1 May 2024 – Harry Bowyer and Martin Smith
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(9.45 am)
Ms Price: Good morning, sir. Are the picture and sound working as they should?
Sir Wyn Williams: Yes.
Ms Price: Sir, just a reminder that we have a fire alarm at 10.00. If you’re content, then we’ll just stay silent for that alarm.
Sir Wyn Williams: Of course, yes.
Ms Price: Thank you, sir. May we please continue with Mr Bowyer’s evidence?
Sir Wyn Williams: Yes.
Harry Bowyer
HARRY BOWYER (continued).
Questioned by Ms Price
Ms Price: Good morning, Mr Bowyer. When we adjourned yesterday I was coming to the Cartwright King review.
Harry Bowyer: Excellent. I haven’t got my statement in front of me.
Ms Price: Let’s see if we can get that sorted.
Harry Bowyer: That’s perfect. Thank you very much.
Ms Price: Could we have on screen, please, paragraph 68 of Mr Bowyer’s statement. That’s page 16. You describe the review process here in this way. You say:
“In broad terms the process operated by the relevant files being selected to a first sift. This was carried out by various solicitors at Cartwright King (including Martin Smith and Andrew Bolc) and those cases that passed the first sift criteria was subjected to a second sift that was conducted by council. Initially the only counsel involved were Simon Clarke and myself but later counsel from the independent Bar were instructed. The operation was conducted from the [Cartwright King] Derby offices to give easy access to the files. If disclosure was required we were advising [Post Office Limited] to disclose the Second Sight Interim Report and the Helen Rose Report.”
Just picking up on the last sentence there, that where disclosure was required, you were advising the Post Office to disclose both Second Sight’s Interim Report and the Helen Rose Report, you may have seen from the papers that there are a number of cases on which you advised where your advice covered the Interim Second Sight Report and advised that should be disclosed but did not mention the Helen Rose Report or advise its disclosure.
So just taking an example, the case of Allison Henderson, that’s the case you address at paragraph 82 of your statement and the advice, if we can have it on screen, please, is POL00294503. You see that’s the case of Allison Henderson. Going, please, to page 3, under “Discussion” – if we can just give Mr Bowyer a moment, just to look, as we scroll down that discussion section, and then over the page to the conclusion.
Can you see that the Second Sight Interim Report is addressed and the advice is to disclose it but there is no reference here to the Helen Rose Report. Can you help with why, in some cases, only the Second Sight Interim Report was being disclosed and not the Helen Rose Report?
Harry Bowyer: I’m afraid I can’t recall on a case-by-case basis.
Ms Price: Would there be any type of case where one but not the other would be disclosable?
Harry Bowyer: I think there were, I think in some of Simon Clarke’s Advices I think he specifically disclosed one and not the other.
Ms Price: Could you have on screen please POL00198128. This is your advice in the case of Kathleen Crane and you address this at paragraph 79 of your statement, if you want to see that. This was a Horizon Legacy case. Going to page 3, please, paragraph 9. You say this:
“This is a pre-Horizon Online case. The Second Sight Interim Report deals largely with Horizon Online. We have nothing to disclose that directly relates to the pre-Horizon Online cases. If this was a case where the allegation was one of theft or the defendant was sentenced on the basis that she had appropriated the money the position might well have been different.”
To what extent, if at all, did you consider that Legacy Horizon cases might attract disclosure of the Second Sight Report.
Harry Bowyer: Well, I think we did disclose some of the Legacy cases.
Ms Price: Well, we can come to that. I think you’ve quite recently seen a copy of your advice in the case of Peter Huxham; is that right, do you recall?
Harry Bowyer: Oh, yes, I would have done.
Ms Price: If we can have that on screen, please, it’s POL00294518. We can see from the title here that this was also a pre-Horizon Online case, your advice is 4 September 2014. Going to the discussion on page 3, paragraph 10, please, you say:
“This is an unexplained loss case where the defendant states that he was covering up losses that had occurred for reasons outwith his knowledge. There is no danger of the defendant’s conviction being found to be unsafe as he has admitted his guilt from the very first but he has been adamant that he did not take the money to the point of fighting and losing a ‘Newton hearing’. His explanations as to the possible loss relate to possible thefts either by a member of staff or, seemingly, at the ‘Newton’ hearing, his wife may well have been modified into an attack on the Horizon system had he but had the material to mount it.”
Then over the page, please, at 11:
“I doubt that an appeal against sentence will be mounted after any disclosure that we might make in this case as the sentence has been long served. The reality is that the Second Sight Interim Review deals in the main with Horizon Online, the system that superseded Mr Huxham’s system but it did deal with the pre-Horizon Online issues and in my view had we had the material contained in the Second Sight Interim Report at the time of the Newton Hearing we would have served it on the defence.”
Then the “Conclusion”:
“Those instructed by Mr Huxham should be written to in order to make disclosure of the material contained in the Second Sight Interim Report.”
In this case, you advised the Interim Second Sight Report was disclosable.
Harry Bowyer: Yes.
Ms Price: Can you help with why there was a different approach in this case to the pre-Horizon Online case and whether there was any particular principle that was being applied at the time?
Harry Bowyer: I can’t help as to my thought processes at the time; it’s 10 years ago.
Ms Price: Was there a common position among those at Cartwright King, initially you and Simon Clarke, reviewing cases on whether the Second Sight Report and the Helen Rose Report should be disclosed in Horizon Legacy cases?
Harry Bowyer: I don’t think there was a position. We were disclosing it in some Legacy cases.
Ms Price: Do you think there should have been a principled approach to that?
Harry Bowyer: Well, looking back, I think we should have had a common view. You have to remember that the review process was looked at twice by Brian Altman and found to be robust, both in his interim review and his other review, and he looked at some 31 of these advices. So, at the time, we thought we were doing it right. I can see that an awful lot of these documents, with what happened subsequently – because at this particular time, this was after the Second Sight review came in and said that the system was robust – sorry, that they’d found no evidence of systemic failure in it.
It was only when the civil case came up in 2019, when Mr Justice Fraser found considerably more than we were aware of at the time, that the – that the totality of what Horizon was doing was actually made available to us.
So, at this particular time, you know, we thought that what we were doing was right and we were confirmed in that because our advices were being reviewed.
Ms Price: Thank you. That document can come down now. Thinking about another pre-Horizon Online case, we looked at some correspondence yesterday about the draft Gareth Jenkins statement and, particularly, the amendment that you made deleting the case-specific references that were in that statement, which included his involvement in the Seema Misra case; do you remember that?
Harry Bowyer: I remember that, yes.
Ms Price: It was your view at the time that Mr Jenkins’ evidence could not be relied upon once the Interim Second Sight Report came out and following that.
Harry Bowyer: Yes.
Ms Price: Did you give any consideration to whether Seema Misra should be told, in clear terms, that the expert witness in her trial was, in your view, discredited?
Harry Bowyer: Well, I didn’t review Seema Misra’s case but I think my view would have been it should have been disclosed.
Ms Price: When you were reviewing the cases that you were, did you notice any patterns of subpostmasters raising unexplained losses and challenges to Horizon?
Harry Bowyer: No. I think I said in my statement, one of the problems was that the allegations against subpostmasters were often very different. We had allegations of people taking money directly from the Post Office till and there was one case where they were allegedly, according to one of the other witnesses, paying their staff directly from subpostmasters’ till. Other cases we had people who pleaded guilty and admitted that they were paying off the retail side of their business from Post Office funds, in the hope that they would repay it.
We had other cases where people, actually, when people wanted to withdraw money, they were typing in their PIN numbers and it would fail, first of all, and then they would type it in again and get the funds, and the allegation was that the first one would be pocketed by the subpostmaster.
So we were dealing with a whole different type of offending and, so, yes, there were cases where people were alleged to be short on their funds but there were other types of offending as well, and so what we were looking at didn’t fit a single Horizon bug. Now, obviously, now we know that there are several types of Horizon bug but that simply wasn’t our state of knowledge at the time when we were reviewing it, and, you know, the Second Sight Report came in and said there was nothing systemic.
Ms Price: Is it right that you would occasionally attend the weekly hub meetings, later biweekly meetings, on behalf of Cartwright King?
Harry Bowyer: Very occasionally. I would do it when either Andrew Bolc or Martin Smith weren’t available.
Ms Price: Roughly, how many times did you attend; can you recall?
Harry Bowyer: I imagine you could count it on one hand.
Ms Price: Did you ever hear of any issues raised at those meetings that you thought required post-conviction disclosure or further disclosure review?
Harry Bowyer: I don’t think so, no.
Ms Price: Could we have on screen, please, paragraph 108 of Mr Bowyer’s statement, please, that’s page 31.
Apologies, have I given the wrong page reference there?
Sir Wyn Williams: Paragraph 108 is page 23.
Ms Price: Yes. Thank you, sir. My apologies, bear with me for just a moment. Page 31, paragraph 155, please. You say here:
“The reality is that there may be grounds to criticise the way that [Cartwright King] conducted the [Post Office Limited] prosecutions however they did fulfil their role as external lawyers in calling a halt to the prosecutions …”
(Pause for fire alarm test)
Ms Price: Just rereading that sentence and that first sentence:
“The reality is that there may be grounds to criticise the way that [Cartwright King] conducted the [Post Office Limited] prosecutions …”
Did you recognise, at the time the Cartwright King review was set up, that there may be grounds to criticise the way that Cartwright King conducted Post Office prosecutions?
Harry Bowyer: Yes, I think when I was reviewing cases and when I was actually speaking to the people more involved, it became apparent as to how it was being done and, yes, I had concerns.
Ms Price: At what point into the process did you have concerns?
Harry Bowyer: Really during the review, the sift process, when we were reviewing cases. You have to remember we were reviewing a lot of cases that weren’t Cartwright King but they went back quite a long time.
Ms Price: At the time, did you recognise the risks inherent in Cartwright King – and this phrase has been used a number of times – “marking its own homework”?
Harry Bowyer: Well, yes, because that was addressed at a very early point, especially we had a conference with Brian Altman in his chambers in September, I think, 2013, and that point was addressed there and then. But I think it was felt that (a) the Cartwright King barristers actually hadn’t prosecuted the cases themselves and (b) this was the fastest way of getting the job done.
Ms Price: That statement can come down now. Thank you. I’d like to ask you next, please, about what happened in relation to cases in Scotland and Northern Ireland, after the publication of the Second Sight Interim Report. Can you help with what was done by the Post Office or by Cartwright King, if anything, to inform the Crown Office and Procurator Fiscal Service in Scotland and the Public Prosecution Service in Northern Ireland that Second Sight had been instructed to conduct their review in 2012?
Harry Bowyer: I can’t, no.
Ms Price: There are documents that the Inquiry has to suggest that Martin Smith from Cartwright King was involved in discussions with the Crown Office and Procurator Fiscal Service and BTO Solicitors, to whom you referred yesterday, about the Interim Second Sight Report towards the end of July 2013.
Harry Bowyer: Yes.
Ms Price: There are also documents to suggest that Simon Clarke and Martin Smith attended meetings with BTO Solicitors and the Crown Office and Procurator Fiscal Service about Horizon in September 2013. Did you have any involvement in those discussions –
Harry Bowyer: No, I had no involvement in those discussions. They did certainly at least one trip, possibly more, to Scotland and BTO. I did speak to BTO on couple of things. I think there’s some email correspondence between me and one of their solicitors but I didn’t actually have any direct influence on the Scottish prosecutions.
Ms Price: Was there any consideration given to the impact of the Interim Second Sight Report on disclosure duties on prosecutors in Scotland and Northern Ireland by Cartwright King?
Harry Bowyer: I don’t know.
Ms Price: As part of the Cartwright King review, and that specific review and process, were Scottish and Northern Irish cases reviewed by Cartwright King?
Harry Bowyer: I don’t think we touched the Scottish and Northern Irish cases.
Ms Price: Were you aware of a similar review exercise taking place in Scotland or Northern Ireland?
Harry Bowyer: I wasn’t.
Ms Price: Does it follow from your answers that a can’t help with whether Cartwright King notified the Crown Office and Procurator Fiscal Service or the Public Prosecution Service in Northern Ireland of its review exercise?
Harry Bowyer: I don’t know.
Ms Price: In 2014, you appear to have been asked by Jarnail Singh to look at a Scottish case, the case of Elaine Doran. Could we have on screen please the email which refers to that, it is POL00333520. This is an email chain which you are not part of but we see your involvement in the case is referred to in this top email from Jarnail Singh, dated 8 October 2014. Before we look at that, just to put this in context, and look at some of the – one of the earlier emails, if we can look at page 2, please, about two-thirds of the way down the page, there is an email, dated 19 September 2014 from David Oliver to Chris Aujard, copied to Jarnail Singh, among others and it says this, “Subject: Doran case”:
“Chris
“I wanted to bring one non-scheme case to your attention and check you are content with the suggested approach. The case in question relates to Mrs Doran (deceased).
“The case was one of the original cases raised by MPs but did not apply for the scheme.
“It is an old case (2004) and relates to a (unsuccessful) prosecution brought by the police in Scotland.
“Mr Doran has written to Paula raising his case (and criticising Post Office’s handling of it) and his MP has with James Arbuthnot sought a meeting with Paula to discuss the case – which James is chasing a response on.
“The case has been looked into by the Crown Office in Scotland and Post Office has been in contact with them via BTO – Jarnail has previously dealt with this (last correspondence I have been able to find internally 14 April …).”
Then there is proposed next steps and we can see over the page:
“Jarnail to contact BTO for any further and more recent correspondence.
“Subject to that contact Crown Office to understand their views on the case and what has been provided to Mr Doran.
“I will draft a holding reply to go to James.”
So that sets out some of the background to the case. Does this help refresh your memory at all as to how cases in Scotland were being looked at or reviewed, the references in that email –
Harry Bowyer: No, I’m afraid it doesn’t. I had very little contact with Scotland.
Ms Price: Going, then, to page 1. Jarnail Singh’s email of 8 October 2014. He says:
“Belinda and Angela
“As you know counsel Harry Bowyer of [Cartwright King] reviewed the information which Scottish police were able to provide in this case. It would appear this was limited and most probably not all the information that was provided to the Procurator Fiscal.
“This was not a POL investigation. However if it is now to be investigated under BAU. It is my view and advice that any findings and further evidence discovered should be supplied to Harry Bowyer in order that he may review it. This would ensure POL has the protection of being able to say the findings have been independently considered by external senior barrister.”
Was this common, Jarnail Singh asking you to take a look at individual cases, after his –
Harry Bowyer: There would be occasions he’d ask me to look at cases. There would be occasions he would ask me for advice on little issues, yes.
Ms Price: This appears to be on a sort of ad hoc basis, rather than –
Harry Bowyer: Very much so.
Ms Price: – as part of the review process; is that right?
Harry Bowyer: Yes, I mean, we got contacted of their questions outside of the review question process.
Ms Price: Was it common for you to be asked to look at Scottish cases?
Harry Bowyer: Well, not terribly because, of course, Scottish law is different and I’m not qualified.
Ms Price: Did you feel able to advise on this Scottish case?
Harry Bowyer: I don’t recall this Scottish case but the email suggests that the information was limited.
Ms Price: Were you aware that Jarnail Singh saw the purpose of asking you to look at cases in this way as being that the Post Office would have the protection of being able to say it had been reviewed by an external senior barrister?
Harry Bowyer: I wasn’t aware but I would have been able to guess at it, yes.
Ms Price: That can come down now. Thank you.
At paragraph 106 of your statement you refer to Cartwright King’s involvement in drafting a new prosecution policy for the Post Office. Recognising that you say you had little to do with that side of things, what was your understanding of the policy in terms of its geographical remit, particularly thinking about Scotland and Northern Ireland?
Harry Bowyer: I would have assumed that Simon would have been drafting it for England and Wales.
Ms Price: Can you help at all with whether the procedure in Scotland and Northern Ireland was viewed in the context of possible reform of Post Office Limited’s prosecution policy? Was it considered at all?
Harry Bowyer: Well, I don’t think I had any role in that particular review process.
Ms Price: Could we have on screen, please, POL00333527. The top two emails here are from April 2015 and are between you and Laura Irvine who was a solicitor with BTO Solicitors in Scotland, the external firm who advised on Post Office cases. Just scrolling down a little, please, your email there, “Laura” at the top, “Harry Bowyer” at the bottom. It appears from this that you were looking after Martin Smith’s emails whilst he was on holiday and that’s why you were in email correspondence with her; is that right?
Harry Bowyer: That would be right, yes.
Ms Price: Starting with Ms Irvine’s email of 26 March 2015, please, at the bottom of the page, her email to Martin Smith, she discusses a Scottish case and appears to be trying to establish what the progress was on a Horizon expert report. Is this a reference to the attempts which were being made to find another expert at the time?
Harry Bowyer: Yes, I think so.
Ms Price: Then, at the penultimate paragraph of her email, she says:
“I have been provided with various pieces of information about the progress with the Horizon expert report (mostly by you) but the last I heard from John Scott was that there was a report from Deloittes that may negate the need for an expert report. However I got the impression from you yesterday that it didn’t tick all the boxes!”
It would appear from this that BTO Solicitors had not been provided with the 2014 Deloitte report, would you agree, on a reading of that?
Harry Bowyer: Well, it looks like it, yes.
Ms Price: Your reply is above and you say:
“Laura, Martin has me looking after [the] emails …
“The Deloitte report does not tick all the boxes and we would prefer to be given a clean bill by the experts here in the process of being instructed. They will be in no position to report in the timescale of this case.”
Two points arising from this, please. First, you don’t mention here your reaction of shock to the revelations in the Deloitte report about remote access, do you?
Harry Bowyer: No.
Ms Price: Can you help with whether the issue, that issue of remote access, was raised with BTO Solicitors following Cartwright King’s receipt of the Deloitte report?
Harry Bowyer: I don’t know because the main contact between BTO was Martin and, you can see from this email, I was only stepping in while he was on holiday.
Ms Price: Second, you appear to be suggesting that any expert report would be giving Horizon a clean bill of health. Was that your view at the time?
Harry Bowyer: Well, that’s what we thought was going to happen, yes.
Ms Price: Why were you so sure of that?
Harry Bowyer: Well, again, it was the Second Sight Report with no systemic problems and so, as far as their report was concerned, we thought we would get an expert report that would show that it was fundamentally sound and the evidence could be relied on. If the expert report had come back and said it couldn’t be relied on then that would have been the end of prosecuting.
Ms Price: That can come down now. Thank you.
In an email chain we looked at yesterday from August 2012, you referred to cases raising Horizon issues being likely to become more numerous as the “bandwagon picks up speed”. Why did you use that expression “bandwagon”?
Harry Bowyer: I think the Inquiry is attaching pejorative terms to it. There are popular themes in criminal law and popular defences that arise. There have been bandwagons that I’ve joined. When I’ve seen that a defence seems to be working, I will leap upon it. But no, as far as this was concerned, when Horizon became an object that looked as though it was being challenged, more and more people would actually take a look at it when they got a Post Office case in; it’s common sense. But I don’t see that the phrase “bandwagon” is in itself pejorative.
Ms Price: We needn’t go to the documents unless you wish to but “bandwagon” was an expression which was used by you in two advices relating to Post Office prosecutions –
Harry Bowyer: Yes.
Ms Price: – given after the publication of the Interim Second Sight Report. You referred yesterday to the Interim Second Sight Report being a “shock moment”?
Harry Bowyer: Yes.
Ms Price: Did it not therefore make you more wary about making the kind of assumptions which underpin the use of the language “Horizon bandwagon”?
Harry Bowyer: I don’t think so, no, because you can join a bandwagon that is perfectly proper. There are occasions when the reason people are all heading in the same direction is that they’ve got a valid cause. As I said, I don’t find the term “bandwagon” pejorative.
Ms Price: There is one further document from yesterday I’d like to go back to briefly, please, for a point of clarification. The reference is POL00293276. This is the 13 January 2020 letter about continuing the relationship between Cartwright King and Post Office Limited. Going to page 2, please, and what we looked at yesterday was that point 3, with reflections on past set-up and relationship but, just looking down a little to the proposal, here, the proposal being made in January 2020 was that Cartwright King would provide Post Office Limited with – there’s a number of things listed there – but at point (iv):
“The designated on-call lawyer shall be Simon Clarke, Martin Smith or Harry Bowyer, but most likely Simon Clarke.”
Can you help with why, after you left Cartwright King, some four years afterwards, you were being put forward as a potential on-call lawyer?
Harry Bowyer: I wasn’t sure as to what was going on here. What happened after we left was, effectively, we took the Post Office Department, myself, Martin and Simon, and so Andy Cash used to continue to call us up to see what was going on, and Post Office wanted this facility. By this stage, we weren’t terribly keen on doing it because, of course, we’d had the civil case and seen Mr Justice Fraser’s judgments in the two – in the two issues that he decided.
Ms Price: Did this proposal come to fruition?
Harry Bowyer: No.
Ms Price: That can come down now. Thank you. Just one final point from me. You’ve said in your statement at paragraph 65 that the Post Office was an enormous client, even for a firm the size of Cartwright King. As you sit here today, do you think that the importance of Post Office as a client to Cartwright King influenced, whether consciously or subconsciously, the way you approached your advice and your ability to advise impartially and independently?
Harry Bowyer: Yes, I think it must have. When we actually pulled the plug on the prosecutions after the Clarke Advice, it was worrying as to how our bosses at Cartwright King would take it and it was a big moment, telling Post Office that they could not rely on their expert and they should stop prosecuting.
Ms Price: Sir, those are all the questions I have. There are some questions from Core Participants. Those I know about are Mr Henry, Mr Moloney and Ms Oliver. There may be – and Mr Jacobs as well. I think that’s it. In terms of order, if we can start with Mr Henry, please, sir, then Mr Jacobs, then Mr Moloney and then Ms Oliver.
Sir Wyn Williams: Certainly.
Ms Price: Is that acceptable to you?
Sir Wyn Williams: Yes, of course.
Ms Price: Thank you, sir.
Questioned by Mr Henry
Mr Henry: Mr Bowyer, in a nutshell, you weren’t happy with Mr Jenkins’ independence so you decided to draft a generic pro-prosecution template for him?
Harry Bowyer: No, that’s not true.
Mr Henry: Well, you were trying, you said, to be fair to the defence and, just coming to an expression that you used yesterday, that this statement would give the defence a windmill to tilt at. Tilting at windmills, in contemporary parlance, Mr Bowyer is typically understood as attacking imaginary enemies or evils. Is that what you thought that the defence were doing, that Horizon was impregnable and that their complaints were imaginary.
Harry Bowyer: Well, at the time, we thought and our instructions were that Horizon was robust.
Mr Henry: So is the answer to my question yes?
Harry Bowyer: No, the answer to your question is, as far as the statement was concerned, it was meant to give something that the defence could (a) take a look at, the previous cases where the challenges were put in, so that they actually had somewhere to go, so that they didn’t have to start from scratch. Your question is unfair.
Mr Henry: No, it’s not unfair. It’s entirely fair because you used the expression “tilting at windmills” and I suggest that it reflects your overconfident – if I can put it neutrally – your overconfident approach to the issue –
Harry Bowyer: Well, we disagree.
Mr Henry: – that the defence were on some sort of quixotic, unrealistic and ineffectual exercise of challenging, how dare they, the Horizon system?
