18 December 2023 – Duncan Atkinson
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(10.45 am)
Mr Beer: Good morning, sir, can you see and hear us?
Sir Wyn Williams: Yes, I can, thank you and can I apologise for keeping everybody waiting.
Mr Beer: Thank you, sir.
May I call Duncan Atkinson KC, please.
Sir Wyn Williams: Yes.
Duncan Atkinson
RICHARD DUNCAN ATKINSON KC (sworn).
Questioned by Mr Beer
Mr Beer: Good morning, again, Mr Atkinson. As you know, my name is Jason Beer and I ask questions on behalf of the Inquiry. Can you remind us of your full name, please?
Duncan Atkinson: Yes, Richard Duncan Atkinson.
Mr Beer: Thank you for coming to give evidence to the Inquiry on a second occasion. Since you last gave evidence on 5 and 6 October this year, you’ve provided two reports to the Inquiry described as your Volumes 2 and 2A.
Duncan Atkinson: Yes.
Mr Beer: Can I start with Volume 2, please, that’s EXPG000004R. This is a 243-page report, excluding its appendices, revised recently to take into account a small number of additional documents provided to you by the Inquiry. Are the contents of that report true to the best of your knowledge and belief?
Duncan Atkinson: Yes.
Mr Beer: Have you included in that report – it needn’t come up now, it’s appendix A2 at page 243, an expert witness’s declaration?
Duncan Atkinson: Yes.
Mr Beer: Does that set out your understanding of your duties in writing the report and in giving evidence?
Duncan Atkinson: Yes.
Mr Beer: Does it set out whether you have any conflict of interest of any kind?
Duncan Atkinson: Yes.
Mr Beer: Does it set out your understanding of your instructions?
Duncan Atkinson: Yes.
Mr Beer: Does it set out whether the matters about which you’ve expressed opinions are within your field of expertise?
Duncan Atkinson: Yes.
Mr Beer: That report, I think, addresses 20 case studies; is that right?
Duncan Atkinson: That’s right.
Mr Beer: Then, secondly, Volume 2A, EXPG0000005. That’s a 28-page report, again excluding the appendices, addressing two case studies, that of Janet Skinner and Julian Wilson. Does the same expert witness declaration apply to that report?
Duncan Atkinson: Yes, it does.
Mr Beer: Are the contents of that report true to the best of your knowledge and belief?
Duncan Atkinson: Yes, they are.
Mr Beer: Thank you very much.
In terms of your background and experience, has that changed in any material respect since we last saw you at the beginning of October?
Duncan Atkinson: No.
Mr Beer: By way of recap, in Volumes 1 and 1A of your earlier reports, and in your evidence on 5 and 6 October 2023, you considered, is this right, the legal and policy framework for the investigation and prosecution by the Post Office of criminal offences and, more broadly, the framework relating to the responsibilities of prosecuting authorities, investigating authorities, in making in particular charging decisions and disclosure?
Duncan Atkinson: Yes.
Mr Beer: The task you’ve undertaken for us now, leading to your Volumes 2 and 2A reports, concerns the extent to which, is this right, the legal and policy framework that you previously described was or was not complied with in the cases of the 22 case studies that we’re looking at?
Duncan Atkinson: Yes, in so far as that was possible to identify that from the material that I had.
Mr Beer: I’m going to come on in a moment to the limitations of the material that you have been provided with. Is this right, that, in terms of a sort menu of issues, you focused on, firstly, investigations. Was that principally on the duties of an Investigator to pursue reasonable lines of inquiry?
Duncan Atkinson: Yes.
Mr Beer: Secondly, in relation to the Horizon system specifically, the application of that duty where a suspect either does not assert a problem with Horizon, either in their interview, in a defence statement or otherwise, and in those cases where a suspect does indicate an issue or a question over the integrity of Horizon data?
Duncan Atkinson: Yes.
Mr Beer: Secondly, did you look at prosecutions and was that split into charging decisions –
Duncan Atkinson: Yes.
Mr Beer: – and, in particular, the test that a prosecutor seemingly applied when making a charging decision?
Duncan Atkinson: Yes.
Mr Beer: The evidence that the prosecutor seemingly considered when making such a charging decision?
Duncan Atkinson: Yes.
Mr Beer: The extent to which such charging decisions appeared to be thorough and diligent agent –
Duncan Atkinson: Yes.
Mr Beer: – or conscientious.
Then lastly, the approach taken to charging theft and false accounting, in particular as alternatives?
Duncan Atkinson: Yes.
Mr Beer: Did you look at, under the heading of prosecution, issues concerning the commencement of proceedings?
Duncan Atkinson: Yes, although in terms of summonses and what lay behind the summons, I don’t think I saw anything that helped me on that topic.
Mr Beer: No, that material was particularly lacking –
Duncan Atkinson: Yes.
Mr Beer: – how proceedings were commenced and what material was lodged with the Magistrates Court –
Duncan Atkinson: Absolutely.
Mr Beer: – in order to commence process.
Duncan Atkinson: Yes.
Mr Beer: Did you look at the approach taken to disclosure –
Duncan Atkinson: Yes.
Mr Beer: – and, in particular, whether there was an identified Disclosure Officer and whether that was also the Investigating Officer?
Duncan Atkinson: Yes.
Mr Beer: The extent to which prosecutors reviewed the disclosure given, whether in the unused schedule of material or otherwise?
Duncan Atkinson: Well, the extent to which I could see that they had reviewed it.
Mr Beer: And the extent of any duties of cross-disclosure between prosecutions?
Duncan Atkinson: Yes.
Mr Beer: Did you look at, lastly, prosecutorial practice and, in particular, the practice of plea bargaining?
Duncan Atkinson: Yes.
Mr Beer: Did you look, lastly, at the reliance by the Post Office on expert evidence?
Duncan Atkinson: Yes.
Mr Beer: You tell us in paragraph 6 of your report, in terms of the material available, that it varied considerably as between cases; is that right?
Duncan Atkinson: Yes.
Mr Beer: In some cases, it was extensive; is that right?
Duncan Atkinson: Yes.
Mr Beer: In others, the material was very sparse indeed –
Duncan Atkinson: Very much so.
Mr Beer: – with no material relating to some of the topics that I’ve just described?
Duncan Atkinson: That’s right.
Mr Beer: Where that is the case I think you tell us so in your expert reports?
Duncan Atkinson: Yes, I hope so.
Mr Beer: I think you’ve been provided with a document entitled “Gareth Jenkins Chronology”, prepared by the solicitors acting on behalf of the Post Office?
Duncan Atkinson: Yes.
Mr Beer: You have been instructed, is this right, that the “Gareth Jenkins Chronology” is not being treated by the Inquiry as evidence –
Duncan Atkinson: That’s right.
Mr Beer: – or as a source of evidence, and you have not done so either; is that right?
Duncan Atkinson: I took notes where it referred to a communication to the existence of that communication, particularly if I hadn’t seen it before. In the wealth of material that I’ve received in the last week, I have now seen a lot of the communications that were referred to but that was the extent to which I took note of that document.
Mr Beer: Thank you. In particular, in your report, you were careful to state, is this right, when the underlying material should be consulted –
Duncan Atkinson: Yes.
Mr Beer: – in order to see whether what is suggested in the chronology is accurate or inaccurate?
Duncan Atkinson: Yes, and I did not proceed on the basis that it was a complete record of all communication or assume anything of that sort.
Mr Beer: Thank you very much. Are you able to confirm, in terms of your methodology and approach, that you’ve not been asked to look at either the witness statements or the oral evidence of any of the witnesses who have given evidence in Phase 4 of the Inquiry?
Duncan Atkinson: No, that’s right.
Mr Beer: Instead, you have been asked to, and you have yourself, confined yourself to looking at the documents, the contemporaneous documents with which you have been provided?
Duncan Atkinson: Yes.
Mr Beer: Is it right that the majority of those documents relate to the investigations and prosecutions of each of the case studies, ie they’re contemporaneous to the events to which they relate?
Duncan Atkinson: Yes.
Mr Beer: You say in paragraph 32 of your report that in considering the actions and decisions of Post Office Investigators and Post Office lawyers, the question that you have asked yourself is whether the actions and decisions were reasonably open to the decision maker on the material then available?
Duncan Atkinson: Yes.
Mr Beer: Is that right?
Duncan Atkinson: Absolutely.
Mr Beer: On occasions in your report you refer to documents arising subsequently to those events, either to the investigation or indeed after conviction, for example accounts given by people to the Second Sight investigation –
Duncan Atkinson: Yes.
Mr Beer: – or in civil proceedings or what the Court of Appeal Criminal Division said in the Hamilton appeals?
Duncan Atkinson: Yes.
Mr Beer: Do you consider that in referring to such material, Second Sight, civil proceedings and, for example, concessions made by the Post Office in the Hamilton appeals, you are at risk of judging matters with hindsight?
Duncan Atkinson: No. To take an example, where, in the Court of Appeal, the Post Office conceded that they had not obtained ARQ data in a particular case, I took that as a basis to conclude that they had not sought the ARQ data in that case. That was something that, therefore, they had not done at the time and I took it as evidence of what had or had not been done at the time.
In the same way, in the Second Sight reviews, in some cases they were able there to refer to records of calls to call centres that had been made by the postmaster in question. That material, which had not been sought at the time of the investigation, so far as I could see from the contemporaneous documentation, but the fact that at the Second Sight stage they were able to look at it showed that it existed and, again, therefore, it existed at the time that it was not sought during the investigation.
Mr Beer: So it’s subsequent materials that reflect back to either the existence of documents or a state of affairs, contemporaneous to the matters that you’re looking at?
Duncan Atkinson: Yes, and I should add, in relation to the Court of Appeal, I have taken account of the assessment of the Court of Appeal of their view of what should or should not have been disclosed because it seemed to me that they’re a fairly safe body to take into account in that, given that they are the Court of Appeal.
But I have, nevertheless, come to my own assessment of what I consider the contemporaneous documentation shows was or was not done and what should or should not have been done but it’s a comfort to know that they and I are of the same view.
Mr Beer: At various points in your report you recognise that your ability properly to assess what happened at the time is limited by the fact that there are only limited papers available to you?
Duncan Atkinson: Yes.
Mr Beer: Do you consider that care should be taken in relation to your conclusions in general terms, in that they may be based on incomplete information or incorrect assumptions?
Duncan Atkinson: They may, particularly in the older of the cases, be based on incomplete material. I’ve made that clear in those cases. My conclusions, certainly by the time one reaches the end of my report, are based on a consideration of the cases across the piece and, clearly, there is the possibility that, in the cases where there isn’t the material, for example, on disclosure, that that was a completely different disclosure position than in the ones where I have seen the material in relation to disclosure.
But it was all of the same kind, in the cases where I saw it, and it didn’t seem to me unreasonable to draw conclusions based on what I had seen on that basis.
Mr Beer: Thank you. In reaching your conclusions, did you measure the conduct of the Post Office Investigators and the Post Office lawyers against the standards that you would have generally expected to exist at the time in practice or against what the law required under codes, rules and guidance?
Duncan Atkinson: Certainly under the latter but because, as we examined when last I was here, those codes and rules had been accepted by the Post Office at the time to apply to them and their investigations and their charging decisions and so on. But, clearly, having been in practice myself through that period, I have an awareness of how such cases were dealt with by, in particular, the police and the CPS, and so that will have also informed by view.
But I tried, insofar as I could, to judge what was done by reference to what the law required and what the codes under the law required.
Mr Beer: Is that on the basis that it’s not unreasonable to expect a prosecutor to comply with the law?
Duncan Atkinson: Absolutely.
Mr Beer: In terms of the approach that I’m going to take, I’m going to start at the end, as it were, ie by examining the issues, topic by topic, one after the other, rather than case study by case study, and then drawing conclusions from that examination of the case studies?
Duncan Atkinson: Yes.
Mr Beer: So I’m going to ask you to express your overall conclusions in relation to each topic, explore the reasons for those conclusions, and then involve you in some illustrative dipping into the materials to see whether we can exemplify some of the points that you make by reference to the contemporaneous materials?
Duncan Atkinson: Yes.
Mr Beer: That will take all of today and some of tomorrow. Then tomorrow, or what time is left of tomorrow, I am going to take you through so many of the case studies, the 22 case studies, time will allow; do you understand?
Duncan Atkinson: Yes.
Mr Beer: Thank you. Can we start, please, at page 218 of your report, please –
Duncan Atkinson: Yes.
Mr Beer: – if that can be displayed. This the Volume 2 report, EXPG000004R. If we just wait a moment for it to come up on the screen. Page 218.
If we can start at paragraph 620, please. You say in the second line:
“At this stage, I seek to draw the strands together of that analysis [ie the analysis of the then 20 case studies] by topic. I should emphasise, however, that these broader conclusions are to be properly understood by reference to the case-by-case analysis I have set out above. Each case is individual, in that each involved an individual who gave an account to address an audit shortfall, and whose case was then investigated and reviewed for prosecution at different times by different investigators and lawyers and by reference to different evidence.”
Then you say this:
“That said, a number of themes emerge clear and strong across the 20 cases. Indeed, in a number of respects it is unsettling how the same issues were arising in the latter cases, such as Sefton and Nield and Ishaq in 2012, as have raised their heads in early cases, such as Brennan and Yates in 2003.”
You use the word “unsettling” there. What was the nature and extent of your concern?
Duncan Atkinson: Clearly the rules that the law had developed between 2003 and 2012, the Post Office’s own policies had developed with that, so that, for example, they acknowledged the Code for Crown Prosecutors as the basis for their charging decisions, they had, albeit belatedly, identified the requirement to pursue all reasonable lines of inquiry under the CPIA Code, and those changes had not resulted in changes in relation to the approach. Charging decisions were still made in a way that had great concern about, and the pursuit of reasonable lines of inquiry continued to evade those inquiries in 2012, as it had in 2003.
Perhaps the other area of concern was that it became clear to me, just on what I had read, that issues with Horizon and concerns about various aspects of its operation were developing over that period of time, and one might have expected a more obvious change in the approach of the Post Office to those issues over that period of time, rather than continuing to approach them, in many respects, in the same ways 10 years on from the earlier cases that I looked at.
Mr Beer: Thank you. Can we start, then, with the topic of investigation – I’m not going to take them in precisely the same order as you have, I have rejigged them slightly but, in fact, we do start with investigation – and look at paragraph 621, if we just scroll down, please.
Is a summary of what you found in relation to investigation the following: firstly, you found no document which identified which personnel were undertaking the role of Investigator and which personnel were undertaking the role of Disclosure Officer?
Duncan Atkinson: No, and, as I say in the report, that may on one level have just been a recording problem that one had to try and work out who was carrying out these vital roles under the CPIA, rather than finding anywhere where it said so. But the concern I had that flowed on from that was, where it wasn’t identified, it was more difficult to know what they appreciated as to their role and who was supervising them in doing it.
Mr Beer: That’s the second issue. You say that the roles played were not in accordance with the division of responsibilities set out in the CPIA and the Attorney General’s Guidelines on Disclosure, in that they were, I think, always undertaken by the same person?
Duncan Atkinson: Yes.
Mr Beer: You say, thirdly, that it was unclear who was supervising or directing the Disclosure Officer and does that mean that there was no evidence that you saw of such supervision or direction?
Duncan Atkinson: Yes, there was – in many, but not all, the cases there were investigation summaries or investigation reports prepared by an Investigator, which was addressed to Contract Managers and persons of that sort. It was not clear who was providing a supervision to the investigation process in the case. There was no material coming from them, for example, that I saw giving instruction to the Investigator as to reasonable lines of inquiry by way of example.
Mr Beer: If we go over the page to paragraph 622, please. You say that, in your first report – it was paragraph 108 – you observe that there was a distinction between the CPIA Code which recognised that the same person could act as both Investigator and Disclosure Officer, and the Post Office position, which recognised that they normally would be the same?
Duncan Atkinson: Yes.
Mr Beer: That was in their policy documents?
Duncan Atkinson: Yes.
Mr Beer: You said you recognise that that will often be the case in smaller scale investigations by the police and others, ie that they would, in fact, as a matter of practice, be the same person?
Duncan Atkinson: Yes.
Mr Beer: But you so:
“My concern … was that a check and balance in the system, with 2 different viewpoints on investigative and disclosure steps, was routinely not being incorporated into Post Office cases. That has been borne out by the materials [that you have now seen].”
What checks and balances do you consider were missing here that might not also be missing from equivalent levels of police investigations at the time?
Duncan Atkinson: So, so far as the Investigation Team are concerned and the Disclosure Officer’s role, clearly the intention, as it seems to me, of the CPIA Code is that you have your Investigator and your Disclosure Officer separate so that there is a degree of independence to the disclosure assessment from the investigative one. So that the person making the decisions as to disclosure is not, inevitably, the person who has had to come to an assessment of whether there is – whether the suspect is correctly to be charged within the investigation process.
There was no cross-discussion between such persons in these cases, because they would have been talking to themselves, and so the person who had interviewed the suspect, who had acquired the evidence that they considered necessary to prosecute the suspect, was then the person who was deciding whether there was material that undermined the case that they had built in order to disclose it and there was no one that they were talking to within the investigation in relation to that.
I appreciate that may not happen either in smaller scale cases investigated by the police and prosecuted by the CPS, but what there is then, in those cases, is a reviewing lawyer within the CPS who has an independent oversight of what that investigation has done and what disclosure is necessary and raises issues in relation to that. Here, of course, it was done by the same organisation, albeit the Criminal Law Division at the Post Office and my concern there was that I saw, in many of these cases, very little evidence of any such oversight by them, of identifying reasonable lines of inquiry, identifying things that needed to be disclosed, contrary to a view having been expressed by the Investigator/Disclosure Officer.
So there wasn’t that – more than one person looking at it, more than one organisation looking at it, which, to an extent, the CPIA Code envisaged.
Mr Beer: What do you understand the purpose or the rationale for that division of labour, division of responsibility, to be in the CPIA Code and in the AG’s Guidelines on Disclosure?
Duncan Atkinson: Well, it provides a degree of scrutiny of the process. If it is just done by the Investigator, who then decides whether the material they’ve – there’s any material they’ve obtained that they think undermines the case that they have built, then there’s no one to stand back and ask those very important questions.
There is a responsibility for the lawyer who becomes involved in the case to do that and, in some of these cases, that was done. But it just seems to me that the CPIA Code regime envisages more than two people being involved in that conversation, and certainly more than one.
Mr Beer: Thank you. If we go on to paragraph 623, please. You say – and you give three examples here, from the cases of Lisa Brennan, David Blakey and Allison Henderson – that:
“… the interviewing officer demonstrated a very clear, settled conclusion adverse to the defendant at the time of interview. In the case of Ms Brennan she was told that the officer believed she had done it, Mr Blakey was told his account was ‘ridiculous’ and Mrs Henderson believed that the Investigator had already drawn his own conclusions.”
So there you’re referring to, I think in the first two cases, your reading of the transcripts of interview –
Duncan Atkinson: Yes.
Mr Beer: – and in the third case something that Mrs Henderson said. You say:
“It is a concern if that same settled conclusion informed the disclosure process as it did the interview.”
So you’re saying, is this right, that these are real world examples of where an Investigator appears to have displayed, in the course of an interview, a settled conclusion as to the guilt of the suspect, and yet that person is then asked to review disclosure and give disclosure of documents that might undermine the prosecution case or assist that of the defendant.
Duncan Atkinson: Yes. So to take Ms Brennan as an example, the interviewing officer said to her:
“I think it’s a question of not whether you’ve done it but why you’ve done it. I think you’ve done it deliberately. No one else is making mistakes like you.”
