19 December 2023 – Duncan Atkinson
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(10.08 am)
Mr Beer: Good morning, sir, can you see and hear us?
Sir Wyn Williams: I can, thank you.
Mr Beer: Before we start, two things. I understand the live link for those with log-in details is working, hence we can see and hear you, and other people who have those log-in details will be able to access this live feed, but the YouTube link is not working at the present time.
It’s been your practice in the past, I think, to continue to sit because either the YouTube link will be restored and a recording of now will be available, or people can read the transcript.
Sir Wyn Williams: Yeah.
Mr Beer: Then, secondly, can I say thank you to David Enright, who gave me a lift to the station this morning. As you know, he’s a partner at Howe+Co and represents many subpostmasters here and happens to catch the same train as me and he has enabled us to start nearly on time this morning.
Sir Wyn Williams: Well, I’m very glad to hear that all participants in the Inquiry are cooperating at all levels, Mr Beer.
Mr Beer: Thank you very much, sir.
Duncan Atkinson
RICHARD DUNCAN ATKINSON (continued).
Questioned by Mr Beer (continued)
Mr Beer: Good morning, Mr Atkinson.
Duncan Atkinson: Good morning.
Mr Beer: Can we pick up topic 8, please, which is the topic we were about to move to which is cross-disclosure of Horizon issues.
Can we turn please to page 239 of your second report. I’ll just wait for that to come up on the screen. At paragraph 668, you say:
“As time passed, the number of cases where Horizon issues were being raised proliferated and the need for cross-disclosure between them should have become all too obvious. It is far from obvious that this was carried out, however.”
Then further down the page, at paragraph 670, you conclude that cross-disclosure between cases where Horizon had arisen was not being undertaken and that there is “no evidence of routine cross disclosure where Horizon evidence was relied on”; is that right?
Duncan Atkinson: Yes.
Mr Beer: Back in paragraph 19 of your report, no need to turn it up, you’d noted that you had seen discussions of the need to disclose in one case, in others where similar issues had arisen. Beyond the form of words that we discussed yesterday, was any such cross-disclosure in fact provided in any of the cases that you reviewed?
Duncan Atkinson: Not that I saw. No.
Mr Beer: In your Volume 2A report, if we can just turn that up, please, EXPG0000005, at page 25, at paragraphs 71 and 72, you’re dealing here with the case of Mr Julian Wilson. You say:
“Despite this issue having been raised before and at the time of Mr Wilson’s plea …”
That’s looking at Horizon issues in other cases, being this:
“… and at the time of Mr Wilson’s plea, there is no evidence of cross-disclosure of other cases where complaints about Horizon, even though the reviewing lawyers had personal knowledge of a number”, at least by reference to the cases you’ve considered above.
Then you say:
“The relevance of such cross-case issues was highlighted in Mr Wilson’s case by a letter from his then MP, the Right Honourable Jacqui Smith MP. In her letter to the [Chief Executive Officer] of the Post Office in December 2009, she referred to issues with the operation of Horizon that had arisen in the case of Mr Wilson, and similar issues that had arisen in the cases of Hughie Thomas, Seema Misra and also referring to the Falkirk post office …”
You say:
“It is pertinent to observe that if such cross-case issues were obvious to Mr Wilson’s MP, they should have been all the more obvious to those concerned in the cases who played a role in that of Mr Wilson.
“… there is no evidence that cross-case disclosure was considered.”
So are you there making the point that cross-disclosure was considered to be obvious to a layperson, in that case Mr Wilson’s MP?
Duncan Atkinson: To someone who had knowledge of that – of the fact that such issues had arisen in more than one case, yes.
Mr Beer: Overall, how serious a failure did you regard the absence of cross-disclosure in the Horizon cases that you looked at?
Duncan Atkinson: Well, the case of Mr Wilson highlights it, in my view, but in that case, counsel instructed for the Post Office to prosecute the case, both the person originally instructed when the case was charged and then the person who prosecuted it once it had reached court, both raised the question of whether the kind of issues that Mr Wilson was describing with Horizon had come up before because it’s clear that neither of them were aware that they had, but that they recognised, if they had, that was potentially disclosable.
And so the position appears, therefore, to be that the – those being instructed in these cases recognised that the fact that an issue with Horizon had come up before was potentially disclosable, and yet those who were responsible for the superintendence of disclosure in those cases, the in-house lawyers in the Criminal Law Division, who knew that they had come up before because they were dealing with these cases again and again, had not identified that this was an issue even to be investigated for disclosure beyond the very limited discussions that I saw.
And I consider that to be a serious issue because they should have been considering whether there was disclosure to be made in relation to the operation of Horizon anyway, but for them still not to be addressing it when they knew that these issues were coming up and had come up before, is a serious concern.
Mr Beer: Did you see any evidence of consideration of the issue and a reasoned decision to not give disclosure?
Duncan Atkinson: No, and so, for example – and I spotted an error in my report, for which I must apologise, in paragraph 667 I suggested that the same lawyer had dealt with the cases of David Blakey and Tahir Mahmood at the charge stage. I was wrong about that: it was Mr Singh in the case of Mr Blakey and Ms McFarlane in the case of Mr Mahmood. But each of them then went on to deal, in rapid succession, with a series of further cases.
For example Mr Singh dealt with the cases of Ms Palmer, Mrs Rudkin and Mrs Misra, Ms McFarlane dealt with the cases of Ms Thomas and Ms Hall, each of which raised issues with Horizon, in the same way that the cases of Blakey and Mahmood had raised issues. And yet I didn’t see in their correspondence with the Investigators anywhere them saying “It’s interesting that this person is saying they’d had a problem with Horizon because we had this, didn’t we, last time and should we have a conversation about that?” That would have been a step forward.
Mr Beer: That document can come down, thank you.
Does the point that you made in 667 of your second report remain, that this was a small pool of lawyers?
Duncan Atkinson: Yes.
Mr Beer: What was the point that you were making on the back of it being a small pool of lawyers?
Duncan Atkinson: The fact that it was a small pool of lawyers meant that issues that were coming up in one case would resonate if they had come up before because there was only a few of them dealing with those cases, and so the – in one sense, they didn’t need to be told by anyone that this was something that needed to be looked at because they knew from their earlier experience in cases that it was an issue to be dealt with.
To give a parallel, one of the virtues of the Treasury Counsel system is that, because there is a small team who deal with these difficult cases, where one person has an issue in a case, someone else will have dealt with that issue before and that – and where there’s an issue that does arise in one case, they can alert the others to watch out for it in other cases.
This was a small team in much the same way and the need for inevitability, perhaps, of sharing of experiences ought to have alerted them to the fact that this was a problem that went beyond one case.
Mr Beer: Thank you. Can we move to topic 9, which is the acceptance of pleas and, to start with, look at something that you say in relation to Mr Singh, and it’s a point that arises in a number of cases. The point is whether the acceptance of a plea to false accounting is a concession or arguably a concession of the absence of sufficient evidence to theft. You address this on page 127 of your report. It’s paragraphs 351 and 352. At the end of 351, you say that:
“Mr Singh observed that ‘if Mrs Misra pleaded guilty to the false accounting [charges] then it is recommended that the prosecution in respect of theft is not proceeded with’.”
Then 352:
“This was arguably a concession to the absence of actual evidence of theft and consistent with an approach whereby theft was charged to encourage pleas to false accounting.”
Now, I think on the last occasion you confirmed that the judgment of the Court of Appeal in Eden made it clear that it could be appropriate to charge both theft and false accounting where they are either put as alternatives to each other or where they are both advanced to cover different forms or species of criminality?
Duncan Atkinson: Yes.
Mr Beer: Would you agree that that means that the mere fact that theft and false accounting are charged in the same indictment is not, of itself, improper, so long as there’s sufficient evidence and a public interest to charge both of the counts –
Duncan Atkinson: Yes.
Mr Beer: – and the two charges are either put as alternatives to each other or are referring to or addressing different species of criminality?
Duncan Atkinson: Yes.
Mr Beer: You have also, I think, given evidence on the last occasion that evidential sufficiency and public interest must be kept under review throughout the life of a case?
Duncan Atkinson: Yes.
Mr Beer: Does it follow from that that a change in circumstances may affect whether continuing a prosecution is in the public interest?
Duncan Atkinson: Very much so.
Mr Beer: In a prosecution pursued by the CPS, for example, if a defendant was willing to plead guilty to one count but not another, would the CPS have to consider whether it remains in the public interest to go to trial on the outstanding count?
Duncan Atkinson: Yes.
Mr Beer: I think the – at least the 2010 edition of the Code, dealing with pleas and the acceptance of pleas includes, amongst the factors to be considered, the following: whether the court will have sufficient sentencing powers to match the seriousness of the offending behaviour –
Duncan Atkinson: Yes.
Mr Beer: – and the wishes and interests of the victim?
Duncan Atkinson: Yes.
Mr Beer: In a private prosecution, where there isn’t an obligation to prosecute, even if the evidential and public interest tests are satisfied, is a prosecutor entitled to consider whether, in the light of a plea or a proposed plea, pursuit of the remaining count or counts on the indictment is a proportionate use of the private prosecutor’s resources?
Duncan Atkinson: Yes.
Mr Beer: Given those things, why is it that you consider that Mr Singh’s observation must necessarily – in fact, I don’t think you say “necessarily”, you say “arguably” – arguably amounts to a concession that there was insufficient evidence of theft?
Duncan Atkinson: Yes, and I don’t say necessarily that was – does reflect Mr Singh’s position but, taking it as a starting point, Mr Singh had reached a charging decision without setting out in any way the evidential basis for his conclusions, which means it is not clear to me where there was, on the face of it, no evidence of financial benefit to Mrs Misra, that he had concluded that there was a realistic prospect of a conviction for theft of £74,609.84 when there was no evidence that Mrs Misra had received £74,609.84.
So he had charged that, and false accounting, with no reference to the case of Eden, no reference to why both charges were there, how one was an alternative to the other or how one reflected different criminality to the other, but had then said that he considered there was a realistic prospect of a conviction for theft but, if she pleaded guilty to false accounting, then that would be sufficient.
And where there was no explanation as to how he had reached a conclusion as to theft and where on the face of the investigation report there was a limit to the evidence that there had been theft, it struck me in those circumstances that it was arguable, rather than necessarily the case, that there was a recognition in his mind that the case for theft was not strong and therefore false accounting was sufficient and, if that was his mindset, given the lack of evidence, I queried why he was charging theft in the first place.
Mr Beer: Thank you very much. So it might be that, even if there was sufficient evidence of theft, and there was a public interest in prosecuting theft, it may not have been in the public interest or the Post Office’s private interests to proceed to trial with the theft account, if there was a plea to false accounting, but you saw no reasoning to that effect –
Duncan Atkinson: Yes.
Mr Beer: – on the face of the papers?
Duncan Atkinson: Yes, and I’ll be corrected if I’m wrong but I think Mrs Misra did then plead to false accounting and was still prosecuted for theft.
Mr Beer: Yes. That’s exactly right.
Duncan Atkinson: And I saw no analysis to explain that either.
Mr Beer: Thank you. That can come down.
Can we turn to considerations of confiscation. I think it’s right that the 2010 iteration of the Code did not state that the availability of the court’s powers to make confiscation orders was a consideration that had to be taken into account as part of the public interest test. I think that came in a later edition of the Code. That notwithstanding, would it have been a proper consideration for a prosecutor when considering whether to accept a guilty plea to some counts but not others, or to a lesser or a different offence, to consider the impact on the court’s confiscation powers?
Duncan Atkinson: It would be reasonable to consider that, yes.
Mr Beer: So, in Mrs Misra’s case, when the Post Office was considering whether to accept a plea to false accounting or whether to proceed with the theft count, would the impact on confiscation have been a legitimate factor for the Post Office to consider as part of the balancing exercise?
Duncan Atkinson: In the sense that, if the theft count reflected the actual benefit to Mrs Misra of the money and an appropriation by her of the money, which could lead then to confiscation, if she were convicted of taking the money, through a conviction for theft, on the one hand, and false accounting reflecting putting off the “evil day”, to use the words in Eden, to avoid identification that there were errors that had not involved her taking money on the other through false accounting, the latter route arguably not leading to confiscation.
Mr Beer: Was there any evidence that that was the kind of reasoning, that we’ve just explored, ever brought into account in Mrs Misra’s case?
Duncan Atkinson: No.
Mr Beer: Can we look more generally about the issue of accepting pleas to false accounting instead of theft, and you address this on page 227 of your report. If that can be shown, please. 227, at paragraph 640. In 640 you say:
“The approach to charging as between theft on the one hand and factoring on the other lacked consistency … In a number of cases there was also a lack of [consistency] in the charging decision exhibited by the willingness to accept a plea to false accounting instead [of theft].”
Are those comments limited to the particular facts of one or more of the cases that you examined or are they a general point?
Duncan Atkinson: I think more of a general point.
Mr Beer: Can you help us then: why would a willingness to accept a plea to false accounting necessarily imply a lack of confidence in the evidential merits of the theft charge?
Duncan Atkinson: Again, it doesn’t necessarily reflect one but where, in case after case after case, a charge of theft was selected without any explanation as to the evidential basis for it, particularly in relation to an evidential basis for appropriation and/or dishonesty. And then there was a willingness to accept a plea to false accounting which carried with it a recognition that there was not sufficient evidence of those elements of theft. It did raise the question as to whether theft was being charged without sufficient consideration of those elements.
And also because the charging decisions were such models of brevity, it was very difficult to see how the thought process had been gone through as to why theft was there as well as false accounting, in these cases.
Mr Beer: Thank you. Can we turn to page 229, please and paragraph 644. You say:
“However, the greater concern in a number of the cases [that] I have considered was that evidence that the theft charge was used as a means to pressure a defendant into pleading guilty to false accounting, with conditions attached to the acceptance of that plea …”
I think you give three examples: Hughie Thomas, between paragraphs 645 and 647; Josephine Hamilton, 648; and then Alison Hall, 649 to 651.
Duncan Atkinson: Yes.
Mr Beer: Three examples.
Duncan Atkinson: Yes, and one – if one wanted a fourth, Mrs Henderson would be in the same category.
Mr Beer: Allison Henderson too, thank you. If we can just look at those, the three you’ve given in the report, starting with Hughie Thomas, Noel Thomas. If we look at what you say at paragraph 645 onwards, he pleaded guilty to false accounting in September 2006, the theft charge not pursued.
The memorandum of the hearing noted:
“This was pursuant to a basis of plea which makes it clear that no blame was attributed to the Horizon … system. The defendant accepted that there was a shortage but he could not explain how it came about. He accepted that as a subpostmaster he is contractually obliged to make good the shortage.”
You say:
“In other words, the acceptance of this plea was made conditional on the repayment of monies which, consistent with the plea, had not been shown to have been taken, and to an undertaking not to criticise the Horizon system.”
This appears, from the material you’d seen, to have:
“… followed from a discussion between the principal Post Office lawyer, [Juliet] McFarlane and the Post Office agents in the prosecution in which [Juliet McFarlane] said, ‘… we would proceed with false accounting providing the Defendant accepts that the Horizon system was working perfectly … Further instructions are that the money should be repaid’.”
You say that:
“Mr Thomas … reported to the Second Sight Review that the approach taken was ‘aggressive and inappropriate’.”
You say that, from the perspective of a defendant, it should not be forgotten that there is a very significant difference between theft and false accounting as outcome:
“Theft by an employee in breach of trust, in the period with which the Inquiry is concerned, was recognised …”
You cite two cases, Barrick and Clark, from the 1980s, establishing that:
“… as an offence usually attracting an immediate custodial sentence even in a case with strong personal mitigation … a defendant, confronted by the evidence of loss deriving from the Horizon system and a lack of possible questions as to its reliability, would understand that a plea to an alternative offence would increase the chances of them retaining their liberty, and it is reasonable to anticipate that they would receive legal advice to that effect.”
Does that include, for example, an anticipation or at least a hope of a suspended sentence?
Duncan Atkinson: Yes.
Mr Beer: At 647:
“The Post Office submitted in the context of the Second Sight Review … that the decision to accept the plea was reached in accordance with the Code … However, as was acknowledged, there is no evidence of such a review … which in the first instance did not follow the Code test. Rather than a review of the evidence, the prospects of conviction or the public interest, the only matters raised in the material that [you] have seen … are the recovery of money and the protection of the reputation of the Horizon system.”
On a scale of concern about the conduct of prosecutions, where does what you identified there sit?
Duncan Atkinson: I recognise that it is always open to the prosecution to consider whether, on a review of the evidence and a review of the public interest, in fact a plea to an alternative count meets the justice of the case. I also recognise that it is always open to the prosecution to consider a proffered basis of plea and identify whether that basis of plea is acceptable and, if it is not acceptable, to make that clear to those acting on behalf of a defendant.
What concerned me here was that the discussions that I saw in the communication involving Mrs McFarlane were investigating internally their view as to whether a plea to false accounting would be acceptable in a case where she had identified, at the charging stage, there was a medium prospect of success and identifying, in that context, the concerns being recovery of the money and no criticism of Horizon.
It’s – putting those factors together, it seemed to me a reasonable reading of what occurred was that those involved from the Post Office side were identifying their conditions for a plea being accepted, which were conditions of the recovery of money, where there was no acceptance by the plea that money had been taken, and a lack of any criticism of the system, which was something that Mr Thomas had identified from interview on as being a concern on his part and would have been mitigation for him.
And so that’s a very long way of answering your question, though I think it’s a very real concern that, on the face of those facts, this was a plea that was being tailored to address concerns that the Post Office had, in terms of getting the money and protecting their reputation of their computer system, rather than an assessment of the factors in the Code by reference to evidential sufficiency or the public interest.
Mr Beer: Thank you. Cutting it shortly, do the same issues arise in paragraph 648, concerning the case of Josephine Hamilton, and 649 and following, in the case of Alison Hall?
Duncan Atkinson: Yes.
Mr Beer: Thank you.
Duncan Atkinson: I should just add, in relation to that, those cases, those of Mrs Hamilton and Mrs Hall, were considered by the Court of Appeal and the Court of Appeal took a very clear view of what they considered had occurred there, and the material that I saw did not, in any way, lead me to take a different view from Lord Justice Holroyde and others.
Mr Beer: That’s paragraph 650 of your report, you’re referring to there –
Duncan Atkinson: Yes.
Mr Beer: – if we can turn to that on page 231. If we scroll down – thank you – you say:
“Adopting the language …”
That’s you adopting the language of the Court of Appeal?
Duncan Atkinson: Yes.
Mr Beer: “… when it considered these cases, it was ‘improper’ of the Post Office to have made their acceptance of a plea to a lesser alternative offence to theft conditional on the defendant not ‘making any explicit criticism of Horizon’.”
You say that it was improper of the Post Office but who within the Post Office had engaged in that improper conduct?
Duncan Atkinson: Well, in each of those cases there were documents that I saw that involved discussions between those in-house – so the lawyers and Investigators – about, effectively again, the preconditions or the necessary conditions for there to be a plea accepted by reference to money and by reference to the reputation of Horizon.
Mr Beer: Thank you. So it’s the lawyers on each occasion?
Duncan Atkinson: Those are the persons whose emails I saw or memos I saw that identified those being the factors.
Mr Beer: Thank you. Then the last sentence of that paragraph, I think this is something that you’ve mentioned a moment ago:
“It would … have been a relevant, and likely a strong mitigating factor … that the falsification of records was to cover a shortfall for which the defendant was not responsible and may [instead] have been a computer error. To deny the defendant that mitigation was ‘wrong’.”
Can you just say what you mean there, please?
Duncan Atkinson: It’s, on the one hand, someone who has dishonestly and deliberately manipulated the system and, on the other hand, someone who has been confronted by an error in the system that they cannot understand but which they do understand they will be held accountable for and made to pay for and, in panic, has adjusted the system to stave off the day when they know that will be found out, on the other.
It is a significant potential difference as to how a judge will view their offending if they are – if it is a one-off result of panic through something beyond their control. A judge is much more likely to view that sympathetically and much more likely to consider that a custodial sentence is not required and, if they are prevented from advancing that mitigation, then they are being prevented from putting forwarded a strong argument for them not going to prison.
Mr Beer: Thank you. Lastly, over the page at paragraph 651, the Court of Appeal, in Hamilton – it’s their paragraphs 113 and 147 – said that it was ‘irrational and unjust’ for the Post Office to have required that they ‘had the money short of theft’ and the Court of Appeal observed that:
“[The Post Office’s] conduct gives a firm impression that the condition of repayment in return for [the Post Office] dropping the charge of theft placed undue pressure on Mrs Hamilton. It gives the impression that [the Post Office] was using the prosecution to enforce repayment.”
Did you find any material that undermined the impression that the Court of Appeal formed?
Duncan Atkinson: No, and the words that her plea would be accepted on her recognition that she had the money short of theft were words from the lawyer in the Criminal Law Department at the Post Office and, again – and that was a discussion in advance of Mrs Hamilton pleading to false accounting.
And so, on the one hand, you have an acceptance of a plea to adjusting records that revealed a loss, rather than causing the loss, in the sense of taking the money, through the acceptance of false accounting, rather than theft, and yet it being a condition of that that the individual in the criminal proceedings be made liable for paying back money that you are accepting they have not taken.
There may be a separate, civil discussion as to whether, under the postmaster’s contract they were required to make good a loss that they had not caused but this is in the criminal proceedings, making it a condition or pursuing criminal mechanisms in order to get money that you are accepting they have not taken.
Mr Beer: Thank you. Can we turn to topic 10 – that can come down, thank you. The last topic is expert evidence.
