Official hearing page

15 May 2024 – Patrick Bourke

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(9.45 am)

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

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

Before we start today’s proceedings, there’s just something I’d like to mention to Mr Henry and Mr Moloney. Can you both see me?

Mr Stevens: Yes, sir, they can.

Sir Wyn Williams: Fine. Well –

Mr Stevens: Sorry, Mr Henry isn’t here. That was my fault.

Sir Wyn Williams: Mr Moloney is present but not Mr Henry, but I take it Ms Page is here?

Mr Stevens: Yes, sir.

Sir Wyn Williams: What I’d like to say is this: that I have reflected overnight on the decision which I made yesterday afternoon to close the proceedings without giving both Mr Henry and Mr Moloney the opportunity to put questions to Mr Davies. I have decided that that was wrong of me and, accordingly, I apologise to both Mr Moloney and Mr Henry, their professional and lay clients.

All right, Mr Stevens, we can continue.

Mr Stevens: Thank you, sir. We have Mr Bourke today. I just want to check he can see and hear us?

The Witness: I can, thank you.

Mr Stevens: Thank you, if I can call him, sir.

Sir Wyn Williams: Yes, of course.

Patrick Bourke

PATRICK FRANCIS ULICK BOURKE (sworn).

Questioned by Mr Stevens

Mr Stevens: Sir, I should say we are due to have a fire alarm at 10.00. I will simply pause while that goes on, rather than have a formal adjournment.

Sir Wyn Williams: Mr Stevens, when Mr Bourke was taking the oath, I found what he was saying quite difficult to hear. Was that your experience as well?

Mr Stevens: Yes, sir, I agree, and I think if we can ask Mr Bourke –

Mr Bourke, can I ask you first just to state your full name.

Patrick Bourke: It’s Patrick Francis Ulick Bourke.

Mr Stevens: That’s fine. Thank you for giving evidence to the Inquiry today. Mr Bourke, you’ve provided two witness statements, which I want to go to in the first instance. Your first is dated 11 April 2024. Do you have that in front of you?

Patrick Bourke: I do.

Mr Stevens: That statement is referenced WITN09830100. Could I ask you, please, to turn to page 126.

Patrick Bourke: Yes.

Mr Stevens: Is that your signature?

Patrick Bourke: It is, yeah.

Mr Stevens: You then provided a second statement, which, amongst other things, clarifies or corrects some parts of your first witness statement. That is dated 2 May 2024. Do you have that in front of you?

Patrick Bourke: I have, yes.

Mr Stevens: That is document reference WITN09830200. It runs to seven paragraphs. Could I ask you, please, to turn to page 7 of the statement.

Patrick Bourke: Yes.

Mr Stevens: Is that your signature?

Patrick Bourke: It is, yes.

Mr Stevens: Can you confirm that, taken together, the contents of those statements are true to the best of your knowledge and belief?

Patrick Bourke: I can confirm that.

Mr Stevens: Your statement now stands as evidence in the Inquiry. They will both be published on the website shortly.

I am going to ask you some questions about them but I’d like to start, please, with your first witness statement, if we can have that at paragraph 5, page 2, on the screen. At paragraph 5, you set out your background and you say:

“I have been asked to provide my professional background and qualifications prior to joining [Post Office Limited].”

You refer to graduating with a degree in law and French. Then you say:

“I trained as a lawyer at the European Commission, the Post Office, and DJ Freeman and qualified as a solicitor in 1997.”

Please can you confirm when you trained with the Post Office?

Patrick Bourke: For a period of two months in the period between 1995 and 1997 – sorry, for a period of two terms of six months between those two dates.

Mr Stevens: Two terms of six months, so is that two seats, effectively?

Patrick Bourke: That’s exactly right, yes.

Mr Stevens: What area of law were those seats in?

Patrick Bourke: One was focused on general commercial and competition law, and the other was in intellectual property.

Mr Stevens: While you were training as a solicitor with the Post Office, did you have any involvement with the Criminal Law Department?

Patrick Bourke: No, they were – you know, I was aware that they existed but there was no crossover in our work.

Mr Stevens: Did you have any discussions with anyone in the Criminal Law Department about their work?

Patrick Bourke: Not to the best of my recollection.

Mr Stevens: You go on to say that you practised at Berwin Leighton for two years and then you say you were Head of European Affairs for Post Office in 1999, again based in Brussels, when you say you stopped practising as a lawyer. When did you stop practice as a lawyer?

Patrick Bourke: After my stint with Berwin Leighton.

Mr Stevens: So when you were Head of European Affairs for Post Office, what did your role entail?

Patrick Bourke: That was policy work, policy and advocacy work.

Mr Stevens: Did you have any involvement with matters relating to the Horizon IT project whilst in that role?

Patrick Bourke: No, none whatsoever. I was engaged in work concerning the liberalisation of postal markets across Europe.

Mr Stevens: You then held roles as a civil servant in what is now the Ministry of Justice, correct?

Patrick Bourke: Yes.

Mr Stevens: We’ll jump to the most relevant time now: you joined Post Office Limited in 2014 as Programme Manager for the Mediation Scheme?

Patrick Bourke: Yes, I did.

Mr Stevens: In that role, who did you report to?

Patrick Bourke: Initially to Belinda Crowe and then, subsequently, to Jane MacLeod.

Mr Stevens: I take it from your earlier evidence that you didn’t have a practising certificate at the time as a solicitor when you were Programme Manager?

Patrick Bourke: That’s correct.

Mr Stevens: So at no time as Programme Manager did you hold yourself out as a lawyer?

Patrick Bourke: At no time during my time at the Post Office, no.

Mr Stevens: In June 2016, you became Deputy Corporate Services Director, correct?

Patrick Bourke: Correct.

Mr Stevens: What role did that entail?

Patrick Bourke: As I think I described in my witness statement, I was chiefly involved in acting as a deputy to the General Counsel, Jane MacLeod, for the purposes of management, rather than for the purposes of any legal advice she might be giving. She was engaged in a process to integrate various other teams from across the business so, in particular, the audit and risk function and information security, and information rights, and she asked me to help her integrate those teams into a more coherent whole.

Mr Stevens: On that, please, could we bring back up your witness statement at page 4, please. Thank you. If we could go to the bottom of the page, you there refer to the role. At the end you say:

“Within approximately 6 to 12 months of the new structure taking shape, steps were taken to break up the Security Team into three smaller teams, with only the Financial Crime Team (looking at money laundering issues) remaining within Jane MacLeod’s wider Directorate. While I was not directly involved in this decision, I was aware of concerns at senior level about the prevailing work culture which characterised the team.”

Please could you describe what concerns you were aware of about the work culture in the Security Team?

Patrick Bourke: Yes, of course. The – I think the summary is that it was very old-fashioned and depended on a very command and control type style of management, with the person at the top of that, the top of that function really, you know, being the determinant of everything, and –

Mr Stevens: Just pausing there, sorry, who at that time was top of the department then?

Patrick Bourke: John Scott.

Mr Stevens: John Scott, thank you. Please continue.

Patrick Bourke: So, no, it was very old-fashioned and did not conform to what was then the prevailing view of what team management – if you like, effective management consisted in.

Mr Stevens: When you were looking at those concerns or when you were aware of those concerns, to what extent were people concerned that that work culture was affecting the way the Security Department investigated matters, such as subpostmasters?

Patrick Bourke: So I’m not sure what the link was, you know, between the culture and the practice of investigation, particularly of subpostmasters, but I think it’s fair to say that the sort of – there was a sense that, in some ways, the culture was reminiscent of, I don’t know, you know, a group of sort of ex-policemen investigators coming together and that had a sort of particular culture to it, which was a bit of an anathema to what the Post Office was trying to build.

Mr Stevens: Can you expand on that? Why was it different to what Post Office was trying to build on?

Patrick Bourke: Well, the rest of Post Office was very open and collaborative by nature. The Security team, from memory, acted much more stand alone and seemed to enjoy, if you like, being slightly to one side. I dare say, you know, there was a sense in which, you know, being an Investigator was somehow sort of special but that’s about as far as I can go, really.

Mr Stevens: Well, if you were involved in the restructure, was it not part of your role and responsibility to look at what effect that culture had on the actual work that was being carried out by the Security Department?

Patrick Bourke: No, it wasn’t. The decision was taken and it fell to me to sort of, if you like, pick up the pieces and see, you know – do the follow-through. So, as I say in my witness statement, I didn’t take part in the decision; I was somewhat involved in its implementation.

Mr Stevens: When did you first become aware of these concerns regarding the Security Team?

Patrick Bourke: I think quite early on. You know, as soon as they sort of report in to the – report in to Jane MacLeod’s function.

Mr Stevens: So when you say “early on”, is that early on in your role in 2014 or early on when you became Deputy Corporate Services Director?

Patrick Bourke: The latter.

Mr Stevens: Latter. You then, in January 2018, became Corporate Affairs Director, a role that’s now known as Government Affairs and Policy Director; is that right?

Patrick Bourke: That’s correct.

Mr Stevens: When you became Corporate Affairs Director, how did your role change?

Patrick Bourke: Well, very substantially, in that I was engaged in a range of different issues to that which I’d been previously engaged with. I obviously had been quite heavily involved in, particularly, the Mediation Scheme, and so I retained an interest, I suppose, in the work being done in that area but, by this stage, I was also looking at the broader range of issues facing the Post Office, notably in terms of issues relating to our relationship with Government, funding questions around the subsidy, and so on.

Mr Stevens: The fire alarm may go off at any point but, if we can bring up page 124, please, of your witness statement.

(Pause for fire alarm test)

Mr Stevens: Well, we now know we have a working and long-winded fire alarm.

Page 124. I want to look about your approach as Programme Manager and in relation to the scheme. You say, a few lines down in that paragraph, “In that regard” –

Sorry, I should say you’re referring to your involvement in how Post Office Limited handled challenges to the integrity of Horizon by subpostmasters, Members of Parliament, journalists and members of the public. You say:

“In that regard, I think the work I was engaged in was conducted in good faith and involved me, and others at [Post Office Limited], doing a significant number of sensible and reasonable things as we attempted to understand and to resolve the complaints and disputes brought forward as part of the Scheme.”

When you say you carried out the work in good faith, what do you mean by that?

Patrick Bourke: Well, I mean by that that, obviously, context is very important in this affair, and we were not imbued with the same knowledge that we have today about what was going on or may have been going on in the background. So, as we were seeing it, the work involved in the Mediation Scheme, the Complaints and Mediation Scheme, was a genuine attempt to try to resolve the complaints brought forward by a relatively small number of subpostmasters and, you know, I think we did do some very sensible things in order to try to achieve that objective.

Mr Stevens: In the context of investigations, would you accept that acting in good faith includes keeping an open mind?

Patrick Bourke: As a general principle, yes, but I wasn’t involved in any investigations.

Mr Stevens: I’ll rephrase, then. In Post Office’s work, in responding to allegations about the Horizon IT System, when you’re responding to them and listening to those allegations, do you think acting in good faith included keeping an open mind about the allegations?

Patrick Bourke: I do and I think we did, and a number of the documents that have been shared with me and that I’ve also requested from Post Office Limited show that, whilst we had a growing sense of confidence in the operation of the Horizon system as the investigations and case reviews came forward from Second Sight, I record in a number of different places that we should not be complacent. Whilst it was certainly the case that we could draw some comfort from what we’ve discovered to date, we should not be complacent that that would be the final word.

Mr Stevens: Mr Bourke, I’m going to explore with you what actually happened. My question is simply: do you accept it involved keeping an open mind? Your answer is yes. Do you accept that acting in good faith also meant acting with transparency?

Patrick Bourke: Yes.

Mr Stevens: Would you accept that acting with good faith includes acting fairly?

Patrick Bourke: Yes.

Mr Stevens: When you were brought on to the Mediation Scheme, what did you understand the objectives of what’s been termed Project Sparrow to be?