Harry Bowyer: Well, as I said, what I – the idea was to actually give them an opportunity to make something of it. At the time, we had nothing to suggest that the Horizon system had any faults to it. Now, I can understand where you’re coming from, because you’re looking at it from 2024.
Mr Henry: Don’t presume to understand anything from my point of view, Mr Bowyer. Let’s go on to a document, which is POL00096997 – no need to get it up, you’ll remember it; it was put to you yesterday – but you referred to defence enquiries as a fishing expedition. Did that reflect your view about defence requests for disclosure in relation to Horizon?
Harry Bowyer: Some of them, certainly.
Mr Henry: Your prediction, 2 October 2012:
“My view is that most challenges to the Horizon system should now vanish away before the trial.”
Were you taking, Mr Bowyer, effectively a blinkered approach?
Harry Bowyer: Well, I can see that that particular comment hasn’t aged well but, no, I don’t think so.
Mr Henry: Right. Can we turn, please, to POL00066807, please. This is your response to Mr Altman’s review. Could we go to page 3 of this document and let’s concentrate on (vii):
“Whilst this system is still in its infancy there are issues that should be dealt with as soon as possible.
“(a) An expert to replace Gareth Jenkins must be identified and instructed without delay. As almost all of our cases depend on the integrity of Horizon – even if only to the quantum of thefts – we need to have an expert to say that the system is sound and, whilst there are and have been glitches, the system and its product are sound.”
Does that not show that the intention was not for the expert to be objective but rather to reach the conclusion instructed by Cartwright King?
Harry Bowyer: Well, no, I don’t think so.
Mr Henry: “… we need to have an expert to say that the system is sound and, whilst there are and have been glitches, the system and its product are sound. Time of the essence as there are cases in the system that will be compromised without such evidence. This is old ground so I will not go over it again.”
This was essentially, was it not, the idea that the expert, inevitably, would say that the system was robust, a dangerous assumption on your part, Mr Bowyer?
Harry Bowyer: Well, if the expert said the system wasn’t robust, it would have created problems for us and we would have ceased to prosecute. But, at the time, our instructions were that it was robust and Second Sight had found nothing systemic.
Mr Henry: But they had found disturbing issues concerning two bugs and also other deficiencies in the way in which the postmasters’ complaints had been dealt with. Could we go to subparagraph (b):
“The product of the hub meetings should be collated and assessed. Much of it is raw rumour but it needs to be investigated so that we can dismiss it as that.”
Again, “raw rumour … investigated so that we can dismiss it”, does this not reveal institutional bias on your part, too close in alignment with your professional and lay client?
Harry Bowyer: Well, I don’t think it does, no.
Mr Henry: “Other material may well point to genuine flaws in either the Horizon system or the use of it by Post Office staff and needs to be addressed both to fix the flaws and be assessed as to its potential disclosability.”
How could flaws in the Horizon system, genuine flaws, be only regarded by you as potentially disclosable?
Harry Bowyer: Well, again, this particular paragraph shows that I’m looking at the disclosability.
Mr Henry: You said that you think it ought to have been slightly more emphatic or would that not have been unpalatable to the client: if there are genuine flaws, they must be disclosed?
Harry Bowyer: Yes, you would be right there.
Mr Henry: Right, so were you trying to sugar the pill?
Harry Bowyer: No. I’m afraid, if you point at clumsy English, it doesn’t mean that my intent was actually to make things palatable to the lay client.
Mr Henry: Ms Price has taken you today to a Scottish case where you were trusted by Jarnail Singh to review it. The case was called Doran. She faced embezzlement charges of over £7,000 and was acquitted, and she said all she’d done was to follow instructions on the screen, in other words she was not dishonest, she was only following the instructions that Horizon had given her. Do you remember the case now?
Harry Bowyer: I don’t remember it, no.
Mr Henry: Well, I don’t want to ambush you, but it seems you advised on non-disclosure?
Harry Bowyer: You may well be right, I’ll take it from you.
Mr Henry: Let me just ask you now to just – in the Mediation Scheme and disclosure issues, do you accept that quite a lot – and the document I’m going to take you to doesn’t actually refer to this – but a number of the issues in the Mediation Scheme, a substantial minority of these applications, contain complaints about the behaviour of Post Office Investigators?
Harry Bowyer: Yes.
Mr Henry: You were against the reports that those Investigators had compiled being disclosed, weren’t you?
Harry Bowyer: I was against some of the working documents being disclosed, yes.
Mr Henry: Right. Well, let’s go to POL00301427.
Sir Wyn Williams: While that’s being brought up, just so that I can clear my mind, the actual criminal Doran case was long before your involvement, as I understand it, and you became involved because of the potential review of that case in the Mediation Scheme; is that correct?
Harry Bowyer: I think so. It was a Scottish case. I’ve got no recollection of it.
Sir Wyn Williams: No, I appreciate that but, given that you your involvement was, I think, 2014 and the actual case was about 10 years before, it seems to be the only logical explanation.
Harry Bowyer: Well, I’m not sure whether it’s for the Mediation Scheme or whether for some sort of Scottish review, I don’t know what it’s –
Sir Wyn Williams: I see. All right, so it’s either the mediation or some review occurring in Scotland.
Harry Bowyer: Yes.
Sir Wyn Williams: All right. Fine.
Mr Henry: Thank you, sir. While that’s being brought up on the screen – POL00301427 – the fact that somebody was being tried on Horizon data, the case was brought on Horizon data, the charge was dishonesty and they had been acquitted, did that not strike you as disclosable in other cases?
Harry Bowyer: I don’t think I considered it. I don’t know.
Mr Henry: Right. So can we go to your email in this email chain, please, and we start off with the “I agree with Harry’s advice”. Can we scroll down, please. Can we scroll further down, please, and then we have that. Yes, (ii), please. This is your advice:
“The views of the prosecuting lawyers, at an early stage of the proceedings, on the strengths/weaknesses of our case being exposed to the defendants and their defence teams.”
These were your concerns and that was the concern that I’ve just read out:
“This could create problems should we recommence prosecutions. In extreme instances we could become witnesses in our own cases (an obvious example is the case of Choudry (Waseem Abbass) in which neither the Post Office Investigators nor the POL systems cover themselves in glory – I am sure that our mutual client, POL, does not want a document in the public domain that provides a route map to how to attack us where we are most sensitive).”
Mr Bowyer, isn’t that precisely the purpose of disclosure under the CPIA, that the material might be capable of undermining the prosecution case or assisting the defence?
Harry Bowyer: Absolutely.
Mr Henry: Right. So why did you say, “I’m sure that our mutual client does not want a document in the public domain that provides a route map to how to attack us where we are most sensitive”?
Harry Bowyer: Because, as far as that’s concerned, it should be considered in the context of each case.
Mr Henry: Can I just ask you to consider this, the Horizon bandwagon, and you say that that wasn’t pejorative, and so be it, but those two advices that Ms Price referred you to were dated 2 September 2013 and 5 September 2013, here we are involved in the Mediation Scheme. Do these views not reveal a somewhat jaundiced approach, which might have affected the way in which you were performing the sift?
Harry Bowyer: I don’t think so, no.
Mr Henry: Well, my conclusion is two matters. The first is – and you’ve been – they’re both concerning clients represented by Messrs Hodge Jones & Allen, who instruct me. One is Mrs Kathleen Crane. You reviewed her case in November 2013 and you stated:
“In my opinion, we need take no further action upon this file.”
So, therefore, the safety of her conviction was not reviewed as a result of that advice and she was only cleared in the Court of Appeal in January this year, having suffered years of anxiety, having, of course, lost her occupation and having to go into a caring profession where she was having to disclose her conviction, of course, to the Disclosure and Barring Service with every employment application.
Have you read the judgment in her case?
Harry Bowyer: I’m not sure that I have.
Mr Henry: The Court of Appeal stated at paragraph 22 that they were satisfied that the Post Office was correct in conceding the matter, and they continued to state:
“This is indeed a Horizon case in which the reliability of Horizon data was essential to the prosecution and there was no independent evidence of the alleged or any actual loss.”
Then they continue:
“The applicant in interview explained why she had acted as she did and asked for the reliability of Horizon to be investigated.”
“She and her husband paid the full sum said to be missing. She was nonetheless prosecuted, no relevant investigation was carried out and no disclosure was made about the known concerns about Horizon.”
Mr Bowyer, how on earth did document to the conclusion that no disclosure was merited in her case?
Harry Bowyer: I’m afraid, I don’t know.
Mr Henry: Mrs Misra’s case, which you were aware of but of course was dealt with, I think, by your colleague Simon Clarke?
Harry Bowyer: It was, yeah.
Mr Henry: She needed to be told in the clearest terms, you would agree, that the expert witness in her trial was discredited. You would agree with that?
Harry Bowyer: I would agree with that.
Mr Henry: Yet that didn’t happen and she wasn’t even given what I suggest would have been the inadequate disclosure of merely the Second Sight Report or the Helen Rose Report. Now, I realise it wasn’t your case, Mr Bowyer, but you were part of the team and –
Sir Wyn Williams: Mr Henry, I think he has said it should have been disclosed. That’s good enough for me.
Mr Henry: Thank you, sir. Those are my questions.
Sir Wyn Williams: Thank you.
I think we have Mr Jacobs next, is it?
Mr Jacobs: Thank you, sir, yes.
Questioned by Mr Jacobs
Mr Jacobs: Mr Bowyer, I want to ask you some questions about the Mediation Scheme and you’ve set out, in your witness statement at paragraphs 109 through to 140 your involvement in the Cartwright King reviews –
Harry Bowyer: Yes.
Mr Jacobs: – of the mediation responses. Perhaps we don’t need to go to this but one of your responses in the case of Walters, who was one of our clients, at paragraph 117 of your statement, the response is:
“Dangers to Post Office Limited. This case did not result in a prosecution or a conviction. It is unlikely to affect any criminal cases conducted by POL, past, present or future, unless some concession is made about the integrity of Horizon, which from the robust POL response seems unlikely.”
Do you accept that it was Cartwright King’s position to ensure that nothing came out of the mediations that could result in damage to Post Office’s position that the Horizon system was a robust system or could lead subpostmasters to have any evidence upon which they could cast doubt on the integrity of the Horizon system?
Harry Bowyer: Well, as far as we were concerned, obviously you’ve seen from the papers that my position is that we didn’t want criminal defendants in there.
Mr Jacobs: Yes.
Harry Bowyer: But, yes, I mean, as far as we didn’t want unwarranted concessions to be made, that the Horizon system may have been – may have not been robust because that was not what the evidence actually said at the time. I concede totally from our point of view, looking at it from 2024, that has not aged well.
Mr Jacobs: Well, exactly. In July 2012, you wrote to your advice in the case of Wylie –
Harry Bowyer: Yes.
Mr Jacobs: – where, effectively, you said that Post Office was in a firefighting situation –
Harry Bowyer: Yes.
Mr Jacobs: – Fujitsu should consider themselves also to be in that position –
Harry Bowyer: Yes.
Mr Jacobs: – and that, to summarise, there would be severe recriminations for the business if Second Sight uncovered any systemic problems; is that right?
Harry Bowyer: Yes.
Mr Jacobs: So what you were saying is: don’t do anything that could result in a concession being made that Horizon is not robust?
Harry Bowyer: I can see how you’re formulating the question but the intent was I didn’t want any unwarranted concessions made that the system wasn’t robust.
Mr Jacobs: What’s an unwarranted concession?
Harry Bowyer: A concession merely to make the mediation go more smoothly.
Mr Jacobs: Are you aware – and I’ll give an example of a case of one of our clients, Mr Peter Holloway. He attended a mediation in November 2015, presented his case to the Post Office representatives with a mediator present. He says the mediator told him there was a good chance that the Post Office would agree to settle his case and that there might be a reasonably significant sum. The Post Office representatives thought about it, the mediator returned to Mr Holloway at 3.00 in the afternoon and said, “I don’t know what to say, they are refusing to even make you an offer”. The mediator told Mr Holloway that the Post Office representatives had told him they had been sent to the mediation with instructions not to settle at all.
Were you aware that Post Office representatives were attending mediations with instructions to maintain in the mediation that Horizon was robust and that there should be no settlement or, if any settlement was made, it was simply to be a token?
Harry Bowyer: I wasn’t aware, no.
Mr Jacobs: Were you aware that anybody in Cartwright King advised that what you had advised in relation to the Wylie case should feed through into the conduct of the mediations?
Harry Bowyer: Again, my main role was to advise on various documents that were going forward to the mediation. How the mediations were carried out, we had no role in.
Mr Jacobs: You understand, of course, that the function of mediation is that there should be some concession on –
Harry Bowyer: I do. I totally understand that and, to an extent, that’s part of the danger.
Mr Jacobs: Can I then move on to another topic. I want to ask you about Brian Altman KC and his terms of reference and we will need to put a document on the screen for that. It’s POL00021981. I’ll just wait for it to come up. So here we have Mr Altman’s observations on his terms of reference for making a presentation in relation to the Post Office Board. Can we scroll down, please, and can we scroll down to (b) so scroll down further. Right:
“I understand that I am to meet and report to the Board.”
Then, if we to move scroll down further, so point 2:
“On the [efficacy] of past prosecutions including the preparation and conduct of past prosecutions …”
Then, if we move down to footnote 4 at the bottom of page 3, please, and if we could maybe highlight – ah, we’ve lost it. Footnote 4, bottom of page 3. Thank you. So Mr Altman says:
“It is for POL and those instructing me to determine whether or not it is only the efficacy (ie effectiveness) of past prosecutions etc that I am being asked to consider with the Board, or in fact the potential safety of past convictions following POL prosecutions (ie whether, in my judgment, the Court of Appeal is likely to ‘think that the conviction is unsafe’ …”
Now, this follows on quite shortly from Simon Clarke’s Advice where he said that Gareth Jenkins, the architect, or one of the architects, of the Horizon system, his evidence was tainted and unreliable. Did you think at this point that senior counsel ought to be advising on the safety of the convictions in light of the apocalyptic revelations concerning Mr Jenkins?
Harry Bowyer: Well, the – as far as the convictions were concerned, most of the convictions were guilty pleas and –
Mr Jacobs: Sorry, I didn’t hear you?
Harry Bowyer: Most were based on guilty pleas and most were – had admissions in interview to some sort of false accounting, or whatever, and the position at the time was, as I said, Second Sight came back and they said that there were no systemic faults in Horizon; they’d produced the two bugs that they’d produced. And so when we stopped the prosecutions, it wasn’t on the basis that Horizon was unsafe because we didn’t know that it was unsafe. We felt that nothing systemic had been found on it.
We stopped it because we felt that the witness, Gareth Jenkins, was unreliable and so the catastrophic findings later that Horizon had multiple bugs in it, only really came to light in 2019 in the civil case in front of Mr Justice Fraser. And, certainly, at this particular stage, as you know, a guilty plea is a very difficult thing to appeal in the Court of Appeal. This case, of course it happened, because these cases were – and I don’t dispute it at all – these cases were an affront to justice because people had false accounted because they were met with massive figures.
Mr Jacobs: What about, if it can be inferred, as surely it must be inferred from the Gareth Jenkins position, that there had been multiple failures of disclosure in numerous prosecutions over the years?
Harry Bowyer: Well, there had been failures of disclosure –
Sir Wyn Williams: I’m sorry to intervene but this started as a question about Mr Altman’s terms of reference. With respect, Mr Jacobs, I don’t think Mr Bowyer is the person to ask about that. Mr Altman was instructed, I believe, by Womble Bond Dickinson, or whoever, and very much having an input from senior Post Office lawyers. I don’t think Mr Bowyer was involved. If he was, I’ll apologise but I don’t think –
Mr Jacobs: I’ll move on to the next document, which is POL00021980. This in relation to the efficacy point and I just want your comment on this. I know that this isn’t an email that you saw at the time but this is Womble Bond Dickinson responding to Mr Altman’s footnote, and what is said here is:
“Please find attached two separate terms of reference for Brian Altman QC as amended in response to his observations document, which I also attach for ease of reference.
“Please note that POL needs to decide on the issue [which he is asked to] report to the Board on the efficacy or safety of past prosecutions – see footnote 4 on page 3 [that I’ve just gone to] of Brian’s observations.
“Simon’s and my view is that he shouldn’t report on the safety of past convictions for two reasons:
“this is likely to involve a more significant analysis of lots of cases, thereby delaying his report
“and potentially blurs the boundary between BA and CK’s respective roles.”
Now, you’ve said in your evidence that you thought that Bond Dickinson’s knowledge of the criminal law was somewhat sketchy; is that right?
Harry Bowyer: That was my opinion at the time.
Mr Jacobs: What do you have to say about the advice that Bond Dickinson were giving Post Office in relation to Brian Altman’s query about whether he should be advising on safety?
Harry Bowyer: Sorry, what was my opinion then on that?
Mr Jacobs: Yes.
Harry Bowyer: I wasn’t aware that he was being instructed at the time or they were considering him looking at the safety of the reviews. Our instructions in the sift review was not to look at the possible – look at the potential of appeals at the time; it was just as to whether the stuff would be disclosable or not.
Mr Jacobs: Do you think, following the Simon Clarke advice, that Post Office, in light of the potential for miscarriages of justice, ought to have sought advice on the safety of convictions as a matter of urgency?
Sir Wyn Williams: I’m sorry, I just don’t think this is appropriate for this witness. These questions can be asked of the people who instructed Mr Altman.
Mr Jacobs: Thank you, sir. I’ll move on.
I don’t have any further –
The Witness: I’m obliged, sir.
Questioned by Mr Moloney
Mr Moloney: Mr Bowyer, I’m going to ask you about Gillian Howard and she’s one of the 78 Core Participants I represent, all of whom were prosecuted and convicted and all of whom had their convictions quashed. I’m going to ask you about disclosure in her case and why you didn’t advise disclosure on review but I’ll take you to your advice in doing so, so that you can see why you didn’t disclose, which will hopefully help when you’re answering questions, okay.
Harry Bowyer: Yeah.
Mr Moloney: Now, she falls into the category of most cases that you’d just described to Mr Jacobs, that is to say a guilty plea and an admission to false accounting?
Harry Bowyer: Yes.
Mr Moloney: She was interviewed under caution on 8 June 2010, following an audit that revealed a shortfall of some just shy of £46,000. So that’s 8 June 2010 for the interview and then, by letter to Post Office on 7 April 2011 – and that date is important – Mrs Howard offered a guilty plea on a proposed agreed basis. Does this jog your memory?
Harry Bowyer: I remember the case. I discussed it at paragraph 75 –
Mr Moloney: Thank you, I’ll shortly take you to your advice but, just to finish the background details, as it were, to start with, she pleaded guilty on 26 April 2011, having indicated or offered the agreed basis of plea on 7 April 2011, and, on 26 May, she was sentenced to a six-month community sentence?
Harry Bowyer: Yes.
Mr Moloney: Just for completeness, at the Court of Appeal, Post Office accepted it was an unexplained shortfall case, evidence from Horizon was essential to Mrs Howard’s case, no ARQ data was obtained –
Harry Bowyer: No.
Mr Moloney: – at the time of the criminal proceedings, no evidence to corroborate the Horizon evidence, no investigation into the matters raised by Mrs Howard in interview and no examination of the numerous calls that she’d made to the helpline, in fact she’d made 22 calls to the helpline, saying that she was having real trouble balancing with Horizon, and none of the other staff at the branch was interviewed, and there was no proof of an actual loss; so a paradigm Horizon case in many respects?
Harry Bowyer: No, I accept that.
Mr Moloney: Indeed. So could I ask that we look at your advice now, which is POL00021207. I’m grateful. If we could go straight to the end, to paragraph 27, where you say, in conclusion, in relation to this case, Mr Bowyer:
“This is an extremely worrying case. It is only through good fortune, sensible prosecution counsel and a sympathetic judge that we are not going to have to disclose material which would cause [Post Office Limited] a great deal of embarrassment.”
Could we please go back up the page now, to look at the specific circumstances of this case and I think back to paragraph 15. Yes, above that, please. If you could go back to the previous page, I’m sorry. Just slightly further please, going up.
Paragraph 10, thank you. So paragraph 10 relates to how Mrs Howard, following the audit, said she’d like to arrange a PACE interview:
“She was told of her rights. She produced a typed statement and an article from The Grocer magazine relating to ‘glitches’ in the Horizon system.”
Her prepared statement and note also complained of lack of from Post Office and says that a series of errors were made, the inference being that she wasn’t properly trained.
But the contents of her interview are in the next paragraph. She’s interviewed on 8 June, read out a prepared statement, said she’d not taken any money. She used to help her husband with the cashing up. She’d experienced problems from 2008, after her husband was taken ill. She employed two staff. When her husband was ill she struggled to balance the accounts from the outset. She was never sure that she was completing the monthly balance correctly and simply put in the figures that Horizon displayed to balance. She was aware that the figures she was entering were inflated and that the losses were increasing and, to hide the mounting shortages she began to suppress business deposits from a local bus company.
Carrying on down, she felt that an employee might be responsible for the losses. I won’t name the employee, for obvious reasons.
Harry Bowyer: Of course.
Mr Moloney: She was concerned about her employee’s sons visiting the shops to borrow money and she had less than a week’s notice about the transfer to Horizon Online.
Finally, she was aware that what she was doing was dishonest and had not financially benefited from any of the missing money.
She expressed concerns about Horizon as the Court of Appeal noted.
If we could then go down to paragraph 13, which is just further down. You find other considerations.
“It became apparent …”
This is an email from Helen Dickinson, dated 10 February 2011, and that date is important because it’s some two months before she enters her plea in April 2011:
“… after Mr and Mrs Howard were suspended that those who ran New Mill Post Office continued to employ [the employee] and also took on one of her sons. The Post Office continued to suffer small unexplained losses including cash being taken from a charity box in the secure area. It transpired that [the employee] had a key to the secure area that the new management were unaware of and [the employee’s] son has admitted theft from the charity box.”
Essentially what happened to that information, that it was kept under review, it wasn’t disclosed and there’s a green Post-it note attached to an email of 5 April 2011 talking about scrapping the sensitive unused items.
If we could go down further to paragraph 18, please, the culmination of all of this is:
“At item 17 on the non-sensitive unused schedule, dated 4 April 2011, served on the defence by letter on 11 April 2011 …”
So that’s four days after the indication of the offer of an agreed basis of plea when, in fact, this information was available some two months before the agreed basis of please:
“… there is an entry that reads, ‘Email from Newrose Personnel regarding incident at New Mill.’.”
Now, that’s the email that refers to the thefts by the employee’s son but it’s really quite a cryptic reference, isn’t it –
Harry Bowyer: Yes.
Mr Moloney: – for anybody looking at an unused schedule in those circumstances?
So Mrs Howard had pleaded guilty but she said in interview that she always felt she wasn’t completing the monthly balance correctly, she’d inflate the figures to make them balance, she brought an extract from The Grocer, which made her wonder if she was wholly responsible for the shortfall problems, and money was going missing from the tills which could have been another employee or her giving credit, which should not have given, was, in fact, what she said.
We know that, in fact, that information about the employee’s son was available two months before the agreed basis of plea was offered and the schedule reference in April – just, in fact, after the agreed basis of plea was offered – was quite cryptic.
