2 May 2024 – Christopher Aujard and Martin Smith
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Christopher Aujard
CHRISTOPHER CHARLES AUJARD (continued).
Mr Stevens: Good morning, sir, can you see and hear me?
Sir Wyn Williams: Yes, I can, thank you very much.
Mr Stevens: Thank you, sir. First, we will be hearing from Mr Aujard. We had him in last week and there are Core Participant questions remaining. Sir, you’ll be hearing from four sets of Core Participants: first, Ms Page, who estimates will be up to 20 minutes; then Mr Moloney, who estimates 15 minutes; then Mr Stein, who estimates 15 minutes; and then Ms Oliver who is between 10 and 12 minutes.
Sir Wyn Williams: Right.
Mr Stevens: Then, after that, we’ll hear back from Mr Smith. We have Mr Aujard today attending by video remotely. Can I just check, Mr Aujard, can you see and hear us?
The Witness: Yes, I can, indeed.
Mr Stevens: Thank you, sir. I think that’s –
Sir Wyn Williams: Thank you, Mr Stevens.
Can I just remind you, Mr Aujard, that you’re still on oath, even though there’s been a break between you starting your evidence and now completing it this morning. So over to Ms Page first.
Mr Stevens: Thank you, sir.
Questioned by Ms Page
Ms Page: Thank you, sir.
When you joined Post Office in autumn 2013, it was in the midst of a legal crisis, wasn’t it?
Christopher Aujard: As it was explained to me at the time, it was to take on a mediation – help with the Mediation Scheme. I don’t think that the words “crisis” were used either in the interviewing process or as and when I joined.
Ms Page: Did you identify it as a crisis when you joined?
Christopher Aujard: That said, it became apparent, as my time at POL continued, that there was a lot of scrutiny around the Mediation Scheme, in particular, and that that was – although that was occupying some of my time, it was by no means the vast majority of my time. But the direction that I was given by Paula and Alice Perkins upon joining was that I was there as a Corporate General Counsel and this – I don’t believe the words “crisis” was used at any time, certainly not in the first sort of six months or so.
Ms Page: Whether or not anybody else used the word “crisis”, you must have recognised, as a lawyer, that there were considerable legal challenges facing Post Office –
Christopher Aujard: Yes, indeed. Yes, indeed.
Ms Page: – and your task as General Counsel was to make sure the Board had clear advice on what they ought to be doing according to the law, yes?
Christopher Aujard: Yeah, one of my tasks, yes.
Ms Page: You ought to have been the back stop, the brake, on a natural inclination to cover up problems, hide them away, move on?
Christopher Aujard: Part of my role is to be transparent and clear with the Board and inform them as to information that crosses my desk that they ought to know.
Ms Page: At paragraph 393 of your statement – no need to bring it up – you say this:
“The overall misunderstanding of the size of the issue led to the approach taken by Post Office when challenged, which was that ‘There is no problem here’, a comment that was, in retrospect, made by way of assertion and possibly in reliance on the presumption that a computer operates correctly unless shown otherwise, rather than by reference to more exhaustive investigations. This inevitably led to a situation that was more adversarial and less cooperative than it perhaps needed to have been, as well as one that did not identify the problem quickly enough.”
Let’s get real here, Mr Aujard. There was no misunderstanding of the size of the issue, was there? The Board had notified the insurers of a litigation risk, and they were asking for advice on their personal liability. So it’s not about a misunderstanding of the size of the issue; it’s what you say next that’s key, isn’t it: it was a deadly presumption at work. The Board desperately wanted to believe that the system was working, didn’t they?
Christopher Aujard: If I could answer that question as follows: in terms of the size of the problem, that, I believe, is a reference to a comment I make earlier in the witness statement about the Mediation Scheme and the size – of the number of applicants that applied to that, which, although more than the Board expected, was somewhat less than one would have anticipated, if there was a widespread systemic error. That’s at least I think how the Board saw it.
In terms of the presumption, I believe – and I’m not sure on what basis this belief is held – but I believe, it’s either from Linklaters or from Bond Dickinson or possibly Cartwright King, that there was a belief within POL that there was a – that the system worked as it should in all circumstances until proved otherwise. So absolutely correct, there was a presumption at all levels within POL; that is correct.
Ms Page: As you accept, this led to needless adversarialism?
Christopher Aujard: As I said in my statement, that led to assertion, rather than detailed – perhaps a detailed review.
Ms Page: Lord Arbuthnot has said that he believed relations with Post Office became “less open and more combative” after you became General Counsel; what do you say to that?
Christopher Aujard: So my involvement with Lord Arbuthnot was very limited. I believe I had maybe two meetings with him, possibly three but I believe it was two, and I can understand why, from an external perspective, he might draw those conclusions.
They were, however, I think, as a result of the actions taken in relation to the Mediation Scheme and those actions were very much directed by both the Sparrow subcommittee and the Board, as was seen in my evidence last week.
Ms Page: Is the reality that your arrival, timed with the Board’s reaction to and adjustment to the Clarke advice and the very serious implications of that? The POL Board was going into cover-up mode and that was the mood and the tenor of the leadership team that you were joining?
Christopher Aujard: If it was that, I certainly didn’t recognise it at the time, and I certainly would struggle to put my finger on specific instances of someone engaging in cover-up behaviour at the Board level, as a Board.
Ms Page: Well, let’s look at a few documents and I’ll start, please, with an email. It’s about a report into John Scott’s department. Now, John Scott is somebody who reported to you, isn’t he?
Christopher Aujard: Yes, indeed. I took over his reporting line when I joined POL.
Ms Page: Your statement says that you had no concerns about him?
Christopher Aujard: In his capacity at – in the role he was fulfilling at the time, which was principally in relation to physical security.
Ms Page: Yes. Well, that’s perhaps an important caveat, isn’t it, because, if we have a look at a document, it was – I don’t know if you accept this, whether I need to show you the email, but it was shown to you in January 2014 by Mr Ron Warmington, and it’s a document that makes summary severe criticisms of Mr Scott’s department. Do you accept that Mr Warmington gave that to you in January 2014?
Christopher Aujard: Yes, I believe it’s a document I asked Ron for and it was a draft report prepared for Susan Crichton and, from recollection, it was heavily caveatted. The most caveat of which saying that he hadn’t discussed any of this or interviewed anybody in that Security team.
Ms Page: Well, nevertheless, let’s have a look at it, shall we? POL00344051. If we just have a look at paragraph 1, it starts:
“POL Investigators and investigations are overwhelmingly focused on obtaining an admission of false accounting from the interviewed SPMR (or employee).
“POL Investigators often appear to have paid scant attention to the interviewee’s assertions of innocence or his/her reference to specific transaction anomalies. They seem to have shown little or no willingness to establish the underlying root cause of any given shortfall.
“This disinterest seems to be driven by the desire to ‘get the money back’ from the SPMR, knowing that a false accounting conviction will provide a relatively inexpensive (to POL) pathway to that goal. In the event that an SPMR has not committed any criminal offence, then clause 12 of the standard contract provides an equivalent pathway to asset recovery using civil law.”
Then if we just go down a little bit to paragraph 3:
“In none of the cases examined so far did any Investigator record anything that indicated that there might be any widespread systemic problem worthy of investigation, despite similar allegations being made by different, unconnected, SPMRs.”
Then if we just go down to 5, as well, please:
“The overwhelming impression gained from reviewing the transcripts of investigative interviews is that the SPMR was viewed as an enemy of the business. The culture within the Investigation Team appears to be one of ‘a presumption of guilt’ when conducting an investigation, rather than an aim of ‘seeking the truth’ (see comments on the consequences of ‘Tunnel Vision’ at the foot of this report).”
Then, lastly, if we scoot down a little bit to the paragraph beginning “By failing to investigate” – sorry, I should have said what page that’s on. I think we may have gone past it. If we could go back up to paragraph 5, please.
Well, rather than scrolling up and down, if I may, I’ll read it out to you and, if I’m wrong, I’m sure I’ll be corrected:
“By failing to investigate those SPMRs’ assertions (or even to pay proper heed to them during interviews), the Investigators have alienated all of them. It is that group (the SPMRs who evidently still believe themselves not only to be innocent but also to have been cheated by POL) who really have become enemies of the business.”
That’s the needless adversarialism right there, isn’t it?
Christopher Aujard: I think the adversarialism I was referring to in the – my earlier comments, which was part of the reflections in my witness statement, was around the attitude taken by POL generally. This, I think, is a specific case of a specific team allegedly behaving in a certain way, as set out in this draft report. And I do agree, this reads as though that team is adopting an adversarial approach to their investigations.
Ms Page: And a failure to investigate, as you also identified in your paragraph 394. That was their job, to investigate, and yet they were failing to investigate. What’s more, this document was identifying the fact that although the same complaints were coming up time and again, nobody was looking at this as a systemic problem.
Now, whilst they were no longer carrying out investigations, this was telling you, was it not, that there were serious concerns over past prosecutions, wasn’t it?
Christopher Aujard: I have no specific recollection of what I thought of the document at the time. However, my belief is that I would have looked at this and asked a number of questions, such as why did Susan Crichton commission it? Was it an attempt by her to remove certain individuals from that team? I suppose the third thing I would have thought at the time is: it is a draft report that is heavily caveatted and would, at some point in the future, had I been a permanent GC and stayed on in the role, require, you know, further investigation to understand what was going on or what had gone on historically in that team.
Ms Page: Well, exactly. This is a document that required and demanded immediate action to make sure that it was properly understood, wasn’t it?
Christopher Aujard: So the document was provided to me by way of a historic piece of background. Here is something that Susan had commissioned –
Ms Page: Did it require immediate attention or not, Mr Aujard?
Christopher Aujard: My view at the time was, given it was marked as a draft document and heavily caveatted, it was something that would have required investigation in due course, had –
Ms Page: In due course, I see.
Christopher Aujard: – had I (unclear) for longer.
Sir Wyn Williams: What, in fact, happened to the document, so far as you were concerned, Mr Aujard?
Christopher Aujard: Sir, I believe this was handed to me by way of just more background information. My recollection is that I would have read it at the time and put it to one side and that would have informed by thinking more fully about the organisation that I’d just joined. Beyond that, I can’t say that I took any further action or I can’t recollect taking any further action in relation to this document.
Sir Wyn Williams: All right. Thank you.
Ms Page: There was another section of your statement I wanted to consider. You and, indeed, the POL Board refer to an “expectation gap” in the mediation process. In clear terms, that meant the Board wanted payouts to be minor, whereas applicants wanted compensation for their very substantial losses, yes?
Christopher Aujard: Correct.
Ms Page: When that was discussed in an off-the-record meeting with Sir Anthony Hooper – and we can bring that up, it’s POL00100335 – he brought that matter to something of a head, didn’t he? In paragraph 2, Ms Vennells opens the meeting and she says that she’s expecting, as we see at the end of that paragraph, there to be outcomes in many cases which might be by “an apology and/or a small gratuitous payment”?
If we go down to paragraph 7, we see your note of Sir Anthony Hooper’s view, which was rather different:
“The quantum of the payments was discussed. [Sir Anthony Hooper] noted that the applicants’ CQRs often painted a very distressing picture, where there had been a loss of livelihood, and other losses. His view was that, should the evidence show that POL had not acted properly, then the amount of compensation payable could be quite material …”
Now, he was telling POL two things: (1) that he might find that POL had not acted properly; and (2) that, if so, POL might owe a lot of money in compensation. Now, in effect, Mr Aujard, that was the death knell for the Mediation Scheme, wasn’t it?
Christopher Aujard: I’m terribly sorry, could you – could I possibly have a look at the date on that note?
Ms Page: Yes, it’s at the top and I believe it’s 24 February 2014. There we have it.
Christopher Aujard: Thank you. So my recollection is that the expression “expectations gap” was in circulation within POL as early as November 2013 and that arose really as a consequence of advice that POL had received prior to my arrival, that it’s – the compensation paid should be paid in accordance with contractual principles, and I believe the expression – the guidance of three months maximum.
Ms Page: The question I asked, Mr Aujard: this was the death knell for the Mediation Scheme, wasn’t it?
Christopher Aujard: The “expectation gap”, which I think you’re referring to as the death knell here, had its roots –
Ms Page: No, I’m not referring to the expectation gap as the death knell. I’m referring to Sir Anthony Hooper’s clear view that (a) POL might not have acted properly and (b), if so, they would owe a lot of money; that was the death knell, wasn’t it?
Christopher Aujard: I don’t believe – I wouldn’t characterise this as a death knell. No, I’m afraid I wouldn’t. The scheme structure was such that the Working Group, which Sir Anthony Hooper chaired, was there for the purpose of ensuring that cases were either mediated or not mediated. The amounts of money or compensation paid really were something that was arranged in the mediation itself.
Ms Page: Well, you accept, don’t you, that, following this advice, it was this that sent the POL Board off to Linklaters and the brief for Linklaters was to find a way to sack Second Sight and end the mediation process, wasn’t it?
Christopher Aujard: I believe the first brief for Linklaters was to examine the subpostmasters’ contract and opine on that.
Ms Page: Quite.
Christopher Aujard: That was (unclear) advice.
Ms Page: You seek to make a distinction in your statement between, on the one hand, the litigation risk and, on the other hand, the risk that Horizon was, in fact flawed, don’t you?
Christopher Aujard: At various points I comment on both, yes.
Ms Page: That’s really the sort of distinction that gives lawyers a bad name, don’t you think?
Christopher Aujard: In advising the Board, I thought they needed to be advised on all the risks that they were presented with.
Ms Page: It’s not a useful distinction, is it? The risk that a claim will be successful is inextricably linked to the question of whether what the allegations are saying is true?
Christopher Aujard: That’s absolutely correct. Yes.
Ms Page: Let’s put the notional risk into the real world. When faced with the risk that Sir Anthony Hooper might find against POL, the Board decided to spend a lot of money on Linklaters and then Deloitte, rather than continuing to spend money on Second Sight, didn’t they?
Christopher Aujard: I don’t recognise that as a decision the Board made.
Ms Page: Well, that’s, in effect, what happened, isn’t it?
Christopher Aujard: So the Board, in addition to retaining Second Sight and paying for their work to support the Working Group, also commissioned the work from Linklaters and Deloitte; that is correct, yes.
Ms Page: The trouble with accepting the inextricably bound nature of the two risks is that POL would have had to accept the possibility of admitting fault, wouldn’t they?
Christopher Aujard: In connection with a mediation matter, is that?
Ms Page: Yes.
Christopher Aujard: Yes. Not necessarily, no. I think the mediation was structured so that there could be examples where POL agreed that it had failed in some way, perhaps in a training sense or through another matter, and that would lead to a successful outcome of the mediation. Indeed, there were a number of cases that went through the Mediation Scheme that did have successful outcomes.
Ms Page: Sir, if I’m allowed, I would like to take the witness to one last document but I’m conscious of the time.
Sir Wyn Williams: If you assure me that this will take no more than couple of minutes, you can do it, Ms Page.
Ms Page: I’m very grateful.
It’s POL00124350. This is a letter that you sent to the CCRC on 5 June 2014 and it purported to be a summary of the Altman review. I think you’ve seen it quite recently?
Christopher Aujard: Yes, indeed. Last night, thank you.
Ms Page: This appears to have been originally drafted by Susan Crichton before she left; is that right?
Christopher Aujard: I believe it was originally drafted by Bond Dickinson from the bundle I’ve been provided with.
Ms Page: Well, you picked up on it following a chaser, if you like, from the CCRC; is that right?
Christopher Aujard: Yes, the chaser is unclear to me whether it was an email to Susan’s email account that somebody picked up but it’s clear from the context that they were unaware that Susan Crichton had left, so that’s quite possible.
Ms Page: Now, this purports to be a summary. It’s devoid of any mention of the issues which the CCRC really needed to know about, isn’t it? It’s devoid of any mention of the Clarke Advice, correct?
Christopher Aujard: That is correct. It doesn’t mention the Clarke advice.
Ms Page: It’s devoid of the concern that Mr Jenkins had given misleading evidence, isn’t it?
Christopher Aujard: That’s correct.
Ms Page: That was indeed mentioned by Mr Altman repeatedly.
And it’s devoid of any mention of the case of Seema Misra, isn’t it, mentioned some 15 times in the Altman review?
Christopher Aujard: That’s correct.
Ms Page: You accepted from Mr Stevens that the content of the Clarke Advice was startling. There’s nothing of that startling nature here, is there? This a bland reassuring letter, aimed at making sure it would all just go away; do you accept that?
Christopher Aujard: So the letter was in response to a specific request aimed at Susan, which I picked up, and it asked about progress with the review matters –
Ms Page: The progress that you set out here is all peachy, isn’t it; everything is fine?
Christopher Aujard: So this is the advice I had at the time from Brian Altman and Cartwright King. The advice that you’re referring to earlier, the Cartwright King advice, I believe, of 16 July, was not something that was made visible to me for – during my time at POL and it wasn’t raised with, I suppose, Bond Dickinson, who drafted this letter, or others. So this letter was attempting to respond to a specific request on a matter that they’d been dealing with Susan with.
Sir Wyn Williams: Can I be clear, Mr Aujard, the advice by Mr Clarke which gives rise to the criticisms of Mr Jenkins, that’s dated, I think, 15 July. I just want to be clear; are you saying that during the whole time that you were working at the Post Office, you did not see that advice?
Christopher Aujard: No, sir. What I’m saying is that, in my time at the Post Office, I was reliant on Cartwright King to advise me as to actions I should be taking in respect of the events that had occurred during –
Sir Wyn Williams: So you were aware of the advice?
Christopher Aujard: I believe, sir, I saw the advice. It was appended to a briefing document that was provided to me on the second day I arrived at the Post Office.
Sir Wyn Williams: Right. Well, that’s what I thought. So that’s why I couldn’t quite understand the answer to Ms Page’s question. But the plain fact is: is your evidence that this is a document to which you put your name but which was drafted by others; is that it?
Christopher Aujard: So this document was – from looking at the bundle, sir, looked as though it had been prepared by Bond Dickinson with blanks in there for the number of cases going through the system. When the follow-up email arrived from the CCRC, those blanks were completed and this document was dispatched.
Sir Wyn Williams: This is my question, as opposed to Ms Page’s, but you did not think about the context of this letter independently, you just signed it, or did you consciously understand what it was saying and that was, you thought, an appropriate response to the CCRC?
Christopher Aujard: So I think it reflected the totality of my understanding of the issues at the time, and those – that understanding would have been informed by discussions with, principally, Bond Dickinson, but also, to some extent, Cartwright King.
Sir Wyn Williams: All right. Is that it Ms Page?
Ms Page: Thank you, sir.
Sir Wyn Williams: Mr Moloney.
Questioned by Mr Moloney
Mr Moloney: Thank you, sir. Mr Aujard, I’d like to ask you about remote access, if I may.
In 2014, the issue of whether Fujitsu was able to alter Horizon data, without the knowledge of the postmaster, was very important to Post Office, wasn’t it?
Christopher Aujard: Yes, indeed. Yes.
Mr Moloney: In fact, it went to the heart of the integrity of Horizon as an accounting system, didn’t it?
Christopher Aujard: I think two issues went to the – essentially, yes. Yes, sorry. Correct.
Mr Moloney: Second Sight was pushing hard for clarification of the position as to whether or not remote access was possible in general terms?
Christopher Aujard: Yes.
Mr Moloney: You emphasised the importance of the issue at the Board meeting of 30 April 2014, when Deloitte had been commissioned to review Horizon?
Christopher Aujard: That’s right, yes, yes.
Mr Moloney: Following that, you were also instrumental in ensuring the change order for Deloitte, which asked them to investigate the Second Sight July 2013 concern that, effectively, branch ledgers could be amended remotely without visibility of the postmaster?
Christopher Aujard: Yes, I asked them to investigate that in the revised set of instructions.
Mr Moloney: Because that was requested by Deloitte on 6 May 2014 and you actioned it on 15 May 2014?
Christopher Aujard: Correct, yes, with the Board’s approval, yes.
Mr Moloney: That was, of course, in keeping with what you’d specifically raised during the Board meeting of 30 April?
Christopher Aujard: Indeed, yes.
Mr Moloney: Yes. Post Office had been trying to get to the bottom of the issue with Fujitsu, so that it could answer the questions raised by Second Sight independently of Deloitte, hadn’t it?
Christopher Aujard: Yes, that may have predated me. I have no recollection of there being an ongoing dialogue with Fujitsu during my time at POL, at that point, anyway.
Mr Moloney: Can I just ask you to have a look at one document. It’s an email, it’s dated 9 May 2014 and involves Mr Andrew Parsons from Bond Dickinson, Mr Rodric Williams and Angela van den Bogerd. The reference is POL00304478. That’s POL00304478. If you could just focus in on the top of that, please, Mr Aujard.
This is Andrew Parsons to Angela van den Bogerd:
“I [have] spoken to Rodric. The interim answer to SS question is …”
It says:
“As requested at the [Working Group] meeting Post Office are asked to produce a formal certification that it is not possible for anyone to access Horizon/Horizon Online and amend transaction data without the knowledge of the subpostmaster or their staff.”
The answer that was being given was:
“It is not clear what is meant by ‘formal certification’ but enquiries have been made of senior personnel at Fujitsu and in Post Office’s IT Team. There is no functionality in the Horizon system (through either a front-end terminal or back-end server) to edit or delete transaction data once it has been transmitted from a branch to the central branch data centre. The transmission of this is that encrypted, transferred to the branch data centre and then stored in a separate audit server where they are sealed using industry standard secure protocols to ensure the data’s integrity. Although it is possible to input additional transactions into a branch’s accounts (eg by way of say a transaction correction), a [subpostmaster] will always have visibility of these extra transactions as they are shown separately in the branch’s accounts. A more detailed note will follow on this subject but this won’t be ready before the fact file needs to be submitted.”
So this 9 May 2014, and the position being adopted by Post Office and, essentially, no deletion could occur without it being apparent to the postmaster.
On 23 May you receive the draft Deloitte report, yes?
Christopher Aujard: Correct.
Mr Moloney: A report with 72 pages long, you may remember, including the appendices, so not a particularly long report. Can I just take you, please, to your recollection of the contents of that report, as set out at paragraph 254 of your statement. I don’t know if we’re able to bring that up for Mr Aujard so that all can see it. Paragraph 254, that’s great. I’m very grateful to the document manager for the hard work I’ve caused her there.
This reads, just going down, just reading down:
“In the final draft version of the board briefing dated 4 June provided to me there is reference to the issue mentioned at paragraph 243 above, although it appears to be dated in different and much more formal terms. In the section 4.2 headed ‘Specific Comments – Other Key Controls (Summary)’, Deloitte pass comment on what they refer to as ‘Matter 3’, namely the test proposition that ‘Baskets of transactions recorded by the audit store are complete and “digitally sealed” to protect their integrity and make it evident if they had been tampered with’. The headline comment in this regard is as follows: ‘It appears that Horizon is designed so that its Audit Store is a complete representation of the Counter transactions and ordered events, and the data will be kept with integrity for seven years’. In their detailed comments, however, they do go on to say that ‘We have not identified any documented controls designed to … prevent a person with authorised privileged access from deleting a digital sealed group of data and replacing it with a “fake” group within the audit store …’ They do, however, make the point that the audit store physically runs on separate specialist IT hardware which protects the data once it’s written … In addition, they comment that the so-called Horizon ‘feature’ in question has been assured under [Ernst & Young’s] ISAE [report] testing since 2012 …”
So that’s the potential complication, so far as the Deloitte report is concerned. Then, at the next paragraph, paragraph 255, you say, as is referenced in paragraph 217, you worked closely with Lesley Sewell, the then CIO and:
“In relation to technical matters such as these, I [and the other lawyers] would almost certainly have relied on her and her team to decide whether a lack of documentation … was a significant issue, or immaterial. I have not been provided with any papers that assist my memory in this regard but my general recollection is that following receipt of this report it was still understood within POL that changes made to the audit store left an indelible audit trail.”
Then you don’t know the basis of that, is the final line of that paragraph.
After Post Office received the Deloitte report, there was a Project Zebra Action Summary; do you remember that?
Christopher Aujard: I believe that’s the document that I’ve been sent prepared by a Julie George.
Mr Moloney: That’s it and that was sent – I believe you had it before but it was sent to you last night along with an email. The Zebra Action Summary, essentially, was “We have this report, what do we have to do as an organisation to meet it’s concerns?” That was it, wasn’t it?