Can we start by way of a recap of your previous evidence to the Inquiry. You said that a prosecutor intending to rely on expert evidence in criminal proceedings was, during the relevant period, subject to the following obligations – and this is just by way of brief recap to the questions I am going to ask – to satisfy themselves that the expert had been appropriately instructed, including by the provision of a detailed letter of instructions or email or terms of reference to provide the expert with instructions upon what it is that his or her opinion is sought, setting out the issues or questions that the expert is expected to address or to answer; to provide explicit guidance as to what it is the expert is being asked to do and the material they are being asked to consider in order to do it; to set out the material upon which reliance has been placed in the prosecution and which may be relevant to the questions that the expert is expected to answer; to inform the expert of their duties under the common law and the Criminal Procedure Rules; to make sure that the expert not only understands their duties, but that they had complied with the duties in order to ensure that the expert’s evidence was admissible; and, lastly, to satisfy themselves that any material or any literature of which the prosecutor was aware, and which might undermine the expert’s opinion, was reviewed by the prosecution and disclosed to both the expert and to the defence.
Duncan Atkinson: Yes. Those – the duties on the expert were well established before the Inquiry’s period started, the responsibility of the person instructing an expert, the lawyers instructing an expert, to communicate those duties to the expert to make sure the expert understood them evolved over the period of the Inquiry but, from quite early in the period, it was again clear that that was what was required of them.
Mr Beer: Yes. In the five case studies in which the Post Office obtained evidence from Mr Gareth Jenkins – that’s Thomas, Misra, Allen, Sefton and Nield and Ishaq –
Duncan Atkinson: Yes.
Mr Beer: – forgive the use of the surnames – did you identify any document or evidence that demonstrates that Post Office prosecutors or, later, those acting on their behalf from Cartwright King, informed or instructed Mr Jenkins about the duties of an expert?
Duncan Atkinson: No.
Mr Beer: Did you see any evidence that such prosecutors were themselves cognisant of the existence of any of these duties?
Duncan Atkinson: No.
Mr Beer: Did you see any evidence that they complied with any of these obligations in their dealings with Mr Jenkins?
Duncan Atkinson: No.
Mr Beer: Did you see any instructions to Mr Jenkins which might conform in any way with a written form of instruction that a prosecutor ought to provide to a person whom it is proposed to give expert witness evidence?
Duncan Atkinson: No.
Mr Beer: In relation to the evidence that Mr Jenkins himself gave, you told us previously about a case in 2006, and then the Criminal Procedure Rules Rule 33, which came into force in November 2006, that there were a number of necessary inclusions in a report?
Duncan Atkinson: Yes.
Mr Beer: We’ve looked just now at duties on a prosecutor; we’re now turning to duties on an expert themselves. Did they include – I’m going to summarise them all – detail of the expert’s academic and professional qualifications, experience and accreditation insofar as they are relevant to the opinions expressed?
Duncan Atkinson: Yes.
Mr Beer: A statement setting out the substance of all the instructions received, the questions upon which an opinion is sought, the materials that have been provided and considered, assumptions which are material to the opinions expressed?
Information relating to who carried out any examinations or the methodology used and, if they weren’t carried out by the expert themselves, the extent to which there was supervision?
Whether there was a range of opinion in the matters dealt with in the report, a summary of that range of opinion and reasons for the opinion given?
Relevant extracts of any literature or other material that might assist the court?
Then, finally, a statement from the expert that they had understood and complied with their duty to the court to provide independent assistance by way of an objective and unbiased opinion.
Duncan Atkinson: Yes.
Mr Beer: Were they the necessary inclusions in the report itself?
Duncan Atkinson: Yes.
Mr Beer: In the five case studies that you have considered, did you find that the witness statements served by Mr Jenkins set out any of those matters that I’ve mentioned, that are necessary inclusions for an expert report or an expert statement?
Duncan Atkinson: In most of his statements he did set out his qualifications, in some instances, or at least in one instance, those who were receiving the statement from him, the lawyers at the Post Office, did ask him to do that. To an extent, he set out the questions that he’d been asked, in that he would identify what he was making the statement about, but he would not set out the details of what had been asked of him.
He did not, I think, usually set out what materials he had been provided with or what sources of information he was relying upon. Insofar as that was the work of others beyond himself, that was not identified by him. Insofar as there was a range of opinions and/or contrary views or material that was capable of undermining his opinions, that was not set out at all.
In terms of literature, which would include expert reports that he had seen in earlier cases in relation to Horizon and which would include his own expert reports in earlier proceedings, those were not normally set out and there was never a statement identifying that he recognised the duties that were imposed upon him.
Mr Beer: Thank you. Did you see any evidence that the Post Office informed Mr Jenkins that the printed statements should contain those necessary matters?
Duncan Atkinson: No.
Mr Beer: Did you see any evidence that the Post Office and, later, lawyers at Cartwright King, were aware that an expert report or an expert statement should contain those necessary inclusions?
Duncan Atkinson: I never saw any material that I can think of that involved the discussion of that to tell me whether they appreciated that or not. They certainly didn’t say they did.
Mr Beer: When you gave evidence on the last occasion, you told us that, even with those experts who were trained, accustomed and made their living, or at least in part made their living, from giving expert evidence, ie even if you were preaching to the choir, a prosecutor had to make sure that the expert understood what their duties and obligations were; is that right?
Duncan Atkinson: Yes.
Mr Beer: You emphasised that, in relation to an expert who was not functionally independent of the prosecutor, that it was all the more important that they understood the nature of the role that an expert performs and that they properly understood what the requirement of independence actually entailed?
Duncan Atkinson: Yes, and not least because the expert would need to demonstrate that independence and so they needed to be reminded to set out the basis upon which it was so demonstrated.
Mr Beer: Was Mr Jenkins one of those witnesses in respect of whom there was that heightened duty to ensure that they understood the nature of their expert duties and, in particular, what the requirement of independence entailed?
Duncan Atkinson: Yes.
Mr Beer: Was that because he was not a professional expert witness?
Duncan Atkinson: It was – yes, it was because he was giving evidence of something outwith the knowledge of the jury, because it was something about which he had knowledge because he worked with the people whose software it was.
Mr Beer: So his day-to-day work was as a software engineer or a computer engineer, rather than a professional witness?
Duncan Atkinson: Yes.
Mr Beer: He wasn’t, I think you know, a member of any expert witness institute or similar?
Duncan Atkinson: I certainly don’t recall him listing any such membership.
Mr Beer: Would you agree that the heightened duty applied in particular because he was not independent of the subject matter of his evidence –
Duncan Atkinson: Absolutely.
Mr Beer: – he was, in part, speaking about his own work?
Duncan Atkinson: Yes. His own work and the work of his employer.
Mr Beer: He wasn’t, would you agree, functionally independent of the prosecutor?
Duncan Atkinson: No, because of the interrelation between the product that he was talking about and the application of that product by the prosecutor.
Mr Beer: Have you seen anything in the material to suggest that the Post Office or, later, Cartwright King lawyers understood the heightened need to ensure that Mr Jenkins understood his duties as an expert, in particular the especial need for independence and demonstrating independence?
Duncan Atkinson: They understood the – how it might look, in the sense that in the conversations that we looked at in emails leading up to the generic statement in 2012, there was discussion about whether it was – it might be better to have someone independent of Fujitsu, rather than working for Fujitsu, delivering that statement. That was as far as it went.
Mr Beer: So recognising the lack of independence but then not taking the next step: what do we do to address it?
Duncan Atkinson: Yes.
Mr Beer: Before we look at any of the communications lawyers had with Mr Jenkins, did you observe that some of them – and this is communications between lawyers and Investigators, on the one hand, and Mr Jenkins, on the other – were inconsistent with how a prosecutor ought to address and to communicate with an expert?
Duncan Atkinson: Yes, I should say that I have seen a lot more in terms of communications between those at the Post Office, on the one hand, and Mr Jenkins, on the other, within the last week than I had before.
Mr Beer: Yes.
Duncan Atkinson: That which I had seen before was a cause for concern. That which I have seen since heightened those concerns considerably.
Mr Beer: Can I summarise them: did you find that there was a lack of formality in the communications?
Duncan Atkinson: Yes.
Mr Beer: Did you find the guidance given to him to be adequate or inadequate?
Duncan Atkinson: Inadequate.
Mr Beer: Did you find some of the language used to be appropriate or inappropriate?
Duncan Atkinson: Inappropriate.
Mr Beer: Did you find that, whether any of the instructions given had, as their intent, the service of the Post Office’s interests, rather than the provision of an independent opinion?
Duncan Atkinson: Yes.
Mr Beer: As well as some of the communications being inconsistent with the way a prosecutor ought to approach an expert, did you find any of them to be the opposite of that, ie the antithesis to it?
Duncan Atkinson: Yes.
Mr Beer: If it’s right that the Post Office or its agents, Cartwright King, later, did not provide Mr Jenkins with written instructions that conform to the requirements that we’ve mentioned, didn’t provide Mr Jenkins with instructions as to his duties as an expert and none of the statements included the necessary elements that we’ve identified, would you be able to draw an overall conclusion that there was a fundamental failure by the Post Office properly to instruct Mr Jenkins as an expert?
Duncan Atkinson: Clearly, that’s ultimately a conclusion for others than me but, certainly, it is not a conclusion from which I would dissent at all.
Mr Beer: With the limitation you’ve just included, was that a persistent failure?
Duncan Atkinson: Yes.
Mr Beer: You told us back in your first report – it was paragraph 67, no need to turn it up – that there was “no prosecution document that I have seen that gave guidance as to what an expert being instructed needed to address”.
Duncan Atkinson: No, Post Office document.
Mr Beer: Yes, no Post Office document.
Duncan Atkinson: Yes.
Mr Beer: Was that absence of a framework within prosecution policy reflected in the Post Office’s practice, as you saw it, in the case of Mr Jenkins?
Duncan Atkinson: Yes.
Mr Beer: The things we’ve spoken about, so far, were failures of omission, things that the Post Office didn’t do or its lawyers did not do. Did you identify any material in the five case studies, that prosecutors and Investigators communicated with Mr Jenkins, that were inconsistent with the approach that a prosecutor ought to take: so worse than mere failure?
Duncan Atkinson: Some of the emails that we considered yesterday, where, on the face of them, they were telling the expert what to say and telling him what not to say, that, I think, goes beyond an omission.
In material that I’ve seen, again, since the end of last week, there are examples of Mr Jenkins’ statements being rewritten by Investigators and lawyers at the Post Office, in the sense of them saying, “Can you take that bit out, please?” or “That bit doesn’t sound good; can you say something else?”
This is in relation to the evidence of an independent expert, that is the role that Mr Jenkins was being advanced to perform and, whilst it is entirely right and proper for an Investigator or a prosecutor dealing with an expert to say, “I don’t understand that paragraph, can you elucidate it?” or “Can you think about this section in the light of this or that that you haven’t seen, or this or that that you say further down”, that is different from saying, “That bit is going to give rise to disclosure issues” or “That bit is going to cause us problems, can you take it out”, or just deleting it, in the way they did, from the drafts.
Mr Beer: Yes, sometimes they wrote “Can you do X”, “Can you delete”, “Can you add”, “Can you rephrase”, and sometimes they simply cut it out?
Duncan Atkinson: Yes.
Mr Beer: The issues that you identified where the evidence was amended, deleted or tailored in that way, did they go to Horizon integrity issues?
Duncan Atkinson: Absolutely.
Mr Beer: How serious, in your view, was this conduct?
Duncan Atkinson: Extremely.
Mr Beer: Did any of the issues that we’ve identified so far go to the admissibility of Mr Jenkins’ evidence?
Duncan Atkinson: They – by, for example, removing aspects of his statements, which were parts that qualified his opinion or identified contrary views to his opinion, they resulted in those – the final versions of the statements, no longer complying with the requirements for an admissible expert statement. And they also, in various respects, removed the independence of its contents and so, yes, it clearly affected its admissibility, had any of that been appreciated by anyone who that the opportunity to question its admissibility.
Mr Beer: In order to put that person in a position to do so, disclosure of the communications would have been necessary?
Duncan Atkinson: Yes.
Mr Beer: Did you see any evidence at all that such communications between Investigator and lawyer, on the one hand, and Mr Jenkins, on the other, were disclosed in any of the five cases?
Duncan Atkinson: No.
Mr Beer: Did you see any evidence of any formal request from the Post Office to Fujitsu for third-party disclosure about the matters that Mr Jenkins was referring to? So, to take an example, the locking issue, which caused transactions to be lost, or the record of system errors, the Known Error Log: did you see any communications at that level?
Duncan Atkinson: No.
Mr Beer: Did you see anything to suggest that the Post Office pursued such issues with the Fujitsu Head of Legal, despite, on occasions, that channel of communication being used?
Duncan Atkinson: I can’t think of any, no.
Mr Beer: Thank you. Can I turn, then – that’s the ten topics over – to the case studies.
Your reports address 22 case studies and your evidence speaks for itself. It’s been disclosed to all Core Participants and is available on the Inquiry’s website. I’m not going to go through each of the 22 case studies and, instead, only cover those where one of the Core Participants has asked me to ask questions of you by way of challenge to what you say –
Duncan Atkinson: Yes.
Mr Beer: – or where one of the Core Participants has asked for additional context to be given to what you do say in either of your reports.
Can I start, then, with Lisa Brennan. This is paragraph 46 of your Volume 2 report, which is on page 24. There is no need to turn it up for the moment.
In general terms, you there are critical of the failure to conduct a fuller financial investigation as to any financial benefit to Ms Brennan of the conduct that was alleged against her, yes?
Duncan Atkinson: Yes.
Mr Beer: As you said yesterday, investigating a suspect’s financial records was a reasonable line of inquiry?
Duncan Atkinson: Yes.
Mr Beer: During the period 2000 to 2013 would ordinary theft and fraud cases be prosecuted in the public sector, eg by the police and the CPS, without any enquiry of this sort having taken place?
Duncan Atkinson: I’m sure there well have been some but, certainly, my experience is that “follow the money” is a mantra for those dealing with any form of financial crime and so they would normally look because, if they found evidence of the money, for example, going into someone’s bank account, that would be quite good evidence.
Mr Beer: Yes, so you’d want to do it as a prosecutor trying to prove your case?
Duncan Atkinson: Absolutely.
Mr Beer: But you ought to do it, I think you told us yesterday, as a reasonable line of inquiry because it might assist the defendant too?
Duncan Atkinson: Yes.
Mr Beer: Because an active and healthy financial investigation which produced nil returns, it might be powerful evidence for a defendant to be able to deploy?
Duncan Atkinson: Yes, especially if they have, in interview, said in terms “I didn’t take the money”, that raises the reasonable line of inquiry of, well, did they? And the obvious place to look as to see whether they’ve got it and whether that be a new speed boat or the money in the bank, you have a look.
Mr Beer: Was it usual in that period, 2000 to 2013, for charging decisions to be made in cases prosecuted by the CPS, whilst financial inquiries were outstanding, if it was nonetheless the case that there was sufficient evidence to provide a realistic prospect of conviction?
Duncan Atkinson: That would be a fact-specific assessment in terms of where the financial inquiry was and what material had thus far been generated by it. But, clearly, if there was – if a prosecutor was satisfied, despite the fact that the financial inquiry was ongoing, that there was a realistic prospect of conviction, then they would be entitled to reach an assessment, providing they were also satisfied that what was outstanding didn’t have a bearing in the public interest assessment.
Mr Beer: I think you would agree that, in a charge of theft, it’s sufficient to prove the fact of the theft, whether by direct evidence or circumstantial evidence, without also, in fact, being able to show where the money went?
Duncan Atkinson: Yes.
Mr Beer: Was your experience in looking at these papers that such financial enquiries that were made had as their focus not proving or disproving theft but recovery of proceeds for the benefit of the Post Office?
Duncan Atkinson: Yes, in some cases it wasn’t very clear what they had made the financial enquiries that they did make for, because there would be a reference in an investigation report to the fact that they’d asked the postmaster for consent to access their bank account, they’d obtained that consent, they may have obtained some bank statements and then there’d be no further reference to them, and so it wasn’t quite clear what they’d done with them.
But where there was more intensive examination of the finances, it did appear to be by Financial Investigators preparing for confiscation, rather than Investigators preparing for prosecution.
Mr Beer: Would you agree that, in the context of a fraud involving the alleged theft of cash of the type alleged in Lisa Brennan’s case, that the absence of evidence of her having the missing money could not exclude the possibility that she did, in fact, take the cash?
Duncan Atkinson: It couldn’t exclude it, no.
Mr Beer: Given that the case was left to the jury on the basis that there was no evidence of her having the money, how, in your view, could an investigation of her finances by the Post Office have placed her in a more advantageous position than she was, either at the point of the charging decision or before the jury?
Duncan Atkinson: Only if it could have confirmed that they had looked and not found any evidence that she had benefited financially and/or confirmed that she, if this were the case, had made, attempted to make, repayments at an earlier stage of losses, and/or if it confirmed that she was not in a position where she needed to steal the money, those things would have further supported her case, not least because they were coming from the prosecution, rather than, for example, just from her.
Mr Beer: Thank you. That’s all I ask in relation to Lisa Brennan’s case.
I am going to move over the cases of David Yates, David Blakey and Tahir Mahmood and turn to the case of Carl Page and, in particular, your consideration of his case at page 58, paragraph 146 to 148 of your report.
Page 58, please, paragraph 146.
Between paragraphs 146 and 148, you raise some criticisms based on your understanding, I think, from the Court of Appeal Criminal Division’s judgment in Hamilton, that the prosecution had changed its case between the first and second trial.
Duncan Atkinson: Yes.
Mr Beer: The Inquiry has heard some evidence since the Court of Appeal’s decision from Warwick Tatford, the prosecution junior to Mr Stephen John at the first trial and sole prosecuting counsel at the second trial. He has told the Inquiry that there were two counts in trial 1, the first count was an alleged conspiracy to defraud between Mr Page and Mr Whitehouse in relation to foreign currency, involving the use of a Forde Moneychanger and not Horizon –
Duncan Atkinson: Yes.
Mr Beer: – and a second count of theft of £282,000, alleged against Mr Page alone, based on an audit shortfall and, therefore, based on Horizon.
Both defendants were acquitted on Count 1 at the first trial, jury unable to reach a verdict on Count 1 at the first trial, therefore there was a retrial on Count 2 alone against Mr Page.
Duncan Atkinson: Yes.
Mr Beer: As such, the second trial was a retrial and did not involve a change of case. Was your conclusion that there had been a change of case, based on what the Court of Appeal Criminal Division had said in Hamilton?
Duncan Atkinson: In part, also based on the assessment in the Second Sight review, which was to the same effect.
Mr Beer: That’s paragraph 147 that you’re referring to there?
Duncan Atkinson: It is, yes.
Mr Beer: Other than those tertiary sources – or secondary sources – did you see anything in the contemporaneous papers to suggest that there had been a material change of case between the two trials?
Duncan Atkinson: I saw a transcript of the evidence or, more particularly, cross-examination of Mr Page at the first trial, which was very much to the effect that he had stolen foreign currency and that that was the basis upon which the theft charge appeared to be presented there, which was how Second Sight characterised it in their review.
So there was that material, contemporaneous material, that accorded with what they were saying had been the prosecution’s case at the first trial, which was not its case at the second trial. I can’t, off the top of my head, remember anything else but I didn’t see anything, equally, that would positively say that the case had not changed in the sense of a review between trial 1 and trial 2, as to how the case would now be put in the light of the acquittal on Count 1, first time round.
Mr Beer: Does anything that I have said in relation to what Mr Tatford has told the Chair change your view in relation to this aspect of the case against Carl Page?
Duncan Atkinson: Clearly, I haven’t considered what Mr Tatford had to say. All I can say is that the material that I saw – and I can only speak to that – didn’t cause me to take a different view to either Second Sight or, more pertinently, the Court of Appeal, as to the fact that there had been a change of case.
Mr Beer: Thank you. Can I turn to Oyeteju Adedayo’s case please. You pick this up at page 66 of your report –
Duncan Atkinson: Yes.
Mr Beer: – paragraph 169 and following. I think, amongst the material that you’ve seen since the preparation of your original report and this revised report, included the CCRC referral document?
Duncan Atkinson: Yes.
Mr Beer: The reference to which – we needn’t display it – is POL00121224. Did your view remain that the case was poorly investigated?
Duncan Atkinson: Yes.
Mr Beer: Did your view remain that, in particular, Mrs Adedayo’s account was not explored or examined by the Investigators or the prosecutors?
Duncan Atkinson: Yes, and, in that regard, I focus on the account that she gave at the time. I’ve seen what she has said about that since, but I focus purely on what she gave as an explanation to the Investigators at the time, which was an account that required investigating.
Mr Beer: Was it incumbent upon the Investigator, Ms Bernard, to have investigated that account to see, for example, whether there had been any payments to third parties by Ms Adedayo?
Duncan Atkinson: Yes.
Mr Beer: Would that have been a relatively straightforward exercise?
Duncan Atkinson: I would have thought so. I’m not a Financial Investigator but, yes, I’d have thought so.
Mr Beer: Did you read the transcript of the interview of Mrs Adedayo?
Duncan Atkinson: Yes.
Mr Beer: I wonder whether we can do this without turning it up. Would you agree or disagree with the suggestion that, when asked open questions, Ms Adedayo appeared incoherent in some of her answers?
Duncan Atkinson: They weren’t easy to follow.
Mr Beer: Did you find that the account that was ultimately attributed to her in the Investigating Officer’s report was one that had been extracted through closed questions to her?
Duncan Atkinson: Yes, I think that’s a fair characterisation. There was – when open questions were asked initially, the account she gave was not clear and more – more closed questions were then asked, from which a clearer account was derived. But, clearly, it was a clearer account based on what she was agreeing with.
Mr Beer: Would you agree or disagree with the suggestion that the account overall was internally inconsistent and confusing?
Duncan Atkinson: I can certainly understand why that would be suggested, yes.
Mr Beer: When she gave evidence to us, the Investigator, Natasha Bernard, said that she viewed it as inconsistent and confusing, and she said that it’s quite clear from her report that she didn’t believe what Mrs Adedayo was telling her.