So, after that which Mrs Howard had said interview, should the material about the employee’s son not have been disclosed straightaway, as soon as it came to light, two months before any offer of plea?
Harry Bowyer: Yes, I think it should have.
Mr Moloney: The disclosure reasonably assisted Mrs Howard’s case in interview and supported her veracity?
Harry Bowyer: As I say in my statement, I think I got this particular advice badly wrong.
Mr Moloney: Thank you, Mr Bowyer. Indeed, you do say that in your statement, don’t you, at paragraph 75 –
Harry Bowyer: Yes.
Mr Moloney: – and I was going to go on to that. But, just before we get to that, she was entitled to know that information when she was considering her plea and when she was being advised by her lawyers as to her plea, wasn’t she?
Harry Bowyer: You’re absolutely right.
Mr Moloney: Yes, and it should have been disclosed on consideration of the appeal, as well, shouldn’t it –
Harry Bowyer: It should have been, yes.
Mr Moloney: – because it would have provided a basis for arguing that there was serious material non-disclosure?
Harry Bowyer: Well, over and above the Horizon system, yes.
Mr Moloney: Absolutely.
Harry Bowyer: Yes.
Mr Moloney: But you took the view that “It is my view that there could not possibly be an appeal against conviction based on the disclosure of the subsequent losses in the Post Office, bearing in mind the admissions in interview and the basis of plea”?
Harry Bowyer: Yes.
Mr Moloney: But that was for her to decide, rather than you, really, wasn’t it?
Harry Bowyer: As I said, I think I got this advice wrong.
Mr Moloney: Thank you, Mr Bowyer.
Also, can I just ask you about the information about continuing unexplained small losses.
Harry Bowyer: Yes.
Mr Moloney: Because they didn’t stop at what the employee’s son was doing, did they? They were unexplained small losses, which were not, as it were, only the theft by the employee’s son.
Harry Bowyer: I can’t recall the details of the case that far but I’m sure you’re right, if you say so.
Mr Moloney: Just if we can assume, for these purposes, that, in fact, they were unexplained small losses, then they also would have assisted her case in interview, wouldn’t they, as to –
Harry Bowyer: Again, I would have thought so.
Mr Moloney: Yes, and, really, that should have been disclosed, if they were unexplained small losses?
Harry Bowyer: Yes.
Mr Moloney: Indeed, the Second Sight Report might well have been disclosed in those circumstances, given that it had, as it were –
Harry Bowyer: Yes.
Mr Moloney: – highlighted the difficulties –
Harry Bowyer: As I’ve told you and as I’ve said in my statement, I didn’t get this one right.
Mr Moloney: Can I ask you this, and it’s important that I do ask you: was this material not disclosed because, in fact, yes, it really would cause Post Office a great deal of embarrassment at a time when Post Office was already suffering a great deal of embarrassment?
Harry Bowyer: I don’t think so, no.
Mr Moloney: When you say you don’t think so, was this – was it a fact – you know, either – I don’t know if a subconscious factor can –
Harry Bowyer: It may have been subconscious but I like to think I’m a straight edge as a prosecutor and, you know, as I said, what overbore my mind in this particular one is that she was sentenced on her own basis that there was – she wasn’t responsible for the loss and, so, therefore, she was sentenced on her pleas – her admissions in interview and her guilty pleas.
Mr Moloney: Yes, but this material as you rightly concede now, should have been disclosed at the time –
Harry Bowyer: I certainly concede, yes.
Mr Moloney: Finally, just to expand slightly on a point Ms Price asked at the end of her questions for you, you were asked about the importance of the Post Office account to Cartwright King.
Harry Bowyer: Yes.
Mr Moloney: Yes. You said yesterday that you were pleasantly surprised when Cartwright King management did not push back on your attempts to rectify the position following the revelations about Gareth Jenkins –
Harry Bowyer: Yes.
Mr Moloney: – because, you said, even for a firm of the size of Cartwright King, Post Office was an important account?
Harry Bowyer: It was an important account, yes.
Mr Moloney: One of the central aspects of that importance, would it have been the amount of income the amount generated for Cartwright King?
Harry Bowyer: It generated quite an income, yes.
Mr Moloney: That’s an important consideration in these circumstances?
Harry Bowyer: Oh, I would have thought so.
Mr Moloney: Thank you very much, Mr Bowyer.
Sir Wyn Williams: Mr Bowyer, can you remember whether, notwithstanding someone had pleaded guilty to false accounting, you nonetheless decided that the Second Sight Report should be disclosed?
Harry Bowyer: In this particular case, sir, I didn’t. Some cases –
Sir Wyn Williams: I appreciate that –
Harry Bowyer: Some cases –
Sir Wyn Williams: Go on, sorry.
Harry Bowyer: Some cases where they pleaded guilty – and one was always aware that, in these cases, there was a certain amount of coercion on a defendant when they entered their guilty pleas and so some of these cases, where they raised Horizon as an issue in their interviews, we did disclose to Second Sight and the Helen Rose Report. So it wasn’t – I think in some of my cases I was too quick to actually not disclose when there were guilty pleas and full admissions in interview.
But, you know, in the main, as I said, we thought we were doing right at the time and when our cases were reviewed, they were found to be sound.
Sir Wyn Williams: All right. Fine. Thank you.
Ms Oliver can you give me a prediction about how long you are likely to be, because I’m conscious that the transcriber has been going for about 1 hour and 20 minutes now.
Ms Oliver: Yes, sir, I think probably about five to ten minutes.
Sir Wyn Williams: Can I ask the transcriber if she would prefer five to ten-minute more and then a proper break, by which I mean at least 15 minutes, or whether she wants a 10 minute break now?
Ms Price: I understand the transcriber is content to carry on and then have that break.
Sir Wyn Williams: Thank you.
Well, you’re usually very accurate with your estimates, Ms Oliver, so I’m confident that you will be on this occasion.
Ms Oliver: Thank you sir, I’ll try and stick to it.
Questioned by Ms Oliver
Ms Oliver: Good morning, Mr Bowyer. I ask questions on behalf of Gareth Jenkins.
Harry Bowyer: Hello.
Ms Oliver: I want to ask you a little bit about the Simon Clarke advice in the aftermath. In that advice, as I’m sure you’re well aware, at paragraph 37, Mr Clarke advised that Mr Jenkins had not complied with his duties to the court, the prosecution or the defence but, at paragraph 38, he stated that the reasons as to why Mr Jenkins failed to comply with this duty are beyond the scope of this review. Do you remember that?
Harry Bowyer: I remember that, yes.
Ms Oliver: At paragraph 63 of your witness statement to this Inquiry – I don’t think we need to go to it – you indicate that that discovery and the implications of the Simon Clarke advice were plainly enormous, is your words?
Harry Bowyer: Yes.
Ms Oliver: Do you remember that?
Harry Bowyer: Yes, I remember that.
Ms Oliver: When you considered that the potential implications were so enormous, did you and your colleagues not consider it imperative to ascertain the circumstances in which Mr Jenkins had come to give evidence in the prosecutions in which he was involved?
Harry Bowyer: Well, as you know, I wasn’t taking the lead in this but, as far as the bugs were concerned, my understanding was that the bugs actually came either from Fujitsu or Mr Jenkins himself, and then they’re not mentioned in any of the previous reports.
Ms Oliver: Do I take it from that that that enquiry, as to the circumstances in which he came to give evidence, was not something that was undertaken by Cartwright King or at least not to your knowledge?
Harry Bowyer: Well, as I said, I wasn’t the lead on this, so not to my knowledge would be probably the best thing but there are witnesses to come who will be answer that for you.
Ms Oliver: I’m going to ask you a few questions as to what you did and if the answer is “No, I didn’t undertake that activity”, then please do just say.
Harry Bowyer: Yes, of course.
Ms Oliver: Did you ask to see any of the written instructions that POL or Cartwright King had given to Mr Jenkins?
Harry Bowyer: No, I didn’t.
Ms Oliver: Did you seek to understand what Rachael Panter, who you described yesterday as a “comparative baby”, we’ve heard described as a paralegal, was doing in her conduct of these prosecutions for Cartwright King?
Harry Bowyer: No, she was based in Leicester and I assumed she was under the supervision of Andrew Bolc, who was there.
Ms Oliver: Did you ask any questions of Mr Singh at Post Office as to whether Mr Jenkins had ever been instructed as to the expert duties of disclosure?
Harry Bowyer: I’m not sure. I think. I was aware that he was in Misra around about this time.
Ms Oliver: Did you speak to him about his dealings with Mr Jenkins?
Harry Bowyer: No, I didn’t.
Ms Oliver: Just on the topic of Mr Singh, did he ever reveal to you any of the Horizon issues that he had been told about by Mr Jenkins in the course of the Seema Misra prosecution?
Harry Bowyer: No.
Ms Oliver: Did he ever mention, for example, that he had been told there was a locking issue in Horizon –
Harry Bowyer: No.
Ms Oliver: – which caused transactions to be lost –
Harry Bowyer: No.
Ms Oliver: That there were some 200,000 system faults –
Harry Bowyer: No.
Ms Oliver: – recorded in the Horizon system? That Fujitsu maintained a Known Error Log?
Harry Bowyer: No.
Ms Oliver: A similar question, did you ever ask the question of any of the Cartwright King lawyers who dealt with Mr Jenkins whether he had been instructed in respect of his expert duties of disclosure?
Harry Bowyer: No.
Ms Oliver: Thank you.
Did you ever become aware that, in many of the cases that were prosecuted by Cartwright King, for example the case of Grant Allen, Mr Jenkins had not been provided with the audit data in order to examine what might have happened at the relevant branch.
Harry Bowyer: No, I wasn’t aware.
Ms Oliver: Were you ever aware of indications that Mr Jenkins gave to Cartwright King that the analysis of that audit data would have allowed him to ascertain what the issue might have been in a given case?
Harry Bowyer: No, I wasn’t involved in the prosecution of any substantial case. I tended to come in when people asked me for a bit of advice generically.
Ms Oliver: No subsequent investigation revealed those matters to you?
Harry Bowyer: No, I wasn’t made aware by subsequent investigations.
Ms Oliver: Thank you. Finally, did you ever speak to Mr Jenkins about the state of his knowledge and understanding of his role?
Harry Bowyer: I never spoke to Mr Jenkins at all.
Ms Oliver: All right, thank you. Can we look at one document, please, it’s POL00155555. Have you seen this document before?
Harry Bowyer: I don’t know.
Ms Oliver: All right. It’s dated 2 September 2013. We’ve heard evidence that it was authored by a lawyer at Post Office called Rodric Williams –
Harry Bowyer: Yes.
Ms Oliver: – but it appears to record conversations with your colleague Martin Smith of Cartwright King.
Harry Bowyer: Yes.
Ms Oliver: If we can scroll down to the bottom, please. On the right-hand side in the box the handwritten box, we see the second point down, the question “What were we doing to instruct GJ”, which we take to be a reference to Gareth Jenkins. In the left-hand corner, we see “M Smith” and then a series of arrows, and the first one is “Don’t think he’s ever been advised of his duties”. Do you see that?
Harry Bowyer: Yes.
Ms Oliver: Were those matters that Martin Smith ever discussed with you?
Harry Bowyer: I don’t think so, no.
Ms Oliver: Was there any recognition, to your knowledge, within Cartwright King, at the time of September 2013 when this note was authored, that there had been a failure to instruct Mr Jenkins as an expert witness or, at the very least, that there was a serious question as to whether he had been instructed as to his expert duties?
Harry Bowyer: Again, I – not to my knowledge.
Ms Oliver: Thank you. It may follow that you were not party to any discussions of those issues within POL either?
Harry Bowyer: I don’t think so, no.
Ms Oliver: All right.
Thank you, Mr Bowyer.
Harry Bowyer: Obliged.
Ms Price: Sir, I think those are all the Core Participants questions and now would be the time for the morning break, sir.
Sir Wyn Williams: Thank you. Well, thank you, Mr Bowyer, for your witness statement, for coming on two consecutive days to the Inquiry, and I’m grateful for your participation.
The Witness: I’m obliged.
Sir Wyn Williams: So we’ll now break off until 11.30, is that –
Ms Price: Yes, sir.
Sir Wyn Williams: – a generous 15 minutes, yes.
Ms Price: Thank you.
Sir Wyn Williams: Fine.
(11.12 am)
(A short break)
(11.30 am)
Mr Blake: Sir, can you see and hear me?
Sir Wyn Williams: Yes, I can, thank you.
Mr Blake: We’re now going to see and hear Mr Smith.
Sir Wyn Williams: Can I suggest, Mr Blake, in terms of breaks, that we don’t try and fit in a short break between now and 1.00 but rather we finish for lunch a little bit earlier and time the day thereafter, so to speak?
Mr Blake: Absolutely, in fact we’ve been speaking to the stenographer and she has confirmed that she’ll make a signal if we are going on for too long but, otherwise, we propose to carry on until lunchtime.
Sir Wyn Williams: Yes. Okay.
Martin Smith
MARTIN JOHN SMITH (sworn).
Questioned by Mr Blake
Mr Blake: Thank you can you give your full name, please?
Martin Smith: Yes, I’m Martin John Smith.
Mr Blake: Mr Smith, you should have in a bundle in front of you two witness statements?
Martin Smith: Yes.
Mr Blake: The first witness statement was taken in advance of Phase 4 of this Inquiry, it should be dated 21 November 2023; is that correct?
Martin Smith: Yes.
Mr Blake: If I could ask you to turn to page 34, the final substantive page –
Martin Smith: Yes.
Mr Blake: – can you confirm that that is your signature?
Martin Smith: I can.
Mr Blake: Thank you very much. In respect of this witness statement, can you confirm that it is true to the best to your knowledge and belief?
Martin Smith: It is true to the best of my knowledge and belief but there is a slight amendment I do need to make to this witness statement.
Mr Blake: Can you assist us with what that is, please?
Martin Smith: In paragraph 104, on page 27, I refer to an email which I have sent to Steve Bradshaw and Mark Ford.
The second sentence in that paragraph, could we change “Mr Ford had confirmed” to “Counsel had confirmed”. It was Mr Ford I was writing to, and I think it was a different counsel who had been in court, not Mr Ford.
Mr Blake: Thank you very much. That witness statement has the URN WITN09680100.
The second witness statement is dated 19 March this year; do you have that in front of you?
Martin Smith: Yes, I do.
Mr Blake: Can I ask you to turn to the final substantive page, that’s page 47?
Martin Smith: Yes.
Mr Blake: Can you confirm that is your signature?
Martin Smith: It is, yes.
Mr Blake: Can you confirm that that statement is true to the best of your knowledge and belief?
Martin Smith: It is, yes.
Mr Blake: Thank you very much, Mr Smith. Both of those witness statements will be published on the Inquiry’s website shortly. Thank you.
You are a solicitor and have been since 1996; is that correct?
Martin Smith: That’s correct, yes.
Mr Blake: You acted, initially, as a criminal defence solicitor?
Martin Smith: Yes.
Mr Blake: I think you were a duty solicitor, is that correct –
Martin Smith: That’s right, yes.
Mr Blake: – before joining Cartwright King in 2006?
Martin Smith: Yes.
Mr Blake: You were at Cartwright King until 2016?
Martin Smith: Yes.
Mr Blake: I think we’ve already heard that you then subsequently founded a firm with Mr Clarke and Mr Bowyer?
Martin Smith: That’s correct, yes.
Mr Blake: Then you joined a new firm in 2020; is that correct?
Martin Smith: Yes.
Mr Blake: Whilst you were at Cartwright King, you were promoted to the role of senior associate; is that right?
Martin Smith: That’s correct.
Mr Blake: Did you start as a junior associate or an associate or something else?
Martin Smith: I think I was just a solicitor. I don’t think there was a label attached.
Mr Blake: Cartwright King acted in cases relating to the Post Office prior to its separation from the Royal Mail in April 2012. Do you recall how much earlier? We’ve seen, for example, documents from January 2012. Was it around then or before then?
Martin Smith: I’m afraid I really can’t recall. I think the partner in charge of the Derby office would attend court generally on an agency basis for the Royal Mail Group/Post Office Limited. Much of the work was carried out, I believe, along those lines, just attending court to present cases but there came a point when case files started to be sent in to Cartwright King for advice, and I really cannot recall, I’m afraid, how much earlier than April 2012 that happened.
Mr Blake: Does that go for your own involvement as well, that you can’t be sure how much earlier than April you were personally involved?
Martin Smith: I would certainly have appeared on occasions in court on an agency basis to present a case but I don’t recall when I first started preparing advices and doing something more than appearing on an agent. I know the two case studies that I was involved in, the advices were prepared prior to the split.
Mr Blake: So you separate acting as an agent and having full conduct of a case?
Martin Smith: Yes, there’s a difference between the two, in my view, yes.
Mr Blake: What is the difference between the two?
Martin Smith: Well, acting as an agent, you attend court, you present the case in accordance with your instructions and you report back. Once we were asked to advise on cases, that is an entirely different situation. That is requiring a lot more knowledge in terms of the role of a prosecutor than just simply attending court to present a case at a hearing.
Mr Blake: To what extent do you consider that you had authority to make decisions in a case, once you had taken on that new role?
Martin Smith: I think the situation was very nebulous, to start with. In that, certainly, the two advices that I’ve seen recently, I wasn’t clear who was ultimately making decisions, and I assumed that it would be going back to the head of the Legal Department to make decisions. We didn’t, for example, know what Post Office prosecution policy was at that point. There were things that we didn’t know, what yardsticks we were to apply in making the decisions? Yes, we could advise in the general but, ultimately, those decisions needed to be made by someone within the organisation.
Mr Blake: When you first took over, I think you’ve said in your statement that the old Royal Mail cases were just provided to you without any handover or explanation?
Martin Smith: I don’t recall any handovers. I think they just arrived. Mr Cash, who was the partner in charge of the Derby office, would simply allocate them accordingly, distribute them to whoever he wanted to deal with the case.
Mr Blake: You’ve said you didn’t see the various policies in place. Did that position change over time?
Martin Smith: Ultimately, Cartwright King was asked to advise with regard to amendments to a draft prosecution policy. So yes, we ultimately did see a policy and I think Simon Clarke, one of my colleagues, made suggestions with regards to the proposed amendment of that policy and I think that was at the request of Susan Crichton, who was the then General Counsel.
Mr Blake: Is that later in, say, 2013 onwards or would that have been in 2012?
Martin Smith: I believe that would have been after the publication of the Interim Second Sight Report, so in 2013, I believe.
Mr Blake: Up until that point, you were working without any policies?
Martin Smith: Yes. I think there came a point when Mr Singh decided how he would like the advices set out and we followed the instructions that he provided, in relation to that.
Mr Blake: We’ve seen your name in quite a lot of the documents and the same names crop up again and again. Were you one of the main solicitors in the firm dealing with Post Office cases?
Martin Smith: There were very few solicitors in the firm dealing with Post Office cases, there was myself, based in Derby; Andrew Bolc, a solicitor based in Leicester; there may have been others from time to time involved; and, in terms of counsel, there was Simon Clarke, Harry Bowyer. There may have been couple of others from time to time.
Mr Blake: If we take the 2012/2013 period together, is it likely that you were the solicitor who had the greatest conduct of individual cases?
Martin Smith: I don’t know, I’m afraid. I think the cases were generally apportioned between myself and Andrew Bolc in Leicester.
Mr Blake: Thank you. We’re going to come and see issues relating to decisions to prosecute, basis of pleas, et cetera, were you able to make those decisions autonomously without reverting to the Post Office?
Martin Smith: In terms of decisions to charge, the advice would be given to Post Office and Post Office would make the decision. In terms of basis of plea, I believe that it would have been the common practice to revert to the Investigating Officer to run it past the Investigating Officer if possible.
Mr Blake: Who do you understand, from the Post Office, to have been providing instructions in the cases that you were acting in?
Martin Smith: Prior to the separation, it would have been the Post Office Legal Department and I suppose, post-separation, it would have been the Post Office Legal Department but the case file may possibly have come from an Investigating Officer directly or it may have been that information was provided by an Investigating Officer.
Mr Blake: If you needed to consider whether to, for example, accept a plea or to make a charging decision, who did you consider would have been the relevant person to approach in that respect?
Martin Smith: Well, a charging decision would have been put in writing and the file would have been returned back to Post Office in accordance with the instructions at the time. I can’t remember the precise mechanism for the return of the file. I don’t know who it went to, I’m afraid.
Mr Blake: When you say the charging decision would have been made, though, who would it have been made by?
Martin Smith: Within the Post Office? I’m not sure. I can’t remember.
Mr Blake: Is it that you can’t remember or you weren’t certain at the time?
Martin Smith: I’m afraid I just – there could have been changes during this period of time because we’ve gone from having the Post Office as part of the Royal Mail Group, and, I believe, files coming from Mr Wilson, to the Post Office splitting off from the Royal Mail Group and files being returned. They would have had formal advices on them and I cannot recall the changes to the processes and the personnel in terms of who would have been looking at those documents.
Mr Blake: We’re going to today look at 2012/2013 period, who would you have considered responsible for making the ultimate decision as to whether to charge somebody?
Martin Smith: Well, prior to the split, Mr Wilson at the Royal Mail Group and, post-the split, Jarnail Singh at the Post Office.
Mr Blake: Thank you. I want to look at decisions relating to the public interest. Can we first, please, look at POL00141478, please. This is an email of 10 December 2012 and it’s from Jarnail Singh to you and he says as follows:
“Martin
“John Scott’s the decision maker [I think it is meant to read ‘concurs’] with Counsel Will Martin’s advice that it is not in the business or public interest to proceed with the prosecution of Mr Nemesh Patel.
“Martin could you write to the defence and court of the business decision and have the case listed for a short hearing where prosecution counsel should be instructed and that this agreed action must say to the defence and court is not connected with the Horizon system integrity and rather simply reflect the defendants health and associated issues.”
Now, I think you’ve said in your witness statement that you don’t recall this particular case; is that right?
Martin Smith: I don’t recall this one, no.
Mr Blake: But we see there reference from Mr Singh to the “business or public interest to proceed”. What did you understand by “the business interest”?
Martin Smith: Well, this was a private prosecution and so a business conducting a private prosecution is always going to have an interest in whether or not the case should proceed and, certainly, there’s also a public interest argument in terms of whether or not the case should proceed.
Mr Blake: Did you consider those to be separate interests or one and the same?
Martin Smith: They can be entirely separate interests.
Mr Blake: Can we please look at POL00411347. This is a much later case, the case of Zen Elvins, and this a charging advice that is written by you. If we could scroll down, please, we can see at paragraph 6, over the page, a summary of what Mr Elvins said about his case in interview. It said:
“Mr Elvins made a full and frank admission, explaining that he had discovered that it was possible to sell a postal order, reverse the transaction and cash the postal order before the cut-off point every day at around 7.00 pm.”
So it seems as though this is not a Horizon case.
Martin Smith: Mm.
Mr Blake: This is a case of someone finding a way to manipulate the Horizon system?
Martin Smith: Yes.
Mr Blake: If we can scroll down, please, there is then a section entitled “Discussion”. I’m going to read to you paragraphs 8 and 9, it says as follows:
“Whilst this case does not appear to contain a ‘Horizon issue’, I am concerned about the possible effect of commencing proceedings against Mr Elvins thereby putting a case into the public domain in which a suspect said ‘… to be honest there’s so many little loopholes in the system that you kind of just find them …’”
Sorry, if we could scroll up slightly. Thank you.