Patrick Bourke: My understanding was that this was a project established to receive, analyse, examine and hopefully resolve a number of issues brought forward by postmasters as part of a Complaints and Mediation Scheme.

Mr Stevens: Your role as Programme Manager, what did you understand that role to involve on a day-to-day basis?

Patrick Bourke: My role involved ensuring the throughput of cases through the various stages of that, ensuring that the Working Group, that had been set up to look at questions of whether or not cases were suitable for mediation, to ensure that those meetings were equipped with the information they needed to make those determinations and to, you know, otherwise facilitate the successful conclusion of that project.

Mr Stevens: When you joined Post Office Limited, what, if anything, were you told about Post Office Limited’s general strategy or approach to responding to challenges brought by subpostmasters regarding the integrity of the Horizon IT System?

Patrick Bourke: I don’t think I was told anything specifically about our approach, just that, you know, we were to, you know, consider the cases thoroughly, the investigations would be – or I should say the re-investigations would be as thorough and complete and exhaustive, where possible, obviously the timing was a bit of a factor in terms of the availability of evidence in some cases, but that we would, you know, do a – you know, do a – do the best – do the work to the best of our ability in ensuring that we understood what was really the source of the complaints and, where it was possible to do so, to achieve a resolution through mediation.

Mr Stevens: I want to look at some examples now of the approach in practice. If we can bring up, please, page 34, paragraph 68 of your statement. We can see midway down you’re talking here about a briefing note for Paula Vennells, who was having a meeting with MPs on 17 November. You say:

“At the time, there was a sense of frustration within [Post Office Limited] about accusations being made in the media and on social media which did not acknowledge the genuine efforts being made by [Post Office Limited] to resolve the issues raised by subpostmasters through the Scheme.”

Did you share this frustration at this point?

Patrick Bourke: I had begun to, yes. It seemed to me that we were doing – as I said in the paragraph you took me to right at the outset, that we were doing some really sensible things to try to get to the bottom of this. We were providing applicants with money, so they could properly formulate their applications to the scheme using professional advisers, usually lawyers, sometimes accountants. We were paying for the mediations and the cost of mediations, the investigations were very, very thorough and we were approaching the question of mediation in good faith.

Mr Stevens: You’d been involved for two months at that point, hadn’t you?

Patrick Bourke: Yes, that’s right.

Mr Stevens: So your evidence is that, within a period of two months, you’d developed this frustration as to how Post Office Limited was being portrayed in its handling of the scheme?

Patrick Bourke: Well, yes, I think it got more pronounced as the months went on but, even then, it was clear to me that we were not achieving any sort of cut-through in terms of what our position might be or might have been at the time because simply we were not being heard.

Mr Stevens: Please can we look at POL00116790. This is the briefing that we were referring to in your witness statement for Paula Vennells and, if you could go down, please, to “Background/Argument” – thank you. At paragraph 4, you say – you put:

“Secondly, we would urge you to stress the fact that you are in charge of an organisation that has, at its heart, the determination to improve people’s lives (often the most vulnerable in our society). Indeed, you have obligations in this regard. While the issue being championed by MPs may seem important to them in campaign terms, this pales into insignificance to the bigger, social mission of [Post Office Limited] and your leadership of it, not to mention the only materially thousands of people who depend critically on our services. It would be a brave MP who sought to champion one above the other.”

Was it your view that Post Office’s public purpose was more important than the allegations made by subpostmasters that they’d been convicted and imprisoned in prosecutions that relied on data from Horizon that may have been unreliable?

Patrick Bourke: Well, that’s not the question that I was actually faced with. Although a number of cases involving criminal convictions had been accepted into the scheme, none of those were taken forward as part of the mediation process.

Mr Stevens: Well, what it says is, “While the issue being championed by MPs may seem important”, one of the issues being championed by MPs was that there may have been unsafe convictions, wasn’t it?

Patrick Bourke: Yes.

Mr Stevens: So the question is: did you consider that Post Office’s public purpose was more important than that issue?

Patrick Bourke: On the basis that I had seen nothing and the Post Office has seen nothing to suggest that the question of unsafe convictions had any evidence behind them, then I suppose I did at the time feel that.

Mr Stevens: Was that a commonly held belief within Post Office?

Patrick Bourke: I don’t know.

Mr Stevens: Did Paula Vennells challenge it, when she received this briefing?

Patrick Bourke: I can’t recall.

Mr Stevens: Do you think that’s keeping an open mind to the allegations?

Patrick Bourke: Well, we had had the cases submitted to us, and it was apparent from our reading of them that, although there were some suggestions that Horizon may be problematic, there had not been anything advanced to suggest that Horizon was actually responsible for the losses being complained of. So, to that extent, then it was important to see it in the context – in that context. I would also add that the scheme admitted 150 applications into its numbers, which is a relatively small number, 136 were actually taken forward as part of it, the others having been resolved prior to (unclear) and in the context of the number of users over the relevant period of the Horizon system, which are 500,000, this represented a very small minority of cases.

So there was a certainly an idea in my mind that, in the absence of evidence that Horizon had caused the shortfalls, as far as we could determine at that stage, you know, the, you know, it was important that we retained our focus on the day-to-day mission, whilst still absolutely addressing the complaints being made, but it couldn’t come at the cost of it.

Mr Stevens: If we turn the page, please. You refer at paragraph 5 to the Horizon issue being one “we are absolutely willing to entertain”, and then at 6, you say:

“But there must be limits: we cannot accommodate the self-indulgence of a number of malcontents to the continuing detriment of our customers. The tiny minority making allegations, while deserving of respect and due process, cannot be allowed to pollute our public service mission.”

So when you’re referring to the malcontents are they the people in the Mediation Scheme?

Patrick Bourke: Well, that was the view of a number of them, as it says there and, looking back on this, I clearly regret the sort of rather florid language I’ve used but –

Mr Stevens: Why did you use that language?

Patrick Bourke: Well, I think it was borne of a sense of frustration, rather than anything else and it’s not – I’m not seeking to excuse it. It’s a poor choice of language. But I think it is explicable, in terms of the frustration I was then feeling.

Mr Stevens: What was the self-indulgence that you were referring to?

Patrick Bourke: Well, I think certainly, with the cases that we had in front of us in the scheme, there were, in almost all cases, a very rational and, frankly, quite mundane explanation for what had transpired in those that didn’t rely on, you know, theoretical possibilities, which were pretty improbable. So I think sort of there was a sense in which, in the absence of evidence, to continue pursuing a line which relied on a theoretical possibility, rather than the facts in front of us, seemed to me to be somewhat self-indulgent.

Mr Stevens: Please can we bring up POL00150306. If you could go to page 2, please. If we could go to Nick Wallis’ email of 16 December, this is an email to Mark Davies. He asked various questions. The fourth substantive paragraph down, Mr Wallis says:

“I get the sense from speaking to a number of [subpostmasters] that they don’t like the system, they don’t trust it and they live in fear of what the Post Office might do if they get something wrong with it.”

If we can turn back to page 1, please, to your response – go down, please. You start by saying:

“Apart from its breathtakingly facetious tone, this looks to me to be clutching at straws a little bit.”

Why did you think Mr Wallis’ email was “breathtakingly facetious” in tone?

Patrick Bourke: Well, I think if you scroll down to Mr Wallis’ email and it’s the fifth paragraph down, where he says:

“If you have data which shows that the vast majority of [subpostmasters] love using Horizon and trust it implicitly, it would up useful to have that information.”

You know, I think I took that as being laden with sarcasm, which I think it was. So I was reacting to that, in the first instance.

Mr Stevens: If we can go back up to the email, please:

“In conclusion, I’m not sure it merits much more than a cursory response”, at the bottom.

Then, if we go up, please, Rodric Williams replies to you, saying:

“I swear, you are the only person I’ve met more cynical than me, and then by some considerable margin …”

You respond by saying:

“Thank you, sir, I take that as a serious badge of honour [smiley face].”

You’re self-describing as cynical of the allegations being made by journalists regarding the Horizon IT System in this instance, aren’t you?

Patrick Bourke: Well, I think up to a point. I mean, look, this exchange – and I know it’s come up in a different context – you know, obviously it doesn’t look good, eight years on but, you know, I think this is the sort of, you know, dark humour which is quite often employed in these contexts to relieve pressure. So I don’t excuse it, but I think one can read rather too much into it, if I may say so.

Mr Stevens: Does it show an inherent distrust of the allegations made by journalists and subpostmasters that you held?

Patrick Bourke: No, it’s not an inbuilt distrust. It’s not a predisposition to distrust; it’s reflective of the fact that there wasn’t any evidence for the propositions that were being advanced.

Mr Stevens: I’m going to move on to a different subject now and I’m going to look at your involvement in preparing a briefing for a Westminster Hall debate in December 2014. I’m not going to be asking you any questions that go to the accuracy of matters said within Parliament, simply to your involvement in the briefing beforehand and a document afterwards.

I want to start, though, by looking at your knowledge of some matters. When you joined as Programme Director, what was your knowledge of Post Office Limited’s prosecutorial function?

Patrick Bourke: My knowledge was that, like any other company, it had the ability to take out private prosecutions. My understanding was that the historic position had been that the police had more or less indicated that this was something better handled by the Post Office, given that there were specific circumstances attaching to the work of a subpostmaster that Post Office Investigators ought to be more familiar with, and so there was sort of accommodation as between the police and the Post Office Investigations Team that it would take it forward.

I was also conscious of the fact that the prosecutions, whilst obviously somebody at the Post Office had to eventually say “yes” or “no” to whether or not charges should be brought, the advice was always provided by external lawyers, in the main Cartwright King, and external counsel. So, from my perspective, there were a number of inherent checks and balances in that process.

Mr Stevens: Are you now aware, if I said the Simon Clarke Advice of 15 July 2013 concerning Gareth Jenkins, are you aware of what that is?

Patrick Bourke: I am, yes.

Mr Stevens: Were you aware of the Clarke Advice when you joined as Programme Director?

Patrick Bourke: No, to the best of my knowledge, I only became aware of the Clarke Advice in 2018.

Mr Stevens: Sorry, was that 2018?

Patrick Bourke: Yes, 1-8.

Mr Stevens: When you were taking the role of Programme Director, obviously we’ve discussed already, part of that involved applicants who had been convicted of criminal offences, yes?

Patrick Bourke: Yes.

Mr Stevens: Did you not receive a briefing on the issues that were relevant to the safety of those convictions?

Patrick Bourke: No, I did not.

Mr Stevens: Did you not ask any questions yourself to satisfy yourself about what Post Office had done to review the safety of those convictions?

Patrick Bourke: No, and just to clarify my previous answer, I was aware that work had been undertaken to review a number of historic matters but that was my – that was the extent of my knowledge of it. For my purposes, the relevant points were: were these cases going to be admitted into a mediation phase, and I was aware that there had been strong advice from both Simon Clarke and from Brian Altman, then QC, that such cases should not, frankly, in any circumstances go into a mediation process, and that is what I took as my lead.

Mr Stevens: Slightly different question before I move on is: your evidence is you weren’t aware of the Simon Clarke Advice, were you aware of the underlying allegation that Gareth Jenkins had provided expert evidence in breach of duties to the court or expert duties?

Patrick Bourke: I don’t believe so. I certainly at some point became aware of the fact that, for whatever reason – and I don’t think I was ever clear on the point – the expert witness that we had historically used could no longer perform that function, and I was aware that steps were being taken to explore the – bring on board an alternative. In the event, I don’t think that occurred because we ceased prosecutions in 2013, to all intents and purposes.

Mr Stevens: So when do you say you were aware of Post Office performance not being able to rely on the same expert witness?

Patrick Bourke: I can’t give you a precise timescale but it was probably in the – look, at a best guess, and it really is only a guess, sometime around the spring of 2015.

