12 December 2023 – Robert Wilson
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(10.00 am)
Mr Beer: Good morning, sir, can you see and hear me?
Sir Wyn Williams: Yes, I can, thank you.
Mr Beer: May I recall Rob Wilson, please.
Robert Wilson
ROBERT GEORGE WILSON (sworn).
Questioned by Mr Beer
Mr Beer: Thank you very much, please do sit down, Mr Wilson.
Thank you very much for attending for a second time today to give evidence. We’re very grateful to you.
Thank you also for devoting the time to produce a second witness statement for the Inquiry. If we can look at that, please, it’s 27 pages long, excluding the index to the exhibits. It’s dated 15 November 2023 and it should be at your tab A1 in the bundle. For the transcript the URN is WITN04210200. If you turn to the 27th page, please.
Robert Wilson: Yes, I’ve got it.
Mr Beer: Is that your signature?
Robert Wilson: There isn’t a signature there, would you like me to sign it?
Mr Beer: On page 27?
Robert Wilson: 27 of 35?
Mr Beer: Yes.
Robert Wilson: Yes, it’s just got “GRO” over where I would sign.
Mr Beer: Okay, do you remember making a witness statement and signing it?
Robert Wilson: I think I was told not to sign it.
Mr Beer: Slightly odd.
Robert Wilson: I know, on the first occasion, I did sign the first statement but, on the second occasion, my instructing lawyers said, “Don’t sign it, you’ll sign it there”, I think, was – but I’m very happy to sign it.
Mr Beer: The witness statement that’s in front of you, have you read the contents of it?
Robert Wilson: Yes.
Mr Beer: Are the contents of it true to the best of your knowledge and belief?
Robert Wilson: Yes. There’s one word wrong, in one of – I’ve forgotten the number, but there’s one word wrong where I’ve put “audit” instead of “office”, I think.
Mr Beer: Can you remember which paragraph, by chance?
Robert Wilson: I’ll look it up at lunchtime, if that’s okay for you?
Mr Beer: With that correction in mind, the contents of it are true to the best of your knowledge and belief?
Robert Wilson: Yes.
Mr Beer: Okay. We’ll attend to the signature of the witness statement outside the hearing room, if you say the contents are true to the best of your knowledge and belief?
Robert Wilson: Yes, they are.
Mr Beer: Thank you very much. I think you understand the questions today are focusing on Phase 4 of the Inquiry, the investigation and prosecution of subpostmasters for criminal offences?
Robert Wilson: Yes.
Mr Beer: In particular, three case studies, Seema Misra, Allison Henderson and Khayyam Ishaq.
Robert Wilson: Yes.
Mr Beer: We addressed your professional background and your career on the last occasion that you gave evidence, 12 October this year, and I’m not going to ask you about it again. However, I have got one question about your employment status with the Post Office. If I can just ask you about that, please.
Robert Wilson: Yes.
Mr Beer: Can we have on the screen, please, POL00128970. To give you some context, this is a document compiled in 2020 during the course of appeals to the Court of Appeal Criminal Division.
Robert Wilson: Yes.
Mr Beer: We understand that it was prepared before the Court of Appeal Criminal Division gave its judgment and that it was prepared by Peters & Peters, who were the solicitors acting on behalf of the Post Office. In summary, it’s inviting the Post Office to essentially report lawyers, including you, to the Solicitors Regulation Authority?
Robert Wilson: Yes.
Mr Beer: You can see that in the first paragraph, it says:
“Counsel has advised that the conduct of Jarnail Singh, Rob Wilson and Juliet McFarlane, three senior lawyers in the [Post Office/Royal Mail Group’s] Criminal Law Team between 1999 and 2013 (collectively ‘the Three Lawyers’) is capable of amounting to a serious breach of the [Solicitors Regulation Authority’s] regulatory arrangements, having regard to the nature and number of cases referred for appeal and the issues identified through a review of material in the [Post-Conviction Disclosure Exercise] and Project Brisbane.”
We can just see, if we turn to page 3, please, and look at the second paragraph, a summary of what was being said:
“Counsel has advised that material identified in the course of [those two exercises I’ve just mentioned] identifies potential misconduct (whether by individual instance or cumulatively) is capable of amounting to a serious breach. In particular:
“a. Inadequate investigation, including a failure to pursue all reasonable lines of inquiry whether they pointed towards or away from the guilt of the defendant and to establish that an actual financial loss had occurred in theft cases;
“b. Material non-disclosure, in particular about the reliability of Horizon, in breach of CPIA duties;
“c. Inadequate, negligent or improper decision making in relation to charging offences and determining whether to drop charges or accept lesser/partial ones, for example:
“i. Misunderstanding or misapplying the Full Code Test;
“ii. Misunderstanding or misapplying the burden of proof by requiring defendants to prove they were not responsible for the loss suggested by Horizon rather than by proving that there was a loss and that the [subpostmaster] must have been responsible for it;
“iii. Attaching improper weight in decision making to the financial/commercial interests of [the Post Office], particularly in terms of using criminal prosecution as a means of recovering losses and/or bringing charges as a means of pressuring [subpostmasters] to make good losses that they were not necessarily liable for …
“iv. Failure, in false accounting cases, to have any regard to the cause of the underlying shortfall that was being covered up by the SPM;
“v. Adding theft charges in circumstances where the elements of the offence were not made out and/or potentially with a view to pressuring defendants to plead guilty to lesser charges (in particular, false accounting);
“vi. Making the acceptance of pleas conditional on the defendant not making any explicit criticism of the Horizon system.”
So they were the issues that have been identified in a potential report to the SRA. If we just go back to page 2, please, and we’re going to explore some of those things today. If we look at page 2, and if we look at the bottom part of the document under “Other relevant issues” – the lawyers have raised above that, I should say, the pros and cons the benefits and the risks of making a report to the SRA, the pluses and the minuses.
Then under “Other relevant issues”, it says, under paragraph 2:
“However, only one of the Three Lawyers …”
You remember that was a defined phrase at the beginning of the document –
Robert Wilson: Yes.
Mr Beer: – you, Jarnail Singh, and Juliet McFarlane:
“… was ever employed directly by [Post Office Limited]. He is no longer an employee.”
Were you employed directly by Post Office Limited?
Robert Wilson: I think probably when I started in 1986 but then I moved in 2012 into Royal Mail Group.
Mr Beer: So do you think, between ‘86 and 2012, you were employed directly by Post Office Limited?
Robert Wilson: I think they called themselves Post Office Limited. Having said that, when I first applied to have representation, because I’d received the Section 9 statement, POL couldn’t find me on their lists and it took them – I don’t know whether it’s three or four days, before eventually deciding that I could have legal advice and I’m not sure whether they ever came back to me and said, “Yes, you were a POL employee”. But something like that happened.
Mr Beer: What about Jarnail Singh? Was he, to your knowledge, ever directly employed by Post Office Limited?
Robert Wilson: Well, he will have been directly employed by them from 2012 onwards and he would have probably – he’d have been in the same position as I would have been prior to that.
Mr Beer: What about Juliet McFarlane?
Robert Wilson: Similarly with Juliet McFarlane, she would have been in the same position as I was, until 2012 when she moved across into Royal Mail Group.
Mr Beer: So the reference there to only of the Three Lawyers being employed directly by Post Office Limited, out of the three of you, who do you think that’s referring to?
Robert Wilson: That’s probably Mr Singh, on the basis that he was continuously employed by them and never by Royal Mail Group.
Mr Beer: What accounted for the difference in your relative employment status or the identity of your employer?
Robert Wilson: As far as I was concerned, it was just continuous. I didn’t significantly look at the change from Post Office to Royal Mail, other than I was no longer doing Post Office Limited prosecution work.
Mr Beer: So if, from 2000 onwards, you had to describe the employer of you, Mr Singh and Ms McFarlane, how would you describe it?
Robert Wilson: I always thought of it as Royal Mail. In my brain, I was – mainly because most of my work was Royal Mail and only – I put in my statement less than 15 per cent was Post Office Limited work, and my director, Andrew Wilson, when I first was promoted, I’m pretty sure he was Royal Mail.
Mr Beer: That brings me to my next set of questions. That can come down, thank you.
Did the different employment status or employer affect lines of reporting?
Robert Wilson: My line of reporting was – initially when I was promoted, was to Catherine Churchard, who was General Counsel.
Mr Beer: Yes, GC, yes?
Robert Wilson: Then, when Andrew Wilson took the team, as he did five or six years into my employment as a Criminal Law Team Leader, I had a dotted line to a lawyer in the Legal Team, and I worked directly to Andrew Wilson.
Mr Beer: If you were asked, from 2000 onwards, and if there’s any change in the answer from 2000 until, say, 2012, who at board level was responsible for the conduct of criminal prosecutions, what would your answer have been?
Robert Wilson: The answer would be the current secretary.
Mr Beer: So whoever was occupying the role of current secretary –
Robert Wilson: Yeah.
Mr Beer: – year on year?
Robert Wilson: Yes, and I think there were probably two, possibly even three, while I was there, and, for the life of me, at the moment I can’t remember their names.
Mr Beer: What was the link between you in your position and that company secretary?
Robert Wilson: There was no link between me and him or her. My link was to Andrew Wilson.
Mr Beer: What was the link between Andrew Wilson and the company secretary?
Robert Wilson: I think a direct link. I think he reported to the secretary.
Mr Beer: Did you ever have any direct communications with the company secretary about criminal prosecutions?
Robert Wilson: No. I remember once getting a telephone call from him because a lawyer had contacted him, and I took details of the lawyer’s number and I rang the lawyer and dealt with the problem, and that was probably the extent that – the extent of my contact.
Mr Beer: How did the Criminal Law Team, with you as its head, report on its work to the board?
Robert Wilson: It would be via Andrew Wilson.
Mr Beer: How did you report on the work of the Criminal Law Team to Andrew Wilson?
Robert Wilson: Well, each report on a case, we collated at the end of the month and I sent those reports both to Andrew Wilson and to the person that I had a dotted line to in Legal Services.
Mr Beer: When you say the reports on each case, was that whether they had reached a conclusion or not, or –
Robert Wilson: I think it was wider than that. I don’t think it was just final reports; I think it was current cases that – I had an office manager who would add up the current cases that we had, he would collate the reports that we had on finalised cases that month and he would add up the new cases that had come in to the team. So I think it was a statement that I did once a month, at the end of the month, and it went to Andrew Wilson and the dotted line person.
Mr Beer: Did you understand that that was going to the board, either from Andrew Wilson and the dotted line person?
Robert Wilson: Probably. Although I’m not 100 per cent sure.
Mr Beer: Did you ever get anything back from the board by way of direction or suggestion?
Robert Wilson: No.
Mr Beer: Was there any communication that you can remember, say between 2000 and 2012, back from the board about the work of the Criminal Law Team?
Robert Wilson: No.
Mr Beer: Did you ever attend any board meetings?
Robert Wilson: No.
Mr Beer: Did you ever prepare anything for Andrew Wilson or the dotted line person for their attendance at a board, that you can recall?
Robert Wilson: I don’t think I prepared anything. I may well have been a sounding board in relation to something that he wanted to propose to the board but I didn’t prepare anything myself. He did that.
Mr Beer: What was the purpose of the preparation of the monthly reports on current cases and cases concluded?
Robert Wilson: It was to show them the overall picture of what we were doing, in terms of both results, so whether we were successful, and in terms of the numbers that we were processing.
Mr Beer: Did include figures on recoveries by way of confiscation?
Robert Wilson: No, I don’t think so.
Mr Beer: Was there any performance measure of the work of the Criminal Law Team?
Robert Wilson: No.
Mr Beer: Were there any key performance indicators for the work of the Criminal Law Team?
Robert Wilson: KPIs ring a bell. I probably had some, as part of my responsibilities, but I can’t remember what they were.
Mr Beer: Was the outcome of criminal proceedings linked in any way to the remuneration of any members of the Criminal Law Team?
Robert Wilson: No.
Mr Beer: Were there any bonuses paid?
Robert Wilson: Yes.
Mr Beer: What were they paid for?
Robert Wilson: They were paid for – largely, I think it was the performance of the business and I think, if you got a good grade in your appraisal, then you might have got some sort of enhancement.
Mr Beer: But they were not linked to the percentage of successful prosecutions –
Robert Wilson: No.
Mr Beer: – or the like? Thank you.
Can we move on to the next topic, please, which is obtaining evidence in support of prosecutions and, to start with, the contractual arrangements and the approach by Post Office to Fujitsu for obtaining evidence in criminal prosecutions.
Were you aware of the scope of the contractual responsibility of Fujitsu to support litigation against subpostmasters?
Robert Wilson: No.
Mr Beer: Did you ever see the contract between the Post Office and Fujitsu to see what the latter, Fujitsu, had promised to the Post Office by way of support in criminal prosecutions?
Robert Wilson: No, I didn’t.
Mr Beer: Can you recall it ever being mentioned, ie “There’s a contract that regulates the support that our supplier must give us in criminal prosecutions”?
Robert Wilson: Yes, I can recall that, yes.
Mr Beer: Given that you can recall that, as the Head of the Criminal Law Team, is there a reason you didn’t see the contractual arrangements that actually mapped that out?
Robert Wilson: Probably, because it was dealt with before I became the Head of the Criminal Law Team and, afterwards, I didn’t – I never asked to see it. I mean, I heard, from time to time, that there were problems in relation to obtaining ARQ data, and I have seen, from some of the documents that have been supplied to me, some references to Mr Jenkins running out of time and not being able to do any extra work. I saw those sort of – I must have seen those sorts of things but I didn’t have any involvement with the contract at all.
Mr Beer: What’s your view, if you hold one, as a prosecutor, about the wisdom of a prosecutor entering into a contract that regulates the extent to which a third party must supply evidence and cooperate in the provision of evidence to a prosecutor?
Robert Wilson: Well, my view is that it’s not a good idea.
Mr Beer: Could you explain why, please, Mr Wilson?
Robert Wilson: Well, I think that – I never was particularly interested in what a case was going to cost and I was never particularly interested in anyone trying to truncate the work that we were required to do, particularly in disclosure. I remember seeing an email which I’d forgotten about amongst the papers here, from I think it was a Mark Dinsdale, who was complaining about the amount of data that he was having to supply because he had a new team.
Mr Beer: We’re going to come to that a little later.
Robert Wilson: Okay. So I think my view was, if you want to prosecute these cases, you have to pay for them, and, if you want to do it properly, we have to have access to all the information that we require.
Mr Beer: Did you have any understanding of who had been involved in the agreement of the contract between Post Office and Fujitsu that did regulate the nature and extent of the evidence that they were obliged to supply?
Robert Wilson: My understanding now comes from listening to Teresa – I think it was Williamson – I knew her as Teresa Berridge –
Mr Beer: Yes.
Robert Wilson: – who said that she had prepared an open-ended part of the contract because she was conscious that the people dealing with the contract – I believe this is what she was saying – were not appreciating that we were doing this from a criminal point of view and it wasn’t simply a contractual issue. And I think she did – said that she did that in 2000 and I wouldn’t have been around in the team at that time.
Mr Beer: During your time in your role as Head of Criminal Law, were you ever involved in or aware of any discussions with Fujitsu over the scope of the requirements under the contract?
Robert Wilson: I was aware that there were problems but I wasn’t aware about discussions going on. It’s not something that my role touched.
Mr Beer: But you and your team were the people that were advising on evidential sufficiency, were laying a case before a criminal court as fit to be heard by the criminal court and then prosecuting it, often to conviction. Does that not mean that it was part of your role to get involved with a key supplier of evidence and a contract that regulated the extent to which they supplied such evidence?
Robert Wilson: I never had the impression when we were prosecuting that we were not getting what we wanted in terms of ARQ data. Yes, I heard that there were – there was, for want of a better word, whingeing about the amount that was being required, particularly on Seema Misra, which no doubt we will discuss shortly. But I never had a worry in my head that we weren’t getting what we should be getting.
Mr Beer: Thank you. Did you ever become involved in assisting the Post Office Security Team in their understanding of Fujitsu’s obligations under the contract?
Robert Wilson: I know, again from what I’ve read in the papers you’ve supplied me with, that, at some stage, there was difficulty over our expert meeting another expert and Jarnail Singh must have come to me and said, “Look, Rob, what can we do?” and I emailed and said, basically, “If we can’t have this, we will need somebody in court in [whatever timespan it was] to explain from Fujitsu why we can’t deal with this”.
Mr Beer: So, on an individual case basis, you can remember becoming involved but nothing more strategic or higher level: “Look, Security Team, this what the contract says. This is how we’re going to carry it into effect. This is how it works”?
Robert Wilson: I remember when the Court of Appeal made their decision – which I have to say that I was mortified at and felt ashamed, and I couldn’t begin to understand how the subpostmistresses and subpostmasters must have felt, together with their families, having – and for which I clearly apologise for, profusely. I remember discussing with Dave Posnett the judgment and he said – and part of the discussion was about backdoors into the system, and he said that he was at a meeting with me when I’d challenged Fujitsu and said “Are there any backdoors to the system?” and they’d categorically said no.
I don’t know – but that’s what the discussion was about but I don’t know what the meeting was about. I didn’t actually recall that, he reminded me of it. So I was at a meeting with Fujitsu with Dave Posnett but I can’t remember what the substance of the meeting was. It might have been what you’re alluding to but I don’t remember that.
Mr Beer: Can you recall whether that was case specific –
Robert Wilson: All I can –
Mr Beer: – ie the issue had arisen in the context of an individual case?
Robert Wilson: It could have been. I honestly don’t know. I hadn’t – I didn’t recall the meeting and I didn’t recall asking them the question. Dave Posnett said to me “I was at that meeting with you; you asked the question”.
Mr Beer: What was your understanding as to the nature and type of data that might be drawn from Horizon in order to found the basis for an investigation and/or a criminal prosecution?
Robert Wilson: Well, they had ARQ data, transaction logs, various other logs and information, which I can’t really recall now. I’ve seen some of the matters listed in the papers. But, as far as I was aware, from that data, we should have been able to prosecute each case.
Mr Beer: Had you heard of the expression “Credence data” or data obtained from Credence?
Robert Wilson: I probably did but I can’t recall what it is now.
Mr Beer: You’ve referred a number of times to ARQ data.
Robert Wilson: Yes.
Mr Beer: Did you understand that there was a difference between the nature and species of ARQ data that could be obtained, perhaps by reference to words such as “standard” or “enhanced” ARQ data?
Robert Wilson: Again, I’ve seen those in the papers. I thought ARQ data, looking back, was data which effectively you could see who was detailing each individual transaction that had taken place. I may have got that wrong. But I thought that’s what ARQ data was. I can’t remember whether I knew about enhanced data or the standard data. I probably did but I honestly can’t remember.
Mr Beer: Irrespective of the distinction, was it your understanding that the data that you were getting by way of ARQ data was data which was capable of showing whether a transaction was initiated and completed by a subpostmaster, on the one hand, or was a system generated transaction, on the other?
Robert Wilson: I thought it was created by the subpostmaster and, therefore, was quite important, to see what he’d been doing.
Mr Beer: It’s probably my question that’s at fault. Did you understand from the ARQ data that you were getting that that data would be able to distinguish between whether a transaction was carried out by a subpostmaster, on the one hand, or by the system, on the other?
Robert Wilson: I understood it to be the postmaster. Have I misunderstood your question?
Mr Beer: Yes. Did you understand that all transactions were subpostmaster initiated and completed?
Robert Wilson: Yes.
Mr Beer: You didn’t understand that some transactions could be created by the system itself?
Robert Wilson: I didn’t understand that, no.
Mr Beer: Okay. When you were conducting your evidential review for the purposes of advising whether the evidence met the Code for Crown Prosecutors’ standard, which documents concerning the Horizon system would you expect habitually to review?
Robert Wilson: I would expect to see transaction logs, the audit report.
Mr Beer: So the audit report, meaning the auditors that attended the branch –
Robert Wilson: Yes.
Mr Beer: – and conducted a shortfall analysis?
Robert Wilson: Yes.