Paragraph 9 says as follows, it says:
“My understanding is that Mr Elvins was able to exploit a known weakness in the Horizon system. Whilst this is not an ‘Horizon issue’ to the extent that the system permitted the sequences of transactions in accordance with its programming, it does not of course make the decision any less embarrassing for Post Office Limited. There is in my opinion a substantial risk that any reports generated by a prosecution in this case may be utilised by those who seek to argue that Horizon is defective or otherwise inadequate. There is, of course, also the risk that the dissemination of information concerning this particular flaw may also encourage others minded to commit acts of dishonesty against Post Office …”
Can we please scroll down to paragraph 11. You say at the end there, in respect of the charging decision:
“Whilst the public interest test in this case is clearly met, for the reasons set out above I do not regard a prosecution as being in the public interest.”
Now, looking at that advice and the charging decision that’s made there, do you think that, throughout your time acting for the Post Office, you confused what was in the Post Office’s private interests with the public interest more broadly?
Martin Smith: I think there were times when it was apparent that those interests would be aligned but there were also times when they were clearly different and, in this case, it would be embarrassing for the Post Office to have to make public the fact that there were not Horizon issues, if you like, but failures within the system to prevent issues such as this, and it was also a weakness which could be exploited, and so it would not be in the public interest for issues which could be exploited to be widely disseminated.
Mr Blake: So let’s leave that second consideration aside but you’ve very clearly said, in paragraph 9, that a consideration is essentially preventing publicity of flaws in the Horizon system because that could be embarrassing to the business.
Martin Smith: Yes.
Mr Blake: Do you think that is properly a public interest?
Martin Smith: No, I think that’s a business interest.
Mr Blake: Therefore, we can see here that you have said the public interest test is met but you don’t regard a prosecution as being in the public interest. Might it be there that you have, in fact, confused both the public interest with the business interest?
Martin Smith: Looking at this now and the way that paragraph 11 is phrased, I do wonder whether I should have said “whilst the evidential test is met”.
Mr Blake: How about the second part, “I don’t regard” –
Martin Smith: “For the reasons set out above I do not regard a prosecution as being either in the public interest or in the interests of the business”, yes.
Mr Blake: So that was a separate consideration that was wrapped up as the public interest in this advice?
Martin Smith: I believe I have just wrapped that up very briefly there, perhaps without going into too much detail.
Mr Blake: Do you think that this is an isolated advice or do you think, actually, looking back, that was something that was often confused in Post Office prosecutions?
Martin Smith: I’m afraid I can’t remember all the advices, I’m afraid.
Mr Blake: I’m not asking about the specific written document but, looking back at your career in prosecuting Post Office cases, do you think that the public interest and the private interests of the business were often confused?
Martin Smith: It’s possible that they could have been.
Mr Blake: You were involved in them, so do you think they were or they weren’t?
Martin Smith: I can’t recall.
Mr Blake: Is it something that you need to recall, a specific instance, or can you just reflect on your career and say whether or not it’s likely that you confused the public interest with the private interest of the company?
Martin Smith: I think it’s certainly possible that the two could have been confused because, at times, they would have been aligned and so there was the potential for confusion.
Mr Blake: I want to move on to knowledge of bugs, errors and defects during the 2012 period, and the first document I’m going to look at is POL00057362. This is an advice that you wrote in January 2012 so this is where I dated the involvement from at least January 2012 in advising on specific cases for the Post Office. This is the case of Hutchings. If we look at the final page, we can see your name, 4 January. It’s page 3, sorry. Thank you very much.
If we could go back to page 1, please, I’m just going to read a few passages from that advice. So the “Prosecution Case”:
“On 30 March 2011 an audit was carried out at the Rowlands Castle sub post office branch which revealed a deficit in the accounts of £9,743.76. The audit had been arranged after the branch failed to return £30,000 as requested …”
The next paragraph says:
“There is very strong evidence to support the allegation that Mrs Hutchings had inflated the amount of cash held within the branch, usually by inflating the figure for cash held in £50 notes, on the days on which branch trading period statements were completed.”
So there’s an inflation of the amount on the day that the accounts were due to be balanced.
Martin Smith: Yes.
Mr Blake: If we scroll down, thank you very much, the bottom paragraph there, it says:
“In her prepared statement she admitted to altering the cash declarations and suggested that she had done so only since the migration to Horizon Online, which she thought was around the months of May or June 2010 (the migration date was in fact 5 July 2010). Furthermore she stated that at the time of the migration, all accounts balanced which was clearly untrue. She also gave examples of problems which she alleged she had experienced with the Horizon system, which do not appear to be of any relevance. Whilst Mrs Hutchings has denied stealing any money, she has not put forwards any explanation as to how the deficit has arisen.”
If we scroll down to the bottom of that page, in terms of charging, it says:
“Mrs Hutchings should be charged with a single offence of fraud …”
This was in January 2012, very much a case alleging problems with the Horizon system?
Martin Smith: It was, yes.
Mr Blake: I’m going to move to the summer of 2012 now, can we look at POL00141408.
It is a case of Jamie Dixon and it’s an email from you to Jarnail Singh. It reads as follows:
“Please find attached a copy of the Defence Case Statement in the case of Jamie Dixon. As you will see he has said that, ‘he does not have confidence in the Horizon accounting system, or that transactions were accurately recorded. He puts the prosecution to prove that the money is missing’.”
You then continue as follows, you say:
“This is therefore another case in which there will be a challenge to Horizon. I propose to talk to the barrister whom we have instructed and explain that a robust stance should be taken at the [Plea and Case Management Hearing] on 3 August 2012 ie the Horizon system works perfectly and that if the Defence wish to challenge the integrity of it, their specific allegations should be particularised so that those particular issues may be further considered.”
We can actually look at the Defence Statement in that case, that’s at FUJ00153918. This is the Defence Statement. If we turn over the page, please, to page 2., it says as follows, it says:
“The defendant was disorganised but not dishonest. Although he thought he knew how to operate the computer accounting system he now realises he did not understand it fully and puts this down to a lack of training and lack of experience in serving customers.”
Paragraph 4 says:
“The defendant understand that in addition cash in excess of £5,000 is also said to be missing. He does not have confidence in the Horizon accounting system, or that transactions were accurately recorded. He puts the prosecution to prove that the money is missing. The defendant denies that he has taken [the] money.”
I’m going to move on. I’m going to show you a few documents before I’m asking you about the position in 2012. Can we please look at POL00046242, this is an email in the case of Ishaq, which we’re going to look at in a bit more depth. You’re sending Sarah Porter there – is Sarah Porter counsel in the case?
Martin Smith: She was in-house counsel in Cartwright King, I think based at the Nottingham office.
Mr Blake: Thank you. You’re sending her the defence statement and it says:
“Good morning Sarah,
“Please find attached copies of a letter from the [defendant’s] solicitors and the Defence Case Statement. The defence are clearly aware of the current Horizon issues and are on a fishing expedition. This in my view this a red herring. The stamp sales which had been reversed thereby increasing the stock and lowering the amount of money needed to achieve a balance were clearly not there at the time of the audit.”
One final document that I will take you to, it’s FUJ00226331. So we’re now in October 2012. If we scroll down to the bottom email, please. We have there an email from Jarnail Singh to Gareth Jenkins, copying you in. It’s in relation to a case but I’ll read you the second paragraph. That says:
“On [advice], Post Office Limited have appointed one of their Investigators, Helen Rose as Disclosure Officer dealing with Horizon challenges. She has prepared a document/spreadsheet detailing all such cases, past and present, approximately 20 in total, although none thus far successfully argued in court. Post Office Limited have been advised to obtain, an expert’s report from Fujitsu UK, the Horizon system developers, confirming the system is robust. Post Office Limited maintain the system is robust, but in light of adverse publicity, from legal viewpoint is that [the] defence should be given an opportunity to test the system, should they wish to do so, on consideration of our report.”
So taking all of those emails together, am I right to say that, in the beginning of 2012 and throughout that 2012 period, there was a growing picture of challenges relating to Horizon integrity?
Martin Smith: That’s correct.
Mr Blake: Yes. You had conduct of ongoing cases that raised issues of Horizon integrity whilst that picture was building up?
Martin Smith: Yes.
Mr Blake: We’ve seen in those emails references to a “robust stance” and to a “fishing expedition”. Is it fair to say that, irrespective of how you feel now, the picture we see is one of pushing back against disclosure requests relating to the integrity of the Horizon system?
Martin Smith: The picture at the time was that Post Office was saying that the system was robust. They were clear that the system was robust and, in those circumstances, we took the view, or certainly I took the view, that only such information as met the tests for disclosure should be disclosed to a defendant.
Mr Blake: Who in the Post Office was assuring you that it was robust?
Martin Smith: Jarnail Singh, Head of Criminal Law, was telling us the system was robust. Stephen Bradshaw, an Investigator, was saying that the system was robust. The message that Cartwright King were receiving was that the system was robust. And, certainly, in a number of cases that I dealt with, the requests for disclosure were either not relevant in some circumstances, or too wide, or for information which, generally, you would not consider would be likely to meet the tests for disclosure.
Mr Blake: I’d like to test that and we’ll look at the case of Ishaq and we’ll look at developments over the period of your involvement in that case and we’ll look at it broadly chronologically.
We’re going to start on 29 August 2012. Can we begin with POL00046244, please. We see there a letter from Mr Ishaq’s solicitors, Musa Patels Solicitors. We see there under your ref, “MS2”, and then it has a number. Is that your personal reference, MS2?
Martin Smith: MS2 was my fee earner reference and the 26476 would be the Cartwright King file number.
Mr Blake: Thank you. So you were the solicitor with conduct of this case?
Martin Smith: I don’t know if I had conduct of it throughout. There was a – I think it – this case was one which was transferred to Nottingham, with a view to in-house counsel preparing it with Rachael Panter but, of course, Musa Patels would not necessarily have known of any change of personnel.
Mr Blake: So as at 29 August 2012, when the Defence Statement was received, were you the solicitor with conduct of the case?
Martin Smith: I don’t know if anyone else had been given conduct of it.
Mr Blake: Would it be surprising that your initials are at the top with the reference?
Martin Smith: No, because that would probably have been lifted from earlier communications. I think there was a suggestion within Cartwright King that, once the case had gone to the Crown Court, the file would be transferred to the Nottingham office. It would be then allocated to Rachael Panter and in-house counsel and they would work on it together. And I think this was one of those such cases that was being transferred to the Nottingham office and was actually transferred to the Nottingham office.
Mr Blake: We know that Rachael Panter was a paralegal and has been described as particularly junior?
Martin Smith: I believe she was a junior paralegal but her role was to work on cases under the guidance of in-house counsel, to liaise with external counsel and liaise with Mr Jenkins. I believe that this was one of the cases that she was intending to work on with in-house counsel and I think, ultimately, on reflection, this case became a bit of a mess because I don’t think much happened for a while and then it was worked on by her in Nottingham and myself in Derby.
Mr Blake: We’re going to see quite a lot of emails throughout 2012 and into 2013 with your name, you’re sending them?
Martin Smith: Yes.
Mr Blake: If not on paper the solicitor with conduct of the case, did you consider, at least, that you were significantly involved in that case –
Martin Smith: Yes.
Mr Blake: – and had a degree of responsibility in that case?
Martin Smith: Yes.
Mr Blake: This covering letter says:
“We enclose herewith Defence Statement prepared for our above named client.”
We will have a look at that defence statement. It can be found at POL00058244. The Defence Statement is dated 29 August 2012. I’m just going to read a few passages from it. If we could scroll down, please, over to the next page. The defendant sets out the General nature of the defence. Are you able to assist us with whose handwriting this is?
Martin Smith: I don’t, I’m afraid. I don’t recognise that.
Mr Blake: It’s not yours?
Martin Smith: It’s not my handwriting, no.
Mr Blake: It says as follows, in 7(i):
“There was no appropriation of monies. The Post Office ‘Horizon’ software/hardware system had in the past on numerous occasions malfunctioned causing difficulties in reconciling sales, receipt and stock figures. The defendant had reported the same to the Post Office helpline seeking assistance but little or no successful assistance was afforded to him despite the said requests.”
Point (ii):
“The defendant had of necessity to make certain adjustments by way of reversals on the Horizon system so as to ensure the sales, receipt and stock figures reconciled. This was done on the basis of clear malfunctioning of the system (and in accordance with the limited training given to the defendant by the Post Office in the past with very limited support thereafter) and not in order to appropriate any sums of money.”
So he’s putting the reliability of the Horizon system front and Cash Centres of his defence?
Martin Smith: Yes.
Mr Blake: Yes? If we scroll over the page, please, paragraph 11, there is a request for various disclosure. By way of example we have 11(iii), a request for:
“The outcome of all enquiries in relation to other Post Office staff and/or contractors who have been the subject of investigation by the Post Office or any other investigative body in relation to allegations of dishonesty related to the use of Post Office Horizon hardware/software.”
Number (iv) they are requesting:
“The full results (whether provisional or final) of all internal and/or external investigations and/or enquiries and/or reviews (whether instigated by the Post Office or any other body) into the correct functioning of the Post Office Horizon hardware/software system …”
Number (v) says that they are requesting:
“Any internal memoranda and/or guidance notes and/or other material dealing with the correct or incorrect functioning of the Post Office Horizon hardware/software system …”
I’m going to take you back to an email we looked at very early on in your evidence, it’s POL00046242, and that’s your email to Sarah Porter of 3 September, where you say:
“The defence are clearly aware of the current Horizon issues and are on a fishing expedition.”
Can we now, please, turn to POL00046243. Do you recall sending that email about the fishing expedition?
Martin Smith: I don’t recall sending it.
Mr Blake: You don’t recall sending it?
Martin Smith: No. I do accept that I sent it but I don’t recall it.
Mr Blake: Thank you very much. We’re now turning to an email, if we could look at the bottom of the page. On 4 September 2012, there is a plea and case management hearing and we have here an attendance note of Sarah Porter. Can we scroll down the page, please. She notes there that Mr Ishaq has ended a not guilty plea. If we scroll down, please, the defence are instructing a forensic accountant the, trial has been fixed and she says as follows:
“I have made it clear that our stance is that Horizon works and is irrelevant in this case because he now accepts making the reversals and we say in doing this he was acting dishonestly to cover his tracks. Any particular problems with the system must be fully particularised before any further disclosure made. Judge has indicated the ball is in the defendant’s court.”
Now, where she says, “I’ve made it clear that our stance is that Horizon works”, who would have been providing that instruction?
Martin Smith: That would undoubtedly have been following a conversation with myself.
Mr Blake: She then details, she says:
“Re: specific requests
“(i) only such material as undermines are case or assists the defendant in light of the [Defence Statement] should be served.”
Then she refers to (ii), (iii), (iv) and (v), are these paragraphs referring back to paragraph 11 in the Defence Statement that we just saw? You’ll recall I took you to some of those paragraphs.
Martin Smith: Yes.
Mr Blake: She says:
“… I understand that the Post Office are compiling some sort of database in relation to this, can the progress of this be checked – but until [Defence Statement] further particularised does not require disclosure.”
It says see:
“HB’s [is that Harry Bowyer’s] advice in the Wylie [case].”
Martin Smith: It would be, yes.
Mr Blake: What did you understand by the database that was being compiled?
Martin Smith: I’m sorry, I missed that question.
Mr Blake: The reference there to a database, is that a reference to Mr Bowyer’s advice to keep a central list?
Martin Smith: Yes, I think Mr Bowyer had advised that a database be set up of the unsuccessful challenges to the Horizon system. I think that was following a consultation which he’d had with Jarnail Singh.
Mr Blake: So Mr Bowyer’s advice was 11 July 2012. By the stage of this hearing, had you read that advice?
Martin Smith: I have read it but I don’t know when I read it.
Mr Blake: If we scroll up, please – her reference to a database, for example, would that have taken you by surprise or was that something that you would –
Martin Smith: No, I knew a database was being compiled because the instructions which Cartwright King had received was that the system was robust and Mr Bowyer, I understood, had advised that a database should be put together of the challenges, and I know at some point I was copied into an email that Jarnail Singh sent to Gareth Jenkins. I can’t just remember the chronology of it, whether that’s before or after this.
Mr Blake: I’ll take you to that document. But, first, can we please look at the top email, page 1 of this. You are emailing Steve Bradshaw, the Investigator, copied in to Jarnail Singh, and you inform them of the results of the Plea and Case Management Hearing, and you say as follows:
“Sarah took a robust stance in relation to Horizon. It will remain to be seen whether allegations of malfunction are particularised. However she has asked that progress be checked in relation to the compilation of the database.”
So am I right to understand that the response to Mr Ishaq’s request was to try to get him to further particularise his complaint?
Martin Smith: I thought that was sensible because, if someone could give an example of the sort of issues that they’d encountered, that would enable an expert to look into that.
Mr Blake: Was it sensible or was it a tactic?
Martin Smith: No, I thought it was sensible. Just in the same way that if you were staying in a hotel and you think you’d left your car keys somewhere in the hotel, the hotel might say, “Well, which room were you staying in, where were you?” I thought it would be quite useful to have that information so that we could properly investigate, so we could look into particular allegations that were being made.
Mr Blake: Did the defence statement not make those allegations? We looked at some paragraphs in the defence statement where he says:
“… in the past on numerous occasions had caused malfunctions causing difficulties in recording sales, receipt and stock figures.”
He also referred to having reported the same to the Post Office. Do you not think that the Post Office was quite well placed to make those kinds of enquiries?
Martin Smith: Well, certainly Mr Bradshaw was able to make enquiries internally within the Post Office but, certainly, I was of the view that, if you could ask someone “What are you saying has happened specifically?”, that would assist.
Mr Blake: Is it your evidence that that was not a specific tactic that was adopted in this litigation?
Martin Smith: It wasn’t a specific tactic, no.
Mr Blake: At no point throughout the Ishaq case was that a tactic?
Martin Smith: No, I don’t believe so, no. I think I wrote at a much later stage, I believe, to Mr Ishaq’s solicitors asking them whether they were going to particularise or asking them for particulars because I didn’t want to get almost to the point of trial and then find that we had, then, particulars which it would then be difficult to investigate at the 11th hour.
Mr Blake: Well, we will get to that shortly. Let’s just have a quick look at Mr Bowyer’s advice. That’s at POL00026567. Thank you very much.
If we could scroll down, please, I’ve said that this 11 July. At paragraph 2 he refers there to the instruction by the Post Office of independent forensic accountants Second Sight Limited, to conduct an independent expert of ten cases based on the Horizon system. Are we to understand that you were aware in July 2012 that Second Sight were carrying out an independent review?
Martin Smith: Yes, we’d been informed that the Post Office were instructing Second Sight to carry out a review.
Mr Blake: If we scroll down, please, over the page to –
Martin Smith: Sorry, may I just add to that. I’m not sure whether at that stage we necessarily appreciated that it was Post Office that had instructed Second Sight. I think there was a suggestion at some point that it might have been a – some sort of Parliamentary function that had instructed Second Sight but, in any event, we knew that Second Sight had been instructed.
Mr Blake: And that presumably the Post Office would have to liaise with Second Sight –
Martin Smith: Yes.
Mr Blake: – to assist them in their investigation?
Martin Smith: Yes.
Mr Blake: The bottom of page 2, is where we see the advice from Mr Bowyer:
“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”, et cetera.
So this is database that is referred to?
Martin Smith: Yes. Yes, it will be.
Mr Blake: Thank you. Moving to September 2012, could we please look at POL00060738. This is page 3. This is a document we’re going to come to a few times. It seems to be minuting of work that is being done. Is this a document you recognise?
Martin Smith: It is. I believe it’s what we call within Cartwright King as a billing guide. It would generally list the chargeable work and some of the narrative attached to a time entry but not all of the narrative attached to a time entry.
Mr Blake: If we look at page 3, you’re returning to 4 September, which was the date of the Plea and Case Management Hearing in Mr Ishaq’s case. Can you see there, about halfway down, just over halfway down this page, it says:
“Discussing with SP by phone and stance to be taken re Horizon etc.”
It has your name there.
Martin Smith: Yes.
Mr Blake: Are we to understand that you spoke to counsel on the day of the Plea and Case Management Hearing regarding the stance to be taken in relation to Horizon?
Martin Smith: Yes.
Mr Blake: Do you recall if that was while she was at court, whether it was before, whether you were providing specific instructions?
Martin Smith: I’m afraid I can’t recall that. I can see that I was engaged on that call for 12 minutes because of the “0.2” that’s in the right-hand column, 0.2 of an hour. I don’t know whether she telephoned me from court with a view to clarifying her instructions or whether I spoke to her by calling her. I don’t recall. But she would, no doubt, have been given the brief by the Nottingham team because it was going to be dealt with in-house by the Nottingham team and she may very well have phoned me to discuss it.
Mr Blake: I think you’ve already said that, looking at the attendance note and the information, the position that she took in relation to Horizon followed a conversation with yourself?
Martin Smith: Yes.
Mr Blake: The email that I think you were talking about that attached various things is at FUJ00226331, and it’s the bottom email there. I think that’s an email that I took you to earlier from Mr Singh, referring to Helen Rose acting as a Disclosure Officer and preparing a document, and she attached there the spreadsheet of 20 cases. Is that the email that you were referring to?
Martin Smith: Yes, and I didn’t, at that time, look at the spreadsheet and I don’t even think I realised there was two documents attached.
Mr Blake: Let’s look at the two documents that were attached. The first one is FUJ00156648. This is a note prepared by Helen Rose. It’s not what we know as the Helen Rose Report, it’s a note entitled “Horizon Integrity – summary report”; do you recall receiving this document?
Martin Smith: I didn’t see that at the time. It may very well be that I received it because it would have been attached to an email but I rather took the view at the time that the spreadsheet – well, I was under the impression that the spreadsheet had been considered by a number of my colleagues, Harry Bowyer, Andy Cash and Andrew Bolc, and I didn’t look at the enclosures because I simply looked at the email which said that Post Office’s stance is that the system is robust.
Mr Blake: Let’s look at this report. I’ll read to you a few passages. “Overview” says:
“Over the years some post offices under investigation for losses have claimed that the Horizon system was at fault. As the Post Office is dependent on the reliability of our system to be able to prosecute offenders; we have been able to defend our system in the courts.”
Then it goes on to summarise various challenges. For example, in relation to the Yetminster branch, it says:
“During the interview, Ms Merritt produced a large document regarding an ongoing enquiry by Shoosmiths solicitors in respect of the Justice for Postmasters Alliance, stating that she believed that the Post Office Horizon equipment was the actual cause of this loss.
“At the start of interview, Ms Merritt blamed the Horizon system and stated she had problems with transferring cash”, et cetera.
If we scroll down, there’s another branch, Barkham. It’s over the page. “Summary”:
“Mike Wilcox stated: Along with Graham Brander I met Mrs Stubbs on 17 January and she was convinced that Horizon was at fault. She has retained daily transaction logs for December to January in which time she lost £9,000 and is not prepared to release until she can compare it to Fujitsu data.”
If we scroll down, we go on to the Rinkfield branch. Under the “Summary” there, it says as follows, it says:
“During the interview, Mrs McQue stated that she did not feel 100% comfortable with the Horizon system, but did not appear to directly blame the system for the losses.”
