Official hearing page

30 April 2024 – Hugh Flemington and Harry Bowyer

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(9.45 am)

Mr Stevens: Good morning, sir, can you see and hear me?

Sir Wyn Williams: Yes, I can, thank you.

Mr Stevens: Thank you. We’ll be hearing from Mr Flemington this morning.

Sir Wyn Williams: Yes.

Hugh Flemington

HUGH MEYRICK FLEMINGTON (sworn).

Questioned by Mr Stevens

Mr Stevens: Please could you state your full name.

Hugh Flemington: Hugh Meyrick Flemington.

Mr Stevens: Thank you for providing evidence to the Inquiry today and also for providing a detailed written statement. I want to turn to that statement, it should be in a bundle of documents in front of you. Do you have that, dated 9 March 2024?

Hugh Flemington: Yes, I do.

Mr Stevens: It runs to 195 paragraphs?

Hugh Flemington: Yes.

Mr Stevens: Can I ask you, please, to turn to page 47 of the statement?

Hugh Flemington: Yes.

Mr Stevens: Do you see your signature?

Hugh Flemington: Yes, I do.

Mr Stevens: Can I ask you to confirm whether the contents of that statement are true to the best of your knowledge and belief?

Hugh Flemington: Yes, it is.

Mr Stevens: For the transcript, that is document reference number WITN08620100. That now stands as your evidence in the Inquiry, it will be published on the Inquiry’s website soon. I’m going to ask you some questions about it now.

Just start with your background, is it right you qualified as a solicitor in 1996?

Hugh Flemington: Yes.

Mr Stevens: In terms of what’s relevant to this Inquiry you were employed by Royal Mail Group as a lawyer in the Group Tech and IP Team in June 2009?

Hugh Flemington: Yes.

Mr Stevens: Before then you practised as a solicitor, both in firms and in-house, in the areas of mergers and acquisitions and in other commercial matters?

Hugh Flemington: Yes.

Mr Stevens: As I say, you started in Royal Mail Group in 2009, you became Head of Legal for Post Office Team in Royal Mail Group in August 2011 –

Hugh Flemington: Yes.

Mr Stevens: – so still within the Royal Mail Group but on the Post Office Legal team. Your evidence is that, at that point, the Post Office Legal Team was only dealing with non-contentious matters; is that correct?

Hugh Flemington: Yes, yes.

Mr Stevens: So the conduct of civil and criminal litigation fell to a different team within the Royal Mail Group?

Hugh Flemington: Yes.

Mr Stevens: When Post Office Limited separated, so 1 April 2012, you transferred to Post Office Limited as an employee?

Hugh Flemington: Yes.

Mr Stevens: At that point, the Post Office Limited Legal Team became responsible for civil and criminal litigation?

Hugh Flemington: Yes.

Mr Stevens: At that point, you reported to Susan Crichton?

Hugh Flemington: Yes.

Mr Stevens: Your responsibilities as Head of Legal, were they ever written down in a single document?

Hugh Flemington: I believe I would have had a contract of employment, obviously, and the Head of Legal role would have been defined somewhere.

Mr Stevens: So defined somewhere but can you recall roughly what those responsibilities were?

Hugh Flemington: It would be in relation to managing the team of lawyers, managing the budgeting, managing them from a personal – personnel point of view.

Mr Stevens: Would that have included managing lawyers responsible for criminal and civil litigation?

Hugh Flemington: So there’s an important distinction to make here, which is that it would be managing them from a personnel point of view but, in terms of supervising the litigation, that was to be done by Susan Crichton.

Mr Stevens: We’ll come back to that in due course. The reporting lines: were you the only Head of Legal at this point or were there others?

Hugh Flemington: Yes, I was the only Head of Legal from when I was appointed in 2011.

Mr Stevens: In due course, were there additional Heads of Legal appointed when you were there?

Hugh Flemington: Not when I was there.

Mr Stevens: I want to come to the first topic, which is a few matters in 2010 concerning audit data and the first point is Track II data?

Hugh Flemington: Mm-hm.

Mr Stevens: Can I start, please, with POL00416959. This is a letter addressed to you, dated 12 February 2010 from Stephen Dilley at Bond Pearce, who became Bond Dickinson and then Womble Bond Dickinson.

Hugh Flemington: Yes.

Mr Stevens: If we can just go down slightly. It talks about potential deletion of Track II data. We see in the first paragraph under background, it states:

“… Track II data contains the 15 to 19 character primary account numbers relating to customer transactions, expiry date of the card, information about what the card can be used for and how it should be handled at the point of payment and other discretionary data.”

So this is all personal data relating to customers’ debit and credit card transactions; is that right?

Hugh Flemington: I believe so.

Mr Stevens: It goes on to say that:

“You believe that Track II data has to be destroyed to comply with PCI DSS.”

Just pausing there, does that stand for Payment Card Industry Data Security Standards?

Hugh Flemington: I can’t recall.

Mr Stevens: Do you recall what it was in lay terms?

Hugh Flemington: In lay terms, it would be the rules that the PCI operated, that you had to abide by if you took card payments in your business.

Mr Stevens: So PCI being the Payment Card Industry?

Hugh Flemington: Yes.

Mr Stevens: So there was presumably, at the time, or at least Post Office believed there was a need to comply with PCI standards to delete this Track II data?

Hugh Flemington: Yes.

Mr Stevens: If we go down to “Fujitsu’s advice”, it says:

“Fujitsu’s corporate legal counsel, Jean-Philippe Prenovost, has stated in his email of 12 February 2010 to you that if Track II data is destroyed, Fujitsu would not be able to testify that historical data is true, accurate and (crucially) unchanged.”

You account some matters to clarify, such as the reliability of the system, et cetera. That document can come down for the time being, it’s just for background.

So setting the scene for track data, effectively the Post Office wanted to delete data that wasn’t essential for branches’ transactions or the branch accounts.

Hugh Flemington: So there was a PCI compliance audit done, I believe and, as part of that, it was found that the system held Track II data, as I recall, and the PCI expert said that that was counter to the PCI rules.

Mr Stevens: Yes, so going to my question, which was deleting this data, it wasn’t data on which the branches relied to generate their branch accounts?

Hugh Flemington: I can’t – I wouldn’t have known and I can’t recall what kind of data it would have been.

Mr Stevens: Well, if you’re asking to delete data that was relevant to the generation of branch accounts, that would seem quite surprising, wouldn’t it?

Hugh Flemington: At the time, I would have just known that there was this data that we held and the question in front of me was “Can we delete it or not”, and I was told that there was a risk of deleting it in relation to the Horizon cases.

Mr Stevens: Well, let’s go to the next document. It’s FUJ00230908.

If we could go to the bottom of page 1, please. We see there’s an email there from Gareth Jenkins on 17 February 2010. Carry on down to the bottom, please. That’s fine, thank you.

“Geoff/Suzie,

“My suggested answers to most of the questions below prefixed [GIJ] in bold italics lower down in the email trail”.

If we can go down to that, it’s page 4, please. Yes, that’s great. Thank you. We see your email of 15 February to Jean-Philippe Prenovost, and you describe:

“Below is the magic list of questions compiled from a few people today since our call this morning. Would Fujitsu be able to get us responses by close of play on Friday [please]?”

If we could go down a bit further, please, we see at (1) the question is:

“Before Track II data is deleted, would Fujitsu be able to say precisely what impact the deletion would have eg what additional data would also be deleted or amended and if so, how it would be amended.”

There’s a lengthy explanation there from Gareth Jenkins towards the end saying:

“The result of this is that the audit of the original message would be changed and it would no longer be possible to assert it has not been changed since originally recorded. Also the revised audit file would need to be resealed again indicating that it has not been tampered with since the time of the ‘official’ change.”

So, at this time, do you recall if this message was passed on to you?

Hugh Flemington: I don’t recall. I remember that the sort of list of questions would have come from the PCI consultant.

Mr Stevens: Right.

Hugh Flemington: So I didn’t have a technical knowledge of what was being asked or what the discussions were around the data.

Mr Stevens: Were you broadly aware that – well, firstly you’re trying to delete this Track II data, you’re aware of that?

Hugh Flemington: So there was a proposal of should we delete the Track II data, and it was trying to find out is there an issue with deleting that Track II data?

Mr Stevens: Could it affect other data –

Hugh Flemington: Yeah, yeah.

Mr Stevens: – which we’ll come to in a second, what that other data was. You were presumably aware that the concern was that, if other data in the audit files was disturbed, it could affect Post Office Limited’s ability to bring or defend claims concerning subpostmasters?

Hugh Flemington: So at the highest level, it was explained to me that, if you did something with this data, there might be a risk that it would prejudice the ability to bring those cases.

Mr Stevens: Right.

Hugh Flemington: But I didn’t understand the detail of that.

Mr Stevens: If we can turn the page, please, to page 6 and if we could go to the bottom, please. We see, paragraph 5:

“What is the probability that the deletion would affect the data contained in the following?”

It includes data relating to cash receipts from branch, data relating to transactions and, in particular, “Data relating to transactions says”:

“These may be affected if they are card related.”

I think you said you can’t remember in detail if you received these answers to the questions. Given these were important questions, would you have followed up on this and got answers to them? Do you think that’s likely?

Hugh Flemington: It’s possible, yes.

Mr Stevens: Do you think it’s likely?

Hugh Flemington: I don’t know because I can’t say for certain whether what then happen would have been a call between the PCI consultant and Fujitsu. This was all very technical and I wouldn’t have understood what they were talking about, necessarily, in terms of all the different types of data or the implications. So I would have spoken to the PCI consultant about it.

Mr Stevens: Did you understand, let’s go back and understand this much: firstly, that it was possible for Fujitsu to delete data that was in the audit file?

Hugh Flemington: I’m not sure I would have understood that point, no.

Mr Stevens: Well, let’s – you were here talking about what the effect of deleting Track II data would be. If Fujitsu couldn’t delete the data, do you think the simple answer would be “We don’t need to answer all these questions, we can’t delete the Track II data”?

Hugh Flemington: Yes, I wouldn’t have necessarily thought about that but, yes.

Mr Stevens: So, if you’d turned your mind to it, at least, you accept that you must have been aware that Fujitsu could delete files within the audit record?

Hugh Flemington: Or that it might be possible, I don’t –

Mr Stevens: It might be possible?

Hugh Flemington: Yeah.

Mr Stevens: In this case, what was being suggested is – let’s call it a legitimate deletion, Post Office is considering a proposal to delete data from the audit files for data protection purposes and to comply with this PCI guidance?

Hugh Flemington: Yes, it was driven by complying with the PCI rules.

Mr Stevens: But Post Office was aware that, in doing that, there was a risk to the integrity of the remainder of the data in the audit file?

Hugh Flemington: So, as I understood it from my non-technical understanding, it was expressed that there was a possibility it would be harder to bring cases on the Horizon issue if this data was touched at all.

Mr Stevens: That understanding you have, did you share that with others on, say, ExCo, the Executive Committee?

Hugh Flemington: The PCI matter, I was reporting to Susan Crichton on it, as my line manager, and it’s likely that the consultant was working as part of the CIO’s team.

Mr Stevens: Would you, do you personally know if this was brought up at Board level?

Hugh Flemington: Can’t recall.

Mr Stevens: Do I take it from that that you didn’t discuss with anyone on the Board about this PCI issue?

Hugh Flemington: I can’t recall that or any paper on it.

Mr Stevens: I want to go to the second topic on audit data, concerning duplicate transactions. Please can we bring up FUJ00121097. Could we turn to page 2, please, and the email towards the bottom, the – yes, that’s it. Thank you.

So this is an email from Penny Thomas, dated 30 June 2010, and one which has been seen by the Inquiry before. It’s sent to Sue Lowther, Mark Dinsdale and Jane Owen. Do those names ring a bell to you?

Hugh Flemington: Mark Dinsdale, because he comes up in one of the other documents in the bundle, but not the others.

Mr Stevens: I won’t ask the others you don’t remember but Mark Dinsdale, was he in your line management chain at all?

Hugh Flemington: He wasn’t anything to do with Legal, I remember that.

Mr Stevens: It says:

“We have identified that number of recent ARQ returns contain duplicate transaction records.”

It goes on to explain how that’s happened, that the HNG-X retrieval mechanism does not remove duplicates. Now, you’re aware – well, let’s rephrase that, sorry.

Were you aware at the time about ARQ and audit data being used for civil proceedings and prosecutions?

Hugh Flemington: No. My technical knowledge wouldn’t have known anything about that kind of thing.

Mr Stevens: Well, this is June 2010 and we saw earlier, when relating to the PCI matter, you were raising questions about audit data and Post Office ability rely on it in criminal and civil proceedings. Are you saying you weren’t aware of –

Hugh Flemington: So the questions that I was raising in PCI would have been provided by the PCI consultant. I wouldn’t have understood all the technical things that they were talking about.

Mr Stevens: Would you say that’s particularly technical, the fact that Post Office were relying on audit data for civil and criminal proceedings?

Hugh Flemington: So I wouldn’t know what data they were relying on, just that there was some data that was important to the criminal cases.

Mr Stevens: Let’s move on. If we turn to page 1, please, of this. Penny Thomas’ email of 2 July says:

“I have just completed a conference call with Mark Dinsdale, Alan Simpson and Jane Owen.”

Five bullet points down, it says:

“I talked them through the ARQs affect list and asked that they confirm whether the West Byfleet and Porters Avenue …”

Pausing there, do those, West Byfleet and Porters Avenue, ring any bells for you?

Hugh Flemington: No.

Mr Stevens: West Byfleet and the Seema Misra trial, does that –

Hugh Flemington: So the name “Misra” rings a bell.

Mr Stevens: “… where the only cases listed where it progressed to Court …

“I asked them to confirm whether transaction records of West Byfleet had actually been presented at Court or whether records had only been passed to the defence expert …”

So there appears to be a discussion here on how the affect of these duplicate records in the audit data had affected any court proceedings. Were you made aware of this at the time?

Hugh Flemington: I can’t recall that. I wasn’t involved in any of the criminal litigation, so it’s unlikely that I’d have been given any information about the cases.

Mr Stevens: We’ll come to that shortly. So let’s put ourselves in the Legal Team. On the one hand, earlier in the year you were dealing with an issue relating to audit data for PCI?

Hugh Flemington: Yes.

Mr Stevens: Later in the year, there’s an issue about audit data for these duplicate transactions and your evidence is that you weren’t aware of this later duplicate?

Hugh Flemington: No, I can’t recall that at all.

Mr Stevens: Pausing there, within the Legal Team, what level of discussion was there about matters between, say, the Civil Litigation Team and your team which was relating – was it IP and IT?

Hugh Flemington: So, if you’re talking about 2010 –

Mr Stevens: Yes.

Hugh Flemington: – I was in the Post Office Legal Team at that point and there’s about four lawyers and Susan Crichton.

Mr Stevens: Yes.

Hugh Flemington: The IP/IT Team at Royal Mail is separate, the Criminal team is separate, and they’re based at two other different offices.

Mr Stevens: So there is an entirely separate office?

Hugh Flemington: Yes.

Mr Stevens: The Criminal Team is a physically separate office from where you are?

Hugh Flemington: So the Criminal Team sat in a physically separate office on its own. The Royal Mail IP/IT Team and Royal Mail Civil Litigation Team sat in a Royal Mail office and then Post Office Legal was in a third office at the Post Office Headquarters.

Mr Stevens: So is it fair to say that day-to-day discussions, the Post Office Legal team, your evidence is, didn’t really have much communication with the Civil Litigation or Criminal Litigation team?

Hugh Flemington: No, no.

Mr Stevens: Well, let’s move to look at that and some of the response to problems raised regarding Horizon. We don’t need to turn this up but in page 12, paragraph 52 of your witness statement, I think your evidence is you don’t recall specifically reading the May 2009 Computer Weekly article; is that right?

Hugh Flemington: That’s right.

Mr Stevens: But you can remember hearing reference to it?

Hugh Flemington: Yes, and in the additional bundle of documents that I was given, I belief there’s a reference to being told about in early 2010.

Mr Stevens: Can you recall about your views were of the allegations raised when you first heard of them?

Hugh Flemington: I think when I first heard of them it was in the context of PCI Track II and the criminal lawyer was explaining to me that criminal cases existed and there had been some noise in an article in Computer Weekly.

Mr Stevens: Can I ask, when you say the “criminal lawyer”, who was that?

Hugh Flemington: That was, I believe, Juliet McFarlane. It’s in the additional bundle of documents, I think around January 2010.

Mr Stevens: So you say “some noise”, was that the words used?

Hugh Flemington: That’s my word. That would have been – in her email she talks about there being criminal cases and that there are some allegations about the Horizon computer system.

Mr Stevens: Did you take them seriously at that time?

Hugh Flemington: Yes.

Mr Stevens: When you said “some noise”, do you think the use of the phrase “some noise” indicates that you’re taking it seriously or that the complaints had merit?

Hugh Flemington: Sorry, that was just words I came out with at this point in time.

Mr Stevens: Do you recall around this time, so 2010/2011, whether there were any discussions of bugs, errors or defects within the Legal team, beyond the Computer Weekly article?

Hugh Flemington: So there were the allegations, I think, in terms of the civil cases and I think –

Mr Stevens: Are you referring to the Shoosmiths litigation?

Hugh Flemington: I’m – I’m thinking, I think there was a Mandy Talbot email, in the additional bundle, of 7 October.

Mr Stevens: We’ll come to some of those shortly.

Hugh Flemington: But I can’t recall whether there was earlier mention of the civil cases.

Mr Stevens: Did Susan Crichton ever discuss bugs, errors and defects with you?

Hugh Flemington: I can’t recall, no.

Mr Stevens: Let’s look at some of the emails on the response to Horizon challenges. Can we start, please, with FUJ00156122. If we could go to page 7, please. So an email from Mandy Talbot on 17 February 2010 to David X Smith, Head of Change and IS, at that point. Do you recall what team Mandy Talbot was in at the time?

Hugh Flemington: So she was in the Royal Mail Civil Litigation Team.

Mr Stevens: So separate building –

Hugh Flemington: Yes.

Mr Stevens: – separate team?

Hugh Flemington: Yes.

Mr Stevens: Okay. It says:

“Has [Post Office Limited] received requests like this [referring to the email below] and if so has it responded to them? Does the business in principle have any objection to meeting with a ‘computer expert’ and explaining to him how the system works. Possibly even showing him the data.”

If we go to, starting with the bottom of page 5, we see David X Smith’s response there. Over the page it says:

“As long as the argument is carried out on the level of what could happen, then we will always struggle to win it. Our greatest chance of winning the argument case by case is to fix the debate on what actually happened.”

It goes on to refer to two cases, the first being Cleveleys. It says:

“In the case referred to as Cleveleys an independent expert was appointed. Unfortunately [Post Office Limited] and Fujitsu did not manage this spectacularly well and probably fielded the wrong people or at the very least insufficiently briefed people. I read the so-called expert’s report and I have to say it was far from the professional effort I would have expected.”

Pausing there, were you aware of the Cleveleys case at the time in 2010?

Hugh Flemington: No.

Mr Stevens: No?

Hugh Flemington: No.

Mr Stevens: Did you become aware of the Cleveleys case at any point whilst you were at Post Office Limited?

Hugh Flemington: I can’t recall but I don’t think so.

Mr Stevens: If we could carry on to page 2, please. An email from Gareth Jenkins on 25 February, it says:

“Suzie/Tom

“Please see email trail below. This is another example of postmasters trying to get away with ‘Horizon has taken my money’. Dave Smith seems to have put me forward as the expert to go to on this.”

Then over on page 1, please, the response says:

“Gareth, I have asked JP to liaise with Hugh Flemington on this – don’t reply at the moment. I’ll let you know in due course how we are going to handle this.”

Do you recall what involvement you had with this matter, namely whether Gareth Jenkins was going to be instructed to give expert evidence.

Hugh Flemington: No, I was surprised when I saw this and I think that the Fujitsu account manager would have had my name in mind because I’d been asking about Track II and, if I’d have got contacted by JP, I’m sure I would have, once realised it was about a Mandy Talbot matter, I would have pointed him in the direction of Mandy Talbot.

Mr Stevens: At that point, do you recall any conversation with either Mandy Talbot or with Fujitsu, people at Fujitsu, regarding Post Office Limited’s request for expert evidence?

Hugh Flemington: No. I wasn’t involved in those cases and there would be no reason for me to be.

Mr Stevens: So your evidence is it’s simply a misdirected email?

Hugh Flemington: Yes.

Mr Stevens: Nothing further to do with you?

Hugh Flemington: Yes.

Mr Stevens: Please can we go to POL00409718. So this is October 2010, 7 October 2010. We’ve an email from Mandy Talbot, it’s to Susan Crichton. We know she was sort of sitting at the top of the tree, essentially, for the Post Office Limited matters?

Hugh Flemington: Yeah.

Mr Stevens: There’s you and Jessica Madron. Do you remember who Jessica Madron was?

Hugh Flemington: She was Post Office Legal lawyer that worked on subpostmaster contracts.

Mr Stevens: So, at this point, was she level with you in seniority?

Hugh Flemington: She was, I think, level with me in seniority at this point. She had been there longer, much longer.

Mr Stevens: She’d been there longer but, in terms of your actual postings, you were level?

Hugh Flemington: I can’t recall the precise clarifications, I’m afraid.

Mr Stevens: It says:

“Dear All

“We need as an organisation to determine how best to deal with all the cases where allegations are being made about Horizon and where there is money owed by the former postmasters to the business.”

Why were you being brought into this email at this stage?

Hugh Flemington: I don’t know. I can’t recall.

Mr Stevens: Well, let’s pause there. Mandy Talbot is in the Civil Litigation Team at Royal Mail?

Hugh Flemington: Yes.

Mr Stevens: She must have an understanding of where responsibilities lie for issues such as civil litigation within the group?

Hugh Flemington: Yes.

Mr Stevens: She’s emailed a relatively small distribution list of three people, correct?

Hugh Flemington: Correct.

Mr Stevens: Can you explain why Susan Crichton was included in that list?

Hugh Flemington: I would assume because she was head of the POL legal operation at that point.

Mr Stevens: Was it actually the case that you were included because, with working on the Post Office Limited team, you were being involved in determining the strategy for responding to Horizon challenges?

Hugh Flemington: So I can’t recall being involved in that strategy. When I saw this, I thought it was possible that I’d been included because we were starting to plan for separation.

Mr Stevens: Why would that be a reason for you to be included?

Hugh Flemington: So, at separation, we would have to take civil litigation cases on.

Mr Stevens: So that’s including you not in terms of advising on the separation itself but almost in preparation for your work to come?

Hugh Flemington: Yes, in terms of planning for separation.

Mr Stevens: Yes. So –

Hugh Flemington: But not me taking on civil litigation or being involved with civil litigation.

Mr Stevens: So is your evidence at this stage that, again, this was just an email sent to you and you weren’t involved in insisting with Post Office Limited strategy on responding to Horizon litigation?

Hugh Flemington: Correct. I can’t recall being involved in that.

Mr Stevens: Sorry, you can’t recall that or are you firmly saying you – well, let me rephrase that, sorry.

Is your evidence you can’t recall being involved in the response to Horizon challenges or your evidence is that you’re positively saying that you weren’t involved?

Hugh Flemington: I can’t recall but it would be very unlikely.

Mr Stevens: If you could just go down, please, to include the paragraph starting “Number 1”. It says:

“… should we wait until the conclusion of the case of Misra which is currently going through the criminal courts.”

You said you’re now aware of the case of Misra, Seema Misra.

Hugh Flemington: So, I was aware of the name because, right at the beginning of 2010, Fujitsu emails me, probably because I’d been dealing with a Track II issue, and asked me did I know who was dealing with a case called Misra? So I found out who that lawyer was and I told the Fujitsu lawyer who’d asked me. So that was my involvement with Misra.

Mr Stevens: Further on in this paragraph, it says:

“Assuming that the case is concluded within that time period, some of the issues set out below will fall away but if it is adjourned or we lose it the following points will become relevant. Misra is the prosecution case involving Issy Hogg, one of the lawyers used by Postmasters for Justice. If the prosecution is fully successful it will make the civil claims much easier to deal. With if the prosecution is only partially successful then it is likely to make the civil claims very difficult to proceed with if we cannot rely on the Horizon data.”

Can you recall any discussion about whether the Misra case was being used as a test case?