Duncan Atkinson: In certain respects, yes, I agree with that.
Mr Beer: Given the equivocal nature of what was being said, would you agree that that added an impetus for the case to be properly investigated?
Duncan Atkinson: Yes.
Mr Beer: There wasn’t any clear evidence of a theft and a contradictory or internally inconsistent, in some respects, baffling confession.
Duncan Atkinson: Yes.
Mr Beer: Would that have been a questionable basis to prosecute?
Duncan Atkinson: Without that being resolved, yes.
Mr Beer: If we look at paragraph 181 of your report, please, which is on page 70. Last sentence, in the light of what you said earlier in paragraph 181:
“In Mrs Adedayo’s case, that reliability was not an issue, and non-disclosure relating to the operation of Horizon potentially less of an issue as a result.”
Are you there essentially adopting the same approach as the Court of Appeal Criminal Division.
Duncan Atkinson: Yes, I hope so.
Mr Beer: Thank you very much. Can we turn to Mr Thomas’ case next, please.
Sir Wyn Williams: Before you do, Mr Beer, can I just understand what went on in Mrs Adedayo’s case. Her conviction was quashed by Southwark Crown Court; that’s correct, isn’t it?
Duncan Atkinson: Yes.
Sir Wyn Williams: So this is purely technical but where you write that she pleaded guilty at the Crown Court, I don’t think can be right, can it? Presumably what happened, she pleaded guilty at the Magistrates Court but was then committed for sentence?
Duncan Atkinson: That must be right, yes, sir.
Sir Wyn Williams: That’s just a mere technicality.
But what’s of more interest in her case is that there’s no real rationale, is there, in how her conviction was quashed or why it was quashed, because we haven’t got a formal judgment of the Southwark Crown Court; is that correct?
Duncan Atkinson: We have a transcript of the hearing at which it was indicated by counsel acting for the Post Office that, although they didn’t accept the reasons that had been advanced on Mrs Adedayo’s behalf for why her conviction should be quashed they nevertheless considered that it would be contrary to the public interest to seek to uphold her conviction and so they didn’t oppose her appeal.
There was no judgment given, and I’ll be corrected if I’m wrong about it, no judgment given by the Recorder of Westminster who presided over that hearing, separate from that, but – and so the transcript is less than helpful as to exactly why it came about that Mrs Adedayo’s conviction was quashed.
Certainly the Post Office made clear they didn’t accept a good deal of what Mrs Adedayo’s case, as considered by the Criminal Cases Review Commission, had been.
Sir Wyn Williams: So, in effect, at court, there was an issue which was unresolved by the judge. Mrs Adedayo’s case was presented in a particular way, the Post Office said what you’ve just described to me and the judge didn’t determine the issue between them?
Duncan Atkinson: No, that’s right, sir.
Sir Wyn Williams: So am I right in thinking that the only objective – by which I mean independent of Mrs Adedayo or the Post Office – assessment is that which we currently have, is that which is contained in the reference by the Criminal Review Commission?
Duncan Atkinson: Yes.
Sir Wyn Williams: Yes, fine. Thank you.
Sorry, Mr Beer, I wanted to be clear in my mind about this case.
Mr Beer: Yes, thank you.
I think the document that you saw was a transcript of the hearing at Southwark Crown Court in front of Her Honour Judge Taylor –
Duncan Atkinson: Yes.
Mr Beer: – of 14 May 2021. That ends – the hearing starts at 10.47. Do you want to just have a look at it? I’m not sure we’re going to be able to display this.
I think it’s Volume 1 of the Rule 10 material at tab D32.
Duncan Atkinson: Thank you very much. Yes, thank you.
Mr Beer: Is that the relevant transcript?
Duncan Atkinson: It is, yes.
Mr Beer: The hearing starts, we can see on page 2, at 10.47. Ms Carey, I think that’s Jacqueline Carey, appears on behalf of the prosecution, and speaks over pages 2, 3 and 4, and then Mr Moloney, who appeared for both appellants, says a few words, ten words or so.
Duncan Atkinson: Yes, he was largely inaudible, apparently.
Mr Beer: Yes, which is no doubt due to the recording, rather than Mr Moloney.
Duncan Atkinson: Sure.
Mr Beer: There’s then a discussion or something that Her Honour Judge Taylor said, which concerns jurisdiction.
Duncan Atkinson: Yes, because Mrs Adedayo had pleaded guilty in the – and so you’re entirely right, she pleaded guilty in the Medway Magistrates Court to the offences and was then sent to the Crown Court, to Maidstone Crown Court for sentence. So, procedurally, her guilty pleas had to be set aside before her conviction could be quashed and so that’s the discussion at the end.
Mr Beer: Then the hearing concludes with this, Judge Taylor saying:
“Thank you. In these appeals of Mr Kalia and Ms Adedayo, the Court finds that the effect of Section 11.2.4 of the Criminal Appeal Act 1985 are such that they do not have to apply to set aside their guilty pleas. We adopt the background (inaudible) to these cases, which is set out in Hamilton v Post Office [and the citation given ]. Whilst it is not conceded by the performance that these are (inaudible) cases, in terms of judgment the appeals are not opposed (inaudible), will not be contested and, in the public interest (inaudible). Their sentences have been served and we hope that (inaudible) they can put this behind them and continue with their lives without the shadow of a conviction. Any other applications …”
It says “Mr Carey”.
Duncan Atkinson: Yes.
Mr Beer: It should be Ms Carey.
Duncan Atkinson: Yes.
Mr Beer: She says, “No thank you”.
Is that the extent of a judgment determining the appeal?
Duncan Atkinson: Yes, it is.
Mr Beer: Sir, I hope that helps.
Sir Wyn Williams: Thank you, yes.
Mr Beer: Can we turn on to Mr Thomas’ case then, please. This is paragraph 198 and following of your report on page 76. In fact, we needn’t turn this up, I can deal with this without looking at this material. In paragraphs 193, 198 and 213 of your report, in the context of Mr Thomas’ case, you examine the preparation of a witness statement by Gareth Jenkins.
Duncan Atkinson: Yes, I think the first witness statement he made.
Mr Beer: Exactly. You say at paragraph 198 that consideration of the reference material, ie material that was referenced in the “Gareth Jenkins Chronology”, is necessary. We mentioned the nature and status of that document yesterday.
Duncan Atkinson: Yes, that’s right.
Mr Beer: So can we look at the reference material and, indeed, some other underlying material in chronological order. Can we start, please, with FUJ00122203. Can we look at page 6, please. If we scroll down, please, we should see an email – we can – from Graham Ward – and it’s a generic email account – to Fujitsu of 10 March 2006. This appears to be the original or originating form of instruction from Mr Ward of the Post Office to Fujitsu. If we just scroll down, please, and go on to page 7, he says:
“On a separate matter, I also require a witness statement in respect of the following ARQs … all of which relate to the Gaerwen SPSO.”
That’s Mr Thomas’ branch on Anglesey.
Duncan Atkinson: Yes, that’s right.
Mr Beer: “We need the usual (leave out paragraphs H(b) and J, but we do need paragraph K (call logs) covering an analysis over the period 01/11/04 to 30/11/05. Penny – you may recall this one which relates to nil transactions … Can you had an extra paragraph in your statement explaining how online banking transactions are processed and the data downloaded and how nil transactions can occur.”
If we go forwards, so that’s 10 May (sic), Post Office, Ward, to Fujitsu.
Duncan Atkinson: Yes.
Mr Beer: If we go forwards, please, to the 21 March, FUJ00152582, and look at page 2, please. If we scroll down – thank you – we should see an email from Mr Pinder to Mr Jenkins, with a heading “Fujitsu Statements Gaerwen”:
“As discussed please see extract from a recent email below in italics from Graham Ward …”
We’ve just looked at that email.
Duncan Atkinson: Yes.
Mr Beer: “… regarding provision of a statement about nil transactions and online banking. If you are able to put something together for us I would be very grateful. If you send it back I will arrange for Neneh or Penny to write into a statement for your signature.”
Then you will see the relevant part of Mr Ward’s email cut in to this email and the part in italics:
“Can you add an extra paragraph in your statement explaining how online banking transactions are processed and the data downloaded and how nil transactions can occur.”
Having looked at this material, do you agree that it was the Post Office, via Mr Ward, routed through Mr Pinder, who had asked Mr Jenkins to focus on the issue of nil transactions in the witness statement –
Duncan Atkinson: Yes.
Mr Beer: – rather than a request to consider any broader issues affecting the operation and reliability of Horizon?
Duncan Atkinson: Yes.
Mr Beer: Would you agree – you’ll see the reference to the three ARQs in the first line of the cut-in email, I’m not going to read the numbers out – that it was the Post Office which had selected the three specific time periods for the examination of nil transactions, and that it had done so by enclosing ARQs for time periods that it had selected?
Duncan Atkinson: Yes.
Mr Beer: Would you agree that this instruction to Mr Jenkins didn’t constitute or indeed come close to being a proper instruction to an expert?
Duncan Atkinson: Yes.
Mr Beer: Instead, it’s a request coming from the Post Office to the Fujitsu Litigation Support Team asking them to add a paragraph to their standard statement, which was then rerouted to Mr Jenkins?
Duncan Atkinson: That was how I read it, yes.
Mr Beer: Quite aside from the format of the instruction, is it right that you saw no material in which the Post Office provided to Mr Jenkins detail as to what the prosecution case was against Mr Thomas?
Duncan Atkinson: That’s right.
Mr Beer: No material setting out what Mr Thomas had said, for example, in interview –
Duncan Atkinson: Correct.
Mr Beer: – or in the audit, and in the audit report?
Duncan Atkinson: Yes.
Mr Beer: There was no analysis for him of the competing issues between the parties?
Duncan Atkinson: No, that’s right.
Mr Beer: Would you agree, on these materials, that Mr Jenkins wasn’t, in fact, instructed to undertake an examination of the scheme –
Duncan Atkinson: Yes, I agree.
Mr Beer: – of the system?
Duncan Atkinson: Yes.
Mr Beer: Thank you very much.
Sir, it’s just gone 11.30 now, I wonder if we could break until 11.45.
Sir Wyn Williams: Certainly, yes.
Mr Beer: Thank you.
(11.32 am)
(A short break)
(11.45 am)
Mr Beer: Sir, good morning. Can you continue to see and hear us?
Sir Wyn Williams: Yes, thank you.
Mr Beer: Before I continue with the chronology in Mr Thomas’ case, can we just return to Ms Adedayo’s case and just clarify couple of points, in the light of the questions you asked and the evidence that Mr Atkinson gave.
Can we start, please, Mr Atkinson, just by explaining the different nature of appeals from the Crown Court to the Court of Appeal Criminal Division and from a Magistrates Court to a Crown Court in CCRC reference cases.
Is it right that an appeal from the Crown Court to the CCAD (sic) is, essentially, a review of the safety of the conviction?
Duncan Atkinson: Yes.
Mr Beer: Whereas, if a person has pleaded guilty in the Magistrates Court, there is no power to appeal, unless the CCRC make a reference?
Duncan Atkinson: Yes.
Mr Beer: If the CCRC make a reference, the test that the CCRC apply is not whether the conviction is unsafe but whether it’s arguable that it might be?
Duncan Atkinson: Yes.
Mr Beer: If the CCRC do make a reference to the Crown Court on a case involving a plea in the a Magistrates Court, that results in a hearing de novo?
Duncan Atkinson: Yes, so a rehearing of the case.
Mr Beer: Yes, so, essentially, a retrial?
Duncan Atkinson: Yes.
Mr Beer: A rehearing of the case?
Duncan Atkinson: Yes.
Mr Beer: Upon such rehearing of the case, the prosecutor must, or ought to, consider both limbs of the Code test at that point in time?
Duncan Atkinson: Yes.
Mr Beer: What happened in Ms Adedayo’s case was that the Post Office made a concession on the public interest limb of the test, as complained by Ms Carey in the transcript, that that limb was not at that point satisfied?
Duncan Atkinson: That’s right.
Mr Beer: That approach by the Post Office meant that Mrs Adedayo did not have the opportunity to argue by reference to the evidence and to make submissions whether the evidential threshold was met – that wouldn’t be for the court anyway – but to argue in court, by reference to evidence, as to whether her case was an Horizon case or not?
Duncan Atkinson: No, that’s right.
Mr Beer: Is that why we don’t see a judgment from Her Honour Judge Taylor resolving whether Mrs Adedayo’s case was or was not an Horizon case because, essentially, the Post Office offered no evidence against her and there was nothing for her then to do?
Duncan Atkinson: And there had been no submissions before Judge Taylor on that issue which would have allowed her to come to a view.
Mr Beer: No, save that I think in the inaudible part of the transcript, it’s agreed between the Post Office and Mr Moloney that what was said was that the Post Office analysis that this was not a Horizon case was not accepted, and he was essentially preserving his position and her position for the future?
Duncan Atkinson: Yes.
Mr Beer: Thank you. Can we go back to Mr Thomas’ case, please.
Duncan Atkinson: Yes.
Mr Beer: Can we look in the next step of the chronology, at FUJ00152587, and page 5, please. We’d previously been looking at 10 March and 21 March. We’re now looking at 22 March.
If we scroll down a little bit, please, we see Mr Ward emailing the Fujitsu employees that we see set out, confirming, in the second paragraph, that the Post Office required a witness statement producing ARQ extracts in spreadsheet form, relating to Mr Thomas’ post office, and a statement explaining the headings and under what circumstances nil transactions can occur. Can you see that in the second paragraph?
Duncan Atkinson: Yes.
Mr Beer: Then, if we scroll up, please, to the top of page 5., we see Ms Lowther providing Mr Ward with a draft witness statement later that day on 22 March:
“Please see the draft [witness statement] for the above re ‘Nil Transactions’.
“[Does this meet] your requirements.”
Then the page above, please, page 4. A reply from Mr Ward later that day, the 22nd. In the third paragraph, second line:
“… I’m concerned at the words ‘system failure’ which is also in an earlier line … ‘There has been some sort of system failure’ – What does this mean exactly and is there any indication of a system failure at this office during the period in question?”
Can we go forwards, please, to FUJ00122203, and page 3, please. On that day, 22 March, Ms Lowther forwards Graham Ward’s email to Mr Jenkins:
“Hi Gareth,
“Please see reply from Graham below regarding your statement.
“… ignore the first bit …”
Then:
“Could you please look at his second [paragraph] and advise with your comments again.
“I have attached a copy of your draft statement …”
If we go up to page 1, please. Reply later the next day, the 23rd. Mr Jenkins sending a revised witness statement saying:
“In particular, I don’t feel I can include the last two [paragraphs], which may make the statement useless.”
Can we look at what that attachment was. FUJ00122204. 23 March, draft statement. Scroll down, please. You’ll see the introduction and then the part of the text in single line spacing:
“There are three main reasons why a zero … transaction may be generated as part of the banking system …”
1 and 2, and then 3:
“There has been some sort of System Failure. Such failures are normal occurrences.”
So the point remains in Mr Jenkins’ statement in this draft, despite Mr Ward’s questions expressed to Ms Lowther and passed on to Mr Jenkins: why is that there, what does it mean?
Duncan Atkinson: Yes.
Mr Beer: So he’s maintaining that the reasons why a zero transaction may be generated include some sort of system failure and that they are normal occurrences.
Can we go to FUJ00122203 –
I’m so sorry. If we can go to the third page of the witness statement, please. If we scroll down, just a little bit, you’ll remember that in his covering email, Mr Jenkins said that: I don’t think I can say the part in the last two paragraphs, and these are the last two paragraphs in the statement.
“… no reason to believe that the information in the statement is inaccurate … To the best of my knowledge and belief at all … times the computer was operating properly …”
Then a records declaration.
Then Mr Jenkins said, as well as in his email, at the foot of the page:
“I’m not sure that the yellow bit is true. Can this be deleted? All I’ve done is interpret the data in spreadsheets that you have emailed to me.”
Just pausing here for the moment, in relation to the page 1 point, system failures being a reason for nil transactions and being normal occurrences in the system, would you agree that it wasn’t appropriate for the Post Office as an Investigator or as a prosecutor to insist upon the removal of any references to system failures from Mr Jenkins’ witness statements?
Duncan Atkinson: Yes. The emails that we’ve just seen, I don’t think there was anything inappropriate about them asking what he meant by that or asking him to explain that further, but asking him to remove it is a different matter.
Mr Beer: To the extent that it was removed subsequently, do you agree that Mr Jenkins’ recognition in this draft of his witness statement, that system failures are normal occurrences in the system, ought properly to have been disclosed in this prosecution –
Duncan Atkinson: Yes.
Mr Beer: – and in others?
Duncan Atkinson: Yes, with more information as to what he meant by that.
Mr Beer: No matter what went on subsequently, in terms of the deletion of that line from his witness statement, should that have been material disclosed by Mr Jenkins himself?
Duncan Atkinson: It should, if it was his view. If it was part of his expert assessment, it should have stayed there and formed a part of what he produced.
Mr Beer: Do you agree that Mr Jenkins’ request that the last paragraphs, the two that we’re looking at, be removed from the draft witness statement ought to have been disclosed in this prosecution?
Duncan Atkinson: If the two paragraphs remained in the statement as ultimately served, then the fact that he didn’t agree with them clearly needed to be made clear.
Mr Beer: That’s what happened. Despite his request for their removal, we’ll see that eventually, in the statement of 6 April 2006, those paragraphs remained.
Duncan Atkinson: Without qualification.
Mr Beer: Yes.
Duncan Atkinson: Yes.
Mr Beer: Therefore, his unhappiness at including those two paragraphs in a witness statement ought properly to have been disclosed in this prosecution?
Duncan Atkinson: Yes.
Mr Beer: And in other prosecutions?
Duncan Atkinson: In any prosecution where this statement was served and/or disclosed or those paragraphs were included in any further statements that were served or disclosed, then his disagreement with them needed to be disclosed as well.
Mr Beer: Can we go, please, to FUJ00122210. Just look at the bottom of page 1, please, from Ms Lowther to Mr Ward:
“Hi Graham,
“[Please see attached] second draft for the above with further explanation regarding the issues you raised.”
That second draft is the one that we’ve just looked at:
“Please let me know of any amendments [as soon as possible] as we need to put this in the post”, et cetera.
Then, further up on page 1, later the same day, on the 24th, Mr Ward replies at 11.37:
“Neneh,
“This statement needs more work … I have attached a suggested draft with a number of comments (as mentioned previously [I think that’s the previous email we just looked at] I think the ‘system failure … normal occurrence’ line is potentially very damaging). It may be worth considering someone from our team taking a statement directly from Gareth (where is he based?).
“Whilst there is some urgency with this, it is more important to get it right and ensure that we are not embarrassed at court, which we certainly could be if we produced a statement accepting ‘system failures are normal occurrences’ …
“Let me know what you think of the draft.”
Then if we see at the top of that page there later in the day, that’s passed, that email, directly by Ms Lowther to Gareth Jenkins:
“[Please] see the mail below and the new draft statement.”
So let’s look at Mr Ward’s drafting efforts. POL00047895. If we scroll down, please, so this is the relevant paragraph at the top of the page here:
“There are three [then Mr Ward has inserted] (if these are the main reasons what are the rest?) reasons why a zero value transaction may be generated as part of the banking system …”
Then I think 1 and 2 remain the same. The third reason, system failure, has been deleted – can you see that –
Duncan Atkinson: Yes.
Mr Beer: – and replaced by Mr Ward typing:
“(This is a really poor choice of words which seems to accept that failures in the system are normal and therefore may well support the postmaster’s claim that the system is to blame for the losses!!!!)”
Do you consider this type of intervention in relation to the content of Mr Jenkins’ evidence to be appropriate conduct by a member of a prosecuting authority?
Duncan Atkinson: No.
Mr Beer: Do you consider the degree of input into the drafting of Mr Jenkins’ witness statement to be appropriate, if it was the case that Mr Jenkins was being treated as an expert witness?
Duncan Atkinson: No. As I said before, there was no issue with Mr Ward, as he had in earlier emails, asking what system failures meant and having a better understanding of that, but to take it out because it was embarrassing or damaging, or would help the postmaster –
Mr Beer: The defendant.
Duncan Atkinson: – help the defendant is very much the opposite of what they should have been doing.
Mr Beer: Do you agree that, to the extent that an Investigator or a Manager of Investigators had made deletions or proposed deletions to a witness statement and had given as a reason that the evidence that the expert was proposing to give might well support the defendant and, therefore, the words should be deleted, ought to have been disclosed in the prosecution?
Duncan Atkinson: It shouldn’t have happened and, if it did happen, it should have been disclosed.
Mr Beer: Can we go to page 3, please. Can we see that the two paragraphs in relation to the operation of the computer – and we’ll come back in a moment to exactly what they may have meant, what their focus may have been in a moment, but they have been removed by Mr Ward –
Duncan Atkinson: Yes.
Mr Beer: – in this draft. Again, was that proper conduct by a member of the prosecuting authority?
Duncan Atkinson: It would depend on why it was done and what else was done in relation to it. Clearly, if the person whose statement this was said that they were – that they wanted those paragraphs to be deleted because they were wrong, then it was not wrong to delete those paragraphs.
But it should have generated discussion as to why they were wrong or what the issue was and, if the issue was, as I read Mr Jenkins’ email to suggest that, for him to attest as to the operation of the system, he needed more material than he had been given, then the discussion needs to be about that, rather than just deleting the paragraphs and moving on as if nothing had happened.
Mr Beer: Thank you.
Can we move on, please, to POL00122217 – FUJ00122217. My mistake, I said POL rather than FUJ.
FUJ00122217. Can we start with page 2, please. We can see that Mr Ward’s amendments to the second draft of the statement are sent back to Mr Jenkins. Then, if we go up, please, Mr Jenkins emails Mr Ward directly, copying Ms Lowther in, an updated draft statement, saying:
“I’ve added some further annotations to your annotations. Does this move us forward?”