Mr Stevens: I want to look at remote access now, your knowledge of that. Can we look at POL00091395. So this is an email from Belinda Crowe and it goes to you and others on 20 October 2014. Could we go to page 2, please, and we see an email that’s forwarded to you from James Davidson of Fujitsu and sets out some matters on remote access. Could we go down the page, please, to 2, “Can Fujitsu change branch data without a subpostmaster being aware of the change?” It says:

“Once created, branch transaction data cannot be changed, only additional data can be inserted. If this is required, the additional transactions will be visible on the trading statement but would not require acknowledgement/approval by a subpostmaster. The approval is given by Post Office via the change process. In response to a previous query Fujitsu checked last year when this was done on Horizon Online and we found any one occurrence in March 2010 which was early in the pilot for Horizon Online and was covered by an appropriate change request from Post Office and an auditable log. For Old Horizon, a detailed examination of archived data would have to be undertaken to look into this across the lifetime of use.”

It goes on to discuss cost.

So breaking this down, this tells you, doesn’t it, that Fujitsu could insert transactions into branch accounts –

Patrick Bourke: In short, that’s correct.

Mr Stevens: – and that, when it did that, that it didn’t need to be approved by a subpostmaster?

Patrick Bourke: It didn’t need to be but, in fact, my understanding is this occurrence – and it says there in the middle of the paragraph, “we only found one occurrence in March 2010”, my understanding was this was done as part of a pilot and, in fact, the subpostmaster concerned was fully informed –

Mr Stevens: Mr Bourke, my question was: it didn’t need to be. We can look at the other matters, in due course, but I think your answer to that was you agreed it didn’t need to be. You’ve already said it’s been done once for Horizon Online but the position was, for old Horizon or what we call Legacy Horizon, Fujitsu couldn’t tell you to what extent, if at all, transactions had been inserted into branch accounts.

Patrick Bourke: On the face of it, that is correct, yes.

Mr Stevens: At that time, were you clear at all as to whether a subpostmaster would be able to clearly identify whether Fujitsu had inserted a transaction into the account, rather than it being generated in the branch itself?

Patrick Bourke: My understanding is that any such balancing transaction would leave an auditable trail distinguishing that transaction from any performed by the subpostmaster.

Mr Stevens: That’s slightly different, that’s about an auditable trail. I’m saying, at this time, did you know whether or not it would be clearly visible to a subpostmaster, on the data that they could access, that a transaction had been added into the branch accounts by Fujitsu, rather than in branch?

Patrick Bourke: My understanding was, if they were to perform the requirements of the task of daily accounting, this would have been visible to them, yes.

Mr Stevens: Where did you get that understanding from?

Patrick Bourke: From Fujitsu.

Mr Stevens: How was it going to be clearly visible to the subpostmaster?

Patrick Bourke: Because it would not carry the postmaster’s unique identifier code.

Mr Stevens: So your understanding is, at this time, that the subpostmaster themselves would be able to see that data to show that it was somewhere else, or Fujitsu, that entered that data?

Patrick Bourke: They would be able to identify that it was not a transaction which they had entered.

Sir Wyn Williams: Mr Stevens, can you give me the date, again, of that email which provides that answer?

Mr Stevens: Of course, sir. The date of the email that provided the answer was 17 April 2014 and it was forwarded to Mr Bourke on 20 October 2014.

Sir Wyn Williams: I just wanted to check I’d got the dates right. So April and October.

Mr Stevens: Yes, sir.

Sir Wyn Williams: Yes, fine, thanks.

The Witness: Sorry, I don’t know if it would be helpful for me to say at this stage that I think on 7 November, so just two or so weeks later, Mark Underwood and I had an exchange of email following a discussion with Fujitsu, in which we confirmed our understanding of what was and what was not possible in terms of remote access, and that’s the point at which I think my knowledge of these issues really began to form.

Sir Wyn Williams: Sorry, you dropped your voice through the last few words.

Patrick Bourke: I’m terribly sorry, sir. I was just saying that it might be of interest and helpful to the Inquiry to know that there’s an exchange of emails between myself and a colleague, Mark Underwood, following a conversation with Fujitsu on 7 November, just some two or so weeks later, in which we confirmed that our respective understanding of what was and was not possible in remote access terms was aligned to one another and reflected the state of our knowledge at that time.

Sir Wyn Williams: Fine. Thank you.

Mr Stevens: Sir, I don’t propose to go to that but, just for the record, the reference for that is POL00149488. That’s the emails to which Mr Bourke is referring.

Sir Wyn Williams: Right, 00149888?

Mr Stevens: 488.

Sir Wyn Williams: 488, thank you.

Mr Stevens: Slightly different topic, Mr Bourke, please. It’s still on remote access but a different element to it. Can we look at POL00307633, please.

Apologies, I’m playing catch-up here. This is an email from Belinda Crowe to you on 23 October 2014, and we can see in the attachments – well, there are attachments. It’s difficult to see what they are from the description there but in your witness statement you refer to one of them, and that’s POL00027153. This is a report for the Post Office Board that is dated on 6 June 2014, so before your time, and its authors were Chris Aujard and Mark Davies.

Presumably you would have read this, it being sent to you by Belinda Crowe?

Patrick Bourke: So I’m not clear that I would have read it in any great detail. This email was sent to me some two weeks after I joined and, to the best of my recollection, the point of it being sent to me was to look at or to note the fact that advice had previously been taken by Post Office as to the susceptibility of Post Office to a challenge for judicial review were steps taken to move the scheme in-house. So I was not focused on anything else it might have said.

Mr Stevens: But you’re sent two attachments and, at this point, I think you are looking to instruct a separate counsel – a separate barrister, sorry – to advise on the issue of judicial review. That’s at this time, yes?

Patrick Bourke: Shortly thereafter, yes.

Mr Stevens: So if you’re sent two documents and you’re considering instructing counsel on the same issue, presumably you would have at least reviewed the documents?

Patrick Bourke: Yes, but I would have taken – I would have focused on those bits which were relevant to the work that I was taking forward at the time, which had nothing to do with remote access and everything to do with judicial review.

Mr Stevens: Let’s look at page 3, because this is, effectively, in the middle of the document. We see, if you go to the bottom, it’s just before the conclusion – thank you. It refers to the Deloitte report and Linklaters advice, and paragraph 5.2 says:

“As regards the Sparrow-related issues it is believed that given the limited scope of the work Deloitte were able to undertake it is highly unlikely that we will be able to extract any further comfort or assurance without their doing substantially more work. Furthermore, it is also clear that Deloitte will not consent to the publication of their report or use their name to publicly assert that the system is working with integrity unless they undertake specific testing. That said, the report does give some comfort for the Board on the design for processing and storing transaction data with integrity.”

You would accept, would you, that the Deloitte report was an important document, this is Project Zebra, it was an important document in the context of Post Office Limited’s response to the applicants in the scheme or how it approached allegations against the Horizon IT System.

Patrick Bourke: So I was not aware of Project Zebra until much, much later, in the context of preparing instructions for Jonathan Swift and Christopher Knight, who conducted the Swift Review.

Mr Stevens: But this document effectively tells you what Project Zebra is, doesn’t it?

Patrick Bourke: Well, not really, no. It certainly doesn’t go into the findings and it wouldn’t have been apparent to me that there was a project called Zebra or that Deloitte had been particularly instructed to look at anything in particular. As I’ve previously said, the purpose of this document being shared with me was to inform my consideration of whether or not instructing counsel to provide advice on the susceptibility of Post Office in – as it might seek to change the scheme, was susceptible to judicial review. So I wasn’t looking at it from the purposes of data integrity or the Deloitte report.

Mr Stevens: Just a few days earlier, Belinda Crowe had sent you the email regarding remote access, correct?

Patrick Bourke: Um –

Mr Stevens: You’ve just been to it.

Patrick Bourke: Yes, I mean, she would have – yes, she may well have sent me an email on remote access, yeah.

Mr Stevens: At this time, you are dealing with, as we say, applications in the scheme. If you read this and saw, “That said, the report does give some comfort for the Board on the design for processing and storing transaction data with integrity”, surely you would have considered that to be relevant to the work you were carrying out?

Patrick Bourke: Well, up to a point, although I was not at that stage focused on questions of data integrity. As I’ve said, and I say again, I was looking at this from the point of view of the susceptibility of Post Office to a JR: should we change the scheme? I think I’m right in saying that the email from Belinda Crowe, to which you refer, was sent to me on 23 October of that year, which is, you know, perhaps week five of my arrival at Post Office, not the knowing the subject matter terribly well.

So, I’m afraid, if I’m guilty of having, you know, not immediately seen the relevance of those things at the time, then I can any apologise, but I think it’s –

Mr Stevens: Let’s look at it in context. You receive the email on remote access from Belinda Crowe a few days before, so remote access is on your mind. Your earlier evidence, you referred us to a conversation you had with Mark Underwood on 7 November regarding remote access. Is your evidence that, when reading this report here, on or around 23 October, you simply put issues of data integrity out of your mind?

Patrick Bourke: Well, my evidence is that I wasn’t focused on that point, and the email confirming my understanding of what was and was not possible in relation to remote access and the exchange between myself and Mark Underwood dates from 7 November, sometime after 23 October.

Mr Stevens: Please can we go back to the issue of remote access and POL00149598, please. Thank you. Now, if we can go down to the bottom of this page, please, we see there’s another email exchange – well, sorry it’s an email exchange between you and James Davidson at Fujitsu and, presumably, this was arising from your work with Fujitsu to establish the position in respect of remote access?

Patrick Bourke: Yes, it reflects my growing involvement in issues of remote access, yes.

Mr Stevens: You say in this email:

“We absolutely share the ambition to put the baseless allegations brought forward by Second Sight and applicants where they belong, but there is a bit of handling to be done …”

Where did the allegations belong?

Patrick Bourke: Well, they needed to be taken at face value but needed to be examined for any evidence to support them, like any allegation and, as the expression “baseless allegations” suggests that allegations were certainly being made but very little evidence was being adduced in support of those allegations, so that’s the point I was making.

Mr Stevens: Would you say this is an open-minded approach to the allegations being made by Second Sight?

Patrick Bourke: I don’t think it’s a closed approach. It’s an approach which requires Second Sight to do more than just allege things and to provide evidence for those allegations. I don’t think that’s in any way unreasonable.

Mr Stevens: Well, you’d been told, hadn’t you, that inserting transactions into branch accounts was possible, yes?

Patrick Bourke: Yes.

Mr Stevens: You, at this stage, didn’t know to what extent, if at all, that feature had been used in Legacy Horizon?

Patrick Bourke: I mean, that is true. I didn’t even know if that facility existed in Legacy Horizon.

Mr Stevens: So how did you come to describe the allegations as “baseless”?

Patrick Bourke: Because when we were looking at the cases in the scheme – and, please, I mean, just for the sake of context, my only involvement was the cases in the scheme, in none of those cases could it be said that remote access was responsible for the losses being complained of, and we know that because of another exchange with Fujitsu, in which they reported, because we asked them to, to identify whether or not any such remote access had taken place, and the answer came back, not once but twice, with the final answer coming back saying, “Everything appears golden”.

Mr Stevens: So your evidence here is that you’re not referring to the general allegation made about remote access, you’re saying this is allegations in individual cases within the scheme?

Patrick Bourke: That was the work that both we and Second Sight ostensibly were focused on.

Mr Stevens: I said this would be about a briefing, let’s look at the briefing and how that was created. I think you accept in your evidence that you were asked to assist UKGI – sorry, the Shareholder Executive to prepare a briefing for Jo Swinson on 11 December 2014?

Patrick Bourke: Yes, that’s right.

Mr Stevens: Could we look, please, at POL00150097. Now, this is one of the drafts of the briefings you prepared. If we look at paragraph 77 of your statement – we don’t need to bring it up – you say that you shared an early draft of this document with Belinda Crowe, Andrew Parsons and Mark Underwood on 12 December 2014; so did you draft this document?

Patrick Bourke: I would have drafted the draft, yes.