Hugh Flemington: No, I can’t.

Mr Stevens: Can we please look at POL00055590. If we can go to the bottom, please. This is an email from Mandy Talbot again on the 21 October. You’re first, it says, “To: Hugh Flemington”. It says:

“I have been made aware of the fact that many of us are on annual leave next week because of half term. In the circumstances it seems likely that we will have to reschedule again. Please accept my apologies for this. I will get my secretary to reschedule.”

The subject is “Horizon”.

So, at this point, on 21 October 2010, so a few weeks after the email we just went to, Mandy Talbot appears to be still trying to get you to attend a meeting on Horizon.

Hugh Flemington: I can’t recall any such meeting or going to any such meeting.

Mr Stevens: But would you accept that you were – again, what appears to be happening is you are being – or Mandy Talbot is trying to bring you into and involve you in discussion on Horizon matters?

Hugh Flemington: Yes, trying to. But I can’t recall where that went.

Mr Stevens: Well, if we look up, please, to the Jarnail Singh email, this is a well-known email to the Inquiry, you received this, we can see, on 21 October. Do you recall receiving this?

Hugh Flemington: I do, because of the language used and the tone.

Mr Stevens: What was it about the language used and the tone that struck you?

Hugh Flemington: Things like the word “destroy”. I thought that was emotive.

Mr Stevens: Did you think it was appropriate for a legal professional to use this language?

Hugh Flemington: I thought it was over the top.

Mr Stevens: This is an email – as you see, it says, “Marilyn Benjamin on behalf of Jarnail Singh”. Were you aware of Jarnail Singh as a lawyer at that point?

Hugh Flemington: No, other than his name when I provided it to Fujitsu back in 2010.

Mr Stevens: Did you form a view about Jarnail Singh at this time?

Hugh Flemington: No, I would have just thought it’s an email which uses emotive language. So I’d have been surprised by it but I wouldn’t have formed a view on him.

Mr Stevens: We see Ms Talbot was trying to organise some sort of meeting about Horizon. Following this email, in the weeks following, can you recall whether Ms Talbot tried to rearrange the meeting again or did that trail run cold?

Hugh Flemington: I can’t recall at all. I believe she may have left the business shortly in 2011.

Mr Stevens: Please can we bring up POL00006484. This is a note of conference at Maitland Chambers with Richard Morgan QC, as he was. Susan Crichton and you are listed in attendance from Post Office Limited. Do you have any recollection of this conference?

Hugh Flemington: I vaguely recall it, yes.

Mr Stevens: This was before the announcement of the Second Sight investigation?

Hugh Flemington: Yes. I think so.

Mr Stevens: Were you aware at that point that there was consideration being given for an independent auditor or expert such as Second Sight to produce a report on the system?

Hugh Flemington: Yes. I think I was.

Mr Stevens: Who told you about that?

Hugh Flemington: Susan Crichton.

Mr Stevens: So it’s arranged to consider, we see, Horizon litigation, and it says:

“The proposal to instruct an independent expert to prepare a report on the Horizon system is the highest risk response to the issue.”

Now, at this point, there’s also civil litigation potentially in the frame from Shoosmiths.

Hugh Flemington: Mm-hm.

Mr Stevens: Can you recall if this paragraph is referring to an independent expert such as Second Sight or the Second Sight exercise, or is this is an independent expert to address the specific civil proceedings brought against Post Office Limited?

Hugh Flemington: I couldn’t recall.

Mr Stevens: You say in your statement – we don’t need to bring up it up on the screen but it’s page 15, paragraph 56, and this was in September 2011, I should say – the understanding at Royal Mail Group and Post Office at that time was that the system was robust, so it was logical and important that these claims be defended; that’s your evidence?

Hugh Flemington: Right.

Mr Stevens: On what basis did you understand the system to be robust at this stage?

Hugh Flemington: Was that – did you say September 2011.

Mr Stevens: That was September 2011, yes.

Hugh Flemington: So there had been, I think at that point, possibly the Rod Ismay report on the system.

Mr Stevens: Pausing there, did you see the Rod Ismay report?

Hugh Flemington: I can’t recall seeing that, no.

Mr Stevens: Well, if you can’t recall seeing it how do you know if that was the basis –

Hugh Flemington: It would have been, I think, talked about.

Mr Stevens: It was talked about?

Hugh Flemington: Yes.

Mr Stevens: Yes?

Hugh Flemington: And the message was from, I think, the Civil Litigation Team that the system was robust – from the CIO team, that the system was robust.

Mr Stevens: So your basis for believing the system was robust came from colleagues telling you as such?

Hugh Flemington: Yes, I’m trying to recall if there was any further detail. I think it was the stance at the business that it was robust.

Mr Stevens: We’ve seen a couple of occasions here referring to an independent expert and the documents I took you to before, members of the Legal Team considering whether independent expert evidence was necessary or desirable, correct?

Hugh Flemington: Do you mean in terms of the conference with counsel in 2012 here?

Mr Stevens: Well, yes, here and the documents I took you to earlier, which showed querying whether an expert input was required, the emails from Mandy Talbot.

Hugh Flemington: Yes, sorry, yes.

Mr Stevens: Why was the Legal Team considering whether expert evidence was required on a regular basis?

Hugh Flemington: I don’t know. I don’t know. I wasn’t involved with those Civil Litigation Team or the Criminal Team. So how they were approaching it was very much down to them.

Mr Stevens: At this point, when you are involved in the conference, what, if any, internal investigation did the Legal Team do to understand what documents Post Office Limited held that were relevant to the issue of whether Horizon was robust or not?

Hugh Flemington: I can’t recall, but Mr Singh and Susan Crichton were running the criminal litigation at that time, so I would have expected them to consider that issue.

Mr Stevens: So that’s their issue, you say, not for you. So why were you attending the conference, then, if it wasn’t for you?

Hugh Flemington: I think I’d been asked by Susan Crichton to turn up at the conference, possibly because she wanted another view. We only had a Bond Dickinson secondee who was doing civil litigation, possibly also because it was the holiday season and, therefore, Second Sight might be appointed shortly and she wanted coverage, someone else who knew what the issues were.

Mr Stevens: Did you turn your mind to thinking whether you should look for documents held by Post Office that were relevant to the integrity of the Horizon IT System?

Hugh Flemington: I would have assumed that Mr Singh was dealing with that and doing that very thing.

Mr Stevens: At that time, were you aware of a Problem Management Team within Post Office Limited?

Hugh Flemington: Sorry, could you repeat the question?

Mr Stevens: Were you aware of the Problem Management Team within Post Office Limited?

Hugh Flemington: I can’t recall that no.

Mr Stevens: Did you have any knowledge of something called the KEL database or the Known Error Log?

Hugh Flemington: No.

Mr Stevens: Please can we turn to POL00107760. If you could go down the page, please. This is an email from Jason G Collins; do you remember who that was?

Hugh Flemington: No.

Mr Stevens: 10 August 2012, he says:

“Are speaking with Andy Garner today …”

Do you remember who Andy Garner was?

Hugh Flemington: No, I remember the name but not who he was.

Mr Stevens: “… I asked him to draw together the email below to enable me to forward to you for sight/advice. My understanding is that all matters ‘Horizon’ should pass through you before any agreed actions to support wider activity is made.”

Were you, at this point, the point of contact, essentially, in the Legal Team for Horizon matters?

Hugh Flemington: Not that I can recall, I was surprised when I saw this email, because I cannot remember being badged as such.

Mr Stevens: Can you explain why Mr Collins would have been misunderstood on that issue?

Hugh Flemington: He may have been given a mis-steer by Mr Garner. I had worked with Mr Garner before. I can’t remember in what context but he would know me, so he might have thought that he was – I was the person he knew in the Legal team and that Jason should reach out to me.

Mr Stevens: Was there a sin point of contact for Horizon issues at this time, within the Legal Team?

Hugh Flemington: I can’t recall, sorry.

Mr Stevens: Could we look, please, at POL00 – sorry, sir?

Sir Wyn Williams: Yes, by this time, of course, Mr Flemington, separation had occurred, had it not?

Hugh Flemington: Yes, that was on 1 April.

Sir Wyn Williams: So no doubt there were processes being put in place for dealing with these issues within Post Office Limited, as opposed to Royal Mail?

Hugh Flemington: Yes, I believe so. Unfortunately, my father passed away unexpectedly on 1 April, so the first three or four weeks I wasn’t around in the business.

Sir Wyn Williams: Well, I’m sorry to have heard that but I wasn’t being critical; I was just seeking an explanation for why you may have been included in things because this was all new, in reality, wasn’t it?

Hugh Flemington: Well, I was about to say that Susan Crichton and Jarnail Singh would have been sort of working up and setting up the criminal prosecution side of things in those few weeks. I know that there had been some of the MPs reaching out by this time and that was driving a discussion about would a Second Sight sort of independent review be created.

And, as I said, I was surprised when I saw myself being badged in this email as “all matters Horizon should go through Hugh”. It may have been they were aware that I was being involved in the Second Sight thing, such as the conference with counsel, by Susan Crichton.

Sir Wyn Williams: Well, it may be no more and no less than you were the Head of Legal, officially, and Susan Crichton was your boss and she’s copied into it.

Hugh Flemington: Yes, yeah.

Sir Wyn Williams: All right. Fine.

Mr Stevens: So rounding off those emails, Mr Flemington, that you’ve been taken to, we see in your evidence, actually, it’s page 5, paragraph 21, please – thank you – you say:

“My involvement with Horizon was initially sporadic and peripheral …”

You refer to a specific example there relating to resourcing for Jon Longman. You say:

“… sporadic and peripheral … until the … end of June 2013 when, before going on sabbatical from 12 July to around 3 September … I became involved in the response to emerging issues regarding Horizon.”

So, having gone through those documents – just to summarise – your evidence is, whilst you may have been copied in on various things or taken to conference, you weren’t involved, actually, in the strategy –

Hugh Flemington: No.

Mr Stevens: – of responding to Horizon matters?

Hugh Flemington: It was a very ad hoc engagement.

Mr Stevens: Secondly, at least following separation at least, your evidence is that responsibility lay within the Legal Team –

Hugh Flemington: Yes.

Mr Stevens: – with Susan Crichton and Jarnail Singh?

Hugh Flemington: Yes.

Mr Stevens: Thank you. That can come down, thank you. I want to look at a different topic now and it’s the issue of how criminal matters were dealt with in the department. You say candidly in your witness statement that you had very little civil litigation experience?

Hugh Flemington: Mm-hm.

Mr Stevens: Did you have any criminal litigation experience?

Hugh Flemington: No.

Mr Stevens: Presumably you were aware or you say you became aware, sorry, of prosecutions being made by Post Office in 2010 or 2011?

Hugh Flemington: It’s 2010, it’s mentioned. It’s that Track II PCI.

Mr Stevens: So it’s that point when you’re aware, yeah?

Hugh Flemington: Yeah, but literally of their existence, not any detail.

Mr Stevens: When we get to 2012 and separation, we’ll come to the precise scope of it, but you take over line management of Jarnail Singh?

Hugh Flemington: Yes.

Mr Stevens: I want to just go over a couple of issues on your knowledge of criminal law. Presumably you were aware of the criminal standard of proof, convincing the jury such that it’s sure of guilt?

Hugh Flemington: So, in terms of the criminal side of criminal cases to be taken by POL Legal, I had already agreed with Susan Crichton that, because I had no knowledge of criminal law, I felt unable to supervise Jarnail Singh on criminal matters.

Mr Stevens: I will come to that in a moment but, if we can just go through what your knowledge of criminal – a few matters of criminal law. Firstly, were you aware that Post Office Limited, if it brought a prosecution, had to convince a jury such that it was sure of guilt?

Hugh Flemington: I was aware that we would have certain duties but I was totally reliant on Mr Singh advising correctly on those.

Mr Stevens: Okay, I’ll ask it again. Were you aware of the criminal standard of proof –

Hugh Flemington: I cannot recall being specifically aware of that.

Mr Stevens: You say you were aware of certain duties. Presumably you would have known that there was a duty of disclosure on Post Office when it prosecuted cases?

Hugh Flemington: I recall a duty of disclosure being talked about by Mr Singh or mentioned by Mr Singh in relation to the context of criminal cases.

Mr Stevens: Did you understand that Post Office was required to disclose documents it possessed or had access to that might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused?

Hugh Flemington: I can’t recall what specific knowledge I had on the criminal cases.

Mr Stevens: Were you aware that Post Office owed a duty of disclosure following conviction?

Hugh Flemington: Again, I can’t recall specific awareness.

Mr Stevens: Let’s turn – well, actually, you’ve said it in evidence, we don’t need to turn there, but your evidence on supervision of Jarnail Singh is that you would effectively deal with normal management issues, as you put it?

Hugh Flemington: Yes.

Mr Stevens: You say it’s matters like annual leave and salary reviews?

Hugh Flemington: Yes.

Mr Stevens: But criminal prosecutions, you say those were supervised by Susan Crichton?

Hugh Flemington: Yes.

Mr Stevens: Were you aware of what experience in criminal law Susan Crichton had?

Hugh Flemington: I wasn’t, no.

Mr Stevens: So, at this point, Susan Crichton, was she responsible for the entire Legal Department?

Hugh Flemington: Yes. She was effectively the de facto GC.

Mr Stevens: So a much wider remit than you?

Hugh Flemington: Yes.

Mr Stevens: Ms Crichton’s evidence was that she had no criminal law experience. In those circumstances, why would she agree to supervise Mr Singh’s work?

Hugh Flemington: I don’t know why she decided to but she did decide.

Mr Stevens: To are you aware of how Ms Crichton supervised Mr Singh’s work?

Hugh Flemington: No.

Mr Stevens: Was, in effect, Mr Singh left to run the prosecutions independently, based on what you’re saying, without supervision?

Hugh Flemington: I couldn’t comment on that because I don’t know what interaction there was between Susan Crichton and Mr Singh over the criminal prosecutions.

Mr Stevens: Can we turn, please, to POL00141439. If we could start with page 3, please – sorry, page 2, my apologies, the bottom of page 2.

So we see this is an email from John Scott to Jarnail Singh, into which you’re copied.

Hugh Flemington: Mm-hm.

Mr Stevens: Do you remember who John Scott was?

Hugh Flemington: He was the Head of Security, I believe.

Mr Stevens: What working relationship did you have with him?

Hugh Flemington: So he would have been, I think at the time, reporting into Susan Crichton, as I was.

Mr Stevens: Sorry, I missed that?

Hugh Flemington: Sorry, I think at the time he was reporting into Susan Crichton alongside me – myself.

Mr Stevens: So did you have any working relationship with him?

Hugh Flemington: A little but not a lot.

Mr Stevens: Do you remember on what areas you would work with Mr Scott?

Hugh Flemington: Only on something like this, if he would appear and make a comment about someone like Mr Singh.

Mr Stevens: We see it says:

“Jarnail

“Thanks. Can you sent your report …”

So he’s referring to an advice on caution:

“… with the whole file please, as I like to see the full officer’s report, taped interview notes, etc.”

Next paragraph says:

“Your report is also very brief advising a caution and has not sufficiently outlined the case, supporting evidence, discussion around defence options and the rationale of why to prosecute or not, or a caution in this particular instance.”

We don’t need to see the rest – actually, we can go over, please, to the top of page – thank you. We see it says:

“Cartwright King solicitors have set a benchmark in terms of reporting and substance of advice and, for consistency purposes, to ensure decision making is robust, fair and consistent, this level needs to be maintained.”

If you can go back to page 2, please. Just slightly down, please. Thank you. We see you remain in copy, Jarnail Singh comes back with a few comments and we see John Scott’s reply immediately above. It says:

“When we discussed this yesterday before I saw the papers you were critical of CK overplaying their writeup (I acknowledge they are commercial and would wish to increase their opportunity). You were defensive of your position, failed to listen and struggled to take on board learning improvements. I keep with my statement below that CK are the benchmark and you’ve failed to meet it (whether or not this is suitable for caution/prosecution or vice versa and with [Cartwright King]).

“I now have concerns in the overall management of this part of the process.”

Why did that criticism of Mr Singh’s work come to you?

Hugh Flemington: I can’t say why it came to me, other than John Scott knew me and knew to speak to me.

Mr Stevens: But he would know to speak to Susan Crichton, wouldn’t he, if it was known that she was supervising Mr Singh?

Hugh Flemington: I think he may not have wanted to have raised this in the first instance with Susan Crichton. I remember I went round and spoke to Susan Crichton about this because I thought it was a criticism that would be levelled at her, not me, and I remember, I think, John Scott – it was discussed with John Scott and it was discussed with Mr Singh, in terms of what might have gone wrong, what could be done differently, et cetera. But this was all with Susan Crichton.

Mr Stevens: So your evidence is you have a specific recollection of discussing this with Susan Crichton?

Hugh Flemington: Yes.

Mr Stevens: To what extent were you involved in providing advice or anything else on the substance of Mr Singh’s work at this point?

Hugh Flemington: This was probably one of the only points when I got drawn into that.

Mr Stevens: What did you advise or tell Mr Singh to do in respect of this?

Hugh Flemington: I can’t remember the specifics of where it came out but I know the matter was thrashed out.

Mr Stevens: Were you concerned with Mr Singh’s competence at this point?

Hugh Flemington: So, at this point, the context for me, I suppose, was that Mr Singh had been as a criminal lawyer in Royal Mail Group for 17 years so he was quite a senior practitioner, he’d been recommended by Rob Wilson. I remember early on he’d mentioned, after separation, that he was organising training for the Investigators and I remember that involved Cartwright King, and I remember Cartwright King, after that, saying to me he was competent.

So there were various pointers which said to me, actually, you know, he’s – he knows what he’s doing. He’s been there a long time. He wouldn’t have survived at Royal Mail for 17 years without knowing what he was doing. If I had any concerns, like the one raised by John Scott, I would have flagged it to Susan Crichton. But that’s the only one I can remember.

Mr Stevens: Did you discuss with Susan Crichton whether Mr Singh was being appropriately supervised?

Hugh Flemington: I can’t recall whether that discussion happened.

Mr Stevens: This is quite a serious criticism from the Head of Security, would you accept that?

Hugh Flemington: It is but I remember at the time feeling that it was slightly personal, that there was something – some personal animosity between John Scott and Jarnail Singh.

Mr Stevens: Sir, that’s probably a good time to take the first morning break, if we can come back at 11.00.

Sir Wyn Williams: Certainly.

Mr Stevens: Thank you, sir.

(10.49 am)

(A short break)

(11.00 am)

Mr Stevens: Good morning, sir, can you see and hear me again?

Sir Wyn Williams: I can, thank you.

Mr Stevens: Thank you.

Mr Flemington, I want to ask you a few questions about the Legal team in Post Office Limited’s approach to the devolved nations. Was anyone in the Post Office Legal team qualified in Scots Law –

Hugh Flemington: Not that I recall.

Mr Stevens: – or the law of Northern Ireland?

Hugh Flemington: Not that I recall.

Mr Stevens: At any point when you were at Post Office Limited, did you have a discussion with anyone in the Legal team about how Post Office Limited handled prosecutions in Northern Ireland or Scotland?

Hugh Flemington: I can’t recall specifically, no, although, at some point, it would have been alluded to and talked about in the context of this whole Horizon issue.

Mr Stevens: In the – sorry, in –

Hugh Flemington: In the context of the whole Horizon issue and dealing with the emerging Horizon issue.

Mr Stevens: Are you talking after Second Sight’s report, when you say that?

Hugh Flemington: Possibly, that’s where I’m thinking, yes.

Mr Stevens: Do you know how the Post Office Legal Team satisfied itself that it was acting in compliance with the law of Scotland, insofar as it brought prosecutions?

Hugh Flemington: Not per se, no. That would have been something that I would have assumed that Susan Crichton and Mr Singh were dealing with.

Mr Stevens: Do I take it from that that the same applies for Northern Ireland as well?

Hugh Flemington: Yes.

Mr Stevens: I’m going to jump forward in the chronology, just whilst we are here. Are you aware of any steps Post Office took to raise issues of Horizon integrity with the Procurator Fiscal –

Hugh Flemington: Not specifically that I can recall, no.

Mr Stevens: – or the Public Prosecution Service?

Hugh Flemington: No.

Mr Stevens: You say in your witness statement that you weren’t involved in the instruction of Cartwright King –

Hugh Flemington: Mm-hm.

Mr Stevens: – Cartwright King being an external firm that Post Office Limited relied on for legal advice in relation to criminal matters?

Hugh Flemington: Yes.

Mr Stevens: Do you know who did instruct Cartwright King?

Hugh Flemington: I had understood it was Mr Singh or Susan Crichton.

Mr Stevens: Did you take any steps to understand or satisfy yourself as to what Cartwright King’s retainer was or its instructions?

Hugh Flemington: I think I would have asked about its retainer on the return to the office after my – the burial of my father. It would have been at that point I probably would have looked to see what retainer letter, et cetera, was in place.

Mr Stevens: Do you recall, in broad terms, what they were retained to do –

Hugh Flemington: I can’t recall.

Mr Stevens: Is this another matter that you say would fall to Susan Crichton and Jarnail Singh?

Hugh Flemington: Yes.

Mr Stevens: Womble Bond Dickinson was another firm instructed by Post Office Limited.

Hugh Flemington: Yes.

Mr Stevens: When I say Womble Bond Dickinson, I include Bond Dickinson and Bond Pearce, et cetera.

Hugh Flemington: Mm-hm.

Mr Stevens: Chris Aujard gave evidence that Womble Bond Dickinson were, at times, like an extension of the in-house Legal Team for Post Office Limited; would you agree with that?

Hugh Flemington: I could see that he might think that, if he’s dealing with a particular partner on a regular basis, for example, or a particular fee-earner from Womble Bond Dickinson on a regular basis, in the context of something like Horizon, purely because there were moments when they were probably providing a lot of support to us.

Mr Stevens: In terms of Horizon, what was your working relationship with Womble Bond Dickinson?

Hugh Flemington: In terms of Horizon issues, I would have dealt with them – I would have dealt with them when they were engaged on Horizon issues, to the extent I was also engaged on that particular Horizon issue. So, for example, in the 2012 QC con, I believe that might have been arranged with their help and then, in the emerging issue the following year in July, they were obviously involved to a degree in that, and so was I, so I would have been involved speaking to them about things then.

Mr Stevens: Did you think the level of reliance on Bond Dickinson was appropriate or usual for a business such as Post Office Limited?

Hugh Flemington: I didn’t at the time think it was unusual or feel it was unusual. We were a growing team. We were originally four, we’d grown to about 12. We weren’t allowed to grow more at that point because there were restrictions on the HR template.

Mr Stevens: When you say HR template, is that in terms of headcount?

Hugh Flemington: In headcount, yeah. So you had to still maintain a degree of externalisation to help support on day-to-day matters.

Mr Stevens: I want to look at some topics now to do with the Second Sight investigation, starting with the effect on prosecutions. Did you receive any instructions about whether or not to continue prosecutions – sorry, I’ll rephrase that.

Do you recall receiving any instructions about whether or not Post Office Limited should continue prosecutions of subpostmasters based on Horizon data, once the review by Second Sight had been announced?

Hugh Flemington: I can’t recall, no. Not specifically.

Mr Stevens: Susan Crichton gave evidence in her witness statement, which we don’t need to turn up but, for the record, it’s paragraph 255 of WITN00220100. Her evidence was:

“At some point around the time of the separation, I made it clear, including to the Security Team, that no further prosecutions were to be commenced which were reliant on Horizon evidence.”

Do you recall that instruction being given?

Hugh Flemington: No, I don’t.

Mr Stevens: Can we look, please, at POL00180855. So if we could turn to the bottom of page 2, please, we have an email from Rachael Panter right at the bottom, about the case of Wylie. It says:

“As anticipated, please see attached letter from defence solicitors in Wylie asking for our position on the ongoing Horizon investigation.”

That’s relating to Second Sight, isn’t it?

Hugh Flemington: Yes, yes.

Mr Stevens: If we can go up, please, slightly to the email from Jarnail Singh – thank you – it says:

“Hugh/Susan – please see Cartwright King’s email. I raised this with you and briefly discussed this with Hugh last week with our possible approach …”

I think you say in your witness statement that you have no recollection of that discussion; is that correct?

Hugh Flemington: That’s correct.

Mr Stevens: Well, just pausing there, in your career, you handed really dealt with criminal law matters before?

