Official hearing page

9 May 2024 – Simon Clarke

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(9.45 am)

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

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

Mr Blake: Thank you very much. This morning we’re going to hear from Mr Clarke.

Simon Clarke

SIMON ANDREW CLARKE (affirmed).

Questioned by Mr Blake

Mr Blake: Thank you. Can you give your full name, please?

Simon Clarke: Simon Andrew Clarke.

Mr Blake: Mr Clarke, you should have in front of you a witness statement?

Simon Clarke: I have.

Mr Blake: Is it dated 23 March 2024?

Simon Clarke: If you give me a moment – it is.

Mr Blake: Can I ask you to turn to page 69?

Simon Clarke: I have it.

Mr Blake: Is that your signature?

Simon Clarke: It is.

Mr Blake: Is that statement true to the best of your knowledge and belief?

Simon Clarke: It is.

Mr Blake: Thank you very much. That statement has the URN WITN08130100. That statement will be published on the Inquiry’s website shortly.

Mr Clarke, many people in this room will already know but you are a barrister?

Simon Clarke: Yeah.

Mr Blake: You were called to the Bar in 1997?

Simon Clarke: Yeah.

Mr Blake: You practised at the self-employed criminal Bar until 2010?

Simon Clarke: I did.

Mr Blake: Then you joined Cartwright King?

Simon Clarke: That’s correct.

Mr Blake: You were based at Cartwright King until 2016?

Simon Clarke: Yes.

Mr Blake: You then set up your own firm with Mr Bowyer and Mr Smith –

Simon Clarke: Yes.

Mr Blake: – both of whom we’ve heard from. Like Mr Smith, I think, did you have access to Cartwright King emails and electronic repositories at some point thereafter?

Simon Clarke: I did. We retained a consultancy with them, largely in the area of work that we’d set up the firm for but also because they wanted, from time to time, additional help with the Post Office work they continued to do.

Mr Blake: Thank you. You’re still senior partner of that firm; is that correct?

Simon Clarke: The firm I set up, yes.

Mr Blake: Yes. In terms of Post Office work, while you were at Cartwright King, is it right to say that you only undertook work for the Post Office after separation from Royal Mail Group?

Simon Clarke: Some – can I just add one other point first? I also practice at the independent Bar.

Mr Blake: Thank you. In addition to your own –

Simon Clarke: In addition to my own firm.

In answer to your question, I joined Cartwright King in January 2010 and, effectively, was General Defence Counsel for their clients. I was aware, from just general background noise, that they prosecuted for Royal Mail Group through Post Office. I was aware that Post Office separated in April, I think, 2012, from Royal Mail Group but I didn’t receive any instructions from the in-house Head of Advocacy to undertake any Post Office work substantively until about April/May 2013, although I did one or two brief mention hearings, I think, before that. So, really, 2013 was when my involvement started.

Mr Blake: Thank you. What did you understand Cartwright King’s role to be in relation to those Post Office cases; were you an agent for the Post Office or something else?

Simon Clarke: Again, this is all background noise. Pre-separation, I understood that Royal Mail Group had a number of agent solicitors across the country that they would ask to deal with matters in their own areas, prosecuting in the Magistrates’ Court and instructing counsel in the Crown Court. Post-separation, Andy Cash at Cartwright King, one of the senior partners, had some links with Post Office and he used those links to obtain a contract between Post Office and Cartwright King that Cartwright King would conduct all of the Post Office prosecutions across England and Wales from 1 April 2012.

That was my understanding of the position. I know that to be the case because, when I did get involved, I looked back to see what the position was.

Mr Blake: In terms of authority to make certain decisions in how cases are run, where did you see that lie, at Cartwright King or the Post Office or a combination of the two?

Simon Clarke: Our function, as I saw it, and certainly my function, was to advise and Post Office were responsible for taking the decisions because Post Office were the prosecuting authority.

Mr Blake: That is all fine in theory but was that the reality?

Simon Clarke: There were times when Post Office didn’t follow our advice and there were times when they did. There were times when they were resistant to our advice, there were times when they accepted it. But you have to remember that, from my point of view, I was only ever instructed to prosecute substantively a single case and it was that case that, effectively, I think, led us to where we are today. In my mind, certainly it is.

Mr Blake: We see reference in your witness statement to being instructed by Andy Cash, who was the senior solicitor at Cartwright King?

Simon Clarke: Yeah.

Mr Blake: To what extent did you consider that you had to be specifically instructed to carry out that Post Office work in respect of individual pieces of work?

Simon Clarke: We used the word “instructed” generically. Andy Cash was, at the time, Head of Criminal Advocacy, one of his functions was to allocate in-house Cartwright King cases and clients to particular barristers to work on, and Andy Cash allocated that case to me.

Mr Blake: We’ll come to quite a few different advices that you wrote over the years. Sometimes it seems as though they weren’t specifically requested by the Post Office?

Simon Clarke: No, no.

Mr Blake: To what extent did you have autonomy to simply act as an effectively standing counsel to the Post Office?

Simon Clarke: I never saw myself as standing counsel to the Post Office. I was an employee of Cartwright King. I occasionally saw something that concerned me and advised because I was concerned, not because I had been specifically instructed to advise, and a good example is what happened in the Samra case.

Mr Blake: Thank you. We’ll get to the Samra case shortly. We’ve heard from Mr Smith. The impression given by Mr Smith that he relied on you for guidance and would, in many ways, defer to you; is that impression correct?

Simon Clarke: No.

Mr Blake: Why not?

Simon Clarke: Martin Smith was the communications route, if you like, the point of contact between Post Office and Cartwright King and so everything I did, occasionally I would deal with Rodric Williams directly but, most of the time, everything I did and everything Harry Bowyer did went to Martin, who would forward it to Jarnail Singh and/or Rodric Williams and occasionally, I think, other people in Post Office. So he was the main conduit between the two.

Mr Blake: He may have been a main conduit, which was effectively how he described himself, but, in terms of actual responsibility, understanding, involvement in the underlying cases, do you agree or disagree with the evidence that he gave in that respect?

Simon Clarke: I disagree to an extent. We – because Harry Bowyer and I were barristers, we tried to maintain the barrister-solicitor relationship. So Martin’s description, if you like, could best be seen as the solicitor to the case and, if you want to formalise things and talk about who instructed whom, Martin was effectively the instructing solicitor and was referred to that from time to time, internally as the instructing solicitor on a case, with Andy Cash as the boss, if you like.

But Martin would also give advice off of his own bat to Post Office, from time to time. I know that because I’ve looked at the hearings and, to my surprise, have learnt that, in some respects.

Mr Blake: What do you mean, to your surprise?

Simon Clarke: Well, I knew he was speaking to Jarnail Singh – Jarnail Singh would phone him up extremely regularly and he was speaking to Jarnail Singh and giving Jarnail Singh ad hoc advice on a daily basis and, occasionally – no, more than occasionally – Martin would come to us and say, “Jarnail’s asked this, what do you think?” But, quite often, Martin would give the advice himself.

My surprise comes because I’ve seen a number of written documents where Martin appears to have been dealing directly with Andrew Parsons and Jarnail Singh separately or together, without – I just don’t recognise the documents.

Mr Blake: You don’t recognise the documents?

Simon Clarke: Yeah, some that were put to him the other day.

Mr Blake: So they may have been written but without being shared with yourself?

Simon Clarke: Yeah.

Mr Blake: Mr Smith also admitted certain short comings in his own knowledge?

Simon Clarke: I saw that.

Mr Blake: Were you aware of that at the time?

Simon Clarke: No. Again, if I can clarify, I came in in April/May 2013. By that time, Martin Smith and Andy Cash had been prosecuting for Post Office for quite a long time and I had no knowledge of what they were and what they weren’t doing during that period because I wasn’t involved. So when I came in in 2013 and stopped the prosecutions, effectively, from June onwards, I didn’t look to see what Martin’s state of knowledge was; I was more interested in repairing the damage which had plainly been caused.

Mr Blake: Were you aware of any shortcomings in his legal knowledge?

Simon Clarke: He would ask me questions on law and I would help him with them. I don’t think there was any particular deficit that I can point to. I was surprised when he said the other day that he had no knowledge of prosecution disclosure duties because he was a defence solicitor.

Mr Blake: I think post-conviction disclosure duties?

Simon Clarke: Well, it’s not that different. The fundamental principles, as Brian Altman confirmed to us in advice, are the same: is there material that might reasonably be expected to undermine the convictions such as to render it unsafe? I paraphrase but, by and large, it’s the same principles.

But the other point which concerned me, which did surprise me, is that the defence lawyers are expected to know prosecution duties of disclosure and prosecution duties vis à vis expert witnesses as well because, otherwise, how can you properly defend your client in the face of disclosure issues or expert witness issues?

Mr Blake: At paragraph 9 of your witness statement you say that, in late 2012, you were instructed to provide some general advice on prosecution procedures to Mr Smith. Are we to understand that as training, or something else?

Simon Clarke: It’s – you’ll forgive me, it’s a slightly vague paragraph and I think it’s intended to be because I don’t – I recall giving advice. I do not recall giving training and so it’s likely – and I make a reference in the paragraph, I think, to written advice about – I may have provided written advice about evidential requirements in a particular case but I don’t recall. That, I think, is what I’m referring to. Martin would have given me a file and said, “Can you do me an advice on evidence?”, for instance. I think that’s what I am referring to. It’s not training. I delivered no training to anybody.

Mr Blake: Within Cartwright King, were you aware of any training about the role of a prosecutor, duties of disclosure, duties in respect of the instruction of expert witnesses or –

Simon Clarke: Prior to my involvement in May 2013, I just wouldn’t know, because I wasn’t involved. There was none after, other than – I’ve just said I didn’t deliver any training, that’s not, strictly speaking, true. After the Samra case, I gave training for the purposes of the sift process that you’ve heard about. I had to train those who were doing the first sift, so they knew what they were looking for but that was the extent of it.

Mr Blake: (Unclear: simultaneous speaking) … say, a solicitor who had conduct –

Simon Clarke: No.

Mr Blake: – of a criminal prosecution? No?

Simon Clarke: No. I’ve just committed the offence of talking over you with the shorthand-writer, I’m sorry. No.

Mr Blake: In terms of how the Post Office worked in your experience of the Post Office, you say at paragraph 34 of your witness statement that the Post Office appears to work in silos.

Simon Clarke: You don’t mind if I turn it up?

Mr Blake: That’s absolutely fine. I don’t think we need to bring it onto screen.

Simon Clarke: No, it’s here. Yes.

Mr Blake: Can you assist us with what you meant by the Post Office working in silos?

Simon Clarke: When I first raised the issues relating to expert witnesses with Post Office, they became very defensive in a general sense, and when I spoke to people in Post Office on the telephone, I think we had a couple of meetings, I spoke wit Rodric Williams, with Jarnail Singh, with Chris Aujard and his predecessor, who I think was Susan Crichton, and I was aware of hearing around Cartwright King and around Post Office generally that people just weren’t talking to each other.

And, as an example, Rodric Williams wouldn’t know what Post Office Security was doing; Jarnail Singh wouldn’t have much communication with Rodric Williams; the Investigation – this is all stuff I picked up – Investigation Teams weren’t really talking to anybody substantively. Everybody was living in their own particular work environment and there was no communication across the business, if you like, and it was quite frustrating because you would send an advice in and, a week or so later, you would say to somebody “You’ve seen my advice?” and they would say, “Well, no”, and you would have to then track down and find out why they hadn’t seen it when you know they ought to have seen it, and it was largely because people weren’t communicating with each other.

Mr Blake: We’ll come on to talk about the weekly meetings and the central hub –

Simon Clarke: Yeah.

Mr Blake: – but was that a theme that continued throughout your time at the Post Office, or …

Simon Clarke: It was. It got worse, I think. One of the reasons why I advised that the weekly hub meetings were convened was to cure this problem, was to make people speak to each other, about Horizon in particular, because I rather suspected at the time – I know better now – but at the time, I rather suspected that one of the reasons why these two Horizon bugs detected by Second Sight escaped people’s attention was because nobody was talking to each other, as simple as that.

Mr Blake: What do you put that down to, fundamentally?

Simon Clarke: Office politics? I don’t know. It’s speculative. It became something more after the event. But, at the time I was encountering it in June, July, August 2013, I put it down to office politics. People were working within their own comfort zones and never the twain shall meet, as they say.

Mr Blake: I’m going to take you to another passage from your statement it’s WITN08130100, and if we can look at paragraph 47, page 138, please.

Simon Clarke: Can I just read it?

Mr Blake: You can. I’m going to bring it onto screen as well. It’s page 47 and it’s the second half of paragraph 138 that I want to take you to?

Simon Clarke: Yeah, I know –

Mr Blake: You say there:

“Looking back, I now see what appears to have been three strands of thought within [the Post Office] on the topic of disclosure. The first strand amounted to an article of faith: ‘Horizon is both robust and reliable – there is nothing wrong with it and if Horizon says money is missing then it is missing’. The second strand considered that the cost of providing disclosure was prohibitive and should always be discouraged. The third strand, I felt, arose out of an almost religious panic: ‘Horizon must not be seen to have been impugned’.”

Now, at least the second strand and the third strand there were presumably things you knew from quite an early stage, as in you were aware that they were concerned about the costs –

Simon Clarke: Yes.

Mr Blake: – and you were also aware that they were very resistant to allegations about the reliability of Horizon?

Simon Clarke: I agree.

Mr Blake: In terms of (1), we know that you certainly found out that it wasn’t accurate at the latest by the phone conversation that you had with Gareth Jenkins and the Second Sight Report – you look reluctant.

Simon Clarke: Just slightly. You say I “certainly found out”. That was when I learned that there were bugs in the system. That, at the time, didn’t necessarily speak to the general unreliability of Horizon because we were still hearing that the systems that were in place to deal with bugs – this is what we were told on the day we were told, on 27 June, I think, that there were potential bugs – that there was nothing fundamentally wrong with Horizon. So I would suggest that a better take on that phone call would be I had concerns because I had been told, I think by Martin Smith, that there were – that Second Sight had identified two bugs, and were to publish this report, and my in instinctive reaction was, “We need to find out who told Second Sight about those bugs”, which is why I asked for the call to be made to Gareth Jenkins the following day.

Mr Blake: We’ll come to that call but, in terms of – you’ve used the word “fundamental” just now, in terms of nothing fundamentally wrong.

Simon Clarke: Yeah.

Mr Blake: Your first strand here is there is nothing wrong with it and if Horizon says money is missing, then it’s missing.

Simon Clarke: Yeah.

Mr Blake: By at least the time you’d spoken to Gareth Jenkins, you knew that that couldn’t have been correct?

Simon Clarke: Yeah, I think that’s probably right, yeah.

Mr Blake: Thank you. You’ve been very clear in your evidence just now and also in your statement about various failings at the Post Office. Do you think that you also might have taken too tough a stance, particularly in relation to disclosure to subpostmasters?

Simon Clarke: I think that’s arguable, yes.

Mr Blake: We’ll come and look at it over time. Let’s start in late June/early July 2013. That can come off the screen, please.

You say that you first became aware of bugs on 27 June 2013, then you were told about the Second Sight Interim Report by Martin Smith. Can you just elaborate on that slightly?

Simon Clarke: We had heard – and I don’t know whether it’s that day or not – but we had heard very close in time to me being told, that Post Office had commissioned an organisation called Second Sight to look into Horizon and that they had done so as a result, I think – and this is anecdotal – of pressure from Justice for Subpostmasters organisation, or the like. And the messages we were getting back from Post Office around about 25/26 June, were “We’ve got nothing to worry about, Second Sight are going to give it a clean bill of health”.

27 June, I think Martin must have had some contact with either Jarnail Singh or Rodric Williams because he then came to me and I think – I can’t say where we were or what we were doing it might have been by telephone or it might have been in person but he said to me “Second Sight are going to say there are two bugs”, and that really was the extent of it and my immediate reaction was “Who told them?” And the reason who told them was so important was because if it were the expert that they were relying on to give evidence, then his evidence had not been entirely complete, in the early cases.

Mr Blake: Was that an immediate thought, as early as 27 June?

Simon Clarke: Oh, yes. Oh, yes. To be told that there were – that the report was going to tell us that there were bugs in the system is a process-stopping mechanism. You can’t go anywhere from that other than to say “Well, how? Why? Who told them?”, because your duties as a prosecutor are so absolute in those circumstances that any competent barrister is going to say “Well, stop. We have to see what’s going on here”.

Mr Blake: You say in your statement that you saw the Helen Rose Report soon after.

Simon Clarke: Yeah.

Mr Blake: That report was written on 12 June 2013.

Simon Clarke: Yeah.

Mr Blake: It identified issues at the Lepton Branch –

Simon Clarke: Yeah.

Mr Blake: – it included certain correspondence with Gareth Jenkins and there was a mention in it of Horizon integrity issues.

Simon Clarke: Yeah.

Mr Blake: Can you assist us at all with when you were likely to have seen that? Was it before the conversation with Gareth Jenkins?

Simon Clarke: No, it was after.

Mr Blake: It was after.

Simon Clarke: I know it was after because up until that point, Horizon was – I don’t mock but Horizon was “robust”, it’s integrity was sound, it worked perfectly. What put me on notice that it might not have done was the conversation with Martin Smith that there were bugs in the system, as per Second Sight. Had I had the Lepton report prior to that then my reaction that occurred on 27 June would have occurred when I first saw that Helen Rose Report. It’s that report that reinforced my view that there was something seriously wrong.

So I would have seen it after I was told by Martin Smith about –

Mr Blake: Within a week, within two weeks?

Simon Clarke: Well, did I refer to it in my 15 July Advice?

Mr Blake: We’ll come to look at that.

Simon Clarke: Well, if I refer it – I’m not – I’m not going to get into “I don’t remember”, but if I refer to it in my 15 July Advice, then I had it before 15 July. If I don’t, then I had it after.

Mr Blake: Thank you. Let’s look at the phone call with Gareth Jenkins, that’s at POL00142322. That’s 28 June.

Simon Clarke: Yeah.

Mr Blake: So Mr Smith has told you on the 27th about the potential bugs?

Simon Clarke: Yeah.

Mr Blake: Was there a conversation with anyone at the Post Office before this conversation took place?

Simon Clarke: Well, I asked Martin to set this call up. I imagine he contacted Jarnail Singh for the contact details but I don’t know what he said to them.

Mr Blake: There was no conversation on your part –

Simon Clarke: No.

Mr Blake: – with the Post Office?

Simon Clarke: No.

Mr Blake: Did you have a long conversation with Mr Smith before this call?

Simon Clarke: I don’t believe so. My reaction was “We need to speak to the expert. Can you set it up please?” I’m pretty sure is the way it would have gone.

Mr Blake: You said it was very clear that there was a problem with Gareth Jenkins on the 27th.

Simon Clarke: Yeah.

Mr Blake: Can you recall Mr Smith’s position?

Simon Clarke: No, forgive me. There wasn’t a problem with Gareth Jenkins on the 27th; there was a problem that indicated there were bugs with Horizon. My concern, and the reason for the Gareth Jenkins call, was to find out who told Second Sight because I think the language in the Second Sight Report was “We have been informed”, and I –

Mr Blake: I think –

Simon Clarke: – wanted to know who the informant was and my first port of call was to ask the expert, and it was only when I spoke to the expert during this call that I realised the problem was with – lay with Gareth Jenkins.

Mr Blake: I had understood your earlier evidence to be that, when you were aware of the bugs on the 27th, that immediately caused you to be concerned –

Simon Clarke: Yes.

Mr Blake: – about the reliability of Mr Jenkins?

Simon Clarke: Yes, yes.

Mr Blake: What about Mr Smith? Was he as concerned about you as Mr Jenkins, or not?

Simon Clarke: I don’t think we had – vague recollection – I don’t think we had much of a conversation about it. I’m not convinced that Martin Smith appreciated the full import of the problem at that point.

Mr Blake: I’m going to read to you some passages from this transcript.

Simon Clarke: Please.

Mr Blake: You say:

“Hi, is that Gareth Jenkins?”

He says: “It is indeed.”

You say: “Oh hi Gareth, it’s Simon Clarke, I’m a barrister prosecuting a case for Jarnail on Monday at Birmingham Crown Court”, and that’s the Samra case?

Simon Clarke: Yes.

Mr Blake: He says: “Right.”

You say: “Jarnail suggested that we give you a call because we’ve heard that the Insight Committee Report is due to go before MPs next week I think I don’t know if you have heard the same thing, have you?”

He says: “8 July is the date I have been told.”

Just pausing there, “Jarnail suggested that we give you a call” was it Jarnail’s suggestion or …

Simon Clarke: It was mine –

Mr Blake: Was that a way of you –

Simon Clarke: Sorry, I’m speaking over you.

Mr Blake: Can you assist a with why you said that Jarnail had suggested it?

Simon Clarke: It’s likely a rhetorical device to open the conversation with Gareth Jenkins.

Mr Blake: If we scroll down, please, you say:

“Okay, well can I give you a brief sort of thumbnail sketch? Basically this is a postmistress who is alleged to have made double transaction withdrawals from Horizon when people have come in and taken money out of the Post Office Card Accounts. Do you follow?”

He says: “Yes, I think I’ve heard about that sort of scam going on, yes.”

You say: “Yes, and essentially what she is doing she is asking them to put their PIN number in a second time claiming it hasn’t worked the first time, and accordingly then taking the money out herself.

“Yep.”

Then you say: “All of and I mean all of the evidence we have got against her is Horizon data evidence.”

He says: “Yep.”

Then you say: “And when I say that what I mean is that all the transactions are conducted over the counter through Horizon.”

He says: “Yep.”

I’ll skip the next bit. You then go on to say:

“Okay. The problem I have got is that we are not allowed to see the report but we are told that there are up to 30 offices where bugs have been identified, yeah, and we know that Hurst Lane is not one of the branches where there has been an identified bug. Still with us?”

He says: “Erm right as I say certainly I am aware of 2 bugs. Is it. Firstly is they something that has been done on Horizon on the new Horizon system or the old system.”

You say “It’s the.”

He says: “What’s the date?”

You say: “It’s Horizon Online.”

He then says: “Okay right. So there is 2 bugs that we have declared to Second Sight in that sort of erm and erm we know exactly which branches are affected and they wouldn’t have any impact whatsoever on that part of er what’s going on erm and I think we’ve, we are confident that the audit trail that you are using for prosecution has not been compromised by those bugs.”

Just pausing there, “2 bugs that we have declared to Second Sight”; did that cause you any concern, suspicion?

Simon Clarke: That confirmed to me that it was Gareth Jenkins that had told Second Sight about the bugs and, more importantly, that he knew about them.

Mr Blake: If we scroll over the page, please:

You say: “What I’m looking for is confirmation effectively that you have given so can I ask you a couple of questions which may prompt yes or no answers?

He says, “Sure.”

Did you have a script ready or –

Simon Clarke: No.

Mr Blake: – was this off the top of your head?

Simon Clarke: Sorry, I’m indicating off the top.

Mr Blake: The stenographer will have –

Simon Clarke: I’m thinking. About the poor –

Mr Blake: – difficulty typing your hand signal.

You say: “As far as the data that the transactions conducted over Horizon, which include the sums of cash from Post Office card accounts is there any reason to believe that Horizon can be can slip into error?”

He says: “Not that I’m aware of.”

Then, if we scroll down, you then say: “Okay. Where are we going from here. What’s the questions I posed earlier. Sorry I’ve got Martin Smith”, and you introduce Martin Smith at that point who he acknowledges.

Then he says: “Hi. It’s the Horizon function is functioning perfectly …”

Then you say: “This is the other point. Bugs have been identified in Horizon which call into question some of the aspects of the way in which it operates. That’s a fair assessment, isn’t it?”

Mr Jenkins says: “Erm yes.”

Then you say: “Yeah, okay. How can we be sure that (a) we have identified all of the bugs that there are and (b) that although Horizon has been demonstrated that to be fallible that insofar as the case we are conducting is concerned we can eliminate the possibility of error.”

He says there: “Right I mean clearly we can’t you can never say there are no more bugs in the system so we’ve got to be careful about trying to say anything like that …”

Just pausing there, any reaction from you?

Simon Clarke: Now? Well, the problem is that’s what he’s been saying in all of his previous reports. You’ll recall that, after this telephone conversation, I asked Martin to provide me with half a dozen of his previous statements and what he was saying in his previous statements was absolutely contrary to what he’s just said here.

Mr Blake: Then he says: “… but what we can show is that nothing has been found to show that there is a problem in the integrity of the audit trail which is what has been used for the erm your evidence.”

You say: “So your view is that erm that if the defence were to suggest erm there is a problem with Horizon and therefore we can’t rule out that there might be other problems with Horizon what you say is as far as you’re concerned the integrity of the system is intact?”

He says: “Yes.”

So just summarising that conversation, it seems as though there are two bugs that you hadn’t previously been aware of –

Simon Clarke: Yes.

Mr Blake: – that he has confirmed exist and also that he can’t say that there aren’t more bugs in the system?

Simon Clarke: There’s a third strand, which to me was the most important, and that was that he knew, at the time of this conversation and beforehand, that those bugs were extant because it was he who had informed Second Sight of them, and that, to me, was the most important element of that conversation.

Mr Blake: Putting those all together, was that quite a bombshell moment for you?

Simon Clarke: Yes, it was.

Mr Blake: Is this the first time in your career where a conversation with a witness has been recorded in this way or is it at least unusual for you to have recorded it?

Simon Clarke: It’s unusual but it’s not the first time.

Mr Blake: Why did you feel it was necessary to record it?

Simon Clarke: I thought it was hugely important that we knew who told Second Sight of the bugs because, if it had been Fujitsu or Gareth Jenkins, then, frankly, Gareth Jenkins was in trouble and I needed a record of what was said. And just so that you understand the position – because when you sent this document to me you didn’t know who the author was or what the conversation was about and I explained it in my witness statement – I had said to Martin Smith “We ought to record this”. He recorded it on his mobile telephone and then I said to him “Can you transcribe it please?”, and clearly you’ve located it in the records and, frankly, thank goodness I said that.

Mr Blake: We’re going to come in due course to formal advice that was written on this issue –

Simon Clarke: Yeah.

Mr Blake: – but did you, at that point, have another conversation with somebody at the Post Office?

Simon Clarke: Ooh, possibly with Jarnail Singh. I certainly told somebody at Post Office orally. I don’t think it would have been Rodric Williams because, at that point, I had no contact with him, I hardly knew who he was. So, if anybody, it would have been Jarnail Singh. It’s highly likely that I would have said to him on the telephone “You’ve got problems”, and I would have explained the nature of the problem to him.

Mr Blake: Do you think it’s likely that you spoke to anybody else at that point –

Simon Clarke: No.

Mr Blake: – or just Jarnail Singh?

Simon Clarke: No, the only person I knew at Post Office at that time was Jarnail Singh and I didn’t actually know him; I just knew he was the contact for Martin Smith.

Mr Blake: We’re now going to come to the case of Samra and there is a hearing a few days after that conversation on the 1 July?

Simon Clarke: Day listed for trial.

Mr Blake: Yes, can we please bring up onto screen POL00172804. We’re going to spend a bit of time on your attendance note from that hearing.

Simon Clarke: That’s cool.

Mr Blake: If we scroll down, it’s a hearing note written by you?

Simon Clarke: Yes, if I signed it it’s mine.

Mr Blake: Yes, it has your name at the bottom, 1 July 2013.

There’s some background to the case at the top, paragraph 2 I’ll read. That says:

“All of the duplicate transactions were conducted over the counter through Horizon, this being the only portal through which Post Office Card Accounts may be conducted. Accordingly transactions are evidenced through entries appearing in Post Office Card Account statements. Those entries represent Horizon data.”

That’s, effectively, what you told Mr Jenkins in that conversation, that the evidence was fundamentally relying on Horizon data?

Simon Clarke: Yeah, I cringed if you saw because I hate using the word “evidenced” as a verb but yes.

Mr Blake: If we scroll down, please, to the bottom of paragraph 3, you say there:

“Further, whilst she has not directly suggested that Horizon data is wrong, there is an implicit suggestion that if the complainant’s accounts of not having made duplicate transactions is correct, then the fault must lie with Horizon.”

So an acknowledgement from yourself that, although it hadn’t been pleaded, it was –

Simon Clarke: It follows.

Mr Blake: – something that was highly relevant to that trial?

Simon Clarke: Yeah.

Mr Blake: “Recent information”, paragraph 4:

“The limited information available to me comes from a number of sources within Post Office Limited: Head of Litigation Hugh Flemington; Head of Criminal Law Jarnail Singh; and Gareth Jenkins of Fujitsu Services Limited.”

We’ve heard you talk about Jarnail Singh, we’ve heard you talk about Gareth Jenkins. Can you assist us with any conversation you had with Hugh Flemington at this time?

Simon Clarke: I don’t believe I have ever spoken with Hugh Flemington. I saw him the other day and didn’t recognise him. Information from Hugh Flemington, if I had had any – and it’s likely I had because of this – would have come through Jarnail Singh.

Mr Blake: Thank you. You say:

“I first became aware of the issue of bugs within the Horizon system on 27 June”, exactly as we’ve just been discussing.

Simon Clarke: Yeah.

Mr Blake: The Second Sight Report indicated that:

“… Horizon may not be ‘bug’ free. I am instructed that the report is to be provided to Parliament prior to publication, perhaps as early as Monday (1 July). I have not seen the report.

“Prior to 27 June I had seen no reference in any of the expert reports tendered for the prosecution in other cases to the existence or possible existence of bugs. On 27 June and through the following day I was instructed that, in a number of post offices, the Horizon system may have produced false balances.”

Then you say that you are informed of the following, and (i), if we scroll down please, over the page:

“All of the information used by Hewlett Packard is derived directly from Horizon.

“Horizon is not ‘bug’ free.

“Fujitsu Services Ltd had reported the existence of two bugs to the Second Sight committee.

“A number of bugs have been identified which have affected number of post offices although it is not clear to me that those are the same as disclosed to the Second Sight committee by Fujitsu.”

Now is that a reference to the Helen Rose Report or to some other conversation or to that Gareth Jenkins conversation?

Simon Clarke: No, it’s more basic than that. Fujitsu gave the bugs names. I think they gave a bug a name called Bug 64 and then another bug was called the Callendar Square bug and then there was something else called the Falkirk bug, and then somebody told me that the Falkirk bug was the Callendar Square bug. So it was a confusion in their naming of the bugs, which caused this paragraph, which made me not sure whether there were two or more.

