Official hearing page

8 May 2024 – Brian Altman

Hide video Show video

(9.45 am)

Mr Beer: Good morning, sir, can you see and hear us?

Sir Wyn Williams: Yes, thank you very much.

Mr Beer: Thank you. In a moment I’m going to call Mr Altman, King’s Counsel, but, before I do, I should say that because it’s a Wednesday there’s a file drill at 10.00 and so the feed will be cut for those that are following online.

Sir Wyn Williams: All right, that’s fine.

Mr Beer: We will all remain in the room.

Sir Wyn Williams: Yes.

Mr Beer: Mr Altman then, please.

Brian Altman

BRIAN ALTMAN (affirmed).

Questioned by Mr Beer

Mr Beer: Thank you, Mr Altman. As you know, my name is Jason Beer and I ask questions on behalf of the Inquiry. Can you give us your full name, please?

Brian Altman: Brian Altman.

Mr Beer: You should have in front of you a witness statement with the URN WITN10350100, which is 48 pages in length. Can you turn to the last page, please, page 48.

Brian Altman: Yes.

Mr Beer: Is that your signature?

Brian Altman: It is.

Mr Beer: Are the contents of it true to the best of your knowledge and belief?

Brian Altman: They are.

Mr Beer: Thank you very much for providing the witness statement, a copy of that will go up online on the Inquiry’s website. I’m not going to ask you questions about every part of it.

Can I start, please, with your background. I think it’s right that you were called to the Bar in 1981?

Brian Altman: Yes.

Mr Beer: You took silk in 2008. You served as Treasury Counsel between 1997 and 2013, the last three years of which you served as First Senior Treasury Counsel?

Brian Altman: Yes.

Mr Beer: You, at the material times we’re concerned with, practised principally in criminal law; is that right?

Brian Altman: Yes.

Mr Beer: Thank you. Can I start, please, with the general approach that you took to the work that you did on behalf of the Post Office and your understanding of what they wanted from you. I think you ceased to be First Treasury Counsel at the end of June 2013; is that right?

Brian Altman: Yes.

Mr Beer: You were instructed first by the Post Office the very next month in July?

Brian Altman: That’s correct.

Mr Beer: When you were instructed, were you conscious, then and afterwards, that the Post Office wished to trade on your former status as First Senior Treasury Counsel?

Brian Altman: I wasn’t conscious of it but I would say I suppose it didn’t surprise me that they would come to somebody with that history.

Mr Beer: It didn’t surprise you?

Brian Altman: No.

Mr Beer: Was there anything more than that?

Brian Altman: No one ever said to me that, “We are instructing you because of your professional history”.

Mr Beer: Can we look at some documents –

Brian Altman: Yes, of course.

Mr Beer: – that touch on this issue, please. They come up on the screen. POL00192287. Page 2, please, at the bottom. This is an email chain that you’re not party to: it’s not to you, it’s about you. You’ll see that it’s dated 18 July 2013, between Gavin Matthews and the people set out on that distribution list. He was a partner at Bond Dickinson, who was then to instruct you.

Brian Altman: Yes.

Mr Beer: He says to Susan Crichton, then General Counsel at the Post Office, “Here’s a list of possible candidates” and you’ll see, I think, Mark Ellison, in a link on that web page, Ian Winter at Cloth Fair Chambers, you at 2 Bedford Row, Nick Purnell at Cloth Fair Chambers and then a couple of others whose names aren’t revealed by the URNs.

I’ll skip over the next paragraph, the “From speaking to colleagues”. It says in the following paragraph:

“Brian Altman QC is interesting in that he is First Treasury Counsel (though his practice is not big on fraud cases). Simon [Simon Richardson, one of the solicitors] points out the possible attraction politically of having First Treasury Counsel on board.”

Then if we scroll up, please, and keep going and just stop there. Gavin Matthews says he’s spoken to the various clerks. Then under “2 Bedford Row”, that’s you, and if we scroll down please, at the top of the page it says:

“He [you] is no longer First Treasury Counsel (from 1 July) but he has the ear of the [Director of Public Prosecutions/Attorney General’s] office.”

Then at the top of the page, if we keep going, please, Mr Flemington, one of the lawyers, says:

“How long is a ‘few’ weeks in Brian’s case …”

I think that’s how long you’re away for, and then:

“His connections sound useful.”

Did anyone communicate to you, upon instruction or otherwise, that an attraction of having you as counsel would have a political dimension to it, in particular because you had the ear of the DPP or AG’s Office.

Brian Altman: Never.

Mr Beer: Were there any conversations that you had upon instruction or otherwise in which such sentiments were revealed to you?

Brian Altman: Not once that I recall, no.

Mr Beer: Would you understand why a client in the position of the Post Office in mid-2013, reviewing its past disclosure in criminal proceedings and possible miscarriages of justice, would see a political attraction of having you as its counsel?

Brian Altman: No. I see the attraction of having me from a legal perspective as their counsel but not politically.

Mr Beer: A legal perspective because you were a very experienced prosecutor?

Brian Altman: Yes.

Mr Beer: Can you understand what they’re talking about here at all, your connections, your having the ear of the AG’s Office?

Brian Altman: I can see immediately from that email it was not me who made that representation but I can see, probably, it was that that attracted them.

Mr Beer: You can see that, what, a belief that you had connections may have attracted them?

Brian Altman: Oh, yes.

Mr Beer: Did you ever use any such connections?

Brian Altman: No.

Mr Beer: Were you ever asked to use such connections?

Brian Altman: Absolutely not.

Mr Beer: Why do you think you can see why they would think that you having political connections would be useful?

Brian Altman: I can’t answer that, Mr Beer, because I don’t know what was in there mind, other than they may have thought that having somebody like me on the Post Office side instructed by them might give them some leverage in the political arena, but they were totally wrong if they did.

Mr Beer: Thank you. That can come down. Can we look, please, at POL00006802. This is your review, it’s an advice, but it’s badged up in the tramlines as a review, of 19 December 2013 and, essentially – we’re going to look at the detail later – but, in summary, it consists of a review of the Post Office’s investigatory and prosecutorial functions –

Brian Altman: Yes.

Mr Beer: – and, in particular, by looking backwards, advising the Post Office as to the continuation or non-continuation of those functions. Can we just look at page 40, please – scroll down – where you sign it off; do you see that?

Brian Altman: Yes.

Mr Beer: Against your name and your chambers is footnote 33, and footnote 33 takes us down to the foot of the page where it says that you’re a practising barrister; you were first appointed First Senior Treasury Counsel to the Crown at the Central Criminal Court by the Attorney General in December 2010 – you remained in post until the end of your tenure in June 2013; appointed Junior Treasury Counsel in 1997 and Senior Treasury Counsel in 2002; appointed a Recorder of the Crown Court in 2003; Queen’s Counsel in 2008; and were made a Bencher of the Middle Temple in 2010 and then there’s a link to your chambers webpage.

We asked you, when you were preparing your witness statement, whether this was your usual practice, to footnote your name or some other part of written advices and set out a mini career history, and you said it wasn’t your practice to do that –

Brian Altman: No.

Mr Beer: – and you couldn’t recall why you did it on this occasion.

Brian Altman: I can’t. Correct.

Mr Beer: Can I suggest some possibilities: was it that you knew or believed that your advice might be deployed outside the organisation?

Brian Altman: I mean, I thought about this because I was asked the question and the interesting thing is there’s an absence of a biography like this on the general review.

Mr Beer: Yes. I think I understand the point you’re making there: you’re saying, if there was to be a document that was to be deployed outside the organisation, it would be more likely to be the general review?

Brian Altman: Exactly. The only thing I can think of – but this is purely speculative – is that I was told or understood that this document would go to the Board. But whether I was ever told there was a possibility this review would go outside the organisation, I can’t say.

Mr Beer: If you were told that the document would or might go to the Board, why would that lead you to emphasising these points, as you do in footnote 33?

Brian Altman: Well, all I can imagine is that I was either asked or I felt it was appropriate for the Board to know who was given the advice because the advice in this review was not all one way. One of the points I made, having trawled through all of the policies that Post Office and Royal Mail had before Post Office, or at the same time as Post Office, were that they were in a parlous, unsatisfactory state of affairs. So that could have been my thinking but I’m speculating.

Mr Beer: The essence of the advice that you gave was that the Post Office could properly carry on investigating and prosecuting crime on its own behalf?

Brian Altman: On what I understood at that time, yes.

Mr Beer: Did you think that that overall conclusion might be deployed either outside the organisation or to the Board and, therefore, you needed to emphasise how senior and experienced you were?

Brian Altman: Well, again, one of the thoughts I’ve had is they must have known who they were instructing anyway, so this was just, if you like, telling them what they already knew.

Mr Beer: Yes, because we’re five months in now?

Brian Altman: Yeah. But I agree, I don’t know the answer to that.

Mr Beer: So for you this a curiosity too?

Brian Altman: I can’t remember. I mean, we’re going back over a decade and I can’t remember and I’m not going to say I was asked or if I felt it was a good idea to do it or somewhere in between; I just don’t know any more.

Mr Beer: Can we turn please to POL00214820. This is an exchange of emails, again to which you were not party, in December 2014, so a couple of years further on. The exchange is about what to say and what not to say to Nick Wallis in answer to questions that he was asking for the proposed broadcast of a second One Show piece. Can we go to page 4, please, at the foot of the page, please. Thank you. His question is at 6:

“We would like to put to you some opinion about the Post Office’s approach to investigating and prosecuting subpostmasters. We are in possession of an expert opinion from a professor in criminal justice which implies Post Office’s dual function as an investigator and prosecutor and its 300-year cultural history of using it against its agents is unique. That’s not to say he thinks you are the only organisation with prosecuting powers but that you have a unique culture of prosecuting your agents. He implies this approach lacks the checks and balances of a typical prosecution by the CPS. In his opinion this creates a situation where miscarriages of justice are more likely to occur.”

I’ll stop there.

(Pause for fire alarm test)

Mr Beer: Thank you. Can I just check that you’re still online, sir, and that you can see and hear us?

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

Mr Beer: Thank you very much.

Mr Altman, I read the question, the Nick Wallis question, but then the answer, and I believe this is written in by Rodric Williams, one of the Post Office litigation lawyers, he says:

“We should ask for this opinion – the privilege over it could have been waived.

“The ‘expert’ cannot comment on what our ‘culture’ is, at least not without speaking to us first.

“… if this ‘expert’ believes miscarriages of justice are likely to occur, he should set out for us the how and why so that we can be sure they don’t. Justice demands that.”

Then his:

“We have consulted former First Senior Treasury Counsel Brian Altman QC in accordance with our prosecution practices. Brian’s advice is privileged, and we CANNOT do anything which might waive that privilege. Please therefore do NOT do anything referencing Brian without clearing it with Legal first.

“We have let Brian know that we may want to name check him, and this was contemplated when he was instructed.”

So two questions arising from that. Is it right that when you were instructed, you were told that you might, to use these words, be “name checked” –

Brian Altman: If I was, I’ve long forgotten it.

Mr Beer: – ie that your name might be deployed?

Brian Altman: Yeah, I have absolutely no recollection of that.

Mr Beer: Then later on, by December 2014, can you recall again being told that they, the Post Office, may want to deploy your name to the BBC?

Brian Altman: I don’t. I have absolutely no recollection of that either.

Mr Beer: Was this is an issue that ever arose, to your recollection, that we want to say “We, the Post Office, have got Brian Altman on board, he was First Senior Treasury Counsel, you can be assured that we’re doing the right thing”?

Brian Altman: No. Well, as I sit here now, I have absolutely no recollection of that.

Mr Beer: Can we go forwards, please, to POL00297951. We’re going back to the time of your instruction. This is an exchange between Andrew Parsons, then a senior associate at Bond Dickinson, to Rodric Williams in the Post Office, a lawyer, and Gavin Matthews the partner, with you as its subject heading.

I think this is after you had given them the short – I think your clerk, John Grimmer, put it as a 20-minute freebie.

Brian Altman: I can’t remember the 20-minute freebie, to be frank with you, but the email, I seem to recall, was dated 18 July, so this was a few days afterwards.

Mr Beer: “In short, Brian looks like the right man for the job. In my view he was very impressive.

“He’s clearly taken this type of exercise before and is very live to the political dimension.”

Again, were you made aware that your client believed that there was a political dimension to the issues that the Post Office was facing?

Brian Altman: Well, if that line in this email is accurate, then, clearly, I must have been but what it was, particularly at that time, I can’t tell you.

Mr Beer: Was this political dimension described to you?

Brian Altman: Well, as I say, Mr Beer, I can’t remember. If the email is accurate, maybe something was said about it but I can’t remember what that was.

Mr Beer: They seem to think that you were very alive to it, the political dimension?

Brian Altman: Well, everybody probably at that time who read anything about Post Office was probably alive to the political dimension. I don’t think I had any unique insight into it.

Mr Beer: What would you understand the political dimension to have been in mid-2013?

Brian Altman: Well, again, speculating, because I can’t remember this, it would inevitably be the fact that Post Office was, in effect, a government-owned organisation and, clearly, the balloon was going up in respect of what had happened during the course of past convictions.

Mr Beer: Mr Parsons carries on:

“Big question – is Brian’s work private advice for [the Post Office] or an independent assessment of [the Post Office’s] criminal law position? One for us to think about.”

Do you understand the distinction between those two species of instruction?

Brian Altman: Absolutely.

Mr Beer: Of those two, firstly, can you explain what you understand the distinction to be?

Brian Altman: Well, private advice is advisory work to the client, which is privileged; and an independent assessment of Post Office’s criminal law position, with the emphasis on the word “independent” would be something that might be published.

Mr Beer: How was the instruction first presented to you on those two alternatives?

Brian Altman: Mr Beer, like me, you will know that the terms of reference went through so many drafts and, frankly, when I saw them, for the purposes of making my statement, I couldn’t sort out one from the other with any great ease. But I have to say, at no time did I ever understand that this was going to be some publishable independent review and I think, unless you correct me, that all of the terms of reference, in fact all of the drafts, were always couched in terms of non-publishability and that was always my understanding, and you’ll note what I said in my witness statement that, when I did come to write the general review, it was headed “Legally professionally privileged”. I set out all the terms of reference, which included its non-publishable nature and, also, that it was clear to me that this was advisory in nature and not an independent investigation.

Mr Beer: So, of those two species of instruction set out there, you understood this to be client advice in the ordinary sense?

Brian Altman: Yeah, private.

Mr Beer: You were not being asked to conduct a public or independent review of the Post Office’s prosecutorial investigatory practices or its past prosecutions?

Brian Altman: No, sir.

Mr Beer: If the latter had been the case, that you were instructed to conduct an independent assessment of the Post Office’s criminal law position, as it’s put out there, how would you have approached your task differently?

Brian Altman: I might have asked for more assistance than I had, so I might certainly have suggested that it would have to be far more wide-ranging and searching, if it was in the nature of a proper investigation, rather than advisory. So I would have almost certainly said I wanted resources, terms of reference might have been different because, in the nature of even a non-statutory inquiry or an investigation, you want to think about procedural fairness to people who might be criticised in the course of a public – publishable documents. So all of those things I would have thought about and I think my approach to it would have been very different.

Mr Beer: So your instructions, your terms of reference, would have been different; your approach would have been different; the resources that you would have asked for would have been different; and, presumably, your relationship with your client would have been different?

Brian Altman: Yes, I mean, the whole thing – the whole approach would have been entirely different, I would have kept them at arm’s length and I think it would have taken a substantial period of time longer than it actually did, although the general review took, as you can imagine, a long time to put together without any assistance. I’m not criticising but that’s the fact, but it would have taken much, much longer to do – to perform a proper independent investigation, of which, since that time, I have experience.

Mr Beer: Later in the piece, the Inquiry is aware that the Post Office came to rely on the work that you did do, as having given the reviews conducted by Cartwright King great or greater credibility?

Brian Altman: Yeah.

Mr Beer: Were you aware when you were instructed that that might occur, or was to occur?

Brian Altman: Forgive me for asking, do you mean within the organisation or outside the organisation?

Mr Beer: Outside the organisation. To, for example, the CCRC. Essentially, and I’m summarising greatly here, “You can trust the integrity and reliability of what we’ve done in reviewing our past convictions, after all we’ve got First Senior Treasury Counsel reviewing the work of Cartwright King”?

Brian Altman: Well, I think I was aware that the Post Office was either likely to do that or had done it. I know I was privy to some of the correspondence that went to the CCRC. But, yes, I suppose I was alive to that possibility.

Mr Beer: So, in that sense, the Post Office was treating your work as falling between two stalls; it was private work enjoying privilege but the existence of which was relied on for benefits when deployed outside the organisation?

Brian Altman: Yeah, I suppose you could say that.

Mr Beer: So they kept your advice private but used your name to, would you agree, bolster the integrity of what they were doing?

Brian Altman: That’s a possible inference.

Mr Beer: This can come down, sorry.

After receiving these instructions to advise the Post Office, were you advising as a prosecutor, briefed by a prosecuting authority, or as a member of the independent Bar, with considerable prosecution experience, advising a commercial entity?

Brian Altman: Principally the latter but not forgetting the former.

Mr Beer: Why do you say it was principally the latter, advising a commercial entity that happened to prosecute people?

Brian Altman: Yeah, well, because Post Office is, or was, a private prosecutor. But, at the same time, because of my history and my experience, you have to always have in mind that even a private prosecutor has to act as a minister of justice and act with fairness and I made that clear, I hope, pretty early on. So I always had in mind all of the principles which I was very much alive to, in advising them.

Mr Beer: In that calculus, did you bring into account the fact that, although the Post Office was a commercial entity, it could be seen in a public authority in that it was Government owned?

Brian Altman: I think I was actually asked that question and I’m struggling right now to remember where it is I confronted that issue, but I did, but, at the same time, I don’t think it made any real difference to my approach to the questions I was asked to answer.

Mr Beer: Why was that?

Brian Altman: Because, at the end of the day, whether you’re a private prosecutor or a public authority which prosecutes, the principles are the same.

Mr Beer: Did you consider whether you were approaching the matter from the perspective of being subject to the same ethical standards, as if you had been asked to advise, say, the CPS?

Brian Altman: Yeah, my ethics would never have changed.

Mr Beer: This issue, the capacity in which you were advising, doesn’t appear to be touched on in any of the advices, ie “I’m advising you as a commercial entity but the same applicable ethical standards apply”. Was there a reason for that?

Brian Altman: I can’t say if there was a reason. I probably didn’t even think it was necessary to have to spell out the precise capacity in which I was acting but, as I have said, I can remember very early on advising the Post Office of what its duties were and that it had to act with fairness.

Mr Beer: Was there any shift in the basis on which you were instructed when you were instructed on behalf of the Post Office in the Court of Appeal, essentially to prosecute?

Brian Altman: Any shift?

Mr Beer: Yes, any difference?

Brian Altman: None that I can think of, no.

Mr Beer: Were you ever contacted by, or did you ever contact, BTO, a firm of solicitors in Scotland, instructed to advise the Post Office in Scotland?

Brian Altman: Not once.

Mr Beer: Do you know whether your draft or final versions of your advices, that were addressed to the Post Office, were distributed to BTO Solicitors in Scotland or to the Crown Office and Procurator Fiscal in Scotland?

Brian Altman: I have absolutely no idea about that.

Mr Beer: Was there any communication with you about the distribution north of the border of the advice you were giving?

Brian Altman: None that I recall.

Mr Beer: Thank you. Can I turn to the second topic then, please. This is Mr Clarke, Simon Clarke’s advice of 15 July 2013 and the treatment of Gareth Jenkins. I think you, as you’ve said already, you were asked for your views and observations on the terms of reference for your initial instruction, correct?

Brian Altman: Yes.

Mr Beer: So you were asked to advise on what you should be asked to advise on?

Brian Altman: Yeah.

Mr Beer: I’ve got that right, yes?

Brian Altman: Yes.

Mr Beer: Okay. Can we look, please, at POL00006804. If we go to the final page, which is page 5, please, and scroll down a little, we’ll see that this is your document and it’s signed off on 2 August 2013. So, if we go back to the first page, please. These are essentially your observations on the draft terms of reference, your instructions?

Brian Altman: Yes.

Mr Beer: Do you know why they weren’t just called instructions, if this was a straightforward client-barrister relationship giving private advice?

Brian Altman: I suspect because they came from Bond Dickinson and the nature of that firm. They weren’t a criminal firm and I’m not even sure that Gavin Matthews, who was the principal point of contact, was a litigation lawyer.

Mr Beer: Even in civil law, though, when barristers are instructed, they’re normally called instructions?

Brian Altman: You may be right but, I have to say, I didn’t see any substantive difference between the use of the term “terms of reference” or “instructions”.

Mr Beer: In any event, this is your advice on the things that you’re asked to advise on?

Brian Altman: Yeah.

Mr Beer: If we look, please, at page 3, underneath heading “Process”, you say:

“Paragraph 2 of the ‘Process’ section of the overarching Terms of Reference … includes the possibility of my meeting Dr Jenkins. I note this is queried.

“Not meeting and hearing him, where there may be questions potentially impacting on non-disclosure by him and his role as an expert, risks exposing the final report to criticism. However, this not a judicial or public inquiry with the formal receipt of evidence. This is something I shall need to think about carefully; at this very early stage I am not unnaturally undecided. For now it may be better for the terms of reference to remain silent about him.”

Brian Altman: I think I say something more over the page, as well, about that.

Mr Beer: Yes:

“At all events, paragraph 3, as generally worded, covers it, as is acknowledged in paragraph 2.3 of the covering email, and in my view should be the wording adopted for both the overarching and abbreviated terms of reference documents.”

In your witness statement you say – no need to turn it up, it’s paragraph 21 on page 8:

“It is clear from this [this document] that early on in my instruction, I did consider whether to meet Gareth Jenkins. I do not have a copy of the document I am referring to here which must be an earlier iteration of the draft terms of reference and I do not know now what was queried, how it was queried, or by whom. In the event, I did not meet Gareth Jenkins, and I cannot find any record I had any further discussions about it or any record of my reasoning for not doing so.”

If we go back a page, please. Scroll down. In that final paragraph on the page there, why were you concerned that not meeting or hearing from Mr Jenkins would risk exposing your final report to criticism?

Brian Altman: Well, I think it’s in the first line, “where there may be questions potentially impacting on non-disclosure by him”. So I suspect I had in mind, at that point, the question why was it that Gareth Jenkins, particularly in the Seema Misra case, where he gave live evidence, had not disclosed what he knew about those two Horizon Online bugs? And so I suspect my thoughts at that time were targeted at that particular issue but –

Mr Beer: I’m so, sorry.

Brian Altman: No, it’s all right, but I suspect as time went on I came to the conclusion that the reasons why he had not revealed those bugs in trials in which he had provided witness statements or, in Seema Misra’s case, in particular, where he’d given live evidence, was not ultimately material to the questions I was being asked to consider. It was the impact of that non-revelation on convictions that was what I was being asked to look at.

Mr Beer: Mr Altman, I’m going to explore that distinction that you’ve just drawn, that reasons irrelevant, impact important. Would it be that, as you’ve written here, that not meeting him would be turning a blind eye to a potentially useful source of information? That’s why you wouldn’t want to do it?

Brian Altman: That’s why I would or would not want to do it?

Mr Beer: Would not want to do it?

Brian Altman: If you’re suggesting that I’m turning a blind eye, I was not turning any blind eye to anything.

Mr Beer: You’d identified here that, if you didn’t meet him or didn’t hear from him, it would expose your final report to criticism. In the event, you didn’t meet with Mr Jenkins, did you?

Brian Altman: No, I didn’t.

Mr Beer: Whilst we’re on this point, why was the product of your instructions, your terms of reference, to be called a “final report” rather than what we normally provide, which is advices and opinions?

Brian Altman: It was just the use of the words. I think if you – I mean, I regarded this as an advice and, in fact, the review document is referred to as a “review” not a report.

Mr Beer: You say it’s not a judicial or public inquiry, with the formal receipt of evidence, the thing that you were undertaking.

Brian Altman: Yeah.

Mr Beer: Does that suggest that you thought that it was some form of inquiry, a private inquiry or a private review, rather than just client advice?

Brian Altman: Well, I think there is a mixing of terms here. But I have no doubt that I was being asked to give private advice to the Post Office.

Mr Beer: In the last line you say:

“For now, it may be better for the terms of reference to remain silent about [Mr Jenkins].”

Why did you consider it best for the terms of reference to remain silent on Mr Jenkins?

Brian Altman: Because I didn’t – hadn’t resolved at that point whether I was going to see him.

Mr Beer: That’s a separate issue, isn’t it, whether or not you saw him, to whether or not the terms of reference should mention him?

Brian Altman: No, well, I think I see what you’re driving at but I just felt that we were debating, me and Gavin Matthews, as to what the terms of reference should be and so my view was, if I had – I had not yet resolved to see him, then there were no point sticking it in the terms of reference, which were ultimately my instructions.

Mr Beer: Had the centrality of Mr Jenkins to the issues been communicated to you by this stage, August 2013?

Brian Altman: Well, I’d clearly understood what had happened in the trials and I’d clearly read the Clarke Advice.

Mr Beer: So it had either been communicated to you or you had, by this time, realised that he was a central figure?

Brian Altman: I understood that.

Mr Beer: Why wasn’t there an investigation into how and why Mr Jenkins came to give evidence that Mr Clarke had advised was misleading and a breach of his duties to the court?

Brian Altman: Well, when you say an investigation – because I wasn’t conducting an investigation; I was giving advice to the Post Office.

Mr Beer: Why didn’t you give advice that the Post Office should investigate why Mr Jenkins had come to give evidence that was, according to Mr Clarke, misleading and in breach of his duties to the court?

Brian Altman: Because I come back to what I had thought, that the advice I was giving was about the impact of that failure on the prosecutions and the convictions and not the reasons why he had failed to do it.