Christopher Aujard: Correct, it was a forwarding looking piece of work.
Mr Moloney: Yes, entirely. So can we just look at that, please. It’s POL00031409. If we could just focus in on the header. We can see that the authors are James Rees and Emma McGinn, and this is reviewed and signed by Julie George, it’s version 3 and it’s 12 June 2014. So it’s just over two weeks since you received the Deloitte report. It’s about a month since the position was agreed between Rodric Williams, Angela van den Bogerd and Andrew Parsons.
This is draft 3, and you’ve looked at this document, I can perhaps summarise it. It identifies all the concerns that were raised by the Deloitte report and then says what actions should be taken in order to meet those concerns.
Christopher Aujard: Yeah, broadly speaking, that’s correct, yes.
Mr Moloney: Could we go, please, to page 6 of this report, paragraph 4.2.2. 4.2 is “Technical”, so 4.2.1 is “Data Retention”, what’s needed to be done about that, but 4.2.2 is “Data Logging”, and it reads:
“One point raised in this report was that it was possible for someone with privileged access to delete data from specific areas of Horizon. This is always a risk with individuals using admin or power user accounts and is a persistent risk, one that needs to be catered for in almost any organisation.
“Due to the sensitive nature of the information contained in the databases, monitoring of those databases should be put in place using technology to detect and record deletions and administrative changes to the databases. If possible, alerts should be generated for mass deletions and high level risk changes to database schemas.
“Recommended remediation:
“The solution currently in place may be able to undertake the level of logging required within the Horizon solution. It is recommended that the current logging and logs are reviewed on a daily basis.
“This needs to be investigated further and the options on how to handle this defined through the risk management process and based on the solutions already in place or ones that could be procured to handle this.”
That’s signed off by Julie George as version 3 and, effectively, what this says is: there are no controls and we’re going to have to do daily checks to make sure that we know about deletions. This is not about inserting transactions, is it, Mr Aujard, and this is not about balancing transactions; it’s about deleting transactions?
Christopher Aujard: It’s about creating, as I understand Deloitte to put it, fake digital signatures over fake information.
Mr Moloney: Right, it’s also about deleting material, isn’t it? If you want to go back to the start. I mean, I asked you, it’s about deletions, isn’t it –
Christopher Aujard: Yes, in your list of –
Mr Moloney: – and then creating fake material afterwards?
Christopher Aujard: Mm-hm.
Mr Moloney: It’s plain that these people in Post Office understood that data could be deleted and that would not be immediately apparent to the Post Office, let alone postmasters?
Christopher Aujard: Correct. That’s what this implies.
Mr Moloney: Of course, we’ve heard other evidence from Mr Williams that Post Office really only appreciated this after the Swift Review but this is something different. Did you see this document in 2014, Mr Aujard?
Christopher Aujard: I have no recollection of seeing that document. That’s not to say that it either wasn’t described to me or sent to me but I had nothing to make me – jog my recollection in that regard. I would say that, from recollection, either Julie George was part of the team that was tasked with looking at what should happen following receipt of the Deloitte report, again, from recollection.
Mr Moloney: Yes, and were you part of that team, Mr Aujard?
Christopher Aujard: No, I was the Chairman, at that stage, of the Risk and Compliance Committee to receive reports on the –
Mr Moloney: If you had seen this, would it have been incumbent on you to correct what appeared to be the public position of Post Office, in respect of the concerns of Second Sight?
Christopher Aujard: If I’d seen this, I think it would have been incumbent on me to talk to both the Julie George and her boss, Lesley Sewell, and ask what this meant in practice. For example, one of the things I think she comments on is people with requisite access rights. An obvious question, I think, to ask is: are there such people with requisite access rights or are such access rights separated? That was before I was principle. So I don’t – I have no recollection either of taking that action. I may have done or may not. I may have seen this or I may not. I’m sorry that I can’t help on that.
Mr Moloney: So, perhaps to summarise it, you’d have drilled down, you’d have made sure as to whether or not people did have this access. If people did have this access, you would have made it very clear publicly that people did have this access because this went right to the heart of the integrity of Horizon as we established right at the start of my questioning of you?
Christopher Aujard: Would have asked the technical people what this really meant in the real world. Is this is an issue or is this not an issue? That would be my – that – from what I know of my past behaviour, that’s what I would have done, that conversation or more with Julie George – not Julie George – with Lesley Sewell.
Mr Moloney: Lesley Sewell?
Christopher Aujard: Yeah, Lesley Sewell.
Mr Moloney: Okay well let’s have a look at an email –
Christopher Aujard: I –
Mr Moloney: Sorry, go on?
Christopher Aujard: I was going to say: and if I did do that and I missed something that is a matter of deep regret for me, because –
Mr Moloney: Absolutely.
Christopher Aujard: – the public position as set out in the Bond Dickinson-Rodric Williams statement is not consistent, in my view, with the statements here, in circumstances where there is an individual who has the requisite access rights.
Mr Moloney: Thank you very much, Mr Aujard. If I could just move on now, and can we look, please, at POL00346958. I’m very grateful for the focusing in. It’s from Julie George, it’s 17 June 2014, so just a couple of days after the Zebra Action Summary was completed. We can see that this subject line is “Zebra Action Summary version 3”, the version we’ve looked at, and the attachment is “Zebra Action Summary version 3”. It’s sent to Rod Ismay, David Mason, Malcolm Zack and Gina Gould and it reads as follows:
“I have tried to call you, Rod – attached a Draft Summary of actions arising from Deloittes recent piece of work on the Horizon systems.”
“Clearly there is no blame attached anywhere, and this mornings meeting with Chris Day, Chris Aujard, Lesley and Malcolm – focused on what we would need to put in place as an organisation to address overall assurance on all critical systems, starting with Horizon from 1 April.”
It continues:
“Detailing the appropriate industry standards and controls our business should be following against a risk based priority mechanism.”
It continues:
“Rod we would be happy to come to Chesterfield, however, it would be better (more cost effective) if we could have a morning or afternoon in the next week or so at Old Street.
“We 4 will need to be comfortable that we have a plan going forward including indicative costs of undertaking for Risk and Compliance Committee on 21 July, [which of course you chaired, Mr Aujard, as you said].
“We will need to engage with ExCo members …”
Is that the Executive Committee members?
Christopher Aujard: Absolutely correct, yes.
Mr Moloney: We’ve seen their names:
“… attached to verify and agree to support prior to the committee meeting.
“Gina, can you arrange a meeting between Rod, Dave, Malcolm and myself?
“Thanks.”
It would appear from that, Mr Aujard, that you were in a meeting that morning with the reviewer, as well as Lesley – that’ll be Lesley Sewell – and you were focusing on what you’d need to put in place as an organisation to address the overall assurance on all critical systems, starting from 1 April of the following year, presumably, and dealing with the points raised by the Zebra Action Summary.
Christopher Aujard: Yes, there was clearly a meeting in that morning and it’s –
Mr Moloney: You plainly will have seen the Zebra Action Summary that morning and you plainly will have fed in to the need for things to be addressed here, for ExCo to become involved and for Risk and Compliance Committee to sign everything off on 21 July.
Were these recommendations followed and were actions taken to ensure overall assurance on all critical systems starting with Horizon from 1 April?
Christopher Aujard: So my recollection is that the – this ended up being a matter to be discussed at the Risk and Compliance Committee meeting, and tracking was given to the internal Audit Team. The team was tasked with looking at changes that needed to be put in place, in order to ensure appropriate assurance over, I’m imagining, its critical IT systems in the organisation.
But I have no further documentation to show what other actions – what those actions were, other than a record of the fact that there was an agreed course of action in relation to these matters.
Mr Moloney: Did you not think to tell Second Sight, who had just been told a month earlier, that, with that certification, as it were, actually, we may have got it wrong. It may be that they can delete and postmasters wouldn’t be able to see all the deletions?
Christopher Aujard: I think that the – again, from recollection of what I’ve said in the witness statement – the sense from those that were reviewing the Deloitte report was not that this was a critical or a significant matter and I do not know why that is the case. Clearly, the matter was considered and discussed by numerous people internally.
It could be – and I don’t want to speculate but it could be that there were no persons with the requisite access rights, and that was the reason, or there could be other reasons for it.
Mr Moloney: Thank you very much, Mr Aujard. That’s all I ask.
The Witness: Okay, thank you.
Sir Wyn Williams: Thank you, Mr Moloney.
Is it Mr Stein next?
Questioned by Mr Stein
Mr Stein: Mr Aujard, I have a few questions to ask you. Can I start with, please, a little bit about your background. You’d worked in corporate law, mainly in mergers and acquisitions; is that fair?
Christopher Aujard: Correct. My – the reason I was in Post Office was for that purpose, because I was in corporate financial services and that was the role that was described to me predominantly, given the Post Office is a distributor of financial services.
Mr Stein: You’d also worked for individual companies, such as the National Australia Bank, Royal London, Singer & Friedlander, and one stint as General Counsel for a gold mining company; is that correct?
Christopher Aujard: Yes, that’s correct.
Mr Stein: Okay. Now, your experience of working for those sorts of companies were that the boards of those companies were curious, interested, engaged, possibly quite annoying because they’re trying to get hold of you late at night and ask detailed questions before board meetings; is that correct?
Christopher Aujard: Correct, yes.
Mr Stein: In fact, you set out what I’ve just summarised at paragraphs 26 and 27 of your statement at page 12 – I don’t ask you to go to it. What you say about some aspects of matters in relation to the Post Office is that the decision-making process tended to be more data driven in your past employers, rather than based on political concerns, such as how a minister or an MP might react to a given decision within the Post Office; is that fair?
Christopher Aujard: Correct, yes.
Mr Stein: So do we take it from that that the Post Office was oft concerned about how it looked, its image and brand, rather than, more often, the detailed concerns that you’d found in corporate companies that employed you in the past?
Christopher Aujard: In a company which deals with consumers, of course, there is always a brand concern but, in terms of the political angle, that struck me as different, not something that I’d experienced before in other companies.
Mr Stein: Now, the work of General Counsel, and as you’re aware, is to effectively be the senior lawyer bringing together all of the different aspects of legal advice that are required and providing advice based upon that to the Board; is that correct?
Christopher Aujard: That’s part of the role, yes.
Mr Stein: Yes. General Counsel work is involved in diminishing risk to the business and making sure there’s a high standard of legal compliance across the business; do you agree?
Christopher Aujard: Compliance within the legal risk appetite, which is set by the Board typically, yes.
Mr Stein: Yes, all right. Can we have a look, please, at how you dealt with one particular matter. Do you remember that the Working Group was concerned about what was happening or what had happened to subpostmasters’ monies when they paid money into a suspense account and whether that money had been taken into income or profit as part of the Post Office business; do you remember those concerns?
Christopher Aujard: Yes, those concerns, I think, started in mid-to late 2014.
Mr Stein: Sir Anthony Hooper was particularly driven by those concerns and was basically trying to find out where on earth the money had gone; is that correct?
Christopher Aujard: I don’t know whether his concern was to find out where the money had gone; he was concerned to find out how the money was accounted for.
Mr Stein: Well, perhaps that’s a fancy way of saying “Where’s the money gone?” Let’s have a look at a document that deals with the that way you dealt with that particular matter. Can we go, please, to POL00040805.
If we can go, please, to page 3 or 4 of that document and scroll down a little bit further, you’ll see there, at the middle of page 3, that there’s an email from you to Alisdair Cameron, “Subject: suspense accounts”; do you see that Mr Aujard?
Christopher Aujard: I do, indeed.
Mr Stein: Okay. So the first part we don’t need to deal with. You then go on to say:
“As you will see, I really need someone from your team who is technically switched on re suspense accounts, and can handle themselves in front of an adversarial audience.”
Okay? You wrote that. Then you go on to say this:
“As you can imagine, I am concerned that we give Second Sight no more information than is necessary to address the narrow proposition that money that is ‘missing’ from an SPMR account is somehow taken into our suspense account and then appropriated to our [profit and loss].”
Now, you don’t appear there to be suggesting that POL should take an open and enquiring attitude towards these issues; you appear to be, on the other hand, trying to take a less is much better attitude towards these particular issues; do you agree?
Christopher Aujard: I think, I believe, I’m taking the approach that POL should answer their question but not engage in matters which are extraneous to their investigation.
Mr Stein: In other words, can we translate that as your advice as General Counsel to POL was: make sure that POL doesn’t take any risks?
Christopher Aujard: My advice, I think, here is to not – I wouldn’t characterise this advice. This is in the context of a newly arrived CFO, who has limited background on the Mediation Scheme, and the series of questions that have been asked about suspense accounts going back and forth. So I do acknowledge that it is abridged and abbreviated, and it looks – it may be interpreted the wrong way, indeed, it may have been read the wrong way by Alisdair Cameron.
That wasn’t the intention at the time. The intention was to make the clear that this – there was more to this matter than simply a factual request for factual information. I think, as it turns out, my concerns were misplaced about this. But, I think I must have provided the information that Second Sight needed and ensured that the right technical expert was made available.
Mr Stein: All right, in the middle of that long answer, do we take it that you accept that, as the newly-arrived individual dealing with these matters, you were risk averse?
Christopher Aujard: I was – I am a relatively risk averse individual, yes.
Mr Stein: Let’s move on, then, to one remaining matter, I think, which is the – an answer you gave to questions being asked of you by Counsel to the Inquiry, when you were last here. You gave evidence in relation to matters previously on 24 April, and you were asked this – this is about the Simon Clarke Advice of 15 July and the Helen Rose Report, okay?
So to Ms Page you said these words:
“In advising the Board, I felt they needed to be advised on all the risks they were presented with.”
Those were what you said to Ms Page when you answered her questions earlier. What you said to Counsel to the Inquiry about the Simon Clarke Advice – and I will read it from the [draft] transcript – it says this:
“Following a meeting with Paula Vennells, did you inform anyone on the Board about the Simon Clarke Advice of 15 July 2013?”
Your answer to counsel of the Inquiry was this.
“No, I’m afraid that I’d assumed that this advice had been, or at least the contents of it, had been communicated to the Board prior to my arrival.”
Then you’re asked this question:
“Is it the same for this Helen Rose Report?
“Yes, indeed, yes”, was what you said to Mr Stevens, Counsel to the Inquiry.
Now, help us understand a little bit more about what you mean by this. Are you saying that you can think back, now some 10 years, and you can think back to yourself, sitting at a desk somewhere within the Post Office organisation, and you can think back to you assuming that the Simon Clarke Advice on the Helen Rose Report had gone to the Board? Is that what you’re trying to tell us: you can remember assuming something?
Christopher Aujard: No, I think I was answering the question what was my – the question I think I was being asked, at that stage, was did think it – did it occur to me to make the Simon Clarke Advice available to the Board? And I think the – in the circumstances at the time, day two of a new role, with this being an appendix to a large document, I would have thought that that would have been flagged up to me very clearly. So if it hadn’t – if it required further action, absent that being flagged up to me, I would have assumed that there was no further action required to be taken.
Mr Stein: Do you know what on earth you did in relation to this matter at all? Are you just making an assumption, that you’ve assumed something?
Christopher Aujard: I was guided very much by the individuals I was dealing with at Cartwright King as to what the next steps were. So no, I wasn’t just assuming things. I was listening and engaging.
Mr Stein: Well, you’re listening and engaging in a way that seems to completely ignore a red-hot topic of the Simon Clarke Advice, in relation to Mr Jenkins, and you’re listening and concerned attitude in relation to that is not to urgently take it to the Board; do you agree?
Christopher Aujard: As said to the Inquiry when I gave evidence last week, in the normal course of events, I would have expected something which is – that is red hot and urgent to be flagged as such by the individuals briefing me. That is, indeed, the way General Counsels operate. People brief and inform them of – I’m terribly sorry, the lights have gone out here – the – there’s – that is the way the role works.
Mr Stein: But you also have personal responsibility, don’t you? You have responsibility to do your job. You are guided by the regulatory objectives in relation to your work as a lawyer, and to basically say, for you, that you need to take independent decisions on your legal advice; do you agree?
Christopher Aujard: Yes, indeed.
Mr Stein: Right. So where is this that we can see that, in dealing with a red-hot topic, such as the Clarke Advice and the Helen Rose Report, which must surely, you must think, go to the Board. Where do we see your role in that, as being, what, a complete incompetent? Someone that failed to do it? Someone that was so risk averse that you preferred to keep it away from the Board? Which of those is it?
Christopher Aujard: I don’t believe it’s any of those. I believe, as I said to the Inquiry last week, I was – when a matter, as you put it, is red hot, it would have been flagged to me as such on arrival.
My briefing, if you like, on arrival was that the actions that needed to be taken were in relation to the sift reviews and that was the totality of action that needed to be taken. Had there been an indication that further action needed to be taken, I would have expected that to be brought to my attention in very, very firm terms.
Mr Stein: Mr Aujard, you rapidly came to the conclusion, as you and I discussed at the beginning of my questions, that this was an incurious Board, a Board that didn’t operate the way that previous corporate boards that you’d been involved with had worked in the past; they didn’t ask the questions late at night, in calling you irritatingly to get your advice; they didn’t ask for short presentations before Board meetings. So you were aware rapidly, on assuming this role, that this was a Board that barely, it seems, from your evidence, be paying any interest in matters, and yet you didn’t make sure that they were aware of these highs risks. Is that what we should find from your evidence, Mr Aujard?
Christopher Aujard: No, I think what you should find from my evidence is that I retained a dialogue with Cartwright King and they, indeed, were also involved in ongoing collation of data that could or should be disclosed to persons that had been convicted of a criminal offence. And I would very much have expected that this matter, if it was significant, is something that they would have mentioned to me, on not just one occasion but more than one occasion, and that’s not, to the best of my recollection, what happened.
Mr Stein: Mr Aujard, can we say a summary that the position appears to be that the Executive Team within the Post Office was, essentially, the main body for decision making, rather than the Board of the Post Office? Is that what we can take from your evidence, that it was executives making decisions rather than the Board?
Christopher Aujard: No, I believe that would be incorrect.
Sir Wyn Williams: All right, thank you. I think that we’ve explored that enough now, Mr Stein.
Mr Stein: Yes, sir, that was, in fact, the end of my questions but anyway.
Sir Wyn Williams: Perfect. Ms Oliver.
Questioned by Ms Oliver
Ms Oliver: Thank you, sir.
Good morning, Mr Aujard, I ask questions on behalf of Gareth Jenkins.
You gave evidence last week that you had been briefed by Cartwright King as to issues that had been raised in relation to Mr Jenkins; is that right?
Christopher Aujard: Yes, yes.
Ms Oliver: You were aware that he’d been used as an expert witness past criminal prosecutions brought by the Post Office; is that correct?
Christopher Aujard: Correct, correct.
Ms Oliver: You told us that you were aware that an expert in a criminal trial owed a positive duty of disclosure, including a duty to inform the prosecutor of any material that cast doubt on his or her opinion or that could arguably assist the defence?
Christopher Aujard: Correct.
Ms Oliver: Were you equally aware of the duties that rested with the prosecutor who was calling expert evidence?
Christopher Aujard: I don’t know whether I’d be expressly aware but, by implication, that must be the case.
Ms Oliver: Can I, perhaps, outline a few of those for you and you can tell us whether you were aware of them.
Firstly, to satisfy themselves that an expert had been appropriately instructed by the provision of a written, relevant and detailed letter of instruction or terms of reference, setting out the issues and questions the expert was expected to answer. Were you aware of that?
Christopher Aujard: I don’t know if I was aware of it in those terms but I would be something that would follow from the nature of an expert witness.
Ms Oliver: Thank you. Secondly, to provide explicit guidance as to what the expert was being asked to do and what material they were being asked to consider. Was that something you were aware of?
Christopher Aujard: Not in those terms but, again, it would follow from the nature of the expert witness, in my view.
Ms Oliver: Thirdly, to inform the expert as to their relevant duties and to satisfy themselves that these had been both understood and complied with. Was that something you were aware of?
Christopher Aujard: Again, not in those terms, but it must follow from the nature of the overall duty to the court.
Ms Oliver: Thank you. You were taken to the briefing note which reflected the Clarke Advice, which was annexed to it, which I think you were provided with in October 2013. I’m going to try and avoid going to it but do you remember that that set out that it considered Mr Jenkins’ failure to mention the Second Sight bugs, or the bugs that were mentioned in the Interim Report, in expert witness statements breached his duty of expert disclosure; do you remember that conclusion?
Christopher Aujard: I’ve no independent recollection prior to reading the document but upon re-reading it, correct.
Ms Oliver: Thank you. Your evidence last week was that, to your mind, this was a historic issue and you work given assurances by Cartwright King that the issue had been or was being addressed; have I summarised that correctly?
Christopher Aujard: No, I don’t think you have summarised that correctly. I think, when I arrived in the Post Office on 14 October, I was given a large range of briefing material, very, very large range, the role of the General Counsel is very extensive and covered many areas. This was just a component part of that. This particular briefing I received on 16, I believe, October, and my understanding from that was that this was background briefing, it wasn’t – there were no further – there was no further action to be taken, and that the action that did need to be taken was in relation to the so-called Sift Reviews and that was put at the very centre of my attention, upon receiving that briefing. So it wasn’t that I received a briefing that nothing should be done.
The opposite was true: I received, to the best of my recollection, no briefing at all in relation to any ongoing duty that the Post Office had in that regard.
Ms Oliver: So your view that it was a historic issue was your assumption on reading that briefing, rather than being given express assurances?
Christopher Aujard: Assumption would be putting it the wrong way round. It was a meeting – I think the briefings were designed to identify courses of action that I should take as the incoming interim General Counsel. This wasn’t identified as an ongoing action.
Ms Oliver: In your witness statement, you indicate that, in addition to the briefing pack, you were provided with Brian Altman KC’s written advice, dated 15 October 2013; do you remember that?
Christopher Aujard: Yes, I do, yes.
Ms Oliver: Do you recall that, in the course of that advice, he comments:
“I am not clear whether Mr Jenkins was challenged about the non-disclosure to Post Office and, if so, what the explanation was for it.”
Christopher Aujard: I’m not sure I recall that paragraph.
Ms Oliver: We can go to it. It’s POL00006581, please paragraph 148 of that advice on page 47. Thank you. Does reading that paragraph jog your memory in that regard?
Christopher Aujard: Sorry, paragraph 148 or 149?
Ms Oliver: It’s the beginning of 148.
Christopher Aujard: Yes, I can see that paragraph now.
Ms Oliver: Is that something you would have read in October 2013?
Christopher Aujard: I can’t say for sure that I read the entirety of the advice but I’m sure that I would have had looked at the advice and tried to pick out salient points that were – that required further action. Reading this now, I cannot see that there was – that it would have leapt off the page to me that there was an action buried in that paragraph.
Ms Oliver: To the extent that that paragraph makes clear that Mr Jenkins, or at least to Mr Altman’s knowledge, Mr Jenkins may not have been challenged or been able to give an explanation as to the alleged non-disclosure, did reading that advice prompt any concern on your part that Post Office needed to ascertain the circumstances in which Mr Jenkins had been instructed, including obtaining an explanation for him as to the alleged non-disclosure?
Christopher Aujard: Mm, I don’t believe that that paragraph alone would have prompted that conclusion. As I said, it was – upon joining, I was – received an enormous volume of background material. In that context – as the role itself is extremely wide and covers many, many matters, other than the matters that concern the Inquiry today. I think that, in that context, I believe I would have read that trying to understand – I would have imagined at the time I read this, my understanding of what had happened previously was relatively limited and that I had a very imprecise understanding of all the events that had occurred prior to my arrival.
So the answer to your question is: I don’t think that would have prompted a trigger to take any action.
Ms Oliver: Does it follow from your answer that, whether from this advice or from an independent conclusion you were able to draw from all the material that had been brought to your attention, you did not feel prompted to ask any questions of Cartwright King or the lawyers at Post Office as to how Mr Jenkins had been instructed and, specifically, whether he had been instructed as to the expert duty of disclosure?
Christopher Aujard: No, I don’t believe that this paragraph or other matters would have prompted me to ask that question. However, I did ask, I believe, the question: on what basis was he tainted? And I recall my general understanding throughout my entire time at the Post Office was that he was tainted because he knew of two bugs in the system which he had failed to disclose. So I did – I clearly asked a question about why is it that he is tainted?