Mr Blake: Where did that confusion come from; can you recall who the conversation was with?

Simon Clarke: Again, most of this would have come through – oh, in fact, I mention is there, Bug 68 – most of it would have come through Jarnail Singh and through him via Martin Smith, or directly.

Mr Blake: You then say:

“The two bugs I’m instructed of by [the Post Office] are: Bug 14, so called because it affected 14 post offices, and Bug 68 (named for similar reasons?).”

So you weren’t clear whether that was the number of branches affected or some other reason. It could, in theory, have been the 68th bug that they had found?

Simon Clarke: Yes, this exemplifies the confusion.

Mr Blake: “vi. The effect of Bug 14 has been the appearance of incorrect financial balance information in the system, known to include the false indication of financial data.

“Hurst Lane Post Office …”

So that’s the one in this particular case.

Simon Clarke: Yeah.

Mr Blake: “… is not one of those post offices identified as having been affected.

“The report’s authors were instructed to investigate a number of cases of apparent Horizon error, including at least one where prosecution was contemplated. That prosecution would have been relied heavily upon data obtained from Horizon …”

Now, I don’t think that is information that we saw in that Gareth Jenkins recording. Do you know where that information came from?

Simon Clarke: Again, it would have come through Jarnail Singh, possibly from people behind him.

Mr Blake: Paragraph 7:

“Once we became aware of the timetable for publication of the Second Sight Report and its preview to Parliament, Martin Smith and I and with Head of Criminal Law Jarnail Singh’s agreement, contacted Gareth Jenkins in order to establish what was known about the status of Horizon integrity.”

So it seems as though there was a conversation with Jarnail Singh, where he agreed to you phoning up –

Simon Clarke: I accept that, yeah.

Mr Blake: There’s then a summary of the phone call. I’m not going to go through those points. We have already read the transcript. Can we scroll down to paragraph 8, please. You say:

“The information may be distilled thus: Fujitsu Services Limited and Post Office Limited after aware that Horizon had suffered bugs – Bug 68 and Bug 14 (it is highly likely that the two bugs reported to Second Sight by Fujitsu are Bugs 14 and 68). One bug has been neutralised, the other remains extant. The extant bug affects Horizon to a limited degree and at specific post office locations; it manifests itself by producing false balances; whilst Fujitsu Services Ltd continue to have faith in the integrity of Horizon, and whilst there is no other indication of any more bugs, further possible bugs within Horizon cannot be ruled out.”

Similar words to those used by Gareth Jenkins in that conversation?

Simon Clarke: And forgive me, it’s stating the obvious.

Mr Blake: I please go over to page 6, paragraph 14. This is – you address the law of disclosure and then you go on to address public interest immunity.

Simon Clarke: Yeah.

Mr Blake: You say at paragraph 14:

“In some circumstances it is possible to apply to a judge for a certificate not to disclose material to the defence where that material was subject to a public interest immunity. Such applications most often occur in cases involving national security or where police have used informants and undercover officers. The list of such cases however is not closed: in a case where the public interest may be the prevention of a widespread loss of confidence in a public institution, or the loss of trust in a system operated by such an institution, or the prevention of journalistic speculation as to the efficacy of systems almost universally relied upon by the public, there may be an argument that the protection of a [public interest immunity] certificate is appropriate.

“PII Hearings are always held in chambers, that is, in the absence of any defendant or defence representative, and usually in the judge’s chambers (retiring room). No other person may be present other than a court clerk, any relevant police officer and the prosecuting solicitor.”

Over the page, please, you say:

“In this case I took the view that such an approach to the problem might be appropriate. Accordingly Martin Smith and I, in conjunction with Jarnail Singh, decided that the best way forward was to seek a ruling (the grant of a PII certificate) from the trial judge that we need not disclose to the defence the fact that the Second Sight Report was to be presented to Parliament today; and that the report contained references to the existence of bugs in Horizon both past and present; and 2) to adjourn the trial until such time as we were able to fully comply with our disclosure duties.”

First of all, can I just ask, that hearing took place in the absence of notice to the defendant; is that correct?

Simon Clarke: No, it’s not correct.

Mr Blake: That’s not correct?

Simon Clarke: No. It is common practice amongst counsel that, if a PII application is to be made, that defending counsel will be informed informally at court by prosecuting counsel and that’s what I did.

Mr Blake: So you informed defence counsel and then had the PII hearing.

Simon Clarke: Yeah. Can I just add to that that the proposition that I could just go and see the judge without telling defence counsel would, at the very least, have prompted defence counsel to say, “What’s going on?” So defence counsel would have had to have been informed and he was.

Mr Blake: If we scroll down, paragraph 17:

“The effect of the late development in this case is that we could not commence this trial as scheduled. To do so would be to mislead the court into believing that we had complied with our duties as prosecutor and that, we cannot contemplate.”

Simon Clarke: Yes.

Mr Blake: There isn’t detail here about what the judge was actually told?

Simon Clarke: No.

Mr Blake: Can you assist us with – I mean, we see paragraph 14, for example, about the possible heads of public interest immunity that could be argued. What was it that you were saying to the judge in chambers that persuaded him to grant a PII certificate?

Simon Clarke: Pretty much what we knew. I told the judge about the issue with the expert, that bugs had been identified, that we could no longer rely on our expert. I told the judge that there was a report due to be published to MPs and something that had been impressed on me by Post Office through Jarnail Singh was the issue of Parliamentary privilege. It is possible that it would have been a breach of Parliamentary privilege to have effectively produced the report before Parliament had released it for production. I told the judge that and that really was the basis of the application.

I wanted to comply with my disclosure duties but I couldn’t, on that day, largely because I believed Parliamentary privilege prevent me from doing so and so that’s what I said to the judge.

Mr Blake: You’ve said in paragraph 14 that a potential argument could be made about journalistic speculation about the system. Was that something that was raised before the judge?

Simon Clarke: It would have been. What I’ve raised, I’m reluctant just to settle on just one point in paragraph 14 as a single compelling point. The overall issue was all of them taken together suggested to me that publishing the report to the defence at that time would be inappropriate.

Mr Blake: Paragraph 18 then says:

“The judge, His Honour Judge Chambers, was ultimately persuaded of the arguments advanced in support of the grant of a certificate.”

Then certain orders were made.

Simon Clarke: Yeah.

Mr Blake: “Defence to be told that a report had been commissioned.

“The prosecution to be permitted to withhold information …

“Non-disclosure Order to be temporary and reviewed at a ‘mention’ hearing.”

Then adjourned for eight weeks. If we scroll over the page –

Simon Clarke: Before you do that, can I just say, that is everything I asked for from the judge. I did not want a PII certificate that prevented disclosure completely. I was looking to buy time so that Parliament could deal with the report and I could then comply with my disclosure duties, and that’s why the judge timed me. I think he limited it to eight weeks. I asked for less but I think he gave me eight weeks.

Mr Blake: Yes, well, the case was adjourned for eight weeks.

Simon Clarke: Yeah, but I only wanted a short period in order to allow for the publication of the report so that I could then comply without worrying about what Parliament was doing – comply with my disclosure duties.

Mr Blake: Paragraph 19:

“The judge also commented that this situation should never have arisen and that the Post Office were to provide a written explanation as to why this information had been withheld from solicitors and counsel until as late as last Thursday.”

So it seems as though you explained to the judge that this was all news to you?

Simon Clarke: Yes. I’d only learnt a few days before. I smile because he was a bit more scathing about the situation than that paragraph suggests. He was quite upset.

Mr Blake: That’s because a trial was due to take place that had to be vacated or some other reason?

Simon Clarke: Not just because, effectively, we were wasting the court’s time by aborting a trial that was due to start that day but because the prosecution had plainly not done that which they ought to have done in time for the trial.

Mr Blake: Paragraph 20, you provide a comment and conclusion. You say:

“I am not particularly concerned at the judge’s requirement for a written explanation from [the Post Office] – to a large degree the Heads of Litigation and Criminal Law were in much the same position as were Martin Smith and I and accordingly I have no difficulty insisting with the preparation of an explanation.”

You say there the Heads of Litigation and Criminal Law were in the same position. What do you mean by that?

Simon Clarke: That’s what I’d been told, that they’d only just discovered the existence of the bugs at roughly the same time that I did and, if that was right, then they were in the same position we were.

Mr Blake: Was that a specific conversation with the Head of Litigation and the Head of Criminal Law?

Simon Clarke: No, it would all have come through Jarnail Singh.

Mr Blake: Thank you. Paragraph 21, you say:

“Of greater concern is the absence of any reference to Bug 68 or Bug 14 any of Fujitsu Services Limited’s statements served in support of other criminal prosecutions. This is a matter to be returned to at the appropriate time.”

So this is your concern about the potential impact on historic cases that relied on Gareth Jenkins’ evidence?

Simon Clarke: Yes, it is and I think what I’m doing here is flagging up that I’m going to advise to, as I did on 8 July and 15 July, I think I’m sort of pointing in that direction.

Mr Blake: Was that something you mentioned to the judge at the PII hearing, that there were concerns about a witness who had been used in both –

Simon Clarke: Oh yes, oh yes. It would have been wrong to with hold that.

Mr Blake: If we scroll down and over the page, please, paragraph 23 says:

“It is also the case that we shall have to review any other prosecution which relies upon Horizon data, for the same reasons.”

So you’re flagging there what became ultimately your review?

Simon Clarke: Yeah, to a degree the writing of these documents involves a thought process which helps you to marshal where you want to go and that’s, I suspect that’s the beginning of me thinking we need to go wider than this case.

Mr Blake: Finally, paragraph 24 says:

“Finally, it is worth commenting on the reasoning behind my advice that we seek a PII certificate in this case. [The Post Office] were rightly, in my opinion, very concerned at the potential adverse publicity which would inevitable have been generated by the revelation of the existence of a (draft) Second Sight Report into Horizon. To permit this information to enter the public domain at such an early stage would have been to encourage extremely unhealthy and likely virulent speculation as to the content of any report, most probably in the national press. Such speculation would have seriously damaged the reputation of [the Post Office] and would have great any undermined public confidence in both [the Post Office] and [the Post Office] systems. Our objective was to avoid such consequences: that objective we achieved.”

Now, that isn’t anything about Parliamentary privilege.

Simon Clarke: No.

Mr Blake: That is about publicity and avoiding publicity. So do you accept that a significant part of the reasoning behind seeking that certificate was to avoid speculation and publicity?

Simon Clarke: I do.

Mr Blake: Looking back at it, do you think it was a proper application to have been made?

Simon Clarke: Yes. I would go so far as to say, if I were in the same situation now, with the same information I had, I would make that application again. That is, if there was a report which was subject to Parliamentary privilege, and it was important that Parliament saw the report first – and we’ve all seen in the press the number of times Parliament has complained about people saying things before going to Parliament – I would make the application again.

I consider that the issues that I had raised fell squarely within the main authority on the subject, which was Re H and Re C, where it’s suggested that the categories to which public interest immunity applied were not closed, and I thought this was a proper category to make the application.

Mr Blake: Mr Clarke, that all sounds very reasonable, but paragraph 24 does not mention at all Parliamentary privilege. Paragraph 24 is very much about the reputation of the Post Office and undermining public confidence in both the Post Office and Post Office systems. It doesn’t say anything about privilege.

Simon Clarke: I agree but, to an extent, I disagree with you about the import of paragraph 24. One of the things we were concerned with – it wasn’t just – forgive me, it wasn’t just Parliamentary privilege we were concerned with, we were also concerned with – I, because I made the application and I advised the application be made – I was concerned with the proposition that if the existence of the report and the existence of the suggestion that there were bugs in Horizon had come out before the report had been presented to Parliament, then the speculation would be damaging, not just to Post Office, but to the entire financial system upon which Post Office was based and, because the speculation could be inaccurate, it could be wild, for all the reasons I suggest here.

Mr Blake: Insofar as your application was, in fact, based on Parliamentary privilege, is this paragraph here something that we are all guilty of, which is perhaps gloating in an attendance note about something that you know the client would be happy about?

Simon Clarke: I hate the word “gloating” but I think you’re probably right. Yeah.

Mr Blake: That’s 1 July.

Simon Clarke: Can I just make the point, which I think is quite important, is that the judge did grant the application so the suggestion that it was an improper application, I would go so far to suggest, can’t stand because the judge granted it and the judge, therefore, felt that it was a proper application to make. That sounds slightly defensive but it’s a point I make because, had it been an improper application, the judge would have said, “I’m not granting this”.

Mr Blake: What we don’t have is the information the judge was presented with. I haven’t made a suggestion that it was an improper application but what I would suggest is that paragraph 24, looking at that, it seems as though the objective that is set out in paragraph 24 is not itself a proper objective to make a PII application.

Simon Clarke: I think I agree with that. The reason I speak about the propriety of the application is I have heard it suggested elsewhere – and perhaps I’m getting ahead of myself and shouldn’t –

Mr Blake: You’re protecting yourself from Mr Moloney, which is –

Simon Clarke: Well, I suppose if you want to put it that way, yes. I saw what Mr Moloney asked of Martin Smith and I disagreed quite seriously with the propositions that were being put.

Mr Blake: Yes. Mr Moloney didn’t suggest it was improper, just –

Simon Clarke: Oh, fine then. Thank you, I’m happy.

Mr Blake: In your witness statement, paragraphs 43 and 44, you say that you went to the Post Office’s offices on 3 July, so a couple of days after this hearing.

Simon Clarke: Yeah, if that’s what it says, yeah.

Mr Blake: I think, you say in your statement, most likely with Rodric Williams and Jarnail Singh. Are you able to assist us at all with how likely that is?

Simon Clarke: Very likely. I would have that to have met him very early on and so it’s – I suspect it was almost inevitable that I would have met him at that meeting. I can’t think of a reason why I wouldn’t have met him at that meeting. It makes absolute sense.

Mr Blake: When you say “him”, we know you had conversations with Jarnail Singh –

Simon Clarke: Yeah.

Mr Blake: – what about Rodric Williams?

Simon Clarke: No, that’s what I’m saying. I think it’s inevitable that that’s when I first met Rodric Williams.

Mr Blake: Thank you.

Simon Clarke: I think that’s absolutely right.

Sir Wyn Williams: Mr Blake, what number paragraph was that, did you just refer –

Mr Blake: 43 and 44.

Sir Wyn Williams: 43 and 44, thank you.

Mr Blake: Am I right in saying you never met Hugh Flemington?

Simon Clarke: I have no recollection of ever having met him. He may have been in a room with me, I don’t know. I did not recognise him when I saw him on the screen the other day. I can’t put it any higher than that.

Mr Blake: Thank you. It’s at that meeting that you advised there should be this central hub, I think, later followed up in writing?

Simon Clarke: Likely, yes. I think that’s right.

Mr Blake: Did you, at that meeting with Rodric Williams, explain the real concerns that you have explained to us about Gareth Jenkins?

Simon Clarke: Yes. It was the point of the meeting.

Mr Blake: What was the reaction to that; what do you recall of the reaction to that?

Simon Clarke: I expected surprise, shock, horror; I did not see any of those things. He appeared to me to be taking it into his is it right and his concern was with where we went from here.

Mr Blake: Did it seem as though you weren’t providing him with new information?

Simon Clarke: I think it would be unfair to say that, I can’t look into his mind. All I can say is I did not see the surprise and astonishment I expected.

Mr Blake: I’m just thinking about a mid-morning break. I’m coming to a point but I think let’s go on –

Actually, no, sir, I think if we’re going to take two morning breaks, I think now is actually an appropriate time.

Sir Wyn Williams: All right. That’s fine. Rather than, say, 10.58, let’s say 11.00.

Mr Blake: I think it’s only a ten-minute – oh, yes.

Sir Wyn Williams: Yes, I’m giving you 12 minutes, Mr Blake.

Mr Blake: Thank you very much, sir.

(10.48 am)

(A short break)

(11.00 am)

Mr Blake: Thank you, sir. Can you see and hear me?

Sir Wyn Williams: Yes, yes.

Mr Blake: Thank you.

Mr Clarke, we left off on the case of Samra. It’s right to say that, in that case, you had disclosable information about bugs, errors and defects in Horizon, correct?

Simon Clarke: Correct.

Mr Blake: It was a case that involved Horizon?

Simon Clarke: Yes.

Mr Blake: It’s a case that the effectiveness or inadequacy of Horizon could have affected the outcome?

Simon Clarke: Yes.

Mr Blake: Public interest immunity enabled that information to be hidden from the public for the time being?

Simon Clarke: Yes, for a limited period.

Mr Blake: The result was that you didn’t need to say in open court something that you would have had to have said, had that not taken place via the PII mechanism?

Simon Clarke: I don’t think I would have had to have said it in open court; I simply would have had to have disclosed the material to the defence and then they would have made what they would of it.

Mr Blake: Exactly, so it would have been used in open court –

Simon Clarke: Yes.

Mr Blake: – had it not been covered by the envelope of public interest immunity?

Simon Clarke: Yeah, that’s correct.

Mr Blake: I’m going to move on to what happened to cases where there had been convictions or ongoing prosecutions or some ongoing actions and disclosure that was or wasn’t made in those cases. Can we please look at POL00145145, please. Thank you. If we please could look at page 5, this the very same day as that public interest immunity hearing. We have an email from Andrew Parsons, if we scroll down to – it’s an internal email, but you’ll see it’s forwarded to you. He attaches ten letters to subpostmasters, for review. Are you aware – I’ll take you to those letters but I think you’ve seen them quite recently – they are letters about a bug called B14; do you recall that issue?

Simon Clarke: Vaguely, yes. I’ve seen the documents recently, yes.

Mr Blake: Mr Parsons sends certain subpostmasters from those 14 branches letters disclosing that issue. Could we please turn to page 1. It’s what we know as the local suspense account issue.

Simon Clarke: Okay.

Mr Blake: If we look at the bottom of that page, please, we have an email from Rodric Williams to you and to Martin Smith, and he says:

“Simon, Martin,

“Two issues from the conference today …”

So it seems as though you had a conference on 3 July, in fact that’s the one we just talked about, is it?

Simon Clarke: Yes.

Mr Blake: So we know, as we see – I mean, it’s copied to Hugh Flemington, does that indicate in any way that Hugh Flemington might have been at that meeting?

Simon Clarke: No, he was copied into lots and lots of emails, I think for information purposes. As I understood it, he was – I may be wrong – I think he was Head of Legal at Post Office, so it’s not surprising he was copied into everything.

Mr Blake: “1. Letters to Branches

“I attach the letters we propose sending to branches affected by B14.”

Then he refers to the Merthyr Dyfan letter, which concerns a Costcutter branch:

“… which might have involved a Police prosecution of a branch assistant.”

They’re no clearer on the status of that investigation/prosecution.

If we look at the final paragraph on that page, it says:

“During our conference, you explained prosecuting counsel’s duty of disclosure. Please also net us know whether we could satisfy our duty of disclosure, (ie that we know of an issue which might be relevant to criminal proceedings) by notifying the police/Costcutter prosecuting counsel of B14 so that they can take a view on whether they should disclose it to the defence [according to] their duty.”

Your response is at the top of the page and you respond as follows:

“All letters. Is it necessary to inform each of the offices of the fact that other branches are affected? It seems to me that these letters will somehow get in the public domain (Justice for Subpostmasters Alliance??). If that were to happen then again we run the risk of adverse speculation at least until Second Sight is published (if it is to be).”

Very much echoing what was said at the end of that attendance note about adverse publicity, adverse speculation. It does seem as though you were, as at 4 July, particularly concerned with limiting adverse speculation.

Simon Clarke: I agree.

Mr Blake: “Merthyr Dyfan. In this case there are competing interests: open and transparent dealing by the Post Office as against the proposition that this is likely to be an appeal case. Could you hold off on this letter for a short while – I will come back to you this afternoon once I’ve more fully considered the position and seen what [the Post Office] have forwarded to Martin Smith.”

Now, you’ve explained in your statement that this was some sort of concern about the sub justice (sic) rule, can you assist us with –

Simon Clarke: Sub judice rule?

Mr Blake: Yes.

Simon Clarke: Probably not that. I’ve always been very cautious about the Court of Appeal and involvement in potential appeals because, as far as I’m concerned, the Court of Appeal is the final arbiter in whether or not convictions are safe or otherwise, and so I’m always very careful when it – and, to this day, I’m very careful about what I do and say in the knowledge that the Court of Appeal may end up reviewing what’s been done. So I always approach issues of appeal with caution and that’s what I’m doing here.

Mr Blake: You’ve described these as competing interests. On the one hand, you have being open and transparent –

Simon Clarke: Yeah.

Mr Blake: – on the other hand, you have the potential impact on an appeal. It certainly sounds as though you are concerned that, if you are open and transparent, it may assist the appeal.

Simon Clarke: I think that’s reasonable, a reasonable assertion.

Mr Blake: Yes, and you think that is not the best approach or best advice that you could have been giving at that time?

Simon Clarke: Again, I think that’s right. I would ask you to remember that we’re on the 4 July so, literally, only a few days into my involvement in the entire Post Office process, substantively, with quite limited information and, effectively, trying to preserve the position until I knew what I was doing. I think that’s what it comes down to. But I accept that the commentary you pass on this is perfectly valid.

Mr Blake: Could we please look at POL00297182, same day, a bit later on. You respond, Simon Clarke, yourself, to Rodric Williams, although –

Simon Clarke: It’s not up.

Mr Blake: – it’s forwarded. Yes, it’s POL00297182.

I think maybe you wrongly or inadvertently sent it to Martin Smith first but it’s certainly forwarded to Rodric Williams and it’s to Rodric Williams. Perhaps you thought Martin Smith was going to forward it. Are you able to assist us at all?

Simon Clarke: Looking at this, it’s likely that I forwarded it to Martin Smith for him to pass on. Again, this was very, very early on in my dealings with Rodric Williams and so it’s likely I would have thought it had better gone through Martin to Rodric than through me direct but that’s just a silly protocol thing.

Mr Blake: If we scroll down it says, as follows:

“Rodric, what we had initially believed to be perhaps one of the more difference cases in fact turns at to be one of the easiest. This defendant is awaiting his trial and accordingly has not been convicted and sentenced. Because we are …”

Just pausing there, so it seems as though it was not an appeal case that you were concerned about because they haven’t yet been convicted?

Simon Clarke: I think that must be right. Can I add this: this also looks like it’s a case being prosecuted not by Post Office but by the Crown Prosecution Service.

Mr Blake: Yes, and, in light of that, your advice is as follows:

“Because we are not the prosecutor our duty extends to the following:

“1. Identify the name of the defendant;

“2. Identify the prosecuting CPS area …

“3. Inform the CPS area of the existence of B14; that it has affected [that] branch; and that a report is due soon;

“4. Disclose the Second Sight Report to the CPS once we have it.

“If we follow this route the disclosure ‘ball’ will then be in the CPS court and our duty is satisfied.”

Just pausing there, is that right? I mean, you had more information than just the existence of B14 and the fact that the Second Sight Report was going to be published. You had that transcript of the conversation with Gareth Jenkins; you had your knowledge about Gareth Jenkins having been involved and about his reliability; you had the various other discussions; I don’t know if by this time you had the Helen Rose Report or not but you certainly that more information than is being suggested be disclosed. Are you still confident that that was the right advice to have been giving?

Simon Clarke: It’s right as far as it goes, that is the duty is to disclose to the CPS so that the CPS then take over responsibility for the general disclosure function but I agree with you that there should have been more.

Mr Blake: You say:

“They will know the defence being run and if the defence is based on the proposition that Horizon may be responsible or that it is implicit in the defence (per Samra) then they will disclose. If not then they will not!

“I think contact with the CPS should be made by us at this end so as to maintain a firewall between [the Post Office] and this overall problem; so that you are seen to be acting independently and transparently through lawyers; and because we are in any event dealing with the other reviews.”

Can we please move on to POL00145201. If we could start on page 2, this is going to assist us with the timing of various things. We see there 4 July, Hugh Flemington is sending you a first rough draft from Second Sight of one half of the Interim Report. That is a significant part of that report that details the two bugs.

Simon Clarke: Yeah.

Mr Blake: If we go on to page 1, Martin Smith sends an email at the bottom of this page, saying:

“Our advice overall with regard to disclosure has not changed. The disclosure of a partial report would not meet with our duties or help the current situation. I think the disclosure of a partial report would provide partial information and give rise to adverse publicity and speculation. It would be far better to advise once we have seen the entire report. Having said that, the Second Sight Report would not need to be disclosed in every case – that decision would be taken on a case-by-case basis. In many cases, it will not be disclosable.”

He says “our overall advice”; is it fair to suggest that you inputted into this?

Simon Clarke: Yeah.

Mr Blake: To what extent was it his advice, to what extent was it your advice? Whose typing was this, for example? Do you think you sent it to –

Simon Clarke: It’s got my style about it. I can’t say I wrote it but it looks as though I’ve given some real input into it.

Mr Blake: We know the Second Sight Report is almost complete. 5 July, you are expressing concerns again about adverse publicity and speculation.

Simon Clarke: Yeah, I agree.

Mr Blake: Can we go to POL00129740. Now we’re going to look at the draft letter to the Merthyr Dyfan post office and the one that was ultimately sent. So there are, in fact, two documents that I’d like to bring up on screen, side by side. This one is the draft letter that was sent to you, and we saw the covering email. Then I want to look at the final letter, and that is POL00002213, at page 16. Thank you very much. If we could go back one page on the left-hand side, thank you.

So, on the right-hand side, we have that earlier draft that you commented on; on the left-hand side, we have the final version which was sent on 5 July, so the day after that first draft Second Sight Report.

If we could look at the whole of the document on the left-hand side, please. Thank you very much. Let’s keep them side by side and focusing on the right-hand side, first paragraph, it says:

“As a result of central data reviews in the Post Office Finance Service Centre, we have identified a small number of branches whereby a system error in data archiving processes has led to an error in the calculation of losses and gains at branch level.”

Just pausing there, is that right? Are you aware that the basis for that finding, that particular bug, was a result of central data reviews in the Post Office Finance Service Centre?

Simon Clarke: No, as I understood it, the bug was informed by Gareth Jenkins/Fujitsu to Second Sight.

Mr Blake: It then says:

“Your branch is one of that small number affected.”

We can see on the left-hand side that sentence: “Your branch is within of that small number affected” has been removed in the final draft; do you see that?

Simon Clarke: I see that.

Mr Blake: Then says:

“We apologise for any confusion this matter may have caused and we want to assure that we have subsequently worked with our suppliers to understand the root cause of the issue and take action to resolve it. You may however not have been aware of this matter at the time but we nevertheless felt it important to make you aware of this incident and its resolution.

“The purpose of this letter is to summarise the outcomes of this review and to confirm the remaining steps which we’ll be taking to conclude this incident.”

Those 2 paragraphs are the same in both.

Simon Clarke: Mm-hm.

Mr Blake: But then it’s the next paragraph on the right-hand side:

“The occurrence of this amount as a discrepancy has been confirmed as relating to a specific and unusual set of circumstances which are not due to any mistake by yourself.”

So the suggestion, the clear statement there, from the Post Office that it wasn’t the subpostmaster’s fault, that doesn’t seem to have made it into the final version.

Then if we scroll over, both pages, please. In fact, on the left-hand side, if we ask could stay with the first it may assist. That top paragraph on the right-hand side:

“This has impacted only 14 branches and we are issuing similar correspondence to all parties concerned to confirm that the issue is understood and the proper remedial action has been taken.”

That doesn’t appear in the final letter either, can you see that?

Simon Clarke: I’ve not – oh, I see, yes. I see that.

Mr Blake: Now, we saw your advice earlier was a concern about notifying the branches that there were other branches and the publicity that that might generate.

Simon Clarke: Yes.

Mr Blake: Do you recall seeing that advice?

Simon Clarke: Yeah.

Mr Blake: It looks very much as though that advice was adopted by the Post Office, who then removed any mention to the individual subpostmaster that there were other branches that were affected.

Simon Clarke: It does.

Mr Blake: Yes. What part of a criminal prosecutor’s duty do you see it as to be concerned with adverse publicity?

Simon Clarke: None.

Mr Blake: So the advice that you gave to the Post Office in respect of this letter, do you think that was appropriate or inappropriate advice?

Simon Clarke: It was ill judged and inappropriate.

Mr Blake: I’d like to now move on to the –

Sir Wyn Williams: Before you do, Mr Blake, in defence of the author of the final letter, if you look at the first paragraph, it does indicate in that that more than one branch was affected, does it not?

Mr Blake: It does. Although it does remove –

Sir Wyn Williams: It waters it down, let’s put it like that, yes?

Mr Blake: Yes, absolutely.

Sir Wyn Williams: Fine. Thanks.

Mr Blake: Thank you. If we could take that down, please. Moving on to the general advice and sift, can we please look at POL00006365.

So we’re now at 8 July, so we’re a week after that public interest immunity hearing and you have written your general advice about – if we scroll down, it begins addressing alternative Fujitsu experts and how Gareth Jenkins should be replaced, and we can see there at paragraph 221 that the Second Sight Report is about to come out, it’s due to be published at 6.00 that evening.

Simon Clarke: Yeah, just in terms of chronology, I would ask you to recall that I’m still only eight or nine days into this process so it’s still very much a learning curve for me.

Mr Blake: If we turn to page 3, please, it is the subject of the “Start Date for the Review Process”?

Simon Clarke: Yes.

Mr Blake: I’m going to read those three paragraphs. It says:

“A number of start dates are suggested: 12 months back from today; the date of separation of [the Post Office] from [Royal Mail Group]; the initial [Horizon Online] migration date; others.

“Considerations as to the selection of the start date include proportionality; resourcing; transparency; and [the Post Office] reputation. I have come to the view that all of those considerations militate in favour of a date close to the initial [Horizon Online] migration date of 2010, perhaps using 1 January of that year.

“I arrive at this view not least because any [subpostmaster] prosecuted prior to that date would have been prosecuted using original Horizon data; any sentence of imprisonment, Unpaid Work or fine would by now have been completed; and the publicity which is bound to arise once [Second Sight] has published will place ‘older’ defendants on notice.”

Just pausing there, you said that you had only very recently got involved. Do you think you were sufficiently informed by that stage to have been giving this advice?

Simon Clarke: Can I ask you, please, to take me to my statement, paragraph where I deal with this because I have thought very carefully about this and I want to confirm what I said to you.

Mr Blake: Yes, please do let us know which paragraph –

Simon Clarke: I’m struggling to find it, to be honest, but I did deal with it.