That was the person who was also then required to consider what reasonable lines of inquiry had to be pursued that might lead away from the person he believed had done it and then to undertake the disclosure process to identify what undermined his conclusion that she had done it, and that, where the other checks and balances weren’t there to guard against that, gave at least the risk that reasonable lines of inquiry would not be identified and/or disclosure would not be made.
Mr Beer: So that Investigator said in interview to Ms Brennan “No one is making mistakes like you”, essentially?
Duncan Atkinson: Yes.
Mr Beer: That was also the person who had the responsibility then to investigate whether or not anyone was making mistakes like Lisa Brennan?
Duncan Atkinson: Yes, and, I have to say, on the material from that case that I’ve seen – and it’s one of the early cases and so the material is limited – there wasn’t the evidence that checks had been made before that interview or after that interview, to identify whether there were other people making the same mistakes and/or whether the system was generating similar problems.
Mr Beer: Thank you. Can I turn to topic 2, please, the Post Office’s investigative and prosecutorial focus.
In your Volume 1 report you said that a number of Post Office policies drew attention to financial and business related factors in making prosecutorial decisions.
Duncan Atkinson: Yes.
Mr Beer: You said that that was your reading of the documents that did not instill confidence in the independence, fairness or transparency of those decisions?
Duncan Atkinson: Yes.
Mr Beer: At various points your Volume 2 report, you refer to the approach of the Post Office seemingly being driven by a desire to protect Horizon –
Duncan Atkinson: Yes.
Mr Beer: – that arising in particular in the context of disclosure decisions and in pleas –
Duncan Atkinson: Yes.
Mr Beer: – consideration of pleas?
Duncan Atkinson: Yes.
Mr Beer: You tell us – there’s no need to turn it up – for example that – this is paragraph 414 – the prosecution of Mrs Misra had become a battle for the reputation of the Horizon system with the prosecution determined to destroy the attacks on the system?
Duncan Atkinson: Yes, and destroy was the word used, albeit after her conviction, in a memo by someone in the Post Office talking about her trial.
Mr Beer: You told us in Volume 1 of your reports that an Investigator was under a duty to pursue all reasonable lines of inquiry for the duration of the relevant period we’re looking at, including those that pointed away from the suspect?
Duncan Atkinson: Yes.
Mr Beer: But that was not spelt out in any Post Office policy explicitly until 2010?
Duncan Atkinson: Yes.
Mr Beer: That would include, is this right, consideration, ie the duty would include consideration, of whether accounting shortfalls at Horizon terminals might be caused by or lie with the computer system itself?
Duncan Atkinson: Yes.
Mr Beer: In your Volume 2 report, you identified some instances where individuals in the Post Office were “rebutting” or were focused upon rebutting the defence, rather than testing the prosecution case –
Duncan Atkinson: Yes.
Mr Beer: – or the reliability of the evidence on which the prosecution was founded?
Duncan Atkinson: Yes.
Mr Beer: The cross-references there are paragraphs 217, 423 and 438 of your second report.
Did you observe a pattern or a common theme, through some or all of the case studies, of a prosecutorial or investigative approach being driven by a desire to protect the Horizon system?
Duncan Atkinson: In a number of respects, just to give examples which I suspect we’ll come back to in relation to the acceptance of pleas in a number of cases, the acceptance of those pleas was explicitly made, conditional on there being no criticism of the system.
When in 2012, I think, a form of words was put together to address the fact that issues with Horizon had come up in a number of cases around the country, there was a significant part of that asserting that there were no problems, and there was, on the face of the disclosure, in cases, very little that did identify faults along the way, even where faults were being understood.
Mr Beer: Did you form a view as to whether that desire to protect the Horizon system affected the independence and fairness of the Post Office Post Office’s investigations and prosecutions?
Duncan Atkinson: Well, certainly in the majority, at least, of these cases, enquiries were not made, for example, by the obtaining of ARQ data and looking at it, to identify whether there were faults in the system, and whether that was because those investigating did not appreciate that they needed to, or whether it was because they chose not to, the fact is that they didn’t.
In relation to charging decisions and the supervision by prosecutors of the system, in the majority of these cases, although if they were applying the Code for Crown Prosecutors they were expressly advised to consider the reliability of the evidence on the basis of which they were making charging decisions, they did not raise any question about whether there was any question as to the reliability of the Horizon material, which was the basis for their prosecution decisions, and that’s either because they did not consider they needed to, or they weren’t aware there was any issue with it, or they chose not to.
But the fact is they didn’t and, where issues were coming up, as they did increasingly with postmasters in interview, in defence statements and, thereafter, raising issues, the approach was to say, “You need to tell us exactly what you say happened, when it happened, in relation to what transaction it happened, and then we’ll look at it”, rather than proactively identifying “This is the evidence that we are relying on. We have to be satisfied that it is reliable and we have to demonstrate that it’s reliable and that’s for us to do, not for us to ask you to do it for us”.
Mr Beer: So if I were to summarise that, you would say that you can’t – or you won’t – say what the motivation was because that’s probably for others to judge?
Duncan Atkinson: Absolutely.
Mr Beer: Your expert evidence is limited to the fact that the issues that you’ve identified, the steps that you’ve mentioned, were not undertaken. Would it be right that, irrespective of the motivation, whether it was because of a lack of understanding, a lack of interest, or something more malign, what was done was not in accordance with the Post Office’s duties as Investigator and prosecutor?
Duncan Atkinson: No, absolutely.
Mr Beer: Can I look at some of the material that after goes to motivation and can we start, please, by looking at – it’ll come up on the screen – POL00055590. If we could look at the top half of the page, please. Thank you.
This is, for shorthand, known as the “Horizon bashing bandwagon” email, which has been referred to a number of times in the Inquiry, and is a document that I think you saw.
Duncan Atkinson: Yes.
Mr Beer: It’s post-trial in the case of Seema Misra.
Duncan Atkinson: Yes.
Mr Beer: The title of the document is – or the subject line of the email is “Seema Misra – Guildford Crown Court – Trial – Attack on Horizon”.
You’ll see the contents in there and I think you’ll be familiar with them.
Duncan Atkinson: Yes.
Mr Beer: It refers to an unprecedented attack on the Horizon system and:
“… through the … work of [a number of people] we were able to destroy to the criminal standard of proof … every single suggestion made by the defence.”
I think this was the email to which you were referring earlier –
Duncan Atkinson: Yes.
Mr Beer: – the language of destruction or destroy?
Duncan Atkinson: Yes.
Mr Beer: It concludes:
“It is to be hoped that the case will set a marker to dissuade other defendants from jumping on the Horizon bashing bandwagon.”
Did you see these kind of sentiments reflected elsewhere?
Duncan Atkinson: Yes.
Mr Beer: Do they reflect, in your view, a disinclination to test the reliability of the evidence on which the prosecutions are founded?
Duncan Atkinson: Certainly a disinclination, on one view it speaks of a complacency about the system, that the system must be right and that this is the desperate attempt of someone, who the computer is saying has stolen our money, to identify that as just a defence tactic which needs to be stamped on.
Or it’s an appreciation that, if these lines are pursued, it will generate at least the risk of doubt on the part of a jury about the reliability of this material, and so it’s better to stamp on it from the outset, rather than have that risk.
Mr Beer: What about –
Duncan Atkinson: Rather than – sorry, to identify – because we’re here in 2010, and we have people who are copied into this email who’d been making investigative and charging decisions for quite some time by then. Rather than identifying this keeps coming up, this is something we need to look at to be satisfied that we are prosecuting on the basis of reliable evidence.
Mr Beer: What about the view that this is to be regarded as the kind of email that many of us may have seen in practice, a back-slapping email after we’ve won a case?
Duncan Atkinson: I think, going back to what I was just saying, to view a recurrent issue arising in cases through completely separate suspects saying things about the system and saying that there must be something going on here, because I don’t understand this, through those various different systems, to categorise that as a “Horizon bashing bandwagon” is not, in my view, just being pleased that you’ve got a good result in Guildford. That’s a very protective stance about the source of the evidence that is being used to prosecute people across the country.
Mr Beer: Thank you. If we can move on, please. No need to turn it up, but in paragraph 567 of your report, your Volume 2 report, you refer to a disclosure form of words –
Duncan Atkinson: Yes.
Mr Beer: – about Horizon issues, which was described in the contemporaneous material as a story –
Duncan Atkinson: Yes.
Mr Beer: – and which appears to have been partially prepared by the Post Office’s Head of Public Relations and Media.
Duncan Atkinson: Yes.
Mr Beer: I wonder whether we could look at that document, please. POL00058155. If we can start with page 3, please. It’s an email from Jarnail Singh to Hugh Flemington, so lawyer to lawyer. “2nd Sight review draft” is the title:
“After a number of meetings between Post Office Management and Members of Parliament in relation to the court cases, it was agreed that the Post Office would undertake a review of the cases which had been raised by the Member’s constituents.
“In order to provide assurance to the interested parties, Post Office Management proposed the use of independent auditors, 2nd Sight. The review to be undertaken will be specifically restricted to the cases raised by the MPs as well as reviewing the accounting procedures, processes and reconciliations undertaken in relation to the cases in question. Before formal instructions are given to the independent auditors, agreements will be sought from all interested parties, namely the MPs and Justice for Subpostmasters. The subpostmasters have requested a forensic accountant of their choice to be appointed to oversee the cases being reviewed by 2nd Sight.
“All the above is accepted based on the terms of the review being carried out, but it must be stressed that this is not an acknowledgement by Post Office Limited that there is an issue with Horizon. The Horizon system is working properly, robust and is being used up and down the country, when the system has been challenged in criminal courts, it has been successfully defended.”
If we scroll up, please, we can see that the lawyer, Hugh Flemington, sends the document on to Susan Crichton, Alwen Lyons – she was then the Company Secretary:
“This is the story … which J [I think that’s Jarnail] put together following our meeting last week. Any comments please before we release it?”
Then up, please. The Company Secretary sends it on:
“Can you go to Alana [who I believe is a person within the Media and Communications Department] as they are the experts with this request for the ‘story’.”
Alana is asked by Simon Baker:
“Please can you help us craft our message around the Second Sight review. We need to combat the assertion that the review is an acknowledgement that there is a problem with Horizon.
“Jarnail has drafted some words below. Do they strike the right tone?”
Then further up, please. Then further up. We can see Mr Kelleher’s reply, if we go further up, back to Simon Baker:
“As this message will most probably find its way into the media, we do need to get the message across from the start that we continue to have full confidence in the robustness of the Horizon system and then reinforce it so I suggest the following tweaking to the proposed wording from Jarnail …”
We can see, then, that there are three paragraphs, two on that page – I’m not going to do a track changes comparison. The last one is a significant amendment:
“All the above is accepted based on the terms of the review being carried out, but this is in no way an acknowledgement by the Post Office that there is an issue with the Horizon. Over the past ten years, many millions of branch reconciliations have been carried out with trains and balances accurately recorded by more than 25,000 different subpostmasters and the Horizon system continues to work properly in post offices across the length and breadth of the UK. When the system has been challenged in the criminal courts, it has been successfully defended.”
Then scroll up, please. Mr Baker says:
“That works. Thanks.”
Then it’s passed back down to the lawyers:
“You have seen the final draft of ‘Our story’. Can this now be relieved to our agents and counsel for consistent approach and submissions when there is challenges to the Horizon.”
I think we can understand the sense of what Mr Jarnail Singh is referring to there.
Duncan Atkinson: Yes.
Mr Beer: So did you understand this to be a story that was to be reflected in the approach taken by lawyers, including when submissions are made about challenges to Horizon.
Duncan Atkinson: Yes.
Mr Beer: Did you understand that this was to be reflected in evidence in any way?
Duncan Atkinson: I certainly understood it was to be reflected in disclosure or response to disclosure. This email I saw, in the context of the case of Ms Sefton and Ms Nield, and it’s not altogether clear if and if so when it reached them but, certainly, it was a topic of requests from them for disclosure, that it was in that context that this seems to arise in that case. So I took it, at the very least as being a statement that was going to be provided as disclosure where issues about Horizon arose.
So, as it said there, “released to our agents and counsel”, that’s the people who are doing the prosecuting for them, so that this would be what they would be saying, what they would be disclosing, what they would be submitting when a defendant sought to raise any issues with the operation of Horizon.
Mr Beer: What concern did you have, if any, over this?
Duncan Atkinson: Well, it was a press release, rather than a disclosure note. It didn’t particularise what issues had arisen in earlier cases, how often they had arisen, in what circumstances they had arisen, over what time period they had arisen, what people were saying in those other cases had happened, what expert evidence had been obtained on either side in relation to them. It certainly does not address whether any actual bugs or problems or flaws had been identified, and this is 2012, and so certainly, on the basis of material I’d seen from 2010, in the context of the case of Ms Misra, there was material that, from a disclosure point of view, did raise issues about the reliability of Horizon, at least potentially, and this document would not have told you any of that –
Mr Beer: Thank you.
Duncan Atkinson: – quite the opposite.
Mr Beer: Can I show you a document that you may not have seen before. It’s something that I snuck in over the weekend and so, if you need time to think about it, then do say so. POL00120723. You’ll see this is a letter dated 19 February 2013, in relation to the Post Office v Kim Wylie. That’s not one of the cases you have been asked to look at.
Duncan Atkinson: No.
Mr Beer: You’ll see that it’s from Cartwright King to McKeag & Co Solicitors, who were the defence solicitors for Kim Wylie. If we scroll down, please, it’s a reply to a letter. I can say that that letter enclosed some expert evidence, some defendant expert evidence. Cartwright King say:
“Thank you for your letter dated 14 February 2013. Please find enclosed a notice of Additional Evidence …”
Amongst those is a statement from Stephen Bradshaw – and I think you know him to be one of the Post Office Investigators –
Duncan Atkinson: Yes.
Mr Beer: – dated 20 November. Then paragraph 2 we can skip over. Then paragraph 3, Cartwright King say:
“The Crown’s position on the integrity of the Horizon system is set out in Steve’s Bradshaw’s statement dated 20 November 2012”, ie it’s set out in the witness statement that we’re serving on a you as an NAE, a notice of additional evidence.
Can we look, please, at that witness statement that was attached to this letter. It’s page 5.
Thank you. We can see Mr Bradshaw’s witness statement of 20 November 2012. So that’s the NAE that’s being served and, if you just read it to yourself, and see whether it starts to become familiar to you.
Duncan Atkinson: Yes, it does.
Mr Beer: If we scroll down. Then, over the page, please. I think you’ll recognise that –
Duncan Atkinson: Yes.
Mr Beer: – as the text of the email –
Duncan Atkinson: Yes.
Mr Beer: – drafted by the Head of Public Relations and Media of the Post Office, and it’s now become a witness statement.
Duncan Atkinson: Yes.
Mr Beer: If I was to tell you that Mr Kelleher, the Head of Public Relations and Media, had not only been cut and pasted into this witness statement but had been cut and pasted into other witness statements, what would your view be?
Duncan Atkinson: Given the timing of this, it’s profoundly disturbing that both as evidence in cases, which is advanced to be true to the best of the author’s belief, and as the extent of disclosure in 2012 in these cases –
Mr Beer: This is February 2013 –
Duncan Atkinson: – yes –
Mr Beer: – it’s being served, yes?
Duncan Atkinson: – that that is it. That is all that a defendant would be informed as to that which was capable of undermining the prosecution case or assisting them in relation to the operation of Horizon, that was an assertion from, effectively, a press release that the system works well, and that where others have tried to challenge it, they have failed.
That last bit, sadly, is true, on the basis of the cases that I’ve seen but the fact remains that this is not a proper approach to the disclosure on these topics. It’s certainly not a proper approach as to the extent of disclosure on these topics and it’s a rather disquieting approach to the use of a witness statement.
Mr Beer: Why is it a rather surprising approach to the use of a witness statement?
Duncan Atkinson: Well, it’s – clearly, witness statements can be drafted not just by the person who signs them and I’m aware of that. But to sign up to this, unless you really did think this was all that one could say on the topic of the operation of Horizon, it is disquieting, and someone, such as Mr Bradshaw, whose name comes up in a number of the cases I’ve seen, over a period of time that I’d seen, for him to be signing up to that, knowing that this is – what issues had come up in cases, what had been said by these completely independent people about what they had experienced in their use of Horizon, it doesn’t really reflect, I’d have thought, his own experience, let alone that of the Post Office that he was working for.
Mr Beer: Thank you. That can come down.
You tell us in your Volume 2 report – the cross-references are paragraphs 278 and 458, and paragraphs 34, 35 and 76 of your Volume 2A report – about focus or seeming focus on the recovery of money by the Post Office.
Duncan Atkinson: Yes.
Mr Beer: Did you form a view on whether a focus on the recovery of money was an example of the Post Office acting in a manner that was consistent or inconsistent with its duties as a prosecutor?
Duncan Atkinson: As a starting point, clearly where the evidence demonstrated that someone had taken their money, and had been convicted of theft on that basis, then for them to seek to recover that money was entirely consistent with the normal operation of the system. That’s what the confiscation process is usually used for. And, equally, voluntary repayments of monies that have been taken and/or have been lost as a result of the action of a defendant, will be a factor that will be taken into account in deciding whether you’re going to prosecute them and also in assessing the appropriate level of their sentence for the court to assess that at the end of the process.
But here, in a number of cases, pleas were being taken to false accounting, the basis that was advanced from interview on, usually, by the suspect, was that they hadn’t taken the money, they didn’t know where the money had gone. They couldn’t explain why the computer was saying the money had gone but, for various reasons, they had chosen or felt compelled to adjust the records to effectively stave off the day when the accounting errors were held against them by their contracts at the end of the day.
And so there was an acceptance of a plea that did not involve financial loss that was caused by the suspect, and yet the suspect was pursued for that financial loss, both on occasions by it being made a condition of the acceptance of their plea, and also through the use of confiscation as a means to get the money back from them.
Mr Beer: Did you form a view as to whether it was a form of abuse of process to seek confiscation in circumstances where the Post Office could not prove that the money was stolen by the accused and a plea to false accounting had therefore been taken?
Duncan Atkinson: Well, on the one hand, I’m conscious that, at least in one of these cases, an argument was put forwarded on behalf of the defendant that it was an abuse of process to and that argument was not successful.
Mr Beer: Yes.
Duncan Atkinson: But, equally, I am aware that the Court of Appeal expressed, at the very least, concerns about the tying of the recovery of funds from someone who had pleaded to false accounting rather than theft, that that was a concern that they had in those cases as to whether that was appropriate.
I share that concern. It’s perhaps a use of the levers of the prosecution process to obtain repayment of the money, where, otherwise, insofar as I understand the contract position – as we touched on last time, I don’t understand that very much – that, rather than using civil recovery under the contract, they were using the criminal process and the levers of the criminal process, such as confiscation, such as it being a condition of the acceptance of a plea to get the money back, when they hadn’t actually proved that the money had gone in the first place.
Mr Beer: Thank you very much.
Sir, given the time we started this morning, I propose to take the morning break now until 12.00 and then sit from 12.00 until 1.00.
Sir Wyn Williams: Yes, that’s fine Mr Beer.
Mr Beer: Thank you very much, sir.
Sir Wyn Williams: 12.00.
( 11.45 am)
(A short break)
(12.00 pm)
Mr Beer: Good afternoon, sir. Can you continue to see and hear us?
Sir Wyn Williams: Yes, thank you, yes.
Mr Beer: Thank you.
Mr Atkinson, can we move on. We’ve looked at topic 1, investigation. Topic 2, the investigative and prosecutorial focus.
Can we turn to topic 3, which is interviews.
Duncan Atkinson: Yes.