Ms Oliver: Can we please go to POL00155555, please. This is a note dated 2 September 2013. We now know that it was authored by Rodric Williams. If we can just go down to the bottom of that note, please. On the right-hand side, we see noted there the question:
“What were we doing to instruct GJ?”
We take it from that that that means Gareth Jenkins. On the left-hand side, a list under the words “M Smith”:
“Don’t think he’s ever been advised of his duties.”
When you joined Post Office shortly after this note was written in September, did anyone share with you a knowledge or concern that Post Office had failed to instruct Mr Jenkins properly or that there was, at the very least, a serious question as to whether they had?
Christopher Aujard: I have no recollection of that being shared at the time, or shortly after joining.
Ms Oliver: Would you have expected that to be information that Mr Williams ought to have shared with you, the concerns in this note?
Christopher Aujard: Yes, indeed. I think the general structure of in-house Legal Teams’ General Counsel’s role is that it relies very much on a sort of a full and candid description of matters being disclosed to you by all members of the team, in a sense, without prompting. So I have no recollection of it, I’m not saying I don’t believe that it was mentioned to me at all in those first few weeks at POL or thereafter.
Ms Oliver: Do you agree that, following that mission statement of full candour, the potential failures acknowledged in this note, both in relation to their relevance to individual cases but also because they may give rise to serious questions about the basic competency with which Post Office prosecutions were brought, was so serious that they ought to have been shared with Post Office’s board, with Second Sight, with the Mediation Scheme, with Mr Altman and with the CCRC?
Christopher Aujard: Yes, indeed. I do agree with that. If this had been made as clear as has been made in the course of last few minutes in this questioning, to anyone, I believe, in the Legal team, that the next issue would be who knows how should – what are the implications of this?
Ms Oliver: I am grateful.
If I may be permitted just to ask on one final topic, sir, I hope I can do it in about two minutes. Thank you.
Sir Wyn Williams: Thank you.
Ms Oliver: It’s just to follow up on some questions you’ve been asked about remote access and knowledge within the Post Office in 2014 as to Fujitsu’s ability to insert transactions remotely and, crucially, in a manner which did not require the approval or consent of SPMs. If we can quickly, please, go to POL00108538 and the top of page 4, please. Thank you. This is an exchange between Mr Williams and James Davidson of Fujitsu on 14 April 2014:
“James,
“Could Fujitsu please answer the questions below so that we can respond to a specific challenge put to us by Second Sight in connection with a Mediation Scheme complaint, namely that:
“‘The Andy Winn/Alan Lusher email in the case of Ward …’”
Were you aware that that was a 2008 email that had been identified by Second Sight?
Christopher Aujard: No, I don’t believe I was.
Ms Oliver: But that email:
“’… explicitly states that Fujitsu can remotely change the figures in the branches without the SPMs’ knowledge or authority’”, and there follow a series of questions for Fujitsu.
If we can then, please, go to the top of page 2. At question 2, Mr Davidson is asked:
“Can Fujitsu change branch transaction data without a subpostmaster being aware of the change?”
The answer comes:
“Once created, branch transaction data cannot be changed, only additional data can be inserted. If this is required, the additional transactions would be visible on the trading statements but would not require acknowledgement/approval by a subpostmaster, the approval is given by Post Office via the change process.”
Were you aware of this information being obtained from Fujitsu in April 2014?
Christopher Aujard: I don’t believe that I was copied in on that email chain but I could be wrong. If I was, there was a subsequent change I was copied in on, which concludes with a question and the answer – and I comment on that in my witness statement. So I don’t know if that is the same chain as this or not.
Ms Oliver: Certainly, in this version of the chain, you’re not copied in, although I think you are referred to.
Can we please go to something you were aware of, which was the draft Project Zebra Deloitte report, dated 23 May 2013. That you’ll recall led to the asking of four questions to Deloitte the answers to which formed part of the Board briefing, dated 4 June 2014. If we can perhaps go to that, please. It’s POL00028069. If we can go to page 8 of the document, although it’s internal page 7, and the bottom of the page. Thank you. Under number 3, this document is dealing with the balancing transaction process and it says:
“This is an emergency process accessible only to restricted individuals in Fujitsu which can create transactions directly in branch ledgers. This process creates an identifiable transaction in the ledger verbally asserted by POL staff to be visible to subpostmasters in their branch reporting tool but does not require positive acceptance or approval by the subpostmaster.”
Do you agree that both of these documents from April and May 2014 – sorry, June 2014 – clearly show by then that it was explained to Post Office that a balancing transaction could be done by Fujitsu without requiring the approval or consent of a subpostmaster?
Christopher Aujard: Yes, I agree that this is – references the possibility in circumstances where there are individuals with the appropriate access right, yes.
Ms Oliver: You were taken by my learned friend, Mr Moloney, to a holding response that was sent to Second Sight in light of those James Davidson answers that were given in April 2014, and I think you’d agree that holding response made no mention of the fact that balancing transactions don’t require approval or consent; do you agree with that?
Christopher Aujard: Yes.
Ms Oliver: In light of the limitations in that holding response, was that knowledge about balancing transactions and the lack of approval or consent by subpostmasters shared by Post Office with Second Sight and the Mediation Scheme Working Group?
Christopher Aujard: I don’t believe it was and I believe the reason for that is that it was, as I said earlier, perceived within Post Office that this was a very positive document. Indeed, there was – there were proposals to publish it and make it widely available, which were unhappily not proceeded with due to restrictions imposed by, I believe, Deloitte. So to answer that question precisely, it was known but it was – the understanding of the implications to this are quite – were quite different then to what they are today, and the reasons for that, I’m afraid, I just do not know.
Ms Oliver: Okay, do you think it should have been shared at the time?
Christopher Aujard: I believe, knowing what we now know about Horizon and the matters that have come to light and with the benefit of hindsight, this document or this particular finding should have been, yes, indeed.
Sir Wyn Williams: I don’t think you need hindsight, do you, Mr Aujard, to be able to say that when Second Sight asked the Post Office a specific question which requires a clear and specific answer, they should be given it?
Christopher Aujard: Yes, sir, that’s correct. Sorry, I was referring more generally to the rest of the world.
Sir Wyn Williams: All right. I think that concludes the questioning for you, does it not, Ms Oliver?
Ms Oliver: It does and I’m sorry to have gone over time, sir.
Sir Wyn Williams: That’s all right.
So thank you for your very long witness statement, and thank you for attending twice to give evidence to the Inquiry. I’m grateful to you. So, Mr Stevens, shall we break off for our morning, and I think we’d better make it a 15-minute break now, given the events which have occurred.
Mr Stevens: Yes, sir, and then we’ll hear from Mr Smith.
Sir Wyn Williams: Yes. Fine. So does that make us – what time shall we start, 11.25?
Mr Stevens: Yes, 11.25, sir, thank you.
Sir Wyn Williams: Fine.
(11.07 am)
(A short break)
(11.24 am)
Mr Blake: Good morning, sir, can you see and hear me?
Sir Wyn Williams: Yes, thank you.
Mr Blake: Thank you. Mr Smith has returned and will be with us for the rest of the day today.
Sir Wyn Williams: Yes, of course.
Martin Smith
MARTIN JOHN SMITH (continued).
Questioned by Mr Blake (continued)
Mr Blake: Mr Smith, we left off yesterday after discussing the conversation you had with Jarnail Singh that you said you were in a car, pulled over to the side of the road.
Martin Smith: Yes, I parked up at a suitable opportunity and then attempted to record the latter part of the conversation, given what Mr Singh was telling me.
Mr Blake: You said “record”. Was that on your phone or …
Martin Smith: It was using one mobile phone, my personal mobile phone, to record the conversation that was taking place on my work mobile phone.
Mr Blake: Did you retain that recording?
Martin Smith: I didn’t retain it, no. It was removed from my personal mobile phone before I went abroad. I asked Cartwright King to remove it for me.
Mr Blake: When you say removed it, you moved it onto a different device?
Martin Smith: I left the IT Department working out how to download it.
Mr Blake: Are you aware of whether it was or wasn’t downloaded?
Martin Smith: I believe it was.
Mr Blake: If it still held, will it be held by Cartwright King?
Martin Smith: I have no idea whether it’s still held, I’m afraid. I left Cartwright King some time ago.
Mr Blake: Thank you. The Inquiry will make enquiries about that recording.
Can we, please, look at POL00139747. I’m now moving on to Mr Clarke’s Advice that followed that phone call. If we could start by looking at the second page, please, we can see there Simon Clarke is circulating a draft of his advice. If we scroll up, we can see that you’re one of the recipients. I don’t need to take you to it, you did respond to this with some typographical changes. Are you aware of having made any other –
Martin Smith: I did respond to it.
Mr Blake: You did, yes. I mean, I can take you to it if you’d like to see it but it was just typographical?
Martin Smith: I don’t recall making changes but I don’t dispute that, if you say that I did respond to it, then I did.
Mr Blake: For the record, it is POL00327054 but we don’t need to go to it. There’s a response from Steve Gelsthorpe, who was he?
Martin Smith: He was one of the directors, one of the senior directors, at Cartwright King.
Mr Blake: I’m going to read to you the second paragraph there. He says:
“I have seen [Simon Clarke’s] note. The comment I have is how are we going to impart the advice to the [Post Office] that if there are factions within it who are running around trying to lay off blame for their own shortcomings by lying about the advice they have received then they lose privilege. I thought Simon Clarke’s Advice would cover this. On reflection, it may be something for Andy to raise with Hugh and to note or to confirm in a letter to him.”
Can you assist us with what your understanding was at the time of “factions within the Post Office”?
Martin Smith: I didn’t fully understand that comment made by Steve Gelsthorpe. What I assumed he was referring to was the suggestion being made to Jarnail Singh that, if anyone asked about the destruction of the minutes, ie the central record, they would say that was the advice of Cartwright King. And, of course, that wasn’t the advice of Cartwright King; it was Cartwright King who advised that they should have a central record.
Mr Blake: Was your understanding at the time of that conversation that Cartwright King were being intentionally blamed or that somebody had misunderstood the advice that Cartwright King had given?
Martin Smith: I don’t think it was a throwaway comment, I think it was a comment made that if an enquiry was made about why minutes had been destroyed, that is what would be said. That is why I was so concerned about what I had heard.
Mr Blake: Said in a threatening manner or in –
Martin Smith: Well, it was relayed to me by Mr Singh. So I only had what Mr Singh had said.
Mr Blake: But did Mr Singh say that he would tell somebody or that Mr Scott would tell somebody that Cartwright King had –
Martin Smith: No, it was Mr Singh who had reported to me what Mr David Posnett had said.
Mr Blake: Thank you. Let’s have a look at the advice itself. It’s POL00006799. If we scroll down and over to page 2, please, we can have a summary of information that Mr Clarke says had been relayed to him. He says as follows:
“At some point following the conclusion of the third conference call, which I understand to have taken place on the morning of Wednesday, 31 July, it became unclear as to whether and to what extent material was either being retained centrally or disseminated. The following information has been relayed to me:
“i. The minutes of a previous conference call had been typed and emailed to a number of persons and instruction was then given that those emails and minutes should be, and have been, destroyed: the word ‘shredded’ was conveyed to me.”
Where he says, “the following has been relayed to me” and he says there “conveyed to me”, is that by you or somebody else?
Martin Smith: It would have been by me because this is very soon after the conversation with Mr Singh.
Mr Blake: I think you said yesterday you couldn’t recall the exact words used?
Martin Smith: I cannot recall the exact phraseology that Mr Singh used. I cannot recall how he phrased it. I do recall being quite horrified and, as I say, recording the last part of the – the very last part of the conversation and, as a result of that, I recall travelling to Nottingham, playing it to Mr Clarke and relaying my recollection of the conversation and the concerns which Mr Singh had and which I had.
Mr Blake: Presumably, it’s quite unusual for you to have recorded a client?
Martin Smith: Very unusual. I was so concerned about what I was being told here I – that that is why I used my other telephone to try and record this.
Mr Blake: Were you concerned about the potential impact on Cartwright King and their reputation?
Martin Smith: I was concerned that – it wasn’t a concern about Cartwright King. Well, I suppose I would have been concerned if people were going to make allegations against Cartwright King but I was concerned that the Head of Security at Post Office Limited was allegedly suggesting that the central record be destroyed.
Mr Blake: The second point there is:
“Handwritten minutes were not to be typed and should be forwarded to [the Post Office] Head of Security.”
Again, is that something you would have relayed to Mr Clarke?
Martin Smith: Yes, he wouldn’t have known otherwise.
Mr Blake: The third:
“Advice had been given to [Post Office] which I report as relayed to me verbatim …”
We see there the words used. Again, when he says “relayed to me verbatim”, is that by you?
Martin Smith: I would expect so, yes.
Mr Blake: That is, in fact, very similar to the minute that we saw yesterday, isn’t it, from Mr Parsons?
Martin Smith: It is, yes.
Mr Blake: Was that your intention, to convey the words that had been used by Mr Parsons in that meeting?
Martin Smith: I think this was a general conversation because I was unimpressed with how the approach to the Wednesday morning call was changing and I was also concerned about the conversation I’d had with Mr Singh. So this would have been a general conversation with Mr Clarke.
Mr Blake: So the information you’re providing Mr Clarke with is not just from that conversation you had with Mr Singh but also, for example, the information that you obtained on the 19 July weekly meeting?
Martin Smith: Well, what I discussed with Mr Singh was my perception of how things were changing, so it wasn’t just discussing the report that he had received from Mr Posnett; I was discussing also with him how the landscape appeared to be changing and I wasn’t impressed by that.
Mr Blake: That’s number iv:
“Some at [the Post Office] do not wish to minute the weekly conference calls.”
Who did you have in mind there?
Martin Smith: I don’t know if we had ascribed any names to that.
Mr Blake: Thinking back to the time, who might that have involved?
Martin Smith: Well, I do recall on the third call saying to Rodric Williams that it was necessary to maintain a central record. So I don’t know whether I had him in mind at that particular point, or other people, but I was quite clear, on a third call, that it was necessary to keep a central record and then, of course, my subsequent call with Mr Singh, I think, was either later – potentially later the same day. I think it could have been that evening.
Mr Blake: Thank you. Let’s have a look at the response from the Post Office to this advice. Can we please look at POL00006797. I don’t know if you saw the evidence of Mr Williams or of Mrs Crichton, where we discussed this document?
Martin Smith: I haven’t had time to watch this all the time.
Mr Blake: So this is the response that is in Susan Crichton’s name, I think Rodric Williams may have given evidence that he drafted it. I’m just going to read to you a few small passages. In the first paragraph, it refers to Mr Clarke’s Advice, and it says as follows:
“That advice was prepared as a consequence of statements purportedly made in connection with the weekly conference calls we established to share across Post Office Limited issues identified with the Horizon system.”
If we scroll down, we can see a paragraph there that says:
“Post Office Limited is committed to conducting its business in an open, transparent and lawful manner. Any suggestion to the contrary would not reflect Post Office Limited policy and would not be authorised or endorsed by Post Office Limited. Accordingly, the purported statements referred to in Simon’s note do not reflect or represent Post Office Limited’s position.”
Now, they are referred to there as “purported”. Was it your view that the information that had been conveyed in Mr Clarke’s Advice was simply purported or something that actually occurred?
Martin Smith: I was under the impression that it was – it had actually occurred. Now, if an instruction is sent out and emails have been sent out to numerous people, then, obviously, not necessarily everyone is going to react to them at the same time in the same way but, nevertheless, I was concerned that an instruction had been given and information had been destroyed.
Mr Blake: The commitment there to “openness, transparency”, et cetera, does that reflect your understanding of the Post Office’s approach at that point in time?
Martin Smith: I think my view changed over time. There was certainly attempts to use legal privilege to cut down the amount of information which might otherwise enter the public arena but, at this very early stage, I was certainly of the view that there was going to be a single central hub of information which was going to be accurate and I could understand the position that Post Office would wish to avoid, from a – well, from a publicity perspective and also a civil litigation perspective, of potentially having incorrect information, through supposition or guesswork, entering into the public domain. So –
Mr Blake: From your dealings with Mr Singh at that time, Mr Williams at that time, Mr Scott at that time, do you think that the statement that’s made there from the Post Office was an accurate one?
Martin Smith: Not in relation to Mr Scott, no, because why else ask for the – or instruct that the minutes be destroyed?
Mr Blake: Can we please move on to POL00325492. If we could please move on to the bottom of the second page, there’s an email from Jarnail Singh to Mr Scott and Mr Parsons. It relates to the weekly call and it says:
“John/Andrew
“I understand the remit of the above meeting was to establish a weekly conference call to act as a central hub for all Horizon related issues. Attendees to bring all Horizon related issues that they had encountered – minutes were to be taken, centrally retained and disseminated to those who required the information. Most certainly the [Post Office’s] Horizon expert and QC would require this information.”
Then there’s a list of various issues that had been raised at telephone conferences. If we scroll down, there are a series of questions that are posed in Mr Singh’s email to Mr Scott and Mr Parsons, and he asks:
“Who is retaining this information?
“Who is hunting down the issues?
“What has been the precise problem in each case?
“How was each case resolved?
“The contact details of each attendee need to be circulated among the group.”
First of all, does this sound to you like an email that was drafted by Jarnail Singh?
Martin Smith: No.
Mr Blake: Can you assist us with who might have drafted it? If we scroll up, we can see the recipients.
Let me pose the question slightly differently, then: did Cartwright King draft emails that were sent by Jarnail Singh in his own name?
Martin Smith: There were certainly cases where emails that had been sent to Jarnail Singh could have been or would have been cut and pasted by Mr Singh, but I also had almost daily telephone calls with Mr Singh and would explain my views on things or pose questions, and it was not uncommon for those, then, to appear in an email.
Mr Blake: So is it possible that this email followed either a communication from you by writing or by a telephone call with you?
Martin Smith: It is certainly possible that this email was sent by Mr Singh following a conversation with me because I think I would have been concerned to ensure that the minutes – the central record was being kept.
Mr Blake: It’s sent to John Scott but also to Andrew Parsons and starts with saying, “John/Andrew”. Is there, by this stage, a kind of turf warfare going on between Cartwright King and Bond Dickinson?
Martin Smith: I don’t regard it as turf warfare. I felt that Bond Dickinson were perhaps having too much control over Post Office and that’s what I said to Mr Singh when I was in the car that particular evening, when we discussed the instruction to destroy the minutes that had apparently been given, because my view was that we had, as a firm, advised very clearly that a central record had to be kept. That advice had been accepted by the Legal Team at Post Office. That advice was given by Simon Clarke with myself present at a meeting in Old Street, very soon after the Second Sight Interim Report had been – I don’t know if it had been published at that time but we’d become aware of it, certainly, but that information was imparted to Post Office. Post Office had accepted that and then set up the Wednesday morning call.
And within a couple of those Wednesday morning calls, it’s almost as though that requirement to keep a central record was being watered down. It was being – I took the view it was being overridden, if you like, by civil litigation objectives because, at the very first Wednesday morning conference call, Mr Parsons had been discussing the – and, of course I don’t – as I’ve said yesterday, I don’t agree with those minutes and it’s not a transcript either – but Mr Parsons had explained from previous experience how it can generate nasty surprises when you have to do a trawl of emails across an organisation, and you can find out things that you don’t know and find out things that are incorrect, as well, and I didn’t think, from a criminal litigation point of view, that that would be helpful either.
So I could see that he was advising from a civil litigation point of view but, by the time we’d got to the third conference call and there was a suggestion that, actually, we’re going to change the way we’re doing this – and I can’t remember that call – but there most definitely a suggestion of a change in the way that it was going to be approached, I felt that that was effectively the influence of the civil lawyers.
Mr Blake: If we scroll up, we can see the response from Mr Parsons. In relation to the question “Who is retaining this information”, he says:
“Minutes have been taken of each meeting, along with action points. These have now been collated into the attached weekly report …”
If we scroll down to (c), “What has been the precise problem in each case”, he says as follows:
“To the extent that details about a problem are known these have been captured in the minutes. However, this will always be challenging because the discussions at the meetings can be quite fluid.”
Do you think that that was a full and accurate picture that’s being painted there of recording problems? Do you think the fluidity of the meetings hampered the minuting of those problems?
Martin Smith: I don’t think the meetings were actually that fluid. I think the meetings were actually quite structured. At times, there were issues hearing people because of dogs barking in the background or other noise but, certainly, that didn’t jump off the page at me at the time as anything to be concerned about.
Mr Blake: But looking at this now, does it look to you to be a fair and accurate picture that’s being painted there of –
Martin Smith: Well, looking back at this now, I don’t think the minutes were that accurate. I don’t think I realised that at the time – well, I didn’t realise that at the time because, generally, when minutes were circulated, I simply filed them with a view to – taking the view that that’s the central record and we’ll be instructing an expert in due course who can have access to those minutes.
Mr Blake: Not accurate in the sense that there were typographical issues or not accurate in the sense that they underplayed certain issues?
Martin Smith: Not accurate in the fact that they underplayed certain issues and I came to that conclusion when I was drafting my second witness statement because, although I don’t have the notes from those individual meetings which I was taking myself and, as I said, I took quite detailed notes, I was able to compare the information that Mr – I think it was Mr Bowyer had repeated in certain documents and compare that against the minutes that had been provided, and I had more information than the minutes in certain circumstances.
Mr Blake: Can we please look at POL00323676. This is an email from yourself to Susan Crichton on 19 September 2013. It also relates to the weekly calls. You say as follows:
“Susan,
“Many thanks for your email. I have been considering the position today and I remain extremely nervous about having Fujitsu’s lawyers on the Friday conference call. At the present time only [the Post Office] lawyers and lawyers instructed by [the Post Office] are on the call. If Fujitsu lawyers are on the call they will have a duty to report the entire contents of the call pack to their client.
“Whilst there may be merit in us meeting with Fujitsu lawyers if, for example, they are able to assist with disclosure etc, I think that such meetings should be on an ad hoc basis and with very clear and limited agendas. With a conference call there is in my opinion a greater risk that the Fujitsu lawyers may try to raise issues which we/you would prefer not to be discussed in front of them.”
In reality, was this a concern on your part that, in fact, Fujitsu lawyers would raise things at those meetings that you were concerned about being raised at those meetings?
Martin Smith: No. I was actually concerned that Fujitsu’s lawyers might try and, first of all, push the conversation in directions which were fitting their agenda, rather than Post Office’s, and, quite frankly, I didn’t trust them.
Mr Blake: Were you not concerned that they might bring up issues, such as the reliability of Gareth Jenkins, within those meetings?
Martin Smith: I have no doubt that that would have been probably brought up by Post Office Limited but I didn’t think that it was appropriate for Post Office Limited to discuss that with Fujitsu’s lawyers at that stage. One of the concerns that I had was that I have – I think I have an impression that, in the case of Jishaan Patel, which is a case that we touched on yesterday, that I was told that that witness statement was coming to Cartwright King via the internal lawyers, via Fujitsu’s lawyers and, of course, we know that that witness statement – or I seem to remember that witness statement only made reference to a single bug at Callendar Square in Falkirk.
Now, of course, that is only one very small piece of the jigsaw puzzle and, of course, a lot more has come out since but I was concerned about the involvement of Fujitsu lawyers at that stage.
Mr Blake: Thank you. Mr Smith, are we to understand from your evidence yesterday and your evidence this morning that you were in favour of things being recorded, that you were in favour of transparency and that you, in your work for the Post Office, were not concerned about keeping things off the record?
Martin Smith: I think, generally, the approach changed over time because Post Office were concerned about things unnecessarily going into the public domain and so, whilst we set out with the idea of making sure that everything was properly recorded, and I thought it was being properly recorded, in terms of transparency, I do realise that as the – as time went on, Post Office had, if you like, a preference to avoid things going into the public domain unnecessarily, and that was pretty much driven by, I believe, the civil lawyers and Rodric Williams, who would say, well, this is a mediation case or this is a group litigation case, let’s not make any unnecessary correspondence about this.
I took the view that, well, they’re the experts in civil litigation, I wasn’t going to get involved with that. My concern was that there was a central record.
Mr Blake: Do you think that, over time, you ultimately played a part in that lack of recording of issues to do with Horizon?
Martin Smith: I can’t think of playing a part of a lack of recording of issues.