If we scroll down, under “Outcome”, it says:
“An indication that a plea to Count 2 fraud might be acceptable so long as the defendant stipulated in her Basis of Plea that there was nothing wrong with Horizon and that she was responsible for loss and recognised the confiscation would be sought should the loss not be repaid.
So a number of different cases where Horizon has been raised, not even at trial, but also even at interview?
Martin Smith: Yes.
Mr Blake: If we scroll down, please, there’s reference to the Newsome branch. If we can go over the page:
“The defence challenged the integrity of the Horizon system and employed a forensic accountant.”
We then get on to West Byfleet. If we scroll down the end of that summary, it says:
“An expert witness was put forward by the defence to challenge the integrity of the Horizon system.”
This is the Seema Misra case. We can see, over the page, please, this is a reference to an email that we’ve seen a lot of in this Inquiry. It’s the bullet point there it says:
“It is to be hoped that the case will set a marker to dissuade other defendants from jumping on the Horizon bashing bandwagon.”
It’s the “Conclusion” that I’d like to look at. It says:
“Although there have been attempts to discredit the Horizon system via the courts, to date the Post Office have been able to defend the integrity of the Horizon system at all levels.
“When questioning the integrity of the Horizon system the defence solicitors are making similar disclosure requests, indicating that disclosure requests in future challenges will be similar to those made in past Horizon integrity challenges.
“Depending on where the loss was identified this can sway the disclosure requests slightly into requiring further details and operating procedures around specific transactions including background processes, ie the processing of cheques once they have left the office and electronic funds transfer records.”
Just pausing there on that paragraph there, is there forming an attempt to try to put pressure on defendants to give greater specificity as to the allegations that they’re making about the Horizon system?
Martin Smith: Not that I was aware of. Like I’ve said, I didn’t read this document at the time. I don’t even think that I realised there was more than a spreadsheet attached to Helen Rose’s email. I saw this document for the first time when it was disclosed to me in these proceedings.
Mr Blake: Let’s look at the second attachment, then. That’s FUJ00153807 and this is the list itself, the database. We see there a number of cases that we’re well familiar with: the Hamilton case, if we look in H; if we scroll down, Seema Misra; if we keep on scrolling down towards the bottom, if we go to the very bottom, we see there Sefton and Nield, for example. That was a case that is described there as “ongoing”.
Were you aware that there were not only this list of historic cases but also, at that stage, ongoing cases that related to the Horizon system?
Martin Smith: Well, I knew that this spreadsheet was designed to be a work in progress. So, looking back in time, but also then being kept up to date from that point in time. But I didn’t open it at the time because I didn’t see the need to. I knew that it had been sent to a number of colleagues who had seen it. No issues had been raised internally about it and Mr Singh’s covering email to Gareth Jenkins was to the effect that it was Post Office’s case that the system was robust.
I was copied in to that and did not think it necessary to go through all of that information. Given that it had emanated from Mr Singh, Head of Criminal Law at Post Office.
Mr Blake: Just to recap as to where we are, within a month of the Plea and Case Management Hearing in Ishaq’s case, you’d been told, we see there, in Mr Bowyer’s advice, about the Second Sight investigation –
Martin Smith: Yes.
Mr Blake: – that was taking place; you had received, although, you say, not opened, the database; you had also received that Helen Rose note about various cases. Weren’t those precisely the kinds of things that Mr Ishaq’s team were after?
Martin Smith: Well, I was – the short answer is yes. When I opened the spreadsheet, when I was preparing for this public Inquiry, I was actually quite horrified with what I read on it because, whereas I had understood that it was a list of unsuccessful challenges, I think the title, actually, would have been more appropriate to be list of unsuccessful challenges in cases which the Post Office dare not prosecute. I was quite horrified to see, for example, on – and it’s not on the screen in front of me now but on the spreadsheet – there is a case where a subpostmaster or mistress was able to demonstrate losses and, therefore, no further action was taken.
So it wasn’t exactly as I had understood it to be, literally a list of unsuccessful challenges. That is what I understood was being prepared but it actually went on to contain more than that. I didn’t appreciate there was a separate document by Helen Rose, because when the Helen Rose Report – which we use that phrase in a different way, which was ultimately the subject of disclosure, I certainly wasn’t sat there with Brian Altman, QC at the time, KC now, I certainly wasn’t sat there with Brian Altman thinking, “Oh yes, well, there’s another document by Helen Rose”. I simply did not realise that that existed.
Mr Blake: If we look back at the defence statement in Mr Ishaq’s case can we look at POL00058244. It’s page 3. It’s that list and it refers there at 11(iii):
“The outcome of all enquiries in relation to other Post Office staff and/or contractors.”
I mean, that’s precisely that list, isn’t it?
Martin Smith: Well –
Mr Blake: It’s perhaps broader than that list but –
Martin Smith: I think it’s broader than that list.
Mr Blake: But it would include that list –
Martin Smith: Um –
Mr Blake: – or the equivalent information?
Martin Smith: Well, it would – the request is broader than that list, but also I took the view at the time that unfounded allegations and unsubstantiated allegations were not disclosable and I understood that list to be unsuccessful challenges on unsubstantiated allegations.
Mr Blake: But the request there is in relation to those who have been subject to investigation by the Post Office or any other investigative body in relation to allegations of dishonesty related to the use of Post Office Horizon hardware/software. So it wasn’t simply asking for that very specific matter that you’re identifying; it was a request for broader information, wasn’t it?
Martin Smith: Yes, it was – I took the view that it was a very wide request and, indeed, I took the view that it was perhaps too wide in its approach.
Mr Blake: But having received that list of cases from Helen Rose that had been produced by somebody who was called the Disclosure Officer, did you not think to yourself, “Ooh, maybe I should open this attachment because it contains a list and that’s the kind of thing that Mr Ishaq has been after”?
Martin Smith: No, I didn’t because I thought it – they were unfounded allegations.
Mr Blake: So you didn’t look at them because you thought they were unfounded?
Martin Smith: Well, I was under the impression that these were unsubstantiated challenges and I did not regard unsubstantiated challenges, unsuccessful challenges as being disclosable, a bit like – I mean – I think my thought process was this: if you were to ask the Crown Prosecution Service for information about the disciplinary record of a police officer, you don’t, in my experience, get to know of all and every single allegation made against that police officer. You’d only get to know of any findings that – of misconduct.
Mr Blake: You would, however, expect the solicitor with conduct of the case to actually look at the underlying material to determine for themselves whether they met that test, wouldn’t you?
Martin Smith: Well, I’m afraid I didn’t open those documents.
Mr Blake: Yes, and is that a failing on your part?
Martin Smith: Well, with hindsight, I wished I had.
Mr Blake: Do you think that it would have been reasonable at the time, having received a list, irrespective of how detailed the list is, irrespective of whether they were successful or unsuccessful, to at least have opened them to see whether they fit within 11(iii)?
Martin Smith: Well, I didn’t think to do that at the time because, as I have already said, a number of my colleagues had already seen those documents, to my knowledge, nothing had been flagged up, and we were awaiting an expert report and so I did not think it necessary to actually look at those documents.
Mr Blake: So your colleagues from other cases, who weren’t charged with Mr Ishaq’s case, hadn’t flagged something that might relate to Mr Ishaq’s case?
Martin Smith: Well, no one had said, “Oh, my goodness, look at this spreadsheet, look at what it contains”.
Mr Blake: Is “Oh, my goodness”, the test for disclosure?
Martin Smith: No, it’s not. But it would be the – it was the view I took when I opened them when I was preparing for this.
Mr Blake: Number (iv):
“The full results (whether provisional or final) of all internal and/or external investigations and/or enquiries and/or reviews …”
We’ve seen in Mr Bowyer’s advice, reference to the Second Sight investigation. Do you think that that might have fallen within 11(iv)?
Martin Smith: Well, there were not – I don’t believe there were full results at that point.
Mr Blake: Whether provisional or final?
Martin Smith: Yeah, I don’t know if there were provisional or final – well –
Mr Blake: Did you makes enquiries about that?
Martin Smith: Well, there weren’t because Second Sight didn’t report until, I believe, July 2013, and this was way before then. So I think it says, “See Insight 2” in someone’s handwriting on that, I think that’s probably a reference to Second Sight, I don’t know. But certainly Second Sight had been instructed at that point but I don’t believe there were any results from that, and I did go through this list with Steve Bradshaw.
Mr Blake: If we scroll down, please:
“Any internal memoranda and/or guidance notes and/or other material dealing with the correct or incorrect functioning of the Post Office Horizon hardware/software system …”
I mean, might, in respect of these requests, confirmation that there was this independent firm looking into Horizon have been something that was worth disclosing?
Martin Smith: I believe that was disclosed in a witness statement by Stephen Bradshaw.
Mr Blake: At what point was that?
Martin Smith: That was, I believe, the following year in 2013.
Mr Blake: Yes. We’re here in 2012 dealing with disclosure requests. Can we please look at POL00058377., 8 October 2012. It’s a chaser from Musa Patels Solicitors. It’s addressed to you. Do you think that might be an indication that you were solicitor with conduct of that case?
Martin Smith: Well, they would believe that I was still dealing with it, whether it was in Derby or whether the file at that point had been transferred to Nottingham.
Mr Blake: If we scroll down, please, it says:
“… I was expecting the information requested at paragraph 11(vi) of our defence statement …”
I think that’s the Horizon data.
“… to have been served by 5 October as per the judge’s order at the [Plea and Case Management Hearing].”
It then says:
“I would be was obliged if you could revert back to us to advise not only on the progress of the aforementioned matter but also all other matters referred to at paragraph 11(i) to (viii) of our defence case statement and, of course, all relevant material under paragraph 10.”
So there is a chaser there in relation to those paragraphs that we have just been looking at, and we are in October 2012.
I’m going to take you back to your billing notes, and that’s POL00060738, please. Thank you very much. It’s page 4 now. We’re in October, we’re going to look at between 9 and 11 October. We may need your assistance in deciphering whose name comes alongside what and it may be difficult to tell because of the way this has been presented but let’s try. If we look at the entry that says 9 October 2012:
“Email for case 24676. Review of file, upon receipt of Musa Patels letter. We still await the Horizon data disk from Steve Bradshaw.”
Then it says:
“Although SP that taken a robust view of the [Defence Case Statement], disclosure is an ongoing process and the development in the Patel case may well have a bearing on d …”
That might be “may well have a bearing on the defendant”? Do you remember the Patel case? That may well be a case called Nemesh Patel, that was occurring at the time?
Martin Smith: Can I, first of all, say that I believe the way that billing works here is that it will take part of the attendance note but not the entirety of the attendance note, so it gives a flavour of the narrative in that second column. But then it will then pick up the same for Rachael Panter, for example, below. So “bearing on d”, I would then regard the “discussing progress of case with MJS”, as the start of Rachael Panter’s attendance and I’m afraid it’s just how it would space it out in different columns.
Mr Blake: Absolutely. So we see the first entry is your entry –
Martin Smith: Yeah.
Mr Blake: – which –
Martin Smith: And I think –
Mr Blake: – refers to a case of Patel?
Martin Smith: Yes, and I think that it will have simply just cut off for the number of available characters when it says “case may have a bearing on d”. The rest of the attendance note will not have – if there was any – would not have been produced – reproduced into the billing guide here.
“Review of the file”, I’m afraid that doesn’t tell me whether the file was in Derby or Nottingham because we had electronic files as well as paper files and that became more of an issue when files were in different locations because one wouldn’t necessarily match the other.
Mr Blake: Do you recall the case of Nemesh Patel?
Martin Smith: I don’t know whether it could be Jishaan Patel.
Mr Blake: Was there another case with the surname Patel that related to challenge to the Horizon integrity in that period?
Martin Smith: I believe there was a case of Jishaan Patel and I believe that I sought a report from Gareth Jenkins in relation to that and he mentioned a single previous bug in that report with an earlier addition of the Horizon system. And so I don’t know – I don’t know, I’m afraid, with regard to the timeline, whether I had made that request at that point. I know I did make a request in the case of Jishaan Patel for a report.
Mr Blake: I’m not sure that that was actually the question that I was asking. The question I was asking was about the Patel case. Were you aware of a case with the surname Patel challenging the integrity of Horizon in October 2012?
Martin Smith: Then yes, I was. But the one I’m thinking of is Jishaan Patel.
Mr Blake: Thank you. Then we get to Rachael Panter’s entry, which says as follows:
“Discussing progress of case with MJS …”
Is that you?
Martin Smith: That’s me.
Mr Blake: “… deciding whether I should pick the case up from him as it is very similar to Patel’s case …”
Then she refers to the disk. She says:
“… in terms of disk then we concluded that I should pick it up. Review of file upon receipt of Musa Patels’ letter. We still await the Horizon data disk from Steve Bradshaw. Although SP”, and then it’s a repetition of, I think, the attendance note we see above.
So it is clear that in October 2012, you were aware of another case of running alongside the Ishaq case where there were very similar issues being raised?
Martin Smith: Yes. Yes. It’s clear that what I am saying there is that we have to keep an eye on disclosure, although Sarah Porter had taken the robust stance, it’s an ongoing process, we have to be aware of things that might appear in other cases, and I was thinking that something might potentially come out of another case which we might have to disclose to Mr Ishaq.
Mr Blake: Thank you. Can we –
Martin Smith: That’s why I think it was the Jishaan Patel case because I think I was waiting to see what Mr Jenkins put in that report because if he put in that report information – well, in relation to the current edition of the Horizon system, then, obviously, that would have made me sit up and take notice.
Mr Blake: So only if Gareth Jenkins was addressing Horizon Online would it have made a difference to your disclosure obligations in the Ishaq case; is that right?
Martin Smith: Well, I mean, I think – I mean, I think we’re going somewhat forward in the chronology now but I think in the Jishaan Patel case I received a report from Gareth Jenkins, which made reference to a single bug in the pre – in a former of a version of the Horizon system – shall we just call it Horizon rather than Horizon Online? It was the previous version.
Mr Blake: We know it as Legacy Horizon?
Martin Smith: Okay, we can use that phrase. So I think I was made aware of a single bug in the Legacy case, I believe that was the Falkirk/Callendar Square bug, which was subsequently discussed, and I did not feel that might reasonably assist the defendant or undermine the prosecution’s case on the basis that was several years previously and a different version of the system.
Mr Blake: Did it not make you question the robust line that had been taken since you started taking on those Post Office cases?
Martin Smith: No, it was a single issue affecting, I believe, one branch several years previously.
Mr Blake: Can we please look at POL00059296. We’re now in November 2012, 1 November, a letter from Musa Patels Solicitors. If we scroll down, please, the trial is due to take place in February and it says as follows:
“I write further to the aforementioned matter and confirm that we have received a disk containing core data for the duration of the indictment period. As you are no doubt aware this should have been served by 5 October and if it is to be the subject of a forensic report then that had to be served by the Defence on 30 November 2012.
“We respectfully write to inform you that it will be impossible for the Defence to comply with the judge’s order and at this present moment consideration is being given to listing the matter for an intervention hearing, hopefully we will be able to address the lack of disclosure in respect of matters contained within paragraph 11 of our Defence Case Statement and were the subject to our letter of 8 October 2012.”
So that’s, again, a reference back to those requests that were made in October, in paragraph 11 of the defence statement. Sorry, that were chased in October that were contained within the defence statement.
Martin Smith: Yes.
Mr Blake: I’m going to go back, now, to the billing record, it’s POL00060738, and can we look at page 6. Thank you. If we could scroll down, please, we have there on 20 November, an entry that – sorry, if I could scroll up slightly. Thank you. There’s an entry, 20 November, and it says as follows:
“Consider proposed letter drafted by RP [that, I think, is Rachael Panter]. Suggest amend para one by deleting suggestion may be more evidence and repeating fact J [I think that means judge] said ball firmly in their court when given opportunity to provide revised [defence case statement] particularising [Horizon] issues.”
Is that your note?
Martin Smith: It will have been lifted from my attendance note.
Mr Blake: It appears that you are suggesting amending a letter that’s been drafted by Rachael Panter. Before we break for lunch, I just want to bring onto screen her draft and your draft. If we could first look at POL00059407. This is the covering email from Rachael Panter and she says:
“Please could you just look at the attached before I send it. I imagine the defence will not be too pleased but that is our position, I had to concede that the disks were served late. They may respond to say that they are unable to particularise any issues with the system until they receive the report. They shouldn’t as that was the wish of the judge at the last hearing, but without the expert report yet to send to them, that is the best I can do for now.”
I’m going to take you now to the letters. Could we bring up on to screen POL00059416 and, if it’s possible, to also bring alongside it POL00059409. Thank you. So this one currently on screen is Rachael Panter’s first draft and, on the left-hand side, is the version that appears that you fed back on, according to that billing not.
Martin Smith: Yes.
Mr Blake: We can see, if I read to you on the right-hand side it says:
“Thank you for your letter dated 1 November 2012. We have been liaising with the Investigator in this case and hope to serve any further evidence within two weeks’ time. However, we look forward to receiving having a revised defence case statement which particularises the issue, if any, you may have with the Horizon system as indicated by Judge Rose at the Plea and Case Management Hearing.”
Then the version after receiving your feedback, if we look at that first paragraph:
“We look forward to receiving a revised Defence Case Statement which particularises the issues, if any, you may have with the Horizon system. We will then gladly review our disclosure obligations accordingly.”
So reference to further evidence potentially coming has been deleted and what has been added is effectively a confirmation that disclosure obligations will only be looked at again if there is a revised Defence Statement; is that fair?
Martin Smith: Well, the first point I would make here is that I would generally advise people not to set themselves self-imposed deadlines. So I would have advised her to remove the reference to “hoping to serve evidence within two weeks’ time” because there had already been delays in receiving information from Mr Bradshaw, so that’s the reason why I advised that be taken out.
I was still hopeful that they would serve a revised Defence Statement which might particularise issues and, yes, we would then obviously review our disclosure obligations.
Mr Blake: So is your evidence, once again, that this wasn’t a tactic to put the onus on Mr Ishaq to specify something?
Martin Smith: I don’t believe it was a deliberate tactic, no. I can see how it looks but I don’t believe it was a deliberate tactic. We were asking Mr Ishaq’s solicitors to particularise the issues, which is the approach that had been discussed in court at the PCMH hearing – the Plea and Case Management Hearing – and it’s apparent that His Honour Judge Rose at the Plea and Case Management Hearing on 4 September had made the comment to the defence advocate that “The ball is in your court”. So I was encouraging them, in my mind, to provide information that could be looked into.
Mr Blake: I mean, any reference of further evidence coming their way or further information coming their way has been removed, hasn’t it?
Martin Smith: Well, I didn’t think it was sensible to say we hoped to serve further evidence within two weeks because, if I received that letter as a defence solicitor, I’d be diarising it for two weeks and then jumping up and down. I was very much aware that there had already been delays in this case, and I don’t know why there had been delays, I can’t remember why there had been delays in this case, but clearly information had not been forthcoming very quickly from Mr Bradshaw and I was trying to avoid any issues arising out of setting a self-imposed deadline.
Mr Blake: That’s quite a generous reading of that left-hand letter, isn’t it? There’s no reference whatsoever in that left-hand letter to any further evidence coming at all at any time?
Martin Smith: Well, without knowing what information Mr Bradshaw is going to provide, we don’t know whether or not it will meet the test for disclosure. So to say we will be serving further evidence on you, when we don’t have it, we don’t know what it is, I think would be, quite frankly, a little daft.
Mr Blake: Sir, might that be an appropriate moment to break for lunch?
Sir Wyn Williams: Yes, by all means.
Mr Blake: Thank you very much.
Sir Wyn Williams: So 1.55?
Mr Blake: Thank you very much, sir.
(12.56 pm)
(The Short Adjournment)
(1.55 pm)
Mr Blake: Good afternoon, sir, can you see and hear me?
Sir Wyn Williams: Yes, I can, thank you.
Mr Blake: Thank you very much.
Mr Smith, before lunch we were looking at those two letters and the final one that, essentially, put the burden onto the defendant to provide a revised Defence Statement. Can we now look at POL00059425, and this is the response from the defendant’s solicitors on 4 December 2012. They say:
“We write further to your letter of 20 November and thank you for [the enclosures].
“With regard to the other matters of disclosure contained within our Defence Case Statement we make reference to an order made by His Honour Judge Rose at the Plea and Case Management Hearing. We are not aware of any such order that a revised Defence Case Statement should be served with a view to disclosure being reviewed on your part.”
Just pausing there, it is right that there was no specific order for a revised Defence Statement, isn’t it?
Martin Smith: I’m not aware of any order having been made. The documentation we looked at this morning suggested that the judge had said that the ball was in the defendant’s court, which is not quite the same as an order being made, is it?
Mr Blake: It’s not the same as an order being made, you say?
Martin Smith: No.
Mr Blake: No. They then say:
“Our Defence Case Statement not only details our defence and the issues we take with the Horizon software but we feel it explains why we make the disclosure requests.
“In the interests of progressing the matter we ask that you review your disclosure obligations if you have not already done so and revert back to us with your final position and if you still feel that you are not obliged or willing to provide the information then we may give thought to a Section 8 application.”
So they are chasing disclosure once again in this letter, aren’t they?
Martin Smith: It would appear so, yes.
Mr Blake: POL00107855, we’re now in January 2013, so another month has passed:
“I write further to my letter of 4 December, in the absence of a response and with the trial date imminent I think it prudent to deal with the following matters and would be obliged for a response as soon as practicably possible.”
If we scroll down and over the page, please, they say:
“Finally at this stage I raise once again the disclosure requests made at paragraph 11 of the Defence Case Statement, as you will recall I asked for your final position in my letter of 4 December 2012, I made it clear that if such material is not served then a Section 8 application would be sought. However perhaps before reverting back to me it may be prudent for counsel to liaise with each other as soon as practically possible for the sake of convenience [he gives counsel’s details].”
Then it says:
“Suffice to say in light of our defence the material requested at paragraph 11 is clearly disclosable under your statutory duty.”
If we please could turn to POL00059557, we have an email from yourself to Rachael Panter and it says:
“I have received a letter from the defendant’s solicitors.”
It mentions Gareth Jenkins’ statement and then it says as follows, it says:
“There is a chance it could go off, however, as the defendant’s solicitors are grumbling about disclosure and the lack of information on the disk prepared for them by [Stephen Bradshaw]. They have asked the court to list the case for an ‘intervention hearing’ and the provisional date for that is 5 February.”
Do you think “grumbling” is a fair description of their repeated requests for disclosure?
Martin Smith: No, I don’t.
Mr Blake: Because, of course, it had been the Post Office that was taking a decision to effectively delay disclosure until they had provided more particulars?
Martin Smith: Yes, I can’t recall precisely the sequence of events but I am under the impression that Cartwright King, either through myself or Rachael Panter, liaised with Stephen Bradshaw on a number of occasions. I just can’t remember, I’m afraid, without looking at the file, all of those occasions but, certainly, yes, they were quite frankly right to complain, weren’t they?
Mr Blake: Yes, and not just in respect of any delays on Mr Bradshaw’s part but we know that, by this time, you had received the database, although your evidence is you didn’t open it.
Martin Smith: I hadn’t looked at that, no.