Hugh Flemington: Not at all, no.

Mr Stevens: So, at this point, you’re being brought into discussions about Post Office’s position on whether to continue prosecutions pending an investigation by Second Sight –

Hugh Flemington: Correct.

Mr Stevens: – and there would be severe ramifications for the business if Second Sight uncovered any systemic problems?

Hugh Flemington: Yes, correct.

Mr Stevens: So it’s a high-stake situation?

Hugh Flemington: Yes.

Mr Stevens: It was an unusual moment in your career; would you agree?

Hugh Flemington: It was interesting.

Mr Stevens: Is it really your evidence that you can’t remember your discussion with Jarnail Singh around this time?

Hugh Flemington: No, because my – I can’t recall but, because I wasn’t involved in the prosecutions, my suspicion would be that I would have said this needs to be discussed with Susan.

Mr Stevens: Well, if we look, you are involved, still –

Hugh Flemington: Yes.

Mr Stevens: – now in the decision making, yes?

Hugh Flemington: Yes.

Mr Stevens: If we go to page 1, please. To the bottom. Sorry, that’s fine, thank you. Some other emails, and Jarnail Singh comes back on 10 July, this time just to you –

Hugh Flemington: Mm-hm.

Mr Stevens: – saying:

“Hugh, what we say to …”

Then 3 and 4 is:

“Do we agree to defendants request for stay or adjournment pending completion of the audit report or let the court decide.

“What are we going to do with existing, pending and future investigations and losses …”

So, effectively, he’s asking for guidance on Post Office’s position –

Hugh Flemington: Yes.

Mr Stevens: – on prosecutions –

Hugh Flemington: Yeah.

Mr Stevens: – during –

Hugh Flemington: Yeah.

Mr Stevens: – the Second Sight investigation?

Hugh Flemington: Yeah.

Mr Stevens: If we see at the bottom there, he’s specifically taken out Susan Crichton out of copy, hasn’t he?

Hugh Flemington: Yes.

Mr Stevens: Why would he do that if you weren’t supervising on criminal law matters?

Hugh Flemington: So I don’t know because occasionally, sporadically he would copy me in on criminal law matters, I would remind him that he should be dealing with Susan on them. I took a pragmatic approach, which is, if there was anything I could progress to move matters along, then I would. But, most of the time when he did this, it would end up being – going to get Susan in a discussion with Jarnail over the issue.

Mr Stevens: If we can go up the chain, please. We see you say:

“Okay are you able to advise Susan and I or do you want this to go to counsel?”

He says:

“Hugh – if I can have some answers, steer and stance, I can then [I think it should be ‘advise’] Cartwright King and have input from them.”

Hugh Flemington: Mm-hm.

Mr Stevens: If we go further up, please, you say – this is now to Susan Crichton:

“He doesn’t seem to be able to do recommendations, does he …”

Were you having concerns about Mr Singh’s competence at this point?

Hugh Flemington: I think this was about my first dealing with Mr Singh, after separation, after he’d arrived. So this might have been one of my earliest experiences of him and I’m looking at this chain, I’ve been drawn into it, I’ve told him before: “Actually, you’re working with Susan Crichton on these matters”. I’m trying to make constructive points and move it along.

I’m probably getting frustrated at this point. I’ve got other matters I’m dealing with. So it would be more like frustration over this particular moment than anything larger around Mr Singh.

Mr Stevens: So did you remain satisfied that Jarnail Singh was an appropriate person to be dealing with this issue in criminal prosecutions?

Hugh Flemington: So I would have discussed any concerns I had with Susan Crichton about Mr Singh. I can’t recall, on the back of this, whether or not I discussed any concerns.

Mr Stevens: I’m going to go to Harry Bowyer’s advice of 11 July 2012 now, so just after this email chain. Before I do, I understand it that you accept that you received and read this advice by 16 July 2012; is that right?

Hugh Flemington: Yes.

Mr Stevens: Thank you. Well, we can go straight to the advice then, please. It’s POL00026567. You see it’s an advice in the case of the Crown v Wylie, and it sets out the facts of the allegations. We can go down, please, to paragraph 2. Thank you. It’s referring in paragraph 2 – we don’t need to read it out – but it’s referring to the Second Sight investigation and the ramifications Mr Bowyer thought that caused. Paragraph 3, please. It says:

“The first consequence is that we have now given ammunition to those attempting to discredit the Horizon system. The argument will be that there is no smoke without fire and we would not have needed to audit a bomb proof system. We can expect this to go viral in that any competent defence solicitor advising in a case such as this will raise the integrity of the Horizon system and put us to proof as to its integrity. As all of our cases depend on the system to compute the alleged losses this is likely to affect a considerable percentage of our cases.”

So what were your thoughts, when you read that paragraph?

Hugh Flemington: I suppose it’s essentially flagging the idea that Second Sight being appointed might end up with a lot of claims against the Post Office, if they find particular issues with Horizon. It’s similar to – I think it’s mentioned as “floodgates” in the Morgan conference advice, and I remember thinking at the time that, once you had instructed Second Sight to do an independent review, there were two logical outcomes: either it would find nothing or it would find something and you would have to deal with the consequences. So, for me, that was always a logical possibility.

Mr Stevens: When you thought about that, did you turn your mind to what should happen in between, so what should happen to criminal cases whilst the investigation was ongoing?

Hugh Flemington: No, because I saw that as for Susan Crichton and Mr Singh to make a decision on.

Mr Stevens: We’ll come back to that point shortly. If we could go down, please, to paragraph 6(i). This is the advice Mr Bowyer gives on what to do, on next steps. It says:

“We should identify the contested cases, civil and criminal, in which the Horizon system has been challenged. We should identify the areas of challenge and how we neutralised them.”

So advising, effectively, a looking-back exercise of past times when the Horizon IT System had been challenged, correct?

Hugh Flemington: Yes.

Mr Stevens: When you read this, did you consider whether Post Office should have reviewed whether there was any material that may assist the defence in those past cases?

Hugh Flemington: I would have expected Mr Singh and Susan Crichton to already have been looking at that as part of the ongoing prosecution of the cases.

Mr Stevens: So, effectively, you thought it wasn’t your responsibility?

Hugh Flemington: No, because I wasn’t dealing with those cases and I didn’t have supervision or carriage of them.

Mr Stevens: If we could carry on over the page, please. It says:

“An expert should be identified and instructed to prepare a generic statement which confirms the integrity of the system and why the attacks so far have been unfounded. This expert should be deployed in all cases where the Horizon system is challenged and he should be prepared to be called to reply to defence experts on a case-by-case basis.”

Did you agree with that advice?

Hugh Flemington: I wouldn’t have had the experience or the expertise to disagree with it.

Mr Stevens: So you didn’t think, for example, that, actually, it was a Post Office duty to investigate cases on a case-by-case basis to see if there was a problem in the Horizon IT System in that particular case?

Hugh Flemington: So I would have been expecting and relying on Mr Singh and his expertise, and Ms Crichton’s supervision of the criminal matters, to ensure that all that was done properly.

Mr Stevens: Well, let’s look at some of the emails surrounding this time, please. It’s POL00141400, please. If I can turn to page 2 – thank you – and to the bottom, please. Jarnail Singh’s email of 16 July 2012 to Andy Cash, Cartwright King, and you are copied in with Susan Crichton.

Hugh Flemington: Mm-hm.

Mr Stevens: It refers to the defence approach to staying of prosecutions until the review is completed. It says:

“Post Office view is that such an approach [would] be resisted. Review to be conducted is limited in scope in few and isolated cases.”

It goes on to say:

“There are no legal or forensic grounds to argue defendants will not get fair trial or abuse of process. There is no reason to justify the case being stayed.”

If we can go over the page, please, to page 1, down slightly, it’s an email from you, 16 July 2012, Jarnail Singh, Susan Crichton and Alwen Lyons in copy. It says:

“One for our 3.30 meeting I think.”

Presumably that’s referring to the decision on whether to oppose or agree to applications for stays made by defendants?

Hugh Flemington: Yes, this may have been the case that we already had a meeting scheduled on something else and so I’m saying, okay, this issue has come up, I’ve tried to distil down on this email what the things are for discussion, and then a discussion can be had on it.

Mr Stevens: So you’re involved in the decision making at this point?

Hugh Flemington: I wouldn’t have been involved in the decision making; I would say that I was facilitating a discussion at this point. I’ve been reached out to by Jarnail Singh, not of my doing. I’m trying to progress the matter in a sensible way but I’m making sure that, ultimately, there’s a discussion between Jarnail Singh and Susan Crichton.

Mr Stevens: Why did it require you to facilitate a discussion between the General Counsel and someone you say is being supervised by her?

Hugh Flemington: It was a point of frustration from time to time that I would have with Mr Singh.

Mr Stevens: What, can you expand on that, please?

Hugh Flemington: Because he would email me or include me in an email and I would say “Jarnail you’re meant to be doing the criminal cases with Susan Crichton, please”.

Mr Stevens: Did you ever approach Susan Crichton and say, “Please can you exercise more oversight of Jarnail Singh because he keeps emailing me”?

Hugh Flemington: I recall flagging the issue to her and saying, “I keep getting copied into things”.

Mr Stevens: Do you recall what was discussed at the meeting at 3.30 on 16 July 2012?

Hugh Flemington: I can’t, no.

Mr Stevens: Please can we turn to POL00058155. If you can go to page 2, please, and to the bottom, please. Thank you, that’s perfect. So this is an email from you to Susan Crichton on 24 July, forwarding an email about a week earlier from Jarnail Singh, and you say:

“This is the story text which J [presumably Jarnail] put together following our meeting last week. Any comments [please] before we release it?”

Do you remember the background to this?

Hugh Flemington: I think this was in relation to the appointment of Second Sight and explaining why Post Office had appointed Second Sight, and so I think Mr Singh will have involved me originally because he will have known that I would have been drawn into the Second Sight issue by Susan Crichton so, for example, you see me going to that con with counsel. So I’m reached out to, he obviously needs to put a draft statement together, and this is the progression of that statement.

Mr Stevens: This is quite a significant time for Post Office Limited’s Legal Team, isn’t it?

Hugh Flemington: In the sense of?

Mr Stevens: In the sense that it’s dealing with a how to progress prosecutions in the face of the Second Sight investigation?

Hugh Flemington: Yes, although there were lots of important moments along the way.

Mr Stevens: But is it the case that you were actually being brought into this because it was an important matter for the Post Office Legal team to deal with?

Hugh Flemington: I’m not sure that was the case. It might have been more ad hoc than that.

Mr Stevens: Sorry, can you repeat the last bit?

Hugh Flemington: It might have been more ad hoc than that, in that I’d been involved by Jarnail at the start of the email conversation, and it snowballed from there.

Mr Stevens: If we go to page 2, please. We see there the signature is from Ronan Kelleher, Head of PR and Media at Post Office Limited. Do you know why a PR person was brought in for this?

Hugh Flemington: No, and I can’t recall their name.

Mr Stevens: The last sentence – actually, no, in fairness to you, I should show you the start of the email, please – thank you – it says:

“As this [email] will most probably find its way into the media, we do need to get the message across [‘from’, it should be] the start that we continue to have full confidence in the robustness of the Horizon system and then reinforce it so I suggest the following tweaking to the proposed wording from Jarnail …”

If we go down, please. At the bottom, we see the sentence:

“When the system has been challenged in criminal courts, it has been successfully defended.”

Which was taken from Mr Singh’s draft of the copy as well.

Did you take any steps to satisfy yourself that that was accurate?

Hugh Flemington: I can’t recall.

Mr Stevens: Do you think you should have done?

Hugh Flemington: I would have been relying on Mr Singh and Ms Crichton to run the prosecutions in an appropriate manner, so if that was required, then I would have expected them to be doing that.

Mr Stevens: This is slightly different, isn’t it, from running the prosecutions. This is a statement on the position in respect of Second Sight, and it’s one on which you’ve become involved. Did you not think it was incumbent on you to check that this was accurate?

Hugh Flemington: So I would have been relying, I suppose, on people who have pulled this together.

Mr Stevens: Were you aware of the acquittals following trial in criminal proceedings of Maureen McKelvey and Suzanne Palmer at this stage?

Hugh Flemington: No.

Mr Stevens: Could we please turn to POL00120723. This is a letter from Cartwright King, we see it’s in the case of Post Office Limited v Wylie. If we go down, please, to just under halfway, we see it says:

“The Crown’s position on the integrity of the Horizon system is set out in Steve Bradshaw’s statement dated 20 November 2012.”

If we turn to page 5, please. That’s the statement from Stephen Bradshaw and it’s effectively the statement that was drafted by the PR person we saw and, if you could go over the page, again, we see:

“When the system has been challenged in criminal courts it has been successfully defended.”

Were you aware of a decision in the Post Office Legal Team for that copy to be used as witness statements in criminal proceedings?

Hugh Flemington: No, I wasn’t.

Mr Stevens: Do you think that’s a failure, that you were sort of involved in an ad hoc basis but not aware of the wider issues and how a statement such as that was being used in criminal proceedings?

Hugh Flemington: So I think, because I was involved in an ad hoc way and involved not at my choosing but someone reaching out to me, then it was clearly impossible to control what was happening. I had always understood that those prosecutions were being run appropriately, in good faith by Susan Crichton and Mr Singh.

Mr Stevens: Did you take any steps to satisfy yourself that that was accurate?

Hugh Flemington: I can’t recall.

Mr Stevens: Could we please turn to POL00133644. We see this is a witness statement of Gareth Jenkins, dated 27 November 2012. If we look over the page, please, midway down, it says:

“I have been asked to provide a statement in the case of Kim Wylie.”

So it’s the Wylie case we’ve seen appear a few times now. Over at page 3, please, Mr Jenkins says:

“I also note a comment made about it being possible to remotely access the system. It is true that such access is possible; however in an analysis of data audited by the system, it is possible to identify any data that has not been input directly by staff in the Branch. Any such change to data is very rare and would be authorised by Post Office Ltd.”

I should ask first, did you see this statement at the time?

Hugh Flemington: Sorry?

Mr Stevens: Did you see this statement at the time?

Hugh Flemington: No, I wouldn’t have seen any witness statements on criminal prosecution cases.

Mr Stevens: Did anyone in the Post Office Legal team make you aware of this aspect of the statement about remote access?

Hugh Flemington: No.

Mr Stevens: Did anyone at Cartwright King raise this with you?

Hugh Flemington: No.

Mr Stevens: I want to go to a different matter now, again relating to Second Sight, and that’s about bugs, errors and defects. Can we turn to POL00060572, please. If we turn to page 2, please, so we see your email of 28 June, and we can see you referring to various – well, you see it says:

“this Comms statement to include:

“… found the 64 and 14 bugs”, which we know are called the receipts and payments mismatch bug and the suspense account bug.

So, at this point, I understand you accept you were involved with the response to challenges to Horizon more directly.

Hugh Flemington: Yes, I think this might have been the first day, because I’m not in the office. It’s a Friday and I wouldn’t work on a Friday. But I think Susan Crichton was away on holiday and I think I got reached out to and, probably before this email, there will have been a conference call with the people on the email because this looks like me rushing to get an email out just before people go home for the weekend on a Friday, because things needed to happen.

Mr Stevens: We don’t need to turn it up on the screen but, at paragraph 115 of your statement, page 27, you refer specifically to this email and you say:

“I must have spoken to Jarnail Singh before drafting this email as I would have been unfamiliar with the criminal case and procedural issues, such as adjournments.”

Hugh Flemington: Mm-hm.

Mr Stevens: First, can you recall what Mr Singh told you about bugs, errors or defects, if anything?

Hugh Flemington: Sorry, can you repeat?

Mr Stevens: Did Mr Singh tell you anything about bugs in the Horizon IT System?

Hugh Flemington: No.

Mr Stevens: That can come down. Thank you.

I want to explore your knowledge of bugs. Before June 2013, were you aware of any bugs, errors or defects in the Horizon IT System?

Hugh Flemington: Not that I can recall, no.

Mr Stevens: Would you accept that, in early July 2013, you became aware of something called the Callendar Square bug?

Hugh Flemington: Yes.

Mr Stevens: Did you know, at that point, so by July 2013, when Post Office first had knowledge of the cash accounts bug?

Hugh Flemington: Is this the Falkirk bug?

Mr Stevens: Yes, I’m so sorry, yes. Callendar Square/Falkirk?

Hugh Flemington: I think in the bundle there is an email, I think, to Susan Crichton and I, talking about that bug at around that time.

Mr Stevens: Yes, well, we can turn to that, or at least what I think you’re referring to, it’s POL00029628. Just bear with me, sorry. I have to catch up.

At the top, we see from Lesley Sewell and we see your name is at the very far right and left, so it’s sent to you.

Hugh Flemington: Mm.

Mr Stevens: If we go down, please, to the email from Gareth Jenkins, it’s subject “Callendar Square”:

“I’ve found some details on the problem …

“It was first raised in September 2005. The fix was applied as part of S90 which was rolled out February/ March 2006.”

Next paragraph down, it says:

“We reported the problem to [Post Office Limited] but I don’t know how much of an investigation was carried out into the scope and the number of affected branches. I was not involved in the issue at the time and only really became aware of it as part of the Misra case in 2010.”

At that point in time, July 2013, when did you think that Post Office were first made aware of the Callendar Square bug?

Hugh Flemington: Having seen this, I would have assumed it was September – no, he doesn’t say that, does he? I don’t know. I don’t know.

Mr Stevens: Did you take any steps to find out?

Hugh Flemington: So I would have expected this to have come out of the enquiry stream that we were running at this time. So when that Friday, the 28th had occurred and the two other bugs were mentioned, the first priority, as I saw it, was, “Let’s understand what the impact is for the criminal cases and the civil cases and, first and foremost, what do we need to do about those?” And, as part of that, I would have assumed that what would have come out would have been fact finding around the bugs and this one, as well, as to who knew what when.

Mr Stevens: Can you recall what the answer to “who knew what when” was?

Hugh Flemington: I can’t recall, no, I’m sorry.

Mr Stevens: Did you see any documents that were relevant to when Post Office Limited discovered the Callendar Square bug?

Hugh Flemington: I can’t recall.

Mr Stevens: Do you remember how Post Office Limited searched for documents on that issue?

Hugh Flemington: No.

Mr Stevens: Moving to the receipts and payments mismatch bug, do you accept that you were aware in late June 2013, firstly, about the receipts and payments mismatch bug?

Hugh Flemington: This is one of the ones I would call the 14 –

Mr Stevens: The 14 bug?

Hugh Flemington: Yes, yes.

Mr Stevens: Can we turn, please, to POL00107948. At the bottom of that page, please, we see an email from Rodric Williams, 1 July, to you and others, yes?

Hugh Flemington: Yes.

Mr Stevens: It refers to a draft briefing note. If you carry on further down, please, to page 4, and to the bottom, please. You see an email from Simon Baker, “Summary of Receipts Payments problems”, and the timeline set out: March 2010, first incidence occurred; March 2011, letter sent to branches and corrections made.

So, at this time, July 2013, you were aware, weren’t you, that Post Office Limited had been aware of this receipts and payments problem by at least March 2011?

Hugh Flemington: Yes, I think at this point this information is coming, yes.

Mr Stevens: So the receipts and payments mismatch was the 62, I think. We’ll look at the 14 –

Hugh Flemington: Yeah, okay.

Mr Stevens: – which I call the suspense account bug. In early July 2013, do you accept you were aware that Post Office had knowledge of the suspense bug in June 2012?

Hugh Flemington: That’s the one we just saw on the –

Mr Stevens: Let’s go to the document, so it may be easier that way.

Hugh Flemington: Thank you.

Mr Stevens: POL00029641, please. Thank you. We see you’re the sendee at the top –

Hugh Flemington: Yeah.

Mr Stevens: – the sender, sorry, dated 4 July 2013, to Susan Crichton. You say:

“We need to keep each other copied in on everything.”

You see, “Timeline for Local Suspense Problem.”

If we can go down, please. It says, email from Rodric Williams:

“All – here’s my summary of my call with Andy Winn …”

It says:

“Issue first surfaced at [Post Office Finance Centre] on 6 February 2012, at the close of Branch Trading period.”

You see that that was resolved without noting the bug. If we go over the page, please – that was my error, slightly up – thank you:

“On 6 February 2013, the Willen [branch subpostmaster] contacted [the NBSC] to report the same discrepancy in his branch trading as the previous year.

“NBSC passed this on to Fujitsu between 6 and 8 February 2013.

“Fujitsu then notified FSC …”

That’s Post Office Finance Service Centre, isn’t it?

Hugh Flemington: I don’t know, sorry.

Mr Stevens: Well, if you look at the top, first bullet point?

Hugh Flemington: Oh, okay, sorry. Thank you.

Mr Stevens: “… of the problem on 28 February 2013.”

So, by this point, you were aware on this issue, the suspense account issue, Post Office had knowledge of it from 28 February 2013.

Hugh Flemington: Yes.

Mr Stevens: Was this common knowledge at this time in the Legal team?

Hugh Flemington: I think it would have been known between the lawyers, Susan Crichton, myself, Mr Singh and Rodric Williams, and this week was a whirlwind, so information was coming every day. There were briefing notes to be commented on every day. This was a very busy week.

Mr Stevens: At that point did you think there would have been documents relevant to those bugs to which Post Office Limited had access?

Hugh Flemington: I can’t recall that specific thought. Our priority was to get the criminal and civil advice to see how we took it forward, if there were any issues around the convictions, et cetera, that were unsafe.

Mr Stevens: Well, at this point, you’re finding out that Post Office had knowledge, over a number of years, of various – three bugs, correct?

Hugh Flemington: Yes, I think so.

Mr Stevens: And you’re considering what advice is necessary on civil and criminal –

Hugh Flemington: Yes.

Mr Stevens: – including criminal convictions?

Hugh Flemington: Yes. We’re seeking that advice from the external specialists.

Mr Stevens: Surely it must have occurred to you that one of those issues would be, “Well, have we disclosed documents that are relevant to these bugs, to people who have been convicted on the basis of Horizon data”?

Hugh Flemington: I assume that was part of what the externals were considering at looking at, yes.

Mr Stevens: Why weren’t you considering it?

Hugh Flemington: So in – I thought it was being dealt with by the externals in conjunction with Mr Singh and Mr Williams.

Mr Stevens: But you’re being brought in here, aren’t you?

Hugh Flemington: Yes.

Mr Stevens: Do you accept, on its face, there’s a potential serious disclosure failing here, if information about these bugs hadn’t been communicated to subpostmasters who’d been convicted on the basis of Horizon data?

Hugh Flemington: Yes, and I understood that was the advice we were seeking.

Mr Stevens: Is your evidence that, at that point, it didn’t occur to you to look for documents yourself that may be relevant to those bugs, errors and defects?

Hugh Flemington: I can’t recall that specific issue.

Mr Stevens: Do you think you would have thought that? Is it likely that you would have thought that?

Hugh Flemington: It’s difficult to say. Why is it difficult to say?

Mr Stevens: Why is it difficult to say?

Hugh Flemington: Because of my lack of knowledge of criminal law.

Mr Stevens: But, standing back, do you need knowledge of criminal law to know that, if someone has been convicted on the basis of Horizon data and Post Office is aware or had been aware of bugs in the Horizon system, that it was necessary to disclose documents relevant to that?

Hugh Flemington: I would have expected any direction around that to come from the external advice and say, “Okay, you need to do X, Y and Z”.

Mr Stevens: Well, in these discussions at the time, was anyone saying, “We need to look for these documents”?

Hugh Flemington: I can’t recall that, no.

Mr Stevens: Can we look at POL00145142. So this is your email to Martin Smith and Simon Clarke, they’re both representatives of Cartwright King?

Hugh Flemington: Yes.

Mr Stevens: We see Jarnail Singh, Susan Crichton and Rodric Williams in copy. You’re asking for whether advice had been changed because of a new timeline on the local suspense account bug. You put two questions. The first is:

“Do you still have to look back to cases since it first happened in Jan 2012 (we will want you to anyway).”

Can I just ask you to explain what advice you were seeking in that question?

Hugh Flemington: I can’t recall offhand. I must have thought there was a logical question to be asked and I asked it.

Mr Stevens: You can’t assist us further?

Hugh Flemington: It looks like I’m asking about do we have to go back and review past cases?

Mr Stevens: At that point, why was January 2012 being picked?