Mr Beer: What did you know at this point about how Mr Jenkins had been instructed?

Brian Altman: Do you mean his instruction as an expert?

Mr Beer: Yes.

Brian Altman: I’m not sure I was told.

Mr Beer: Did you ever ask for or review any instructions that he was given?

Brian Altman: I can’t remember having done.

Mr Beer: So did you ever appreciate the risk that Mr Jenkins had himself been manipulated by the Post Office or misinstructed?

Brian Altman: No. I suspect I assumed, because I was not told otherwise, that he’d been properly instructed throughout.

Mr Beer: Did you check whether that was, in fact, the case?

Brian Altman: There is nothing in the material I’ve seen to say that I did.

Mr Beer: Did you check whether Cartwright King were going to address that issue, namely the proper instruction of Mr Jenkins as an expert?

Brian Altman: Address it with?

Mr Beer: By examining the files or by speaking to Mr Jenkins?

Brian Altman: I can’t remember if that was said or not.

Mr Beer: As part of your assessment that we’re going to come to in the general review later on, you say that Cartwright King’s review was fundamentally sound?

Brian Altman: The process I felt, yes.

Mr Beer: This issue, by removing him from the terms of reference, meant that the Gareth Jenkins issue remained shelved, didn’t it, never to be returned to?

Brian Altman: Not during my review, no.

Mr Beer: Did you ever get the sense that nobody in the Post Office, or indeed Cartwright King, wanted to look too deeply at how Gareth Jenkins had been instructed and, instead, their better narrative was that he personally was to blame for disclosure failings?

Brian Altman: I never thought that and I never saw it and, doing the best I can, I don’t think I ever heard it either.

Mr Beer: Now, the document you said in your witness statement that you hadn’t got, the draft terms of reference upon which you were commenting, can we look at those, please. I think they are POL00298010. These are dated 26 July 2013 and are prepared by Bond Dickinson, as we can see in the top right. So these are the draft terms of reference.

If we just pan out a little bit, please. You can see they’re divided into “Instructions”, “Process”, “Output” and then, over the page, is “Timing”. Just on instructions –

Brian Altman: Pausing there, Mr Beer, you made the point before that the word “Instructions” wasn’t used; it is.

Mr Beer: Under the heading of terms of reference?

Brian Altman: Yeah, but the fact is the word “instructions” is to be found there.

Mr Beer: “1. To review and advise [the Post Office] in a written report on its strategy and process for reviewing past/current criminal prosecutions given the findings of the Second Sight Interim Report dated 8 July 2013.

“2. To advise [the Post Office] on its response to the CCRC and any subsequent action required in dealing or responding to any actual or potential appeals.

“3. To advise the Post Office, where not covered by 1 above, on the role of Dr Gareth Jenkins and the impact on possible appeals.”

So Bond Dickinson had included, as we see, instructions to advise on the role of Gareth Jenkins, and the impact on possible appeals, yes?

Brian Altman: Yeah.

Mr Beer: Then under “Process”, if we scroll down a little bit, under 2:

“To meet with Jarnail Singh and Cartwright King [and then in brackets, Dr Jenkins?] to understand the past and current procedure for prosecutions.”

Brian Altman: Sorry, Mr Beer, I heard you name Jarnail Singh, where do I find that?

Mr Beer: Under 2.

Brian Altman: Under “Output” –

Mr Beer: Under “Process”:

“To meet with Jarnail Singh and Cartwright King [and query Dr Jenkins].”

Yes?

Brian Altman: Yes, that’s a query I must have had in mind.

Mr Beer: So your draft terms of reference did include, as one of the five things that you were asked to do, explicitly to advise on the role of Gareth Jenkins and its impact on possible appeals?

Brian Altman: Yeah.

Mr Beer: Why did you consider it wasn’t appropriate to advise the Post Office on the role of Gareth Jenkins, ie why did you suggest that paragraph 3 was removed?

Brian Altman: Forgive me, paragraph 3 under “Instructions”?

Mr Beer: Yes.

Brian Altman: Well, I haven’t seen this and I didn’t recall advising that it was that paragraph that came out because I did advise on Gareth Jenkins, the role and the impact on possible appeals.

Mr Beer: But you said, we see in your advice, that these terms of reference should remain silent on Gareth Jenkins. So why should Gareth Jenkins be excised from the terms of reference; why should he be cut out?

Brian Altman: Well, I mean, he wasn’t cut out because I did advise about his impact, and I think I come back to the answer I gave earlier, that I felt the reasons why he had failed as an expert to discharge his duties of disclosure was not what I was being asked to advise upon. It was the impact, that’s what I did.

Mr Beer: You were given the opportunity to self-define what you were asked to advise on?

Brian Altman: You’re right, I was, and that’s the only answer I can give you. That must have been my thought process.

Mr Beer: But why at this very early stage were you putting out of reach the possibility of an exploration of Mr Jenkins’ role?

Brian Altman: I think my answer has to be the same: I was looking at the impact, I felt and, by the time I got to agreeing the final terms of reference, that was what was in my mind. I didn’t feel – I suppose, if – I suppose, partly speculating, it was because did not feel I was an investigator at this stage. It was simply gathering information and writing an advice on the impact.

Mr Beer: Weren’t you not loading the dice by excising him in this way?

Brian Altman: I don’t see it that way.

Mr Beer: If we look at the final terms of reference, the one that was settled after your advice, POL00040044. These are the settled terms of reference for your appointment. If we just look, if we scroll down gently, we can see that Mr Jenkins’ role and, indeed, any reference to him has been entirely cut out from these terms of reference, hasn’t it?

Brian Altman: Yes.

Mr Beer: Can I turn to what you say in your witness statement about this, if we turn it up, please.

Brian Altman: What paragraph is it?

Mr Beer: It’s paragraph 26.5 on page 13. In the third line you say:

“Why Mr Jenkins had failed to reveal in his witness statements or evidence the bugs or defects he knew about was not a matter for my review.”

Yes? That’s because you cut it out.

Brian Altman: Absolutely.

Mr Beer: You’re explaining, in this paragraph, a later aspect of your instructions and you’re explaining to us why your reviews didn’t address the issue of why Mr Jenkins had failed to reveal in his witness statements or evidence the bugs or defects that he knew about, and you say, “It’s not a matter for my review”, but, again, that’s because it was your choice to exclude it, wasn’t it?

Brian Altman: It was excluded. I don’t know what discussions I had with Gavin Matthews. I don’t know what my thought processes were between the July version of the draft and the final September version of the terms of reference, other than what I said in the observations document.

Mr Beer: Doesn’t the approach that you took rather ignore the point that the reason for Mr Jenkins’ failures might well be relevant to whether or in which cases they were disclosable?

Brian Altman: I’m not sure that’s right, actually, Mr Beer.

Mr Beer: Explain why.

Brian Altman: Because what he said about individual cases I don’t think would necessarily make a difference, if he had not understood his duties as an expert and, as Simon Clarke pointed out, was by and large making the same statements in every case. Then, generically, I think his failures fell for disclosure. I don’t think asking him about every single case in which he made a statement and the whys and wherefores would necessarily impact, as perhaps you think it would, on disclosure.

Mr Beer: If the failures arose from a failure by the Post Office to (a) provide Mr Jenkins with a proper letter of instruction, (b) instruct Mr Jenkins as to his relevant duties as an expert witness, those failures would be disclosable too, over and above the mere fact of his own failure to disclose knowledge of bugs, errors and defects, wouldn’t they?

Brian Altman: I agree with that but those are generic issues of disclosure, not case specific.

Mr Beer: And therefore require to be investigated, don’t they?

Brian Altman: Well, if that was right, and obviously I didn’t know that, but, if that was right, they would be disclosable but I don’t think they need to be investigated.

Mr Beer: How would you discover whether that was the fact?

Brian Altman: If somebody had told me.

Mr Beer: But you’ve cut it out, haven’t you; you’ve excised it?

Brian Altman: I know, but it’s slightly circular because if somebody had told me he’d never been properly instructed, I might have taken a different view.

Mr Beer: Can we move on, please, to your generic review, please. POL00006803. This your general review dated 15 October 2013 and this is the main product of your terms of reference, as they’ve been called, yes –

Brian Altman: Yeah.

Mr Beer: – ie the terms of reference we’ve just looked at.

Brian Altman: Yes.

Mr Beer: Can we look at a part of it, please, on page 47, and paragraph 148. I should have introduced this a bit more broadly to you. If we go back to page 44.

Brian Altman: Page 44?

Mr Beer: Yes, under the heading “Gareth Jenkins and his impact on possible appeals”, it’s within that section. If we go forwards, please, to paragraph 148 on page 47, you say:

“I am not clear whether Mr Jenkins was challenged about the non-disclosure to [the Post Office] …”

That’s the non-disclosure of a bug:

“… and, if so, what is the explanation for it. But given the [Second Sight] inquiry, based in part on his revelations, has let to the current review, Gareth Jenkins is to that extent tainted and his future role as an expert is untenable. It should be remembered that [the Post Office] had been unaware of the existence of the second of the two defects revealed to [Second Sight] by Mr Jenkins until a year after its first occurrence.”

Before writing this, did you enquire as to the reason for Mr Jenkins’ non-disclosure?

Brian Altman: You can read that first sentence in one of two ways: I either did and wasn’t clear about it, or I didn’t and I wasn’t clear about it.

Mr Beer: Did you see any Post Office instructions to Mr Jenkins in his role as a witness giving expert evidence in prosecutions or correspondence involving the Post Office Legal Department or Post Office external lawyers, regarding Mr Jenkins giving evidence in legal proceedings?

Brian Altman: Again, as I sit here now, I’ve got no recollection of that.

Mr Beer: If you didn’t see such instructions to Mr Jenkins – and I’ve no material to suggest that you did – why did you not ask to see them to inform your work?

Brian Altman: You know, with the clarity of hindsight, Mr Beer, we can all do things better and that’s something I could have done better but I didn’t.

Mr Beer: You were working, I think, on the basis that Mr Jenkins knew about the receipts and payments mismatch bug and that he had first revealed it to Second Sight –

Brian Altman: Yes.

Mr Beer: – in the course of their investigations in 2013, yes?

Brian Altman: Yeah.

Mr Beer: You did not discover and you were not told, that he’d in fact disclosed the existence of the receipts and payments mismatch bug to the Post Office IT Team and an operational team in late September 2010.

Brian Altman: You’re talking about the issues notes?

Mr Beer: Yes.

Brian Altman: I didn’t know that.

Mr Beer: You didn’t know that he had written the report, the loss discrepancies document –

Brian Altman: No.

Mr Beer: – of 29 September and that had been sent to a Post Office Investigator, Alan Simpson, and, indeed, sent on to lawyers, Rob Wilson, Juliet McFarlane and Jarnail Singh; you didn’t know about that at the time you were writing?

Brian Altman: No, not only that but I seem to recall that when the Second Sight Report dealt with the receipts and payments mismatch bug, it reported that Post Office didn’t know about it until 2011.

Mr Beer: Yes.

Brian Altman: Yeah. No, I didn’t know about it.

Mr Beer: You didn’t know that, through Mr Jenkins, disclosure of the receipts and payments mismatch bug had been provided to the Post Office the working day before Seema Misra’s trial started?

Brian Altman: I’ve learnt that obviously since but I didn’t know it at this time.

Mr Beer: All of that would have put an entirely different complexion on the advice you were giving, wouldn’t it?

Brian Altman: I accept that.

Mr Beer: Just explain why you accept that it would have put an entirely different complexion on matters?

Brian Altman: Well, because, if I had known about the issues notes and the other document, the correcting accounting for discrepancies document, all of which came into being, as you say, very shortly before Mrs Misra was tried in October 2010, I suspect I would have taken the same view as we took much later during the criminal appeals, that that is something that should have been considered for disclosure and disclosed to Mrs Misra before her trial.

Mr Beer: Did you give any consideration to the procedure by which the expert witness, Mr Jenkins, had been instructed?

Brian Altman: Well, as I’ve said, Mr Beer, nobody indicated to me he’d never been properly instructed. Looking back, of course, it is something I should have queried but I rather blindly, I suspect, assumed that that must have been the case.

Mr Beer: I think you agreed that it would have been responsible to recommend to the Post Office that the issue of how evidence from Mr Jenkins had been obtained was looked into?

Brian Altman: It would have been responsible for the Post Office and those instructing me to let me know. I think it would have been, in my case, better to have asked, yes.

Mr Beer: On this topic, were you aware that the Post Office did not escalate the Mr Clarke’s Advice, the 15 July 2013 advice about Gareth Jenkins –

Brian Altman: Escalate it?

Mr Beer: – to Fujitsu?

Brian Altman: I wasn’t aware of what was going on in the background.

Mr Beer: So you didn’t know one way or another?

Brian Altman: I don’t think I did.

Mr Beer: I think it follows that you weren’t informed at the time you were advising the Post Office that it was known to the Post Office that Mr Jenkins either hadn’t been properly instructed or may not have been properly instructed as to the duties owed by a person giving expert evidence to a criminal court?

Brian Altman: Yes, I should have known that.

Mr Beer: Or at least that there was a very serious question as to this?

Brian Altman: Yes.

Mr Beer: We’ve got some manuscript notes of a discussion held between lawyers in September 2013 about that issue, whether Mr Jenkins had been properly instructed, and that it appeared that he may not have been properly instructed. That discussion between lawyers, it was Rodric Williams and Martin Smith, was not revealed to you?

Brian Altman: Did you say September?

Mr Beer: Yes, 2 September.

Brian Altman: No.

Mr Beer: Do you agree you ought to have been informed of this, a realisation amongst some of the lawyers that Mr Jenkins had not been properly instructed or that there was a serious question as to whether he had?

Brian Altman: Yes.

Mr Beer: Is that because the issue went to whether it might be indicative of broader failings on the part of Post Office prosecutors?

Brian Altman: It would certainly have gone to that issue, yes.

Mr Beer: It might be relevant to the scope of disclosure that needed to be given?

Brian Altman: Yes, and also – I suppose it’s easy for me to say now – it may have changed my view about what to do about the Jenkins problem.

Mr Beer: What do you mean it might have changed your view?

Brian Altman: Well, I might have come back and said, “Well, perhaps I now ought to speak to him” and find out what was really going on.

Mr Beer: Or call for any papers that go to the issue of the instruction of Gareth Jenkins?

Brian Altman: Or the absence of them in our search, I don’t know, but that’s what probably would have happened.

Mr Beer: But it might have gone to the issue of whether there were broader failings on the part of Cartwright King –

Brian Altman: Yes.

Mr Beer: – and whether there was a conflict, accordingly, in Cartwright King advising on its own cases?

Brian Altman: That’s an interesting take on it Mr Beer but, yes, I suppose that’s right.

Mr Beer: Well, it’s not any interesting; it would be a matter that would concern you, wouldn’t it? If this train of inquiry had been pursued, if this thread had been pulled, ie who has instructed, Gareth Jenkins, and how, that may have been revelatory of disclosure failings but also of misconduct by prosecutors, mightn’t it?

Brian Altman: Potentially.

Mr Beer: It goes to the issue of how deep into the organisation and how close to the lawyers the problem is, doesn’t it?

Brian Altman: I agree.

Mr Beer: I think you’re now aware that not only was Mr Jenkins not instructed as to his expert duties but the Inquiry has seen evidence in a series of communications that prosecutors actually misstated the nature of an expert’s duties?

Brian Altman: I’m not sure I am aware of that. Certainly I’m aware of the former. I’m not sure I’m aware of the latter.

Mr Beer: For example, he was asked – he sent an email to a lawyer saying, “What do I expect when I give evidence?” and he was told, “Like any other witness, you’ve just got to tell the truth in relation to questions asked of you.”

Brian Altman: Well, forgive me if I’ve missed it, because I was sent an awful lot of documents over the last seven days, but I’m aware now but I’m not sure I was aware of that.

Mr Beer: He was told, “You can only be asked questions about issues that you’ve addressed in your report. You can’t be asked questions about things that aren’t addressed in your report.”

Brian Altman: I didn’t know that.

Mr Beer: But the Post Office never volunteered to you that it hadn’t instructed Mr Jenkins as to his expert duties?

Brian Altman: No.

Mr Beer: Did it provide any email communications which Mr Singh had with Mr Jenkins?

Brian Altman: Sorry, ask that again, Mr Beer?

Mr Beer: Yes. Did the Post Office provide you with email communications between Mr Jenkins and Mr Singh, in particular in the course of the Seema Misra trial?

Brian Altman: You mean, after my instruction in 2013?

Mr Beer: Yes.

Brian Altman: I can’t remember.

Mr Beer: Were you told about the process by which the so-called generic statement written by Mr Jenkins came to be created?

Brian Altman: No.

Mr Beer: Is it the case that you became aware that there were serious issues as to the use made by the Post Office of Mr Jenkins and their instruction of him in the course of the criminal appeals?

Brian Altman: I learned a lot then, which I was unaware of previously.

Mr Beer: So I think it follows that no one informed you at the time of your 2013 Advices that Mr Singh, Juliet McFarlane, another lawyer in Post Office Legal, and Rob Wilson were provided with the two detailed notes about the receipts and payments mismatch bug –

Brian Altman: No.

Mr Beer: – and that, whether by inaction or by a positive decision, those documents were not disclosed into Seema Misra’s trial?

Brian Altman: Well, obviously, I didn’t prosecute Mrs Misra. There is any number of reasons why that might have happened but it didn’t happen.

Mr Beer: Were you told at the time of advising in 2013 that people that were called “senior stakeholders” within the Post Office had been informed of the receipts and payments mismatch bug in November 2010 and had been informed by a note about the receipts and payments mismatch bug?

Brian Altman: Who do you mean by “senior stakeholders”?

Mr Beer: Well, if we look at the document, POL00294684. You’ll see this is an email of 15 November 2010.

Brian Altman: Yeah.

Mr Beer: The subject is “Receipts & Payments resolution proposal meeting”. I think it’s an invitation. You’ll see there’s a list of required attendees and optional attendees and a note is attached. Then if we scroll down, please – thank you:

“The aim of the meeting is to discuss the Working Group proposal – to resolved discrepancies generated by branches following a specific process during the completion of the training statement.”

Then if you just scan the next few paragraphs.

Brian Altman: Do you want me to read those, Mr Beer?

Mr Beer: Yes, please.

Brian Altman: Yeah.

Mr Beer: If we go over the page, please, just look at the foot of the previous page:

“There are several solutions to resolve the issue at the affected branches, they are as follows …”

Then if we scroll down, Solution One, Two, Three; you probably recognise those –

Brian Altman: I do, yeah.

Mr Beer: – because they’re from the note of late September/early October 2010 –

Brian Altman: Yes.

Mr Beer: – where there was a discussion over which of these three solutions to adopt. And I think you recognised subsequently that Solution One was a very significant one, not only for the receipts and payments mismatch bug but because it revealed that Fujitsu had the ability manually to write entry values into the local branch account without the subpostmaster knowing; is that right?

Brian Altman: I think so, yeah.

Mr Beer: So it seems, on 15 November 2010, that this is still an open discussion about which solution to adopt and then, if we scroll down, please, at the foot of the page it says:

“We are looking for you as senior stakeholders to agree this approach as a way forward.”

So the point I’m making is that there had been some non-disclosure in Seema Misra’s case before trial and then, afterwards, there was still a discussion going on in November 2010, within senior stakeholders of the Post Office, as to the receipts and payments mismatch bug.

Brian Altman: Yeah.

Mr Beer: This would all have been news to you, advising in 2013, because you were under the impression that the receipts and payments mismatch bug had been discovered by Second Sight?

Brian Altman: Second Sight on the information of Gareth Jenkins.

Mr Beer: Yes, and so you didn’t know, when you were advising, how high up in the Post Office knowledge of the receipts and payments mismatch bug had gone?

Brian Altman: I knew none of this at that time.

Mr Beer: No. Can we look closer to the time that you were advising, then, please, at POL00029618. If we scroll down, please, and keep going – thank you – an email of 25 June from Mr Warmington of Second Sight to Simon Baker within the Post Office, giving an extract from the draft Second Sight Report:

“This is the draft section of the report dealing with the two defects. Please let me know if I’ve got anything wrong.”

Brian Altman: Sorry, I’m just trying to pick up where you found that.

Mr Beer: Yeah, so where it says:

“Simon:

“This is the draft section of the report dealing with the two defects.”

Brian Altman: Oh, “Please let me know”, yeah, sorry.

Mr Beer: “Please let me know if I’ve got anything wrong.”

Yes?

Brian Altman: Yes.

Mr Beer: So he is sending a draft section of the Second Sight Report that deals with the two bugs, yes? Then, if we scroll up, please, a reply from Mr Baker:

“I need to double check a few things.”

Then keep going up, please. Stop there, Mr Baker, seemingly to Lesley Sewell, says:

“Just got this from Ron.

“I can get back to him on most of the questions but need your help on who in Post Office knew about it. I know from the email that Rod sent that Mike Young knew, but don’t know if it went any higher.”

So, within Post Office, a discussion of how high up within the organisation knowledge of the receipts and payments mismatch bug went.

Then scroll up, please. Lesley Sewell, the Chief Information Officer, replies, copying in the Company Secretary:

“I don’t know if it went any higher than Mike, Andy Mc also managed service at the time and if I remember correctly Mark Burley was also involved.

“I can’t [recall] whether we said anything to the press.

“… we didn’t have an independent Board, Paula [Vennells] would have been Network Director …”

So there was an internal discussion proximately to the time that you were being instructed, as to how high up within the organisation knowledge of the receipts and payments mismatch bug went, yes?

Brian Altman: Yes. I mean, I never saw any of this.

Mr Beer: No, I’m about to say. The fact of the knowledge of the receipts and payments mismatch bug by senior stakeholder was not revealed to you?

Brian Altman: No.

Mr Beer: The fact that lawyers responsible for prosecuting knew about the receipts and payments mismatch bug was not revealed to you?

Brian Altman: No.

Mr Beer: The fact that, proximately to the time you were being instructed, the Post Office was having an internal debate about how high up within the organisation knowledge of the receipts and payments mismatch bug went was not revealed to you?

Brian Altman: No.

Mr Beer: When were you first made aware of the mismatch bug?

Brian Altman: The RPM, the receipts and payments mismatch bug, you mean?

Mr Beer: Yes.

Brian Altman: When I read the Second Sight Interim Report, the 8 July one.

Mr Beer: When did you see, firstly, an RPM, as you call it, document referring to the three options?

Brian Altman: I first actually saw the reference to those three solutions, if my memory serves me, in Mr Justice Fraser’s judgments on the Horizon Issues Trial.

Mr Beer: So after December 2019 –

Brian Altman: Yeah.

Mr Beer: – in or after December 2019?

Brian Altman: Yeah. Although, not to be unfair to Post Office, one of the documents I was asked to look at, one of the additional documents, which I hadn’t seen before, was my – was an index to the bundle of the material which Rodric Williams sent to me for the purposes of the 2016 review, and under the second section in relation to balancing transactions, was reference to the issues notes and the correcting discrepancies document, but I don’t think I ever opened up that part of the bundle because you’ll recall Rodric Williams and I agreed in 2016 that I wouldn’t be advising on the balancing transactions issues because they were instructing Deloitte to finalise a report.

So, not to be unfair to Post Office, it was there but I don’t think I ever saw or read it in 2016 and, frankly, if I did, whether I would have appreciated its impact, I’m not sure.

Mr Beer: We saw that under Solution One, as well as obviously revealing the fact of the RPM bug, it also gave an insight into the facility for a form of remote access?

Brian Altman: Yeah, can we go back to it, do you think?

Mr Beer: Yes, I think so. POL00294684. Page 2, “Solution One”.

Brian Altman: Yes, thank you.

Mr Beer: What were the implications for you that a form of remote access, meaning that branch accounts could be changed without branch knowledge, either in error or by a malicious actor, meant to the prosecution of offences?

Brian Altman: Well, as I say, I didn’t actually see, in the sense of read the documents, until we came to the criminal appeals. But it would have raised the possibility of unexplained shortfalls not being unexplained.

Mr Beer: Was there anything – would it have revealed anything broader than that, about the ability of a prosecutor to stand before a court?

Brian Altman: What, and say this is a real loss?

Mr Beer: Yes.

Brian Altman: Well, of course, it would impact on that.

Mr Beer: Sorry, I missed your answer.

Brian Altman: Forgive me. Of course it would impact on that.

Mr Beer: How would it impact and in what way?

Brian Altman: Well, it would impact on any prosecution of the offence of theft, if you are trying to prove that there has been the permanent – or the appropriation of money with the requisite intention, you would struggle if that was known and, sitting here thinking about it, it would probably also impact on potential allegations of false accounting as well.

Mr Beer: In what way, in relation to false accounting?

Brian Altman: Well, in the situation where a postmaster would offer the prosecution a plea to false accounting in consideration of the Post Office dropping theft. If a postmaster had known that this kind of activity had interfered with the branch accounts, then they might be pleading guilty on an entirely false basis, that any false accounting for which they felt they were responsible for or had almost certainly been responsible for, might not be the case.

Mr Beer: Thank you. Sir, that’s an appropriate moment to take a break, if it’s convenient to you, until 11.15.

Sir Wyn Williams: Yes, certainly.

Mr Beer: Thank you very much, sir.

(11.04 am)

(A short break)

(11.15 am)

Mr Beer: Good morning, sir, can you still see and hear us?

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

Mr Beer: Thank you.

Mr Altman, having looked at what was cut out from your review in relation to Gareth Jenkins and what information was not revealed to you by the Post Office, can we look at what you did do on your more limited understanding or knowledge of the position in relation to Mr Jenkins.

Can we see, firstly, your general advice, please, your general review. POL00006803. Remembering this is your general review of 15 October 2013. Can we look at page 6, please, and scroll down to paragraph (x) and this is essentially an executive summary of the review and, in relation to Mr Jenkins, you say:

“I agree that Gareth Jenkins is tainted and his position as an expert witness is untenable. Thus, a new expert should be identified soon as is practicable.”