Mr Blake: Can you try your best without referring because we have what’s in your statement, it would be best –

Simon Clarke: I stand by what I wrote in my statement. Somebody has put my statement up now.

Mr Blake: Yes, but I don’t intent to take you to any particular paragraphs –

Simon Clarke: No, can we go back to the document you were asking me about, please?

Mr Blake: What I’d really like is just your reflections as to whether, at the point you are writing this, you thought that you had sufficient knowledge about to be these cases to make such a significant judgement.

Simon Clarke: This is in relation to the start date?

Mr Blake: Yes.

Simon Clarke: Yeah. I think I had sufficient knowledge to make the decision about the start date because the most important factor in that respect was that we had been told that, on 1 January 2010, the new online system had been rolled out, so to speak, and that every branch had been audited prior to that rollout to ensure that everything balanced properly and so it was a good benchmark to say, from this date, there were no problems with Horizon and Post Office Accounts, and so anything moving forward from that date could be inspected to see whether or not there was an issue with the bugs, et cetera. Prior to that, we were dealing, I think, with an old system.

Mr Blake: That’s paragraph 132 of your witness statement –

Simon Clarke: Oh, thank you.

Mr Blake: – and that’s exactly what you’ve said.

Simon Clarke: Thank you.

Mr Blake: It’s difficult to understand why an audit at the end of Legacy Horizon/beginning of Horizon Online would make a difference in terms of that date. Can you elaborate on that?

Simon Clarke: Oh, yes, because on the date the audit was done you knew that there were no discrepancies in the accounts, you knew there were no questions about whether or not the relevant subpostmaster had fallen into error or made mistakes or even had committed offences. It was a very clean start point.

Mr Blake: But what if you had been prosecuted before the change to Horizon Online, had stopped becoming a subpostmaster, were in prison, may have had your life ruined, your children’s lives ruined; how would the audit at the end there have assisted at all with knowing whether they were fairly prosecuted?

Simon Clarke: It wouldn’t have done but our understanding, at the time this decision was made, was that the two bugs we had been told about affected the Horizon Online system, which only started after 1 January.

Mr Blake: But you also knew, at that time, that Gareth Jenkins was an unreliable witness –

Simon Clarke: We did.

Mr Blake: – who had given unreliable evidence –

Simon Clarke: We did.

Mr Blake: – and you knew that a system, such as Horizon, could be capable of having additional bugs?

Simon Clarke: Old Horizon, as well, yes, we did.

Mr Blake: So, with that in mind, it may seem to some – although we know Mr Altman agreed with you – that that date was chosen, given that people had been prosecuted for a number of years before, some, including Ms Misra’s case, although that was ultimately looked at, involving Gareth Jenkins?

Simon Clarke: Well, there are two parts to my answer to that question, I think. The first is that we had to choose a date. It seemed, at the time, that, for the reasons I’ve given, it was the most logical date to choose. But we then learnt very quickly after that that Brian Altman had been instructed to supervise us – the word “supervise” was used: to supervise us – and one of the things he did was he looked at the start date, considered the rationale behind it and agreed with it. And had he said, “I don’t agree with that start date, we should go back further”, I don’t want to push responsibility on to somebody else because I stand by the decision I made.

Mr Blake: I mean, he was –

Simon Clarke: But –

Mr Blake: – reviewing the advice you’d already given.

Simon Clarke: Forgive me. We had given the advice that the start date should be 1 January. Brian Altman reviewed it and said, “I agree with the” – whatever language he used – “I agree with the start date chosen by Mr Clarke”, that vindicated my decision. If he had said, “No I think you should go back 10, 15, 20 years”, I have no doubt that that’s what we would have done.

Mr Blake: If we look at this now, though, the very first phone call you had with Gareth Jenkins, he said he can’t rule out there being other problems, which made a lot of sense to you; second Sight Interim Report had identified two bugs impacting 76 branches, admittedly involving Horizon Online; Helen Rose Report, it’s not clear yet whether you’ve read it by this date or not but that also raised issues of Horizon integrity issues.

Did this not all cause you to think that there might be some issues with what we know as Legacy Horizon?

Simon Clarke: It didn’t at the time, I rather suspect largely because we had followed the route that 1 January 2010 was the appropriate start date and, if you want to suggest that, in a sense, that put blinkers on us going forward, then I think that would probably be correct.

Mr Blake: Yes, because all prior assurances you had received had proved to be wrong?

Simon Clarke: Yeah.

Mr Blake: Did you at any stage, other than today, look at it and advise that, actually, “We might want to rethink the start date”?

Simon Clarke: Yes, over the sift process, it became clear to us – perhaps we were rather dim about it but it became clear to us that the issues with Horizon extended back before 1 January 2010 and we started receiving cases for review that went back before that. I’m not convinced we received every case that had been prosecuted but we did expand the ambit of the Horizon – the pre-1 January review but I can’t say when that took place. And I think, in the end, we reviewed something like – I’ve got a figure of either 400 or 700 cases but we reviewed a lot of cases, and some of those would have been pre- January 2010. So we did go back after a time.

Mr Blake: Not a comprehensive look?

Simon Clarke: No, I don’t think that was. No, I think you’re right.

Mr Blake: Consideration, such as the fact that a sentence of imprisonment or unpaid work or fine would now have been completed and therefore you shouldn’t look at them, do you look back at them and think that wasn’t the best advice?

Simon Clarke: Yeah, I think probably I do.

Mr Blake: A separate criticism of the review is regarding independence and an alleged lack of independence; what do you say about that?

Simon Clarke: Generally or specifically? In general terms, I don’t think there was any real issue of conflict in the review.

Mr Blake: Who was carrying out the review?

Simon Clarke: Well, there were two aspects to it. The first aspect was that every case has to be sifted to determine whether or not Horizon figured in the prosecution evidence. If Horizon didn’t figure in the prosecution evidence and an example would be there was a case where an SPMR was taking money from the Post Office and loaning it to family members, that’s clearly not a Horizon case, then they were put to one side. If it was flagged up – and I think the threshold was quite low – if it was flagged up as a Horizon issue case then it was reviewed by either me, Harry Bowyer and we had three or four external counsel that we instructed on an ad hoc basis to come in and conduct reviews as well.

Mr Blake: Would you be surprised if I said that you and Harry Bowyer, in terms of the sifts, reviewed 76 of 81 sifts?

Simon Clarke: Not at all.

Mr Blake: You reviewing 33, him 43?

Simon Clarke: Not at all.

Mr Blake: In those circumstances, do you think it can fairly be characterised as a review that’s being carried out by an independent firm?

Simon Clarke: Yes.

Mr Blake: But the same firm that had been prosecuting on behalf of the Post Office, do you think it can fairly be described – even if you say, “Yes, I looked at this and I was personally independently minded”, do you think it can fairly be characterised as a review being carried out by an independent firm?

Simon Clarke: I can see why people might think otherwise. For my own part at the time, I didn’t. But I accept that there is a view which goes, yes, it actually probably wasn’t as independent as it ought to have been.

Mr Blake: I’m going to move on now to the Gareth Jenkins advice.

Simon Clarke: I would also accept, forgive me for interrupting you – I would also accept, now that you’ve given me the numbers, that there might also have been a degree of becoming case hardened by reviewing so many cases. I accept that’s a possibility as well.

Mr Blake: What do you mean by that?

Simon Clarke: Well, when you review case 1, you’re absolutely fresh at it and much more vigorous, I expect. By the time you get to case 35 it’s inevitable, human nature tends to dictate that you’ve seen it all before and perhaps you become slightly more – what’s the word – cynical about what you’re doing. I accept that, I think that’s an appropriate comment to make.

Mr Blake: I mean, it might be suggested that in carrying out those sifts, you should have spotted trends and themes that were arising?

Simon Clarke: Yeah. I accept that.

Mr Blake: Is that also, you think, down to becoming immune or case hardened?

Simon Clarke: That’s exactly what I’m referring to. That’s the point I’m making: that because you become slightly cynical, jaded, as inevitably is going to be the case, then you do miss things. Yes, I accept that.

Mr Blake: Moving on to the Gareth Jenkins advice, can we please look at POL00297607. This is before I come on to your formal written advice, which is 15 July.

Simon Clarke: Yes.

Mr Blake: We’re going to start on 10 July 2013, and the bottom email, an email from Rodric Williams to you. He says:

“Martin, Simon,

“Do you have some suggested wording for how we break the [Gareth Jenkins] news to [Fujitsu], including why it is a problem for you from a criminal law perspective?”

Simon Clarke: Yeah.

Mr Blake: Can you assist us with what’s meant there, “breaking the news to Fujitsu”?

Simon Clarke: Well, they had to be told that their expert had misconducted himself –

Mr Blake: If we scroll up –

Simon Clarke: – because they would be asking the obvious question “Why aren’t you using him any more?”

Mr Blake: Mr Smith responds:

“Simon is preparing a further advice about Gareth Jenkins [and that’s, I think, the one we’ll come to]. However, he touched on the [Gareth Jenkins] point in his advice of the 8th.”

That I think we saw as well, the beginning paragraphs.

Simon Clarke: Yeah.

Mr Blake: If we could look at POL00191966, please. There’s an email from Rodric Williams to Andy Parsons:

“Andy,

“As discussed, please see the attached which sets out the high level issue which Cartwright King (our criminal law solicitors) has identified with the Fujitsu evidence Gareth Jenkins has been providing in support of the criminal prosecution cases conducted before Post Office Limited. A more detailed note should arrive on Monday, which I will forward to you once I have it.

“Can you please consider this in light of the contractual arrangements we have with Fujitsu and draft a suitable email to Fujitsu to put it on notice of the issue.”

That’s Rodric Williams to Andrew Parsons, copying in a number of other individuals.

Can we please look at the bullet points that were attached to that. They can be found at POL00191967. Now, these are quite brief, these bullet points.

Simon Clarke: Yeah.

Mr Blake: Let’s read them.

“Fujitsu and Gareth Jenkins have for some time been providing [the Post Office] with expert witness statements and expert evidence for criminal prosecutions;

“A full report which considers Fujitsu and Gareth Jenkins’ provision of expert evidence is being prepared;

“The initial view seems to be that statements and evidence provided by Gareth Jenkins did not contain all that they should have done;

“In particular there seems to have been a reluctance to deal with known Horizon issues in the statements/evidence;

“As a consequence it has been necessary to conduct a review of cases so as to determine whether or not any particular defendant has been prejudiced by the absence of information.”

Do you think that that’s underplaying the issue somewhat?

Simon Clarke: No, I hadn’t conducted my review then. I think I’m preparing them for what’s coming.

Mr Blake: I mean, the conversation that you had with Gareth Jenkins, I described it as a bombshell –

Simon Clarke: Yeah.

Mr Blake: – and you agreed with that. I think you expressed to me serious concerns –

Simon Clarke: Yeah.

Mr Blake: – from that conversation and from the information you’d received the day before. Do you think that a reluctance to deal with known Horizon issues is an accurate reflection of the strength of your feelings?

Simon Clarke: I think there’s a difference between having serious concerns, which I had and which I told you about, and condemning a man before I completed my report, is quite important. But what I didn’t want to do is point the finger at Gareth Jenkins in writing and say, “You have misled the court” until I was certain of my position.

Mr Blake: Then we have your advice. That can be found at POL00006357, please, and that’s 15 July.

Were you aware involved in the instruction of Gareth Jenkins?

Simon Clarke: No.

Mr Blake: Prior to this issue having arisen, had he ever been a topic of conversation within the office at all with your colleagues?

Simon Clarke: Not that I’m aware of. You’ve got to again remember that – were you aware that Cartwright King operated from a number of different offices –

Mr Blake: Yes.

Simon Clarke: – and, until I was instructed and even during the course of the Samra case, I was based in the Nottingham office and the Post Office department, I think, was based across Derby and Leicester. So I wouldn’t have been a party to any conversations prior to the Samra case, in any event. During the course of – well, it was during the Samra case that this arose and then, yes, of course, he then became pretty much the central topic of discussion.

Mr Blake: Prior to the research that you carried out for this advice, were you aware or did you have any knowledge about the basis on which Gareth Jenkins had been instructed?

Simon Clarke: No. Didn’t even know of the existence of the man.

Mr Blake: You had that conversation on the 28th?

Simon Clarke: Yes.

Mr Blake: Before that conversation, were you aware of how he had been put forward as a witness –

Simon Clarke: No.

Mr Blake: – in those proceedings?

Simon Clarke: Just not at all.

Mr Blake: Would you have expected those at Cartwright King, who were involved in his cases, to have known about how to properly instruct him?

Simon Clarke: Yes.

Mr Blake: Martin Smith’s evidence was that he wasn’t aware of the legal requirements; were you surprised by that?

Simon Clarke: When I saw him say that the other day, I was surprised, yes.

Mr Blake: Had you understood his knowledge at that time to be sufficient to have that kind of knowledge?

Simon Clarke: I think “assumed” is a better word. I had assumed at the time that things had been done properly, yes.

Mr Blake: One thing that you point into your witness statement was that Gareth Jenkins had signed off his witness statements, that he understood his role was to assist the court?

Simon Clarke: Yes.

Mr Blake: Did you, at that point, on reading those statements, question why he didn’t have the usual expert declaration within those statements?

Simon Clarke: No, because I wasn’t, at that point, concerned with whether or not he’d been instructed properly. That was – I was instructed – I was interested in effect, not cause. The effect was he had failed to tell the court that which he ought to have told them both in his witness statements and orally in the Seema Misra case; that’s what I was concerned with.

So I didn’t look to see whether he’d been instructed properly in the first place because that’s in the past and that was of no concern to me. My concern was: he hasn’t told the court what he ought to have told them. How do we deal with that?

Mr Blake: Can we look at page 14. We’ve seen this advice, I’m not going to go take you through every paragraph –

Simon Clarke: No, I wrote it.

Mr Blake: – of the advice, the Chair has it. If we look at page 14, there are some conclusions. If we could scroll up, please. It says:

“Notwithstanding the failure is that of [Gareth Jenkins] and, arguably, of Fujitsu Services Limited being his employer, this failure has a profound effect upon [the Post Office] and [Post Office] prosecutions, not least because by reason of [Gareth Jenkins’] failure, material which should have been disclosed to defendants was not disclosed thereby placing [the Post Office] in breach of their duty as a prosecutor.”

Very strong words there.

Simon Clarke: I don’t know where I get “Dr” from but, yes, very strong words.

Mr Blake: “By reason of that failure to disclose, there are a number of now convicted defendants to whom the existence of bugs should have been disclosed but was not. Those defendants remain entitled to have disclosure of that material notwithstanding their now convicted status.”

As you say, powerful stuff. Are you aware of who this advice was shared with within the Post Office?

Simon Clarke: I can’t remember how it got to Post Office. I don’t know whether I sent it or whether I gave it to Martin to forward to Jarnail. To my direct knowledge, Jarnail Singh had it and Rodric Williams had it. Where it went thereafter, I can’t say. I would add, with hindsight, which I’ve already said in my statement is a cruel master but, with hindsight, I now know that a number of the advices that I wrote did not go where they ought to have gone, even though I had expected that they would.

Mr Blake: Even if you’re not aware of where that actual written document went, are you aware of any other names within the Post Office who you are aware received the substance of your advice?

Simon Clarke: No. I can’t say who did and who didn’t see it or who did or who didn’t receive the import of the advice.

Mr Blake: I’m going to move on to the Criminal Cases Review Commission. Can we please look at POL00039994. This is a letter you’ll have seen me take Mr Smith to.

Simon Clarke: Yeah.

Mr Blake: It’s a letter from the CCRC to Paula Vennells, 12 July 2013. If we scroll down, we can see it’s after the publication of the Second Sight Report and, they say:

“For obvious reasons, we have read the recent media coverage concerning the Post Office Horizon computer system with interest”, and they would like more information.

Could we look at POL00039998, please. Top email says:

“Please find attached documents prepared by Simon in response to that letter …”

So it seems as though you have received a copy of that letter and drafted two documents, one is a draft response and another is another document that I’ll take you to first, that is POL00039993. Thank you.

What was the purpose of this document?

Simon Clarke: I think they asked me what the ambit of – or scope of the role of the CCRC was and I think here I summarised as best I can, in fairly plain language, layman’s language, what the role of the commission was.

Mr Blake: There are two criteria that are applied. The first being that they had tried to appeal?

Simon Clarke: Yeah.

Mr Blake: The second:

“There must also be some important new evidence or legal argument available to the defendant – for which see below.”

If we scroll down, we can see a comment by you:

“As to the second, the Second Sight Interim Report would fall within the scope of that criterion on the basis that it was important information not known at the time of the original trial and which has emerged since conviction.”

It seems as though, as at 16 July 2013, it was pretty clear to you that the Second Sight Interim Report fell within that second limb of important new evidence?

Simon Clarke: That must be right, mustn’t it? Not that it was clear to me but it fell within that category, yes, I agree.

Mr Blake: Can we please look at POL00039995. This is the draft reply. If we scroll down, you say there at that bottom paragraph:

“Where a defendant asserts, rightly or wrongly, that Horizon is at fault, it is for the prosecution to demonstrate the integrity of the system and the evidential audit trail derived from Horizon.”

Now, were you aware, anecdotally, at least, from those involved in those prosecutions, that in reality, the burden was largely put on the defendants themselves.

Simon Clarke: I became aware of that after my involvement in Post Office, yes.

Mr Blake: When you say after your involvement?

Simon Clarke: Well, I didn’t know before May 2013 because I had nothing to do with it, Post Office.

Mr Blake: At the time of writing this, in July 2013, were you aware that that was the case, having presumably already been sifting a number of files?

Simon Clarke: Early on in the sift, I don’t think I’d formed – I formed that view later. I don’t think I’d fully formed that view then but I think it’s fair to say that there were indications emerging that those who were prosecuting were not doing that which they should have done.

Mr Blake: We then move on to Gareth Jenkins. It says:

“This is usually accomplished by the serving of expert evidence. For many years both [the Royal Mail Group] and latterly [the Post Office] has relied on a single expert witness provided by Fujitsu Services, the Horizon manufacturer, maintenance and support contractor. That witness has provided expert evidence in many cases where the defendant has asserted irregularities with Horizon to be the cause of unexplained shortfalls, as to the operation and integrity of the Horizon system. He has done so both [the Post Office] and in expert witness statements and in oral evidence to the court. In particular he has: attested to the presence of defect detection and rectification systems; the robustness of the prosecution audit trail; and stated that, in his expert opinion, Horizon accurately records and processes all information submitted into the system. The Second Sight Interim Report demonstrates that this was not the case.”

You knew by the point at which you were drafting this letter that Mr Jenkins wasn’t to be relied upon because, as you’ve explained, he was the very source of those bugs that were disclosed to Second Sight.

Simon Clarke: Yes, I agree.

Mr Blake: Why do you think that wasn’t set out in this letter?

Simon Clarke: What, that I knew …

Mr Blake: That there was a real concern not simply that there was new information that had appeared but that the very expert that had been instructed in prosecutions was, in your view, by that stage, unreliable?

Simon Clarke: Well, I think this letter does say that.

Mr Blake: If it does that, it does that in a very subtle or unclear way, in fact, doesn’t it? I mean, it doesn’t raise there any real concerns about the integrity of Gareth Jenkins?

Simon Clarke: I’m going to have to disagree with you. I think that last paragraph you read does precisely that.

Mr Blake: I mean, you had written the very day before, 15 July –

Simon Clarke: Yeah.

Mr Blake: – a very significant piece of advice with very strong words – I took you to those last two conclusions – placing Post Office in breach of their duty as prosecutor, et cetera. Do you think that the sentence, the paragraph I’ve just taken you to, do you think that accurately reflects the strength of your advice to the Post Office?

Simon Clarke: That’s a different question, isn’t it? The question you were asking me – forgive me, I don’t want to be rude – the question you were asking me was whether or not I was advising in terms that the CCRC be told about Gareth Jenkins. And the answer to that question is they are here, I agree with you that I don’t say it in such trenchant terms as I do in my written advice to Post Office, but –

Mr Blake: It is a particularly tepid response to the CCRC in circumstances where you had real concerns about the reliability of Mr Jenkins, isn’t it?

Simon Clarke: I don’t agree with your choice of words.

Mr Blake: Do you think it is reflective of the advice that you gave to the Post Office?

Simon Clarke: It tells the CCRC that the expert that has been relied upon has not done that which he ought to have done.

Mr Blake: It suggests that the Interim Second Sight Report, which has been published after the expert has given evidence, prosecutions have concluded, has proved that information that he had provided is now no longer the case?

Simon Clarke: Yes.

Mr Blake: But it doesn’t raise any concerns about the actual information that he was giving to the court?

Simon Clarke: I think that’s read into that paragraph. We can get bogged down by this but I think –

Mr Blake: Let’s have a look at this, if we could zoom out perhaps and look at the words “Where a defendant” down to “this was not the case”, where do you say that was reflected in this paragraph?

Simon Clarke: “For many years … RMG and latterly POL has relied on a single expert witness”, and then it goes on to say what the expert witness says:

“That witness has provided expert evidence in many cases where the defendant has asserted irregularities … He has done so both to POL and in expert witness statements and in oral evidence to the court. In particular he has: attested to the presence of defect detection and rectification systems; the robustness of the prosecution audit trail; and stated that, in his expert opinion, Horizon accurately records and processes all information submitted into the system.”

That is setting out what the expert has said in his reports. The following sentence, “The Second Sight Interim Report demonstrates this was not the case”, very clearly in my view says that that gives the lie to what’s been said in the preceding paragraph.

Mr Blake: Does it say, “He knew it at the time”?

Simon Clarke: No, it doesn’t.

Mr Blake: Why doesn’t it?

Simon Clarke: I thought that was sufficient.

Mr Blake: Do you think that conveyed your opinion that he knew it at the time.

Simon Clarke: Yes.

Mr Blake: Looking back at it, do you stand by that?

Simon Clarke: Yes.

Mr Blake: If we scroll down, please, page 2:

“To that end [the Post Office] has instructed an independent firm of criminal specialist solicitors to identify every criminal case prosecuted by [the Post Office] and [Royal Mail Group] prior to their separation …”

That’s the point I was asking you about before. Do you think that is a fair description of the role of Cartwright King or do you think that is somewhat putting a gloss on Cartwright King?

Simon Clarke: Well, I think I’d already answered that question and you know my view now. At the time, I thought it was right; my view now is perhaps not.

Mr Blake: Was it intentionally drafted that way to give the appearance that it was something that it wasn’t?

Simon Clarke: No. I’ve just told you: at the time, I thought it was the correct view.

Mr Blake: If we could go over the page, please, to page 3. If we scroll down, please. It says:

“Where counsel has advised the possibility of grounds of appeal, letters have been written to solicitors who defended, informing them of the issues and providing copies of the Second Sight Interim Report and such other material as they ought to have received during the currency of the prosecution, had we then been possessed of that material. It would then be for the defendant and his lawyers to determine whether or not they wished to launch an application for leave to appeal out-of-time; we would certainly support grounds to allow the application out-of-time.”

So reference there to “the Second Sight Report and such other materials”, I think, actually, that phrase is lifted from Brian Altman’s – or it certainly appears in Brian Altman’s interim review. I don’t know if you recall taking it –

Simon Clarke: It’s entirely possible.

Mr Blake: We still there don’t have any mention beyond Second Sight, of, for example, the Helen Rose Report, we don’t have any mention of any other information, the kind of information that was very clearly apparent to you from that Gareth Jenkins conversation on the 28th. Do you think that is sufficient information that was being provided at that stage?

Simon Clarke: Well, the only information we had was the Second Sight Report, the fact that it was Gareth Jenkins who had informed Second Sight of the existence of the bugs and the Lepton report. That, I think, was the extent of that which we had.

Mr Blake: Was the Helen Rose Report mentioned there?

Simon Clarke: No, it’s not.

Mr Blake: Are the concerns that were immediately apparent to you, the bombshell conversation from the 28 June; is that reflected there at all?

Simon Clarke: I think it’s a more measured response.

Mr Blake: A more measured response or a carefully worded response to make it seem as though there wasn’t very much material to be handing over?

Simon Clarke: Two answers. Yes, it was carefully worded. Everything I write I try to word as carefully as I can. But, no, it was not carefully worded in order to minimise.

Mr Blake: Can we please turn to POL00192214, bottom of page 3. Susan Crichton has received your draft letter and she says to Andrew Parsons:

“Andy – we received a letter from the CCRC yesterday which I have asked Cartwright King to review. Their advice feels odd to me as if given on a take it or leave it basis and I am not comfortable that’s particularly useful in this context. Could we discuss, I am happy to go to another firm that specialises in criminal law or a barrister, somehow it feels as if there is a conflict here which I am not sure I understand.”

Were you aware that the Post Office had concerns about the strength of your response or the content of your response?

Simon Clarke: No.

Mr Blake: Looking at that now and the discussion we’ve just had, do you think, actually, looking back at that draft, it was too – I was going to use the word “robust”, I wouldn’t necessarily use the word robust – but it was too punchy?

Simon Clarke: What, my draft response?

Mr Blake: Yes.

Simon Clarke: That it was too punchy?

Mr Blake: That it was limited in the information that it provided, justifying the work that Cartwright King was carrying out and was not an open, transparent and fair response to the CCRC’s request for information?

Simon Clarke: No, I don’t agree with that.

Mr Blake: Did anybody at the Post Office ever raise with you concerns in respect of that letter?

Simon Clarke: They didn’t, but I read this email as Post Office taking the view that it was too strong. This looks to me as though they’re suggesting that they might want to water it down. I speculate.

Mr Blake: When you say “water it down”, what do you mean by that?

Simon Clarke: Well, they clearly didn’t like what I’d written. Looking back from what I know now, from what I’ve heard during these proceedings, it rather looks to me as though they were thinking I was going too far.

Mr Blake: Providing too much information?

Simon Clarke: Yes, but that’s me speculating.

Mr Blake: Thank you, sir. I think that’s an appropriate moment to take our second mid-morning break. Perhaps we could come back at 12.10.

I think you’re on mute, sir.

Sorry, sir, we can’t hear you.

Sir Wyn Williams: Yes, sorry, unless it interferes with your train of questioning, in which case I don’t need to know the answer to this question now, but what, in fact, happened to that draft? Was it sent in that form or not?

Mr Blake: I don’t think we have a final letter. Certainly, there was not a letter sent for a very long period after that.

Sir Wyn Williams: Right. Fine. Thank you. Do you need an extra minute now, Mr Blake, after my intervention?

Mr Blake: 12.10 will be fine, thank you, sir.

Sir Wyn Williams: Right.

(12.00 pm)

(A short break)

(12.10 pm)

Mr Blake: Thank you, sir. For your benefit, there is correspondence with the CCRC at POL00040190. I won’t bring it up on screen, and, sir, we can look at that in longer time –

Sir Wyn Williams: Right.

Mr Blake: – as to whether it’s a holding response or something more substantive.

Sir Wyn Williams: Yes, sure.

Mr Blake: Also, Mr Clarke, you asked about the Helen Rose Report and whether that was mentioned in your advice of 15 July 2013. It was mentioned, it’s at paragraph 26 of that advice.

Simon Clarke: Fine, so I got it before then. Yes, that’s fine. Thank you.

Mr Blake: I’m going to move on now to your document retention or what’s been referred to as the “shredding advice”?

Simon Clarke: Oh, yeah.

Mr Blake: You had advised a central hub to be created?

Simon Clarke: Yes.

Mr Blake: Was it your understanding that all Horizon related, for example, bugs, errors and defects and remedies would be kept in that hub?

Simon Clarke: It was my understanding, I wrote a protocol which required that.

Mr Blake: Participants could bring to those meetings any concerns about Horizon, however critical they were of the Horizon system?

Simon Clarke: I repeat: that was a requirement of the process and it appears in the document, the protocol that I wrote, which was to apply to these meetings.

Mr Blake: Minutes were to be kept?

Simon Clarke: Yes.

Mr Blake: Minutes were to be disseminated?

Simon Clarke: Yes.

Mr Blake: Was it your understanding, save for the fact that it was written down in a protocol, that it would, in fact, happen?

Simon Clarke: That was the point of the protocol. I required it to – in so much as I could, as an advising barrister, I required it to happen.

Mr Blake: From conversations you had at the time, was it your understanding that it would happen?

Simon Clarke: Post Office appeared to me to have accepted the advice and protocol wholesale.

Mr Blake: Thank you. I’m going to go through chronologically the issue with John Scott and conversation with John Scott. That’s POL00139745, it’s a document I took Mr Smith to and that just sets the scene. 31 July 2013, we have that conversation between Jarnail Singh and Mr Smith.

Simon Clarke: Oh yeah.

Mr Blake: The summary there is:

“Discussing disclosure issues: [John Scott] has instructed that typed minutes be scrapped.”

Then we move on to POL00139746, Jarnail Singh emails Mr Smith the same day, and he says:

“I know Simon is advising on disclosure. As discussed can he look into the common myth that emails, written communications etc meetings. If its [not] produced its then available for disclosure. If it’s not then technically it isn’t? [Possibly] true of civil case NOT CRIMINAL CASES?”

You’re not a named recipient there, is this is an email that you saw or was conveyed to you at the time?

Simon Clarke: No, the first time I saw this email, I think, was during these proceedings when it was sent to me.

Mr Blake: Did you understand that Mr Singh had requested advice of that nature?

Simon Clarke: No.

Mr Blake: He says there, “I know Simon is advising on disclosure”, what was your understanding, as at 1 August, as to any request for advice on disclosure? Was it the shredding advice that we see or was it something else?

Simon Clarke: It wasn’t the shredding advice. It was the – I presume it’s a reference to the advice I’d done earlier on about setting up the hub and Post Office’s general disclosure duties. I presume that’s what he was referring to.

Mr Blake: Thank you. Can we move on, then, to POL00006799, and that is the advice on disclosure, “The Duty to Record and Retain Material”. That’s written by you on 2 August 2013?

Simon Clarke: It was.

Mr Blake: You’ve addressed it at paragraph 47 of your statement and also at 93 to 95 of your statement. I don’t need to take you to those.

Simon Clarke: Okay.

Mr Blake: We can have a look at the advice itself, page 2, paragraph 5, please. So you say there, you’re describing, you’re summarising your state of knowledge at that time, and you say:

“At some point following the conclusion of the third conference call, which I understand to have taken place on the morning of Wednesday, 31 July, it became unclear as to whether and to what extent material was either being retained centrally or disseminated. The following information has been relayed to me:

“i. The minutes of a previous conference call had been typed and emailed to a number of persons. An instruction was then given that those emails and minutes should be, and have been destroyed: the word ‘shredded’ was conveyed to me.”