Mr Beer: Yes.
Robert Wilson: Transaction logs, audit report.
Mr Beer: Yes?
Robert Wilson: I don’t think we ever got ARQ data at an early stage. I think ARQ data was sought once we knew that we were going to be involved in either a not guilty or disclosure had been requested.
Mr Beer: Why was that?
Robert Wilson: Sorry?
Mr Beer: Why was that?
Robert Wilson: It just – the way the investigators prepared their papers for us, just generated not every document a limited number of documents together with the interview, obviously, and, from that, we made the decision. We didn’t – I can’t ever remember going for ARQ data prior to actually having a decision being made whether to prosecute or not.
Mr Beer: On the last occasion, I asked you:
“Would you expect it to be a necessary element of an investigation to establish the reliability of the data on which an investigation and then a prosecution was founded?”
You said, “Yes”.
Robert Wilson: Yes.
Mr Beer: I asked:
“Why would you think that was necessary, that it was an ordinary part of the investigation?”
You said:
“Well, because if they couldn’t establish that the system was working properly, the evidence had no value.”
I asked:
“So the reliability of the data was a fundamental or an essential part of any investigation founded upon such data?”
You said, “Absolutely”.
Given those three answers, why wasn’t ARQ data routinely part of the investigation and the evidence that was submitted for the purposes of deciding on charge?
Robert Wilson: Because it wasn’t sought by the investigator at that stage.
Mr Beer: That’s not really a complete answer, I think you’ll recognise, won’t you, Mr Wilson?
Robert Wilson: I’m trying to think, to reconcile what you’re saying to me and to actually think back to what actually happened then, and I’m having difficulty.
I think, in an ideal world we should have got ARQ data right at the beginning and I may have convinced myself that that’s what we did do. But, thinking about it from your first question, I can’t remember ever seeing ARQ data straight away. I may be wrong.
Mr Beer: You said in part of the answer that you gave that you would, I think, essentially, wait to see whether it was a guilty or not guilty plea?
Robert Wilson: Mm.
Mr Beer: If, as you said last time, that it was an essential element of a prosecution case –
Robert Wilson: Yes.
Mr Beer: – to prove the reliability of the data, why would it only be obtained after plea had been ascertained?
Robert Wilson: I think – I mean, it may be down to cost. I can’t remember ever thinking it’s a financial consideration. I can’t remember that. My view was it didn’t matter how much it cost, you know, get on with it, but I don’t know. Maybe that’s why Investigators didn’t go for it in the first place.
Alternatively, I think from the papers, some Investigators had to slow their cases down because they couldn’t get hold of ARQ data and maybe that was a factor.
Mr Beer: I think you’re there talking about cases where an accused person or a suspect in interview had raised an issue about the reliability of Horizon and, as a consequence of that, enquiries were made about obtaining ARQ data.
Was it the case that the system was that the Post Office waited until a suspect or an accused person raised an issue about the reliability of Horizon before undertaking this enquiry?
Robert Wilson: Yes, I think you’re probably right. I think, if somebody had unequivocally admitted that they’d stolen money, we wouldn’t have been chasing ARQ data. So, yes, I think you’re probably right.
Mr Beer: Can we look, please, at FUJ00000071. This is one of the contracts between the Post Office and Fujitsu and, if we scroll down, we can see this the codified agreement, thank you, which regulates a high number of issues between the Post Office and Fujitsu. Can we just look at page 97, please.
Scroll down, please, to 4.1.9. Thank you. If we just scroll up a little bit, so we can see the context. Thank you.
Can you see two requirements here under the heading “Prosecution support”, 4.1.8 and 4.1.9. Under 4.1.8:
“The contractor shall ensure that all relevant information produced by the [Post Office Counters Limited] Service Infrastructure at the request of [Post Office Counters Limited] shall be evidentially admissible and capable of certification in accordance with the Police and Criminal Evidence Act 1984 [and equivalent legislation in Northern Ireland and Scotland].”
At 4.1.9:
“At the direction of [Post Office Counters Limited], audit trail and other information necessary to support live investigations and prosecutions shall be retained for the duration of the investigation and prosecution irrespective of the normal retention period of that information.”
This is, I think, amongst the contractual material that you didn’t see at the time; is that right?
Robert Wilson: I don’t think I’ve ever seen this document before. I don’t even think it’s with my papers.
Mr Beer: I think it is but let’s just –
Robert Wilson: I’m not being critical.
Mr Beer: No, okay. Let’s just proceed on the basis that it’s just these two paragraphs I’m asking you to look at, Mr Wilson.
Robert Wilson: Right.
Mr Beer: The first requirement under 4.1.8, did you know that, initially at least, there was a contractual requirement placed on Fujitsu to ensure that evidence shall be evidentially admissible and capable of certification in accordance with the Police and Criminal Evidence Act?
Robert Wilson: I didn’t know there was a clause like that, no.
Mr Beer: Does it follow that, when there was an amendment to this contract, after the repeal of the relevant provision in Section 69 of the Police and Criminal Evidence Act, you weren’t aware of that change?
Robert Wilson: No, I wasn’t aware.
Mr Beer: Was there any change in practice in the Criminal Law Team, as between the period before certification under Section 69 of PACE was required and after the repeal of Section 69 of PACE?
Robert Wilson: I assume that the standard clause that went in the witness statement, towards the end of the witness statement, was omitted after the change but that’s the only thing I can think of.
Mr Beer: Were you or others in the Criminal Law Team, to your knowledge, involved in the provision of advice as to what happens now after Section 69 is repealed? What are the evidential requirements on computer-based evidence in a criminal prosecution in the courts of England and Wales?
Robert Wilson: Well, if I was in charge – and I know we’ve been down this street before – I would have sought counsel’s advice and it would have been the counsel that I referred to before, which I erroneously included in my first bundle. But I think that that change was in about 1997.
Mr Beer: I think the repeal was in ‘99 and came into effect in about 2000?
Robert Wilson: Right, okay. So I wouldn’t have been around in the team at that time then.
Mr Beer: After you became involved in the team, can you recall any standing advice, any instruction or guidance, as to what was required to adduce evidence that was computer based in a criminal prosecution in England and Wales, because what happened was the statutory provision was repealed and the common law sprang up?
Robert Wilson: Yes.
Mr Beer: Was there any guidance on what does the common law now require?
Robert Wilson: If there wasn’t a general guidance from counsel, which I would have put my money on, then I think counsel, on a case-by-case basis, would have advised us “This doesn’t comply” or “You need to do this”, but I can’t remember that happening. I can’t remember seeing an Advice from counsel where they were critical of a witness statement because it didn’t follow the format that it needed to.
Mr Beer: Or, indeed, the other way round: that lots of witness statements continued to contain the Section 69 –
Robert Wilson: Well, yes –
Mr Beer: – formulation, even though they were not required?
Robert Wilson: Yes, that’s a real possibility.
Mr Beer: Do you consider that you and others in the Criminal Law Team had an adequate understanding at the time of the technical operation of Horizon?
Robert Wilson: Looking back now, I don’t think we did, no.
Mr Beer: What about an adequate understanding of the Post Office’s estate systems and processes –
Robert Wilson: Probably –
Mr Beer: – including – I’m sorry?
Robert Wilson: I was just going to say: probably not as well. Looking back, I don’t think we involved ourselves on the technical side enough.
Mr Beer: Including, for example, the operation of transaction corrections?
Robert Wilson: I’m not sure what a transaction correction is.
Mr Beer: Maybe that proves the point.
Robert Wilson: Right.
Mr Beer: Wasn’t such an understanding necessary of the operation of Horizon and the way the Post Office’s estate systems and its processes worked, in order to be able to apply a critical eye to the evidence that an Investigator was sending you to advise on charge?
Robert Wilson: I mean, that’s very logical now. At the time, I think it was generally assumed that what the Investigator was getting was appropriate and sufficient for the purposes we required it. But I agree with you that we did not know enough about the Fujitsu data and the POL information, with hindsight, yeah.
Mr Beer: Thank you. That document can come down.
Was there any written guidance or policy or procedure on the obtaining of expert evidence for the purposes of a criminal investigation or prosecution?
Robert Wilson: No.
Mr Beer: Why was that?
Robert Wilson: Um … I think – I think it was – yeah. I’m having – I think it was probably because we’d never dealt with an expert witness before and didn’t perceive it, because of that lack of knowledge, to be different in the way that you cross-examined me in the first day, I think that was the reason, that it didn’t strike me at the time that – through lack of understanding, that the expert was to be treated in a completely different way.
Mr Beer: Can we look, please, at POL00097100. Can we look, please, at page 9 to start with. This is an email chain that you’re not copied into, I should stress, but I want to ask you some questions about some of what it says. It is all about Mr Jenkins, Gareth Jenkins, and the treatment of him.
If we just look at the emails before the relevant ones, to give you a bit of context, you can see here an email from Sharron Jennings, a Security Manager, to a range of people, some inside Fujitsu, some inside the Post Office, about the case of Patel:
“The case due for trial on Monday at Peterborough Crown Court has been put back to 14 January 2013 and is listed for a 7 day trial. [Diary, please].”
Then if we scroll up, please. Mr Jenkins said:
“Sorry, I’m not aware of this case or what might be required of me …
“I’m not aware of any outstanding cases which I might be involved in.”
Then scroll up.
“Hi Gareth
“This is the one that you supplied the expert report and witness statement for the week before last. Apologies for not explaining that properly in the previous email, it was a blanket email for all witnesses! It is unclear at this stage who will be required as witnesses and which evidence will be accepted without the need for attendance. I just thought if I let everyone know”, et cetera.
Then if we scroll up, please. We can see Mr Jenkins’ reply:
“Thanks for the clarification. I had not understood that that related to a specific case, I thought that was a general statement. If I am required to go to court for that, I think I need to have some more background on the specific case and exactly what is being alleged. I appreciate that it is not covered by my statement, but if I need to be an expert witness, I need to understand what is happening.”
Then some other details.
You’ll see there that Sharron Jennings referred to Mr Jenkins as having produced an expert report –
Robert Wilson: Yes.
Mr Beer: – and Mr Jenkins himself refers to whether he needs to be an expert witness in a particular case.
Robert Wilson: Yes.
Mr Beer: In your time as the Head of Criminal Law, did you understand that as his status, namely as a person who gave expert evidence?
Robert Wilson: Yes.
Mr Beer: From where did you gain that understanding?
Robert Wilson: From the nature of his work and evidence.
Mr Beer: What do you mean by that, please?
Robert Wilson: Well, because he, I think, put together a lot of the Fujitsu, I guess, software, and was regarded as an expert by his team, from documents again that you’ve supplied to me, to the point where he had a support person, Penny Thomas, I think her name was. So I viewed him as an expert in the system, and the person who probably knew more about the system than anybody else on the planet. So that was my belief.
Mr Beer: Can we distinguish three things, please?
Robert Wilson: Yes.
Mr Beer: One, a person with expertise in an issue or discipline –
Robert Wilson: Mm.
Mr Beer: – secondly, a person who gives expert evidence as an expert witness in a court –
Robert Wilson: Mm-hm.
Mr Beer: – and, thirdly, a person who is instructed by a solicitor or an Investigator formally to give expert evidence by way of written instruction.
Looking at the third category that I just erected there, were you aware of Mr Jenkins ever being formally instructed in that way?
Robert Wilson: No.
Mr Beer: Out of the remaining two, how did you view Mr Jenkins, ie as a person with expertise in an issue or discipline, who happened to be giving evidence in court, or, formally, as an expert witness in court?
Robert Wilson: Your first scenario.
Mr Beer: So he was a person simply with expertise in a system?
Robert Wilson: Yes.
Mr Beer: Just for the moment, just by way of short excursion, in paragraph 15.1 of your witness statement – I wonder whether we could turn it up, please, it’s on page 12 – you say:
“I do not know how Penny Thomas and Gareth Jenkins came to be involved in these proceedings against Seema Misra. I believe that Gareth Jenkins was identified as an expert on the Horizon system at the inception of the computer system and had agreed to assist the Post Office in relation to its role when conducting private prosecutions. This was probably in 1999, prior to myself becoming Head of the Criminal Law Team.”
Just stopping there. We have documentary material, Mr Wilson, that suggests that Mr Jenkins first provided, to use a neutral word, assistance in prosecution in 2005, in the case of the Post Office v Teja. From where did you get your understanding that he had a role, probably in 1999, prior to you becoming Head of the Criminal Law Team.
Robert Wilson: I just think it was from looking back, that I assumed he’d been on board right from the beginning. I can’t point to any documents or anything. It was just what I believed to be the position.
Mr Beer: So are you extrapolating, essentially, the date of inception of Horizon –
Robert Wilson: Yes.
Mr Beer: – of late ‘99/early 2000, and thinking he must have been involved from inception?
Robert Wilson: Yes.
Mr Beer: As you’ve said, you haven’t identified any documents that establish such actual involvement?
Robert Wilson: No, I haven’t.
Mr Beer: Thank you. Can we go back to, after that little excursion, to POL00097100, and to page 6. This is the Patel chain of emails, page 6, please.
Scroll down, please.
You remember that there’d been an exchange, Jennings and Jenkins, over attendance at a trial involving Patel, and the trial date being put back to January 2013. Mr Jenkins saying:
“I thought I’d given a generic statement. If I’m to be an expert witness in this case, specific to this case, something more will be required.”
You will see Ms Jennings says:
“There appears to have been some sort of confusion regarding the trail of emails below. Gareth was asked to supply an expert report on Horizon integrity by the Legal Team and I was asked to input this onto a Section 9 witness statement in order to produce it in court. Gareth was not aware that this related to a specific case and was also not aware that he would be required in court. [Gareth] is happy to attend but as explained below it is over and above the usual [Business As Usual] arrangements that we have with Fujitsu so some extra arrangements are required in order to cover extra costs and time etc. This email is to request that please.”
Were you aware of expert reports being rewritten into witness statements?
Robert Wilson: I don’t think so.
Mr Beer: What would you say about the practice, if you had been aware of it, ie a person with expertise, giving opinion evidence, provides a report or a written document and that’s rewritten by an Investigator or an Investigations Manager into a Section 9 witness statement?
Robert Wilson: Well, it’s odd, and then one or other of the documents is going to have to be disclosed. So it’s an odd way of going about it.
Mr Beer: Why is it odd?
Robert Wilson: Well, because he is, effectively, giving two sets of what might not necessarily be the same thing. So it’s a dangerous practice to undertake something of that nature.
Mr Beer: Were you aware of what’s referred to in the second part of this email, namely that the provision of evidence by Gareth Jenkins was outside usual business as usual arrangements and, therefore, to provide evidence in this way required some special arrangements?
Robert Wilson: Well, that’s slightly odd as well because, in 2012, he must have been involved in a number of our cases. I don’t know why they’re saying that it’s outside the usual business arrangements because as I say, he’d been, for want of a better word, our expert for a number of years. You’re saying from 2005.
Mr Beer: ‘05.
Robert Wilson: So it’s, again, a strange, strange email.
Mr Beer: If we go up to page 3, please, and then scroll down, please – thank you – we can see that Jane Owen – do you remember her –
Robert Wilson: No.
Mr Beer: – a Security Manager within Post Office – emails Mark Dinsdale and says, “Please see below”, and that’s essentially the chain. I’ve skipped a number of pages but there was some inconsequential chatter:
“Please see below – in a nutshell Gareth is required as an expert witness and we have no money in the pot for him. I remember this happening before and am sure you dealt with it? Can you remember?”
Then if we scroll up, please. Mr Dinsdale’s reply:
“… I raised a request earlier this year which has not been used, so they could use a [Post Office] number … however might be worth touching base with Andy/Rob if this is a Horizon Integrity case, because they may want to challenge why [the Post Office] would pay Fujitsu to justify the system.”
Then, if we look, please, further up the page – just a little in further – we can see that the “Rob” referred to seems to be Rob King, rather than you, because now copied in are Andy Haywood and Rob King. Ms Owen says:
“Hi both. Please see Mark’s response to the string of emails below.
“… please advise how you wish me to proceed.”
Then scroll up to see Mr Hayward’s reply:
“Need to understand the costs in the first instance, please. Then suggest we discuss with Jarnail …”
I think that’s Jarnail. Would you understand that to be a reference to Jarnail rather than “Jamail”? Maybe it’s just the way its printed:
“… Jarnail as he is the legal link in to the wider Horizon integrity.”
So looking at that email as a whole –
Robert Wilson: It is “Jarnail” though. I think there is a gap.
Mr Beer: There’s a gap in between, thank you.
Robert Wilson: Yes. I think there is, yes.
Mr Beer: So that’s likely Jarnail Singh?
Robert Wilson: I think it’s almost certainly Jarnail Singh.
Mr Beer: Also the “Rob” referred is to likely Rob King, rather than you?
Robert Wilson: It wouldn’t be me because I wasn’t in POL at that time.
Mr Beer: You moved I think in April of this year?
Robert Wilson: Yeah, in 2012, yeah.
Mr Beer: Would the chain have ended with a discussion with Jarnail, then – Jarnail Singh? It wouldn’t have come over to you in your new role?
Robert Wilson: No, it wouldn’t have come over to me at all. I had no dealings with POL once we’d transferred the cases across that they took over. So it ended in April 2012.
Mr Beer: If we scroll back down, please.
Mark Dinsdale says to Jane Owen that the Post Office might want to challenge “why [the Post Office] would pay Fujitsu to justify the system”.
In your time, did the Post Office see it as part of Fujitsu’s contractual responsibility to “justify the system”, in the words of this email?
Robert Wilson: Yes.
Mr Beer: That may be a relatively loaded phrase: “justify the system”.
Robert Wilson: Yes.
Mr Beer: You’re saying that that’s how it was seen at the time?
Robert Wilson: Well, I think they had to – yeah, they had to give us evidence that the system was working properly.
Mr Beer: Oughtn’t they just to have given evidence as to how the system was working and whether it was working properly?
Robert Wilson: Yes.
Mr Beer: That’s a more neutral way of expressing it?
Robert Wilson: Yes.
Mr Beer: The way that an independent prosecutor would look at it, with an open mind?
Robert Wilson: Yeah, I don’t disagree with you.
Mr Beer: Was there a mindset or a view that it was for the Post Office to pay for Fujitsu to justify its system?
Robert Wilson: I didn’t deal with the finances between Post Office and Fujitsu. I had no dealings with that side of things.
Mr Beer: Was it what the Post Office expected when it instructed Mr Jenkins to give evidence or asked Mr Jenkins to give evidence, namely to justify the system?
Robert Wilson: Well, that would be part of his responsibilities, I imagine, yes.
Mr Beer: Would that be an appropriate role or instruction for an expert witness to justify something?
Robert Wilson: Well, I agree with your change of wording, that, actually, it’s not really justifying the system; it’s saying that the system was working properly at the time that we’re concentrating on in relation to the suspicious activity.
Mr Beer: Thank you. That can come down.
To what extent was the Criminal Law Team involved, in your time, in editing or tailoring statements from Fujitsu employees?
Robert Wilson: Well, I can honestly say that I don’t believe that I ever got involved with editing statements. I’ve seen again in the papers Ms McFarlane, who was suggesting wording on one of her cases, to – I believe it was Gareth Jenkins, it might have been Penny Thomas, I’m not sure. But I can’t ever remember attempting to change or add to, or whatever, a witness’s statement.
My view was that that was the Investigator’s job and my job was to consider what the statement said and, if I needed anything else, I would ask the Investigator.
Mr Beer: So let’s deal with your personal practice first.
Robert Wilson: Yes.
Mr Beer: Why wouldn’t you, a prosecutor, get involved in the editing of witness statements or the suggestion of changes to a witness of their witness statement?
Robert Wilson: Because it is almost telling the witness what you want them to say, as opposed to them giving you their views on what they’re seeing or the factual position. I wouldn’t want to engage with a witness where I was maybe not forcing them into a corner but, certainly, giving them my view as to what I thought they should be saying. That would have been inappropriate.
Mr Beer: Would you regard it as improper?
Robert Wilson: Yes.