Yes?

Brian Altman: Yeah.

Mr Beer: Were you basing that view principally upon what you had read in Simon Clarke’s Advice of 15 July 2013?

Brian Altman: Yes, I think that must be the case.

Mr Beer: What was done to inform past defendants and those in ongoing cases that Mr Jenkins had wrongly withheld knowledge about bugs in the Horizon system?

Brian Altman: I know what you’re driving at, Mr Beer, and it’s something in recent weeks which I have thought about and it’s something that should have been disclosed to operate people.

Mr Beer: Is the answer, then, that nothing was done to inform convicted defendants or those in ongoing cases that Mr Jenkins had wrongly withheld his own knowledge of bugs in the Horizon system?

Brian Altman: I think, unhappily, that has to be the case. I mean, with – again, with the benefit of hindsight and having thought an awful lot about this, it’s something that should have been considered for disclosure and disclosed in appropriate cases, no question.

Mr Beer: And should have been considered for disclosure by you, Mr Altman?

Brian Altman: Yeah, I’m accepting that.

Mr Beer: Thank you. Can we look at Mr Clarke’s advice on Gareth Jenkins to see what he said. That’s POL00006798.

This is the Advice of 15 July, we can see that from the last page, page 14, so the Clarke Advice of 15 July about Gareth Jenkins, and you certainly had got this, I think other material shows, by at least 2 August –

Brian Altman: Yes.

Mr Beer: – 2013, so within a couple of weeks of it having been written. Then, if we just look at what Mr Clarke had said, by looking at page 5, at paragraph 15 he says:

“[Gareth Jenkins] has provided many expert statements in support of the Post Office and Royal Mail Group prosecutions; he has negotiated with and arrived at joint conclusions and joint reports with defence experts …”

There is a cross-reference to Khayyam Ishaq’s case there, footnote 7:

“… and he has attended court so as to give evidence on oath in criminal trials.”

Then if we go forwards, please, to paragraph 37 on page 13:

“What does all this mean … it means that [Gareth Jenkins] has not complied with his duties to the court the prosecution or the defence.

“38. The reasons as to why [Gareth Jenkins] failed to comply with this duty are beyond the scope of [the] review. The effects … must be considered. I advise the following to be the position:

“[Gareth Jenkins] failed to disclose material known to him but which undermines his expert opinion. This failure is in plain breach of his duty as an expert witness.

“[His] credibility as an expert witness is fatally undermined; he should not be asked to provide expert evidence in any … prosecutions.

“… those current and ongoing cases where [Gareth Jenkins] has provided to an expert witness statement, he should not be called upon to give that evidence … we should seek a different, independent expert to fulfil that role.”

You agreed with those views, didn’t you?

Brian Altman: Yes.

Mr Beer: Was the agreed position, then, that you and Mr Clarke had arrived at – that Mr Jenkins hadn’t complied with his duties to the court, to the prosecution or the defence, that he was in plain breach of his duty as an expert witness, that his credibility as an expert was fatally undermined – to your knowledge, ever disclosed to past or current defendants?

Brian Altman: At that time, no.

Mr Beer: Just to be clear, we’re not here referring to the fact of his knowledge of the bugs, errors or defects said to have been concealed by him but rather an assessment by the prosecutor that his credibility had been fatally undermined. They’re two different facets; do you agree?

Brian Altman: They are and I accept, as I’ve said already, that, to my knowledge, that was not disclosed.

Mr Beer: Was there ever an investigation into whether others involved in the prosecution of subpostmasters knew about bugs but had not disclosed them?

Brian Altman: I’m just struggling to think about who you mean, others involved in the prosecution –

Mr Beer: Well, Jarnail Singh, Mandy Talbot, Rob Wilson, a whole group of investigators who had knowledge of bugs?

Brian Altman: Mandy Talbot, I’m not sure that’s a name familiar with me; Jarnail Singh, obviously is; and Rob Wilson, I never met but I know the name. And, forgive me, the question is whether it became obvious to me?

Mr Beer: No, was there, to your knowledge, ever an investigation –

Brian Altman: An investigation.

Mr Beer: – into how wide the knowledge of bugs, errors and defects pre-prosecution, pre-July 2013, went?

Brian Altman: No.

Mr Beer: If Mr Jenkins had withheld from prosecution cases his knowledge of bugs, did you ever advise the instigation of an investigation as to whether such concealment of bugs was known about or facilitated by others?

Brian Altman: Being frank, on my state of knowledge at the time – and one always has to be careful, and I’m sure you’ll accept this, Mr Beer, that, you know, as I termed it earlier, that the clarity of hindsight provides a clear sightedness, as it were, that you didn’t have at the time. But, at that time, I don’t think it crossed my mind that it went wider than Gareth Jenkins.

Mr Beer: That document can come down. Thank you.

Was any consideration given by you or, to your knowledge, by others as to whether the agreed position, that we’ve just seen reached by you and Mr Clarke, was not privileged?

Brian Altman: I don’t believe we ever had that discussion.

Mr Beer: Do you think there ought to have been a discussion as to whether this meeting of minds between prosecutors was not a privileged – was not privileged information and ought to have been revealed?

Brian Altman: I’ve already agreed with you about the latter and, if the latter had been the decision I’d arrived at or the advice I gave, then I don’t think privilege would have come into it.

Mr Beer: So is it, on your understanding, a failure to think about the issue –

Brian Altman: Yes –

Mr Beer: – rather than thought being given but privilege cloaking the answer?

Brian Altman: I don’t think privilege would have – if I had applied my mind to the fact that Gareth Jenkins’ credibility was in issue and his assessment as an expert was in issue, I think I would ultimately have advised that that ought to be disclosed in appropriate cases. I clearly didn’t. I can’t think now why I didn’t. I’d like to say it was a misjudgement but I’m not even sure there was a judgement. I don’t know why, I think we were – if I have to think back and speculate, I think the focus was so geared towards these two new bugs that that just slipped thorough, as it were.

Mr Beer: The disclosure that was given on your advice to convicted, or some convicted, defendants, was (a) the Second Sight Report –

Brian Altman: Yes.

Mr Beer: – and (b) the Helen Rose Report?

Brian Altman: Yes.

Mr Beer: Neither of those documents revealed anything about Gareth Jenkins’ state of knowledge of the two bugs, did they?

Brian Altman: No, I accept that. They didn’t.

Mr Beer: That’s a further problem, isn’t it –

Brian Altman: Yeah.

Mr Beer: – because you reached a position that Mr Jenkins was fatally undermined, he breached his duties, the response to which is to disclose two documents, neither of which reveals that information to a defendant?

Brian Altman: No, there would have been a gap in anybody’s knowledge. I accept that.

Mr Beer: There was, therefore, a well of knowledge sitting below the surface –

Brian Altman: Yeah.

Mr Beer: – that was not disclosed.

Brian Altman: Yeah.

Mr Beer: Can you help us, why was that?

Brian Altman: I’ve given the reason. I think the focus was so targeted towards these two new bugs and their impact on affected cases, that it, you know, it’s hard to look back and think, “How on earth did I miss that?” But I think I just missed it; it’s as simple as that.

Mr Beer: Is it a little worse than that, though? Because, if we look at the Second Sight Report, ie the thing that was disclosed to convicted or some convicted defendants – POL00029650. This is the Second Sight Report of 8 July 2013. If we look at page 5, please, at the foot of the page, 6.4:

“In the course of our extensive discussions with [the Post Office] over the last 12 months, [the Post Office] has disclosed to Second Sight that in 2011 and 2012 it had discovered ‘defects’ in Horizon Online that had impacted 76 branches.”

Then it continues with the first defect and second defect over the page.

So the Second Sight Report was saying that the disclosure of the bugs came from Post Office.

Brian Altman: Yeah, which I frankly don’t understand.

Mr Beer: Not Gareth Jenkins?

Brian Altman: Yeah, but which surprised me because, clearly, Second Sight not just Cartwright King – I’ve read that and I am well aware of 6.4 and I didn’t understand why Second Sight itself was not reporting it was Gareth Jenkins. I’m not criticising them at all for one minute, please don’t misunderstand –

Mr Beer: So you knew it was Gareth Jenkins who was said to have made the relevant disclosure –

Brian Altman: Yeah.

Mr Beer: – and, therefore, if the report had included that, it would have been –

Brian Altman: Disclosed.

Mr Beer: – a disclosure of his own knowledge –

Brian Altman: Yeah.

Mr Beer: – of bugs –

Brian Altman: Yeah.

Mr Beer: – that he hadn’t closed at the time?

Brian Altman: Can I say I didn’t realise this at the time. I don’t think it registered. Obviously since, I’ve looked at this again and I’ve puzzled about 6.4, why it was Second Sight didn’t name him but they didn’t, because it wasn’t Post Office. I don’t think it was Post Office, anyway.

Mr Beer: So the document that is disclosed to some convicted subpostmasters materially misleads them on this point?

Brian Altman: Yeah, but I wouldn’t want you to elide the failure to advise disclosure of the fact that it was Gareth Jenkins who brought this to the attention of Second Sight and the fact that Second Sight itself reported Post Office. I don’t think anybody made that link.

Mr Beer: Thank you. That can come down.

Brian Altman: In fact, I know no one made the link and I certainly didn’t.

Mr Beer: What criminal offences may have been committed by Gareth Jenkins, based on the facts, as you knew them, by the time you were advising in October 2013?

Brian Altman: I’m not prepared to speculate about that and I’m not prepared to speculate because, if you’re thinking about perjury, perjury requires certain conditions, which nothing I had seen suggested might be present, and perverting the course of justice and having a tendency to pervert the course of justice with the requisite intent is a particular offence and I was not prepared to speculate, nor am I now, as to whether he was dishonest or just incompetent.

Mr Beer: I asked what criminal offences may have been?

Brian Altman: Yeah, well, I – the “maybe” would include those two but, as I say, it’s speculative on my part because I don’t know all the evidence.

Mr Beer: So, at the time, on the basis of the information that you had, the possible offences that may have been committed by Gareth Jenkins included possibly attempting to pervert the course of justice?

Brian Altman: Perverting the course of justice.

Mr Beer: Right. Conspiring to pervert the course of justice?

Brian Altman: Well, that depends on whether there are two or more parties involved.

Mr Beer: And possibly perjury?

Brian Altman: Possibly.

Mr Beer: Do you agree that nowhere in the Clarke Advice on Mr Jenkins, in any subsequent advices written by Mr Clarke that you saw and nowhere in your advices was the question raised as to whether or not Mr Jenkins had possibly committed criminal offences?

Brian Altman: No.

Mr Beer: Why was the question of possible perjury or possibly perverting the course of justice never addressed?

Brian Altman: Because I think at that early stage – and, in fact with all witnesses who give evidence to civil or criminal courts or, indeed, in public inquiries – simply because a witness hasn’t complied with their duty, in this particular case, as an expert does not lead inexorably to the conclusion that somebody has committed any of those offences and, again, it would never have crossed my mind that that required a police investigation.

Mr Beer: You’re ahead of me, Mr Altman, a little bit, but I’m asking at the moment why we see no consideration of it?

Brian Altman: For that reason: it wouldn’t have crossed my mind that any police investigation or any consideration of whether he had committed offences was anything (a) I was asked to do or (b) I would have volunteered.

Mr Beer: Given that the assessment by Mr Clarke was that Mr Jenkins had known about the bugs in the Horizon system and had failed to reveal them, whilst simultaneously stating that the Horizon system was robust when he gave evidence in the Seema Misra case, why was the question of the commission of a possible criminal offence not discussed by anyone?

Brian Altman: Well, I think I’ve answered that, Mr Beer.

Mr Beer: Was it discussed outside the confines of the advices, ie in conference or in telephone conversations?

Brian Altman: I have no recollection of that.

Mr Beer: Was there any discussion about the provision by Mr Jenkins of statements which had given false information, ie the criminal consequences or possible criminal consequences of that?

Brian Altman: I have no recollection of that either.

Sir Wyn Williams: I’m sorry, Mr Altman. We have heard a lot at this inquiry of “I can’t remember” or “I have no recollection”. I am taking what you are saying – well, let me not say that.

How am I to take what you’re saying: that you simply had no recollection one way or the other –

Brian Altman: Yes.

Sir Wyn Williams: – or – yeah, that’s it, fine.

Brian Altman: Yeah, I’m sorry, I know it’s rather loose language. But I’m being asked for recollections of conversations which I’ve never put in writing from getting on for 11 years ago. So –

Sir Wyn Williams: Oh, no, I follow that but, in my experience, some people say, “I have no recollection of that”, when they mean “I don’t know one way or the other”.

Brian Altman: Yeah.

Sir Wyn Williams: Others use it when they actually mean, “I don’t recollect anything of that kind but, if there had been, I rather think I would remember”, if you see what I mean.

Brian Altman: Do. Well, it’s the former.

Sir Wyn Williams: The former. Thank you.

Mr Beer: Mr Altman, you have said today that you think your approach at the time would have been that this was just one of those occasions, of which there are many, on which a person gives false or inaccurate evidence to a court or an inquiry; is that right?

Brian Altman: Yes.

Mr Beer: Did you instigate or advise the instigation of any inquiries or an investigation into whether that was in fact the case or not, ie by Post Office?

Brian Altman: No.

Mr Beer: Wasn’t that important?

Brian Altman: It could have been important but I don’t think that that was my role.

Mr Beer: You seem to be saying, Mr Altman, that the fact that a witness has given false evidence in court is just one of those things?

Brian Altman: No, I’m not saying that.

Mr Beer: Well, can you help us with the exactly how you thought about it, then, because we don’t see in any of these papers the suggestion that the conclusion that he had given false evidence be revealed to defendants, that the police be called in, that he might have committed a criminal offence or that anyone should pursue, in any way, whatsoever the evidence that he gave? It sounded, from your answers earlier, that lots of people give evidence that’s false in court, meant that you just ascribed it as “one of those things”, am I wrong to take that –

Brian Altman: Well, I may well have done. I may well have come to the conclusion (a) that I was not prepared to speculate about what he had done and, as I said earlier, why he had done it but, secondly, witnesses can be incompetent and not dishonest and I am – was not probably sure at that time that that wouldn’t be a huge hammer to crack a nut.

I just had not been presented, I felt, with sufficient evidence to infer what you seem to be suggesting I should have done.

Mr Beer: Nowhere in your general review, would you agree, was any consideration given to the disclosure of the Clarke Advice about Mr Jenkins’ lack of credibility, your view that Mr Jenkins was a tainted witness, to the CCRC?

Brian Altman: Not at that time, no. But it went to the CCRC as you know, the general review.

Mr Beer: Do you agree that the failure to advise that the Clarke Advice and your own opinion, or at least the substance of the conclusions that were reached, ought to have been considered for disclosure?

Brian Altman: If we’re still talking about Gareth Jenkins’ credibility and the assessment of a witness, I’ve accepted that twice now.

Mr Beer: Did you consider the question of making a report to the Attorney General –

Brian Altman: No.

Mr Beer: – or the DPP?

Brian Altman: No.

Mr Beer: I think you said that it didn’t cross your mind to advise to call in the police?

Brian Altman: No.

Mr Beer: Would you agree that, as you didn’t advise those things, that that failure contributed to those facts not emerging until the Court of Appeal Criminal Division?

Brian Altman: I’m not sure I am prepared to accept that because the CCRC had the general review, and every word you’ve quoted at me from it so far, in February 2015.

Mr Beer: So are you suggesting that, if the CCRC had wanted to disclose that to defendants, or applicants or appellants, it was down to them to do so?

Brian Altman: They were able to do it subject to their duties under the Act, under which they operate but the fact is they had all of that information and, if they had felt that any part of what I had done had been remiss or there were gaps in the advice I had given, then it was within the gift of the CCRC to conduct their own investigation.

Mr Beer: If Mr Jenkins, as a mainstay of the Horizon system, one of its architects –

Brian Altman: Did you say “if”?

Mr Beer: Yes, if Mr Jenkins, a mainstay of the Horizon system, had concealed some bugs, did the possibility occur to you that more bugs were in his knowledge?

Brian Altman: I think not, because I think he was clearly prepared to reveal to Second Sight, in a report which he must have realised would be published, those two bugs in Horizon Online, and so, no, I wasn’t aware, and it didn’t occur to me that there were many more, certainly not what came out in the Horizon Issues Trial.

Mr Beer: At no point in Mr Clarke’s Advices nor in, I think, yours, is the question of the relevance of the conclusions which you’d reached about Mr Jenkins addressed through the prism of a possible abuse of process argument considered; is that right?

Brian Altman: Well, I think, in general terms, I was talking about non-disclosure.

Mr Beer: Yes, and so you didn’t view this through the different lens of its effect on an abuse of process argument?

Brian Altman: Well, I did later but these are different sides of the same coin. You know, non-disclosure itself can often be the argument which underlines the first limb of abuse of process. It’s all much the same argument.

Mr Beer: Can we look forward many, many years to UKGI00018137.

This is the Horizon Issues judgment, with which you’ll be very familiar, and I think you were provided with a copy of this under the embargo provisions –

Brian Altman: Yeah.

Mr Beer: – at the time that it was still in draft, in December 2019, and asked by the Post Office to advise on it, yes?

Brian Altman: I think I was only given certain sections of it.

Mr Beer: Oh, I see.

Brian Altman: Yeah. I don’t think – I wasn’t given the whole thing.

Mr Beer: Can we look, please, at page 150, paragraph 508, “The absence of Mr Gareth Jenkins”, that’s the absence of Gareth Jenkins from the Horizon Issues Trial:

“It is entirely a decision of the parties which witnesses they choose to call in any proceedings. The position of one person, however, who did not appear in the Horizon trial, must be considered in more detail than would be usual as the claimants make considerable complaint about this. The person in question is Gareth Jenkins …”

Then if we go to page 152, please, paragraph 511:

“When Post Office served their evidence …”

Sorry, my monitor has gone blank. Has yours as well, Mr Altman?

Brian Altman: Yes.

Sir Wyn Williams: Amazingly, mine hasn’t.

Mr Beer: Sir, can we pause for two minutes, please.

(Pause)

Mr Beer: I’m told that RTS are just rebooting the system. Thank you.

We were just looking, at paragraph 511:

“When the Post Office served their evidence of fact, the claimants had asked the Post Office why there was no statement from Mr Jenkins, whether Mr Jenkins was available to give evidence and also whether he was involved in one of the team of what the claimants referred to as the ‘shadow experts’. This description was challenged by the Post Office and the question of shadow experts is addressed further below. No explanation was given for Mr Jenkins’ absence in response to these requests or in evidence in the trial, although it was confirmed that Mr Jenkins was not one of the team of so-called ‘shadow experts’.

“512. There the matter might have rested. However, in the Post Office’s written closing submissions, an explanation of sorts was for the first time provided.”

Reading on:

“This explanation by the Post Office included the following passages in its written submissions:

“‘144. [The claimants] understandably complain that Mr Jenkins and the other source of Mr Godeseth’s information could have given some of this evidence firsthand. However:

“‘144.1. Taking into account that Mr McLachlan’s evidence specifically addressed things said or done by Mr Jenkins in relation to the Misra trial, Post Office was concerned that the Horizon Issues trial could become an investigation of his role in this and other criminal cases.

“‘144.2. Moreover, Post Office was conscious that if it only adduced firsthand evidence in the trial, it would end up having to call more witnesses than could be accommodated within the trial timetable.

“‘144.3. Furthermore, so far as Post Office was aware, the relevant parts of Godeseth 2 were most unlikely to be controversial. For example, the Misra trial was a matter of public record, the four bugs were covered by contemporaneous documentation and Post Office had no reason to doubt Fujitsu’s account of the documents it held’.”

End quote.

Did the fact that the Post Office explained the absence of Mr Jenkins in this trial as a witness in these terms in any way concern you or surprise you?

Brian Altman: I’m not sure which part of the judgment this is and whether these are the parts of the judgment that were sent to me. But what surprises me is, I suppose if that’s the question you’re asking me, is – and I’m being careful here because this is the commercial litigation but – of which others had conducted – but, using him in the background as a shadow expert to inform their case, I suppose, is the key issue.

Mr Beer: The reasons 1, 2 and 3 given for not calling him, in their closing submissions, do not include that Mr Jenkins had, at least since 2013, been regarded as an unreliable or tainted witness?

Brian Altman: I see that here, Mr Beer. I don’t know because I’m just not sufficiently familiar with this judgment, certainly not now, whether that was dealt with anywhere else. But, if you’re focusing my attention on that particular paragraph, then you’re right.

Mr Beer: Did you think, when reading this, “Hold on, there’s nothing here about Mr Jenkins having been assessed by the Post Office to have been a tainted and unreliable witness”?

Brian Altman: I can’t tell you what I thought when I read this.

Mr Beer: I take it that you didn’t consider it part of your duty to raise that kind of issue with the Post Office?

Brian Altman: Mr Beer, I can’t remember what I thought when I read this paragraph, or assuming I did, back in, what was it, 2019?

Mr Beer: Thank you. Can we go back, please, to the breadth of your terms of reference, by looking at POL00006801 and, again, this a copy of your interim review, dated 2 August 2013, so a stopping off point towards your general review. If we look at page 5, please, and paragraphs 11, 12 and 13, you say:

“… I wonder whether non-disclosure by [Gareth Jenkins] of aspects of the Horizon system is the only potential issue that arises in these cases, or whether there may be other issues, which need to fall within the remit of [your] review.

“I question whether the sole issue of non-disclosure is too restrictive an approach to take to the review. I have considered the list of issues, which were reported to Second Sight in the course of their review by multiple [subpostmasters] as being of particular concern. One such concern was ‘[Post Office] Investigation and Audit Teams that have asset-recovery or prosecution bias and fail to seek the root cause of reported problems’.

“I have also considered Spot Review SR22, in which, according to the [subpostmaster] the issue was the lack of synchronisation between [Post Office] and Camelot records for ‘remmed-in’ scratchcards.”

Reading on:

“This case example does not appear to me necessarily to be an issue of non-disclosure but one that may be argued to relate solely to the proper functioning of the system. The spot review leaves the reader with the sense that there remains a dispute between the [subpostmaster] and [the Post Office] regarding this case. Has this case and others like it, fallen within [Cartwright King]’s review?”

So in those three paragraphs you’re saying that the review by Cartwright King is focused on non-disclosure, reading what Second Sight and some associated documents say, I wonder whether the terms of reference for their review need to be much wider, agreed?

Brian Altman: Yes.

Mr Beer: What issues other than non-disclosure did you apprehend or appreciate?

Brian Altman: Well, looking at paragraph 12 again, it’s almost impossible to put my mind back and, as it were, back-engineer what I was thinking about in those paragraphs, but one issue has to be those last three lines of paragraph 12, that Post Office was manipulating its prosecutorial function in order to embark on debt recovery.

Mr Beer: So that’s one example and I think 13 contains another example –

Brian Altman: Yeah.

Mr Beer: – namely functioning of system –

Brian Altman: Yeah.

Mr Beer: – causing losses, rather than disclosure issues?

Brian Altman: Yeah.

Mr Beer: Was the issue that you raised in paragraphs 11, 12 and 13 heeded?

Brian Altman: Well, there’s a question, Mr Beer, because this was 2 August. Obviously, my terms of reference weren’t crystallised until the back end of September and the review, as you know, or the final review, was dated 15 October that year. I have looked at this, and I can’t remember what happened in the meantime or whether anybody came back to me and, if so, how, about their views about this or what their responses were.

Mr Beer: I mean, to be clear, we’re not so much here focusing on the terms of reference –

Brian Altman: No.

Mr Beer: – for you.

Brian Altman: No.

Mr Beer: This is you raising issues about the breadth of the Cartwright King review?

Brian Altman: Well, it is that. But I suppose I would have expected, if there had been any amendment to this, then I would have seen it in the terms of reference somehow expressed.

Mr Beer: Who did you understand to be making decisions about the breadth of the Cartwright King review?

Brian Altman: At that time? Cartwright King, I suppose.

Mr Beer: Did you understand whether civil litigators, ie non-criminal lawyers, at Bond Dickinson were having influence over the breadth of the Cartwright King review?

Brian Altman: All I was – all I would say about that is that, clearly, it was Bond Dickinson, particularly Gavin Matthews, who was communicating with me about the terms of reference. So I assume Bond Dickinson had some contribution to that question.

Mr Beer: Can we look at what happened as a result of your raising the breadth of the Cartwright King review. POL00298123. Start by page 3, please, 2 August, your email sending through both of your documents, dated 2 August, including the second of them, the interim review, yes, which is the document we’ve just looked at.

Then, if we scroll up, please, Simon Richardson says that you’re away but:

“… that gives you [Susan Crichton] time to discuss with Gavin [Matthews], and internally, the terms of reference.”

Then scroll up, please. This Mr Matthews’ reply. You’re not copied in on any of these?

Brian Altman: No, no.

Mr Beer: This is Mr Matthews’ reply, saying he’s now had a chance to review your interim review of Cartwright King’s process, ie of the document we’ve just read, and set out “my/[Simon Richardson’s] comments and suggestions for future action”:

“It is clearly good news that the current limited process [Cartwright King] have adopted is broadly fine.

“2. He raises the issue of whether the current review is too narrow (see paragraphs 11, 12 and 13 [which I’ve just read to you]) – he references the list of issues in the [Second Sight] report and Spot Review 22 as examples of other issues which may need to fall within the ambit of [Cartwright King’s] review. Whilst this should be put to [Cartwright King], my own view is that it may be very difficult for [Cartwright King] expand the review on issues on which [Second Sight] have failed to come to any conclusion.”

Then scroll down, please:

“Our advice is …

“3. Bond Dickinson (Andy Parsons) should sit down with Brian Altman to walk him through the spot review process and the [Second Sight] Report so he can understand the impact of his review on the civil side.”