Mr Stevens: If we look, please, at page 3 and if we could go down to show just what – that’s perfect, thank you. It says:

“What were the main accusations of the Interim Report?”

That’s referring to Second Sight’s Interim Report, isn’t it?

Patrick Bourke: Yes, the Interim Report of 2013, I think.

Mr Stevens: You write under “other conclusions were”:

“2 incidents where defects in the Horizon software gave rise to 76 branches being affected by incorrect balances or transactions, which took some time to identify and correct (but which were corrected).”

Using the word “incident”, was that a word you used yourself or did you receive guidance on it?

Patrick Bourke: I certainly didn’t receive guidance on it. I think that’s what I would have chosen myself.

Mr Stevens: Do you think that fairly reflects the points made about the receipts and payments mismatch bug and the suspense account bug in the Interim Report, to describe them as “incidents”?

Patrick Bourke: Well, if you read the sentence, it says “two incidents where defects”, so, in fact, I’m talking about “defects” in the Horizon software, not “incidents” in the Horizon software. I think defects is – whether you want to call it a “bug” or a “defect” or an “anomaly” or an “exception”, I’m not sure it really makes much differs. The point is there was a problem with the Horizon software which gave rise to these issues.

Mr Stevens: Could we look at a further version of the draft briefing, please. It’s UKGI00002719, page 4, please. If you could go down to “Progress/Results”, thank you. It says:

“What were the main accusations of the Interim Report?”

It now says:

“Those Second Sight identified a number of areas of concern that needed further investigation, it must be noted that their primary finding was one of no evidence of system wide problems with the Horizon software.”

Can you recall why the further information in your earlier briefing was taken out.

Patrick Bourke: I’ve no idea. I’m not sure. Maybe it was just for the sake of brevity but the basic conclusion at the second bullet point you’ve read out is accurate.

Mr Stevens: Do you think that’s a full and fair briefing of what was in the Interim Report for the Minister?

Patrick Bourke: Insofar as the Horizon system is concerned, yes.

Mr Stevens: So your evidence is that it wasn’t important to highlight to the Minister that the Interim Report had included information about at least two bugs in the system?

Patrick Bourke: The bugs that were reported by Second Sight were not new. We had, in fact, told Second Sight about those two bugs on a voluntary basis. So …

Mr Stevens: Mr Bourke, can you answer the question, please. The question was about the briefing: is your evidence that you didn’t think it was important or that the Minister shouldn’t be informed of the two bugs in the Interim Report?

Patrick Bourke: Look, in circumstances where it was not new information, I – and they’d been satisfactory resolved, at that time I clearly didn’t think that, if indeed I was the author of this final version.

Sir Wyn Williams: Well, I was going to ask you. Do I understand your evidence to be that the first draft that we looked at, you accept the probability that you were the author, whereas are you accepting that you were or may have been the author of this draft?

Patrick Bourke: I think what I’d say sir, is that, as with all briefings, particularly ones going to the ministers, there is a process of quality assurance that would typically involve people more senior than the original draftsman and I suspect that’s what happened in this case. So, although the initial words and the working draft would have emanated from me, the final version that went would have had the approval of people more senior than myself.

Sir Wyn Williams: Yes, I follow that but, without displaying too much ignorance, I’m not sure, as I sit here at the moment, which paper eventually went to the Minister. So that I was simply trying to get a sequence right, if you see what I mean. So, again, can I just be clear: the first draft we looked at you probably did author; is the state of your evidence that you don’t know whether you authored this one or do you know, whichever it is.

Patrick Bourke: I authored this one as a draft. The final version – and this may or may not be it – was, you know, authored –

Sir Wyn Williams: Sure. Right. So simply so that I can be clear in my mind – I’ll use the phrase “the probability is” – the probability is that you did author the two drafts that we’ve looked at so far?

Patrick Bourke: Yes.

Sir Wyn Williams: Right, fine.

Mr Stevens: Sir, at this point, I think if we can look at, actually in fairness to Mr Bourke, Mr Bourke’s evidence, in his witness statement.

Sir Wyn Williams: Right. Please.

Mr Stevens: Page 42, paragraph 81.

So we were looking at UKGI00002719, which you see, sir, is the URN at the end.

Sir Wyn Williams: Yes.

Mr Stevens: We see the evidence there that:

“It appears that shortly before this, at 11.13, he [referring to Mark Underwood] had shared the same version of the briefing document with me and Belinda Crowe in a separate email chain, and at 11.19, I forwarded this to Richard Callard, which both Belinda Crowe and Mark Underwood in copy.”

So there’s then evidence on various drafts that went backwards and forwards.

Sir Wyn Williams: Yes. Anyway.

Mr Stevens: It may help, sir, if I go to this, because this was going to be a question I had.

If you can look at POL00150316. Mr Bourke, are you able to assist us with if this the final version of the report for the Minister?

Patrick Bourke: No. But it looks like a near finalised version, if it’s not the final version. Just by way of clarification, briefings for ministers are drafted and finalised by civil servants rather than by people at the Post Office. So we would have provided a great deal of material but the file package that was communicated to, in this case Jo Swinson MP, would have had the approval sign-off of whatever the appropriate management chain was in the Civil Service at that department.

Mr Stevens: Please can we look at page 4 of this document. We have a question about “Why did Post Office agree to incorporate convicted cases into the scheme if it knew it wasn’t going to mediate?” We see the fourth bullet point down says:

“Post Office is, however, under an absolute duty to immediately disclose any information which might undermine the Prosecution’s case or support the case of the defendant and Post Office has done so where appropriate.”

Can you recall if you took any advice or were involved in the drafting of this section of the report?

Patrick Bourke: So I don’t recall but it was my practice, certainly, to consult people in the Legal Team whenever matters around matters of criminal law, which I was really very unfamiliar with, were concerned. I think – and I don’t know whether it’s helpful to think where I didn’t know – but the question of whether – the question as to why criminal cases were first allowed into the scheme, if indeed the prospect of mediating them was highly unlikely, I think may have been born of a desire to, if you like, get the scheme up and running, and, in any event, although those cases were not mediated because we had had very strong advice that they could not be, it would nonetheless enable the applicants to benefit from a full re-examination and investigation of their cases, and a criminal case review – sorry, a case review report from an independent firm of forensic accountants, such that it could be used by them, in the – you know, if they decided that was the thing to do, to lodge an appeal against their conviction.

So it wasn’t an entirely pointless exercise for them to be part of the conflated Mediation Scheme, even if the mediations did not take place in those cases.

Mr Stevens: Do you think around this time, as part of your involvement with creating this briefing, you would have been made aware of the difficulties with Gareth Jenkins’ evidence?

Patrick Bourke: I think it’s unlikely, because this is still, to the best of my knowledge, late 2014.

Mr Stevens: Yes.

Patrick Bourke: The Westminster Hall debate took place on 17th December, and I – in an answer I gave at the beginning of this session, I think told you that my – I think that sort of knowledge began to emerge, for me, sometime in the spring of 2015, although I wasn’t aware of the details. I’m not sure I even knew the identity of Mr Jenkins at the time, just that there had been a problem which rendered the previous expert as being usable in future proceedings and some work being conducted to explore the possibility of an alternative expert being found to effectively provide the same expertise in any future cases.

Mr Stevens: I want to look at the last two documents before we have a short break, POL00308923, please. If we can go down to the bottom of the page, please – thank you – we see your email to Richard Callard at Shareholder Executive. He was the Shareholder Non-Executive Director at that point, wasn’t he?

Patrick Bourke: He was, yes.

Mr Stevens: It said:

“Richard

“Suggested responses to the additional questions prompted by [presumably that’s ‘Jo Swinson’s’] chat with [now Lord Arbuthnot, James Arbuthnot].”

Is that right?

Patrick Bourke: That’s my reading of it, yes.

Mr Stevens: You see:

“For the sake of expediency, I am copying internal colleagues for their comments please …

“I would be particularly grateful for the views of Jarnail on the criminal aspects of this and [Andy Parsons] to check I have done the Statute of Limitation bit justice.”

If we go up, please, we see Jarnail Singh then sends a response to you, and it looks like that’s internal to Post Office, and Richard Callard isn’t included in the copy list.

Patrick Bourke: Yes, with the exception of Andy Parsons who was obviously not –

Mr Stevens: Yes, a fair point. Sorry, I was focusing on Callard, but, yes, Andrew Parsons is there.

Patrick Bourke: (The witness nodded)

Mr Stevens: Can we look, please – oh, sorry, he says:

“Please see my note and comments in red.”

Can we look at those. That’s POL00040517. One of the questions we see is “Destruction of documents relating to cases in the scheme”. Presumably, the first point, which isn’t in red, “Post Office has not, and will not, destroy any documents relating to cases in the scheme”, that was written by you, was it?

Patrick Bourke: It would have been written by me on the basis of information supplied by somebody else because my understanding of retention periods would have been limited at this stage.

Mr Stevens: If we look at Mr Singh’s comments, if we could just go down slightly, refers to data retention policies, he says:

“[The] Implied suggestion that this is unwarranted is incorrect. CK [Cartwright King] had to advice [it should be ‘advise’] [Post Office Limited] not to shred/destroy documentation after such an instruction was given in the Security Team and following publication of the Interim Second Sight Report.”

Do you remember reading that?

Patrick Bourke: I don’t particularly, although I do know what it refers to now, yes.

Mr Stevens: Would you have read it?

Patrick Bourke: Almost certainly, yes, to the extent that I would have really engaged with it, I’m less certain. My recollection just isn’t strong enough to tell you.

Mr Stevens: Well, it’s very important, isn’t it? Because what we’re talking about here is the question is about destruction of documents relating to cases in the scheme, and Mr Singh is saying or alluding to advice about an instruction being given to the Security Team to shred/destroy documentation. Would that not have set alarm bells ringing?

Patrick Bourke: Yes. Yes. No, absolutely. I don’t know whether I had alarm bells as a result of this particular correspondence but certainly I became aware that an instruction was given, not to the Security Team but within the Security Team. But my understanding was that no – nothing of the sort, in fact, transpired and there was a great deal of consternation that it had ever been thought appropriate to give in the first place.

Mr Stevens: Where did you get that understanding from?

Patrick Bourke: I don’t particularly recall but it would have been in conversations with other people engaged in this work. So any number of people, including Rod Williams, Belinda Crowe, Mark Underwood, Andy Parsons, and so on.

Mr Stevens: Did you pass on this allegation or otherwise inform Richard Callard or anyone at Shareholder Executive?

Patrick Bourke: I don’t recall.

Mr Stevens: Do you think you would have done?

Patrick Bourke: I think probably, yes, but I think – whether I did or somebody else did, I think it would have been shared with them on the basis that this was something that was clearly inappropriate and was likely to generate adverse comment, as well it might.

Mr Stevens: That’s my question, just a further gloss on it: with this information, do you think it should have been passed on to the Shareholder Executive?

Patrick Bourke: I think probably, yes.

Mr Stevens: Thank you, sir, that’s probably a good time to have our morning break.

Sir Wyn Williams: All right. What time shall we resume?

Mr Stevens: 11.15, sir.

Sir Wyn Williams: Okay.

Mr Stevens: Thank you.

(11.05 am)

(A short break)

(11.15 am)

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

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

Mr Stevens: Mr Bourke, can you see and hear me?

Patrick Bourke: I can.

Mr Stevens: Good. Please can we move on slightly to after the Westminster Hall debate. Can we look at POL00351025. If we could go down to Jarnail Singh’s email of 8 January. So this is 8 January 2015 and Mr Singh is providing some comments on BBC Inside Out requests for an interview. What Mr Singh says we see in the second paragraph:

“Whilst Post Office wish to say that there are no systemic faults, the Second Sight Interim Report which has been disclosed to the defendants and their legal representatives does mention two defects/bugs which give rise to 76 branches being affect by incorrect balances or transactions.”