Mr Beer: From the case studies that you reviewed, do you consider that the Post Office complied with its Police and Criminal Evidence Act and the Codes’, issued thereunder, obligations in relation to ensuring that the interviewee knew their rights and were given a proper opportunity to be represented if they wanted to?
Duncan Atkinson: Yes. My only hesitation on that was one case, and I’m afraid off the top of my head I can’t remember, which was, where –
Mr Beer: Was it Thomas?
Duncan Atkinson: – yes – where Mr Thomas asked to have a particular solicitor and the decision was taken not to wait for the solicitor and they therefore arrested him or got the police to arrest him so that they could carry on with the interview, but with – but I think, in his case, ultimately he did have his solicitor by the time he was interviewed. So with that one wrinkle, yes, they complied with their PACE obligations.
Mr Beer: In paragraph 623 of your report, which is on page 219, we looked at it earlier, you note, I think critically, the comments and expressions of disbelief by some Investigators in the course of the interviews. In your experience as a prosecutor, looking regularly at interviews in the period 2000 to 2012, would you agree that such comments and expressions of disbelief, even if inappropriate, would nonetheless often be seen from police officers or HMRC officers in interview?
Duncan Atkinson: I can certainly think of occasions when I’ve seen them. I wouldn’t say it was a routine thing. I can think of cases where such expressions have resulted in applications to exclude the interview in those cases. And the point I was seeking to make here was not a quality check on the quality of interviewing questioning; it was more that this was the person who was making the investigative and disclosure decisions in the case, who was saying this, and that was why I thought it worth identifying.
Mr Beer: Thank you. The Inquiry has heard that pre-interview disclosure was given to an interviewee’s legal representative, prior to the interview but that, if the interviewee was not legally represented, then they wouldn’t be provided with pre-interview disclosure. Was that in accordance or not in accordance with practice as you understood it?
Duncan Atkinson: Home Office guidance, which I was given a copy of, amongst many other things last week, did quote from a police approach, which was to that end: that the – when not represented, documents wouldn’t be handed over to a suspect, albeit that the same guidance made clear that the suspect should nevertheless be put in a position to understand why they were being interviewed, what they were being interviewed about. So, even if they didn’t get physical documents in the way that a solicitor would, they did get an understanding of what was going on.
Mr Beer: I think the guidance that you’re mentioning – there’s no need for us to turn it up – is Home Office guidance –
Duncan Atkinson: Yes.
Mr Beer: – dated 31 August 2023 –
Duncan Atkinson: Yes.
Mr Beer: – ie from this year –
Duncan Atkinson: Yes.
Mr Beer: – quoting from a national police document –
Duncan Atkinson: Yes.
Mr Beer: – that tends to suggest that the purpose of the provision of pre-interview disclosure is to allow the legal representative to understand the nature of the case –
Duncan Atkinson: Yes.
Mr Beer: – and provide appropriate advice to the suspect, in particular on whether to answer questions or not?
Duncan Atkinson: Yes, and certainly, within my experience well before 2023, I’m aware that, where a suspect was unrepresented, they were not given copies of documentation, albeit that they were then asked about that documentation during interview, and that would accord with the approach in the Home Office document.
Mr Beer: Thank you. Was it your experience in police and CPS cases that, following an interview conducted under PACE, following a charging decision, it would be normal for a full transcript to be prepared of the interview, so that a CPS lawyer could review it?
Duncan Atkinson: Certainly at the very least, the reviewing lawyer would have more than a paragraph’s worth of summary of an interview before making a charging decision. I certainly can think of cases, particularly the smaller end of cases, where the document that you would have would be more of a summary than a full transcript but it would quote the key parts in full.
Mr Beer: Is it right that, as part of disclosure in a police and CPS case, what ought to be given is an interview transcript, if one is available, and the tape recording or digital recording of the interview –
Duncan Atkinson: Yes.
Mr Beer: – if available?
Duncan Atkinson: Yes.
Mr Beer: The defence would, therefore, have the opportunity to check the accuracy of the transcript of interview?
Duncan Atkinson: Yes.
Mr Beer: Is it right that one of the standard forms of directions that courts would issue in a contested case would be for the parties to agree interview edits in advance of trial?
Duncan Atkinson: Yes, and certainly there was a stage at which the form that was completed at the first substantive hearing in the Crown Court of the case – and its acronym changed over time – but at that hearing, one of the questions on the form was whether the tapes had been provided to the defence, and then a follow-on question as to the agreeing of an accurate transcript between the parties.
Mr Beer: That process would include checking whether the transcript is accurate versus the tape –
Duncan Atkinson: Yes.
Mr Beer: – agreeing if possible any summaries of parts of the interview –
Duncan Atkinson: Yes.
Mr Beer: – and excluding any material that it was agreed to be inadmissible or identifying if there was a dispute over the admissibility of dispute material?
Duncan Atkinson: Yes.
Mr Beer: Would there then be an attempt to agree between counsel the edits?
Duncan Atkinson: Yes.
Mr Beer: Was that, so far as you can see, an approach that was adopted in the Post Office prosecutions?
Duncan Atkinson: I can’t, off the top of my head, think of an example of seeing discussion in the paperwork, which is all I can go on, about that, one way or the other.
Mr Beer: In the case of Mr Brennan – I’m not going to ask for these to be turned up – but there are two versions available to us of the ROTI, the Record of Taped Interview.
Duncan Atkinson: Yes.
Mr Beer: The first, POL00047322, contains the expressions of incredulity that you mentioned. The second, POL00047320, has them excised, and the metadata from that second version appears to suggest that it was created shortly before trial?
Would you expect that sort of comment from an interviewing officer to be excised at before interview at the request of the defence?
Duncan Atkinson: At the request of the defence, yes.
Mr Beer: But do I understand that the point you were making in paragraph 623 to have a different object or different target?
Duncan Atkinson: Yes.
Mr Beer: It wasn’t about the editing of interviews?
Duncan Atkinson: No.
Mr Beer: It was about the identity of the investigating and then Disclosure Officer?
Duncan Atkinson: It was to the mindset of the investigating and Disclosure Officer, particularly the Disclosure Officer.
Mr Beer: Thank you. Can we move on to topic 4, please, which is a substantial topic: charging decisions. If we can split this up, please, and start with some general points about charging decisions. I’m at page 223 of your report.
Duncan Atkinson: Yes, thank you.
Mr Beer: Paragraph 632. I think it’s right that, in relation to charging decisions, you struggled to identify who had taken the final decision in any case to charge a suspect with a criminal offence or offences?
Duncan Atkinson: Yeah, and this follows on from the concern I expressed when last I was here that there were a number of documents, policy documents from the Post Office that at least suggested that business managers or, indeed, I think in a couple of cases, HR personnel, would be making decisions in relation to prosecution. So I was very keen to see evidence of who actually made the decision and who they were and what their position was. I didn’t see anything like that. I saw advices from lawyers, internal advices in the first instance, but it was not clear who acted on those advices.
Mr Beer: So that’s an identity of decision maker issue?
Duncan Atkinson: Yes, and whether the person who was making the decision was applying the Code for Crown Prosecutors, for example, what factors they actually looked at.
Mr Beer: And what reasoning was included in that decision maker’s record –
Duncan Atkinson: Yes.
Mr Beer: – of decision making?
Duncan Atkinson: Yes. If any, yes.
Mr Beer: Over the page to paragraph 633. You say:
“The advices relating to charge that I have seen produced in the main by lawyers working for the Post Office Criminal Law Division do give rise to real concerns.”
So I think the closest you came to a reasoning for charge, even if it was not the decision to charge – and I’m using “charge” as a shorthand for initiating process by summons –
Duncan Atkinson: Yes.
Mr Beer: – were these advices from Criminal Law Team members?
Duncan Atkinson: Yes.
Mr Beer: You say they gave rise to real concerns. Can you explain why these advices gave rise to real concerns, please?
Duncan Atkinson: They were always very short, and brevity is a fine quality but not where it means you cannot actually discern from the charging advice what the basis for the conclusion reached in that advice is, what test has been applied, what factors have been taken into account, what evidence it is – has been identified as underlying the conclusion.
In the main, the documents set out the conclusion and that was it. So they didn’t show their workings in any way and where, particularly, decisions were being made to charge an offence of theft where, on what I had seen, it was far from clear what basis there was for reaching a conclusion that there was a realistic prospect of a conviction for theft, the lack of any such analysis was troubling.
Mr Beer: You mentioned in paragraph 633, as well, that they took as read the evidential position set out in the Investigator’s summary.
Duncan Atkinson: That was my assumption, on the basis that there was nothing else and that it was – the advice was usually addressed to the person who’d written the summary and so an Investigator had put together their assessment of the evidence, had sent it, as far as I could see, to a lawyer in the Criminal Law Division and the Criminal Law Division lawyer had sent it back with the conclusion as to whether they considered there was a realistic prospect of a conviction, without anything else. There was no suggestion in any of these that they had seen anything else, before making their – giving their advice.
Mr Beer: Just concentrating on the question of what information was included in that charging advice, rather than the merits of the decision reached, based on your knowledge of the Crown Prosecution Service and bringing into account the fact that I think your practice, even in 2000 to 2012, might have been concentrating on cases of significance or unusual complexity. If you were to review a sample of CPS charging decisions made by CPS lawyers in that period, in the ordinary run of criminal cases of an equivalent seriousness to these, do you think you would find, on the file, an advice which set out or which explained how the evidence met the Code evidential test?
Duncan Atkinson: Clearly, they – those that I saw varied in the degree of analysis but, even in the period 2000 to 2013, I saw charging decisions across a whole range of offences and there was a real adherence to the Code for Crown Prosecutors, in that they would set out “These are the things we have to go through, and these are how we have gone through them”, and that did usually – I’m not going to say always but usually – involve an analysis of the evidence.
There would be reference, for example, to the account in interview. There’d be reference to the loser statement, if that was the type of offence, or the complainant’s statement. There would be an analysis of the – anything that might undermine the credibility of the complainant.
Those things would be there. Whether they would be all there, whether they were in themselves always sufficient is perhaps a separate question, but there would certainly, in those that I saw, be an analysis of the evidence. There would at least be a reference to aspects of the evidence in those decisions.
Mr Beer: Put shortly, are you holding the Post Office to an ideal standard, rather than reflecting the reality of the standards that were applied by other prosecutors, in making the criticism of these charging decisions that you have?
Duncan Atkinson: I don’t think I am at all. I think, particularly once the Post Office had expressly said that it was going to apply the Code for Crown Prosecutors, that then I don’t think it’s unreasonable to expect to see an analysis by reference to that test. Long or short, but an analysis, and where you are making a decision about particular offences that involve particular elements that are the elements that you’ll need to consider. So for example, in relation to the offences we are generally concerned with in these cases, a question of dishonesty, there ought, in my view, to be at least a reference to the fact that you need to prove it, and perhaps the evidence that you rely on to do so.
Mr Beer: You wouldn’t say that’s not asking too much?
Duncan Atkinson: No.
Mr Beer: What about in a theft case, identifying that you’ve got to prove an appropriation and asking oneself the question: how do we prove an appropriation?
Duncan Atkinson: Absolutely.
Mr Beer: What is the evidence of appropriation?
Duncan Atkinson: Yes, what is the evidence that the money has gone and has gone to the –
Mr Beer: And gone at the hands of this person?
Duncan Atkinson: Yes, yes.
Mr Beer: If we turn up, please, page 224 of your report.
EXPG000004R, thank you, page 224. If we look at the last three sentences on the substance of paragraph 633 there, you say:
“In particular, this involved consideration of the evidential basis to establish dishonesty, evidence to show where the money had gone, and whether the evidence was reliable.”
I think you told us last time that all iterations of the Code for Crown Prosecutors directed the CPS lawyers, or those who were applying the Code, to consider reliability; is that right?
Duncan Atkinson: Yes.
Mr Beer: You say:
“By way of example:
“In the case of Lisa Brennan, she was charged with theft even though the internal memorandum sent by the lawyer to the Investigator account whether there was evidence of stealing as opposed to the covering up of shortages, and whether there was evidence that she was dishonest rather than incompetent.”
Duncan Atkinson: Yes.
Mr Beer: I think if we track that document down – we’re not going to do it now – we’ll find that that was the very advice that said there’s a realistic prospect?
Duncan Atkinson: It was as near as I could find to one, in that case, and that – again, it was an early case but there was nothing to suggest that there was anything else, and so it wasn’t that the investigator provided evidence to show evidence of stealing, as opposed to covering up shortages or evidence of dishonesty, rather than incompetence, before any decision was made to charge; it appeared that the decision was made when there was no answer to those questions.
Mr Beer: How concerning is that – well, I should say: is that concerning?
Duncan Atkinson: Yes, it is, because the lawyer in that case identified the right questions. They were absolutely the things to ask before you charge someone with theft but they went ahead and charged, as far as I could see, not knowing what the answers were and that seems the wrong way round to me.
Mr Beer: “In the case of Oyeteju Adedayo [you say at (b)] the lawyer correctly identified dishonesty as the likely defence, but didn’t address what evidence there was to prove that element of the false accounting offences” –
Duncan Atkinson: Yes.
Mr Beer: – “that she [nonetheless] advised be prosecuted.”
Duncan Atkinson: Yes, and under the Code the lawyer is enjoined to identify what likely defences are and what evidence there is that addresses those defences, and it wasn’t just a defence, it’s an element of the offence that had to be proved and so, both in assessing whether the elements of the offence were proved on the evidence and whether any defence that was raised was likely to succeed or not, that was the right question to ask, but you needed the answer to it before you could come to a conclusion.
Mr Beer: Then, lastly, in the case of Josephine Hamilton, she was, you say, charged with theft on the basis of an investigation report which said, “I was unable to find evidence of theft”.
Duncan Atkinson: Yes, and so, if my understanding was correct and the lawyer was looking at the investigating report to come to their view on charge, in that case, they were being told that the offence couldn’t be proved and then they charged it.
Mr Beer: Was that a concern?
Duncan Atkinson: Yes.
Mr Beer: The Inquiry has heard evidence from a range of Investigators and prosecuting lawyers who have told the Chairman that they believed at the time that the evidence showed that Horizon was reliable. If that was their state of mind – and putting aside the fact that we now know that to have been incorrect – would that make any difference to your view as to the reasonableness of the charging decisions?
Duncan Atkinson: It would almost certainly depend on the particular case. If it were a case where nothing had been said by the suspect to give rise to any concern about the accuracy of the Horizon data being relied on, and you – you had evidence – as opposed to a belief, you had evidence that the system was working properly, then that would – to charge on that basis, providing everything else was made out, would not be inappropriate.
But if you had a suspect who was raising issues in relation to their post office and the Horizon system in their post office, then you the fact that you might have evidence that the system generally was operating properly would not absolve you of the need at least to consider whether there may have been a problem at that post office and its operation there, that needed to be investigated because it may be that the evidence, in relation to the system at that post office, was not reliable, even if the system more generally was.
Mr Beer: Can I summarise it that a generalised belief in the mind of the lawyer, based on rumour, chatter or messages from senior management, would in no case be sufficient?
Duncan Atkinson: No. You would –
Mr Beer: You needed evidence?
Duncan Atkinson: You needed evidence. Absolutely.
Mr Beer: The nature of that evidence might differ, is that right, between a case where a subpostmaster had raised Horizon reliability as an issue, as against the case where they had not?
Duncan Atkinson: Yes.
Mr Beer: You draw these threads together over the page, please, in paragraph 634, and it’s the first sentence. You say:
“As a result, to adopt the wording of the Inquiry’s question …”
We had asked whether the charging decisions were thorough and/or conscientious. You have said that:
“… they were neither thorough nor conscientious.”
Duncan Atkinson: No, they were brief and, in some cases, perfunctory.
Mr Beer: Can I turn to the second issue, please, which is the test that was applied by the charging lawyer, the reviewing lawyer?
Duncan Atkinson: Yes.
Mr Beer: You picked this up in paragraph 635, which is further down the page. Thank you. You say:
“The test that was applied by the lawyer in giving such advice varied.”
As you said in your first report the Code was not acknowledged as the basis for charge until 2007 – that’s adopted or acknowledged by the Post Office until 2007 – when it was said that that the sufficiency of evidence to prosecute and the public interest would be considered by reference to the Code.
You observed in your first report there was little assistance provided in the Post Office documents until 2013 as to how the Code was to apply to the cases prosecuted by the Post Office, in relation to either limb of the test.
Then you say this:
“In fact, on my review of these 20 cases I confess to not having identified any significant change in the way that charging decisions appear to have been approached before 2007 and after, or as the Code for Crown Prosecutors developed with new editions in 2004 and 2010.”
Duncan Atkinson: Yes.
Mr Beer: Can we extend that to the 22 cases that you looked at?
Duncan Atkinson: Yes.
Mr Beer: It didn’t improve in the case of Janet Skinner or Julian Wilson?
Duncan Atkinson: No, there continued to be no analysis of the factors identified under the Code, particularly in relation to the public interest, and there was still cases, across the piece, where the test was set out in ways that didn’t reflect the test.
Mr Beer: Can we go over the page to page 226, please, and look at paragraph 637. You say:
“Even more concerning is the evidence in a number of cases that [you] reviewed that the test of a realistic prospects of a conviction … was not the test or the only test, being applied …
“In the case of Mr Blakey in 2005, whilst the realist particular prospects of success for charges of theft and false accounting were asserted, they were accompanied by the assessment that there was a low prospect of success for theft, but a high prospect of success for false accounting.
“In the case of [Mr Thomas] in 2006, a different lawyer considered there to be a realistic prospect of success for charges of theft and false accounting, but this was accompanied by the assessment that there was a medium prospect of success.
“In the case of Peter Holmes in 2008, the same medium prospects of success test was added to the assessment of the realistic prospects of conviction.”
Duncan Atkinson: Just to add to that the case of Mrs Skinner, in my Volume 2A, the same issue of medium prospects of success was – appeared there, as well.
Mr Beer: Would you agree that the evidential limb of the Full Code Test is simply whether there’s a realistic prospect of conviction or not?
Duncan Atkinson: Yes.
Mr Beer: Is it right that some cases may pass the evidential limb of the Full Code Test, ie there is a greater than 50 per cent prospect of a conviction but, nonetheless, have a relatively low prospect of conviction?
Duncan Atkinson: In the sense that they’re nearer 50 per cent than not, yes.
Mr Beer: Some who have passed the 51 per cent threshold may have a very high prospect of conviction, ie near the 99 per cent?
Duncan Atkinson: Yes.
Mr Beer: For the purposes of the Code test, does it matter whether it’s 51 per cent or 99 per cent?
Duncan Atkinson: Not so far as the evidential test is concerned. That may have an impact at the public interest stage but not at the evidential stage.
Mr Beer: Why might it have an impact at the public interest stage of the assessment?
Duncan Atkinson: Because if it is a borderline case and there are other public interest considerations that might tend against prosecution, then the fact that the case is a weak one will add to the weight of those public interest considerations.
Mr Beer: In a private prosecution where a prosecutor is not obliged to prosecute, even if both the evidential threshold is met and the public interest test is met, might the relative strength of the evidential case be a factor that the prosecutor would take into account in deciding to commit time and resources to prosecuting?
Duncan Atkinson: Yes.
Mr Beer: Is that how you read these memoranda?
Duncan Atkinson: No, I confess I wasn’t really very sure as to how I should read these memoranda because there were so few clues in their brevity as to how I was meant to read them, and that it may have also puzzled anyone who was receiving them at the time as their advice.
On the one hand, taking the case of Mr Blakey as an example, it was saying there’s a realistic prospect of conviction for theft but a low prospect of success for theft and, on one reading, those two things cancel each other out.