Hugh Flemington: I don’t know. I can’t recall.

Mr Stevens: Can you recall whether anyone raised the review going back to 2005, when the Callendar Square bug was identified?

Hugh Flemington: I can’t recall, sorry.

Mr Stevens: You say, number 2:

“Does this mean the only GJ …”

Presumably that’s Gareth Jenkins?

Hugh Flemington: I would expect so, yeah.

Mr Stevens: “… the only [Gareth Jenkins] statements that might give concern are the ones since February 2013?”

Do we take it from that that, at this point, you were aware of the advice that was subsequently given in writing by Simon Clarke that Gareth Jenkins, in his view, was in breach of his duties as an expert?

Hugh Flemington: I can’t recall. I may have gone to that gone to that con on the 3rd. I can’t recall.

Mr Stevens: Well, what else would that mean?

Hugh Flemington: I don’t know if someone was talking about the statements in a high-level way, I just can’t recall, I’m afraid. There’s clearly an issue that I’ve picked up on but I can’t remember any of the detail about it.

Mr Stevens: We know as a matter of fact what happened. On 15 July, Simon Clarke gave advice on Gareth Jenkins, in stating he was in breach of his duty as an expert. That was a written advice. Are you aware of anything else that this email could refer to relating to Gareth Jenkins’ statements, other than concerns raised by Martin Smith and Simon Clarke as to his duties as an expert?

Hugh Flemington: I’m afraid I just couldn’t remember and I couldn’t think of anything but I can’t recall with any certainty.

Mr Stevens: I’m going to put it one final time: do you accept, at this stage, 4 July 2013, you were aware of the concerns about Gareth Jenkins as an expert and whether he was in breach of his expert duties?

Hugh Flemington: I may have been but I just cannot recall.

Mr Stevens: You say:

“Susan and I have to brief the CEO at 9.45.”

Hugh Flemington: Mm-hm.

Mr Stevens: Can you remember what that briefing was about?

Hugh Flemington: No.

Mr Stevens: I expect I know the answer to this but do you remember what you told the CEO and whether you told her anything in relation to Gareth Jenkins?

Hugh Flemington: I’m afraid I don’t.

Mr Stevens: Please could we go to POL00296821, and if we could go – we see there, sorry, you’re sent this email by Alwen Lyons on 28 June. If we go down slightly, we see:

“FYI – summary advice on the impact of bug 14 on Bowness Road.”

Then, back to the top, Alwen Lyons says:

“Can we call bugs incidents from now on please.”

Do you remember receiving this email?

Hugh Flemington: I don’t remember receiving it but I do remember some people wanting to use different words for bugs.

Mr Stevens: What do you remember about that?

Hugh Flemington: I remember thinking at the time it was slightly idiotic, in that people would know what was being talked about, so why would you use a different word?

Mr Stevens: Did you ask for the reasons behind this message?

Hugh Flemington: I can’t recall if I did or no.

Mr Stevens: Was it because people in Post Office wanted to play down the impact of the word “bug”?

Hugh Flemington: I don’t know. It may have been but I don’t know.

Mr Stevens: Did you follow this advice?

Hugh Flemington: I can’t recall personally following it.

Mr Stevens: Can we, please, go to POL00407582. This is an attendance note with Simon Richardson. Is he of Bond Dickinson?

Hugh Flemington: Yes, I think he was one of the senior partners at Bond Dickinson.

Mr Stevens: It’s on 10 July, you and Susan Crichton are noted to be in attendance. If we could just go down so we can see more of the body of the attendance note, please. Can you remember what the purpose of this conference was?

Hugh Flemington: No.

Mr Stevens: At 3 –

Hugh Flemington: I think it was in the context of I was about to go away for a period of time and I think there was challenge because Rodric Williams was due to be away the following week and Mr Singh, I believe.

Mr Stevens: Why was that relevant to the conference?

Hugh Flemington: I think the genesis of the conference might be Susan Crichton seeking a degree of high-level support from Bond Dickinson at that point.

Mr Stevens: At 3, we see it says:

“The Board want to sack SS …”

Does that refer to Second Sight?

Hugh Flemington: I believe so, yes.

Mr Stevens: “… and of course are now not coping well with the fact that they are independent. [Susan Crichton] is going to arrange to meet [Second Sight] and she asked if she could use our offices next Tuesday.”

What was the discussion on –

Well, no, let’s start first, does “the Board” refer to the Board of Post Office Limited?

Hugh Flemington: I believe so.

Mr Stevens: What can you recall about this discussion?

Hugh Flemington: I can’t recall anything specifically about this discussion.

Mr Stevens: It’s quite significant, isn’t it, the Board saying they want to sack Second Sight?

Hugh Flemington: I remember that particular thought being mentioned, probably by Susan Crichton, at some point in these two weeks because I was surprised because I’d always thought Second Sight was the way to go. So I wasn’t persuaded by those floodgate arguments, et cetera, back in the previous summer when they were appointed. And I thought, once you had appointed them and signed up to an independent review, then there was always the chance that you would get an answer that wasn’t an answer that you were expecting.

So to have a reaction suggested by, you know, somebody’s view was “sack Second Sight”, that seemed to be slightly odd because that would be a very public event.

Mr Stevens: Well, if you thought it was slightly odd – you say you thought it may have been Susan Crichton – did you ask her why they wanted to sack them?

Hugh Flemington: I may have done but I can’t remember when sacking them was first mentioned.

Mr Stevens: Well, this was an attendance note of 10 July 2013, so it’s mentioned by that point.

Hugh Flemington: Yes, yeah.

Mr Stevens: Do you recall why or were there any reasons given as to why it was said the Board want to sack Second Sight?

Hugh Flemington: No, I can’t recall any specific conversation or explanation of reasons.

Mr Stevens: Just before we take the break, you’ve referred to you were about to go way for a period of time and in your witness statement you say that was for a sabbatical?

Hugh Flemington: Yes.

Mr Stevens: When was it arranged that you would go on sabbatical?

Hugh Flemington: Probably the previous year because it was driven – my wife had a sabbatical at her place of work.

Mr Stevens: So it was unconnected to Second Sight?

Hugh Flemington: Totally unconnected.

Mr Stevens: Sir, that’s probably a good time to take the second morning break. If we could come back at 12.10.

Sir Wyn Williams: Yes, okay. But we’re going to finish this witness this morning, I take it?

Mr Stevens: Yes, absolutely. I’ve not many more questions.

Sir Wyn Williams: That’s fine, Mr Stevens, okay.

Mr Stevens: Thank you, sir.

(11.59 am)

(A short break)

(12.10 pm)

Mr Stevens: Good afternoon, sir, can you see and hear me?

Sir Wyn Williams: Yes, I can, thanks.

Mr Stevens: Okay, I’ll carry on.

I went earlier to your knowledge of Gareth Jenkins and the advice of Simon Clarke, that he was in breach of his expert duties.

Hugh Flemington: Mm, yeah.

Mr Stevens: I asked you, by 4 July 2013, were you aware of that and you said you couldn’t recall. Do you now have a positive recollection as to when you first became aware of those issues?

Hugh Flemington: Not a precise, positive recollection, no, sorry.

Mr Stevens: Can we turn to POL00060681, please. So this is an email from you to Will Gibson –

Hugh Flemington: Mm-hm.

Mr Stevens: – on 9 July 2013. It says, next to Will Gibson’s name “ShEx”, that’s the Shareholder Executive, isn’t it?

Hugh Flemington: Yes, that’s the department, the BIS Government Department that’s responsible for the Post Office.

Mr Stevens: So, effectively, the agency that oversaw the Crown’s shareholding interests –

Hugh Flemington: Yes, yes.

Mr Stevens: – in Post Office. Did you often report to people at Shareholder Executive?

Hugh Flemington: No, by exception.

Mr Stevens: You see you say:

“URGENT – Will – intel on MP cases – JFSA case intel to follow.”

You set out a matter on the Misra case. Do you remember why you were asked to provide this information?

Hugh Flemington: No, it may have been – given it was ShEx and Will Gibson, it may have been that some information needed to be given to a Government minister.

Mr Stevens: Would you have put this together yourself or would you have relied on –

Hugh Flemington: Absolutely not. This would have come from Mr Singh.

Mr Stevens: Mr Singh?

Hugh Flemington: Yeah.

Mr Stevens: Would you have taken any advice from Cartwright King, as well?

Hugh Flemington: I can’t recall. I think it might be Mr Singh because also he is copied in on the email.

Mr Stevens: It says:

“MISRA case

“Defendant pleaded not guilty to theft (but pleaded guilty to [false accounting])

“Defendant produced computer expert to argue Horizon issues

“[The Post Office] used Fujitsu expert to argue Horizon issues

“Outcome – found guilty by a jury of theft after a 7-day trial

“Evidence relied to convict –

“She alleged it was either Horizon computer or her employees

“She said after she got rid of employees the losses got worse

“Therefore she blamed Horizon (at a late stage in proceedings – after it was listed for trial – so this trial got adjourned whilst each side got Horizon evidence together)

“It was a jury trial – so no explanation as to what evidence was relied on by them re conviction.”

Why didn’t you refer to the advice that had been given about Gareth Jenkins, that he was in breach of his duties as an expert?

Hugh Flemington: I can’t recall. I know this would have been provided by Mr Singh and I would have been relying on him to give me the correct picture.

Mr Stevens: I know you say you can’t recall when you became aware of the allegations about Gareth Jenkins, if you were aware of those matters at the time you sent this email, did you accept you should have included it in this email?

Hugh Flemington: I wouldn’t have necessarily assumed that, because something around that might have been dealt with by Susan Crichton, at that level, with ShEx.

Mr Stevens: On the basis that you were aware of the issues to do with Gareth Jenkins, this summary of the Misra case isn’t a full and fair description of the issues Post Office Limited was facing in relation to this Misra case, was it?

Hugh Flemington: Sorry, I think the context of this email was that an urgent turnaround on it was needed and I think it’s done in a matter of minutes, if you look at the timing, so –

Mr Stevens: It wouldn’t take you long, would it, to write, “We have advised that the expert evidence in this trial was provided by an expert who has been in breach of his duties”?

Hugh Flemington: I agree with you but I’m not – I can’t recall at the time whether I took the point or not.

Mr Stevens: You didn’t raise the point, did you?

Hugh Flemington: I didn’t raise the point because it’s not on that email, no.

Mr Stevens: The issue is why; do you know why?

Hugh Flemington: I can’t recall at the time.

Mr Stevens: Can you think of a good reason why you didn’t?

Hugh Flemington: I’m sorry, I can’t.

Mr Stevens: Would you accept that it’s a failing not to have referred to it?

Hugh Flemington: I don’t know if it’s a failing because I don’t know if that information was being separately communicated to ShEx.

Mr Stevens: Well, would it be incumbent on you to check if it was being separately communicated to ShEx?

Hugh Flemington: So, if you see, I’ve also copied in Susan Crichton and Alwen Lyons.

Mr Stevens: Did you take steps with them to see that they were communicating the issues with Gareth Jenkins to Shareholder Executive?

Hugh Flemington: I may have done but I can’t honestly recall.

Sir Wyn Williams: I think you told me that this email was either drafted by – these are my words, not yours, so let’s see if I’ve got it right – it was either actually drafted for you by Mr Singh or the information came from Mr Singh, so, if Mr Singh knew of the advice about Gareth Jenkins, have you got a view about whether he should have included it or told you about it?

Hugh Flemington: If he knew about it and he thought it was pertinent from the criminal perspective, then, yes, I suppose he should have put it on the email.

Sir Wyn Williams: Ms Crichton and Ms Lyons were copied into this email and, if they knew of the advice about Mr Jenkins, should they have in some way intervened to ensure that the shareholder was given that information?

Hugh Flemington: I would have expected them to, which is probably why I’ve included them on copy in the email.

Sir Wyn Williams: So, one way or another, it seems to me that you are accepting that the shareholder should have been told about the information, assuming that any of these people knew about it, and you didn’t tell him, either because you didn’t know or you assumed that one of those would tell him; is that it in a nutshell?

Hugh Flemington: I think that’s probably it in a nutshell, sir.

Sir Wyn Williams: Fine.

Mr Stevens: Thank you, sir. That document can come down.

Before you went on your sabbatical, did anyone raise a concern about how Gareth Jenkins had been instructed, namely whether he’d been advised of his duties as an expert?

Hugh Flemington: I can’t recall specifically that matter being raised. That’s not to say it wasn’t discussed by someone but I can’t recall it.

Mr Stevens: Can you recall whether there was any investigation into the manner in which Gareth Jenkins had been instructed by the Post Office Limited Criminal Law Department?

Hugh Flemington: I can’t recall that during the – those July weeks in the run-up to the sabbatical.

Mr Stevens: Did you discuss this with Jarnail Singh at all?

Hugh Flemington: I can’t remember if I discussed it with him or not.

Mr Stevens: Would you accept that it was important for the Post Office Legal Department to examine how Mr Jenkins had been instructed and whether he’d been instructed properly?

Hugh Flemington: Yes, I would.

Mr Stevens: Who do you say was responsible for that?

Hugh Flemington: So I was going on sabbatical and I would have thought an issue like that would have been dealt with by Susan Crichton with support from Mr Singh or Mr Williams.

Mr Stevens: The advice on Gareth Jenkins, dated 15 July – I can bring it up if it assists – do you recall reading it?

Hugh Flemington: I recall I might have read it when I came back from sabbatical.

Mr Stevens: You say you might have.

Hugh Flemington: I can’t recall specifically but it would be likely I would have read it when I came back from sabbatical.

Mr Stevens: Did you, when you read it, check whether any steps had been taken to examine how Mr Jenkins had been instructed?

Hugh Flemington: So I remember having conversations with Susan Crichton when I came back and it was, I think, on the cusp of her resigning around – in the – sorry, in the wake of her resigning, I suppose, what matters needed addressing, and I can’t recall that being on a live list of matters as a point to be resolved.

Mr Stevens: Did you read the 2 August – I can show it if you need – advice by Simon Clarke regarding allegations that documents had been shredded?

Hugh Flemington: I can remember, I think, seeing that when I returned from sabbatical.

Mr Stevens: Presumably, that came as a –

Hugh Flemington: That was quite a – yeah.

Mr Stevens: – significant surprise?

Hugh Flemington: Yes.

Mr Stevens: What steps did you take, if any, to see whether those matters had been investigated?

Hugh Flemington: So I remember having a conversation, it might have been Mr Singh, it might have been with Susan Crichton, because I saw Susan Crichton, the correspondence that related to that, subsequently, and I have a vague recollection that it was described as a ‘dealt with’ matter and, in fact, there hadn’t been any document disruption. But that’s a vague recollection only.

Mr Stevens: I want to cover one final topic before there will be some Core Participant questions, which I anticipate will take us to lunch. Can we please bring up POL00192214. Could we go to the bottom of page 3, please. So we see discussed is a letter received from the CCRC – from Susan Crichton, I should say, sorry – you’re in copy and it says:

“… their advice feels odd to me as if given on a take it or leave it basis and I am not comfortable that’s particularly useful in this context. Could we discuss, I am happy to go to another firm that specialises in criminal law, or a barrister, somehow it feels as if there is a conflict here which I am not sure I understand.”

Do you recall there being any conversation about whether or not Cartwright King had a conflict of interest in overseeing matters related to the CCRC and the review of past convictions?

Hugh Flemington: No, I don’t.

Mr Stevens: You were copied in to this email, did you not discuss this with Susan Crichton at the time?

Hugh Flemington: No, because I think, by this stage, I had left and I was on sabbatical. I think I went on sabbatical Friday, the 12th.

Mr Stevens: So you can’t assist at all with any discussions on –

Hugh Flemington: Sorry?

Mr Stevens: You can’t assist at all with discussions on a potential conflict of interest?

Hugh Flemington: No, I don’t think I was – I know there are occasions where I am on sabbatical and I respond to emails and there’s one mention of me doing a call with Beachcroft over (unclear) but, other than that, I can’t recall being on any phone calls or any discussions whatsoever.

Mr Stevens: Thank you. That’s all the questions, I have, sir.

We have questions from three sets of Core Participants: I understand the recognised legal representative for Gareth Jenkins, who has given a time estimate of 20 to 25 minutes; Mr Henry, I think he said ten minutes; and Mr Jacobs says five minutes.

Sir Wyn Williams: Well, we’d better crack on, because they’re all going to finish by 1.00, Mr Stevens.

Mr Stevens: Yes, I was going to say. Sir, I’m in your hands. Would you –

Sir Wyn Williams: Let’s have the two short ones first, and please stick to the shortness of the questioning that you predicted.

Mr Stevens: Yes, so on that basis, then, it’ll be Mr Jacobs first.

Questioned by Mr Jacobs

Mr Jacobs: Mr Flemington, I represent a large number of subpostmasters.

Could we go very quickly to POL00143379. It’s an email from Jarnail Singh to yourself, dated 16 July 2012, and you deal with it at paragraph 88 of your witness statement so we know you’ve seen it. This was an email chain in light of Harry Bowyer’s advice, dated 11 July when he talks about what’s been described as a floodgates issue, and there was severe recriminations for the business if Second Sight uncovered any systemic problems. I think you dealt with that with Mr Stevens at 11.00 this morning, yes?

Hugh Flemington: Yes.

Mr Jacobs: So what we have here is Mr Singh saying, if we could scroll down to the sixth line:

“All this will mean we have to provide extra evidence as defence would put us to proof as to systems integrity. Also increase in vast disclosure requests, cases being transformed, from general deficiency trials into boundless enquiry into the Horizon system. This would mean vast scope of disclosure requests, task would be close to overwhelming, only way to comply with prosecution disclosure obligations would be to instruct an expert at Fujitsu …”

It then talks about sticking points:

“Sticking points in disclosure processes would be costs of obtain Horizon data. Transaction logs would be obtained from Fujitsu that show the details of every single transaction at a post office.”

Then he goes on to talk about costs:

“For example dense request could be for logs from six months prior to the defendants tenure to the present time and cost of obtaining that data would frankly be astronomical.

“It is expensive to obtain this material because expense simply results from post offices contractual obligations to Fujitsu.”

So he’s talking about the contract:

“For example to obtain six months data would cost £20,000 and mountain of information covering more than 5 years would cost???”

So what we have here is the Head of Criminal Law at Post Office saying that, because of the contract with Fujitsu, there is a bar to compliance with disclosure obligations in criminal cases because the costs are untenable or unaffordable. Do you accept that, that that’s what he’s effectively saying, Mr Flemington?

Hugh Flemington: I think he’s saying that the costs are high or significant. My reaction to that would have been that this shouldn’t be driven by cost.

Mr Jacobs: Yes. It’s Mr Singh’s concerns, though, that the floodgate point that Mr Bowyer raises would have an impact on ability to comply with disclosure. Do you accept that?

Hugh Flemington: I suppose, in one sense, he’s saying the floodgates would be very, very costly and the way I would have looked at this would be to say, well, there might technically be a limit on costs, et cetera, but everything on the commercial side would be up for renegotiation.

Mr Jacobs: Didn’t this put you on notice, Mr Flemington, that there was a concern that Post Office had not been complying with their disclosure obligations in criminal cases where Horizon issues were raised because of the contractual issue with Fujitsu, because of the cost of providing that information?

Hugh Flemington: I don’t recall making that conclusion.

Mr Jacobs: Because the implication from Mr Singh is “Well, we can’t afford to provide this disclosure in criminal cases because it’s too expensive and let’s just hope that somehow Post Office can muddle through”. Isn’t that something that’s quite worrying when you’re thinking about criminal prosecutions and disclosure and how important disclosure is?

Hugh Flemington: So my view would have been that cost would not be a restriction on us complying with our legal obligations; how could it be?

Mr Jacobs: Did you respond to Mr Singh and say, “No, absolutely not, this cannot be the Post Office’s approach”?

Hugh Flemington: I can’t recall, I’m afraid.

Mr Jacobs: Did you speak to anyone about it?

Hugh Flemington: It’s likely I would have spoken to Susan Crichton about it.

Mr Jacobs: Was the matter ever resolved between Post Office and Fujitsu? Are you aware of any meetings where it was said, “We simply can’t afford to be bled dry in this way because we have absolute disclosure obligations in criminal cases”?

Hugh Flemington: I think there may have been discussions with Fujitsu around assistance for disclosure obligations. I can’t recall when those would have been but they may have been in 2012/2013.

Mr Jacobs: Did you make any enquiries as to whether this had been a problem or an issue with disclosure in past criminal prosecutions, such that they might be unsafe?

Hugh Flemington: I can’t recall that.

Mr Jacobs: Why not, given what Mr Singh says?

Hugh Flemington: Sorry, I simply can’t remember.

Mr Jacobs: Okay, very well. I don’t have any further questions, thank you?

Sir Brian Langstaff: Thank you Mr Jacobs. Is it Mr Henry or Ms Page?

Mr Stevens: Mr Henry.

Questioned by Mr Henry

Mr Henry: Thank you very much, sir.

Mr Flemington, if it were to be suggested that your evidence is a sustained study in accountability, what would you say?

Hugh Flemington: I’ve tried to answer the questions, sir, to the best of my recollection.

Mr Henry: I want to pick up on what Mr Jacobs has said and you saying that you would have given unequivocal advice that costs shouldn’t enter in the issue concerning data. Do you remember, you’ve just –

Hugh Flemington: Yes.

Mr Henry: Could we go, please, to POL00143384, and could we go down, please, to – well, we can see:

“Do you think we should invite Simon Baker to the call?”

So that’s the Company Secretary asking for your opinion on that. So you’re clearly, you know, being consulted by the Company Secretary as to whether Mr Baker should be involved, correct?

Hugh Flemington: Yes.

Mr Henry: Go down, please, to your email and that is 16 July 2012. This, of course, is in the aftermath of Second Sight, and it looks like full steam ahead for the Post Office, doesn’t it?

“… assume your recollection hasn’t changed and is still to keep fighting any such application?”

That would be an abuse of process application:

“Issues appear to be:

“Comms brief needed to rebut the myths/untrue reporting about Second Sight review.

“Clarity [regarding] Second Sight’s terms of reference, timetable etc.

“A plan/bible of what information we are going to provide our legal teams [with] and the courts if we have to fight applications to stay.

“Plan to deal with disclosure requests, eg how we balance obtaining transaction logs and other Horizon data alongside the costs of doing so.”

Do you want to reflect on the answer you gave to Mr Jacobs?

Hugh Flemington: So point 4 is about – in terms of doing sensible budgeting and it’s basically saying that we would have to be able to find the money to do these activities.

Mr Henry: Well, it doesn’t actually say that, does it? How we balance obtaining transaction logs –

Hugh Flemington: Sorry, I think it’s a poor choice of words by me because I think it’s ambiguous but –

Mr Henry: But they are your words, Mr Flemington.

Hugh Flemington: And I agree but the sentiment of them was that we were going to have to have budgeting issues in order to find the money to do this.

Mr Henry: You seemed to be quite involved in criminal law for somebody who said that you weren’t involved in criminal law at all. What do you have to say to that?

Hugh Flemington: I found myself getting drawn into these matters occasionally and sporadically, and I would always try to progress the matter in good faith where I could but, where I couldn’t, I would escalate up to Susan Crichton.

Mr Henry: I want to go back now to October 2010, and no need to get it up on the screen because you’ll remember the emails from Mandy Talbot but, just before the Seema Misra trial begins, you’re contacted by her in an attempt to arrange, and I quote:

“A conference call to discuss how we deal with these cases going forward, possibly on 20 October as by then I anticipate that Misra will have concluded.”

Then on 21 October 2010, when the jury was out in Mrs Misra’s case, Mrs Mandy Talbot sent you another email, a second attempt at organising a conference and you’re first on the distribution list.

Now, your evidence, as I understand it, is that you’re accidentally drawn into those emails because, really, it’s nothing to do with you?

Hugh Flemington: So if I was drawn into things, such as the conference about Second Sight or the Wylie emails, or the like, it wasn’t at my choosing, it wasn’t at my control and, at that point, I thought, “I will try to progress matters as best I can and, where I can’t, I will escalate them”.

Mr Henry: May I make a suggestion: these cases concerning Horizon that Mandy Talbot was involving you in, in October 2010, reflected the Post Office’s policy of bringing test cases and, of course, nobody knew what the outcome of the Misra trial would be and you were involved in this to, as it were, deal with policy, because what would have happened if, for example, Seema Misra’s case had ended in an acquittal? You would have that to have been involved in dealing with the aftermath of that, consistent with your responsibility?