Now, can you assist us with where that came from, and the word “shredded”; who was it who conveyed those words to you?

Simon Clarke: That came from Martin Smith. I remember particularly because I was going on holiday. That was the day my leave was to start and I postponed my departure upon receiving that information from Martin Smith because I took the view that that was just too serious to ignore.

Mr Blake: Martin Smith said he couldn’t quite remember the exact words used. The fact that you’ve used that in speech marks, does that imply that it was, in fact, the word that was used by Martin Smith?

Simon Clarke: I’m certain that that is the word that was conveyed to me and the reason I’m certain is because this was written 1/2 August, and it was 1/2 August that I would have received this instruction, and so it would have been fresh in my mind. This, in effect, is a record of the conversation I had with Martin Smith.

Mr Blake: Thank you. Mr Singh said that those were John Scott’s instructions. To your understanding and from what you were told at that time, was John Scott seen as a lone wolf or someone who was working with others in that respect?

Simon Clarke: The impression I got from within Post Office and within Cartwright King, that he was regarded as being a bit of a power unto himself, which is effectively the same as what you’ve just suggested, I think.

Mr Blake: “ii. Handwritten minutes were not to be typed and should be forwarded to [Post Office] Head of Security.”

I think you’ve said in your statement that Jarnail Singh said that was John Scott who had conveyed that. Is that secondhand –

Simon Clarke: Yes.

Mr Blake: – through Mr Smith?

Simon Clarke: I’m thinking of the – yes, it’s secondhand through Mr Smith.

Mr Blake: “iii. Advice had been given to [the Post Office] which [you] report as relayed to [you] verbatim:

“‘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’.”

I think you said in your statement that Jarnail Singh said that that was Mr Parsons. Again, was it Mr Smith telling you that he had been told by Jarnail Singh or is that direct from Mr Smith?

Simon Clarke: I would have – sorry, I’m frowning because I’m thinking of the shorthand writer who has told me off already. That was from Mr Smith, all of those instructions came from Mr Smith but I’ve got a scratchy memory that I might have telephoned Jarnail Singh to confirm. I can see myself in the Nottingham office on the telephone and I have just got that scratchy recollection that I might have telephoned Jarnail Singh to confirm these instructions.

Mr Blake: Then at iv:

“Some at [the Post Office] do not wish to minute the weekly conference calls.”

In your statement, I think you’ve said that those were Jarnail Singh’s own views; is that right?

Simon Clarke: That tends to suggest that my scratchy memory is correct, that I had a telephone – a brief telephone call with him to confirm the instructions but, certainly, that was the information I received, yes.

Mr Blake: Who did you understand to be the “some” at the Post Office?

Simon Clarke: I don’t think anybody identified who the “some” were but, given that it was John Scott who gave the instruction to shred, looking back, I suspect it was – I was thinking, at least in part, of John Scott.

Mr Blake: Thank you.

Simon Clarke: To suggest anybody else would be speculation.

Mr Blake: Could we please turn to page 5 and paragraph 9.

“The duty to record and retain material cannot be abrogated. To do so would amount to a breach of the law and, in the case of solicitors and counsel, serious breaches of their respective codes of conduct. Accordingly no solicitor, no firm of solicitors and no barrister may be a party to a breach of the duty to record and retain. Neither may they act in circumstances where they are aware, or become aware, that a practice has developed within the investigative or prosecutorial function such that the duty to record and retain is being deliberately flouted, or avoided. Again to do so would amount to breaches of both the law and Codes of Conduct. A decision-based failure to record and retain material would readily amount to such a practice. Such a decision, where it is taken partly or wholly in order to avoid future disclosure obligations, may well amount to a conspiracy to pervert the course of justice on the part of those both taking such a decision, and those who implement such a decision where they do so in the knowledge that it was taken partly or wholly for that purpose.”

Again, very strong words used by you in that advice. Do you agree with the advice you have given here?

Simon Clarke: Yes, of course.

Mr Blake: Next paragraph, paragraph 10:

“In view of the matters referred to in the previous paragraph, were the issue of disclosure to be raised in court in circumstances where an investigator or [Post Office] officer/employee suggest that advice different from that contained within this document had been given, such would amount to a waiver of Legal Professional Privilege so that this document would itself become admissible in proceedings.”

What was your concern here?

Simon Clarke: Andrew Parsons’ advice, I think, because it was Andrew Parsons who gave that ludicrous advice about if it’s not written down it’s not disclosable, I think that was directed to him as a warning of the path he was apparently contemplating.

Mr Blake: I suppose this all raises the question of why wasn’t this the very last piece of work that you ever carried out for the Post Office?

Simon Clarke: Because my understanding was this was not a Post Office policy or instruction. This was John Scott on a frolic of his own and – forgive me for interrupting you – and I saw it as my function to bring it to the attention of Post Office in a formal advice document so that they could then take the necessary steps to make sure that the policy that he seemed to be advocating was not put in place.

And I rather saw my role as telling Post Office what one of their staff was contemplating and for them to take the appropriate action to deal with it, and I understand that they did. I know it sat in a drawer for a couple of weeks but they did.

Mr Blake: You’ve explained that you were pretty new to Post Office prosecutions –

Simon Clarke: Yes.

Mr Blake: – in the summer of 2013?

Simon Clarke: Yes.

Mr Blake: You’ve had this bombshell from Gareth Jenkins, you’ve found out about bugs in Horizon that were said not to have been there; you’ve had concerns about the reliability of evidence given in previous prosecutions; you’ve had the Helen Rose Report, and now you’re being told that, even in the discussion of these issues, there is a shredding taking place in relation to the minutes of those meetings that you had personally advised should be recorded.

Simon Clarke: Yeah.

Mr Blake: Did that not raise, for you, an issue of whether you should still be acting for the Post Office?

Simon Clarke: No.

Mr Blake: Why not?

Simon Clarke: For the reason I’ve just explained. On the shredding point, I took the view, and I think the view was confirmed, that it was John Scott on a frolic of his own. In terms of the earlier material, I saw my function as being one to advise Post Office as to how they ought to remedy the situation they had got themselves into and help them find a way through it. I don’t think I was – if the real question is did I consider that I was in conflict or that a conflict existed such that I ought to have withdrawn? No, I didn’t.

Mr Blake: Not so much a conflict but, certainly, what might seem a maddening situation, by that time, that everything that you had been told about the reliability of the system was in question and now you’re being told about shredding.

Simon Clarke: I’m just a bit old-fashioned about this: barristers don’t walk away from their clients when life gets difficult. I saw my role as to be their barrister through Cartwright King and to give them palatable or unpalatable advice, whichever, in the hope that I could do some – it’s trite but in the hope that I could do some good for them. I don’t walk away from clients because life gets difficult. I didn’t then and I don’t now.

Mr Blake: You wrote this advice; who did expect to have seen the advice?

Simon Clarke: In a word? Everybody.

Mr Blake: Did you yourself follow up to ensure that it had been seen by everybody?

Simon Clarke: I did. I think I told you, I was just about to go on leave the day I wrote it. I did. When I came back – I think I went to Gibraltar, which is home. When I came back, about two weeks later, I asked Martin what had resulted, had we heard anything back, what was the effect? And he said he hadn’t heard anything, and I think he contacted Jarnail Singh to find out what the position was.

That’s a vague recollection but I think that’s how we learned that it had sat in a drawer for a couple of weeks, rather than gone to the people it ought to have gone to. I think I deal with that in my witness statement.

Mr Blake: So we have the covering letter at POL00298236, sent by Mr Cash, for the attention of Susan Crichton and Hugh Flemington only. Would it have been unusual for Mr Cash to have been taking the lead on this?

Simon Clarke: Can I just read it, sorry?

Mr Blake: Absolutely.

Simon Clarke: It would have been unusual for him to get involved but, recalling the immediate prelude to writing the advice, I was in the Nottingham office at the time, effectively saying my goodbyes, and Martin was there as well and I think Stephen Gelsthorpe, who was the senior equity partner, overheard what Martin was telling me and I think Stephen Gelsthorpe suggested that the advice be – now, you’ve reminded me of this – that the advice be sent by Andy Cash because he was the senior lead at Cartwright King for Post Office. I think that’s how that came about.

Mr Blake: So was it intentionally sent by somebody senior to give the impression that it was a significant piece?

Simon Clarke: Oh, I see. I can’t say. I wrote the advice, I gave it to Martin and said “That has to go”, and then I went on holiday. I wasn’t a party to the decision that Andy Cash send it but I can quite see why he was chosen to be the sender.

Mr Blake: It’s marked there as for the attention of Susan Crichton and Hugh Flemington only. Had you selected those as the recipients?

Simon Clarke: No.

Mr Blake: What is your understanding as to why they would have been the recipients, rather than, for example, Jarnail Singh?

Simon Clarke: Well, I can only speculate but Hugh Flemington was Head of Legal and Susan Crichton was General Counsel. So it’s going to the people who really ought to have seen it.

Mr Blake: Thank you. Can we please turn to POL00006797. This was the response to Mr Cash of Susan Crichton. I don’t know if you saw the evidence of Susan Crichton?

Simon Clarke: No.

Mr Blake: I took her to this document. If we scroll down, perhaps I’ll read from the penultimate paragraph. That says:

“Post Office Limited is committed to conducting its business in an open, transparent and lawful manner. Any suggestion to the contrary would not reflect Post Office Limited policy, and would not be authorised or endorsed by Post Office Limited. Accordingly, the purported statements referred to in Simon’s note do not reflect or represent Post Office Limited’s position.”

First of all, I think you’ve said you didn’t see this letter; is that right?

Simon Clarke: I don’t think I did, no. I don’t recognise it, other than having seen it during these proceedings.

Mr Blake: Was it communicated in some way to you that the Post Office had responded –

Simon Clarke: Yes.

Mr Blake: – to your advice?

Simon Clarke: Yes.

Mr Blake: What was said about the response?

Simon Clarke: That’s why I set that enquiry in train when I returned from holiday, and what came back was, effectively, this was John Scott on a frolic of his own and it was not Post Office policy.

Mr Blake: So if we scroll up, in fact, the point about it being – Susan Crichton not having seen it, I think – yes, she says:

“Unfortunately, I had not seen your letter and was not aware of it until Martin’s email on 14 August.”

So presumably 14 August was when you returned from holiday?

Simon Clarke: Yes, and that’s me asking Martin to chase it up, I would think.

Mr Blake: If we scroll down again, I mean, it’s referred to in this letter as “purported statements”. From conversations that you had with Jarnail Singh, for example, was your understanding that they were purported statements or definitive?

Simon Clarke: They were definitive.

Mr Blake: Were you aware, outside of Jarnail Singh’s knowledge, the knowledge of others within the Post Office, as the same, effectively?

Simon Clarke: No, the impression that Jarnail Singh conveyed to me, I think during that phone call I thought I’d had, was that this was John Scott doing what John Scott does.

Mr Blake: Did Jarnail Singh seem concerned about it?

Simon Clarke: Yes. I think the proper word is frightened.

Mr Blake: It was your impression that it was going to go any further?

Simon Clarke: Sorry, in what sense?

Mr Blake: That it was going to be taken further within the Post Office or –

Simon Clarke: What –

Mr Blake: Your advice?

Simon Clarke: Oh, yes. Well, I expected it to be. I expected it to go to the very highest levels of Post Office and for them to deal with John Scott.

Mr Blake: Can we please look at POL00006485. This is a meeting of 9 September 2013, with Brian Altman KC, Susan Crichton is there, Rodric Williams is there, Jarnail Singh is there, and you and the others from Cartwright King are in attendance. If we look at the final paragraph of that page:

“[Rodric Williams] then confirmed that the weekly hub meetings were started to bed in, picking up any issues across the business which may relate to Horizon.”

Now “SC”, it seems that is a reference to you. It’s slightly confusing because both Susan Crichton and Simon Clarke are “SC”?

Simon Clarke: Yes.

Mr Blake: But if we scroll down, it looks as though it was you who said there had been some cultural issues at the start which have now been overcome but you thought that it was necessary to put duties on individuals:

“Consequently [Cartwright King] are in the process of writing a protocol to explain the purpose of the weekly hub meetings, the roles and responsibilities of individuals.”

Can you assist us with what you meant by “cultural issues”? First of all, does this accurately reflect the conversation you had at that meeting?

Simon Clarke: I was going to say I think that likely is me speaking. I think it – I don’t recall the specifics of the meeting but I think that it does certainly record my concerns and so, yes, it is an accurate note.

Mr Blake: Cultural issues: there’s no reference there to shredding, destruction of documents. It doesn’t look as serious as perhaps your advice was, when it refers to “‘cultural issues’ [that] had now been overcome”?

Simon Clarke: Well, this is not my note of the meeting. I would not have said, “Oh, there’s been a few cultural issues”, and moved on, not least because Brian Altman would have needed to know what the cultural issues were. And the cultural issues went beyond John Scott’s shredding instruction. The distinct impression I got from the conduct of the early hub meetings was that most of the attendees from Post Office were quite reluctant to discuss and bring to the table what they knew and I don’t think, culturally, they understood that this has to be – had to be a complete, open and transparent forum, otherwise there was no point in the exercise.

I think that’s what I meant by “cultural issues” generally. They had to understand that they had to be full and frank about what was going on at the meeting.

Mr Blake: Were your real concerns about the destruction of documents discussed at that meeting?

Simon Clarke: I can’t say. I don’t recall. It’s likely they were but I’m not going to nail my colours to the mast on that. I can’t say.

Mr Blake: It says that the cultural issues have now “been overcome”; how did you know that they had been overcome?

Simon Clarke: Well, Martin would have reported back to me about the status of the meetings.

Mr Blake: Did you think that by 9 September all of those issues that you had raised in your advice had been overcome?

Simon Clarke: Well, that was the reports that I’d received. We’d dealt with the shredding issue, including the delay in Post Office higher echelons seeing it, and Martin was reporting that people were bringing things to the table, so to speak, at the weekly meetings.

Mr Blake: That paragraph continues:

“[The Post Office] were picking up issues which were compiled …”

Simon Clarke: Sorry, I don’t see that – oh.

Mr Blake: “… in the matrix and it was observed that there had to be continuity of individual attendance at the meeting and everyone must be on message.”

Simon Clarke: Yeah.

Mr Blake: Can you assist us with what’s meant by “continuity of individual attendance … and everyone must be on message”?

Simon Clarke: Yeah, when the meetings first started, attendees would change. I think the idea was that each department had an appointed representative at the meetings and I think we noted that appointed representatives changed perhaps on a meeting-by-meeting basis, which we didn’t want, because that removed continuity, and so we wanted the message to go out. I’m not referring to being on message here. We wanted the message to go out that the same people must attend every time.

Mr Blake: Thank you. I’m going to now look at Martin Smith’s notes of the same meeting. Those are at POL00139866. I think you’ve said that Martin Smith was a competent notetaker, I think, was –

Simon Clarke: I think so, yes.

Mr Blake: If we go over to page 2, I’m just going to read to you what looks like the discussion of the cultural issues. It says:

“Simon: We discussed last Friday: main problem is cultural. People in different departments. Needs to be a proper coming together.

“Rod [says]: A lot of issues not important – eg turn computer off and then on again. And then things which may affect continuity – still need a steer.”

You say: “We said we would write a protocol: roles and responsibilities etc, centrally archived: owners of issues.”

Then it says: “QC: Refers to a couple of non-identified individuals, (referring to [Simon Clarke’s] Advice on Disclosure and Duty to Retain).

“Simon: Think POL have resolved those issues.

“QC [says]: Different individuals on call.”

Susan Crichton then says: “People then dump [something].”

Is that likely to be the extent of the discussion about your advice on disclosure at that meeting?

Simon Clarke: No. These, I think, are shorthand notes.

Mr Blake: Can you assist us with what Mr Altman may have been talking about there where it says, “Refers to a couple of non-identified individuals”?

Simon Clarke: I think that has to be Andrew Parsons and John Scott.

Mr Blake: Do you think that, if this is an accurate note of that meeting, the issue was first of all not dealt in any great depth and also somewhat minimised?

Simon Clarke: No, it certainly wasn’t minimised. There’s a reference here where Mr Altman says – “Refers to a couple of non-individuals (referring to … Advice … Disclosure … Duty to Retain)”, that’s clearly referring to the shredding advice or the stop shredding advice. My response, “[I] Think POL have resolved those issues”, is my response to I think POL have dealt with John Scott and there is no shredding going on.

Mr Blake: The Bond Dickinson minutes that we saw – so if we go back, please, to POL00006485 – that confines the issue to that one paragraph and quotes “cultural issues”.

Simon Clarke: Yeah.

Mr Blake: Do you think that their minute of this meeting was in some way minimised about the – I mean, to begin with, I think there was some criticism of a Bond Dickinson lawyer in respect of the retention of information?

Simon Clarke: There was.

Mr Blake: So to what extent do you think that paragraph was intentionally brief?

Simon Clarke: It would be speculation to be firm about that but it certainly looks as though there’s minimisation going on there. I would agree with your proposition that they are not telling the whole story.

Mr Blake: I’m now going to look at the protocol you drafted, that was POL00128993, please. So this is the protocol. Was there a protocol earlier then, before the information you had been given about shredding or only after?

Simon Clarke: I believe this is it.

Mr Blake: Were you specifically instructed to do this or was this another piece of work that you were carrying out because you thought it was necessary?

Simon Clarke: The latter. I did it because I thought it was necessary and I thought it was necessary because I thought Post Office needed guidance on how to conduct the issue.

Mr Blake: It’s entitled:

“Protocol for the conduct of Wednesday morning Telephone Conferences held for the purpose of the Identification, Recording and Retention of Material which may be subject to the Duties of Disclosure.”

You set out in the preamble how very important disclosure is to the criminal justice system. Then, in the first substantive paragraph, you say:

“As a prosecutor, Post Office Limited is under a positive duty to identify, record and retain any information which might assist a defendant in preparing or presenting his case or which might undermine the prosecution case against him. In addition we must also be able to prove that, where we rely on information provided by Horizon Online to prosecute, that system is reliable and accurate”, et cetera.

Now, in terms of the first, is this in some way you and Cartwright King making clear that, in criminal cases, the duty of disclosure is very different to civil cases; was that one of the purposes of this preamble, for example, to reference the criminal justice system?

Simon Clarke: I don’t think the civil protocol was in my mind because I didn’t know or understand the civil protocol. This was me saying to Post Office, “As prosecutors, this is your duty”.

Mr Blake: We see there reference to Horizon Online and, if we scroll down to a third paragraph, in again the final sentence of that paragraph, it says:

“Accordingly we will with future collect and retain any and all information which might suggest that Horizon Online may not be working as it should, or that our training and back-up systems are less than we would wish.”

Now, I appreciate that any future prosecutions would, of course, be based on Horizon Online but was there, at that stage, a bit of a blinkering in respect of Legacy Horizon and a focus limited to Horizon Online.

Simon Clarke: No, this was looking forward, the whole function of this hub was to deal with disclosure duties going forward and, therefore, any issues with the Horizon system generically would have arisen out of Horizon Online because that was the system in use going forward. This bore no relationship to – I think they called it Legacy Horizon because they weren’t using Legacy Horizon.

Mr Blake: At those meetings, though, people could bring forward issues that related to Legacy Horizon, couldn’t they?

Simon Clarke: I would certainly hope so.

Mr Blake: This policy doesn’t mention Legacy Horizon at all?

Simon Clarke: No, because it wasn’t directed to Legacy Horizon. It was directed to collating and retaining and disclosing material which arose out of the use of Horizon Online, looking forward.

Mr Blake: Do you think that there may have been a lack of interest or a lack of thinking about the impact on those Legacy cases?

Simon Clarke: Not for this because this was a wholly different purpose. But in a more – to answer your question in a more general sense, I think possibly, yes.

Mr Blake: Although I appreciate that this for going forward, does it not reflect, in general, that attitude that the focus at that time was on Horizon Online?

Simon Clarke: Just going back to what you suggested earlier, you’ve used the phrase “lack of interest and blinkered”. I don’t accept “lack of interest”, I accept “blinkered”. Yes, we were looking forward, I’m not convinced I agree with you that this document reflects that blinkered approach because this document was produced for a specific purpose, the specific purpose being the collation and retention of material derived from Horizon Online, looking forward. And so I separate that issue out from what had gone before. But I, again, say I accept your criticism that goes “You are being a bit blinkered about what had gone before”.

Mr Blake: I’m going to move on to a different topic and that is the redrafting of the Post Office Prosecution Policy.

Simon Clarke: Yeah.

Mr Blake: You’ve addressed that in your witness statement, in fact perhaps we could bring that on to screen WITN08130100 and it’s page 23. Page 23, paragraph 67. You say there, I think that’s:

“[In] some point in mid-2013 ([you] can’t recall when) [you] asked Martin Smith to obtain a copy of [the Post Office’s] formal Prosecutions Policy. Martin Smith asked Jarnail Singh to send a copy and in due course [you were] provided with a copy of what [you] considered to be a wholly inadequate policy. [You] therefore commenced drafting a detailed policy intended to at least meet the standards set out in the Code for Crown Prosecutors, including the then two-part test for commencing a prosecution.”

Was it surprising to you, in mid-2013, that Cartwright King didn’t hold a copy of the Post Office’s prosecution policy?

Simon Clarke: Yes, this was part of my ongoing learning process, early on in my involvement in the whole of the Post Office work, if you like. And at some point it occurred to me, I need to see what their prosecution policy was. I asked for one and was told that there wasn’t one with Cartwright King. So I said “Well, Post Office must have one”, and I asked Martin Smith to obtain one from Post Office.

Mr Blake: As a firm that had, by then, been prosecuting Post Office cases for a few years, was it surprising that the firm didn’t hold a copy?

Simon Clarke: Yes.

Mr Blake: You’ve described it as wholly inadequate. What, in particular, stood out as being wholly inadequate?

Simon Clarke: Oh, all of it, it’s – you know, you see sometimes – and it happens in this case occasionally – a badly photocopied document, so that – I remember it distinctly – so that the wording is at a slight angle to the edges of the – this is what I received. A single A4 document, badly photocopied with slanting writing and writing on both sides. I can’t remember what it said but it wasn’t a prosecution policy. It had that title but it wasn’t the prosecution policy.

Mr Blake: What do you mean by that?

Simon Clarke: Well, it just wasn’t.

Mr Blake: You say there that you drafted a new policy with a two-stage test, for example.

Simon Clarke: Yes.

Mr Blake: What was the test set out –

Simon Clarke: In that?

Mr Blake: Yes.

Simon Clarke: There wasn’t one. There was no test, there was no threshold test for whether or not you ought to consider an investigation and a prosecution. There was no basis upon which any sensible solicitor could say, “We will apply this and, if the answer comes out yes, we’ll prosecute and, if it comes out no, we won’t prosecute”. There was – I can’t recall what it said but it was not a prosecution policy.

Mr Blake: Can we please look at the POL you drafted that’s at POL00030686. This is effective from 1 November 2013, so is that likely to be the kind of time that you drafted the policy?

Simon Clarke: I would probably look – I would have been looking forward a couple of weeks or a month, so this would have been drafted – if that says November – September/October-ish, I think.

Mr Blake: Thank you. Can we please turn to page 6, where you set out some general principles. You say at 3.2:

“The decision as to whether to prosecute in a particular case, or to continue with any prosecution, will always be taken by Post Office Limited.”

Then you say:

“The decision taker will be:

“i. A qualified lawyer.

“ii. Independent of any Post Office Limited department having a direct financial or other interest in the prosecution.”

Then if we scroll down, we can see footnote 8, it says:

“This practice mirrors the approach of the Crown Prosecution Service, and is designed to ensure that the decision to prosecute is taken by someone who is independent of the victim/loser and of the investigation.”

What awareness did you have of who actually was the decision maker in the Post Office prosecutions, prior to this policy being drafted?

Simon Clarke: I recall asking Martin Smith. I didn’t really get a coherent answer. I don’t blame him for that because I think he didn’t get a coherent answer from those he asked at Post Office. But the distinct impression I got was that John Scott had some sort of say in it and I thought Rodric Williams had some sort of say in it, but there was never a clear answer given to me.

Mr Blake: Were you concerned at all as to whether decisions had been taken outside of the Post Office not by the Post Office?

Simon Clarke: I’ve no evidence to support that. It didn’t occur to me that that might be – when you say outside, what –

Mr Blake: Let’s say Cartwright King were carrying out prosecutions for the prosecution –

Simon Clarke: Yes.

Mr Blake: – and we’re discussing here the decision to prosecute; did you have any concerns that Cartwright King themselves may have actually –

Simon Clarke: Right.

Mr Blake: – ultimately been the decision maker in a decision to prosecute because of a lack of instruction?

Simon Clarke: In terms of straight-line thinking, Cartwright King would, as I understood it, advise Post Office as to whether or not a prosecution ought to proceed, and Post Office would respond yes or no. In reality, I rather suspect your alternative is quite likely.

Mr Blake: What do you mean by that?

Simon Clarke: I mean, it is likely that, in the absence of clear instructions from Post Office, Cartwright King made a decision themselves. But I hasten to add – forgive me – I have no direct evidence of that. I was looking backwards at what had gone on before my time but that is a distinct impression that I have.

Mr Blake: Thank you. Ultimately, I think, the Post Office asked Mr Altman to draft the policy?

Simon Clarke: Yes.

Mr Blake: I think you have said that you took a more prescriptive approach than Mr Altman?

Simon Clarke: Yes.

Mr Blake: Can you assist us with what you mean by that?

Simon Clarke: Yes, I disagree with his policy. I felt – well, first of all, I felt that a prosecution policy ought to have discretion where discretion was merited but there ought to have been certain hard and fast rules, as well, particularly about thresholds. And I derived that from the Code for Crown Prosecutors, which works in exactly that way: it provides certain areas of discretion but there are some very hard and fast thresholds.

And when I saw Brian Altman’s draft policy – and it’s clear in some of advices I wrote – I rather thought he was watering down some of those hard and fast requirements that should have been there. I didn’t agree with some of what he said.

Mr Blake: Was that in some way due to your understanding of the way that the Post Office worked? Was there something specific to them that required hard and fast rules or was there some other reason why you thought it was important?

Simon Clarke: I wanted the Post Office policy to reflect general public policy, and general public policy was set down in the Code for Crown Prosecutors. And I thought that the Post Office should, at the very least, set itself at the same level as the Code for Crown Prosecutors, if not more so.

Mr Blake: We can very briefly look at the advice that you gave at POL00125210. There may have been more responses to Mr Altman’s draft policy but this is what looks like a more formal response. If I could please turn to paragraphs 5 and 6 on page 1, the bottom of page 1. You say as follows, you say:

“In considering the formulation of this policy, we observe that, whilst the principles to be applied are clear and concise, much of the policy is couched in terms of generality so that a decision-maker is here granted a wide discretion in interpreting and applying those principles.

“Such a wide discretion, whilst advantageous in some respects, may in fact provide unhelpful consequences, for any decision is open to review and the wider the discretion granted to decision-makers the more amenable to review the decision will be.”

Can you assist us; is that the same concern? As I say –

Simon Clarke: I am being polite about it but that expresses the concern I have just expressed to you.

Mr Blake: Was there something particular about Post Office that caused you a concern giving them wide discretion or was it a general concern that that’s just simply how it should be in a criminal prosecution?

Simon Clarke: It was my view as to how a criminal – a prosecution policy ought to work, and I go back – you may recall from one of the advices I wrote about this is that, in drafting the policy I drafted, I had considered not just the Code for Crown Prosecutors but I’d obtained copies of the policy used by the RSPCA, for instance, and I think the NSPCC, who are recognised prosecutors or, at that time, were recognised prosecutors, and one or two others, and I sought to distil all of those into what I hoped was a proper policy for Post Office. I was disappointed when it was watered down.

Mr Blake: Thank you.

Sir, I’m going to move on to a new topic so that might be an appropriate time to take our lunch break.

Sir Wyn Williams: Yes, by all means.

Mr Blake: Thank you very much. Perhaps we could come up back at 1.55, please.

Sir Wyn Williams: Yes, fine.

Mr Blake: Thank you.

(12.55 pm)

(The Short Adjournment)

(1.54 pm)

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

Sir Wyn Williams: Yes.

Mr Blake: Thank you.

Mr Clarke, we’re going to move now to January 2014. Just to recap as to where we are, by the beginning of 2014, you’ve had that conversation with Gareth Jenkins; you’ve written the advice on the issue of his evidence that it had been – I think the word was fatally undermined; you had the Second Sight Report; you had the Helen Rose Report; the shredding advice; and the issue you were just addressing before lunch was a historically inadequate prosecution policy –

Simon Clarke: Yes.

Mr Blake: – that wasn’t even really a policy in itself?

Simon Clarke: Yes.

Mr Blake: Can we please look at POL00108223. This is a case review that you carried out in respect of Seema Misra. The date of this review is 22 January 2014. If we scroll down, we can see, well known to this Inquiry, the offence for which she was sentenced to a term of imprisonment, 15 months’ imprisonment. If we scroll down, please, you have a look at the case history, various timelines, you look at the defence statement at paragraph 7, and I’d like to look at paragraph 8 to begin with.

At paragraph 8 you say there was a first defence statement and then:

“Mrs Misra … changed her solicitors and a second defence statement was served rather late in the day, either just prior to or perhaps on the first day of the first trial listing.”

You say:

“… Mrs Misra partially resiled from the allegation that staff members were stealing from the office, and instead asserted that her training was deficient; again allegation was made that the Horizon system was at fault for the now unexplained losses.”

Paragraph 9, you record certain details from the defence statement, including at subparagraph (ii):

“She telephoned the helpline repeatedly and despite these calls the losses increased.”

Over the page:

“Training was mentioned but seemingly not criticised.”

Then at paragraph 10, you say:

“On the first day of her trial, listed in June 2009, Mrs Misra raised issues of Horizon fallibility for the first time. She explained in the October trial that she had learned about Horizon failings from an article in Computer Weekly magazine – she read this on the day before her first trial and realised that the ‘doubling-up’ errors described there had happened to her. That is why the judge postponed the trial.”

You then go through the evidence that was adduced at trial and, if we could keep scrolling down, please, to page 8 and the summary of the evidence of Gareth Jenkins. The evidence of Gareth Jenkins is set out from paragraph 20 onwards. Paragraph 23 says:

“There is no evidence to support any of the hypotheses [that had been put forward]. There is no evidence to suggest that the system is corrupt.”