Sorry, so we’re on 3. Forgive me –

Mr Beer: Yes.

Brian Altman: – I was reading 1 and 2.

Mr Beer: So we read 1 and 2 of the first part and then 3 of the second part.

Brian Altman: Right. Well, that didn’t happen.

Mr Beer: Were the ramifications of widening the scope of the Cartwright King discussed with you?

Brian Altman: No, I don’t think they were.

Mr Beer: Was the fact that it might impact on the civil side, ie on the civil claims, raised with you?

Brian Altman: No.

Mr Beer: Were you aware told that that issue, broadening out the limited Cartwright King process, needed to be treated with some circumspection?

Brian Altman: You mean the – what’s expressed there in point 3?

Mr Beer: Yes.

Brian Altman: No.

Mr Beer: In your interim review, we’ve seen that you were alive to the fact that Second Sight was raising questions which were unanswered –

Brian Altman: Yes.

Mr Beer: – may need following up, hence your paragraphs 11, 12 and 13.

Brian Altman: Yes.

Mr Beer: But here bond Dickinson seemed to think otherwise, don’t they?

Brian Altman: It appears to be so, yeah.

Mr Beer: Did you meet Andy Parsons, as is suggested here, that there should be a sit down with you to walk through the Second Sight Report, so you can understand the impact on the civil side?

Brian Altman: What’s the date of this email, please?

Mr Beer: If we scroll to the top, it’s 5 August.

Brian Altman: Is it 5th August? The only way I can answer that and, if it was contemporaneous – and you’ve got my work log, I think, for that period – I think you’ll find the first conference I ever had, and it’s work record 1 was 9 –

Mr Beer: 9 September?

Brian Altman: Yeah.

Mr Beer: So outside of that –

Brian Altman: Well, beyond it, yeah.

Mr Beer: I’m sorry?

Brian Altman: 9 September post-dates this email by several weeks.

Mr Beer: So, outside of that, what is contemplated here, that the civil lawyers sitting down with you –

Brian Altman: Oh, a civil lawyer. Andy Parsons, you mean?

Mr Beer: Yes.

Brian Altman: If I had such a conference, it would be reflected in my work record.

Mr Beer: So that didn’t happen?

Brian Altman: I have no recollection of anything like that happening I’m afraid, no.

Mr Beer: So what happened to the point that you raised in your paragraphs 11, 12 and 13 about the broadening of the Cartwright King review?

Brian Altman: I don’t know.

Mr Beer: What happened when you realised, as you must have done, that your suggestions had not been followed?

Brian Altman: I – again, at this distance in time, I just can’t remember.

Mr Beer: Did you ever get a sense of a lurking difficulty here, that the things that you were suggesting ought to occur for the purposes of the criminal law were causing the civil lawyers some concern?

Brian Altman: Well, this is the thing, Mr Beer: no. I cannot remember anybody saying to me, you know, “Brian, if you advise this, this is going to have an impact on civil liability”. I don’t recall anybody saying that to me because, if I had, there would only have been one answer.

Mr Beer: Which would have been?

Brian Altman: That I am afraid that the advice I give you on disclosure will have no bearing on your exposure to civil liability.

Mr Beer: But at all events, what was contemplated by the civil lawyers here, namely a sit down and a walk through of the impact of your activity on the civil side did not occur, to your recollection?

Brian Altman: On this occasion, I’m going to go further and say it didn’t happen.

Mr Beer: Thank you. Can I turn to my third topic then, the cut-off date of 1 January 2010 –

Brian Altman: Yes.

Mr Beer: – and, in particular, Seema Misra’s case.

Brian Altman: Yeah.

Mr Beer: This document can come down. Thank you.

Now, I think by the time you came to write your general review in October 2013, you knew that Seema Misra had been convicted of a criminal offences in October 2010?

Brian Altman: Yeah, but she had also, of course, pleaded guilty to offences of false accounting in 2009.

Mr Beer: Yes. By the time you came to write your general review in October 2013, you were aware, I think you’ll agree, of a wide range of material that undermined the Post Office’s key witness in the case against her, Gareth Jenkins?

Brian Altman: Yes.

Mr Beer: By the time of your general review of October 2013, you knew that it was Gareth Jenkins who had given live oral evidence against Seema Misra?

Brian Altman: Yes.

Mr Beer: Most significantly, you were in possession of the 15 July Simon Clarke Advice?

Brian Altman: Yes.

Mr Beer: On reading the Clarke Advice, you didn’t disagree with the conclusions that Mr Jenkins’ conduct was in breach of duties to the court as an expert and that his credibility had been fatally flawed; indeed, you agreed with them?

Brian Altman: I did.

Mr Beer: You didn’t disagree with the advice that there were repercussions for past and present prosecutions and repercussions for past convictions; indeed, you agreed with them?

Brian Altman: Yes.

Mr Beer: The Clarke Advice was, amongst the papers you received, a very significant document, wasn’t it?

Brian Altman: It was significant advice, yes.

Mr Beer: It had obvious implications, didn’t it, for the safety of trials in which Gareth Jenkins had given evidence, whether in a witness statement or oral evidence?

Brian Altman: It had significance for – in terms of disclosure and a possible impact, in some cases, on safety, yes.

Mr Beer: It wasn’t restricted to that, was it, though? It also opened up the proper functioning of the system, namely the disclosure of bugs by the Post Office?

Brian Altman: Yes.

Mr Beer: You agree that the information contained in the advice was disclosable on the basis that the Post Office had allowed – and I’m going to use a neutral expression there – misleading evidence to be adduced in a number of trials in written statements and, in one case, through live evidence, promoting the safety of the Horizon system and even allowing a defendant to be convicted on the back of that disclosure failure?

Brian Altman: Well, I think it’s the same question you’re asking me, Mr Beer, about what I’ve already accepted, that his credibility should have been considered for disclosure, and disclosed with the benefit of hindsight.

Mr Beer: I’m asking it specifically now, through the lens of the Seema Misra case?

Brian Altman: Well, the Seema Misra case is slightly more complicated, I’m afraid, because, at that time, as I said earlier, the focus was on Horizon Online. Her branch was affected – or the theft count was, if my memory serves me, between 2005 and 2008, so it was a Legacy Horizon issue and I accept that when we came to the, you know, appeals, all those years later, the landscape was completely different. But, at that stage, I think one of the problems was that – and perhaps taking a naive view – that the two new bugs – and I only knew about three, I think, at that time, Callendar Square or Falkirk, which was a Legacy bug, and the two new bugs in Horizon Online, which had been revealed to Second Sight and on which they had reported on – I felt could not be material in her case.

Mr Beer: What I’m going to explore over the next, I think, half an hour or so is the change of view –

Brian Altman: Yeah.

Mr Beer: – between the position you took in mid-to late 2013, and then the position adopted in the Court of Appeal seven or so years later?

Brian Altman: Yeah.

Mr Beer: So, by the conference on 9 September 2013, you knew that Mr Jenkins was the sole expert witness for the prosecution in Seema Misra’s trial because I think you’d read the transcripts by then?

Brian Altman: I think I – yeah, I mean, it’s hard to – again, to recollect exactly what I had seen but there’s no question I had seen some transcripts, because the –

Mr Beer: I’ll try and help you on this. Let’s look at POL00006485. This is one of two notes of the conference on 9 September 2013.

Brian Altman: Yeah.

Mr Beer: You are recorded as opening the conference by confirming that you had read through all five of the ring binders delivered by Bond Dickinson.

Then if we go to page 3, please, and the second paragraph, you’re recorded as saying that you required a full transcript of Day 6 of Seema Misra’s case, the copying had only copied every other page –

Brian Altman: Yeah.

Mr Beer: – and that was going to be sent on to you. So, by this time, you had got into the detail of Seema Misra’s case?

Brian Altman: I had certainly read it, yes.

Mr Beer: Yes. Can we see, according to the other version of the minutes, what you said or were recorded as having said about Seema Misra’s case. POL00139866. Notes of the meeting with you on 9 September and you’ll see who was present.

Brian Altman: I have only seen this note in the past few days.

Mr Beer: I’ll take it slowly, then. Again, a similar start:

“QC [that’s you] said he had read all of the papers.”

Then if we go to page 6, please, and about a third to a half of the way down where it says, “QC”, if that can be highlighted.

“QC [this is you]: Misra concerned: pre-Horizon Online case – issues were 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.”

Susan commented that she had applied for mediation. You say:

“How are we going to deal with it if she comes forward and says similar …”

Susan Crichton says:

“Either review all pre-2010 cases – or we do nothing and wait for them to come forwards.”

You say: “Next problem: what disclose?”

Rod [Rodric Williams]: “We will always have people who want to go back and if we do, trying to prove a negative.”

You’re recorded as saying: “Can’t avoid the question.

“Provisional view: sensible date to adopt. But can’t avoid possibility Misras may crawl out of the woodwork: deal with on a case-by-case basis unless someone states cut off [is] unreasonable.”

Does this record of this conference fairly reflect your view that the cut-off date of 1 January 2010 was sensible to adopt but that there was a possibility that “Misras might crawl out of the woodwork”?

Brian Altman: As I say, I have seen this conference note for the first time in the last seven days and I didn’t have an opportunity to look at it all those years ago but I have no reason to think it’s inaccurate.

Mr Beer: Just scrolling up a little bit, where it says, “Slipping through the net”, can you see that –

Brian Altman: Yeah, yeah.

Mr Beer: – that the Misra case might be a case slipping through the net, was that an acknowledgement that Mrs Misra’s case fell outside the parameters of the review that you approved?

Brian Altman: I mean, on one interpretation and, if the note is accurate, answer: yes.

Mr Beer: Was the cut-off date a principled decision, rather than an attempt to close down complaints and prevent the floodgates from opening?

Brian Altman: Not from my perspective.

Mr Beer: Did you gain any impression that, from the Post Office’s perspective, the cut-off date of 1 January wasn’t a principled decision but, instead, an attempt to close complaints down and prevent the floodgates from opening?

Brian Altman: I dealt with this, you’ll recall, in my general review and I made comments in various places about Cartwright King keeping their mind open –

Mr Beer: I’m going to come, if it helps, to the general review in a moment.

Brian Altman: – I’m sure you will but this was always my thinking. To answer your question, I remember making some comments about Simon Clarke’s view about the cut-off date and I had some views that some of the factors he brought to bear on that decision were nothing I could support and did support.

Mr Beer: We’ll see that in a moment when we look at the general review: you say that some of his logic was not supported?

Brian Altman: Sorry, I’m jumping ahead but, to answer your direct question, I don’t recall getting the impression that Post Office saw it in the way that you suggest they might have done.

Mr Beer: Sir, can we take our second break at that point, please? I’m going to come back to the meeting after the break until 11.25.

Sir Wyn Williams: You read my mind there, Mr Beer.

Mr Beer: Thank you, sir. 11.25.

(12.14 pm)

(A short break)

(12.25 pm)

Mr Beer: Good afternoon, sir. Can we go back, please, Mr Altman, to the note of the conference of 9 September 2013, POL00139866, page 6, about halfway down, thank you, and you’re recorded as saying, in relation to, I think, to Ms Misra’s case, that it is a case slipping through the net. Then Susan Crichton replied or she commented that, “she [Ms Misra] had applied for mediation”. Yes?

Would you understand that to mean or to be a suggestion that she wasn’t slipping through the net entirely because, after all, Mrs Misra had applied to be a party to the mediation.

Brian Altman: I’m not sure I would, at least at that time, have linked the two, my comments and hers.

Mr Beer: You subsequently advised against the inclusion of Mrs Misra in the Mediation Scheme, didn’t you?

Brian Altman: Yes.

Mr Beer: So, to the extent that this is a suggestion by Susan Crichton that she wouldn’t slip through the net, your subsequent advice had the effect of meaning that she would slip through the net and the Mediation Scheme would not save her?

Brian Altman: Well, you could infer that from this but I suspect, at the time that I was thinking about Mrs Misra and the mediation, my view was principled that, clearly, I was concerned that she was a case slipping through the net but my approach to mediation, not just for Mrs Misra, although she was the name that put to me – I don’t remember any other names of any other postmasters being put to me other than hers – but mine was a principled approach to it.

Mr Beer: But you would you agree that, despite that principled approach, it would have the effect of excluding Mrs Misra from the mediation and thereby obtaining any information –

Brian Altman: Yes.

Mr Beer: – through that route?

Brian Altman: Harsh though it may appear and unpalatable after all these years, that is and was the effect of it.

Mr Beer: If we read further on in the attendance note, if we scroll down, please, you say:

“Can’t avoid [the] question …”

Then reading on to where I stopped off, you’re recorded as saying:

“So any individual for 2005: I was prosecuted and [pleaded guilty].”

Then you’re recorded as saying that Mrs Misra was “unique”.

Brian Altman: Yeah.

Mr Beer: Did you regard her case as being unique?

Brian Altman: Well, there are two words there which – I take it this Martin Smith’s note –

Mr Beer: I think it is.

Brian Altman: – that he recorded, which I didn’t see at the time. If I used the word “unique”, and I’m prepared to accept I might have done, but whether it was simply a single-word response like that or there was more to what I said, I can’t tell after all of these years, then it could have related to the fact that she was the only case in which Gareth Jenkins had given evidence.

Mr Beer: What was the significance of that; what were the consequences of that?

Brian Altman: You know, the trouble is, in the context of a note like this, I can’t tell you but the consequences were that I suppose she wouldn’t know that Gareth Jenkins had revealed what he had to Second Sight. I suppose looking back with hindsight, after all these years, but I – the trouble, is, looking at this note and the way it flows and, if we carry on, perhaps, and –

Mr Beer: Go over the page, please.

Brian Altman: If you would because I think you should have more context to this. I just wonder whether it was part of the conversation about the mediation.

Mr Beer: What, that the fact that she was unique was a –

Brian Altman: Well, I – you know, Mr Beer you’re asking about a single word in a document I’ve only seen this week, which I didn’t see at the time, and I’m doing my best with what’s in front of me. I don’t know.

Mr Beer: Shall we look at what’s about a third of the way down the page there?

Brian Altman: Yeah.

Mr Beer: It’s recorded that Gavin Matthews asked “Misra: [should we] Apologise?” and you replied, it is recorded “I wouldn’t”.

Brian Altman: Yes.

Mr Beer: Can you recall the question of apologising to Seema Misra arising?

Brian Altman: Well, if Mr Smith’s note is accurate, then it did and, again, if Mr Smith’s note is accurate, I must have said something along those lines. Whether it would have simply been a two or three-word response, I doubt very much.

Mr Beer: Looking back now, can you think why you would have advised not to apologise to Seema Misra?

Brian Altman: Yes, I can because – for really – for two reasons, it wasn’t just about the fact that she had been convicted of theft but she’d also pleaded guilty to several offences of false accounting in 2009 which, at that time, on what I understood, could not be related to any issues with Gareth Jenkins and, therefore, if Mrs Misra was admitted to the mediation, as a point of principle, I just couldn’t begin to understand why, in some form of quasi-civil process, Post Office wanted to ride both horses at the same time.

Here they were saying “This conviction is safe and those pleas of guilty are safe”, and, at the same time, “We want to engage” or “We could engage in mediation with her”. I just didn’t understand the question of apologising to somebody, Mrs Misra, as it was understood at that time and, at the same time, potentially talking about financial compensation.

So it was a principled point. I’m afraid her pleas of guilty, the convictions arising out of those pleas of guilty and the conviction for theft were, like everybody else who were convicted claimants, were unoverturned at that point and it was for the Court of Appeal to disturb those convictions, not the Mediation Scheme.

Mr Beer: You address these issues in your general advice. Can we turn that up, please. POL00006581.

Brian Altman: We had 6803, I think, before.

Mr Beer: Yes, we’ve obviously got it –

Brian Altman: Never mind. It’s the same document.

Mr Beer: Can we look at page 23, please?

Brian Altman: Page 23?

Mr Beer: Yes.

Brian Altman: Yeah.

Mr Beer: From this point, page 23 onwards, under the cross-heading, “Nature and scope of [Cartwright King’s] review”, you, in broad terms, in summary, address the scope of the review –

Brian Altman: Yeah.

Mr Beer: – looking at geography extent, temporal extent and other issues, correct?

Brian Altman: Yes.

Mr Beer: So if we look at 58:

“The nature and scope of the review was defined in Simon Clarke’s 8 July Advice, which coincided with the day of the publication of [Second Sight’s] report. The advice was that cases affected including [Royal Mail Group] cases pre-separation, and the areas of concern were the proper functioning of Horizon, Horizon training and customer support.”

Then if we go, please, to over the page. I’m afraid it’s going to be necessary to read quite a bit of this, from 61 onwards you address the temporal scope of the review:

“There was also consideration to the start date of the review. Horizon Online was migrated into all post offices between January and September 2010. Thus, the advice given was that the start date for the review process should be 1 January 2010, that is to say the earliest date for the Horizon Online rollout. Mr Clarke advised that in advising on this date, he had in mind issues of proportionality, resourcing, transparency and [the Post Office’s] reputation.”

Just stopping there, were they all proper reasons to focus on when deciding whether to look for material that may disclose a miscarriage of justice?

Brian Altman: I think I dealt with this, didn’t I, in the general review, which – where I said they weren’t proper factors.

Mr Beer: Yes, and so the four factors set out there – proportionality, resourcing, transparency and reputation – which of them were not proper factors?

Brian Altman: Well, if all four were designed to identify 1 January as the start date, as it were, for the review, all of them.

Mr Beer: So none of them is a proper factor?

Brian Altman: I didn’t think so and I’m sure – I think I said that a little earlier, Mr Beer, at 63 and onwards, I think I deal with this.

Mr Beer: You come on to address some of them?

Brian Altman: Yes, or some of them but I didn’t think any of them applied and certainly not Post Office’s reputation.

Mr Beer: Yes, so deciding how far back to look on whether exists material relevant to a miscarriage of justice, the Post Office’s reputation is not something to bring into account?

Brian Altman: It was nothing to bring into account, and that’s why I said what I did.

Mr Beer: You record in 62:

“Simon Clarke’s view was that any subpostmasters prosecuted under the former Horizon regime would have served any sentence of imprisonment or performed any unpaid work requirement or paid a fine and at all events the publicity from [Second Sight] report would put those defendants on notice.”

At 63, you record that the appendices in the Second Sight Report are posted on the website. Then line 3, you say:

“I am afraid I do not see those who have served their sentences [et cetera], should, for that reason, be excluded from the review. They have an interest if their conviction was unsafe and there must be people who fall within [the] current review who have been released from their sentences or had non-custodial sentences imposed on them.”

So you’re saying that that element of Simon Clarke’s reasoning, that all these people have done their time, is illogical and can’t be relied on?

Brian Altman: Yeah, I mean, with respect to Simon Clarke, I just didn’t – I frankly didn’t understand those points and then, as you’ll see, I dealt in that final sentence with two other of the factors which I’d listed above, resourcing and the reputation.

Mr Beer: Beside the point, correct. Then you continue:

“When I queried the rationale behind the cut-off date I was told and entirely accept that prior to each branch rollout, a cash audit was done so that each branch balanced. I advised in conference and repeat here that although [the Post Office] has no positive duty to seek out individuals before the 1 January 2010 start date for a review of their case, nonetheless if [the Post Office] was approached it would need to make ad hoc case-specific decisions about the need for disclosure.

“The Misra case is an example of the case I have in mind. Although [she] was tried in October 2010, the allegation related to events between 2005 and 2008, long before the rollout of Horizon Online. However, the issues raised in the case, which were made late by the defendant in one or more defence statements, were very similar to those generally being raised currently in relation to the Horizon Online system: [she] was eventually to claim that the approximate £75,000 deficit in her post office was due to a technical error or her own incompetence, having initially sought to blame employees …

“There is no information that Mrs Misra is now seeking to appeal her conviction … although she is … seeking to apply to participate in the mediation process.”

67, there are currently 12 or 13 conviction case applicants.

Then, over the page, you’ve considered Second Sight’s inquiry, you note it is not time limited. The definition of Horizon that Second Sight relied upon is widely drawn and you note, in the last three lines of that paragraph the spot reviews, or several of them, involve Horizon issues pre-dating 2010 rollout of Horizon Online.

Then 70:

“Despite the open-fronted nature of [Second Sight’s] inquiry, it is important to recognise that [Second Sight] has so far only discovered and reported upon two Horizon defects respectively occurring in 2010 (which I assume to be a defect with Horizon Online) and in 2011.”

Then your conclusion:

“In my judgment, the 1 January 2010 start date for [Cartwright King’s] review is both a logical and practicable approach to take. That’s not to say, however, that if a case pre-dating the Horizon Online rollout presents itself that CK should exclude it from consideration. There may be cases that raise genuine thorny technical issues, which are not unrelated to issues concerning Horizon Online (which after all is next generation Horizon) and, if they arise, they’ll have to be dealt with as required on a piecemeal basis. If it got to the stage where the floodgates of pre-Horizon Online cases began to open, then [Post Office] and [Cartwright King] will have to remain alive to the possibility of commencing a subsidiary review.”

So you say that the cut-off date is logical and practicable. Dealing with practicability first, why was it practicable?

Brian Altman: I think it was practicable because the bugs which had been revealed to Second Sight and reported by them in the interim review were accessible, in the sense that they were more recent and, second, I have in the back of my mind that there was some problem in going back to Legacy Horizon and understanding what might have happened with that system.

Mr Beer: Where did you get that understanding from?

Brian Altman: I am sure I knew about that. I know I don’t say it here, but I’m sure I knew about that.

Mr Beer: What was the nature of the thing that you knew about?

Brian Altman: Simply, I think, that there – it was – was the system archived or not live any more, something like that.

Mr Beer: In terms of the logic, you say that it is a logical approach to take. In saying that it was the logical approach to take, did you take as your starting point the assumption that there were no bugs in the old Horizon system?

Brian Altman: No, I didn’t take that as an assumption because I knew that there was one, which was Callendar Square, but I suppose it was looking at the two new bugs which had come to light, Callendar Square or Falkirk had been litigated in the course of Mrs Misra’s trial in 2010 and was, to that extent, in the public domain. These were two new bugs and they were two new bugs in Horizon Online, and that came online and was migrated to branches from – by 1 January 2010 and that was the logic to it.

Mr Beer: The balance of 71 is essentially a way of saying that, “If any other cases crawl out of the woodwork”, wasn’t it –

Brian Altman: Yeah.

Mr Beer: – “We’ll face them when they arise”?

Brian Altman: Well, I think that’s a rather harsh judgement, Mr Beer, because I think what I’m really saying is I’m saying to Cartwright King and Post Office, for that matter, “You must remain alive to the possibility of commencing a subsidiary review”. So, you know, to the extent that I did use that term, in the course of the 9 September meeting, I mean, this document is 15 October, so it’s five or six weeks on and my thinking had moved on.

And I recognised and I wanted Post Office and Cartwright King to recognise that, if there is a Legacy Horizon system problem, then you’re going to have to potentially consider commencing a subsidiary review. That’s what I meant by it.

Mr Beer: Can we look at a stepping off point between the 9 September conference and the 15 October general review, namely an email of 3 October. POL00066825. This is an attendance note from Martin Smith of Cartwright King of 3 October 2013, of a conversation that he had with Gavin Matthews of Bond Dickinson. So this is after your 9 September conference but before your 15 October general review.

Brian Altman: Yes.

Mr Beer: The “Summary”:

“[Telephone call] Gavin Matthews. He has spoken to [Brian Altman QC] …

“Detail

“[Telephone call] Gavin Matthews. He has spoken to [Brian Altman QC]: Mediation cases can go on separate spreadsheet. So far as date is concerned – understand why 1/1/10 but on the basis no bugs prior to then on old system he advises only need to review Horizon Online cases since that date.

“[Martin Smith] said [he is] not sure that is correct. HB currently looking at Misra transcript to see what [Gareth Jenkins] said.”

Brian Altman: HB, Harry Bowyer?

Mr Beer: Probably:

“Think it likely to contain a reference to the Misra bug. [Gavin Matthews] suggests that [you] may well have advised on the basis of an incorrect assumption. [Martin Smith] said [he] would call tomorrow.”

Then the rest is about something else.

Brian Altman: Right.

Mr Beer: Are they right that you advised on the basis of an incorrect assumption that there were no relevant bugs pre-Horizon Online?

Brian Altman: I can’t see that as possible. I can’t see that’s possible because, by 3 October, as you pointed out earlier, I’d read the transcripts from the Misra trial.

Mr Beer: Did either of them raise their belief that you were advising on an incorrect basis with you?

Brian Altman: No, I saw this as part of the disclosure to me. Frankly, I can’t remember if it’s in my original bundle or the additional documents but it doesn’t matter. I was totally unaware of it.

Mr Beer: So Mr Smith did not call you the next day, to the extent that that’s a reference to him going to call you the next day?

Brian Altman: Well, I don’t want to say no without looking at my work log, which would only be fair. The next –

Mr Beer: It would be the 4th?

Brian Altman: 4 October, yes. So I had a conference call with Gavin Matthews, Cartwright King and Post Office for half an hour.

Mr Beer: On the 4th?

Brian Altman: On the 4th but, as you will know, that related to the scope of the review and that is recited in the general review but I don’t recall anybody suggesting to me “You’ve misunderstood”.

Mr Beer: Thank you. That can come down. Sitting here today, do you stand by the advice that the correct cut-off date was 1 January 2010?

Brian Altman: Yes, on the basis of my understanding at the time, which did – in my mind, it must have included I knew about the Callendar Square bug in Legacy, that was the only bug I knew about in Legacy. Yes I do.

Mr Beer: The corollary of which is that the Post Office should do nothing in relation to subpostmasters convicted before that date and instead wait to see whether they came forwards?