Hugh Flemington: There’s two things would like to say to that, sir, one is that I can’t recall any meetings ever happening on that and that particular work strand going forward; and, secondly, this probably was in the context of separation and the fact that, actually, Mandy Talbot was thinking in terms of, eventually, Royal Mail Civil Litigation won’t be doing these cases and will hand over conduct of them to Post Office. So my – I can’t recall, but I think it’s likely she was starting to think about planning that transition over.

Mr Henry: I suggest that’s a rationalisation and, of course, it would have absolutely nothing to do, that answer, with your receipt of the Horizon bandwagon email, would it –

Hugh Flemington: I believe –

Mr Henry: – later that afternoon?

Hugh Flemington: No, I remember, I quite remember the email you’re talking about because that was the one where I thought the language was not good.

Sir Wyn Williams: Inappropriate.

Hugh Flemington: Yes.

Sir Wyn Williams: Right.

Hugh Flemington: But there was a point – I think there was another email not in my bundle but someone else’s, where there’s a thank you for involvement on Misra and I think I might have been on that, and I remember contacting the person who sent it and said, “Thank you for the sentiment but I’m absolutely not involved in the Misra case”.

Mr Henry: You say that but, of course, in July 2013, as we saw from Mr Stevens’ last questions to you, there’s the Will Gibson email, just after the second break, and you say that was drafted by Jarnail Singh.

Hugh Flemington: Yes, sir.

Mr Henry: So why do you copy him into it, if he’s drafted it?

Hugh Flemington: Because if Mr Gibson had any further follow-up questions he could go to Mr Singh.

Mr Henry: I see. I want to go to one final document, please, POL00031352. That is sent on 1 July, and it’s “Discuss of defect in Horizon in court Seema Misra and Lee Castleton”.

By that stage, you were aware, were you not, of the difficulties with Gareth Jenkins?

Hugh Flemington: I can’t recall.

Mr Henry: You can’t recall? You were shortly aware thereafter, your answers to Mr Stevens, about the difficulties with Gareth Jenkins.

Hugh Flemington: There would have been some point at which Gareth Jenkins as an issue was flagged during those two weeks in July but I cannot recall precisely when.

Mr Henry: I mean, it’s clear – you’re the first recipient of this, together with the Company Secretary, also the Chief Information Officer, Lesley J Sewell. It’s clear that Gareth Jenkins is the linchpin of your defence in Horizon and then he was, to your knowledge, “damaged goods”. Why wasn’t the CCRC immediately informed of this, Mr Flemington?

Hugh Flemington: I wouldn’t have the knowledge to know to inform them and I would be relying on Mr Singh and Cartwright King to flag that.

Mr Henry: Is that your evidence, Mr Flemington, that you wouldn’t have appreciated what you, as Head of the Legal Department, ought to have urgently tabled for discussion?

Hugh Flemington: I was surrounded by other lawyers and expert advisers and external counsel, and I cannot recall that point as an urgent matter being highlighted at all.

Mr Henry: So this all becomes, does it not, part of a picture of mutually delegated irresponsibility: somebody else is dealing with it?

Hugh Flemington: No, sir, we are trying to take advice, taking advice and acting on it in good faith.

Mr Henry: Thank you, Mr Flemington.

Sir Wyn Williams: Thank you, Mr Henry.

So is it Ms Dobbin or Ms Oliver?

Mr Stevens: Thank you. There’s one point I need to clarify now arising from those questions. It’s an answer Mr Flemington gave on the [draft] LiveNote, page 95, line 18. Mr Flemington you said:

“But there was a point – I think there was another email not in my bundle but someone else’s where there’s a thank you for involvement on Misra and I think have been on that and I remember contacting the person who sent it and said thank you for the sentiment but I’m absolutely not involved in the Misra case.”

Hugh Flemington: Yes.

Mr Stevens: Can I check what bundle you’re referring to?

Hugh Flemington: Not in my bundle, I’m sorry.

Mr Stevens: Yes, but you say “I think there was another email not in my bundle but someone else’s”?

Hugh Flemington: I can’t recall.

Mr Stevens: Have you read someone else’s bundle of documents for these Inquiry proceedings?

Hugh Flemington: No, I haven’t. I will have seen something on one of the publicly available live feeds.

Mr Stevens: Thank you.

Sir, that was a simple point of clarification I wanted to make.

Sir Wyn Williams: Fine okay.

Next, please.

Questioned by Ms Oliver

Ms Oliver: Thank you, sir, it’s Ms Oliver today.

Good afternoon, Mr Flemington. I ask questions on behalf of Gareth Jenkins. You’ve said that you have no criminal litigation experience.

Hugh Flemington: Correct.

Ms Oliver: The thrust of your evidence had been that you left supervision of Jarnail Singh largely to Susan Crichton?

Hugh Flemington: I didn’t leave supervision to Susan Crichton; Susan Crichton was the GC and that is the way she organised the department set-up. She said at the outset, “You won’t be supervising Criminal Litigation or Civil Litigation. I will do that”.

Ms Oliver: You’ve said that you were not aware of whether Ms Crichton had herself any experience in criminal litigation?

Hugh Flemington: Correct.

Ms Oliver: Did you consider that to be appropriate, that there was one lawyer in POL responsible for the prosecution of subpostmasters but who was, in effect, working unsupervised by anyone with criminal litigation experience?

Hugh Flemington: So that was the way it was dictated to me it would be set up. I had asked before separation, “Would we go and recruit a criminal lawyer?” and was told, no, that it had been agreed at quotes “a high level” that one lawyer was enough and that they were being transferred over from the Criminal Law Department.

Ms Oliver: Do you agree that made POL Legal significantly reliant on the expertise and competence of Mr Singh?

Hugh Flemington: To a degree but you have to consider that we also had Cartwright King and, subsequently Brian Altman reviewing the work of Cartwright King, if you will, and there was no restraint or limit on how much Cartwright King could be used or deployed in the business in relation to the criminal prosecutions.

Ms Oliver: When criminal prosecutions came within your purview as Head of Legal, did you take any steps to understand or familiarise yourself with any of the criminal law upon which POL bought those prosecutions?

Hugh Flemington: So, I would not say that they came within my purview. They were always to be supervised and within the purview of Susan Crichton.

Ms Oliver: When they came within your team, then, did you take any steps to understand or familiarise yourself with any of the criminal law that was applicable?

Hugh Flemington: I did get an initial briefing from Jarnail Singh on the overarching aspects of the criminal law, in relation to POL prosecutions but, again, I was not responsible for those – the carriage of those prosecutions or the supervision of Mr Singh?

Ms Oliver: Did you ever review the POL prosecution files or dip sample the prosecutions that were being conducted?

Hugh Flemington: No, I did not.

Ms Oliver: In relation to Cartwright King, then, did POL have any arrangements for reviewing their work or sampling the files on cases that they were responsible for prosecuting?

Hugh Flemington: I can’t recall the specific provisions of their retainer and their engagement letter.

Ms Oliver: All right. Can we turn, then, please to the Simon Clarke Advice. Do you recall that that was sent to you on 17 July 2013?

Hugh Flemington: I don’t recall off the top of my head no, but –

Ms Oliver: Do you think that sounds about right or would you like to go to the email?

Hugh Flemington: May we go to the email, please? Sorry.

Ms Oliver: Of course. It’s POL00192249, please. Thank you. If we can go down to the third email, please. So this is an email from Martin Smith to Susan Crichton copying you:

“Susan

“Please find attached Simon Clarke’s Advice concerning Gareth Jenkins.

“Kind regards,

“Martin.”

Do you recall receiving that on 17 July?

Hugh Flemington: I don’t know because – I don’t recall receiving it sorry. I was on sabbatical by then.

Ms Oliver: Do you agree that, during the course of your sabbatical, you continued to engage with emails that were sent during that time?

Hugh Flemington: Very occasionally.

Ms Oliver: Did –

Hugh Flemington: Sorry, I’d been given a specific lecture by Ms Crichton to try to not look at the BlackBerry because I’d already been raising issues about splitting up my role.

Ms Oliver: We can go to some examples, if necessary, but do you agree that those emails that you did engage with involved correspondence with Susan Crichton, Jarnail Singh, Rodric Williams, lawyers from Bond Dickinson, lawyers from Cartwright King?

Hugh Flemington: I think there were about three or four emails, from my recollection.

Ms Oliver: Do you recall that they concerned topics such as the review of criminal cases, questions of disclosure, the instruction of the criminal QC?

Hugh Flemington: Yes, they may have done.

Ms Oliver: Right. You respond to one of those email threads on 17 July. Do you think that makes it more likely that you would have seen the Simon Clarke advice at the time it was sent to you?

Hugh Flemington: Not necessarily because – I tell you why very specifically, in that I hated reading attachments on the BlackBerry. I would read cover-notes but attachments I found difficult to see with eyesight. So, for that reason, I would tend not to read attachments. In terms of the content of those other emails, there’s a possibility I was at the con on 3 July and that matters got mentioned out of those. It’s possible that matters got mentioned out of other discussions that happened in those first two weeks when I was in the office but I can’t, hand on heart, specifically recall seeing the printed advice at this time.

Ms Oliver: All right. In terms of the substance of those discussions, then, can we please go to POL00407582, please. Thank you. This the attendance note that you’ve already been taken to –

Hugh Flemington: Yes.

Ms Oliver: – of a conference at Bond Dickinson that you attended with Susan Crichton. It starts by saying:

“I had some time with HF …”

Presumably that’s you?

Hugh Flemington: Yes.

Ms Oliver: “… before Susan Crichton joined us”, and there was a discussion about Cartwright King and Rob Wilson.

If we go down then, please, to point 6, and here it’s recorded:

“The real worry was around the Fujitsu expert who appeared to have known of some of the problems but not referred to them in his report or statement even though they could be dismissed. There are non-disclosure issues here. They are looking at replacing that expert with somebody else.”

Do you recall that being a feature of the discussion?

Hugh Flemington: I don’t recall it specifically.

Ms Oliver: Do you agree that that seems to indicate that, even if the Simon Clarke Advice was something you didn’t engage with during your sabbatical, you must have been aware that there was a real worry within POL about Mr Jenkins’ statements being used in previous prosecutions, that these concerns related to non-disclosure of the bugs revealed to Second Sight and that there was an understanding that he could not be used as an expert in prosecutions going forward.

Hugh Flemington: It’s possible, yes, but I would have expected that Susan Crichton was then dealing with that.

Ms Oliver: You’ve agreed with questions from Counsel to the Inquiry, that, once knowledge of those concerns came to POL, it would be very important for the Post Office to understand how Mr Jenkins had been instructed; do you remember giving that evidence?

Hugh Flemington: I don’t but, yes, if you …

Ms Oliver: Your evidence is that you would have expected Ms Crichton to do that; is that right?

Hugh Flemington: Yes.

Ms Oliver: Did you take any steps to understand what investigations she had undertaken or what she had learned of those features?

Hugh Flemington: I can’t recall that being discussed when I came back. That’s not to say it wasn’t.

Ms Oliver: Did you, before you left or when you came back, ever ask to see any instructions which POL or Cartwright King had provided to Mr Jenkins?

Hugh Flemington: I can’t recall, sorry.

Ms Oliver: You’ve said you can’t remember speaking to Mr Singh about how he instructed Mr Jenkins. Do you remember speaking to the external lawyers at Cartwright King about whether Mr Jenkins had been instructed about his expert duties of disclosure?

Hugh Flemington: I don’t specifically remember, no.

Ms Oliver: Did the issues that were being raised about Mr Jenkins by Cartwright King, before and after the publication of the written advice by Simon Clarke, give rise to any concern on your part that they might be indicative of broader prosecutorial failings on the part of POL?

Hugh Flemington: No.

Ms Oliver: Do you think that was an oversight on your part?

Hugh Flemington: No, I just don’t think I’d have thought about the point.

Ms Oliver: Were you aware of the obligations that POL held in relation to how they handled expert evidence in the course of criminal prosecutions?

Hugh Flemington: So that’s why I felt we were taking expert advice from Cartwright King at this point, that any issues like this would be flushed out and then could be addressed.

Ms Oliver: Did you ever consider that an appropriate course might be to speak to Mr Jenkins in order to understand the circumstances in which he came to give evidence in these cases?

Hugh Flemington: Again, I suppose I would have thought that Susan Crichton was dealing with that. This was surfacing just before I was going away and she would have had conduct of it for the next six weeks.

Ms Oliver: Can we go to POL00193383, please. Thank you. If we can go to the third email, please, this is an email from Rodric Williams to Lesley Sewell copying Susan Crichton, Simon Baker and you. It attaches two draft documents addressed to Fujitsu, which Mr Williams said were:

“… to put us ‘on the record’ with Fujitsu about the issues raised in Second Sight’s Interim Report.”

One is described a “shot across the bow”; the other as a “letter of claim”.

Despite this being during the period of your sabbatical, do you agree you appear to reply on the same day to ask whether the draft documents have been discussed within Legal? That’s the next email up, if we can scroll up, please.

Hugh Flemington: Yes, I do.

Ms Oliver: If we can please go to one of the attachments, which is POL00140620, and page 2, paragraph 4 – thank you – we see there that it’s said:

“Post Office was therefore disappointed to discover that witness evidence prepared by Fujitsu may not have been fully disclosing historic (albeit known and resolved) defects. This has led to Post Office having to review all its historic criminal prosecutions for the last 3 years … to ensure that it has not breached its duties of disclosure under the Criminal Court rules.”

Do you agree that your email we just looked at rather suggests that this was an attachment that you would have opened?

Hugh Flemington: I honestly didn’t look at attachments and I – so I wouldn’t have opened and seen this.

Ms Oliver: So is it something that you looked at when you returned to POL, after your period of sabbatical?

Hugh Flemington: I would have – I remember speaking to Susan Crichton when I returned and, because, in the context she was resigning, there was very quickly activity around dividing up matters and responsibility for matters and I cannot remember this being assigned to me, in terms of progressing that – if it was to be progressed, it was being progressed by someone else but I can’t honestly remember.

Ms Oliver: Can you recall any discussion at all as to whether to write to Fujitsu in these terms?

Hugh Flemington: No, I can’t.

Ms Oliver: What decision was ultimately made in that regard?

Hugh Flemington: I can’t recall anything in that – in relation to that, sorry.

Ms Oliver: Thank you. One final document from me, please. It’s POL00155555. This is a handwritten note, we know that it was authored by Rodric Williams. The date of the note, at the top right-hand corner, appears to be 2 September 2013, which was the Monday before you, in your statement, say that you returned from your sabbatical. You returned on 3 September; is that right?

Hugh Flemington: I think I may have returned on the 2nd.

Ms Oliver: All right. So you returned on the very day that this note appears –

Hugh Flemington: Yes.

Ms Oliver: – to have been authored?

Hugh Flemington: Yes.

Ms Oliver: The note refers to conversations with Martin Smith of Cartwright King. If we can please go down to the bottom of page 1, do you see, in the right-hand box, the question:

“What were we doing to instruct GJ”?

Hugh Flemington: Yes.

Ms Oliver: Do you understand that’s likely to be a reference to Mr Jenkins?

Hugh Flemington: Yes, yeah.

Ms Oliver: Then, in the left-hand list, first arrow point down:

“Don’t think he’s ever been advised of his duties.”

Do you see that?

Hugh Flemington: Yes.

Ms Oliver: Were the contents of this note ever discussed between you and Mr Williams?

Hugh Flemington: I can’t recall discussing this at all.

Ms Oliver: Can you recall whether it was known within POL by September 2013 that POL had failed to instruct Mr Jenkins as an expert witness in his expert duties or that there was at least a very serious question as to whether it had ever instructed him in that way?

Hugh Flemington: I would have – I would have probably known of the issue per se but I can’t recall what level of knowledge there was across POL, if that was your question, sorry.

Ms Oliver: Would you have regard it as significant information that you ought to have been told the contents of this note?

Hugh Flemington: Yes.

Ms Oliver: Do you know whether it was for this reason that a draft letter of claim was not sent to Fujitsu?

Hugh Flemington: No, I don’t know.

Ms Oliver: Do you recognise that POL’s failure, referred to in this note, to instruct Mr Jenkins in his expert duties and in accordance with their legal duties, was an exceptionally serious matter because it gave rise to real questions about the basic competency of its prosecutors?

Hugh Flemington: So, obviously, it’s not my note and I didn’t author it and I can see there it’s talking about raising questions of what were we doing and don’t think – but I don’t see it’s conclusively coming to a conclusion that there is an issue there.

Ms Oliver: Do you think that the serious question over whether Mr Jenkins had been advised of his expert duties is something that POL ought to have treated with the utmost seriousness?

Hugh Flemington: Yes, but if I look at this note, the issue is being thought about and worked on and discussed.

Ms Oliver: Thank you. Those are my questions.

Sir Wyn Williams: Well, that’s extremely good timing. So my gratitude to the representatives of the Core Participants who have tailored their questions to finish promptly at 1.00.

So thank you, Mr Flemington, for coming to give evidence and providing a witness statement. I’m grateful for your participation in the Inquiry.

The Witness: Thank you, sir.

Sir Wyn Williams: Mr Stevens, 2.00?

Mr Stevens: Yes, sir.

The Witness: Sir, may I just make one point –

Sir Wyn Williams: Yes.

The Witness: – which is I had agreed with Mr Stevens that I would have actually like to say some words at the start to express how sorry I was.

Sir Wyn Williams: Well, please say what you wish to now.

The Witness: Thank you.

So I just wanted to say how sorry, personally, I felt for all the pain and suffering that has been caused by this scandal to all the people who have suffered. I hope today that, in some small way, my witness appearance will help the Inquiry establish lessons learned.

Sir Wyn Williams: Thank you, Mr Flemington.

All right. We will start again at 2.00.

Mr Stevens: Thank you, sir.

(1.01 pm)

(The Short Adjournment)

(2.00 pm)

Ms Price: Good afternoon, sir, can you see and hear us?

Sir Wyn Williams: Yes, I can, thank you.

Ms Price: May we please call Mr Bowyer.

Harry Bowyer

HARRY BOWYER (affirmed).

Questioned by Ms Price

Ms Price: Could you confirm your full name, please, Mr Bowyer?

Harry Bowyer: Yes, it’s Harry Bowyer.

Ms Price: Thank you for coming to the Inquiry to assist it in its work. As you know, my name is Emma Price and I will be asking you questions on behalf of the Inquiry.

You should have a hard copy of a witness statement provided by you to the Inquiry in front of you; do you have that?

Harry Bowyer: I have that.

Ms Price: It is dated 2 April 2024. If you turn to page 32 of that, please, does your copy have a visible signature?

Harry Bowyer: It does.

Ms Price: Is that your signature?

Harry Bowyer: It is my signature.

Ms Price: I understand there is a correction to the statement you’d like to make; is that right?

Harry Bowyer: Yes. I state in paragraphs 26 and 69 that I wasn’t aware of the backdoor into the Horizon system until the Deloitte report. I’ve seen emails since, which show that I was told about it in November 2012.

Ms Price: With that correction made, are the contents of that statement true to the best of your knowledge and belief?

Harry Bowyer: To the best of my knowledge and belief.

Ms Price: That statement, for which the reference is WITN10990100, is now in evidence and will be published on the Inquiry’s website in due course.

Starting, please, with your professional background. You joined Cartwright King Solicitors in the summer of 2008, is that right –

Harry Bowyer: That’s correct.

Ms Price: – having been in practice at the independent Bar before that since 1990?

Harry Bowyer: Yes.

Ms Price: Your practice at the independent Bar had been exclusively criminal?

Harry Bowyer: Exclusively criminal.

Ms Price: You had been involved in both prosecution and defence work?

Harry Bowyer: Indeed.

Ms Price: You say in your statement that when you joined Cartwright King, you were the first employed barrister in the firm; is that right?

Harry Bowyer: Yes, I was.

Ms Price: But in the few years which followed, the firm expanded their advocacy department by employing a large number of barristers and solicitors with higher rights to cover almost the entirety of their Crown Court work?

Harry Bowyer: That’s correct.

Ms Price: Can we have on screen, please, paragraph 5 of Mr Bowyer’s statement, that’s page 2. At paragraph 5 you say this:

“When I joined [Cartwright King] they had 3 offices, Nottingham, Derby and Leicester. They embarked on a period of rapid expansion by acquiring other firms of solicitors. At their peak they had around 20 offices from London to Newcastle. This involved a great deal of fairly ruthless reorganisation as they cut away the dead wood.”

Thinking back to the rapid expansion that took place, was the reason behind this that it would enable Cartwright King to prosecute Post Office cases in-house?

Harry Bowyer: No.

Ms Price: No?

Harry Bowyer: No, the expansion was at the time there was a proposal that legal aid firms would be limited to a very few in each legal aid area. So what they were trying to do was put themselves in as many legal areas so they could bid for the contracts.

Ms Price: Did the fairly ruthless reorganisation you refer to have any impact on the Post Office work which was being done at the time by the Advocacy Department?

Harry Bowyer: I don’t think so.

Ms Price: That can come down. Thank you.

Did members of the Advocacy Department prosecute Post Office cases in both the Magistrates Court and the Crown Court?

Harry Bowyer: There was quite a lot of work that was prosecuted in the Magistrates Court and the Crown Court but most of the Crown Court work went out to external counsel.

Ms Price: The Advocacy Department was based in the Nottingham office; is that right?

Harry Bowyer: That’s correct.

Ms Price: The head of department was initially one of the equity partners, Steve Gelsthorpe?

Harry Bowyer: That’s correct.

Ms Price: Then Andy Cash took on the role, followed by Mark Hopwell?

Harry Bowyer: That’s right.

Ms Price: You say in your statement that it was Andy Cash who introduced the then Royal Mail Group work to Cartwright King?

Harry Bowyer: That’s right.

Ms Price: He was based in the Derby office but spent more time in the Nottingham office when he became Head of the Advocacy Department?

Harry Bowyer: That’s correct.

Ms Price: Was there any provision at Cartwright King for training in relation to private prosecutions and, in particular, prosecution disclosure obligations in private prosecutions?

Harry Bowyer: There was very little.

Ms Price: Very little as in none or some?

Harry Bowyer: Well, as far as I was concerned, the private prosecutions that they did was the Royal Mail work initially. They did some RSPCA work and Andy Cash brought in the POL work, I think, around about 2012. But as far as actual training was concerned, I certainly wasn’t trained and I don’t know what happened to those who were doing the POL work because it was being done in other offices apart from mine.

Ms Price: What were you told when you were first introduced to the Royal Mail Group and then later Post Office Limited work about the basis on which prosecutions were brought by the Post Office and the history of this?

Harry Bowyer: I’m not sure I was told very much at all.

Ms Price: You were aware, though, that the Post Office was bringing private prosecutions –

Harry Bowyer: Oh, absolutely, yes.

Ms Price: – and that was the work you were doing?

Harry Bowyer: Yes.

Ms Price: At the time, did you recognise any risk arising from the Post Office being simultaneously victim, investigator and prosecutor?

Harry Bowyer: Well, at the time, I wasn’t really involved with it. If I’d addressed my mind to it then, yes, I probably would have seen the difficulties that you’ve put forward. But the Post Office work that – the Royal Mail Group work initially tended to be postmasters who – or Royal Mail workers who were stealing from the post and then, in due course, the POL work was the work that this Inquiry is, in fact, looking into. But, as far as I was concerned, I didn’t do very much of it at all, until Andy Cash came into the Advocacy Department and then he started to pick the brains of the various advocates there about various issues and would ask us to write the odd advice, charging advice, et cetera.

Ms Price: You address at paragraph 31 of your statement the training you received on the Horizon system. Can you help with when you received this training? Do look to the statement if you need to?

Harry Bowyer: I can’t recall. I think it would have been about 2012.

Ms Price: You say that training did not cover the reconciliation of balances; what did it cover, can you recall?

Harry Bowyer: Well, I can’t remember where it was. It was somewhere up north. But they had a Horizon system and, effectively, myself and a number of external counsel were actually shown how the system worked, effectively from a cashier’s point of view.

Ms Price: Were members of the Advocacy Department responsible for keeping up to date with their own continuing professional development obligations?

Harry Bowyer: To an extent, yes.