Mr Blake: Let’s look at some document from 2016. Can we please turn to POL00139681. This is a meeting from 23 March 2016. We see regular meetings in 2016. Are these now litigation meetings, rather than the original weekly meetings?
Martin Smith: No, they are the – well, if 23 March 2016 was a Wednesday, that would have been one of the Wednesday conference calls. They were initially on a weekly basis, then they became biweekly at some point. But, inevitably, there were references on some of these calls to the civil litigation that Post Office was being involved in and I can recall Post Office wanting to be careful about, again, generating email traffic. And I think, at the time, I –
Mr Blake: You’re anticipating the questions that I’m going to be asking.
Martin Smith: Yeah.
Mr Blake: So this was the weekly meeting?
Martin Smith: Yes. Whether it was weekly or biweekly at that time, I don’t know, I’m afraid, but it was the Wednesday –
Mr Blake: Sorry, what was originally called the weekly meeting?
Martin Smith: Yes.
Mr Blake: If we could have a look page 2, please, we have an entry, if we scroll down, from Andrew Winn, and it refers to an issue in Wimbledon – Wimbledon 119001, I think is that a branch number, possibly.
It says:
“… unpaid cheques (stock line on Horizon) – branch challenged why a value showing £2,500 loss when removed. Fault to be created on NBSC kit. To be corrected in the same way to see what effect this has – This theme may date back to 2005. AW [Andy Winn] to ask Wendy Mahoney to progress in his absence.”
Then it says this:
“MS [that’s, I think, you] asked for assurance that there would have been no prosecution based on this type of incident.”
So there’s an incident relating to a discrepancy in a Wimbledon branch and you’re asking for assurance that there wouldn’t have been a prosecution based on that type of incident.
Martin Smith: Yes.
Mr Blake: Yes? Could we turn to POL00140004, 30 March. This is the same issue, the Wimbledon transaction correction issue, and it’s an email from you to Andrew Winn. Andrew Winn was one of our Phase 3 witnesses, he was in the Product and Branch Accounting Team; is that correct?
Martin Smith: I couldn’t tell you, I’m afraid. This a long time ago.
Mr Blake: Do you recall why you were contacting him, specifically?
Martin Smith: Well, I think that the issue having been raised on that call, I wanted to know more information because, ultimately, what I’m still trying to do here is make sure that we have visibility of what’s happening and a central record.
Mr Blake: You say as follows:
“During the biweekly conference call on the 23 March 2016 you made reference to a branch at Wimbledon and explained that transaction corrections had been issued which should not have been so issued and that they had accordingly been ‘undone’. You went on to explain that there was a risk that transaction corrections may have similarly been issued to other branches which may have caused losses, possibly going back as far as 2005.”
Then you set him a number of different questions: an explanation on the precise reason that the transaction corrections had been issued; the value; the effect, et cetera. 7 and 8, you ask whether this is an isolated incident or this is an issue which has or may have affected other branches:
“8. If this issue has affected other branches, the period of time over which transaction corrections may have been wrongly issued and the names of branches affected.”
So it’s an issue that may go back to 2005, we’re now in 2016. Can we please look at an initial response, which is at POL00153939, 5 April 2016. It’s a response from Wendy Mahoney, Case Review Team Leader. She says as follows, she says:
“I’m covering for Andy … at the moment. Please find responses to the first six questions. Questions seven and eight will take slightly longer as I will have to obtain further information from different departments within [the Post Office].”
If we scroll over the page, please, to page 2, we can see her initial responses. If we scroll down, question number 3, where you requested the affect of those transaction corrections on branch accounting, the response was:
“It doubled up the discrepancy from £2,400 to £4,800.”
So quite significant information there about a bug that is doubling the discrepancy in the Wimbledon branch.
Martin Smith: Yes.
Mr Blake: We see there 7 and 8, at that point, had not been answered.
We then go to the further response from Wendy Mahoney, that’s at POL00241095, 26 April 2016. She says:
“Hi Martin
“FSC have now provided an update on questions 7 and 8. Please see narrative and table below. If you require any further information, please let me know.”
Now, it may be that you’re not able to assist us with exactly what this all means because it does look quite complicated, but the first paragraph says:
“I have looked into the unpaid cheque GL for all items that have been posted since 2010, this resulted in 15,000+ items.”
She says they were looked at but then she goes on to say:
“… however system archiving at 13 months meant that a large number were unavailable to investigate.”
So there seems to have been some kind of time limitation on that investigation. Do you recall that at all?
Martin Smith: I’m afraid I don’t recall this, no.
Mr Blake: She then says:
“I then moved on to the actual [transaction corrections] that had been issued … and read individually the text detailing the cause of the [transaction correction]. From this I managed to pull out the details for the archived items.
“Results as below for all [transaction corrections] issues 2010 to current date.”
Then there’s a table underneath and it says:
“Transaction corrections issued not compensated that feature the same issue as Wimbledon listed below.”
There is a list of various branches that had been affected by this issue.
Do you remember being concerned about this?
Martin Smith: No, and I think this fell during a period just after I had left Cartwright King. If we can go back up to the top of the page, you’ll see that the email that – sorry –
Mr Blake: 26 April –
Martin Smith: The one I sent initially was at the end of March and I believe that I left Cartwright King at the end of March, which is, I think, one of the reasons why I copied in Simon Clarke and Harry Bowyer, who were remaining at Cartwright King for a period of time and then, at some later point, we commenced – or we certainly commenced working for Cartwright King on an agency basis. So I think this perhaps left in a gap just after I left –
Mr Blake: So when you say you left, you set up a company with Mr Bowyer and Mr Clarke?
Martin Smith: We did and I remember that I left Cartwright King a month before they did or I believe that I left Cartwright King a month before they did. I think I left Cartwright King at the end of March.
Mr Blake: Okay, well, we’ll have a look and see what capacity you may have been in in attending various meetings. But are you saying that you don’t recall receiving this information?
Martin Smith: I don’t recall this information. I’m not saying that I haven’t seen it at some point but I don’t recall that information and it may be that that may be down to the fact that I left.
Mr Blake: Let’s look at the various meetings that you are present at throughout May and we can try and work out in what capacity. Can we please look at POL00120311. This is a meeting of 4 May and it has you down there as Martin Smith of Cartwright King.
Martin Smith: Yes.
Mr Blake: Were you still at Cartwright King on 4 May?
Martin Smith: So I wasn’t an employee of Cartwright King on 4 May but we were working on an agency basis for Cartwright King.
Mr Blake: Were you still acting for the Post Office?
Martin Smith: Cartwright King was still acting for the Post Office, yes.
Mr Blake: Were you still acting for the Post Office?
Martin Smith: Well, I was certainly attending these meetings. I don’t know whether I had access to my emails at this point in time.
Mr Blake: Were you still acting for the Post Office?
Martin Smith: Well, yes.
Mr Blake: Rodric Williams is down under Legal as well. We see somebody called Shirley Hailstones under Support Services, if we have a look down. Thank you very much. Can we look on page 2, please, under “Wimbledon”:
“SH [Shirley Hailstones] …”
Do you recall Shirley Hailstones at all?
Martin Smith: I recognise the name.
Mr Blake: “… seeking clarification of the figures. MS [which is you] saying that there was limited information available as data only presents for the last year and a half.”
You see, that seems to be a recognition of some of the information in that previous email that referred to data any being held for 13 months.
Martin Smith: Yes.
Mr Blake: Do you recall being in possession of information about limited data being available?
Martin Smith: Well, I must have seen some information but how it came to me I don’t know.
Mr Blake: “The recent data suggests false balance issues and therefore it will be useful to look into older data well.
“SH asking about who should be making the decision about older data. MS [that’s you] saying that RW [I think that’s Rodric Williams] should give the go ahead. [You] will liaise directly with [Mr Williams] outside of the meeting.”
It then says:
“[Mr Williams] is happy with this but also emphasising that this matter is subject to the group action and data could be disclosable. [Rodric Williams] asking for no email traffic on this matter.”
Martin Smith: Mm.
Mr Blake: Do you recall Mr Williams saying “no email traffic” on this matter?
Martin Smith: No, I don’t.
Mr Blake: Do you think that that was a proper request to make?
Martin Smith: If his concern was to avoid emailing various different people and then incorrect speculation, then I could understand why he would it want that in but I was concerned that there was a central record, as far as I was concerned, this was now on the radar and it would be open to an expert instructed to look into this.
Mr Blake: The concern there is that data could be disclosable, therefore no email traffic. Do you think that is proper?
Martin Smith: Again, that’s civil litigation and I took the view that that was Rodric Williams’s domain and nothing for me to comment on.
Mr Blake: Why were you at the meeting?
Martin Smith: Well, this was a Wednesday meeting. So it was collecting information relating to the Horizon system.
Mr Blake: Did you not have any views on whether or not there should be email traffic on a bug in the Wimbledon branch that’s affected a number of different branches?
Martin Smith: The issue had been flagged up and there was information there.
Mr Blake: Can we look at POL00043435, meeting of 18 May. You’re still present there, still referred to as Cartwright King, although, as you say, you may have been acting in your firm with the other two previous Cartwright King lawyers. If we scroll down, please, to the bottom of page 2, “New issues identified”:
“MS [your initials]. Cartwright King.
“Issues/Observations/Comments
“Wimbledon can be taken off this agenda: Martin & Rodric catching up offline.”
It looks very much as though you followed Rodric’s request not to correspond on that issue; is that right?
Martin Smith: It may be that – it does look like that, yes. But, again, as far as I was concerned, this issue had been flagged up and it was now in the central record. If Rodric Williams did not want additional material preparing from a civil litigation perspective, that was his call, not mine.
Mr Blake: Mr Smith, after all that you’ve been through, after all that we discussed yesterday, finding out about unreliability of Gareth Jenkins, finding out about bugs, errors and defects that hadn’t been disclosed in criminal proceedings, proceedings that you were involved in, proceedings that led to the imprisonment of a subpostmaster, finding out about a request from Mr Scott to shred documents or destroy documents, surely you couldn’t have thought, at this point in time, that catching up offline, in relation to an issue about a bug, was an appropriate action to take?
Martin Smith: When it says “offline”, it’s not offline completely; it’s just not simply within this call.
Mr Blake: Is that really your evidence?
Martin Smith: Well –
Mr Blake: There was a meeting, a previous meeting, where Mr Williams asked for no email traffic.
Martin Smith: Yes. Well, at the end of the day, he is the client. He is saying, “I do not want any email traffic”. This has been flagged up, it is now in our database. It is now in the central record.
Mr Blake: You’re having private meetings that no electronic record is being kept of?
Martin Smith: I – well, it wouldn’t be in an email but I would have had notes in my notebook.
Mr Blake: So you were keeping a fully disclosable note of this issue for the purposes of disclosure?
Martin Smith: I was keeping notes.
Mr Blake: Were you providing that to the central hub?
Martin Smith: No, they were my personal notes. I left – the notes that I made at Cartwright King were – remained at Cartwright King. Now, this is after I left Cartwright King but I was still keeping notes.
Mr Blake: So what’s the purpose of the central hub if you’re keeping notes that are kept in your office that aren’t kept in your central hub and that you’re corresponding offline?
Martin Smith: Well, the central hub is to be able to provide information to anyone who needs it. My notes were an aide memoire, so I could quickly look at things.
Mr Blake: You were discussing bug in Horizon that was affecting branches and causing discrepancies?
Martin Smith: But it’s been flagged up in the hub.
Mr Blake: It’s been flagged up but the discussion about it, a discussion about how longer it’s been going on for, whether it affects prosecutions, none of that’s in the hub, is it?
Martin Smith: Not on the basis of this record, no.
Mr Blake: The answer to the questions you were asking earlier, does it affect prosecutions is being dealt with offline?
Martin Smith: I don’t believe that I thought of it in that way at the time because the file review process had been completed, disclosure had been made to those who senior counsel had advised it be made to and we had been informed that we did not need to go looking for cases prior to 1 October 2010. So this was something that had been flagged up. It was something that an expert could opine on in due course.
Mr Blake: Can we look at POL00120321. This is a meeting of 1 June 2016. If we scroll over the page to page 2, now it says:
“MC and RW agreeing this matter can be closed.”
On the minutes, “MC” seems to be Melanie Corfield, who is in the Communications Team. Do you think that might be a typo and it might be your name or do you think that she, in fact, agreed with Mr Williams that the matter could be closed?
Martin Smith: I really don’t know whether that’s a typo or not.
Mr Blake: Would it be odd if somebody from the Communications Team agreed that an issue relating to a bug could be closed?
Martin Smith: I don’t know if Mr Williams had involved that lady in that discussion.
Mr Blake: Can we please now turn back to a document we saw at the very beginning of yesterday, and that’s POL00411347 and that’s the advice you gave in the ongoing criminal matter of Zen Elvins. Could we please turn to page 3. This isn’t 2016, this is 2015, but it’s similarly late in the picture –
Martin Smith: Yes.
Mr Blake: – and this is paragraph 9, so if we scroll up where you advised that:
“Whilst this is not a ‘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 position 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.”
By this stage, so 2015, going into 2016 and those meetings that we’ve been looking at, were you concerned about embarrassment being caused to your client, the Post Office?
Martin Smith: I felt that it was our duty, as instructed lawyers by then, to flag it up.
Mr Blake: Did you think, perhaps, that by 2016, when you were setting up a new firm, that it was important to keep the Post Office on side and to follow orders not to discuss things online?
Martin Smith: I took the view that the civil lawyers would be making decisions in relation to civil litigation and I didn’t question their decisions.
Mr Blake: Thank you. That can come down.
I’m going to move on to a few miscellaneous topics before handing over to Core Participants. The first is remote access. I think we can take this relatively quickly because a number of witnesses have recently been looking at the same documents that we will be looking at but can we start with POL00141471. We’re going back in time now to November 2012. Could we start on page 4, please.
At the bottom of page 4, we have an email from Rachael Panter to Gareth Jenkins and she is seeking his report, Mr Jenkins’ report, in the case of Kim Wylie and it’s urgent because the case has been listed.
If we scroll up, there’s a response from Mr Jenkins, paragraph 3. He says:
“Reading through the Defence Statement I see it does make some specific points which my statement doesn’t currently address. Specifically, the challenges regarding robustness and remote access to the system. Do you want me to try and address those specifics?”
If we can go to page 3, Ms Panter responds, copying you in, and she says:
“If you feel that you are able to deal the issues of robustness and remote access fairly swiftly then I would like you address these points that have been raised so, that we can deal with every area that they have criticised.”
Can you assist us with why you’re copied in? Were you supervising Rachael Panter or working with her on the case of Wylie?
Martin Smith: I don’t believe I was working with her on the case of Wylie. I think that was one that Mr Bowyer was dealing with. Mr Cash, of course, was the – at that point, the partner in charge of the Derby office and the – really the partner in charge of the Post Office department.
Mr Blake: If we scroll up to page 2, please, Mr Jenkins responds and he says:
“Rachael,
“What I propose adding is the following …
“I have been asked to provide a statement in the case of Kim Wylie. I understand that the integrity of the system has been questioned and this report provides some general information regarding the integrity of Horizon.”
There’s then a paragraph that addresses the integrity and I want to look at the paragraph that addresses remote access. It says:
“I … note a comment made about it being possible to remotely access the system. It is true that such access is possible; however in an analysis of data audited by the system, it is possible to identify any data that has not been input directly by staff [at] branch. Any such change in data is very rare and will be authorised by the Post Office. As I have not had an opportunity to examine data related to this branch, I cannot categorically say that this has not happened in this case but would suggest it highly unlikely.”
I think you said in your witness statement that it’s in a small font and you don’t believe you read the –
Martin Smith: I didn’t read that in full at the time, no, and, first of all, it wasn’t a case that I was dealing with and, secondly, it was in a very small font and I think it was also dealt with by Mr Bowyer very quickly.
Mr Blake: When you say it was dealt with very quickly, I mean, that ultimately ended up in the witness statement?
Martin Smith: It did, it did, but I think the response to Mr Jenkins was very timely.
Mr Blake: Let’s move on to the Deloitte report, that’s POL00028062, 24 May 2014. Page 31, please. I don’t know if you were watching Mr Aujard this morning but this is a section, I think, that he was taken to in –
Martin Smith: I saw part of it from the waiting room.
Mr Blake: So it’s the bottom of page 31 and there’s various references there to the ability to insert what’s called balancing transactions:
“A method for posting ‘balancing transactions’ was observed from technical documentation which allows for posting of additional transactions centrally without the requirement for these transactions to be accepted by subpostmasters …”
There are various concerns raised there about the controls that are in place to monitor that.
We then have an advice written by Mr Clarke. That’s POL00021774. This is advice that has Mr Clarke’s name at the end, 27 March 2015. If we scroll down, we can see there, at paragraph 2, the reference there to parts of the Deloitte report. You’ve said that you don’t recall this advice but were you in any way assisting with the drafting of this advice?
Martin Smith: It wasn’t uncommon for Mr Clarke to run an advice past either myself or one of my colleagues to talk through it, to explain his methodology, his thought process. I may have seen it, I don’t recall.
Mr Blake: Often in his advice he writes “We have seen” or “We have done” this or that. Is that because he has discussed it internally?
Martin Smith: I’ve never really given that any thought. It may just be his house style.
Mr Blake: If we turn to page 2, there’s a reference to a telephone call with Rodric Williams and Andrew Parsons:
“… we were informed that the Deloitte report was correct where it identifies a method of posting of ‘balancing transactions’.”
Were you part of that telephone conference?
Martin Smith: I have no recollection of that. I couldn’t say.
Mr Blake: If we move on, please, to POL00029867, 15 July 2015. There’s an email from Andrew Parsons. Now, it’s to you and Simon Clarke and it relates to balancing transactions, so that is the ability to inject transaction data by support staff and it says:
“Martin, Simon
“Before Rodric went on holiday, he asked me to push forward the disclosure piece around balancing transactions.
“I understand that during the [conference] with Brian Altman there was a discussion about doing some further investigations into when [Post Office] had used BTs [balancing transactions] on old Horizon [what we know as Legacy Horizon]. As part of these investigations, we asked [Fujitsu] to explain how [balancing transactions] would work on Old Horizon …
[Essentially] It was possible to do [the] equivalent on [Legacy Horizon].”
He then says:
“It has subsequently been confirmed by [Fujitsu] that searching for [balancing transactions] would in fact be an enormous task, taking several months of work.”
He ends that paragraph by saying:
“On this basis, [the Post Office] is not prepared to commission this exercise unless it is considered absolutely vital and there is no credible alternative.”
Now, given that you can’t recall whether you were part of that earlier conference, that you can’t recall the email from Gareth Jenkins that relates to his evidence on balancing transactions, why do you think it is that Andrew Parsons names you as the primary recipient, the first-named individual on this email in relation to the issue of balancing transactions?
Martin Smith: Well, I may very well have been involved in the call. I just cannot remember it.
Mr Blake: Might you have thought, at the time, that the ability to inject data by support staff was something quite significant?
Martin Smith: I was under the impression that Mr Clarke was reviewing this and advising Post Office in relation to it and I was letting him take the lead.
Mr Blake: What do you think Mr Parsons is saying there “Martin, Simon”? Why would he have the impression that you were at least jointly involved, if not the principal person to contact?
Martin Smith: I was often the point of contact at Cartwright King, whether I dealt with something or not, and it wasn’t uncommon for me to receive something and then pass it through to either Simon Clarke or Harry Bowyer for their attention. And it may be that I was involved, I cannot recall.
Mr Blake: By 2015, you were very experienced. It’s not like you had to follow Mr Clarke in what he did?
Martin Smith: By 2015, this had been going on for quite some time. It was virtually impossible to remember everything that had happened beforehand because this was a whirlwind. I certainly couldn’t recall the issue with Mr Jenkins talking about remote access arising at that earlier stage. That wasn’t something that was springing to the front of my mind. It just simply wasn’t on my radar.
Mr Blake: Is there anything you recall about the Post Office’s approach to remote access during this period?
Martin Smith: I recall Mr Clarke advising that, in order to determine whether or not it was going to be disclosable, further questions ought to be asked.
Mr Blake: Did it cause you any concerns about all those cases that you had been prosecuting over the years?
Martin Smith: Well, I don’t think it did, when I first became aware of the issue, because I didn’t think that anything sinister would be happening. I mean, after all, you know, this is the Post Office, this is Fujitsu; why on earth would you think that things that were sinister would be happening?
Mr Blake: I’m going to move on to the issue of Gareth Jenkins and expert evidence. You’ve addressed it in your statements.
Martin Smith: Yes.
Mr Blake: Were you aware, throughout the period that we have discussed, of the various requirements that are legally in place with regard to the instruction of expert witnesses?
Martin Smith: I have to accept that I wasn’t. Like I said yesterday, we had essentially been a defence firm of solicitors. We had presented cases in court on an agency basis and, as I pointed out yesterday, there is a world of difference between doing that and actually progressing prosecution files. Quite why Cartwright King thought it was appropriate to take on this prosecution work, I really, with hindsight, have no idea because we certainly didn’t have the training for it, and I was unaware of the duties on a prosecutor in relation to the instruction of an expert witness.
Mr Blake: By 2012, you had been qualified for 16 years?
Martin Smith: Yes.
Mr Blake: Do you think it was unusual that you weren’t aware of those kinds of duties?
Martin Smith: I was simply just not aware of the duties on a prosecutor to actually make sure that an expert witness was fully informed of their duties, et cetera. It was clear from when Mr Clarke wrote his advice that we had been seeking reports from Mr Jenkins in a way which perhaps was not – well, undoubtedly was not compliant.
Mr Blake: Did you ever see formal written instructions to Mr Jenkins?
Martin Smith: By “formal”, in terms of a letter setting out all of that, no. Our approach had been that Mr Jenkins had clearly been used as an expert witness in the past by the Post Office. Mr Bowyer advised about the content of a generic expert report, if you like, that should be used as a baseline and we then went from that point onwards and, no, no formal letters of instruction were provided.
Mr Blake: Did you consider whether his witness statements complied with various legal requirements?
Martin Smith: No, I don’t believe I did. I took the view that we’d been advised to obtain a Section 9 statement and that’s what we prepared and we sought to update it in cases in which there was a Not Guilty plea. I don’t believe I gave it any more thought than that.
Mr Blake: At one point, you became involved in discussions relating to the instruction of a new expert or experts –
Martin Smith: Yes.
Mr Blake: – Professor Kramer and Dr Dulay.
Martin Smith: Yes.
Mr Blake: Can we please look at a few documents in relation to that matter. They can be found at POL00148714. If we could start on page 3. How did you become involved in seeking out a new expert?
Martin Smith: I think that probably came out of one of the very early conferences at Old Street, with Susan Crichton and others from the Legal Department. After we’d become aware of the Second Sight Interim Report making reference to bugs, I don’t think at that stage we necessarily knew about all of the information relating to those bugs. But Mr Clarke’s view was that, as they had not been mentioned by Mr Jenkins, it could no longer be – Post Office could no longer rely on his evidence and a new expert would be required.
And I think – from memory, I think it was Susan Crichton asked us to see if we could find a new expert, and I think one of my colleagues actually prepared a shortlist of potential experts, looking at various organisations around the country but then ICL, I think, became the favourite.
Mr Blake: Can we please scroll down to the bottom of this page, it’s an email from yourself to Andrew Parsons, 9 July 2014. You say as follows:
“I would not advise that the experts be instructed to look at the old Horizon system. If the experts were to consider the old system, depending on their findings, disclosure issues could arise in historic cases. In any event cases now being investigated and considered for prosecution will involve Horizon Online, which was result out during 2010.”
Can you please assist us W the first part of that response, with regards to disclosure issues. What did you mean there?
Martin Smith: Well, I think at that time we were being informed that the old – Legacy Horizon was no longer available in any way, shape or form, to be tested and important information relating to its design and functionality was no longer available. I couldn’t see how any expert could actually then say, “Well, we’ve looked at the system and the system was fine”. Any report that they would produce would have to be caveatted incredibly and then, if there is a report that tells Post Office “I’m sorry we cannot say anything about the Legacy Horizon system”, what sort of position does that put Post Office in?
I was also aware that Simon Clarke had advised that the experts should only consider Horizon Online and I believe that Mr Altman, King’s Counsel, gave an advice similarly.
Mr Blake: Mr Smith, surely that second sentence relates to potential issues for cases that had been prosecuted if the experts were to find problems with old Horizon? Surely, that’s the only interpretation you can have of that second sentence?