Brian Altman: Yes, and that was based on mixed fact and law. The law has never been, post-conviction, that a prosecutor has to go out and search for cases which may be unsafe, on the basis of little or no information, and that was confirmed, actually – not at that time but I’d always understood that to be the position – that was confirmed in the Supreme Court in the case of Nunn in 2014.

Mr Beer: Had you not given consideration at this point to the fact that you regard Mr Jenkins as an unreliable witness, he had been a cornerstone of the case against Seema Misra and that, at least in her case, there ought to have been such disclosure?

Brian Altman: The fifth time of agreeing with you, Mr Beer. I’ve made that plain. Yes, I can see that.

Mr Beer: What accounts for the failure?

Brian Altman: If I cast my mind back, I think the only thing that would have gone through it is the fact that the failure by him was to identify in her trial bugs in Horizon Online, which would not have impacted.

Mr Beer: You’ve told us today that your concern about admitting people like Seema Misra to the Mediation Scheme was that they remained convicted defendants, the Mediation Scheme could do nothing about that.

Brian Altman: Yes.

Mr Beer: Only the CACD could?

Brian Altman: Yes.

Mr Beer: Can we look, please, at POL00006485. This is the other note of the conference on 9 September?

Brian Altman: Yes.

Mr Beer: If we scroll down, please, keep going.

Brian Altman: Which page do you want, Mr Beer?

Mr Beer: I think it’s on the second page. Stop there. Yes. On the screen, it’s the second paragraph from the top – sorry, no, that’s the wrong paragraph. If we keep reading, please. Keep going on the scrolling.

Yeah, there, third paragraph:

“There was then a discussion in relation to the overlap between the intended mediation process and criminal cases.

“[Andrew Parsons] reported the current position in relation to the mediation process and how it was intended to work. Individuals currently being prosecuted are not eligible though individuals who have previously been convicted are eligible for the scheme.”

You are recorded as saying that you:

“… advised considerable caution in relation to mediation cases involving convicted individuals (Seema Misra has already indicated an [indication] to be within the scheme). The concern is that lawyers acting for those individuals may be using the scheme to obtain information they would not normally be entitled to in order to pursue an appeal.”

Is that, so far as you can recall, an accurate summary of your advice as to why convicted individuals should not be admitted to the scheme?

Brian Altman: No, that was not my advice at all. My advice was that there should be caution in relation to the mediation cases and that was for the reasons I’ve already given. The way this is written may suggest this was my advice, it wasn’t. The concern that lawyers acting for those individuals may be using the scheme to obtain information they wouldn’t normally be entitled to was Cartwright King’s or Post Office’s. It wasn’t my concern, as I made clear in subsequent paragraphs in the advice I later gave.

Mr Beer: This doesn’t record as the reason for not admitting subpostmasters who have been convicted –

Brian Altman: No.

Mr Beer: – to mediation –

Brian Altman: No.

Mr Beer: – that they remained convicted?

Brian Altman: No.

Mr Beer: It’s recorded as you expressing a concern about lawyers getting information to which their clients are not entitled?

Brian Altman: No, I’m sorry but that is a misreading or it’s an unfortunate juxtaposition of two sentences. The first was my advice. This one doesn’t say, “BA said”, this one said, “The concern is that”, and I made that clear in my witness statement and, if you go to the general review, you will find me expressing, perhaps more accurately than this is prepared to do, that the concern – in fact, I think I used the words “understandable”, but that the concern was Cartwright King’s. And if my memory serves me, I think you’ll find that in paragraph 129 of the general review.

Mr Beer: So this paragraph in the conference note, which I think you did have an opportunity to settle at the time, didn’t you?

Brian Altman: No, I don’t think I did.

Mr Beer: You weren’t sent this to –

Brian Altman: I’m not saying –

Mr Beer: – approve or amend?

Brian Altman: – I wasn’t sent it but I don’t think I was sent it to approve and, frankly, if I’d have looked at it, obviously all these years after, one can go through it with a fine-tooth comb, as we are but, even if I had, I don’t think I’d have done that or looked at it with any particular – unfortunately using the word “concern”. But I can tell you, categorically, that second sentence was not any concern I advised on. It was not my concern; it was theirs.

Mr Beer: So this should either be a new paragraph after the end of the words “the scheme” and beginning with “the concern”?

Brian Altman: Well, yes.

Mr Beer: It should read “Cartwright King held a concern”?

Brian Altman: If I was writing it and I’d applied my mind to it, if you think that this was me saying it, I’m afraid, Mr Beer, you’re very wrong; I was not. And, as I say, I made that perfectly clear when you come to look – as I say, I think it’s paragraph 129 of the general review because this was an ongoing theme, and I think 129 is where I recite the conference we’ve just been looking out of 4 October. It’s the same thing and, if you look, in that paragraph – I think I’m right in saying it’s 129 – you’ll see I set out exactly the same words, almost, that it was Cartwright King’s concern.

Mr Beer: Did you say to them “That’s an improper concern to hold”?

Brian Altman: I think what I said is what appears again in somebody else’s note in the paragraphs that follow.

Mr Beer: Were you concerned at all about the need for the Post Office or Cartwright King to take control over what Second Sight was disclosing in the course of the mediation process?

Brian Altman: Yes, it was about supervision, and it was about controlling the information disclosed or being disseminated to individuals who were within that scheme. Not being blindsided by evidence that they were not aware of and auditing the information, which, in my experience, is no different to what any prosecuting authority does in any disclosure process. And, again, actually, Martin Smith’s note on this occasion sets it out pretty clearly because I had said – I think it may be page – I can’t remember now, page 8, possibly page 6, where he noted that I said that there should be a sharing of the information and it should all be recorded by Cartwright King. That’s what I was talking about.

Mr Beer: You weren’t concerned that Cartwright King or the Post Office should control what Second Sight was disclosing in the course of the mediation process?

Brian Altman: I felt there was a risk, as I recall it, that Second Sight – this was an uncontrolled environment. So I felt there was a risk and that’s why I gave the advice I did. This wasn’t about not disclosing; this was simply advice about “Supervise what’s happening so that you know what’s going out of the door”, it was as simple as that: a record, an audit trail, you know what’s being disclosed.

Mr Beer: Can we look, please, at POL00337202. This is an email from you to Gavin Matthews about a fortnight after the conference. The first page concerns the terms of reference. Can we look at the second page, please.

“Regarding the conference note [I think that’s the conference note for 9 September], it accords with my recollection, except in the case of couple of matters listed above …”

Then:

“As to the final paragraph of the draft conference note, I did advise that [Cartwright King] needed to rethink the terms of the letter they are sending out.”

Then:

“I also recall advising:

“1. There was no positive duty to seek out individuals [before 1 January 2010] but if [the Post Office] was approached it would need to make case-specific decisions on disclosure.”

Secondly, you recall advising:

“About the need for [the Post Office]/[Cartwright King] to take control over what [Second Sight] was disclosing it mediation process.”

Why was it necessary for Cartwright King to take control over what Second Sight was disclosing?

Brian Altman: For the reasons I’ve already given, that I wanted to ensure that Cartwright King, as Post Office’s external solicitors, understood what material was going out to postmasters.

Mr Beer: That’s a slightly different issue, isn’t it, that they should have visibility of what is disclosed?

Brian Altman: No, it’s the same thing. I spoke in terms – I used the term “control” and “supervision” pretty interchangeably. It was I wanted them – and I’ve already said, that what Second Sight, I think or what I understood, was doing, was uncontrolled. I wanted Cartwright King to know what was being disclosed.

Mr Beer: Sir, it’s 1.00, might we take the lunch break until 1.50, please.

Sir Wyn Williams: 1.50 is a truncation of the transcriber’s lunch break, in any event. How do you foresee this afternoon going, Mr Beer?

Mr Beer: I envisage going until about 3.20, and then some questions from Core Participants.

Sir Wyn Williams: So we need to have ten minutes less for lunch, do we?

Mr Beer: I’m afraid so.

Sir Wyn Williams: All right then, 1.50.

(1.00 pm)

(The Short Adjournment)

(1.50 pm)

Mr Beer: Good afternoon, sir. Can you see and hear us?

Sir Wyn Williams: Yes, thank you.

Mr Beer: Thank you.

Good afternoon, Mr Altman. Can we turn to my fourth topic, please, which is the legal advice you gave in relation to the Post Office’s investigation and prosecution roles. Can we start by looking at your advice on this issue, which is POL00006802. This is dated 19 December 2013, on its last page. I just want to ask you about a couple of parts of it. Can we start by looking page 4, please. Again, you provide an executive summary and under paragraph 5.1 you say:

“I have seen no evidence to suggest that the Post Office exercises its investigations and prosecution function in anything other than a well-organised, structured and efficient manner, through an expert and dedicated attempt of in-house investigators and lawyers, supported by Cartwright King and their in-house counsel, as well as external counsel and agents where required.”

How did you come to the view that the Post Office was exercising its investigation function in a well-organised, structured and efficient manner?

Brian Altman: I think based on what Post Office had sent to me, I had met Cartwright King, I had met Rodric Williams, I’d met Jarnail Singh once, maybe twice, and I had read by that stage certainly two of the prosecution files. I had more insight into the Post Office through the general review and I think the overarching view I came at was – is reflected in that paragraph.

Mr Beer: Focusing on the functions performed by Investigators, and your conclusion there about them, had you examined any documents or material relating to the training of Investigators?

Brian Altman: I’ve got an idea I might have asked for something but I can’t remember.

Mr Beer: Had you examined the knowledge and experience of Post Office Investigators?

Brian Altman: I think I knew that some of them were former police officers.

Mr Beer: Was that the extent of it?

Brian Altman: I can’t remember.

Mr Beer: Had you examined the Investigators’ knowledge of and practical application of the law of disclosure?

Brian Altman: The Investigators’?

Mr Beer: Yes.

Brian Altman: No.

Mr Beer: Had you examined the extent to which Investigators actively investigated all reasonable lines of inquiry –

Brian Altman: No.

Mr Beer: – including those which pointed away from the guilt of the suspect?

Brian Altman: No.

Mr Beer: Had you varied what supervision checks and balances, if any, existed to superintend the work of the Investigators?

Brian Altman: Well, I understood that Cartwright King were involved as the external agents and I understood that they were the instructing solicitors, and I had met Simon Clarke and I had met Harry Bowyer and I remember being impressed by them.

Mr Beer: That’s being impressed by lawyers. I’m asking at the moment about superintendence or supervision of the work of the Investigators?

Brian Altman: No, but I rather thought that Cartwright King that that superintendence.

Mr Beer: Had you examined how, in practice, decisions as to whether to prosecute or not were made in practice?

Brian Altman: No.

Mr Beer: Had you discovered who the decision maker was in relation to any decision to prosecute?

Brian Altman: Well, if my memory serves me, during the course of this review, I had referred to several Post Office policies and I think one of those policies put the hands of – the ultimate decision making in the hands of somebody who was non-legal.

Mr Beer: Had you examined –

Brian Altman: Forgive me, so I made a point about that.

Mr Beer: Had you examined what the training or experience of that person was?

Brian Altman: Of that person? No. But the point I made, I think, was it ought to be in the hands of a legal individual.

Mr Beer: Did you examine how much consideration that person gave to an analysis of the evidential strength of a case?

Brian Altman: No.

Mr Beer: Did you examine what tests that decision maker applied when deciding whether a case was to be prosecuted?

Brian Altman: No.

Mr Beer: Given all of those things, how were you able to say that the Post Office exercises its investigatory function in a well-organised, structured and efficient manner?

Brian Altman: I think I was talking more about the hierarchical structure and what had been presented to me in the way that Post Office, through those various policies, were structured. I don’t think I was deep diving nor do I think I was expected to deep dive all of the factors that you’ve just mentioned. If I had, this would have been a completely different exercise.

Mr Beer: Do you think there was a danger in the conclusion that you wrote there being misunderstood and, therefore, misapplied and being used as a weapon by the Post Office in fending off criticisms of it?

Brian Altman: On the basis of what I’ve just said, yes, I can see that. At the time, I suspect I didn’t appreciate that it would be.

Mr Beer: If we go forwards, please, to page 39, and paragraphs 105, 106 and 107. You say:

“It may be thought that [the Post Office’s] prosecution role is anachronistic, and highly problematic …”

“106. The recent events have to be seen in the proper context. The serial non-disclosure of relevant material occurred in circumstances in which [the Post Office] asserts that it and its advisers were wholly unaware that there might be disclosable material or information and so, whatever the reason, were not placed in a position whereby they knew of its existence and could deal with it appropriately.”

Brian Altman: Yeah.

Mr Beer: You tell us in your witness statement that later events proved your information and understanding, that you set out there, to be wholly incorrect?

Brian Altman: I think I say “catastrophically incorrect”.

Mr Beer: We’ll just check that.

Brian Altman: Which paragraph do you have?

Mr Beer: 41.1 on page 21.

Brian Altman: Certainly somewhere I recognised that it was catastrophic or the information I had afterwards but not then. Yeah, no, it’s not in that paragraph but certainly somewhere else I say that.

Mr Beer: Page 21 at the foot of the page, please, bottom of the page. The paragraph that I’ve just cited from your advice is followed with the sentence:

“Later events proved by then information and understanding to be wholly” –

Brian Altman: No, you’re right but I’m fairly sure somewhere here I made the similar point, but somewhere else, that it was catastrophic.

Mr Beer: That it was catastrophic?

Brian Altman: Yeah.

Mr Beer: Can you please set out what you now know that demonstrates that the information upon which you were advising was wholly incorrect, firstly in terms of the Post Office being in possession of disclosable information?

Brian Altman: I’m afraid I can’t give you detail because it’s so complicated and, you know, my knowledge has developed over the course of the years up to and including the appeals in March 2021, but what I discovered in later years – and by later years, I actually mean the Horizon Issues trial onwards and that judgment – was that the landscape, as I called it earlier, was entirely different, that it was perfectly clear to me that individuals within the Post Office were very well sighted on all of the problems, some of them you have demonstrated during the course of your examination today.

And, you know, I look at paragraph 106, which I’ve read more than once, as a remarkable insight into my ignorance and what I wasn’t told and what I didn’t understand.

Mr Beer: In terms of the Post Office being “wholly dependent on Fujitsu and/or the expert to reveal material, so that Post Office could perform its prosecution duties”, who provided you with that incorrect information?

Brian Altman: Sorry, which paragraph is that?

Mr Beer: It’s highlighted on the screen –

Brian Altman: Oh, forgive me, it’s my –

Mr Beer: – it’s a citation from your advice:

“Post Office was, inevitably, in a position where it was wholly dependent on Fujitsu and/or the expert to reveal material so that Post Office could perform its prosecution duties.”

I am asking who provided you with that material, that information?

Brian Altman: I just don’t know but it was clearly something that was in my mind at the time that wrote this.

Mr Beer: Was that, in fact, not information that was provided to you but, rather, a conclusion which you drew by reading the material that you had been given, ie it’s your subjective assessment?

Brian Altman: Perfectly possible that it’s an inference from everything I saw –

Mr Beer: Thank you.

Brian Altman: – or everything I was told, or perhaps not told.

Mr Beer: That can come down, thank you.

Were you told about a possible plan to transfer cases to the CPS to consider for prosecution?

Brian Altman: What, that Post Office had a positive plan to do that?

Mr Beer: Yes, or was considering whether to do that.

Brian Altman: Well, I think it was something, obviously, I looked at in this review document. Whether I did it off my own bat or whether somebody suggested to me “Is this something we should be looking at”, or further than that “There is a plan to do this”, I simply can’t recall.

Mr Beer: Can we have a look at an email exchange, please, POL00147419. You’ll see this is an email exchange that you’re not included on, it’s from Rodric Williams, litigation lawyer at the Post Office, to Chris Aujard and others, dated 11 January 2014. It’s a summary of what he says was his discussion with you earlier that day.

Brian Altman: But which obviously post-dates this review by a month or two.

Mr Beer: Yes. Can you see that under “A”, just in passing, you seem to have advised, in the light bullet point:

“Board minutes/discussions about pursuing a prosecution policy for commercial aims may need to be disclosed if the application of that policy was ever called into account. This presents a risk of reputational damage.”

Brian Altman: And the key message beneath that.

Mr Beer: Yes.

Brian Altman: Yeah.

Mr Beer: Where it records a key message, do you think that’s him summarising a key message that you told him, Rodric Williams?

Brian Altman: Well, I think it’s the penultimate bullet. The one above the highlighted one.

Mr Beer: So where it says, “Key message” that’s, essentially, something that you said or would have said to Mr Williams?

Brian Altman: Well, “Chris – here’s a summary of my discussion with Brian earlier today”.

Mr Beer: What I’m just looking at, at the moment, is the attribution of words here and whether or not –

Brian Altman: Oh, I see.

Mr Beer: – the key message is something that is Mr Williams setting out his key message –

Brian Altman: Yeah, I see.

Mr Beer: – or setting out your key message?

Brian Altman: I suspect that’s his key message, his takeout from his understanding of the advice I’d given that day.

Mr Beer: But based on what you had advised?

Brian Altman: Yes.

Mr Beer: I understand. Can we look, please, further down the page to B, “Jumping ‘A’ (status quo) to ‘C’ (all CPS)”?

Brian Altman: Yeah.

Mr Beer: “A change of policy is not an admission that past practices were wrong. It would still be open to someone (eg a ‘conspiracy theorist’) to say that this did drive the change, referring to the temporal connection between the change in policy and the challenges to past prosecutions;

“This could lead to enquiries about the reason for the change, eg requests for disclosure or questions in Parliament;

“It is far from certain that the CPS would take on any of our cases given the budgetary pressure it is under;

“We should start discussions at a high level within the CPS if we want to take this on (ie don’t just announce that the CPS is going to prosecute criminal conduct in our network without raising it with the CPS first!);

“We should not lightly give up (or cede to another) our expertise in identifying and (where appropriate) prosecuting criminal conduct in our network.

“Key messages: Jumping from ‘A’ to ‘C’ risks sending the wrong message to the network about how we view criminal conduct (both past and present), and losing our expertise in monitoring our network, without any certainty that prosecutions would be picked up by the CPS. However, a change in policy (however dramatic) does not present a pure legal risk of challenge to past convictions.”

Does that accurately record the past advice you gave?

Brian Altman: I can’t say it does and I can’t say it doesn’t, not least because I have to say, when I looked at this email, I was not totally convinced. I was prepared to accept that I’d given the advice in the conversation under A but I looked at B and when I first looked at it I wasn’t sure that that was what I had said. So I can’t answer that question, I’m afraid. I don’t remember this conversation at all. This part of it, anyway.

Mr Beer: What made you think that it might not be you speaking in relation to the issues under B?

Brian Altman: Simply because I wouldn’t have said words like “eg a conspiracy theorist”, I wouldn’t have said, “to say that this did change the change, referring to the temporal connection between the change in policy and the challenges to past prosecutions”, that’s not the way I expressed myself. And so I looked at it and I was not convinced that this was me.

The next bullet point “far from certain CPS would take on any of our cases given the budgetary pressure it’s under”, I know I did have that view and I expressed it in the review document we’ve just been looking at.

Mr Beer: Are you saying you think you’ve been verballed here?

Brian Altman: Sorry?

Mr Beer: Are you saying you think you’ve been verballed?

Brian Altman: I don’t want to be unfair to Mr Williams. There are possibilities that I had this discussion. I just looked at it and I just didn’t think it reflected the way I would express myself but, you know, it’s possible. I just don’t know.

Mr Beer: In any event, did you advise Mr Williams that shifting cases to the CPS would “risk sending the wrong message to the network”?

Brian Altman: I don’t think that’s something that I would say because that was a business case and I don’t think – I don’t think, looking at this now, that this was something that would have been within my ken or understanding. That was my something, I think, Post Office were very keen on, about the message.

Mr Beer: What message were they very keen on?

Brian Altman: The one you’ve just identified about, you know, the network and postmasters understanding that we’ll pursue prosecutions.

Mr Beer: Exactly, so exactly what message were they happy or keen on being distributed to the network?

Brian Altman: Well, that if you have your hand in the till, we’ll prosecute you.

Mr Beer: Thank you. That can come down. Can I turn to the fifth topic then, please, which is the advice you gave about the distinctions or absence of distinctions between offences of theft and false accounting?

Brian Altman: Yeah.

Mr Beer: Can we begin by looking at POL00006588, please. This is your advice on theft and false accounting?

Brian Altman: Yes.

Mr Beer: It’s dated 8 March 2015 on its last page.

Brian Altman: Yeah.

Mr Beer: Can we just read through some of the paragraphs, first paragraph 1. You’d been asked to:

“… advise the Post Office on my view of the equality of the offences of theft and false accounting under the Theft Act 1968 and to consider the terms of a letter sent by Post Office to [Second Sight] on 24 February 2015.”

Then over to page 2, please.

Brian Altman: Well, do you mind, before you do that, going to paragraph 2, because that’s the information I had as to why I was being advised – it wasn’t just about the letter.

Mr Beer: Of course.

Brian Altman: The arguments –

Mr Beer: You were told –

Brian Altman: Yeah.

Mr Beer: – that Second Sight is:

“… beginning to advance arguments that the Post Office is abusing its prosecutorial role by charging subpostmasters with theft when there is no evidence of it, in order only to pressurise them into pleading guilty to false accounting.”

Brian Altman: Yes, thank you.

Mr Beer: Then over the page, please, to page 2, paragraphs 5 and 6. You say you’ve been:

“… made aware that Sir Tony Hooper has seen the letter …”

That’s a letter sent by the Post Office to Second Sight:

“… and the gist of what he has said, amongst other things, is that false accounting is a lesser charge than theft so [Second Sight] was not incorrect to characterise it as such. He added however that if someone steals, then that is more serious than if someone falsely accounts to cover up an accidental then of £10,000. But if someone falsely accounted for say £500,000 then that offence is of greater seriousness.”

Then page 3, please, scroll down to paragraph 9, you say:

“First, there is no legal concept of the ‘equality’ of offences in all. All I think [Cartwright King] meant by it was that both are offences of dishonesty carrying identical maximum sentences. This was a generalisation but in reality means little or nothing.”

Then page 5, please, paragraphs 14 and 15. You say:

“My point is that merely because the charges involve dishonesty and maximum sentences of seven years is not to tell the whole story of how in individual cases a judge is likely to sentence one from the other. Each case involves a careful process of assessment of the culpability of the offender, harm caused, the aggravating and mitigating factors and the individual guideline in which the offence fits.

“If I may say so, the so-called ‘equality’ of the offences is an unnecessary and unprofitable focal point of attention. The other issues raised by the letter have greater force and are defensible.”

Then, lastly, paragraph 22, on page 7:

“In conclusion, I advise that:

“Both offences of theft and false accounting do indeed involve dishonesty and do carry a maximum of seven years’ imprisonment.

“I think the only argument that may be advanced to defend the statement is that it is accurate within the narrow context in which it was stated.

“The point is that false accounting may be a lesser offence, and may be a lesser offence in the context in which it is charged, so to argue it is not a lesser offence is not accurate; it all depends on the circumstances of the individual case, as Tony Hooper’s illustrations show.

“The statement is undermined by the fact that the seriousness or otherwise of any offence of theft or false accounting must always depend on its own facts, as is demonstrated by the many ways in which such offences may be committed and how offenders may be sentenced for them.”

Do you think you really addressed the substance of the issue being raised, namely that there was an allegation or suggestions being made that the Post Office had a practice of charging theft when there was no or insufficient evidence of theft, in order to pressurise subpostmasters into pleading guilty to the lesser offence of false accounting, which had been included on the indictment, and that Cartwright King had said that Second Sight’s suggestion that false accounting was a lesser offence was inexpert and wrong?

Brian Altman: No, because I wasn’t asked in that advice to address the allegation which I set out in paragraph 2. I was simply asked to address – and that’s what I did address – in my instructions, the defensibility or otherwise of the letter which Post Office, crafted by Cartwright King, had sent to Second Sight.

Mr Beer: Wasn’t the point that, in the context of the real world involving cases of subpostmasters being prosecuted, an alternative charge of false accounting to theft would inevitably be a lesser offence in terms of the likely sentence?

Brian Altman: It can be, not necessarily always. It depends on the facts. These are fact-specific issues. But I wasn’t asked to state what anybody who practices in crime knows that people will plead guilty to offences or lesser offences in order to attract a lesser sentence.

Mr Beer: But that was the issue, wasn’t it?

Brian Altman: I didn’t think it was.

Mr Beer: You confined yourself to the very narrow question –

Brian Altman: Yes.

Mr Beer: – of whether, technically, what your client had said in a letter could be defended?

Brian Altman: And that’s what I was asked to do, Mr Beer. If they had said to me “And by the way, Mr Altman, do people sometimes plead guilty to lesser offences to attract a lesser sentence?” I would have said exactly the same and, you will know because there is an email, that I asked Andy Parsons who instructed me to find out from Tony Hooper what it was that he was saying. I wanted to understand what his complaint about the letter was. And he came back to me, he told me what Sir Anthony Hooper’s complaint was about the letter, and that is what I addressed. I’m sorry, I disagree.

Mr Beer: Were you straining, here, to help Cartwright King out and not advising on the –

Brian Altman: No.

Mr Beer: – the obvious issue that in this context of counts charged as alternatives to each other –

Brian Altman: No, I’m sorry, Mr Beer. That, for me, is a complete misreading – and I say that with great respect – of what I was asked to do in this advice and what this advice confronted. If I had been asked to advise on the question you would like me to have been instructed on, I would have responded and, in response to your other points that I was helping out Cartwright King, I don’t see how I was when you read out what I said in paragraph 22, including “The point is that false accounting may be a lesser offence and may often be a lesser offence in which it is charged, so to argue it is not a lesser offence is not accurate”. And it’s absolutely accurate, as I continued here to say, it depends on the circumstances as Tony Hooper’s illustrations showed.

So, forgive me, I fundamentally disagree.

Mr Beer: So you didn’t think it was part of your function to –

Brian Altman: No.