Mr Beer: Were you concerned that the gloss that was put may have undermined or vitiated the assessment that there was a realistic prospect of a conviction for theft?
Duncan Atkinson: Yes, especially when considered against what evidence there was of the elements of theft in that case. If it were intended as a “You could but I wouldn’t if I were you”, then it needed to be spelt out in terms, rather than left to the intuition or guesswork of someone else. If it were seeking to address, “It’s made out but you may not want to prosecute because the prospects of success are low and, therefore, the public interest factors might outweigh it”, then it would have been helpful if it had said any of that, but it didn’t.
And so it just suggested to me a lack of confidence in there being a realistic prospect of conviction and, if that were the case, in coming to a decision on an offence that would, on the face of it, involve theft in breach of trust by an employee of long record and previous good character, then it really needed to set it all out, rather than just say “low prospect”, whatever that meant.
Mr Beer: In any of the 22 cases that you looked at, did you see any analysis of that kind?
Duncan Atkinson: No. Well, in fairness, in very few of the cases did I see any reference to the public interest at all.
Mr Beer: That’s the third topic under this heading that I was going to turn to, the public interest test. Before we move to that, in paragraph 638 at the foot of the page there, you said that you expressed a concern in your first report about the lack of assistance for prosecutors as to the tests to apply.
Duncan Atkinson: Yes.
Mr Beer: You referred, I think, to policy documents that there was an incantation of the adherence to the Code for Crown Prosecutors but nothing that helped individuals to carry that into effect in the context of the likely offences being prosecuted by the Post Office.
Duncan Atkinson: Yes.
Mr Beer: You say that those examples would tend to show that concern to be well founded. Are you drawing a link there between the absence of Post Office policy and guidance with decisions made in practice?
Duncan Atkinson: Yes, so the concern I expressed last time was that simply telling someone that there was another thing that they could go away and look at that would help them make their decisions did put the onus on them to correctly understand what that meant and what it required of them, whereas if it was spelt out in terms for them in the policy by the Post Office, then there was less risk of them getting it wrong and a greater chance of there being a consistent application of the policy.
Just pausing there and going back to the last topic, if you’ll forgive me for a moment, it’s interesting that I found, when I was preparing Volume 1, that there were more policy documents on interviews and the appropriate way of dealing with an interview than almost anything else, and it’s interesting that the Investigators, generally speaking, complied with their obligations under PACE in relation to interviews when they had lots of policy help as to how to do that.
Here, we have prosecutors who were just told “Apply the Code for Crown Prosecutors”, full stop, and we have these charging advices where the guidance given in the Code for Crown Prosecutors, as to the things you need to consider in relation to each stage of the test, are not referred to and you have a number of cases where the test that is set out in the Code has a gloss on it that is not explained by the Code or indeed anything else.
Mr Beer: Thank you. Can we then turn to the third subtopic, then, the public interest. At paragraph 639 at the foot of the page there, you express concern that the charging memoranda rarely addressed the public interest at all. You said that they were disturbingly few in number; is that right?
Duncan Atkinson: Yes.
Mr Beer: You say that the 2004 iteration of the Code identified 17 public interest factors favouring prosecution, nine to the contrary; and the 2010 iteration identified 19 factors favouring prosecution – then over the page – and 11 to the contrary.
I think in none of the 22 cases that you saw was there any analysis of those features at all.
Duncan Atkinson: No. Indeed, in the majority of them, the words “public” and “interest” together didn’t appear at all.
Mr Beer: So an entire absence of evidence that that had been considered on the face of the papers?
Duncan Atkinson: Yes.
Mr Beer: You say that you recognise – this is the third line:
“… where a prosecutor was satisfied there was a realistic prospect of proving there had been theft by an employee in breach of trust, that would be a strong factor in favour of there being a public interest in prosecution. However, the nuances to that test, by reference to the list of factors for and against … underline that such an analysis may be oversimplistic.”
Can you explain why, please?
Duncan Atkinson: Clearly, where the evidence demonstrates that an employee has stolen from their employer in breach of trust, that is the type of situation where it would often be in the public interest to prosecute, but it would not necessarily follow that that were the case if, for example, it was clear that the person had been acting under duress at the time that they had done that, if they were ill, if they were old, if this was an aberration in an otherwise distinguished career.
These wouldn’t necessarily trump the fact that they had stolen from their employer but they would be things that would be thought about in deciding whether it was in the public interest to prosecute or not and, here, there was no analysis of that at all.
Mr Beer: In any of the cases that you looked at, had you been satisfied that the evidential test had been satisfied for a charge of theft by an employee in breach of trust, were there, nonetheless, factors which would have led you to conclude that the public interest was not met or weren’t you in a position to say one way or the other?
Duncan Atkinson: I think because I struggled in many of these cases to identify what the basis for concluding that there was a realistic prospect of conviction for theft, how they had got there, I’m not sure that I got beyond that to consider the public interest but, clearly, where you have the suspect in interview, and this was then relied on as the basis or for prosecuting them, saying that this was not deliberate financial benefit that was driving them: this was things coming up in the system that they couldn’t explain and sought to cover up – so more of a mistake rather than premeditated – that’s the kind of thing that the Code would tell you that you need to take into account in the public interest, weighing against prosecution, potentially, the fact that someone has a good record is a factor that is taken in account in assessing the public interest weighing against prosecution.
And, indeed, I appreciate it’s a very different document, but the audit guidance, the approach to audit shortages that Contract Managers were asked to consider with a whole list of factors, including record, whether this was a one-off, et cetera, whether there’d been voluntary repayment, and so on, those are the kind of things that I would have taken into account if I’d been making one of these decisions as weighing against the public interest being in favour of prosecution, even if I were satisfied that there was evidence of theft.
Mr Beer: So even if you’d been able to – suspending disbelief for a moment, that there was evidence of theft, you would nonetheless have found, or potentially found, the factors that pointed against, in the public interest, prosecution?
Duncan Atkinson: Yes, and where I would have ended up it’s rather difficult to say because it would have depended on my assessment of what the evidence of theft was. But, certainly, there would have been factors going both ways that needed to be thought about, not least because that’s what the Code told you to.
Mr Beer: You mentioned just now voluntary repayment and, in your paragraph 639 here, in the last four lines, you say “factors such as … whether they have made reparation” were relevant, albeit they were rarely addressed.
So the extent to which a suspect had made reparation, would you agree, was a relevant factor to be considered in relation to the prosecutorial assessment of the public interest limb?
Duncan Atkinson: Yes.
Mr Beer: I think in the 2010 edition of the Code, amongst the public interest factors that were listed, was the extent to which the suspect had put right the loss or harm –
Duncan Atkinson: Yes.
Mr Beer: – albeit it noted that a suspect should not avoid prosecution solely because they had repaid a loss?
Duncan Atkinson: No, absolutely.
Mr Beer: In the context of a case where there that already been a finding, an assessment, there was sufficient evidence to prosecute for a dishonesty offence, and a prosecutor is considering whether a prosecution is in the public interest or whether a caution might be sufficient and proportionate disposal, would the fact that the suspect has repaid the amount be a legitimate factor to take into consideration?
Duncan Atkinson: Yes, it could be, yes.
Mr Beer: You noted in the case study of Bailey that the administering of a caution was made conditional on the undertaking to make repayment when funds became available?
Duncan Atkinson: Yes.
Mr Beer: Did you identify any legal basis for the imposition of cautions by the Post Office?
Duncan Atkinson: There was a Post Office policy that dealt with cautioning.
Mr Beer: Yes. I’m thinking about something higher level than that, ie in primary or secondary legislation?
Duncan Atkinson: I’m not sure I’m following you.
Mr Beer: Yes. In order to impose a caution, was some legal basis setting up the machinery necessary to do so or, if that wasn’t an issue that you looked at, then please do say?
Duncan Atkinson: I don’t think it was. I’m sure there must be but I can’t think of it off the top of my head.
Mr Beer: Can you recall, as a result of the Criminal Justice Act 2003, in the context of public prosecutions, a mechanism, a vehicle, known as conditional cautioning?
Duncan Atkinson: Yes, yes, and there was – I know there was, for example, CPS guidance in relation to how they should approach that.
Mr Beer: Could such conditions attached to a conditional caution include repayment of money, ie the payment of compensation?
Duncan Atkinson: Yes.
Mr Beer: Did you examine whether that legislative scheme was one that was available to the Post Office?
Duncan Atkinson: No.
Mr Beer: Thank you.
Can we turn to topic 5, please – that can come down from the screen – which is reasonable lines of inquiry and, in particular, how they impacted on the disclosure that it was necessary for the Post Office to give.
Duncan Atkinson: Yes.
Mr Beer: Back in your first report, the cross-reference is paragraphs 366 to 370, you set out some conclusions in relation to the requirement to pursue all reasonable lines of inquiry. I’m just going to remind you of them.
Duncan Atkinson: Thank you.
Mr Beer: Firstly, you said:
“In the present circumstances, the requirement in the particular circumstances involved consideration of whether the investigation included whether accounting shortfalls at Horizon terminals might lie with the computer system, either as a matter of course or where such a possibility was raised by a suspect in interview.”
In Volume 2 of your report, you identify some failures on the part of the Post Office to pursue such reasonable lines of inquiry and resulting in disclosure failings. Can we look, please, at page 219 of your second report, starting at paragraph 624 –
Duncan Atkinson: Yes.
Mr Beer: – so page 219. Thank you.
It’s the fourth line at the end there. You say:
“In my review of these 20 cases there were, consistently, failures by the Investigators to identify and pursue a number of reasonable lines of inquiry.”
Can we expand that to in the 22 cases that you reviewed, there were consistently failures by the investigators to identify and pursue a number of reasonable lines of inquiry?
Duncan Atkinson: Yes.
Mr Beer: So, in relation to the “consistently”, do you mean by that that it didn’t depend on the identity of the Investigator or the lawyer?
Duncan Atkinson: No. That’s right.
Mr Beer: Do you mean consistently by reference to the fact that it remained the case across the piece?
Duncan Atkinson: Yes.
Mr Beer: I think you tell us about that in the next sentence:
“That remained the position, without any obvious or significant change, after the 2010 amendment to the Post Office disclosure policy document.”
Duncan Atkinson: Yes, and that meant expressed the duty to pursue all reasonable lines of inquiry, which had been absent from the earlier version of the disclosure policy. Even though it was acknowledged in writing, it was not reflected in the approach, as I saw it, in these cases.
Mr Beer: You tell us that:
“There were lines of inquiry common to these cases, the relevance of which was repeatedly engaged by the explanations advanced interview by suspects and/or by the circumstances of the shortfall being investigated, which were either not pursued at all, were only pursued in a limited or supervision manner, or were only pursued as a result of requests … by reviewing lawyers or, much more commonly, by the defence. The following are examples of this trend.”
So, irrespective of the circumstances, whether it was a defendant raising it, whether the circumstances of the case demanded it, there was a failure, in your view, to pursue reasonable lines of inquiry.
Duncan Atkinson: Yes.
Mr Beer: You give three examples of what you call a trend there: the absence of financial investigation; the absence of investigation of training and calls to helplines; and the absence of investigations into the operations of Horizon.
Duncan Atkinson: Yes.
Mr Beer: I want to deal with each of those in turn, please. The absence of investigation into financial records or financial issues. You address this in your paragraph 625. You tell us that:
“… where a suspect denied in interview that he or she had taken the money, and/or had sought to make good unexplained losses identified by [Horizon], it would be a reasonable line of inquiry to obtain their financial information to see if there is evidence of unexplained monies appearing in bank accounts, or payments out of those accounts to cover shortfalls. Such evidence is of direct relevance to the question of whether they have appropriated … money, for the purposes of theft, and whether they have acted dishonestly for both theft and false accounting.”
So following the money, if I can call it that, is relevant in a case of alleged theft, to both the appropriation question and the dishonesty question.
Duncan Atkinson: Yes.
Mr Beer: Can you explain why it’s relevant to both the appropriation question and the dishonesty question?
Duncan Atkinson: It’s relevant to appropriation for evidence that they have appropriated the money, they have got the money and taken the money. It’s relevant to dishonesty because, if the evidence of their bank account, firstly, shows they haven’t taken the money and, secondly, shows that they were not in a financial position where they needed to take the money and, thirdly, where it was appropriate, where it showed they had sought to try to repay losses that had been identified by the system in accordance with their contracts until a point where, as they explained in their interview, they couldn’t afford to do it any more, and that that in turn was borne out by their bank accounts, then those factors would all be relevant to the assessment of whether they’d been dishonest or not, because they would bear them out in their explanation of what had happened, insofar as they understood it.
Mr Beer: What about the suggestion that it was always open to the defendant to say, at trial, “Well, look, there’s no evidence adduced by the prosecution of me having a speed boat on my drive, or a holiday in the Bahamas or unexplained entries into my bank account. The prosecution hasn’t shown any of those things”.
Duncan Atkinson: They can say that. They can say that with a far greater degree of emphasis, if the jury know that the prosecution have looked and where they have looked and what they have found or what they haven’t found.
Mr Beer: So is that why it’s a reasonable line of inquiry to pursue, amongst others?
Duncan Atkinson: It’s one of the reasons but it’s not the only one.
Mr Beer: How serious an omission or failing did you regard this?
Duncan Atkinson: In the first of the cases I considered, that of Lisa Brennan, the lawyer absolutely rightly asked the question of the Investigator as to whether there was any evidence to show that she had stolen the money before then going on to charge her with theft anyway. But the fact that that question was raised does underline how fundamental a question it was to raise because, if you are accusing someone of appropriating money, then it is, it seems to me, incumbent upon you to see whether they have or not.
And a good place to look for that, not the only one, but a good place to look for that would be to see if there’s any evidence that they’ve got it.
Mr Beer: Did you see any explanation in the papers that you saw as to why this line of inquiry was not pursued?
Duncan Atkinson: No. I think it was the case, if I remember rightly, of Carl Page, which started out as an investigation with other investigators, I think the police and Customs were both involved at one point, if I’m remembering the case correctly, and the police investigation, in relation to what was then an allegation of a conspiracy in relation to funds from the Post Office, did investigate whether they could find any evidence of the money.
They couldn’t and the police concluded that they weren’t going to take the matter any further because they couldn’t. That was not the same approach taken on the same evidence by the Post Office.
Mr Beer: In relation to a case of false accounting, what relevance does the financial enquiry that you’re suggesting ought to have been made, potentially have?
Duncan Atkinson: You would want to consider why the suspect had done what they admitted doing, where they admitted doing it, in relation to the accounting records. And where they were explaining that they had – a loss had come up on the system that they couldn’t explain, that they knew they were ultimately going to be reliable for, but it was nothing to do with them, in the sense they hadn’t benefited from it, they couldn’t afford to pay it back, all of that would be addressed by their financial records that would show whether those things were correct or not.
And that would weigh both on whether the elements of the offence were made out but also on the public interest in that kind of case.
Mr Beer: In any of the 22 cases that you looked at, did you see any written explanation in the papers as to why that line of inquiry was not pursued?
Duncan Atkinson: No, and, in fairness, in some of the cases they asked the suspect at the time of interview whether they could have access to their bank accounts, whenever they asked, they were told that they could and, in some of those cases they did obtain some financial material, but it was never a very deep dive into the finances.
And that perhaps was illustrated in some of the cases where confiscation followed on, that a lot of the investigation of the suspect’s finances came about at the stage after they’d been convicted, with a view to getting the money from them, rather than earlier.
Mr Beer: Thank you. Can we turn to the second example that you give of a reasonable line of inquiry not being pursued, and that’s paragraph 626. You tell us about training and calls to helplines:
“… Where a suspect described issues with their operation of the Horizon system, by reference to their training, and/or recounts their attempts to get help at earlier stages [you say] it would be reasonable to make enquiries as to their level of training, and to ascertain whether, how often and in what circumstances they had contacted the relevant helplines.”
Duncan Atkinson: Yes.
Mr Beer: What issues might that go to in a prosecution?
Duncan Atkinson: Again, to take the analysis from the lawyer in the case of Lisa Brennan, the other question that she asked of the Investigator in that case was whether this was deliberate or the result of incompetence and, to put that in a slightly different way, you would want to understand whether that which was being done to the system was being done because the person knew what they were doing, or whether it was, at least, possible that it was the result of them not knowing what they were doing, and a way of assessing that would be to identify how much training they’d had to know what they were doing or not.
And that would be all the more necessary, where, as was often the case in these cases, the person being interviewed said that they’d had limited training or no particular training in relation to Horizon. And, in either situation, but certainly in the latter, it would be a reasonable line of inquiry to ascertain what training they’d had – relevant training, they’d had, as to whether this may be the result of mistake, rather than dishonesty.
Mr Beer: So in both theft and false accounting allegations, it went directly to the issue of dishonesty?
Duncan Atkinson: Yes.
Mr Beer: Can I turn to the third reasonable line of inquiry that you identify, and that’s over the page, please.
Duncan Atkinson: Sorry, just in relation to the second half of paragraph 626 and the calls to helplines. Again, the managing shortage at audit guideline identified that, whether the person had earlier been seeking help in relation to what had gone wrong, was a relevant factor for a contract manager in deciding what to do with the person who – where there was an issue on an audit.
It was identified as relevant in a number of these cases, but only a few of them, to understand whether the type of problems that had been thrown up in – as a description in interview were ones that had been borne out at the time. So where you had suspect saying, “This problem kept arising when I was using the system and I called to ask what I should do”, if you had evidence that they had called to ask what they should do, it underlined the fact that this was a problem that they were having to deal with that they didn’t understand, and that would be relevant to an assessment of whether they were acting dishonestly or not, whether this was accidental or deliberate, and so on.
Mr Beer: Thank you very much. I was going to move on to the third subtopic here, but it’s 1.00. Sir, I wonder whether we might come back at 1.50, please.
Sir Wyn Williams: All right, 1.50.
Mr Beer: Thank you very much, sir.
(1.00 pm)
(The Short Adjournment)
(1.50 pm)
Mr Beer: Good afternoon, sir. Can you continue to see and hear me?
Sir Wyn Williams: Yes, thank you.
Mr Beer: Thank you very much.
Good afternoon, Mr Atkinson.
Can we turn to the third subtopic of the fifth topic. The fifth topic was reasonable lines of inquiry and the third subtopic was Horizon and obtaining from Fujitsu data, in particular ARQ data. You address this on page 221 of your report at paragraph 628.
Duncan Atkinson: Yes.
Mr Beer: If we scroll down to 628, thank you, you say:
“Where a suspect described issues with the Horizon system, unexplained losses, recurrent error notices or simply asserted that they could not explain what had happened when confronted with a Horizon record of a shortfall, then a reasonable line of inquiry is to identify what the root cause of that shortfall is … That involved firstly the obtaining underlying data, and its assessment for bugs, errors or issues.”
You say that:
“The failure to undertake such enquiries was almost routinely identified by the Court of Appeal in Hamilton as a serious investigative deficiency … In these, and many other cases, there was no enquiry for bugs or errors, and the ARQ data was not obtained.”
I think earlier in your report you say that, in some cases, the failure to pursue this reasonable line of inquiry was picked up by a prosecution lawyer but the prosecution lawyer did not wait for the outcome of the investigative steps before positively finding or advising that a prosecution should be pursued; is that right?
Duncan Atkinson: Yes.
Mr Beer: That was paragraph 230 of your report.
Can I seek to exemplify some of those conclusions in relation to specific case studies and this will take a while but I’m going to devote some time to it because of the importance, potentially, of the issue.
In paragraphs 37 to 50 of your report, I think that starts at page 21 – if we scroll down – 37 onwards, you’re addressing here the investigation and charging decision in relation to Lisa Brennan?
Duncan Atkinson: Yes.