Then you address the Callendar Square issue. By this stage, January 2014, what do you know about the Callendar Square bug?

Simon Clarke: I think I knew that it was a Horizon Legacy bug and that it produced false balances, and I think that was the extent of it. I never claimed to be an expert on what these bugs did or didn’t do.

Mr Blake: No, but you knew about the two in Horizon Online –

Simon Clarke: Yeah.

Mr Blake: – and the issues of reliability with Mr Jenkins and we now have here a third bug, one that is in fact affecting Legacy Horizon.

Simon Clarke: Yes.

Mr Blake: Did that not cause you to rethink that 2010 start date for the Sift Review?

Simon Clarke: I think I raised that with Brian Altman after I did this advice in one of our conferences but that was pretty much the first inkling that I had that we ought to have gone back further.

Mr Blake: What was Mr Altman’s response?

Simon Clarke: I think he was receptive to the suggestion but I don’t think we did enough to make it happen at that stage. It happened later on but I accept it should have happened earlier.

Mr Blake: It says there, about halfway down 24:

“Mr Jenkins researched the Callendar Square problem and, whilst he did not examine the data logs, determined the problem was fixed.”

Over the page to paragraph 26, halfway through that paragraph it says:

“The Callendar Square issue as it may have affected West Byfleet was then dealt with in some considerable detail. Importantly, Mr Jenkins said he had identified two isolated events similar to the root cause of the Callendar Square problem but not in the tens of thousands of events as had manifested at Callendar Square.”

So it seems as though there were some events, some issues, albeit not as serious as Callendar Square:

“27. In his analysis of just under half a million transactions from West Byfleet, Mr Jenkins had found no evidence of any computer malfunction other than the already mentioned Callendar Square problem.”

Then 29, you say as follows:

“It becomes apparent in cross-examination of Mr Jenkins that, whilst he had disclosed material to Professor McLachlan, he had done so on in a piecemeal basis, only when asked to do so and very late.”

Now, isn’t that exactly what was happening to you back in June 2013, late disclosure of information that you weren’t aware of?

Simon Clarke: No, non-disclosure in 2013.

Mr Blake: Is it consistent with the view that you had taken back in 2013 that he was an unreliable witness?

Simon Clarke: Well, there’s a sort of time line to this. I’ve seen and heard reference to a document on the Misra, Seema case produced in December, a very short document, which has been erroneously attributed to Harry Bowyer. What in fact happened was that – I can’t remember whether I asked to review the Seema Misra case or they asked me to review it but it came up for renew and, in December 2013, I did a very short form initial review and I think that’s the document that was attributed to Harry Bowyer because I didn’t sign it.

Mr Blake: Yes.

Simon Clarke: And that review suggested – advised disclosure of the material we were –

Mr Blake: Absolutely, and that’s a document I’ll take you to in a moment.

Simon Clarke: Okay. That document was written off the back of – and this is going to take me onto another concern I’ve had since then – that document was written off the back of a transcript only of the judge’s summing-up in the Seema Misra trial. I’d asked for the entire file, was told it wasn’t available. I wasn’t told why it wasn’t available but I was told they had a transcript of the summing-up. Frankly, it never occurred to me to ask why have you only got a transcript of the summing-up? But there you are.

The first – the December document I wrote off the back of the judge’s summing-up and the judge’s summing-up, the way in which that was crafted suggested that disclosure ought to be made.

Mr Blake: It was very clear in that December advice that your view, or Cartwright King’s view, as it was put –

Simon Clarke: Yeah.

Mr Blake: – was that disclosure should be made to Mrs Misra?

Simon Clarke: Yeah, well, Martin Smith was right to the extent that I always sign my own documents. That was signed Cartwright King because I suspect there was – sometimes I would write the bare bones of something and then give it to Harry Bowyer or Martin Smith and say, “Right, that’s essentially what want to say. Finish it off and send it out”, and I suspect that’s how it came to be sent out under the Cartwright King banner rather than under my name. But if you look at the document it’s clearly my writing style, my narrative. It’s my document.

What then happened was I was delivered the transcripts of the evidence of the trial in January 2014 and this document effectively was written off the back of those transcripts. Again, no file, no prosecution papers, no witness statements, nothing. Just those documents, and I wrote this off the back of the transcripts of the entire trial, and what I’m doing is recalling the evidence here, as it appeared in the transcripts, and I came to a different conclusion, which why disclosure wasn’t directed at that time.

So that’s the time line between – and then there was a – I think there was a third look at the Seema Misra case later on in the year by Brian Altman and Brian Altman said, in terms, “You’re wrong, you should order disclosure in this case”, and so we did. That’s the time line of what happened but I don’t want people to think that Harry Bowyer produced a document I produced.

Mr Blake: That’s quite a long answer to quite a simple question –

Simon Clarke: It is, sorry, yes.

Mr Blake: – which is: paragraph 29, wasn’t it clear to you, by that stage, you had formed the view that Gareth Jenkins’ evidence had been fatally undermined and he was an unreliable witness –

Simon Clarke: Yes, that –

Mr Blake: – and, combined with paragraph 29, that what, in fact, happened in that Seema Misra case, you had formed the view that he disclosed material on a piecemeal basis –

Simon Clarke: Yes.

Mr Blake: – only when asked to do so and very late?

Simon Clarke: Yeah.

Mr Blake: Do you not look at that trial, at that point in time, knowing the conversation you had personally had with Gareth Jenkins, and knowing all of the various points that I’ve taken you to a number of times that happened after that, and think “We need to be disclosing material to Seema Misra”?

Simon Clarke: I’ve looked at that paragraph several times since and questioned myself as to why I wrote it and didn’t ask for disclosure. The only – and it’s not a justification but maybe it’s an explanation – the only explanation I can come up with is that I can imagine myself looking at the transcripts of the trial which went back to 2010 and asking myself the question: what was the position in 2010? At that point, according to the time line, if you like, Gareth Jenkins was not a tainted witness, and he had given evidence and, according to the transcripts there had been three separate attempts at litigating in front of the judge the disclosure issue, and the Falkirk bug had been litigated and the judge had, on three occasions, ruled no disclosure.

Now, I accept that was looking at things the reasoning way now but I think that must have been my thought process then. Now, I can’t reconcile this document with what should have happened. I accept that. So the short answer to your question is: yes, you’re right.

Mr Blake: Could we please turn to page 15.

Paragraph 57, you’re setting out here various conclusions:

“In coming to my conclusion on this aspect of the disclosure process, I have considered Ms Misra’s failure to raise Horizon as a defence until so late in the day; her inability or unwillingness to offer anything more than a generalised and incoherent indictment of Horizon; the approach taken by Professor McLachlan; and the duties relating to disclosure placed upon the shoulders of any prosecutor.”

Just pausing there, the failures of her to raise Horizon as a defence, inability to offer anything more than a generalised indictment of Horizon; I mean you were in the same position, weren’t you, back then?

Simon Clarke: Yeah.

Mr Blake: You weren’t aware of how Legacy Horizon could cause issues with balancing?

Simon Clarke: Yes.

Mr Blake: So do you think that’s an unfair statement?

Simon Clarke: Yes.

Mr Blake: At the bottom of the page, paragraph 58, the final sentence on that page says:

“Accordingly I conclude that no meaningful criticism can be made of the disclosure process taken by [Royal Mail Group] during the pre-trial and ongoing disclosure phases of this prosecution.”

Am I to understand that, on reflection, you disagree with that?

Simon Clarke: Yes, at the time I was overinfluenced by the views of the trial judge, that was an error, and I agree with your characterisation that that is a wrong view.

Mr Blake: Thank you. Can we please turn to page 19, paragraph 68 onwards:

“68. Having considered both Mrs Misra’s case and the details of the Second Sight Interim Report, I can divine no instance where there is any convergence of similarity of complaint on the issue of Horizon fallibility. It is not the function of the prosecution to respond to general and unspecified allegations and request for disclosure in the hope that material may turn up to make them good. And in this case I conclude that this is precisely the test to be applied on issues of post-trial disclosure. I am also of the view that the Second Sight Interim Report does not and cannot cast doubt on the safety of the conviction, not least because the vast majority of matters dealt with in the report post-date this trial by several years and those that fit the chronology of this case bear little or no factual resemblance to Mrs Misra’s circumstances. In any event the report is now in the public domain and most likely in the hands of Mrs Misra.”

Pausing there, reflecting on that, do you agree that the advice there or your conclusion there is problematic?

Simon Clarke: It’s not problematic; it’s wrong. The first part of the paragraph is a paraphrasing of the decision in Re H and Re C and the second part of the decision is wrong.

Mr Blake: Thank you. Paragraph 69:

“As for the Helen Rose Report, that matter goes solely to Gareth Jenkins’ knowledge of Horizon concerns arising some 5 years after the events considered in Mrs Misra’s trial and his credibility as an expert witness in 2013. An analysis of the events dealt with in that report, and the potential that Gareth Jenkins’ credibility as a witness might be undermined in 2013, does not in my view lead to the conclusion that the material which might undermine his credibility now ought to be made available so as to do so in relation to a trial which occurred in October of 2010.”

Again, do you disagree –

Simon Clarke: Yeah.

Mr Blake: – with that now?

Simon Clarke: Yes, it’s wrong.

Mr Blake: “Conclusion

“… I advise that neither the Second Sight Interim Report nor the Helen Rose Report meet the test for disclosure in this case and neither report should be disclosed to Mrs Misra’s representatives.”

The focus in this and in all of, I think, the other similar cases that you looked at was on disclosure of the Second Sight Report and the Helen Rose Report. Do you think that was also an error because there was more information that you were aware of that related to, for example, thing the jigsaw together, regarding the unreliability of Gareth Jenkins?

Simon Clarke: Well, I think that – you say there was more information. To my mind, there were three strands of information. There was the Second Sight Report; the Helen Rose Report; and the third strand was the – my conclusion that Gareth Jenkins was a wholly unreliable witness. I accept that – now that that was wholly disclosable from day one.

Mr Blake: I think I can probably take you through the rest quite quickly in that case. Can we have a quick look at POL00066850.

Sir Wyn Williams: Before that comes on the screen, can I just confirm that you have understood you correctly: in both your appraisals of the Seema Misra case, the information that you were acting on, in the sense of the paper before you, was simply various transcripts: in December a transcript of the summing-up; in January a transcript of the evidence given. At no stage, did you see the prosecution file; is that correct?

Simon Clarke: That is correct. I had asked for it on a number of occasions. I learned from this process that somewhere there is a digital file. I came to the conclusion, during the course of this process, that it was deliberately withheld from me. I could not understand why Post Office had a transcript of the summing-up and later were able to produce a transcript of the trial proceedings but, according to them, did not have their own file, their own prosecution file, and papers. But I never saw it.

Sir Wyn Williams: Is it your view – let me ask you the direct question – that the file, whether in electronic or paper form, was deliberately withheld from you?

Simon Clarke: That is now my view.

Sir Wyn Williams: Is that now your view, in the sense of a view you’ve come to, having no doubt listened to parts of the Inquiry and looked at various documents, or was that a view which you formed earlier than that?

Simon Clarke: I think it crystallised – I’ll be frank. I watched Rodric Williams, I watched Jarnail Singh twice, I watched Martin Smith and I watched Harry Bowyer and, as a result of that, combined with the documents that I’ve seen in this process, that crystallises my view that I was misled and deceived.

Sir Wyn Williams: Thank you. Right.

Simon Clarke: Forgive me, in particular in reference to the sight of the Seema Misra file.

Sir Wyn Williams: Yes, that’s what we were talking about. That’s what I understood you to mean.

Simon Clarke: But also in general.

Sir Wyn Williams: All right. So that I’m clear about what I am saying, you are asserting that you were misled deliberately in the Seema Misra case –

Simon Clarke: That’s my belief, yes.

Sir Wyn Williams: – by the withholding of the file, in effect?

Simon Clarke: That is my belief, yes.

Sir Wyn Williams: But you also say that you have a belief that you were misled on a wider basis?

Simon Clarke: Yes, the Post Office repeated their protestations that, since day dot, there was nothing wrong with Horizon, when they clearly knew that there were issues with Horizon.

Sir Wyn Williams: All right. Thank you.

Sorry, Mr Blake.

Mr Blake: Not at all.

Just following on from that, can you assist us with who it was that you were communicating with at the Post Office in respect of the Seema Misra file?

Simon Clarke: Jarnail Singh, Rodric Williams, at arm’s length, first of all, Susan Crichton and Christopher Aujard. I think that’s probably about it. We had meetings occasionally – I had no direct – I think I had a meeting with Christopher Aujard and I had maybe one or two meetings with Susan Crichton. By and large, everything I got came through Jarnail Singh and Rodric Williams, but you could see from the emails that those two individuals were very regularly copied in to this correspondence, so that’s why I include them as well.

Mr Blake: Thank you. We see from the document that is currently on screen that you completed the Misra full review on 22 January 2014 – is that correct – or thereabouts?

Simon Clarke: That’s what it says, yes.

Mr Blake: Can we please go to POL00066853. This is an email that you will have seen in your preparation.

Simon Clarke: Yes.

Mr Blake: The bottom email, from you, says, “Phew”. Now, the suggestion might be that that was “Phew, we don’t need to disclose anything to Seema Misra”?

Simon Clarke: Yes, that’s not what it meant. I had just conducted a review of the case, from probably 8 or 9 inches of transcript of evidence. The “phew” was in reference to that task.

Mr Blake: Thank you. If we could please turn to the December document, that’s POL00198595. This is the December advice, I think you were talking about, where, at page 11, it addresses Seema Misra’s case – at the bottom of the page, and scrolling down – and a very clear picture is painted there that there should be disclosure to Seema Misra.

Simon Clarke: Yeah.

Mr Blake: That is 5 December 2013. You’ve explained your reasons for having formed that view but is it now, on reflection, your view that, actually, in effect, your gut instinct was the right one?

Simon Clarke: Yes, clearly.

Mr Blake: I’m going to look at one other case review, it’s earlier in time. It’s POL00060715. We’re going back to 19 July 2013, and this is the case of Hutchings. If we could look at page 2, please. At the bottom of page 2, you set out Mrs Hutchings’ defence at trial – sorry, in her prepared statement at interview. She said that she migrated to Horizon Online in 2010:

“Ever since we have been with [Horizon Online] the balances have been wrong …

“At no stage have we stolen money … nor are we aware of making mistakes in our day-to-day [operations].

“Because of this we have always believed that the incorrect balances would be sorted out through transaction corrections.”

She then, over the page, please, sets out various other issues: difficulty with the helpline and various other hardware as well.

Page 5, please, is your conclusion. If we scroll up to page 15, you say:

“… given the chronology and circumstances of the guilty plea, and the reference in the Basis of Plea to the leading case on the topic of the charging of False Accounting, the Second Sight Interim Report and the Helen Rose Report would not have been disclosable during the currency of the prosecution and accordingly do not now fall to be disclosed.”

Is that a conclusion that you stand by?

Simon Clarke: No.

Mr Blake: Why not?

Simon Clarke: On the face of it, if you look at the case of Eden, which is the case that’s being referred to here, and I paraphrase, the Court of Appeal talks about it being culpable, if you like, to – let’s rewind slightly.

People will false account in order to explain losses. The case of Eden, deals with that proposition by indicating that people who have done that will be guilty of the offence regardless, even if the falsification is simply to put off the fateful day when they have to account for their actions.

I think I was overly influenced by what the Court of Appeal said in that case, without paying enough attention to the reasons behind the pleas themselves, and the reason behind the pleas themselves were patent: Ms Hutchings didn’t know why the errors were occurring but was seeking to – as it’s describes in Eden – put off the fateful day.

Mr Blake: Looking back at these two examples, are they indicative of, on reflection, an overly-narrow approach to disclosure to people who had been convicted of criminal offences?

Simon Clarke: Yes, I think I suggested this morning that we probably got a bit case hardened, a bit cynical, and we shouldn’t have done, and I think these are good examples of that – well, for my part. I don’t speak for my colleagues.

Mr Blake: I’m going to turn now to the topic of mediation, and the mediating of cases where convictions had occurred. Can we please turn to POL00125222. This is an advice of 9 July 2014. So we’re moving on now to the summer of 2014. You were asked to advise on the differentiation between a caution, guilty plea and a full trial verdict, “appeal rights exhausted”, and whether there is an impact on the risk level to the Post Office.

Can you assist us with why this advice was produced?

Simon Clarke: I think that Post Office wanted some help with the way in which the courts, the process, approaches these individual issues. I think there was a deficit of knowledge in criminal procedure in Post Office and in the Mediation Scheme and they wanted to understand how things worked.

Mr Blake: If we could turn to page 5, please, paragraph 17. I’m just going to read those final paragraphs, 17 onwards. You say:

“Given that no applicant has thus far sought to obtain permission to appeal from the Court of Appeal, it may properly be inferred that none will do so save in the event that some new circumstances arises which alters the position. The request by some applicants that [the Post Office] assists in this process is an example of where, if [the Post Office] were to accede to such a request, such a change could result in an appeal.

“Of more concern in the context of appeals launched off the back of the Mediation Scheme, is the potential for inadvertently placing a different gloss or interpretation on facts, or otherwise saying anything which may be said to be inconsistent with the way in which the case most originally prosecuted. There, the risk to [the Post Office] is substantial – a concession for instance that a Horizon shortage was or may have been the result of human error, could fatally undermine the original basis for the prosecution and conviction. Such a concession might well lead to an appeal.”

“Thus in the context of the risk of mediating a case if the [subpostmaster] has a caution or conviction, the risk is twofold:

“i. Whilst no [subpostmaster] or clerk convicted of an offence prosecuted by [the Post Office] has sought to lodge an appeal … mediating a case … has, off the back of the scheme, already appealed and lost, a [subpostmaster] may receive material on which he might base a further appeal.

“ii. An applicant [subpostmaster] who has not sought to appeal against his conviction may nevertheless do so in circumstances where he received material upon which he could found proper grounds of appeal.

“We judge the risk to the Post Office of the former as being minimal, if non-existent. We judge the risk to [the Post Office] of the latter occurring as being substantial, and only mitigated by very careful consideration of [the Post Office] Mediation Responses prior to publication to the Working Group or the applicant.”

Reflecting on what is said there – and we’ll come to look at more of your advice in respect of the Mediation Scheme – do you think that it was right to caution against mediation that would provide people with material upon which they could found proper grounds of appeal?

Simon Clarke: I was fundamentally opposed to the proposition that those who had been convicted of criminal offences ought to be allowed into the Mediation Scheme. My view has always been, and remains: I cannot understand how you can mediate with somebody whom you have caused to be convicted and sentenced for a criminal offence. To do so would undermine the very proposition that you had properly prosecuted and caused them to be convicted in the first place. The proper place for a complaint against the conviction and sentence was the Court of Appeal and I very strongly felt that, by allowing people who had been convicted into the Mediation Scheme, was trespassing upon the territory that was properly the Court of Appeal’s.

Mr Blake: The way that it’s phrased though, in this advice and future advices, relates to giving potential appellants the material upon which they can found their appeal. How is that improper?

Simon Clarke: Because the disclosure process that we were operating was intended to deal with that problem.

Mr Blake: The concern that you’ve raised here, though, is wider than just disclosure of, say, the Gareth Jenkins, the Second Sight Report or the Helen Rose Report, which is what your review was looking at. It’s simply a concession that, for example, a shortage may have been the result of human error. So it’s small pieces of information is your concern, going to potential appellants, on which they can found proper grounds of appeal.

Simon Clarke: I think it goes beyond that. The very proposition that you are mediating with the a convicted postmaster can be taken to the Court of Appeal as a ground of appeal, was the concern I had.

Mr Blake: Looking back at it now, do you still hold that view or do you think that was unduly restrictive?

Simon Clarke: Two answers: my view now about trespassing on the territory of the Court of Appeal remains. I’m a bit straight line like that, as I think I suggested earlier. But I agree that what I formulated here is too restrictive but it all encapsulates the very basis of my opposition to mediating with those who had been convicted in the first place.

I just thought it was – well, there were two things I thought: the first was I thought it was the wrong way round; and the second – and this is why I was opposed to the Mediation Scheme, in general, as far as those who were convicted – is because I saw it as a way of Post Office keeping them quiet, and I thought that was improper as well.

Mr Blake: Can we please turn to WBON0000870. I’m taking you to this version just because there was a redaction to, for the purpose of the transcript, POL00148710, although I believe that redaction may now be lifted.

It’s the bottom of the page. Sorry, could we go to the bottom of page – yes. If we could scroll down slightly, thank you. There’s an email from Martin Smith to Andrew Parsons:

“Please find attached the Advice of Simon Clarke which contains speaking notes as requested.”

Can you recall what the purpose of the speaking notes was?

Simon Clarke: I think it was set out in the earlier email. Wasn’t it because there was a going to be a meeting of the Working Group and somebody wanted a shorthand way of describing what I was saying in my advice? I am slightly speculating but I think that’s what – the idea of the speaking note. So I did the advice in full and then I think at the end I gave some bullet points as to how to encapsulate these in short form.

Mr Blake: If we scroll up, please, we then have an email from Andrew Parsons to Mr Smith, and he says, as follows, he says:

“At the Working Group meeting last Thursday, the Post Office floated the idea of not mediating criminal cases (as per your advice) and received fierce pushback from the Justice for Subpostmasters Alliance and some resistance from Tony Hooper. For various reasons we never directly addressed the questions of mediating [two named cases] those questions are likely to be raised on the weekly Working Group call on Thursday.

“The Post Office would prefer to avoid leaving the Working Group with a ‘yes/no’ decision on whether to mediate a criminal case or not.”

He says further down, he says:

“Please bear in mind that [the Post Office] are going to get pushed hard on this topic by the Justice for Subpostmasters Alliance/Tony Hooper so your advice needs to be very robust. We may need to set up a meeting/call with you and Post Office so they can test your thinking.”

So you were aware at this stage that Sir Anthony Hooper, former Court of Appeal judge, was strongly in favour of mediating cases?

Simon Clarke: I don’t know about strongly in favour. I knew he was in favour of it, yes.

Mr Blake: We see then another advice, the second advice, 15 July. That’s POL00148720. What was the purpose of this second advice? Was this to set out in more detail –

Simon Clarke: I think.

Mr Blake: – so the information you had already set out?

Simon Clarke: I think so, yes.

Mr Blake: There’s a section, if we scroll down, “Criminal Offenders and Mediation”:

“It is our considered view that no applicant guilty of a criminal offence committed against the Post Office should be allowed into the Scheme, for to mediate such applications will be to leave [the Post Office] open to a number of alarming consequences. These consequences include, but are not limited to …

“The fact of entry into the scheme … indicates that [the Post Office] is at least prepared to concede that they may have erred.

“Similarly, the fact that one such applicant has been allowed to enter into the scheme sets an unfortunate precedent …”

Then we have iii, it says as follows, I’m going to read to you the final sentence in iii. It says:

“Hear the risk to POL is substantial – a concession for instance that a Horizon shortage was or may have been the result of human error would certainly undermine the original basis for a prosecution and conviction founded upon the reliable and integrity of Horizon, perhaps fatally.”

That’s an expansion of the point –

Simon Clarke: Yes.

Mr Blake: – that we were previously looking at.

Then if we scroll down to iv, you say:

“The very process of mediating … gives rise to the possibility that [it] may yield results … the risks are manifest:

“i. Any competent lawyer would advise that such an outcome represented a substantial concession by [the Post Office] to the effect that the conviction or caution was ‘unsafe’. Such advice would inevitably lead to an appeal.

“ii. The setting of a precedent …”

If we scroll down:

“iii. The message sent by the mediation of such [applicants] will, in our view, never be a positive one. Honest [postmasters], staff agents and employees … may feel undermined and devalued.”

Then you offer further potential and, in your view, likely, side effects. This is where we get to the issue of publicity, and you say as follows, you say:

“Whilst the issue is strictly outside of our criminal purview, we feel bound to point out the potential for adverse publicity, generated by the mediating of criminal applications and particularly where some concession, agreement or payment is made by [the Post Office], is inestimable.”

You refer there to the “Knock-on” effect, you, also at iii speak to a considerable assessment and disclosure exercise that would be caused; and iv, claims for compensation for incarceration, loss of reputation, loss of income and assets, and for general loss.”

Looking back at those four topics, do you think that they were appropriately contained within your advice?

Simon Clarke: These represent my fundamental opposition to those convicted of criminal offences being entertained in the Mediation Scheme at all. But, yes, I agree with the proposition you advance. They’re not really proper considerations, are they?

Mr Blake: Because if, for example, in respect of publicity, if somebody has properly been given information that allows them to appeal and others find out about it, there’s no problem with that, is there?

Simon Clarke: No. No. I think my concern – my more valid concern was the fundamental one that I’ve already expressed, which goes, if you mediate with somebody with whom you’ve been involved in convicting and sentencing, you are immediately saying to them: “We haven’t done our job properly and you should go to the Court of Appeal”. And my view has always been that is the venue for such a complaint.

Mr Blake: That is a risk that is identified in this advice.

Simon Clarke: Yes.

Mr Blake: But do you agree or accept that, in fact, if you look at this advice in the round, there are number of other factors that you’ve highlighted and relied upon that are not proper –

Simon Clarke: Yeah, I think went too far. Yes, I agree with that.

Mr Blake: Could we please look at page 4. You say you went too far; why did you go so far?

Simon Clarke: That’s difficult to assess this far down the line.

Mr Blake: Was there a concern within your firm that, in fact, you had been involved in the prosecution of subpostmasters?

Simon Clarke: No. I think it was more to do with the concern within Post Office that they were keen to avoid adverse publicity. And I suppose, to a degree, therefore, we and I are pandering to that concern here.

Mr Blake: There’s then an alternative approach set out in paragraph 7, and it says:

“It is suggested that rather than mediate applications for criminal applicants, an alternative process be adopted. That proposed process consists of the holding of face-to-face meeting with the criminal applicant so as to permit [the Post Office] to both frame a different agenda and to ‘explain POL’s findings’ rather than to ‘settle’ a dispute, in circumstances where it is made clear that no compromise is being offered.”

Those exact words are contained in the email from Mr Parsons that I took you to before. Do you recall copying the alternative approach that was suggested by Mr Parsons?

Simon Clarke: I don’t recall it but it seems likely.

Mr Blake: Why is that? Were you here justifying a position that Bond Dickinson had taken?

Simon Clarke: Well, can you move it up a bit to see what I said?

Mr Blake: Yes. Perhaps we can see it side by side with WBON –

Simon Clarke: No, no, forgive me. This particular document, can I see paragraph 8, please?

Mr Blake: Yes, absolutely.

Simon Clarke: Yeah.

Mr Blake: It’s phrased in the terms of “We are of the view of X, Y, Z”, but, in fact, it also seems to have been the view of Mr Parsons, prior to this being written. Are you in some way selling a combined approach that avoids mediation with those who had been convicted?

Simon Clarke: No, I’m setting out at paragraph 7 the proposal that appears in the Bond Dickinson email, and, in paragraph 8 I’m saying it should not happen. I was and remain – “horrified” is the wrong word, but I did not like the proposition that went “We should have discussions of any sort with those who had been convicted by Post Office of criminal offences”, because (a) it gave those persons false hope as to what may or may not be the outcome of those discussions, but (b) it goes back to my central thesis, that the complaints were the purview of the Court of Appeal and for Post Office to pretend to discuss potential remedies for people who had been convicted without those remedies coming from the Court of Appeal, was frankly dishonest. I felt and feel that this was an attempt by Post Office to keep people quiet.

Mr Blake: Thank you. I’m going to take you to a couple of emails of 8 October 2014. Can we start with POL00349361, please. It’s the bottom email. You say to Jarnail Singh:

“I suggest that strenuous efforts are made to dissuade Sir Anthony Hooper from exercising his casting vote in favour of permitting any criminal applicant into the Mediation Scheme, particularly where the issue is ‘… whether the [Post Office] would agree to support an application for permission to appeal that conviction’. If not:

“Many of the remaining 37 criminal Applicants will seek a similar concession, no doubt spurred on by [Second Sight].

“If an appeal succeeds: Horizon’s reputation would be fatally damaged; a further disclosure exercise would be required; and further appeals would be launched including some of those 300+ criminal convictions we have reviewed.

“Whilst [the Post Office] could refuse to mediate this issue, the publicity generate by [Second Sight] would be unfortunate.”

Do you think those concerns were appropriate?

Simon Clarke: This is me again saying to Post Office “You should not include convicted postmasters in the Mediation Scheme”.

Mr Blake: Taking, for example, number 2, “Horizon’s reputation being damaged, further disclosure exercise, further appeals”, they in themselves would not have been a bad thing, would they –

Simon Clarke: No.

Mr Blake: – if they were based on –

Simon Clarke: Sorry, I’m talking over you.

Mr Blake: If they were based on new disclosures being made, that wouldn’t be a bad thing?

Simon Clarke: No, item number 2 is a statement of fact. If you went down this path, this is likely what would happen.

Mr Blake: But it’s part of your reasoning why strenuous efforts to should be made to dissuade Sir Anthony Hooper?

Simon Clarke: It’s part of my efforts to stop them from doing that which I thought they ought not to do.

Mr Blake: Do you think, looking back at number 2, those were appropriate –

Simon Clarke: No.

Mr Blake: – considerations to have had?

Simon Clarke: No.

Mr Blake: No? We then see at POL00349378, I think Mr Singh has asked you to email again on, if we scroll down, we can see the same issues, same day. Do you recall, it’s a later email, I think despite the time stamp here showing 12.34, it is, in fact, a later email to the one we’ve just been seeing. Might you have been asked to send one that could be forwarded on, for example?

Simon Clarke: It’s likely.

Mr Blake: We see there very similar points being made.

Simon Clarke: Yes.

Mr Blake: If we scroll down, please. If we have a look at, for example, 2(iv), it says:

“The Court of Appeal sits in open hearing and the press are permitted to attend and report upon proceedings. Given media interest thus far it is inevitable that a (largely hostile) press would attend and report widely on the proceedings.”

Do you think that was an appropriate consideration?

Simon Clarke: It’s a statement of fact as to what would happen. It’s not a proper consideration. But it’s a statement of fact as to what I thought would happen.

Mr Blake: Is it proper you to have advised the Post Office that an implication of conducting mediation with those who are convicted is that there could be effectively bad press?