Martin Smith: I can see how it looks but, no, I was concerned that the experts would not be able to look at the system properly and I could see that there could become all sorts of issues arising if they’ve provided a report that basically said that they could not, for reasons beyond their control, provide any certainty with regard to the old Horizon system.
Mr Blake: Disclosure issues?
Martin Smith: So if there was a report that was provided by Imperial College London, which said that “We cannot confirm that old system was” – and I’ll use the phrase “robust” – then that potentially would have implications in relation to every single prosecution –
Mr Blake: Because they didn’t have enough information to say whether or not the system was robust, because they didn’t have access to the information because it was historic, you think that that could lead to problems with historic cases?
Martin Smith: Well, yes.
Mr Blake: Were you not more worried about the fact that they could investigate the old Horizon system and find a lot more bugs, errors and defects?
Martin Smith: Well, I didn’t think they could investigate the old Horizon system because it wasn’t there to be investigated. It didn’t exist any longer and the information which related to it, I understand a lot of that key architecture information had gone, and I also understood that a lot of information related to historic prosecutions had gone through data retention policies.
Sir Wyn Williams: If you thought that they couldn’t investigate the system because the material wasn’t available, it’s a very odd way to start, by saying, “If the experts were to consider the old system”, isn’t it?
Martin Smith: Well, I think I would have read that as if the experts were asked to consider the old system.
Sir Wyn Williams: Well, come on, now. You’re a lawyer writing to a number of other lawyers and I think I can reasonably infer that you would write reasonably precisely in these circumstances. So why are you beginning this sentence on the premise that there could be a consideration of the old system?
Martin Smith: Well, there could be a consideration to some limited degree but it would be very limited because –
Sir Wyn Williams: You’re adding words, Mr Smith. Those words don’t appear at all in this email.
Martin Smith: Sorry?
Sir Wyn Williams: Why should I assume or decide that you wrote an email which had, more or less, a completely different meaning from the one which is obvious, reading this?
Martin Smith: Well, I don’t think it is different. I mean, there would be disclosure issues which could arise but, in any event, we were now looking at the new system, and counsel had advised that we did not need to go looking for cases prior to 2010.
Sir Wyn Williams: All right.
Martin Smith: That was Mr Altman KC’s clear advice that Post Office did not need to go looking for cases prior to 1 January 2010 and, in those circumstances, I could not see any merit in asking an expert, at considerable expense, contrary to the advice of Simon Clarke, which was to focus simply on Horizon Online, why we would ask the experts to look at a partial amount of documentation relating to its design, and no ability to actually test the system. I could not see that that sort of report would be helpful at all and could see that that would be a nightmare situation.
Mr Blake: I’ll move on to the issue of disclosure post-conviction. We’ve heard a lot of evidence from you about and spent a lot of time on the disclosure during, for example, Mr Ishaq’s trial and during the trial process but I want to move on to disclosure post-conviction.
Can we please look at POL00006581 and the issue is disclosure during the Mediation Scheme and to Second Sight. This document that I’m taking you to is the Altman General Review. It’s 15 October 2013. Can we have look, please, at page 42. Mr Altman records as follows in his advice, he says:
“During the telephone conference of 4 October 2013, the main topic of discussion was the extent to which [Cartwright King] should be involved in exercising a supervisory function over the criminal cases going to mediation, such as Mrs Misra’s case. There is understandable concern that offenders might use the Mediation Scheme to gain information as a platform from which to launch a fresh or new appeal, and so [Cartwright King] wish to exercise a measure of control over the dissemination of information and material during the process.”
Were you part of that telephone conference on 4 October 2013?
Martin Smith: I cannot recall, I may have been. During this time, there were numerous telephone calls on different days.
Mr Blake: There seems to have been a concern from Cartwright King as to cases that they had been prosecuting and potential disclosure to those who had been prosecuted. Do you recall conversations of that nature?
Martin Smith: I don’t. I don’t agree with the way that that’s phrased, if I may say. I can recall that, when the Mediation Scheme was started, it was not ourselves that were raising concern. It was Post Office that was initially raising concern that concessions could be made or throwaway comments could be made, which might provide a Mediation Scheme applicant with some form of ammunition to argue, for example, that the case being presented by Post Office, at that stage, was different to the basis upon which they had been prosecuted, whether that had been by Cartwright King or, indeed, by the Royal Mail Group some time previously.
So I think it was initially Post Office that were concerned about the convicted applicants in the Mediation Scheme and the information provided to them. I think that’s where the –
Mr Blake: So you think that that is wrong there, if it is to be read as suggesting that Cartwright King were concerned about people that they had prosecuted launching a fresh or new appeal?
Martin Smith: I don’t think it’s a case of Cartwright King being concerned about the people that they had prosecuted. As I say, the concern was initially by Post Office in relation to blanket convicted applicants to the Mediation Scheme, irrespective of whom they’d been prosecuted by, and I understood that Mr Bowyer and Mr Clarke were able to understand that concern and, in fact, I think Mr Clarke advised in relation to it.
Mr Blake: Why Mr Bowyer and Mr Clarke? I mean, were you not a three?
Martin Smith: We were a three but the general way that we dealt with this was to have advice being provided by senior counsel. Post Office was –
Mr Blake: You have, throughout your evidence, been referring to Mr Clarke as being senior or more experienced than you. All of the emails that we’ve seen, there isn’t a single one there that seems to distinguish in your seniority or abilities?
Martin Smith: No, that we were – I was generally the main point of contact but I have seen in the papers that have been provided, and I’m sure you will have seen them, there are – there is evidence of me forwarding things to Mr Bowyer to look at. There’s evidence of me forwarding things to Mr Clarke to look at. I was the point of contact and, indeed, in relation to the Mediation Scheme, I think it was agreed that there should be one point of contact at Cartwright King for all of the traffic to go through, and one point of contact at, I don’t know if it was Bond Dickinson or Womble Bond Dickinson at that time, but one point of contact there, so that way it would keep lines of communication clear, rather than different emails being sent to different people.
Mr Blake: That one point of contact was yourself?
Martin Smith: That one point of contact was myself at Cartwright King for virtually everything, irrespective of what it was.
Mr Blake: So, in that case, it’s highly likely that the telephone conference that took place on 4 October involved you?
Martin Smith: It may well have done, I can’t remember it.
Mr Blake: Can we please turn to POL00168949, and can we start page 2, please. This the case of Noel Thomas that’s being looked at. We have heard from Mr Thomas, he was sentenced to nine months’ imprisonment. His case is being looked at in May 2014. You were sent Post Office Investigation Reports, which, in turn, would be sent to Second Sight, and there’s an email here from yourself to Andrew Parsons, and you say as follows:
“Whilst we have advised that as a matter of principle investigation and offender type reports should not be disclosed, I understand that there will be [circumstances] in which it is felt that there is no alternative other than to disclose these. In such circumstances they should be appropriately redacted. If you would like me to deal with that, please let me know.”
So was it your view, as at May 2014, that the investigation or offender reports into those who had been convicted, like Mr Thomas, shouldn’t be disclosed as a matter of principle?
Martin Smith: That was the advice that I received within Cartwright King, yes.
Mr Blake: When you say that was the advice you received within Cartwright King, Mr Smith, you are a lawyer from Cartwright King.
Martin Smith: Yes.
Mr Blake: You are communicating with the client, Andrew Parsons: that is surely your advice?
Martin Smith: It is also my advice but that was the strong views of Mr Bowyer and Mr Clarke and I accepted that and we presented –
Mr Blake: Mr Smith, you weren’t on work experience with Mr Clarke and Mr Bowyer.
Martin Smith: No, I wasn’t but I was aware that they had a substantial amount of experience of prosecution cases, far more than I did, and I was content to follow their lead.
Mr Blake: If we turn over to page 1, please. Mr Parsons says, at the bottom of page 1:
“Thanks – if you could mark on the docs any bits that you refer to be redacted that would be great.”
You respond in the top email, you say as follows:
“Andy.
“Please find attached the Investigation Reports on which I have highlighted in black the parts how much would advise be redacted. Consequently I have also further amended the draft Report in light of the redactions.”
I am just noting here, it’s several “I”s, there’s no “we”?
Martin Smith: It’s not “we” it’s “I”, yes.
Mr Blake: “I would prefer not to let the applicant see the sentence in Diane Matthews’ report of 25 October 2005 which noted that she was ‘… currently awaiting the results of the tests by Fujitsu on the Horizon system’ if those test results cannot be found. Such a sentence may well invite a request for disclosure of the test results. There may also be risk that the applicant will suggest that the investigation Watts inadequate or incomplete. Similar issues could arise out of the comment on page 7 of the draft report; ‘However it appears that the kit was taken by Fujitsu to allow the equipment testing to be undertaken. No documentation is available in relation to this’.”
On what possible basis could those redactions be justified?
Martin Smith: I really don’t. Looking at this with hindsight, I don’t know.
Mr Blake: I don’t think you need hindsight to reflect on this. Perhaps, on reflection –
Martin Smith: On reflection, I was of the view that information which might put into the public arena the sorts of investigation work carried out by Post Office or sensitive methods or opinions should not be disclosed.
Mr Blake: What’s sensitive here? What you’re saying here is that they shouldn’t – they should be redacted because they may lead to disclosure requests. What’s wrong with disclosure requests being made by those who were convicted of criminal offences, some of whom were sent to prison?
Martin Smith: Yes. I clearly got that wrong.
Mr Blake: It’s –
Martin Smith: I mean, I was – as a firm, we took the view that anything which contained the opinion of, for example, an Investigating Officer about a witness or something about a method of investigation or something sensitive, should be redacted but I cannot see here, on reflection, anything which sensibly should have been redacted.
Mr Blake: Wasn’t it part of a culture of withholding information from applicants?
Martin Smith: Not intentionally, no.
Mr Blake: Can we please look at POL00325867. It’s the bottom email from Mr Parsons to Chris Aujard, Rodric Williams, a team at the Post Office, copied to Simon Clarke and you. He says as follows:
“I’ve just spoken with [Cartwright King] about a new [that’s a questionnaire] from Howe+Co that references the Helen Rose Report.”
So these are questionnaires that are filled out by applicants to the Mediation Scheme.
Martin Smith: Right.
Mr Blake: “You’ll return that the Helen Rose Report was retrospectively disclosed in a number of prosecution cases as it drew into question some of the statements made by [the Post Office’s] expert witness, Gareth Jenkins. A copy of the [Helen Rose] Report has made its way to Howe who are now referencing it generally in their [questionnaires]. For example, the [questionnaire] in M060 refers to the [Helen Rose] Report however the [Helen Rose] Report was not sent to this applicant.
“The point of concern is that the M060 [questionnaire] is starting to make the link between (1) the fact that the [Helen Rose] Report makes clear that [Gareth Jenkins] knew of issues with Horizon and (2) the fact that [Gareth Jenkins] never mentioned these issues in his prosecution evidence (see para 53 in the attached). This line of inquiry draws into question the credibility of [Gareth Jenkins’] evidence.”
That’s precisely the line of concern that was raised in Mr Clarke’s Advice the year before that, isn’t it?
Martin Smith: It is.
Mr Blake: It then says:
“The sharing of the [Helen Rose] Report between applicants is potentially a breach of solicitors ethics/contempt of court. However, [Cartwright King] and I don’t believe attacking the solicitors on this point would be of benefit – if anything it may draw more attention to the [Helen Rose] Report.
“Instead, our preferred approach is to try to downplay the importance of the [Helen Rose] Report in any [Post Office] Investigation Reports. We recommend minimising or ignoring entirely the [Helen Rose] Report when responding to [questionnaires].
“If the Investigation Team need guidance on how to address any [Helen Rose] Report related questions, I suggest that they (or the lawyer here at [Bond Dickinson]) addresses these directly with [Cartwright King] on a case-by-case basis.
“Please let me know if you are happy with this proposed approach? Martin, Simon and I are available if you have any questions.”
Do you consider that to be an appropriate approach to the mediation?
Martin Smith: The lawyers at Bond Dickinson were advising Post Office in relation to the mediation. How they wished to deal with individual mediation applicants was a matter for them.
Mr Blake: Why is your name on this email?
Martin Smith: It’s been sent through to us.
Mr Blake: Why does it say, “Martin, Simon and I are available”?
Martin Smith: People –
Mr Blake: Is Mr Parsons entirely wrong, this is a Bond Dickinson affair, not involving you?
Martin Smith: No, we looked at proposed responses to mediation applicants. That was Cartwright King’s role and, as it points out here, the Helen Rose Report started to become mentioned by other applicants. Post Office clearly didn’t wish to explore that with a number of applicants but that was their decision. We were not advising Post Office how to conduct the mediation process and that was – in my understanding, was a matter for Bond Dickinson.
Mr Blake: Mr Smith you had been advising the Post Office for years. We saw yesterday the proposed response to the CCRC, who were interested in matters after the Second Sight Report. We’ve seen in various places that crucial link between the Helen Rose Report, Gareth Jenkins’ evidence, the fact that Gareth Jenkins didn’t mention certain things in his prosecution evidence, that crucial link has not been mentioned by the Post Office, and here there is discussion involving you, as a key contact, seeking to downplay the importance of the Helen Rose Report, recommending minimising or ignoring entirely the Helen Rose Report when responding to questionnaires. Do you think that that was appropriate?
Martin Smith: I’m not aware that Cartwright King were involved in downplaying that.
Mr Blake: Did you respond to this email saying, “That is grossly inappropriate, we want nothing to do with it”?
Martin Smith: I don’t believe I did. I don’t recall this email.
Mr Blake: Did you respond to this email, noting that your name had been mentioned in that final paragraph as a key contact, and saying, “I’m nothing to do with this”?
Martin Smith: No.
Mr Blake: You don’t remember receiving this email; do you remember the issue being discussed?
Martin Smith: Not this specific issue, no.
Mr Blake: I mean, if we scroll up, you’re one of the copy recipients. He says:
“I’ve just spoken to [Cartwright King] …”
Not you?
Martin Smith: I don’t recall this. I’m sorry, it’s a long time ago. I just simply do not recall this.
Mr Blake: Sir, I think that might be an appropriate time to break. I’m glad to report that I only have about 15 minutes left after lunch and then we can move on to the Core Participants who have all been given allocated times.
Sir Wyn Williams: Jolly good. Then what time shall we start?
Mr Blake: Can we start at 1.55, please.
Sir Wyn Williams: Yes, by all means.
Mr Blake: Thank you very much.
(12.56 pm)
(The Short Adjournment)
(1.54 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, I am now going to take you to advice written by Simon Clarke –
Actually, sorry, before I get to that, you mentioned before lunch your move from Cartwright King to your own firm.
Martin Smith: Yes.
Mr Blake: We have email correspondence from you in 2019 from a Cartwright King address.
Martin Smith: Yes.
Mr Blake: We are right in understanding that you continued to be able to use Cartwright King email address?
Martin Smith: That’s correct. I believe that I left – again, I can’t be specific but I believe that I left Cartwright King at the end of March 2016. I believe Simon Clarke and Harry Bowyer remained on for a little while and, at some point after – I believe after they left, we then had access to the case management system used by Cartwright King in order that we could continue to work on an agency basis for them, and so we had email accounts, Cartwright King email accounts, that we could use.
Mr Blake: Thank you. Can we look at POL00148720, and this is an advice on “Criminal Applicants to the Mediation Scheme”, 15 July 2014. Again, it is another one of those advices that has Simon Clarke’s name at the end, 15 July, but, throughout the advice, if we scroll down to paragraph 2, for example, it says, “It is our considered view”, and we see throughout references to “we”; did you have any involvement in this advice?
Martin Smith: I’m afraid my answer has to be the same as the earlier ones: I may have seen it. I may have commented on it. I may have been asked to proofread it. I cannot state specifically that had positive input into it.
Mr Blake: Paragraph 2 says:
“It is our considered view that no applicant guilty of a criminal offence committed against [the Post Office] should be allowed into the scheme, for to mediate such applications will be to leave [the Post Office] open to a number of alarming consequences. Those consequences include, but are not limited to, the following:
“The fact of entry into the scheme of itself indicates that the Post Office is at least prepared to concede that they may have erred in prosecuting the applicant.
“Similarly, the fact that one such applicant has been allowed to enter into the scheme sets an unfortunate precedent …”
It then goes on, subparagraph iii, about the threat of an appeal. The same with paragraph iv, setting a precedent:
“Any competent lawyer would advise … a substantial concession by the Post Office …”
Then paragraph 3 goes on to address other risks. It says, for example:
“Whilst the issue is strictly outside of our criminal purview, we feel bound to point out that the potential for adverse publicity generated by the mediating of criminal applications and particularly where some concession, agreement or payment is made by [the Post Office], is inestimable.”
It refers to the knock-on effect:
“There is every likelihood that we would be required to disclose the fact and detail to others in a similar position …
“Similarly, a successful appeal would give rise to a considerable assessment and disclosure exercise, all conducted in the full view of the media.”
Over the page, please, paragraph 5:
“We can identify no proper reason for the inclusion of criminal applicants into the scheme.”
Were those all views that you shared at the time?
Martin Smith: I think I accepted that as being a sensible approach.
Mr Blake: Can we please turn to POL00112928, page 78. That advice we’ve just seen was July, we’re now in November 2014. It’s an email from yourself to Mr Parsons. You say:
“Andy,
“From a criminal perspective, we would advise as a general rule against the disclosure of any documents from a criminal file which have not previously been disclosed to the defendant during the course of the original proceedings. To do otherwise may well enable the defendant or Second Sight to attempt to criticise the way in which the prosecution was conducted or how the prosecution policy was applied. Clearly such arguments in a public arena would be uncomfortable for [the Post Office].
“We remain concerned that Second Sight are pushing for the disclosure of files and advise that a robust stance be taken by [the Post Office] in relation to all such requests.”
So you were concerned there about defendants being given documents that weren’t relied upon in their criminal prosecution.
Martin Smith: We were advising as a general rule against the disclosure of documents which have not previously been disclosed.
Mr Blake: Is that because you were concerned about your own decisions coming under scrutiny?
Martin Smith: No. No.
Mr Blake: If you had made the right decisions regarding disclosure in the original trial, why would you be concerned about access to those files and disclosure from those files?
Martin Smith: I don’t think that it occurred to us that any incorrect disclosure decisions had been made at the time.
Mr Blake: So why would you be concerned about disclosing documents from the criminal file, if you had made the right decisions?
Martin Smith: So the approach that Cartwright King was taking here was that, if something was on a sensitive material schedule, then it ought not to be disclosed, unless it was something that had been disclosed during the original proceedings.
Mr Blake: Yes, and is that because you were concerned about the disclosure decisions that had been made in those original proceedings?
Martin Smith: No, no.
Mr Blake: We looked at the case of Ishaq yesterday and I think I suggested that you were perhaps taking too robust a stance on disclosure to Mr Ishaq. We see here another reference to a “robust stance” to be taken in respect of disclosure decisions. Were you now repeating the same errors that occurred during the criminal trials, that you were taking too robust a stance on disclosure to those who had been affected?
Martin Smith: I didn’t see it that way at the time.
Mr Blake: Why do you think it was, that after all that we’ve been discussing – and I won’t repeat the various, various stages, Gareth Jenkins, new information, et cetera – why do you think then you were still calling for a robust stance to be taken in respect of disclosure to those who had been prosecuted?
Martin Smith: Of course, this is in the Mediation Scheme and the view that the firm was taking was that only material which would have been disclosed during the initial proceedings should be disclosed. I didn’t disagree with that approach.
Mr Blake: Yes, but that’s really repeating the same point that you’ve already been making?
Martin Smith: That’s my point, though, that’s the point I can make: I didn’t see it any other way.
Mr Blake: It isn’t your evidence that you’re concerned that, in some way, that would help somebody appeal?
Martin Smith: No, I didn’t think of that.
Mr Blake: Can we please look at POL00150342. The bottom of the first page, Rodric Williams confirms there that Mr Altman:
“Brian’s advice is that we shouldn’t engage with either of Tony’s [that’s Sir Anthony Hooper] proposals, given the inherent risks in having a free discussion about the facts which give rise to a conviction …”
Do you recall Sir Anthony Hooper being in favour of including those who’d been convicted and Cartwright King and Mr Altman forming the view that they shouldn’t be?
Martin Smith: I can recall Mr Hooper taking the view that it should include everyone and Brian Altman having a strong view about that, yes.
Mr Blake: If we scroll up to the middle email, there’s an email from Rodric Williams to yourself. He says:
“Martin – can you please give Chris Aujard a call as soon as possible.
“He wants to discuss how to approach Tony Hooper about mediating criminal cases, specifically those involving false accounting. Tony is not currently sympathetic to our position, so we need to work out how else we can land the points.”
There is a response above from Chris Aujard, who says:
“Thanks Rod – we have now spoken, and the work that we discussed has been commissioned. Cheers, Chris.”
If we could please return to POL00150390. There is the advice which contains a draft letter to Sir Anthony Hooper. Is that the work that had been commissioned or was the work that had been commissioned something else?
Martin Smith: I don’t recall but I can see that the advice starts here, that we are asked to suggest the text of a letter to Sir Anthony Hooper, so it may very well be that that advice is in response to the request that has been received from the then General Counsel.
Mr Blake: Do you recall having a conversation with Chris Aujard about this issue?
Martin Smith: I’m afraid I don’t.
Mr Blake: Were you involved in the drafting of this advice?
Martin Smith: It’s possible that I may have seen it, been asked to look at it, might have discussed it; I don’t recall.
Mr Blake: What do you think made the team at Cartwright King, including yourself, think that you knew better than Sir Anthony Hooper on matters relating to those who were convicted of criminal offences?
Martin Smith: I don’t recall thinking about whether or not we knew better than Sir Anthony Hooper at all. That wasn’t my thought process.
Mr Blake: I think you’ve said that your thought process didn’t involve any consideration to the effect that you wanted to prevent people from appealing to the Court of Appeal?
Martin Smith: No, the way that I had seen this was how it had initially been put by Post Office, that they were concerned, for example, that a throwaway comment or something like that, or some attempt to reach settlement, might somehow give a convicted applicant a ticket to the Court of Appeal, just inadvertently through making some form of minor concession or presenting something in a different way.
So I didn’t see this as trying to prevent people from appealing. I saw this as, effectively, trying to help Post Office protect their position.
Mr Blake: Mr Smith, you’ve used the words “ticket to the Court of Appeal”, is that because you have in mind the next document that I’m going to take you to, which is POL00066872. Thus is a filenote from your file, May 2015, relating to Seema Misra’s case.
Martin Smith: Yes, “ticket to the Court of Appeal” was a phrase which we used internally on a number of occasions.
Mr Blake: Can you assist us with this note? There’s a summary:
“… Andy Parsons; MJS [you] explaining position. Issues re disclosure.
“Detail:
“[Telephone call] Andy Parsons; MJS explaining position. Issues re disclosure; clearly unhelpful if [the Post Office] proceeds with draft CRR responses …”
Those are, I think, Case Review Report responses?
Martin Smith: Yes.
Mr Blake: “… without regard to disclosure issues; may damage [the Post Office’s] integrity – disclosure may give Misra ticket to [the Court of Appeal]. Need meeting. Possibility of Thursday?
“Any chance can keep moving with [the reports being] watered down. [You] would not advise that. Problem will arise if need to make disclosure and did not set the record straight when had the opportunity to. Also there is the [Criminal Cases Review Commission] in the background.”
Were you and Mr Parsons, in May 2015, concerned about disclosure to Seema Misra because it may give her a ticket to the Court of Appeal?
Martin Smith: No. The – I can’t quite remember the timeline but, when we started the file review process, Mrs Misra’s case was one of those which we reviewed but we were only able to review it from a very limited amount of information. I don’t think the Legal Department could find the file at that point. At some point, the file did become available.
Now, I don’t know how that fits into this timescale but, at this point, Bond Dickinson were wanting to push ahead with responses in the Mediation Scheme. I assume there was some sort of time frame within which they were trying to work, some sort of agreed time frame. They were wanting to draft responses, and I took the view that it’s unhelpful to draft those responses without having regard to any potential disclosure issues because, if those responses are inappropriate, either because something needed to be disclosed which wasn’t or, alternatively, some sort of comment was made which was by way of concession but an inappropriate concession, either way, that could be damaging to Post Office Limited’s integrity. I was very aware that whatever was said in the CRR response could give any applicant an opportunity to approach the Court of Appeal.