Mr Beer: If we go forwards to 43 and 44 – that’s paragraphs 43 and 44 – on page 23, you say that there was some engagement by the reviewing lawyer with the identification and pursuit of reasonable lines of inquiry?
Duncan Atkinson: Yes.
Mr Beer: Yes? You cross-refer us, in footnote 30, to POL00047331. Then you tell us, over the page at page 24, in paragraphs 45 and 46, that the Investigator, and it’s Mr Bradshaw again, responded to what the reviewing lawyer had said two weeks later, indicating that further investigations had been conducted but that you conclude, in 46, that there was no evidence that any enquiries were made as to whether the Horizon system on which the case depended was operating correctly?
Duncan Atkinson: Yes.
Mr Beer: Can we just look, please, then at the two documents that found those conclusions, to start with POL00047331.
I think this is the memorandum that you were referring to.
Duncan Atkinson: Yes.
Mr Beer: If we just scroll down a little bit further, we can see what Ms Berridge, a senior lawyer in the Criminal Law Division was advising, “I would like to know”, and then 1 to 10.
I think it’s right, isn’t it, that none of those lines of inquiry identified by the reviewing lawyer address expressly reviewing Horizon data or obtaining ARQ data –
Duncan Atkinson: No, that’s right.
Mr Beer: – identifying the potential for any bugs, errors or defects in the Horizon system?
Duncan Atkinson: No.
Mr Beer: Nor contacting Fujitsu with regard to the integrity of Horizon data?
Duncan Atkinson: No.
Mr Beer: Then, if we can look to the response, POL00047335, Mr Bradshaw’s reply, as you say, about a fortnight later, “Your memo [Teresa Berridge] refers”, and then a series of responses to the questions that she asked, all numbered paragraph 1 but I think we can see, if we compare them side by side that they are responses to her paragraphs.
None of those lines of inquiry involved the reviewing of Horizon data, including ARQ data –
Duncan Atkinson: No.
Mr Beer: – the identification of bugs, errors or defects in the Horizon system, nor contact with Fujitsu in relation to the integrity of Horizon data?
Duncan Atkinson: Yes, and the second paragraph down, in relation to error notices, was perhaps as near as it got to considering whether there had been issues with the system that had been flagged up but that was – that’s not the same thing as what you’ve just been asking.
Mr Beer: No. Was there any evidence in Lisa Brennan’s case that Fujitsu were contacted for information or provision of data that you saw?
Duncan Atkinson: No.
Mr Beer: I don’t think any witnesses from Fujitsu were ever called in Ms Brennan’s trial; is that right?
Duncan Atkinson: No.
Mr Beer: Can we move on, then, to your report, so back to the main report, please, at page 30 and paragraphs 63 to 69. You’re here dealing with David Yates’ case, yes?
Duncan Atkinson: Yes.
Mr Beer: You note in paragraph 69, which is on page 32, if we scroll down, there is no evidence that any checks were made on the Horizon system for evidence of faults or other errors that might have impinged on the records that Mr Yates’ described in his interview, or otherwise?
Duncan Atkinson: No, that’s right. That was a case where Mr Yates was describing errors appearing on what he was doing that he couldn’t understand.
Mr Beer: The Court of Appeal concluded that there was nothing to indicate that any ARQ data was obtained at the time of the criminal proceedings in Mr Yates’ case?
Duncan Atkinson: No, that’s right.
Mr Beer: That’s Hamilton at paragraphs 330 and 331. Was that observation or finding one that accorded with your review of the papers?
Duncan Atkinson: Yes.
Mr Beer: Again, was there any evidence that you saw that Fujitsu was ever contacted for the provision of data or information in relation to Mr Yates’ case?
Duncan Atkinson: No.
Mr Beer: Was there any evidence that any witness statements from Fujitsu employees were ever prepared or provided to the Post Office prior to Mr Yates’ guilty plea?
Duncan Atkinson: No.
Mr Beer: Thank you. Can we move in to David Blakey’s case, please, and that’s relevantly paragraph 87 onwards on page 38 of your report. You address the investigation between paragraphs 87 and 94. If we go to paragraph 94, which is on page 40, at the foot of the page, you say:
“… despite Mr Blakey’s account of issues with its operation [that’s Horizon’s operation] there were no enquiries made of Horizon data, or the operation of the Horizon system, to see if this could explain the issues that Mr Blakey described. This significant limitation to investigation was well identified by the Court of Appeal”, and you set out a citation from the Court of Appeal’s judgment in Hamilton at paragraph 351.
Duncan Atkinson: Yes.
Mr Beer: So, again, was there any evidence that Fujitsu was ever even contacted for information for assistance or anything else in relation to Mr Blakey’s case?
Duncan Atkinson: No, and, in his case, he did identify that there were discrepancies arising in the system that he couldn’t explain. He was clear that he was not responsible for them; he was clear that his staff were not responsible for them; he couldn’t explain how they had happened. He was told by the Investigator that what he was saying sounded ridiculous and no check was made to understand what it was he was saying, to the extent that he was able to describe it.
Mr Beer: I think this is a case in which there is no evidence that any witness statements from Fujitsu employees were ever prepared or provided to Mr Blakey as part of the investigation?
Duncan Atkinson: No, not that I’ve seen, no.
Mr Beer: Can we look, please – because this is a case in which Jarnail Singh advised – at POL00044820. Can we see that this is a memorandum in the case of the prosecution of Mr Blakey, if we go to the second page, please, and just scroll down. We’ll see that it’s signed off by Jarnail Singh.
Duncan Atkinson: Yes.
Mr Beer: If we go back to page 1, please, and if we just scroll down so we can see the body of the text, thank you. Mr Singh says:
“In my opinion there is sufficient evidence to afford a realistic prospect of conviction of Mr Blakey for an offence with theft with a low prospect of success and for false accounting with a high prospect of success.”
We’ve addressed that issue this morning.
Is that kind of sentence that we see there the bald statement of the sufficiency of evidence that you saw in many charging memos?
Duncan Atkinson: They usually stopped after identifying the offence. The low prospect of success part is something that is less common.
Mr Beer: So a bald statement, in my submission, “There’s sufficient evidence to afford a realistic prospect of conviction”?
Duncan Atkinson: Yes.
Mr Beer: Full stop?
Duncan Atkinson: Yes, and it’s of note, in just taking this as an example, that the lawyer here identified that a reasonable line of inquiry would be to rule out that others working in the branch had been responsible, and so he asked for statements to be taken from them. He didn’t go on to consider whether statements needed to be taken to deal with whether it could have been a computer error, rather than the responsibility of Mr Blakey.
Mr Beer: So, in this case, would you agree that Mr Singh did not advise or failed to advise as to reviewing of Horizon data including ARQ data –
Duncan Atkinson: Yes.
Mr Beer: – and that he ought to have done?
Duncan Atkinson: Yes.
Mr Beer: Identifying the potential for any bugs, errors or defects in the Horizon system, and that he ought to have done?
Duncan Atkinson: Yes, and, even if Mr Singh didn’t understand ARQ data or what it was, one would have looked to see, as a reasonable line of inquiry, that checks ought to be made to understand that the material that was being relied on – namely the Horizon records – was reliable, given that the defendant in his interview was raising issues with the operation of the system.
Mr Beer: So, even though he, Mr Singh, might not have broken it down as I have, a question to Fujitsu, “Can you assure us as to the operation of the integrity of the system, can you supply us with ARQ data, can you identify whether there are any bugs, errors or defects that might impinge on the reliability of the data”, you would expect, am I understanding this correctly, some general statement of request that was focused on the reliability of the material that the –
Duncan Atkinson: Yes.
Mr Beer: – prosecution was relying on?
Duncan Atkinson: Yes, and how detailed it was would depend on how much he knew and you might then expect to see a discussion between Investigator and lawyer as to what needed to be done about that and that would be an entirely appropriate dialogue to have.
Mr Beer: Did you see any of that healthy dialogue between lawyer and Investigator on Horizon reliability in any of the cases?
Duncan Atkinson: No.
Mr Beer: Can we turn, please, to page 46 of your report. Between paragraphs 109 and 115 of your report you address the investigation of Tahir Mahmood?
Duncan Atkinson: Yes.
Mr Beer: In paragraph 114, which is on page 48, you note that there is no evidence or awareness of issues with Horizon in the investigation?
Duncan Atkinson: No. The only place that questions of any errors in Horizon arose was in the interviews of Mr Mahmood, where he described, as best he could, the problems that he was encountering and what they had led to.
Mr Beer: The Court of Appeal observed in Hamilton, it was paragraph 322 of the court’s judgment, that:
“There is nothing of any ARQ data to indicate that any ARQ data was obtained at the time of the criminal proceedings”, in Mr Mahmood’s case.
Did that accord with your examination of the materials?
Duncan Atkinson: Yes.
Mr Beer: Was there any evidence that Fujitsu was contacted for information or assistance in relation to Mr Mahmood’s case?
Duncan Atkinson: No.
Mr Beer: Was there any evidence that any witness statements from Fujitsu employees were deployed in Mr Mahmood’s case?
Duncan Atkinson: No.
Mr Beer: Can we look at how the reviewing lawyer approached it, POL0052884. We can see, if we go to the second page, if we scroll down – sorry third page – this is signed by Juliet McFarlane, a principal lawyer in the Criminal Law Division?
Duncan Atkinson: Yes.
Mr Beer: If we go back to the first page, we will see it’s dated 27 May 2005. We can see how she advises:
“In my opinion the evidence is sufficient to afford a realistic prospect of conviction of the above named on the charges set out on the attached Schedule.”
Is that the more common formulation?
Duncan Atkinson: Yes.
Mr Beer: I think, without reading this in detail, would you agree that Ms McFarlane did not advise as to any reasonable lines of inquiry that required to be pursued, relating to reviewing ARQ data or any other Horizon data –
Duncan Atkinson: No.
Mr Beer: – identifying the potential for any errors, bugs or defects in the system, or contacting Fujitsu in relation to the reliability or integrity of Horizon data upon which reliance was to be placed?
Duncan Atkinson: She took account of the fact that the error notices that have been obtained didn’t accord with this all being the result of a mistake. She then went on to consider that theft was not to be pursued because there were other candidates who could have carried out the theft and to rely, instead, on false accounting on the basis of a covering up of losses in the records, whether they’d been caused by Mr Mahmood or not, without having actually carried out or advising that there should be carried out any checks either, as to where the money that gone or as to what had happened on the computer.
Mr Beer: Was that adequate or not adequate?
Duncan Atkinson: No. It wasn’t adequate.
Mr Beer: Thank you.
Can we turn to the case of Carl Page, please, that’s page 59 of your report. Between paragraphs 149 and 152 of your report, you look at Horizon issues in relation to the prosecution of Mr Page, and you note that, in the course of the retrial, a defence expert report from Timothy Taylor of KPMG was served on behalf of the defence, which raised the prospect that the £282,000 deficiency “could in practice be the result of unidentified errors or differences in Horizon” and that the prosecution case depended on Horizon “working correctly throughout the indictment period”.
Yes?
Duncan Atkinson: Yes.
Mr Beer: In the light of that defence expert report suggesting that the £282,000 could, in practice, be the result of unidentified errors or deficiencies in Horizon, was there any evidence that the Post Office sought to investigate the existence of any such unidentified errors or deficiencies?
Duncan Atkinson: No, and the – taking on board all the need to be careful about material generated after the event, the Second Sight review didn’t point to any which accorded with the lack of any evidence of contemporaneous material in that regard.
Mr Beer: The Court of Appeal observed, it’s paragraph 284 of the Court of Appeal’s judgment, that there is nothing in the Post Office case papers to indicate that any ARQ data was obtained at the time of the criminal proceedings in Mr Page’s case, whether at the initial trial or upon retrial. Did that observation accord with your examination of the case papers?
Duncan Atkinson: Yes.
Mr Beer: Can we turn, please, to paragraph 223 onwards in your report, that’s page 85, where you’re addressing the investigation in relation to Suzanne Palmer. This is paragraph 223 to 227. In relation to that case, Ms Palmer’s case, did you see any evidence that Fujitsu was ever contacted for information or evidence in relation to Ms Palmer’s case?
Duncan Atkinson: No.
Mr Beer: Was there any evidence that any witness statements from Fujitsu employees were ever served on Ms Palmer?
Duncan Atkinson: No.
Mr Beer: Therefore none called at trial. Can we look, please, at what the reviewing lawyer advised at POL00052990. 10 March 2006, in the case of Suzanne Lesley Palmer. If we go to the second page, please, we’ll see this is one of Mr Jarnail Singh’s charging advices.
Duncan Atkinson: Yes.
Mr Beer: Then back to page 1:
“I am of the opinion there is sufficient evidence to afford a realistic prospect of conviction of Ms Palmer for the offences of false accounting.”
Then, if you look at the remainder of the page, and then over the page, is it right that Mr Singh did not advise when he ought to as to any further reasonable lines of inquiry, including reviewing Horizon data –
Duncan Atkinson: Yes.
Mr Beer: – identifying the potential for bugs, errors or defects in the Horizon system –
Duncan Atkinson: Yes.
Mr Beer: – and, lastly, contact with Fujitsu regarding Horizon integrity?
Duncan Atkinson: Yes. On the contrary, he said that there was nothing further that needed to be done.
Mr Beer: We can see that, if we go back a page, please – if we scroll down – the line “No further statements need to be obtained at this stage”.
Duncan Atkinson: Yes.
Mr Beer: But then, conditionally, if there’s an election for trial or refusal of jurisdiction, or if a not guilty plea is entered, then the following statements are necessary, but none of those address the three points that I’ve asked you about?
Duncan Atkinson: No, and the statements that are listed there are all tidying up the evidence for presentation to a jury. I don’t read number 4 there, “Any other statements the Officers consider relevant”, to be identifying to an Investigator that they needed to go and obtain ARQ data.
Mr Beer: Page 114, please – sorry, my mistake.
Yes, page 114 of your report, please. You’re dealing here, between paragraphs 312 and 320, with the investigation concerning Mr Peter Holmes?
Duncan Atkinson: Yes.
Mr Beer: In paragraph 316, please, which is on page 116, you’re addressing, in 316, the interview and you summarise what happened in the course of the interview.
Duncan Atkinson: Yes.
Mr Beer: He asserted, second line, that:
“… shortages could be an issue with Horizon or with malfunctioning equipment.”
Then fourth line:
“… believed that the shortfall on each occasion was something that the computer had done, or failed to do.”
Duncan Atkinson: Yes.
Mr Beer: Seventh line:
“He also raised specifically issues with the Horizon system for three months about nine months previously.”
Duncan Atkinson: Yes.
Mr Beer: Tenth line:
“He denied, emphatically, stealing the money …”
Duncan Atkinson: Yes.
Mr Beer: I think, if we look, at POL00052178, we can see his defence statement, “Name of Accused: Peter Holmes”, his solicitors and the date of it. Then if we scroll down to what his defence statement said, second sentence:
“I believe that either the Horizon system has on occasion been at fault and ultimately created the shortfall by creating incorrect entries.”
Would you agree that, both in interview and in his defence statement, Mr Holmes was squarely raising the operation of the Horizon system as being responsible for the shortfalls?
Duncan Atkinson: Absolutely.
Mr Beer: Is there any evidence that Fujitsu was ever contacted for information or evidence in relation to Mr Holmes’ case?
Duncan Atkinson: It’s not absolutely clear. There was a degree of Horizon material that the investigation did obtain, and transaction logs, for example, although it wasn’t clear where those had come from and they may have come from the branch, rather than from anywhere else. And the Investigator’s report, there were two versions of it in this case, and the updated version made reference to faulty equipment and asserted that “This has been checked and the allegations are unfounded”. It wasn’t clear from the report how they’d been checked or with whom.
So I can’t say positively that nothing was done in terms of contacting Fujitsu. What I can say is I didn’t see any the evidence of the results of any such contact or, indeed, any document that set out such contact.
Mr Beer: Let’s look at this in more detail then because you’re rightly pointing out that there is some mention of the possible pursuit of an enquiry as a result of something mentioned in interview –
Duncan Atkinson: Yes.
Mr Beer: – or defence statement. Can we see how that came about and can we start please with whether it was the reviewing lawyer that caused this enquiry to be made. POL00046488.
That’s the wrong document. That’s Ms Rudkin’s.
Duncan Atkinson: Yes.
Mr Beer: There’s obviously a ghost in the machine at my end here. I’ll skip that and come back in a moment, if we can. If we go to your report at page 117.
Duncan Atkinson: The document might be POL00050912, that’s the reference I give in the report for the charging decision but I was grappling with a lot of POL references.
Mr Beer: Thank you. POL00050912. Thank you.
This is the memorandum in the case of Mr Holmes, dated 16 February 2009. If we look over the page, please, and scroll down, and page 3. It’s a Juliet McFarlane case.
Duncan Atkinson: Yes.
Mr Beer: If we go back to the beginning, please. She advises:
“In my opinion the evidence is sufficient to afford a realistic prospect of conviction … on the charges set out in the Schedule. There is a medium prospect of success.”
I suppose the second paragraph might be a nod to the public interest test, might it?
Duncan Atkinson: Yes. Though not an analysis of it.
Mr Beer: So it doesn’t mention the words “public interest”?
Duncan Atkinson: No.
Mr Beer: Nor does it explain how that position has been arrived at?
Duncan Atkinson: No.
Mr Beer: “No further statements need to be attained at this stage”, in the sixth paragraph.
Then, if we scroll down, if those conditions are met, the following statements should be obtained.
Then, over the page. Is there anything in there that suggests that the reviewing lawyer advised as to a reasonable line of inquiry relating to the operation of the Horizon system?
Duncan Atkinson: No.
Mr Beer: Can we go back to your report, please, and look at the case of Lynette Hutchings. That is page 152. At paragraph 423 at the foot of page 152, you tell us that:
“… Jarnail Singh … advised that it was likely that the defence would assert that Horizon was not working, and therefore ‘it would be more prudent for the officer to complete his enquiries and further investigations and produce the evidence” … listed in the advice [including] ‘evidence rebutting the allegations and criticisms made in the pre-prepared statement’ and ‘statements dealing with the integrity of the Horizon and call logs to the Horizon Support desks’.”
Then you say:
“It is of note that it identified approach was to rebut the assertions … not to investigate whether or not those assertions might be true.”
Duncan Atkinson: Yes.
Mr Beer: Are you focusing on the formulation of the request –
Duncan Atkinson: Yes.
Mr Beer: – the phraseology used?
Duncan Atkinson: Yes.
Mr Beer: What do you take from that?
Duncan Atkinson: Well, in terms of identifying a reasonable line of inquiry, that’s a line of inquiry that leads to or from, that implicates or exculpates, and this was effectively saying “The defendant said he was encountering problems on the system, we need to disprove that”. And that’s not – I’m not saying that it was wrong to say we need to pursue that, because clearly they did need to – that was a reasonable line of inquiry to pursue, but I found the way it was put, perhaps less than helpful.
Mr Beer: In paragraph 425 of your report, further down the page, please, you tell us that on 4 January 2012 Martin Smith of Cartwright King produced a charging advice recommending that Ms Hutchings be charged?
Duncan Atkinson: Yes.
Mr Beer: If we can look at that, please, POL00057341, and if we go to the last page, please, we can see this is produced by Martin Smith of Cartwright King on 4 January 2012. Then back to the beginning. If we just scroll through and look at what Mr Smith says. The audit, in his first paragraph:
“… very strong evidence to support the allegation that Mrs Hutchings had inflated the amount of cash held in the branch, usually by inflating the figure for cash held in £50 notes.”