Ms Price: Was there any oversight of that by –

Harry Bowyer: Yes, there was. You had to show that you’d done your CPC.

Ms Price: You say in your statement that you were made a director of Cartwright King during the period covered by the Inquiry?

Harry Bowyer: Yes.

Ms Price: Can you recall when it was that you became a director?

Harry Bowyer: I can’t, I’m afraid.

Ms Price: You say you were one of around 30 directors. What responsibilities did you have as a director, over and above those as a member of the Advocacy Department?

Harry Bowyer: There were various responsibilities: file reviews was one of the main ones, so we had to review the files of other people in the department.

Ms Price: But you say you held no equity in the firm; is that right?

Harry Bowyer: No, no. It was more of a rewards that came up with the rations, rather than a pay rise.

Ms Price: You resigned from Cartwright King in December 2015; is that right?

Harry Bowyer: That’s right.

Ms Price: What was the reason for your resignation?

Harry Bowyer: Myself, Martin Smith and Simon Clarke wanted to set up our own business.

Ms Price: Is that something you went on to do?

Harry Bowyer: That’s something we went on to do.

Ms Price: Turning, please, to your involvement in the Royal Mail Group and, later, Post Office Limited work and dealing first with the period prior to the Interim Second Sight Report coming to your attention in 2013. Could we have paragraph 8 of Mr Bowyer’s statement on the screen, please, that is page 2. On the last line on this page you say:

“The RMG work was more provincial at that stage but in 2012 Andy Cash bought the POL work into the firm which was nationwide in nature.”

You say that the Post Office work was nationwide. Can you help with the scope of Cartwright King’s instructions to act for the Post Office and, in particular, whether the general instruction of Cartwright King covered criminal cases in Scotland and Northern Ireland.

Harry Bowyer: The answer is I can’t help with that very much. We didn’t tend to do Scotland and Northern Ireland. That was outsourced to other solicitors. Obviously, you’ve got the Scottish law problem, which none of us were capable of doing Scottish law.

Ms Price: Certainly by around 2013, that was a firm called BTO Solicitors from Scotland?

Harry Bowyer: Those are the ones, yes.

Ms Price: Can you recall the names of any other firms that were involved, either for Scotland or –

Harry Bowyer: I can’t recall. BTO was the one we dealt with most.

Ms Price: What was your understanding of the prosecution process for cases in these jurisdictions?

Harry Bowyer: I didn’t have an understanding at all, I’m afraid.

Ms Price: Looking, then, at paragraph 9 of your statement. You say:

“The bulk of the POL/RMG work was done by Martin Smith, based in Derby and Andrew Bolc based in Leicester. They would prepare the cases and brief them out to counsel. The RMG work involved some of the same type of cases as the later POL work but also involved postmen stealing from the mail.”

Then paragraph 10:

“When he was in Nottingham Andy Cash would ask my opinion about the POL/RMG cases both informally, and on occasion he would ask me to settle an indictment or an advice on evidence. This would involve the file being brought to Nottingham so that I could work on it. It would then be returned to the lawyer working on it and I would be unlikely to see it again as it would usually be briefed out to counsel.”

So that’s what you were referring to earlier in terms of cases going to counsel –

Harry Bowyer: Essentially, yes.

Ms Price: – in Crown Court work.

You address a case you prosecuted involving a manager of a Crown Post Office at paragraph 12 of your statement and you say it was a case that post-dated the cessation of prosecution of Horizon cases and it was a case that didn’t rely upon Horizon evidence.

Harry Bowyer: Yes.

Ms Price: With this exception, is it your evidence that you did not prosecute a trial?

Harry Bowyer: I never prosecuted a trial for Post Office, I never had conduct of a prosecution brief as counsel or as litigator. I think I did a sentence in Nottingham because it was in Nottingham and that’s where I was based but, apart from that, I don’t think I did any other court work.

Ms Price: So this case at paragraph 12, when you so you prosecuted it, are you saying it’s not one that went to trial?

Harry Bowyer: It pleaded.

Ms Price: Okay. I understand. That can come down now. Thank you. You say at paragraph 18 of your statement that your direct contact with Post Office personnel was fairly limited but that you had dealings with Jarnail Singh, who you understood to be Head of Crime at Post Office Limited. Who did you obtain instructions from at the Post Office?

Harry Bowyer: Well, I wasn’t actually, as I said, instructed in any cases. So I became involved either because Andy Cash would ask me to do something on a case or ask me my opinion about one of the cases, and I would also – I was also involved during the sift process, after the Second Sight review came out. But, again, I would have been asked by either Andy Cash or Simon Clarke to do the work that I was doing.

Ms Price: So in the instances where you provided written advice, were you not taking direct instructions from the Post Office?

Harry Bowyer: No, I would be instructed from someone within Cartwright King.

Ms Price: I see. What was your working relationship with Mr Singh like?

Harry Bowyer: Pretty limited. I met him, I think, on two or three occasions, once when Simon Clarke and I went down to their Old Street offices in London and a couple of times when he came up to Nottingham or Derby, and I spoke to him on the phone and emailed. Occasionally, he would email with questions and the like and I would respond but the main point of contact between Cartwright King and the Post Office was Martin Smith.

Ms Price: You say at paragraph 38 of your statement that you were aware from the beginning that the Horizon system was being challenged by the Justice for Subpostmasters group. By “from the beginning”, do you mean from the point that you became involved in any Post Office prosecutions relying on Horizon evidence?

Harry Bowyer: Yes, I only really became involved in about 2012.

Ms Price: What about the system did you understand was being challenged?

Harry Bowyer: I understood that there were allegations that it was throwing out false figures.

Ms Price: Did you consider, at the time you provided advice on Post Office prosecution cases, that you were under a duty to act as a minister of justice in preference to the interests of the client who had instructed you in relation to the prosecution –

Harry Bowyer: Yes, certainly.

Ms Price: – that this entailed observing the highest standard of integrity and having regard for the public interest –

Harry Bowyer: Yes.

Ms Price: – and that you owed a duty to the court to ensure that the proceedings were fair?

Harry Bowyer: Yes.

Ms Price: Prior to being alerted to the content of the Interim Second Sight Report, did you ever question whether the evidence generated by the Horizon system could be relied upon for the purposes of prosecutions?

Harry Bowyer: Yes, we were assured, and it was our instructions, that the system was robust.

Ms Price: Who did you ask, if you questioned it, whether the evidence could be relied upon?

Harry Bowyer: The various caseworkers that – the Investigators that we were in touch with; later on, the various Post Office lawyers that we came across. But they were all – I mean, one kept an eye on it because this was something that we were going to have to counter. So, as far as allegations that the system wasn’t robust, we were keeping our eyes out to see if there was any truth in it, if there were any patterns.

Ms Price: Did you receive assurances from Jarnail Singh?

Harry Bowyer: I would have done, yes.

Ms Price: You refer in a number of places in your statement to assurances that you received from all sides that the system was robust and that there was nothing that could undermine the integrity of the system. Were these assurances ones given before the Interim Second Sight Report?

Harry Bowyer: Yes.

Ms Price: In this period, that is prior to the Interim Second Sight Report, did you ever have difficulty getting something from the Post Office in relation to prosecutions?

Harry Bowyer: Well, I was doing remarkably little of the work before the Second Sight Report, so the answer is no. If I wanted information, I could get it but, as I say, I didn’t hold the brief and I wasn’t litigating the cases. It was a question that people would ask me to advise on a certain part of a case. It may be that they wanted an interim advice or they may want an advice on a particular thing; it might have been that the advice they asked for was verbal; I would be asked a question by Andy Cash and I would answer it there and then but, as I said, I wasn’t actually working on these cases a very great deal, I had a full caseload of the defence work that I was actually employed by Cartwright King to do.

Ms Price: Could we have on screen, please, paragraph 21 of Mr Bowyer’s statement. That’s page 5 towards the bottom, please. At paragraph 21 you say this:

“It is probably fair to say that the [Cartwright King] Post Office department would have benefited from proper oversight from the earliest stages from people with actual experience of prosecuting cases rather than different individuals in different offices doing their own thing.”

What do you mean by “different individuals in different offices doing their own thing”?

Harry Bowyer: Well, as I said, the bulk of the work was done by Martin Smith in Derby and Andrew Bolc in Leicester. When I was first aware of the Post Office work, I wasn’t – I was aware that they were doing it and I was aware that they were briefing external counsel. I didn’t realise that both had such limited prosecution experience at the time and, as far as that was concerned, you know, that plainly wasn’t a safe state of things. But I discovered about that much more when we were reviewing the cases and when we’d effectively stopped prosecuting cases.

Ms Price: Can you help with what you had in mind when you refer to proper oversight from people with actual experience of prosecuting cases?

Harry Bowyer: Well, there are various things, disclosure of course is a main one. Charging advices is a second one. You know, as far as the two individuals who were preparing the cases, as I said, I don’t think they had any experience of preparing prosecution cases until they were given this role at Cartwright King.

Ms Price: Who should have provided this oversight, do you think?

Harry Bowyer: Well, it should have been someone, their Head of Department. Having them in different offices can’t have helped. There should have been a Post Office department where they were in the same room, where they were actually able to pool what knowledge they had together. But that wasn’t the case.

Ms Price: It may follow from your answer given just now, but was this lack of proper oversight something which you recognised at the time that you were doing Post Office work?

Harry Bowyer: Well, it – I became more aware of it after the Second Sight came in and we were doing the Sift Reviews, as to what was actually going on. But, as I said, I was based in Nottingham; they were in different counties.

Ms Price: Did you raise it at the time with anyone else within Cartwright King as a suggestion?

Harry Bowyer: Not at the time, no, because, as I said, by the time it really became apparent, we weren’t prosecuting any more.

Ms Price: Could we have on screen, please, reference POL00293276. This is a letter from Cartwright King to Rodric Williams from the Post Office. It’s dated 13 January 2020, so post-dates your departure by around four years.

Harry Bowyer: Yeah.

Ms Price: I’d like to ask you, however, about an observation made in this letter about the relationship between Cartwright King and the Post Office. The context for this letter is a review by Cartwright King of the work it had done for the Post Office since April 2012, which concluded that there were a number of improvements and changes in practice which could be made.

Going, please, to point 3 on the second page of this document, the author says this:

“Further to the two points noted above, we are becoming increasingly concerned at the somewhat disjointed way in which we presently approach POL work. This arises because there is no single dedicated point of contact within [Cartwright King] for [Post Office Limited], as witnessed by the common use of cc’d emails to all three [Cartwright King] lawyers undertaking [Post Office Limited] work. The problem here is that a lack of continuity on individual pieces of work, together with deficit in oversight over the landscape in which [Cartwright King] meets [Post Office Limited] requirements and advises thereon. In plain English, this means that there is an increasing risk that advice on one topic might fail to take into account the impact of that topic on another area of [Post Office Limited] work, with the consequent risk that [Post Office Limited], and [Cartwright King], are exposed. Of particular concern here is [Post Office Limited’s] disclosure duties arising out of the recent judgment, and the need to advise [Post Office Limited] on current and future Crown Prosecution Service prosecutions.”

Do you agree with the assessment here of the potential consequences of a lack of oversight and, in particular, the risk that advice on one topic might fail to take into account the impact of that topic on another area of Post Office work?

Harry Bowyer: Yes.

Ms Price: Would you agree that that risk was relevant to Post Office disclosure duties in 2012 and onwards, not just at this point –

Harry Bowyer: Absolutely, yes.

Ms Price: – in 2020?

Harry Bowyer: Yes.

Ms Price: Is this the type of risk you had in mind when you flag up in the statement to the Inquiry the lack of proper oversight?

Harry Bowyer: Yes.

Ms Price: Is it a risk that you recognised at the time?

Harry Bowyer: Like – as I said, my appreciation of how Cartwright King were doing it increased when I got into the sift work because that was when I was actually concentrating on reviewing the cases. But, yes, it was plainly unsatisfactory.

Ms Price: That document can come down now. Thank you.

I’d like to move, please, to the advice you gave in the case of Kim Wylie. You deal with your advice dated 11 July 2012 at paragraph 39 of your statement, if you wish to follow. At the time of providing your statement, you had not seen your earlier advice, which is referred to in that July 2012 advice. The Inquiry has relatively recently located that initial advice and I understand that that has been provided to you.

Harry Bowyer: I’ve seen it.

Ms Price: That is, in fact, dated October 2011 rather than 2010?

Harry Bowyer: Yes.

Ms Price: I think that 2010 date comes from the date given in the July 2012 advice. Could we have on screen, please, POL00424121. This is the covering email from you to Robert Daily, dated 28 October 2011. Was Robert Daily the Investigator in the case?

Harry Bowyer: Very probably but I can’t recall.

Ms Price: It is copied to Rob Wilson, Head of the Royal Mail Group Criminal Law Team at the time; is that right?

Harry Bowyer: I think so. I think this is probably still under the RMG umbrella.

Ms Price: It is also copied to Andy Cash and Rachael Panter. Can you help with what Rachael Panter’s role was at the time?

Harry Bowyer: Well, at the time, I wasn’t aware of her role. She was based in Leicester with Andrew Bolc. She was, as I understand it – I think she passed her Bar exams but I think she was a comparative baby to the role that she appears to have been conducting.

Ms Price: Going, then, to the initial advice itself, could we have that on screen. The reference is POL00424122. Can you help, having had the opportunity to read this document, with the purpose of this initial advice and, in particular, was it an advice on whether the prosecution test was met in the case?

Harry Bowyer: Yes. Having read it, I can see that there is no discussion of the evidential test or the public interest test, which, looking back on it, there should have been. It’s not to say that I wasn’t aware of those two particular issues but I should have discussed them in the advice. It would have been an advice that would have been at the very early stages as to what – the evidence we required and the charges that we should prefer.

Ms Price: You set out the prosecution case in the first paragraph, in that:

“At the end of June 2010, Ms Wylie received a letter informing her that Winlaton Post Office would be migrating to Horizon Online. On 9 July 2010 she reported a £33,142.96 shortage in trading period 4. She could not explain how the shortage had occurred. The HOL Advisor, Brian Cordery, reported concerns that he had been presented with money twice whilst conducting a cash check prior to migration. On 10 September 2010 an audit was carried out at Winlaton sub post office branch by Mr Ged Dresser and Bryan Marshall, Post Office Field Support Advisors, which revealed a deficit in the accounts of £5,434.93.”

There is then a summary of what Ms Wylie said in interview, which included the fact that she could not explain the shortages as she hadn’t done anything incorrectly. She says she was aware that the cash would be checked after she received the letter about migration to Horizon Online. She reported the cash shortage after receipt of this letter.

Just going over the page, please. She denied theft and false accounting and cast doubt on the integrity of the Horizon system, blaming it for the error.

You then say this of the defence case:

“The most obvious route for the defence in this case is to suggest that the Horizon system is flawed or possibly that another member of staff stole the money.”

Just pausing there, this initial advice pre-dates the instruction of Second Sight?

Harry Bowyer: Yes.

Ms Price: You do not seem surprised in this advice that Ms Wylie was blaming the Horizon system for the loss. Does that mean that this was not the first case in which you were involved where a subpostmaster was attributing a shortfall to the problems with the Horizon system?

Harry Bowyer: It was certainly within my knowledge that people were blaming the Horizon system at that stage, yes.

Ms Price: Can you recall how many cases of this nature you had been involved with previously?

Harry Bowyer: As I said, very few at the time.

Ms Price: You deal with the statements which would be needed in the next paragraph and, at the last bullet point in this section, you say:

“We will need to prove the integrity of the Horizon system as there appears to be apocryphal evidence on the Internet that it is causing big losses to postmasters.”

Can you recall what the evidence on the Internet that the Horizon system was causing big losses to postmasters was?

Harry Bowyer: I’m afraid I can’t but the subpostmasters were making a lot of noise at this particular stage and, obviously, we’d heard about it.

Ms Price: Can you recall the basis for your conclusion that it was apocryphal?

Harry Bowyer: Well, because we had no evidence that the Horizon system at that stage was producing these errors, apart from the fact that people said it was.

Ms Price: At the time, did you consider the alternative explanation that those saying that the Horizon system was causing big losses might be right?

Harry Bowyer: Yes, we certainly considered that and we asked about it. But our instructions were that the system was robust.

Ms Price: You go on, under “Discussion”, to conclude that, “The case could properly be charged as two counts of theft”, and noting that:

“The courts generally do not like theft and false accounting charges to be charged in tandem for the same course of conduct.”

You cite there the Eden case.

Harry Bowyer: Mm.

Ms Price: This was a case in which a subpostmaster had denied theft and false accounting in interview and had raised the integrity of the Horizon system, blaming it for the error in interview, correct?

Harry Bowyer: I can’t recall this, I haven’t read Eden for 12 years.

Ms Price: Well, just going over the paragraphs that we have, this was something that had been raised in interview by the subpostmasters?

Harry Bowyer: Oh, absolutely. Yes, of course.

Ms Price: There is no suggestion, on the face of this initial advice, though I appreciate you may have had limited information at an early stage, but there’s no suggestion here that there had been any investigation of whether the Horizon system was working properly in Ms Wylie’s branch; would you agree with that –

Harry Bowyer: Yes, we’re talking very early stages. This is an initial advice. I think the advice is dated – what, October, is it – and the audit was September.

Ms Price: In October, yes, October 2012?

Harry Bowyer: So we’re at an extremely early stage of the case.

Ms Price: Would you have expected the Investigator in the case to look into whether the Horizon system was working properly in Ms Wylie’s branch?

Harry Bowyer: I would have expected, as I said earlier in the advice, that we would need to show that the system was working properly.

Ms Price: It isn’t something that you advised should be done in this advice. Can you recall whether there was any discussion about whether there should be –

Harry Bowyer: I can’t recall.

Ms Price: It was a reasonable line of inquiry, wasn’t it, that should have been pursued, the issue having been raised in interview, as a line of inquiry which might point away from the guilt of the suspect; do you accept that?

Harry Bowyer: Yes.

Ms Price: Did you recognise that at the time?

Harry Bowyer: Yes, I’m sure I did.

Ms Price: What did you do to ensure that that investigation happened?

Harry Bowyer: Well, nothing because I wrote this advice. It then went off to whichever of the CK solicitors who was prosecuting the case did, and I don’t think I saw much more of it until Andy Cash asked me to do the second Wylie advice. As I said, this wasn’t my case. I was asked to do the charging advice but I wasn’t in charge, I wasn’t the case – the file owner.

Ms Price: You’ve already recognised that there is no reference to the evidential or public interest tests for prosecution in this initial advice. What prosecution test were you applying when you concluded the case could be properly charged as theft?

Harry Bowyer: Well, I would have had those two tests in mind. As I conceded, there should have been discussion of those two factors in this advice. This advice, to that extent, is sub par.

Ms Price: Your advice in relation to statements which would need to be sought, including you flagging up that “We will need to improve the integrity of the Horizon system”. Who did you mean by “we”?

Harry Bowyer: The prosecution.

Ms Price: Did this include Cartwright King?

Harry Bowyer: Yes.

Ms Price: Was it your view that, if evidence of the integrity of the Horizon system overall could be obtained, then this would obviate the need for any specific line of inquiry as to the operation of Horizon in Ms Wylie’s branch?

Harry Bowyer: No.

Ms Price: Did you consider at the time of providing this initial advice what the Post Office’s disclosure obligations were in the case, in respect of other cases in which subpostmasters were raising Horizon integrity issues?

Harry Bowyer: Not at this particular stage, no, because, as I said, this is an extremely early advice. Statements hadn’t been got in and the initial bundle, I don’t think, had been prepared. So no. But, as I said, I wasn’t running the case and I wasn’t responsible for the disclosure schedules.

Ms Price: As a general principle, at the time, would you have understood that subpostmasters raising Horizon integrity issues in other cases might be disclosable in this one?

Harry Bowyer: They might be disclosable, yes.

Ms Price: Would it depend on the particular circumstances of the case as to whether they would be?

Harry Bowyer: Well, it would depend on the defence raised in the defence statement. Obviously, in those stages, at that stage we were looking at, obviously, primary disclosure which was matters which would undermine our case and, as I understood it at the time, there hadn’t been a successful challenge of the Horizon system. We were not told about any bugs at the time.

Ms Price: Moving, please, to your advice in the Wylie case dated 11 July 2012. Could we have that on screen, please. The reference is POL00180894.

Going first, please, to the bottom of the third page, we can see there the date of the advice, 11 July 2012 and your name at the bottom. Going back to the first page, please, you refer back to your initial advice in the first paragraph and then you deal with the more recent events at paragraph 2. You say this:

“The position of Post Office Limited has, up until now, always been robust. When the system has been challenged in the criminal courts the system has always been successfully defended. I understand that the Post Office has announced that it has appointed independent forensic accountants, Second Sight Limited, to conduct an independent review of 10 cases based on the Horizon system. Whether this announcement was well considered or not is not an area that I intend to address but the bell cannot be unrung and there will be consequences that will have to be dealt with.”

Before we deal with the substance of this paragraph, I’d like to explore, please, what prompted this particular advice. Could we have on screen, please, POL00141393. This is a letter dated 6 July 2012. It is from Ms Wylie’s defence solicitors to Cartwright King. It reads:

“Our client has brought to our attention that the Post Office Management have decided to allow forensic accountants to examine Horizon. This decision appears to have been made after our client appeared in the Magistrates Courts for the first hearing.

“In view of the decision that has now been made, as of course our client is maintaining she has not stolen any money and that the fault is due to the Horizon system, what is your position with regards to how this matter is now to proceed.

“Clearly, we would submit that if the Post Office are now looking at the possibility that there may be an error in the Horizon system then this case should not proceed further at this time.

“Perhaps you could advise us as to what stance is to be taken to enable us to consider matters further with regards to possible abuse of process etc arguments that may be advanced on behalf of our client.”

This letter pre-dates your advice by five days. Were you advising in response to this letter?

Harry Bowyer: I may have been. I didn’t see the letter but Andy Cash asked me to write the advice and he may have been triggered by that letter.

Ms Price: Could we have the advice back on screen, please. It’s POL00180894. Could we turn, please, to the third page of this document, which is subparagraph 6(iii) and here you say this:

“We should ascertain why we have decided to instruct Second Sight Limited. I presume that it was not because of any doubt that we had in our system. If so we should be robust in stating that that is so. I presume our thinking was that as we have nothing to hide we have no objection to our practices being scrutinised in which case we should say so.”

Does it follow from this that, at the time of providing this advice, you did not know the basis on which Second Sight had been instructed to undertake its investigation.

Harry Bowyer: I didn’t.

Ms Price: Did you ask for any information about the basis on which Second Sight was instructed from the Post Office before providing the advice?

Harry Bowyer: I didn’t.

Ms Price: Were you provided with any by anyone else?

Harry Bowyer: No.

Ms Price: In circumstances where you were providing this advice, do you think you should have sought further information as to the basis of Second Sight’s instruction?

Harry Bowyer: Oh, in the light of everything I now know, then yes, certainly.

Ms Price: We will come on to the detail of your advice in a moment but, in general terms, you were advising, were you not, on the approach the Post Office ought to take to ongoing prosecutions which relied upon Horizon data; is that fair?

Harry Bowyer: Yes.

Ms Price: In light of that, do you think that you should have recognised at the time the need to seek more information before providing this advice?

Harry Bowyer: Well, the difficulty is this advice is, I think, almost 12 months before the Second Sight Interim Review, and the forensic accountants of Second Sight, when they made their interim review, they came out with the fact that they could find no systemic fault in the Horizon system and they came out with two bugs, and that was after a year of speaking to subpostmasters, access to Fujitsu and access to Post Office. I don’t see that I would have done very much better than they would have done.

Ms Price: Going back, please, to the first page of the advice at paragraph 2., who was it who told you that when the system had been challenged in the criminal courts, the system had always been successfully defended?

Harry Bowyer: I don’t know. I think it might have been Andy Cash.

Ms Price: I’m sorry can you say –

Harry Bowyer: It might have been Andy Cash but I don’t know.

Ms Price: This is a point which you list at paragraph 36(x) of your statement to the Inquiry in support of your understanding at the time that the Horizon system was robust. Did anyone tell you about the acquittal of Maureen McKelvey by a jury in 2004, Mrs McKelvey having raised Horizon issues in her case?

Harry Bowyer: If they did, I can’t remember it.

Ms Price: Did anyone tell you about the acquittal of Suzanne Palmer in 2007, having also raised Horizon issues?