Mr Beer: Would you include, amongst the risks that are involved, that you yourself may end up becoming a witness?
Robert Wilson: Absolutely. Well, if you’re telling somebody what to do – I mean, I’ve seen it in these papers, in the Henderson papers, where Mrs Henderson makes comments about what her lawyers have told her, and I would never want to be in that position for somebody to turn around to me and say, “I was told by Mr Wilson I had to do this”. So I wouldn’t be involved with that, no.
Mr Beer: Were you aware of any members of your team, at the time that you were Head of Criminal Law, engaging in the process of editing or tailoring witness statements from Fujitsu?
Robert Wilson: Well, I’ve seen the email from Ms McFarlane, where she is tailoring the witness statement. I can’t remember whether I was copied into that but, if I was, I think I would have been mentioning “This is a dangerous practice, you need to be very careful what you’re doing and, potentially, desist from it”.
Mr Beer: Would your answers be any different if the individual concerned, the person that was making the witness statement, was giving expert evidence?
Robert Wilson: I’d be even more careful because I’m not an expert.
Mr Beer: In your mind, was there any different approach that was permissible in liaison with a lay witness, on the one hand, and an expert witness, on another, as to a solicitor or barrister, a lawyer, making suggestions for changes to the evidence?
Robert Wilson: Well, I do understand that lawyers do take statements from potential witnesses but, if you’re trying to make somebody change their statement or change their evidence, presumably you’d have to have some sort of factual basis or document that you would be putting to that witness, in order to get them to change or add to what they’re saying. So I think it would depend on whether they had some other evidence in front of them.
Mr Beer: The Inquiry has seen numerous statements from employees at Fujitsu who have given evidence in support of Post Office prosecutions over a period of many, many years, including when you were the Head of Criminal Law and, in particular, statements from Andy Dunks, from Penny Thomas, from Beatrice Lowther and from William Mitchell.
What was the process for obtaining such witness statements? I’m leaving out of account Mr Jenkins for the moment.
Robert Wilson: Well, if we needed a statement to covering a particular area, the Investigator would be tasked to obtain it and he, presumably, would know who to contact for the type of evidence we were asking for.
Mr Beer: So it was the Investigator’s function, is that right, to obtain the statements from Fujitsu employees?
Robert Wilson: Yes.
Mr Beer: Was there any special process involved in obtaining statements which addressed technical data outside the expertise of the Investigator?
Robert Wilson: I think I recall from Dave Posnett’s evidence that there was some sort of liaison person involved, who presumably was appointed because they knew more about the Fujitsu expertise and individuals who could provide that expertise and I imagine that the Investigator went via the liaison point.
Mr Beer: Was the Criminal Law Team involved in drafting or amending template statements or boilerplate statements from Fujitsu employees?
Robert Wilson: Not that I’m aware of, no.
Mr Beer: Were you aware of a template or boilerplate statement from –
Robert Wilson: I’ve seen several of them in the papers. At the time, I’m not so sure. I might have been.
Mr Beer: Do you know how they came to be initially drafted?
Robert Wilson: No.
Mr Beer: Thank you very much.
Sir, it’s just coming up to 11.15. I wonder whether that would be an appropriate moment to take the morning break until 11.30.
Sir Wyn Williams: Yes, of course.
Sorry, I’ve got a frog in my throat. Of course.
Mr Beer: Thank you very much, sir.
( 11.14 am)
(A short break)
(11.30 am)
Mr Beer: Good morning, sir, can you continue to see and hear us?
Sir Wyn Williams: Yes, I can, thank you.
Mr Beer: Mr Wilson, can we turn, please, to POL00156485. I’m continuing to explore the issue of CLT members, Criminal Law Team members’ involvement in amending or altering witness statements. Can we turn to page 2, please, and look at the bottom of page 2 and the top of page 3.
Can we see here an email exchange of June 2011 between Mr Whitaker, the Security Manager within Security Operations in Midlands, and Andy Dunks of Fujitsu, and it’s the case of Mackrill. The Investigator says:
“The majority of the statement appears to be okay Andy. However, if you can insert ‘Further to my previous statement …’ at the top as your other witness statement and call your new item … APD/03 not APD/02 as APD/02 has already been submitted to the defence. I have spoken to Rob Wilson of our Legal Team who says that this should be okay if we let the defence know what has gone off (the spreadsheet information itself is not a deal-breaker as it were in respect of the case).
“… sign and send it on to me ASAP bearing in mind the trial starts two weeks today”, et cetera.
If we go up to page 1 please and just scroll down a little bit. It looks like that wasn’t done immediately in June, because we’re into July now. Mr Whitaker says:
“See attached statement.
“The content of the statement is fine however I have changed the date and added the words ‘Further to my previous statement …’ at the beginning to reflect that this is additional evidence to your first statement.
“… send it to [my house].”
Then Mr Dunks replies.
If we scroll down to the bottom of page 2, top of page 3, we can see that the Investigator says that he’d spoken to you, who says that this should be okay; can you see that?
Robert Wilson: Yes.
Mr Beer: Would you be involved in issues like this?
Robert Wilson: Not normally, I wouldn’t have thought. I mean, if an Investigator telephoned me up and said, “Look we’ve got a problem, will this be okay?”, I would try and help him out as much as I could.
Mr Beer: I mean, this looks like it involved the provision of a spreadsheet –
Robert Wilson: Yes.
Mr Beer: – shortly before the trial was due to commence. Yes?
Robert Wilson: Yes.
Mr Beer: This isn’t you editing or amending a witness statement. You’re giving approval, as is recorded here, to the Investigator’s approach, yes?
Robert Wilson: Yes.
Mr Beer: Would that be how you did things, sort of arm’s length, rather than getting involved yourself?
Robert Wilson: I mean, there may have been occasions when I got involved with something directly myself but I can’t recall them. I think my general view would have been, yes, to have the Investigator as the person who was the buffer between me and the witness.
Mr Beer: Can we turn, please, to POL00017328. Thank you. This is an exchange unrelated to the exchange we’ve just looked at. It’s about the case of McQue. It’s an email from one of your lawyers, Juliet McFarlane, to, I think, an Investigator:
“Jason
“Gareth Jenkins Fujitsu is our expert in the case of McQue due for trial on 28 February. Could you please consider his comments below.
“‘Another potential issue is Commercial cover for my time. At the moment I’ve run out of the time that the Post Office have committed for me to work on such cases and this needs to be extended before I can do any more. Penny is trying to sort this out with [Post Office], but I thought you should be aware and may be able to influence things’.”
So this is another exchange, copied to you, this time, concerning Mr Jenkins, referred to as “our expert in the case of McQue”, concerning payment by POL, Post Office, yes?
Robert Wilson: Yes.
Mr Beer: By this time, January 2011, would you have known that this was a role that he, Mr Jenkins, was performing in multiple cases, many cases on behalf of the Post Office?
Robert Wilson: I think so, yes.
Mr Beer: By this time, did you know that there were, or continued to be, commercial issues over payment for his time by the Post Office, outside the contract?
Robert Wilson: Well, from this email, yes.
Mr Beer: This is referring to Mr Jenkins as “our expert” in the case of McQue. What steps, if any, did you take to ascertain how Mr Jenkins had been instructed?
Robert Wilson: I don’t recall taking any steps.
Mr Beer: Can you recall taking any steps to ascertain whether the evidence that he was providing as an expert was properly constituted as expert evidence?
Robert Wilson: No, I don’t think I’d have taken any steps.
Mr Beer: Why would that be?
Robert Wilson: Well, effectively, I think it was Juliet McFarlane’s case and I’m not sure why she’s copying me in to it.
Mr Beer: That was my next line of questions. Why were you becoming involved in this? Why were you brought into it?
Robert Wilson: I don’t know. Juliet McFarlane, when she was promoted to principal lawyer, it wasn’t simply a case of her carrying on doing the same sort of work, necessarily, that she’d done before. I gave her the role of heading up the counties cases and she had a meeting, I think, once a month in Old Street with other Post Office Limited lawyers, plus other staff from Post Office, and she would report back to me, as and when, if I needed to know some information. So she sort of headed up, in the team, the POL side of work, and I would have thought that this was something that, within her role, she could have dealt with the other Post Office Limited lawyers.
I don’t know why she copied it to me. It may be she just wanted me to know about it.
Mr Beer: Did you ever give any guidance of exercise any supervision over the lawyers beneath you in relation to their professional duties concerning expert evidence?
Robert Wilson: No.
Mr Beer: Why was that?
Robert Wilson: I thought we were doing it properly. I don’t think I was alive to the problems that you’ve pointed out to me.
Mr Beer: When you say “alive to the problems”, ie the difference of approach that’s needed when you instruct somebody to give expert evidence as a witness in court proceedings?
Robert Wilson: Exactly.
Mr Beer: Does it follow that that topic, the instruction of expert witnesses, was never something that arose in a continuing professional development context for any of your direct reports?
Robert Wilson: No, unless they specifically requested to go on a course that directly involved experts.
Mr Beer: Or an audit of the skills that they had or which they needed to have?
Robert Wilson: No.
Mr Beer: Nor, presumably, in any annual review process for, for example, Ms McFarlane or Mr Singh, that you can recall?
Robert Wilson: No, I can’t recall at all.
Mr Beer: And, presumably, not an issue that arose, to your memory, in any one-to-one reviews?
Robert Wilson: No.
Mr Beer: Thank you. That can come down.
Can I turn to the fourth topic, please, which is bugs, errors and defects, and your knowledge of them. Can we start, please, by looking at POL00070166. Can we look at the bottom of page 1 and on to the top of page 2, please. Can we see here we’re in 2006, an email to you from Stephen Dilley. Do you remember Mr Dilley?
Robert Wilson: No.
Mr Beer: A solicitor at an outside firm?
Robert Wilson: No.
Mr Beer: Bond Pearce or Bond Dickinson?
Robert Wilson: They will have been civil litigators.
Mr Beer: Yes. In any event, this is an email from Mr Dilley to you about Post Office v Castleton, and he says:
“Dear Mr Wilson,
“Mandy Talbot may already have spoken to you about this matter. The Post Office is claiming just under 26k from this former subpostmaster for failing to make good unauthorised losses that occurred in January to March 2004 at the Marine Drive branch, Bridlington. The trial starts tomorrow at the Royal Courts of Justice, London and will probably last until the end of next week.
“Mr Castleton asserts the losses are entirely fictitious caused by problems with Horizon. He has called various other [subpostmasters] who say they have had computer problems to give evidence.”
I think that probably means he has called various other subpostmasters to give evidence who say they have had computer problems:
“If necessary, would you be able to attend court to give evidence of what happened in the Singh case? I doubt it will be [necessary] but it would be helpful if we could call you if needed.
“… we will have a better idea on Thursday how things are going to pan out.”
Can you help us, looking at that email now, were you being told about this in your capacity as Head of Criminal Law or because you were a potential witness that might need to be called?
Robert Wilson: I think I was being contacted because I was Head of the Criminal Law Team.
Mr Beer: Why would you be informed about a civil case?
Robert Wilson: Because I think one of the witnesses on the civil cases we had prosecuted but had to offer no evidence in relation to the prosecution because a large number of pension or allowance orders had disappeared and, from enquiries, the Investigator – I think it was actually my case – the Investigator told me that the DWP had removed the pension allowance orders from the file because it was a joint investigation, and were investigating another matter, and they had now been lost and, therefore, we had offered no evidence, I believe, and he wanted me to come to court to give that factual account.
Mr Beer: Is that what the cross-reference is to the Singh case?
Robert Wilson: Yes, I think so.
Mr Beer: So you’re being contacted, not simply because you’re Head of Criminal Law but because you have knowledge of this other case?
Robert Wilson: I certainly had knowledge of the case, yes.
Mr Beer: Before this email, which refers to various subpostmasters saying that they have had problems with Horizon, were you aware of any Horizon integrity issues?
Robert Wilson: 2006, I don’t think I was. In 2006, Mandy Talbot emailed me and, again, I’ve seen the email in the papers, to ask me had Juliet flagged up any issues with Horizon to me, and I replied, if I can quote it accurately, “No, Juliet hasn’t. What do you mean by issues with Horizon?” and I’m not sure I ever got a reply. Certainly, there was no follow-up email on – in your papers, and I think that was 2006 as well.
Mr Beer: So this is December 2006, and this would be the first time, then, that you would be aware of subpostmasters alleging problems with Horizon?
Robert Wilson: Yes, via this email here.
Mr Beer: Yes. Did –
Robert Wilson: Well, it might not have been. We may have had – I mean you’ve mentioned Gareth Jenkins in 2005 being called on a case. So I may have been aware of issues then. It wasn’t – we did get defendants saying “We have issues with Horizon”.
Mr Beer: Did you hear about the production of any expert evidence in this case, the Castleton case?
Robert Wilson: No. I don’t think I knew – I don’t think I was given any details on the case. I was simply asked about the case that I may well myself have been prosecuting at the time. I certainly remember the pension allowance orders being mentioned to me as being missing. That was fairly significant. So it may have been my case.
Mr Beer: Did you ever have sight of any expert report or draft expert report prepared in the Castleton case?
Robert Wilson: Not that I’m aware of, no.
Mr Beer: Can we move on, please, to POL00157980. Look at page 2, please. Thank you.
Can we see an email from Mandy Talbot to a range of individuals there?
Robert Wilson: Yes.
Mr Beer: You’re, I think, the third of them; can you see that?
Robert Wilson: Yes.
Mr Beer: Ms Talbot says, again in the case of Castleton:
“This is just to let you know we have been completely successful in defending all the allegations made by Mr Castleton. You will recall that he contended that no genuine losses occurred whilst he was a postmaster and that any losses were manufactured by the Horizon system. The judgment has entirely vindicated the Horizon system.”
Did you know at this time, late 2006/early 2007, that the case, the Castleton case, was regarded within the Post Office as an important one?
Robert Wilson: I don’t think I did, no.
Mr Beer: A vehicle to seek to vindicate the reputation of the Horizon system?
Robert Wilson: No, it was a civil case. I wouldn’t have been privy to details of the case at all.
Mr Beer: You were on Mandy Talbot’s list of people to give this news to, yes?
Robert Wilson: Yes, I imagine she sent it to me because I’d been involved because, as you say, Bond – was it Pearce?
Mr Beer: Yes, I can’t remember whether they were Bond Pearce or Bond Dickinson.
Robert Wilson: Yes – had wanted me to go and give evidence, and I said I would. So I assume I was added in there, plus she probably wanted to tell me that Horizon had been vindicated.
Mr Beer: Would that because the outcome of the proceedings might be deployed in criminal proceedings?
Robert Wilson: No. How do you mean, deployed in criminal proceedings?
Mr Beer: That it could be used when, I don’t know, interviewing a suspect, when talking to a defendant or a defence solicitor?
Robert Wilson: Cases are individual. We wouldn’t have been referring to another case to try to persuade somebody to plead guilty or whatever, in an entirely different case. No.
Mr Beer: So you wouldn’t seek to cross-deploy the outcome of a case in another case?
Robert Wilson: No.
Mr Beer: Can you help us to identify the other recipients of the email: Clare Wardle?
Robert Wilson: Clare Wardle was a senior person, I believe, in – I thought she was Intellectual Property but she may well have been a Head of the Civil Litigation Team at that timetable. I’m not sure.
Mr Beer: Biddy Wyles?
Robert Wilson: Biddy Wyles, as I understand it, was a civil litigator.
Mr Beer: In Mandy Talbot’s team?
Robert Wilson: Yes.
Mr Beer: If we go up, please, and a little bit more, thank you. We can see Rod Ismay’s reply, and you’re on this copy list too.
Robert Wilson: Yes.
Mr Beer: Can you see that?
Robert Wilson: Yes, I can.
Mr Beer: “Thanks Mandy – great news. And thanks to everyone in this email and in your teams as I know you have had to do a lot of work in supporting the defence case here. Like you, my team faced a stack of witness interviews and court attendances at one time so the progress and conclusion here is great news.
“What can we do on a proactive comms front here? We’ve watched the various inflammatory letters in the SubPostmaster letters page, and wanted to be able to assure branches and clients that they can rely on the integrity of Horizon.
“We’ve had some good articles in the SubPostmaster about NBSC, Online Service and Cash In Transit. I am planning briefs on what P&BA does.
“Any thoughts on comms following this case?”
So Mr Ismay has expressed a desire for proactive communications to make the most of the judgment, agreed?
Robert Wilson: Yes.
Mr Beer: The distribution list includes Keith Baines, is that right, the Head of Commercial?
Robert Wilson: I didn’t know Keith Baines.
Mr Beer: David X Smith, the Head of IT?
Robert Wilson: I didn’t know him either.
Mr Beer: And other people from security across the business; can you see that?
Robert Wilson: I can see Tony Utting, I recognise his name, and I think he is – Graham Ward, I think he was an Investigator; Doug Evans was actually a solicitor to the Post Office; and Clare Wardle, Biddy Wyles and Mandy Talbot are the only other ones I know.
Mr Beer: Clare Wardle, general counsel?
Robert Wilson: No, Clare Wardle – Doug Evans was General Counsel.
Mr Beer: Sorry, my mistake.
Robert Wilson: Clare Wardle, I think, probably headed up Civil Litigation at that time, although, initially, she was an intellectual property lawyer.
Mr Beer: Would you agree that, by this point in time, early 2007, it was clear to you that the business, the Post Office business, regarded it as important to defeat any person that alleged that Horizon was in any way defective in the courts?
Robert Wilson: Well, it certainly seems that way from Rod Ismay’s email, yes.
Mr Beer: Was that a consistent message, in your time as Head of the Criminal Law Team, that was cascaded down to you?
Robert Wilson: I don’t think – I think these were fairly rare. I think there were one or two of them around, but they weren’t consistently.
Mr Beer: Did you yourself cascade this down to any members of your team?
Robert Wilson: Probably not.
Mr Beer: Why not?
Robert Wilson: Well, like I said before, I mean, our cases were individual cases and so Civil Litigation had won this case and, clearly, Rod Ismay was delighted with that, but it doesn’t make any difference to what we were doing and it adds no value, in a sense, to us because it’s not something we could use.
Mr Beer: Can we move on to FUJ00155230. We’ve moved on from 2006/7 to 2008 now, and this is a Post Office and Fujitsu joint Product and Branch Accounting workshop. You’re not listed as present there but I want to pick up something that’s referred to in these action points. You can see, just if you take a moment, who is present from both the organisations: three from Fujitsu, including Mr Jenkins; and the rest from the Post Office, including Mr Ismay and Andrew Winn. If we scroll down to the foot of page 1, please. In the penultimate box, there’s an action to:
“Get advice from the [Post Office] Legal Team in relation to conversations and communications to subpostmasters following software issues that impact upon the branch accounts.”
Can you see that?
Robert Wilson: Yes.
Mr Beer: Just take your time to digest that. So software issues that impact on branch accounts. At this time – so this is August 2008 – were you aware of any software issues that impacted upon branch accounts?
Robert Wilson: No, I don’t believe I was at all, no.
Mr Beer: Were you involved subsequently in any communications to subpostmasters about software issues that impacted on branch accounts?
Robert Wilson: No, I never made any communications to subpostmasters, of any sort.
Mr Beer: If this sort of action was raised, “Get advice from Post Office Legal Team”, would it come to you as the Head of Criminal Law to allocate?
Robert Wilson: No. I think that’s directed towards Civil Litigation.
Mr Beer: Why do you think it’s directed towards Civil Litigation?
Robert Wilson: Well, I think, first of all, Rod Ismay, as I’ve seen from these documents, involved Mandy Talbot in a lot of work and they both communicated with one another and, secondly, you were critical of one of my emails where I’ve effectively gone close to losing my temper about being excluded from a meeting, where I’d said – the first line was something like it was imperative that if there was a problem that it was dealt with.
And I don’t think I was involved – yes, I wasn’t involved on the list of people here and I wasn’t involved with that meeting, until Dave Posnett interjected and said “We ought to be telling Rob Wilson these things”.