Simon Clarke: Yes. Because I’m seeking to dissuade them from following that path and this is one of the tools with which I sought to dissuade them. I accept, it’s not a proper consideration in the decision as to whether or not to mediate. My concern was that those convicted of criminal offences ought not to be in the Mediation Scheme at all, and this is a further effort on my part to prevent that happening and, in that context, I thought it was an appropriate tool. This is what will happen if you don’t follow my advice.

Mr Blake: We do see, and we’ve seen from some very early documents that I’ve taken you today, the repetition of concerns about the press, concerns about –

Simon Clarke: Yeah.

Mr Blake: – about publicity, we have that public interest immunity hearing, avoiding press reported on issues that were then arising. Do you think you were unduly or overly concerned about press intrusion?

Simon Clarke: I think the PII hearing goes into a separate category but, putting that to one side, all of the rest of it, it was made very clear to us by Post Office that that was a major concern of theirs and I’ve used the word “pandering” and I don’t resile from that.

Mr Blake: Who at the Post Office was concerned about it?

Simon Clarke: Oh, the people I dealt with: Rodric Williams, Jarnail Singh.

Mr Blake: Could we please turn to POL00150390. This a draft letter to Sir Anthony Hooper, 19 December 2014. You say:

“We are asked to suggest the text of a letter to Sir Anthony Hooper …”

Halfway down 2, please. Halfway down, there’s just a sentence there that I’d like a little bit of clarity on, you say:

“For Sir Anthony to suggest that, because an offence of false accounting could have been founded upon a pre-existing but unidentified Horizon fault such that culpability of the offender is reduced because there may be no real loss, takes matters no further and indeed misses the point.”

Can you assist us with what you meant there?

Simon Clarke: It is parroting or paraphrasing what was said in Eden, wasn’t it?

Mr Blake: Can you expand on that, slightly?

Simon Clarke: Going back to the authority of Eden, about false accounting to hide unexplained loss, thereby putting off the fateful day is still false accounting, is essentially what Eden says, and I’m paraphrasing that here.

Mr Blake: If we scroll down, it’s paragraph 4 that has the proposed wording. I’m just going to take you to a few paragraphs from this. The second paragraph down ends as follows, it says:

“… I would point out that in every case the available evidence has been considered and nothing has been identified which could be said to render the conviction unsafe.”

“We are concerned that by permitting the hearing of one convicted applicant’s case, we may be setting a precedent which others would wish to follow, where necessarily they could not. This is particularly true of those charged with fraud as opposed to false accounting – in many cases the facts were similar, cash was being declared as on the premises when it was not.

“We are further troubled by the possible implications which may arise once an applicant has had his or her their hearing. We consider that there emerges a clear potential for the launching of appeal proceedings in circumstances where there should be none. The suggestion that the identification of some fault or root cause in the Horizon system in order to determine liability for an underlying loss might permit a mediated settlement with those convicted of false accounting outside of, or exclusive from, the criminal legal process is in our view plainly misconceived.”

Over the page, please, to the penultimate paragraph on page 3. You then point to substantial constraints, that’s halfway down this paragraph, to the process: “

“… both by reason of the ages of some cases and the consequent limited available of information and papers. Further complications arise because of number of applications contain, at best, significant misrepresentations as to law and asserted fact, and in some cases, manifest lies. Finally on this point, the logistics and expenditure required to complete such an exercise would not be inconsiderable and clearly outweigh any possible benefit, which we do not in any event consider there to be.”

Finally, this paragraph:

“In terms of likely appeals arising out of the mediation settlement, we are of the firm view that such an exercise would be an exercise in futility, for as you [are] aware, the Court of Appeal are concerned only with whether, upon all the evidence presented, a conviction may be safe. Evidence of a guilty plea, tendered by a defendant with the benefit of legal advice and in full knowledge of the consequences, would be clear evidence of guilt notwithstanding that there may have been an unidentified Horizon fault.”

These are all very strong words proposed in a letter to a former Court of Appeal judge. Why did you consider your view to have been better than Sir Anthony Hooper’s?

Simon Clarke: We’re all lawyers. We’re all entitled to take contrary views.

Mr Blake: I’m going to read to you the final paragraph on this page. You refer there to an alternative process and then, if we scroll down at the very end, you say, or you propose saying, sorry, at the top of page 5 – you’re commending an alternative approach as:

“… the best method of achieving a just and equitable outcome for all concerned, without engendering any false hope and the launching of misconceived appeals.”

Are you aware that the Post Office considered this to be too strongly worded?

Simon Clarke: I didn’t know that.

Mr Blake: Could we please look at POL00150493, at the bottom of page 1. This is an internal Post Office email and it says, as follows:

“Earlier in the week Chris asked me to draft him a letter to Tony Hooper fulfilling the request to look again at Post Office’s approach to mediating criminal cases. We had a draft from [Cartwright King] that contained some helpful material but tone was not ideal …”

I mean, it doesn’t say that it was too strongly worded, I suppose, but were you aware that the Post Office took a different view to you on the concerns raised in your letter?

Simon Clarke: I am now because I was taken to this in – during the disclosure process of these proceedings but I certainly hadn’t seen that before. Forgive me, the short answer to your question is: no, I had no idea.

Mr Blake: I think it’s fair to say from your evidence today you very much stand by your view on –

Simon Clarke: I do.

Mr Blake: – mediation?

Simon Clarke: I do, yes.

Mr Blake: I’m going to take you to two very brief topics before I finish and then we will take a break before questions from Core Participants.

The first is stopping prosecutions. Can we please turn to POL00114253. This is advice from you of 12 September 2013, and it starts:

“We have been provided with a copy of Bond Dickinson’s helpful note entitled ‘Civil claims by [subpostmasters]’ …”

You’re commenting on that note. Do you recall what that note was about?

Simon Clarke: Not at this stage but this will help.

Mr Blake: If we scroll down, “Cases terminated”, you say as follows:

“To clarify, whilst a number of criminal prosecutions against subpostmasters and clerks have been terminated since the publication of the Second Sight Interim Report, none was stopped because of errors found in the Horizon system. In all cases the prosecution was stopped because it was considered that the continued prosecution of a particular subpostmaster or clerk no longer remained in the public interest.”

Do you think that is accurate?

Simon Clarke: Yes.

Mr Blake: Do you think it was also because of an evidential issue with regards to being able to prove the reliability of the Horizon system?

Simon Clarke: By and large, that is the reason why the prosecutions were stopped. That’s different from being stopped because of errors. It’s because Post Office were not able to demonstrate the integrity of the system because they didn’t have an expert witness who was able to do so and, therefore, it – we took the view it was not in the public interest to continue those prosecutions.

Mr Blake: But is that a public interest issue or is that an evidential issue?

Simon Clarke: I think it’s both.

Mr Blake: Do you think here and elsewhere, it might have been sold internally as a public interest issue?

Simon Clarke: No, I’m not selling anything. My view was that this was a public interest issue. It is not in the public interest to prosecute people if you can’t prove your systems were working properly.

Mr Blake: You say here:

“In all cases the prosecution was stopped because it was considered that the continued prosecution … no longer remained in the public interest.”

It seems you’re ignoring there the fact that, in fact, you couldn’t prove the reliability of the Horizon system?

Simon Clarke: No, you have to remember that the prosecutions that were stopped were stopped after a review. They were stayed, if you like. The investigations were pending. We devised a system called the stacked case system and, if I’m not mistaken, this is what we’re referring to here. And the problem with the stacked case process was that they remained incomplete for a period of time and there comes a time, under the public interest test, where too long has elapsed between the index offence, if you like, and whether or not it’s appropriate to continue to prosecute.

And I know there were advices written, I think mainly by Harry Bowyer, but I may have written one or two, which in terms said, “This case has been sitting around for too long because of our inability to find an expert witness”, which I can deal with separately, I have some comments about that. But, because of our inability and because it’s therefore been sitting around too long, it ought to be stopped, because it’s not in the public interest to continue it.

Mr Blake: Very briefly, because we are running out of time, what was your view in terms of the failure to find an expert witness? You’ve said you had some views.

Simon Clarke: Well, I thought we were strung along for that. My very firm advice right at the beginning was “You find an expert witness”, post Office said to me “Identify candidates”. I identified candidates, I recommended a particular organisation as being the most independent. I think it was Imperial College professors, I recommended. I advanced that recommendation to Post Office, they – I repeatedly said to Rodric Williams “When are we going to hear? When are we going to hear?” and it all came to naught, and I eventually heard on the Grapevine that the reason it all came to naught was because it was too expensive.

Mr Blake: Thank you. Very finally, theft and false accounting, I probably don’t need to take you to –

Simon Clarke: No, you don’t.

Mr Blake: – the advice. I don’t know if you’re aware of Sir Anthony Hooper’s evidence on that issue, effectively that your advice didn’t reflect the real world. What do you say about that?

Simon Clarke: I think in terms of pure black-letter law, I was correct; I think in terms of real-world behaviour, he was correct. I think that that people do see a plea of guilty to false accounting as being a plea of guilty to a lesser offence than one of theft. I accept that. My advice was directed, because sometimes I think that way, as a direct linear black line letter, both carry seven years, they are both offences of dishonesty, they’re equal. But I think Sir Anthony was right on his real-world take.

Mr Blake: There are those who watch this Inquiry who are interested in legal ethics.

Simon Clarke: Yes.

Mr Blake: Looking back and reflecting on that, do you think it was part of your job to reflect also the real world as opposed to the black-letter law?

Simon Clarke: Yeah, I think probably it was, yeah.

Mr Blake: Thank you.

Sir, those are all of my questions. We do have quite a few questions from Core Participants but perhaps this is the moment to take our mid-afternoon break.

Sir Wyn Williams: Let’s devise a plan before we do, though. How many questioners are there?

Mr Blake: Well, we have Ms Watt from the NFSP who is going to be very short. We then have Ms Allan, who represents Susan Sinclair. Between them, they’re going to effectively represent the Scottish side of things.

We then have Mr Henry, Mr Stein, Mr Moloney, who are all going to be relatively brief.

Then we have Ms Oliver, who has slightly more.

Sir Wyn Williams: Right. So what’s the time now?

Mr Beer: It’s 3.00, or almost 3.00.

Sir Wyn Williams: Right. Well, if we’re only having one break it had better be 15 minutes, which gives us an hour and a quarter, or thereabouts.

Mr Blake: Yes.

Sir Wyn Williams: So –

Mr Blake: Alternatively, we can take two 10-minute breaks, if that would take things easier?

The Witness: Could I just say I don’t mind running over, if that’s convenient for others, rather than come back tomorrow.

Sir Wyn Williams: I’m sure that that’s right, Mr Clarke, but I have already said that my concentration levels, starting at 9.45, start to wane, to put it mildly, once we are going significantly past 4.00.

The Witness: Okay.

Sir Wyn Williams: So, rather brutally, what I do is not make the witness come back but make the advocates ask their questions in much shorter form.

So I think what I’m going to say is that we’ll start the process with those advocates who intend to be five minutes or less, keeping strictly to that, and then, once they’ve finished, I will see how much time is left, and died it up accordingly. So we’ll start again at 3.15, and then we’ll take it like that, all right?

Mr Blake: Thank you very much, sir.

(2.59 pm)

(A short break)

(3.15 pm)

Mr Blake: Sir, we’re going to first hear from Mr Moloney.

Sir Wyn Williams: Right.

Questioned by Mr Moloney

Mr Moloney: Mr Smith – sorry –

Simon Clarke: I’m Mr Clarke.

Mr Moloney: – Mr Clarke, rather. That’s a great start. The only matter I’m going to ask you about is the public interest immunity application on 1 July 2013 and the only document I’m going to ask you to look at its POL00172804. First of all, in respect of this, you’ve said today that you spoke to defence counsel to give notice?

Simon Clarke: Yeah.

Mr Moloney: May I ask you what they said in response at all, if anything?

Simon Clarke: I don’t recall, to be honest. Usually, the response would be “Okay, what” –

Mr Moloney: I’m just going to try and keep it tight here. So I mean no rudeness, Mr Clarke, but there’s lots of people to ask questions.

Simon Clarke: Okay.

Mr Moloney: But you don’t recall. Do you recall what you said to them about what your application was in respect of or anything like that?

Simon Clarke: I would have said I’m making a public inquiry interest (sic) application and an application to adjourn the trial.

Mr Moloney: Right but no more details?

Simon Clarke: No more detail than that.

Mr Moloney: Thank you very much. Now, the material to be disclosed: you were always of the view that the information in the Second Sight Interim Report, as you understood it, was disclosable in the case of Samra?

Simon Clarke: Yes.

Mr Moloney: You said that the necessity not to infringe Parliamentary privilege was the real basis for your application?

Simon Clarke: Yes.

Mr Moloney: So, therefore, it was important to establish the origins and purpose of this report?

Simon Clarke: Yes.

Mr Moloney: Because, if you weren’t sure that there really were issues of Parliamentary privilege, then it would have been wrong to make an application for public interest immunity?

Simon Clarke: Oh, I agree.

Mr Moloney: So what steps did you take to confirm with Post Office that the report was a report where Parliamentary privilege had any relevance or application?

Simon Clarke: That’s where that information came from. I was told by Rodric Williams and Jarnail Singh that the report was privileged Parliamentary, and that I should ask for it – I gave my advice, on the back of them telling me that Parliament were going to get the report on 1 July. In the end, I don’t think they did but that’s what I was told, and I was asked “Could you apply for a certificate because it was privileged”, that I think – I can’t remember the exact wording but the wording was along the lines, I paraphrase, “Because we can’t publish it before Parliament has authorised it”.

Mr Moloney: That was both Rodric Williams and Jarnail Singh that you spoke to?

Simon Clarke: I spoke to both of them about it, yes.

Mr Moloney: Spoke to both of them and they both asked you to make an application for public interest immunity?

Simon Clarke: Post Office asked through them. I don’t know if you can say they both asked me, that rather suggests that each one separately asked me. I don’t think that’s the position. I was asked by them jointly, on behalf of Post Office, to make the application and that’s what I did.

Mr Moloney: As counsel, trial counsel, as it was, the trial starting 1 July, same day you make the application, as trial counsel, what were the legal principles that underpinned your approach to how public interest immunity might operate in those circumstances?

Simon Clarke: Well, I followed the case of R v H; R v C, which sets it out very clearly, those are the principles that applied.

Mr Moloney: Help me as to how that might apply, from H&C?

Simon Clarke: In what sense?

Mr Moloney: Well, what part of H&C do you suggest allows you to make an application on the basis of Parliamentary privilege?

Simon Clarke: Matter of national interest.

Mr Moloney: Matter of national interest. Right, okay. Now, there’s no express mention of Parliamentary privilege in your post-hearing attendance note, is there?

Simon Clarke: No.

Mr Moloney: So can we just look, just to make that clear, paragraph 14, please, which is on page 6 of 9. We see there – and this is obviously from a distillation of your understanding of the principles set out in H&C, possible to apply to the judge for a certificate, most often occurs in cases involving national security but the list is not closed and where the public interest may be the prevention of a widespread loss of interest in a public institution, et cetera, then that is your basis, but there’s nothing there about Parliamentary privileged, is there?

Simon Clarke: No, that’s the consequence of breaching Parliamentary privilege in a case – in this case. That’s what would happen if I didn’t apply for the certificate, and I reiterate that, if the application was in any way improper, the judge would not have granted it.

Mr Moloney: Well, those are the consequences of a breach of the publication of the report. There is no mention of the consequences of a breach of Parliamentary privilege in there, is there? There’s no mention of it.

Simon Clarke: If your suggestion is that I was not applying on the basis of Parliamentary privilege, then you are mistaken.

Mr Moloney: Let’s not bother about suggestions, please, Mr Clarke. Can we go on to paragraph 16, and here we see:

“In this case I took the view that such an approach to the problem might be appropriate.”

This links into paragraph 14 and you are there saying that, with Jarnail Singh, you took the view that the best way forward was to seek a ruling, grant of PII certificate:

“… that we need not disclose to the defence the fact that the Second Sight Report was to be presented to Parliament today and that the report contained references to the existence of bugs in both Horizon past and present to adjourn the trial.”

So no mention again there of Parliamentary privilege.

Then, at paragraph 24, we see that:

“… it’s worth commenting on the reasoning behind my advice that we seek a PII certificate in this case. [Post Office] were, rightly in my opinion, very concerned at the potential adverse publicity which would inevitably have been generated by the revelation of the existence of a (draft) Second Sight Report. To permit this information to enter the public domain [et cetera, et cetera]. Such speculation would have seriously damaged the reputation of POL and would have greatly undermined public confidence in both POL and POL systems. Our objective was to avoid such consequences: that objective was achieved.”

Again, nothing about Parliamentary privilege and the consequences of breaching Parliamentary privilege, other than, essentially, it’s not going to be great for Post Office.

Simon Clarke: I disagree with your characterisation.

Mr Moloney: Well, where is there any reference of the consequences of breach of Parliamentary privilege, if there is even obliquely, over and above the interests of Post Office?

Simon Clarke: It’s not in that paragraph and it’s not in the document but that does not mean that that was not the basis upon which I approached it.

Mr Moloney: I never suggested that, Mr –

Simon Clarke: I think you have.

Mr Moloney: I’m just asking you why it’s not there. Why isn’t it in there?

Simon Clarke: An oversight, a mistake, I don’t know. But it’s not there.

Mr Moloney: All right, then just to complete this, if we could look at paragraph 18, please. We see that the judge, His Honour Judge Chambers, was ultimately persuaded of the arguments advanced in support of the grant of a PII certificate.”

Then it says, “See paragraph 14 above”, by implication, those were the arguments in paragraph 14 that I’ve already taken you to that were advanced in support of the PII application, with absolutely no mention of Parliamentary privilege in paragraph 14. Why didn’t you say there, for example, “And of course we based all of that on the issue of Parliamentary privilege”?

Simon Clarke: Looking back, I can’t say. But the judge granted the certificate.

Mr Moloney: Yeah, and, therefore, it was appropriate if the judge granted the certificate?

Simon Clarke: Well, of course.

Mr Moloney: Right. In any event, you say that Parliamentary privilege was the basis for your application in respect of the Second Sight Report. Now, you had received information directly, both from Gareth Jenkins and from Post Office, hadn’t you, prior to this hearing?

Simon Clarke: Yes, I’d explained that.

Mr Moloney: Yes, and but you hadn’t seen the Second Sight Report?

Simon Clarke: No.

Mr Moloney: You’d received information from Gareth Jenkins. If we could look at, please, paragraph 7 of the report, just going up the page, and just at (i) there:

“He had informed the Second Sight Committee of two bugs which had affected Horizon.”

So that had been provided to the Second Sight committee, two bugs that had affected Horizon; he told you that?

Simon Clarke: Yes.

Mr Moloney: It told you directly that. Then at (v), if we could please, we’ve got the other matters there:

“It is his view that, were the defence to suggest a problem with Horizon, he cannot rule out that there may be other problems with Horizon.”

Yes?

Simon Clarke: Yes.

Mr Moloney: We saw as well – and we’ve no need to go there for time reasons – but at paragraph 6, a whole lot of information was given to you by Post Office directly, not looking at the Second Sight Report?

Simon Clarke: I never said that.

Mr Moloney: Well, let’s just have a look at paragraph 6, please. At the top. Yes:

“On 27 July and through the following day I was instructed that a number of post offices the Horizon system may have produced false balances. I am however informed of the following …”

Then you set out your instructions in relation to information from Post Office, or at (ii), “Horizon is not ‘bug’ free”.

Then going down, and this paragraph 6 without going through all of it, at (iv):

“A number of bugs have been identified …”

Then going down, to (vii):

“Hurst Lane … is not one of those post office identified as having been affected”, but you have received information from Post Office about what has been discovered, haven’t you?

Simon Clarke: The reason I objected to your question was because you said a lot of information had been given to me.

Mr Moloney: All right.

Simon Clarke: It hadn’t. The information that had been given to me is recorded here and is about two bugs, neither of which affected the Hurst Lane office. That was the –

Mr Moloney: You’ve had information from Post Office and you’ve had information from Gareth Jenkins directly, and you’ve been told by Post Office’s expert that he had informed the Second Sight committee of two bugs, which had affected Horizon, and it’s his view that, were the defence to suggest a problem with Horizon, he cannot rule out that there may be other problems with Horizon?

Simon Clarke: That’s the information I was given.

Mr Moloney: Why wasn’t that immediately disclosable to the defence?

Simon Clarke: Because I had to wait for the publication of the Second Sight Report.

Mr Moloney: Why did you have to wait for the publication of that Second Sight Report when that was information which undermined the prosecution case, which was known to you from the expert, commissioned by Post Office, who was the expert in Post Office’s prosecutions, that had come directly to you from him, why wasn’t that immediately disclosable?

Simon Clarke: Because I wanted a PII – we’re going to go round in circles here. I wanted a PII certificate on the instructions from Post Office to suppress the publication of that material until such time as Parliament had seen and released the document from whence this information comes, and I wanted time, as I explain in the document, to consider my disclosure duties before commencing on a trial and, in order to do that, I did not commence on a trial. And, in due course, the material was disclosed within a matter of weeks.

Mr Moloney: That had nothing to do with the Second Sight Report, did it, other than the fact that what their expert had directly told you was disclosable, it was there, and would eventually end up in the Second Sight Report. That was the view of the expert which was disclosable, wasn’t it?

Simon Clarke: That is an opinion you advance. I took the view that what the expert told me was what was contained in the Second Sight Report.

Mr Moloney: Thank you, sir.

Sir Wyn Williams: Just, my memory may be playing tricks on me, Mr Clarke, but my recollection of having made and adjudicated upon PII applications, that, although they’re done without the presence of the defence, they are either recorded by a shorthand writer or electronically.

Simon Clarke: Yes, that’s right.

Sir Wyn Williams: Was this one recorded?

Simon Clarke: I can’t say specifically. It should have been and I –

Sir Wyn Williams: That would be your expectation, that it would –

Simon Clarke: Oh, yes, certainly. I certainly didn’t ask for it not to be recorded.

Sir Wyn Williams: Fine. That’s all, thanks.

Mr Moloney: Sir, if it assists, the evidence of Mr Smith was that it was recorded.

Sir Wyn Williams: Right. I’d forgotten he’d said that, sorry.

Whose next, Mr Blake?

Questioned by Mr Stein

Mr Stein: Mr Clarke, I have a few questions for you. Can I take you immediately to a document, which is POL00006365, and it’ll come up on your screen in a moment, and we can go to the bottom of the document but I’m not going to ask that the – to do so, if you can take it from me, that the document is dated 8 July 2013. Okay?

Simon Clarke: Yeah.

Mr Stein: Right. So the sequence of events that relates to Mr Jenkins, and your concerns about his evidence that he’s misled the court, that’s what this is. So the sequence of events is this: that on 27 June, Martin Smith told you about an unpublished report, the Second Sight Report, which stated there were bugs in the Horizon system.

Simon Clarke: That’s correct.

Mr Stein: You’ve given your evidence earlier that you were very concerned and you wanted to find out who told them that?

Simon Clarke: Yeah.

Mr Stein: Okay? So that’s those events. That then led you on 28 June, with Martin Smith, to have the telephone call that you’ve given evidence about, that was recorded with Gareth Jenkins. Okay, so far?

Simon Clarke: Yeah.

Mr Stein: All right. Now, in between that time and 15 July, the Jenkins advice, the Clarke/Jenkins advice that we all call it, you wrote this advice, the one that’s up on the screen, which is dated 8 July. Okay. Now, it says under paragraph 1(i), “Alternative Fujitsu expert”:

“I suggest Fujitsu be told something in the following terms:

“[That Mr ‘Jennings’, it says here – Jenkins] has provided expert advice in a number of POL prosecutions … he was involved [in the] Second Sight process.”

Then it goes on to say basically counsel has advised POL that there ought to be at least one degree of separation between any expert witness called in support of POL prosecution and the SS process.

Okay?

Just help us understand what’s going on here. By this point, do you agree that you had come to the conclusion from the telephone call that Mr Jenkins had misled the courts?

Simon Clarke: I’d come to the conclusion that he’d not fulfilled his duties as an expert witness, as he should have done.

Mr Stein: As we understand it from your subsequent advice, when you came to write that, your conclusion at that point –

Simon Clarke: Yes.

Mr Stein: – was that he had not provided truthful evidence about his knowledge of bugs to a court or in his statements to court; is that right?

Simon Clarke: I’m being careful about “not provided truthful evidence” because I’m not a judge of his position; I don’t know why he did or didn’t do what he did. I had come to the conclusion that he had not complied with his duties as an expert witness and I think I make that very clear in my 15 July advice.

Mr Stein: You do but this is quite serious, it’s something that can’t be ignored, you’ve got to do something about it. Mr Smith said of you that you have a bit of a tendency, that does make sense, to write advices, to write documents to record your thoughts and –

Simon Clarke: Yes.

Mr Stein: – your advice.

Simon Clarke: Yes.

Mr Stein: Is that right –

Simon Clarke: It is.

Mr Stein: – what you tended to do?

Simon Clarke: It is.

Mr Stein: We can see a series of advices that relate to that that appear to show that you do exactly that.

Simon Clarke: Yes.

Mr Stein: Okay. So where we are looking at this particular advice, general advice here, saying “Alternative Fujitsu expert”, can you help us understand why it doesn’t say, on 8 July, “There are some really worrying things about Mr Jenkins, maybe I’m still processing it, but we need to tell Fujitsu that there’s a real hole opening under Mr Jenkins’ and Fujitsu’s feet”; do you follow?

Simon Clarke: I follow the question. I hadn’t, at that point, come to that definitive conclusion. I was still processing stuff. I had formed the view that Gareth Jenkins – at this point, 8 July, I’d formed the view that Gareth Jenkins could not and should not be it a witness in the future, not just because of the faults that he had alluded to but because he was an employee of Fujitsu.

Mr Stein: So what we’re getting is we’re getting layers of this: you’re processing what’s going on in relation to Mr Jenkins, you’ve come to the conclusion, by this stage, that there needs to be an independent, truly independent expert, not someone from Fujitsu?

Simon Clarke: Yes.

Mr Stein: Then you get the 15 July advice, whereby things have become more concrete in your mind –

Simon Clarke: Yes.

Mr Stein: – and you’re more trenchant, a word you used earlier about matters relating to Mr Jenkins.

Simon Clarke: Yes.

Mr Stein: Is, again, that fair?

Simon Clarke: That’s fair.

Mr Stein: After 15 July is Fujitsu told what has happened, and your trenchant thoughts about Mr Jenkins?

Simon Clarke: I don’t know.

Mr Stein: Right. Just to help us a bit further, did you advise eyes that Fujitsu, the employer of Mr Jenkins, should be told what you’ve discovered?

Simon Clarke: I would have said it orally to Rodric Williams, I don’t – I may be wrong, you may find something – I don’t know whether I put it in writing or not.

Mr Stein: Okay, so you just don’t know what’s happened in relation to Fujitsu?

Simon Clarke: No.

Mr Stein: You don’t know whether the impression that was left in this advice, which is only to tell Fujitsu about an independent expert needed, you don’t know whether that was ever corrected into “Oh my god, there’s a real problem with Jenkins”?

Simon Clarke: No, I don’t.

Mr Stein: Okay, fair enough. When Mr Altman came on board, in relation to you, quite a much more senior barrister or silk at that time, someone with considerable experience with lots of quality assurance tags around him – Treasury Counsel, Senior Treasury Counsel, First Treasury Counsel – he’s a very well-known individual. Did you have a discussion with Mr Altman when he first came on board saying to him, “I’ve never seen anything like this. We’ve got this expert, he’s not, it seems, been candid with the courts in statements and his evidence, we don’t know why but, surely we should investigate this”; did you have that discussion with Mr Altman?

Simon Clarke: He knew about it because he had seen my advices. Did I have a specific discussion with him about this subject? It seems unlikely that I wouldn’t have done.

Mr Stein: Quite.

Simon Clarke: But I don’t recall one. In terms of the other theme of your question, which goes, “Did you think it ought to be investigated”, it’s not my function. I did not see it then as my function to conduct an investigation into whether or not Gareth Jenkins was an honest or a dishonest witness. That was the role of Fujitsu and Post Office.

Mr Stein: Okay. Fine. You’ll agree with me that, by the time you’ve reached the 15 July advice and that has then gone to Mr Altman, that the position seems to be that Martin Smith is aware of the problems with Jenkins –

Simon Clarke: Oh, yes.

Mr Stein: – putting it neutrally, you obviously are as well, because you’ve written the advices that we’ve now been looking at, and Mr Altman is now on board.

Simon Clarke: Yeah.

Mr Stein: But nobody seems to say that this man needs to be investigated.

Simon Clarke: I don’t think you can say that. I don’t know what was going on in Post Office. If your question is: did any of the external lawyers, you’ve named them – Smith, me, Altman – have that conversation, I don’t believe we did, and I don’t believe we did because we would – and I’m convinced that Mr Altman would have taken the same view – it is not counsel’s function to conduct an investigation into the propriety of a witness.

Mr Stein: Okay, I don’t mean to cut you off, Mr Clarke, I just want to get to the final part –

Simon Clarke: Sure, that’s fine. Carry on.

Mr Stein: – so that we can conclude and other people can then take over.

Now, our work as barristers, particularly criminal barristers before the courts, and solicitor advocates before the Magistrates’ Court and Crown Courts, and so on, right, if we make a mistake and we misled the court and it’s an error, what do we normally do about it? We –

Simon Clarke: We confess. We tell the court we made a mistake.

Mr Stein: Precisely. We immediately do so, don’t we?

Simon Clarke: Yes.

Mr Stein: I don’t know whether you’re like me but, in that situation – we’ve all done it, we’ve all made errors, we’ve all unknowingly, unwittingly come to say something that then turns out to be wrong or we’ve made a mistake – frankly, if you don’t correct it, it makes you feel – you know, you don’t correct it immediately, you’re worried about it, aren’t you?

Simon Clarke: If you don’t correct it immediately, you’re guilty of professional misconduct.

Mr Stein: Well, quite. So what you try and do is, as soon as it is possible, at the right moment, to intervene with the judge to say, “Look, there’s been this problem”, you put your hands up and you say sorry and try and explain, if you possibly can, why; is that fair?

Simon Clarke: I agree.

Mr Stein: Right, okay. Now, in the situation we’ve got to with Mr Jenkins, we’ve reached the conclusion, by 15 July, that, for whatever reason, he does not seem to have told courts in statements and then in his evidence, live evidence, what he should have done. In other words, that there are bugs in the system, right? So you agree with that?

Simon Clarke: Sorry, I’m nodding, yes.