Harry Bowyer: Again, if they did, I can’t remember it.

Ms Price: Well, your understanding in both your statement and set out here, seems quite clear, that the message to you was the system had always been successfully defended?

Harry Bowyer: Yes.

Ms Price: It was not a criminal case but did anyone tell you about the claim brought by the Post Office against Julie Wolstenholme, which was settled in 2004 after a joint IT expert provided an opinion to the effect that the technology installed at the branch was clearly defective?

Harry Bowyer: No, I – if they did, I can’t remember it.

Ms Price: Also at paragraph 36 of your statement, you say you were told that there were never any alleged surplus figures generated by the system?

Harry Bowyer: Yes.

Ms Price: Again, can you recall who told you that?

Harry Bowyer: It would have been the Investigators or what I picked up from the people who were doing the Post Office cases.

Ms Price: Can you think of a single person who told you that?

Harry Bowyer: I can’t recall no but I can recall that that’s what I was told.

Ms Price: Similarly at paragraph 36, you say that very few of these problems were being reported in Crown post offices. How did you know that very few such problems were being reported?

Harry Bowyer: Because, again, I was told that, I think, by Investigators.

Ms Price: Looking at the next line in your advice at paragraph 2, where did you get the information that Post Office had announced that Second Sight had been appointed to conduct the review?

Harry Bowyer: Andy Cash.

Ms Price: The last sentence in this paragraph:

“Whether this announcement was well considered or not is not an area that I intend to address but the bell cannot be unrung and there will be consequences that will have to be dealt with.”

What was your view on whether the announcement was well considered? It appears from this that you thought it was not; is that fair?

Harry Bowyer: I don’t think that the announcement itself was a very good – I’m not saying that I didn’t think that the investigation wasn’t a good idea, because obviously if there are people saying that the system is false, those particular doubts have to be chased but the actual announcement of the Second Sight review led to various difficulties, people wanting to adjourn their cases until they had reported, et cetera.

I think, in fact, in the Wylie case, there was such an application for the case to be adjourned until after the Second Sight Report, which would have, as things turned out, been over 12 months, hence …

Ms Price: Why would that have been a negative thing, people seeking to adjourn, pending the outcome of an investigation into the system they were blaming for their losses?

Harry Bowyer: Well, as far as that was concerned, it would have created a log jam. The position of Post Office was very strong: this system was robust.

Ms Price: Was your reaction to the fact of Second Sight having been instructed, the same as your reaction to the announcement of it –

Harry Bowyer: No.

Ms Price: – as in, did you think that was negative?

Harry Bowyer: No, if it were me, I wouldn’t have done it. If I were the people that – in charge of Post Office, I would have made absolutely certain through Fujitsu that the system was robust. I would have done an internal inquiry and made sure that Fujitsu could guarantee that there were no bugs that could cause what the Subpostmasters for Justice complaining about.

Ms Price: Going on, please, to the next paragraph in your advice, that is paragraph 3, you say here:

“The first consequence is that we have now given ammunition to those attempting to discredit the Horizon system. The argument will be that there is no smoke without fire and we would not have needed to audit a bomb proof system. We can expect this to go viral in that any competent defence solicitor advising in a case such as this will raise the integrity of the Horizon system and put us to proof as to its integrity. As all of our cases depend on the system to compute the alleged losses this is likely to affect a considerable percentage of our cases.”

You say in your statement to the Inquiry that you have read the judgment of the Court of Appeal in Hamilton v Others; is that right?

Harry Bowyer: I have.

Ms Price: At paragraph 137 of that judgment, and I don’t intend to take you to it, I hope you’ll take it from me –

Harry Bowyer: I’ll take your word.

Ms Price: – there is a criticism that, by representing Horizon as reliable and refusing to countenance any suggestion to the contrary, the Post Office was effectively seeking to reverse the burden of proof, treating what was not more than a shortfall shown by an unreliable system as an incontrovertible loss, proceeding as if it were for the accused to prove that no such loss had occurred.

Is your concern here evidence of that approach, the reversing of the burden of proof?

Harry Bowyer: I don’t think so.

Ms Price: Does it suggest that you didn’t think it would do for the Post Office to have to evidence the reliability of the data provided to the court in support of its prosecutions?

Harry Bowyer: No, I suggested at this time that we needed an expert in order to demonstrate the reliability of the system.

Ms Price: This last line of paragraph 3, where you highlight that “All of our cases depend on the system to compute the alleged losses”, was this not a reason for you, as a barrister advising on Post Office prosecutions, to be concerned about the potential implications for those who had and were being prosecuted by the Post Office?

Harry Bowyer: Well, of course, it’s a concern that the system is challenged but there were, at that time, no successful challenges to it. Now, at that time, I hadn’t seen and I hadn’t reviewed other cases, but, later on, obviously, I did get to review cases where there were experts who gave – or who provided statements for the defence and, you know, we did not actually have any positive evidence of the system not being robust until the Second Sight presented their Interim Review 12 months later, and that said that they found nothing systemic with the system.

So even then, when we stopped the prosecutions, it wasn’t because we thought that the Horizon system was not robust; it’s because we thought we had problems with our expert.

Ms Price: At this point in time, all you knew was that Second Sight had been instructed –

Harry Bowyer: Precisely.

Ms Price: – without any information about the basis for that instruction –

Harry Bowyer: Precisely.

Ms Price: – and you didn’t know what the outcome of the investigation was going to be, did you?

Harry Bowyer: No, of course not.

Ms Price: So did you think, well, if the outcome of this investigation is that there’s a problem with the system, a considerable percentage of prosecutions might have proceeded and might continue to proceed on the basis of unreliable evidence?

Harry Bowyer: Well, that didn’t concern me at the time because we were going to – my advice was we were going to get an expert who was going to attest as to the reliability of the system.

Ms Price: You go on at paragraph 4 to say this:

“The extra evidence which we will be obliged to gather will be as nothing in comparison to the potential disclosure problems that we may face. Until the Second Sight investigation is concluded we will be in a limbo.”

One reading of this is that you considered the Second Sight investigation to be problematic because it might give rise to potential issues in relation to disclosable material. Is that the case?

Harry Bowyer: Well, yeah, to an extent, yes, because obviously as far as Second Sight was concerned, it might raise stuff that was disclosable. But I don’t think that I thought that it was going to produce material that was going to be of any relevance to the defence in the future because we were told in terms that the system was robust and what we needed to do was get an expert in to demonstrate that it was.

Now, obviously, if Second Sight came back and they discovered faults, that was going to create problems in the future. But that’s not what happened.

Ms Price: From the perspective of a prosecutor, is this approach not the wrong way round? In other words, if there was a possibility that an investigation might produce material capable of assisting the defence, or undermining the prosecution, then that was a reason to investigate, not a problem.

Harry Bowyer: I can see what you’re saying. But, as far as I was concerned, if we got an expert who was actually able to attest to the robustness of the system, and the expectation was that Second Sight wasn’t going to find anything.

Ms Price: You go on in paragraph 4 to say this:

“It is essential that this enquiry is completed as soon as possible and that we can live by its findings. We will have to find out when this enquiry will report in order that we can choose our strategy. If it is a matter of weeks then cases can be put over until after it reports. If we are talking months then the courts will not wear such delays.”

Might it not have been the case that a judge presented with a well-made application supported by evidence would have seen it as important to adjourn or stay proceedings pending the outcome of the investigation?

Harry Bowyer: Well, that’s certainly one point of view. It was plainly not my view at the time.

Sir Wyn Williams: Mr Bowyer, can I ask you, you’re impliedly, if not expressly, critical of the Post Office decision to announce the Second Sight review but, in case X, shall we say, which comes to light, shall we say, two weeks after Second Sight has been instructed and one of the first things that the prosecuting team sees is that the postmaster in interview under caution has blamed Horizon, would the fact of the investigation then have become disclosable?

Harry Bowyer: I’m sorry, sir, I don’t think I understand the question.

Sir Wyn Williams: Let me try again. We’ve got a case which comes to light shortly after Second Sight has been instructed –

Harry Bowyer: Indeed.

Sir Wyn Williams: – to investigate – and I’m putting this loosely – the reliability of Horizon within the terms of reference of the Inquiry, all right?

Harry Bowyer: Yes, certainly.

Sir Wyn Williams: We then have a case in which there is an apparent shortfall, as demonstrated by data from Horizon, and when the subpostmaster is confronted with that, in interview under caution, says, “Well, I can’t explain it. It can only be due, however, to some fault in Horizon”. Now, either, as part of primary disclosure, but probably more specifically as part of secondary disclosure, would not the fact of the Second Sight review become disclosable?

Harry Bowyer: I’m not entirely sure it would.

Sir Wyn Williams: All right. I want your view about this, if I may.

Harry Bowyer: Because the whole point of the Second Sight Report being commissioned doesn’t actually support a defence that Horizon doesn’t work because, if the Second Sight Report comes back and it says the system is robust, that doesn’t support the defence. The fact that someone’s investigating it is a worry, in that it does back up, as I say in the advice, there’s a no smoke without fire argument. But there is no support for a defence by the fact that someone is investigating.

Sir Wyn Williams: Remind me, is the test for disclosure that it does undermine the prosecution or support the defence, or that it may?

Harry Bowyer: I think it’s “may”.

Sir Wyn Williams: Right. So, on any view, surely, if it’s “may”, then it would be a disclosable document? Oh, sorry, not disclosable –

Harry Bowyer: Disclosable fact –

Sir Wyn Williams: Yes.

Harry Bowyer: But the fact the Post Office have made the announcement meant it was in the public domain anyway.

Sir Wyn Williams: But that’s what was intriguing me, that you appeared to be critical of an announcement which was in effect in inevitable since, once there was a case, it would have to be disclosed.

Harry Bowyer: You may be right.

Sir Wyn Williams: Thank you.

Ms Price: You were in this advice advising on what the Post Office should do in relation to prosecutions going forward, relevant prosecutions. Would you accept that the question which mattered at this point was whether it was possible or fair to continue to prosecute whilst the Second Sight investigation was ongoing?

Harry Bowyer: Well, at the time, I thought it was.

Ms Price: I’m sorry, can you clarify your answer on that? You thought it was what?

Harry Bowyer: I thought it was fair to prosecute if we got an expert demonstrating that the system was robust.

Ms Price: There’s no express consideration in this advice, is there, of whether or not it was possible or fair to continue with prosecutions?

Harry Bowyer: No, there wasn’t.

Ms Price: Was there any assessment of that question in your mind at all, or was it a foregone conclusion that prosecutions could and should continue?

Harry Bowyer: My view at the time was that they could continue.

Ms Price: At paragraph 5 of your advice, you say this:

“I assume that we still contend that the system is foolproof in which case we should defend it aggressively. I understand that the manufacturers have not been helpful up until now.”

Had someone told you, before you drafted this advice, that the system was foolproof?

Harry Bowyer: That was the impression that I got, yes.

Ms Price: Those are quite strong words, “foolproof”. Had someone else used those words in describing this to you?

Harry Bowyer: I can’t recall where I got it from.

Ms Price: “Foolproof” is very absolute and you’re making an assumption here that that was the Post Office’s position. Given the Post Office decision to instruct Second Sight to carry out an investigation into the system, was it a safe assumption to make about such an unequivocal position like this?

Harry Bowyer: Well, with hindsight, no, it wasn’t. But, at the time, it’s – I thought it was.

Ms Price: You comment in this paragraph in relation to your understanding about the manufacturers not having been helpful up until now, and would not provide expert evidence without large fees being sought. Where did that understanding come from?

Harry Bowyer: I think that came from Andy Cash.

Ms Price: You go on:

“This will not do. If the integrity of the system is compromised then the consequences will be catastrophic for all of us including them. The financial consequences of convictions and confiscation orders being overturned and confidence in the Post Office bookkeeping being restored for future prosecutions will be astronomical.”

Did you understand, at the time, that, if the system was compromised then, as a prosecutor, the overriding concern should be the impact that this might have on the fairness of past and present prosecutions?

Harry Bowyer: Yes.

Ms Price: Is it fair to say that this advice does not read as though that was your overriding concern?

Harry Bowyer: As an exercise in reading the future, it actually looks fairly good. Yeah, if the system was compromised, the consequences would be catastrophic, and that’s what’s happened.

Ms Price: Well, the last sentence here you say:

“They should be made to understand that this is a firefighting situation and it is not just our house that would be burned down if the system were compromised.”

Was it your view that Post Office prosecutions were facing an existential threat?

Harry Bowyer: If the system turned out to be compromised, then yes, it would have been disastrous for them. In fact it has proved to be disastrous. That’s why we’re here today.

Ms Price: Did “our house” include Cartwright King?

Harry Bowyer: No, it was Post Office. As far as Cartwright King was concerned, we were acting on instructions.

Ms Price: You set out a number of steps which should be taken at paragraph 6 of your advice, and we’ll come to those in a moment. What we do not see here is an identification of the need for a reasoned and rational basis for continuing to prosecute cases using Horizon evidence when an investigation into the system was ongoing; is that fair?

Harry Bowyer: That is fair.

Ms Price: Would you accept, looking at it now, that that is what was called for in these circumstances?

Harry Bowyer: Certainly, with hindsight.

Ms Price: Was that something you should have recognised at the time?

Harry Bowyer: Yes, I – as far as that was concerned, if I had my life all over again, I think the advice would be slightly different.

Sir Wyn Williams: Ms Price, we need to take a break, so just choose a moment shortly, all right?

Ms Price: Yes, sir.

That is an appropriate moment for the break, sir, if that’s convenient. If we can have 15 minutes, and I make it just past 3.10, so 3.25?

Sir Wyn Williams: Yes, certainly.

Ms Price: Thank you, sir.

(3.11 pm)

(A short break)

(3.25 pm)

Ms Price: Hello, sir, can you still see and hear us okay?

Sir Wyn Williams: Yes, I can.

Ms Price: Mr Bowyer, turning, please, to what you did advise in terms of approach and paragraph 6(i), so if we could have that document back up on screen, please. It’s POL00180894. There me are. 6(i), if we can go to page 3, please. Starting – there we are. You say:

“In my view we should attend to the following:

“We should identify the contested cases, civil and criminal, in which the Horizon system has been challenged. We should identify the areas of challenge and how we neutralised them. Any expert reports should be retained for evaluation. An expert should be identified and instructed to prepare a generic statement which confirms the integrity of the system and why the attacks so far have been unfounded. This expert should be deployed in all cases where the Horizon system is challenged and he should be prepared to be called to reply to defence experts on a case-by-case basis.”

To what extent was your advice here, to obtain a generic statement, influenced by your understanding in relation to how helpful the manufacturers had been in the past when it came to providing expert evidence, if at all?

Harry Bowyer: I don’t think it was influenced by that at all. The idea was that an expert should prepare a statement where the guts of it would be what has actually occurred in the past and what challenges have been made and that they could comment on the particulars of the particular case that he was being served in.

Ms Price: Having had the opportunity to refresh your memory by reference to some of the correspondence which followed this advice, is it right that your advice led to the production of a generic statement in Gareth Jenkins’ name?

Harry Bowyer: It did. I wasn’t happy with Gareth Jenkins because I didn’t think he was independent but I was –

Ms Price: We’ll come on to that shortly. I think you’ve seen a transcript of the evidence given by Duncan Atkinson, King’s Counsel, on 18 December last year –

Harry Bowyer: I have.

Ms Price: – is that right? He was asked a number of questions about your advice on expert evidence in the Wylie case and more broadly. I don’t intend to take you to the transcript but, if, at any point, you’d like me to, please do say and we’ll look to it but I’d like to just run through some of the conclusions Duncan Atkinson reached. First of all, would you accept that what was in fact needed was case-specific expert evidence, rather than a generic statement, even where the expert was prepared to be called to reply to defence experts on a case-by-case basis?

Harry Bowyer: Well, the expert report should always be relevant to the case in point but certain parts of it, rather like a drug statement, will remain the same. So, if you are giving – having an expert who is actually commenting on why the system is robust, what the attacks were made on it in the past were and why they didn’t actually have consequence, then that could be deployed in each case with reference to what happened in this particular case because we had all sorts of different cases alleged. There were people who were alleged to be taking it out of the till, there were people who were alleged to be putting in PIN numbers; there were people who were alleged to be crossfiring Postal Orders and so each case would be different, and the allegation as to why Horizon was not working would be different in each case, and that, as far as I saw it, was the way it would work.

So the guts of the thing would be there, why it’s robust, the attacks on the past but he would refer to the case itself, otherwise it would be fairly useless in court.

Ms Price: Looking at the way that you have worded paragraph 6(i), which we have just been through, would you accept that this advice was seeking to protect the system rather than to assess the reliability of fundamental evidence in the prosecution of subpostmasters?

Harry Bowyer: No. I don’t accept that. The advice was to say that the system was robust and respond to it. There’s no protecting involved. If the system has got faults, they should be disclosed. The whole point was to actually put forward the attacks that had been made on it and this would be an expert who could actually say the system was robust and it was also a windmill for the defence experts to tilt at if they were able to actually come up and the previous attacks on it would be helpful to the defence in that respect.

Ms Price: Was the purpose of advising that a generic statement for use in all Horizon cases should be obtained to obviate the need to investigate, as a reasonable line of inquiry, whether problems with the Horizon system might have created a loss, an illusory loss, in the branch of a specific suspect?

Harry Bowyer: Well, no because such a statement wouldn’t, in fact, work in that way. If you were prosecuting a case, you would need to know. If I was prosecution counsel in an individual case, I would need to know why the defence suggestions weren’t actually right and, so, therefore, they would need to be investigated by the expert on a case-by-case basis. I wasn’t suggesting having a case to serve blanket in each case, because trial counsel wouldn’t have wanted that. They’d have said, “Well, that’s all very well in the past but, in this particular case, they’re alleging that this has happened, what about it?”

Ms Price: Was the purpose of advising that this statement be obtained to obviate the need to identify material capable of undermining the truth case or, if it was in the Post Office’s possession, might undermine the prosecution case, in any specific case?

Harry Bowyer: No. The point of it was to actually address the system as to why it was safe and, as far as the defence were concerned, give their expert something to actually get into and give them an expert that they could deal with.

Ms Price: Looking, please, to paragraph 7 at the bottom of this page, you conclude:

“I can appreciate that the above might be expensive but it will be as nothing should the integrity of the Horizon system be compromised.”

Taking a step back and looking at your advice as a whole, do you accept that there was too much focus in this on the potential fallout for the Post Office, Fujitsu and Cartwright King, if the integrity of the system was found to be compromised, and insufficient consideration of the implications for the people who had been and continue to be prosecuted on the basis of Horizon data?

Harry Bowyer: No. What I was intending to do was actually create a situation whereby these cases could be prosecuted fairly, with proper disclosure to the defence. Our instructions at the time was that this system was robust and, as far as that was concerned, it would have been a pity if we didn’t actually defend the system properly because, if a breach in the robustness of Horizon seemed to have been created, as far as that was concerned, that would have been disastrous and so what we wanted to do was demonstrate that it was robust, and there was no covering this up. You know, as far as disclosure is concerned, we have always advised disclosure.

Ms Price: Could we have on screen, please, POL00143377. Starting, please, towards the bottom of this page. Little further down, please.

This is the email from Andy Cash sending your advice to Jarnail Singh on 11 July 2012. He says he encloses advice from Harry Bowyer:

“I know it will be unpalatable, but for what it may be worth I share his view. In the instant case, our response must be dependent on timescales for completion of the inspection. We are only just beginning to see these issues raised by defence solicitors and the sooner we grasp the problem the better. If you want any more do call, otherwise I will await the outcome of your consultations before responding to the defence.”

Then, going further up, please. We can see the email above that in the chain, the email from Jarnail Singh to Andy Cash, copied to Susan Crichton and Mr Flemington, dated 16 July 2012. Mr Singh says this:

“Andy.

“Thank you.

“I agree defence will approach to stay the prosecution until the review by Second Sight is completed will become increasingly common. Post Office view is that such an approach be resisted. Review to be conducted is limited in scope in few and isolated cases. Second Sight would work with a number of MPs (two at present) to review cases that have been raised by their constituents. Second Sight’s appointment is presently being agreed with the MPs and Justice for Subpostmasters. There is no legal or forensic grounds to argue defendants will not get fair trial or abuse of process. There is no reason to justify the case being stayed. The fact that the review is being carried out is not an acknowledgement that there is an issue with Horizon. The system working properly and is being used up and down the country. When the system has been challenged in criminal courts has been successfully defended. There is no mileage in this position but is in fact superficial.”

This was a clear view being expressed by Mr Singh that the Post Office would not agree to stay relevant prosecutions; would you agree?

Harry Bowyer: Yes.

Ms Price: Going up to the top of the page we can see you were copied in to Mr Cash’s response, and Mr Cash says:

“Thanks for this. Do we take it that we ‘resist’ defence requests in the terms of your email? I would like formal confirmation bearing in mind the view taken by counsel. If further consultation with Harry or otherwise would assist please let me know. I will need to reply to Kim Wylie’s solicitors this week.”

Did you understand these to be your instructions: that you should resist requests for a stay from the defence.

Harry Bowyer: Well, as I say, I wasn’t instructed in any of these cases.

Ms Price: Did you understand that to be Cartwright King’s instructions from this email?

Harry Bowyer: It seems fairly clear, yes.

Ms Price: In respect of Mr Singh’s comments on your advice more generally, you say in your statement at paragraph 50 that you thought Mr Singh was somewhat over-optimistic as to the limited affect of commissioning the Second Sight review. Can you explain, please, why you say that?

Harry Bowyer: Well, he thought that the Second Sight review was going to be limited. I didn’t.

Ms Price: Did you consider at the time that Mr Singh was minimising the significance of Second Sight’s instruction?

Harry Bowyer: I don’t think I gave it that amount of thought but, actually, if I had addressed it, yes, I suspect that would have been my view.

Ms Price: At that time, did you have any reason to think that Mr Singh was not being fully frank with you about whether there was an issue with the Horizon system?

Harry Bowyer: At that stage, no. I had no reason to believe it.

Ms Price: You say in your statement that you were told by Andy Cash that the Post Office did not like your advice and that you were not asked to advise formally on the issue after that. What were you told about the reason why the Post Office did not like your advice?

Harry Bowyer: Andy Cash – it’s a throwaway comment from Andy Cash that they’d seen my advice and didn’t like it.

Ms Price: I’d like to turn, please, to the generic Gareth Jenkins statement, which was produced following the July 2012 advice. Could we have on screen, please, POL00141416. This top email is from you to Jarnail Singh, copied to Andy Cash and entitled “Horizon integrity project”. So scrolling down a little. We don’t see the sender at the top but we do see “Harry” at the bottom there.

It is responding to the email below from Jarnail Singh, dated 6 August 2012. Can we scroll down to that. Thank you. His email is to you, copied to Mr Flemington. He says this:

“Harry – it was good to chat with you. I confirm that Helen Rose has been given the task to gather the data. Please find her email and spreadsheet. It would be useful at this stage if you could look at what information Helen has provided and advice accordingly in readiness to instruct an expert as part of providing an advance pack disclosure.”

Below that is an email from Helen Rose explaining where her work pulling together information relating to cases in which Horizon issues had been raised. Going back up, please, to the top of the first page, to your email, and you say:

“This appears to be what we want.

“Hopefully Helen will confirm that the Horizon system has never been successfully challenged. I have yet to see any signs of experts briefed on behalf of the defence.

“When she has completed her exercise she should prepare a summary of those cases where there is a proper attack on the system rather than a gripe that the system is at fault (although she should record these cases so that we can say that they have been kept under review – they will become more numerous as the bandwagon picks up speed).

“The expert will need to address the report to the followed issues …”

You set out four points:

“A description of the Horizon system (in layman’s terms so that a jury can understand what it is and what it does)

“[Second] A declaration that it has yet to be attacked successfully.

“[Third] A summary of the basic attacks made on the system concentrating on any expert reports served in past cases. If there are none then state that no expert has yet been found by any defence team civil or criminal to attack the system (at the moment there seems to be little more than griping by the defendants that the system must be at fault without saying how).”

Further:

“Plainly, like all accounting systems, there is room for human error (keying in the wrong amounts etc) but the expert should be able to state that innocent human error is unlikely to produce the types of discrepancies of many thousands of pounds over many months.