So shall we see what the attachment said? FUJ00122218. This is the attachment to that email. Although it was being sent on 28 March, the statement remained dated 24 March. If we scroll down, please, you’ll see the third reason, system failures, remains deleted.
You will see Mr Ward’s annotations on “really poor choice of words”, and you’ll see Mr Jenkins reply:
“Please can you suggest something better then? What we have here are genuine failures of the end-to-end system which are not part of normal operation, but are anticipated and the system is designed to cope with them. Some such failures could be engineered as part of a malicious attack (but that doesn’t apply to those failures that appear in the evidence presented). In all cases the system is designed to identify such failures and handle them in such a way that the Customer, the Postmaster, Post Office and [Financial Investigators] are all clear as to the status of the transaction and any necessary financial reconciliation takes place. I guess one option is to delete the paragraph since it is purely an introduction to the following more detailed description.”
So Mr Jenkins has asked Mr Ward to suggest something better and raised the possibility of deleting the paragraph.
In the light of the fact that Mr Jenkins recognised, in this further draft or the response to the proposed amendment, that system failures were anticipated, was it appropriate for the Post Office, as an Investigator or prosecutor, to insist upon the removal of the reference to “system failures” from the witness statement?
Duncan Atkinson: No. What was necessary was for them to provide a proper explanation of what that meant.
Mr Beer: The recognition in the text that he added that such system failures were anticipated, do you agree ought properly to have been disclosed in the prosecution?
Duncan Atkinson: Yes.
Mr Beer: If we go over the page, please. Scroll down. You’ll see that the system operation paragraphs, those two paragraphs at the end that were in the original coloured yellow, remain removed.
Duncan Atkinson: Yes.
Mr Beer: Do you agree that this draft of the witness statement ought properly to have been disclosed in the prosecution?
Duncan Atkinson: Yes.
Mr Beer: Can we go forward to FUJ00152587. Mr Ward emails Mr Pinder, copying Ms Lowther and Mr Jenkins in, saying:
“I do not understand why this statement … is taking so long to be put together. I appreciate it is slightly unusual, but I do not understand the confusion as I thought I’d made our requirements clear.”
Remember the word “requirements”, if you may:
“Unfortunately, Gareth’s annotations do not take us forward at all (and I’m sure this is not Gareth’s fault). Gareth has indicated in the attachment below that the 3 spreadsheets produced by your team … were not produced by him, therefore as he quite rightly points out, he is not in a position to produce them in his statement.”
That’s a side point. Then scroll down, please:
“As already stated, we urgently need a statement producing these 3 additional spreadsheets, explaining in general terms, under what circumstances ‘nil’ transactions occur and in particular how the ‘nil’ transactions at Gaerwen occurred … The same statement needs to include a paragraph which states that there is no evidence of a system error at Gaerwen (assuming this is the case) in relation to ‘Nil’ transactions at the office. We do not need to mention ‘system failures being normal occurrences’ if there is no evidence of such a problem at this office.
“… it may now be best if the Investigator … arranges to meet with Gareth to take the statement in person …”
Do you consider this intervention by Mr Ward to be appropriate conduct by a member of a prosecuting authority?
Duncan Atkinson: No.
Mr Beer: Do you consider the degree of input into the drafting of this witness statement to be appropriate?
Duncan Atkinson: No.
Mr Beer: Ought this exchange to have been disclosed in the prosecution?
Duncan Atkinson: Yes, especially if the statement was being relied upon.
Mr Beer: No need to turn them up but some evidence the Inquiry has got, FUJ00155721 and FUJ00152592, suggests that Mr Pinder of Fujitsu then spoke with Ms Matthews, the Investigator, and arranged for her to meet Mr Jenkins in person on the 6 April 2006 to “record the statement”.
It appears, as a result of that meeting, an updated draft witness statement was prepared, dated 6 April 2006, if we can look at that, please, FUJ00122237. If we scroll down, please – and again, and again – you’ll see, I think, that the three main reasons for nil transactions occurring, including system generated occurrences, do not appear in this final witness statement nor any reference to system failures at all.
Duncan Atkinson: That’s right.
Mr Beer: But in the last draft, the final draft, the signed version, the two paragraphs about the operation of the computer system reappear. Can you see that? There’s one on the page there. Then, if we scroll to the next page, yes:
“… no reason to believe the information in this statement is inaccurate because of the improper use of the computer.”
I think they have had been combined into –
Duncan Atkinson: They have.
Mr Beer: – a compressed version of both statements.
Duncan Atkinson: Yes.
Mr Beer: So standing back, at the moment, from this run of correspondence, would you agree that Mr Jenkins openly referred to system failure in his original draft of the statement?
Duncan Atkinson: Yes.
Mr Beer: It was Mr Ward who objected, on behalf of the Post Office, to the reference to system failures?
Duncan Atkinson: Yes.
Mr Beer: Mr Ward inserted his criticisms of the inclusion of those words into a text of the statement –
Duncan Atkinson: Yes.
Mr Beer: – “This is a really poor choice of words” –
Duncan Atkinson: Yes.
Mr Beer: – and it appears to be Mr Ward who was pressing for the amendment of the statement, because Mr Ward was worried about how “system failure” might be interpreted and that it might actually help a defendant?
Duncan Atkinson: Yes.
Mr Beer: Putting aside whether that approach was acceptable, I think you said that each of the versions of the statement ought to have been disclosed, in particular because, from 2005 onwards, the CPIA Code at paragraph 5.1 required drafts of statements to have been recorded on the Unused Schedule, if they differed materially what the final version?
Duncan Atkinson: Yes, and because applying the disclosure test, for reasons that Mr Ward had identified, this was material that undermined the prosecution case and fell to be disclosed anyway.
Mr Beer: So the failure to reveal, by recording on the schedule the existence of these drafts, may he a breach of Section 7 of the CPIA, in that the reference to “system failure” in the drafts meant that they might reasonably be considered to be capable of undermining the prosecution or assisting the defence?
Duncan Atkinson: Yes.
Mr Beer: So, gathering all of that information together, had the Post Office adhered to the law in relation to disclosure here, then the fact that the witness statement had evolved over time and at whose insistence it had evolved over time would have been revealed to the defence?
Duncan Atkinson: Yes.
Mr Beer: That can come down. Thank you. You tell us in paragraph 213 of your report, which is on page 82, that the snapshot of data that Mr Jenkins examined in his witness statement was a very restricted one –
Duncan Atkinson: Yes.
Mr Beer: – and that the examination which was undertaken does not appear to have been disclosed, so it’s limitations were unlikely to have been appreciated by the defence.
Having seen now the underlying material, and putting aside the fact that the work done reflected, I think, what Mr Jenkins had been asked to do, do you agree that Mr Jenkins sought guidance as to whether what he was doing was the correct approach?
Duncan Atkinson: I’m not sure I entirely follow that.
Mr Beer: Let’s look at some other material, then. FUJ00122230. If we scroll down, please, I think this is an email of 30 March between Mr Jenkins and Mr Pinder saying:
“I’ve taken the data from the PEAK …”
Do you recall what PEAKs were?
Duncan Atkinson: No.
Mr Beer: You don’t, okay:
“… and carried out my own analysis of it and presented the results in the attached Word Document.
“Hopefully this is the sort of thing that [the Post Office] want. If you want to pass it through to them before Thursday then fine.”
So PEAK was an incident management system maintained and operated by Fujitsu that recorded the reporting investigation and possible escalation of system issues within a certain level of service helpdesk within Fujitsu.
Duncan Atkinson: Yes.
Mr Beer: Mr Jenkins says, he’s taken the data off the PEAK, so from that system.
Duncan Atkinson: Yes.
Mr Beer: If we can look, please, at FUJ00122229. This is the attachment to that email that we’ve just looked at. This note sits under Mr Jenkins’ hand:
“This note is provided as input to a Witness Statement regarding Gaerwen …
“Penny Thomas provided me with extracts … for 3 [periods from audited data].
“I have taken this data and extracted details of all banking transactions and analysed the zero value transactions. The following table provides a summary …”
Then the three ARQ periods are set out by reference to the three ARQ numbers: 401, 459, and 460. Then scroll down:
“I have produced a separate spreadsheet …”
Then he goes on and explains what he’s done.
Duncan Atkinson: Yes.
Mr Beer: So my question, and I cut to the chase too quickly with you, Mr Atkinson, was that what Mr Jenkins did was tell Mr Pinder “This is what I’ve done, attaching this Word document”, and essentially asking: is this correct, is this what the Post Office want, by saying in his covering email “Hopefully this is what the Post Office want”?
Duncan Atkinson: Yes.
Mr Beer: Can you recall any reply to that coming back to him and saying, “No, you’ve done the wrong thing”?
Duncan Atkinson: I can’t recall one no and this material does reflect what is in the statement of the 6 April.
Mr Beer: 6 April, yes, exactly. Did you see any instruction or guidance to Mr Jenkins about the retention of working materials such as this or the disclosure of underlying analysis, the type of which is referred to in this document?
Duncan Atkinson: No.
Mr Beer: Is that the type of material that should be retained by an expert witness and made available for disclosure?
Duncan Atkinson: Yes.
Mr Beer: Thank you very much.
If we go back to paragraph 213 of your report, which is on page 82, in paragraph 213, in the middle of the paragraph, can you see a line which says:
“Mr Jenkins of Fujitsu does not appear to have been asked to review the underlying data more generally …”
Then this:
“… but does appear to have provided reassurance as to the integrity of the system despite that underlying data not being analysed.”
Duncan Atkinson: Yes.
Mr Beer: Are you there referring to that line at the end or that paragraph at the end of Mr Jenkins’ witness statement?
Duncan Atkinson: Yes.
Mr Beer: Can we look at that, please. FUJ00122237. If we just look at the end of the witness statement, please. It’s that paragraph:
“There is no reason to believe the information in the statement is inaccurate because of the improper use of the computer. To the best of my knowledge and belief at all material times the computer was operating properly, or if not, any respect in which it was not operating properly, or was out of operation was not such as to affect the information held on it.”
Duncan Atkinson: Yes.
Mr Beer: This is the abridged version of those two computer operation paragraphs –
Duncan Atkinson: Absolutely.
Mr Beer: – that we saw earlier.
Duncan Atkinson: Yes.
Mr Beer: Is it the line “To the best of my knowledge and belief at all material times the computer was operating properly”, that you’re referring to?
Duncan Atkinson: Yes.
Mr Beer: If we go back to the beginning of the statement, please, and if we scroll down, you’ll see in the second paragraph Mr Jenkins refers to the Fujitsu PEAK system:
“Fujitsu have a fault management system called the PEAK system, which is used for passing faults around the team and tracking faults raised regarding the Post Office Account.”
Then, subsequently, Mr Jenkins records that he extracted data from the PEAK system:
“I extracted data from this system regarding the Gaerwen Post Office.”
Then he says:
“From this data, I then extracted all the banking transactions which showed a zero value.”
That’s ARQ data.
Duncan Atkinson: Yes.
Mr Beer: He then produces spreadsheets analysing the existence of or the reasons for the zero values.
The statement at the end, if we go to it at the foot of the next page, please, page 3 at the bottom:
“There is no reason to believe that the information in this statement is inaccurate because of improper use of the computer.”
Was your understanding that the computer that was being referred to was the PEAK system or the Horizon system on which the ARQ data was stored and from which it was obtained or could you not tell?
Duncan Atkinson: My reading was the latter, that it related to the – relating to the Horizon system, but it’s not altogether clear.
Mr Beer: So I think you read this paragraph, the abridged version of what is a standard paragraph in other witness statements, as equating to an opinion that Horizon was working properly, insofar as it affected the Gaerwen branch at all relevant times –
Duncan Atkinson: Yes.
Mr Beer: – rather than that the information in the witness statement refers to information extracted from the PEAK system?
Duncan Atkinson: Rather than that that paragraph related just to the PEAK system, yes.
Mr Beer: Thank you. Can you see that this statement is at least open to interpretation?
Duncan Atkinson: Yes.
Mr Beer: That can come down. Thank you.
Before repeal, would you agree that Section 69 of PACE permitted the admission into evidence of a statement contained within a document where that document had been produced by a computer?
Duncan Atkinson: Yes.
Mr Beer: There was, I think you will remember, concern that the ambit and effect of Section 69 of the Police and Criminal Evidence Act had been fundamentally misunderstood? Do you remember a case of Miners –
Duncan Atkinson: Yes.
Mr Beer: – which you cite in your second report. Was Section 69, in fact, only concerned with admission of facts into evidence rather than whether the facts were true?
Duncan Atkinson: Yes, it was to do with the operation of the system, rather than the truth of the content.
Mr Beer: I don’t suppose you can assist us on whether – you’ve explained how you understood that statement as referring to Horizon more generally?
Duncan Atkinson: Yes.
Mr Beer: You can’t assist us as to what Mr Jenkins’, obviously, intention was on the basis of the materials that you’ve seen?
Duncan Atkinson: No, although that perhaps underlines why the iterations and evolution of this statement was so important and why its disclosure was so important because it was that underlying material that would help someone, particularly someone acting on behalf of the defendant, to approach what he meant by this and what his intention was.
Mr Beer: So, in circumstances where an Investigator, as we’ve seen the material suggest, took a witness statement from Mr Jenkins, would you agree that, if the witness was asked to include a form of words such as this at the end of their witness statement, it was important that it was made clear to the witness what the words were supposed to indicate?
Duncan Atkinson: Yes. Particularly where they had expressed reasons as to why its relation to the operation of the Horizon system would not be something they would sign up to.
Mr Beer: Because the witness was saying, “I’ve looked at one computer system, the PEAK system, I’ve identified from that some data that I need to look at, three lots of ARQ data” –
Duncan Atkinson: Yes.
Mr Beer: – “I’ve extracted three lots of ARQ data from Horizon, the computer system was working”, I’m summarising it?
Duncan Atkinson: Yes, and what I’m not saying is that the Horizon system was operating correctly. That’s – so that it was clear what this assertion as to correct operation related and to what it, equally importantly, didn’t relate to.
Mr Beer: So you would you agree, I think, that it was important that it should be made clear to the witness what the words were supposed to mean, and to which system they were intended to relate?
Duncan Atkinson: Yes.
Mr Beer: Can we move forwards, please, to FUJ00152616. Can we look at page 3 to start with, please. We’ve moved on from March and April into the summer. If we scroll down, please. Yes, this is an email to Diane Matthews, the Investigator of this case, from Mr Jenkins. At the bottom of the next page, you will see it is dated 12 July, and Mr Jenkins says:
“I understand also that this trial is at Caernarfon. Do you have any idea as to how much time will be involved and exactly what is required? I’ve never been to court in any capacity and my knowledge of such things is based on films and TV (which I’m sure are inaccurate!)”
Then if we go to page 2, please, and scroll up, we can see the reply from Ms Matthews. Just scroll down to her second paragraph – her third paragraph, rather, which is a reply to the request for help from Mr Jenkins:
“All witnesses will have to be present on the 1st day unless the defence has agreed [their] statement and don’t wish to ask any questions about that evidence.”
Then this:
“It is pretty much as you see on the TV really but remember that you will have sight of your statement prior to taking the stand and can only be asked questions specifically about your statement.”
Was that guidance appropriate?
Duncan Atkinson: I’m not altogether sure what it means but, insofar as I understand it, no.
Mr Beer: What do you understand it to mean?
Duncan Atkinson: Well, I understand it to be saying that the criminal process is like a TV programme, presumably an American TV programme, by reference to “the stand” and that the witness can only be asked questions about what is already in their witness statement, and I don’t know where that comes from, even in America.
Mr Beer: Would you agree that that part is positively misleading?
Duncan Atkinson: Yes.
Mr Beer: Because it’s wrong?
Duncan Atkinson: Yes.
Mr Beer: Would it carry any special relevance in circumstances where a witness had already been asked to delete aspects of their witness statement and was now being told by the prosecutor “You can’t be asked questions about things outside your witness statement, you’ll only be asked questions specifically about your statement”?
Duncan Atkinson: Yes, I suppose it might have a different message to someone if they understood that the various drafts of their statement had also been disclosed and, therefore, questions about their statement might include that but, subject to that, it would tell them that the final draft is all that you’re going to be asked about.
Mr Beer: Thank you. That can come down.
Having reviewed the emails, correspondence, and draft statements that we’ve seen, would you agree with the suggestion that, overall, the Post Office appeared to seek to harden up Mr Jenkins’ witness statement?
Duncan Atkinson: Yes.
Mr Beer: Looking at that series of communications and drafts, do you agree that it succeeded in that objective?
Duncan Atkinson: Yes.
Mr Beer: Do you agree that Mr Jenkins participated in that enterprise?
Duncan Atkinson: Yes.
Mr Beer: I think you’ve agreed that all of the drafts that we’ve seen, including observations within the drafts and the communications themselves, ought to have been disclosed?
Duncan Atkinson: Yes.
Mr Beer: Thank you. Can we turn to the case of Suzanne Palmer, please. You address this in paragraph 229 of your report. In fact, you start at 220 but the bit I want to ask about is 229, which is on page 87.
In paragraph 229 on page 87, you comment that prosecuting counsel, Stephen John, provided an advice on evidence, which identified a number of lines of inquiry or investigation that he thought should be pursued but that, other than commenting on the particulars of the indictment, he didn’t advise on the sufficiency of evidence and say this was another opportunity to review whether there was a proper evidential basis to assert dishonesty was lost.
Duncan Atkinson: Yes.
Mr Beer: Would you agree that dishonesty, as an element of many offences, is one which, more often than not, is proved by inference from the circumstances, rather than by direct evidence?
Duncan Atkinson: Yes.
Mr Beer: Would you agree that, if Mr John, as prosecuting counsel, had taken the view that there was not sufficient evidence to satisfy the first limb of the Full Code Test, he could not have properly continued to prosecute the case?
Duncan Atkinson: I’m not sure I altogether follow that. Clearly, if he identified that the – there was insufficient evidence to prove dishonesty for the purposes of theft, he should have said so. Whether he would have been professionally embarrassed so he would have to have withdrawn from the case if that advice was not acted on, is a separate question, I think, not a very clear-cut one.
Mr Beer: Put it another way, then: given he advised on further lines of inquiry, is it implicit or can we draw an inference reasonably that he had read all of the papers, he’d considered the evidence in the case and decided that there was a reasonable prospect of conviction, even if he never said so?
Duncan Atkinson: That would be one interpretation and that might be the right interpretation. It would perhaps, to an extent, depend on what his instructions asked him to do. Certainly, the standard instructions, such as I have seen them in – across these 22 cases, do ask counsel instructed to draft the indictment and to advise on evidence. And where I’ve seen them, I have seen advices from counsel that firstly say, “I attach the indictment”, and why it does or does not include what it does or doesn’t include and a list of further things that are required.
The instructions to counsel didn’t specifically ask them to advise as to the sufficiency of evidence and whether they agreed that this was a proper case to prosecute or not, so I could see that there would be – there may be circumstances where a prosecutor would not understand that’s what they’re being asked, although I have to say I think they would still be duty bound to do so but it may also be that those who instruct them were not expecting them to do that and, therefore, their failure to do it wouldn’t necessarily tell them very much one way or the other.
Mr Beer: In fact, we’ve heard from the lawyers so far that the request to advise on evidence was meant to encompass, was intended to encompass a request to advise on evidential sufficiency, not just further lines of inquiry, and the counsel that we’ve heard from, the only one, Mr Tatford, has said that he understood the request to advise on evidence to include a requirement to advise on evidential sufficiency but the vagaries of life at the criminal bar was such that there was often not time to do so.
Duncan Atkinson: Certainly, my experience would be that, if you were instructed to prosecute a case, you would not just be looking at whether there was a statement from the plan drawer, you would be looking to see whether the case was sustainable or not.
Mr Beer: Thank you.
Can we turn to the case of Susan Rudkin, please. I’ve skipped over Josephine Hamilton.
If we can look, please, at paragraph 306 of your report, which is on page 113. In this paragraph – and it’s an observation that you make elsewhere in your report too – you say that, although the Post Office may have had evidence of theft or fraud by way of admissions, it did not have sufficient evidence or at least there had been insufficient consideration of the adequacy of the evidence to prove the level of the loss. This is a point that you make a number of times in the report.
Duncan Atkinson: Yes.
Mr Beer: Would you agree that the amount of particularised loss in a charge can be relevant to an assessment of whether a prosecution is in the public interest –
Duncan Atkinson: Yes.
Mr Beer: – any sentencing exercise –
Duncan Atkinson: Absolutely.
Mr Beer: – and confiscation or other ancillary orders?
Duncan Atkinson: Yes, both as to whether it’s appropriate to do it and certainly as to how much you’re asking for.
Mr Beer: Would you agree that although there’s a requirement to prove that there was a loss for offences of theft, the courts do not generally consider the amount of loss to be a material averment in a count on an indictment?
Duncan Atkinson: No, that’s right.
Mr Beer: Because the amount of loss is not a relevant consideration in assessing whether a defendant is guilty or not?
Duncan Atkinson: It’s not a necessary requirement to establish that, that’s right.
Mr Beer: So what’s the force of your criticism here, then, in the light of those points?
Duncan Atkinson: That in this case and in such cases where there were questions as to whether there was theft, it was clearly relevant for the investigation to do what it could to identify what it was being said had been taken. And it was necessary for a prosecutor in deciding whether to prosecute to have a sense and an understanding of what had been taken, because it was relevant to the assessment of whether there was a realistic prospect of conviction.
But it was also relevant to the assessment of the public interest and where there was a lack of evidence as to that, it is difficult to see how, without further enquiry, one could go from the beginning to the end of the charging process without, at any stage, raising that as a concern.
Mr Beer: Thank you.