So I don’t think I was in any sort of loop or conversation with anybody particularly senior and Rod Ismay, as far as I’m aware, the first contact I had with him was prior to him doing his report, and I’ve forgotten the year – 2010, I think it was.
Mr Beer: August 2010 it was concluded, yes.
Robert Wilson: So my – I believe my first contact with him, because I hadn’t come across him before – and I did see his YouTube cross-examination by yourself, and I didn’t recognise him at all. So I don’t think that I was in the loop for these types of communications.
Mr Beer: Should the Criminal Law Team have been in the loop, if there were software issues that impacted upon the branch accounts?
Robert Wilson: Absolutely. That’s why I lost my temper or close to losing my temper with the email that you rightly questioned me about.
Mr Beer: Why should, on this issue, the Criminal Law Team have been in the loop?
Robert Wilson: Well, because we didn’t know that there were software issues. It’s something that we should have known. I would want to know what they were.
Mr Beer: Were you aware of this or similar workshops taking place?
Robert Wilson: I had no idea that this took place, no.
Mr Beer: To the best of your knowledge, were any of the Criminal Law Team consulted in relation to communications to subpostmasters about software issues impacting upon branch accounts?
Robert Wilson: I don’t believe anybody was. I’m pretty sure, if anybody had been contacted, they would have told me.
Mr Beer: Would you agree that one of the reasons why the Criminal Law Team should have been involved, if it had been identified that there were software issues that impacted upon the branch accounts, would be so that the prosecutor could discharge his or her duties of disclosure in criminal proceedings –
Robert Wilson: Yes.
Mr Beer: – so that they could bring such knowledge into account when considering the evidential sufficiency in a particular case –
Robert Wilson: Yes.
Mr Beer: – and when considering the propriety of continuing prosecutions?
Robert Wilson: Yes.
Mr Beer: Can we move on, please, to 2009, FUJ00155399. If we scroll down and look at the bottom half of the page, please – in fact, if we just look at the top half first. Do you see that there’s some handwriting next to the words “Kind regards, Penny”?
Robert Wilson: Yes.
Mr Beer: It appears to read “Roy Wilson, (Legal)” –
Robert Wilson: Yes.
Mr Beer: – can you see that – which I think is probably a reference to you?
Robert Wilson: I’m sure it is.
Mr Beer: The next series of questions I’m going to ask you concern the extent to which the information in these emails was brought to your attention. So if we look firstly at the bottom half of the page, please, this is an email chain that doesn’t include you. It’s from Wendy Warham and, if we scroll to the foot of the page, please, I think it’s just over the page, you can see who she is: an Operations Director within Fujitsu, as part of the Royal Mail Account, yes?
Robert Wilson: Yes.
Mr Beer: If we just scroll back up, please. She says to Sue Lowther and David X Gray, so Post Office employees:
“Sue I have left you a voicemail as I need to update you on a recent issue that has occurred and been resolved but does have some short-term impacts. In summary the issue is as follows:
“In December 2007 an occurrence was reported in one office where a stock unit rollover coincided with the end of day process running. This led to a previously unseen database lock where an administrative balancing transaction failed to be written to the local message store database. This generated a generic and non-specific software error … which went unnoticed in the monitoring of events. A financial imbalance was evident and was subject to Fujitsu’s Service Support Centre and Post Office Limited. The financial imbalance has been resolved.
“A software correction was applied across the estate in early … 2008 to ensure that such event generated would be monitored.”
I think that’s “such events generated would be monitored”:
“Testing of that correction has established that the unmonitored error does not occur elsewhere in the system.
“Impact
“We need to work with the Post Office to recheck the ARQs and reconfirm the data integrity during the period of May ‘07 to November ‘08 – Penny will do this.
“We need to discuss how we disclose the issue on the witness statements and we have some words which may be appropriate – both need to discuss and agree the words.
“Identify which witness statement we have supplied and are still awaiting court to confirm whether or not the data provided was May ‘07 to November ‘08 to (a) ensure events have been checked and (b) to recall and replace witness statements – [Post Office]/Penny.”
Then under “Further Action”, second line:
“Education to ensure that this type of incident is raised as a Major Incident in the security stack so that we can communicate and manage this in accordance with incident timescales.”
Going up to the top of the page, you’ll see your name written on there, in so many words. Was this incident, security incident, communicated to you orally?
Robert Wilson: Yes, it could have been.
Mr Beer: If you look at the handwriting on the right-hand side, we think this is written by Penny Thomas and is referring to two conversations that she had with David Posnett?
Robert Wilson: Yes.
Mr Beer: The first one on the 7th:
“Spoke to [David Posnett] – he will liaise with his Legal Team and advise requirements and comments for [witness statements].”
Then another conversation with David Posnett:
“Spoke to DP [later that day]. He had liaised with Legal – they need the checks for the 400,000 ARQs to be made and results returned. Their brief will need to contact counsel in the event that we find any anomalies.
“Discuss witness statement – will review and talk again at a later date.”
Putting all of that information together, the content of the email, the handwritten notes on the right-hand side, and your name being written on there, do you think you were contacted, perhaps by David Posnett, about this issue?
Robert Wilson: Yes.
Mr Beer: Looking at the information contained in the email, does it cause you concern?
Robert Wilson: It should have done, yes.
Mr Beer: Why should it have caused you concern?
Robert Wilson: Because there was a bug which had been identified a year before, albeit it was isolated at one office.
Mr Beer: Why is that of concern?
Robert Wilson: Well, because it was a bug.
Mr Beer: Now, can you recall what advice you gave, if any?
Robert Wilson: I gave very poor advice.
Mr Beer: What was the poor advice you gave?
Robert Wilson: I think it was the words to the effect that, if it only impacted one office, then there’s probably nothing to disclose.
Mr Beer: I think you’re referring to a later email chain on this point, aren’t you?
Robert Wilson: Yes, I am.
Mr Beer: Let’s track that email chain down. FUJ00155400. If we look at the bottom of page 2, on to the top of page 3., can we see an email later that day at 3.54 on 7 January from David Posnett to you?
Robert Wilson: Yes.
Mr Beer: It’s about the security incident. If we just scroll to the end of the chain. You’ll see that he doesn’t, in fact, include the email that we’ve looked at.
Robert Wilson: Yes.
Mr Beer: If we scroll up, please. Although the subject line is forwarding the “Security Incident”, which was the title of the previous email, it’s in fact not included here. Let’s see what he does tell you:
“Rob, in relation to the standard witness statement Fujitsu provide …”
We’ll ignore the first one:
“2) The following additional paragraphs have been inserted (page 7). I personally do not see the need for these if there are no problems identified with the data relating to the case in question. Why inform anyone about a problem we’ve had within the network, but possibly only at one branch, if it bears no relation or relevance.”
Then there’s those two paragraphs that we did see from the earlier witness statement –
Robert Wilson: Yes.
Mr Beer: – the earlier email, which have been cut in.
The beginning of the email starts:
“In relation to the standard witness statement Fujitsu provide …”
Were you aware, by at least 2009, of a standard witness statement?
Robert Wilson: I imagine I must have been, yes.
Mr Beer: You were being told here that there had been at least one missed or unnoticed or unseen error causing a financial imbalance, which had not initially been picked up by Fujitsu systems intended to pick up such issues, correct?
Robert Wilson: Yes.
Mr Beer: On reflection, I think, now you would agree that this was a considerable cause for concern?
Robert Wilson: Yes.
Mr Beer: Would you include within the causes for concern that the issue had been reported in December 2007, afflicted data that went back to May 2007 and that the fix had not been introduced, it was said, until November 2008 –
Robert Wilson: Yes.
Mr Beer: – and that the Post Office were being told about it in January 2009?
Robert Wilson: Yes.
Mr Beer: Are you aware whether the Post Office undertook any independent testing or required Fujitsu to provide the results of any testing of the fix applied in 2008?
Robert Wilson: Did that not come later, about a week later?
Mr Beer: I don’t think we’ve seen evidence of the success of the fix. I think we’ve got an email from Fujitsu which said it’s all all right. I’m talking about some sort of independent testing or did that kind of thing just not happen?
Robert Wilson: I don’t think POL would have independently tested Fujitsu data, no.
Mr Beer: What about when this happened? We’re going to see that it happened more than once where a bug is disclosed and Fujitsu say a fix has been applied and it works. What was the process, to your knowledge, of checking to see whether what the contractor was saying was correct?
Robert Wilson: I’m not sure POL had any ability to check the Fujitsu system.
Mr Beer: Would you agree that what’s disclosed here suggested, fix or not, that other errors might have been missed or, in the words of the email, “unnoticed” or “unseen”, ie the safety net that’s meant to pick things up was not working?
Robert Wilson: I don’t want to excuse anything because this was a bad decision by me, but is it saying that the system missed the event or is it saying the operatives did not notice the event?
Mr Beer: The line is “This generated a generic and non-specific error event which went unnoticed in the monitoring of events”; that’s the line you’re referring to?
Robert Wilson: Yes, so the unnoticed bit, you’re saying, is the Fujitsu back-up, as opposed to an operative who is viewing the data.
Mr Beer: You’ve rightly said that you’re not sure if this affects the quality of the decision that was made?
Robert Wilson: No, the quality of the decision was very poor.
Mr Beer: But, in any event, whether it’s a system failing to identify the previously unseen database lock or the system identifying it but a human not taking action, it having been identified, the problem or the concern is the same?
Robert Wilson: Yeah, the concern is the same, albeit it would be more worrying if the system itself had not – if it was designed to pick up the problem, had not picked up the problem. You can understand human error but, if the system was – if I’d read it as the system being bad, in my view that would have been worse.
Mr Beer: So the concern would be greater, in fact?
Robert Wilson: Yes, the concern would have been greater.
Mr Beer: On this email, you can’t tell which?
Robert Wilson: Not on this. I’m not sure that I recall the discussion I had with Dave Posnett either, so I couldn’t say one way or the other.
Mr Beer: If we can scroll, then, to the bottom of page 2, we can see your advice, given just after 4.00 the same day. You say, “Thank you for both of your emails”. Do you think that the first email that we looked at, the one with your name written in hand on it, was in fact forwarded to you?
Robert Wilson: Probably. Possibly.
Mr Beer: Because the email that’s part of this chain doesn’t give you much context, does it –
Robert Wilson: No.
Mr Beer: – whereas the longer email from Fujitsu themselves does?
Robert Wilson: Yes.
Mr Beer: So that might explain the reference to “both of your emails” –
Robert Wilson: Yes.
Mr Beer: – the other one and the one that’s underneath this chain here.
You say:
“So far as the addition is concerned …”
The addition is the two paragraphs under paragraph 2 that aren’t in bold, if they can just be highlighted. Thank you, that’s the addition, the proposed addition.
Let’s scroll back up, please.
“So far as the addition is concerned my view is that if we are sure that there are no incidents then there is nothing undermining that will need to be flagged up to the defence. The incident will have no relevance to our cases and as such could only lead to fishing expeditions if we added anything into the standard statement.
“As soon as we know what the position is I will advise further.”
You’ve said candidly today that you regard that advice as poor or very poor. Why is that, Mr Wilson?
Robert Wilson: Well, it was – they’d already prepared the witness statements to add in this. I don’t know why I didn’t decide to just rely on that and then I – then I compound the mistake by adding that it could only lead to very fishing expeditions, which was a crass thing to say.
Mr Beer: Was this being sent in an environment which explains why you did it, namely that it was important to defend the integrity of Horizon?
Robert Wilson: No, I’ve said before, I wasn’t in the loop in relation to the people who were being contacted in relation to the civil litigation matters that were going on.
Mr Beer: What explains your poor advice, then?
Robert Wilson: I’d had a very bad day. I’m not wishing to be facetious but I made completely the wrong decision.
Mr Beer: If we scroll up, please. Mr Posnett communicates that to Fujitsu, to Penny Thomas:
“To note emails below.
“I would say Business As Usual re the witness statements, ie don’t include the two additional paragraphs on the last page.
“If any issues materialise in due course, we can address then – suggest the ARQs for these 4 cases are assessed first.”
The view which you took could only be a legitimate one, on your view of the facts, if the position was absolutely certain that the incident could never happen again, ie it was a true one-off; do you agree?
Robert Wilson: Yes.
Mr Beer: But would you agree that, even the existence of a one-off, undetected error may be relevant to undermine any assertion by Fujitsu witnesses and, in turn, the Post Office that the figures produced by the Horizon system were robust and reliable?
Robert Wilson: Yeah, I agree with you now. At the time, clearly I didn’t address that in the proper way.
Mr Beer: Put another way: if you were being prosecuted, would you consider this information undermining of a Post Office case or beneficial to the defence case, based on a lack of integrity in Horizon?
Robert Wilson: Yes, I probably would.
Mr Beer: The advice is only forward looking, ie “What shall we do in future cases”, in the inclusion or exclusion of the two paragraphs in the witness statement; do you agree?
Robert Wilson: Yes.
Mr Beer: Did you consider whether there was a continuing duty of disclosure in respect of prior convictions based on Horizon data?
Robert Wilson: I think I looked at it simply from the point of view that one office was impacted and, therefore, didn’t consider that, no.
Mr Beer: Do you consider, Mr Wilson, with the benefit of hindsight, in respect of this exchange, that, as the serious incident referred to raised questions about the reliability of Horizon data, there was a responsibility on you to ensure that past prosecutions, if relevant, had disclosure made to convicted defendants?
Robert Wilson: Yes.
Mr Beer: If we just scroll back down to the advice that you did give, you say:
“… if we are sure that there are no incidents then there is nothing undermining …
“As soon as we know what the position is I will advise further.”
Did you consider what the position was further?
Robert Wilson: As I understand it, there was an email about a week later, which said that they’d conducted the exercise and it was all clear.
Mr Beer: Overall, do you accept that this exchange raised some questions about the integrity of Horizon?
Robert Wilson: I fully accept what you’ve said and I fully accept that I made the wrong decision.
Mr Beer: Thank you. Can we move on. POL00053723. If we scroll down, please. Thank you.
An email from Mr Dinsdale to you of 11 December 2009. I think this is the email you were referring to right at the beginning of your evidence –
Robert Wilson: Yes, I think it is, yeah.
Mr Beer: – when I said we’d come back to it. In the case of Seema Misra – and we’re going to look at that in more detail, I think, probably after lunch – he says:
“Rob, I am looking for a bit of guidance on this request for Jon Longman in respect of Seema Misra – West Byfleet.
“This is a huge piece of work which could potentially wrap my team up for weeks, and then only to be asked for more questions of a similar nature. I also have concerns over the types of questions that are being asked and whether we can actually provide the information (two of the cases are still ongoing).
“We are a new team and would really appreciate your guidance on this on how to move this one forward. 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 operation.”
Then if we just scroll down, you can see the questions from the defence request have been cut into the email.
Scroll down a little bit further. Then scroll a little further.
Under the new number (1) there:
“The prosecution has always maintained there is no problem with the Horizon system … given the impression that the defendant’s defence of raising issue with the system has no merit. [We] raise the following cases. Others are in the pipeline.”
McDonald, Hosi, then over the page:
“In light of the information … please now provide details of:
“a) All post offices, past and present, that have experienced losses with the Horizon system.
“b) All prosecutions, past and present that have been brought for theft and/or false accounting as a result of alleged losses on the Horizon system.”
If we go back to the start of that email, please – and scroll up, and scroll down, thank you – would you agree that these proceedings, the Seema Misra proceedings, involved for the Post Office perhaps an unusual disclosure exercise focusing on challenging Horizon integrity.
Robert Wilson: Yes.
Mr Beer: Why were you being contacted?
Robert Wilson: I have no idea. Probably because I was simply the head of the team, maybe he didn’t know that the case was being dealt with by Jarnail Singh.
Mr Beer: Or would it be that Mr Singh was absent at this time?
Robert Wilson: Possibly. I don’t know.
Mr Beer: If we scroll up, please, we’ll see that somehow Mr Singh has got the email.
Robert Wilson: I think I sent it to him along with my reply to Mark Dinsdale.
Mr Beer: He has forwarded it to Warwick Tatford –
Robert Wilson: Yes.
Mr Beer: – asking for advice on the parameters of disclosure?
Robert Wilson: Yes.
Mr Beer: Not long after this exchange, December 2009, ie in March 2010, you wrote your long email, which we examined on the last occasion at some length, the one where you said you were exasperated at not being invited to the meeting –
Robert Wilson: Yes.
Mr Beer: – concerning the proposal for an independent expert examination of the Horizon system. You said in the first line, I’m summarising, “If there is a genuine issue then, of course, it must be investigated”, but then suggested a series of consequences if that happened.
Robert Wilson: Yes.
Mr Beer: I’m not going to go back to that email again today but I think you’ll agree that your intervention, never mind the motivation for it, had the consequence of stopping the independent investigation proposed?
Robert Wilson: Well, after that, Rod Ismay’s report was prepared.
Mr Beer: He wasn’t in any sense independent though, was he?
Robert Wilson: No, no –
Mr Beer: They were talking about, in the exchange, getting somebody from outside the organisation involved?
Robert Wilson: Yes, that’s probably right.
Mr Beer: Was your intervention in the March email exchange in any way connected with this disclosure request in the Misra case?
Robert Wilson: No.
Mr Beer: Did you take the view that it was necessary to close the proposed independent investigation down and limit disclosure where ever possible?
Robert Wilson: I never saw myself as closing the investigation – independent investigation down. I mean, Rod Ismay was senior to me and, if he’d – he and his boss had wanted an independent investigation, I wouldn’t have attempted to stop them, if they felt that that was needed, and it seems as though Rod Ismay was in a greater position to understand what was going on than I was.
So I didn’t see myself as closing that down at all but I can understand why you interpreted it that way.
Mr Beer: Was there any connection between this significant request for disclosure that went to the fundamental issue of the integrity of Horizon, and you advising three months later “There will be consequences, adverse consequences, if we get an independent expert in to examine the integrity of Horizon”?
Robert Wilson: No, there was no connection at all. The next email in this chain is me effectively saying to Mark Dinsdale, “This is an important case and we need to deal with it thoroughly”. I didn’t acquiesce to his request, if I can put it that way, to effectively support him in what he was saying. I was saying “Look, get on with it”.
Mr Beer: Thank you. Can we move on to something that you say in your witness statement, please, at page 15.
Page 15, please, paragraph 17. I’m asking you a series of questions here, firstly about what’s known as the receipts and payments mismatch bug and then, secondly, the duplicated records issue. You say “I have considered” three documents and you give us the numbers. You say:
“At the time I did not consider the issues discussed in the correspondence had a relevance to the Seema Misra case and, accordingly, did not consider these issues to be disclosable material in the prosecution. I understood that the Seema Misra case was prosecuted under the Horizon system implemented from 1999. The issues raised here I believe related to the new Horizon system which was installed from January to September 2010 and did not have any relevance to the initial system which had now been reimplemented as New Horizon (HNG-X). I now believe that this was the wrong decision and that I should have disclosed this issue in relation to all existing prosecutions.”
So I want to explore, if I can, your awareness of two sets of issues there. One is the receipts and payments mismatch bug, that’s the two documents that end in 410 and 838, and then, separately, the duplicated records issue, which is the document that ends in 995.
Can we explore, please, the reasons that you had for not disclosing them. Starting, then, with the receipts and payments mismatch bug.
Can we begin by looking at POL00055410. If we look at the bottom of page 1., we can see an email of 8 October 2010 from Alan Simpson, a member of the Security team, described as the Security Incident Senior, high importance and confidential, subject “Branch discrepancy issues”:
“Rob,
“I am forwarding you the attachments above in relation to a series of incidents, identified by Fujitsu this week, whereby it appears that when posting discrepancies to the local suspense, these amounts simply disappear at branch level and a balance is shown.
“The above includes Fujitsu’s initial analysis and proposed solution/s, whilst the other documents the outputs from various meetings held this week. My concern is around the proposed solution/s, one or more of which may have repercussions in any future prosecution cases and on the integrity of the Horizon Online system.