Third paragraph, if we scroll down:
“In interview … a prepared statement was read out … she admitted to altering the cash declarations and suggested she had done so only since the migration to Horizon Online …”
Over the page:
“Furthermore she said that at the time of migration, all accounts balanced which was clearly untrue. She also gave problems which she alleged she had experienced with the Horizon system … Whilst Mrs Hutchings has denied stealing any money, she has not put forwards any explanation as to how the deficit has arisen.”
Then further down, “Defence Case”:
“It is not known whether [she] will admit or deny wrongdoing … However given the evidence and the admissions … it is difficult to see how she could successfully argue that her actions had not been dishonest and that she had not the intention to make a gain …
“I have seen the [memorandum] of 17 June 2011 …”
That’s the one in which Mr Singh has advised Horizon related integrity issues should be pursued.
Duncan Atkinson: Yes.
Mr Beer: He says:
“[I have seen] numerous statements have … been taken. No further statements need to be taken at the present time”, and that she should be charged, in the last paragraph on the page.
Duncan Atkinson: Yes.
Mr Beer: Would you agree that the statements which Mr Singh had recommended be obtained were not, in fact obtained, going to the Horizon integrity issue?
Duncan Atkinson: Not that I saw.
Mr Beer: Mr Smith in this memorandum dismisses Ms Hutchings’ allegations concerning the Horizon system, which he says they “do not appear to be of any reliance”?
Duncan Atkinson: Yes.
Mr Beer: Is that a view with which you agreed or disagreed?
Duncan Atkinson: Disagreed.
Mr Beer: By reference to the fact that the lines of inquiry that Mr Singh had recommended be pursued and what was said in this charging memorandum, was it appropriate or inappropriate for a charging decision to be taken in Ms Hutchings’ case without the Post Office having, at that stage, obtained statements “dealing with the integrity of Horizon”?
Duncan Atkinson: One of the things that she had said in her prepared statement was that she had not been responsible for the loss, that the loss had arisen on the system and that what she had been doing was to adjust the figures in the hope that it would balance out in itself in due course, that the system that had created a problem would sort the problem out, and that clearly was relevant to the assessment of her honesty or otherwise, which was dismissed by Mr Smith in his advice.
And so just testing that alone required an understanding of whether these were regularities as a result of the system and the way it was operating or not. But, beyond that, there was the wider need to test the reliability of the evidence being relied on rather than to proceed from the basis that Mr Smith did, that it was reliable, without more.
Mr Beer: Thank you. Can we turn to Joan Bailey’s case, please. This is page 159 of your report.
Between, if we scroll down, paragraphs 444 and 452, you address the investigation that was undertaken in the case of Joan Bailey.
Duncan Atkinson: Yes.
Mr Beer: Was there any evidence that Fujitsu was contacted for information or assistance in relation to Joan Bailey’s case?
Duncan Atkinson: No.
Mr Beer: Were there any witness statements obtained from Fujitsu served on Mrs Bailey before she accepted a caution?
Duncan Atkinson: No, and it’s right to say in her case she, in interview, did raise the question of, and her belief that there were, problems in the Horizon system that were giving rise to issues. The Investigator, Mr Bradshaw again, in her first interview reassured her that the Horizon system was – did not have glitches and, in her second interview, told her that any issues with Horizon were down to carelessness or incompetence by the operator, and then carried out no investigations that I could identify to test whether what she was doing her best to describe might be an error in the system.
Mr Beer: Thank you. Can we move on to page 170 of your report please. From paragraphs 483 – in fact it’s over the page, thank you – to 488 of your report you address the investigation undertaken in Ms Allison Henderson’s case?
Duncan Atkinson: Yes.
Mr Beer: The Court of Appeal observed in the Hamilton appeals – their paragraph 158 – that there was nothing to suggest that any ARQ data was obtained in Ms Henderson’s case. Did that observation accord with your examination of the case papers?
Duncan Atkinson: Yes, it’s right to note that this was one of the cases where I didn’t have a report from the Investigator but, on what I did have, I didn’t see anything that rang contrary to the finding the Court of Appeal had reached.
Mr Beer: Was there any evidence that you saw that Fujitsu was contacted for information or evidence in relation to Ms Henderson’s case?
Duncan Atkinson: No.
Mr Beer: Can we look, please, at the reviewing lawyer’s advice, POL00047159. 21 May 2010, Allison Henderson. If we go over the page, please, and scroll down, we can see that it’s the Head of Criminal Law, Mr Wilson’s, advice memo?
Duncan Atkinson: Yes.
Mr Beer: Back to page 1, please. We can see the formulation that he uses:
“In my opinion the evidence is sufficient to afford a realistic prospect of conviction of the above named on a charge of theft as set out on the attached Schedule. I have not drafted a commencement date in the theft as I am not clear when we are saying that the losses started. Can you fill in such a date and explain to me your rationale for relying on this particular date.
“… it does not seem appropriate to consider false accounting charges. It would be helpful if we could obtain some evidence to refute the possibility that the money she alleges must have gone missing was not, in fact, in the account during the last accounting period prior to the audit.”
Do you understand what that means?
Duncan Atkinson: Not altogether, no.
Mr Beer: In any event, in this advice – we can scroll down the rest of the page and look over to page 2 – do you agree that Mr Wilson did not advise as to a line of inquiry existing concerning the review of data, including ARQ data –
Duncan Atkinson: No, that’s right.
Mr Beer: – the potential for bugs, errors or defects in Horizon to be investigated or, indeed, any contact with Fujitsu in relation to the integrity of Horizon data?
Duncan Atkinson: I have a vague memory that there was a suggestion at one stage in Ms Henderson’s case that they might, if the matter went to trial, need to get a statement from Mr Jenkins, who they had started to get statements from by then, but it never got that far. But, certainly, in the time that this was being investigated, I didn’t see any issue with – any steps being taken to get such ARQ data, for example, or contacting Fujitsu more generally.
Mr Beer: If we look at page 172 of your report, you address the interview in paragraph 484. In 485, you say:
“The interview was … combative and was indicative of a disciplinary approach as opposed to an investigative [approach].”
Just whilst we’re on that, taking it out of turn, what do you mean by “it was indicative of an disciplinary approach”?
Duncan Atkinson: It was – it read as if this was a case of prove a misconduct that Ms Henderson was being asked to justify, rather than an investigation with her of how it was that losses identified by Horizon might have arisen, and I – certainly she felt it to be that because she said so, that she felt that the investigators had drawn their own conclusions before they’d spoken to her.
Mr Beer: You tell us in 486 that bank statements were obtained. Can you recall what the reason was for the obtaining of bank statements in this case, as opposed to others?
Duncan Atkinson: That, I think, was to see whether there was any evidence that the money had gone to her, and there wasn’t.
Mr Beer: You say in the third line:
“It is not clear whether there were enquiries as to calls to the Horizon Helpdesk or the NBSC as would be a standard line of inquiry in these cases.”
Do you mean by that “as should be a standard line of inquiry”?
Duncan Atkinson: Yes, yes.
Mr Beer: “There was no evidence of awareness of Horizon issues in the course of the investigation, and there does not appear to be any context on the accuracy of Horizon information relied on” –
Duncan Atkinson: No.
Mr Beer: – “or checks as to whether there had been any faults.”
Duncan Atkinson: The Court of Appeal observed that they couldn’t see any suggestion that ARQ data had been obtained.
Mr Beer: Thank you. Can we move on, please, to the case of Khayyam Ishaq, which is page 211 of your report. If we scroll down to “Disclosure”, turning to a slightly different issue here, which is where there has been some investigation. Because we’ve looked at a slew of cases now where there has not, I want to look at some cases where there has been an investigation of sorts.
Duncan Atkinson: Yes.
Mr Beer: Between paragraphs 602 and 606, you tell us about the approach that was taken by a lawyer at Cartwright King, called Rachael Panter, to disclosure in the case. Is this a fair summary: that she advised that it was sufficient for Mr Jenkins to address Horizon integrity issues on a generic basis because the subpostmaster had not raised a specific issue with the Horizon system itself; they’ve all been generic to date?
Duncan Atkinson: Yes.
Mr Beer: If we look at that underlying document, please, POL00059402 and, if we go to the last page in this chain, please, we can see this email is signed off – if we scroll up, please – by Rachael Panter – if we scroll up, keep going. It’s an email to Mr Jenkins of 16 November 2012, and she says:
“As you may already be aware, your expert report detailing the reliability of the Horizon system has been served as evidence in a number of Post Office cases that are at various stages of the court process, most of which are listed for trial in the early part of next year.
“It should be noted that to date, most, if not all cases raising the Horizon system as an issue, have been unable/not willing to particularise what specific issues that they have with the system, and how that shapes the nature of their defence.
“As we already have your detailed report, I would like to serve it in each case listed below. All of the following cases have raised issues with the reliability of the Horizon system.”
Then Khayyam Ishaq’s is listed:
“I would like to serve your report in the remaining cases and have attached a case summary of each case listed above so that you may familiarise yourself with the facts of each case.
“I … stress that I do not anticipate that all of the above cases will reach trial … could you read the case summaries attached, and send 5 original signed and dated copies of your report to me as soon as possible.”
Then some other material.
Can we go back to your report, please, at page 213. At page 213, you tell us at paragraph 605 that Mr Jenkins replied asking if his existing report from Patel could not be used, raising the question of whether contact with him should be by the Post Office rather than their solicitors:
“Ms Panter commented to a colleague at Cartwright King, ‘I can clarify with Gareth that it doesn’t matter that specific cases are not quoted in his report as not one of them has raised a specific issue with the Horizon system itself, they have all been generic to date’.”
Then you offer your view in paragraph 606 as to this.
Duncan Atkinson: Yes.
Mr Beer: You say:
“As an approach to disclosure, the obvious difficulty with it is that it makes disclosure dependent on a defendant understanding what has gone wrong, what issue with the Horizon system had led to according imbalances, when a reason for the defendant seeking to cover unexplained losses was that they did not understand why they were happening.”
Can you explain what you mean there, please?
Duncan Atkinson: So the approach that Ms Panter adopted was that it wasn’t necessary for Mr Jenkins to address the data in a particular case, such as that as of Mr Ishaq, because defendants, such as Mr Ishaq, had not spelt out what it was that had caused the problem on Horizon in their case, why the losses had been shown on the system in their case.
But that, of course, required the defendant to understand why the errors had arisen in their case and, certainly by this point, at the end of 2012, it had been repeatedly clear from repeated suspects that they didn’t understand what the problem was, they just knew there was a problem and they described what they had encountered in their interview, as Mr Ishaq did here.
And so, rather than testing the reliability of the evidence that the case was founded on, and where they had someone who could do that testing for them in the shape of Mr Jenkins, asking Mr Jenkins to test it, to understand whether the system had been working properly in this branch at this time, instead, because the postmaster couldn’t give chapter and verse as to what was causing the problem, it was deemed sufficient to have a generic report that simply asserted that the system was all right.
Mr Beer: You make that point that you’ve just made there in the last two sentences of paragraph 606:
“As his approach in the case of Gareth Allen shows, it was possible for Mr Jenkins to access Horizon data for a particular post office to check if there were any issues. The approach identified by Ms Panter did not facilitate such an approach, and yet it was that approach that was required.”
Would you agree that, in addition to having the effect of restricting the analysis which Mr Jenkins might undertake, the effect of the approach that Ms Panter adopted to disclosure was that, in many of the cases you have reviewed, including this one, Fujitsu were never asked to analyse the transaction data at all?
Duncan Atkinson: That’s right, and the case of Mr Allen that I referred to there was a case where Mr Jenkins has said that it was possible to look at ARQ data in relation to Mr Allen and see what it showed. So it was made clear to him, in his discussions with the lawyers who were dealing with these cases, that this was something that could be done.
Mr Beer: The Court of Appeal observed that ARQ data was provided for the indictment period to the defence on the 26 October 2012, shortly before trial was due, but that it was unclear what, if any, analysis was performed on it and that there was no examination of that data for bugs, errors or defects, or indeed for evidence of theft?
Duncan Atkinson: Yes.
Mr Beer: Did that accord with your own observations –
Duncan Atkinson: Yes.
Mr Beer: – of the case papers here?
Duncan Atkinson: And as other cases where experts were instructed on behalf of the defence demonstrated, the difficulty of just giving a collection of data to the defence is that, unless they had the necessary expert understanding of how Horizon worked, it was a very large job for them to analyse, to understand, even begin to understand how the system worked, let alone how it wasn’t working, whereas someone with knowledge of the system had that advantage, and a subpostmaster I wouldn’t include on what I read in that category to understand the technical aspects of the Horizon system.
Mr Beer: Just going back to paragraph 532 of your report, as you mentioned Mr Allen’s case, it’s on page 188, you tell us in this context that the failure to examine detailed data logs in order to investigate the specific issue was, to quote you, “an unfortunate failure in the evidence” but that appeared to be a Post Office decision; would that be right?
Duncan Atkinson: Yes. Yes, he’d – he, meaning Mr Jenkins, had indicated that it could be done but he wasn’t asked to do it.
Mr Beer: So Mr Jenkins was offering to examine the data, in addition to making a general statement about Horizon reliability?
Duncan Atkinson: Yes.
Mr Beer: But the Investigator and the prosecutor decided that the general statement was enough; is that right?
Duncan Atkinson: Yes.
Mr Beer: Would the course of action that Mr Jenkins was offering to undertake have been more in line with the Post Office’s duties as a prosecutor, both in terms of reasonable lines of inquiry and disclosure?
Duncan Atkinson: Yes.
Mr Beer: Did you ascertain why it was that the Post Office Investigator and/or lawyer decided that it was sufficient to serve a general statement in place of Mr Jenkins examining the underlying data?
Duncan Atkinson: There were various reasons given in various different cases. Insofar as Mr Allen’s case is concerned, I’m not sure that I did see a reason beyond the position which had already been stated, that it was for the defendant to identify what had gone wrong and that they would then look at it, rather than for them to investigate whether the system had been reliable or not.
What was interesting, just while we’re on this paragraph and in this case, is that another lawyer involved, Andrew Bolc, did appear here to be noting that the retrieval of the data from Fujitsu for these purposes would not cost the Post Office anything and, in other cases, cost was given as a reason for not doing things, but that – what Mr Bolc, was saying here did tend to suggest that that wasn’t right.
Mr Beer: It wasn’t operative, at least in this case?
Duncan Atkinson: Yes.
Mr Beer: What view, if any, did you take of the fact that a witness was suggesting the possibility of a line of inquiry being pursued, identifying that examination of the underlying data, the logs, might be the appropriate course of action, but the Investigator and the prosecution were saying not to?
Duncan Atkinson: Well, it goes slightly further than that. This is the expert, as they perceived him to be, that they had gone to for his expert knowledge of the system, saying to them that this would be the appropriate way forwarded and for the Investigator and lawyer to say no to that which their expert was telling them would be the logical next thing to do, which, in any event, it should have been clear to them needed to be done.
Mr Beer: Was that of concern?
Duncan Atkinson: Yes.
Mr Beer: In that paragraph, 532, and indeed elsewhere in your report – other paragraphs include 545 and 663 – you are critical of the use of so-called generic statements concerning the reliability of Horizon being presented as expert evidence, and as a collateral point placing an obligation on a defendant to specify particular issues with Horizon before any further investigation of those issues would take place?
Duncan Atkinson: Yes.
Mr Beer: Have I summarised –
Duncan Atkinson: Yes.
Mr Beer: – that concern correctly?
Did you form a view who was controlling this exercise, the extent to which specific enquiries were made: on the one hand, the Post Office, and, on the other, Fujitsu, including Mr Jenkins?
Duncan Atkinson: Insofar as I could see from what I had, there was this instance here of Mr Jenkins volunteering that something further could be done in relation to the ARQ data and, in this instance, it was the Investigator and the lawyer who said that that wasn’t required.
In other instances, it was lawyers such as Ms Panter, who were saying a generic statement will do, and so, insofar as I could judge from what I could see, it was the Post Office side of things saying “This is enough”, rather than their expert or the company that he worked for telling them that it didn’t need to be done.
Mr Beer: I think you’re nonetheless critical of the failure to make reference within the generic statement of material directly relevant to Horizon reliability that Mr Jenkins was aware of at the time that he made the October 2012 generic statement?
Duncan Atkinson: Yes, because, as an expert, and bound by the rules in relation to what was required of expert evidence, he was required to identify that which was relevant to and potentially undermining of any opinion he expressed and, if he was expressing an opinion that the system worked properly and he was aware of material that might suggest to the contrary, then he had a duty to disclose that in his report, even if he hadn’t been asked to.
Mr Beer: You began that sentence with the words “As an expert”?
Duncan Atkinson: Yes.
Mr Beer: Can I ask you please an open question as to why you described Mr Jenkins as an expert –
Duncan Atkinson: Firstly –
Mr Beer: – and what you mean by that?
Duncan Atkinson: Firstly, that was how he was treated in the sense that, when his statements were served in these various cases, when he was called in the case of Ms Misra, he was identified an expert. An expert is someone who is expressing their opinion on a matter that is outwith the knowledge of the jury. He was being called to express his opinion as to the operation of a computer system that had been produced by the company that he worked for and about the operation of which the jury were unlikely to know anything at all.
Mr Beer: In the light of that fact, did you identify – again this is generally – any instructions in any case to Mr Jenkins, which instructions identified to him the duties of an expert witness?
Duncan Atkinson: No, none at all and I should say, in relation to that, that I’m not, in that sense, relying on the “Gareth Jenkins Chronology” document. I have been fortified since 4.00 on Friday, when I received them, by two lever-arch files of correspondence between the Post Office and Gareth Jenkins, which shows a lot of contact between them, in not a single one of which were his duties as an expert hinted at.
Mr Beer: Was that of concern to you?
Duncan Atkinson: Oh, yes.
Mr Beer: What level was the concern that you felt?
Duncan Atkinson: Well, as I touched on in my Volume 1A, the responsibility of someone instructing an expert, as to what they have to tell their expert, has evolved over time. Certainly now, and for a period of years before now, it’s very clear from, for example, the CPS or the Health and Safety Executive that they recognise the importance of making clear to an expert what their duties are, the rules now make clear that they should do that.
But the rules for an expert have been clear for quite some time, and the duty on a party to make sure that others involved, such as an expert they’re instructing, comply with the rules, made it, in my view, obvious that they ought to have told someone who they were instructing as an expert what their duties were, particularly where they were aware, not least because he told them, that he hadn’t done this kind of thing before.
Mr Beer: We’re going to come perhaps tomorrow to the detail of that. You’re referring, I think, to an email where he asks expressly for help –
Duncan Atkinson: Yes.
Mr Beer: – and says, “I’ve not done this before” –
Duncan Atkinson: Yes.
Mr Beer: – “what should happen?”
Duncan Atkinson: Yes.
Mr Beer: “What do I need to do?”
Duncan Atkinson: Yes.
Mr Beer: In this context, the present context I’m asking you, which is the preparation of the generic statement, do you agree that it was important for the Post Office prosecutors to tell Mr Jenkins, remind him of his duties to the court, in particular in relation to the disclosure of any information that undermined the views that he was expressing, when proposing that he should provide a generic statement concerning Horizon?
Duncan Atkinson: Yes.
Mr Beer: That didn’t happen?
Duncan Atkinson: No.
Mr Beer: Can we look, please, at POL00026567. You’ll see from the first page here that this is a case concerning Kim Wylie. Again, it’s not one of the case studies but it’s the beginning of the trail, which leads to the generic statement, I think. We’ll see that this is an advice by Harry Bowyer of Cartwright King?
Duncan Atkinson: Yes.
Mr Beer: It’s after Second Sight have been announced as investigators and, if we just scroll through it, please, paragraph 1:
“In my earlier advice I advised we would need to prove the integrity of Horizon as there was apocryphal evidence on the Internet and elsewhere that the system was leading to injustice.
