved here. And that’s one of the reasons why I was very uncomfortable dealing with it myself.
That’s why I had the barrister alongside with me on one side and the head of the Criminal Law Team on the other. That’s my case –
Mr Beer: Thank you, Mr Singh. I’m sorry, I interrupted you –
Jarnail Singh: Sorry, that’s one of the reasons: because it’s complicated. It’s very, very difficult to be able to do it. So I don’t recall it in that much detail. I don’t recognise the dates. I don’t recall the dates. I thought it was everything more or less started around about February time but, as to when Gareth Jenkins was identified, I don’t recall now that it was that early, my conversation with, you know, Mr Jones.
Now that you mentioned it – and I think the other difficulty is that, because of the time period, a lot of the information you’re coming up with, you’re obviously – you know, this is the sort of area of law you deal with, you know, the Inquiry. This is the first experience of it. I do not recall most of the stuff that is coming up at all, and I – certainly not the dates, I don’t recall. I think more or less everything was happening really, really quickly in February. I didn’t realise that, going back in time six months – I don’t recall most of what’s here, and I think was of it, because it’s a specialist area of the law and everything else, that involved, I had the barrister more or less looking at it in minute detail.
I mean I was relying on the barrister, more or less, and I think we were working alongside, he was saying, “Well, I” – more or less, as you know, I can say generally that that’s how we worked on it, but I don’t recall most of what’s here, the dates.
Mr Beer: All right, thank you. That can come down.
Sir, that’s an appropriate moment to break.
Sir Wyn Williams: Right.
Mr Beer: We would be continuing with a chronological progression through the instruction of Mr Jenkins and the compilation of his witness statements; the revelation of material to the defence; the discovery of a bug; and whether that material was revealed or concealed from the court and the defence.
Sir, I’ve got another 37 pages of notes to get through.
Sir Wyn Williams: Right. I think we – yes, sorry. I think we’ll break there and, obviously, in scheduling Mr Singh hereafter, we will need to take account of the time estimate for what remains, as well as what is to come.
Mr Beer: Yes, sir. I think it will be appropriate to release Mr Singh from the obligation that he would otherwise be under not to speak about the evidence he’s to give –
Sir Wyn Williams: Yes.
Mr Beer: – when he returns, because we’re going to be asking him for a further witness statement on Phase 5 and 6 issues and he’ll plainly need to speak to his solicitor about those.
Sir Wyn Williams: Well, that’s the practice which I’ve adopted in relation to those witnesses who have given evidence but who are returning, is it not?
Mr Beer: It is, sir.
Sir Wyn Williams: Yes.
So, Mr Singh, we’re going to stop this afternoon now. As you will have gathered, it will be necessary for you to return to give further evidence. I can’t – I’m sorry – tell you precisely when that will be but the scheduling of your evidence will be done in liaison with you and your solicitors. You are now entitled to speak to your solicitors about your evidence and any further requests for evidence. So I will see you again sometime in the New Year.
The Witness: Thank you, sir.
Sir Wyn Williams: Right. On Tuesday, I’m right in remembering that we are starting at 11.00; is that right, Mr Beer?
Mr Beer: Yes, that’s right. 11.00 am, Tuesday, please.
Sir Wyn Williams: Fine. All right, then.
Mr Beer: Thank you.
(3.06 pm)
(The hearing adjourned until 11.00 am on Tuesday, 5 December 2023)