Mr Blake: You had received a note by Helen Rose. Again, your evidence is you hadn’t opened it or looked at it.
Martin Smith: I hadn’t looked at that, no.
Mr Blake: You were aware of a similar case going on at the time where you say that involved information about a bug. You are also aware of Second Sight investigating at this time. Was there a lack of curiosity on your part in respect of the various requests that they had been making?
Martin Smith: I don’t think there was a lack of curiosity. I think I took the view that the requests were for – or some of the requests were either too wide or information that wasn’t relevant or not going to meet the test for disclosure.
Mr Blake: So why are you saying that “grumbling” isn’t a fair description of what they were saying?
Martin Smith: Well, I think it’s – looking back, I think it would have been better to have rephrased that, repeating their requests for disclosure. I also think that, as a firm, we were liaising with counsel, as well, in relation to disclosure and so “grumbling”, I think, perhaps is an inappropriate term.
Mr Blake: Doesn’t it suggest a degree of ambivalence on your part?
Martin Smith: No, it is just an inappropriate word, with hindsight.
Mr Blake: But was a word that was used because you were ambivalent in respect of their disclosure requests?
Martin Smith: No, I was very aware that they were making repeated requests and they’d raised this a number of times.
Mr Blake: Can we please look at POL00114660 and, at the bottom of the first page, we have an email chain, still relating to the case of Ishaq, from you to Mr Bradshaw and Mark Ford. If we scroll down, it says “Dear Steve and Mark”, and then we have to go over the page:
“Please find attached a letter which we have received from Messrs Musa Patels today enclosing an addendum Defence Case Statement.
“I note that the addendum [Defence Case Statement] sets out the numbers of numerous reports which the defendant apparently made. It is the last working day before the trial and I am somewhat suspicious that the information was not disclosed at an earlier stage. Steve, could you please go through the addendum DCS and make such enquiries as you are able to today.”
Just pausing there, do you think it was right to be suspicious, given that it had been you who had been pushing them to serve particulars?
Martin Smith: I felt that we had been ambushed. I had certainly asked for particulars, for assistance, if you like, but for particulars of what they were saying at earlier stages and this information, which could have been provided at an earlier stage was provided right at the last minute and, as you’ll recall from my evidence this morning, I said that I had written to the defence, specifically asking them if they could particularise any examples because I did not want to be in this position where, at the very last minute, information was being received just shortly prior to the commencement of the trial and, obviously, there was very little time then to look into it.
Mr Blake: But couldn’t you have made things quite a lot easier by disclosing concerns that had been raised with you about the Horizon system quite a long time before this email?
Martin Smith: Well, when you say concerns, which concerns do you mean?
Mr Blake: Well, you were prosecuting somebody for a criminal offence.
Martin Smith: Yes.
Mr Blake: You were aware of a number of other cases raising issues with Horizon. You were aware that an independent investigator was looking into it. You were aware of another case with very similar facts. Did you not think that maybe we should provide a little more disclosure of those kinds of issues to the defence?
Martin Smith: So, by the time of this email, I think the statement of Stephen Bradshaw, which dealt with the appointment of Second Sight by Post Office Limited, had already been served and, so far as other allegations that were being made in other cases were concerned, I did not consider that they met the test for disclosure.
Mr Blake: You say precisely that in the next paragraph. You say:
“I have no intention of providing details of previous cases in which there has been ‘an unsuccessful challenge’ to Horizon. That information does not undermine the Crown’s case or assist the defence.”
Now, your evidence before lunch was that you didn’t even look at the table relating to unsuccessful challenges to Horizon –
Martin Smith: I didn’t, no.
Mr Blake: – so how could you have reached the decision that it doesn’t undermine the Crown’s case or assist the defence if you hadn’t actually read the document that had been sent to you?
Martin Smith: Well, by virtue of the fact that they were unsuccessful challenges, I didn’t feel that they would be disclosable.
Mr Blake: Did you not think that it was incumbent upon yourself to at least carry out a very basic level of research into those matters?
Martin Smith: I didn’t at that stage, no. I was under the impression that it was a table of unsuccessful challenges, unfounded allegations and, in those circumstances, I did not consider it further.
Mr Blake: Now, we’ve seen the defence statement; I don’t need to take you to the addendum. In terms of the timeline, Mr Ishaq pleaded guilty to theft on the 7 March 2013 and on 22 April 2013 he was sentenced to 54 weeks’ imprisonment.
I would like to take you to an email from March 2013. Can we please look at POL00105209. This is an email of 26 March, so in between Mr Ishaq pleading guilty to theft and his sentencing hearing, and it relates to Second Sight Report or the Second Sight investigation.
You are advising Jarnail Singh and the subject is “RE: Horizon issues URGENT”. In fact, perhaps we can look at Mr Singh’s request, that’s page 2, at the bottom of page 2. Mr Singh emails Andy Cash and you and he says:
“Andy
“May I have your view on [this] why [the Post Office] cannot simply stay and hold fire in prosecutions where there has been [an alleged Horizon issue], yes or no. Can we stay some or is it all or nothing?”
So Mr Singh seems to be asking for your expertise as to whether or not all prosecutions can, at that point, be stayed. Is that your understanding of that email?
Martin Smith: Well, it’s one potential reading of it. Mr Singh wasn’t always that easy to understand with the way he phrased things or discussed things but that’s certainly one way of looking at that.
Mr Blake: What is another way of looking at it?
Martin Smith: Just asking for general advice: why POL cannot simply stay or should POL simply stay, yes or no; can we stay some or is it all or nothing? It seems to be asking for a general advice. A general view, doesn’t it?
Mr Blake: So your interpretation is he may have been neutral on the matter and was asking for your advice?
Martin Smith: Well, it’s not straightforward, is it? Why POL cannot simply stay, that would be suggestive of the view that that was perhaps his opinion but then his further question is: can we stay some or is it all or nothing? So that is perhaps more open. As I say, Mr Singh wasn’t always the easiest to decipher.
Mr Blake: Why do you think that was?
Martin Smith: I think some of his conversations or emails were less than clear.
Mr Blake: Why do you think that was?
Martin Smith: Just on looking at them. I mean, looking at these two lines here –
Mr Blake: Is it your suggestion that he had some sort of nefarious purpose or some other reason, or is it simply the language used?
Martin Smith: I thought at the time it was the language used but, obviously, as this has rolled on, I think that he perhaps knew a lot more than he was letting on.
Mr Blake: Let’s see your response on page 1.
Martin Smith: Because, if I can just say, because up to that – if you think about his earlier communications, he has been very much arguing that the Horizon system is robust, and that’s very much the phrase that I placed reliance on. Then, of course, with an email like that, it makes you wonder, with hindsight, exactly what was going through his mind.
Mr Blake: What do you think was going through his mind?
Martin Smith: I’m wondering if he knew that there were more things that we didn’t know and, obviously, he hadn’t imparted that to us.
Mr Blake: Your response is as follows:
“If applications were made to adjourn all existing cases until after the report becomes available, this would result in a ‘nightmare’ situation. The fact that applications had been made would send out the wrong message and it would be assumed by many that POL had found and was trying to resolve a problem with the Horizon system. Whilst it could be made known that no problems had been found by [the Post Office], it is unlikely that defendants would believe such a statement. I would expect there to be numerous applications for disclosure and extra hearings (and extra costs).”
So you’re advising against staying cases because it would lead to more applications for disclosure?
Martin Smith: I think this was generally the view of Cartwright King. I don’t think this was my specific view. I think this had been discussed internally and this was the firm’s view.
Mr Blake: Well, we see at paragraph 3, for example, it says:
“The best approach in my view is to treat each case individually.”
So were you communicating your own views there?
Martin Smith: Well, I believe that would have been my view after I’d discussed it internally.
Mr Blake: “The prosecution can commence in the usual way and upon receipt of the Defence Case Statement, any challenge to the integrity of the Horizon system can be considered. Of course the first time we may get to know of a ‘challenge’ may be in the [Defence Statement]. If a ‘real’ issue is raised, the case could be adjourned until after the report becomes available. The defence could apply for the adjournment and we would not object. If, however, the challenge raised in the [Defence Statement] is flawed, has no basis or foundation, or relevance and is clearly just an attempt to frustrate the prosecution, the case can continue in the usual way.”
It’s the same approach, isn’t it, putting the burden on the defendant to raise the issue of Horizon, to raise a specific issue that satisfied some sort of test that would prompt action on the part of the Post Office, rather than being open and honest with defendants when they raise the Horizon system as a problem.
Martin Smith: I don’t see it that way. I see this as taking a case-by-case approach. There were some defendants who had made full and frank admissions in interview and there were other defendants who – that the Horizon system wasn’t of relevance to their case.
Mr Blake: How are you to know if it’s a real issue that’s being raised? What was the criteria that would be applied for that?
Martin Smith: I don’t think we set out any criteria.
Mr Blake: How would you test if it was a real issue or not? What would the threshold be that somebody had to raise in order for the Post Office to agree to stay their case?
Martin Smith: I don’t think I considered that point.
Mr Blake: I want to look at what happens after this and I’m going to move to 12 June and the receipt of what is the Helen Rose Report, that’s FUJ00086811. So the date there is 12 June 2013. Can you recall when you saw the Helen Rose Report?
Martin Smith: I don’t believe it was – it could have either been at the end of June or the beginning of July. I do recall that we were informed that the Second Sight Interim Report was going to make reference to bugs. I don’t think at that point we knew anything more than the fact that there were going to be references to bugs and then I think that either at about the same time or very shortly after a meeting with Post Office’s Legal Team on Old Street in London, the Helen Rose Report exercise fast. I don’t think it was before that meeting. I think it was possibly other at that meeting or shortly afterwards.
Mr Blake: So I think in your statement, paragraph 3 of your second statement, you say that on 27th June you had discussions regarding the Second Sight Interim Report.
Martin Smith: Yes.
Mr Blake: Is it at that point that you’re told about the Helen Rose Report or …
Martin Smith: No, I think 27 June was the dated upon which I received a telephone call from someone in the Post Office Legal team asking me about bugs in Horizon, and it was phrased in such a way which implied that they did not know of the bugs in Horizon. And I spoke to Mr Singh and asked him what he knew of the bugs in Horizon, and he also told me that he did not know of the bugs in the Horizon system.
So that was the start, if you like, of the Second Sight Interim Report chapter but I don’t know how soon after that that we received a copy of the draft Interim Report. I know it wasn’t published until possibly around the end of the first week in July. I suspect that we may have received snippets or parts of that information beforehand.
Mr Blake: It was early July. I’ll take you to the various emails.
Martin Smith: Oh.
Mr Blake: Let’s stick with the Helen Rose Report. You said that somebody phoned you up from the Post Office.
Martin Smith: Yes.
Mr Blake: Do you recall who that was?
Martin Smith: I’m afraid I don’t. I don’t recall who it was. I could guess but don’t want to guess and get it wrong.
Mr Blake: When Mr Singh told you that he didn’t know about bugs, did you question that with him?
Martin Smith: No, because it had rather taken me by surprise, as well. So I – it was apparent to me, from the way the question had been phrased, that Post Office Legal team didn’t know about the bugs. I was taken by surprise by reference to the bugs and I asked Mr Singh and he didn’t know about them either. So I just assumed that Post Office Legal Team did not know about the bugs.
Mr Blake: I’m going to very briefly take you to a couple of parts of this report. If we look at page 3, please, we’ll come to look at an advice that relates to this report but she says, for example, in relation to correspondence with Gareth Jenkins:
“I know you are aware of all the Horizon integrity issues and I want to ensure that the ARQ logs are used and understood fully by our operational team.”
“Recommendations”, if we scroll down, she says, for example:
“However, my concerns are that we cannot clearly see what has happened on the data available to us and this in itself may be misinterpreted when giving evidence and using the same data for prosecution.”
So we’ll come to look at the analysis of the Helen Rose Report. Before we do that, can we please look at POL00142322. This is a transcript of a conversation with Gareth Jenkins, and it’s Simon Clarke and also you are on this call. Are you aware of how this came into being?
Martin Smith: Yes. Mr Clarke had a case called Samra that was about to start, I think before the Crown Court at Birmingham and he was concerned that, as a firm, we now knew of the existence of a report, which we perhaps didn’t have at that point but we knew some of the content of, in that it was going to refer to bugs, and Mr Clarke was clearly concerned about whether or not that would be disclosable in the proceedings in Birmingham. And it was in those circumstances we telephoned Mr Jenkins to try to find out some more information.
Mr Blake: I think this is 28 June?
Martin Smith: So that was probably the day after we’d been informed of the bugs.
Mr Blake: So is that the day after the telephone call from somebody in the Post Office and your discussion with Jarnail Singh?
Martin Smith: Yes.
Mr Blake: Were you aware that the conversation was being recorded or was it typed at the same time or how did this come about?
Martin Smith: I’m not sure whether I recorded it or whether I typed it.
Mr Blake: Did you have a conversation with Simon Clarke before about the kinds of questions that you were going to be asking? We’ll see that there are some very specific questions with A and B, for example. Was it something that was planned?
Martin Smith: I don’t recall discussing it with him. I’m sure he had something set out in his own mind as to what he wanted to ask.
Mr Blake: Presumably Gareth Jenkins wasn’t told that it would be recorded or noted?
Martin Smith: No, he wasn’t. He wasn’t.
Mr Blake: It begins:
“Hi is that Gareth Jenkins?
“It is indeed.”
We go on, there’s an introduction from Simon Clarke. If we could go over the page, please, I’ll just read to you a few sections. So Simon says:
“The problem I have got is that we are not allowed to see the report but we are told that there are up to 30 offices where bugs have been identified, yeah, and we know that Hurst Lane is not one of the branches where there’s been an identified bug. Still with us?”
Gareth says:
“Erm right as I say certainly I am aware of 2 bugs. Is it. Firstly is this something that has been done on Horizon on the new Horizon system or the old system.”
Simon says:
“It’s Horizon Online.”
Mr Jenkins says:
“Okay right. So there is 2 bugs that we have declared to Second Sight in that sort of area, erm, and, erm, we know exactly which branches are affected and they wouldn’t have any impact whatsoever on that part of err what’s going on erm and I think we’ve, we are confident that the audit trail that you are using for prosecution has not been compromised by those bugs.”
Then, if we go over the page, please. About halfway down, you’re introduced. So Simon says:
“Where are we going from here. What’s the questions I posed earlier. Sorry I’ve got Martin Smith with me here as well, he’s the solicitor in the case.”
So were you the solicitor in the Samra case or is that a different case?
Martin Smith: I don’t recall, I’m afraid. I remember what the Samra case was about but I don’t know whether I was a solicitor in it or not. It was a lady who was alleged to have been making multiple transactions using the debit cards of pensioners, suggesting the first transaction hadn’t gone through and asking the pensioner to re-input their PIN number so I do remember that but I don’t know if I was the solicitor or not.
Mr Blake: Okay, and then he says:
“I know Martin.
“Hi Gareth.
“Hi.
“Hi, it’s the Horizon system is functioning perfectly …”
Can you assist us with what you mean there? Is that the matter that you’re questioning, whether it was functioning perfectly?
Martin Smith: I really don’t know what that is supposed to mean.
Mr Blake: Simon then says:
“This is the other point. Bugs have been identified in Horizon which call into question some of the aspects of the way in which it operates. That’s a fair assessment, isn’t it?”
Gareth says:
“Erm yes.”
Simon says:
“Okay, how can we be sure that (a) we have identified all of the bugs that there are and (b) that although Horizon has been demonstrated that to be fallible that insofar as the case we are conducting is concerned we can eliminate the possibility of error.”
Then the response from Gareth is:
“Right, I mean clearly we can’t you can never say there are no more bugs in the system but we’ve got to be careful about trying to say anything like that but what we can show is that nothing has been found to show that there is a problem in the integrity of the audit trail which is what has been used for the erm, erm your evidence.”
Simon says:
“So your view is that erm that if the defence were to suggest erm that there is a problem with Horizon and therefore we can’t rule out that there might be other problems with Horizon what you say is as far as you’re concerned the integrity of the system is in tact.”
He says: “Yes”.
Did you have concerns, real concerns, at this time, June 2013, about the reliability of the expert evidence that had been provided in court?
Martin Smith: Mr Clarke certainly had some concerns at that point. Because, as part of our conversations within Cartwright King, I provided him with a number of reports that Mr Jenkins had prepared at Cartwright King’s request and, obviously, there had been a discussion about that. So yes, there was a concern at that point within Cartwright King about the evidence given by Mr Jenkins.
Mr Blake: You’ve seen there, I mean, you’re having a conversation with the man whose given evidence in some of your cases. In the Ishaq case, Mr Jenkins gave two statements.
Martin Smith: Yes.
Mr Blake: There’s reference there to two particular bugs, there’s reference there to you can never say that there are no more bugs. Did you personally not have a real concern about those cases that you were involved in?
Martin Smith: I expressed concern to Mr Clarke that Mr Jenkins had not raised those bugs during the currency of the case against Mr Ishaq. In fact, I do recall that, when Mr Ishaq had suggested in his – one of his defence statements – that the losses were attributable to a freezing screen. I thought – my personal view was that he was suffering rather large losses attributable to a freezing screen. I thought, if anything, there was more to that and I specifically asked Mr Jenkins at court whether or not there had been a bug affecting Mr Ishaq’s branch, and he had said not.
And so by the time we get to this point, yes, you are quite correct, I was concerned about Mr Ishaq’s case because Mr Jenkins had said that there had not been a bug in his branch and here we are now being told of two bugs by Mr Jenkins and I can recall discussing that with Mr Clarke and I explained to him that Mr Jenkins had said that there were no bugs operative in the branch, and that Mr Ishaq had pleaded guilty.
Mr Clarke’s view was, well, that wasn’t really to the point. Those bugs should have been disclosed to him.
Mr Blake: At the time of recording that conversation, had you put two and two together at that point that it wasn’t just there were these bugs but also that we have a problem with the expert who is giving evidence in our cases?
Martin Smith: Yes, that was discussed.
Mr Blake: Was that information disclosed in ongoing criminal cases?
Martin Smith: So far as the ongoing criminal cases were concerned, this all happened in a very, very short window. I believe that Susan Crichton and Simon Clarke discussed the position and decided that it was appropriate, clearly in the circumstances, to impose a moratorium on all new prosecutions so that there’d be nothing new entering the prosecution pipeline and that, in existing cases, they would be reviewed by Mr Clarke and, depending on the nature of the case, it may be appropriate to terminate it in the absence of a new expert.
Mr Blake: Was there not a real sense of urgency at that point, having found out that information?
Martin Smith: Well, I think all this happened within a couple of days.
Mr Blake: Mr Clarke’s Advice was only on 15 July, so a couple of weeks later. You had been involved in the Ishaq case, a man had gone to prison; did you not think then and there, “I’ve got to do something urgent about the cases that I was personally involved in”?
Martin Smith: I do recall expressing my absolute – I was actually quite upset about the position, that there had been bugs which hadn’t been disclosed in Mr Ishaq’s case, and I remember actually feeling quite angry about that because a man had gone to prison and, quite frankly, those bugs should have been disclosed.
I asked Simon to review the case, as a matter of urgency, and I believe that he did, within the next day or so. I certainly have it in mind that it was reviewed very quickly.
Mr Blake: Why did you need Simon Clarke to review the case? Why couldn’t you, who had conduct of the case then and there, do something about your anger?
Martin Smith: Well, I just thought it was appropriate to have a senior barrister dealing with it.
Mr Blake: Can we please look at POL00060572. We’re now on 30 June. Jarnail Singh is passing on information to various colleagues at the Post Office and, if we scroll down, he refers there to the case of Ishaq at the top. He then refers to the Dixon case. He says:
“It follows that in some cases the integrity of the Horizon system has been challenged by the defendant. In other cases the integrity of the Horizon system may become an issue notwithstanding that there has been no specific challenge.”
He then says:
“The Samra case above in Birmingham involves Horizon.”
So that’s the case you were talking about –
Martin Smith: Yes.
Mr Blake: – with Gareth Jenkins:
“Samra is accused of performing unauthorised transactions on the Post Office’s current account of a number of vulnerable people. She has consistently denied any wrongdoing and the primary evidence against her is taken from the Horizon system.”
It’s this paragraph next I want to ask you about. It says:
“Simon Clarke, prosecution counsel, and Martin Smith spoke to Gareth Jenkins on Friday, 28 June. He told them that he had only volunteered information about two bugs present in the system, to Second Sight. He also told them that those bugs would not have affected the integrity of the data being used in the Samra prosecution. If I may speculate a little here, Gareth Jenkins only told Second Sight of two bugs, the Post Office only knew of two bugs. It seems, therefore, unlikely that they would find any other bugs without Gareth Jenkins knowing about it due to the mechanics to of the system reporting and the checks and balances already built into the system. It looks likely that Second Sight’s report will focus on these two bugs.”
Just pausing there, do you think that is a fair reflection to of the conversation that you had with Gareth Jenkins on 28 June?
Martin Smith: Well, no, it isn’t, is it?
Mr Blake: One thing it doesn’t suggest is, for example, the unreliability of Gareth Jenkins and the evidence that he has given.
Martin Smith: No.
Mr Blake: It also doesn’t refer to that paragraph we saw about never saying that there aren’t more bugs in the system.
Martin Smith: No, and it’s also confusing in that – well, I don’t really think I necessarily follow this, “If I may speculate a little here, Gareth Jenkins only told Second Sight of two bugs, the Post Office only knew of two bugs”. That’s contradictory to the information he told me, and it says:
“It seems, therefore, unlikely they would find any other bugs …”
Well, I don’t know where he’s got that from because that certainly wasn’t discussed with Gareth Jenkins on 27 June – 28 June.
Mr Blake: So the question that arises from that is: did you provide Jarnail Singh with the level of detail relating to the problems that Gareth Jenkins had told you about or not?
Martin Smith: We would certainly have communicated with Mr Singh and kept him informed of developments. I mean, after all, he was Head of Criminal Law.
Mr Blake: Your real concerns about the reliability of Gareth Jenkins, had you by then, 30 June, passed those on? Because there is no mention in that paragraph – summarises the conversation but doesn’t mention issues about the reliability of evidence. Do you think that you did or didn’t pass that on to Mr Singh?
Martin Smith: I cannot recall what I said to Mr Singh.
Mr Blake: It then continues:
“It is not possible to ignore the fact that Second Sight may report in the immediate future. Similarly, it’s not possible to ignore the fact that there may be high profile debates relating to the integrity of the Horizon system this coming week. Prosecution counsel proposes to mention the position in private to the judge in the Samra case in his chambers on Monday morning. The Post Office, as a public body, has to be open and honest for the judge to ensure fairness to elderly witnesses, prosecution and defendants whose liberty is at stake.”
Why mention it to the judge in private?
Martin Smith: I was being guided entirely by Mr Clarke in relation to this, and he was prosecuting counsel in that particular case, and he advised as to the best way forwards in relation to this particular issue that had arisen. Putting it –
Sir Wyn Williams: When the expression “in private” is used, do I take it that that simply means without the public being present? It doesn’t mean without the defendant’s representatives being present?
Martin Smith: I believe, sir, that it was without the public being present and without the defendant’s representatives being present.
Sir Wyn Williams: I see, so this really was just prosecuting counsel and judge; that was what was being suggested?