You’ll see from the second paragraph here that the question I am being asked by Mr Parsons is: is there any chance we can keep moving on these CRRs with them watered down? In other words, rather than perhaps wait for Simon Clarke or perhaps Harry Bowyer to finish a review of the case or some information, can they just proceed with that response watered down?
I was against that because I took the view that, if they did so, and disclosure was appropriate and it hadn’t been included, then that would be damaging. You know, if disclosure should have been provided and wasn’t, there would be adverse consequences for that, if the record was not set straight when had the opportunity to do so, and I was also telling them “Look, the CCRC are watching you, they are in the background watching what you do here”.
So I was very aware that the response to the CRR was something which had to be got right and I wasn’t prepared to allow Bond Dickinson to water this down. I was very aware that if disclosure needed to be provided then it should be provided when there was the opportunity to do so, otherwise I could see there being all manner of repercussions for Post Office Limited.
Mr Blake: It might be suggested that the reference in that first paragraph to disclosure giving Seema Misra a ticket to the Court of Appeal is that you were concerned, together with Mr Parsons, about Mrs Misra being able to successfully appeal in the Court of Appeal?
Martin Smith: If someone could appeal, then so be it.
Mr Blake: Was there a concern at Cartwright King and the concern held by you and others, that there may be successful appeals to the Court of Appeal, in cases that you prosecuted?
Martin Smith: No. I wasn’t concerned that there would be successful appeals at all to the Court of Appeal. That wasn’t something that concerned me. My concern was that Post Office, in embarking upon this Mediation Scheme, should not be making small concessions which appear trivial but could actually be presented in a very different way, which could actually then give someone the opportunity to pursue an appeal.
What we were seeing, during some of these mediations, was some convicted applicants were actually putting forwards very different facts to the actual information that they’d relied on, for example, by way of mitigation, following a guilty plea. So we were alive to some of these points but, in relation to Mrs Misra’s case, as it says in my second paragraph here, I would not advise proceeding with the CRR watered down, a problem would arise if disclosure needs to made and we had not set the record straight when we had the opportunity to do so. It was important that it was correct.
Mr Blake: Given everything that you had learnt over all of those years that we had been discussing in your evidence, all of those various developments year, after year, after year, by 2015, didn’t you think that you should do everything you possibly could for somebody like Seema Misra, in relation to a potential appeal to the Court of Appeal?
Martin Smith: At this point in time, her file – I believe at this point in time her file had been reviewed. I think the initial review was on the basis of, I think, just the judge’s summing-up to the jury but the file subsequently became available and that was reviewed, I believe, by Mr Clarke and I’m unable to recall, actually, whether disclosure was sent to her of the Second Sight Report and Helen Rose Report. I’m afraid I can’t remember that.
Mr Blake: Issues with the Gareth Jenkins?
Martin Smith: There was no reference to that in the letters which were sent out.
Mr Blake: Various additional bugs, errors and defects?
Martin Smith: Again, there was no consideration of disclosing that. The Second Sight Interim Report made reference to two bugs and we had the Helen Rose Report. We were then really looking forwards and gathering information ready for the instruction of an expert.
Mr Blake: Thank you.
Sir, those are all of my questions for Mr Smith. We have a number of questions from Core Participants. The first on the list is Ms Watt on behalf of the NFSP, who will be principally asking questions relating to the Scottish cases.
Sir Wyn Williams: As I understand it, Ms Watt has a 15-minute allocation; is that correct?
Mr Blake: Yes, that’s correct.
Sir Wyn Williams: Fine. Thank you.
Over to you, Ms Watt.
Questioned by Ms Watt
Ms Watt: Thank you, sir.
Good afternoon, Mr Smith. I’m just behind Mr Stein.
Martin Smith: I can just about see you, yes.
Ms Watt: Thank you. I want to ask you some questions about the period in 2013 when you’re dealing with what’s happening in the Scottish prosecutions. I’m not going to take you to your witness statement but at paragraphs 132 to 134 of your witness statement you refer to two meetings in Scotland in September and October 2013, which you attend with Simon Clarke and Jarnail Singh, together with the Post Office’s Scottish solicitors, where you say you met the Procurator Fiscal.
You say those meetings arose because there was a concern that there was to be a termination of Scottish criminal cases on the basis that Horizon was allegedly unreliable.
Martin Smith: Yes.
Ms Watt: Okay? Now, by this time in 2013, it’s correct to say, isn’t it, that you knew Gareth Jenkins had been discredited as an expert witness –
Martin Smith: Yes.
Ms Watt: – not least because your colleague Simon Clarke had written advice for the Post Office about the issues with and the use of Mr Jenkins as an expert witness; isn’t that right?
Martin Smith: That’s right.
Ms Watt: At that time, you also knew of at least two bugs in the Horizon system, didn’t you, from the Simon Clarke Advice and the Second Sight Interim Report?
Martin Smith: Yes.
Ms Watt: While your interpretation of the Second Sight Interim Report is “Not much to see here”, you would agree that, in fact, it did raise questions about Horizon and a lack of disclosure to subpostmasters in their defence of criminal prosecutions?
Martin Smith: Yes.
Ms Watt: You also knew what was in the Helen Rose Report, didn’t you?
Martin Smith: Yes, I believe that’s right, at that time.
Ms Watt: You knew, by the time of the meeting in September 2013 with the Procurator Fiscal, that prosecutions in England had been paused by Susan Crichton because of all these concerns, didn’t you?
Martin Smith: I knew prosecutions had been stopped and existing prosecutions were being looked at on a case-by-case basis by Mr Clarke, I believe.
Ms Watt: But, nonetheless, you went to Scotland with your colleague Simon Clarke and Jarnail Singh from the Post Office to try to prevent the Crown Office and Procurator Fiscal Service from terminating criminal prosecutions on the basis that the Crown Office was questioning the reliability of Horizon evidence for Scottish prosecutions, didn’t you?
Martin Smith: Well, we were asked to go, I believe, by Susan Crichton and there was a suggestion that the Procurator Fiscal was considering terminating all of the prosecutions. The suggestion that, I believe, Mr Clarke made was that they be adjourned pending a new expert, and the Procurator Fiscal’s office was actually content to adjourn the case, adjourn those cases, to await a new expert. It was actually quite surprising because, in England and Wales, it’s unlikely a court would have entertained an adjournment of several months to get a new expert. So the position in Scotland, I understand, was quite different.
Ms Watt: I think it was explained to you why that was. I’m going to take you to some documents that might help with that. First of all, can we go to POL00139902, that’s a telephone note from 12 July 2013 and you’re on a call with a representative of the Crown Office.
Martin Smith: Yes.
Ms Watt: This is you – sorry, I’ll just go to the correct one for me, 29 July 2013. This is you on a conference call with a representative of the Crown Office and along with one other from Cartwright King; would that be Simon Clarke?
Martin Smith: It could be.
Ms Watt: You explained that your law firm carried out prosecutions on behalf of the Post Office south of the border, that you had been told the Horizon system was foolproof but a report has been prepared by a body called Second Sight which has revealed some bugs in the system. It’s the second report which they, the Post Office, are calling the Helen Rose Report. It’s an internal report and it’s critical of the system. There are times when the system does not differentiate between computer generated entries and manual entries.
If we go on to the paragraph:
“Martin explained that Second Sight was basically a committee set up in response to complaints by some subpostmasters. The Post Office contracted with Second Sight to produce this report following complaints made by subpostmasters to various MPs.”
Would you accept calling it a “committee set up in response to complaints by some subpostmasters” is, actually, a minimisation of what Second Sight was and what you already knew it was uncovering?
Martin Smith: I don’t recall using those words.
Ms Watt: Well, it is a minimisation, isn’t it?
Martin Smith: Well, Second Sight is not a committee. Second Sight was a limited company and it wasn’t a committee set up in response to complaints. Second Sight was engaged to look into issues that had arisen, so I think that’s – that part of the notes of the conversation is incorrect.
Ms Watt: You go on, the paragraph that starts “A number of defendants have had inexplicable losses”, that paragraph:
“Martin explained that in some cases the Post Office they had lodged evidence which says that there was nothing wrong with the Horizon system. This expert was a man named Gareth Jenkins, who is one of the architects of the system from Fujitsu. It is clear from the report that Gareth Jenkins, employed by Fujitsu, was aware of bugs in the system. One in particular has created false information but this was not mentioned in his … reports.”
Would you agree that, taking account of the Simon Clarke Advice and all that was known at the time in relation to Mr Jenkins, that that is a minimisation to the Crown Office of the position?
Martin Smith: No, I don’t. I think that sets out the position. Mr Gareth Jenkins, one of the architects of the system, he’d said that, effectively, there was nothing wrong with the system. I think that explains the position with Mr Jenkins.
Ms Watt: Can we now go to POL00139906, that’s a telephone note of 14 August with you and the Scottish solicitors. If we scroll down five paragraphs down:
“Martin mentioned Susan Crichton, who is Head of Law at the Post Office. She has now agreed to stop issuing summonses in relation to Post Office cases because of the mess that they are in.”
You go on to say in the paragraph:
“Martin explained that the lines of communication have not been very effective … even Legal were not aware of the Helen Rose Report initially. They were only aware of the Second Sight Report”, and there’s then discussion of the central hub that you’ve been discussing with Mr Blake?
Martin Smith: Yes.
Ms Watt: If we can scroll down to the second page, you’re going on to discuss Brian Altman – then QC, now KC – dealing with the review cases, which include pending cases. You go on to say:
“Martin explained they were hoping to meet with [Brian Altman] during the week 27 August and that the likely outcome would be that Post Office would agree to obtain an expert report.”
You didn’t know at that point if the Post Office would, in fact, obtain an expert report. This was just your thinking, wasn’t it?
Martin Smith: In the second paragraph there, the likely outcome would be that the Post Office would agree to obtain an expert report. So it was expected that the Post Office would. This is also mid-August, when I think, in the July meetings, Mr Clarke had advised that Post Office would need to obtain a new expert, and I understand that it was around this time or probably just before this time that enquiries were being made with regard to potential experts, so that was very much the intention.
Ms Watt: Okay. A final document to go to, for just now, can we go to POL00139879. This is the meeting note where you go to meet the officials at the Crown Office and Procurator Fiscal Service, first meeting your solicitors on 4 September, and then the Crown Office the following day, you, Simon Clarke and Jarnail Singh. So quite a bit of effort being put in there, wouldn’t you agree, to go, all of you, to Scotland to do this?
Martin Smith: Well, I think Mr Singh flew up from London and myself and Mr Clarke went on the train from Derby.
Ms Watt: If we go to that document that I think I gave the number – yes, there we are. If we go to the second page – we’re at the third page, I think it is, sorry. We’re there, paragraph 9:
“It was very plain from the PF’s current position on POL … that all such cases should be terminated.”
So that was the main concern for Post Office, wasn’t it, that they were going to terminate the cases?
Martin Smith: Yes, it was and I can recall that in London, when myself and Simon discussed it, the Legal Department were quite concerned that there could be some form of announcement with regard to the integrity of the Horizon system which could have implications for Post Office.
Ms Watt: If we just scroll down to page 4:
“Whilst under the English system [this is the Crown Office’s representative] disclosure is to a large extent guided by the defence response to allegations and likely plea … in the Scottish system disclosure rules dictate that, even where the accused has made unequivocal admissions to auditors or in interview, disclosure relating to a corroborating fact occurs ab initio [from the start]. This situation arises because in many cases the PF does not know what the defence is to be … “
It continues on, the question is:
“… if one piece may be unreliable [that’s the evidence] then it does not qualify as independent, reliable corroboration …”
Because that’s what you were being told.
If we scroll down to paragraph 13, Simon Clarke then outlined the proposed instruction of independent expert witnesses, and at paragraph 14:
“… a new understanding on the part of [those who were there from the Crown Office]. This amounted to a departure from his starting point that all POL prosecutions were to be terminated. Indeed matters went much further, for discussion then focused on how the present prosecutions were to be advanced … This recommendation amounts to a complete reversal of the PF’s original position.”
I just want to ask you some questions about that. Did you understand, if we take all that’s been discussed about what you knew regarding Simon Clarke’s Advice, the Second Sight Interim Report, the Helen Rose Report, decisions regarding English prosecutions which aren’t mentioned anywhere there, that what you were told being about the disclosure and evidential requirements were actually a higher bar in Scotland, compared to what you were used to doing in the courts in England in your private prosecutions?
Martin Smith: I don’t think I thought of it in terms of a higher bar. I just considered that it was a different legal system, and that it would be helpful for an expert report to be obtained to assist because, at this point in time, whilst you mentioned Helen Rose, the Second Sight Report, the number of issues at that point in time were actually, on the face of it, relatively small. I mean, clearly a lot more has come out since but, at that point in time, the issues appeared to be relatively narrow. So the approach that we had in mind was to get an expert report.
Ms Watt: So you’re very pleased to note, at the end of that meeting, you’ve achieved your objective?
Martin Smith: That is what the note says, yes.
Ms Watt: Taking all of that together, I’m suggesting to you that you were at the very least disingenuous in the way you sought to persuade a Crown Officer, a representative of Scotland’s most senior law officer, the Lord Advocate, not to terminate all such prosecutions –
Martin Smith: No, I don’t agree, I’m sorry.
Ms Watt: – and that what you were doing was to seek to get the entirety of Scotland’s criminal justice system onto the side of the Post Office and not terminate the prosecutions of subpostmasters in Scotland?
Martin Smith: No, well, I don’t think, at this point in time, we actually knew what the pipeline of cases was there. This isn’t a case of just close every prosecution down. Some of the cases being investigated were not actually – may not actually have been of subpostmasters or postmistresses, they could have been of counter staff and the victims may have been the subpostmasters or subpostmistresses. So the approach that we were taking was that it would be appropriate to get an expert report to actually deal with completely deal with the issue of the integrity of the Horizon system, so that these issues could be considered.
Ms Watt: Sir, I see I’ve gone just over my time. I’ve got another couple of questions, just to finish off, if I could be allowed. It’ll only be maybe another one to two minutes.
Sir Wyn Williams: Well, one to two minutes and then I’ll use my gavel, so to speak.
Ms Watt: Okay.
This really, this meeting, is equivalent to going to, for instance, a meeting with the Director of Public Prosecutions trying to persuade the DPP to continue with prosecutions when you knew Horizon and the expert witness were unreliable; do you understand how serious it is to have done that?
Martin Smith: I’m sorry, I don’t agree. We went to meet with the Procurator Fiscal’s office at the request of Post Office, with the Scottish lawyers there, to explain what Post Office was proposing to do.
Ms Watt: Are you aware of the fact that six POL criminal cases in Scotland have this week been quashed by the High Court of Justiciary in Edinburgh and at least two of these cases are ones where pleas and cases took place in the courts in 2012 and 2013, before your meeting but not far your meeting; what are your reflections on the quashing of those cases?
Martin Smith: My reflections on the quashing of those cases are exactly the same as the reflections that I have on the quashing of any other cases. This has turned out to be an absolutely horrendous situation for all those victims and I’m pleased that they have been quashed.
Sir Wyn Williams: There we are, Ms Watt.
Ms Watt: Yes, that’s me. Thank you.
Sir Wyn Williams: I’m just making sure I’ve got these dates right. These meetings in Scotland took place in September 2015; that’s right, yeah?
Ms Watt: 2013.
Mr Blake: 2013.
Sir Wyn Williams: ‘13. Right. Then that’s why I’m confused. That’s fine. 2013.
Mr Blake: Sir, we’re going to be hearing from Mr Moloney next but perhaps can I just spent five more minutes on that particular document? We do have time. I went under time.
Sir Wyn Williams: Everybody is very persuasive today about getting more time out of me. Five minutes, Mr Blake.
Mr Blake: Thank you very much.
Further Questioned by Mr Blake
Mr Blake: Can we just bring that document back on to screen. It seems as if there was a pre-meeting on 4 September, amongst yourselves and lawyers from BTO.
Martin Smith: Yes, that is correct.
Mr Blake: If we turn to page 3, there is the meeting with representatives from the Procurator Fiscal’s Office on 5 September.
Martin Smith: That’s correct, yes.
Mr Blake: And amongst those representing the Procurator Fiscal are somebody called Paul Miele, who is the PF deputy, correct?
Martin Smith: The depute, yes.
Mr Blake: The depute. It begins there at paragraph 8 that he:
“… informed the meeting that his role was to form a policy recommendation and to [put it] forward … to the Procurator Fiscal …”
Then we see at paragraph 9:
“It was very plain from the outset that the [Procurator Fiscal’s] current position on [Post Office] prosecutions was that all such cases should be terminated.”
So you went into that meeting aware that the Procurator Fiscal wanted to terminate Post Office prosecutions?
Martin Smith: Yes.
Mr Blake: If we turn over the page to paragraph 12, it says – and this is the first meeting with the representatives from the Procurator Fiscal’s office, the previous meetings we’ve seen are only with solicitors from BTO. Paragraph 12 says:
“This brief overview of the Scottish system provided the foundation for the discussion which followed. SC [Simon Clarke] provided the meeting with a broad overview of the [I think that’s Horizon Online] difficulties (absent any direct or indirect reference to the role of [Gareth Jenkins] or Fujitsu).”
Just pausing there, why did Simon Clarke provide the meeting with an overview, first of all, of Horizon Online, rather than generally Horizon issues and, secondly, why was it absent any direct or indirect reference to the role of Gareth Jenkins and Fujitsu?
Martin Smith: I don’t know.
Mr Blake: Is it therefore, following that conversation, a brief overview which gave a broad overview and excluded quite relevant matters relating to Gareth Jenkins and Fujitsu that the Procurator Fiscal’s decision was a reversal of their original position? That’s paragraph 14:
“As a result of this new understanding on the part of [Mr Miele] and [his colleague], [Mr Miele] agreed that his recommendation would be that each case be reviewed separately and a decision taken on the facts of individual cases.”
The final sentence there:
“This recommendation amounts to a complete reversal of [their] original position.”
Martin Smith: Yes.
Mr Blake: So it seems as though that reversal took place after – it’s described in paragraph 12 as, essentially, a very limited reference to the issues with Horizon. Is that your recollection of what happened at that particular meeting, the second meeting, the 5 September meeting, that involved representatives from the Procurator Fiscal?
Martin Smith: I struggle to recall the entirety of the meeting. I was there taking notes and, if Mr Clarke has put there that he didn’t mention Mr Jenkins, then that will have been correct.
Mr Blake: Paragraph 12, was this note drafted by Mr Clarke, do you believe?
Martin Smith: I believe he was typing it on the train on the way back from Scotland but he would have had access to my handwritten notes whilst he was preparing it.
Mr Blake: Are you able to assist us with why the words in brackets may be in a smaller font or appear to be in a smaller font? Might they have been typed later?
Martin Smith: I don’t know. I don’t know, I’m afraid.
Mr Blake: Thank you very much, sir.
Sir Wyn Williams: Right. Mr Moloney. It is, by my reckoning, 14.38. So you can have 22 minutes and then we’ll have a break at 3.00.
Mr Moloney: Thank you, sir, I’ll try and be less than 22 minutes but I agree it is 14.38.
Questioned by Mr Moloney
Mr Moloney: So, Mr Smith, you described going to see the judge in private in Birmingham Crown Court in the case of Samra on 1 July 2013?
Martin Smith: I can’t confirm that’s the date but I do recall going and seeing the judge in private with Mr Clarke.
Mr Moloney: It was listed for trial that day, wasn’t it?
Martin Smith: Erm –
Mr Moloney: It doesn’t matter if you can’t remember.
Martin Smith: I don’t think it was listed for trial that day. Well –
Mr Moloney: Right well we can establish that later with Mr Clarke anyway but, essentially, you went to see the judge because you wished to apply to withhold from the defence what you’d heard from Gareth Jenkins about the likely content of the Second Sight Interim Report, after what he had told them?
Martin Smith: I think that’s not quite right. It wasn’t what we’d heard from Mr Jenkins. I think it was what we had heard from Post Office Limited about there being a report that made reference to bugs, and we – I don’t believe at that point we had a copy of that. We only knew what we had been told and Mr Clarke and I, as you know, had spoken to Mr Jenkins by telephone, who gave an explanation that there had been two bugs. So the – Mr Clarke decided that he, at that stage, was not in a position to properly comply with his duties of disclosure because, whilst we knew some information, there was clearly more information that we’d want to know.
There was clearly a report here that we did not have a copy of, which he thought ought to be considered for disclosure, and he was not prepared, as I understand it, to go through a trial or to commence a trial without disclosure having been properly dealt with, and it was in those circumstances that the application was made.
I don’t know whether it was actually on the day of trial or a day or two before the day of trial.
Mr Moloney: Doesn’t matter but, essentially, you wanted to withhold from the defence at this stage what you’d been told about what the Second Sight Interim Report was likely to say about things?
Martin Smith: I didn’t see it that way. I saw it as Mr Clarke saying that he could not comply with his duties of disclosure. He was prosecuting counsel in that case and that was his view. So –
Mr Moloney: Okay. Well, let’s –
Martin Smith: – I’ll put it that way.
Mr Moloney: Let’s just try and develop that, please, Mr Smith. You went to see the judge in private to make an application.
Martin Smith: I went along with Mr Clarke who was making the application.
Mr Moloney: It’s an ex parte application, it means the other party is not there, doesn’t it?
Martin Smith: That’s correct, yes.
Mr Moloney: Your application was a public interest immunity application, wasn’t it? Did you understand that?
Martin Smith: I don’t think I did at the time. I just knew that Mr Clarke was making an application and I was making notes of it.
Mr Moloney: Right. So when you say you didn’t understand that at the time, do you understand that that’s what it was, do you understand now that that’s what it was?
Martin Smith: I believe that that’s what it was. I don’t recall it well enough, except to say that Mr Clarke was explaining to the judge that he could not disclose the correct material at that particular point in time, not that it would not be disclosed; it was just that he wasn’t in a position to discharge his disclosure duties at that time.
Sir Wyn Williams: I’m sorry to interrupt but that’s telling the judge what he can’t do. What exactly was he asking the judge to do?
Martin Smith: I’m afraid, sir, I can’t recall.
Sir Wyn Williams: Well, I mean, was he saying, “Look I’ve got this problem but we should proceed with the trial anyway?” Was he asking for the trial to be adjourned? What was he doing?
Martin Smith: No, I don’t believe that he was going to proceed with the trial.
Sir Wyn Williams: So he was asking the judge, what, to adjourn the trial or to enter a Not Guilty plea against the defendant? What? The judge must have been asked to do something specific.
Martin Smith: Sir, I’m afraid I can’t remember. I really can’t remember, I –
Mr Moloney: I’ll try and help you with your recollection –
Martin Smith: I remember turning up and taking notes.
Mr Moloney: I’m sorry to the stenographer for us talking over each other there.
I’ll try and assist you with your recollection, okay, because what actually did happen was that a public interest application was made on behalf of the prosecution, Post Office Limited, okay?
Martin Smith: Okay.
Mr Moloney: You know that now anyway, don’t you?
Martin Smith: Yes.
Mr Moloney: You know, and you’ve said that, of course, you practised in defence for a number of years, but you were relatively new to prosecutions, so you took Mr Clarke’s advice and were guided by him as to the making of this application?
Martin Smith: Well, it wasn’t the case that I was guided by him in the making of the application. He made the application and if you see there taking notes.
Mr Moloney: But you were the instructing solicitor, to all intents and purposes, Mr Smith, weren’t you? A very experienced solicitor. You were there with counsel who you worked with, hand in glove, it seems, from all the correspondence that we’ve seen. You were a three and, on this occasion, you were a two. You worked together.
Martin Smith: I was working with him on that day, yes.
Mr Moloney: Entirely. So did he not tell you what he was doing?
Martin Smith: I cannot recall enough about the day, I’m afraid.
Mr Moloney: Right. Okay. Well, again, I’ll try and assist. A public interest application, as a defence solicitor of some experience, is an important procedure, isn’t it? Essentially, withholding material from the defence which would be helpful to the defence and would ordinarily need to be disclosed. That’s what it’s about, isn’t it?
Martin Smith: That is a PII application, yes.
Mr Moloney: You were aware, were you, of the important House of Lords case of H&C and the conditions it laid down for when a public interest immunity application should be made?