Mr Beer: – to make the obvious point?

Brian Altman: No, because it is an obvious point and Cartwright King would have known it and anybody else would, who practices in crime. I did not, for one second, think I was being asked to advise on that. What I was being asked to advise on is exactly what I set out, is this paragraph – in other words, “Have we got this right? Sir Tony Hooper is saying this is nonsense, Cartwright King has given us this advice and that has been reflected in this letter, are we right or are we wrong?” And the product of my advice is in the conclusions in paragraph 22. That is what I was asked to do.

Mr Beer: Wasn’t it clear to you that Sir Tony Hooper was taking the point that it’s really an irrelevance to say that the two offences are equal to each other by simply looking at whether they contain, as an element, dishonesty –

Brian Altman: No.

Mr Beer: – and whether they have the same theoretical maximum sentence?

Brian Altman: No. I mean, if you want to look at the email I got – I know you have it, it’s at B31 – but the email I got, because I was keen to understand what Sir Anthony Hooper had in mind, if Andy Parsons had made that point to me, and if that’s what had been passed on to him, then I would have given the advice, of course. It is a lesser offence, and it’s one to – and anybody in any environment will often plead guilty or offer a plea of guilt to what they perceive to be a lesser offence. I would have said it plainly, “of course I know that to be the case; I’ve been in practice for over 40 years”. But this is not what I was being asked to do.

Mr Beer: Let’s look at tab B31, POL00125777. Can we look at page 2, please. At the foot of the page, email from you to Andrew Parsons, in the run-up to giving this advice, third paragraph:

“In the meantime one question I have for you is I’d like some expansion – if you can get it – of precisely what Tony Hooper said. The ‘equality’ of offences is not actually a criminal legal concept, although I understand what this is really all about.”

What did you mean when you said, “I understand what this is really all about”?

Brian Altman: It was all about a letter. It was all about a letter which had been sent by Post Office on the advice of Cartwright King to Second Sight about which Tony Hooper had issues. That’s what it was all about.

Mr Beer: Aren’t you saying there that “It’s not the technical issue of the maximum sentence of imprisonment or whether they contain both offences, a requirement to prove dishonesty. I understand what this is really all about”, meaning subpostmasters being pressurised into pleading guilty to a lesser offence and lesser in that context?

Brian Altman: No, because you need to read the next sentence, the –

Mr Beer: “What I’d unlike to know is what Tony did say, how he expressed himself”, et cetera.

Then if we go, please, to the reply. At page 1, please, foot of the page:

“Brian

“Tony’s comments were that:

“I don’t know where you [Post Office] are getting your legal advice from but is wrong.

“False accounting is a lesser offence than theft.”

That’s what you concentrated on, didn’t you?

Brian Altman: That’s exactly what I did concentrate on because that’s what I thought I was being asked – it was all about, if you go back to the advice, it was all about Cartwright King – and you didn’t take me to this actually, Mr Beer, when we went through my advice but it’s paragraph 6 and then paragraph 7 of the advice. That’s what this was all about. Paragraph 6:

“In its advice” –

Mr Beer: Hold on, Mr Altman, we –

Brian Altman: POL

Mr Beer: I can give the reference.

Brian Altman: All right.

Mr Beer: POL00006588. Second page, foot of, I think you wanted to read paragraph 6, didn’t you?

Brian Altman: Yes.

“In its advice, CK had said that SS’s views were inexpert and wrong. On this particular topic, they said:

“The suggestion that the offence of false accounting is a less serious offence to that of theft. This suggestion has appeared in a number of contexts most commonly where an applicant has plead the guilty to the former offence so as to avoid ‘the more serious’ charge of theft, or has pleaded guilty to ‘the lesser offence’ of false accounting.”

Then, please, to the next bullet point.

Mr Beer: Over the pages.

Brian Altman: “In fact, both offences are equal in law: both are offences of dishonesty and both carry the same maximum sentence (7 years’ imprisonment).”

Then paragraph 7:

“This was used as the basis for a letter which was sent to [Second Sight], which included the statement:

“The suggestion that the offence of false accounting is a less serious offence to that of theft is incorrect. Both offences are equal in law: both are offences of dishonesty and both carry the same maximum sentence …”

That’s what I was addressing.

Mr Beer: Just look at paragraph 8, please.

Brian Altman: Yes.

Mr Beer: Scroll down, please. Bullet points 1, 2 and 3 focus on the statement.

Brian Altman: Yeah.

Mr Beer: Bullet point 4 asks you:

“Whether in your view it is fair to characterise these offences as being equal (against whatever yardstick you think is most appropriate …)?”

Brian Altman: Yeah, well I’m afraid, if, Mr Beer, with respect, you’re saying that that was some delphic suggestion that I should be looking at the points you’re making, then it passed me by. I was looking at the defensibility or otherwise of that letter –

Mr Beer: So you thought your task was just to look at the very narrow –

Brian Altman: Yes.

Mr Beer: – issue of defensibility?

Brian Altman: I did, I’m afraid. I did.

Mr Beer: Can we move to a separate topic then, please, Mr Altman, the legal advice you gave in relation to disclosure.

That can come down from the screen, thank you.

Beginning by looking at POL00123003. If we just scroll down, please. Yes. Just scroll back up, please. It’s that sentence or that paragraph, three from the bottom, beginning “Brian Altman QC’s First Review has now been received”. If we just go to the top of the page, please, to get the context. It’s not a chain you’re copied in on. It’s dated 21 October 2013, from Andrew Parsons to a range of lawyers, and Belinda Crowe.

Back down to where we were then, please:

“Brian Altman’s first review has now been received.”

We’ve seen that.

“The First Review looked into [the Post Office’s] compliance with its prosecution duties in light of Second Sight’s findings – in particular, it considered [Post Office’s] legal duty to ensure that [the Post Office’s] findings were fully disclosed …”

Brian Altman: Second Sight’s findings.

Mr Beer: Yes:

“… fully disclosed to any person who is currently being or has previously been prosecuted by [the Post Office]. [You] concluded that the Post Office is complying with its duties and that the approach adopted by the prosecution team was fundamentally sound. This report gives [the Post Office] good grounds to resist any formal external review of its historic prosecutions, ie by the CCRC.”

Had you, in fact, advised that your advice or report or review gave the Post Office good grounds to resist any formal external review of its historic prosecutions?

Brian Altman: No.

Mr Beer: Was there discussion with you after the production of your review that that was how the Post Office was going to treat it, that it gave good grounds to resist any review by the CCRC?

Brian Altman: No, I – no, absolutely not. Not least because this email, as you just pointed out, is dated 21 October. We’ve looked at my work log and I think the last conference I had was 4 October.

Mr Beer: Was that an accurate statement of the import of your general review advice?

Brian Altman: No.

Mr Beer: Was that ever discussed with you: that the review was viewed by the Post Office as a weapon, a shield or a sword, to resist any oversight or investigation by the CCRC?

Brian Altman: No.

Mr Beer: You didn’t see it that way?

Brian Altman: I certainly didn’t see it that way and I never saw this.

Mr Beer: Can we move forwards, please, to February 2014, POL00021750. Can we start on page 3, please. On page 3, we should see a series of questions to you of 27 February 2014 from Andrew Parsons, the then senior associate at Bond Dickinson. He attaches a report in Mrs Brewer’s case and:

“At the end of the report [Second Sight] draw the following conclusion:

“Whilst we have not been able to establish a direct causal link between communication line problems and the losses reported, we believe that communication line problems did play some part in these losses.”

“Post Office should be grateful for your thoughts on whether this type of comment is of a type that would be disclosable in other past or future criminal cases. I appreciate that this is a very broad hypothetical question and that disclosures need to be considered on a case-by-case basis. We are looking for a steer on whether this type of general, unevidenced view could ever be over the disclosure threshold.”

If we look at your reply on page 1, page 2, scroll up, you say:

“Dear Andy

“In principle the comment found in paragraph 5.1 would I’m afraid prima facie be disclosable in any case in any case involving assertions by a defendant that there was some [causal] link between …”

Brian Altman: Yes, it says “casual” it should have been “causal”.

Mr Beer: Yes:

“… and reported losses. The fact that [Second Sight’s] view is unevidenced would not alter its potential disclosable as such.”

Then if we go to the bottom of the page, please, you say:

“The best result for now would be a concession from [Second Sight] that this is a conclusion that is specific to this case only, and does not apply across the board, unlike, for example, their conclusions in their 8 July report. Whether [Second Sight] might be prepared to concede that remains to be seen.”

Then over the page:

“Were they not to soften their stance and stand by their conclusion then we may have a problem. You might then have to think of whether there is any other expert [the Post Office] might instruct who could undermine [Second Sight’s opinion] on this. How realistic this is in practice and politically only you [will] know.”

Then page 1, please. Foot of the page, please. You’re not included on this, Mr Parsons distributes this advice:

“Please see below from Brian Altman re the comms issue in the [Second Sight] report. Brian’s view is that the SS statement is probably disclosable to other prosecuted/convicted [subpostmasters] in a similar situation.

“My view is that we are unlikely to make [Second Sight] change their opinion.”

Next paragraph:

“That is not to say [the Post Office] should not challenge [Second Sight’s] conclusion – we should be getting [Fujitsu’s] view and (assuming its strongly supportive) giving it to [Second Sight] … [Fujitsu’s] analysis can be deployed at mediation and may (subject to Brian’s further thoughts) prevent the need for disclosure/mitigate the impact of the [Second Sight] report in criminal proceedings.”

When you gave your advice, you began by saying, “I’m afraid that this disclosable”; why were you afraid?

Brian Altman: It’s just a term that I use.

Mr Beer: Were you softening your response to the Post Office by using that phrase?

Brian Altman: Softening my response?

Mr Beer: Yes, by saying, “Look, I’m on your side but I’m afraid I’ve got to give you some unpalatable advice”?

Brian Altman: I don’t think so, it is, I’m afraid, a term I use an awful lot and I just used it there – I mean, I’m very colloquial in the way I write and I suspect that’s all it is.

Mr Beer: You came up with ways in which the Post Office might be able not to disclose this information to other convicted defendants?

Brian Altman: No, I don’t think that’s fair, actually, Mr Beer. What I was saying was, before disclosure in cases that may arise, that’s the second paragraph, that you should, as it were, hammer this out with Second Sight and find out if it’s an expert rather than an inexpert opinion, and see what those discussions bring. That’s all I was saying. I did not soften my approach to that and I did not say that this should not be disclosed. I said before disclosure, in respect of any cases that may arise. So in other words, I had already given the advice that it was prima facie disclosable but that Post Office were entitled to know what the issue was, whether it was a matter of expertise, and whether the expertise suggested by Second Sight was expert or inexpert. That’s all I was saying.

Mr Beer: You said, “The best result for now would be a concession”?

Brian Altman: Yes.

Mr Beer: “This is case specific”?

Brian Altman: Yes.

Mr Beer: Can we move on then, please.

Seventh topic: Mr Clarke’s advice of 2 August 2013. Can we look, please, at that to remind ourselves of it. POL00006799. I’m not going to go to the last page, because it will take too long but we know this is dated 2 –

Brian Altman: 2 August, yeah.

Mr Beer: This was sent on to you, wasn’t it?

Brian Altman: I think – I’m sure I saw it, yes.

Mr Beer: Can we look, please, at page 2, please, at paragraph 5, to see the information on which Mr Clarke was basing his advice.

Brian Altman: Yeah.

Mr Beer: “After the call on the 31, the following information was relayed to him, 1:

“The minutes of a previous conference call had been typed and emailed to a number of [people]. An instruction was then given that those emails and minutes should be and have been, destroyed: the word ‘shredded’ was conveyed to [him].

“Handwritten minutes were not to be typed and should be forwarded to [the Post Office] Head of Security.

“Advice had been given to [the Post Office] which [he] relayed verbatim as:

“‘If it’s not minuted it’s not in the public domain and therefore not disclosable.

“‘If it’s produced it’s available for disclosure – if not minuted then technically it’s not’.”

Then (iv), please. If we can go up, thank you.

“Some at [the Post Office] do not wish to minute the weekly conference calls.”

Can we look, please, at POL00006803, which is your general review, and look at page 36, please, and paragraph 111 at the foot of the page. Under “Other initiatives”, you say:

“I have been provided with an Advice written by Simon Clarke dated 2 August [that’s what we’ve just been looking at] in which he advised on the question of disclosure and [the Post Office’s] duty to record and retain material. In it, he confirmed advice he had given [the Post Office] at a meeting at Head Office on 3 July that, ‘… there ought to be a single, central hub, the function of which was to act as the primary repository for all Horizon issues. The hub would collate, from all sources into one location, all Horizon-related defects, bugs, complaints, queries and Fujitsu remedies, thereby providing a future expert witness, and those charged with disclosure duties, with recourse to a single information point where all Horizon issues could be identified and considered’.

“The rationale behind it is to put in place a mechanism to protect [the Post Office] from future such issues. In the result, a weekly Wednesday conference call meeting has been established to meet the requirement. Attendees are expected to bring all Horizon-related issues to the meeting and minutes are kept. However, early teething and ‘cultural’ problems arose as highlighted in Simon Clarke’s 2 August advice, and indeed to me in Harry Bowyer’s response to my interim review.”

You refer there to what Mr Clarke had described about an instruction to destroy or shred minutes as an early teething or a cultural problem; is that how you saw it, a teething issue?

Brian Altman: I’m not sure necessarily the teething applies to that part of that advice, but the word “cultural”, you’ll see, is in inverted commas, and I think that refers back to the conference I had on 9 September 2013, where you will see it referred to as “cultural”, which is –

Mr Beer: Yes, Susan Crichton said there had been some cultural problems.

Brian Altman: Yes – no, I think it was Simon Clarke, actually, not Susan Crichton, because there is a “he” that comes afterwards so it was Simon Clarke who is referring to it and he also said, in that September conference, that it had been overcome, and so –

Mr Beer: What were the teething problems you were referring to then?

Brian Altman: I can’t remember but the cultural problems were certainly – I think, was it, John Scott?

Mr Beer: The Head of Security?

Brian Altman: Yeah, the Head of Security who had come up with some ridiculous suggestions, as you’ve just read out to me and reminded me of in the 2 August advice. I don’t know what conversation we had about it during the 2 September conference. I’m sure we did but I had been assured that that had been overcome, I think that’s the word that’s used, and I moved on.

Mr Beer: So are you saying it that the teething and cultural problems are referring to something other than the destruction or shredding of minutes?

Brian Altman: No, I think the cultural problems refers to the allegation or the idea that Scott had that minutes should be destroyed. I don’t know if “early teething” refers to the same thing or something different. I think I also –

Mr Beer: If you look that sentence has, footnote 36” against it, can you see?

Brian Altman: Yes.

Mr Beer: Which –

Brian Altman: I can’t see the footnote at the moment. It is –

Mr Beer: Go down to –

Brian Altman: – paragraph 5.

Mr Beer: Yes, exactly, which is the paragraph I read to you.

Brian Altman: Maybe I did refer to it in that way but that was not to be dismissive of it. It was clear to me, bearing in mind the date of this is 15 October, I’d been told, five weeks earlier, that the problem had been overcome and I may also have understood by them then that, in fact, nothing had been destroyed or nothing had been shredded, despite the content of paragraph 5 of Simon Clarke’s 2 August advice, and that’s why I didn’t deal with it at any length here.

Mr Beer: Was the suggestion of the shredding of evidence, made by the Head of Post Office Limited’s Security, Head of Security, where that evidence related to bugs, errors and defects in Horizon, a “teething problem”?

Brian Altman: I’m sorry don’t – can you take me back to paragraph 5 of Simon Clarke’s Advice, so I can just see that again?

Mr Beer: Exactly. POL00006799, and over the page, and it’s paragraph 5.

Brian Altman: Sorry, where does it say, “Bugs, errors and defects”?

Mr Beer: That’s what I’m asking.

Brian Altman: Yeah. No, I mean this all dealt with – this all related to the Wednesday hub meeting.

Mr Beer: The purpose of which was to?

Brian Altman: To collate issues.

Mr Beer: About?

Brian Altman: Yes, of course. I get what you’re saying. But I had understood, all this time later, that it was a proposition put forward by John Scott, which had – and it had been dealt with and dealt with swiftly and he’d been told, in no uncertain terms, that that would not happen. I also understood that that had not happened, and it had been overcome. Maybe it’s an unfortunate choice of a word but I didn’t mean to dismiss it, as I said already.

Mr Beer: You would agree that the words “a teething problem” when the Head of Security is suggesting that evidence should be shredded is something a little more than teething, isn’t it?

Brian Altman: I accept that.

Mr Beer: Were you made aware – that document can come down, thank you – of any investigation that had been conducted by Post Office into the allegation made against Mr Scott?

Brian Altman: I understood, as I’ve just said, that the issue had been overcome, so I assumed there had been and he’d been spoken to.

Mr Beer: What did you understand had happened in order to overcome the issue?

Brian Altman: I can’t remember now.

Mr Beer: Was the essence of it that the problem had been squared away?

Brian Altman: Had been?

Mr Beer: Squared away?

Brian Altman: I am not sure I understand that term, what that means, squared away.

Mr Beer: He had been spoken to, he had apologised, he had said that he wouldn’t do it again, or some other form of –

Brian Altman: I assume he’d been given words of advice that “This is not what happens and it won’t happen in the future”. But I can’t remember, I’m sure there may have been a discussion about it but I can’t remember what was done about it, but, as I keep on saying, I knew by 9 September that whatever had happened and whatever he had said had been overcome.

Mr Beer: Did you give any consideration around October 2013 to the issue of whether an instruction by the Head of Security to destroy or shred recorded information concerning Horizon issues fell to be disclosed?

Brian Altman: No, I didn’t.

Mr Beer: Can we turn to my eighth topic then, please, legal advice in relation to the CCRC. Can we start by looking at POL00040046. An email to you of 23 October 2013 from Mr Matthews, subject “CCRC draft letter”?

“As I mentioned at yesterday’s meeting with Chris [Augard] I attach a proposed letter to the CCRC in the light of the fact that you have now completed your review of past/current prosecutions.

“Leaving aside the fact that I have drafted it to be sent by Susan … please can you review and amend it.

“I am not precious about my drafting …”

Can we look at the attachment, please. POL00040047. It’s a one-page letter to the CCRC, second paragraph:

“I am now in a position to confirm that Brian Altman [Queen’s Counsel] has complete his review of [the Post Office’s] strategy and process for reviewing past/current prosecutions given the findings of the Second Sight Interim Report … I am now in a position to give you an update.

“As you would expect, Mr Altman’s review has been thorough, leading to a detailed report, and I am pleased to confirm that overall, his view is that the review is fundamentally sound and he has not detected any systemic or fundamental laws in the review process, or in the evidence arising from it. He has however highlighted that because the review is a continuing process and [the Post Office] has a continuing duty of disclosure, both [the Post Office] and the external firm of solicitors must be prepared to keep under review, and reconsider, past [cases) and disclosure decisions.

“To give you detail, the process involves reviewing all cases … going back to 1 January 2010 (this being the earliest date on which Horizon Online was migrated into all post office branches and is a start date, which Mr Altman QC considers to be logical, proportionate and practicable in the light of the known circumstances) … the scheme involves [the Post Office’s] solicitors identifying every case within the above mentioned review period in which the primary or main evidence against the defendant was based on Horizon data. This is done by a sift review process. Once such a case is identified in-house, senior in-house prosecutors at the solicitors carry out a full case review to determine the question ‘Had [the Post Office] been possessed of the material contained within the Second Sight Interim Report during the currency of any particular prosecution should/would Post Office have been required to disclose some or all of that material to the defence?’”

Then there are some statistics to be set out.

Would you agree that the description of your review is very much put at its highest there and lacks all of the caveats which you yourself placed on the Post Office review of its continuing disclosure duties?

Brian Altman: Well, it doesn’t set them all out. I agree with that, and it does tend to put it at its highest, or at least is an attempt at a summary.

Mr Beer: Of course, there is no mention about the concern over the integrity of Mr Jenkins’ evidence?

Brian Altman: No. I can speculate why. But I suspect because Gavin felt that this was a letter that was going to CCRC about historic cases but I also – in other words, that Gareth Jenkins’ taint, going forwards, that he would not be used was not in this letter but I take the point if, by it, you mean it should also have referred to that fact.

Mr Beer: This was the occasion, this might be the sixth case I have asked you about it, in which that very issue ought to have been mentioned?

Brian Altman: Yes, I agree.

Mr Beer: There’s no reference there to the Helen Rose Report either, is there?

Brian Altman: Well, I’ll take it from you, there is a reference to the Second Sight Interim Report but not to that, no.

Mr Beer: Do you know why that is?

Brian Altman: I’ve no idea.

Mr Beer: Was the impression ever conveyed to you that, in relation to the Helen Rose Report, from the Post Office’s perspective, the least said is the soonest mended?

Brian Altman: No.

Mr Beer: Sir, can we take our afternoon break there, please, until 3.00.

Sir Wyn Williams: Yes, of course.

Mr Beer: Thank you very much, sir.

(2.49 pm)

(A short break)

(3.00 pm)

Mr Beer: Good afternoon, sir. Can we continue, Mr Altman, by looking at the disclosure to the CCRC issue which is my eighth and last topic.

Can we turn to 2014 and look at POL00124350. This is a letter dated 5 June 2014 to the CCRC, if we go over the page, please. We can see it’s signed off by Chris Aujard and, if we go up the page to page 1, please, he says to the CCRC – in the first paragraph, some apologies over the lack of an update. Second paragraph:

“I confirm that Brian Altman QC complete his review of [the Post Office’s] strategy and process for reviewing past/current prosecutions, given the findings of the Second Sight Interim Report to which Susan Crichton referred in her letter to you dated 26 July 2013.”

That’s the draft which we’ve just locked at:

“As you would expect, Mr Altman’s review was thorough, leading to a detailed report, and I am pleased to confirm that, overall, his view was that the review was fundamentally sound and he did not detect any systemic or significant flaws in the review process, or in the evidence arising from it. He did however highlight that because [the Post Office] has a continuing duty of disclosure, both [the Post Office] and the external firm of solicitors with vast experience of managing and prosecuting these cases, must remain prepared to keep under review, and reconsider, past case reviews and disclosure decisions.

“To give you some detail, the process involved reviewing all cases going back to 1 January 2010 [et cetera]. Essentially the scheme involved Post Office solicitors identifying every case within the above mentioned review period in which the primary or main evidence against the defendant was based on Horizon data, and also included those cases involving suggested problems with Horizon training or support. This was done by rigorous sift review process.”

Then an escalation to senior counsel.

Then over the page, please.

“[This] involved [the Post Office’s] external solicitors carrying out a sift of 308 [cases], a second sift of 229 cases, a full review of 53 (in which disclosure was advised in 26), and the discontinuance of 4 cases.

“I can confirm that since the publication of the Second Sight Interim Report and despite [the Post Office’s] thorough review it has not received any application for permission to appeal …”

Were you aware that the Post Office intended to pray in aid your position with the CCRC when it was writing to them like this?

Brian Altman: When you say my position, by which you mean?

Mr Beer: Ie the conclusions of your general review.

Brian Altman: I don’t know what I knew, I can’t say now, at this distance in time, whether I saw this letter at the time or not.

Mr Beer: That is what I was going to ask, were you given the opportunity to input into this, to the letter that was eventually sent on 5 June 2014?

Brian Altman: I really can’t say one way or the other.

Mr Beer: So you can’t help us whether the description of your conclusions here, which again lack some of the caveats that we’ve seen in your general review –

Brian Altman: Yeah.

Mr Beer: – was something which you had the opportunity to point out?

Brian Altman: I can’t but, not to be unkind to Mr Aujard, if you look at the final paragraph “I appreciate that the above is a short précis of a very extensive procedure and should you have any further questions, don’t hesitate to contact” – I mean, he left open to the CCRC to come back with further questions, I suppose, is all that can be said.

Mr Beer: So if we go to POL00150847, thank you, this is the CCRC’s letter of 14 January and, if we scroll down, it’s a “Requirement to Produce Materials”:

“I write in relation to ongoing correspondence … Your most recent letter was dated 5 [July] …”

That’s what we just read.

Brian Altman: 5 June.

Mr Beer: 5 June, I’m so sorry, we have just read. Then there’s some standard text.

It is considering situation regarding the Horizon system and the associated criminal proceedings:

“The Commission requires you to identify all documents and materials in your possession relating to this matter and to produce them, specifically the commission requests a copy of Brian Altman QC’s report.”

Yes?

It encloses a notice under section 17 of the CAA95 requiring the Post Office to do this. Do you remember this development?

Brian Altman: I’m sure I must have done.

Mr Beer: Do you remember there was a conference in chambers with you at the end of January 2015 to discuss the CCRC’s request for a copy of your general review?

Brian Altman: Yes, I’m fairly confident that must have happened.

Mr Beer: Can we look, please, at POL00151181. This is the reply to that letter and, it seems, a chase call on the 27th:

“The Post Office has had the opportunity to consider fully the letter …”

Then scroll down. The author notes that the commission is now considering – this is Jane MacLeod, incidentally, the author of this letter, the then General Counsel:

“The commission is now considering the situation and notes that the letter and notice specifically requests a copy of Brian Altman QC’s report.

“Background

“We trust you will appreciate that the request you make is (with respect) wide and in the most general of terms, notwithstanding the specific request for Brian Altman QC’s report. I have reviewed the previous correspondence … I summarise that correspondence as follows …”

Then she summarises some correspondence. Then if we go over the page, please, and scroll down, and then under “POL’s position”:

“Having considered the position more fully against this background, I am unfortunately currently unable to see how the request you make fits within the guidance of paragraphs 4-6 of the commission’s ‘Formal memorandum – the commission’s power to obtain material from public bodies under section 17 of the Act’.