Martin Smith: I accompanied Mr Clarke, sir, to Birmingham. We went into chambers. I believe the Mention hearing was recorded and Mr Clarke explained to the judge, from memory, that there was a report which he was not yet in a position to disclose but which would be disclosable, and, given the imminence of Mrs Samra’s trial, he was in some difficulties.
Sir Wyn Williams: All right. Sorry, Mr Blake, for jumping in.
Mr Blake: Not at all.
Why not mention that in open court?
Martin Smith: That’s a question I’m afraid you’ll have to ask Mr Clarke. I was guided by his advice. I mean, if I could put this in a different way, basically, my whole career I’d spent dealing with defence work. I had then started dealing with prosecution cases on an agency basis, appearing in court for particular hearings and then reporting back. I then – this was effectively a new chapter of work, actually, dealing with prosecution cases and advising in relation to them and, quite frankly, I was grateful for any guidance that I could get internally within Cartwright King, and this was Mr Clarke’s advice. So that’s what he did and I went with him to the hearing.
Mr Blake: You had worked for Cartwright King for six years by this stage?
Martin Smith: Yes.
Mr Blake: Was the training so inadequate that you had to rely on Mr Clarke in this respect?
Martin Smith: Well, I was quite – well, there had been no training in terms of prosecution work at all. No training at all that, for example, a CPS lawyer might get internally at the Crown Prosecution Service. We’d been on no courses and I think also the perception of the firm was that it would be more appropriate, so far as Post Office were concerned, to see a senior experienced barrister advising, one who had had much experience of both prosecution and defence work, so he was the one who took the lead.
Mr Blake: A reading of this is that it would suit the Post Office because it wouldn’t be publicised. Did you understand that to be the position?
Martin Smith: Well, no, I didn’t and, in fact, when we had the conference with Brian Altman KC, he was very clear that he would not have dropped the Samra case. He said that he wouldn’t have dropped that and I understood Mr Clarke’s position to be, not one of unwilling to make the disclosure, because, quite frankly, the Second Sight Report – well, it’s the Interim Report we’re talking about. The Interim Report was always going to end up in the public domain. It was always going to be published, it was always going to be made public and it was going to be disclosed in other cases.
The fact here is not a case of trying to prevent that report from being provided; it was going to be provided through other routes. As I understood it, Mr Clarke’s concern was that he could not comply with his duties of disclosure at that point in time.
Mr Blake: Or even mention it in a public hearing?
Martin Smith: I think there was a concern that it had been arranged by Parliament or organised by Parliament and Parliamentary privilege attached to it. I remember a conversation along those lines and he was quite clearly unwilling to say very much about it.
Mr Blake: Is that a conversation with Simon Clarke?
Martin Smith: I believe it was.
Mr Blake: So your understanding is that he had a concern about Parliamentary privilege?
Martin Smith: Well, we thought that the report had been commissioned by Parliament or there was some connection with Parliament because, as we understood it, the Second Sight Interim Report was to be released to MPs probably the day prior to publication, and so Mr Clarke did not feel it appropriate to start releasing any information from it, or – I don’t know whether we had the report at the point of the application, or just a part of it, or just information in about what it contained. But Mr Clarke’s view, as far as I remember, was that it would not be appropriate to start putting into the public domain information which we either didn’t properly have or couldn’t provide when it was yet to go to MPs the day before publication.
Mr Blake: Do you think that there was emailed correspondence on that issue?
Martin Smith: Well, certainly not between myself and Mr Clarke, no. As I see it, this was a case of Mr Clarke saying, “We cannot comply with our disclosure obligations at the present time in relation to this imminent case”, this was a case which involved, as it says here, fraud, if you like, involving numerous elderly people who that had their cash cards used twice, to their knowledge – well, without their knowledge. Once with their knowledge and once without. One possibility was to seek an adjournment. That adjournment would be likely to be quite some time and, of course, one would have to consider the effect of an adjournment on a decreasing number of victims because of their vulnerability and age.
So this was never a case, in my view, of not wanting to disclose the Second Sight Interim Report. As I say, that was always going to end up in the public domain via one route or another. This was a case of Mr Clarke saying, “I cannot deal with my disclosure duties here and now at this particular point in time.”
Mr Blake: It’s also “I can’t tell anybody that it even exists.”
Martin Smith: Well, we told the – I say “we” – Mr Clarke –
Mr Blake: Apart –
Martin Smith: Explained the position in chambers to the judge and I understand, if I remember correctly, that that application was recorded.
Mr Blake: Can we please have a look at POL00190843. Actually, sorry, if we could start with POL00190842. This is an email from Hugh Flemington to you and he says:
“Please find attached a first rough draft from [Second Sight] of one half of the Interim Report. This will be supplemented tomorrow by a section on spot reviews. Please would you let us have you material and significant concerns on this first thing tomorrow morning please. If this timing is not possible please shout as soon as possible.”
We see there the attachment is the “Interim Report version 18a”. If we look at POL00190843, this is 4 July and this is the version 18A that was attached to that email. If we could look, please, at page 6. Page 6, 6.4, 6.5, 6.6, these are the receipts and payments mismatch and local suspense account bugs that we’ll see in the final version of the Second Sight Interim Report.
If we scroll down, we can see various other concerns that are raised relating to the Horizon system. Over the page, please, under “Thematic or Systemic Issues”, the various issues that had been reported by subpostmasters.
That was the 4th that you received that draft. Then can we please look at POL00190859. This is the next day, first thing in the morning, 8.59 in the morning, an email from you, thanking Hugh Flemington for the report, and you say:
“Our advice overall with regard to disclosure has not changed. The disclosure of a partial report would not meet our duties or help the current situation. I think the disclosure of a partial report would provide partial information and give rise to adverse publicity and speculation. It would be far better to advise once we have seen the entire report. Having said that the Second Sight Report would not need to be disclosed in every case – that decision would need to be taken on a case-by-case basis. In many cases it will not be disclosable.”
I just want to break that down into two. The first is “give rise to adverse publicity and speculation”. I mean, isn’t that exactly the concern I was raising in relation to the private hearing before the judge? That is on your part and on Cartwright King’s part, a concern about adverse publicity?
Martin Smith: No, the hearing before the judge was nothing to do with adverse publicity because, as I said earlier, the Second Sight Interim Report or the draft version of it was always going to end up in the public domain. That application was made because Mr Clarke was concerned that he could not properly discharge his disclosure duties. Clearly, this is an email that both myself and Mr Clarke have put together because, as you’ll see next to the yellow square that’s on the left-hand side, it’s our advice overall: this is very much the stance of Cartwright King, myself and Simon Clarke having discussed the position.
Mr Blake: Yes. The concern that I mentioned in relation to the hearing before the judge is a concern to have it in private. Not about what would be said but the concern about adverse publicity. Did you not recognise that that might be a concern?
Martin Smith: Not in relation to that hearing, no. I just assumed that was the correct way to go about things because that was what Mr Clarke advised.
Mr Blake: Sticking with this email, is your advice relating to adverse publicity and speculation, is that similar to where we started today: a confusion between the Post Office’s private interests and legal requirements?
Martin Smith: No, I don’t think it is. I think the danger with disclosing a partial report is that you’re only disclosing part of the picture. Isn’t it best to see the entire report and then make decisions?
Mr Blake: But why should publicity be a concern of somebody who is advising in criminal prosecutions?
Martin Smith: I think this – sorry, can you just scroll up? What’s the date of this email?
Mr Blake: 5 July.
Martin Smith: This would follow a meeting which had taken place at the headquarters of Post Office Limited which, at that point, were in Old Street in London and I think at that point the Post Office was expressing concern that there could be adverse publicity, and keen to avoid speculation.
Mr Blake: So it was the Post Office, rather than –
Martin Smith: So I think this is going back to the concerns which would have been raised at that meeting. So I think our approach to this would have been that it would be better to await the full report and then make decisions, rather than start to disclose bits of a report and have adverse publicity and speculation in relation to the gaps.
Mr Blake: Then:
“Having said that, the Second Sight Report would not need to be disclosed in every case – that decision would be taken on a case-by-case basis. In many cases it will not be disclosable.”
Is that right?
Martin Smith: I think where we were at the time, that was our thinking.
Mr Blake: You had had that conversation with Gareth Jenkins where he said there might be more bugs that caused you real concerns about the evidence that he had given in criminal prosecutions and his reliability. Do you think such a strong line could really be taken?
Martin Smith: Well, if you look at the file review process that was subsequently undertaken, I think, out of the total number of cases which were reviewed, the Second Sight Interim Report was disclosed in a proportion of them. So I think the view that we took within Cartwright King at the time is that it certainly wouldn’t need to be disclosed in every case but, depending on what it contained, a decision would have to be taken on a case-by-case basis.
Mr Blake: That is absolutely an issue that we’re going to be coming to in due course.
Can we please look at POL00297237, please. Just to assist us with the timeline, in fact it was the very same day, an hour later, that you received the full report – full draft report still –
Martin Smith: Right.
Mr Blake: – so that would have been the second half relating to spot reviews. We can see there Ian Henderson, at the bottom, is sending the latest version, version 24, of the draft report. If we see at the top, Rodric Williams has sent it on to you.
Can we please now look at POL00006545 and page 4., at the bottom of page 3 onto page 4, please. We have an email from you to Hugh Flemington, and you say:
“Dear Hugh,
“Please find attached a copy of the letter which we propose, subject to your agreement, to send to Ishaq’s solicitors.”
So this is 10 July. I think your evidence before was that, quite promptly, you did write to Ishaq’s solicitors and this is that correspondence.
Martin Smith: Yes, I couldn’t remember how promptly but it certainly pre-dated the file review process.
Mr Blake: Yes.
Martin Smith: I think I was so concerned about Mr Ishaq’s case that I actually circumvented the sifting process. I didn’t see the point in putting it through a sift. I knew it needed to be reviewed and I brought it to Mr Clarke’s attention for it to be reviewed. So this was something that was dealt with, if you like, outside of that – the main file review process.
Mr Blake: Can we please look at the draft letter. It’s POL00323836. So in April 2013, he had been sent to prison. This is a letter in July now. I’m going to read to you that letter. It says:
“We write to your firm as being the solicitors on the file representing this defendant in the proceedings which resulted in him receiving a term of 54 weeks’ imprisonment for an offence of theft …
“On 8 July a report into the operations of the Horizon system was published by an independent organisation which had been commissioned by our clients, Post Office Limited. The report is known as the Second Sight Interim Report. We have also received and considered a second report, concerning an investigation into an incident at another post office the, Helen Rose Report.
“We have thoroughly reviewed both the prosecution case and that of your client, and in particular his Defence Statement and Addendum Defence Statement, in the light of material contained within the Second Sight Interim Report and the Helen Rose Report. We have also reconsidered our disclosure duties under the [Criminal Procedure and Investigations Act 1996] and the Code of Practice enacted thereunder and the [Attorney General’s] Guidelines on Disclosure.
“We have formed the firm view that, had the prosecution been possessed of the material contained within the two reports during the currency of the prosecution of your client, we should and would have disclosed that material to you in compliance with our disclosure duties.
“Accordingly we now disclose those reports to you so that you are able to consider whether your client may have grounds for an appeal against his conviction.
“We would also remind you of your duty not to disclose this material to any third party other than your client; in particular the Helen Rose Report is not in the public domain.”
So the proposal is to now disclose to Mr Ishaq’s solicitors the Second Sight Interim Report and the Helen Rose Report; is that right?
Martin Smith: Yes.
Mr Blake: No apology in this letter, correct?
Martin Smith: There is no apology in that letter, no.
Mr Blake: No reflection of any wrongdoing or concerns about material not being brought to Mr Ishaq’s attention that really should have, no apology for that?
Martin Smith: No, the letter is as you’ve read it.
Mr Blake: It ends with “No sharing allowed in relation to the Helen Rose Report”. Is that, again, a concern about the publicity that that might raise?
Martin Smith: I have – I didn’t consider that point. This is the letter as Mr Clarke prepared it.
Mr Blake: If we could zoom out, please, just to look at the entirety of the text. Is there any reference in that letter to concerns about the reliability of Gareth Jenkins?
Martin Smith: No, there isn’t.
Mr Blake: Do we find also attached the list of cases relating to Horizon concerns that had been prepared by Helen Rose back in October 2012?
Martin Smith: No.
Mr Blake: Why were the Second Sight Report and the Helen Rose Report considered to be sufficient?
Martin Smith: At this point in time, I was unaware of the content of the spreadsheet and the first Helen Rose document and these were the documents that we had been provided with.
Mr Blake: “We are also concerned about a witness in your case who was referred to as an expert witness, who we believe gave unreliable evidence”; is that set out there?
Martin Smith: No, it isn’t.
Mr Blake: Do you know why not?
Martin Smith: I’m sorry, I can’t answer that question, I don’t know.
Mr Blake: As somebody who was involved and a firm that was involved in the original prosecution, do you think Cartwright King were the right people to determine how much additional disclosure should now be provided to Mr Ishaq?
Martin Smith: At the time, yes, I did think it was appropriate. I remember Mr Clarke explaining, around the 3 July meeting in London, that it was not inappropriate for a prosecutor involved with a case to review the case to determine whether further disclosure ought to be made.
Mr Blake: Can we please return to the email chain we saw just a moment ago, POL00006545. We looked at the final entry in this chain, which was you sending this draft to the Post Office. Can we please start on page 3 this time?
Roderic Williams sends you a response thanking you and says:
“First point – we presume that Helen Rose’s Report is being disclosed because [the Post Office’s] evidence in the prosecution included an ARQ report. Is that right?
“Second point – Helen Rose’s Report is marked ‘Confidential and legally privileged’.
“I understand that she did this because she prepared the report to give to Post Office Legal for legal advice on the implications of her investigation.
“Please therefore consider what information from the report needs to be disclosed to Ishaq’s solicitors, and in what format, ie whether parts of the report should be removed or redacted or the non-privileged material repackaged for disclosure to the defence.”
“If you advise that Helen’s Report does not attract any privilege, please ensure the reference to privilege is removed …”
We will look at the other email in the chain but, just pausing there, what was your impression of how open the Post Office were to providing disclosure to Mr Ishaq at this time?
Martin Smith: It’s difficult to recall but my impression was that they were content to follow Mr Clarke’s advice.
Mr Blake: If we turn to page 1, please. It’s an email from you to Rodric Williams and others. Now, it looks there, I think it’s an American format of the date. It should be 11 July. For those who are interested, we have another version of this, it’s at POL00323841. It doesn’t need to be brought up on screen but that shows it as 11 July, which makes sense in terms of the sequencing.
Martin Smith: Yes.
Mr Blake: You’re emailing Rodric Williams about privilege and you then have a section, “Why is Helen Rose’s Report disclosable”, and you highlight features such as those that rather suggest that there may be Horizon issues plus training and support deficits, and you highlight the reference there to Horizon integrity issues, and say:
“This is an alarming statement for it is suggestive of the existence of Horizon issues and that they were known to [Gareth Jenkins]. This has obvious implications for [Gareth Jenkins’] court reports and appearances and his silence therein.”
Note that that, as I say, was not referred to in your draft, and I think you accept that.
If we scroll down, we see there, paragraph 3, you refer to:
“[Helen Rose’s] ultimate conclusion is that this is not an issue which suggests a failing in Horizon itself; rather it is an issue of data presentation …”
“Whilst to a degree that is correct, given what I have said in 1 and 2 above that view may not be entirely sustainable. It may be suggested that the report is at the very least suggestive of Horizon issues.”
Then you go on to say:
“The report in general terms reinforces the impression that [Gareth Jenkins] is not being entirely forthcoming about Horizon issues. An example of this approach may be found in his response to [Helen Rose’s] first question, where she asks ‘… also could you explain what happens when the system fails?’ [Gareth Jenkins] does not begin to answer this question; he simply responds ‘… the system is behaving as it should’.
“If the system is behaving as it should then the answers I reproduce in my Point 1 above are inexplicable.
“5. Some may conclude from this that [Gareth Jenkins’] aim is to protect Horizon from criticism rather than to provide [Post Office Limited] and the court with impartial and honest evidence.
“In view of these matters I think that the information contained in the Helen Rose Report meets the test for disclosure. It should not be forgotten however that information would only meet the test in a limited number of cases, ie where the defendant had conducted reversals and was blaming Horizon.”
Just pausing there: is that right? I mean, again, we’re seeing an email from you that is narrowing the number of cases in which this needs to be disclosed?
Martin Smith: Well, you say it’s from myself. It’s from myself and Simon, as you’ll see how it’s signed off.
Mr Blake: Yes.
Martin Smith: This is a joint effort and I’m clearly taking advice from Mr Clarke.
Mr Blake: It was sent by you?
Martin Smith: It was sent by me but, if you have a look at the screen at the moment, under “Kind regards” it says, “Martin and Simon”.
Mr Blake: Yes?
Martin Smith: So this is clearly a joint piece of work.
Mr Blake: Does that make it any less troubling?
Martin Smith: What it means, it means that I am clearly taking advice from a senior in-house barrister about the position.
Mr Blake: It then says:
“In view of these matters I am in no doubt …”
In fact, it says “I” there rather than “we”, but we can –
Martin Smith: It does.
Mr Blake: – put that to one side:
“… that this document is disclosable. On the LPP point I rather fear that, if the matter were to come before a criminal court the judge would without hesitation order disclosure in the appropriate case.
“Accordingly, you may take the view that I should attempt to redact, or summarise the report into a disclosable document and in a form which serves the dual purpose of both disclosing that which should be disclosed whilst protecting the non-disclosable sensitive material.”
Well, first of all, by this date, it seems as though you are getting quite concerned about how candid the Post Office have been; is that a fair summary of the contents of that?
Martin Smith: Well, this Helen Rose Report has clearly now arrived, and it’s in addition to the two bugs referred to in the Second Sight Interim Report. So there is another report to deal with. I don’t think I gave it much more thought. I can recall that it was Mr Clarke who then went on to redact the Helen Rose Report before it was sent out and it was Mr Clarke who then drafted the letter to be sent out to the intended recipients.
Mr Blake: At paragraph 14 on page 5 of your second statement, you very candidly say that you are unaware of the post-conviction duty of disclosure; is that correct?
Martin Smith: Yes, I wasn’t aware of that.
Mr Blake: I mean, wasn’t that precisely what you were being asked to do by Rodric Williams, to consider such duties?
Martin Smith: Oh, I became aware of the post-conviction duty of disclosure upon discussing Mr Ishaq’s case with Mr Clarke because I pointed out that Mr Jenkins had said that there had been no bugs in the branch and Mr Clarke’s view was that, well, this is still disclosable because it would give Mr Ishaq the opportunity to argue that there were perhaps bugs as yet unknown to Post Office and, therefore, this should be disclosed.
I had not been in this situation before, needing to consider post-conviction disclosure. I was simply unaware of that.
Mr Blake: Is that of concern, given that you had been involved in quite a few criminal prosecutions for a number of years by that stage?
Martin Smith: Well, everything was going to be reviewed, wasn’t it? That was the point. We were then going to review things.
Mr Blake: But was it of concern that you, a person who had conduct of cases, a solicitor who had conduct of cases, wasn’t aware of the test for disclosure once people had been convicted?
Martin Smith: I didn’t see it as a concern. I regard it as professional development.
Mr Blake: Do you see it as a concern now that you weren’t aware of that test?
Martin Smith: I do, yes.
Mr Blake: Thank you, sir. That might be an appropriate moment to take our mid-afternoon break. If we could come back at 3.25, please.
Sir Wyn Williams: Yes, certainly.
Just before we go, though – and stop me, Mr Blake, if you’re going to continue to pursue this – but I’m still baffled about how it can be, Mr Smith, that you quite rightly take the view that the Helen Rose Report and the Second Sight Report should be disclosed but there doesn’t appear to be any consideration at all about the disclosure of your discoveries relating to Mr Jenkins, if I can put it in that way, because, in particular, in relation to the Helen Rose Report, but really in relation to both, all of those matters are inextricably linked, are they not?
Martin Smith: I cannot recall, sir, any discussion within the office about disclosing information with regard to the position with regard to Mr Jenkins. I don’t recall that being discussed at that point or indeed –
Sir Wyn Williams: No, but that in itself is, let’s just say, surprising, is it not, because you have your conversation with Mr Jenkins on 28 June. That immediately raises alarm bells, one would imagine, and I think that’s the purport of your evidence. We then get, sequentially, Second Sight and Helen Rose in quick succession, literally within a short number of weeks from the discussion with Mr Jenkins and, on 15 July, Mr Clarke actually puts in writing, in unequivocal terms, his very many misgivings about Mr Jenkins.
So it does seem very odd that this isn’t a topic of discussion, in particular in relation to what you’re going to do about Mr Ishaq, who may or may not still have been in prison at that point. Anyway there we are.
3.25, sorry.
Mr Blake: Sir, I think Mr Smith may just like to answer.
The Witness: Sir, would you like me to revisit that after the break?
Sir Wyn Williams: Yes, by all means. Think about it.
The Witness: I can answer it now but I’m aware that we’re about to have a break.
Sir Wyn Williams: Yeah, go on, we’ll extend the break until 3.30. You answer it.
The Witness: Okay, thank you. So there was literally no discussion, as I recall, about disclosing information about Mr Jenkins, and when we subsequently went to see Brian Altman KC to discuss the file review process and the letters that were being sent to others with regard to post-conviction disclosure, I don’t recall it being mentioned then, I don’t recall it being suggested that a paragraph should be inserted to deal with Mr Jenkins.
Sir Wyn Williams: Well, no doubt that is an issue that will be taken up sequentially with the lawyers who come after you, Mr Smith. Thank you.
Mr Blake: Thank you, sir. 3.30.
(3.12 pm)
(A short break)
(3.30 pm)
Mr Blake: Thank you, sir.
Moving on to the Criminal Cases Review Commission, can we please look at POL00039994. They send a letter on 12 July 2013, so the same time period as the documents we’ve just been looking at, around the same time as that letter was being drafted to Mr Ishaq. If we scroll down, please, it’s sent to Paula Vennells and it says:
“For obvious reasons, we have read the recent media coverage concerning the Post Office Horizon computer system with interest. Clearly, it would be very useful for us to have more information directly from the Post Office, especially accurate information as to the number of criminal convictions that might be impacted by the issue and what action is proposed, or being taken, in that respect.”
So this is following the publicity relating to the Second Sight Interim Report.
Martin Smith: Yes.
Mr Blake: Could we please turn to POL00039998. Do you recall as a firm being tasked to draft a response to the letter?
Martin Smith: I think we were. Well, it would appear that we were but I don’t recall it.
Mr Blake: We have here an email from you –
Martin Smith: Yes.
Mr Blake: – to Susan Crichton:
“Susan,
“Please find attached documents prepared by Simon in response to the letter from the CCRC.”
If we scroll down we can see Simon Clarke:
“Herewith my response to the CCRC letter. The pdf is simply a brief discussion of the CCRC’s criteria; the Word.doc is a draft response for POL if they think it may assist.”
Do you recall if this was something simply volunteered by yourself and Mr Clarke or whether it was something specifically requested by Susan Crichton, or something else?
Martin Smith: I’m afraid I can’t remember.
Mr Blake: Could we look at the first document that was attached, and that’s POL00039993. Do you recall seeing this document? This was attached to that email that you sent to Susan Crichton.