Martin Smith: I can’t say that I could recall that.
Mr Moloney: Right. Okay. But, as a solicitor, would you know that, really, it should only be made where a prosecutor has identified material that should be disclosed but disclosure of it would create a real risk of serious prejudice to an important public interest, and the prosecutor believes that the public interest in withholding the material outweighs the public interest in disclosing it to the defence? Would that accord with your general appreciation of the rules in relation to public interest immunity applications.
Martin Smith: I can’t say that I’d previously come across a PII application, so that’s new to me.
Mr Moloney: Right, okay. But you not remembering much about this, did Mr Clarke give you any reason as to why he was making the application to withhold the Second Sight Report? You’d previously mentioned yesterday something about Parliamentary privilege, Mr Smith.
Martin Smith: I can recall a conversation that I had with Mr Clarke. I’m afraid it’s all a little hazy because it’s such a long time ago but we were very much aware that the Second Sight Report was going to be released to Members of Parliament before it was going to be published generally and, I think, at this particular point in time, we did not have the report, and we only knew snippets of what it was likely to contain.
Mr Moloney: Right. Did Mr Clarke say to you that one aspect of the public interest that he was asserting to the judge in his application would be the prevention of a widespread loss of confidence in Post Office?
Martin Smith: I don’t recall that being said.
Mr Moloney: Did he say that another aspect would be the loss of trust in a system operated by Post Office?
Martin Smith: I’m sorry, I just don’t recall the conversation.
Mr Moloney: Finally, I just ask you, just for the sake of it, did he say that another aspect would be the prevention of journalistic speculation as to the efficacy of systems almost universally relied on by the public?
Martin Smith: I don’t recall that either, I’m afraid.
Mr Moloney: Then, finally, did he say to you that, essentially:
“Post Office Limited were rightly, in my opinion, very concerned at the potential adverse publicity which would inevitably have been generated by the revelation of the existence of a draft Second Sight Report into Horizon. To permit this information to enter the public domain at such an early stage would have been to encourage extremely unhealthy and likely virulent speculation as to the content of any report, most probably in the national press. Such speculation would have seriously damaged the reputation of Post Office Limited and would have greatly undermined public confidence in both Post Office Limited and Post Office Limited’s systems. Our objective was to avoid such consequences. That objective we achieved with the public interest immunity application.”
Martin Smith: I don’t recall that, I’m afraid, either.
Mr Moloney: If Mr Clarke had set all of those things out, that I’ve just asked you if you remember him saying, in a note of the day’s hearing, would you have seen it, a note sent to POL, an attendance note?
Martin Smith: I don’t recall seeing an attendance note, no.
Mr Moloney: Would you ordinarily have seen such an attendance note, Mr Smith?
Martin Smith: Sometimes I was asked to look at things, proofread them and sometimes Mr Clarke would go through things and, other times, I wouldn’t. I’m afraid it doesn’t ring any bells with me.
Mr Moloney: No. Obviously, you know, you can probably see that I am actually saying that Mr Clarke did set that out in –
Martin Smith: I’m gathering from the way you’re asking the questions that you’re reading from an attendance note written by Mr Clarke but I’m afraid it doesn’t ring any bells with me at all.
Mr Moloney: Right. Were the defence, Mrs Samra’s lawyers, put on notice that you were going to make a PII application?
Martin Smith: I have no idea. I have no idea.
Mr Moloney: This was your very first PII application, Mr Smith, either defence or prosecution, was it –
Martin Smith: Um –
Mr Moloney: – in all your years of experience.
Martin Smith: I have – well, I’m afraid I have absolutely no idea about this. I know that Mr Clarke was prosecuting counsel, and I don’t know –
Mr Moloney: Did you have any role in notifying Mrs Samra’s solicitor that there was going to be a PII application made on 1 July 2013?
Martin Smith: I’m not aware that I did.
Mr Moloney: You can’t help whether or not any notice was given?
Martin Smith: I’m afraid I’ve got absolutely no idea.
Mr Moloney: Were you aware that, if the prosecutor makes an application to the court without notice to the defence – because the only circumstances in which it can be done is because it would have the effect of disclosing that which the prosecutor contends should not, in the public interest be disclosed, and that that is a highly exceptional situation?
Martin Smith: I’m sorry, what was the question?
Mr Moloney: Were you aware that when a prosecutor makes an application to the court, and this is under the Criminal Procedure Rules, without notice to the defence, because to do so would have the effect of disclosing what the prosecutor contends should not in the public interest be disclosed, they have – that’s the only circumstances in which that application could be made without notice to the defence –
Martin Smith: No.
Mr Moloney: – are you aware of that?
Martin Smith: I wasn’t aware of that, no.
Mr Moloney: But an application was made by Mr Clarke with you in attendance making notes as a solicitor of some post-qualification experience, and you went into the judge’s chambers with Mr Clarke, and the judge himself was Judge Chambers, wasn’t he? Do you remember that?
Martin Smith: I’m afraid I don’t know.
Mr Moloney: What happened was a PII certificate was granted, were you aware of that?
Martin Smith: I don’t recall.
Mr Moloney: Right. You were to inform the defence that a report had been commissioned but you could withhold the existence of the Interim Report and it was to be presented to MPs that day and then the matter was adjourned for eight weeks; were you aware of that?
Martin Smith: I don’t recall that, I’m afraid.
Mr Moloney: Right.
Mr Moloney: Thank you very much, Mr Smith.
Sir, that’s only 18 minutes, I think.
Sir Wyn Williams: Very good, Mr Moloney.
Mr Stein, can I press you, in the sense that I think you are next and you wanted 15 minutes and, if that is accurate, then we could probably slip that in before our break.
Mr Stein: Sir, I think it is accurate I’ll be 15 minutes, but I’d hope to be slightly less.
Sir Wyn Williams: Right well, even more reason for you to carry on, if you will, please.
Mr Stein: I’m grateful.
Questioned by Mr Stein
Mr Stein: In that case, please, Mr Smith, let’s proceed with the question is have for you.
At the time whereby you, working for Cartwright King, were engaged on the prosecution of matters for the Post Office, do you agree you were following the Code of Practice for prosecution advocates that was issued by the CPS?
Martin Smith: I wouldn’t agree that, no.
Mr Stein: You wouldn’t. What Code of Practice in relation to your prosecution work do you think you were following?
Martin Smith: I’m not confident that we had the necessary skills and expertise to be able to follow codes. I’m afraid, as I said earlier, we are essentially a defence firm of solicitors and it’s beyond me as to why the firm decided to take on prosecution work, knowing that we hadn’t been specifically trained in prosecution work, and so, whilst there may invariably be Codes of Practice, it’s – and other requirements, I think its difficult to follow them if you’re not aware of them.
Mr Stein: Understood, Mr Smith, but it’s you taking on the work. You are an advocate, by this point an advocate of some experience. You had qualified as a higher rights advocate well before 2010; do you agree?
Martin Smith: That is correct.
Mr Stein: It is you that is subject to the regulatory responsibilities issued by the Bar Standards Board; do you agree? Do you agree?
Martin Smith: I’m sorry could you just repeat that?
Mr Stein: Sorry, you are a solicitor, aren’t you?
Martin Smith: Yes.
Mr Stein: So you are subject to the regulatory responsibilities issued by the SRA, the Solicitors Regulation Authority?
Martin Smith: Yes.
Mr Stein: Do you agree with that? You agree you should work on your own field of competence?
Martin Smith: Yes.
Mr Stein: You also accept that?
Martin Smith: Yes.
Mr Stein: So when you started to take on prosecution work on behalf of the Post Office, did you consider the question of what ethical standards should apply to your work as a prosecutor?
Martin Smith: I didn’t consider that I – it was not that it didn’t occur to me, that I did not have the requisite skills and expertise for this role.
Mr Stein: Did you look them up?
Martin Smith: No, I didn’t.
Mr Stein: Now, in old-fashioned terms, the way that the standards applied to prosecutors used to be called a “minister of justice”. Did you consider, even in the loosest possible way, that you as a prosecutor needed to act as a minister of justice?
Martin Smith: I considered that I needed to do things properly, in accordance with the law, and that is what I attempted to do.
Mr Stein: Have you heard the term “minister of justice” being applied to prosecutors?
Martin Smith: I have, yes.
Mr Stein: Right. Let me ask the question again: did you consider that that should be the way that you should act when prosecuting?
Martin Smith: That is certainly what we tried to do, yes.
Mr Stein: Did you consider, did you think about it, Mr Smith, that, “I must, when prosecuting these cases, act in a way that is bringing the highest ethical standards to apply to prosecution cases”? Did that cross your mind or not?
Martin Smith: I don’t think I gave it a huge amount of thought.
Mr Stein: So the answer is “No, I didn’t”?
Martin Smith: No.
Mr Stein: All right. Let’s turn to, then, the call that you had with Mr Jenkins, and that was prior to then the issue of what we all call the Clarke-Jenkins Advice –
Martin Smith: Yes.
Mr Stein: – right, that call. Now, that call was recorded, yes?
Martin Smith: Yes.
Mr Stein: By the time the call with Mr Jenkins was recorded, do you agree you and Mr Clarke were, at the very least, suspicious that there was a problem with Mr Jenkins?
Martin Smith: Suspicious, yes.
Mr Stein: Otherwise, why record the call?
Martin Smith: Yes, yes.
Mr Stein: So this wasn’t an example of Mr Jenkins being told, “By the way we’re going to record this call because we think there are a few things that are of real concern”. You didn’t warn him that you were about to call him?
Martin Smith: We didn’t warn him, no, and we were obviously concerned that reports that had been provided did not make reference to the bugs.
Mr Stein: Why was it recorded?
Martin Smith: So we could have a transcript of it for our own files.
Mr Stein: Right. So the transcript was there and the call was there so that you would have evidence in relation to what was going on with Mr Jenkins; is that right?
Martin Smith: Yes.
Mr Stein: Okay. So you and Mr Clarke were conducting, essentially, a mini investigation at that stage into Mr Jenkins; is that correct?
Martin Smith: I suppose putting it like that, yes.
Mr Stein: Yes. Okay, so it then led to the Clarke’s advice that deals with Mr Jenkins. I’m going to ask for that to go up on the screen, please, and that is POL00006357, and can we have paragraph 38, page 13, the bottom half. Okay. Now, this says at paragraph 38:
“The reasons as to why Dr Jenkins failed to comply with this duty are beyond the scope of this review. The effects of that failure however must be considered. I advise the following to be the position:
“Dr Jenkins failed to disclose material known to him but which undermines his expert opinion.”
So that is basically saying that Mr Jenkins – Dr Jenkins, as it says here – deliberately failed to close material that he was aware of; do you agree?
Martin Smith: Yes.
Mr Stein: Right:
“This failure is a plain breach of his duty as an expert witness.”
Then it goes on to say:
“Accordingly, Dr Jenkins’ credibility as an expert witness is fatally undermined …”
That’s what it says, do you agree?
Martin Smith: Yes.
Mr Stein: Right, okay. At this stage, therefore, you’re considering the question of someone who has knowingly misled the court; do you agree?
Martin Smith: Yes.
Mr Stein: Right. What criminal offences have been committed if those facts are correct?
Martin Smith: Well, perjury, potentially.
Mr Stein: Right, anything else?
Martin Smith: Perverting the course of justice.
Mr Stein: Right, let’s go with perjury and perverting the course of justice. Let’s ask the basic question: why didn’t you call the police?
Martin Smith: I don’t know.
Mr Stein: Nowhere in the Clarke Advice, dealing with Mr Jenkins, does anybody suggest that “Maybe we should just call the police and bring them in to conduct an independent investigation”; do you accept that it’s not in that advice?
Martin Smith: I accept that it’s not in that advice.
Mr Stein: Do you accept that it’s not in any other advice that relates to Mr Jenkins that it might be a good idea to call an independent investigation, ie the police?
Martin Smith: No, I just don’t think that is anything we thought of.
Mr Stein: Right, at the time, after having conducted the investigation involving Mr Jenkins, including the taped call, did you not consider yourselves then to be witnesses in relation what had happened regarding Mr Jenkins?
Martin Smith: I didn’t think of that, no.
Mr Stein: No. Do you accept that you are witnesses in relation to Mr Jenkins and those calls and that investigation?
Martin Smith: I do, yes.
Mr Stein: Yes.
Martin Smith: Putting it that way, I do, yes.
Mr Stein: Putting that way is all fairly obvious, Mr Smith, when, considering your position as a witness, do you think it was appropriate to continue acting on behalf of the Post Office, in relation to these matters?
Martin Smith: I didn’t think of it in that way at the time.
Mr Stein: What do you think about it now?
Martin Smith: I can very much understand your point.
Mr Stein: Do you agree with it?
Martin Smith: I’m not sure I do.
Mr Stein: Okay. Why not?
Martin Smith: Because the fact that we’ve become aware of this information, we’ve mentioned it to our client and we are then assisting our client to move on in terms of looking at cases, reviewing files and looking for a new expert.
Mr Stein: But not calling the police. What did you tell Fujitsu?
Martin Smith: I don’t believe we said anything to Fujitsu about this.
Mr Stein: Mr Jenkins is employed by who?
Martin Smith: Fujitsu.
Mr Stein: Yes. You’ve come to the conclusion that Mr Jenkins has misled the courts, dishonestly. Did you not consider it might not be a bad idea to tell Fujitsu about their employee?
Martin Smith: I didn’t give that any thought. Perhaps I thought that Post Office might do that, given that they are the ones with the contractual relationship with Fujitsu.
Mr Stein: It didn’t cross your mind or Mr Clarke’s mind, as far as you’re aware, to perhaps tell the Post Office that it ought to tell Fujitsu that, on your view, their expert has been dishonest with the courts?
Martin Smith: No, I don’t – no, myself and Mr Clarke did not discuss that. We didn’t discuss the fact that we were potential witnesses. We did not discuss the possibility of informing the police or Fujitsu.
Mr Stein: Right. Now, let’s deal with the shredding advice, also penned by Mr Clarke. Now, the “shredding” advice come about because what had happened was that you’d learnt from Jarnail Singh, in a conversation that, again, you’d recorded, that Mr Scott, Head of Security at Post Office was suggesting that minutes should not be kept, otherwise they might be disclosed; do you agree?
Martin Smith: I don’t agree fully with what you’ve said. It wasn’t the entirety of the phone call that was recorded, it was just the latter part that was recorded.
Mr Stein: But that was the thread of what was in the shredding advice?
Martin Smith: It was – the shredding – if we’re going to call it – the shredding advice contained information relating to that call and also, as a byproduct of some of the Wednesday morning calls.
Mr Stein: Yes, the shredding advice does not record that there was also a comment made to Mr Singh and reported to you that what was going to happen was that Cartwright King were going to be blamed for destroying documents. I read from your statement, paragraph 45, page 12:
“My recollection at the present time is that Mr Singh alleged that John Scott had indicated an intention to shred the minutes and to explain, if asked, that they had been destroyed on the advice of Cartwright King.”
You repeat that in relation to the same conversation at paragraph 52, page 14. Now, the shredding advice does not record the fact that, essentially, Mr Scott was apparently willing to blame Cartwright King for shredding of evidential material.
Martin Smith: Mm.
Mr Stein: Why does it not record that?
Martin Smith: I don’t know.
Mr Stein: Is it not a serious accusation –
Martin Smith: It is, yes.
Mr Stein: – and a serious suggestion to be made in relation to a firm of solicitors?
Martin Smith: Yes.
Mr Stein: Did you tell the partners of the firm of Cartwright King?
Martin Smith: I would have reported it to Mr Cash, undoubtedly, who was the partner in charge of the Derby office. I can’t recall precisely whether I spoke to the other partners.
Mr Stein: Well, what was Mr Cash’s reaction? Was he delighted?
Martin Smith: I don’t think anyone was particularly delighted about that suggestion.
Mr Stein: By this point in July 2013, do you agree you and the firm of Cartwright King were hopelessly conflicted in relation to your dealings with Post Office?
Martin Smith: I don’t think that crossed our minds.
Mr Stein: Did you take any advice on that?
Martin Smith: I just simply reported what had happened to Mr Clarke and that was it, really.
Mr Stein: Were these advices privileged, Mr Smith?
Martin Smith: What do you mean by that?
Mr Stein: You understand what privilege is? It’s the duty of confidentiality –
Martin Smith: Yes.
Mr Stein: – that exists between lawyers and clients?
Martin Smith: Yes.
Mr Stein: It allows for a lawyer to advise, in private, a client. Were the contents of these advices – in other words you discovering via a mini investigation with Mr Jenkins, that he apparently, on what you know, has misled courts, is that privileged material, Mr Smith?
Martin Smith: I’m really not quite sure.
Mr Stein: What about the shredding side of things? The fact that John Scott, Head of Security at POL, was both threatening Cartwright King and suggesting that evidential minutes should be destroyed; is that privileged, Mr Smith?
Martin Smith: No, that’s not.
Mr Stein: No.
No further questions.
Sir Wyn Williams: Thank you, Mr Stein, we’ll now have our break.
Mr Blake, can you ask the transcriber whether she requires 15 minutes or whether 10 minutes is enough. I’m comfortable with either.
Mr Blake: She would like 15 minutes, sir.
Sir Wyn Williams: Fine so we’ll start again at 3.20.
Mr Blake: Yes, thank you very much.
Sir Wyn Williams: Fine. Thank you.
(3.05 pm)
(A short break)
(3.20 pm)
Mr Blake: Thank you sir, we’re now going to turn to Mr Henry.
Questioned by Mr Henry
Sir Wyn Williams: Mr Henry, I think you’ve asked for five extra minutes. So 3.40.
Mr Henry: Thank you very much, sir.
Mr Henry: Could we go to POL00139866. These are notes that you took of a meeting with Mr Brian Altman, correct?
Martin Smith: They are a typed version of the notes that I took. I wasn’t typing during the meeting –
Mr Henry: Fair enough but you accept they are your notes?
Martin Smith: Yes, I typed these.
Mr Henry: Thank you. You’ll remember, of course, that this was the conference where Mr Altman advised that there was no positive duty to seek out individuals pre-1 January 2010, correct?
Martin Smith: Yes, that’s correct.
Mr Henry: Could we go to page 3 of these notes, please. Do you see the word “Susan”, that stands for Susan Crichton?
Martin Smith: Yes.
Mr Henry: “Better to keep [Fujitsu] on o/s [outside] given not resolved GJ [Gareth Jenkins] situation.”
Martin Smith: Yes.
Mr Henry: Then the QC says:
“Tactical point of view keep them as third party …”
Martin Smith: Yes.
Mr Henry: So, in other words, keep them at a distance, correct?
Martin Smith: Yes, I’m not quite sure in what context that is but, yes, that’s the reading of it.
Mr Henry: Well, I mean you must surely have reflected upon this. When did you realise you were going to become a witness in this Inquiry?
Martin Smith: No, what I mean by that is I’m not sure whether that is in relation to the provision of information from Fujitsu.
Mr Henry: It was better to keep Fujitsu on the outside, “given not resolved [the Gareth Jenkins] situation”. (Pause)
I’m not going to waste my 20 minutes by waiting for an answer. Shall we move on to page 6, please. Do you see, just at the bottom of the screen:
“QC: Misra concerned: pre-[Horizon] Online case – issues were as detailed as I’ve seen. She went to prison. Jenkins gave evidence – Training and [Horizon] issues: [Professor McLachlan] – much of it hypothesis – that is a case slipping through the net.”
Martin Smith: Yes.
Mr Henry: You realise, of course, that I am sitting next to Mrs Seema Misra today?
Martin Smith: I didn’t realise that.
Mr Henry: You would agree that she is owed the truth?
Martin Smith: Yes, absolutely.
Mr Henry: Right. So I’m going to can you some questions. Ms Crichton comments that she has applied for mediation and then the QC says:
“How are we going to deal if she comes forward and says similar …”
You see that?
Martin Smith: Yes.
Mr Henry: So she’s got to come forward. No one is going to tell her. That was the gist, wasn’t it? “How are we going to deal if she comes forwards and says similar”, it’s obvious she has got to come forward, the impetus is on her, no one is going to tell her.
Martin Smith: Well, it leads into the next sentence, doesn’t it?
Mr Henry: Precisely.
Martin Smith: “Susan: Either review all pre-2010 cases – or we do nothing and wait for them to come forwards.”
Mr Henry: Exactly, and that’s precisely what occurred.
Martin Smith: Yes, I think what occurred was that there was a decision to review cases which commenced after 1 January 2010, that being the earliest date upon which Horizon Online could have been in place but I think we changed that to any case with a hearing after 1 January 2010, which of course then included Mrs Misra’s case.
Mr Henry: Well, we’ll come to how you deal with it but I note your apparent justification for the decisions taken at that is conference and subsequently. But it seems, at this stage, no one wanted to provide Mrs Misra with a “ticket”, to use your expression, to the Court of Appeal: do nothing, adopt a passive approach. Correct?
Martin Smith: I would certainly agree that the Post Office did not want, at that stage, to be actively encouraging people to go to the Court of Appeal.
Mr Henry: No, and you know why that was, don’t you?
Martin Smith: I take it you’re going to enlighten me.
Mr Henry: Oh, come on. Must we play games, Mr Smith? I’m sitting next to a lady who was the foundation stone for the prosecution policy. Her case was a test case which was used to deter civil claims and criminal defences. The conviction obtained against her was absolutely seminal in the whole prosecution policy; you must have realised that?
Martin Smith: I was aware that Mrs Misra had been prosecuted. I think, at the point – at the time of this conference, I don’t think we had seen her file. I think we were being told that her file was not available, it couldn’t be found. And I think that the first time her case was reviewed was, I think, by Mr Clarke having to read the judge’s summing-up to the jury, and I think that was also provided to Mr Altman, King’s Counsel, and I think he commented that a particular page was missing. It wasn’t until quite some time later that the case file relating to Mrs Misra was discovered and provided.
Mr Henry: Right. Can I just ask you, please, to keep your answers short because they’re eating into my time and I’ve got quite a lot of things to put to you.
Martin Smith: I do apologise.
Mr Henry: Right. I’m going to go and ask you this question. In view of the answers you have given to Mr Stein, King’s Counsel, and in view of what you already knew by this time, namely the 28 June recorded conversation, the 15 July advice, why wasn’t Mrs Misra immediately being told?
Martin Smith: I don’t know.
Mr Henry: Well, I suggest the reason is obvious and it is going to be clear from the evidence that you’ve already given to Mr Blake. It is because of the fact that, if disclosure had been made to her promptly, it would have, as it were, set off the domino effect, wouldn’t it?
Martin Smith: I don’t think that I gave any thought to that whatsoever.
Mr Henry: You have spoken, haven’t you, about how you were concerned. How the civil lawyers, Rodric Williams, Mr Parsons, et cetera, et cetera, the civil lawyers, appeared to be exerting pressure. Talk of suppressing disclosure, talk of not putting things in writing, et cetera, et cetera, et cetera?
Martin Smith: In civil litigation.
Mr Henry: But, of course, if Mrs Misra’s appeal was promptly notified to her, an irresistible appeal – you surely don’t dissent from that judgment?
Martin Smith: No, I think the plan of action was that cases, all cases, should be reviewed and they should go through the sift process, then senior counsel would conduct a full review to determine whether disclosure should be provided, and that is precisely what happened in relation to Mrs Misra’s case. I’m afraid I don’t recall having any particular involvement with Mrs Misra’s case but –
Mr Henry: Well, we’ll come to that. It seems, you agree, at that stage, that you didn’t want to provide Mrs Misra with a ticket to the Court of Appeal. Then these words that “there may be Misras”, other Misras we can’t avoid, this is the QC:
“Provisional view: sensible date to adopt [in other words 1 July 2010]. But can’t avoid possibility that Misras may crawl out of the woodwork: deal with on case-by-case basis unless someone states cut off unreasonable.”
In other words, do nothing pre-2010 but some applicants may yet emerge, deal with them ad hoc, unless someone challenges the 2010 cut-off as being unreasonable. You agree with that?
Martin Smith: That was Mr Altman King’s Counsel’s advice, yes.
Mr Henry: Let’s go to Mr Matthews, page 7, please.
Sir Wyn Williams: Before you go there, Mr Henry – and I’ll give you an extra minute because I’m interfering – what does “Misra unique” mean, so far as you’re concerned, Mr Smith? You see just a couple of lines down from the point Mr Henry took you?