A bit further down, it says:

“It also raises questions as to whether [Post Office Limited] knew of the existence of those bugs. If so, to whom at [Post Office Limited] Fujitsu communicated them. Those were certainly not known to me at [Post Office Limited] Legal until day or so prior to the publication of the Second Sight Interim Report. The difficulty here is made worse by the fact that [Gareth] Jenkins, an employee of Fujitsu has been making statements for use in criminal proceedings which made no references to the very bugs which it is understood he told Second Sight about. People were prosecuted and pleaded guilty following the receipt of his statement which implied no bugs had been found.”

We see, I should have said, you’re cc’d in to this email. Presumably you would have read this at the time?

Patrick Bourke: I imagine so, yes.

Mr Stevens: So would you accept – earlier, you couldn’t quite place a date on when you were aware of the issue with Gareth Jenkins – that you were aware of it or would have been aware of it 8 January 2015, at the latest?

Patrick Bourke: I think in theory, yes, that’s right.

Mr Stevens: When you say “in theory”, is –

Patrick Bourke: Well, sorry, yes, I mean, I was a recipient in – I was the copy recipient of this email and, whilst I don’t have any sort of very clear recollection of having read it in any great detail, as a matter of fact, yes, you’re correct.

Mr Stevens: Please can we look at UKGI00002944. Now, we don’t need to show this on the screen but, sir, for your reference, and Mr Bourke for you, as well, at page 48, paragraph 93 of your statement, you refer to this document, and you say:

“On 13 January 2015 I shared a draft of Post Office Limited’s response to the Westminster Hall debate with Richard Callard.”

You give the URN, the unique reference number, for the email and, later on, this document we’re looking at. This was, as I understand it, effectively a further briefing document to deal with matters that had been raised during the Westminster Hall debate; is that right?

Patrick Bourke: So I think, after the Westminster Hall debate, from memory, what we tried to do was to collect all the allegations that had been made during the course of that debate, and others which we had obviously had from other sources, with the purpose of developing a more comprehensive document to address each and every one of those. From memory, I think there was envisaged to be two such documents, one sort of rather briefer one intended to be used in more sort of general communications, and then a longer, more granular one intended to inform Members of Parliament. The response was the product of a collaborative effort on the part of a fair number of people, from – as I think I made clear in my statement.

Mr Stevens: Presumably, this document runs to 15 pages. Is this the longer document, the more granular one, as you described?

Patrick Bourke: I think it must have been. I think Tom Wechsler, who was working with me on the scheme and interface with the Working Group, started this process and, at some point, I took over the task of bringing it together, as a sort of briefing coordinator, which was not atypical of my role at the time.

Mr Stevens: So briefing coordinator, would that include ensuring that different parts of the business or subject matter experts would contribute to the briefing on areas where their subject was in issue?

Patrick Bourke: That’s correct.

Mr Stevens: Given you sent it to Richard Callard at Shareholder Executive on 13 January 2015, do you take responsibility for its contents?

Patrick Bourke: No, because it was a collaborative effort. So I wrote it and I edited it but the specialist content which I solicited from other colleagues really belongs to them.

Mr Stevens: So when you say no, is it fair to say that, if you were told a matter, say you were told “X” on a subject matter, you would be responsible for including that in the response but you wouldn’t be responsible for the accuracy of what was provided to you by the subject matter expert?

Patrick Bourke: That’s a more accurate description, yes.

Mr Stevens: Could we look at page 10, please. At paragraph 40, you say:

“To date no evidence has been identified by Post Office as part of its reinvestigation of each and every case, nor advanced by Second Sight or an individual Applicant, to suggest that the conviction of any Applicant to the Scheme is unsafe.”

If we can go over to page 12, please. There’s a section on “Approach to Prosecutions”. We see 51 talks about the power of prosecution as a private individual; 52 is interviews under caution. We get to 54 and it says:

“All cases of potential criminal [misconduct] are thoroughly investigated and decisions about appropriate courses of action are taken on the basis of available facts and evidence.”

It goes on to say:

“When Post Office decides to prosecute a case, its conduct of the prosecution is scrutinised by defence lawyers and ultimately by the Courts themselves.”

If we go over the page, on 56:

“Once a decision has been made to prosecute, the Post Office has a duty to disclose the evidence against a suspect, along with all evidence that would assist the defence or undermine the prosecution. Post Office refutes the allegation that it has put pressure on defendants to plead guilty, sometimes to lesser offences.”

Why did this briefing not include reference to the issues with Gareth Jenkins?

Patrick Bourke: That’s a fair question. I think this document – I’m not convinced I was aware of the issues around Gareth Jenkins at the time. But, in any event, the – as we’ve just discussed, the content where it relates to specialist issues, particularly around, you know, matters which I really know nothing about, ie criminal law and procedure, I would have relied entirely on the advice I was given by the Legal Team.

Mr Stevens: Who in the legal team would you have relied on?

Patrick Bourke: I would have relied on, I expect, Jarnail Singh, but more particularly, you know, the advice that he was being – you know, he was effectively the conduit between the Post Office and Cartwright King, our external legal providers. So that added, to my mind, a measure of reassurance that there was an internal independent organisation with its own professional standards of ethics and responsibilities.

Mr Stevens: Let’s just focus: you said Jarnail Singh and referred to Cartwright King. If you would rely on Jarnail Singh, we’ve seen, as at 8 January 2015, Jarnail Singh was raising the issue of Gareth Jenkins with you in an email. So can you explain, in those circumstances, why there is no reference to Gareth Jenkins in this report?

Patrick Bourke: I’m sure that briefing would have been circulated to those people once more prior to its finalisation. So –

Mr Stevens: Mr Bourke, earlier I asked you of the difference of responsibilities: one is the subject matter itself, which you accepted or you said was a matter for the subject matter expert; and the second one is, if a subject matter expert tells you of something, you accepted responsibility for seeing that that makes its way into the briefing; do you not accept that?

Patrick Bourke: Well, I do but you get –

Mr Stevens: In those circumstances, why, in this briefing, is there no reference to Gareth Jenkins?

Patrick Bourke: I’m not sure.

Mr Stevens: Is it because you didn’t want to highlight the problem with Gareth Jenkins and past prosecutions?

Patrick Bourke: Absolutely not, no.

Mr Stevens: Well, what other explanation is there?

Patrick Bourke: As I tried to advance a second or two ago, each one of these exercises sees me fairly methodically consulting people around the business and the finalisation of this text, for this document, would have been okayed by our Criminal Law Team. So, insofar as there were good reasons or other reasons to exclude it, it would have fallen to them to take.

Sir Wyn Williams: Can I just be sure that I’m clear about its intended purpose. Was this a document prepared for dissemination internally in the Post Office or was it a document intended ultimately for Mr Callard in his role, which was shared internally in the Post Office before it got to him, or was there some other purpose that I haven’t yet heard about?

Patrick Bourke: I think I’m right in saying that the impulse was we had had a lot of accusations made against us and we wanted to actually produce a more comprehensive piece. The ultimate purpose to which that would be put, I think, was still in question but, certainly, it would find its way to Mr Callard, who had –

Sir Wyn Williams: Right, so at least one of its purposes was to provide, obviously, accurate information, one imagines, to Mr Callard?

Patrick Bourke: (No audible answer)

Sir Wyn Williams: Fine.

Mr Stevens: Can we bring the briefing back up. It’s UKGI00002944, and if we could look at page 11, please.

The Stenographer: Mr Stevens, can I just check the witness answered Sir Wyn’s last question because there was no audible response.

Mr Stevens: I will check with the witness.

The Chair asked – Mr Bourke, did you give an answer to the Chair’s question, his last question?

Patrick Bourke: I believe so, yes.

Mr Stevens: What was that answer, please? Just for the transcript?

Patrick Bourke: So he asked me whether at least one of the purposes in the preparation of this document was to provide information to Richard Callard at UKGI, to which I replied “Yes”.

Mr Stevens: Thank you. I apologise. I’ll try to make sure that, if I spot a nod, it gets recorded on the transcript.

Sir Wyn Williams: Sorry, I should have confirmed Mr Callard’s (sic) agreement with my premise –

Mr Stevens: No, sir, I’ll take sole responsibility.

Sir Wyn Williams: Not Mr Callard – I’m getting confused now – Mr Bourke.

Mr Stevens: Yes, right, we’re on page 11 of this briefing. If we could go down to paragraph 48, please. We see here we have 2Remote and Malicious Access to Branch Accounts”. It says:

“During the debate it was suggested that subpostmasters’ accounts can be amended remotely, in Horizon, without their or their staff’s knowledge. There is no functionality in Horizon for either a branch, Post Office or Fujitsu (suppliers of the Horizon system) to edit, manipulate or remove transaction data once it has been recorded in a branch’s accounts. It is possible for Fujitsu to view branch data in order to provide support and conduct maintenance but this does not allow access to any functionality that could be used to edit record transaction data.

“Post Office can send transaction acknowledgements (TA) or transaction corrections (TC) to branches.”

Pausing there, transaction acknowledgements and transaction corrections both require the subpostmaster to accept them; do you agree with that?

Patrick Bourke: That’s my understanding, yes.

Mr Stevens: “TAs are used to record transactions that have been processed in branch through other systems … and TCs [transaction corrections] to correct errors made by branches. Both TAs and TCs need to be accepted by a user logged into the branch Horizon terminal before they are recorded in the branch accounts. They are therefore fully visible to each branch.

“There is also no evidence of malicious remote tampering and the suggestion made during the debate that a secretive team at a Post Office location is engaged in this sort of activity is flatly denied.”

Why did you not refer to what was called balancing transactions, which we discussed before, namely where a subpostmaster didn’t need to accept the insertion?

Patrick Bourke: Yes, look, I mean, I think that’s a good question. As I’ve indicated previously, all of these briefings were the product of collaborative effort by internal and also external advisers. From recollection, the view taken or the view advised/advanced by Womble Bond Dickinson, or Bond Dickinson, as it then was, was that the balancing transaction was – there having only been one instance of it, where the postmaster had been informed, it didn’t merit inclusion. Now, in retrospect, I think that was a mistake and we should have included it in this briefing.

Mr Stevens: Let’s pause there: the one instance you were aware of was in Horizon Online, wasn’t it?

Patrick Bourke: Yes.

Mr Stevens: At this stage, did you know or had Fujitsu told you if or the extent to which a similar matter had been used in Legacy Horizon?

Patrick Bourke: No, they hadn’t, and I’m not even sure that that facility existed in that system. I think, from memory, a conclusion was drawn that – or I think on the advice of Fujitsu, that to conduct that sort of retrospective analysis would have been immensely lengthy, complicated, and ultimately expensive and was disproportionate to the task.

Mr Stevens: So how could that then have been a justification that you thought it had only been used once in Horizon Online, not to mention this potential avenue of remote access when you didn’t know the position in respect of Legacy Horizon?

Patrick Bourke: Well, as I say, the only time balancing transactions were brought to my attention was in the context of HNG-X, the Horizon Online. There was no discussion that I recall about whether or not that facility had been used – was available and, indeed, had been used in the previous version of Horizon, and it just didn’t – just wasn’t part of our considerations at that time.

Mr Stevens: But we referred to emails earlier where it was raised, and you’ve just said in your evidence that it was ruled out as being disproportionate; is that not right?

Patrick Bourke: I did say that. That’s my recollection. I can’t be absolutely certain about the way it was put to us but the advice we have from our external legal advisers was that, you know, balancing transactions were – had been exceptionally rare to address a particular anomaly, the postmaster had been informed and, in those circumstances, it was not a credible avenue for – or it was not a material avenue to pursue for these purposes.

Now, in retrospect, as I’ve said, I don’t think that was the right call and, if I had my time again, I would have disclosed it or I would have included it in this briefing.

Sir Wyn Williams: I mean, in summary form, to give a “complete”, in inverted commas, picture of Legacy Horizon and Horizon Online, you would have included the balancing transaction point in relation to Horizon Online and you would have included a statement saying, “We don’t know whether the function existed to do the same on Legacy Horizon”.