“This is especially so, given that Mr Altman’s report does not address individual cases but rather [the Post Office’s] strategy for reviewing past and current prosecutions generally. [The Post Office] continues to assert that LPP attaches to Mr Altman’s report, whilst remaining aware of its duty under section 17.

“Further, the position on individual cases remains that, in respect of the cases which it has prosecuted, it has not been made aware, since the publication of the Second Sight Report, of any applications having been made for leave to appeal …”

Then the rest of it concerns – oh, there’s a sentence which says:

“Post Office nonetheless wishes to emphasise that it wants to and will work with the commission.”

Was it the conclusion of the conference that you had at the end of January that the Post Office should maintain or assert privilege in respect of your general review?

Brian Altman: I can’t remember what happened in the course of that conference but, undoubtedly, the general review was legally privileged but, of course, that didn’t disentitle of the commission from having sight of it.

Mr Beer: No. Did you form a view at the time that the Post Office was, on the one hand, praying in aid your conclusions in correspondence with the CCRC and, with the other, saying “You’re not entitled to see those conclusions”?

Brian Altman: No. I mean, first point, as you’ve demonstrated, yes. Second point, no. I think all that this letter demonstrates is that Post Office wanted to be absolutely clear on what basis my review was going to be disclosed to them under the notice.

Mr Beer: It doesn’t say that, though, does it? It doesn’t say, “We need clarity as to the basis on which” –

Brian Altman: Oh, I think it does, because if you go back to the previous page at the bottom, isn’t Jane MacLeod talking about the memorandum and, if my memory serves me, doesn’t the memorandum say that the commission can only ask for, or issue, a notice in relation to specific cases, rather than the sort of generic notice? I think that’s all that was being said here.

Mr Beer: So why was the Post Office deploying your advice at all, then, to the CCRC?

Brian Altman: Well, that I can’t answer.

Mr Beer: I think, by 2015, it’s right, isn’t it, that you had taken a different position to that of Cartwright King on a number of matters?

Brian Altman: I would have or I did?

Mr Beer: You did: you had taken a different position to them on a number of matters?

Brian Altman: I think so, yes.

Mr Beer: Were you aware of whether or not, by this time, the CCRC had been sent a copy of the Clarke Advice of July 2013?

Brian Altman: Well, we know now that they never were. Your question is more focused as to whether, by that time – I didn’t.

Mr Beer: Can we move on, please, to POL002235559.

Sir Wyn Williams: Whilst that’s happening, I take it from an earlier answer, Mr Altman, that, despite this letter, shortly thereafter, your report was disclosed to the CCRC?

Brian Altman: Yes, 27 February 2015.

Sir Wyn Williams: Yes.

Mr Beer: Cross-reference for that, sir, is POL00151296, for the transcript.

Sir Wyn Williams: Yes.

Mr Beer: 27 February 2015.

This is an agenda for a conference with you on 27 March 2015, within a project or operation Sparrow; do you see the heading there?

Brian Altman: Yes.

Mr Beer: You’re one of the people to whom this agenda is distributed, “Please find below agenda … at Finsbury Dials”. Then topic 4:

“Approach to/obtaining comfort from pre-1 January 2010 prosecutions.”

Do you remember a conference in which the Post Office wished to obtain comfort in relation to pre-1 January 2010 prosecutions?

Brian Altman: I’m afraid I don’t even remember this conference, let alone the agenda and I can only speculate what point 4 was about but, looking –

Mr Beer: Can you help us?

Brian Altman: It’s pure speculation but, looking at the date, 26 March 2015, bearing in mind that my general review was at the back end of – or the autumn of 2013, we’re talking about 18 months on from there and, as far as I know, nothing had changed in terms of information. It may be, I don’t know, that the CCRC had asked questions about the cut-off date, 1 January, and maybe I was being asked to advise whether it was still appropriate and proportionate and all the rest of it but, to my mind, my knowledge of bugs did not change. In fact, it didn’t change until the Horizon Issues trial. So that’s my speculation.

Mr Beer: Can we look, lastly, then please at what might be a handwritten note of the conference?

Brian Altman: All right.

Mr Beer: POL00155545. Can you see a date in the top right-hand corner of 27 March 2015 –

Brian Altman: Yeah.

Mr Beer: – which corresponds with the date set out on that agenda.

Brian Altman: Yeah, and whose note is this?

Mr Beer: I don’t think we know.

Brian Altman: Oh.

Mr Beer: It looks similar to some writing that we’ve seen elsewhere but I’m not going to turn myself into a handwriting expert.

Brian Altman: No.

Mr Beer: Can we see two-thirds of the way down the page, please, if you just pan out, please – yes, sorry, it’s about halfway down the page, next to “CCRC”:

“CCRC sets out statement of reasons, goes to Court of Appeal, defendant has own representation.”

Does that sound like the kind of thing you might have summarised in a conference about the process?

Brian Altman: Yes, if I’d been asked about the process, to remind them, I would have said this –

Mr Beer: Then “Court of Appeal miscarriage because error in conduct, judge made error, new evidence point of law.”

I should have said “misdirection/ruling” against “judge made error”. So a summary of some of the grounds on which an appeal might be contemplated or even allowed.

Brian Altman: Yes.

Mr Beer: Then scroll down, please. Underneath the two horizontal lines:

“Look at “Horizon – sufficiently reliable?

“If not, what happened in particular case?”

Can you help us as to whether that was you speaking and, if so, what you might have been saying?

Brian Altman: Can we just zoom back out so I can see the whole page?

Mr Beer: Yes.

Brian Altman: Because I’m just questioning, I don’t know, if you look at the style of the note it begins with arrowed bullet points and then, as you point out, it’s got the two horizontal lines and then two points, (1) and (2). So, if we assume this note is still part of the same conference note of 27 March and if we assume that this was me asking questions, then I think the answer to your question, Mr Beer, is in the words which are written there, if that makes sense.

Mr Beer: Okay, if we scroll down a little further, please – sorry, up, up, up – at the foot of the first page in capital letters:

“This is what we’ve got. It’s not everything.”

Can you help us with any context in which that might have been discussed?

Brian Altman: Really not. I wonder if the document handler would kindly zoom out again, so I can see where it fits on the page but I’m not even sure if this is not a note to self, by the –

Mr Beer: By the author?

Brian Altman: – by the author.

Mr Beer: The passage under the two horizontal lines “Look at Horizon – sufficiently reliable?”, was there any discussion in March 2015, to which you were a party, over whether or not the Post Office needed to look again at whether Horizon was sufficiently reliable?

Brian Altman: Just basing myself on the history of my instruction and, obviously, you understand that I wasn’t working on Post Office every day of every week, far from it. In some years, I popped up for individual instruction and then went away for weeks or months, obviously doing other work and other professional commitments. So, to answer your question, “Look at Horizon – sufficiently reliable? If not, what happened in the particular case?” I cannot remember, after March 2015, until I was asked to do a further review in 2016, other than I’m sure the odd email, possibly a conference, that anything of any substance of that nature was ever put my way.

Mr Beer: Thank you.

Thank you, Mr Altman, for answering my questions.

The Witness: Thank you, Mr Beer.

Mr Beer: Sir, I think there are three Core Participants who wish to ask questions in the order of Mr Stein, Ms Patrick and then Mr Henry.

Sir Wyn Williams: Right. Is approximately 15 minutes each sufficient for them, Mr Beer?

Mr Beer: Absolutely. In particular because Mr Stein said he would be 10 or 12 minutes.

Sir Wyn Williams: Right.

Mr Henry: I thought I was going to be 20. I told Mr Beer that. I hope you could forgive me, if I’m given 15 I might go to 20 because I have a bit of material to put to Mr Altman.

Sir Wyn Williams: All right, we’ll see how we go.

Mr Stein, let’s see how accurate you can be.

Mr Stein: Yes, sir, thank you.

Questioned by Mr Stein

Mr Stein: Mr Altman, can we just help everybody understand what it means by being Senior Treasury Counsel and First Treasury Counsel. Now, these are terms that we’re all used to, those of us that practice in criminal law. Senior Treasury Counsel, your work is engaged with reviewing, both pre – that’s before – and after charge, serious cases that are brought to you; is that fair?

Brian Altman: It can include that work.

Mr Stein: Yeah, and it includes advising on such cases that are brought to you, so that you can advise in relation to the way investigations are being conducted and thereafter investigations continue once an individual is charged; is that right?

Brian Altman: Yes, it can include that.

Mr Stein: Yes, and the work that you’ve done in that role, as Senior Treasury Counsel then First Senior Treasury Counsel, would have included the most serious of cases that are prosecuted or considered for prosecution within England and Wales; is that right?

Brian Altman: Yes.

Mr Stein: Okay. You would have been used to advising on sensitive cases, in other words cases that carry issues that relate to the different types of police services; is that also correct?

Brian Altman: By which you mean?

Mr Stein: Well, sensitive issues that relate to matters that might be covered by PII?

Brian Altman: Yes.

Mr Stein: Yes? You’re trusted to consider those cases, those most serious of cases, and give advice as to their progress, yes?

Brian Altman: Yes.

Mr Stein: All right. So, simply put, you’re used to dealing with serious, complex, big cases and advising as to what you believe should happen and what would be the right thing to do?

Brian Altman: Yes.

Mr Stein: Okay. Now, just help us a little bit more. Your position is set out somewhat by some quotes from various, I think, directories that deal with barristers and some of those quotes are set out in your website. You’re described as being “one of the greats at the Bar”. That’s one of the quotes, do you remember that?

Brian Altman: Well, somebody has said that of me in a testimonial on the website, yes, that’s right –

Mr Stein: Yes, on the website for chambers.

Brian Altman: Yes.

Mr Stein: It also describes you as being a “brilliant operator”?

Brian Altman: Yes.

Mr Stein: That’s also on the website for chambers. Now, let’s then turn to how that helps us understand what happened here. Now, the Crown Prosecution Service is an organisation that considers and engages in the prosecution of serious cases where people may go to prison; do you agree?

Brian Altman: Yes.

Mr Stein: The Post Office at the time that you were first instructed was also an organisation that engaged in the consideration of and prosecution of serious cases whereby individuals may go to prison?

Brian Altman: Yeah.

Mr Stein: Yes. You’ve described, in the evidence that you’ve given to Mr Beer, that you didn’t address your mind in any of your advices or your review to your ethical position, in other words you didn’t set out that you’re following the ethical guidance for advocates within the CPS. You didn’t reference to that as an example, did you?

Brian Altman: I don’t think that was the question I was asked. I think the question I was asked was, whether because I was acting for a commercial organisation, I was following the same ethics. He did not ask me, as I recall it, whether that was or should have been set out in my general review or any of the advisory work.

Mr Stein: Well, I’m sure Mr Beer would apologise for not asking that direct question but help us please understand what ethical guide were you following when advising the Post Office?

Brian Altman: Well, the same ethics I’ve always employed, Mr Stein.

Mr Stein: What, as someone that is a prosecutor, that guidance, or as a member of the Bar, which?

Brian Altman: Well, both.

Mr Stein: Right. Now, you used the term “minister of justice”. That’s perhaps a short form way of describing the ethical standpoint of a prosecutor; is that fair?

Brian Altman: But it was targeted, in this particular case, at the Post Office as a private prosecutor.

Mr Stein: Right. Does that mean that your advice was any different, do you think, to POL as a private prosecutor versus, say, the CPS if you’ve been asked to look at similar things?

Brian Altman: I don’t think so, no.

Mr Stein: Right. So you applied the same ethical standards to the work that you did for the Post Office as you would have done for the CPS?

Brian Altman: I’d like to think so, yes.

Mr Stein: Well, did you?

Brian Altman: I’d like to think so, Mr Stein, yes.

Mr Stein: Well, you’ve had plenty of time to reflect upon this question. Did you apply the same ethical standards –

Brian Altman: Yes.

Mr Stein: – to the work you carried out for the Post Office –

Brian Altman: Yes, Mr Stein.

Mr Stein: – as you would have had done for the CPS?

Brian Altman: Yes, Mr Stein.

Mr Stein: You applied the same professional standards, in other words professional standards of competence, to the work you did for the Post Office as you would have done for the CPS?

Brian Altman: Yes.

Mr Stein: Is that also the same?

Brian Altman: Yes.

Mr Stein: Okay. Now, what’s your first duty as a barrister?

Brian Altman: Well, there are many core duties as a barrister.

Mr Stein: Yes. What would you say your first duty is? What, generally speaking, do most barristers say is their first duty?

Brian Altman: Integrity, independence, doing the best for your client.

Mr Stein: What about duty to the court?

Brian Altman: Of course.

Mr Stein: Of course. How far do you rank that? Do you say that’s your first duty or does that come somehow second after a client, as an example?

Brian Altman: No.

Mr Stein: Right. So where you’ve got an issue that relates to your duty to the court versus your duty, in this case, to the Post Office, which goes first?

Brian Altman: Well, the duty to the court is the duty that you have when you are an advocate and I was not an advocate for Post Office until I appeared in the criminal appeals. The duty to the court is not to mislead the court. The duty here, which I am talking about – and these are other core duties – are integrity and independence, and the other core duties which appear in the BSB Handbook.

Mr Stein: I thought we’d gone through these questions that related to your ethical approach to matters for the Post Office and I thought you’d agreed that you were carrying out –

Brian Altman: You’re putting to me, Mr Stein, what the hierarchy is. The duty to the court can’t apply until you’re in court and I wasn’t in court on behalf of the Post Office until I appeared in the criminal appeals.

Mr Stein: Right. Well, let’s think about how that worked out in practice. We’ve got the position that’s set out by Mr Clarke as regards Gareth Jenkins and that you summarise in your statement at – I think it is paragraph 26(5), page 13 of your statement. That should be on the screen or I’ll deal with it directly. You’re addressing the questions that arise in Mr Clarke’s legal advice, and you put it this way:

“Why Mr Jenkins had failed to reveal in his witness statements or evidence the bugs or defects he knew about was not a matter for my review.”

Okay, that’s what you are saying there.

Brian Altman: Yes.

Mr Stein: So you’re saying there and accepting in evidence, as we understand it, that you were of the view that Mr Jenkins had failed to set out all he knew about bugs and defects in his statements and in his oral evidence, yes?

Brian Altman: Yeah.

Mr Stein: Right. Okay. So you accept that Mr Jenkins, on the basis of that understanding, had misled the court; do you agree?

Brian Altman: He had, yes.

Mr Stein: Yes, okay. Help us understand a little bit, therefore, about what you did about that. Did you, as an example, suggest in your advices, that the Post Office really needs to rectify this misleading of a court? Did you do that?

Brian Altman: What do you mean by “rectify”?

Mr Stein: Well, go to the court and say, “This is what’s happened, this I what we believe has occurred. Mr Jenkins has misled the court”.

Brian Altman: No.

Mr Stein: Did you advise that –

Brian Altman: No, you know I didn’t, Mr Stein.

Mr Stein: Right. So we get to the point, is this correct, Mr Altman, that you knew that had happened, but you decided not to try to rectify the misleading problem?

Brian Altman: No.

Mr Stein: Is that correct?

Brian Altman: No.

Mr Stein: Well, help us understand, Mr Altman –

Brian Altman: Well, will you let me give an answer, please, Mr Stein.

Mr Stein: I did. You said, “No”. So help us understand what you did about that problem?

Brian Altman: The evidence I have given is I did not apply my mind at the time to revealing or disclosing or advising on disclosure of the taint by Gareth Jenkins for the reasons I’ve given. What you’re suggesting is I applied my mind and made positive decisions or negative decisions but I didn’t. You won’t find a single word unhappily about it in the general review.

Mr Stein: You say unhappily because you recognise, obviously, something should have been done; is that fair?

Brian Altman: Yes, I’ve conceded and I’ve accepted on several occasions, when Mr Beer asked me the question, that what I should have done is I should have advised consideration of the disclosure of the fact that Gareth Jenkins was tainted and that his assessment – or the assessment of him as an expert by Cartwright King and me was disclosable and should have been disclosed in suitable cases.

Mr Stein: Mr Altman, what would you have done if the situation had been that you were working as Senior Treasury Counsel, advising the CPS and within an investigation that’s brought to you, the police officers tell you “Look, we’ve got this expert, we’ve used him in the past, we’re thinking about using him this time but actually it turns out that we think he’s bent, and the reason why we think he’s bent is we think he’s frankly not told the court the truth in the past”. What would you that have done in that situation, advising the CPS about that expert?

Brian Altman: Well, I mean, with the sort of clarity of the question that you have just posed to me, Mr Stein, I would have said, “We can’t use him”, and what is the CPS doing about past cases?

Mr Stein: Yes, and what about, perhaps, an investigation into that particular expert, that person that has provided that evidence to the court; what would you have said about that, Mr Altman?

Brian Altman: I don’t know. I’d need to understand what the specifics were in the actual case.

Mr Stein: Well, let’s make it simple, Mr Altman, the situation as you had here, arising in a CPS case, you would have said “This needs to be looked at with care and investigated”; do you agree?

Brian Altman: Well, I would have certainly gone to the CPS and say, “Frankly”, I would have said, “you deal with this. You need to look at what’s happened. You need to turn out all the cases he’s been involved in”. If you’re talking about a police investigation or an internal investigation, I’m not entirely sure, but it might have come to the same thing.

Mr Stein: But you didn’t do that here?

Brian Altman: No, I didn’t and I –

Sir Wyn Williams: All right. I think we’ve actually established that many hours ago now and, Mr Stein, your time is running out, so to speak.

Mr Stein: I recognise the clock and the sands are going through.

We have recognised that and you’ve explained that you’re frankly tired of people asking you these questions –

Brian Altman: No, I haven’t said that, Mr Stein. No, I haven’t said that, Mr Stein. I have made my position perfectly clear every time that Mr Beer has asked me –

Mr Stein: Why, didn’t you? Do you now, after all of this time, have any reason that you can give why someone who appears, on the face of it, to have straight misled the court, you did nothing about it? In other words, you allowed it to continue; can you explain it?

Brian Altman: No, I didn’t allow anything to continue. I’m human, like the rest of us, Mr Stein. Probably including you and I make mistakes and we all make mistakes and, as I said earlier, I would like to say was misjudgement. I don’t think I made the judgement about it, it passed me by, I don’t know why I didn’t see it. It’s regrettable and I regret that I didn’t.

Mr Stein: Was it a failure of duty?

Brian Altman: No, absolutely not, because a failure of duty imports a positive conscious decision not to do something. My point is, the general review contained 50-odd pages of just about every thought I had and I record everything, and the fact, actually, when I came to look at this and I realised that I hadn’t said it, in recent weeks, I was flabbergasted and I can’t understand, putting myself back, all of those years, why I didn’t but I didn’t.

And so it was a mistake, it was a genuine mistake but any inference that anyone chooses to draw that I made a conscious decision not to do it is wrong and it’s also wrong because the CCRC had the general review in February 2015. That’s not mitigation and I’m not making an excuse. But I make mistakes like everybody else, I’m not perfect and I did my best with the resources I had here. I didn’t have prosecuting authority like the CPS or the SFO around me to help me in the decision making.

Mr Stein: So you say a failure of duty only applies if you make a positive decision to either look at something and then not consider it?

Brian Altman: No –

Mr Stein: What about just simply failing to do something, Mr Altman?

Brian Altman: No, I think in – well, no, you can’t – you can fail in your duty but the duty sometimes has to have a motivation or intention behind it and I think you’re imputing that to me. That’s my take on your questions to me, and there was none.

Mr Stein: Okay, let’s move on as I have very little time left, indeed if any at all.

You’ve directed yourself to the question which is you’ve learnt matters that arose in the High Court, because you were asked to review the High Court decisions, and you learnt then that the Post Office had, within the organisation, awareness of, as an example, the mismatch bug in 2010. That’s one of the things you learned, okay?

You then went on to prosecute matters in the Court of Appeal –

Brian Altman: I responded to matters in the Court of Appeal.

Mr Stein: You then went on to respond to matters in the Court of Appeal, on behalf of the Post Office; do you agree?

Brian Altman: Yes.

Mr Stein: Okay. So by the time it got to the Court of Appeal stage, you must have said to yourself, “Well, the Post Office appears to have known certain information – mismatch bug, remote access”, that they didn’t tell you about when you conducted your review; do you agree?

Brian Altman: That follows.

Mr Stein: Right, okay. Did you address your mind to the fact that, therefore, you were also someone that had been misled by the Post Office, that they had failed in disclosing material to you? Did you turn your mind to that?

Brian Altman: I think it was implicit in the fact that everything I read in the Horizon Issues judgment suggested that there were bugs errors and defects which had never been brought to my attention.

Mr Stein: Were you not a witness Mr Altman –

Brian Altman: No.

Mr Stein: Can I finish the question?

Brian Altman: Yes, you finish.

Mr Stein: Were you not therefore a witness, based on what you’ve just agreed, to those failures of disclosure to you, others words someone that could testify to the fact that here is the Post Office instructing Senior Treasury Counsel, ex-senior Treasury Counsel on serious matters requiring serious reviews and yet they hadn’t told you the truth?

Brian Altman: I was never a witness, I was never likely to be a witness, for the simple reason, Mr Stein, that the Court of Appeal was looking at abuse of process at the time of the prosecutions and the convictions and not afterwards.

Mr Stein: There was decision made in relation to the response, as you put it, by the Post Office to those appeals that a consideration was given to essentially looking at the evidence that related to the period up until 2013, the end of the prosecutions conducted by POL?

Brian Altman: That’s not right. That’s not right –

Mr Stein: Okay, well you correct me then.

Brian Altman: You’re ignoring the Disclosure Management Document which is dated August 2020, in which it was made perfectly clear, in paragraph 5, what the relevant period was, that was updated by the Addendum Disclosure Management Document of 11 January 2021, paragraphs 19 through to 21, which describe in absolute detail why the relevant period was picked and, as you know, Mr Stein, because you were involved in the appeals, the Court of Appeal agreed.

Mr Stein: The decision making in relation to it taking up to 2013, as being generally the period of time to consider for disclosure – not entirely, but generally – that excluded all of the work that you did that followed 2013, the reviews you did at the High Court, what you did or didn’t know, potentially, that was provided to the High Court, the other advice and work that you had done for the Post Office, didn’t it?

Brian Altman: Well, if you’re saying that that was a deliberate decision, you’re absolutely wrong.

Mr Stein: I’m asking whether it excluded it and then I’m going to ask you whether that was considered by you as being a defect in looking at the time period.

Mr Beer: Sorry to interrupt, I think the answer to that question would fall to be answered by reference to decisions made post-February 2020. The significance of the date of February 2020, is that the –

Sir Wyn Williams: I’ve got it.

Mr Stein: I understand.

Sir Wyn Williams: It relates to the extent of the waiver of privilege, doesn’t it?

Mr Stein: I know, that’s why I was asking questions about whether Mr Altman considered, rather than whether he discussed it with his team.

Sir Wyn Williams: Anyway, I think, on any view of it, you’ve had a very generous 15 minutes, Mr Stein.

Mr Stein: Thank you, sir.

Sir Wyn Williams: So we are going to call it a day at that point.

Mr Stein: Yes, sir.

Mr Beer: Thank you, sir.

Sir Wyn Williams: Ms Patrick, you have until 3.55, which gives you a very generous 15 minutes.

Ms Patrick: Thank you, sir.

Questioned by Ms Patrick

Ms Patrick: Mr Altman, my name is Angela Patrick. I act with Hudgells Solicitors and Mr Moloney KC for number of subpostmasters who were convicted and have since had their convictions quashed.

I’d like to look at one issue and you’ve referred to advices after the general review. I’d look at the 2016 post-swift Review advice and I really any want to look at, as one example, the review of Mrs Hamilton’s case. You see Mrs Hamilton sits next to me today.

Brian Altman: Yes.

Ms Patrick: So if we could turn to POL00022854, please. You can see there on page 1, it’s headed, “Review of Post Office Limited Criminal Prosecutions”. Just to start with, this was not full independent review of all criminal prosecutions, was it?

Brian Altman: Oh, no. No. These were cases selected for me by Post Office.

Ms Patrick: I think I can help further, if we scroll to the bottom of the page at paragraph 3, you can see it yourself now, it’s on screen, but just very briefly, the instruction was limited only to the question whether, in the limited number of prosecutions you were asked to look at, whether POL had acted properly in charging both false accounting and theft?

Brian Altman: Yes, this arose from the earlier Swift Review.

Ms Patrick: Yes, and if we can look very briefly – I’m conscious of time – at page 28, we see your conclusion on Mrs Hamilton’s case file. We see there:

“While it cannot be said on the material I have seen in this case that the count of theft was charged and indicted solely (and improperly) to influence or encourage guilty pleas to the counts of false accounting, at the stage at which Mrs Hamilton had indicated she would plead guilty to the false accounting charges, the condition of repayment in return for the dropping of the count of theft, in my view, could lend itself to the possible, unfortunate allegation that what occurred provides evidence of the manipulation by the prosecution of the criminal process by securing the repayment of its losses through the criminal process, in particular, by the charging of theft.”

Sorry, that took a little while to read out but I thought for the transcript it’s important to know there we’re starting. If we could look now – sorry, I apologise.

If we look now, there are some other explanations earlier in your advice for the basis of your approach. So if we could go to page 27 – sorry, page 8, paragraph 27, please, you’ll see there about arguments to resist the allegation that was improper to charge alternative offences, and you deal with:

“… the defendant was able to challenge the sufficiency of the evidence said to underlie the theft charge, and if so advised, to seek its dismissal; indeed, it was open to the defendant to contest all charges and seek to make a submission of no case to answer … if so advised the defendant could, through his advisers, seek disclosure, which might reasonably assist his case … finally, it is the defendant’s decision to plead guilty to a charge”, and so on.

Brian Altman: Sorry, forgive me, Ms Patrick, is this in relation to Mrs Hamilton or this just –

Ms Patrick: This is the general approach?

Brian Altman: The general, yes, thank you.