“There is a further dial-in meeting this afternoon at 3.00 pm to 3.30 pm should you wish to attend or failing that, as I know this is very short notice, if there are any comments/questions you would like me to offer on your behalf please drop me a note. The meeting details as follows …”
So he says that what he’s enclosing is an initial analysis, correct?
Robert Wilson: Yes.
Mr Beer: He says that the solutions proposed may have repercussions for prosecution cases and may have repercussions on the integrity of Horizon Online?
Robert Wilson: For future prosecution cases, yes.
Mr Beer: Yes. Yes, future prosecution cases, and on the integrity of Horizon Online. There’s an invitation to a telephone conversation. If we just scroll up, please, we see you forwarding that email to Juliet McFarlane and Jarnail Singh, and you say:
“Clearly I missed the call as we were at our meeting.”
So it looks like the invitation to the 3.00 to 3.30 call you weren’t present on because you yourself were in a meeting with Juliet McFarlane and Jarnail Singh, correct?
Robert Wilson: Yes, I think that’s right.
Mr Beer: Have I interpreted that correctly?
Robert Wilson: Yes.
Mr Beer: Who had responsibility, amongst you, Ms McFarlane and Mr Singh, for deciding what was to happen here by way of disclosure in at least the Seema Misra case?
Robert Wilson: Well, Mr Singh was allocated the case, so he would have dealt with disclosure.
Mr Beer: Why were you forwarding the email to both Jarnail Singh and Juliet McFarlane?
Robert Wilson: Well, because they both needed to understand what Alan Simpson had said in the first email, which I understand had attachments to it.
Mr Beer: Why did Juliet McFarlane need to understand?
Robert Wilson: Well, because she had cases. So she needed to be in the loop.
Mr Beer: Why not all members of the Criminal Law Team?
Robert Wilson: They were the people who dealt with the Post Office prosecutions.
Mr Beer: There was no one else other than Ms McFarlane and Mr Singh?
Robert Wilson: No.
Mr Beer: So you’re essentially telling the whole of the team there’s this issue?
Robert Wilson: Yes.
Mr Beer: You say Mr Singh had responsibility for deciding whether to give disclosure of it in Seema Misra’s case and Ms McFarlane in her cases?
Robert Wilson: Yes.
Mr Beer: If we look at the attachment, please. POL00028838. So this is the thing that Mr Simpson has sent on to you, yes?
Robert Wilson: I think there were – yes, that’s the email. Yes.
Mr Beer: Yes, there were two attachments?
Robert Wilson: There were two attachments to that, yes.
Mr Beer: If we scroll on, please, to page 6. That’s the second attachment, a report from Mr Jenkins.
Robert Wilson: Yes.
Mr Beer: So back to page 1, please. You’ll see that it’s either a record of what’s happened at a meeting, or a record or a statement of what is to happen at a meeting?
Robert Wilson: I didn’t appreciate the differences but –
Mr Beer: You’ll see as we go through it –
Robert Wilson: – I’ll accept what you say, yes.
Mr Beer: – there are, I think, four members of Fujitsu staff present: Mike Stewart, John Simpkins, Gareth Jenkins and Mark Wright; and everyone else, including Mr Simpson and Mr Winn, is Post Office? Can you see that?
Robert Wilson: Yes.
Mr Beer: There are no lawyers present; is that right?
Robert Wilson: Yes, that’s correct.
Mr Beer: “What is the issue?
“Discrepancies showing at the Horizon counter disappear when the branch follows certain process steps, but will still show within the back end branch account. This is currently impacting around 40 branches since migration on to Horizon Online with an overall cash value of around £20,000 loss. This issue will only occur if a branch cancels the completion of the trading period but within the same session continues to roll into a new balance period.
“At this time we have not communicated with branches affected and we do not believe they are exploiting this bug intentionally.
“The problem occurs as part of the process when moving discrepancies on the Horizon system into Local Suspense.
“When discrepancies are found during stock rollover into a new transaction period then the user is asked if the discrepancy should be moved to Local Suspense. If the branch presses cancel at this point the discrepancy is zeroed on the Horizon system.
“Note at this point nothing needs into POLSAP and Credence …”
Did you know what POLSAP and Credence were?
Robert Wilson: I don’t think so.
Mr Beer: “… so in effect the POLSAP and Credence shows the discrepancy whereas the Horizon system in the branch doesn’t. So the branch will then believe they have balanced.
“If at the next screen the rollover is completely cancelled, no harm is done. However, if the rollover is reattempted at this point, the rollover will continue without any discrepancy meaning Horizon doesn’t match POLSAP or Credence.
“… following consequences:
“There will be a receipts and payments mismatch corresponding to the value of discrepancies that were ‘lost’.
“Note the branch will not get a prompt from the system to say there is a mismatch, therefore the branch will believe they balanced correctly.
“When the branch begins the new Branch Trading period the discrepancies will show at zero, however the receipts and payments mismatch will carry over on to the next period.”
Stopping there, would you have understood what was being said here?
Robert Wilson: I think, broadly speaking, yes.
Mr Beer: Would you agree that it’s a significant problem in the sense that it directly affects balances?
Robert Wilson: Yes.
Mr Beer: It’s a significant problem because there is no warning or telltale that tells the subpostmaster what has gone on?
Robert Wilson: Yes.
Mr Beer: It’s invisible to them?
Robert Wilson: Yes.
Mr Beer: “Impact
“The branch appears to have balanced whereas in fact they could have a loss or a gain.
“Our accounting systems will be out of sync with what is recorded at the branch.
“If widely known it could cause a loss of confidence in the Horizon system by branches.
“Potential impact on ongoing legal cases where branches are disputing the integrity of Horizon data.
“It could provide branches ammunition to blame Horizon for future discrepancies.”
In relation to the fourth those bullet points, “Potential impact on ongoing legal cases”, would you have understood that that referred to both Horizon Online and Legacy cases?
Robert Wilson: Not necessarily.
Mr Beer: Would you have understood that it was restricting the potential impact to only existing prosecutions when Horizon Online data was being relied on?
Robert Wilson: I’m sorry, could you put that again?
Mr Beer: Yes. Would you have understood the potential impact to ongoing legal cases, therefore, to be restricted to cases where Horizon Online data was referred to?
Robert Wilson: What I would have understood it to mean, I think, was it was a fault with the new Horizon system, if I can put it that way, and it didn’t occur in the old Horizon system, is how I believe I understood it.
Mr Beer: How could it impact on ongoing legal cases, ie existing cases?
Robert Wilson: Because they’d migrated onto Horizon Online, I guess.
Mr Beer: So the ongoing legal cases, would you have understood that to have been a reference to prosecutions that were based, and only based, on Horizon Online data, ie prosecutions that were up and running in October 2010, ie had occurred in the relatively short period since Horizon Online had come online?
Robert Wilson: Yeah, I can see what you’re saying. I wouldn’t have understood – I don’t think I would have understood that at the time because, as I said before, I understood that the two were separate. But I can understand what you’re saying from that bullet point, yes.
Mr Beer: Under the heading “Identifying the issue and forward resolution”, over the page, please:
“The receipts and payments mismatch will result in an error code being generated which will allow the Fujitsu to isolate branches affected by this problem, although this is not seen by the branches. We have asked Fujitsu why it has taken so long to react to and escalate an issue which began in May. They will provide feedback in due course.”
Again, logically, if the issue only began in May, ie May 2010, that previous reference to ongoing cases, if you’re right that this was a problem that could only afflict Horizon Online data, could only be a reference to cases where theft or false accounting had been alleged to have occurred between May 2010 and October 2010 and the prosecution had got up and running by then?
Robert Wilson: Yes.
Mr Beer: “Fujitsu are writing a code fix which will stop the discrepancy disappearing from Horizon in the future. They’re aiming to deliver this into test week commencing 4 October. With live proving at the model office week commencing 11 October. With full rollout to network complete by 21 October. We’ve explored moving this forward and this is the earliest it can be released into live.
“The code fix will on stop the issue occurring in the future but it will not fix any current mismatch at branch.
“Proposal for affect Branches
“There are three potential solutions to the impacted branches, the group’s recommendation is that solution two should be progressed:
“ONE – alter the Horizon branch figure at the counter to show the discrepancy. Fujitsu … manually write an entry value to the local account.
“IMPACT – When the branch comes to complete next trading period they would have a discrepancy, which they would bring to account.
“RISK – Significant data integrity concerns and could lead to questions of ‘tampering’ with the branch and could generate questions around how the discrepancy was caused. This solution could have moral implications of Post Office changing branch data without informing the branch.”
Just stopping there, reflecting on an answer that you gave earlier when you said that, after the judgment, you spoke to Dave Posnett about remote access –
Robert Wilson: Yes.
Mr Beer: – and backdoors into Horizon, and he told you that you had been told at a meeting that there were no such backdoors or remote access.
Robert Wilson: Yes.
Mr Beer: This tends to suggest that there was a facility for altering figures at the counter by Fujitsu manually writing an entry, which would lead to questions of tampering and would have moral implications of the Post Office changing branch data. Is that not the kind of backdoor or remote access?
Robert Wilson: Well, it says “Alter the Horizon branch figure at the counter”. I assume that meant at the branch counter. I mean –
Mr Beer: That sounds like backdoor access, doesn’t it, remote access: altering figures at the counter without the subpostmaster’s knowledge?
Robert Wilson: Well, no. It sounds totally dishonest. It’s appalling but, as I understood that or as I understand it, it’s not a backdoor in the sense that it’s Fujitsu premises and Fujitsu hardware that’s altering the data. It’s somebody physically going to the counter in the Post Office to alter the data. And I don’t know how they proposed to do that but I didn’t read that as being a backdoor.
Mr Beer: Surely, if you’re right that this was physically sending individuals out and altering data, the people at the branch would know that was happening, and yet this reads “This would have moral implications of Post Office changed branch data without informing the branch”.
Robert Wilson: Well, yeah, they would know something was happening but it depended on what Fujitsu were going to tell them was happening or – I mean, it’s solution 1 – well, all the three solutions there are totally unacceptable, which is why I think I emailed both Jarnail and Juliet so quickly on the day that it occurred and tried to phone – is it Alan Simpson – to find out more about what was going on and to agree with him, effectively, that these three solutions were pretty outrageous.
The only solution that I saw was to tell each branch individually that we have a problem, and I think the closest that that gets to is Gareth Jenkins’ second attachment, which actually does say words similar to that.
But these – these solutions – I mean, I don’t know who these people were from Fujitsu. The only person I know or knew of was Gareth Jenkins. I don’t know how senior these people were but they were – but I shared the concerns of Alan Simpson and just thought this is ridiculous. And I’m pretty sure I will have tried to ring him that afternoon and then get – and, if I didn’t get hold of him then, I would’ve rung him the next day. So I would have been in contact with him quickly and said, “Look, we need to come up and tell each branch there is a problem. Never mind any of these three solutions, which are pretty appalling”.
Mr Beer: The second solution is:
“Product and Branch Accounting will journal values from the discrepancy account into the Customer Account and recover/refund via normal provides. This will need to be supported by an approved Post Office communication. Unlike the branch ‘POLSAP’, remains in balance albeit with an account (discrepancies) that should be cleared.
“IMPACT – Post Office will be required to explain the reason for debt recovery/refund even though there’s no discrepancy at the branch.
“RISK – Could potentially highlight to branches that Horizon can lose data.
“SOLUTION THREE – It is decided not to correct data in the branches (ie Post Office will prefer to write off the ‘lost’).
“IMPACT – Post Office must absorb about a £20,000 loss.
“RISK – huge moral implications to the integrity of the business, as there are agents that were potentially due a cash gain on their system.”
It says here that the group’s recommendation is Solution Two; can you see that?
Robert Wilson: Yes.
Mr Beer: Would you agree that the thinking here discloses, as a significant problem, a solution that reveals to branches that there might be a problem with Horizon’s integrity ie in the thinking of those involved, disclosed by this minute, it seems though, “If we do X it’s a relevant consideration that it will reveal to subpostmasters that there may be problems with Horizon integrity”?
Robert Wilson: Yes.
Mr Beer: Was there a belief or mindset within the Post Office that that is a bad thing: “If we tell postmasters that there’s a problem with Horizon, even if there is, that is generally a bad thing”?
Robert Wilson: The more I read these papers, the more I get the impression that, certainly at a senior level, that was the attitude. At my level, we should have been completely upfront and that’s what I was agreeing with Alan Simpson: “We need to tell these people”.
Mr Beer: If we go over the page, please. There’s a series of action points; can you see that?
Robert Wilson: Yes.
Mr Beer: Then over the page, you will see that none of them relates to, I think, disclosure in legal proceedings?
Robert Wilson: Yes.
Mr Beer: In the email that was sent to you, no solution of the three or any other solution is identified, is it?
Robert Wilson: What do you mean, no solution?
Mr Beer: That the paper identified three possible solutions –
Robert Wilson: Yes.
Mr Beer: – there was a recommendation –
Robert Wilson: Mm.
Mr Beer: – but there was nothing in the paper nor the covering email that said Solution One, Two or Three, or another solution, has been selected by the Post Office client?
Robert Wilson: No, no, I think this was a – I think Alan Simpson must have emailed me this very quickly and presumably had been put out by Fujitsu as the discussion point for the meeting. So I don’t think POL – any senior managers – will have had time to consider or say what their views were in relation to this. It was simply Alan Simpson’s view, which I agreed with.
Mr Beer: You tell us in your witness statement that you took the view that the receipts and payments mismatch bug was not disclosable in Seema Misra’s case because, in your understanding, the issue only afflicted Horizon Online, and the Horizon records relied on in her case had been generated by Legacy Horizon?
Robert Wilson: Yes.
Mr Beer: You now, I think, recognise that view to be – that advice to be wrong?
Robert Wilson: Yes.
Mr Beer: You’d emailed the note of the problem to Jarnail Singh and Juliet McFarlane. Did you subsequently discuss what was to be done with either or both of them?
Robert Wilson: I am pretty sure. I mean, we had an office meeting that they were – both will have been at. I’d gone back to my desk, I’d seen the email – I’ve forgotten the Investigator’s name again.
Mr Beer: Alan Simpson.
Robert Wilson: I’d seen Alan Simpson’s email and, I think, within an hour of getting it and reading it, I’d emailed it to both of them, and I’m pretty sure I will have discussed it – well, I’m pretty sure that the first point of call will have been to try to get hold of Alan Simpson. But then, I will have discussed it with both of them, and I’m sure that they will have been pretty shocked at the suggestion – the three solutions that we’ve just been through. It wasn’t something that I would not have discussed with them. I would have discussed with them, yes.
Mr Beer: Just before we break for lunch – we’re going to have to come back to this after lunch – what was the outcome of your discussion?
Robert Wilson: That they agreed.
Mr Beer: Agreed with what?
Robert Wilson: What I was saying, that, actually, we need to tell these people.
Mr Beer: The “these people” in that sentence is who?
Robert Wilson: Is the subpostmasters.
Mr Beer: Which subpostmasters?
Robert Wilson: The ones that are affected.
Mr Beer: What about disclosure in criminal cases?
Robert Wilson: I don’t think we ever got in to that topic. At that stage, the main concern would have been this.
Mr Beer: Thank you.
Sir, I wonder whether we might break until 2.00.
Sir Wyn Williams: Yes, 2.00. Thank you very much.
Mr Beer: Thank you very much, sir.
(1.01 pm)
(The Short Adjournment)
(1.59 pm)
Mr Beer: Good afternoon, sir, can you see and hear us.
Sir Wyn Williams: Yes, thanks.
Mr Beer: Thank you.
Good afternoon, Mr Wilson. We were looking at the receipts and payments mismatch bug and either the record of the meeting or a record for the meeting in October 2010, which was sent to you by Mr Simpson.
Robert Wilson: Yes.
Mr Beer: Even if you thought that the receipts and payments mismatch issue could not have affected Mrs Misra’s case because her case was one which relied on data under the old Legacy Horizon system, did occur to you that it should be disclosed in any case involving Horizon Online?
Robert Wilson: Horizon Online being the new?
Mr Beer: Yes.
Robert Wilson: Yes.
Mr Beer: What steps did you take to ensure that it was so disclosed?
Robert Wilson: I can’t recall.
Mr Beer: We’ve seen no record of a meeting or email in which any advice or instruction was given that it should be disclosed in future cases or existing cases that relied on Horizon Online data.
Robert Wilson: Yes.
Mr Beer: Did you discuss the issue with Jarnail Singh or Juliet McFarlane?
Robert Wilson: I certainly discussed the immediate issue that we had.
Mr Beer: What was the immediate issue that you had?
Robert Wilson: The immediate issue was notifying each of the branches individually what had happened.
Mr Beer: Wasn’t even more immediate than that any case in which there was a prosecution founded upon data that included the relevant period?
Robert Wilson: Yes.
Mr Beer: Did Mr Singh take a particular interest in this issue because of the Seema Misra case?
Robert Wilson: I honestly don’t know whether Mr Singh did, or Ms McFarlane, at the time. I can’t think back other than I recall that – from – again, from the documents, that I responded pretty quickly and copied them into the email and I’m pretty sure I will have had a discussion with them probably prior to even speaking to Alan Simpson, but I can’t recall any further details.
Mr Beer: Can we look, please, at POL00028838 again, please, and go to page 6, please. This was the second of the attachments to Mr Simpson’s email to you.
Robert Wilson: Yes, Gareth Jenkins.
Mr Beer: It’s a three-page, four-page report by Mr Jenkins, dated 29 September. If you look at the foot of the page, can you see that it seems to have been saved in or taken from a C-drive attributed to Jarnail Singh?
Robert Wilson: Yes.
Mr Beer: Can you see that it was printed at 4.38 on the 8 October?
Robert Wilson: Yes.
Mr Beer: 8 October was a Friday and Seema Misra’s trial started on Monday, the 11, okay?
Robert Wilson: Yes.
Mr Beer: What discussion was there about whether Mr Singh needed to disclose either this document or some other document recording information about the receipts and payments mismatch bug?
Robert Wilson: I just – I don’t recall.
Mr Beer: You said in your witness statement, we saw it in paragraph 17, that you now accept that the wrong decision was made –
Robert Wilson: Yes.
Mr Beer: – not to disclose it –
Robert Wilson: Yes.
Mr Beer: – or to not disclose it. Who made that decision not to disclose the information about the receipts and payments mismatch bug?
Robert Wilson: It was my – I’m saying I made the wrong decision.
Mr Beer: Yes. So were you the relevant decision maker then?
Robert Wilson: You mean in relation to the Misra file?
Mr Beer: Yes?
Robert Wilson: No, I wasn’t, I was saying in general terms my view was there were two different systems. I’m not saying that I communicated that with anybody else or that I persuaded anybody else to be of that view at all. I can’t recall the discussions. But looking back, that’s how I viewed it.
Mr Beer: Isn’t it likely that you had a discussion with Mr Singh, you referred in an email that we saw before lunch to meeting with him and Juliet McFarlane on the Friday?
Robert Wilson: Yes.
Mr Beer: Mr Singh has printed out Gareth Jenkins’ report?
Robert Wilson: Yes.
Mr Beer: It’s 4.38 on a Friday when this is printed and he’s got a trial starting on Monday.
Robert Wilson: I mean, he may well have printed it out to take it to court with himself, I don’t recall.
Mr Beer: If he did, it stayed in his bag because it was not disclosed. My question is: did you discuss it with him and Juliet McFarlane, the disclosure of it into the Seema Misra trial?
Robert Wilson: If I’d said to him, for the sake of argument, it’s not disclosable, I don’t see why he’s printing it out on the Friday afternoon at all. I think that’s probably an indication that he was taking it to court.
Mr Beer: The notes we saw showed that Mr Jenkins was present at the meeting.
Robert Wilson: Yes.
Mr Beer: This note is written by Mr Jenkins and, if we go forward to page 9, please, and look at the last paragraph – it must be page 8, scroll down, please. Yes, “Communication with [the Post Office]”. Mr Jenkins says:
“Once we have the information from Section 4 which will enable us to life the full scope of the issue we need to communicate this to the Post Office through the problem management mechanisms. We will then need to get Post Office Limited to agree if/how we should be correcting the data.