Mr Stein: You’re nodding agreement with me because I’m right.

Simon Clarke: But I’m saying, yes, because of the shorthand writer.

Mr Stein: I understand. Okay, fine.

So those courts are in an ongoing situation, whereby they have not been given the right evidence by Mr Jenkins by the time you’ve realised that; do you agree?

Simon Clarke: I do.

Mr Stein: Right. Now, if that was you when you’d made those errors, you’d immediately have corrected it, yes?

Simon Clarke: I would.

Mr Stein: Right. You’re now prosecuting on behalf of the Post Office, yes?

Simon Clarke: No.

Mr Stein: Ah. Right. Why do you say at this juncture that you’re not prosecuting on behalf of the Post Office?

Simon Clarke: Because I wasn’t.

Mr Stein: Okay.

Simon Clarke: I was not a –

Mr Stein: Unwrap that, would you?

Simon Clarke: Certainly, I was not a prosecuting barrister for the Post Office. I was never a prosecuting barrister for the Post Office. I was instructed to prosecute one case, the case of Samra. That case got to trial on 1 July and I stopped it and I then stopped every other case from being prosecuted thereafter. So I was not a prosecuting barrister; I was the barrister who stopped the prosecutions.

Mr Stein: Right, okay. So let’s think about your duties at that juncture. Were you operating under the duties that characterise an advocate working on behalf of the CPS, in other words someone with the higher duties in relation to prosecution, the minister of justice duties?

Simon Clarke: No.

Mr Stein: Right. So when you were providing the advice to the Post Office in relation to Mr Jenkins, “Look, there is this massive problem, really it’s a real problem”, was that to a private client?

Simon Clarke: Yes.

Mr Stein: Right. Now, thinking back, in relation to this, do you think that you were right to apply what appears to be a different ethical standard to the way that you dealt with the advice regarding Mr Jenkins by providing advice on the private client basis, versus the prosecution basis?

Simon Clarke: I don’t agree with the basis of your theory.

Mr Stein: Okay, well, then help unpick why on earth a barrister that has been qualified for quite some time by this point, you didn’t immediately say to yourself and all the other lawyers involved “We’ve got to do something about what Jenkins has said and correct it before the court”? Help us unpick it, if it’s not a choice between ethical situations?

Simon Clarke: My function as a barrister in front of the court is not to mislead the court. There is no circumstance in this Post Office saga in which I had misled a court, therefore I had no duty to go back to the court and correct anything I had or had not done. This was an entirely different situation. This was a situation where I had discovered, as I say, a witness in prosecutions in which I was not involved in had misled the court. It was therefore not my function to go back to the court that he had misled and tell the court, “Oh, by the way, court, that witness you heard from six years ago had misled you”.

My function was to advise Post Office as to what they ought and ought not to do in the circumstances that I had identified.

Mr Stein: Okay. Two last things: do you think that characterisation of your position is what was, if we were to try to look at it in the way that you’ve looked at it, what was really going on between yourself, Mr Smith and Mr Altman, in other words, it was advice to the Post Office, rather than trying to rectify problems that have occurred with Jenkins in the past to the courts?

Simon Clarke: No, I don’t agree with that at all. I was advising the Post Office on how they should deal with the problem that I’d identified, and that advice consisted of reviewing the cases, disclosing the material that ought to have been disclosed and setting up systems in order to ensure that that didn’t happen in the future. That was my function.

Mr Stein: I have, in my questions to you, built up, as you say, a sort of construct that relates to the way that ethical matters should be considered –

Simon Clarke: And I don’t agree.

Mr Stein: – or could be considered; you don’t agree with that? Did you ever have that discussion with Mr Altman? Did you ever say to him “What are we doing here? Are we advising Post Office or are we acting as prosecutors?” Did that discussion ever occur?

Simon Clarke: No, because I knew where my footing was. I was advising Post Office.

Mr Stein: Thank you, Mr Clarke.

Mr Blake: Thank you, sir. Next we have Ms Watt and Ms Allan.

Sir Wyn Williams: When you say that, do you mean they are going to ask questions alternatively, or what?

Mr Blake: No, Ms Watt has one very brief question and then we’ll move on to Ms Allan.

Sir Wyn Williams: Oh, right.

Questioned by Ms Watt

Ms Watt: Thank you, sir.

Good afternoon, Mr Clarke. I represent the National Federation of SubPostmasters. I’ll be quick.

You went to Scotland in September 2013 to meet with the Crown Office and Procurator Fiscal Service; do you remember that?

Simon Clarke: I do.

Ms Watt: This was because there was to be a termination of Scottish criminal cases on the basis that Horizon was unreliable?

Simon Clarke: No, it’s because Post Office had been informed by the PF Office that that was the route they wished to take.

Ms Watt: Now, when you went to this meeting, you knew about Gareth Jenkins, we’ve just been talking about that?

Simon Clarke: I did.

Ms Watt: You knew about bugs in the Horizon system?

Simon Clarke: I did.

Ms Watt: You knew about the Second Sight Report –

Simon Clarke: I did.

Ms Watt: – which although it said “no systemic issues” it had concerning material in it, did it not?

Simon Clarke: Yes.

Ms Watt: And you knew that prosecutions in England had been paused?

Simon Clarke: Yes.

Ms Watt: But, despite this, a group effort of two lawyers from Cartwright King and Jarnail Singh, Head of Criminal Law at Post Office, you took the time and trouble to go to Scotland to try to prevent the Procurator Fiscal from terminating those criminal prosecutions, didn’t you?

Simon Clarke: Yes.

Ms Watt: You told the Crown Office and Procurator Fiscal Service that you were getting an expert report that would show Horizon was fine and so the prosecutions did not need to be terminated?

Simon Clarke: No, I don’t agree with that.

Ms Watt: Why don’t you agree with that?

Simon Clarke: We told the Procurator Fiscal’s Office that we had concerns about the existing expert and that we were hoping to instruct a new expert, clearly that new expert, Post Office hoped, would identify that Horizon was sound, but – the –

Ms Watt: That never materialised, did it?

Simon Clarke: Sadly not, but I’ve explained why not. But the space around that instructing of the new expert was to be wide. The new expert was to look at all aspects of Horizon and determine whether it was working improperly, as well as properly.

Ms Watt: Of course, you were very pleased at the end of that meeting to note you’d achieved the objective: prosecutions in Scotland would not be terminated after all?

Simon Clarke: We didn’t think they ought to be terminated because we thought that they ought to be approached on a case-by-case basis and that was what I sought to persuade the PF’s representative ought to take place and, if you look at the note that was the result of that meeting, it explains very carefully that that is, in fact, what the PF’s Office agreed to do. They agreed to look at it on a case-by-case basis and the reason we advanced that proposition was because not all prosecutions were Horizon based – and I’ve given the example already of the postmistress who was loaning Post Office money to family members – and I think that might even have been a Scottish case.

I took the view, and I suspect if I’d have put it to Post Office they would have taken the same view, that it would be wrong to stop a prosecution in a case like that.

Ms Watt: Well, taking all of what I’ve put to you together, I’m suggesting to you that, collectively, you were all, at the very least, disingenuous in the way you sought to persuade a Crown Office officer, a representative of Scotland’s most senior law officer, the Lord Advocate, not to terminate such prosecutions; would you accept that?

Simon Clarke: No, of course not. That’s a preposterous suggestion.

Ms Watt: Thank you.

Questioned by Ms Allan

Ms Allan: Mr Clarke, I represent Scottish Core Participant, Susan Sinclair.

During your evidence, both written and oral today, you have mentioned the two-stage process for disclosure covered in England and Wales by the Criminal Procedure and Investigations Act 1996. What is or was your knowledge of the relevant continuing disclosure and regulation obligations of Specialist Reporting Agencies such as POL in Scots Law?

Simon Clarke: Such as who, sorry?

Ms Allan: Post Office Limited.

Simon Clarke: None.

Ms Allan: There is no continuing duty of disclosure –

Simon Clarke: No, you asked me what my understanding was, I think.

Ms Allan: What is your understanding?

Simon Clarke: I had very little. I don’t know what the duties were of a Scottish prosecutor.

Ms Allan: What I’m asking you is, what the duties were of Post Office, as a Specialist Reporting Agency in Scotland in terms of disclosure?

Simon Clarke: Oh, to inform the PF’s Office of everything they knew about.

Ms Allan: Were you aware of anyone within Post Office’s Legal Department or, indeed, the relevant team at Cartwright King, who was qualified to advise on issues on Scots Law?

Simon Clarke: In qualified (sic) King – forgive me, in Cartwright King there was nobody qualified. I don’t know what the position is or was in Post Office.

Ms Allan: Would you consider if there wasn’t anybody in Scots Law qualified that this was perhaps an oversight in Post Office?

Simon Clarke: Well, my understanding of the position was that you could not bring a private prosecution, which essentially is what we’re talking about here, in Scotland. You had to be an appointed specialist or similar to bring the matter you’re concerned with to the attention of the Procurator Fiscal and the PF would then be responsible for conducting the prosecution. That was my understanding of the process. Whether or not Post Office understood that or not, I don’t know.

Ms Allan: Thank you. Did you or the Post Office disclose your advice document regarding Gareth Jenkins’ reliability as an expert witness – for the record, that’s POL00006357 – or share your concerns with your counterparts in the devolved jurisdictions, such as the Crown Office and Procurator Fiscal Service in Scotland in July 2013?

Simon Clarke: That’s, forgive me, a two-part question. The first part of the question, did I disclose my advice? No, I wouldn’t have dreamed of disclosing my advice. It was privileged and it was privileged to Post Office. Whether or not Post Office disclosed it, which was their right or not, I don’t know. That’s the first part of your question.

In terms of the second part of your – I’m afraid you’re going to have to remind me of it, I’m sorry.

Ms Allan: As it was whether you shared your concerns as to the reliability of Gareth Jenkins?

Simon Clarke: Yes, I did. If you look at – I don’t know what the POL reference number is but there’s a note from BDO (sic) where they conducted a meeting with – I think Martin Smith was involved and a representative of the Procurator Fiscal’s office – in which they discuss the issues about Gareth Jenkins.

Ms Allan: Do you recall when that was?

Simon Clarke: I think I had was a day or so before the meeting I had with the PF’s Office.

Ms Allan: Okay, thank you.

Simon Clarke: It’s in the papers, and it very clearly says that BDO (sic) told the PF’s – Paul somebody – the PF’s representative about Gareth Jenkins.

Ms Allan: Okay, thank you. During your involvement with the Post Office, were you aware that the Post Office had instructed a Scottish firm, BTO Solicitors?

Simon Clarke: That’s who I’m referring to. BTO, yes.

Ms Allan: Thank you. What was your understanding of the instruction of BTO Solicitors?

Simon Clarke: I don’t know.

Ms Allan: Was BTO represented at meetings with Post Office, Cartwright King and the Crown Office and Procurator Fiscal Service in Scotland?

Simon Clarke: I think Martin Smith acted as a sort of liaison between Post Office and the PF’s Office and BTO. I had very, very little to do, other than the meeting, with the Scottish aspect or, indeed, the northern Ireland aspect of this thing. I was concentrating on England and Wales.

Ms Allan: Thank you. I know Ms Watt had touched upon this but I wanted to just touch upon your contact with the Crown Office, on 4 and 5 September 2013. Was this meeting at Crown Office’s request, as opposed to the Post Office’s?

Simon Clarke: I can’t say.

Ms Allan: You refer to the purpose of this meeting with the Crown Office in Scotland being to see if anything could be done to dissuade it from the status quo – the stated course of terminating all Post Office prosecutions in Scotland at this time, not just those relying on Horizon-based evidence, due to concerns of public relations storm for Post Office.

Simon Clarke: Sorry, I missed the last bit of that.

Ms Allan: Due to concerns about public relations storm –

Simon Clarke: No.

Ms Allan: – for Post Office?

Simon Clarke: No, I don’t accept that.

Ms Allan: I’m sure that’s in your witness statement but you go on in your witness statement at paragraph 57 to say you were ultimately successful in persuading it to review each Post Office case and make a decision on the basis of each individual case. Was this approach not contrary to your advice to Post Office in July 2013, that all ongoing or future prosecutions should be put on hold until an independent expert had been properly identified?

Simon Clarke: No, that’s what I was asking the PF’s Office to do, to put – not – the PF’s Office were proposing to stop everything to stay all of the prosecutions. I was asking them not to do that. I was asking them to do what we had done in England and Wales, which is to suspend or – what’s the word – just stop the prosecutions to the extent that they should be considered on a case-by-case basis before determining whether or not they ought to be discontinued because, to the minds of Post Office and my mind, it would have been wrong to stop prosecutions where the allegations were not dependent upon Horizon, and I’ve given an example, as to where that might be the case. That was my aim and that is what I achieved.

Ms Allan: At paragraph 194 of your witness statement, you describe being professionally and personally proud of the fact that you stopped POL prosecutions from 2013 onwards. We know now that there were up to 60 prosecutions in Scotland between 1999 and 2015 involving Horizon evidence, some of which were brought after your meeting with Crown Office in September 2013. Is it not the case that, actually, the Crown Office and Procurator Fiscal Service was eventually responsible for making that decision in Scotland?

Simon Clarke: I never claimed to have stopped the prosecutions in Scotland. I claimed to have stopped them in England and Wales, which was the primary jurisdiction with which I was concerned.

Ms Allan: If I refer to your witness statement, you stopped all POL prosecutions from 2013 onwards.

Simon Clarke: Yes, in England and Wales.

Ms Allan: But rather, in Scotland, you’d engaged in a course of actively seeking to dissuade the Procurator Fiscal from continuing in September 2013, and this was perhaps, would you accept, a missed opportunity and caused undue delay in putting a halt to Scottish prosecutions?

Simon Clarke: No, I don’t agree with your characterisation of what took place or what I said. What I said was I was proud to have stopped the Post Office prosecutions, I was referring to the England and Wales jurisdiction. I had no power or authority to even advise or stop Scottish prosecutions. That was a matter entirely for the Procurator Fiscal and so, no, I don’t accept your thesis.

Ms Allan: Okay, thank you Mr Clarke.

Mr Blake: Thank you, sir. It’s Mr Henry next. We have Mr Henry and Ms Oliver left.

Mr Henry: Sir, may I raise something very quickly? With great deference to you, sir, to whom I express my gratitude, but Ms Oliver and I have a substantial number of questions and I fear that it is simply not possible to conclude by 4.30, in fairness to Ms Oliver as well.

I raise it now, without, I hope, any impertinence but simply to apprise you, sir, of the gravity of the matters that I have to put to this witness and also, of course, the fact that Ms Oliver has a number of very important matters to address.

Sir Wyn Williams: I appreciate that – well, can I take it that your questions relate to one or more of your clients, first of all?

Mr Henry: They do.

Sir Wyn Williams: In the main, is it Ms Misra?

Mr Henry: It is Mrs Misra.

Sir Wyn Williams: Does it relate essentially to the conduct of the reviews in her case or is it wider than that?

Mr Henry: It’s wider than that.

Sir Wyn Williams: Well, if you just start, if you would, with the wider than that and let’s see where we are going.

Mr Henry: Yes.

Questioned by Mr Henry

Mr Henry: I want to understand your status. Were you advising the Post Office as a corporate or were you acting as part of a firm of solicitors that had effectively taken on board their entire prosecution facility and service?

Simon Clarke: Well, I think the latter is a proper characterisation.

Mr Henry: So the latter is the proper characterisation and we know, and there’s no need to take you to them, unless you specifically wish to, that you were aware of potential civil claims?

Simon Clarke: At what point are you referring to?

Mr Henry: 2013, July.

Simon Clarke: Yes, that’s likely.

Mr Henry: Yes. You were aware of potential civil claims and, in the course of that quarter between July and September, you had written some extremely accommodating advices to the Post Office stating that they would not be liable for malicious prosecution, the responsibility would fall on Cartwright King?

Simon Clarke: I don’t agree with your characterisation about “extremely accommodating”. I wrote advices as I saw the position to be.

Mr Henry: Well, it is extremely accommodating to say, “We’ll throw ourselves under the bus for you”, isn’t it, Mr Clarke?

Simon Clarke: I don’t agree with you.

Mr Henry: A curious thing that, in fact, they asked you to write a second advice on 12 September 2013 because they probably couldn’t believe their luck, Mr Clarke. You, on behalf of your firm, were basically saying, “We will take the rap for malicious prosecution. POL will be completely absolved from responsibility”. What were the pressures on you, Mr Clarke?

Simon Clarke: I’ll answer the first point first: you are wrong. And the second point is there were no pressures on me and I’m not resistant to pressure. Forgive me, I won’t take pressure.

Mr Henry: Well, we’ll see about that. I’m afraid I’m not wrong and, therefore, I’m going to put on to the record for you, sir, to review in due course POL00114253, 12 September 2013, and POL00198766, the 12 September 2013. But anyway, you accept that –

Sir Wyn Williams: Let me make sure I’ve got those correctly, Mr Henry: 00114253 was the first?

Mr Henry: That’s correct, sir.

Sir Wyn Williams: 198766 the next, and are –

Mr Henry: Sorry, 198766 next, after two 0s.

Sir Wyn Williams: That’s it, yes. Are they both date 12 September?

Mr Henry: They’re both date 12 September, they’re both written by this witness.

Sir Wyn Williams: Yes, thank you very much.

Mr Henry: Right. So you’re advising the corporate, and you have already given answers to Mr Stein this afternoon that you didn’t feel under any obligation at all to inform the solicitors of a woman who had gone to jail whilst pregnant because it was nothing to do with you?

Simon Clarke: I don’t think that’s what I said.

Mr Henry: Well, that’s the gist of what you said, isn’t it?

Simon Clarke: That is not what I said. I am not interested in gist; I’m interested in what I said.

Mr Henry: Well, then what did you say?

Simon Clarke: You know what I said, you have it on record.

Mr Henry: Do assist us: just tell us what you said?

Simon Clarke: I said that I did not think that Mrs Misra ought to have disclosure of the documents.

Mr Henry: You’re aware of your duty, aren’t you, where, after the conclusion of proceedings material comes to light that might cast doubt on the safety of the conviction, the prosecutor must consider disclosure of such material; you were aware of that?

Simon Clarke: Yes.

Mr Henry: You had a positive duty, either as part of the firm or to advise the corporate, that disclosure must be made to Mrs Misra as soon as possible?

Simon Clarke: You had my advice. You’ve seen it, you’ve read it. That was my view at that time.

Mr Henry: I’m going to ask you, please, to reflect on the 9 September 2013. You attended a conference at 2 Bedford Row, together with Bond Dickinson, members of the Post Office, to see Mr Brian Altman, correct?

Simon Clarke: Yes.

Mr Henry: Right. Mr Altman, called in 1981, just stood down as First Senior Treasury Counsel, illustrious reputation; did you rely on him, take a steer from him?

Simon Clarke: Of course.

Mr Henry: Yes. You were called in 1997. According to your website, you’ve had a high level criminal defence practice for over 25 years, so by 2013 you’d have had 16 years’ experience?

Simon Clarke: Yes.

Mr Henry: Right. It is inconceivable, I suggest, that you would have failed to recognise the relevance of your conversation with Mr Gareth Jenkins on 28 June, which you distilled in your Clarke Advice of 13 July 2013, or 15 July 2013. It is inconceivable that you would not that have recognised the importance of disclosure to Mrs Misra.

Simon Clarke: Forgive me, is that a question? Are you asking me whether or not I agree or disagree with the proposition?

Sir Wyn Williams: Take it that that –

Mr Henry: Just –

Simon Clarke: I beg your pardon?

Sir Wyn Williams: Take it that that is question, Mr Clarke.

Simon Clarke: Thank you. I disagree.

Mr Henry: You disagree. You would have keenly appreciated the vulnerabilities of Jenkins as a witness, whom you described as “fatally undermined” and you would have known the role that he played in the conviction of Mrs Misra, and you did know the role that he played in the conviction of Mrs Misra by 9 September 2013.

Simon Clarke: Yes.

Mr Henry: So did Mr Altman, didn’t he?

Simon Clarke: I imagine so.

Mr Henry: Yes, because you know that he had read all of the papers by the time you arrived. Now, let me just ask you this: if you were counsel for Seema Misra, what use would you have made of the material that you then knew, Mr Clarke?

Simon Clarke: I wasn’t counsel for Mrs Misra.

Mr Henry: Oh, come on.

Simon Clarke: I wasn’t counsel for –

Mr Henry: You understand what I’m saying. You have to look at the position of what the material would do if placed in the hands of competent counsel. Don’t evade: what would you have done?

Simon Clarke: I wasn’t counsel for Mrs Misra and I cannot answer that question.

Mr Henry: You know perfectly well that it would have given rise to an irresistible appeal, don’t you?

Simon Clarke: I know that’s what would have been the outcome but that was not your question.

Mr Henry: You’re splitting hairs, Mr Clarke. You know that it’s inescapable. You know that the material that was inside your head was absolutely dynamite; it was a bombshell; and it would have given rise to an inevitable appeal for Mrs Misra, as soon as it had been notified to her.

Simon Clarke: What I know is that I advised that the material ought not to be disclosed and that I now accept that that was an error.

Mr Henry: We’ll come to that. I’m asking you now about the 9 September because I’ve looked at two notes of that consultation with Mr Altman and it doesn’t seem that any discussion, either around the damaged or tainted status of Mr Jenkins and disclosure to Mrs Misra, arose at that conference, in either of the notes.

Simon Clarke: If you’re asking me was there such a discussion, I believe there was.

Mr Henry: Right. So, therefore, it follows that there must have been a discussion, as you say, you believe there was and, obviously, the discussion resulted in saying, “We’re not going to give her anything”.

Simon Clarke: I’m not sure that’s right. At some point, Mr Altman pointed to my January advice and said – and I paraphrase – “That’s wrong, you ought to disclose”. I don’t know whether –

Mr Henry: We’re talking about 9 September.

Simon Clarke: Well, if I can finish my answer. I don’t know whether or not that took place on or about 9 December (sic) or after.

Mr Henry: Let us go, please, to your knowledge of the civil because you would have realised, wouldn’t you, that, if Mrs Misra had appealed, it would have undermined the defence of the civil claims?

Simon Clarke: I had nothing to do with the civil claims and I had, at that time, almost no knowledge of civil law, other than what I’ve learnt at university years beforehand.

Mr Henry: You already conceded to me that you knew about the civil claims, when I put that to you.

Simon Clarke: What I said was I wasn’t part of them. I had no role in the civil claims.

Sir Wyn Williams: Sorry to be pedantic: at the point in time that I thought we were talking about, September 2013, there were indications of civil claims, as I understand it, in that a firm of solicitors had indicated a possibility of it, that is Shoosmiths –

Mr Henry: That is correct, sir.

Sir Wyn Williams: – at the beginnings of the mediation. Is that what you’re talking about, Mr Henry?

Mr Henry: I am, sir.

Sir Wyn Williams: Just so I can be clear. Right. Thank you.

Mr Henry: Let’s be clear about this. Bond Dickinson are there. What were Bond Dickinson doing at the conference or the consultation on 9 September 2013?

Simon Clarke: There came a time during that conference when – and there was another conference where it happened again – where the criminal lawyers in terms were asked to leave, and the conference continued after we had left.

Mr Henry: You knew that they were the Post Office’s civil lawyers?

Simon Clarke: Oh, yes.

Mr Henry: Yes.

Simon Clarke: Yes. That’s why, I assumed, we were asked to leave.

Mr Henry: You said earlier today that you should have asked the question why there were the transcripts of the Misra trial; do you remember saying that?

Simon Clarke: Yes, I do.

Mr Henry: Well, we can give you an answer for that and maybe you’ve already become aware of it by watching the Inquiry because, on 16 December 2010, Ms Talbot wrote an email to Mr Singh saying that the Misra transcripts will help with the civil actions. I ask you again: were you not aware of the unique and special importance that Seema Misra’s case formed as a precedent to deter civil and criminal claims?

Simon Clarke: The first knowledge I had about the email you’ve just referred to is when you just told me just now. I didn’t know about the existence of that email or that was how the transcripts came into being. The first I knew of the transcripts was when I was sent the transcript of the summing-up in, I think it was December 2013. Frankly, what you’ve just told me reinforces my view that I was drip fed the Misra file over the following year.

Mr Henry: Well, we’ll come to what you were given in December. But you were aware, were you not, that Mr Altman advised that Cartwright King be kept fully informed of the civil litigation?

Simon Clarke: I don’t know. If you say so then that must be right, but I don’t know. I took no interest and no part in the civil litigation.

Mr Henry: Right. Now, if I were to put to you that Mr Altman, by one way or another, had had his instructions chamfered, so that responsibility to advise on Seema Misra’s case fell squarely upon Cartwright King, what would you say?

Simon Clarke: I’d be surprised. It’s new to me, if that’s what happened –

Mr Henry: Right.

Simon Clarke: – and, frankly, from what little I know of Mr Altman, I would be surprised if he accepted that sort of pressure.

Mr Henry: You did gather, however, what his approach was to the Misra appeal; would you agree?

Simon Clarke: I don’t understand what you’re referring to. You say his approach to the Misra appeal; you’ll have to expand, I’m sorry.

Mr Henry: Well, if I were to put to you that, during the consultation on 9 September, he expressed concern that the slightest apology to a convicted person or the payment of compensation could, indeed, give rise to an appeal and he was concerned that Misra would use the Mediation Scheme to obtain some concession to allow her appeal.

Simon Clarke: Is that what it says in the note?

Mr Henry: That is what is said in a note sent by Mr Smith to Susan Crichton, following the consultation?

Simon Clarke: I know nothing of that note.

Mr Henry: But you were at the conference?

Simon Clarke: I was.

Mr Henry: You knew that Mr Altman was saying that he was worried that “other Misras would crawl out of the woodwork”, and that you shouldn’t mediate with Mrs Misra under any circumstances.

Simon Clarke: I don’t agree with your use of the phrase “crawl out of the woodwork”, I think that’s offensive to those who were convicted.

Mr Henry: I’m quoting from a note.

Simon Clarke: That may be so but I still don’t approve of it.

Mr Henry: There we are. What I’m suggesting to you is that you were fully sighted on the importance of Seema Misra’s case and that, if Seema Misra’s appeal succeeded, it would cause pandemonium for the Post Office, wouldn’t it?

Simon Clarke: You’re wrong about that.

Mr Henry: Why am I wrong?

Simon Clarke: I was not fully sighted. I –

Mr Henry: You were certainly aware of civil litigation?

Simon Clarke: I’ve told you – at that point, I was not. I’ve already explained that, I took no part in the civil litigation and I was not aware that there was any pending civil litigation in September 2013.

Mr Henry: But you’ve been sent, Mr Clarke – and you’ve advised upon it – you’ve been sent on 11 December 2013 an attachment which talks about civil claims against the Post Office and you were asked to advise on it?

Simon Clarke: You were asking me about September 2013.

Mr Henry: Well, I’m talking there – I was talking then about Bond Dickinson being at the consultation?

Simon Clarke: Well, I’m sorry, you didn’t make that clear. I did not know, in September 2013, of any pending civil litigation.

Mr Henry: Right. Do you agree or do you disagree with the fact that Mr Altman advised that the firm, Cartwright King, be kept fully informed regarding civil litigation?

Simon Clarke: I can’t say.

Mr Henry: Right. Well, is it that you can’t remember or that you choose not to answer?

Simon Clarke: I find the second proposition offensive. The first –

Mr Henry: Forget any construction on it, just answer the question.

Simon Clarke: I did. You offend me when you suggest that I’m not being truthful.

Mr Henry: I’m going to suggest to you that it is absolutely impossible that you could have advised in the way you did, given your experience, because – let’s look at the position. You knew that Horizon was essential to Mrs Misra’s conviction on theft, didn’t you?

Simon Clarke: I’m sorry?

Sir Wyn Williams: Sorry, Mr Henry could you stop a second, please.

Let’s get it out into the open. Are you suggesting that the two – I’ll call them reviews of whether or not disclosure to Ms Misra – are you suggesting that those two reviews were written in the way that they were for a completely ulterior motive and an improper motive, as opposed to being an assessment, whether right or wrong, about whether disclosure should be given?

Mr Henry: I’m trying to explore with the witness how he could have reached such an untenable conclusion, sir, which –

Sir Wyn Williams: Right. Well, he says he made a mistake – those are my words, not his. If you’re going to suggest to him that it’s something more than that, then put it in a form of direct question and then we can move on.

Mr Henry: Were you part of the suppression of material that would have allowed Mrs Misra to appeal promptly to the Court of Appeal?

Simon Clarke: No, and I think the suggestion that you put to me is a disgraceful one.

Mr Henry: Well, then I must explore with you, therefore, you wrote the Grant Allen advice on 16 July 2013; do you remember?

Simon Clarke: I don’t.

Mr Henry: You don’t?

Simon Clarke: No, I wrote many advices, you can’t –

Mr Henry: I’m going to quote from it, and if you would like to have it put up on the screen, by all means, but I’m going to quote from it first:

“In a case where we have relied upon Dr Jenkins as to the efficacy of Horizon, we are bound to disclose material which undermines his status as an expert witness.”

You wrote that on 16 July.

Simon Clarke: I accept that.

Mr Henry: How on earth could you have reached a different conclusion with Mrs Misra in January 2014?

Simon Clarke: Because I was talking about Horizon Online cases in which Gareth Jenkins had provided witness statements. Mrs Misra went back to pre-Horizon Online and, at that point, we weren’t looking at pre-Horizon Online.

Mr Henry: But you’ve already said that you were aware of bugs. You said that to Mr Blake, that you were aware of bugs in old Horizon as well.

Simon Clarke: Yes, but I was looking at new Horizon.

Mr Henry: But let’s just concentrate on this. You agree that Horizon was essential to Mrs Misra’s conviction on theft?

Simon Clarke: Legacy Horizon.

Mr Henry: Legacy, yes.

Simon Clarke: Yes.

Mr Henry: Okay. “Horizon could have additional bugs, Mr Blake asked you”, and you answered, “Old Horizon as well, we did”.

So are there bugs in Horizon? Your answer would be “Yes”, wouldn’t it?

Simon Clarke: Yes.

Mr Henry: Right. Horizon Online obviously, yes, but old and Legacy Horizon, yes.

Simon Clarke: Yes.

Mr Henry: Right. Was Horizon Online developed to replace a less robust system? You would agree yes, wouldn’t you?

Simon Clarke: I have no idea –

Mr Henry: Right.

Simon Clarke: – I’m not a computer expert.