Ms Rudkin’s case raises issues of post-conviction disclosure as well, which you address in your report on the previous page at page 305, at the foot of the page. You say:
“In the subsequent 2014 review by Cartwright King, the Post Office retained the view that there was no evidence of Horizon failings contributed to the loss, and was clearly aware of potential issues with cross-disclosure to other cases. That advice took a concerning approach to post-conviction disclosure focusing on the consequences of disclosure rather than whether it was required.”
Can we just look at that, please –
Duncan Atkinson: Yes.
Mr Beer: – this concerning approach to post-conviction disclosure. It’s POL00046579.
We can see that this is the case of Mr Rudkin, Mrs Rudkin’s husband. If we scroll down, please, “Analysis”. This is written by Harry Bowyer –
Duncan Atkinson: Yes.
Mr Beer: – an in-house barrister at Cartwright King:
“It is Post Office’s firm belief that the major losses suffered by the Applicant were caused by theft by his wife. Other very minor losses were likely to have been caused by simple human error … There is no evidence to support the Applicant’s assertions that there were failings with Horizon which contributed to losses at the branch.
“Unless this position is resiled from this case should not cause any problems with any [Post Office] prosecutions past or pending.”
Then over the page, please, “Dangers to Post Office”, second paragraph:
“If concessions are made that might render this conviction unsafe then the Applicant’s wife may well be put in a position whereby she is able to appeal that conviction.
“Were an appeal to succeed, then [the Post Office] would be open to a claim for damages and/or restitution of monies paid by this appellant under any confiscation order.
“Such concessions would have to be disclosed to those with similar convictions. This may well necessitate a review of many hundreds of cases to establish who else may be entitled to such disclosure.
“If concessions are made that might render the sentence imposed … manifestly excessive then the Applicant might well be put in a position whereby she might be able to appeal that sentence, with similar consequences for [Post Office].
“… again, those concessions would have to be disclosed …”
Then, finally:
“This is not a case where any concessions can or should be made; to do so has the potential to render her conviction by guilty plea unsafe, or her sentence as manifestly excessive; and accordingly to invite an application to the Court of Appeal.”
Are they the paragraphs which you thought indicated a concerning approach to post-conviction disclosure?
Duncan Atkinson: Yes.
Mr Beer: Can you just explain why, please?
Duncan Atkinson: Well, if the position was that there was no material that – and that material had been reviewed – that there was no material following a review that identified any Horizon issues in relation to Mrs Rudkin’s case, then there would be no material that needed to be disclosed and no concession that there were Horizon issues needed to be made and that would be on a proper assessment of the material.
If the reason not to make such a concession was that it might allow a proper appeal against conviction or it might show that the figure of loss was not as had been contended, such that the sentence that was imposed was excessive, then that would not be a proper reason to disclose. Indeed, if a concession properly would allow for an appeal to be advanced, then that would be a reason to disclose it, rather than not. If the reason for not making a concession in one case was its impact on others, where that was a concession that was rightly to be made, then that’s right not a reason not to make it.
So my concern was, looking at this document overall, it was not clear to me, as the final assessment, whether it was being assessed here that there was nothing that needed to be conceded or that there were reasons of impact why they didn’t want to concede it.
Mr Beer: Can we look, please, at another example – this involves Lynette Hutchings – whilst we’re looking at post-conviction disclosure. POL00060715. This is addressed at 435 to 436 in your report, Mr Atkinson.
Duncan Atkinson: Thank you.
Mr Beer: So POL00060715. This is an advice written by Simon Clarke of Cartwright King. If we just scroll through it, please. The offence is set out, the case history is described. If we carry on through the case history, and over the page, it sets out the prosecution case. If we continue, please. Then “Discussion”:
“The defendant has unequivocally admitted making false entries into Horizon in the belief that the balances would be corrected in the fullness of time … she stated in her prepared statement that she did not do so dishonestly. Had she chosen to advance that account at trial the jury would have been entitled to accept what she said and acquit her; or to reject the account and convict her. Thus the opportunity was there to seek an acquittal.”
Over the page. There’s a discussion about Eden in paragraphs 11 and 12; 13 addresses the defence statement; and then 14 addresses conviction. Mr Clarke says:
“It is not the purpose of this review, nor of the review process overall, to determine whether or not any particular conviction is unsafe: that decision is reserved to the Court of Appeal only. The purpose of this process is to identify those cases where the material contained in the Second Sight Interim Report would have met the test for disclosure as provided by the [CPIA], the Code of Practice enacted thereunder and the [AG’s] Guidelines on Disclosure, had that material been known to Post Office Limited during the currency of the prosecution and accordingly would or ought to have been disclosed to the defence.”
Then over the page:
“In this case I advise that, given the chronology and circumstances of the guilty plea, and the reference in the Basis of Plea to the leading case on the topic … the Second Sight … Report and the Helen Rose report would not have been disclosable during the currency of the prosecution and accordingly do not now fall to be disclosed.
“… had we [possessed] the material at the relevant time, we would not have disclosed [it] to the defence …”
Why do you say that this misunderstands the disclosure test?
Duncan Atkinson: It proceeds on the basis that there was a guilty plea and she, Ms Hutchings, could have contested this matter at trial, she chose not to, she had legal advice, so that’s down to her.
It doesn’t recognise that there was a stage before Ms Hutchings was arraigned and it was at that stage that the question should have been asked as to whether there was material that was capable of undermining the prosecution case or assisting hers that ought to have been disclosed.
And this is all concerning, as I read it, that the Second Sight review and the issues that it gave rise to, as to whether the operation of Horizon and material relating to the operation of Horizon had been properly appreciated and/or disclosed.
And to say “We don’t need to worry about this because she pleaded”, is to ignore the fact that there should have been disclosure before she had the opportunity to. To say “There’s a reference in her basis of plea to Eden, therefore, she was clearly advised by counsel”, ignores the fact that counsel had not had this material disclosed to them either and a failure to recognise that it was at least possible that counsel, told that the basis for the prosecution case was susceptible to challenge, may have given different advice to his client to one who was not told that.
And also, that in relation to any appeal against sentence that was potentially available, and/or to submissions that could be made to a judge before sentence, issues as to the operation of the system and confirmation of those issues by the prosecution, would have been of assistance to the defendant. It is a different thing for a judge to consider a case where the explanation is given that this was inadvertent rather than anything deliberately by the defendant, on the one hand, and to be – to have had confirmed by the prosecution, on the other.
Mr Beer: At that time and indeed today, the leading decision – in fact the operative decision – on post-conviction disclosure obligations was that of the Supreme Court in Nunn?
Duncan Atkinson: Yes.
Mr Beer: The decision was reflected in the then Attorney General’s Guidelines on Disclosure at paragraphs 59 and 60, the acid test being whether there presently existed information which might cast doubt upon the safety of the conviction?
Duncan Atkinson: Yes.
Mr Beer: That test is to be applied, have I got this right, irrespective of whether there was a plea or not, it’s material that might cast doubt on the safety of the conviction –
Duncan Atkinson: Yes.
Mr Beer: – however the conviction was obtained?
Duncan Atkinson: Yes.
Mr Beer: Overall, then, in these two cases, when you describe the approach to post-conviction disclosure as being, in the one case, concerning and, in the other case, involving a fundamental misunderstanding of the test to apply, are you saying that the approach that was being taken was inconsistent with the law?
Duncan Atkinson: Yes.
Mr Beer: Thank you.
Sir, we’re about to move to another case study, that of Peter Holmes. It’s 1.00, might we break until 2.00, please.
Sir Wyn Williams: Of course.
(1.00 pm)
(The Short Adjournment)
(1.59 pm)
Mr Beer: Good afternoon, sir. Can you see and hear us?
Sir Wyn Williams: Yes, thank you.
Mr Beer: Good afternoon, Mr Atkinson. Can we turn to Peter Holmes please?
Duncan Atkinson: Yes.
Mr Beer: In paragraphs 309 to 333 of your report – no need to display them, but they’re on page 114 and following – you deal with the prosecution of Peter Holmes. One of the things that happened was that interview, Mr Holmes said “It’s the Horizon system that has let us down”.
Duncan Atkinson: (The witness nodded)
Mr Beer: That was an interview taking place in September 2008. That was after a civil claim involving the Cleveleys branch and Mrs Julie Wolstenholme had been settled, after she raised Horizon integrity issues, after the formation in December 2005 of a group to examine Horizon integrity issues, after the trial involving Lee Castleton in 2007, in which he had directly challenged the Horizon system, and after a jury had acquitted Suzanne Palmer in less than ten minutes in 2007, her having raised issues with the integrity of the Horizon system.
Was there, to your understanding, any investigation of Horizon integrity or the figures produced by Horizon?
Duncan Atkinson: No.
Mr Beer: The investigation report recorded that Mr Holmes had spent many years in the police service, and that he had been a subpostmaster at the Monkseaton branch office for six or seven years. He was of good character. Should such good character have been brought into account when considering the investigation of an offence or the merits of prosecution?
Duncan Atkinson: It should certainly have been a factor in the public interest test. It would not have been the only factor or necessarily the decisive factor but it was a factor. I’m afraid I can’t speak to as whether it was taken into account in the charging decision because the public interest didn’t get a mention.
It was a factor relevant to the assessment of Mr Holmes’ credibility. He – as with any person of good character, their good character is a factor in their favour in the assessment of their credibility, again not decisively so, but a relevant factor in that regard as well.
Mr Beer: In fact, it was used against him in the investigation report –
Duncan Atkinson: Yes.
Mr Beer: – because he said that he hadn’t reported the accruing shortfalls showing on Horizon for some 11 months and the Investigator said that it was incredulous that he should not have done so, having spent many years in the police service and having been the subpostmaster for six or seven years at Monkseaton, so it was used against him.
Ought his previous position and the longevity of his service to be a factor in deciding whether to take seriously concerns raised by him in interview about the reliability of the Horizon system?
Duncan Atkinson: Certainly not as a reason not to take those matters seriously.
Mr Beer: Yes. In reality, does it matter who you are if you raise issues such as this in an interview, whether you’ve got good character or not, as to the pursuit of a reasonable line of inquiry?
Duncan Atkinson: No, but, as I said, the fact that you are of good character may support your credibility in raising an issue and perhaps give an extra underlining to why it needs to be investigated.
Mr Beer: Thank you very much. I’m going to move over the cases of Seema Misra, Lynette Hutchings, Joan Bailey and Alison Hall, and turn to Allison Henderson. That’s paragraph 515 of your report to 519 – I’m so sorry.
Yes, in paragraph 515 of your report, when you’re dealing with Mrs Henderson’s case, you say that her case was one where acceptance of her plea was dependent upon repayment and a lack of criticism of Horizon?
Duncan Atkinson: Yes.
Mr Beer: That’s a theme that you returned to in 649, which we looked at earlier –
Duncan Atkinson: Yes.
Mr Beer: – when you’re making your general points.
Would you accept that there is a difference between acceptance of a plea, on the one hand, and acceptance of a basis of plea, on the other?
Duncan Atkinson: Yes.
Mr Beer: You cite in 506, that’s page 179, if we just go to that, you say:
“On 16 November, the day on which it appears the second defence statement was served, Dianne Chan, prosecution counsel, reported ‘have spoken to a defence solicitor who indicated the defendant may be willing to [plead] to false accounting and pay money back. Taken instructions from Chris [a reference to Christopher Knight, the Investigator, we think] who has confirmed that he would be happy to proceed on that basis.’.”
You say that:
“[Mr Bowyer’s] 2014 review also recorded that the defence had told the Investigator by phone that the defendant might plead guilty to false accounting.”
Then Mr Wilson’s response to Dianne Chan’s email said:
“Clearly if there were to be a plea to false accounting but on the basis that the Horizon system was at fault then that would not be an acceptable basis of plea with the prosecution.”
Do you agree that what was being said by Mr Wilson was not about acceptability of plea but rather acceptability of a potential basis of plea?
Duncan Atkinson: That’s certainly an interpretation of that. It’s not, I have to say, the interpretation the Court of Appeal reached but it is an interpretation of it.
Mr Beer: Was the potential for a guilty plea to false accounting accompanied by repayment of shortfall an issue first raised by the defence?
Duncan Atkinson: That’s not altogether clear because it’s not clear who, in the conversation between Dianne Chan, who was prosecuting counsel, and defence counsel, who it was who first raised repayment. Certainly, it was part of what was communicated by her to those who instructed her.
Mr Beer: So it’s not clear who was tethering repayment to the plea?
Duncan Atkinson: No.
Mr Beer: What’s the basis for your view that the Post Office made acceptance of the plea to false accounting conditional upon repayment?
Duncan Atkinson: In part, I confess I was influenced by that being the finding of the Court of Appeal in that case, and I quote that at paragraph 511, and the fact that the – I was influenced, I suspect, also, by the time I dealt with the case of Mrs Henderson, I had already dealt with other cases where there had been that connection, those, for example, of Mrs Hall.
Mr Beer: Thank you. Can we move to the case of Grant Allen, please, which you address from your paragraph 516 onwards on page 182. Can we look at some of the underlying material here, please.
Can we start please with POL00097138. Again, this principally involves a series of questions about liaison between Post Office, Fujitsu and Mr Jenkins –
Duncan Atkinson: Yes.
Mr Beer: – in the preparation of evidence, whether witness statements or reports, for the prosecution of Mr Allen.
If we scroll down, please, an email from Rachael Panter – if we just scroll up we’ll see that it’s on 16 November, thank you. Rachael Panter, she is a lawyer at Cartwright King, to Gareth Jenkins:
“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 cases …”
We’ve seen a similar email to this, I think, twice, yesterday.
Duncan Atkinson: Yes.
Mr Beer: “… to date, most, if not all cases raising the Horizon system as an issue have been unable/not willing to particularise what specific issues they may have with the system and how that shapes the nature of their defence.
“… I would like to serve [your report] in each case listed below.”
We can see that one of them is Mr Allen, number 6, at Chester Crown Court.
Duncan Atkinson: Yes.
Mr Beer: If we scroll down, please. Just under the “Grant Allen” highlighted yellow part it says:
“I would like to serve your report in the remaining cases and have attached a case summary of each listed above so you may familiarise yourself with the facts of each case.”
Then, if we go over the page – sorry, it was at the foot of the previous page, actually:
“In order for me to serve your report in time, please could you either send copies of your report via Special Delivery and/or as an email attachment.”
The paragraph above, the request was:
“… to read the case summaries … send 5 original signed and dated copies of your report to [her].”
Duncan Atkinson: Yes.
Mr Beer: Can we see what happened next, please, FUJ00153856. Then scroll down, please. Mr Jenkins replies by saying:
“Can’t you use the report I have already sent you? There is no mention of the case on the report”, ie no mention of any of the cases that you have listed.
“You should really be addressing such requests through Post Office Limited rather than directly to myself.
“… there is no commercial cover …”
Then up the page, please, “concerned about the approach taken”, we saw that yesterday. Then up the page, again. Keep going to Ms Panter’s email. She says:
“As I provided a list of cases rather than approach each individual Investigator for each case, to then [re-pose] the same question … I thought it would save … time and duplication …
“In response to your email Gareth, I do intend to use the report that you have already provided. 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 by the defendants in my list of cases.”
Reading on:
“What I propose to do is serve your statement on each defence solicitor so that the issue of Horizon is then addressed. That will then place the onus on the Defence to specify what if anything, they say is wrong with the Horizon system …
“That is why it is important for you to consider the case summaries that I have provided so that you are familiar with each case.”
Looking at that exchange, as it stands at that point in time, were there problems with the approach that was being taken?
Duncan Atkinson: Yes, we considered yesterday the issues potentially with the generic statement and what it did or did not do, and here we have further communication in relation to that generic statement and the decision that was taken to rely on, effectively, bald assertion that there was “nothing to see here” in relation to the operation of the Horizon system, rather than to look at the data on a case-by-case basis, on a branch-by-branch basis, to identify whether there was something to see or not and, if so, what.
Mr Beer: So the Post Office wasn’t itself considering each case on its merits and was not instructing Mr Jenkins as an expert in each case?
Duncan Atkinson: No, that’s right. It was effectively a one-size-fits-all answer to any suggestion from any postmaster that there may be an issue with Horizon, without actually looking to see whether there was, in their case.
Mr Beer: It, the Post Office, was not providing Mr Jenkins with any instructions specific to the case in question?
Duncan Atkinson: Or data, no.
Mr Beer: It was proposing to give or did give Mr Jenkins nothing more than a bare case summary in each case?
Duncan Atkinson: Quite.
Mr Beer: That’s aside from the limitations of the statement, the generic statement, itself?
Duncan Atkinson: Yes.
Mr Beer: What did you understand the provision of a case summary to be for; what was its purpose?
Duncan Atkinson: Again, it wasn’t altogether clear to me what its intended purpose was, other than so that Mr Jenkins would know perhaps which post office it was, the name of the defendant, the amount of the shortfall. It perhaps would have given him some indication as to what the postmaster had said in interview about it but it wasn’t asking him to do anything with that information –
Mr Beer: Because –
Duncan Atkinson: – other than to know it.
Mr Beer: I’m sorry. As we see here, the Post Office was, via its agent, telling Mr Jenkins it didn’t matter that he had not referred to a specific case in his report and yet it was telling him to read the case summary –
Duncan Atkinson: Yes.
Mr Beer: – for each case?
Duncan Atkinson: Yes.
Mr Beer: Was that approach made better or worse by the fact that the statement, on its face, did not explain that it was itself responsive to the four questions that we saw earlier?
Duncan Atkinson: It made it worse, in the sense that no one coming to a particular case from the defence perspective, for example, or a court’s perspective, would know – would properly understand what this statement was or where it had come from.
Mr Beer: And the genesis of it?
Duncan Atkinson: Absolutely.
Mr Beer: And, if it’s right that it contained limitations, what those limitations were?
Duncan Atkinson: No.
Mr Beer: Can we go forwards to FUJ00153865. We’ve moved forward now to the end of November and an email from a different solicitor at Cartwright King, in the case of Allen, and also in the case of Sefton and Nield, Andrew Bolc, copied to Ms Panter, to Mr Jenkins:
“Please find enclosed outlines of the two cases which involve me.
“Of the two … Sefton and Nield is the more urgent … concentrate on that one first. The Allen case is only for plea and case management on 10 December. In an ideal world I would like to serve a report before the 10th if possible …”
That doesn’t improve the extent of the instructions that Mr Jenkins is being given, does it?
Duncan Atkinson: No.
Mr Beer: If we look, please, at FUJ00124105, Mr Jenkins replies on 3 December, adding, I think, Penny Thomas to the chain, saying to Mr Bolc:
“Thanks for the info you have supplied me with on these two cases. I thought I should try and clarify exactly what you want from me.
“My understanding from Rachael was that all that is required is a signed version of a standard report I produced a couple of months ago … If that is the case I can get that produced, scanned and emailed to you in a couple of days.
“However having read through the info you’ve given me, perhaps you want me to cover some further things. Some observations …”
Then Mr Jenkins sets out some further lines of inquiry –
Duncan Atkinson: Yes.
Mr Beer: – number 1, in the Sefton and Nield case and, number 2, contrasting the Allen case to the Sefton and Nield case. Would you agree that at this point Mr Jenkins appears to be seeking clarification as to exactly what it was that lawyers wanted him to do, given that they wanted a standard statement because these cases, they said, didn’t give rise to specific Horizon systems?
Duncan Atkinson: It’s a combination of seeking clarification, because he does say that he’s trying to clarify, but also an offer of the further help that he could give on particular issues that he’s spotted from the case summaries, I presume, that he had seen.
Mr Beer: Can we move forward to FUJ00153881. If we scroll down, please, and again, if we just scroll up to catch the date it should be 4 December from Mr Bolc to Mr Jenkins, in the case of Allen:
“I have just spoken to the solicitor for Grant Allen.”
Then skipping a paragraph:
“I attach an extract from Mr Allen’s interview. As in the case summary I sent you he is trying to suggest that an initial loss of £3,000 is attributable to lost data which has not reached Head Office because of installation problems. Are you able to comment on this scenario at all? Ultimately we would need to discredit this as an explanation that holds any water. He denies stealing the subsequent losses and therefore by implication may be seeking to blame the system for these losses as well.”
Is the email from Mr Bolc, the lawyer, consistent or inconsistent with the proper instruction of an expert, in that it appears informally to ask Mr Jenkins if he can comment at all on a defence explanation?
Duncan Atkinson: It’s inconsistent but not just for that reason. There’s potentially no issue, depending on how it is done, with putting a scenario to an expert and asking for their assessment of it. But here, the tenor of the message is rather different, and the use of the word “we”, “Ultimately we would need to discredit this as an explanation that holds any water”, and the approach being to discredit this as an explanation that holds any water, neither of those things really fit – well, not “really fit” – neither of those things fit with the instruction of an independent expert by someone acting as a minister of justice.
Mr Beer: So rather than doing what it should do, which was, if it hadn’t been done before, to state the expert’s duties of independence, it actively sought to suggest the outcome?
Duncan Atkinson: Yes, and that they were working as a team to get there.
Mr Beer: Can we look, please, at FUJ00153881 – that’s in fact this document and the reply further up the page, please. If we carry on to see Mr Jenkins’ reply, if we keep going. So it’s the next day 5 December:
“I’ve had a look at the statement here and I think it might be helpful to have a dig as to exactly what went on in the Branch at the time of the loss. I think I understand what he is claiming. However, where there are comms problems it is normal to recover any missing data once the comms are sorted out (provided it is within 35 days), so this shouldn’t be a reason for a loss. Also there are processes in place to retrieve outstanding data where there are extended comms issues lasting more than 7 days, so as to meet contractual obligations regarding …
“I could just make a general statement relating to that or if we retrieve data from the time I could check out exactly what [is happening].”
Skip the next paragraph. We should note:
“[Post Office] have not requested any audit data … nor been asked about Helpdesk calls …
“Is it worth asking Post Office to request such data for me to examine before putting together a specific statement … or is a simple generic one sufficient?”