“The position of the Post Office has, up until now, always been very robust. When the system has been challenged in the criminal courts the system has always been successfully defended.”
Second Sight has been announced:
“Whether this announcement was well considered or not is not an area that I intend to address but the bell cannot be unrung and there will be consequences …”
Then if we scroll on, please:
“… we have now given ammunition to those attempting to discredit the Horizon system. The argument will be there is no smoke without fire and we would not have needed to audit a bomb proof system. We can expect this to go viral in that any competent defence solicitor advising in a case such as this will raise the integrity of the Horizon system and put us to proof as to its integrity. As all of our cases depend on the system to compute the alleged losses this is likely to affect a considerable percentage of our cases.
“4. The extra evidence which we will be obliged to gather will be as nothing in comparison to the potential disclosure problems we may face. Until the Second Sight … is concluded we will be in limbo. It is essential that this … is completed as soon as possible and we can live by its findings. We will have to find out when this enquiry will report in order that we choose our strategy. If it is a matter of weeks, then cases can be put over until after it reports. If we are talking months then the courts will not wear such delays.
“I assume we will contend that the system is foolproof in which … we should defend it aggressively. I understand the manufacturers have not been helpful up until now. My understanding is they will not provide expert evidence without large fees being sought. This will not do. If the integrity of the system is compromised then the consequences will be catastrophic for all of us including them. The financial consequences of convictions and confiscation orders being overturned and confidence in the Post Office bookkeeping being restored for future prosecutions will be astronomical. They should be made to understand that this is a firefighting situation and it is not just our house that will be burned down if the system were compromised.”
Then on to 6, please.
“… we should attend to the following:
“… identify the contested cases, both criminal and civil, in which Horizon has been challenged … identify areas of challenge and how we neutralised them. Any expert report should be retained for evaluation. An expert should be identified and instructed to prepare a generic statement which confirms the text of the system and why the attacks so far have been unfounded. This expert should be deployed in all cases where the Horizon system is challenged and he should be prepared to be called to reply to defence experts on a case-by-case basis.”
Just stopping there, and putting aside Mr Bowyer’s turns of phrase, did you identify anything problematic with the approach set out.
Duncan Atkinson: Well, the first point that occurs is that Mr Bowyer is there identifying a need to consider earlier cases, where issues with Horizon had arisen with a view to an expert now explaining how – why those earlier attacks had been unfounded, rather than there being any consideration here of whether the material generated by earlier cases where Horizon had come into attack was material that was capable of undermining the prosecution case, assisting that of another defendant and, therefore, it being material that ought to have been disclosed to them.
And the other point is that this, as it describes, is a generic statement to confirm the integrity of the system, rather than asking an expert to examine the integrity of the system in relation to any case that is going to be prosecuted. So it’s a bit like the press release that asserted that the system worked well, that Mr Singh and others had been working on in 2012, rather than meeting the prosecution’s obligations, both in relation to the reliability of their evidence or disclosure in relation to their case of material that might undermine that, or at least to look whether it was reliable or not, on a case-by-case basis, rather than through a generic statement.
Mr Beer: So if we go to the last page of this document, if we just scroll on a bit. We’ll see it’s dated 11 July 2012, and that seems to be the origin of the idea of a generic statement –
Duncan Atkinson: Yes.
Mr Beer: – prepared by an expert. Mr Bowyer doesn’t identify that the expert should come from Fujitsu –
Duncan Atkinson: No.
Mr Beer: – or the identity of the expert?
Duncan Atkinson: No.
Mr Beer: Can we go to POL00141396. Can we see at the foot of the page, or halfway down, Mr Cash, a solicitor at Cartwright King, sending that advice over to Jarnail Singh from Mr Bowyer saying:
“I know it will be unpalatable, but for what it may be worth I share his view.”
Yes?
Duncan Atkinson: Yes.
Mr Beer: Then further up the page, please. Mr Singh distributes it:
“Hugh – Cartwright King’s lawyer in the case of Wylie has advice on evidence and also how to progress Horizon challenges, in view of its content can this be forwarded to case officer and Dave Pardoe.
“[Jarnail Singh].”
So it has been distributed around the organisation?
Duncan Atkinson: Yes.
Mr Beer: Do you view what had been advised, its adoption by Mr Cash and its promulgation on to the Post Office, as consistent with the duty on solicitors who have the conduct of private prosecutions to discharge their duties to act as ministers of justice?
Duncan Atkinson: No, because it didn’t identify, nor did anyone who had received Mr Bowyer’s advice identify, that it was advising on a bandage, rather than on an investigation of what the illness was, or what the injury was. It was looking at how to protect the system, rather than to assess the reliability of the fundamental evidence in the prosecution of subpostmasters.
Mr Beer: I should have said that Mr Bowyer was in-house counsel, rather than a solicitor.
Duncan Atkinson: Yes.
Mr Beer: Did you regard the advice and its adoption and promulgation as consistent with the proper approach to disclosure, in accordance with the CPIA and the Code of Practice issued thereunder?
Duncan Atkinson: No, it’s effectively, rather than identifying a reasonable line of inquiry, on the one hand, and material capable of undermining the prosecution case or that, if it was in their possession, might undermine the prosecution case, on the other, it was seeking a statement that would obviate the need for either.
So rather than checking whether the system was reliable, they would have a statement that they could just add to the bundle that will assert it was fine without checking and they would have a statement that would close off enquiries of – on the part of the defendants, or disclosure requests from defendants, in relation to the operation of the system, rather than identifying there would be material that needed to be investigated as to whether the system was working properly.
Mr Beer: Just before the break, can we look at POL00141416, please. An email – sorry, if we scroll down, please – back to the top, please. Can we see this is an email, if you scroll down a little bit you’ll see I think it’s from Mr Bowyer, Harry, yes?
Duncan Atkinson: Yes.
Mr Beer: Then to the top, this is its cut off but it’s dated 6 August. The advice we’d seen was July, if you remember.
Duncan Atkinson: Yes.
Mr Beer: “This appears to be what we want.
“Hopefully Helen will confirm that the Horizon system has never been successfully challenged. I have yet to see any sign of any experts briefed on behalf of the defence.
“When she has completed her exercise she should prepare a summary of those cases where there is a proper attack on the system rather than a gripe that the system is at fault (although she should record those cases so that we can say that they have been kept under review – they will become more numerous as the bandwagon and pikes up speed).”
Then this:
“The expert will need to address the report to the following issues …”
And then four issues are identified; can you see that?
Duncan Atkinson: Yes.
Mr Beer: “A description of the Horizon system;
“A declaration that it is yet to be attacked successfully;
“A summary of the basic attacks made on the system concentrating on any expert reports served in past cases. If there are none, then state that no expert has yet been found by any defence team, civil or criminal, to attack the system (at the moment there seems to be little more than griping by defendants that the system must be at fault without saying how).
“4. Plainly, like all accounting systems, there is room for human error (Keying in the wrong amounts etc) but the expert should be able to state that innocent human error is unlikely to produce the types of discrepancies of many thousands of pounds over many months.”
If we stop there, remember those four questions, and then come back after the break to see what happened to them and what ended up being produced, as a result of them.
Sir, can we break until 3.30, please.
Sir Wyn Williams: Yes, of course.
Mr Beer: Thank you.
(3.16 pm)
(A short break)
(3.30 pm)
Mr Beer: Sir, can you see and hear us?
Sir Wyn Williams: Yes, thank you.
Mr Beer: Thank you.
Mr Atkinson, we had just looked at the four questions that Mr Bowyer had prepared in his email of 6 August. Can we move on to September 2012 and look at POL00020489. If we scroll to the second email down there. Mr Singh says:
“Andy [that’s Andy Cash]
“Thinking about choice of expert in this case. I have in the past instructed Gareth Jenkins of Fujitsu in the case of Misra which incidental was the only challenge on Horizon, he provided expertise in dealing with defences boundless enquiry into the whole Horizon system. Perhaps we need to reconsider whether to instruct him as he may be viewed too close to the system but instruct
“Somebody entirely independent? Your thoughts please and also whether you or Harry have anybody in mind.
“Thank you.”
Then further, up the page, Mr Bowyer says:
“I would have preferred somebody entirely independent but this is such a specialist area that we would be hard pushed to get a report in the timescale we require – we might open our expert up to allegations of partiality but his expertise will be unlikely to be challenged.”
Then there’s some timing issues.
In the light of that exchange, the Post Office internal lawyers, on the one hand, and the Cartwright King lawyer, on the other, were seemingly aware, would you agree, of Mr Jenkins not being functionally independent?
Duncan Atkinson: Yes.
Mr Beer: Given the breathless tones in which Mr Bowyer’s memo had earlier been written, as to this being a potential moment of crisis, do you agree that, given that significance that was being attached to the issue of the instruction of an expert, and this recognition that Mr Jenkins was not functionally independent, it was important that, if Mr Jenkins was instructed, that he should be made to understand that he was subject to a wide range of duties –
Duncan Atkinson: Yes.
Mr Beer: – as an expert witness?
Duncan Atkinson: Yes, and, in particular, a requirement that he be independent.
Mr Beer: What do you mean by that?
Duncan Atkinson: Well, it was essential that he were – he understood that he was being asked to give his independent opinion about these things, rather than to provide evidence that was mapped out for him or to give an opinion that he was being told to give, in effect.
Mr Beer: Can we turn to POL00096978. We can see this is an email of 1 October 2012 to Mr Singh – sorry, from Mr Singh to Mr Jenkins. Also included in the distribution list is Penny Thomas of Fujitsu, Hugh Flemington of the Post Office, Martin Smith of Cartwright King. Subject “Horizon Fujitsu Report Very Urgent”:
“Welcome from your annual leave and your assistance advice in the past prosecution cases and I understand you are assisting my colleagues at present. I need your urgent assist judge has this morning ordered the prosecution to have the following report ready to be served within Seven days. On advise Post Office Limited have appointed one of their investigators, Helen Rose, as disclosure officer dealing with Horizon challenges. She has prepared a document/spread sheet detailing all such cases, past and present, approximately 20 in total, although none thus far successfully argued in court. Post Office Limited have been advised to obtain an experts report from Fujitsu UK, the Horizon system developers, confirming the system is robust.”
Just stopping there, is that the antithesis to the type of instruction that you just mentioned?
Duncan Atkinson: Yes.
Mr Beer: “Post Office Limited maintain the system is robust, but in the light of adverse publicity, from legal viewpoint is that defence should be given opportunity to test the system, should they still wish to do so, on consideration of our report.
“You will need to consider the Disclosure officers document/spreadsheet (see attachments) and need to address in your report the following issues …”
Then cut and pasted into this email is the Harry Bowyer 6 August list of four.
Duncan Atkinson: Yes.
Mr Beer: Yes?
To the extent that it’s possible to understand what Mr Singh was asking to be done by this email, do you agree that the email, on any view, omitted any instructions or guidance to Mr Jenkins as to his duties as an expert?
Duncan Atkinson: Yes.
Mr Beer: I think it also omitted reference to any specific prosecution, any specific defendant, any specific branch, nor did it refer to any Horizon data that might be analysed in order to reach conclusions?
Duncan Atkinson: Yes.
Mr Beer: The email says that the report, or Mr Jenkins, will need to address the following issues and there are four of them set out. Was this an appropriate means of instructing Mr Jenkins?
Duncan Atkinson: As an email as a whole, it was far from an appropriate way to instruct an expert. It didn’t set out what Mr Jenkins’ responsibilities and duties as an expert were, as we’ve already touched on. It didn’t remind him of his duty of independence, that he owed his duty to the court and not to those who were instructing him.
In terms of the four Bowyer points, as cut and pasted into this, the first one, no difficulty with that, and asking him to give a description of the system in layman’s terms was not an issue. A declaration that it has yet to be attacked successfully, on the one hand, sounds as if it is telling him what he has to say, which, given that he is being instructed as an independent expert, would not be appropriate –
Mr Beer: It is also false.
Duncan Atkinson: – and that never helps – and underlines the viewpoint that he’s meant to be coming from, which had already been set out rather too clearly in the first large paragraph on the page.
A summary of the basic attacks made on the system, and drawing a difference between griping and anything else, again, was telling him what to say and how to approach it.
And the last, point 4, is almost a script for him of what to say.
So what would have been appropriate would have been to identify a series of areas on which they were asking for his opinion, as an independent expert rather than telling him what his opinion was on a series of areas and, effectively, telling him that he was being instructed to defend the system and to assert that it didn’t have issues.
Mr Beer: Are you able to say whether a person in receipt of such an instruction, if they knew of issues or defects that fell outside the four corners of the four issues that are mentioned, ought nonetheless to have set them out in any written document that was a reply to this email?
Duncan Atkinson: Yes, at the very least, you would have expected anyone who was aware of issues with the system to say, “These are the issues with the system that I ought to address in this context”. And so if, by way of example, you were aware of the bug in the system that you had had meetings about in 2010, you ought to have been flagging that up in 2012.
Mr Beer: Even if that wasn’t a bug which constituted a successful attack by a defendant upon the system or a bug that had been mentioned in an expert report served in a past civil or criminal case?
Duncan Atkinson: Well, at the very least, if you’re being asked to put together a report that would go to court and which you would potentially have to answer to, in court, you would be asking for guidance as to what, if anything, you needed to say about X that you were aware of, that was an issue with the system, that was beyond a typing error or griping.
Mr Beer: What would you say to the suggestion that, to the extent that this was an instruction to a witness, it was to produce a report that addressed and only addressed the four specific questions as narrowly formulated by Mr Bowyer?
Duncan Atkinson: I think I would say to that that, if you were putting your name to a declaration of truth in relation to this, at the very least, you would be questioning whether a statement that just answered those four points and said nothing else, when you knew there was more, was incomplete or perhaps misleading.
Mr Beer: Would you agree that, in any event, the four specific questions do not ask Mr Jenkins to provide a general overview of software issues?
Duncan Atkinson: They’re asking him to provide a generic statement about the system. Certainly, my reading of it, I wouldn’t see that as excluding software issues but, if it was unclear, then one could ask.
Mr Beer: What about hardware issues: same answer?
Duncan Atkinson: Same answer.
Mr Beer: What would you say to the suggestion that the focus of this email requires Mr Jenkins himself to focus on defence-led challenges, in the course of previous litigation, and nothing else?
Duncan Atkinson: Well, the – he was clearly being asked to deal with defence-led issues in relation to question 3, but these was also being asked more generally to provided support for the Post Office view that the system was robust. That’s clear from the paragraph at the top of the page.
He would also, by this point in 2012, have been aware of how wide-ranging defence questioning in relation to the operation of the system could be, because he had been questioned in the case of Ms Misra and that had been wide-ranging questioning.
So, at the very least, he would have had questions in his mind as to what needed – this needed to cover, I would have thought.
Mr Beer: Taking a step back, however, for a person that was not, by training or profession, an expert witness, would you agree that, as a letter or document of instruction, this was woefully inadequate?
Duncan Atkinson: Yes.
Mr Beer: Mr Jenkins duly produced a draft report responding to the four Bowyer questions, and this was circulated, amongst others, at Cartwright King on 2 October. If we look, please, at POL00096997. If we scroll down, please. Keep scrolling, please. If we just scroll up to get the date. Harry Bowyer to Martin Smith and Andy Cash, so internal to Cartwright King at the moment:
“At first sight this/these look like a good base upon which are reports can be based (as most are fishing expeditions they will do in their current form).
“I have edited the last report … because as it currently stands it is an invitation for requests for further disclosure … Can you put this past Mr Jenkins.
“Can you draft generic Section 9 statements for the witness to produce the report(s). This must set out his expertise to comment on the system both the old and new – we have to establish his right to speak an expert.
“I am in favour of the descriptive words being added to the diagram …
“Beyond that keep it simple – the secret here will be to respond to the defence expert report rather than try to anticipate every rock to be thrown at us – unless they be obvious from the defence statement/interviews.
“If there is a specific challenge in a case then the statement and the report can be tweaked to cover the eventuality.
“My view is that most challenges to the Horizon system should now vanish away before trial.”
This seems to involve a discussion amongst the Cartwright King lawyers that defence cases that had raised Horizon issues were fishing expeditions?
Duncan Atkinson: Yes.
Mr Beer: It appears to proceed on the basis that the only point that needed to be established still further was Mr Jenkins’ qualification to give an expert report?
Duncan Atkinson: Yes.
Mr Beer: It doesn’t ensure or suggest “We now need to ensure that Mr Jenkins was properly instructed as an expert”?
Duncan Atkinson: No, and doesn’t refer to the need for him to provide a declaration of the kind envisaged by the rules in relation to his duties as an expert, either.
Mr Beer: Can we look, please, at POL00096999. If we scroll down, please, and still further. Mr Jenkins:
“Dear Jarnail,
“Attached are the two existing reports I mentioned regarding Horizon and Horizon Online integrity.”
They’re a separate issue. Then further up, Mr Singh:
“Thank you for forwarding your report. As in previous cases you kindly assisted in your report needs to be put in a statement format, perhaps you could look at your previous statement and let me have your qualifications, credentials, experiences, knowledge, expertise of the Horizon system. On receipt I will forward draft statement for your approval.”
So a request to put this in statement format?
Duncan Atkinson: Yes.
Mr Beer: Can we look, please, at POL00097008. Then scroll down, please, foot of the page, keep going, please. If we just scroll up to catch the date, please, 4 October. Mr Jenkins to Mr Singh.
“Sorry for the delay. I’ve been in meetings …
“I’ve made some changes … to tidy up formatting and add in some text below the diagrams – mainly pasted from the Referenced [Documents].
“In the [document] you sent me you were asking what the 2 [documents] referenced in Section 3 were. They are the 2 brief documents on Horizon integrity and Horizon Online integrity I sent you on Tuesday. I think it is clearer to keep these as separate stand alone [documents] which can presumably be presented as part of the witness statement … You have [also] removed my explicit reference to the Misra witness statement. Presumably this will also be available since that is where the main rebuttal of [Professor] McLachlan’s hypotheses is covered.”
Do you understand this to be Mr Jenkins saying, “Although you’re making out my references in my witness statement to other documents, I presume that those documents are going to be available” –
Duncan Atkinson: Yes.
Mr Beer: – “in the prosecution in court”?
Duncan Atkinson: Yes.
Mr Beer: Then scroll up, please. Martin Smith to Mr Singh:
“… I have deleted the first paragraph of Section 3. If the report is served in its [current] form the Defence will ask for copies of the [documents]. However if Gareth, as an expert, feels that the [documents] should be provided, he will need to give them exhibit numbers …”
Scroll up, Gareth:
“I would prefer to present the [documents] as Exhibits, so can the wording of section 3 be changed accordingly.”
So it appears that Mr Jenkins is saying, “I want the documents that I previously prepared, the two reports, to be revealed” –
Duncan Atkinson: Yes.
Mr Beer: – “and as exhibits to my witness statement”?
Duncan Atkinson: Yes.
Mr Beer: Can we look, please, at FUJ00153812.
“Please find draft statement …”
This the 4th now at 11.43:
“… for you to consider, amend and return …”
Then, lastly, FUJ00123982. The 5th, Ms Jennings:
“Please find attached the Section 9 witness statement. It was not as simple as just cutting and pasting …”
In that final draft of the witness statement that was sent across, the words “I understand that my role is to assist the court” had been added by either the Post Office or Cartwright King. Would you agree that those words, without more, were insufficient to satisfy the requirements arising on an expert report, either at common law or under the Criminal Procedure Rules.
Duncan Atkinson: Yes.