Patrick Bourke: That’s absolutely what we would have – what I believe we probably ought to have done, with the benefit of hindsight. At the time, I was preparing this document I was three months into the job and I didn’t think –

Sir Wyn Williams: No, I follow why you say it didn’t happen but that’s the reality of it, isn’t it?

Patrick Bourke: Absolutely, and I’m very happy to say that, if I had my time again, I would have included both those things.

Mr Stevens: Please can we bring up POL00310761. If we could go to the second page, please. We’ll see when we scroll up in a moment, this is an email from you to Rodric Williams on 20 January and you say:

“You were going to send me [Brian Altman QC’s] reports – would you mind when you get a chance?”

Why were you asking for those reports at that stage?

Patrick Bourke: I think it was in preparation for the response to the Westminster Hall debate and I think I was in the process of assembling the documentation that demonstrated that, you know, a number of reviews had taken place, although I did not know the precise scope or the extent of those reviews. But I wanted to, you know, I knew some had taken place but I’d never actually seen any of them.

Mr Stevens: So if we go up, please, we see Rodric Williams sends that on the same day. It says “apologies for the delay”, four advices attached: interim review, general review and two others.

Did you read those advices when you received them?

Patrick Bourke: I don’t believe I did, actually, in actual fact. You know, there was quite a voluminous set of material related to, you know, historical matters and my chief objective in obtaining them – I think I’d first asked for them in December – was in making sure that we had all constituent parts available to us in the context of, you know, what we thought was likely to be more requests for information.

Mr Stevens: What is the purpose of having all the constituent parts together if you’re not going to read the advices?

Patrick Bourke: To ensure of their availability, should they become relevant, or should we need to deploy the actual – you know, the actual documentation at any future point –

Mr Stevens: Presumably you thought they may have been relevant by asking for them?

Patrick Bourke: I wanted a complete set, yes, of what I had understood to be a number of reviews that had taken place into past prosecutions and, indeed, advice on our prosecution processes.

Mr Stevens: So your evidence is this was just to have on hand if the need arose, despite the fact you previously settled a response document that covered things like Post Office Limited’s prosecutorial practices? Is your evidence really that you didn’t read these advices?

Patrick Bourke: I certainly don’t think I’d read them in any great detail, no. They’re quite specialist in nature. I may have read some of them. I don’t think I would have engaged with them with any real degree of real application, if I may say so.

Mr Stevens: Well, let’s look at POL00006581. This is the general review by Brian Altman KC, and it’s dated 15 October 2013. Could we please turn to page 5. Now, you said they were lengthy documents. Do you think you would have read the executive summary?

Patrick Bourke: Quite possibly, yes.

Mr Stevens: If we turn please to page 6 and (x), it says:

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

Following receipt of this advice, did you tell Richard Callard or anyone at Shareholder Executive about the issues relating to Gareth Jenkins?

Patrick Bourke: No. These were matters for the Legal Team to act upon. I think this was 2015, sometime after this review was conducted and, certainly, post any prosecutions by Post Office. So no, not because of a lack of care; it just simply wasn’t something that fell within my area of expertise or area of responsibility. There was nothing to suggest to me that this advice wasn’t acted on by the people at the Post Office who you’d expect to act upon it: so the General Counsel, the criminal lawyers, and so on. So, no, I didn’t, is the short answer.

Mr Stevens: Did you have any indication as to whether or not Richard Callard or others at Shareholder Executive knew about the issues relating to Gareth Jenkins?

Patrick Bourke: I don’t know off the top of my head but I think it would be difficult to imagine that they weren’t aware of the fact that prosecutions could no longer take place on the basis of an absence of an expert witness to attest the robustness or otherwise of Horizon. So I think it would be difficult to imagine that they weren’t aware at least of the fact that we couldn’t, at that time, prosecute, because we didn’t have the requisite expert.

Mr Stevens: Mine’s a slightly more precise question, which is: do you have any knowledge as to whether anyone at Shareholder Executive knew of the allegations against Gareth Jenkins, namely that he’d acted in breach of his expert duties?

Patrick Bourke: I don’t have any direct knowledge of that, no. I just posited what I think probably would have happened.

Mr Stevens: Okay, I want to go to a different topic now and look at the closure of the Mediation Scheme. Please can we bring up POL00149669.

We don’t need to have this up but, sir, for your reference, and also, Mr Bourke, for you: at page 35, paragraph 71 of your statement, you refer to this as a note of advice for Paula Vennells that you prepared to inform her consideration as to how to respond to the proposal advanced by MPs that Post Office Limited mediate all cases in the scheme where this was recommended by Second Sight.

So we can see immediately that the recommendation is to decline that proposal. Can we go down, please, to paragraph 4 for the reasons. So paragraph 4 effectively says it’s not something that Post Office Limited could accede to or agree to mediate all cases because it would require mediating criminal cases; is that a fair summary of the reason?

Patrick Bourke: Yes, on which we’d had strong advice.

Mr Stevens: Yes. Paragraph 5 is a slightly different reason. It says:

“It would also necessarily entail the mediation of cases in which [Post Office Limited] is not, on any reasonable view, responsible for the losses or other complaints it is alleged to [have been] the cause of.”

So this is non-criminal or court cases but Post Office does not want to mediate all of them because, on the merits, there will be some that it considers are not worth mediating; is that fair summary?

Patrick Bourke: I’m not sure “worth” but there simply wasn’t anything to mediate because the facts pointed to a very clear conclusion about the responsibility or otherwise for the loss.

Mr Stevens: Okay, well, I won’t explore what the distinction there is supposed to be but was that view, in paragraph 5, the view of the entire team or an agreed view of the team who were working on the scheme?

Patrick Bourke: To the best of my knowledge, yes, as we looked at the cases and the CRs being produced by Second Sight, it was a difficult conclusion – it was difficult not to reach that conclusion.

Mr Stevens: Can you recall if Paula Vennells accepted that advice and agreed as well?

Patrick Bourke: Not specifically, although I think she, I think, came to share the view which those of us closer to the subject matter had reached earlier, that all was not straightforward in Second Sight’s advice.

Mr Stevens: Can you just explore that: when you say “she came to the view”, was there a difference of opinion at the start?

Patrick Bourke: I think that’s right, and I think in my witness statement I refer to the fact that I had written in some briefing that I had come to the view that Second Sight’s impartiality was questionable and she had picked me up on that, but the – in the immediate aftermath, both Mark Davies and Tom Wechsler provided support for that contention, having seen the cases. So she had formed the view that it was too strong a claim to make on the basis of some of the early case review reports but, having read more of them, and seen – having been involved in them for a longer period, she came to share that view.

Mr Stevens: We might be talking at a slightly different point. I think we will come to that briefing in shortly. My point is: do you recall if Paula Vennells accepted the advice that Post Office Limited shouldn’t agree to mediate all cases because some of them did not merit mediation?

Patrick Bourke: I believe so, yes.

Mr Stevens: Please could we bring up POL00149683.

Now, for context – we don’t need to have it on screen – but at paragraph 72, page 37 of your statement you say that on 26 November 2014 you prepared a corresponding update – so corresponding to the last one we saw – for Alice Perkins, in advance of a trip she was making to a conference in Turkey.

If we go to paragraph 2, please:

“Advice is now with the CEO to refuse this suggestion [that’s the position of accepting all mediations], not least since it would entail the mediation of criminal cases (on which we have advice in the strongest terms that to do so would subject Post Office to intolerable risk) …”

It goes on to say:

“It would necessarily entail the mediation of cases in which [Post Office Limited] is not, on any reasonable view, responsible for the losses or other complaints it is alleged to be the cause of.”

So it’s basically the same advice you were giving to Paula Vennells, wasn’t it?

Patrick Bourke: Yeah, as I say in my witness statement, this was drawn largely from the document I prepared for Paula Vennells for the previous engagement.

Mr Stevens: Can you recall if Alice Perkins accepted that advice?

Patrick Bourke: I believe so. She, I think, wrote an email to summarise her encounter with James Arbuthnot in Ankara, in which she certainly gave every indication that she had taken the briefing to heart, yes.

Mr Stevens: I’m just going to take a brief segue at the minute, for chronology purposes, but we’ll come back to those briefings but can we please bring up POL00149685. So it’s an email exchange between you and Tom Wechsler on 26 November 2014, so the same day on which you say you drafted the briefing for Alice Perkins, yes?

Patrick Bourke: Yes.

Mr Stevens: This is, I think, shortly before a conference you were going to have with Tom Weisselberg KC on the prospects of a judicial review of matters in relation to the Mediation Scheme, if there was an amendment?

Patrick Bourke: That feels about right. I can’t remember the exact date.

Mr Stevens: If we could go down to the bottom email, please, Mr Wechsler says:

“Subject: He was sat next to me.

“Back covering in full effect!”

Your response obviously shows a degree of upset about that, and you say:

“… unfortunate that he bumped into Alice before Mark and I collared him. I fear for RW a bit …”

Is “RW” Rodric Williams?

Patrick Bourke: I would imagine so.

Mr Stevens: When you’re saying “He was sat next to me”, who was this referring to?

Patrick Bourke: I have looked at this email over and over again in preparation for this Inquiry and I just simply cannot remember who it was we were referring to.

Mr Stevens: If we look, please, to the next email, again, from Tom Wechsler:

“Teaching you to suck eggs but I laid the ground for the way out of this with honour preserved. Although there is a fundamental difference of view on public/private law point, circumstances have changed markedly.”

So do we take from this that whatever embarrassment had been caused, it was related to the public law advice in some way?

Patrick Bourke: I think it may have been. As I think I referred to in my witness statement again, there had been previous advice obtained by Post Office before I joined, so, in the summer, I think, of 2014, from a firm called Beachcroft, and the partner there, I think, was Stephen Hocking, who had come to a different conclusion about the susceptibility of any decision in relation to the Working Group, or the scheme more generally, than the advice than we subsequently received from Tom Weisselberg, and I think there was a bit of an issue around how those two bits of trusting advice – or advices could be reconciled with one another.

And I think I’m right in saying that Tom Wechsler was advancing the point that the passage of time and the events that had occurred during that time did point to a new set of circumstances which might offer some part explanation for that distinction.

Mr Stevens: With that background, who do you think this may refer to; who are the list of potential candidates to whom it can refer?

Patrick Bourke: I genuinely can’t remember. I mean, I suppose, if I’m right about the awkwardness of contrasting advice, one set obtained by me – by my team in November, and the other obtained by Post Office in the summer, it may have been Chris Aujard, but I just don’t know.

Mr Stevens: In Tom Wechsler’s email, below the main paragraph, he says:

“Coming up with a new version of history not just on this will be key to eg ensuring that nothing sticks on AP/PV …”

Presumably that’s Alice Perkins and Paula Vennells?

Patrick Bourke: That’s my understanding, yes.

Mr Stevens: “… when blame is being apportioned.”

Was this common practice within Post Office, to rewrite history?

Patrick Bourke: Not in my experience. Absolutely not, no. I mean, you know, youd have to ask Tom Wechsler why he used that turn of phrase. It certainly wasn’t mine.

Mr Stevens: Well, if you look above, you say:

“Thank you. Will call later on.”

You didn’t object to the turn of phrase at the time, did you?

Patrick Bourke: Well, no, but if I objected to every turn of phrase that I thought was slightly off, you know – no, I didn’t but I just got on with it.

Mr Stevens: Do you recollect how this matter was resolved or any call you had with Tom Wechsler?

Patrick Bourke: No, I don’t.

Mr Stevens: Right, let’s move on back to the Mediation Scheme. Can we look at POL00006575, please.