Martin Smith: I’m afraid I have no idea, sir. I’ve got no idea.
Mr Henry: Let me jog your memory. It’s because it’s the only case in which Mr Jenkins gave oral evidence against a defendant, although he had given written evidence. That’s why she was unique.
Martin Smith: That may be the case.
Mr Henry: Right. Go to page 7, if we may, and Mr Matthews says:
“Misra: apologise?”
The QC is reported to have said:
“I wouldn’t.”
You wouldn’t have written that down if that wasn’t accurate, would you, Mr Smith?
Martin Smith: No, I wouldn’t.
Mr Henry: Because, of course, an apology would let the cat out of the bag, it would let the Jenkins cat out of the bag. So, therefore, there was an approach of do nothing, masterly inactivity, correct?
Martin Smith: I don’t believe that Mr Jenkins was discussed in relation to this.
Mr Henry: Well, what would you be apologising for? What would the apology for Mrs Misra be for, if it weren’t to be in connection with the fact, “Oh, I’m sorry, we secured your conviction on the basis of an expert who did not know his duties to the court and who may, on the information that we have on tape, suppressed vital information about bugs, errors and defects”? You know even Mr Matthews thought that maybe that deserved an apology, didn’t he?
Martin Smith: I think this may have been discussing the way in which her mediation application may have been dealt with, and –
Mr Henry: Well, I can deal with that in very short order because Mr Altman said, “Don’t mediate with her”, didn’t he?
Martin Smith: Well, he was against mediating with anyone who had a conviction. He was very clear in his advice in relation to that.
Mr Henry: Yes. As we can see on page 7:
“See mediation for anyone who is outside scope of criminal scheme. I think storing up problems.”
“Storing up problems” is a phrase I underline:
“Is she considering out of time appeal?”
That must be a reference to Ms Misra.
Martin Smith: It –
Mr Henry: You agree?
Martin Smith: I do agree, yes.
Mr Henry: Page 8 of 11:
“No problem with mediation. However do have a problem with someone going convicted to scheme. My view is storing up problems with Misra.”
So his clear and unambiguous advice was: don’t mediate with her.
Martin Smith: Yes, that’s correct.
Mr Henry: At the foot of page 8, please. Do you see, at the foot of page 8, five lines up from the bottom:
“At the moment on the right lines just control it.”
That’s, again, Mr Altman speaking, isn’t it?
Martin Smith: I believe so yes.
Mr Henry: Of course, that echoes. It echoes the Altman general review at paragraph 129, that Mr Blake took you to this morning, where Mr Altman writes:
“Cartwright King wish to exercise a measure of control over the dissemination of information and material during the process.”
So this is where, I suppose, Mr Altman is basically saying “Yes, keep a vice like grip on disclosure”, correct?
Martin Smith: He was advising to be very careful what was disclosed, yes.
Mr Henry: “Keep a vice-like grip on disclosure”, keep it tight.
Martin Smith: I don’t recall the words “vice-like grip” being mentioned.
Mr Henry: Well, he didn’t want anything to be loose, did he?
Martin Smith: I think his view – well, as I understand his view, he was very much of the view that a casual comment or a throwaway comment or even an apology could actually have a substantial ramifications for Post Office.
Mr Henry: Right. Now, I want to understand now, in the remaining minutes that I have, how a decision was taken on the 5 December 2013, when the firm said – and it was the firm – that Mrs Misra should have disclosure, because on 5 December 2013, POL00198595 – and it’s a matter of record, it’s paragraph 33 of that document:
“It is our view that this case clearly passes the disclosure threshold and we will be disclosing the Second Sight Interim Report and the Helen Rose Report to Misra’s lawyers. It should be said, however, that the defence were aware of the Falkirk defect in this case and it was discussed in the trial. This is the only pre-Horizon Online bug of which we are aware.”
So two questions arising out of that paragraph: who wrote that paragraph?
Martin Smith: What’s the name at the bottom of the document?
Mr Henry: Cartwright King.
Martin Smith: Cartwright King. Well, it certainly wasn’t me who wrote that paragraph.
Mr Henry: You were involved in the preparation of this document, you say so in your statement.
Martin Smith: Yes.
Mr Henry: Can you not tell Sir Wyn, the Chairman of this Inquiry, to the best of your recollection, who wrote that paragraph?
Martin Smith: If there is – if it just simply says, “Cartwright King” at the bottom of the document then I would guess that that is written by Mr Bowyer because Simon Clarke would generally sign off his paragraphs – sign off his documents, “Simon Clarke”.
Mr Henry: I see. So I now ask you this question: why was Mr Bowyer taken off this matter because, on 22 January 2014, Mr Clarke sent you an email which had the full review of the Seema Misra case, draft document, and he said one word in that email to you when he sent it to you, it was “Phew!!!”
Who took Harry Bowyer off the case and put Simon Clarke on it?
Martin Smith: I’m not aware that anyone took Harry Bowyer off the case.
Mr Henry: Well, why didn’t Mr Bowyer, if he wrote paragraph 33, have continuing control of the matter? Why was it that on 22 January 2014, Mr Clarke sends you an email with word “Phew”, attaching a document which says that Mrs Misra shouldn’t have any disclosure?
Martin Smith: I don’t recall that.
Mr Henry: You responded to it:
“As one complex matter ends, another starts.”
You were in on this, weren’t you? Tell us the truth. Why did the firm do a complete backflip, somersault, on whether Mrs Misra’s team should get disclosure?
Martin Smith: I didn’t – I don’t recall appreciating that there was a complete somersault.
Mr Henry: Are you being serious, Mr Smith?
Martin Smith: I am being serious with you. Yes, I’m being deadly serious with you. I remember that the initial review of Mrs Misra’s case was a partial review based on the judge’s summing up, and then Mr Clarke looked at that and it would appear from what you’re saying that he then reached that decision. I am afraid I can’t add anything more to that.
Mr Henry: Can we go back to first principles. 28 June, 15 July, expert witness credibility fatally undermined, if Mr Jenkins had given evidence either orally or in writing against any defendant, the material that you had from 28 June and 15 July was material that would cast doubt upon the safety of any conviction associated with his evidence, wouldn’t it?
Martin Smith: I agree with that now, yes.
Mr Henry: You should have agreed with it then and you did agree with it then because of the 5 December 2013 document that went out in your name, saying that she ought to have been given disclosure. What happened between 5 December 2013 and 24 January 2014? Tell the truth.
Martin Smith: I have got no idea. As far as I was aware, Mrs Misra’s case was being looked at in accordance with the protocol – I’m speculating but it may be, by the time Mr Clarke had looked at it again, we perhaps had more information. Perhaps the full file.
Mr Henry: You were in daily contact, you told Mr Blake, with Jarnail Singh.
Martin Smith: Almost daily.
Mr Henry: Again, I put it to you that, if Mrs Misra’s lawyers had been given prompt disclosure, the whole prosecutorial facade of Horizon’s reliability and infallibility would have collapsed, wouldn’t it?
Martin Smith: Her case was assessed by Mr Clarke, who, as you’ve said, concluded that no disclosure was necessary. Disclosure was made to other people.
Mr Henry: We know that but the reason why he said that, I suggest, is because somebody obviously but pressure on him because of the ramifications Mrs Misra’s inevitable appeal would have had for both civil and criminal litigation.
Martin Smith: Well, that’s – with respect, that’s nonsense and it certainly wasn’t me.
Mr Henry: Well, why is it nonsense?
Martin Smith: Well, I’ve not put any pressure on Mr Clarke. None at all.
Mr Henry: You can offer no explanation at all for Mr Bowyer not continuing with carriage of the matter and that fundamental shift between 5 December 2013 and 24 January 2014 – or forgive me, 22 January 2014. You can offer no explanation?
Martin Smith: No. All I can think of is, by that time, it may be that we had more information because, to start with, as I’ve already said, there was very little information available and then I think the file was then discovered, and sent thorough. Now, how that fits into the timescale I’m not sure. But –
Mr Henry: I’m afraid that your assumptions here are incorrect, as would be clear if you had read the 22 January advice. I ask you for the final time – and my time is up – what is the truth about the firm’s shift between Mrs Misra should get disclosure in December 2013 to Mrs Misra ought not to get disclosure under any circumstances on 22 January 2014?
Martin Smith: I cannot give you any information in relation to that. All I can suggest is that you ask Mr Clarke as to how he came to his conclusion.
Sir Wyn Williams: Thank you, Mr Henry.
Right. I think the final series of questions comes from Mrs Oliver.
Questioned by Ms Oliver
Ms Oliver: Thank you, sir.
Mr Smith, I ask questions on behalf of Gareth Jenkins. I hope you can just about see me.
Sir Wyn Williams: For the avoidance of doubt, your time limit is 4.05, Ms Oliver.
Ms Oliver: I’m grateful. Thank you, sir.
I have three topics that I want to cover with you this afternoon: firstly, the question of expert duties; secondly, the call that you conducted with Mr Jenkins in relation to the case of Samra; and, thirdly, a discrete element of your treatment of Mr Jenkins in the case of Ishaq. All right?
So to turn to the first of those, then. You have very candidly accepted that, at the time you were prosecuting these cases, you were not aware of your duties in instructing and deploying expert evidence; is that correct?
Martin Smith: That’s correct, yes.
Ms Oliver: Following what you said, that it is difficult to follow something of which you are not aware –
Martin Smith: Yes.
Ms Oliver: – you also candidly acknowledged that Cartwright King never instructed Mr Jenkins in a compliant manner and never told him about the expert duties to which he was subject?
Martin Smith: That’s also correct, yes.
Ms Oliver: Thank you. The way you deal with that in your second witness statement – I don’t think we need to go to it, it’s paragraph 21 of that statement – is that you state:
“Mr Jenkins should have been given detailed written instructions in relation to each individual case which enclosed a full set of papers, asked specific questions and set out the duties of an expert instructed by the prosecution. Mr Jenkins had not been so instructed.”
Is that correct?
Martin Smith: Yes, that’s right.
Ms Oliver: In that paragraph 21, you don’t specify between Cartwright King and Post Office in terms of their instructions. Did you come to the same conclusions as to the non-compliant instruction of Mr Jenkins in relation to Post Office’s use of him in the prosecutions they conducted before Cartwright King became involved?
Martin Smith: I’m sorry, I’m struggling to see you.
Ms Oliver: I’m going to come this way, hopefully that will be easier?
Martin Smith: No, I’ll go back that way.
Ms Oliver: That’s very kind of you, thank you.
Martin Smith: I took the view that it became apparent to me, following the provision of Mr Clarke’s Advice, that we had not been compliant in terms of instructing Mr Jenkins. Mr Singh, who had followed Mr Bowyer’s advice, had not been compliant in instructing Mr Jenkins and, of course, Mr Singh was Head of Criminal Law at Post Office and, in the circumstances, I was quickly coming to the view that, actually, when the Post Office was part of the Royal Mail Group, it was highly unlikely that he had ever been advised of his duties then either. Otherwise, even though there was a requirement to advise him on each occasion, which I was unaware of, it occurred to me that he probably had never been advised at all.
Ms Oliver: Thank you. So the answer to my question, then, is that it did relate both to Cartwright King’s instruction and to Post Office’s?
Martin Smith: Yes.
Ms Oliver: Thank you. Do you agree that was a serious failing on the part of Cartwright King and Post Office, in the manner in which they conducted these past prosecutions?
Martin Smith: It was a serious failing in terms of how they obtained expert advice.
Ms Oliver: Thank you. Do you agree it’s particularly important, because it goes to the very failing that Mr Clarke identified in his advice of 15 July 2013, by which I mean the failure to disclose material in accordance with those expert duties?
Martin Smith: It does go to that, yes.
Ms Oliver: Thank you. I think you said in answer to my learned friend for Counsel to the Inquiry that you knew of that failure, certainly in relation to Cartwright King, at the time that Mr Clarke was producing the advice of 15 July; is that right?
Martin Smith: It was that advice which really drew my attention to it.
Ms Oliver: Is it something that you discussed with Mr Clarke at the time he was writing that advice?
Martin Smith: I don’t recall discussing it with him.
Ms Oliver: Are you aware of whether he was aware of that lack of expert instruction at the time he was writing his advice?
Martin Smith: I don’t know.
Ms Oliver: Thank you. Can we please go to a document, it’s POL00155555. Thank you. This is a handwritten note. You can see the date in the top right-hand corner. It’s 2 September 2013. We’ve heard evidence that this was a note authored by Rodric Williams of Post Office. It appears to refer to you at a number of points. I’m just going to identify those for you. About halfway down the page, we can see it seems to be the words “Tell to MS”; do you say that?
Martin Smith: Yes.
Ms Oliver: If we scroll down a little bit further, please, we see on the left “Martin Smith”, then the word “inference”, and then a few lines down “M Smith”. Do you recall having a conversation around this time with Mr Williams?
Martin Smith: No, I’m sorry. I don’t.
Ms Oliver: Right. If we go to some of the things he records, that might jog your memory. On the right-hand side of the page we have in front of us at the moment, in the box, it says, “What were we doing to instruct GJ”, and then, on the left of the page, under the words “M Smith” are a number of arrow bullet points, the first of which is:
“Don’t think he’s ever been advised of his duties.”
Do you think that this note might be recording a conversation that you had with Mr Williams?
Martin Smith: It’s quite possible, yes.
Ms Oliver: Do you recall whether, during a conversation you had with Mr Williams, you informed him of your view that you’ve informed us of this afternoon, that you don’t think Mr Jenkins had ever been advised of his duties?
Martin Smith: I can’t recall a conversation, I’m afraid. It’s such a long time ago.
Ms Oliver: Right. Do you recall being party to any other discussion with anyone within Post Office as to the conclusion you’d reached that Mr Jenkins had never been properly instructed as an expert?
Martin Smith: No, I don’t.
Ms Oliver: If, as this note appears to indicate, you were having that sort of conversation with Mr Williams, does that make it more likely that that’s a conversation you would have had with Mr Clarke as well?
Martin Smith: I may that have had that conversation with Mr Clarke but I can’t say it makes it more likely. I just don’t know.
Ms Oliver: All right, thank you. Can we please turn to POL00139866. This is your typed note of the notes that you took during a conference with Brian Altman QC on 9 September 2013. If we could go to page 4, please, about halfway down, it’s the entry that starts “Simon”, and then it says:
“Goes become to GJ. Either he not aware of info or FJ ivory tower – not being taken seriously.”
Do you recall what that comment from presumably Simon Clarke referred to?
Martin Smith: Yes, I can recall that there was a discussion about Mr Jenkins and I actually – I think I actually wondered whether he had actually become aware in a timely fashion of the various bugs himself and, according to this note, Mr Clarke’s view was either he wasn’t aware of the information or, alternatively, that FJ, meaning Fujitsu, was in an ivory tower and not taking their obligations seriously.
Ms Oliver: As part of the discussion about Mr Jenkins that appears to have featured in this conference, did you at any point tell Brian Altman QC of your conclusion that Mr Jenkins had never been instructed in a compliant manner and had never been told about his expert duties?
Martin Smith: No, I don’t think that occurred to me.
Ms Oliver: All right. Can we please turn to the Simon Clarke Advice, it’s POL00006357. Can we go, please, to paragraphs 37 and 38, which I think are on page 13. Thank you. So there we see at paragraph 37 the conclusion that I’ve already referred to, that “Dr Jennings”, meaning Jenkins, “has not complied with his duties to the court, the prosecution or the defence”, and it sets out the expert duty of disclosure there.
Then at paragraph 38:
“The reasons as to why Dr Jenkins failed to comply with this duty are beyond the scope of this review.”
Do you know why those reasons were considered beyond the scope of this review?
Martin Smith: No, I don’t.
Ms Oliver: Is it because the reason it appeared you knew at that point, at the very least may have been – and by “the reason”, I mean the reason for Mr Jenkins’ failure to comply with that disclosure obligation – may have been that he was never told about the very duty he was accused in this advice of breaching?
Martin Smith: I think Mr Clarke was concentrating on the effects of the failure, not the method of instruction, because we knew at that stage that Mr Jenkins had been instructed, obviously for quite some number of years, whereas Cartwright King had been involved at that stage for approximately one year.
Ms Oliver: Well, all of the statements that Mr Clarke refers to in this advice concern statements obtained by Cartwright King.
Martin Smith: Yes.
Ms Oliver: All right? So that’s certainly the focus of his discussion.
Martin Smith: I believe I handed them to him.
Ms Oliver: All right. But did you not think it relevant, the manner in which Mr Jenkins had been instructed, of the expert duty that he was accused in this advice of breaching?
Martin Smith: No. I didn’t give that thought, I’m afraid.
Ms Oliver: On any view, do you agree that what you discovered about the lack of instruction of Mr Jenkins was a hugely relevant factor, hugely relevant material to anyone who was looking at the conduct of past prosecutions, whether that be Post Office or Cartwright King?
Martin Smith: I can see that now but I didn’t think about that at the time.
Ms Oliver: Do you agree that that conclusion that you had reached as to the lack of Mr Jenkins’ instruction ought to have been communicated to Mr Altman, to Post Office, to the CCRC?
Martin Smith: I’m afraid I didn’t think of it in that level of depth.
Ms Oliver: Is the reason why there was a lack of openness about that conclusion that you had reached because it would have been professionally damaging to Cartwright King to make that concession?
Martin Smith: No, I just didn’t think of it in that way. I mean, I was looking at it, in fact, you know, this is where we are now. We have these reports. They didn’t mention bugs. What are we going to do about it?
Ms Oliver: Had it become known, Mr Smith, that there had been that acknowledged failure on the part of Post Office and Cartwright King, that would have led to an obvious conflict for your firm continuing their involvement in reviewing those past prosecutions, wouldn’t it?
Martin Smith: I didn’t give that any thought, I’m afraid.
Ms Oliver: Right.
Martin Smith: I just simply thought, as a matter of fact: well, I’m not – you know, we certainly haven’t provided that level of instruction which Mr Clarke has referred to and I don’t think Post Office did either, or the Royal Mail Group for that matter. That was simply my thought process.
Ms Oliver: Is the relevance of that failure to the conclusions of Mr Clarke simply something you didn’t recognise at the time?
Martin Smith: Well, I just didn’t think of it.
Ms Oliver: All right, let’s turn to my second topic then, please. I’m wary of the time. If we can just look at the transcript of the call in relation to Samra. It’s POL00142322. It’s right, I think, that on 23 June 2013 you and Mr Clarke made a telephone call to Mr Jenkins; is that right?
Martin Smith: Yes, that’s right.
Ms Oliver: How was that recorded?
Martin Smith: I don’t recall precisely how it was recorded.
Ms Oliver: Do you recall how this note was produced from that recording?
Martin Smith: No.
Ms Oliver: Do you recall who prepared it?
Martin Smith: No, I don’t.
Ms Oliver: Do you recall when it was prepared?
Martin Smith: No.
Ms Oliver: Do you agree Mr Jenkins was given no warning about this call?
Martin Smith: I do, yes.
Ms Oliver: Do you agree he had no prior knowledge of the case of Samra?
Martin Smith: I don’t believe that he would have known about the case of Samra because I don’t believe any form of expert report had been sought in relation to that case, so he wouldn’t have had any instructions, whether defective or otherwise.
Ms Oliver: You acknowledged to my learned friend, Mr Stein, that you were at this stage suspicious in relation to Mr Jenkins. Is it right that this call was to test Mr Jenkins’ credibility, as you and Mr Clarke saw it, by seeing if he would agree that he had provided information to Second Sight about the receipts and payments mismatch bug and the suspense account bug?
Martin Smith: I’m not sure if the call was to test his credibility, I think Mr Clarke just wanted to speak to him, to try to get some information to determine how to proceed with the case against Mrs Samra.
Ms Oliver: What information was he hoping to obtain?
Martin Smith: I don’t recall.
Ms Oliver: If the call was being recorded, Mr Jenkins was not told that?
Martin Smith: He wasn’t told that, no.
Ms Oliver: He was given no chance to check the note for accuracy or understanding as to what he had said?
Martin Smith: No.
Ms Oliver: All right. Turning, then, to the third and final topic that I want to address. You, to a degree, had conduct of the case of Ishaq; is that right?
Martin Smith: To a degree, yes, yes. I think it got passed around quite a bit and, towards the end, it was very difficult to follow with the number of people who had involvement.
Ms Oliver: Do you recall that, at a certain stage in that case, Mr Jenkins was invited to comment on the first defence statement that Mr Ishaq had produced?
Martin Smith: I do, yes.
Ms Oliver: If we can please go to POL00119447. We see here an email from you on 4 February 2013, forwarding Gareth Jenkins’ comments on Ishaq’s DCS to Mark Ford and Steve Bradshaw. Do you recall reviewing those comments that Mr Jenkins had made on the defence statement?
Martin Smith: I don’t recall reviewing them, I’m afraid, but I guess I must have done.
Ms Oliver: Thank you. If we can go to the comments that he made, please, which is POL00059602. Thank you very much. Here, under section 1 “Introduction”, Mr Jenkins says:
“I have been asked to comment on the Defence Case Statement in the case of R v Khayyam Ishaq.”
Then he states:
“I’m not sure that the responses are of much use and I don’t think there is anything much that can really be added to my statement as a result. However if you feel any of this could be usefully added I’m happy to be convinced.
“Much of it relates to requiring further data for analysis, and past experience indicates that help may be required in understanding it.”
So he is referring there to the fact that there is data that might be obtained that would assist in the preparation of the case; do you agree?
Martin Smith: Yes, he’s talking about data that can be analysed and also talking about the fact that the defence may not necessarily understand it. So he’s saying that he could assist the defence.
Ms Oliver: Thank you. Then if we can please go to page 2., under number 7, part of the nature of the defence is set out in relation to Post Office Horizon software/hardware system malfunctioning. He says:
“If the defence can specify some examples of this, I am happy to investigate them. However I would contend that the system doesn’t malfunction without leaving some trail to indicate what has happened. Without examining the logs it is difficult to be any more specific.”
Do you interpret that as another reference to the ARQ data that could be obtained in this case?
Martin Smith: I think it – I’m not sure if I understood it to be the ARQ data but I thought that data had been obtained in this case.
Ms Oliver: Well, data had been obtained in this case, you may remember, and provided to the defence but was never provided to Mr Jenkins; do you remember that?
Martin Smith: No, I don’t recall that and I think we were potentially of the view that, with Mr Jenkins being at Fujitsu, he could quite easily look at the data that Fujitsu held.
Ms Oliver: Did you not understand that he was reliant on Post Office in order to obtain the ARQ data?
Martin Smith: No, I don’t think I was.
Ms Oliver: All right. If we can go to page 4, please, and subsection vi. This is the defence request for all Horizon system data for a particular period of time. Mr Jenkins states:
“I assume that this is the data returned in the ARQs by Fujitsu to Post Office Limited. I have not seen this, but would be happy to examine it if required.”
When you saw these comments from Mr Jenkins and the repeated offer to look at the ARQ data, why was it that you did not ensure he was provided with that underlying data?
Martin Smith: I was under the impression that he had the data.
Ms Oliver: Well, we know that, in fact, he is never provided with the data and he tries to obtain it for himself on the eve of trial; do you recall that?
Martin Smith: No, I’m afraid I don’t.
Ms Oliver: Do you agree that, in these comments, Mr Jenkins is indicating that system malfunctions are possible and could be looked for in the logs?
Martin Smith: Yes, and he’s also inviting the defence to supply some examples, which is, indeed, what I was trying to do, as well.
Ms Oliver: And that he’s saying that he cannot be more specific unless he has examined those logs?
Martin Smith: Yes.
Ms Oliver: Thank you. Those are my questions.
Sir Wyn Williams: Thank you, Ms Oliver.
Thanks to all the legal representatives of Core Participants for their discipline in keeping to time limits.
That’s it, is it, Mr Blake? There are no further questions?
Mr Blake: That’s correct, sir.
Sir Wyn Williams: So thank you, Mr Smith, for providing two detailed witness statements to the Inquiry and for answering questions over yesterday and today. I’m grateful to you.
The Witness: Very well. Thank you.
Sir Wyn Williams: We’ll resume at 9.45 tomorrow morning?
Mr Blake: Yes, sir, with Mr Singh.
Sir Wyn Williams: Yes.
Mr Blake: Thank you.
(4.07 pm)
(The hearing adjourned until 9.45 am the following day)