“Post Office should also be able to check up on POLSAP to confirm that these discrepancies are still visible even though they have been lost in the branch.
“… as discrepancies are normally losses, then a lost discrepancy would normally work in the branch’s favour and so there is no incentive for the branch to report the problem. Also, if we do amend the data to re-introduce the discrepancy, this will need to be carefully communicated to the branches to avoid questions about system integrity.”
Was there a concern within the Post Office that any communication to the branches about the problem should avoid questions about system integrity?
Robert Wilson: Well, I think, inevitably, if you’re going to tell them that this is the problem, people will question it. I don’t think they can get around that. Whether they like us informing the branches or not, Post Office Limited are stuck with the problem.
Mr Beer: Mr Jenkins was going to be called as a witness in a trial that was going to start the following Monday.
Robert Wilson: Yes.
Mr Beer: Did you or, to your knowledge, Mr Singh speak to Mr Jenkins after your meeting to communicate what the Post Office’s position was concerning disclosure of this issue in the Misra trial?
Robert Wilson: I didn’t. I don’t know whether Mr Singh did.
Mr Beer: Was anything agreed in your meeting with Mr Singh about what would be communicated to Mr Jenkins?
Robert Wilson: I’m not sure I had a meeting with Mr Singh specifically about Misra. I think I had a discussion with him and Juliet about the problem.
Mr Beer: But you’re there on a Friday afternoon with Mr Singh, knowing he’s got a trial starting on the Monday, surely the immediate issue, the really immediate issue, is: have we got to disclose it?
Robert Wilson: Well, I go back to what I said earlier, that I think if he’s copying that out at 6.38 –
Mr Beer: 4.38.
Robert Wilson: – sorry, 4.38, he must be intending to take it to court with him. I mean, I can’t see why he would print it out otherwise.
Mr Beer: Are you implying that you may have had the belief that Mr Singh did intend to disclose this in the Misra case?
Robert Wilson: No, I have no idea. I would like to be able to answer your question but I have no idea what was in his brain.
Mr Beer: If instructions hadn’t been given to Mr Singh or Mr Singh hadn’t made a decision to communicate with Gareth Jenkins, there would be a risk that, in the course of the evidence that Gareth Jenkins was to give, he might disclose this?
Robert Wilson: Yes.
Mr Beer: Was there any plan to tell Mr Jenkins what he could or could not say when he gave evidence in the Misra case?
Robert Wilson: No. Certainly not from myself, no. I mean, personally, I think that Mr Jenkins, dealing with this issue, immediately before Misra, I would have thought he would have told Mr Tatford, in any event.
Mr Beer: Why do you think Mr Tatford would be involved?
Robert Wilson: Well, because he was the person who was going to cross – was going to examine him in chief.
Mr Beer: We’ve seen from a number of communications that when any issue concerning disclosure arose, Mr Singh contacted Warwick Tatford for his advice?
Robert Wilson: Yes.
Mr Beer: We’ve seen that when Mr Singh wanted something drafted, he asked Mr Tatford and Mr Tatford would sometimes draft letters and, in one case, even an email for Mr Singh?
Robert Wilson: Yes.
Mr Beer: Do you know why, in relation to this issue, there was no communication to Mr Tatford about the existence of the receipts and payments mismatch bug?
Robert Wilson: No, I don’t. It may be that he thought it’s late on a Friday night, I won’t be able to get hold of him.
Mr Beer: You now say that you accept that the receipts and payments mismatch bug should have been disclosed, I think, to the defence in the Misra case?
Robert Wilson: To everybody, or anybody in the future, yes.
Mr Beer: Is that acceptance or concession made because you know that leading counsel for the Post Office in the course of the Hamilton trial – the Hamilton appeal, rather, himself accepted before the court that the receipts and payments mismatch bug fell to be disclosed in all prosecutions?
Robert Wilson: I wasn’t aware of that detail anyway. This is something that was in my brain.
Mr Beer: You knew at the time the test for disclosure under the CPIA?
Robert Wilson: Yes.
Mr Beer: The notes that you’d been sent made it clear that the bug impacted on balances –
Robert Wilson: Yes.
Mr Beer: – and the notes, as we saw before lunch, made it clear that there was a potential impact on ongoing legal cases?
Robert Wilson: Yes.
Mr Beer: Given those three things, how is it that you decided that that it need not or should not be disclosed?
Robert Wilson: I viewed it as being a completely different system and, therefore, no chance of the two colliding.
Mr Beer: What’s changed now?
Robert Wilson: Well, I’ve thought about it more. Obviously, I’ve seen lots more papers. I’ve listened to the YouTube, some witnesses, and I just think that we should have basically disclosed any bug at any time.
Mr Beer: Can we turn to the duplicated records issue. That’s the third of the references that you gave in that paragraph 17 of your witness statement.
Robert Wilson: Yes.
Mr Beer: In paragraph 17, you say that that too was not disclosable because it related to Horizon Online and, therefore, didn’t affect Horizon Legacy cases.
Can we look, please, at FUJ00122995. Can we start with page 5, please, if we just scroll down. Thank you.
13 September, Mark Dinsdale to Juliet McFarlane:
“Duplication of transaction records in ARQ returns”:
“Juliet, do you think this draft would be okay. I’ll run it past Penny at Fujitsu and ask them to ‘top and tail’ it into a witness statement, if you’re happy with it …”
Then the draft:
“On audits of transactions, there occurs a duplication of records when records were in the process of being recorded purely for audit purposes from the correspondence servers to the audit servers. This has always been the case; however the mechanism used on Horizon to retrieve audit data took this into account and only presented one instance of such duplicate data. As offices have migrated to the new [Horizon Online] application, any requests made for audit data during this period, the mechanism used to filter out duplicates did not remove them from the audit data.
“The duplicates only occur in the audit data, and does not affect the actual physical transactions recorded on any counter at any outlet.
“This problem has now been resolved, however a small number of audit requests made during the period from [Legacy Horizon] migration until the resolve will show the duplicate transactions.”
What do you understand is being said by that email?
Robert Wilson: I think it’s saying that, under the old system, there wouldn’t be a duplication but under the new system there is.
Mr Beer: And it’s afflicting data that is or may be presented to a court?
Robert Wilson: Yes.
Mr Beer: Thank you. Can we move on to POL00169416, and scroll down to the bottom of the chain, at page 3 at the bottom and onto page 4. This is perhaps an easier to understand explanation. You’ll see it’s from Penny Thomas to three people, Sue Lowther, Mark Dinsdale and Jane Owen in the Post Office:
“We have identified that a number of recent ARQ returns contain duplicated transaction records.
“With Horizon counters, the mechanism by which Data is audited has always worked on the principle that it is acceptable to audit the same data more than once – in particular if in doubt as whether or not it has been previously audited successfully.
“The Mechanism used on Horizon to retrieve the data took this into account and only presented one instance of such duplicate data in ARQ extracts.
“… it has recently been noticed that the [Horizon Online] retrieval mechanism does not remove such duplicates and a quick scan of the ARQs provided to the Post Office since the change to the new system indicates that about 35% of the ARQs might contain some duplicate data. A PEAK has been raised to enhance the extraction [toolkit] … However until the fix is developed, tested and deployed, there is a possibility that data is duplicated.”
Skip the next paragraph:
“… we have identified a scenario with Postal Services transactions where multiple, identical mails items are accepted … but Postage Labels are printed …”
I don’t think I need to read the rest of it.
Then if we carry on scrolling up, please – thank you, and again – we can see that Jane Owen sends out to a number of people within the Post Office that email we’ve just read, and says:
“Mark, Alan Simpson and myself have had a conference call today to look at potential problems that this is likely to cause. Firstly, the suggested workaround will need to be put to our Legal Team and until that has been agreed any further ARQ requests, including those which have been submitted, will be suspended.
“There are 2 cases currently with the court – West Byfleet …”
That’s Seema Misra’s case, yes?
Robert Wilson: Yes.
Mr Beer: “… and Porters Avenue and I will speak to Lisa and Jon about these as we need to know what in the way of ARQs and the corresponding statements have been presented to court.”
Then there is a list of additional cases.
If you scroll down:
“… a lot to digest [ask for clarification if you need it].”
Then if we carry on scrolling up, we’ll see that’s sent on to Jon Longman, who is the Investigator in the Seema Misra case.
Robert Wilson: Yes.
Mr Beer: Can we go, please, to POL0061056. This a notice of additional evidence in the Seema Misra case. If we scroll down a page, please, we will see that it’s signed off by Mr Singh. Then the next page, we’ll see it’s a witness statement from Mr Jenkins – can you see that –
Robert Wilson: Yes.
Mr Beer: – of 8 July. Then if we go to page 3, can we see “With Horizon counters, the mechanism by which data is audited”, et cetera? Then the next paragraph:
“In January 2010 a new [Horizon Online] application was introduced”, et cetera, et cetera.
We see him giving disclosure of the –
Robert Wilson: Duplicates.
Mr Beer: – the duplicate issue, don’t we?
Robert Wilson: Yes.
Mr Beer: You’ve said in your witness statement that it was your view that it didn’t need to be disclosed because it afflicted Horizon Online only and not Legacy Horizon?
Robert Wilson: Yes.
Mr Beer: Why did you take that view?
Robert Wilson: Well, because, like I said before, I saw them as two different systems.
Mr Beer: In fact, we can see that disclosure of this bug, I’ll call it, was given –
Robert Wilson: Yes.
Mr Beer: – even though, in your view, it afflicted only Horizon Online?
Robert Wilson: Well, I obviously didn’t communicate it with Jarnail or Juliet because I think Juliet – was this – this was Juliet’s duplicate problem.
Mr Beer: Why was it Juliet’s duplicate problem?
Robert Wilson: Because she was the one on the email who was contacted by – was it Mark –
Mr Beer: Mark Dinsdale?
Robert Wilson: Yeah, and I think she organised the statement, and, whether this is the same statement or not, I’m not sure but it certainly was disclosed on the Misra case, yes.
Mr Beer: So just help us one more time, then. Why did you think it needn’t be disclosed and yet it ended up being disclosed, because you’ve drawn a distinction between things that affect Legacy Horizon only and things that affect Horizon Online only –
Robert Wilson: Yes.
Mr Beer: – as the basis for the explanation for why the Misra case –
Robert Wilson: When I was making my statement I just recalled believing that the two different – there were two different systems and, therefore, disclosure was not necessary. Now, that was my memory of making the witness statement and, clearly, it has been disclosed in this particular case and, clearly, I didn’t give anybody an instruction to that effect.
Mr Beer: Thank you. That can come down.
Can we turn directly to the Seema Misra case then and start with the charging decision. In paragraph 5 of your witness statement – there’s no need to turn it up – you tell us that you do not know who authorised the prosecution of Mrs Misra.
Robert Wilson: It’s probably in the papers somewhere. I just couldn’t find it.
Mr Beer: Well, I don’t think we can tell who authorised it either.
Robert Wilson: Right.
Mr Beer: What piece of paper would you expect to exist to show who authorised the prosecution of Seema Misra?
Robert Wilson: Well, I’d expect to see a letter on the file from the Casework Team informing us who the decision maker was and that they’d made the decision.
Mr Beer: So you’d expect an Investigator’s report coming in with some associated paperwork?
Robert Wilson: Yes.
Mr Beer: You’d expect some advice going out from a member of the Criminal Law Team with advice on charge?
Robert Wilson: Yes.
Mr Beer: Then you would expect a letter from the Casework Team saying Mr X or Mrs X has decided to authorise prosecution?
Robert Wilson: Yes.
Mr Beer: In a case like Seema Misra, would you have seen papers in and out like that?
Robert Wilson: Yes.
Mr Beer: So to what extent would you familiarise yourself with the issues, or would you simply say, “This is a letter concerning Seema Misra, that’s got to go to Jarnail”?
Robert Wilson: Yes, I received the post every day, unless I wasn’t in, in which case I delegated it to whichever lawyer, senior lawyer was in, and so I will have seen the post, divided it up, and I will have taken it around to the lawyers and, whether they were in or not, and I’d put it in their in-tray, because they may be in later in the afternoon. So I would see post coming in to the office, yes.
Mr Beer: To what extent did you engage with the contents, rather than seeing to whom it was addressed and, therefore, to whose in tray it should go to?
Robert Wilson: Oh, no, I think if there was something in the contents which was interesting or worrying or, for whatever reason, I wanted to discuss it, I would have taken it to the lawyer and discussed it with them.
Mr Beer: So, at the time, you were presumably aware that Mrs Misra had been charged with both theft and false accounting and had pleaded guilty to the false accounting charge albeit the Post Office didn’t accept that plea and was seeking a conviction for theft?
Robert Wilson: Yes.
Mr Beer: When you gave evidence back on 12 October, you told us that you had directed the lawyers in the Criminal Law Team not to charge both theft and false accounting?
Robert Wilson: Yes.
Mr Beer: Did you discuss with Mr Singh why Mrs Misra had been charged with both theft and false accounting?
Robert Wilson: I don’t know whether I did on the Misra case but I certainly remember having discussions with both Jarnail and Juliet in relation to putting both sets of charges together because of the case of R v Eden, and it was a bone of contention that I did have with them.
Mr Beer: What was the nature of your bone of contention?
Robert Wilson: That they should be following what R v Eden said.
Mr Beer: What was your understanding of what Eden said.
Robert Wilson: Basically, you have to pin your colours to the mast.
Mr Beer: We’ve heard some expert evidence who said that the Court of Appeal in Eden made it clear that there will be cases where it is appropriate to have a charge of false accounting as an alternative charge to theft. Did you know that at the time?
Robert Wilson: Yes, I read Eden, it was a Post Office case. It was one of the first cases that was drawn to my attention by my predecessor.
Mr Beer: What did you understand to be the circumstances in which it was appropriate to charge false accounting as an alternative to theft?
Robert Wilson: I can’t remember now but I imagine where there were two separate incidents which would justify separating the two charges.
Mr Beer: Is it fair to say that some lawyers within the Criminal Law Team took a different view to you on the propriety and desirability of charging both?
Robert Wilson: No, that’s a fair comment.
Mr Beer: What reasons, if any, did they give for taking a different view to you?
Robert Wilson: I can’t remember. I mean, they may have attempted to argue what we’ve just been discussing about charging them both. I don’t know.
Mr Beer: Did anyone give you an explanation along the lines of “If we put false accounting on as Count 2, 3, 4, 5, 6 [or whatever] we often get pleas to those”?
Robert Wilson: I don’t think there would be that – I don’t think they would say that. They might think it but I don’t think they would say it to me.
Mr Beer: Can I turn to some other disclosure issues in Misra. You’ve told us already, candidly, today, that you accept that the wrong decision was taken on disclosure in relation to issues that you believe related only to Horizon Online and did not afflict Legacy Horizon.
But you don’t mention in your witness statement documents that could or did relate to the Horizon system before the switch in 2010. I just want to explore some of those with you, if I may?
Robert Wilson: Right.
Mr Beer: Can we start, please, with POL00044557. If we go to the last page of this document, please, you will see it’s an Advice from Warwick Tatford, dated 5 January 2010. You remember when we were looking at that long disclosure request that was cut into an email?
Robert Wilson: Yes.
Mr Beer: Eventually, Mr Singh sent that on to Mr Tatford asking for his advice – do you remember we saw that this morning –
Robert Wilson: Yes, yes, yes.
Mr Beer: – and this was the reply. If we go to page 3, please, and look at paragraph 7., Mr Tatford advises:
“I also think that our disclosure duty requires us to ask Fujitsu whether they are aware of any other Horizon error that has been found at any sub post office. I anticipate that there will be none, but it is important that the check is made.”
Did you see this advice?
Robert Wilson: I don’t recall seeing it, no.
Mr Beer: Would it be normal that, as part of the process for post coming in, post going out, that you see advices like this?
Robert Wilson: If it came in via the post, yes.
Mr Beer: Was there any system in place for you to see significant documents that came in by email only?
Robert Wilson: I had access to each of the lawyers’ email addresses for when they were on holiday but I can’t say, other than when they were on holiday, I accessed their emails.
Mr Beer: You weren’t checking whilst they were still there?
Robert Wilson: No.
Mr Beer: Did that piece of advice that we see there ever make its way through to you, so far as you can recall?
Robert Wilson: I can’t recall, I’m sorry.
Mr Beer: Can you recall whether it made its way through to you, in the context of any other case, that prosecution counsel was advising that Fujitsu should be asked of any other Horizon error that has been found at any sub post office? That’s quite a broad statement, I think, isn’t it?
Robert Wilson: Yes. I don’t recall.
Mr Beer: Presumably, if you drew a distinction between Horizon Online and Legacy Horizon, such advice might conflict with that distinction?
Robert Wilson: Yes, but again, I’m not sure I communicated it with either Mr Singh or Ms McFarlane and I certainly wouldn’t have communicated it with counsel.
Mr Beer: In any event, if you remember the formulation there of Mr Tatford:
“… our disclosure duty requires us to ask Fujitsu … any other Horizon error that’s been found at any sub post office.”
Can we go forward, please, to FUJ00152902 and look at page 2, please. Can we see an email here from Mr Longman, dated 1 February, so just after that advice, and can you see paragraph 3 of Mr Longman’s email to Fujitsu?
Robert Wilson: Yes.
Mr Beer: He says:
“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 there are none could this be clarified in the statement.”
Robert Wilson: Yes.
Mr Beer: Would you agree that what Mr Tatford has advised has been watered down?
Robert Wilson: Um …
Mr Beer: Maybe I can help you. The first respect in which –
Robert Wilson: Fujitsu.
Mr Beer: Exactly. The first one was asking for a third-party provider of the computer system, so a third-party disclosure source, whether it, the corporation, was aware of any other Horizon problem at any sub post office.
Robert Wilson: Yeah.
Mr Beer: That’s been translated to an address to an individual to mention something?
Robert Wilson: Yeah, I mean, I’m not seeking to argue with you but the second sentence also goes on to say, “are any known problems with the Horizon system that Fujitsu are aware of”. So he’s sort of semi-redressing it.
Mr Beer: He’s narrowing and then broadening it?
Robert Wilson: Yes.
Mr Beer: Did this translation or transliteration of Mr Tatford’s advice, asking the Post Office to address the corporation, into any mention in a witness statement, get revealed to you at the time?
Robert Wilson: No, I don’t think so. I understand, though, that Mr Jenkins did actually put in a witness statement, I’m pretty sure, in the Misra case.
Mr Beer: He did and, before he did – and I’m not going to take you through it all in the light of your answers – he said that he was unhappy or unwilling to answer directly question 3?
Robert Wilson: Without the data.
Mr Beer: No. He was unhappy or unwilling to answer directly question 3.
Robert Wilson: I have to say that I’m surprised at that. I thought he’d said that there was none.
Mr Beer: This kind of exchange of information, would you expect it to be disclosed in criminal proceedings?
Robert Wilson: If he’s saying he can’t give an answer to that, and he’s working in Fujitsu, definitely.
Mr Beer: You were responsible, in the sense of being accountable for the work of your lawyers in the Criminal Law Team?
Robert Wilson: Absolutely.
Mr Beer: But were you also not responsible because others sought your guidance on how to approach issues of Horizon integrity as we’ve seen in the emails of this morning?
Robert Wilson: Yes, and is this about me endeavouring to help them?
Mr Beer: Yes.
Robert Wilson: Yes.
Mr Beer: To what extent was the Post Office’s strategy, in the prosecution of Mrs Misra, informed in your understanding by an objective of deterring other subpostmasters from raising concerns about Horizon?
Robert Wilson: That should not have been a concern at all.
Mr Beer: I know it should not have been: to what extent was it?
Robert Wilson: I don’t believe it was.
Mr Beer: You’ve read, I think, what the Court of Appeal said about the Seema Misra case in the Hamilton series of appeals?
Robert Wilson: Yes.
Mr Beer: In the light of that, do you agree, on reflection, that the Post Office and the Criminal Law Team did not fulfil its duties under either the Code for Crown Prosecutors to evaluate the evidence in support of the relevant charges nor discharge its disclosure obligations under the CPIA?