So we have a minute from the Sparrow Subcommittee meeting on 12 January 2015. I think the Inquiry has seen a different version of this with an incorrect date on at one point but this is 12 January 2015. We see at the bottom you are in attendance. Looking at summarising the points to consider, it said the Committee received a paper on the position of the scheme and discussed steps to be taken:

“(c) [Mark Davies] explained the recent Westminster Hall debate …”

Chris Aujard reported changes in business processes regarding prosecutions. There was then the judicial review advice provided by Tom Weisselberg QC and a discussion over whether it was inconsistent with the Beachcroft advice; Chris Aujard was saying it wasn’t. Then at (f) it says:

“The committee discussed Second Sight and their ‘Part Two’ Report due to be finalised in April. The committee agreed that the Business was unlikely to be able to stop this report from being produced but should press Second Sight to complete the individual case reviews by the end of March, ie giving the cases priority.”

So at this meeting was the Sparrow Subcommittee exploring ways to stop Second Sight producing it’s updated Part Two Report?

Patrick Bourke: I don’t think so, in the sense that I think that (f) records the fact that, insofar as they once had, that ship had sailed and they were reconciled to the fact that it was going to emerge. I think there was a concern, because the Part Two Report had been very long in gestation, that, actually, the delays to the scheme occasioned by the focus on the Part Two Report was preventing them from addressing themselves to the cases in the scheme, which we felt deserved a greater deal of priority in their attentions.

But, you know, they were a small outfit, I think three people doing the work, and, you know, necessarily just the sort of – just the capacity point prevented them from doing multiple things simultaneously with any sort of speed, and we really wanted them to complete their work on individual cases, so it might achieve mediations where they were possible within a reasonable time frame.

Mr Stevens: You said, then, that the ship had sailed. So when was the ship in the dock? When did the committee want to prevent the Part Two Report from being finalised?

Patrick Bourke: Well, I honestly don’t know but it does appear to me, on a simple reading of this, that, you know, that possibility had been discussed. I think, and I’ve seen, in earlier documents dating from before my time at the Post Office, that reservations about Second Sight’s performance had been articulated as far as back as 2013, and I think they were only retained either at the end of 2012 or early 2013. So, very soon after they joined, people were already beginning to wonder whether they’d made the right selection.

Mr Stevens: We can see from (g):

“The Committee asked the Business to produce an options paper to analyse the most effective ways to bring the Scheme to a sensible conclusion …”

Let’s go to that options paper. And if we could look at POL00102065, please. I think earlier you were referring to a briefing where Paula Vennells challenged you on a reference to impartiality. I think that may be this briefing, we shall see in a moment. It says the “Issue”:

“A discussion about the relative merits of number of options for breaking through the impasse.”

“Recommendation” was:

“That participants to the meeting consider and discuss this paper before coming to a view on the best course of action to take …”

We can look at the options at the bottom, there’s four. You say:

“Seek to maintain status quo – in circumstances where JFSA do not participate in any meaningful way, Second Sight’s impartiality is a fiction and all those involved consider that the scheme is not fit for purpose; this option appears to have little to recommend it.”

Now, you referred earlier to Paula Vennells challenging you on a matter, is that this: Second Sight’s impartiality is a fiction?

Patrick Bourke: Yes, I believe so, yeah.

Mr Stevens: I don’t think we need to go there, sir, but for your reference the email is POL00117056.

Over the page, other options are:

“Mediate all cases or all cases apart from criminal cases.”

So that’s quite a shift from the position – well, not a shift because it’s an option, I suppose, but that’s opening up an option which had previously been rejected in November, the year before?

Patrick Bourke: Not quite. One of those is a departure, “Mediate all cases” would have been a complete departure, but “Mediate all cases apart from criminal cases” would have been a refinement on the proposal made by James Arbuthnot and colleagues on 17 November, and that refinement was critically important and distinguished it from a proposal made by James Arbuthnot back then.

Mr Stevens: So I’m going to what was rejected by Post Office because when we looked at both of the briefing notes given by you, there were two reasons for rejecting that proposal: one was rejecting criminal cases and one was it would involve mediating cases on which Post Office thought there wasn’t merit in a mediation.

Patrick Bourke: You’re quite right to pick me up on that and I apologise. I think we saw the mediation of all cases as being, you know, responsive to the desire of the JFSA for the opinion of Second Sight to be determinative of the question of what or not we would mediate, and it seemed to ask that, in circumstances where we needed to find a way through, that was a concession worth making, even if we didn’t necessarily think that all of those cases were meritorious.

Mr Stevens: That then says:

“… bring an end to the Working Group …”

3 is “Payout or pay-to-litigate”, which is essentially to offer a sum of money, and 4:

“End the scheme, mediate cases with merit, defend remaining claims as business as usual – bring an end to the Working Group while inviting Second Sight to enter into a new contract (ending all others) to complete their review of all cases (anticipated in May 2015) and specifically precluding the production of a Part II Report.”

So the ship hadn’t sailed, had it? You and the committee were still considering trying to stop Second Sight producing the Part Two Report?

Patrick Bourke: That – it appears that was still a consideration. In the event, the combination of options 2 and 4 was the decision arrived at, which did not prevent the production of the Part Two Report but did involve us rescoping Second Sight’s engagement so they could focus after the production of the Part Two Report exclusively on providing what we assured applicants to the scheme would get as a minimum, which was a reinvestigation of their case and an independent case review report from Second Sight, which they could then use to take whatever action they felt was appropriate, including taking us to court if necessary.

Mr Stevens: I just want to look at two of those options in a touch more detail. If we turn to page 5, please. It is the “Mediate All” option. It says:

“All aspects of current scheme maintained, including Working Group …”

That appears to be an inconsistency with the earlier bit of the document but:

“… including the Working Group to oversee scheduling and case throughput, but Post Office accepts the recommendation of Second Sight to mediate as final, and mediate all cases.”

Then it goes on to refer to the variant of not accepting criminal cases. So, at this stage, 26 January 2015, the option you’re putting forward for mediating all or mediating non-criminal cases is to keep Second Sight on board; is that right?

Patrick Bourke: That’s correct, yeah. Sorry, actually could you just repeat that?

Mr Stevens: Yes. So your proposed option for mediating all or mediating non-criminal cases includes keeping Second Sight involved in the scheme?

Patrick Bourke: Yes, it does.

Mr Stevens: If we turn to page 9, please. This is the “End Scheme, Mediate Cases With Merit”. We see again:

“Post Office closes the scheme but invites Second Sight to enter into a new arrangement to complete their independent review …

“New contract could specifically preclude the production of a Part II Report.”

So this is sort of a distinct option from the “Mediate All”: it’s where you mediate the cases with merit and, at the same time, make efforts to try to stop a Part Two Report from being produced; is that a fair summary?

Patrick Bourke: It’s one of the options that are in the paper, yes.

Mr Stevens: Thank you.

Sir, looking at the time, I think it’s probably time for our second morning break.

Sir Wyn Williams: Yes, certainly. So 12.25? No, sorry, 12.20.

Mr Stevens: Yes, thank you, sir.

Sir Wyn Williams: Thanks.

(12.10 pm)

(A short break)

(12.20 pm)

Mr Stevens: Sir, can you still see and hear me?

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

Mr Stevens: Mr Bourke, can you see and hear me?

Patrick Bourke: (Unclear)

Mr Stevens: Sorry, Mr Bourke, can you repeat that?

Patrick Bourke: Sorry, yes I can.

Mr Stevens: Sorry, just to make sure we can hear you.

Please can we go to POL00130853. This a set of slides, we see it says, “Confidential and legally privileged”. We don’t need to show it but your witness statement paragraph 48 says you assisted in preparing or editing some of these slides for a meeting between Mark Davies, Paula Vennells and Alice Perkins. Because it says “legally privileged”, would you have received any legal advice when drafting these slides?

Patrick Bourke: I imagine so, yes.

Mr Stevens: Could we look at page 4, please. We can see at 4 February, the advice there is:

“We are therefore disbanding the WG [Working Group].

“But we agree to mediate all non-criminal cases.

“We release Second Sight from their work but offer that if any case (including criminal) wants to use them they can apply to us for financial support.”

Do you recall how that decision was taken or any discussions that led to that being the proposed cause of action?

Patrick Bourke: So I think this would have come after the options paper had been considered and, from memory, this was a briefing taking place between Paula and Alice in advance of a full Board meeting. The first two highlighted bullet points should probably be in reverse, in that the ambition was not to disband the Working Group but rather, by agreeing to mediate all non-criminal cases, we were effectively making the work of the Working Group redundant, and that was just the way it was, simply because a decision to mediate had already been taken and the purpose of the Working Group was to recommend whether or not that should be the case.

In circumstances where we decided to mediate all the cases apart from non-criminal ones, the purpose of the Working Group – there simply wasn’t any need for a Working Group in those circumstances.

Mr Stevens: Was there any link between this decision being taken and the appearance of Paula Vennells and Angela van den Bogerd at the BIS Select Committee?

Patrick Bourke: I don’t believe so. I think this was just a continuation of a discussion that had taken place – that had been taking place since late the previous year.

Mr Stevens: Can we look, please, at POL00021728. At the bottom we see an email from you to Andrew Parsons, saying, “Second Sight – contractual issues”. It refers to speaking:

“… grateful if [you] could produce a short bit of advice on the manner of implementation and consequences of a future decision to terminate Second Sight’s engagement.

“The advice needs to cover (but should not be limited to …) the nature and extent of [Post Office Limited’s] ability to control access to, and uses of, all and any information it has provided to [Second Sight]; the duration and effective notices of that control in particular with regard to the Part II report they are preparing, and the legal and practical effects of the 30-day notice period which the letter of engagement provides for.”

Was this seeking advice on how Post Office Limited may be able to restrain Second Sight from producing a further Part Two Report?

Patrick Bourke: No, it wasn’t. I think we were concerned that, in the circumstances where a decision were taken to terminate this phase of Second Sight’s engagement – and bear in mind they were retained to do something else thereafter – we didn’t want uncontrolled access to quite a lot of confidential information that had been shared with them in the context of the scheme. In particular, we had shared with them the details of applicants’ circumstances, some of which, you know, were, frankly, deeply personal in nature and should not have been reaching a wider audience. As I think we made clear throughout this, the confidentiality of that information was paramount to us.

Mr Stevens: The email referred to speaking with Andrew Parsons. Can you remember if you spoke to him before the 4 February slides that we looked at just a moment ago?

Patrick Bourke: I’m sure I would have spoken to him. You mean, in terms of the preparation of those slides or …?

Mr Stevens: Yes. I asked in those slides did you receive legal advice on it, and I think you said –

Patrick Bourke: Yes, I’m sure I would have done or, certainly, Rod Williams – you know, Bond Dickinson and Rod Williams were working very much side by side in this process.

Mr Stevens: Can we look at the Bond Dickinson advice that came in response, the note of advice. It’s POL00006364. The “Executive Summary” first points out that:

“[Second Sight’s] engagement can be terminated … without restriction on 30 days’ … notice.”

It says:

“On balance, we consider that the Post Office can direct [Second Sight] to do no more work during this notice period. Even if we are wrong, the consequence will only be a damages claim against [Post Office Limited] by [Second Sight] for 30 days lost pay.

“During the notice period, [Second Sight] are entitled to act on the instructions of the Working Group. We therefore recommend that Post Office simultaneously disbands the Working Group on termination of [Second Sight] so to prevent the Working Group giving counter instructions to [Second Sight] during the notice period.”

It goes on to say:

“Post Office could therefore demand the return of Confidential Information at the same time as giving termination notice. If complied with, this would have the practical effect of stopping any further work by [Second Sight]. In practice, we would expect [Second Sight] to resist handing over information.”

It goes on to talk about publication.

Would you accept this advice is effectively giving a roadmap for how to limit what work Second Sight can do?

Patrick Bourke: I don’t think that’s the primary purpose but it certainly goes into that sort of territory, yes.

Mr Stevens: You say it’s not the primary purpose. We don’t need to have it on the screen but the points you said the advice should cover was:

“… the nature and extent of POL’s ability to control access to and uses of all and any information it has provided to Second Sight, the duration and effectiveness of that control, in particular with regard to the Part Two report they are preparing, and the legal and practical effects of the 30-day notice period which the letter of engagement provides for.”