Then some cost issues.
So Mr Jenkins highlighting no requests for audit data or Helpdesk call records and that there are two ways of going about this, and asking for instruction as to which the prosecutor required.
Duncan Atkinson: Yes.
Mr Beer: If we go further up the page, please. Second line, Mr Bolc’s reply:
“I would appreciate if you could add your general comments at this stage regarding the safeguards in place for comms problems to your statement, and send this to me as before and I will refer back to the Post Office to consider whether we go on to request the retrieval of data for your further analysis.”
So this exchange, I think you’ll agree, shows that Mr Jenkins informed the Post Office lawyers that he could examine the data to work out “exactly what had happened at the branch”?
Duncan Atkinson: Yes.
Mr Beer: The Post Office said that they didn’t want this to occur in response –
Duncan Atkinson: Yes.
Mr Beer: – in the first instance. If we look, please, at POL00089380, we should be able to see an email between Mr Bolc and the Investigator:
“Please see [Mr Jenkins’ report]. I had asked him to look at non-polling issue raised in [the] interview and I believe that he had dealt with it adequately … Gareth tells me that it is in fact possible for him to retrieve the actual data from this time to see what actually occurred at this branch, and that the retrieval of the data is free to POL … it will take approximately two and a half days for him to look at it and analyse what it means and this will be chargeable to POL at £2,500. I have told him at present that we do not wish to pursue this option unless it becomes unavoidable.”
Then some instructions.
Mr Jenkins then signed a witness statement in Mr Allen’s case on 17 December. This was identical to the general statement, the generic statement that had been signed back earlier in the year, except for the additional paragraph that had been included addressing the non-polling data. Can we look, please, at that, POL00089077. Thank you.
This is the statement dated 17 December, it’s quite hard to read. I’m not going to go through it because we’re familiar with it as the generic statement but just look at the addition which is on page 2, if we scroll down. Just scroll up a moment, he says:
“I have been asked to provide a statement in the case of Grant Allen. I understand the integrity of the system has been questioned and this report provides some general information regarding the integrity of Horizon.”
Then if we scroll down. There is then, in the paragraph underneath, the explanation of Mr Jenkins’ evidence on the non-polling issue. Then over the page, at the end of that paragraph that’s at the top of the page, Mr Jenkins says:
“I have not had an opportunity to examine the detailed logs from this period to see whether there were any issues, and any justification in the claim that this resulted in apparent system losses of £3,000 as claimed.”
Duncan Atkinson: Yes.
Mr Beer: So he has provided the generic explanation beforehand?
Duncan Atkinson: Yes.
Mr Beer: But made it clear, is this right, that he’s not actually looked at the data?
Duncan Atkinson: Yes.
Mr Beer: You tell us in your report that this was an unfortunate failure in the evidence, given that he, Mr Jenkins, was aware of the specific issue raised by Mr Allen and didn’t follow through in the investigation of it, but this appears, however, to have been a Post Office decision?
Duncan Atkinson: Yes.
Mr Beer: Looking at that underlying material that we’ve examined, rather than it appears to have been a Post Office decision not to obtain this data, the evidence suggests that it was a Post Office decision not to obtain the data?
Duncan Atkinson: Yes, the material that you’ve just gone through is more than I had seen when I wrote my report.
Mr Beer: So would you agree that it’s clear that, in the face of Mr Jenkins saying that the obtaining of that data would resolve the question of what had happened in branch, the Post Office took the decision not to obtain the data?
Duncan Atkinson: Yes.
Mr Beer: Was that consistent or inconsistent with its duty to pursue reasonable lines of inquiry?
Duncan Atkinson: Inconsistent.
Mr Beer: And consistent or inconsistent with its duties of disclosure more generally?
Duncan Atkinson: Inconsistent.
Mr Beer: In paragraph 545 of your report, which is on page 192, you say:
“The greatest concern in this case is the instruction of and reliance on expert evidence from Mr Jenkins to rebut any question as to the integrity and reliability of Horizon. First this is because his offer to examine the data relating to Mr Allen’s branch and his complaints was rejected in favour of a generic statement.”
We’ve seen that in the underlying material.
Duncan Atkinson: Yes.
Mr Beer: “This was clearly a missed opportunity for which little justification was advanced.”
Do you stand by that comment in the light of the underlying material?
Duncan Atkinson: Yes.
Mr Beer: “Secondly, given that his generic statement was relied on, it is of note that Mr Jenkins was in possession of material directly relevant to that question, which is nowhere referred to. His duty of disclosure ought to have at least required consideration of this, and I have seen no communication to suggest this.”
Again, do you stand by that comment in the light of the material we’ve looked at?
Duncan Atkinson: Yes, and I also have in mind there the material I’d seen in context of the case of Mrs Misra and the discussions back, in memory, from 2010 about bugs in the system, and it is for others, not me, to opine as to whether those bugs had any potential relevance to the issues of Mr Allen’s case. The generic statement didn’t leave any room for there being any apparent bugs at all in the system and that, I think, was the concern I was also addressing there.
Mr Beer: You continue:
“A generic report was served, which was flawed both in relation to the issue and also in relation to the limitations of the analysis of actual data that would have confirmed whether the Horizon system was operating correctly or not. Whilst there was discussion of this with Mr Jenkins, there does not appear to have been any disclosure of these important limitations. These represented very real disclosure failings in relation to expert evidence that the prosecution was relying on.”
Dealing with the two things that you address there, content of the report first, then disclosure second, you say the report, the statement, was flawed in relation to the limitations of the analysis of the actual data that would have confirmed whether or not Horizon was operating correctly. Given that Mr Jenkins had indicated to Mr Bolc that the data would show what had happened at the branch, given that Mr Bolc, in conjunction with the Investigator Mr Bradshaw, had decided that Mr Jenkins shouldn’t review the data and, given that Mr Jenkins stated in his witness statement, in that paragraph I showed you, that he hadn’t examined the data, would you agree that it was the Post Office that was responsible for that flawed approach?
Duncan Atkinson: Ultimately, yes.
Mr Beer: As to disclosure, which is the second and third sentences of that passage I’ve just read you there, who was responsible for the very real disclosure failings that you identify?
Duncan Atkinson: Well, the answer is both the Post Office as the prosecutor and Mr Jenkins as the expert, because both had disclosure responsibilities, and it was for the expert to comply with his responsibilities as an expert as to disclosure and it was certainly for the Post Office as the prosecutor to comply with theirs.
Mr Beer: Thank you. Back in paragraph 528 of your report which is on page 186, you refer to Mr Jenkins’ September 2010 witness statement – or report, rather – concerning the receipts and payments mismatch bug –
Duncan Atkinson: Yes.
Mr Beer: – and state that he did not disclose those issues in Mr Allen’s case?
Duncan Atkinson: No.
Mr Beer: I think that’s one of the things you were cross-referring back to there –
Duncan Atkinson: Yes, yes.
Mr Beer: – the cross-reference back to the Misra case. Then forward to paragraph 540 you say that omission is of particular concern.
Duncan Atkinson: Yes, insofar as I understood Mr Jenkins’ report from September 2010 and put that against questions of the integrity and reliability of the system that his generic statement sought to address, it seemed to me that there was a disjunct between what was known by him and what was set out by him.
Mr Beer: As we’ve seen in paragraph 545, you said that Mr Jenkins’ own duty of disclosure ought to have at least required consideration of disclosure of that issue and you have seen no communication to suggest that occurred?
Duncan Atkinson: That’s right and because, again – and I may just have completely misunderstood the technical nature of all of this – but, on the face of it, the September 2010 report represented material that was inconsistent with or potentially inconsistent with conclusions that he was asserting in the generic statement and, as such, he had a duty to draw attention to that, irrespective of the prosecution’s own unquestionable obligation to do so.
Mr Beer: Do you agree, however, that in the material that you have seen, there’s nothing to suggest that the Post Office informed Mr Jenkins of any disclosure duties that he owed personally and, in particular, at the time of the provision of the generic statement as an expert?
Duncan Atkinson: No, that’s right.
Mr Beer: I think it’s right that your knowledge of the Misra case would indicate to you that the Post Office lawyer in that case, Jarnail Singh, was aware of the Callendar Square bug, the locking issue that had caused transactions to be lost, Mr Jenkins’ email to him saying that there had been 200,000 faults recorded on the system, and the provision of the receipts and payments mismatch bug report to Jarnail Singh?
Duncan Atkinson: Yes.
Mr Beer: Is there anything in the papers to suggest that, in the Allen case, Mr Singh considered that these needed to be explained or disclosed when the generic statement was being sought?
Duncan Atkinson: I’m afraid not.
Mr Beer: More generally, is there anything to suggest that Mr Singh gave consideration to whether any of those issues needed to be referred to or explained when the generic statement was being sought, ie not just in the context of the Grant Allen case?
Duncan Atkinson: Not that I’ve seen.
Mr Beer: Ought the drafts of Mr Jenkins’ original witness statements, in this case Grant Allen, to have been recorded on the schedule of unused material?
Duncan Atkinson: As in drafts of the generic statements as it evolved in this case? Yes, they should.
Mr Beer: In particular, would you agree that that may have revealed the extent to which Mr Jenkins had been asked to address four questions and whether he had understood that he was being asked to answer only those questions and nothing else?
Duncan Atkinson: Yes.
Mr Beer: Have you seen any evidence that in Mr Allen’s case the Post Office gave any formalised or reasoned consideration to obtaining, recording and then disclosing information about Horizon hardware or software faults held by other departments within the Post Office?
Duncan Atkinson: No.
Mr Beer: A duty of disclosure doesn’t start with the prosecutor going to third parties; is that right? It must look at which material it itself possesses?
Duncan Atkinson: Yes, I mean, it can think about both things at the same time but it has to think about what it’s got itself, absolutely.
Mr Beer: What would you have expected for a prosecutor of this nature, ie a repeat player of many year’s vintage – it had been in the business of prosecuting people for hundreds of years – to have had by way of systems for retaining, then obtaining by a prosecution division, analysing, recording and then disclosing?
Duncan Atkinson: Gosh. As a prosecutor, they should have recognised that they had duties under statute to complete the three Rs in relation to material. They needed to recognise that they were relying on the operation of a computer system as the basis for a whole series of prosecutions and that the reliability of that system was a potential issue in those cases, and that material that was relevant to the question or potentially relevant to the question of reliability had to be retained, had to be reviewed and had, ultimately, to be disclosed.
And they had to recognise that, if they were in the Criminal Law Department and that the material as to the operation of the Horizon system was kept in a department down the corridor, they needed to go down the corridor. They couldn’t just look at what was in their own office.
Mr Beer: Did you see any appreciation by either the Investigators or the lawyers that there were lots of other departments down the corridor, including departments that had, as a function liaising with the manufacturer and operator of the system, Fujitsu, over faults with it?
Duncan Atkinson: No, I think the only departments that would get mentioned in, for example, investigators’ reports, other than the Criminal Law Department that they would be sending their report to, were the Contract Managers and the Auditors. And that’s because it was the Auditors that were identifying the shortfall on the system in the first place and the Contract Manager who would be making a decision about whether to sack the postmaster or not. I think that was it.
Mr Beer: So no recognition that, down the corridor, as you put it, elsewhere within the business, there were whole teams of people, most of whom were called managers, whose job it was to liaise on a daily basis with the Post Office or between the Post Office and Fujitsu, over Horizon faults?
Duncan Atkinson: Whether they appreciated that or not, the material I’ve seen doesn’t say, because it doesn’t mention them.
Mr Beer: No. Instead, was the vista that was looked at by Investigators and prosecutors, what is within the Investigation Team and what is within the prosecution team, sometimes extending to what happened at audit?
Duncan Atkinson: Yes, and so by way of example of that, they might, because they had it from the audit, look at transaction logs which are derived from – as I understand it, from the Horizon system, but were things they had because the auditor had got to them. They wouldn’t look at anything that they hadn’t got, as a result of that process or ask for it.
Mr Beer: Thank you. Can we turn to the case of Angela Sefton and Anne Nield.
Duncan Atkinson: Yes.
Mr Beer: I think you’ve noted that these cases were being dealt with in an overlapping way, including, in an overlapping way, with Allen; is that right?
Duncan Atkinson: Yes, and the email from Ms Panter we looked at earlier had a little list of cases, including that of Mr Allen, including that of these two, and Mr Ishaq, as well.
Mr Beer: Therefore similarly, if we turn up FUJ00124105, in the case of Sefton and Nield too on 3 December 2012, Mr Jenkins is making the point back to Mr Bolc:
“Please tell me exactly what you want from me, also in relation to the Sefton and Nield case.”
Duncan Atkinson: Yes.
Mr Beer: He makes the point in the email that he hadn’t been presented with any audit data relating to any of these cases, including Sefton and Nield to examine –
Duncan Atkinson: Yes.
Mr Beer: – and he makes suggestions about what might be done?
Duncan Atkinson: Yes.
Mr Beer: If we go to POL00089394, and go down to 3 December, reply from Mr Bolc:
“The only clarification I think I need at the moment relates to the timeline, 2005 removal of cash … Could you clarify what this means and discount it as a possible explanation for the losses beginning to occur at that time in the Sefton and Nield case.
“The audit reports will simply show the money missing so will not take things further.”
Again, does that contain the loaded language about which you were critical before?
Duncan Atkinson: Yes.
Mr Beer: Because it’s an instruction as to what to do: discount something as a possible explanation?
Duncan Atkinson: Yes.
Mr Beer: Would you say that Mr Bolc’s rejection of obtaining the ARQ records in these cases was consistent or inconsistent with the approach of an open minded prosecutor?
Duncan Atkinson: Inconsistent. It was a reasonable line of inquiry, it was allied almost inevitably to duties of disclosure.
Mr Beer: Mr Jenkins signed a witness statement in this case on 5 December 2012, that’s POL00059424. I think this is 5 December, maybe 6 December 2012, identical to the generic statement that had been signed back in October 2012, except for an additional paragraph addressing an aspect of Ms Sefton and Ms Nield’s case. If we scroll down, we can see that. It begins, in substance:
“I have been asked to provide a statement in the case of Angela Sefton … I understand that the integrity of the system has been questioned and this report provides some general information regarding the integrity of Horizon.”
Then if we go over the page, please, a generic statement that we’re all familiar with. If we carry on, please. If we scroll through, just to see that this is the generic statement that we’re familiar with –
Duncan Atkinson: Yes.
Mr Beer: – and keep going. Then just over the page, please, we can see the line at the conclusion, where Mr Jenkins says:
“… I would conclude by saying I fully believe [the Horizon system] will accurately record all data that is submitted to it and correctly account for it … it cannot compensate for any data that is incorrectly input into it as a result of human error, lack of training or fraud (and nor can any other system).”
I think I skipped over – I think it was page 2, if we can just go back to page 2.
Duncan Atkinson: Yes, there’s a reference to the defence statements on page 2.
Mr Beer: Yes. If we scroll down, please. Yes, there:
Losses started in 2005, and that Horizon was installed at that time. Horizon was rolled out in 1999 and 2002, so I am surprised at the reference to 2005. There was a change implemented in late 2005, the removal of the weekly cash report. They were thoroughly tested at the time. There’s been no indication of there being any issues regarding this change and the change has no impact on the overall integrity of the system as outlined in the statement.
You’ve seen now how the generic statement came about and the emails involving Ms Panter and Mr Bolc, on the one hand, and Mr Jenkins, on the other, in November 2012, insofar as that statement was adapted to deal with the Sefton and Nield case.
Duncan Atkinson: Yes.
Mr Beer: Would you agree that those underlying communications demonstrate that it was the Post Office’s idea and intention that the statement should be a generic one?
Duncan Atkinson: Yes.
Mr Beer: That it was represented to Mr Jenkins, secondly, that the cases in which his generic statement was being provided were not cases which raised specific Horizon issues?
Duncan Atkinson: Specific issues, no.
Mr Beer: That when he sought clarity on what that meant and what could be done, the Post Office, through its lawyers, declined suggestions that further investigations be carried out?
Duncan Atkinson: Yes.
Mr Beer: He wasn’t in any case, fourthly, provided any instructions, proper instructions, as an expert in these cases?
Duncan Atkinson: No.
Mr Beer: Less still instructions that were specific to the issues that arose in any of these cases?
Duncan Atkinson: Quite.
Mr Beer: In paragraph 566 of your report, which is on page 199, you say that Mr Jenkins’ statement in the Sefton and Nield case is generic in its content. It mirrors that served in the case of Allen, in which Mr Jenkins’ statement reviewed data specific to that defendant and said he had also run through hypothetical issues with integrity, and concluded there was no evidence of any issues?
Duncan Atkinson: Yes, in fact, it’s clearer to me now from the material I’ve further seen that he hadn’t reviewed data specific to that defendant in the way that I thought he had.
Mr Beer: Thank you very much. You tell us in paragraph 565, which is on page 198, that there’s no reference by Mr Jenkins in his statement to his own 2010 report addressing a fix for an identified bug.
Duncan Atkinson: Yes, the same point I made in relation to Mr Allen and that case.
Mr Beer: We should read that across?
Duncan Atkinson: Yes.
Mr Beer: Thank you very much.
Sir, it’s 2.55 now. I wonder if we could take the afternoon break now and return at 3.10.
Sir Wyn Williams: Can you just give me a clue about how much longer you will be and whether or not there are likely to be questions from Core Participants’ representatives?
Mr Beer: Sir, yes, I’m intending to pick up at 3.10 and finish by 4.00. I think there will be some questions from two or three CP representatives, each of which is five minutes, or so.
Sir Wyn Williams: Right. Fine. Thank you.
(2.56 pm)
(A short break)
(3.10 pm)
Mr Beer: Good afternoon, sir, can you see and hear us?
Sir Wyn Williams: Yes, thank you.
Mr Beer: Thank you very much, sir.
Can we turn to the case study, Mr Atkinson, lastly, of Khayyam Ishaq. Can we dive straight in with the material, please, by looking at POL00059481. Again, this about the genesis of Mr Gareth Jenkins’ statements.
If we scroll down, please, email from Mr Jenkins to Ms Panter of 8 January. Copied to Penny Thomas:
“Rachael,
“I’ve taken my previous statement and amended it to refer to the Ishaq case.”
That’s the generic statement that he’s saying he’s taken.
Duncan Atkinson: Yes.
Mr Beer: “Reading through the Prosecution and Defence Summaries, I don’t think there is anything for me to comment on specifically.
“Please can you confirm this is all you need in this case, and if so I’ll get a signed copy together with the related exhibits to you.”
Then if we scroll up, please.
“Morning Gareth
“Thank you for your statement which I have had an opportunity to read. There is nothing that you need to add, it covers everything.”
Then forwarded by Ms Panter to Martin Smith, if we scroll up:
“Please see below. I have read the expert’s report and it is perfect.”
In your report, it’s paragraph 611, on page 215 – no need to display it at the moment – you characterise generally Mr Jenkins’ statement of 15 January 2013, which is the one being referred to in these emails, as a generic one.
Duncan Atkinson: Yes.
Mr Beer: In the light of the emails that we’ve just looked at, would you agree that this was a case in which the Post Office sought a generic statement from Mr Jenkins?
Duncan Atkinson: In the main, yes, although the email chain that we’re looking at here, the email that we started at was a response from Mr Jenkins to an email from Ms Panter on –
Mr Beer: Yes, if we scroll down in this chain. Sorry to speak over you, Mr Atkinson.
Duncan Atkinson: No, not at all. The email header is at the bottom of page 3 but the content is on page 4. So the bottom of that page.
Mr Beer: Keep going.
Duncan Atkinson: And so Ms Panter is sending Mr Jenkins and copying a cast of thousands into a list of cases and indicating what, in some instances, she is sending him.
Mr Beer: If we scroll down a little further.
Duncan Atkinson: Point number 5, in relation to the case of Mr Ishaq, she provided him with a number of documents for his consideration, having asked him to prepare a report in that case and essentially setting out what Mr Ishaq was saying. And so it is not absolutely clear what it is she was asking him to do, other than to prepare a report, but she was not, on the face of that paragraph, telling him not to properly examine the issues in relation to Mr Ishaq.
I can understand, given the context and the history that we have gone through, why he may have considered she was just asking him to sign a copy of his generic statement for Mr Ishaq’s use but, equally, it was open to him to have, as he did in other cases that we’ve looked at earlier, flag up things that had occurred to him, having looked at those materials.
Mr Beer: Indeed, when he did provide a generic statement, strictly generic statement, she, Ms Panter, regard it as “perfect”?
Duncan Atkinson: Yes.
Mr Beer: Here –
Duncan Atkinson: I don’t share her view as to its perfection.
Mr Beer: Here she’s providing him with a copy of the indictment, the summary of facts, and the defence case statement –
Duncan Atkinson: Yes.
Mr Beer: – and identifying a claim by Mr Ishaq that he was not dishonest, he had to make reversals in order to balance and that there had been a malfunction with the Horizon system?
Duncan Atkinson: Yes.
Mr Beer: Can we go forwards, then, a couple of weeks, until after this statement had been signed off, to the 31 January 2013, POL00089427. If we scroll down, please, to 31 January. There we are, thank you. Rachael Panter to Gareth Jenkins and lots of other people:
“The week of 11th … will be fine …”
Sorry, if we can scroll down a little further, and again:
“Ishaq – Having served your report, the defence have queried it and are claiming that Ishaq had to make false entries in order for the figures to reconcile, as the Horizon system kept malfunctioning.”
That is something that he’d originally said?
Duncan Atkinson: Yes.
Mr Beer: “Please could you make a note in your diary as you will be needed to clarify our position with Horizon.”
Then can I just check there’s nothing underneath this email. Yes, if we just scroll up, please:
“Our barrister has asked if you could read the Defence case statement attached and make a list of your initial thoughts on the assertions he is making. We may need you to add a few of these comments into your report so that each issue is addressed.”