Robert Wilson: I wouldn’t seek to argue with the Court of Appeal.
Mr Beer: You confirm in your witness statement, in relation to obtaining expert evidence, that, firstly, you gave no instructions to Mr Jenkins in the course of the Seema Misra case.
Robert Wilson: I can’t remember giving any instructions to Mr Jenkins in any case.
Mr Beer: That’s paragraph 15.3 of your witness statement.
Robert Wilson: Yes.
Mr Beer: You confirm that you do not know whether Mr Singh or anyone else in the Criminal Law Team gave Mr Jenkins such instructions in the Misra case?
Robert Wilson: I mean when you say “instructions”, you mean directions to do something?
Mr Beer: Yes.
Robert Wilson: I can’t remember directing any witness to do any particular thing.
Mr Beer: You tell us in your witness statement, it’s paragraph 15.4, that you do not know, one way or the other, whether anyone gave Mr Jenkins any explanation as to the duties of an expert witness in the Seema Misra case?
Robert Wilson: No, I mean, I assume that Mr Tatford would have taken him through that during the course of the trial.
Mr Beer: You say that in paragraph 15.4 –
Robert Wilson: Yes.
Mr Beer: – where you’re addressing the question of whether you or anyone else explained the duties of an expert to Mr Jenkins, and you say that you believe Mr Jenkins would have been questioned in court –
Robert Wilson: Yes.
Mr Beer: – about his qualifications, experience, and the basis for his opinions?
Robert Wilson: Yes.
Mr Beer: Are you by that suggesting that whether a prosecution witness was being called as an expert and whether their evidence was admissible as expert evidence was a matter to be determined by the court at trial?
Robert Wilson: No, I don’t think I’m saying that. What I’m saying is that him – counsel would have questioned Mr Jenkins, so it was clear to the court that he understood that his duty was to the court and not to those of us who were instructing him.
Mr Beer: That may be so and that may be a necessary part of adducing expert evidence in court. We’re interested in the antecedents stage, ie what happened before. Are you suggesting that because, when it got to court, counsel may ask questions about qualifications, experience and basis of opinions, there was no necessity to do any of that beforehand?
Robert Wilson: No, we clearly got it wrong with how we instructed Mr Jenkins in terms of his expertise, and I remember you going through a very long list with me on the first day of my evidence, and I believe I accepted that what you were saying was right and that we were wrong – or I was wrong.
Mr Beer: I was just checking that what you now say in paragraph 15.4 of your second witness statement is not a gloss on that, ie because qualifications, experience and basis of opinions are addressed at court, there’s no need to do it beforehand?
Robert Wilson: No, I’m not saying that at all. I’m accepting what you said to me on the first occasion that I gave evidence and I’m not trying to gloss it.
Mr Beer: Thank you.
Robert Wilson: I’m not excusing myself.
Mr Beer: Thank you very much, Mr Wilson.
Can we turn to what happened after the trial, then, and look at POL00093686. Look at page 5, please, foot of the page. This is sent by Jarnail Singh’s secretary. If you just see in the top right there it says, his secretary “on behalf of Jarnail Singh”, sent on 21 October 2010 to Mandy Talbot and others, not including you.
Robert Wilson: No, I’m included.
Mr Beer: Are you?
Robert Wilson: Yeah, third line down.
Mr Beer: Oh, I’m so sorry. Yes, I completely missed you. Looking at the content, Mr Singh says:
“After a lengthy trial at Guildford the above named was found guilty of theft. The case turned from a relatively straightforward general deficiency case into an unprecedented attack on the Horizon system. We were beset with an unparalleled degree of disclosure requests by the defence. Through hard work of everyone, counsel Warwick Tatford, Investigation Officer Jon Longman, and through the considerable expertise of Gareth Jenkins of Fujitsu we were able to destroy to the criminal standard of proof (beyond all reasonable doubt) every single suggestion made by the Defence.
“It is to be hoped that the case will set a marker to dissuade other defendants from jumping on the Horizon bashing bandwagon.”
“Jarnail Singh.”
The subject of the email is called “Attack on Horizon”; can you see that?
Robert Wilson: Yes.
Mr Beer: When he gave evidence, Mr Singh said that you or Mandy Talbot selected this distribution list for him and told him who to send it to; is that correct?
Robert Wilson: I certainly didn’t.
Mr Beer: Would it be usual for Mandy Talbot, in Civil Litigation, to tell Jarnail Singh, the case holder in Criminal Litigation, who to send an email to?
Robert Wilson: No. His email is on the same day as I understand the trial concluded –
Mr Beer: Yes.
Robert Wilson: – and at –
Mr Beer: It’s the afternoon of the trial.
Robert Wilson: – 14.58. I know from looking at my diaries on that particular date I wasn’t in the office, certainly in the morning. I was in an East London Mail Centre and I don’t know how long I stayed in the East London Mail Centre but what I do recall is when I saw this email I was quite surprised, not only about the people that it had gone to, some of whom I have no idea who they are, but also about the content, because this is not a report that I would have prepared or any other lawyer would have prepared, and you can see that on the Henderson case, where I do the report on the Henderson. That’s how –
Mr Beer: It’s just the facts?
Robert Wilson: Yeah, absolutely.
Mr Beer: The second thing that Mr Singh told us was that the title of the email, “Seema Misra – Guildford Crown Court – Trial – Attack on Horizon” was dictated to him, perhaps by you; is that correct?
Robert Wilson: No.
Mr Beer: The third thing he told us was that he typed these words or more accurately asked his secretary to type these words, including “Attack on Horizon”, even though he personally did not believe that the Seema Misra case involved an attack on Horizon. Did he ever express such sentiments to you: “I’ve been forced to write an email, the title to which and the contents with which, I disagree”?
Robert Wilson: No.
Mr Beer: He said, fourthly, that a collection of people dictated the contents to him, perhaps involving counsel, perhaps involving you, perhaps involving other lawyers, but then you saw a draft of the email and you approved the final draft, which is his then-secretary sent out; is that true?
Robert Wilson: No.
Mr Beer: Did you draft any part of this email?
Robert Wilson: No, I did not.
Mr Beer: Did you authorise the sending of this email in any way?
Robert Wilson: No.
Mr Beer: Did you share the view expressed by Mr Singh that the Horizon integrity issue was a passing bandwagon upon which people could jump?
Robert Wilson: No.
Mr Beer: Can we turn to POL00169170. So we can see what happened to Jarnail Singh’s email, if we scroll down, please. We can see just the email there at the foot of the page and then, somehow, in this version of it – we can’t see how it got there, but somehow – it’s got from the distribution list at the bottom of the page on to David Y Smith, Rod Ismay, who was on the distribution list, Mike Moores, Mike Young and Paula Vennells, yes?
Robert Wilson: Yes.
Mr Beer: David Smith, he was the Managing Director of the company at the time; is that right?
Robert Wilson: I don’t know.
Mr Beer: David Y Smith?
Robert Wilson: I don’t know.
Mr Beer: Paula Vennells was Head of Network, Post Office Network?
Robert Wilson: I recognise Paula Vennells’ name because I think she became the Chief Executive of –
Mr Beer: Subsequently. At this time, I think she was Head of Network?
Robert Wilson: Right.
Mr Beer: Then if we go on further up the page, please, we can then see Mr Ismay redistributes the email back to everyone who was on the first list – can you see that –
Robert Wilson: Yes.
Mr Beer: – including you?
Robert Wilson: Yes.
Mr Beer: “Dear all – please note Dave Smith’s thanks to you all for your important work on this case.
“Dave and the [Executive Team] have been aware of the significance of these challenges and have been supportive of the excellent work going on in so many teams to justify the confidence we have in Horizon and in supporting our processes.
“This is an excellent result and a big thanks to everyone.”
So Rod Ismay here is making sure that everyone saw how pleased David Smith was with the outcome, yes?
Robert Wilson: Yes.
Mr Beer: This circulation list includes some of the same people that we saw in the congratulatory email after the Castleton trial, including you, Mandy Talbot and Rod Ismay, as well as a successor people, like Susan Crichton, the General Counsel. Do you see any pattern emerging between the emails?
Robert Wilson: Yes.
Mr Beer: Both followed trials which had challenged the integrity of Horizon, yes?
Robert Wilson: Yes.
Mr Beer: Both were gleeful that the challenge was defeated?
Robert Wilson: Yes.
Mr Beer: Both victories were seen as a way of sending a message out to the subpostmaster community?
Robert Wilson: Yes.
Mr Beer: Both were evidently of interest and importance to senior people within the Post Office, weren’t they?
Robert Wilson: Yes.
Mr Beer: You say in your statement that you cannot recall what you thought at the time about the outcome of the case but you were surprised at the audience?
Robert Wilson: Yes.
Mr Beer: Why were you surprised at the audience?
Robert Wilson: I didn’t realise that it was being watched, effectively, by pretty senior people within Post Office Limited.
Mr Beer: How has that come about, as Head of Criminal Law, surely you should have been aware that the Managing Director, David Y Smith, and the Executive Team were aware of the significance of the challenges that the Misra case presented?
Robert Wilson: Well, I wasn’t aware. They weren’t contacting me; I wasn’t contacting them. Mr Singh wasn’t telling me that lots of people were interested in it.
Mr Beer: As far as you were aware, was it just another run-of-the-mill case, then?
Robert Wilson: Well, it certainly was when I allocated it to Jarnail but, in terms of disclosure, it took on a life on its own but, I mean, I didn’t view it, at any particular stage, as a test case, which clearly other people were viewing it as. For me, it was another case with a lot of disclosure.
Mr Beer: Given the defence that Mrs Misra was running, in short that Horizon had created fictitious shortfalls in her accounts –
Robert Wilson: Yes.
Mr Beer: – if she had been acquitted, do you think that would have opened up the strong possibility of attacks on past convictions secured on the back of Horizon evidence?
Robert Wilson: I think, looking back now, I think that probably you’re right. I think, having seen the amount of disclosure and then being told by a jury “We’re not going to convict”, would have been a defining moment, yes.
Mr Beer: It may have called a halt to Horizon prosecutions?
Robert Wilson: It may have done, yes.
Mr Beer: Would you agree that, although your department would have been in the vanguard of driving that process of looking back at past convictions and halting current prosecutions, the implications would have been felt across the entire Post Office estate, ie they would have had effects not just on prosecutions?
Robert Wilson: Inevitably, yes.
Mr Beer: Can you therefore now understand the relief that’s expressed in these emails that she was convicted?
Robert Wilson: I saw the – well, from the senior people?
Mr Beer: Yes.
Robert Wilson: Not from Jarnail Singh?
Mr Beer: Well, from both, actually.
Robert Wilson: Well, I saw Jarnail Singh as being relieved on the basis that it was probably a stressful period for him and that lent towards the language that he’s actually used. So when I saw the first email, whilst I was surprised, I put it down to stress because I think, had I not – or believed that that was the position, I think I’d have had a word with him about his use of the language because it was inappropriate.
With the senior people here, yes, I mean I probably wouldn’t have seen a congratulatory email like this at all if the case had been – if Ms Seema Misra had been acquitted.
Mr Beer: You were on the distribution list, as you rightly pointed out, of the original email –
Robert Wilson: Yes.
Mr Beer: – and of this reply, after its done the rounds amongst senior people within the Post Office. You didn’t pull Mr Singh up on it, did you?
Robert Wilson: No, as I say – I said just now, I thought his reply was probably generated by a relief – relieving his stress.
Mr Beer: Or is the truth that you were also personally invested in the outcome of Seema Misra’s case? After the Lee Castleton congratulatory email sent to you, after your email about not setting up an independent expert evaluation of the integrity of Horizon, after your sight of the Ismay report, you can’t have been in any doubt that the business was interested in cases which challenged the integrity of Horizon, can you?
Robert Wilson: Well, I wouldn’t have been in any doubt seeing this that the business was interested in the – the result of cases.
Mr Beer: Well, therefore, you can’t have been surprised at the audience of this “bandwagon” email?
Robert Wilson: Well, it was a surprise.
Mr Beer: But why? If –
Robert Wilson: Because I didn’t –
Mr Beer: If, after all of the events which had happened, the last round, the big challenge, was Lee Castleton, after the proposal to get an expert evaluation of the integrity of Horizon, which you, on balance, argued against, after the disclosure issues that we’ve looked at, after the Ismay report, you knew what was riding on this case, didn’t you, and, therefore, how everyone would be interested in its outcome?
Robert Wilson: I really don’t see that as being in my brain, no. I think I was quite surprised. I mean, the Lee Castleton thing I had virtually nothing to deal with, because all I did was say, “Yes, I’ll come to court and explain why Mr Singh was acquitted”. The Rod Ismay report, I had very little to do with that. I think I may have given some information about cases that we’d been – prosecuted but I had very little to do with that and was quite surprised, because I’d forgotten about the pending report, when it came through.
And, yeah, these things were happening over an extended period of time and they weren’t always in the front of my memory. I’m not trying to make an excuse. Maybe I should have been aware that there was a big interest in this but all I can remember about the final email here was being surprised at the number of people that clearly had been interested in it and that I was unaware of.
Mr Beer: That can come down. Thank you.
We’ve looked at a series of emails of what happens when the Post Office is successful in civil proceedings or criminal proceedings. Can we look at what happens when the opposite comes about.
Anthony Utting, Tony Utting, gave evidence on 17 November this year and he told us that, when the Post Office lost the case, there would be a report, which was written by counsel, that would go to the Criminal Law Team and the leadership team about why it had been lost; is that correct?
Robert Wilson: Certainly, if we lost a case, I would ask counsel for a report on the case, giving a view as to why he believed or she believed that we’d lost it, yeah.
Mr Beer: What would you do with that report?
Robert Wilson: Well, that would be forwarded up to my line manager, whether it was Andrew Wilson or Tony Utting, or whoever.
Mr Beer: What was the purpose of doing that?
Robert Wilson: Well, the purpose was, if there was a problem identified by counsel, we would try and rectify it or understand what went wrong and provide training, or whatever was needed.
Mr Beer: In January 2007, Mrs Susan Palmer, after a three-day trial in which she had raised Horizon integrity issues, was acquitted of three charges of false accounting with the jury acquitting her after about ten minutes. The jury asked the question, “What was Mrs Palmer supposed to do if she did not agree with the figures that the Horizon system produced?” The Post Office representatives at court were unable to answer that question.
Was there a post-trial report in that case?
Robert Wilson: There will have been. I can’t remember.
Mr Beer: The jury raised in public a question as to the reliability of the Horizon system and what a subpostmaster was supposed to do if, in that case, she did not agree with the figures, and the Post Office was unable to answer it at court. Was any review undertaken in the light of this outcome?
Robert Wilson: I don’t recall the case at all. I imagine there should have been a review. I imagine there would have been a review. But it seems to me extraordinary that they don’t know that she could have reported that to – I can’t remember the initials of the group that dealt with problems. Yeah, I’m surprised at that.
Mr Beer: We haven’t got a review or a report back to you. The only emails we’ve got are gloating emails when the Post Office wins. Do you know why that is? We’ve got no reviews of when cases are lost by the Post Office?
Robert Wilson: Well, it could be that it wasn’t by email. I mean, counsel may have –
Mr Beer: Okay, reports or any document or piece of paper.
Robert Wilson: I have no idea how the Post Office disclosed all these documents on you. But I did ask for – on every case that we lost, I asked for a report from our counsel who is dealing with it and, if it was an agent’s case, I’d also ask for an agent to give me a report. So I will have got a report. I’m pretty confident about that. I don’t recall it, though.
Mr Beer: Thank you very much, Mr Wilson.
Sir, I wonder if we might take the afternoon break now until 3.20.
Sir Wyn Williams: Yes, very well.
Mr Beer: Thank you, sir.
(3.04 pm)
(A short break)
(3.20 pm)
Mr Beer: Good afternoon, sir, can you see and hear us?
Sir Wyn Williams: Yes, Thanks, yes.
Mr Beer: Thank you.
Good afternoon, Mr Wilson.
Can we turn – in fact, before we turn to that, Ms Gallafent has kindly pointed out to me that POL00049716 – needn’t be displayed – shows that David Pardoe was the person who authorised the prosecution of Seema Misra. Thank you.
Can we turn, please, to Allison Henderson. You were the relevant lawyer in Mrs Henderson’s case, yes?
Robert Wilson: Yes.
Mr Beer: Can we look, please, at POL00044501. Can we scroll to the foot of the page, please. This is, is this right, a memorandum from the Investigator to you –
Robert Wilson: Yes.
Mr Beer: – dated 20 April 2010?
Robert Wilson: Yes.
Mr Beer: Then if we scroll up, please. Is this, essentially, a memorandum seeking your advice on charges? Just take a moment to read it to yourself.
Robert Wilson: It’s not the traditional report that I’d expect to see.
Mr Beer: Have I picked the story up sort of halfway through? If you look just towards the bottom of the page where it’s being displayed there, where it says, “I hope … we can continue with charge(s) of theft and false accounting”.
Robert Wilson: Yes, I think so. The normal report is slightly different to that.
Mr Beer: Yes. You tell us in your witness statement – I wonder whether we can turn it to up, then, please, page 21 of your witness statement. At paragraph 33, you refer to some documents earlier in your statement, and you say:
“I believe, after having reviewed the documents, that the first time I became aware that the integrity of Horizon data was being questioned was upon receipt of the amended defence statement dated 16 November 2010 … I received an indication that Mrs Henderson was highly likely to plead to false accounting. The receipt of the challenge complaining of the malfunction of Horizon would have raised an obligation to serve on the defence any material that assisted the defence or undermined the prosecution.”
Then you say this:
“I do not believe that ARQ data was ever sought in this case.”
That certainly matches the material that we have got.
If, as you said the outset of today, that ARQ data was fundamental in at least those cases where Horizon data was being questioned or the integrity of Horizon was being questioned, why wasn’t ARQ data sought in this case?
Robert Wilson: Well, I think it will have been sought had she maintained her not guilty plea but I think the defence statement of 16 November, crossed with a telephone call of either the same date or the date before, with the defence solicitors, who’d telephoned me to say that it was in counsel’s hands, but it was likely to be a guilty plea. And then five or seven days later, counsel had had – counsel to counsel had had a telephone call where the defence said that she would be pleading to – she would plead to false accounting and would not be challenging Horizon.
Had she maintained a not guilty plea, we would have been looking at ARQ data, ARQ data.
Mr Beer: Can we look, please, at that train of events, POL00055807, a letter of 18 November from defence solicitors Belmores to you. Question:
“We act on behalf of the above named and wonder whether you might accept a plea to false accounting in this matter as well as full repayment of the [£12,000-odd] outstanding.”
To what extent was repayment of alleged losses ever made a condition of acceptance by the Post Office of a plea?
Robert Wilson: To say I wasn’t interested in repayment is underplaying the statement but that was not a primary concern of mine, and I don’t believe I made it a condition with Belmores. I think they were offering this.
Mr Beer: Can we just look at what the defence statement said, POL00044503.
Defendant doesn’t dispute that £12,000-odd appears to be missing …
“[She] offers no particular explanation and does not understand why there is a discrepancy, however does believe that any discrepancies are the result of a malfunction of the Horizon computerised accounting system. [She] believes that any discrepancy could have been discovered by the Post Office auditor, particularly as he initially alleged £18,000 was missing, this was reduced to the alleged sum in a matter of minutes. Further investigation by the auditor would have discovered the whereabouts of the missing sum.
“She categorically denies appropriating any money from [the Post Office].
“… not in any financial difficulty … of good character and has not moved any monies or made significant purchases.
“[She] accepts that she is contractually obliged to pay the amount of £12,000-odd to the Post Office and has instructed her solicitors to approach prosecution as to how best this can be [achieved].”
Can we see what your response was to the defence statement, POL00055783. At the top of the page, 17 November:
“Have received a defence statement today, despite the telephone conversation [today]. A hard copy has been put in the post today.
“… the defence allege that any discrepancy was as a result of the Horizon system.”