Mr Beer: The statement as served did not include a statement that Mr Jenkins had complied with his duty to the court to provide independent assistance by way of objective and unbiased opinion, in relation to matters within his expertise. Was that cured by the inclusion of the words “I understand that my role is to assist the court”?
Duncan Atkinson: No.
Mr Beer: Can we look, please, at POL00097061, and scroll down, please.
This is a generic email, it seems, that goes out from Sharron Jennings to a series of witnesses in the Patel case, including Mr Jenkins: the case is up for trial at Peterborough Crown Court but has been put back until 14 January and is listed for a seven-day trial.
Then scroll up, please. Mr Jenkins replies:
“Sorry, but 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.”
Further up the page, Ms Jennings replies:
“This is the one that you supplied the expert report and witness statement for the week before last.”
I think that’s a reference to the generic witness statement:
“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.”
Then the rest of it is concerned with Andy, and then scroll up the page, please:
“[Thank you] for the clarification. I had not understood that that related to a specific case …”
I think that’s the generic witness statement:
“… 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 is not covered by my statement, but if I need to be an expert witness, I need to understand what is happening.
“Please note that if I am required to do anything further on this, some commercial arrangements will need to be made to cover my time and costs since I am not covered by the normal Security Service that [the Post Office] pays for. Perhaps you can sort out the details”, et cetera.
Then up the page, please, we can see that Ms Jennings replies to Mr Jenkins amongst a large collection of other people, but most specifically addresses her reply to Post Office Security, the generic email address:
“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 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. I have spoken to Gareth and he is happy to attend but as explained below it is over and above the [Business As Usual] arrangements that we have with Fujitsu so some extra arrangements are required in order to cover extra costs and time …”
Putting aside for the moment the parts of the emails that concern the extent of the BAU arrangements and the provision of extra costs and time, do you agree that this is a concerning exchange of emails involving Mr Jenkins?
Duncan Atkinson: In the sense of his apparently not having understood what he was providing the generic statement for, yes, it is.
Mr Beer: He, would you agree, appears to be under a state of some confusion as to the role that he is performing?
Duncan Atkinson: Yes.
Mr Beer: He says:
“I thought this was a general statement. If I’m going to come back to court for a specific case, I need more background on the specific case and what is being alleged in that case.”
Duncan Atkinson: Yes.
Mr Beer: In your oral evidence to the Inquiry back on 6 October, you stated that the cost of obtaining material was not a relevant consideration in deciding whether to seek material from a third party?
Duncan Atkinson: In general terms, that’s right, yes.
Mr Beer: You identify in various places across your Volume 2 report instances where cost appears to have been a factor in decision making?
Duncan Atkinson: Yes.
Mr Beer: Was this exchange amongst those areas of concern?
Duncan Atkinson: I don’t think I had seen – in fact, I’m looking at how they’re described, I hadn’t seen this exchange and so, no, it wasn’t.
Mr Beer: That can come down. Thank you.
During your oral evidence to the Inquiry, again back on 6 October, you stated that, when making decisions on disclosure, the prosecutor should not restrictively analyse the case of a defendant, not least because the defence might not be able to identify something that they don’t know anything about.
Duncan Atkinson: No, and the Attorney General’s Guidelines, by way of example, make that clear.
Mr Beer: You, I think, have seen a range of correspondence amongst Post Office lawyers and between Post Office lawyers and Investigators, in which the lawyers adopted the view that it was for the defence to identify what the problem was with Horizon?
Duncan Atkinson: Yes.
Mr Beer: Did you form a view as to the appropriateness of that approach?
Duncan Atkinson: Yes, I thought it wasn’t appropriate at all.
Mr Beer: Can we look, please, at POL00059404. If we go down the page, please, and scroll down, please. We get, if we just scroll up a little bit, an email of 16 November 2012, from Rachael Panter, yes?
Duncan Atkinson: Yes.
Mr Beer: If we scroll down, please, she says that:
“… most, if not all cases raising the Horizon system as an issue, have been unable/not willing to particularise what issues they may have with the system, and how that shapes the nature of their defence.”
Duncan Atkinson: Yes.
Mr Beer: That’s similar to the language I think we saw earlier from Mr Bowyer?
Duncan Atkinson: Yes.
Mr Beer: Is that consistent or not consistent with the proper approach of a prosecutor to the issue that you’re presently addressing, namely whether it’s for the defendant to, in these Horizon cases, identify an issue with Horizon before the prosecutor investigates it?
Duncan Atkinson: It’s putting the onus on the defence to identify the specific respect in relation to which the Horizon system was not reliable, rather than recognising the obligation on the prosecution to satisfy itself and then others as to the reliability of the system that underpinned its prosecution.
Mr Beer: If we scroll up, please – thank you. Mr Jenkins says:
“Can’t you use the report I have already sent you? There is no mention of the case [that’s Khayyam Ishaq] on the report.
“You should really be addressed such requests through Post Office Limited rather than directly to myself.
“… there is no commercial cover in place for me to spend … time on such activities …”
Then up, please. James Davidson, a delivery executive at Fujitsu, says:
“I am concerned at the engagement approach being taken here, we are fully on board to support but all approaches must come through Post Office by the correct change process.”
Then up, keep going, please, then a reply to both James Davidson and Gareth Jenkins:
“Apologies if I have approached this in an unconventional way.”
Second paragraph:
“In response to your email Gareth, I do intend to use the report that you have already provided.”
Then this:
“It doesn’t matter that you have not mentioned a specific case in your report, as there has not been any specific criticisms raised by any of the defendants provided in my list of cases. It would be a different scenario if there had been specific criticisms made, as your report would have to respond to that particular issue.”
Does that approach evidence the advice that you were managing a moment ago?
Duncan Atkinson: Yes, because in any one case a postmaster, while being interviewed, may have identified that they were experiencing problems. They may even have said something about the circumstances in which they were identifying those problems or the period during which they were experiencing those problems and there was then a responsibility on the investigation and the prosecution to test that to see if there was something that explains how that might have been, either to rebut it, or to identify material that was capable of supporting it. That is a specific exercise for a specific case, based on specific facts and based more particularly on specific data.
It is not something that doesn’t matter because the subpostmaster wasn’t able to give technical chapter and verse as to exactly what had gone on.
Mr Beer: Would you consider this to be a further example of the Post Office restricting its evidence and its disclosure obligations by reference to the way in which the defence case was put?
Duncan Atkinson: Yes.
Mr Beer: Thank you. That can come down.
Duncan Atkinson: It was not identifying a reasonable line of inquiry and it was not grappling with their disclosure obligations.
Mr Beer: Thank you. Can we turn to topic 6, please, which is a wider issue of third-party disclosure. It’s paragraph 666 of your second report, which is on page 238. You say:
“… there was no real discussion that I have seen, beyond this discussion as to cost …”
This discussion as to cost is referring back to some previous paragraphs, in particular concerning the Seema Misra case, where the cost of obtaining disclosure was a topic of discussion.
Duncan Atkinson: Yes.
Mr Beer: “… there was no real discussion that I have seen, beyond this discussion as to cost, of the relationship between the Post Office and Fujitsu, in relation to the obtaining and disclosure of material held by Fujitsu that was potentially relevant to the Post Office’s prosecutions.”
Are you identifying here that you would have expected to see some written exchanges, some communications, between the prosecutor and this third-party provider of material, about how the third party is going to provide material?
Duncan Atkinson: Two stages. That is the second stage. The first stage is, I would have expected to see discussion between Investigator and prosecutor, as recognising the need to obtain material from the third party, Fujitsu, because it was potentially relevant, either as evidence or as disclosure, as to the reliability of the system that was operated by Fujitsu.
Mr Beer: Did you identify any examples or occasions on which the Post Office made clear to Fujitsu the nature and scope of its, the Post Office’s, disclosure obligations?
Duncan Atkinson: No.
Mr Beer: As to its, the Post Office’s, obligations to obtain material from third parties such as Fujitsu?
Duncan Atkinson: No.
Mr Beer: As to the categories of material that Fujitsu held and which were potentially relevant for at least consideration for disclosure in a prosecution?
Duncan Atkinson: No, and, as part of that, under the Attorney General’s Guidelines, there was a requirement on the prosecutor and investigation to notify a third party that might have material that it might need to seek, to ask it to retain the material, at the very least.
Mr Beer: Well, that’s where I was going next, given that requirement of notification under the AG’s Guidelines, did you see any communications that at least put Fujitsu on notice as to its retention policies, given that the data that it was producing may be needed in a prosecution?
Duncan Atkinson: No.
Mr Beer: Thank you. Can we turn to topic 7, please, disclosure and unused material. Way back in paragraph 17 of your report, which is on page 12, you say:
“In procedural terms” –
Sorry:
“There was, in particular, failures of disclosure in relation to Horizon data. This included the failure to close it underlying material to that relied on, including ARQ data, either at all or to the extent necessary. The attitude that appears to have informed disclosure was the belief that the defence should identify with clear focus what the problems [were].”
I’m sorry I’m reading from 18.
Duncan Atkinson: Yes.
Mr Beer: “That was a flawed approach.”
Then going back to 17:
“In procedural terms, the Disclosure Officer, who was usually also the Investigator, usually did prepare Schedules of Unused Material. These were often inadequate in terms of their content and description, and there is little evidence that they were reviewed, as … required, by the prosecutor. Decisions as to disclosure from the schedules were flawed or overly restrictive. In some cases this position was improved by action from trial counsel.”
The Full Code Test, under the Code for Crown Prosecutors required, is this right, a prosecutor to consider whether reasonable lines of inquiry had been pursued?
Duncan Atkinson: Yes, the Code in that respect evolved over time, and that requirement became clearer with each iteration.
Mr Beer: It required the prosecutor to consider whether any further evidence or material was likely to affect the application of the Full Code Test, whether in favour or against the prosecution?
Duncan Atkinson: Yes.
Mr Beer: The evidential stage – and I think this applied at all times – required a consideration of the defence case and, therefore, necessarily involved consideration of material that might undermine a prosecution?
Duncan Atkinson: Yes.
Mr Beer: Would you agree that, in the light of those requirements of the Code, it’s difficult to see how a prosecutor could apply the Full Code Test, if they haven’t seen a Schedule of Unused Material, at the point at which they’re deciding on charge?
Duncan Atkinson: Ordinarily, you would expect that they would, and the alternative would be for them to be provided with all the unused material, instead of a schedule of it. But they’d have to have one or the other.
Mr Beer: Would you, in that alternative way, agree that that would necessarily involve some rigorous means of ensuring that an appropriate search had been carried out by the Investigator, with appropriate diligence, and that the material which might undermine the prosecution case or assist the defence had itself been provided to the prosecutor?
Duncan Atkinson: You would expect them to check what they were given and, if it didn’t fulfil the requirements that you’ve just set out, then they should be going back to the Investigator requiring it, rather than making a decision without it.
Mr Beer: So the point I’m exploring with you is that, at the point of deciding on charge, advising on charge, and we looked at a run of –
Duncan Atkinson: Yes.
Mr Beer: – advices on charge earlier, at that point, should the prosecutor either have material equivalent to unused material or a Schedule of Unused Material?
Duncan Atkinson: Yes, or should be asking for it if it’s not been provided.
Mr Beer: And shouldn’t advise without it?
Duncan Atkinson: Certainly shouldn’t – yes – advise as to charge without it. No.
Mr Beer: Can we look, please, at POL00052884. This is the charging memorandum in relation to the prosecution of Tahir Mahmood. It’s dated 27 May 2005 and we go to the second page again. Scroll down, and the third page, Juliet McFarlane. If we scroll up, please, paragraph 1 says there’s sufficient evidence, yes?
Duncan Atkinson: Yes.
Mr Beer: But then, if we scroll down, if we see under the numbered paragraphs, two paragraphs on, beginning “You will be aware”?
Duncan Atkinson: Yes.
Mr Beer: “You will be aware of the provisions of the [CPIA] concerning disclosure … paragraph 4.10 of the Security Community Codes of Practice and also paragraph 5(5.1-5.3) of the Codes. Please let me have the necessary information on forms [C, D and E]. The schedules must be signed.”
That refers, amongst other things, to the Schedule of Unused Material, Non-Sensitive, Schedule of Unused Material Sensitive and the Disclosure Officer’s report, those three form references?
Duncan Atkinson: Yes.
Mr Beer: So it appears, in this case, that advice was being given as to sufficiency of evidence before unused material schedules had been provided to the reviewing lawyer?
Duncan Atkinson: Yes.
Mr Beer: We’ve heard evidence from Mr Utting, that was on 17 November this year, at page 104 of the transcript, and from Graham Brander, on 29 November 2023 at pages 25 and 26 and 158 to 160, that unused material schedules were only ever prepared after committal and then only in the event that a not guilty plea was indicated. Is that approach consistent or inconsistent with what the law required?
Duncan Atkinson: It would be –
Mr Beer: I should ask that question in a better way.
Duncan Atkinson: Yes.
Mr Beer: In terms of provision of the Schedules of Unused Material, is it right that the law only required those to be provided to a defendant, post-committal?
Duncan Atkinson: To a defendant, yes.
Mr Beer: In relation to the prosecution approach to whether there was a sufficiency of evidence, was that in accordance with or a departure from good practice?
Duncan Atkinson: Sorry, for them to be provided to the prosecutor?
Mr Beer: Yes.
Duncan Atkinson: Good practice would require that they were provided to the prosecutor, either the schedules or the material that would otherwise be on the schedule before a charging decision was made, rather than after that point in time.
Mr Beer: If we look, for example at the Josephine Hamilton case, I’m going to pick some other examples here, POL00064235. We can see a Disclosure Officer’s report, if we scroll down. I think this should be dated 3 January 2007. Ms Hamilton’s first appearance in the Magistrates Court was 6 December 2006, and so it post-dates it by a month or so.
So acceptable from a service upon defence perspective but not good practice in relation to a prosecutor; is that right?
Duncan Atkinson: That’s right, yes.
Mr Beer: You helped us in your first report about a common law duty of disclosure, which arose prior to the initial duty of first stage disclosure under section 3 of the CPIA. Do you remember a cross-reference to the case of Lee –
Duncan Atkinson: Yes.
Mr Beer: – namely a prosecutor needing to be alive to the need to make advance disclosure of material of which he is aware, which might enable a defendant to make a pre-committal application, including a pre-committal application to dismiss. Was there any evidence in the cases that you saw that that duty was recognised?
Duncan Atkinson: No.
Mr Beer: Was there any evidence in the cases that you saw that any common law pre-committal disclosure was given?
Duncan Atkinson: It wasn’t very clear to me what was provided pre-committal at all, in terms of what was provided at the first appearance, if that was a separate hearing, for example. So, no, I can’t say what was given.
Mr Beer: Is that a cross-reference back to a point you made very early on, that the material was relatively lacking in terms of what was created and served at the point of the initiation of process against the defendant?
Duncan Atkinson: Yes, so there was no material in any of these cases that I saw as to what was provided to the Magistrates Courts when the application was made for a summons or what was provided to the defence pre-the service of a committal bundle.
Mr Beer: In terms of what the schedules, in fact, looked like when they were served, you tell us in paragraph 654 of your report on page 233, you say:
“Such schedules, for example of non-sensitive unused material (equivalent to an MG6C) …”
That’s a cross-reference to the Manual of Guidance series of forms –
Duncan Atkinson: Yes.
Mr Beer: – used by the police service and the Crown Prosecution Service?
Duncan Atkinson: Yes.
Mr Beer: “… were drawn up by the Disclosure Officer who, where named, was also the Investigator. Such schedules were quite short, and mainly included correspondence and documentation relating to the interview process. They lacked any reference to the underlying raw accounts data (to the extent that this was not included in the served evidence) … usually no reference to any previous complaints or discussions by the defendants with managers or helplines. This applied in cases where the defendant complained about the system, or referred to such complaints and discussions as much as where they had not.”
So schedules were short.
Duncan Atkinson: Yes.
Mr Beer: The preponderance of material, is this right, was about the interview process?
Duncan Atkinson: And correspondence at the time of the interview, yes.
Mr Beer: Overall, were the contents of the schedules as you would have expected?
Duncan Atkinson: That which was there, generally speaking, was correctly there but there was an awful lot that wasn’t there that should have been.
Mr Beer: Was it a short distance or a very longer way from what you expected?
Duncan Atkinson: The difficulty in answering that is that it may well have been that things were not listed as material in the prosecution’s possession that were not being relied on in evidence, so unused material that was not being listed because it didn’t exist because they hadn’t followed through the reasonable lines of inquiry that would have led to them having it. So the two really are connected.
So for example, they would not include reference to ARQ data on the unused schedule because they hadn’t asked for the ARQ data, and so they didn’t have the ARQ data, as unused material but, clearly, they should have followed that reasonable line of inquiry, therefore they should have had the data, therefore they should have included it on the unused schedule and therefore the unused schedule was deficient. But it was a continuum of missed opportunity in that respect.
Mr Beer: Thank you.
In terms of review by a prosecuting lawyer, you address this further down the page in your paragraph 656. You say:
“In the main, the unused schedules I have seen did not show on their face any evidence of a review by the prosecutor having occurred. This makes it difficult to be satisfied this important task was undertaken. [You] accept that this may, at least in some cases, have been an omission of annotation rather than of review.”
Are you saying there that this may be a case where reviewing lawyers had reviewed the schedules but hadn’t marked them in a way to show that they had done so, ie counter signing them?
Duncan Atkinson: So it varies. There were some cases, in fairness, where there were annotations on the face of the schedule that showed that the lawyer had reviewed it and come to a view as to disclosure, which is what was required under the CPIA Code, under the Attorney General’s Guidelines. There were other cases where there was evidence that the lawyer had looked at the schedule through other documentation, be it, in the case of Mr Mahmood, there was a memorandum from the lawyer asking the Investigator what was disclosable from the schedule, which was an interesting approach but at least showed that they had registered they had the schedule.
And there were cases where there was an accompanying letter that I saw that was sent to the defence with the schedule that told the defence that there was nothing on the schedule that was disclosable, which I took to be an indication that the lawyer had reviewed it and come to that conclusion.
But in the majority of cases, there was none of that and nothing on the face of the schedule to show, one way or the other, whether they had reviewed it or not. But, clearly, they should have done.
Mr Beer: You say, over the page in paragraph 657, that:
“The stance [that’s the stance in the Josephine Hamilton case that nothing was disclosable] appears to have been adopted in a number of other cases, whether on the schedule itself, or more often accompanying correspondence indicated that everything listed in the schedule was clearly not disclosable (‘CND’).”
You say:
“In my view, such an assessment was often in error …”
Why was that so?
Duncan Atkinson: I identify, when I have a schedule and conclusion in the individual cases, there were instances of material that was within an all-embracing, clearly not disclosable, decision that, seemed to me, on my, I accept, limited reading of the material, clearly was disclosable because it was, on the face of it, material that undermined the prosecution case or assisted the defence case. It included things that now are recognised within the present version of the Attorney General’s Guidelines are standard disclosure, for example interview tapes.
Mr Beer: Did this position change across the relevant period, ie did the 2010 policy change have any effect on the practice adopted of saying everything is not disclosable?
Duncan Atkinson: Not that I could see, no.
Mr Beer: Sir, thank you. I’m about to move to topic 8, cross-disclosure of Horizon issues. I wonder whether that might be an appropriate moment to break for the day?
Sir Wyn Williams: Certainly.
All right, thank you very much for answering all those questions, Mr Atkinson. I will see you in the morning, 10.00 tomorrow?
Mr Beer: Yes, please, sir. Thank you very much.
Sir Wyn Williams: Fine.
Mr Beer: Thank you.
(4.31 pm)
(The hearing adjourned until 10.00 am on the following day)