Martin Smith: I don’t know whether I considered it in any depth.
Mr Blake: Do you recall why this was prepared?
Martin Smith: I would imagine that Mr Clarke was simply providing information at the request of Post Office Limited and the Legal Department but I don’t – I can’t recall having anything, really, to do with this, apart from sending it on.
Mr Blake: Can we look at the other attachment and that’s the draft response, that’s POL00039995. These are the draft paragraphs for insertion into the reply. I’ll just read to you a few sections from this. The second paragraph, halfway through, it says:
“The detection and successful prosecution of such offences is almost always dependent upon a proper analysis and presentation of Horizon data, and accordingly it’s imperative that the integrity and operation of the Horizon system is demonstrably robust. In many prosecutions the defence will fall into one or more of the following categories.”
Then the number of categories are identified. Then it says as follows. It says:
“Where a defendant asserts, rightly or wrongly, that Horizon is at all fault, it is for the prosecution to demonstrate the integrity of the system and the evidential audit trail derived from Horizon.”
Pausing there, is that the approach you think that the Post Office took over the years, that it’s for the prosecution to demonstrate the integrity of Horizon or do you think, from what we’ve seen already today, that there was a fair bit of a burden put on the defendants themselves to particularise their complaints?
Martin Smith: No, as I’ve said in my statement, my second statement, the approach taken by Cartwright King was not to obtain a report in every case where there was a suggestion that the Horizon system might be at fault or some unexplained loss. The approach taken by the firm was a sort of ‘Wait and see’ approach and if the defendant didn’t plead guilty then a report would then be sought, which of course is something very different.
Mr Blake: It then says:
“This is usually accomplished by the serving of expert evidence. For many years both [Royal Mail Group] and latterly [the Post Office] has relied upon a single expert witness provided by Fujitsu Services Limited, the Horizon manufacturer, maintenance and support contractor. That witness has provided expert evidence in many cases where the defendant has asserted irregularities with Horizon to be the cause of unexplained shortfalls, as to the operation and integrity of the Horizon system. He has done so both to [the Post Office] and in expert witness statements and oral evidence, to the court. In particular he has: attested to the presence of defect detection and rectification systems; the robustness of the prosecution audit trail; and stated that, in his expert opinion, Horizon accurately records and processes all information submitted into the system. The Second Sight Interim Report demonstrates that this was not the case.”
What isn’t mentioned there is your real concerns about the reliability of Mr Jenkins’ evidence. Is that –
Martin Smith: No, there doesn’t appear to be anything there about that.
Mr Blake: No. If we continue, I mean, Simon Clarke’s advice on the reliability of Mr Jenkins was 15 July, so the day before this draft was produced. Do you think it is surprising that this letter to the Criminal Cases Review Commission was not phrased with similar concerns about Mr Jenkins’ reliability?
Martin Smith: At the time, I don’t think I gave it any thought but, looking back, I take the view it should have contained information relating to Mr Jenkins.
Mr Blake: Actions taken by the Post Office:
“[The Post Office] accepts that a number of criminal convictions may be impacted by the matters highlighted in the Second Sight Interim Report and has taken early and determined steps to identify those cases there such an impact may fall.”
So there’s mention of Second Sight here but there isn’t mention of the Helen Rose Report either, is there?
Martin Smith: No, there doesn’t appear to be.
Mr Blake: Then the next paragraph:
“To that end [the Post Office] has instructed an independent firm of criminal specialist solicitors to identify every criminal case prosecuted by [the Post Office] and [Royal Mail Group] prior to their separation and, in any event, in the last three years so as to determine, in each case the answer to that question.”
“Instructed an independent firm of criminal specialists”; is that correct?
Martin Smith: That would be Cartwright King.
Mr Blake: Having prosecuted a number of those cases, do you think it’s fair to describe Cartwright King to the CCRC as an independent firm of criminal specialists solicitors?
Martin Smith: Well, I guess the answer to that is we were independent of Post Office, so we weren’t within Post Office’s Legal Team and we were external to Post Office but, of course, we weren’t independent of the actual prosecutions because we had conducted a number of them.
Mr Blake: If we could go over the page to page 3, please. If we scroll down, “Number of impacted cases”, it says:
“Where counsel has advised the possibility of grounds to appeal, letters have been written to solicitors who defended, informing them of the issues and providing copies of the Second Sight Interim Report and such other material as they ought to have received during the currency of the prosecution, had we then been possessed of that material. It would then be for the defendant and his lawyers to determine whether or not they wished to launch an application for leave to appeal out of time; we would certainly support grounds to allow the application out of time.”
Again, reference there to the Second Sight Interim Report but no mention of the Helen Rose Report or any other specific information set out there in that draft letter; is that correct?
Martin Smith: Yes, I don’t – I also think, looking at that paragraph, it’s saying letters have been written to solicitors who defended. I’m not sure the letters went out that promptly.
Mr Blake: It concludes:
“Thus far the review has identified no cases where the defendant has sought the leave of the Court of Appeal to appeal against this conviction. One case has been identified where the defendant sought, and was refused, leave to appeal against his sentence.”
If we go over the page, please, we then have Magistrates’ Courts convictions, a section on that, and it’s the final passages of this draft that I want to now ask you about. It says:
“We take the view that it is incumbent upon the [the Post Office] as a major public institution to take every reasonable step to ensure that only the genuinely guilty are convicted and that those who are, or may have been, convicted without good reason, have every opportunity of correcting such a miscarriage of justice.”
Do you think that that fairly reflects the very narrow approach that seems to be taken to disclosure of matters that are well known by this stage to the Post Office?
Martin Smith: Well, at this point in time, there were very few matters known. There was simply the two bugs and the Helen Rose issue – the Helen Rose Report, in my mind. So …
Mr Blake: You had sent this draft – it seems to be authored by Mr Clarke but you had sent it to the Post Office?
Martin Smith: Yes.
Mr Blake: Presumably you read it before you sent it?
Martin Smith: I don’t know whether I did or not.
Mr Blake: Would it be typical of you just to forward things to the Post Office or would you consider matters such as a response to the Criminal Cases Review Commission relating to cases that you had prosecuted?
Martin Smith: No, if Mr Clarke had drafted something, I would have trusted him and forwarded it.
Mr Blake: You are sending a letter to the Post Office, which makes absolutely no mention of the kinds of concerns that the Post Office had at that stage about Mr Jenkins, within days of Mr Clarke’s actual advice on the impact of Gareth Jenkins’ evidence, and it isn’t mentioned. Do you think that is of some concern about how open and transparent your firm intended to be with the Criminal Cases Review Commission?
Martin Smith: I don’t believe I gave that any thought at the time. It seems to me that I’ve simply forwarded documents.
Mr Blake: Can we please look at POL00139730. So you were simply forwarding documents on 16 July, relating to the Criminal Cases Review Commission. We’re now a few days on, 19 July. You’re attending what is called a regular call regarding Horizon issues. Is this the first of those meetings?
Martin Smith: I believe it was, yes.
Mr Blake: It then became a regular call relating to Horizon issues?
Martin Smith: Yes, they were weekly to start with and then, at some point in the future, they became fortnightly.
Mr Blake: If we scroll down, please. Rob King, who’s a member of the Security Team, says as follows, or the note is as follows:
“No minutes circulated, but we will be taking notes.”
So it seems as though there is some sort of direction that no minutes from these meetings will be circulated; is that something you recall?
Martin Smith: Well, I’ve dealt with this in my witness statement. I recall that one of the civil lawyers from Bond Dickinson explained virtually straightaway after Mr King had spoken, the reason for this and he was clearly talking from a disclosure position in civil cases. He said that he’d had previous experience of this and that he was concerned that, if minutes are circulated by email, they then can be forwarded on to other people, potentially well intentioned, with a view to getting opinions, that might generate incorrect information. It might generate opinions that are incorrect, and it can result in information being stored elsewhere, away from the call.
So whilst he was concerned about that, I considered that from a criminal perspective. In London, at the meetings, Simon Clarke had been very careful to advise the Legal departments of Post Office what their obligation were and what their duties were from a criminal disclosure point of view and that a central hub who’d be set up to collate information.
And I could see, from what Mr Parsons was saying, from Andrew Parsons’ concerns, that there was a real chance. If he was concerned about that, then I was equally concerned that we could be faced with a situation where there could be several mini hubs of information containing various amounts of information which might or might not be correct and, going forward, that would make a disclosure exercise very, very difficult and also difficult to instruct a new expert, if there are different hubs of information.
So I understood the rationale for that.
Mr Blake: Let’s see where you’re mentioned, if we scroll down, it has your name in the next box, and it says:
“Confirmed it was good Horizon wasn’t discussed at the length during interviews under caution and also the use of template statement. Would like to be appraised of developments [regarding] interviewing and to have sight of statements and scripts.”
Then it says this, it says:
“Clarification on disclosure and email correspondence. Emphasised need to ensure that any document produced would be potentially disclosable.”
So is that you there emphasising that any such document that was produced would be potentially disclosable?
Martin Smith: Well, I don’t think this is correct. I believe I spoke towards the end of the call, not at the beginning. It was Mr Parsons who spoke after Rob King. He was concerned about inaccurate information being generated, and when I spoke, I explained that any information generated obviously needed to be accurate and kept because it may well be disclosable.
Mr Blake: We see there two entries from Mr Parsons. The first one says as follows:
“Commented on the need to limit public debate on the Horizon issue as this may have a detrimental impact on future litigation.”
If we scroll down over the page to page 3, near the bottom of page 3, the third entry from the bottom, we see another entry summarising something that he has said to have said, which is:
“Spoke about emails, written communication, etc … if it’s produced then it’s available for disclosure, if it’s not then technically it isn’t.”
What did you understand by that?
Martin Smith: Well, I understood him to be talking about pre-action disclosure in civil cases, nothing to do with criminal litigation and criminal law. Post Office had already been advised from a criminal perspective quite thoroughly by Simon Clarke. They’d accepted that advice. They’d set up this call and he was a civil lawyer on the call, clearly not offering criminal law advice because he’s not a criminal lawyer but clearly looking at the position from a civil law perspective. He spoke at the outset of the call about his experience in previous cases, where he’d had nasty surprises when he’d done trawls of emails and found information that I think was incorrect or something like that.
So, clearly, what he’s saying there is basically a warning because, if people aren’t committing things recklessly to paper, or if they’re not recklessly writing emails, then it obviously makes the – his job easier.
Mr Blake: What about the first one, page 2, in the middle:
“Commented on need to limit public debate on the Horizon issue as this may have a detrimental impact on future litigation.”
I mean, was the advice that was being given, if not by you, then by Mr Parsons at this meeting, one of limiting what is said about Horizon issues?
Martin Smith: I don’t recall the meeting and I generally made copious notes, which I left at Cartwright King. My understanding was that he was concerned about incorrect information being discovered on email trawls then going into the public domain through pre-action disclosure and, of course, if people have been guessing or speculating or coming up with incorrect points, well, I guess his point was that’s equally disclosable in a civil case and could cause damage to Post Office.
Mr Blake: What’s noted here, though, is much wider than that, isn’t it?
Martin Smith: It is, “need to limit public debate”. I don’t recall that.
Mr Blake: If we scroll up, Rob King:
“No minutes [to be] circulated …”
That must have been of concern, mustn’t it?
Martin Smith: Well, it would have been that Mr Parsons then not explained his rationale for that.
Mr Blake: Let’s just look back at everything that we’ve discussed so far today. You were involved in the criminal prosecution on behalf of the Post Office in a number of cases correct?
Martin Smith: Yes.
Mr Blake: You prosecute people resulting in some cases going to prison, certainly Mr Ishaq’s, correct?
Martin Smith: Yes.
Mr Blake: Irrespective of your knowledge at the time you were prosecuting, you have by now found out that there was a lot more information about bugs, errors and defects in the Horizon system than you knew at the time; is that right?
Martin Smith: Well, at this point in time, we have knowledge of the Helen Rose Report and the Second Sight draft Interim Report.
Mr Blake: Yes, and you’ve also learnt about concerns that an expert witness who had been giving evidence in your prosecutions knew a lot more than had come out in evidence about bugs, errors and defects?
Martin Smith: Yes.
Mr Blake: You read the Helen Rose Report by this stage, correct?
Martin Smith: I believe so, yes.
Mr Blake: You’ve been sent a draft response to the Criminal Cases Review Commission, which makes no mention of a number of those matters; is that right?
Martin Smith: Yes.
Mr Blake: Now there seems to be a discussion about limiting the amount of information in the public domain. Does that not cause you real concern at this stage?
Martin Smith: Well, no, it didn’t, because Mr Clarke had advised that there be a central record and, as I understood it, a central record was going to be created. That was the purpose of this call and, quite frankly, I was content for there to be a single central record, not several central records. I –
Mr Blake: But why no minutes circulated?
Martin Smith: Well, as I say, that had already been explained, because people can then forward them on and that could then attract other opinion and then get forwarded on to others, and I think it was described as a sort of spider effect where it can crawl and you don’t know where the emails end up and you don’t know what’s been added to them.
Mr Blake: So was the purpose of the central store not to make sure that everybody had access to central material but to keep everything away from being distributed?
Martin Smith: Well, no, that’s – the purpose of the central store was to ensure that everything was collated in one place. That would be then interrogated for disclosure purposes and it would also mean that instructing any new expert, there is only one single central store be sent to that expert. And as I understood this, if there were applications for pre-action disclosure – and I don’t know that much about civil litigation but, again, there’s a single central store for that.
I think the point that we had in mind was that it would actually serve both camps if there is one single central store. The minute that you start having emails being circulated with people then being able to add to those email chains in a way that wasn’t visible to the central store, the minute you start to not that have full visibility of the issues which perhaps ought to be recorded in the central store.
So, at that point in time, I was not actually concerned about that.
Mr Blake: Can we then look at document retention and destruction post-19 July and look at POL000139745, please. This is a discussion that took place on 1 August 2013. Is this your note?
Martin Smith: Yes. My details are in the top right-hand corner. Yes.
Mr Blake: It seems as though you had a telephone call with John Scott on 31 July 2013; is that correct?
Martin Smith: No, that’s not correct.
Mr Blake: When did you have a discussion with John Scott?
Martin Smith: It wasn’t a telephone call with John Scott. “JS” here would be Jarnail Singh. So this was a note that I made on electronic file 37142, on 1 August 2013, relating to a telephone call that had taken place at approximately 6.00 pm the night before 31 July and, as you’ll see here, the summary cuts off but there’s no more in the lower section:
“J Scott has instructed that the type minutes be scrapped.”
There was obviously a lot more to that call because, as you can see from the time recording at the bottom, I was engaged on that call for some 24 minutes.
Mr Blake: It’s a summary that’s there. It’s very important for this Inquiry to know what you recall about that discussion, and the words used. Can you assist us?
Martin Smith: I think I’ve put this in my second – well, both witness statements because I could see in my first witness statement this was something that was going to be of relevance. I was actually driving at the time when I took the call from Mr Singh and I can recall complaining to him about the influence being exerted over Post Office, in my view, by the civil lawyers, the external civil lawyers and I can also recall him telling me that an instruction had been sent out and that, if anyone – that the typed minutes should be scrapped and that, if anyone asks, then Cartwright King would be blamed for providing that advice, or words to that effect.
I can recall being absolutely horrified and shocked by what I’d heard and, when I had the opportunity to pull over, I was able to use another mobile phone to record at a distance the latter part of the conversation, because I was just so shocked by what I’d heard. I can recall relaying that to Mr Clarke. I’m afraid I can’t really recall much more about precisely what was said but I remember that I relayed to Mr Clarke the concerns that Mr Singh had, that I had, and the comments made.
And from memory, this was just after the third Wednesday morning call. So there’d been a space of about a fortnight since the first call. No minutes were being circulated and I can remember saying to Mr Singh I can appreciate the reasons for that and, quite frankly, that actually wasn’t necessarily a bad thing, from a criminal law perspective, if it meant that there was a single central store which was accurate. It made our life much easier to just go to one place rather than having to wonder if there was information in several places.
The same approach was adopted on the second call but I can recall, by the third call, there was some form of change proposed. I don’t remember, I’m afraid, exactly what the change was, but I do remember saying on the call “No hold on, you still have to keep a central record”, and making the decision that I would ask Mr Clarke to prepare a formal advice to Post Office, so that it put absolutely in black and white their obligations and confirming, effectively, what he had told them at the very first meeting. The advice that they’d had accepted and acted upon to set up that Wednesday morning call.
I was actually concerned that Post Office had accepted that advice and acted upon it, but in my mind, it was the actions of the civil lawyers that were now trying to water that down and move away from that situation and I’m afraid I took the view that that was – must have been the actions of the civil lawyers having an influence there because Post Office had accepted the advice that Mr Clarke had given to set up that call, to have a central hub.
I took the view that they’d accepted that advice and were acting in good faith to do that and, therefore, formed the view, rightly or wrongly, that it must have been then at the function of the civil lawyers, the effect of the civil lawyers, who were then trying to pull away from having that central hub and I considered that, by the time we got to the third Wednesday morning call, to start having a position where we’re not going to have anything in writing, that did worry me, that I was concerned about that, and then this followed on, this conversation followed on very soon after that.
Mr Blake: So let’s break down that telephone call at 6.00 pm on the 31st. First of all, did Jarnail Singh tell you that this was on legal advice or did you not have that conversation? You’ve said a number of times that it was on the advice of the civil lawyers, is that an assumption or something you were told –
Martin Smith: Sorry, no. I assumed, when I was talking to Jarnail Singh that it was the advice of the civil lawyers to move away from having everything – anything in writing. Because we’d gone from having – sorry, we’d gone from having a situation where minutes weren’t going to be circulated but a central record was going to be kept, notes were going to be kept. I was expecting some form of like minutes or a spreadsheet or something that would be documenting the issues arising in accordance with Simon Clarke’s advice, which had been accepted.
So the second meeting took place. Again, there was the same sort of discussion at the beginning but, by the time of the third call, it was a case of there being some suggestion that we’re not going to do things in this particular way any more. I can’t remember what it was, and –
Mr Blake: The words used here are “scrapped”. Now, from your understanding of that telephone call, was it that notes or typed minutes were to be stop or were they to be destroyed?
Martin Smith: To be destroyed.
Mr Blake: Was that your clear understanding from that conversation?
Martin Smith: Yes.
Mr Blake: We know from Mr Clarke’s Advice he uses the word “shredded.”
Martin Smith: Yes.
Mr Blake: Do you know where that came from?
Martin Smith: I can only assume it’s arising out of the conversation that I had with Mr Singh.
Mr Blake: Is that something you recall from your discussion with Mr Singh?
Martin Smith: Not at this point in time, no.
Mr Blake: So you don’t recall the specific word “shredded” but you do recall that typed minutes were to be destroyed rather than there was going to be some sort of stopping taking future minutes?
Martin Smith: No, that was very much my understanding, that Mr Singh told me that – the understanding that I had was that Mr Singh told me that the minutes were to be destroyed. I can’t remember the exact phraseology, I’m afraid, it was 10 years ago.
Mr Blake: Were to be or had been, there’s a big difference between the two?
Martin Smith: I was under the impression that the instruction had gone out and that they had been.
Mr Blake: Instruction from whom to whom?
Martin Smith: The information that I was given that it was Mr Scott, John Scott, Head of Security, who had sent that instruction out. To whom – I believe it was – I’m hesitant here because there are a number of – there were a number of people named David and I’m thinking it was either David Pardoe or David Posnett but I’m afraid I can’t. It was a long time ago.
Mr Blake: Did you understand that Mr Scott had received advice in respect of that matter or that he was acting on his own instigation?
Martin Smith: I had no idea. I had no idea. I was concerned by that third Wednesday morning call that somehow there was a plan to change things. I didn’t like that, and then –
Mr Blake: What was it that happened at that Wednesday meeting call that was of significance?
Martin Smith: There was – I was left with a distinct impression that Post Office were no longer wanting to keep a record of the calls, and I can recall saying, “No, you must still keep a central record”. I don’t know if you have my –
Mr Blake: You say Post Office, who at the Post Office?
Martin Smith: I think that was information that came from Rodric Williams. I think it was Rodric Williams who said that because I think I said, “Rodric, you still need to keep a central record”, and I remember not being very happy about it and thinking that this is one for Simon Clarke.
Mr Blake: Civil lawyers were present at that meeting. Did they have any input, as far as you were aware?
Martin Smith: I don’t recall, I’m afraid and I don’t have my notes from those meetings.
Mr Blake: I might just take you to one more document before we finish for the day. Can we please look at POL00139746. This is an email from Jarnail Singh to you on 1 August, so the morning after.
Martin Smith: Yes.
Mr Blake: He says:
“Martin
“I know Simon is advising on disclosure.”
So it seems as though during your conversation there was a discussion that Simon would be advising.
Martin Smith: Yes, I’ve told him that clearly this – the disclosure situation in criminal law is very different to that in civil litigation, you know, a central record needs to be written – needs to be kept and, you know, that’s the position.
Mr Blake: It says:
“As discussed, can he look into the common myth that emails, written communications, etc, meetings. If it is produced it’s then available for disclosure. If it’s not then technically it isn’t? Possible true of civil cases NOT CRIMINAL CASES?”
I mean, those words there seem to reflect the minutes that we saw from Mr Parsons –
Martin Smith: Yes.
Mr Blake: – the words from him. What did you understand Mr Singh’s position to be or what was he asking for here?
Martin Smith: Well, I was a little puzzled when I received this because I’d already told him the previous night that, you know, we weren’t getting involved in the civil litigation side of things and, whilst the civil lawyers may not want things in writing, you know, it’s the information that matters, and you have to have a central record.
Mr Blake: “Common myth” –
Martin Smith: Yeah, well –
Mr Blake: – was that amongst the Legal Team, or something else?
Martin Smith: I have no idea where he got that from, absolutely no idea. What I do know is that Mr Parsons had been talking from a civil perspective and I don’t know whether Mr Singh had been on that same page and assumed that was the position in criminal law too, but I remember pointing out to him on that phone call the previous night that I was actually getting quite concerned because Simon Clarke’s advice had been accepted. It had been watered down slightly but in a way that I could live with and then, of course, there was now going to be a further change, which I was actually quite concerned about and, therefore, I was asking Simon to further advise.
Mr Blake: Thank you. Sir, that could be an appropriate time to stop. We’ve been going for a long time today.
Sir Wyn Williams: Yes, indeed.
So what’s the programme tomorrow? We’ve got Mr Aujard returning, yes?
Mr Blake: We do. That should be for no more than an hour, I believe.
Sir Wyn Williams: Is that happening first thing?
Mr Blake: Yes –
Sir Wyn Williams: That’s happening first thing.
Mr Blake: – at 9.45 and then Mr Smith will come straight –
Sir Wyn Williams: Then continue?
Mr Blake: Yes.
Sir Wyn Williams: All right, fine.
I’m sure Mr Smith you know that you shouldn’t discuss your evidence overnight, so please don’t do that.
I’ll see you in the morning, probably at around 10.45.
The Witness: Thank you, sir.
Sir Wyn Williams: I’ll see everyone else at 9.45. Thank you.
Mr Blake: Thank you, sir.
(4.09 pm)
(The hearing adjourned until 9.45 the following day)