Ms Patrick: I just want to say there, you’re emphasising there in paragraph 27 the role of the defence and the ability of the defence to seek disclosure. By this time in 2016, just to be absolutely clear, you had not been asked to look at how the Post Office typically responded to defence requests for disclosure of material relevant to bugs, errors or defects in Horizon?

Brian Altman: Generally, no.

Ms Patrick: Thank you. Did your advice proceed on an assumption that the Post Office had complied with all of its obligations on disclosure in the face of any defence request?

Brian Altman: Sorry, can you ask me that again?

Ms Patrick: Sorry, I think I may be trying to go too quickly, I apologise. Did you advice proceed on the assumption that the Post Office had complied with its obligations on disclosure in the face of defence requests? Essentially, were you assuming that the Post Office had done its job properly when it was asked for disclosure by the defence?

Brian Altman: At the time of prosecution, you mean?

Ms Patrick: Indeed, and at the time in 2016, when you were being asked to look again at some of these cases?

Brian Altman: Well, I think I must have been, yeah.

Ms Patrick: Can you recall whether, at that point, in 2016, your confidence in being able to take that kind of assumption may have been impacted by what you knew by 2016, including the issues which had led to your original instruction?

Brian Altman: Forgive me. Ask me that again, please, Ms Patrick.

Ms Patrick: Was your confidence in any assumption about what POL might have done in respect of its disclosure duties impacted by what you knew in 2016, including the issues that led to your original instruction?

Brian Altman: This review was not about bugs, errors and defects. This review, as you know, was for a particular purpose. It was – actually, it led on from what Mr Beer was asking me about before, Second Sight’s –

Ms Patrick: Indeed, and I think we clarified that at the start.

Brian Altman: Yes, well, the point is that the disclosure decisions in the individual cases I was asked to look at did not cover bugs, errors and defects but other issues and, therefore, I wasn’t looking at that and, did it impact on my confidence? I think, in terms of what I saw here, and given that I was looking at particular issue, no.

Ms Patrick: Thank you.

You raised a particular concern about a condition placed on not proceeding with the theft charge and, if we look at page – sorry, I apologise – 27, we can see at 107 you elaborate on that.

I apologise, I’m trying to do this as quickly as possible.

Again, you say:

“The effect of the arrangement was that the prosecution was in effect allowing Mrs Hamilton to buy her way out of a charge upon which the in-house lawyer and counsel had advised there was sufficiency of evidence. Second, the question might be asked why if the prosecution felt the evidence was sufficient … third, if Mrs Hamilton did have a tenable defence to the count of theft (although I have seen no defence statement providing any defence and I doubt that a defence statement was ever served) then it might be argued that the suggestion she should repay losses in return for the dropping of the theft count, which was the idea originating with the prosecution”, blah, blah, blah, blah, blah.

You say, again there, you’re emphasising the lack of a tenable defence. We’ll come back to that point but do you recall did the Post Office take any action on this advice you gave on the conditionality of its approach to the theft charge?

Brian Altman: On this review in Mrs Hamilton’s case, is that what you’re asking me?

Ms Patrick: Yes.

Brian Altman: I don’t know.

Ms Patrick: Thank you. If we look very briefly, because I am conscious of time, at the specific consideration of Mrs Hamilton’s case and the facts therein, if we can scroll up a little to 25, at paragraphs 100 to 101, and at 100, we won’t repeat it, it sets out Mrs Hamilton’s conviction and the sentence that she was serving and the relevant undertaking to pay back the monies said to be owed to the Post Office. It goes on to say a little about the review, and you say:

“I agree, absent any tenable explanation from Mrs Hamilton consistent with her not being guilty of theft, there was indirect evidence to support the charge of theft”, and you say why.

You say at the bottom there:

“In her prepared statement, which is the only word she uttered about the audit shortage, she appeared to blame a lack of training and shambolic [Post Office] systems. However, further investigation of her calls to the Horizon Helpdesk and to the NBSC helpline failed to explain the loss of over £36,000 and, more importantly, the reason why she would need to falsify the declarations to such an extent”, and so on.

Now, absent any tenable explanation, this seemed critical to your conclusions, there, and we’ve seen the reference to the calls.

In paragraph 67 –

Brian Altman: Well, first of all, when I talk about indirect evidence, I think what I was talking about there was circumstantial evidence.

Ms Patrick: Indeed. I simply want to explore what you had seen at this stage. We don’t need to turn it up, we can if you want to but, at paragraph 67, it reads:

“Insofar as calls to the helpline go” –

Brian Altman: Forgive me, which paragraph are we looking at?

Ms Patrick: 67.

Brian Altman: That’s not up on the screen.

Ms Patrick: I apologise, 67, please, it’s page 18. It says:

“Insofar as calls to the helpline go, the Investigator had examined …”

You set out what the Investigator had examined in respect of the call logs. A number of calls had been reported but the Investigator concluded he could not see:

“… ‘anything ‘that relates to a single or multiple discrepancies that would account for the audit deficit of £36,644.89’.”

You’re saying there, the Investigator had examined, and I assume you would have seen the Investigator’s report by Mr Brander?

Brian Altman: I’m sure I must have done because I refer to it in this document.

Ms Patrick: I think here, looking at what you were actually looking at, you were looking in this advice at what the Investigator had seen and what had then passed to the Legal Team for them to consider the charge; is that fair?

Brian Altman: I think so.

Ms Patrick: That was the basis on which you were looking at whether any explanation had been offered by Mrs Hamilton, tenable or otherwise; is that fair?

Brian Altman: I was looking at all of the evidence and all of the evidence – when I say “all of the evidence”, I don’t know if I simply had investigators’ reports, advices, and that sort of thing, possibly some of the background information I frankly can’t remember after all of this time, but I was looking at all of the evidence.

Ms Patrick: Now, we won’t go through it and we don’t have time to go into the detail, we are all familiar with the conclusion of the Court of Appeal Criminal Division in Hamilton, Mrs Hamilton has been a case study in this Inquiry, the Inquiry has heard reference to call logs and to statements, including by Andrew Dunks of Fujitsu, and to treatment of ARQ, including in a statement by Penelope Thomas, again of Fujitsu.

You wouldn’t have reviewed the detail of call logs yourself in 2016?

Brian Altman: No, just I was presented with presumably summaries or other such documents which helped me write what I wrote.

Ms Patrick: You wouldn’t have looked at the Fujitsu evidence in the case yourself or any ARQ material?

Brian Altman: No, no.

Ms Patrick: A full independent investigation of what actually happened in Mrs Hamilton’s case was beyond your instructions –

Brian Altman: Yes.

Ms Patrick: – on this advice. That’s really just not what you were being asked to do by the Post Office at this time, was it?

Brian Altman: No, I wasn’t. I was being asked to look at one issue, which had been raised by Jonathan Swift in the Swift Review.

Ms Patrick: Would I have been open to you to ask the Post Office to extend your instructions or to advise them that they might want to look more widely at the conduct of investigations?

Brian Altman: Well, anything was open but I was asked to do a specific task which had come out of the Chairman’s report, which was written by Jonathan Swift and Christopher Knight, so, yes, technically open but I don’t think it would have occurred to me to have suggested it.

Ms Patrick: I just want to look at one point in Mr Brander’s report. Could we look at POL00044389, please, and page 2. Before it comes up, I’ll explain what I want to look at. We’re looking at the description of the audit that was conducted at Mrs Hamilton’s branch very briefly, and I want to look at the bottom of page 2.

We see there:

“Mr Stuart completed a full audit of the cash and stock and identified a deficit of £36,583.12, which is broken down afterwards follows …”

We don’t need to look at the breakdown. At the final paragraph on that page:

“Mr Stuart also identified an additional £61.77 shortage on Horizon, which couldn’t be accounted for, and thus the figure posted to late accounts was”, and the figure is then given.

In the context of your engagement with the Post Office and the issues that had been raised by Horizon, having read this report, would that information that an additional sum during the audit, when Mrs Hamilton wasn’t present, had been found that simply couldn’t be accounted for, did that give you any cause for concern?

Brian Altman: I’m afraid, Ms Patrick, the reality is when I looked through this, I suspect that didn’t register or didn’t register in the way that, after all of these years, one can look at and confidently say, “You know, there’s a problem screaming out for examination”. As I repeat, I was looking at all of these cases and not just Mrs Hamilton’s, but I think seven others, for a particular purpose and identifying flaws – although, looking back after all these years, clearly significant was not something that I would have registered.

Ms Patrick: Just to take pause, given what you knew by the time you were being instructed to provide this advice in 2016, you’d seen the Second Sight Report on bugs, you’d seen the Simon Clarke Advice, the Helen Rose Report, and its treatment, you’d conducted your own critical analysis of how historic prosecution policies at the Post Office had operated and, in this case, you had raised your own concern about the approach to conditionality on theft in Mrs Hamilton’s case.

Brian Altman: Mm.

Ms Patrick: Was there no basis, no basis at this time, to be at least professionally curious as to whether all reasonable lines of inquiry, any tenable exploration, had properly been investigated by the Post Office?

Brian Altman: Well, I come back, Ms Patrick, to what I said, you’re talking about a figure of 61.77. You’re assuming that I read it, I absorbed it and I diverted by attention or should have diverted my attention from what I was being asked to do. I’m afraid I didn’t.

Ms Patrick: One final point: you mentioned that your advice turned your general review, and Mr Beer has dealt with you with that. It was provided to the CCRC eventually. Do you know if this later advice, in 2016, which included your view on the conditionality attached to the position and theft, do you know if that was provided to the CCRC?

Brian Altman: I’m fairly confident it wasn’t.

Ms Patrick: Thank you, Mr Altman. That’s all the questions I have.

Sir Wyn Williams: Perfect timing, Ms Patrick.

Mr Henry, 4.15 is your cut-off point.

Questioned by Mr Henry

Mr Henry: Thank you, sir.

Looking back, thinking about the iterative process, the negotiations, the horse trading, arm wrestling, whatever you call it, as to how you had your terms of reference established and the carefully bevelled or chamfered ambit of those terms of reference, do you think that you might have been set up?

Brian Altman: By the Post Office?

Mr Henry: Yes.

Brian Altman: That’s a very interesting proposition, Mr Henry. I haven’t quite thought about things like that. I have thought, and I’ll be frank with you, whether the fact I just left TC’s room, Treasury Counsel’s room, and I just finished my first tenure as First Senior Treasury Counsel and looking at an email which I’d never seen before, before this week, about the different Queen’s Counsel at the time people were looking at, whether they took comfort from the position I had been in, I’ve never thought that I was set up, I have to be frank with you, but it’s a thought to wrestle with.

Mr Henry: But this, I think probably, if – unless I’m making, you know, an assumption, after many, many years, assiduously acting on behalf of the Crown, how much of this sort of investigations, sort of, white collar work, effectively, had you done?

Brian Altman: Around that time, actually, just around that, I think – I mean, I haven’t gone back through my diary, Mr Henry, you understand – but I was doing something – in terms of white collar, I think I would that have done some advisory work around that time but, if you are asking me had I been prosecuting fraud cases, no.

Mr Henry: You said this morning, when Mr Beer was asking you some questions, that you ought to have assessed for disclosure Gareth Jenkins’ credibility, “His credibility should have been considered for disclosure and disclosed, with the benefit of hindsight”, and Mr Beer was asking you specifically through the lens of the Seema Misra case.

You said, at that stage in your evidence:

“Misra was a slightly different case. The focus at that time was Horizon Online. Her branch was affected between 2005 and 2008 so it was a Legacy Horizon issue. When it came to the appeals years later, the landscape was completely different.”

Then these words:

“One of the problems was that perhaps, taking a naive view, the two new bugs in Horizon Online revealed to Second Sight, I felt could not be material in her case.”

Brian Altman: Yeah.

Mr Henry: I mean, forgive me, but naivety is not an attribute normally associated with former First Senior Treasury Counsel?

Brian Altman: I was meaning it in terms of my understanding of the technicality.

Mr Henry: I see.

Brian Altman: So, in other words, Mr Henry, of course looking back, you’re right and the taint should have been disclosed, certainly to Mrs Misra, and I’ve conceded that now, probably for the seventh time. But what I mean by naivety is my naivety about the impact of a system like Horizon, whereby, if you have two new bugs and Mrs Misra’s branch was Legacy Horizon, I did not understand, and nobody put me right, that those bugs could not be referred backwards to the Legacy system. That’s what I meant by it.

Mr Henry: Did you form the same view in respect of the receipts and payments mismatch bug when you became aware of that, that that only affected, for example, I think you thought only Horizon Online?

Brian Altman: Do you mean – forgive me, I’ve a terrible throat – do you mean the receipts and payments mismatch bug which Second Sight revealed in their Interim Report?

Mr Henry: Mm.

Brian Altman: I thought that was just Horizon Online.

Mr Henry: I see.

Brian Altman: Not least because, if my memory is right, Second Sight say it didn’t arise until September 2010.

Mr Henry: Mm. Well, leave that to one side. You’ve accepted that you’re not perfect, that you’re human and you’re fallible. Do you accept that, when you look back over this now, over number of years, you made some mistakes in the advice you gave the Post Office?

Brian Altman: I’ve conceded that.

Mr Henry: Yes, and that those mistakes, if you had been aware of them at the time, they would have put you in conflict with your own client, wouldn’t they?

Brian Altman: I don’t quite understand the question.

Mr Henry: Well, I mean, let’s just take two examples to sort of make it concrete. The 2010 cut-off date that you accepted was logical, proportionate, et cetera, et cetera. Do you accept now that that was a mistake?

Brian Altman: No, I don’t. As I said, because Mr Beer asked me the same question – I don’t.

Mr Henry: I see.

Brian Altman: – because –

Mr Henry: Well, I’ll move on to something which you know I’m coming to because it’s now the eighth time. The non-disclosure to Seema Misra of the Clarke Advice, you do accept that that was a mistake?

Brian Altman: Of the advice itself?

Mr Henry: Yes, not to disclose the fact that Gareth Jenkins was a tainted witness to Mrs Misra’s lawyers?

Brian Altman: Yes, forgive me, there are two different things. The Clarke Advice is a document, if that’s what you mean, no. The information within it, yes.

Mr Henry: Yes, exactly. Right.

Sir Wyn Williams: Let me understand this. The Clarke Advice, as an advice, presumably would be legally privileged and you wouldn’t disclose that as a document but you should have disclosed the relevant parts of it.

Brian Altman: Well, the part which I’ve been asked about eight times now, yes.

Sir Wyn Williams: Yes, well, I’m in danger of making it nine but just so that I’ve got it right. It’s not the document itself?

Brian Altman: No.

Sir Wyn Williams: It’s part of the information contained in the document?

Brian Altman: Yes.

Mr Henry: Now, what I’m trying to concentrate on here is that – and I hope you well forgive me, I have to put a characterisation on it – but the advice you were giving to the Post Office, for example, in connection with the CCRC, was “Engage with them, by all means, appear to be helpful but let them make the running”?

Brian Altman: I think the relationship with the CCRC is a different one where the CCRC issues notices but, as I understood it, Post Office were cooperating and were engaging with the CCRC.

Mr Henry: I see. Can I just put to you fairly and squarely, what I’m suggesting to you is that, regrettably, as is demonstrated by the monstrous delay before these matters went to appeal, the policy of disclosure was a lack of proactive engagement and candour with the CCRC. What do you say to that?

Brian Altman: By Post Office?

Mr Henry: Yes.

Brian Altman: I know in later years Post Office were keen to carry on talking to the CCRC but I think there came a point – in fact, I know there came a point – when they would have been very happy if CCRC had stopped their interest.

Mr Henry: Now, can I just ask you to consider this: you’ve accepted that you made mistakes but what I’m going to be suggesting to you is that you were in the position, Mr Altman, of being somebody who had been constantly backing the wrong horse, so far as the strategic and tactical advice you’d been giving the Post Office. Do you think that’s unfair?

Brian Altman: Strategic advice I had been given or –

Mr Henry: Yes, you had been giving them?

Brian Altman: Giving?

Mr Henry: Yes, backing the wrong horse.

Brian Altman: Post Office were my client.

Mr Henry: Well, let’s go to your note on the Horizon Issues judgment which is POL00006396. If we could go, please, to paragraph 4, and this is after the monumental judgment of Mr Justice Fraser and you had been first of all given sections A to L and then section M, and then you read the technical index, but the monumental judgment of Mr Justice Fraser on the Horizon Issues judgment, and this is what you say at paragraph 4:

“In my view, these passages are a good reminder to any convicted claimant as well as the CCRC that this judgment has its limitations. The judge did not make any findings about individual convicted cases. He did refer to the Misra case at various points in the judgment … But in none does he analyse the evidence against her or make any particular finding which could advance any appeal in her case.”

Looking back on that now, Mr Altman, that’s a somewhat curious judgement by you, isn’t it?

Brian Altman: I was asked by Post Office, and I think it was Herbert Smith at that time, to point out to Post Office and them post Office’s exposure to risk, which is what Post Office always wanted to know, and this was my view of what the Horizon judgment or the limitations, as I understood it, at that time were.

Mr Henry: The judge actually quotes Gareth Jenkins’ evidence in Mrs Misra’s case, doesn’t he?

Brian Altman: I don’t remember –

Mr Henry: Well, he does –

Brian Altman: I’m sure you’re right. I’m not going to dispute it, Mr Henry. I just don’t remember.

Mr Henry: Not to worry. Let’s move on to paragraph 13. You accept that:

“What is POL’s duty? If material comes to light after the conclusion of proceedings which might cast doubt on the safety of a conviction, then there’s a duty to consider disclosure. This is just another way of saying that if there was any material non-disclosure at trial, POL has a duty to consider the matter for disclosure. That said, I am far from sure in the light of the limitations in the Horizon judgment that anyone can say presently that any material has come to light which might cast doubt on the safety of any of the convictions without there being a wholesale review of each and every one of them.”

Do you still stand by that judgment?

Brian Altman: At the time – at the time and, in fact, during the appeals, our argument was and my view had always been – and I say “our”, it wasn’t just me, it was the whole team but I obviously take responsibility for it – was that the Court of Appeal would have to look, would have to review each and every case, case specifically, yes.

Mr Henry: I see. But anyway, there we have it. You’ve correctly stated the Nunn test there, because obviously that is the Nunn test, isn’t it? If material comes to light after the conclusion of proceedings, which might cast doubt on the safety of a conviction, then there’s a duty to consider disclosure.

Brian Altman: Well, it’s part of the Nunn test.

Mr Henry: Yes, it is, isn’t it? Let’s go to a manuscript note which is attributed to Mr Williams. It’s POL00155554. Could we just make it a little bit bigger. Do you see that you’re recorded to have said that you were perplexed about Mr Justice Fraser? Can you remember saying something about being perplexed about him?

Brian Altman: Well, it doesn’t attribute that remark to me but let’s assume it was my remark.

Sir Wyn Williams: I’m sorry to interrupt but I thought that Mr Beer said, when this document was put to Mr Altman, that we didn’t know who the author was?

Brian Altman: This was a different document, Sir Wyn.

Sir Wyn Williams: Different, I’m sorry.

Brian Altman: Yes. It certainly says at the top “Conference with BAQC”. As I say, it doesn’t attribute that remark to me. Maybe I was perplexed but what the perplexing was, I can’t tell you.

Mr Henry: It goes on to say:

“Whether it gives the CCRC what they want is questionable.”

Brian Altman: Yeah.

Mr Henry: Then it goes down further, if we could just scroll up, please:

“Little assistance to CCRC beyond our understanding about Horizon.”

Brian Altman: And above that, if I may – and this is attributable to me:

“No findings, individual complainants affected by a bug or remote access on a branch account, mere potential, neither here nor there.”

So the way I read the judgment – and, of course, this advice or this view didn’t age very well, because we all know the CCRC took a very global approach to the issues, as did the Court of Appeal – and I’m certainly not criticising, I understand precisely why but, at that time, and later, certainly my view was, based on my understanding of this kind of situation, that the Court of Appeal would have to look at each individual case –

Mr Henry: Yes.

Brian Altman: – case specifically.

Mr Henry: But you accept that you backed the wrong horse?

Brian Altman: Well, I don’t like that term, Mr Henry, because you’re – the suggestion to me is I should have given different advice or given advice which I felt was otherwise, and I didn’t. This is the advice I gave. So if that’s what you mean by a horse, you may think it’s the wrong horse; at the time I felt it was the right horse.

Mr Henry: All right, well, let’s just go to POL00337432. This is the note of a consultation with you on 20 December 2019.

Brian Altman: I think I may have seen this in the further bundle I got this week and I don’t think I’d seen it before then. Do you know whose note it is?

Mr Henry: I’m afraid not but it is on the system attributed to a consultation with you on 20 December?

Brian Altman: And is it dated?

Mr Henry: Forgive me?

Brian Altman: Is this note dated?

Mr Henry: I’m not sure if the note itself is dated but you are definitely referenced in it, Mr Altman.

Brian Altman: Right, okay.

Mr Henry: Could we scroll up, please, and we can see, “Horizon Issues judgment – has [its] limitations”, et cetera, et cetera. Next paragraph:

“Fail to see how anyone can make arguments on the basis of his convictions.”

Should that be conclusions?

Brian Altman: I didn’t write the notes –

Mr Henry: Of course.

Brian Altman: – but I assume that ought to be the word, Mr Henry, yes.

Mr Henry: Next paragraph:

“CCRC under-resourced and overworked. CCRC has to do the work with PO cooperation. Cannot make reference to the Court of Appeal unless they come to a view that there is a reasonable prospect of success”, et cetera, et cetera.

Brian Altman: I doubt I’d have said “reasonable” because I think the test is “real”.

Mr Henry: Yes, go to the next page, please, and we’ve got, have we not, at the bottom of that page, under your view, “BAQC view”, last sentence:

“CCRC may never make a reference.”

Is that advice that you think you might have said on 20 December 2019?

Brian Altman: Well, do you mind if we look at the paragraph under my initials to see what the advice was, which was to engage with them to show that we, in other words Post Office, are being responsible. And this is – I mean, you say it’s a note of the conference, for the reasons you give, and the “we” may be the author of this document who was within Post Office but, be that as it may:

“… we are being responsible and that we with [as it reads] to cooperate and that we are willing to cooperate but seek their guidance and want to avoid any missteps. Might at the same time get an idea where they are/where they are not, would avoid the risk of Post Office being criticised for being self-serving/ uncooperative.”

Mr Henry: Of course.

Brian Altman: “If didn’t engage, and we had done X when they wanted us to do Y – back to the drawing board.

“An auditable, sensible attitude to take – shows PO in good light. Anything that we do has the stamp of approval – can’t go own way – would in my view be pain daft [plain daft]. CCRC may never make a reference.”

I mean, some of that could have been my advice, some of it might have been the author of this note’s takeout from my advice and, Mr Henry, it’s perfectly possible that I could have said in the end they may never make a reference.

Mr Henry: Now, Mr Altman, I have got very, very little time and I’ve got two more topics to put to you with the Chairman’s permission, so, if you will forgive me, if we don’t put it up on the screen unless you specifically wish to, but you were shown a document during the lunch hour – and I will give the reference in case you would like to see it put up on the screen – it’s 00333839, and you’re reported to have said in a note that the only basis upon which you would advise disclosing the draft Deloitte report –

Brian Altman: Which draft, what’s the date of this conference, please?

Mr Henry: Shall we go to the date of the conference then, please.

Brian Altman: I think it was November 2016.

Mr Henry: November 2016. Thank you. The only basis on which you would advise disclosing the draft Deloitte report outside the constraints of the Section 17 notice is if it would help the Post Office. Now, obviously, that was advice that is attributed to you. Do you think that you might have said that?

Brian Altman: I’m not sure of the context but I did read very quickly the notes which you asked me to look at over the lunch hour and I think, in the end, after a round-table discussion when Rodric Williams turned up, I think the advice was that the Deloitte report, whatever it was, should go to the CCRC with a request for a notice for it.

Mr Henry: Was it not that, in fact, they should make a Section 17 request, which would be covered, of course, by Section 25?

Brian Altman: Yeah, inevitably at that time. Yeah.

Mr Henry: Well, I’m going to move on, very last subject, one you’re familiar with: you were asked why there wasn’t an investigation into how Mr Jenkins came to give misleading evidence that Mr Clarke said was fatally undermining of his credibility. You responded:

“I was giving advice to the Post Office. I thought the advice I was giving was on the impact of that failure on the prosecutions and the convictions and not the reason why he had failed to do it.”

Can you see the connection between the failure to investigate that issue and the validity or defensibility of the 2010 cut-off?

Brian Altman: Ask me that, again, please, Mr Henry.

Mr Henry: Well, ought there not to have been an investigation, Mr Altman, into the extent of the bugs that Mr Jenkins might have been aware of because that would be, of course, highly material to whether the 2010 cut-off was a defendable position?

Brian Altman: You know, with hindsight, the answer is an obvious yes but the position I was in at the time, and the realisation that Gareth Jenkins had revealed, himself, those bugs to Second Sight, I suppose I had come to the view that, if he had revealed those bugs to Second Sight, he would have revealed others that he knew.

Mr Henry: So that was an assumption?

Brian Altman: It was obviously a wrong assumption but, yes, it was an assumption, I suspect.

Sir Wyn Williams: Thank you very much, Mr Henry. You’ve had your two extra points, and made them.

So I think that brings this evidence session to an end, does it not, Mr Beer?

Mr Beer: Yes, it does, sir.

Sir Wyn Williams: Right.

Thank you, Mr Altman, for your witness statement, and for answering a great many detailed questions during the course of today. I’m grateful to you.

So we will continue tomorrow with the evidence of Mr Clarke.

Mr Beer: That’s right, sir. 9.45.

Sir Wyn Williams: Right. Thank you very much.

Mr Beer: Thank you, sir.

(4.19 pm)

(The hearing adjourned until 9.45 am the following day)