Do you consider it an appropriate or inappropriate approach to send a defence statement to a prosecution witness, whether an expert or not, for generalised thoughts or comments?
Duncan Atkinson: It’s unusual, certainly, in relation to an expert, and I can’t imagine it happening in relation to a non-expert witness.
Mr Beer: In particular, was it appropriate, given the context, that the Post Office had not given Mr Jenkins the kind of instructions which ought to have been provided to an expert, nor provided him with all of the material relevant to the issues in the case, nor giving him instructions as to what material himself to obtain?
Duncan Atkinson: No, quite.
Mr Beer: Looking at what should have been done, would this be right: the lawyers and the Investigator should have looked at the defence statement and seen what disclosure obligations it gave rise to?
Duncan Atkinson: Yes.
Mr Beer: Looked for what issues that it raised and which questions, therefore, required to be answered, and whether they were to be answered by expert or lay evidence?
Duncan Atkinson: Yes.
Mr Beer: If expert evidence, properly to have instructed an expert with written instructions complying with the obligations I mentioned earlier?
Duncan Atkinson: Yes.
Mr Beer: Do you agree that, in addition to being provided with relatively scant information – an indictment, a case summary and a defence statement – asking Mr Jenkins to comment on the defence case or provide comments on a defence case was risky?
Duncan Atkinson: I suppose it would depend on what they planned to do with what he came back with but, certainly, if they were then going to comply with their obligations properly, yes, it was.
Mr Beer: I mean, previously, the instructions had been “Don’t look at the specifics of any case, your generalised generic statement will do”. They were now saying, “We’ve got a defence statement here, can you provide comments on it?” and you’re saying that the risk that arose or the caution that needed to be applied was dependent on what was intended to be done with the reply?
Duncan Atkinson: Yes, and I suppose the issues might arise if Mr Jenkins identified something in an aspect of the defence statement that was nothing actually to do with him, and expressed his view, for example, on the honesty or dishonesty of someone. That would give rise to issues in and of itself. But, assuming that he focused on those aspects that had a technical element to them, then clearly his answers to them were, potentially at least, disclosable and, given the lack of focus as to what they were asking of him, it could give rise to all kinds of disclosure issues because his answers were rather unprepared by anything they’d given him.
Mr Beer: This shift in approach from “the generic will do”, to now “We’re delving into the specifics of a case”, was that a moment for the lawyers to grasp the instruction of an expert with both hands and to do it properly?
Duncan Atkinson: Yes.
Mr Beer: Can we look, please, at Mr Jenkins’ comments on the defence case statement, POL00059602, “Comments on Ishaq [defence case statement] DCS”, authored by Mr Jenkins on 1 February. He says he’s been asked to comment on the defence case statement:
“… I have copied in the [statement] below in blue font and added my comments in black font.
“I’m not sure that the responses are of much use and I don’t think there is anything that can really be added to my statement as a result. However if you feel any of this could usefully be added I’m happy to be convinced.
“Much of it relates to requiring further data for analysis, and past experience indicates that help may be required in understanding it.”
I think you’ve seen this document.
Duncan Atkinson: Yes.
Mr Beer: Mr Jenkins, in addition to suggesting that further data may be required for analysis and that help may be needed in order to understand it, indicates, in relation to Horizon malfunctions, that:
“If the defence can specify some examples of this, I’m happy to investigate. However, I would contend that the system doesn’t malfunction with leaving some trail to indicate what has happened. Without examining the logs it is difficult to be more specific.”
In the light of that, do you agree that, at the very least, there ought to have been a discussion or a formal follow-up to the comments made about the need for further data analysis –
Duncan Atkinson: Yes.
Mr Beer: – in order for Mr Jenkins to be able to look at the system malfunctions that Mr Ishaq had complained about?
Duncan Atkinson: Yes, well, it’s again a two-stage matter. So far as the prosecution’s obligations are concerned, Mr Ishaq had raised concerns from experience with the operation of Horizon. They were being told by their expert that an analysis of the data would assist in relation to that, and that they didn’t need to wait for Mr Ishaq to give them further and better particulars to know that that’s what clearly needed to happen next.
If there were further and better particulars from Mr Ishaq, clearly that would further aid the process but they weren’t an essential prerequisite to anything being done at all.
Mr Beer: In paragraph 611 of your report, that’s page 215, you say:
“… the default statement and exhibits of Gareth Jenkins were served in this case. As has been discussed before its service, the statement is a generic one.”
Do you agree that the provision and then service of a generic statement reflected the Post Office’s intention that the statement be a generic one?
Duncan Atkinson: Yes.
Mr Beer: Although Mr Jenkins explained his ability further to investigate the specific malfunctions of which Mr Ishaq had raised, the Post Office did not, in fact, ask Mr Jenkins to do so?
Duncan Atkinson: No, that’s right.
The further observation I’d make about that, though, is that Mr Jenkins was being told that he was – in the earlier emails we’d looked at from Ms Panter, was being told that he was going to be called at trial to give evidence as to the integrity of the Horizon system. In his mind, to do so needed – in that case, and given what was being said by the defendant in that case, he needed to look at the underlying data. So it wasn’t just a matter for the Post Office, it was a matter for the expert, exercising independent judgment, to make clear to them that to do that he would need to look at the data, rather than it was just an option.
Mr Beer: Are you saying that that should have been done by him because he knew that he was going to be called and there would therefore come a moment at which it would be crunch time?
Duncan Atkinson: Yes.
Mr Beer: He would be asked or he might be asked about specifics?
Duncan Atkinson: So, at the least, he could have said in the course of these exchanges in clear or more emphatic terms than he did here “If I’m asked questions about the operation of the Horizon system in relation to this particular post office, I need to look at the data to do that”.
Mr Beer: What about the suggestion that that was a function of the instruction of him being rather muddled, that he was told initially that the case raised no specific Horizon issues, then he was provided with some information about it. He wasn’t asked to analyse underlying data. What was he to do?
Duncan Atkinson: That the instructions were muddled is clear. That they were inadequate is clear. That he could have gone back to them and said more, I consider also to be clear. I can understand how it came about but that doesn’t mean that it was not, in my view, clearly incumbent upon him to at least continue that discussion before he found himself in the uncomfortable position of the witness box dealing with these matters, having identified that there is work that he could do, better prepare himself for it, and not being asked to do it.
Mr Beer: By September 2012, at least Cartwright King was aware that the defence had intended to instruct a forensic accountant. The cross-reference to that – we needn’t look at it – is POL00119433. Then four or five months later, Mr Jenkins was told about that.
If we look, please, at POL00059808, if we scroll down to 14 February, please, thank you. “An update for you [Gareth]”, from Ms Panter:
“Our counsel Mark Ford would like you to attend court on the Monday … before the start of the trial to allow you to discuss the case with the defence ‘expert’.”
This seems to be the first, I should say, that Mr Jenkins knows that there is an expert.
Duncan Atkinson: Yes.
Mr Beer: “I think the rationale behind this is to narrow any issues we may have with the defence from the outset so as to reduce the amount of time you are required to attend.
“Our counsel is still waiting to hear from defence counsel and will update us if any issues arise. However your presence on the first day will still be required so you can make your travel arrangements.”
Would you agree that suggesting to Mr Jenkins that he should attend on the first day of trial to respond to, or discuss matters with, a defence expert was alarming, given that Mr Jenkins had not been told about any expert before then?
Duncan Atkinson: That counsel had asked that there be a meeting between the experts to narrow the issues, in and of itself, was a reasonable thing for them to have done. The rules now very much envisaged that there will be a meeting between experts in advance of the trial, in order to narrow the issues but that is in advance of the trial rather than on the day it starts, in the normal course of events.
The experts would not come upon each other by chance at that meeting. They would know in advance what the other one was saying, so that they could have assessed the contents of those reports. So it isn’t a matter just of Mr Jenkins’ travel arrangements that needed to be planned in advance; he also needed to see the material in advance and arrangements needed to be put in place for how the experts were to meet, what they were going to address and how what they discussed was going to be recorded, so that others outside that meeting thereafter knew the outcome.
Mr Beer: So, before this time, Mr Jenkins ought to have been told at least that there existed a defence expert?
Duncan Atkinson: Yes, and if it was contemplated that he would need at any point to respond to anything in that report, which was perhaps inevitable, then he needed to see the document from the expert, as well.
Mr Beer: Yes, ie the defence expert report?
Duncan Atkinson: Yes.
Mr Beer: You don’t just walk into the room with your hands in your pockets and say, “What have you got to say?”
Duncan Atkinson: No, quite: “Who are you and what are you doing here?”
Mr Beer: Yes.
Duncan Atkinson: Yes.
Mr Beer: Moreover, Mr Jenkins would not have known what material the defence expert had himself or herself examined?
Duncan Atkinson: Quite.
Mr Beer: It would also, would this be right, mean that it would be difficult for Mr Jenkins himself to revert to any underlying data in advance of such a meeting, to either decide whether to agree or to disagree with suggestions made in the defence expert report?
Duncan Atkinson: Yes. Clearly, that would be a more realistic possibility if he had reviewed the underlying data himself before producing his original reports that Ms Ibbotson’s report was a response to. But yes, one of the reasons why an expert should see any other expert’s report in advance is so that they can check it.
Mr Beer: Can we look, please, at FUJ00153977. We’re now on the Monday, Monday, the 18th, and we can see that Mr Jenkins has a conversation with Penny Thomas. Can you make out the conversation?
Duncan Atkinson: Yes.
Mr Beer: “Next week I’m going to Bradford for the Ishaq case. I see you had some ARQs on this”, and he gives the string of them.
“Do you still have the info you can pass to me easily?”
Then he gives the branch code.
“I can copy all you quote above out for you.
“That would be good, so at least I have the info, even if I don’t have time to analyse it!”
So it’s apparent that Mr Jenkins was seeking to obtain material that might help him to answer questions and liaise with the defence expert, even though he had not at that stage been provided with a copy of the report or known which issues to address?
Duncan Atkinson: Yes, it’s not clear to me where he had seen that they had some ARQs, whether that was because they were referred to in Ms Ibbotson’s report or they were referred to in something else but, clearly, something had told him that there was ARQ material available and he had rightly recognised that he ought to see it.
Mr Beer: How concerning was it, as the prosecutor, that the Post Office was asking Mr Jenkins to go to court to respond to expert evidence without him having seen it?
Duncan Atkinson: Well, it’s moderately remarkable. To expect any witness, but certainly an expert witness, to deal with complex issues and to try and narrow those complex issues with another expert, not knowing what that expert said, not knowing what material they had seen, not being able to check, either, anything that they had said or that they have seen; I can’t quite think how anyone thought that was a good idea.
Mr Beer: Moving on closer to the trial, then, to 22 February 2013, which I think is the Friday before the Monday, can we look, please, at FUJ00153990. If we scroll down, please, we can see some travel arrangements being referred to on the 18th. Then, if we go up, please. We can see Ms Panter’s reply, if we keep going.
On the 22nd at 11.15 in the morning, there’s some material about the Wylie case and then “Urgent”. We can see there’s an attachment “Addendum [defence case statement]”:
“… Please see attached.
“The defence solicitors in the case of Ishaq have served an addendum defence case statement on us this morning, which attempts to particularise the problem with the Horizon system.
“Please could you have a look at the comments that they have made and try to address as many of the points as you can, in order that we can email that to our counsel Mark Ford ahead of Monday’s trial.
“… apologies for such a last minute request, I think there is no coincidence that the service of this addendum [defence case statement] is last minute.”
So at this point, there hasn’t been, it seems, an attempt on the lawyer’s part, Ms Panter’s part, to analyse the defence statement herself and isolate from it issues that Mr Jenkins would in writing be asked to deal with?
Duncan Atkinson: No.
Mr Beer: It’s just a forwarding and saying, “Please deal with this”, essentially?
Duncan Atkinson: Yes.
Mr Beer: Mr Jenkins’ response to that, please, FUJ00153997. If we see this reply at 1.10 the same day, the Friday:
“I’ve added my comments to the [amended defence case statement].
“I have now had confirmation that Fujitsu have not supplied any details of any Helpdesk calls to Post Office Ltd regarding this Branch. There is nothing I can easily do to address any specifics.”
If we scroll down, please. That was the response to the last-minute request.
Again, Mr Jenkins was pointing out to the Post Office’s lawyers that he hadn’t been provided with information that could be obtained by the Post Office, in order to consider the very points raised by Mr Ishaq.
Duncan Atkinson: Yes.
Mr Beer: Can we go forward to FUJ00156747. If we see, we’re on the 25th now, the first day of trial, at 9.37 in the morning. Martin Smith is sending to Mr Jenkins the expert report –
Duncan Atkinson: Yes.
Mr Beer: – with a blank email.
Duncan Atkinson: Yes.
Mr Beer: So just an attachment?
Duncan Atkinson: Yes.
Mr Beer: This is Beverley Ibbotson’s report and, later that day, if we look, please, at FUJ00154006, Ms Ibbotson herself sent Mr Jenkins, just after 2.00, the appendices – and there are lots of them – to her report, which Martin Smith the solicitor had not done. I think we can follow that up by looking at the attachment to Martin Smith’s email earlier in the day.
Duncan Atkinson: Yes.
Mr Beer: You will see it was just the bald report –
Duncan Atkinson: Yes.
Mr Beer: – rather than the attachments.
So was the result of that, to your understanding, that Mr Jenkins had to deal overnight with this rather detailed forensic accountancy report, which he had seen for the first time on the first day of trial?
Duncan Atkinson: Yes, that would appear to be the position.
Mr Beer: He wasn’t, unlike Ms Ibbotson, a forensic accountant?
Duncan Atkinson: No.
Mr Beer: He hadn’t been provided with any formal written instructions to be an expert in the case nor had he been provided with any broader background to the case?
Duncan Atkinson: Beyond as we’ve seen –
Mr Beer: Indictment case summary, defence case statement?
Duncan Atkinson: Yes.
Mr Beer: He had not been asked to obtain the data, albeit, off his own bat, had obtained some ARQ data –
Duncan Atkinson: Yes.
Mr Beer: – from Penny Thomas. Would you agree with my characterisation of this episode of this part of the prosecution being run chaotically, and with little or no grasp as to the significance of the need properly to instruct an expert?
Duncan Atkinson: Yes. The focus in this case appeared, from the investigative and prosecutorial point of view, to be that Mr Ishaq had made allegations against an employee or a colleague. There was a lot of focus on him and not a lot of focus on anything else.
Mr Beer: If we turn up paragraph 619 of your report, which is on page 218, you say, at 218, and then paragraph 619:
“Although Mr Jenkins was engaged, he was not asked to analyse the underlying data, and there were serious shortcomings to the disclosure of material within his knowledge relevant to the operation and reliability of the system, and as to cross-disclosure from … other cases. This continued to be the position even after focused defence requests and the instruction of a defence expert who, like other experts before her, relied on the material and information provided by Mr Jenkins to reach her conclusions.”
That last part, is that, in fact, in error, that she wasn’t reliant on what Mr Jenkins provided her?
Duncan Atkinson: Yes, I think that must be right.
Mr Beer: In this case, as in others, is it right that disclosure was not made in relation to the earlier bugs, errors and defects in particular, which had emerged in the Seema Misra case?
Duncan Atkinson: That’s right.
Mr Beer: Thank you. Those are the questions that I ask you. There may be some additional questions from other Core Participants, I think starting with Mr Stein. Thank you.
Questioned by Mr Stein
Mr Stein: Mr Atkinson, you’re aware that I represent a large number of subpostmasters and mistresses.
Duncan Atkinson: Yes.
Mr Stein: You answered questions from Mr Beer earlier on as to whether there was a system in place that allowed those investigating or lawyers dealing with the prosecution of subpostmasters the ability to access material down the corridor?
Duncan Atkinson: Yes.
Mr Stein: Can we just take that one stage further. You’re aware, I believe, that there were two helplines set up for subpostmasters and mistresses, one set up by the Post Office itself, and the other, if I can call it loosely, a Fujitsu helpline?
Duncan Atkinson: Yes.
Mr Stein: Regarding the Fujitsu helpline, you’re further aware that that had four layers to it: a simple, if you like, answer the telephone and, we believe, driven by scripts; those answering the telephone, our clients say, would basically tell our clients to pay up if there was a shortfall.
But there were also other layers to the helpline run by Fujitsu, which were resolving issues if there were issues concerned with the Fujitsu Horizon system; is that correct? You’re aware of that?
Duncan Atkinson: Not to any great extent and not least because there wasn’t very much discussion of the different layers of the Fujitsu helpline in any of the material that I saw.
Mr Stein: But outline, you’re aware that there was such a helpline –
Duncan Atkinson: Yes.
Mr Stein: – and you’re aware that there were individuals involved in the process of and fixing issues, bugs, errors, defects, within the Horizon system, insofar as they could?
Duncan Atkinson: Certainly I was aware that there were people who could be called at Fujitsu when there was a problem, whether it was identifying bugs or not is a separate question.
Mr Stein: All right. So not only would you have, if you’re investigating a particular branch, an inability to access a library of faults and problems with the system, but also, have you seen any way that Investigators and lawyers would have access to the results of the telephone line complaints system?
Duncan Atkinson: Well, they were clearly able to obtain records and the contents of contact with the Post Office’s own helpline, because there are references to that. They were clearly able to obtain records of and the content of contacts with the Fujitsu line because there were occasions when – I think it was a gentleman called Mr Dunks made statements in particular cases about selections from that.
Mr Stein: Did you see anything to suggest that there was a joined-up type of thinking, that when one subpostmaster was saying that the system won’t work, can’t find out what it is, there are these problems, and tried to explain it, that that was then linked to other individuals that were making similar complaints?
Duncan Atkinson: No. On the contrary, they would – when they did it at all, would look just at calls from the person they were investigating to the helpline, rather than, on some occasions, even other people at the same branch.
Mr Stein: So we’ve got a lack of access to, overall, the picture of what’s going on and the faults within the system, we’ve got a lack of overall access to the complaints and the difficulties that are being encountered by subpostmasters, mistresses; do you agree?
Duncan Atkinson: Do you mean access by a defendant?
Mr Stein: Access, first of all, by Investigators and the lawyers?
Duncan Atkinson: In the sense that they didn’t access it, rather than they couldn’t access it?
Mr Stein: Yes.
Duncan Atkinson: Yes, I agree.
Mr Stein: Let’s move on to the other way round. Now, you’ve been giving evidence in relation to the system of disclosure that is operated through the criminal justice system in the criminal courts?
Duncan Atkinson: Yes.
Mr Stein: That’s a system that operates in both the Magistrates Court and the Crown Court, yes?
Duncan Atkinson: Yes.
Mr Stein: You’ve been giving evidence about the disclosure system that is used by prosecutors. Can we reverse the coin. So where an individual defendant is seeking to make further applications for disclosure, there’s a system for that, as well, isn’t there?
Duncan Atkinson: Yes.
Mr Stein: Right. So what we have, in fact, as a picture that relates to disclosure is, in theory, how it should operate is that the prosecution should identify relevant material that might or may assist the defence case?
Duncan Atkinson: Yes.
Mr Stein: Okay. Now, there then is a system that relates to the provision of a defence statement by an individual, where the defence statement, it’s not mandatory but, essentially, it is what happens in the courts. The individual will then set out what their case is?
Duncan Atkinson: Yes.
Mr Stein: Okay. Now, that system has been in operation now for sometime?
Duncan Atkinson: Yes.
Mr Stein: Okay. Clearly, until there is disclosure by the Post Office of the bugs, errors and defects within the system and the problems that the system can cause, in other words create shortfalls, create hidden losses, it is very difficult for the defence to make applications based upon that material?
Duncan Atkinson: Yes.
Mr Stein: The applications that can be made through the process, Section 8 applications – is that correct –
Duncan Atkinson: Yes.
Mr Stein: – and that would be essentially saying that “We wish to have material that relates to a particular aspect of a defence case”?
Duncan Atkinson: Well, it’s asserting we have reason to believe that you have material that will help us in relation to this.
Mr Stein: Yes. The way that that can work – and you’ve prosecuted many cases and you well know that I have defended in many cases – the situation is that a defence, once on notice of such material, can then make an application for it. If you’re prosecuting the case, you can respond with the release of material that you believe is relevant to that request; is that correct?
Duncan Atkinson: Yes.
Mr Stein: That process can continue. In fact, it can be quite a continuation of a process as more and more material is targeted and found for disclosure purposes?
Duncan Atkinson: Yes.
Mr Stein: Eventually, a judge is brought in to sometimes resolve any issues that lay between the parties?
Duncan Atkinson: Yes, and the stage that can intervene between those is – particularly after the service of a defence statement, and as was the case in most of these cases, there are letters from defence solicitors asking for further disclosure without got in the extent of waving Section 8 at the prosecution, because the prosecution have a continuing duty of disclosure, and so the defence ask, and it is often if the prosecution either responds saying no, or don’t respond, that a Section 8 application may follow.
Mr Stein: Yes. Where we’re talking about the starting point, the inability or the failure to look into the questions of errors and defects within the system that you’ve been discussing with Mr Beer, when we’re looking at that as a starting point, we don’t, in fact, find that there’s much of an ability for the criminal justice system to bite on these disclosure provides as you go through, unless you get that starting point right?
Duncan Atkinson: All that can happen is that, against a blanket of silence in relation to a particular topic, is the defence can ask for disclosure of material that might touch on the reliability of the system, as in most of these cases they did. But there is a limit to how far that can go, certainly in terms of any particularity, without something to bite on, you’re right.
Mr Stein: Now, other aspects that you’ve been discussing with Mr Beer relate to individual subpostmasters that have – Mr Holmes is an example of this – that have complained about the system, said that the machine wouldn’t work, essentially, is what he’s saying –
Duncan Atkinson: Yes.