Then last paragraph:
“Clearly if there were to be a plea to false accounting but on the basis that the Horizon system was at fault that would not be an acceptable basis of plea for the prosecution.”
Can we look, please, at POL00046865. Look at page 7, please. This is Allison Henderson’s questionnaire as part of the Complaint Review and Mediation Scheme. Can you see at paragraph 6, the second bit of it:
“She [that’s Mrs Henderson] was advised to plead guilty to false accounting in return for dropping the theft charge. She was also told that she could not mention any problems with Horizon in court.”
Can you see that?
Robert Wilson: Yes.
Mr Beer: I think you know that the Court of Appeal, in its Hamilton judgment, insofar as it concerns Allison Henderson, noted that the Post Office conceded that it was improper to make the acceptability of Mrs Henderson’s plea to false accounting conditional upon making no issue of the Horizon system. The Court of Appeal continued:
“In our judgment, such conduct on the part of a prosecutor is improper. The Post Office had dropped the theft charge and so could no longer advance any case that she had stolen the money. The Post Office concedes that that should have left the way open to Mrs Henderson to suggest that there was no actual loss and she had only covered up a shortfall that Horizon had created.”
Do you accept, as you did before, what the Court of Appeal says?
Robert Wilson: I wouldn’t seek to argue with the Court of Appeal at all, in any shape or form, but my – the reason I was putting that in there was in the event that she did plead guilty to the false accounting, then I refer back to what I put in my witness statement a number of times concerning the agreement. If there wasn’t an agreement between the prosecution and the defence, in terms of the difficulties – I’m phrasing this really badly – the difficulty in the case, then you’d effectively have a Newton hearing.
I mean, that was what I was trying to do but I accept that I put it in a very different and difficult way in that document that you’ve just shown me, yes.
Mr Beer: With hindsight, to you accept that it wasn’t proper to make the acceptability of the plea or the basis of plea to false accounting conditional on making no issue of the Horizon system?
Robert Wilson: Yes. I think what I’ve done is wrongly worded it. What I should have said was that, in the event that we have a disagreement about culpability, then it’ll probably have to be dealt with as a Newton hearing, or words to that effect. Yes, I’ve put it in the wrong way. I accept that.
Mr Beer: In Mrs Henderson’s case, did you disclose the receipts and payments mismatch bug documentation?
Robert Wilson: No.
Mr Beer: Did you disclose the Rod Ismay report?
Robert Wilson: No.
Mr Beer: Why was that?
Robert Wilson: The Rod Ismay report, as far as I was concerned, was a vindication of the Horizon system and I didn’t see that as undermining our case.
Mr Beer: Did you expressly consider it?
Robert Wilson: Did I expressly consider –
Mr Beer: It for disclosure?
Robert Wilson: No, basically because I felt that it didn’t undermine our cases.
Mr Beer: When Mrs Henderson lodged her defence case statement or her defence statement, did that not trigger an obligation to review what material existed within the Post Office generally, without going to Fujitsu in the first instance?
Robert Wilson: Yes, it would have triggered disclosure, yes.
Mr Beer: Is it right that there wasn’t a central repository, whether physical or on a server, for investigators and prosecutors to access, of all information relating to alleged or established problems with Horizon?
Robert Wilson: Yes, it’s right. I know it was suggested by counsel in an earlier case, who represented the subpostmasters and mistresses, a large number of them, and I think it was an opportunity we missed.
Mr Beer: Was active consideration ever given to that, to have a central repository at which established problems with Horizon, some of which we’ve seen today, or alleged problems with Horizon, could be accessed?
Robert Wilson: Not that I recall, but as I say, I think it was an opportunity missed that we should have done something like that, yes.
Mr Beer: Who within the Post Office was responsible for thinking of such an idea and carrying such an idea into action?
Robert Wilson: Well, I could have done and I should have done, but I don’t think it ever occurred to me and I don’t think anybody ever suggested it as a good idea.
Mr Beer: Can we turn, lastly, to Khayyam Ishaq’s case and turn up paragraph 50 to 53 of your witness statement which is on page 27. You say:
“I did not have a role in relation to disclosure.”
You weren’t aware that Mr Ishaq had raised Horizon integrity issues in the course of the prosecution and you had no involvement in the prosecution after you moved to the Royal Mail Group in 2012; is that right?
Robert Wilson: Yes.
Mr Beer: Who took over responsibility from you when you moved in 2012?
Robert Wilson: Mr Singh would have been the lawyer in Post Office Limited.
Mr Beer: But you had overall responsibility for the case until April 2020; is that right?
Robert Wilson: Yes.
Mr Beer: You, a year earlier, had authorised prosecution, is that right, advising there was sufficient evidence of a realistic prospect of conviction?
Robert Wilson: Yes.
Mr Beer: I’ll give the –
Robert Wilson: Oh, no, I – did I?
Mr Beer: Well, let’s have a look at it. POL00056596.
Robert Wilson: I thought Cartwright King gave the –
Mr Beer: Can you see this is a memorandum dated 5 July 2011 –
Robert Wilson: Yes.
Mr Beer: – in the case of Khayyam Ishaq. If we go to the last page, if we scroll down, we can see it’s written by you.
Robert Wilson: Oh, right, yes. I was under the impression that I hadn’t started the case.
Mr Beer: If we go back to the first page, please.
“In my opinion [paragraph 1] the evidence is sufficient to afford a realistic prospect of conviction … on the charges set out on the attached Schedule.”
Robert Wilson: In that case, there is a mistake, then, in my witness statement because I put at answer number 47 the charge was drafted by Martin Smith of Messrs Cartwright King.
Mr Beer: Whereas, in fact, it’s you?
Robert Wilson: Well, that’s showing me – as me, isn’t it?
Mr Beer: Did you ever analyse or reduce to writing such analysis of why there was a realistic prospect of conviction?
Robert Wilson: No. I don’t think so.
Mr Beer: Your advices tend to follow this format, namely a statement as to there is a realistic prospect of conviction and then the rest of the memo turns to evidential queries that need bottoming out?
Robert Wilson: Yes.
Mr Beer: You don’t say why there is a realistic prospect of conviction?
Robert Wilson: No, no. I don’t.
Mr Beer: Was there a separate record kept of why there was a realistic prospect of conviction?
Robert Wilson: I don’t think so, no.
Mr Beer: After April 2012, did you have any involvement in the proceedings against Mr Ishaq?
Robert Wilson: No.
Mr Beer: Thank you very much, Mr Wilson. Those are the only questions I ask. That document can be taken down, please.
I think there are some questions, including from Mr Jacobs, to start with.
Questioned by Mr Jacobs
Mr Jacobs: I just have a quick question to ask you. I act for 156 subpostmasters and mistresses who were affected by this scandal.
I want you to cast your mind back but not very long, just to 9.15 this morning when Mr Beer asked you a question and he said:
“If you were asked from 2000 onwards, and if there was any change in the answer from 2000 until, say 2012, who at board level was responsible for the conduct of criminal prosecutions, what would your answer have been?”
Robert Wilson: Yes.
Mr Jacobs: Do you recall that question?
Robert Wilson: Yes, I do, yes.
Mr Jacobs: So I’ll remind you of your answer so we’ve got it on the transcript.
Robert Wilson: I think I said the Secretary, didn’t I?
Mr Jacobs: You said the answer would be the Company Secretary. Then you went on to say:
“Yes, I think there were probably two, possibly even three while I was there and, for the life of me, at the moment, I can’t remember their names.”
Robert Wilson: Yes.
Mr Jacobs: Now, Howe+Co have been quite diligent and we’ve found Bond documents, the names of the Company Secretaries in Post Office Limited who were in place from the years when you were in place, 2000 to 2012. Our clients are very interested to know the names of the individuals who would have known, or ought properly to have known, what was going on with the Horizon system and the –
Robert Wilson: The reason I said that I think it was the Secretary, it was because I know that my direct line, the Security Director, reported to the Secretary.
Mr Jacobs: All right. Right.
Robert Wilson: So that was my rationale.
Mr Jacobs: Yes. So your evidence is still, then, that your understanding is that the person at board level who was responsible for the conduct of criminal prosecutions was the Secretary?
Robert Wilson: Yes.
Mr Jacobs: It might help remind you of the names, if I give you those names, and you can confirm whether that’s right. So from 1999 to 2010, the Company Secretary was Jonathan Evans.
Robert Wilson: Right.
Mr Jacobs: Does that ring a bell?
Robert Wilson: Yes.
Mr Jacobs: Is that right?
Robert Wilson: Yes.
Mr Jacobs: He was one of the three?
Robert Wilson: Yes.
Mr Jacobs: Then from 2010 to 2011, for a period of about 18 months, it was Susan Crichton, who also held the role of General Counsel; do you recall that?
Robert Wilson: She was General Counsel?
Mr Jacobs: She was also, it seems, the Company Secretary as well.
Robert Wilson: Right. Okay, I didn’t understand that. I didn’t know that.
Mr Jacobs: Okay. So she wasn’t one of the three that you – the two or three, that you –
Robert Wilson: No, she wasn’t one of the three I was thinking about.
Mr Jacobs: The third one, from July 2011 to 2017, and we know that you went to Royal Mail in 2012, is Alwen Lyons, is he one of –
Robert Wilson: I’ve never heard the name.
Mr Jacobs: So you can definitely confirm, from what we’ve now been through, Jonathan Evans?
Robert Wilson: Yes.
Mr Jacobs: Okay. Well, I am just going to ask to see if I have any more questions.
I don’t, thank you very much.
Mr Beer: I think Mr Henry has some questions.
Questioned by Mr Henry
Mr Henry: Thank you, sir, Mr Wilson. I represent, among other people, Seema Misra.
I suggest your evidence today has revealed that the Criminal Law Team was the submissive servant of the Post Office’s commercial interests or perceived reputational advantage. Do you agree with that?
Robert Wilson: No, I don’t.
Mr Henry: That your department’s duties as a private prosecutor were twisted, degraded or suborned in the service of the Post Office’s interests as a business; do you disagree?
Robert Wilson: Yes, I do.
Mr Henry: That prosecutorial standards and duties were subordinated routinely to ruthless commercial imperatives; that’s right, isn’t it?
Robert Wilson: No.
Mr Henry: And that far from displaying candour and disclosing information concerning system errors to subpostmasters and criminal and civil courts, your department sought to suppress such information?
Robert Wilson: No.
Mr Henry: You have said, in respect of the documents that you received on the 8 October 2010 – and we’ll come to one of them very briefly in a moment – that, without wishing to be facetious, you said that you must have had a bad day at the office when you decided that the contents of those documents, concerning the receipts and payments mismatch bug were not disclosable; do you remember saying that?
Robert Wilson: Yes.
Mr Henry: I suggest that it was not an isolated error and that this was part of – whether it was reckless or Nelsonian – a policy of taking perverse decisions on disclosure to protect the Horizon system; what do you say about that?
Robert Wilson: No, I didn’t take decisions to protect Horizon.
Mr Henry: Could we go, please, to FUJ – there is an equivalent POL document but if we could go to FUJ00081584, please. Now, the people in this document, some of them were known to you, were they not, apart from Mr Simpson?
Robert Wilson: The only name I recognise there, apart from Alan Simpson, is Gareth Jenkins.
Mr Henry: Not Mr Winn of POL Finance?
Robert Wilson: No.
Mr Henry: Not Julia Marwood, who was an Investigator and part of Network?
Robert Wilson: No.
Mr Henry: Not Emma Langfield, who was part of the Post Office’s Problem Management Team?
Robert Wilson: No.
Mr Henry: None of those?
Robert Wilson: No.
Mr Henry: You read that document presumably on the afternoon of the 8 October?
Robert Wilson: Was I copied into an email with it?
Mr Henry: It was sent to you by Mr Simpson.
Robert Wilson: Oh, right. This is the – right, okay, yes.
Mr Henry: Yes. Can we go, please, to the impact section, please. This is all predicated on the effect of the receipts and payments mismatch bug. Very, very quickly, because learned Counsel to the Inquiry has all ready gone through it:
“The branch has appeared to have balanced, whereas in fact they could have a loss or a gain.
“Our accounting systems will be out of sync with what is recorded at the branch.”
Then emphasis, please, with the following words:
“If widely known could cause loose of confidence in the Horizon system by branches.
“Potential impact upon ongoing legal cases where branches are disputing the integrity of Horizon data.”
I emphasise “ongoing legal cases”.
Then finally:
“It could provide branches ammunition to blame Horizon for future discrepancies.”
Now, none of those concerns, you agree, Mr Wilson, would count for anything in the discharge of your duties under the Criminal Procedure and Investigations Act if that material was disclosable.
Robert Wilson: Sorry, say that again, please?
Mr Henry: None of those concerns would count for anything if the material was disclosable. In other words –
Robert Wilson: Yes, no, I understand what you’re saying. Yes, I agree with you.
Mr Henry: Yes. Right. Is there any record of you remonstrating with Mr Simpson about that or drawing that to his attention?
Robert Wilson: I don’t know.
Mr Henry: Do you accept that this document, in which a number of people from the Post Office, together with a number of people from Fujitsu, were present, reveals a fear that, if flaws in Horizon became widely known, that subpostmasters might exploit this?
Robert Wilson: That’s what it’s saying.
Mr Henry: Yes.
Robert Wilson: I’m not saying I agree with it though.
Mr Henry: But you see and you accept, that that is what it says?
Robert Wilson: Yes, I can’t dispute what it says.
Mr Henry: Right, and that, therefore, the mindset might be that it would provide branches ammunition to blame Horizon for future discrepancies, in other words people could take dishonest advantage of it; that must be the import of what that is saying?
Robert Wilson: Yes.
Mr Henry: Right. What I suggest is that you became aware of that document, you forward it to Mr Singh, you forward it to Ms McFarlane but the vulnerabilities were suppressed, weren’t they?
Robert Wilson: No, I wasn’t suppressing the vulnerabilities. I didn’t agree with the solutions. I – my view was that all of the subpostmasters and mistresses should have been told about the bug.
Mr Henry: Well, you accept, do you not, that, by this time, October 2010, concerns about the Horizon system – and this was the finding of Mr Justice Fraser – concerns about the Horizon system had been in existence for 10 years by this time?
Robert Wilson: Yes, if that’s – that’s when they first became known, yes.
Mr Henry: You have, in your evidence today, conceded that you were aware from 2005/2006 about suggestions about system vulnerability, haven’t you?
Robert Wilson: I’m not sure of the dates but I’ve agreed with what counsel put to me, yes.
Mr Henry: Well, could we, please – you’ve just said that you didn’t agree with the solution, so it follows that you must have read the solutions in detail, if you were going to disagree with them.
Robert Wilson: Yes.
Mr Henry: Could we go to solution number 1, please. I want to concentrate, please, on solution number 1:
“Alter the Horizon branch figure at the counter to show the discrepancy. Fujitsu would have to manually write an entry value to the local branch account.
“IMPACT – When the branch comes to complete next trading period they would have a discrepancy which they would have to bring to account.”
Then this:
“RISK – this has significant data integrity concerns and could lead to questions of ‘tampering’ with the branch system and could generate questions around how the discrepancy was caused.”
That must be the discrepancy referred to in “IMPACT”, do you agree?
Robert Wilson: In the “IMPACT” above?
Mr Henry: Yes, in the line immediately above.
Robert Wilson: When the branch comes to next – yes.
Mr Henry: So a discrepancy would have appeared out of thin air, which they would then have to bring to account.
Then the final sentence:
“This solution could have moral implications of Post Office changing branch data without informing the branch.”
Now, your evidence earlier today was that you believe that that referred to an individual visit to each branch to go to, not figuratively speaking or metaphorically speaking, the counter but to the actual counter, to alter the data. That was your evidence.
Robert Wilson: Yes.
Mr Henry: I suggest that that evidence is untenable in view of the last sentence:
“This solution could have moral implications of Post Office changing branch data without informing the branch.”
Robert Wilson: Well – it could have moral implications. If they’re not telling the branch that they’re altering the data at the counter, that’s dishonest.
Mr Henry: Of course it would be but we’re not talking here about them coming along and saying, “I need to do something with your terminal at the branch, the terminal which is on the counter”. What we’re talking about here is the covert insertion of data, authorised by the Post Office and implemented by Fujitsu. That’s what we’re talking about, aren’t we?
Robert Wilson: Well, I didn’t read it like that and I never believed that there was a backdoor into the sub post offices.
Mr Henry: Mr Wilson, did you make any attempt to clarify the disturbing contents of those passages that I have put to you?
Robert Wilson: I think what I did was I spoke to Jon Longman – Alan Simpson, and said that the only acceptable solution in relation to these – in relation to this issue was to inform every branch, every subpostmaster what the problem was and to have it fixed in line with, I think, the suggestion that was in the second attachment by Mr Jenkins.
Mr Henry: Mr Wilson, that wasn’t the question I asked you. I asked you: did you do anything to clarify what appears to be an obvious interpretation of remote access? Did you do anything at all to clarify with anybody the disturbing contents of what I have put to you?
Robert Wilson: Well, I didn’t understand it to be remote access.
Mr Henry: I suggest that it cannot be interpreted in any other way, Mr Wilson. It must be remote access.
Robert Wilson: Well, I didn’t understand it to be.
Mr Henry: That, of course, would have been disclosable, whether it was Legacy Horizon or whether it was Horizon Online, wouldn’t it?
Robert Wilson: Well, that would have stopped prosecutions completely.
Mr Henry: Of course it would. But moving on – and this is the final matter – do you not agree – I mean, you say that it is now, in retrospect, clearly disclosable, but do you not agree that a continuum of error, whether it be in Legacy Horizon or Horizon Online, in other words complaints about the fragility of the system and instances of system error, would be disclosable in a Legacy Horizon case, even if it were to refer to Horizon Online?
Robert Wilson: I do now.
Mr Henry: Why didn’t you then?
Robert Wilson: Because I believed that there were two separate systems and that the new Horizon, as I phrase it, was not impacting on the old Horizon.
Mr Henry: But if you look at it in this way – and surely this would have been apparent to you – the old system was perceived to be subject to bugs, errors and defects and so, therefore, a new system, which was attempting to be more robust than the previous system was being rolled out; correct?
Robert Wilson: Yes.
Mr Henry: You follow me?
Robert Wilson: Yes.
Mr Henry: Yet the new system, contrary to expectations, results in these covert balancing errors of which subpostmasters are completely blameless and totally unaware. That must be disclosable, mustn’t it, because it goes to the ability of Fujitsu to actually implement a correct system?
Robert Wilson: Well, I agree with you now, yes.
Mr Henry: Does this not – and, again, I ask this and I ask you, please, to reflect carefully before you answer, does this not reveal a symbiotic relationship between Fujitsu and the Post Office, the Post Office protecting Horizon at all costs, for both its own reputation, and Fujitsu aiding and abetting it to serve its own commercial interests as well?
Robert Wilson: I think at a high level, having considered all of the documents that I’ve seen, and listened to arguments like you’re putting now, from counsel, that, at a high level yes, there was a protection of Horizon.
Mr Henry: Of course, you were involved in that high level in relation, of course, albeit at a distance, but nevertheless in relation to the laudatory plaudits you received from David Y Smith, Rod Ismay and Paula Vennells, weren’t you?
Robert Wilson: No, I wasn’t inviting plaudits. I was surprised. I didn’t know most of the people on the list. I had never met either of the three that you’ve just named. I didn’t realise that the interest was as such as it’s been demonstrated in the document. I’m very sorry, but I didn’t.
Mr Henry: Thank you very much.
Sir Wyn Williams: Anyone else?
Mr Beer: No, that’s it, sir.
Sir Wyn Williams: Well, thank you for returning to give evidence, Mr Wilson. It’s been a full day for you but I’m grateful for your participation in the Inquiry.
The Witness: Thank you, sir.
Sir Wyn Williams: 10.00 tomorrow, Mr Beer?
Mr Beer: Yes, that’s right, sir. Thank you.
(4.00 pm)
(The hearing adjourned until 10.00 am the following day)