“A decent report along these lines will go a long way to putting this issue to bed.”

Can you help with why you considered the factual position on whether there had been an effective legal challenge to the Horizon system was a matter for expert IT opinion?

Harry Bowyer: Well, I don’t think I meant legal decision. I meant had there been an attack made by an expert on the system? Had there been any faults found? Had there been any faults suggested?

Ms Price: Helen Rose was putting together a spreadsheet of cases based upon Post Office records, wasn’t she?

Harry Bowyer: Yes.

Ms Price: Can you help with why someone from the Post Office was not identified to give evidence about these previous cases or produce records of them?

Harry Bowyer: Well, I assumed that the database that was put together would be something that would appear on the disclosure schedule and would be useful for a defence expert to look at.

Ms Price: Looking at the four issues you advised that the generic priorities should address, did you consider that these issues were sufficient to form the basis of a generic report on Horizon integrity?

Harry Bowyer: Well, I’m not a computer expert so, at this particular stage, I hadn’t heard of any bugs in Horizon and so what I wanted to do was actually take everything that there was that was critical of Horizon, because there was nothing from the Post Office side and so the best angle I thought was the attacks that had been made in previous cases, because they would actually give the best in if there were any faults to be found with it.

Ms Price: These four issues do not actually address the fundamental question of whether a problem with the system could cause illusory shortfalls in branch, do they?

Harry Bowyer: No, they don’t.

Ms Price: Quite apart from the issue of whether a generic, as opposed to case-specific, approach was what was required, wasn’t that the question at the heart of things?

Harry Bowyer: You may well be right. Obviously, I’m not a computer expert and so I went about it the way that I thought the system, you know, could be best explained and best presented for the defence. Again, if I was able to write the advice from this email all over again, I may well have approached it differently. But, at the time, I didn’t know.

Ms Price: Towards the –

Harry Bowyer: You can see it from the Jarnail Singh email, where he says it’s robust. That’s the information we got constantly at this time: that the system was fine apart from human error and manual entry mistakes.

Ms Price: Could we have on screen, please, POL00020489. Towards the bottom of the first page, please, is an email from Andy Cash to Jarnail Singh, copied to you, among others, and dated 12 September 2012, and he says this:

“Harry advises that the report, provided it is comprehensive, is what is needed and we now need the experts report on it as soon as practicable in view of the current cases timetables.”

The email replying to this is above and from Jarnail Singh. He says:

“Andy

“Thinking about a choice of expert in this case. I have in the past instructed Gareth Jenkins of Fujitsu in the case of Misra which [identical] was the only challenge on Horizon, he provided expertise in dealing with defence boundless enquiry into the whole Horizon system. Perhaps we need to reconsider whether to instruct him as he may be viewed too close to the system but instruct somebody entirely independent? Your thoughts please and also whether you or Harry have anybody in mind.”

Then you reply to this in the top email on the page, saying:

“I would have preferred someone entirely independent but this is such a specialist area that we would be hard pushed to get a report in the timescale that we require – we might open our expert up to allegations of partiality but his expertise will be unlikely to be challenged.

“We need to get this report off the skids as soon as possible as we have PCMHs and trials galloping up on us.”

Was the urgency of the expert report being driven by the court timetabling in the case of Wylie and the other cases due to become –

Harry Bowyer: It was a factor, certainly.

Ms Price: In this email, you express a preference for someone entirely independent and you explain at paragraph 55 of your statement that this was because the potential for allegations of bias or actual conflicts of interest, as, in the event, were plainly relevant, were obvious.

Can we take it from this that you were alive to the fact that Mr Jenkins was not a functionally independent witness?

Harry Bowyer: Yes.

Ms Price: Was consideration given at this stage to applying to adjourn these cases to enable time to find an appropriate expert, other than Mr Jenkins?

Harry Bowyer: I don’t think so, no.

Ms Price: Do you think consideration should have been given to that?

Harry Bowyer: With hindsight, certainly.

Ms Price: You say at paragraph 56 of your statement to the Inquiry that you were made firmly aware that finding another expert was impracticable. Who was it who made you firmly aware of this?

Harry Bowyer: I was made aware by Post Office, and it was such proved to be the case, when we actually tried to find another expert after Mr Jenkins developed his problems and so actually trying to find experts, I think Martin Smith and Simon Clarke approached quite a number of people to try to get a report done on this case and Post Office weren’t helpful during that time, and actually finding someone with the expertise to be able to give a report on the Horizon system was very difficult indeed. But we certainly were not going to be able to do it in any short period of time because, obviously, you know, they had to be told what was wanted. They had to give their estimate as to what it was going to cost in order to provide such a report, et cetera.

Ms Price: Would you agree that Mr Jenkins’ lack of functional independence made it all the more important to ensure that he was aware of and understood the nature of expert duties?

Harry Bowyer: Yes.

Ms Price: Could we have on screen, please, POL00096997. Towards the bottom of this page is the start of an email from you to Martin Smith, dated 2 October 2012 and entitled, as the chain of emails is, “Horizon Fujitsu report very urgent”. You are responding to an email from Martin Smith which was forwarding on to you a report prepared by Mr Jenkins in draft. Going to page 4 of this document, please, we can see an email further down in the chain which was forwarded to you, an email from Jarnail Singh, there we are, dated 1 October 2012, which was sent to Gareth Jenkins and copied to Penny Thomas, Hugh Flemington and Martin Smith.

We see there an introductory paragraph and, about halfway down:

“You will need to consider the Disclosure Officer’s document/spreadsheet (see attachments) [that’s the Helen Rose spreadsheet] and need to address in your report the following issues …”

We see there – I won’t read them out again – what looks like a copy and paste of the four points from your earlier correspondence. These instructions were contained in an email chain which was forwarded on to you when you considered Mr Jenkins’ draft. They are, in effect, the instructions to Mr Jenkins. Did you consider these instructions sufficient for the instruction of a prosecution expert at the time?

Harry Bowyer: Well, at the time I plainly did, yes.

Ms Price: Do you consider them sufficient, looking at them now?

Harry Bowyer: No, I – if I went back, knowing what I know now, then obviously I would – I’d have done different.

Ms Price: Going back up to your email of 2 October, please, that’s the bottom of page 1, going over to the top of the next page. So having been sent the draft report, you say:

“At first sight this/these took good, look like a good base upon which our reports can be based (as most are fishing expeditions they will do in the current form).”

You say:

“I have edited the last report (last paragraph) because as it currently stands it is an invitation for requests for further disclosure (see attachment). Can you put this past Mr Jenkins.”

So dealing first, then, with the amendment you made to the draft, could we have the amended draft on screen. It’s POL00058369. This the draft generic Horizon integrity report, which had been sent by Mr Jenkins, and this version shows the amendment that you had made referred into your email. If we can go to page 9 of the report, please. This is section 3 entitled “Horizon Integrity”. Casting your eye down the page to see what’s been taken out, we see a large chunk which has been deleted. Just scrolling further down, please, and over to the top of the next page, the change that you had made was to delete the reference to the Helen Rose spreadsheet and the summary of the specific cases which Mr Jenkins had taken from that spreadsheet as well as any reference made by Mr Jenkins to specific cases. Would you agree with that as a characterisation of the amendment?

Harry Bowyer: Yes.

Ms Price: Can you explain why that amendment was made?

Harry Bowyer: Because this is the – effectively, the basis of any statement made in a case and, as far as those matters are concerned, if you go back to the previous page at the top of it, there is an awful lot there that would have to be changed every time. So “HR Spread”, this is a spreadsheet prepared by Helen Rose summarising 25 cases. As we went on, that number would have to change. It lists the number of cases that he didn’t have anything to do with and, as far as this is concerned, it lists the cases that he did have something to do with but there’s nothing there that undermines the prosecution case in this. All of this would be disclosable but would be stuff for a disclosure schedule, not for the statement itself.

That’s why I removed it because all that would happen is we would be asked for vast quantities of paperwork in every case relating to these cases.

Now, if they, actually – as I said, none of it is primary disclosure but later it would be secondary disclosure and, in due course, they could get that from the disclosure schedule.

Ms Price: At the time, did you consider that it was appropriate for you to amend the expert’s draft report?

Harry Bowyer: Yes, I was asked to look at it. It would be absurd if someone couldn’t put papers in front of their lawyers to say “Is this right?” and the amendments that I made, I then asked Martin Smith to put in front of Mr Jenkins to see if he approved. The actual flavour of the thing is exactly the same. It says what Mr Jenkins says but it doesn’t provide vast quantities of names of other defendants which, again, whether that’s proper to put in a statement at this stage.

Ms Price: Did you ensure that the original unamended draft was recorded on the unused schedule in the case of Wylie or any other case in which it was disclosed?

Harry Bowyer: No, because I wasn’t actually litigating that case.

Ms Price: Can you help with whether Helen Rose’s spreadsheet was treated as unused material, potentially disclosable in other cases?

Harry Bowyer: I never saw the disclosure sheets.

Ms Price: Looking, please, to the last page of the draft report again. There’s no expert’s declaration on this draft report, is there?

Harry Bowyer: Not that I’ve seen.

Ms Price: I think you’ve had a chance to review the document in its entirely ahead of today?

Harry Bowyer: Yes.

Ms Price: Would you agree that it does not set out the substance of Mr Jenkins’ instructions?

Harry Bowyer: Yes.

Ms Price: That can come down now. Thank you.

In your email to Martin Smith of 2 October 2012, you asked that he draft generic section 9 statements for Mr Jenkins to produce the reports. Why was it that you considered that was the format that these should be put into, rather than a form of an expert report?

Harry Bowyer: I don’t know. It’s what I decided at the time.

Ms Price: Did you at the time advise Mr Singh or anyone else at Cartwright King that the report or statement needed to set out the requirements for expert evidence in criminal proceedings, as required under the common law and the Criminal Procedure Rules?

Harry Bowyer: I don’t know. I hope I would have done but I don’t know.

Ms Price: It may follow, were you aware at the time of the need for an expert to include a statement to the effect that the expert has complied with his or her duty to the court to provide independent assistance by way of objective, unbiased opinion in relation to matters within his or her expertise and an acknowledgement that the expert will inform all parties and, where appropriate, the court, in the event that his or her opinion changes on any material issues?

Harry Bowyer: I’m sorry, I don’t understand the question.

Ms Price: I’m asking if you were aware that the wording I’ve just read out was a mandatory requirement for inclusion?

Harry Bowyer: Yes. Yes, I was.

Ms Price: Can you help with why you didn’t flag up, certainly on the email that we’ve just seen, the requirements for expert evidence?

Harry Bowyer: I don’t know. It was a work in progress.

Ms Price: At this point or at any other point, did you take any steps to ensure that Mr Jenkins had been properly instructed as an expert –

Harry Bowyer: No.

Ms Price: – and made aware of his duties as an expert?

Harry Bowyer: No.

Ms Price: Can you help with why? Was it that this was someone else’s responsibility, or?

Harry Bowyer: I wasn’t, as I said, litigating in the case and I wasn’t counsel instructed. But a counsel instructed in the case would, I hope, have spotted if the expert’s report didn’t have an expert’s declaration on it.

Ms Price: Can we have on screen, please, POL00097216. This is an email chain from November 2012 containing emails from Rachael Panter, Gareth Jenkins, Andy Cash, Jarnail Singh and some others. Looking, first, please, at page 3. This is an email from Mr Jenkins, dated 27 November 2012. In the third paragraph – this is to Rachael Panter, you are not in the copy list of this at this stage – Mr Jenkins says:

“Reading through the defence statement I see it does make some specific points which my statement doesn’t currently address, specifically the challenges regarding robustness and remote access to the system. Do you want me to try to address those specifics?”

Scrolling up, please, to Ms Panter’s reply on the same day. She says this in her first paragraph:

“Many thanks for this … If you feel that you are able to deal with the issues of robustness and the Remote Access system fairly swiftly then I would like you to address those points that have been raised, so that we can deal with every area that they have criticised.”

Scrolling up again, please. We see an email from Mr Jenkins, and he proposes adding in to the report some new sections. And he says:

“I have been asked to provide a statement in the case of Kim Wylie. I understand the integrity of the system has been questioned and this report provides some general information regarding the integrity of Horizon.”

There is then reference to the robustness of Horizon in the next paragraph, including:

“… I would say that Horizon has been designed such that it does not break down easily and is not affected by a single application failure. Also, Horizon does recovery quickly from failures and does hold up well under exceptional circumstances and is not wholly affected by a bug in one aspect of it. However as the report below shows, that in those cases where there is a failure, the Integrity of the data recorded is maintained and any discrepancies resulting from the failure are restricted to the transactions being processed at the time of failure, whose amounts are normally insignificant compared to the amounts identified in shortfalls of cash as found during an audit of a branch.”

He goes on to address remote access.

“I also note a comment made about it being possible to remotely access the system. It is true that such access is possible; however in an analysis of data audited by the system, it is possible to identify any data that has not been input directly by staff in the branch. Any such change to data is very rare and would be authorised by Post Office Limited. As I have not had an opportunity to examine data related to this branch, I cannot categorically say that this has not happened in this case, but I would suggest it is highly unlikely.”

Coming then to the email at the top, which is Ms Panter’s reply. She says:

“I have had our in-house counsel Harry Bowyer read this and he is happy for all of it to go in, including the section about remote access. Harry has suggested that in order for us to deal with that potential avenue, that we ask the investigator to check if there have been any occasions where the system has been accessed remotely. Their findings either way can then be added in a further covering their lines of inquiry.”

So is Ms Panter right that you read and approved the wording proposed by Mr Jenkins that –

Harry Bowyer: She must be, yes.

Ms Price: You have this morning made a correction to your statement, to the effect that the Deloitte report was not the first time you became aware that remote access was possible.

Harry Bowyer: No.

Ms Price: Was it looking at this document –

Harry Bowyer: It was looking at this document. This document dates back to November 2012, when the backdoor wasn’t an issue that was bothering us. That became more live in July of the next year, some eight months later, and I’d clean forgotten it. You can see with the Gareth Jenkins-Rachael Panter, he emails her first at I think about 12.00 and her response is at 12.21. I have telephoned Rachael Panter so I plainly wasn’t close to my keyboard, so I probably read the email on my telephone, responded that I was happy for it to go in, and suggested that we ought to cover whether it had been remotely accessed and then, I’m afraid, I clear forgot about the whole thing.

Ms Price: Having had the opportunity to refresh your memory by reference to this document, do you now recall being made aware, in November 2012, about remote access?

Harry Bowyer: No, not remotely. When – there were a couple of shock moments in this, as far as we were concerned. Number 1 was Second Sight discovering that there were bugs, and the second one was the Deloitte report, which said that there was remote access because by that stage Post Office had been quite voluble about the fact that there wasn’t, and this particular email exchange, I just don’t remember because, as I said, my memory was the shock of the Deloitte report.

Ms Price: Does it follow from your answers that you don’t recall feeling shock when you found out about remote access from Gareth Jenkins in November 2012?

Harry Bowyer: Well, I don’t think it was such an issue at that particular stage, because when we got into 2013, people were denying that it was possible and, you know, it was when the Deloitte report came out that that was proof positive that it was possible. And, as I said, my reaction was shock in 2013 and I just didn’t remember this exchange. I’m pleased to say that – pleased to see that I actually advised disclosure of that and I suggested that it should be followed up in the statement.

Ms Price: Do you think you understood the implications of this in November 2012?

Harry Bowyer: No, I don’t think I did. It was plainly disclosable and that’s why I advised disclosure. But it was the next year that the backdoor became an issue.

Ms Price: I’d like to move, please, to the Second Sight Interim Report. Could we have on screen, please, paragraph 60 of Mr Bowyer’s statement, page 15. You say here:

“As far as Cartwright King’s concerns with the Second Sight Interim Report were concerned we were very much alive to the fact that a system that we had been told was robust did indeed have bugs in it. This was plainly going to cause [Post Office Limited] difficulties.”

At 61:

“I remember being taken aback when we discovered what the Second Sight Interim Report would contain as it flew in the teeth of what we had been told. Again, it was not of direct concern to me, as I was not a member of the Post Office department.”

Do you mean the Cartwright King Post Office department by that?

Harry Bowyer: Yes.

Ms Price: You say at paragraph 14 of your statement that you became aware, through conversations that Martin Smith had had with senior Post Office Limited executives that the Second Sight Interim Report would reveal the existence of bugs in the Horizon system. How long before the publication of the Interim Report did these conversations take place; can you remember?

Harry Bowyer: It happened at the very end of June, I think. What happened was Martin Smith reported to Simon Clarke that the Second Sight Report would disclose bugs. Simon Clarke actually had a Post Office case that he was prosecuting as counsel, and so he and Martin had a conversation with Gareth Jenkins and I think the Inquiry has got Martin’s note of that particular conversation. As a result of that, Simon asked to see all Gareth Jenkins’ previous statements or a number of them and discovered that none of this material had been made available there, which caused a worry about that particular witness. That’s what, effectively, inspired the clerk report, which I think was about 15 July.

Ms Price: When Martin Smith was told that the Interim Report was going to make reference to bugs in the system, did anyone from Cartwright King ask anyone from the Post Office how long they had known about these bugs?

Harry Bowyer: I don’t know.

Ms Price: Did you?

Harry Bowyer: I certainly didn’t but I came in later because I wasn’t part of the telephone call to Gareth Jenkins, so that was Martin and Simon.

Ms Price: Did this make you question, when you got this message, whether Cartwright King would have been told about the existence of these bugs by the Post Office, were it not for the impending report?

Harry Bowyer: Yes, I mean, this is – this, as I said, was one of the shock moments because a system that we were told was robust, whilst it didn’t have anything systemic in it, it did have bugs and we should have known about them and we should have been disclosing them.

Ms Price: At paragraph 62 of your statement, you deal with the information you received about Gareth Jenkins’ knowledge of bugs, and you say – this is the point at which you became involved:

“… when I was approached by Simon Clarke who told me about the conversation that he and Martin Smith had had with Gareth Jenkins in late June about the case that Simon was prosecuting.

“The thrust of the conversation was that it was Gareth Jenkins who had provided the information about the two bugs mentioned in the Second Sight Interim Report. This was clearly not consistent with statements that he had given in the criminal cases that he had been involved with.”

Then at 64 you address the implications of this. You say quick:

“The implications of this were plainly enormous and it was our joint view that [Post Office Limited] could not continue to prosecute on his evidence and there would have to be a revisiting of previous cases with disclosure in mind. This was unlikely to be popular with [Post Office Limited] and our employers, [Cartwright King].”

You say, however, that the management at Cartwright King turned out to be supportive of your position; is that right?

Harry Bowyer: Yes. It was a nasty time, because, you know, if they hadn’t have been it could have made our lives very uncomfortable.

Ms Price: Did it surprise you that Cartwright King management were supportive of your position at the time?

Harry Bowyer: I was actually quite pleasantly surprised by it. I thought they were going to be more difficult about it.

Ms Price: You say at paragraph 65 there that:

“… the matter was canvassed at the highest levels with the equity partners as [Post Office Limited] was an enormous client even for a firm the size of [Cartwright King].”

Harry Bowyer: Yes.

Ms Price: So was that part of the reason why you were pleasantly surprised, because of the significance of this client –

Harry Bowyer: Yes.

Ms Price: – to the firm?

Harry Bowyer: Yes. I mean, effectively, that was the stage that we stopped the Post Office prosecuting and we also were aware that there were disclosure problems, as far as previous convictions. It may well be that Cartwright King are not covered in glory, as far as their role as independent lawyers are concerned but, actually, we did stop the prosecutions at that stage and we did begin the disclosure sifts.

Ms Price: You deal at paragraph 66 with the Post Office reaction to the Interim Second Sight Report and you say that:

“[Post Office Limited] were philosophical in regard to disclosure of the Second Sight Interim Report to current and previous defendants.”

What do you mean when you say Post Office was philosophical in regard to disclosure of it?

Harry Bowyer: Well, we made it clear that these – as far as the Second Sight Interim Report and later the Helen Rose report disclosed stuff that should have been made available to previous defendants who had either been convicted or who had pleaded, and so Simon Clarke put in the sift regime and Post Office, very shortly after that, instructed Brian Altman QC, as he was then.

Ms Price: Can you recall which individuals at the Post Office in particular were philosophical in this respect?

Harry Bowyer: I think Jarnail Singh was someone I remember discussing the case with Simon and Martin.

Ms Price: You go on to say:

“The attitude then was still that the system was essentially robust and, once the new expert was instructed, they could prosecute again. They were very concerned at the new cases being investigated piling up.”

Harry Bowyer: Yes.

Ms Price: What was the reasoning given by the Post Office for continuing to believe the system to be robust, notwithstanding the bugs which were identified in the interim Second Sight Report?

Harry Bowyer: Well, the bugs themselves were identified by Second Sight as not being systemic and so, at that particular stage, the belief was that an expert who was reliable, or who was independent of Fujitsu, who could give the Horizon system a clean bill of health, would, in fact, fix the situation and they would be able to continue to prosecute.

Ms Price: Did no one think, well, if there have been these two bugs, there might be others?

Harry Bowyer: Well, to an extent, the Second Sight had been at this for over a year, and they had been, as far as we knew, in contact with Fujitsu, with the postmasters. They were forensic accountants and this is all they’d come up with.

Ms Price: Did anyone think there have been these bugs, there might have been others in the past outside the period being looked at by Second Sight?

Harry Bowyer: I don’t know if anyone thought that but, as far as I was concerned, I thought that Second Sight had actually spent a fair amount of time doing this but that was the whole point of getting the expert to take a look at the thing, to see if it was, in fact, you know, robust as Post Office said.

Ms Price: Can you recall who was expressing concern about new cases being investigated piling up?

Harry Bowyer: I think that was Jarnail.

Ms Price: Could we turn, please, to page 22 of Mr Bowyer’s statement, at paragraph 107, towards the bottom, please. In the context of a question about how the Cartwright King review, to which we’ll come, should have been done differently, you say this:

“Plainly the review was conducted on the false premise that the only material that needed to be disclosed was the Second Sight Interim Report and the Helen Rose Report when it must have been known at [Post Office Limited] and Fujitsu that the problems with Horizon ran much deeper. We were under the impression that whilst there were a couple of minor bugs revealed by Second Sight and we had a problem with a dishonest witness the Horizon system was fundamentally sound and once that had been demonstrated by an independent expert witness that prosecutions would proceed again. If we knew then what we know now then there should have been a root and branch reappraisal of the past prosecutions and a complete moratorium on prosecutions based on Horizon until it could be demonstrated to be sound.”

At around the time of the publication of the Second Sight Interim Report, you had been told that Mr Jenkins was the one who had told Second Sight about the two bugs identified in the report?

Harry Bowyer: That was my impression, yes.

Ms Price: You were concerned, along with your colleagues, enough about his non-disclosure of bugs in the past that you considered the Post Office could not continue to prosecute based on his evidence. So in those circumstances, did you not question, at the time, whether there might be problems running deeper with Horizon about which he and others were not being forthcoming?

Harry Bowyer: Well, at the time, no.

Ms Price: Who was it at the Post Office that made the decision to cease prosecutions until another expert can be found, as far as you were aware?

Harry Bowyer: I wasn’t aware and it was as a result of Simon’s advice.

Ms Price: Turning then, please, to the Cartwright King review –

Sir Wyn Williams: Well, hang on, Ms Price. We’re now getting close-ish to 4.30. What’s the plan?

Ms Price: Sir, I think it’s unlikely that I will finish this afternoon. I don’t have much more but I won’t be finished by 4.30, I’m afraid, sir. We had envisaged going into tomorrow, in any event, ahead of Mr Smith’s evidence, to deal with Core Participant questions and, sir, I wonder if it might be acceptable for me to finish my questioning in the morning before we commence that?

Sir Wyn Williams: Yes. Well, subject to me just confirming with Mr Bowyer that he’s ready, able and willing, so to speak, to return tomorrow.

I understand that’s the case, is it?

Harry Bowyer: Yes, sir, I indicated a while ago that I could come tomorrow.

Sir Wyn Williams: Fine. So I think it is a convenient time to stop now. We’ve been working since 9.45. So, overnight, please don’t talk about your evidence, I’m sure you won’t, and we’ll resume again at 9.45 tomorrow. Thank you.

The Witness: I’m obliged.

Ms Price: Thank you, sir.

(4.23 pm)

(The hearing adjourned until 9.45 am the following day)