Mr Stein: – and that he rolled over, essentially, didn’t account for those losses in the way that arguably the Post Office required because, otherwise, he couldn’t be the Post Office open. You’re aware of that?
Duncan Atkinson: Yes.
Mr Stein: So, essentially, people were placed in an invidious position, do you agree, that sometimes faced with what was an unaccountable loss, they would then have to try to account for it, and those sorts of cases were dealt with in the Criminal Court of Appeal in the case – the combined case of Hamilton, so that individual pleas of guilty, even to false accounting, were overturned; do you agree?
Duncan Atkinson: I’m not sure it’s for me to express a view on the nature of their position. I can confirm that that is what was said in a lot of these cases that I considered, and what was said in a lot of other cases as well that were dealt with under the blanket of the Hamilton decision.
Mr Stein: The burden on criminal solicitors and defending solicitors and defending counsel was therefore made rather – I was about to say more difficult, but made very difficult indeed, stymied in relation to disclosure processes and an entire system that seemed to thwart the ability for subpostmasters to make good what was going on at the Post Office branch; do you agree?
Duncan Atkinson: I think, slightly disentangling that, I think from the position of those acting for a defendant, where they were – their instructions were, if they were in accordance with the interview, “I don’t know why this happened but it must be the system because I can’t explain it otherwise”, that they would be up against, particularly once generic statements started floating about, a positive assertion that there isn’t something wrong with the system.
So you have, on the one hand, a defendant saying “It must be the system”, you have the prosecution’s evidence saying “It is not the system”, and you then have to decide whether you allow your client to proceed to trial against that wall or whether you discuss with your client the possibility that a plea to something less than theft will keep them out of prison.
And that’s a decision I wouldn’t – or a conversation I wouldn’t envy anybody.
Mr Stein: You’ve been referred by Mr Beer to a document – I’ll take you back to it, please – POL00059424, the statement of Mr Jenkins.
Duncan Atkinson: I’ve seen a few of those.
Mr Stein: My screen is not working, so I’m just going to use Mr Jacobs’, so I can see it from afar.
Now, you’ll see there that, in relation to Mr Jenkins’ statement, that, if you look at the first page, and if you take your eyes down to the first part of the page, you’ll see a sentence that says:
“However I understand that my role is to assist the court rather than represent the views of my employers or Post Office Limited.”
Duncan Atkinson: Yes.
Mr Stein: Now, in your statement, as an example at page 241, paragraph 674, you discuss there your issues that have been brought to your attention, regarding the instruction of Mr Jenkins?
Duncan Atkinson: Yes.
Mr Stein: Have you found anything within the material that you’ve examined that explains why it is in Mr Jenkins’ statement – he also refers to his own statement as a report, within the body of that document – have you found anything that explains why it is Mr Jenkins’ report/statement says, “However I understand that my role is to assist the court, rather than represent the views of my employers or POL”?
Duncan Atkinson: No, I mean, it’s not – because they didn’t discuss with Mr Jenkins or provide for Mr Jenkins instructions as to his role as an expert at all. There’s nothing in the Post Office communications with him that told him at that time.
Mr Stein: Is that a normal sentence or paragraph to find within a statement, an ordinary witness statement?
Duncan Atkinson: It’s part of a normal sentence –
Mr Stein: Normal for who? Normal for what type of sentence?
Duncan Atkinson: Well, you would normally expect to see a much more detailed explanation of an expert’s understanding as to what their role was and who they were there for. You might find a sentence rather more like that in the statement of a witness who is making clear that they’re speaking for themselves, rather than for their employer, for example if they were giving not expert evidence but factual evidence about a situation that occurred at work, they might make clear they were speaking for themselves rather than for anybody else.
But, if this was seeking to be ticking the boxes of the Criminal Procedure Rules in relation to what a statement from an expert should say about their role as an expert, then it doesn’t do it.
Mr Stein: But it’s a curious sentence to have within such a statement, because what it appears to do, at least in part, is provide a direction of travel going towards an expert report; do you agree?
Duncan Atkinson: It perhaps shows an awareness that he was providing evidence as an expert without really understanding what – or at least setting out what that meant.
Mr Stein: Yes, and, obviously, you’re not privy to any discussions, oral discussions, between Mr Jenkins and solicitors or advisers on behalf of the Post Office.
Duncan Atkinson: No, or indeed of Fujitsu.
Mr Stein: Thank you, Mr Atkinson.
Mr Beer: I think Mr Moloney has some questions, as well, sir.
Questioned by Mr Moloney
Mr Moloney: Thank you, Mr Beer.
Mr Atkinson, I represent a large number of postmasters, all of whom were prosecuted and convicted and all of whom have since had their convictions overturned.
Duncan Atkinson: Yes, thank you.
Mr Moloney: I wish to just ask you about the case of Khayyam Ishaq and if at any time you can’t hear me, please say so.
Duncan Atkinson: You’re very kind!
Mr Moloney: I want to ask you about disclosure around what happened in Birkenshaw Post Office after Mr Ishaq was suspended. Now, Mr Ishaq was very clear from very early in the proceedings that the Horizon system was the cause of the apparent shortfalls he’d suffered?
Duncan Atkinson: Yes. I think he also made reference to someone else who worked there but Horizon was part of his account from the outset.
Mr Moloney: Right. He was essentially saying that one of the people who had worked there had also done the balances –
Duncan Atkinson: Yes.
Mr Moloney: – and so that needed to be looked at?
Duncan Atkinson: Yes.
Mr Moloney: Absolutely.
Duncan Atkinson: Yes.
Mr Moloney: Indeed, you referred to that gentleman, Mr Liaquat Ali during your evidence when being asked questions by Mr Beer.
Duncan Atkinson: Yes.
Mr Moloney: I want to show you a few documents, if I may, around this issue I’ve raised about disclosure after Mr Ishaq was suspended and get your views on the disclosure process around this issue, yes?
Duncan Atkinson: Okay.
Mr Moloney: So the first document I’d like you to look at, if you would, is POL00119445. Here we are. This is an email from Martin Smith on 28 January 2013, and it’s to Steve Bradshaw who was the Investigator in this case?
Duncan Atkinson: Yes.
Mr Moloney: The lead investigator, copying in Mark Ford, now Mark Ford King’s Counsel, who was prosecuting counsel in the case?
Duncan Atkinson: Yes.
Mr Moloney: Usual introductions, but the final paragraph I’d like to take you to, it’s down towards the bottom of the page, and we can probably read it without having to focus in on it, but it says:
“Given the stance which the defendant is still taking with regard to the malfunctioning of the Horizon system, is it possible to establish whether the subsequent subpostmaster had any problems with the Horizon system after all the kit in the branch would have presumably remained the same.
“Many thanks.
“Martin.”
Duncan Atkinson: Yes.
Mr Moloney: So what we see there is that, by 28 January, Mr Smith thought it a good idea to prove that any discrepancies could not be due to the Horizon system or its associated kit by reference to what had happened to the subpostmasters after Mr Ishaq had been suspended?
Duncan Atkinson: Yes.
Mr Moloney: By 31 January, that email being 28 January, so some three days later, Mr Bradshaw had completed and signed the statement, which was served as part of a note of additional evidence. That statement is POL00059592. So this is three days after that email, Mr Smith, the solicitor, the reviewing lawyer, suggesting that this issue be addressed. It’s over to the second page of this statement, do you see that’s dated 31 January 2013.
Duncan Atkinson: Yes.
Mr Moloney: We see that:
“The next audit was in February 2011 when Mr Ishaq was suspended and a discrepancy in the accounts was discovered.
“The cash and stock was then transferred to an interim subpostmaster in February 2011 and accepted as being correct.
“The cash and stock was again transferred to a new interim subpostmaster in September 2012. During the subsequent transfer of cash and stock after Mr Ishaq’s suspension in February 2011 no problems or discrepancies had been reported.”
We see there?
Duncan Atkinson: Yes.
Mr Moloney: So that statement was, as we see, served in the prosecution case. It wasn’t unused material, it was part of the prosecution case, designed to assist in demonstrating that there were no problems with the system?
Duncan Atkinson: Yes.
Mr Moloney: That’s pursuant to that suggestion in the email from Mr Smith to Mr Bradshaw on 28 January?
Duncan Atkinson: Yes, so it would appear.
Mr Moloney: Yes. There was then a mention of the case of Ishaq in early February 2013. If we could put up the document POL00059652, we see this again. It’s an email from Martin Smith, it’s dated 6 February and it shows that Mr Smith had been to Bradford Crown Court on the morning of 6 February for the Mention, and the defence were unable to persuade the judge to order any further disclosure.
It’s to Steve Bradshaw again, with Mark Ford copied in again. The important paragraph is the second one:
“The [defendant’s] solicitor told me that the [defendant] still operated the store in which the Post Office is situated. The [defendant] had instructed them that both subsequent [subpostmasters] had told him that they had experienced problems with the [Horizon] system. Although you have said in your final statement that ‘During the subsequent transfer of cash and stock after Mr Ishaq’s suspension in February 2011, no problems or discrepancies have been reported’, the defence may well suggest that this does not necessarily mean that no problems were encountered by the subsequent SPM. I think it would be sensible to obtain statements from both subsequent SPMs confirming that they had experienced no problems with the [Horizon] system etc.”
Yes?
So first of all, Mr Smith has got the statement of 31 January. Now he’s looking for essentially corroboration of what Mr Bradshaw says in that statement of the 31 January by seeking statements from the subsequent subpostmasters –
Duncan Atkinson: Yes.
Mr Moloney: – essentially saying, “We’d better get some statements from those subpostmasters to support your assertion”.
There’s then a letter dated 8 February 2013 from Mr Ishaq’s solicitors to the Post Office. That is POL00059675, please. Thank you very much.
If we scroll down, please. So this is 8 February 2013. The Mention is being held on 6 February 2013. Two days later we see Musa Patels, down at the bottom, as the solicitors for Mr Ishaq, and the second paragraph reads:
“Further to the service of the additional evidence at page 43 Stephen Bradshaw’s penultimate sentence states that no problems or of discrepancies have been reported since the transfer to a new interim subpostmaster since the suspension of Mr Ishaq in February 2011, with regards to this could you please clarify whether further enquiries were made ie has a full audit been undertaken since February 2011 and if so what was the outcome of that audit.
“If no discrepancy has been highlighted from a subsequent audit then please be on notice that we will require that data to commission our own audit.”
Then they look forward to the response.
So the defence is essentially saying, “We know that you say [and this is on the basis of Mr Bradshaw’s statement] that there is no reported discrepancy but have you done an audit? And if there is no discrepancy, we want to carry out our own audit and actually you know that we’ve got an expert in place to be looking at this in any event”.
Duncan Atkinson: Yes.
Mr Moloney: Yes. So putting them on notice, as they say, that they will carry out that audit, please.
There’s then another email from Mr Smith, this time to trial counsel, Mark Ford, and this is POL00059675.
I’m sorry, I’ve just given you the same reference to the letter from Musa Patels and I’ll just have to check the appropriate reference for the email.
In fact, I can read the email, rather than going back to that. It’s quite short. It reads as follows:
“Hi Mark …”
So it’s to Mr Ford from Mr Smith, copying in Mr Bradshaw:
“Just to keep you in the loop please find attached a copy of a letter which we have received from Musa Patels today.”
So that shows that the email is 8 February or thereabouts and it references to a letter which you’ve seen from Musa Patels.
Duncan Atkinson: Right.
Mr Moloney: “Steve is in the process of taking statements from two subsequent subpostmasters who have not experienced any problems with the Horizon system. They have not had any significant shortages.”
So, essentially, following up on what is said to Mr Bradshaw about getting the statements.
Duncan Atkinson: Yes.
Mr Moloney: Then referring to the request from Musa Patels, he says:
“I do not propose to ask Steve to obtain the data for the period following Ishaq’s removal. Given that there were no problems with the system and no significant shortages, it would not assist the defence or undermine the Crown’s case.”
So he is essentially saying to Mr Ford they want the data, Mr Bradshaw is getting the statements I suggested, and he tells him that he’s made a decision that they’re not going to get the data on what is essentially the disclosure test. It won’t assist or undermine because we have the statement from Mr Patel saying there were no significant shortages, and he’s notifying Mr Ford of the line he’s going to take.
Duncan Atkinson: Yes.
Mr Moloney: Now, we don’t have Mr Ford’s reply to that but we do have the letter that Mr Smith then sent to the defence, and that is POL00059729. It’s the first paragraph of that and it’s dated 15 February 2013, and it reads:
“Thank you for your letter of 8 February 2013. We enclose in duplicate copies of a Notice of Additional Evidence, the statements of Stephen Bradshaw of 11 February 2013 and Abdullah Patel of 13 February 2013 and an up-to-date page count. There is no further disclosure to be made in this case.”
Now, that’s one subpostmaster, Mr Patel, and essentially that statement simply says, “I’ve had no significant shortages at there’s been no problems with the kit”, and then simply says, “and no further disclosure to be made”.
Now, the purpose of these statements was to make the point that because subsequent subpostmasters had experienced no significant shortages, then there can have been no problems with Horizon in Mr Ishaq’s office at the time he was involved with it.
Duncan Atkinson: Yes.
Mr Moloney: It was thus a point that the prosecution relied on in respect of a material issue in the case and it was therefore incumbent on the prosecution to prove the point.
I couldn’t hear you, then, Mr Atkinson.
Duncan Atkinson: I’m so sorry: yes.
Mr Moloney: Having commenced on that strategy for proving their case, it was an important part of proof of the integrity of Horizon.
Duncan Atkinson: Yes.
Mr Moloney: The defence, in saying that they wished to audit the data for that period, was indicating that it wished to put the prosecution to proof on that point?
Duncan Atkinson: Yes.
Mr Moloney: Now, if the data for Birkenshaw Post Office, after Mr Ishaq’s suspension, had shown that there had been shortages, that would obviously undermine the prosecution case?
Duncan Atkinson: Yes.
Mr Moloney: It would mean that the prosecution couldn’t prove its point on that part of the case?
Duncan Atkinson: Yes, it would probably go beyond that, in terms of calling the operation of the system into question, as well as proving that their specific point on it wasn’t a valid one.
Mr Moloney: As a natural corollary of that, it would assist the defence case?
Duncan Atkinson: Absolutely.
Mr Moloney: Now, as the reviewing lawyer, could Mr Smith – forgive this, it may be a rhetorical question – could he know that the data would not undermine the prosecution case or assist the defence case without seeing the data or asking Mr Bradshaw to even to get the data?
Duncan Atkinson: I suppose it’s a two-stage thing. If he had – and it’s not clear if he had from what you’ve shown me – if he had the results of audits that showed at points during that period that there was nothing untoward, that would allow him then to assess whether the underlying data took matters further but, on the face of this, they weren’t even giving any results as to audit.
Mr Moloney: Wasn’t he, in essence, refusing the defence the data to make its own checks on that point that the prosecution wished to prove?
Duncan Atkinson: Certainly on what you were taking me through, it appears that the defence were saying, in the first instance, “Have you looked to see whether there are any problems by looking for audits?”
That question, as far as I can see, was never actually answered nor indeed asked by the reviewing lawyer of the Investigator, and so the decisions that, on the face of it, were being made, were being made in the absence of knowledge, which is never the right position to be making disclosure decisions about.
Mr Moloney: And simply a bare assertion that there is no further disclosure to be made without any explanation of that?
Duncan Atkinson: Well, making the assertion there’s no further disclosure to be made when, on the face of it, he didn’t know whether there was any further disclosure to be made.
Mr Moloney: Thank you very much. That’s all I ask, Mr Atkinson.
Mr Beer: I think, lastly, Mr Henry, sir.
Sir Wyn Williams: Mr Henry, before you start, I unfortunately have to rise at 4.25 today. I have no choice in the matter, so I’m sorry you are confined to ten minutes, but you’ll have to blame your colleagues who told me they’d be five minutes and took about half an hour between them.
Questioned by Mr Henry
Mr Henry: Yes. Thank you, sir.
Mrs Adedayo’s overturned conviction, you will agree, is a shortfall case?
Duncan Atkinson: Yes.
Mr Henry: Because, of course, as an irreducible minimum, the calculations that gave rise to the shortfall are dependent upon data generated and provided for by Horizon?
Duncan Atkinson: Yes.
Mr Henry: I don’t ask you, of course, to comment on the merits of this but a shortfall which she had a stark choice whether to submit to them – the figures, that is – sign off on the figures, or cease trading, whilst still remaining liable for the shortfall?
Duncan Atkinson: Yes, again, I’m not familiar with the details of the contract but that is my understanding from what I’ve seen.
Mr Henry: Yes. Now, you are also now aware that before Mrs Bernard, the Investigator, had arrived at the scene, there was the backdrop of an interview conducted by an auditor in breach of PACE?
Duncan Atkinson: Well, I’m aware that there was – that there had been a conversation between Mrs Adedayo and the Auditor. The material, I have to say, that I’d seen, certainly before the end of last week, as to the nature of that and the extent of that conversation was very unclear. The investigation report, for example, didn’t really fill in the gaps as to what had happened and there was, I think, no statement from the auditor.
Mr Henry: That’s correct, but it resulted in what I’m going to describe in inverted commas as a “confession”, did it not, although of an equivocal nature?
Duncan Atkinson: Certainly there was reference in the investigation report to admissions having been made, which were then addressed in the sense there were – questions asked about them in the interview. Mrs Adedayo’s answers about them rather less clear to follow.
Mr Henry: Exactly. Now, that interview that was actually later conducted – following what I’m going to describe as the equivocal confession to the auditor at the scene – but the formal interview conducted by Mrs Bernard was – well, it elicited contradictory, confusing and internally inconsistent answers, as you have accepted –
Duncan Atkinson: Yes.
Mr Henry: – described by Counsel to the Inquiry as “baffling”, and you don’t disagree with that?
Duncan Atkinson: No, I don’t.
Mr Henry: No. Yet no attempt was made by Mrs Bernard to investigate Mrs Adedayo’s bewildering account, to probe or question the overall effect, in other words, as to whether there was any truth in the mysterious payments to third parties to whom she claims she owed and had paid money?
Duncan Atkinson: Certainly, I saw no evidence of such enquiries, no.
Mr Henry: No. So, therefore, Mrs Bernard then approached – and I don’t mean this pejoratively – an interrogatory approach. In other words, she elicited through close-ended questions or leading questions an account which she proffered to her superiors?
Duncan Atkinson: Yes.
Mr Henry: Now, if there was a risk that Mrs Adedayo’s account was unreliable because of things said or done – notwithstanding the paucity of the information that exists now but of course the circumstances were very different then – if there was a risk that Mrs Adedayo’s account was unreliable because of things said or done, it would have been all the more important, would it not, to have actually investigated independently of what she was telling Mrs Bernard?
Duncan Atkinson: If the Investigator had concerns that it might be unreliable, then they needed to investigate it to ascertain whether it was or not.
Mr Henry: Yes. We know from evidence given to the Inquiry what Mrs Bernard said was her state of mind at the time, that she did not believe the account she’d been given, but she made no attempt, as she admitted to the Inquiry, no attempt, to investigate whether it was true or not?
Duncan Atkinson: Yes, I haven’t seen or heard Ms Bernard’s evidence but I understand that from what Mr Beer said a little earlier.
Mr Henry: Yes, but an examination of Mrs Adedayo’s bank accounts conducted by a competent Investigator would have established that there were no unexplained transfers of money in or out, no evidence of misappropriation nor any payments alleged to those mysterious third parties.
Sir, can I just, in conclusion, ask you if you would agree with this: are we not left with the impression that Mrs Adedayo’s case was not properly investigated?
Duncan Atkinson: I can’t say what would have been found had Mrs Adedayo’s bank accounts been examined but then, equally, neither could the Investigator, because they didn’t look.
Mr Henry: Yes. So –
Duncan Atkinson: And so, it seemed to me that that was a reasonable line of inquiry, both to pursue what had happened to the money, to assess whether there’d been dishonesty and, as you rightly say, to assess whether the account Ms Adedayo had given was a reliable one or not.
Mr Henry: So we’re left with the impression that it was not properly investigated?
Duncan Atkinson: And so, therefore, in those circumstances, it was not properly investigated.
Mr Henry: Therefore, that it was questionable to even charge in such circumstances?
Duncan Atkinson: Well, it was a situation where to an extent I suppose it would depend on the extent to which the Investigator flagged up to the lawyer that – whether there were any concerns about the account. If it was clear from – and I just don’t remember, I’m afraid, whether it was clear from the investigation report that Mrs Bernard had those concerns about the reliability of the accounts. If it was communicated in that way to the lawyer, then the lawyer, in my view, ought to have been asking questions, rather than making charging decisions.
Mr Henry: Exactly, and to adopt the word you use with perhaps characteristic understatement earlier, “questionable to proceed in such circumstances without further investigation”?
Duncan Atkinson: Yes.
Mr Henry: Because we’re left, are we not, with the – and we’ve got one more minute left – left with the potential, are we not, that this was a false confession, a bewildering, baffling, and internally inconsistent account and that the underlying allegations could have been merely an artifact of system error?
Duncan Atkinson: Yes, I think that’s right.
Mr Henry: Thank you.
Sir Wyn Williams: I congratulate you, Mr Henry, on the conciseness of your questions.
And I thank you, Mr Atkinson, very, very much for all the assistance you’ve given me over a number of days at this Inquiry. I’m extremely grateful to you.
The Witness: Thank you, sir.
Mr Beer: Thank you very much, sir.
Thank you, Mr Atkinson.
Sir, we reconvene tomorrow with Lisa Allen at, I believe, at 10.00 am –
Sir Wyn Williams: Yes.
Mr Beer: – which is the last witness for this year.
Sir Wyn Williams: Thank you for reminding me, Mr Beer.
Mr Beer: Sir.
Sir Wyn Williams: See you tomorrow morning, everyone.
(4.24 pm)
(The hearing adjourned until 10.00 am on the following day)