Mr Henry: Well, let us move on, then. Did we, the Post Office, say at Seema Misra’s trial that everything was fine, bar one irrelevant rectified Falkirk bug? Yes, correct?

Simon Clarke: Are you quoting me?

Mr Henry: No, I’m just putting you the question: did the Post Office say, or claim, at Seema Misra’s trial, through Gareth Jenkins, that everything was fine, bar one irrelevant rectified Falkirk bug? Your answer would be “Yes”?

Simon Clarke: I can’t say. Without going back to the documents, you’re talking about a trial I took no part in years before I was anything to do with the Post Office. I can’t say what was and was not said at the Seema Misra trial today.

Mr Henry: But you knew this, didn’t you, Mr Clarke: you knew that the person who gave evidence against Seema Misra had failed to disclose the existence of bugs, errors and defects?

Simon Clarke: Yes.

Mr Henry: You knew that he had given evidence to the contrary?

Simon Clarke: Yes.

Mr Henry: You knew that he had put the Post Office in breach of its duty as a prosecutor?

Simon Clarke: Yes.

Mr Henry: How on earth, therefore, did you advise that she should not get disclosure when you advised in January?

Simon Clarke: I think you’ll find that I’ve already accepted that that was an error on my part.

Mr Henry: What happened, I suggest, is that, eventually, only the Second Sight Interim Report and the Helen Rose Report was handed over to the CCRC in 2015; that’s correct, isn’t it?

Simon Clarke: I don’t know what was given to them.

Mr Henry: Right. The Second Sight Interim Report just expressed the existence of bugs but not that someone had lied about them and misled the court; you would agree with that?

Simon Clarke: That’s what the Interim Report that I saw said, yes.

Mr Henry: Yes. So the critical factor of lying and misleading the court was not within the Second Sight Interim Report or the Helen Rose Report?

Simon Clarke: No.

Mr Henry: No. Again, I ask you, how could you, an experienced barrister, have come to the conclusion, having expressed the view in December that she should get disclosure and in January you said that she should not?

Simon Clarke: Just as Mr Stein suggested earlier: we all make mistakes and I have accepted I made a mistake.

Mr Henry: You offered as an explanation, as rationalisation, that you only had the transcript of the summing-up at the time you wrote the December document; do you remember?

Simon Clarke: I’ve told you: that was the fact of the position.

Mr Henry: Well, that is not what you write in the December document. In fact, in the December document you don’t say, “transcript of the summing-up” you say, “transcripts of the trial”. So you had clearly read the transcripts of the trial, paragraph 33 of POL00198595. You had clearly read the transcripts of the trial by the time you wrote that advice on 5 December, hadn’t you?

Simon Clarke: I disagree, and my disagreement is consistent with the writing of the 20 January 2014 advice and the “Phew” email.

Mr Henry: That “Phew” email, obviously one recognises the explanation you gave but are you sure that you were not put under pressure because you knew the central foundational, the – that she was the foundation stone, the Seema Misra conviction, for deterring civil claims and also deterring criminal ones?

Simon Clarke: I’ve already told you that I do not accept that contention. I did not have that knowledge and that is not – and I was placed under any pressure. And I would add, had anybody sought to place me under pressure of the sort you describe, I would have immediately withdrawn.

Mr Henry: Right. Can I just ask you then in conclusion to go back to 9 September 2013, and you’ve read, presumably, as part of the information pack the notes taken of the consultation by your colleague, Mr Smith?

Simon Clarke: Yes.

Mr Henry: You have. There was no investigation, as you have already explained to Mr Stein, because you didn’t feel that it was appropriate, into why Gareth Jenkins had done what he did, correct?

Simon Clarke: Correct.

Mr Henry: Can you offer any explanation how Mr Altman came to the conclusion, as is reported in the conference, that it was more to do with incompetence than dishonesty?

Simon Clarke: No. You’d have to ask him that question.

Mr Henry: Right.

Sir Wyn Williams: Thank you, Mr Henry.

Mr Henry: Thank you, sir.

Sir Wyn Williams: Right, now then, we have one questioner left. First of all, a time estimate please, Ms Oliver?

Ms Oliver: Sir, my time estimate to Mr Blake was 30 minutes. I think, truncating things, I could do it in 20. I think I might struggle to do it nine.

Sir Wyn Williams: No, that’s fine.

Transcriber, if we have another short break, are you prepared to sit on for 20 minutes to complete Mr Clarke today?

Mr Blake: We have a thumbs-up.

Sir Wyn Williams: No pressure on you. It’s entirely for you to tell me what suits you.

Mr Blake: We have a thumbs-up.

Sir Wyn Williams: So we’ll have a five-minute break and then we will complete Mr Clarke, which will make him happy, as well, by 4.50.

Ms Oliver: Thank you, sir.

(4.22 pm)

(A short break)

(4.27 pm)

Questioned by Ms Oliver

Sir Wyn Williams: Yes, Ms Oliver?

Ms Oliver: Thank you, sir. Good afternoon, Mr Clarke, I ask questions on behalf of Mr Jenkins. I’m going to take this as quickly as I can, okay?

Simon Clarke: I know you will. Thank you.

Ms Oliver: We have heard from your colleague at Cartwright King and later business partner, Martin Smith, who indicated that at or around the time of your 15 July 2013 advice concerning Mr Jenkins, he came to the conclusion that neither Post Office nor Cartwright King had ever instructed Mr Jenkins as to his expert duties; do you remember that aspect of his evidence?

Simon Clarke: From what I know now, I know that to be the position.

Ms Oliver: All right. Is that a conclusion that he discussed with you at the time?

Simon Clarke: No.

Ms Oliver: When did you come to your conclusion about those failings on the part of the Post Office and Cartwright King?

Simon Clarke: In relation to whether or not Gareth Jenkins had been properly trained? Oh –

Ms Oliver: Whether he’d been informed about his expert duties?

Simon Clarke: During the course of these proceedings.

Ms Oliver: All right. We’ll come on to that. Were you ever party to discussions within Post Office at the time of your advice, or around that time, as to the same conclusion that Mr Smith had reached?

Simon Clarke: That he hadn’t been trained?

Ms Oliver: Yes.

Simon Clarke: No.

Ms Oliver: Did you have any suspicions of your own as to the sufficiency of his instruction?

Simon Clarke: Truth is, I didn’t turn my mind to it because I think, as I used the phrase earlier, I was more interested at the time in effect rather than cause.

Ms Oliver: All right. Thank you. I just want to explore that a little bit further, if I can. We’ve heard from Mr Smith that you, he and Mr Bowyer worked closely together, as of the time of 2013?

Simon Clarke: Pretty well, yeah.

Ms Oliver: Thank you. He gave evidence that “we were a three”; would you agree with that characterisation?

Simon Clarke: No.

Ms Oliver: I think you’ve already indicated that you don’t agree that he was content to follow your lead, as someone that had more prosecution experience than him?

Simon Clarke: No. No I don’t agree.

Ms Oliver: You don’t agree with that proposition?

Simon Clarke: Yeah.

Ms Oliver: At paragraph 35 of your statement to this Inquiry, you indicate that you discussed a range of matters concerning Post Office prosecutions with Mr Bowyer and Mr Smith?

Simon Clarke: Yeah.

Ms Oliver: Not least because, shortly after the time of your July advice, you took over running the Post Office Prosecutions Department at Cartwright King?

Simon Clarke: Yes, that’s right.

Ms Oliver: Thank you. We’ve seen an example this morning of an email dated 10 July that was addressed to you and Martin Smith jointly on the topic of Gareth Jenkins.

Simon Clarke: Okay.

Ms Oliver: Do you agree with that?

Simon Clarke: If I’ve been taken to it, yes.

Ms Oliver: Thank you. You had also, at that time, come to your own independent conclusions about Post Office’s competence in terms of disclosure following your meeting with them on 3 July –

Simon Clarke: Yes.

Ms Oliver: – is that right?

Simon Clarke: Yes, I wouldn’t use the word “competence”.

Ms Oliver: No, I think you say at paragraph 43 of your statement an “apparent failure by POL to understand their disclosure duties”?

Simon Clarke: Yes.

Ms Oliver: Was that a matter of concern to you?

Simon Clarke: Well, of course.

Ms Oliver: You talked this morning about Post Office and their lawyers becoming defensive when you raised the issue of expert evidence with them –

Simon Clarke: Yes.

Ms Oliver: – do you recall that?

Simon Clarke: I do.

Ms Oliver: Did that raise concerns on your part?

Simon Clarke: Yes, it did.

Ms Oliver: Again, just referring to your statement – I’m not going to turn it up – if I might, it’s paragraph 36. You indicate that you worked closely with Rodric Williams of Post Office –

Simon Clarke: Yes.

Ms Oliver: – during this time around your advice?

Simon Clarke: Yes.

Ms Oliver: We know, from a manuscript note that you may have seen, that this lack of expert instruction was something that Mr Smith appears to have discussed with Rodric Williams on or around 3 September 2013; do you know what I’m referring to?

Simon Clarke: I saw that – was it that handwritten note that was put to Mr Smith?

Ms Oliver: It was.

Simon Clarke: I saw that –

Ms Oliver: Thank you.

Simon Clarke: – and I accept your contention.

Ms Oliver: Thank you. So it appears that both Mr Smith and Mr Williams, at least, were sighted on the issue either that Mr Jenkins had not been properly instructed or, at the very least, there was a serious question about whether he had –

Simon Clarke: I’m afraid it does.

Ms Oliver: – as at September 2013?

Simon Clarke: Yeah.

Ms Oliver: So, where that leaves us appears to be this: Mr Smith had come to this wide-ranging and serious conclusion about Post Office and Cartwright King failings towards Mr Jenkins at or around the time of your advice, yes?

Simon Clarke: Yes.

Ms Oliver: He had shared it with a Post Office lawyer?

Simon Clarke: Yes.

Ms Oliver: You too were actively engaged at the time in liaising with the Post Office about the apparent revelation of these bugs and the resulting issue with Mr Jenkins, yes?

Simon Clarke: Yes.

Ms Oliver: You’re making the Samra call, if I can refer to it like that, on 28 June?

Simon Clarke: Sorry, the –

Ms Oliver: You and Mr Smith together are making a call to Mr Jenkins about the case of Samra?

Simon Clarke: Yes, yes.

Ms Oliver: You’re writing an advice in July that deals expressly with the alleged breach of expert duties?

Simon Clarke: Yes.

Ms Oliver: You have developed your own concerns about Post Office’s knowledge of their disclosure obligations and the way they operated in these prosecutions?

Simon Clarke: Yes.

Ms Oliver: You’ve said this morning that Mr Jenkins became the central topic of discussion; do you remember giving that evidence?

Simon Clarke: Yes.

Ms Oliver: And you’re in regular discussions with Mr Smith and Mr Williams, who it seems were sighted on this issue as of September?

Simon Clarke: I don’t link the two together. I accept I was in discussions with Rodric Williams but not about that, as I’ve explained, and you can describe this as crude, if you wish, but I wasn’t interested in why Gareth Jenkins had done or not done what he ought to or ought not have done; I was interested in how it was fixed.

Ms Oliver: We’ll come on to the relevance of the why question.

Simon Clarke: Yeah, yeah.

Ms Oliver: But you’re anticipating my next question. Given all those factors that you accept, is it right that your evidence is that Mr Smith never discussed with you this conclusion that he had come to as to the lack of expert instruction –

Simon Clarke: That is correct.

Ms Oliver: – and neither did Mr Williams?

Simon Clarke: Yes, that is correct.

Ms Oliver: You never came to a similar conclusion yourself?

Simon Clarke: Not knowingly, no.

Ms Oliver: It wasn’t something you had any suspicions about?

Simon Clarke: I didn’t turn my mind to it.

Ms Oliver: It wasn’t a possibility to which you turned your mind at all?

Simon Clarke: Not at all.

Ms Oliver: Do you agree that, given all of those features that I’ve just run through, that seems surprising?

Simon Clarke: No.

Ms Oliver: Is it, in fact, the case that you, either by yourself or through discussion with Mr Smith or Mr Williams, came to exactly the same conclusion that Mr Smith had come to around the time of your advice, that Mr Jenkins had never been informed of his duties and never knew about his duty of expert disclosure?

Simon Clarke: No. I accept the proposition you put that he wasn’t trained, and that he didn’t know about – didn’t know to the extent or what his duties were or were not. I accept that now because I have seen compelling evidence that that’s the position. I simply did not turn my mind to it at the time because it was of no interest to me. I was only interested in putting right what had gone wrong and you have to – forgive me for almost cutting you off. I was going to say you have to appreciate, you don’t.

I wasn’t at that point looking back to what had – to why things had gone wrong. It’s clear that Gareth Jenkins – it’s clear to me that Gareth Jenkins had clearly not been trained or instructed in his duties before my involvement in Post Office. I saw no reason to get involved in that, because, not least, Post Office were not going to be relying on him as an expert witness in the future. So there was no need to consider the issue, as far as I was concerned, of his training in being an expert witness.

Ms Oliver: Just to be clear, it’s not about training; it’s about instruction –

Simon Clarke: Yes.

Ms Oliver: – by the lawyers who commissioned his evidence; is that what you mean?

Simon Clarke: However you want to characterise it, I was not concerned because it was looking back and I wanted to look forward.

Ms Oliver: You’re saying that although you’ve come to that realisation now, that’s not something you turned your mind to at the time –

Simon Clarke: No, I –

Ms Oliver: – and you disagree with my characterisation of that as being surprising?

Simon Clarke: Yes, I do.

Ms Oliver: Right. Can I turn, then, to something you say about expert duties in your statement, please.

Simon Clarke: Please.

Ms Oliver: When you looked at Mr Jenkins’ statements for the purposes of your 15 July advice, did you note that they were all Section 9 statements?

Simon Clarke: I don’t think I did.

Ms Oliver: Did you note that they did not set out the instructions he had been given or the questions which he was to answer?

Simon Clarke: No.

Ms Oliver: Did you note that they didn’t set out the written material which had been provided by the prosecutor or the documents, statements or evidence that he had taken into account?

Simon Clarke: No.

Ms Oliver: Did you note that they did not contain an expert declaration?

Simon Clarke: No.

Ms Oliver: Do you agree all of those things I’ve just listed are necessary inclusions for an expert report?

Simon Clarke: Yes.

Ms Oliver: Did any of that therefore cause you concern about Mr Jenkins’ level of knowledge about his expert duties when you were reviewing those statements?

Simon Clarke: I think I’ve already explained: my interest was in curing the damage that he had done, not in the reasons as to why the damage had been done and so, no, I took no notice of any of that.

Ms Oliver: With respect, the task that you were doing in your advice of 15 July is, before you come to that conclusion, analysing a certain number of the statements that he has provided –

Simon Clarke: Yes.

Ms Oliver: – do you agree? Do I understand your evidence to be that, at the point that you were continuing that analysis and undertaking that analysis, none of the absence of those necessary inclusions caused you any concern?

Simon Clarke: No, I was analysing the evidence that he was given – sorry, that he was giving – in the documents.

Ms Oliver: It didn’t come to your attention that none of those documents contained the necessary inclusions for expert evidence?

Simon Clarke: No, because that wasn’t my concern. My concern was what had he told the court through the documents.

Ms Oliver: It didn’t cause you any concern about his level of knowledge about his expert duties?

Simon Clarke: No, for the same reason I was interested in what he had told the court through those documents, and that’s where my concern was about whether or not he had complied with his duty.

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

Simon Clarke: No.

Ms Oliver: – not to turn your mind to that?

Simon Clarke: No, and I think I’ve explained why, because I wasn’t looking back; I was looking forward to cure the defect that had arisen.

Ms Oliver: Thank you and, rest assured, I will come on to that question.

Simon Clarke: I’m sure.

Ms Oliver: At paragraph 87 of your statement, you say something that you’ve not reiterated in evidence, and I just want to make sure whether it’s something you stand by.

Simon Clarke: 87?

Ms Oliver: Paragraph 87 of your statement. You indicate that the fact that Mr Jenkins’ statements included the words, “I understand that my role is to assist the court rather than represent the views of my employers or Post Office Limited”, informed you that, quite to the contrary of not turning your mind to the absence of knowledge on the part of Mr Jenkins, that he did understand the duties of an expert witness?

Simon Clarke: Yes.

Ms Oliver: Now, is that a conclusion you came to or isn’t it?

Simon Clarke: No, that is what prompted me to dismiss any thought of looking backwards.

Ms Oliver: So it’s not, in fact, the fact that you didn’t turn your mind to it; you turned your mind to it and came to the opposite conclusion to the one that I’ve suggested?

Simon Clarke: No, I disagree with that.

Ms Oliver: First of all, do you agree with the evidence that we have heard from Duncan Atkinson KC, who has been an expert instructed in this Inquiry, that those words included at the end of the statements you looked at, without more, were insufficient to satisfy the requirements of an expert declaration, either at common law or under the Criminal Procedure Rules?

Simon Clarke: I do.

Ms Oliver: Thank you. Do you agree that it’s not enough to satisfy the prosecutor’s obligation as to expert instruction that a statement simply bears an expert declaration because, as Mr Atkinson KC said, it is the duty of a prosecutor to ensure that the expert understands what expert duties entail – for example, the expert duty of disclosure – and complies with them?

Simon Clarke: I agree with all of that, yes.

Ms Oliver: Thank you. So, in other words, even if Mr Jenkins’ statements had included a proper expert declaration, which they did not, that expert declaration in itself would be insufficient to inform you that he understood his expert duties?

Simon Clarke: I agree.

Ms Oliver: So, having agreed with all of that and bearing those factors in mind, do you agree that, if it was your conclusion at the time that Mr Jenkins knew of his expert duties on the basis of that phrase alone being included in his statements, that was not a safe conclusion?

Simon Clarke: I agree with that but that was not something I was considering, as I’ve explained why.

Sir Wyn Williams: Well, I’m sorry, Mr Clarke, I think what is being put to you is that, at paragraph 87 of your statement, you concluded – well, you, first of all, quote “I understand that my role”, et cetera, and then you say, on the basis of that:

“This narrative informed me that Gareth Jenkins understood that his witness statements and oral evidence in court was provided by him as an expert witness [1]. That narrative also informed me that he understood the duties of an expert witness [2].”

So, I’m sorry, but a plain reading of that does suggest to me that you did, in the summer of 2013, understand or you did form the view that Mr Jenkins understood his duties on the basis of that statement in his witness statements.

Simon Clarke: Looking back, I think that informed me that I need conduct no further enquiry, and the reason I didn’t choose to conduct any further enquiry was because, as I’ve explained to counsel, I wasn’t interested in what had gone before.

Sir Wyn Williams: Well, all right. You carry on, then.

Ms Oliver: Do you see the difference?

Simon Clarke: I do, yes.

Ms Oliver: I’m grateful to the Chair for distilling the difference between the absence of turning your mind to the question and a positive conclusion, as you seem to indicate in your statement, as to the question of whether there had been adequate expert instruction?

Simon Clarke: Yeah.

Ms Oliver: Do you see the difference between those two things?

Simon Clarke: I do. It’s a conflict. I see it.

Ms Oliver: Thank you. If it is the fact that you are saying you came to a positive conclusion, do I understand your evidence now to be that that wasn’t a safe conclusion, in light of the propositions I’ve put to you from Mr Atkinson’s evidence?

Simon Clarke: Oh, I think that’s right, yes.

Ms Oliver: Thank you very much.

Can we turn, then, to this question of why Mr Jenkins may have, as you say, failed to comply with his expert duties. I’m not going to take you to the advice; I’m going to summarise it on the basis that you will be familiar with it. In paragraph 37, in your conclusion, you set out that there’s been a breach of the expert duties of disclosure and you quote from that duty in that paragraph.

Then, at paragraph 38, you effectively say that the reasons for this failure are beyond the scope of your review.

Simon Clarke: Which – as I think I’ve explained just a moment ago.

Ms Oliver: Thank you. If we can just very briefly, please, turn to POL00172804, and it’s paragraph 22 of that advice at the bottom of page 8. It’s the advice that you give on 1 July in the case of Samra – thank you.

It seems, from the very last sentence of this advice, that, as of 1 July, you say:

“In any event I require a face-to-face conference with Gareth Jenkins upon publication of the Second Sight Report.”

Simon Clarke: Yeah, never happened.

Ms Oliver: I was going to say: why did that face-to-face conference never happen?

Simon Clarke: I don’t know.

Ms Oliver: Why did you go from requiring, in quite strong terms, a conference with Mr Jenkins to, two weeks later, advising that the reasons why he might have failed, in your view, to comply with the duty of disclosure, was beyond the scope of any of your review?

Simon Clarke: Because I was looking forward. It’s probably why I didn’t pursue this – there’s a degree of speculation going here because these thought processes were going on 10/11 years ago but, thinking about the way in which I think about things, I suspect that I abandoned the need for a face-to-face conference with Gareth Jenkins because, by the time I wrote the 15 July advice, I had decided that I wanted to look forwards rather than back. That’s a bit of speculation but that’s the way my thought processes probably worked.

Ms Oliver: So rather than an intervening event, you think it was just the development and evolution of your thought process; is that right?

Simon Clarke: Yes, yes.

Ms Oliver: Why didn’t you consider it vitally important to understand why Mr Jenkins had, in your view, failed in his expert duty of disclosure?

Simon Clarke: Because I was concerned with the damage that he’d done to the prosecutions and convicted status of the postmasters and correcting that. Why he had done or not done that which he ought to or ought not to have done was a matter for a different inquiry.

Ms Oliver: But wasn’t it an obvious and important course for you to check the manner in which he’d been instructed?

Simon Clarke: At the time, I didn’t think so.

Ms Oliver: Not least because there was a clear nexus, wasn’t there, between the very breach that you were alleging against him and criticising him for and his knowledge of the expert duty of disclosure?

Simon Clarke: I think the latter part of that is right but, as I can only repeat, at the time, I thought my priority was different.

Ms Oliver: Also, not least because, if he hadn’t been given instructions or not given proper instructions about his duties, that might raise issues that had their own impact – or effect, to use your words – on past prosecutions, mightn’t it?

Simon Clarke: I’m not convinced it would have changed the landscape, that is we were faced with a series of prosecutions which ought not to have gone ahead. I don’t think it would have changed that. I think it would have changed, perhaps, the reasoning behind why those prosecutions ought not to have gone ahead.

Ms Oliver: Can I make some suggestions as to why I say it should have changed the landscape?

Simon Clarke: Please.

Ms Oliver: Firstly, it might have revealed concerns about the conduct or misconduct of individual cases which were under review by Cartwright King at the time?

Simon Clarke: I’m not convinced I agree with that. We were concerned with whether or not proper disclosure had been made, not whether or not Gareth Jenkins had given – because in lots of the cases he hadn’t given evidence, even by written statement.

Ms Oliver: But if there was a case where a lawyer had failed to properly instruct their expert and you were reviewing that, that failure on the part of that lawyer was an important issue in that case, wasn’t it?

Simon Clarke: No, I wasn’t looking at whether or not a lawyer had been improperly instructed or – sorry, forgive me – whether an expert had been properly instructed or had failed to be instructed at all. I was looking at the proposition that Gareth Jenkins had, for whatever reason, failed to tell us, the lawyers, and Post Office and the courts about the existence of bugs when he ought to.

Ms Oliver: But another reason why it might have changed the landscape is, if there had been that failure, it might have given rise to wider-ranging concerns about the basic competency of the prosecutors within Post Office and Cartwright King and their conduct of these past prosecutions.

Simon Clarke: I think that’s fair.

Ms Oliver: It would also, perhaps, have nuanced the extent of the taint that you attribute to Mr Jenkins, there being, I think you would agree, a significant qualitative difference between a witness who has deliberately withheld information and a witness who has unwittingly and inadvertently failed to disclose something that he didn’t know he was supposed to disclose?

Simon Clarke: I never accused Mr Jenkins of misconduct. I said that he had not complied with his duty. I was very careful. And I’ve heard questions in earlier proceedings that go to the question of, “Well, why wasn’t Mr Jenkins reported to the police?” There’s a very specific answer to that and it links in with your question.

Mr Jenkins wasn’t reported to the police because we didn’t know why he had not done that which he ought to have done and, frankly, your questions, and your advocacy on behalf of Mr Jenkins demonstrates precisely why it would have been wrong to report him to the police because, clearly, at this stage, his culpability is much, much lower than it might otherwise have been.

Ms Oliver: All of those factors that I’ve suggested might have changed the landscape might have impacted, mightn’t they, on the scope of the disclosure obligation that would arise towards convicted defendants?

Simon Clarke: I think I’ve already accepted that we ought to have disclosed the issues about Gareth Jenkins in addition to the Second Sight and Helen Rose Reports, yes.

Ms Oliver: But if you’d asked the “why” question, further issues might have arisen that you would also have had to disclose, wouldn’t they?

Simon Clarke: I think, looking back, that’s a proper contention. At the time, we were looking in a different area.

Ms Oliver: You gave your advice on 15 July on your own initiative, you’ve told us.

Simon Clarke: Pretty much, yeah.

Ms Oliver: Post Office hadn’t asked you for it?

Simon Clarke: Not really, no.

Ms Oliver: You had no terms of reference? You were in complete control of its parameters –

Simon Clarke: Yeah.

Ms Oliver: – is that right?

Simon Clarke: Yeah.

Ms Oliver: Is the reason why you turned your mind from this issue in your advice and shut it down because you and Mr Smith knew full well that a very big part of the explanation as to why Mr Jenkins had not disclosed these matters is because of failings attributable to Post Office and Cartwright King lawyers?

Simon Clarke: No, I didn’t know that at the time. I have already explained that I had no knowledge of the instructions that had or had not been given to Gareth Jenkins.

Ms Oliver: Do you agree, if that had become known, it would have been professionally damaging to Cartwright King?

Simon Clarke: Oh, yes.

Ms Oliver: And it would have resulted in an obvious conflict for Cartwright King continuing their review process?

Simon Clarke: Oh, I think that must be right.

Ms Oliver: Thank you. Do you think that might be the reason why Brian Altman QC was not informed of the acknowledged failure on the part of instructing Mr Jenkins?

Simon Clarke: Well, that presupposes that I knew about it and I didn’t. Martin Smith clearly knew about it. Perhaps he ought to have told me and Brian Altman but he didn’t.

Ms Oliver: Thank you. In the final three minutes that I have, I’m just going to very quickly deal with the Samra call, if I may.

Sir Wyn Williams: (Unclear) minutes but three minutes it is.

Ms Oliver: Thank you.

On 28 June you told us you and Mr Smith made a call to Mr Jenkins concerning the case of Samra. It was your idea. You asked Mr Smith to set it up. It was recorded on his phone.

Simon Clarke: Yeah.

Ms Oliver: Who prepared the transcript?

Simon Clarke: Martin Smith.

Ms Oliver: Thank you. Do you know when he did that?

Simon Clarke: I am pretty sure I would have said “I want it done straight away”.

Ms Oliver: All right. Mr Jenkins was given no warning of that call?

Simon Clarke: No.

Ms Oliver: He had no prior knowledge of the case –

Simon Clarke: Forgive me, I don’t know whether he was given any warning of the call. We just telephoned him without knowing whether or not he’d been told by, for instance, Jarnail Singh to expect the call.

Ms Oliver: Fine. He had no prior knowledge of the case of Samra?

Simon Clarke: I expect not, I don’t know.

Ms Oliver: Mr Smith said that, at the time, you and he were, at the very least, suspicious of Mr Jenkins?

Simon Clarke: I don’t agree with that because the purpose of the call was to find out who told Second Sight about the two bugs that Second Sight spoke about.

Ms Oliver: To that extent, do you agree it was to test Mr Jenkins’ credibility?

Simon Clarke: No. It was to ask him whether or not he knew how Second Sight learned of those bugs.

Ms Oliver: Mr Jenkins was not told the call was being recorded?

Simon Clarke: No.

Ms Oliver: He was given no chance to check the note for accuracy or understanding?

Simon Clarke: I don’t believe so.

Ms Oliver: You say to Mr Jenkins at the beginning of that call, “Mr Singh suggested we get in touch”.

Simon Clarke: Yeah.

Ms Oliver: You described that as a rhetorical device this morning. Do you mean by that that it was something that wasn’t true? Was it an attempt to put Mr Jenkins at his ease in that call?

Simon Clarke: No, it was to – it was simply a rhetorical device so that he could connect with why we were calling because – forgive me – if he had been warned, as I would have expected, it would have been by Mr Singh.

Ms Oliver: In your advice – I’m not going to take you to it, it’s paragraph 30, your advice of 15 July – you summarise that call and, in that summary, you say that:

“Dr Jenkins told us it was he who had informed the Second Sight committee of the existence of two bugs which had affected Horizon. He told us that the extant bug affects Horizon to a limited degree and at specific Post Office locations only. Bugs had been identified in Horizon which call into question some of the aspects of the way in which it operates. He said that the earlier bug was historic and a patch had been applied to Horizon which remedied the problem.”

Can you help us with why in the transcript we don’t see any mention that Mr Jenkins said he personally had told Second Sight about the two bugs –

Simon Clarke: Oh, I –

Ms Oliver: – rather than we?

Simon Clarke: He said “we” and I inferred the “we” to be him.

Ms Oliver: All right. Can you tell us why we don’t see any mention in the transcript where Mr Jenkins says one of the bugs was extant –

Simon Clarke: No, I –

Ms Oliver: – or where Mr Jenkins told you that the earlier bug was historic and a patch had been applied, which remedied the problem?

Simon Clarke: No. As I say, Mr Smith produced the transcript. I don’t know why –

Ms Oliver: So are you saying the transcript was inaccurate or your advice was an inaccurate summary?

Simon Clarke: Oh, no, my advice was an accurate summary. I don’t resile from my advice one jot all.

Ms Oliver: Thank you, those are my questions.

Sir Wyn Williams: Time out?

Ms Oliver: Thank you, sir.

Sir Wyn Williams: That’s it, Mr Blake.

Mr Blake: It is, yes, sir. Thank you.

Sir Wyn Williams: Well, Mr Clarke, I’m very grateful to you for your participation in this Inquiry. You have fielded a good many questions, some of which have been hostile, which you have dealt with with resolution, if I can put it in that way.

The Witness: Thank you, sir.

Sir Wyn Williams: So thank you for your participation.

The Witness: Thank you.

Mr Blake: 9.45 tomorrow.

Sir Wyn Williams: 9.45, provided my train is on time, Mr Blake.

Mr Blake: Thank you, sir.

(4.56 pm)

(The hearing adjourned until 9.45 am the following day)