You’d had a discussion with Andrew Parsons, presumably you discussed what advice you wanted from the note?

Patrick Bourke: Yes. But I think, if you’re – the concern we had – the overriding concern we had in seeking that advice was the use to which Second Sight might put information which they had been given in confidence and that was the – you know, that was really the primary purpose of seeking that advice.

Mr Stevens: Let’s go back to your options paper, please. It’s POL0010265, and page 5, please. Now, this is the more detailed version of the note on the option to “Mediate All”. I took you previously at page 2 to a summary of it, which referred to bringing an end to the Working Group. This one says:

“All aspects of the current scheme maintained, including Working Group to oversee scheduling and case throughput, but Post Office accepts the recommendation of Second Sight …”

Now, Post Office had adopted the “Mediate All – Save for Criminal Cases”, hadn’t it, by the time it was seeking advice from Andrew Parsons?

Patrick Bourke: Yes, I think that’s right, yes.

Mr Stevens: Was the reason that the decision was made to close the Working Group in order to stop Second Sight receiving instructions from them to produce further work?

Patrick Bourke: That was not the predominant – but I don’t – to the best of my recollection, that was not a consideration that was certainly in my mind.

Mr Stevens: You’ve started that answer “It was not the predominant” –

Patrick Bourke: Well, I did and I corrected myself.

Mr Stevens: So your evidence is you can’t recollect if it was a purpose or not?

Patrick Bourke: No, my evidence is that I don’t think it was a consideration that was in my mind.

Mr Stevens: Can you recollect if it was a consideration or it was discussed by other people within Post Office?

Patrick Bourke: I can’t. Honestly, no, I can’t. What I can tell you is that we were aware, or at least I was aware, that having taken the decision to mediate all cases, the role of the Working Group was superfluous and, you know, that was – given that the Working Group was not functioning, in any event, because of JFSA’s refusal to discuss any cases that we didn’t agree automatically to mediate, that was an acceptable outcome.

Mr Stevens: Can we look, please, at POL00022512? If we go to Andrew Parsons’ email at the bottom, you see it’s 12 March 2015, and he effectively says:

“… it must have been [Second Sight] that told James Arbuthnot about their termination …”

It goes on to say:

“… we should send a follow-up letter to [Second Sight] saying that we note that they have breached these obligations despite our warning”, referring to their obligations to confidentiality.

Your response is to agree, and say:

“Having got to the point where (after a long time) we are sort of in charge, we should make sure they know it.”

So you were effectively agreeing to threaten litigation against Second Sight in respect of their confidentiality obligations, weren’t you?

Patrick Bourke: No. What I was doing was saying that we should send them a letter saying that their breach of the obligations had not gone unnoticed. I don’t think anybody ever considered that we would actually take legal proceedings against them but I think it was important – my email reflects that I felt that it was important that they understood that we were not blind to what we felt was taking place.

Mr Stevens: Well, it says, looking at Andrew Parsons’ email again, the last paragraph:

“The letter need not be aggressive but by pulling them up on each little in infringement we make sure [Second Sight] do not see these are idle threats. We also avoid any suggestion that we have waived these obligations through doing nothing; this may be important down the line if there is a more serious beach that we do not want to enforce.”

The idea of enforcing the confidentiality agreements by way of litigation, if necessary, was very much on your mind, wasn’t it?

Patrick Bourke: In the event of a more serious breach, is what Andrew Parsons says, and, you know, in circumstances where Second Sight had decided to share with a wider audience details of the individual cases which we were dealing with, and which we had guaranteed absolute confidentiality over to the applicants of the scheme, that is potentially a breach that would warrant some sort of enforcement action.

Mr Stevens: So is your evidence that this was concerned with personal data of the applicants; that’s what your concern was?

Patrick Bourke: Yes, I mean, that really was a major consideration and, you know, actually, a major hindrance to our being able to make our case. Hoisted, if you like, by our petard on that front because, whilst we were very serious about honouring our obligations of confidentiality, it appeared that our – those – some of those applying to the scheme did not feel similarly bound by them and Second Sight equally did not feel similarly bound by them. So, yes, I think our overriding concern was precisely that.

Mr Stevens: Well, let’s look at POL00021837, please. If you can go down, please, to the bottom email. Thank you, perfect, thank you.

This is 8 June 2015 from you to Second Sight and it refers to the Panorama documentary by BBC that they were considering to produce, and you say:

“I know that you are already well aware of your terms of engagement but I nonetheless take this opportunity to remind you of the restrictions which apply to all contact with the media under clause 8 of those terms in particular …”

Now, that’s not referring to personal data and protecting personal data of applicants, is it?

Patrick Bourke: Why not?

Mr Stevens: Well, it’s for me to ask the questions.

Patrick Bourke: All right.

Mr Stevens: If you want to explain why that doesn’t refer to the personal data of the applicants, please say.

Patrick Bourke: Sorry, forgive me. I didn’t mean to ask a question of you. I was simply reacting to the fact that, in my mind, that expression is more than capable of encompassing the personal data of the cases in the scheme?

Mr Stevens: The reality is, Mr Bourke, you go on to say:

“I should stress that any breach of this would be strictly enforced by the Post Office.”

You were seeking to stop Second Sight from discussing matters with the BBC, weren’t you?

Patrick Bourke: Well, I was seeking to ensure that they adhere to the terms of the engagement which they’d entered into with Post Office Limited. I don’t think that’s necessarily the wrong thing to do or, you know, I think this happens daily in any number of companies, that you engage a set of professional advisers but you don’t expect them to go and give interviews to Panorama using confidential information you shared with them under the terms of that contract. So I don’t think there’s anything particularly remarkable about this, I confess.

Mr Stevens: Is it the case that what you were doing here was you had a concern that Second Sight were going to give opinions that would give support to the allegations made by the subpostmasters?

Patrick Bourke: I think we were concerned that they might both share details of the cases in the scheme and, also, on the basis of what our experience had been at the advice they had provided to us, advance certain propositions, for which there was no evidence, that would occasion us a great deal of difficulty, simply because they’d been put in the public arena.

Mr Stevens: I want to turn now, please, to the Part Two Report. Please can we look at POL00151715. We see the subject is “[Post Office Limited] Part II response – revised”, so this was part of work to create Post Office’s response to the Part Two Report produced by Second Sight, wasn’t it?

Patrick Bourke: I believe so, yes.

Mr Stevens: If we look at the bottom of the page, please, it’s an email from you to Belinda Crowe and others, and you refer to a Word document with some wording, which you say is tweaked wording attached. If we go up to Rodric Williams’ next email, it says:

“Good distinction, but I think it should reflect the actual offence”, and we’re talking about here false accounting:

“[Would] you be happy with this?”

It says:

“It is important to understand that subpostmasters are not prosecuted by Post Office for incurring losses in branch. Prosecutions for false accounting occur where a person dishonestly falsifies branch accounts with a view to gain for himself or another, or with intent to cause loss to another.”

Your response is above:

“I would personally end the sentence after ‘accounts’.”

So what you’re effectively saying is remove the words “with a view to gain for himself or another or with intent to cause loss to another”, yes?

Patrick Bourke: Yes.

Mr Stevens: The reason you give is that you:

“… would not want to encourage a subjective debate about whether or not applicants intended to gain, or cause us loss. I can just see someone saying, ‘I was in such a muddle, I didn’t know what else to do, but I didn’t mean to …’”

Were you aware at the time that the words “with a view to gain for himself or another or with view to cause loss to another” was wording lifted from Section 17 of the Theft Act 1968 concerning false accounting?

Patrick Bourke: I don’t believe so.

Mr Stevens: The fact that Rodric Williams said, “but I think this should reflect the actual offence”, did that not tip you on to it?

Patrick Bourke: Well, I don’t know where he’d drawn that from but, yes, I accept that it was a sort of a statement that had been drawn from some source. I didn’t know whether it was the Theft Act of ‘67 or anywhere else but, yes.

Mr Stevens: Is what you’re saying here that you wanted to avoid applicants arguing that they didn’t have a view to make a gain for themselves or another or that they didn’t have any intention to cause loss?

Patrick Bourke: So I think I was advancing a view on the basis that, in the cases we had in the scheme, in the cases we’ve seen, there were lots and lots of cases that involved false accounting, not just on one occasion but on multiple occasions stretching, in some cases, to multiple years, and I think, at that point, it would have been difficult to make the argument that, you know, it was the product of confusion or being in a muddle.

Now, I’ve clearly stated the law wrong and, you know, for that I’m happy to apologise. It was a suggestion. I’ve asked whether it made sense and I don’t know whether it was taken up.

Mr Stevens: Mr Bourke, what you’re saying here is “Let’s not encourage anyone to grapple with the issue of dishonesty”, really, isn’t it?

Patrick Bourke: Look, I didn’t see it like that at the time, no.

Mr Stevens: How did you see it?

Patrick Bourke: Well, as I’ve tried to explain, many of the cases we were looking at involved periods of false accounting stretching, in some cases, to years and I think it’s difficult, in those circumstances, to attribute that to being muddled or, you know, doing it by mistake. So I think – in those circumstances, I think the case is more arguable about whether or not that constitutes intent to cause loss to another. But it’s clearly wrong, so I didn’t know if it was right, hence my question “Does that make sense?” and, as I say, it was a suggestion rather than, you know, me sort of saying, “This is what we’re going to do”.

Mr Stevens: Can we look, please, at POL00129447. This is on 9 March 2015 from Andrew Parsons and you’re copied. It says:

“On the remote access point mentioned below, Simon is referring to this extract in the Scheme Report …”

It says:

“The Deloitte report, cited by Simon below, describes the balancing transaction process.”

Now, when you received this, presumably you would have looked down to the email below for context and to understand what Mr Parsons was talking about?

Patrick Bourke: I’m not sure. I mean, the email was not addressed to me, as you can see. So I may have done, I may not have done. I don’t know.

Mr Stevens: Remote access, at this point, was quite an important issue, wasn’t it?

Patrick Bourke: Yes.

Mr Stevens: So, with that in mind, do you think it’s likely you would have looked down to see the substantive email to which Mr Parsons is referring?

Patrick Bourke: It’s possible but I can’t tell you for sure.

Mr Stevens: If you could turn to page 2, please, to look at the email. It’s from Martin Smith and it says:

“May I also take this opportunity to mention a point which Simon Clarke has raised. He has noted that the end of term report contains the following proposition.”

It says:

“There is no functionality in Horizon for the Post Office or Fujitsu … to edit, manipulate or remove transaction data once it has been recorded in a branch’s accounts. The Post Office can only post additional, correcting transactions to a branch’s accounts but only in ways that are visible to postmasters, eg transaction corrections and transaction acknowledgements. It is also possible for Fujitsu to view branch data in order to provide support and conduct maintenance but this does not allow access to any functionality that could be used to edit recorded transaction data.”

He goes on to say:

“He has also commented that the Deloitte report includes a comment to the effect that they have observed (in their desktop audit) ‘a method for posting balancing transactions … which allows for the posting of additional transactions centrally without the requirement for these transactions to be accepted by SPMRs …’”

It goes on to say:

“Accordingly, we are concerned that should the Deloitte report subsequently be disclosed people may be able to compare both documents and argue that they are inconsistent.”

Were you aware of the Deloitte report at this time, in 2015?

Patrick Bourke: No, I wasn’t, not as the Deloitte report, and I think this refers to Project Zebra, if I’m not mistaken.

Mr Stevens: Yes.

Patrick Bourke: I was aware of balancing transactions. I didn’t know that the balancing transactions knowledge came from something called Project Zebra and the desktop exercise performed by Deloitte prior to my arrival, and I wasn’t aware of the fake basket hypothesis, as well.

Mr Stevens: So if you say, “No I wasn’t”, is your evidence that you didn’t read this email from Martin Smith?

Patrick Bourke: I don’t think I would have read it, no. I mean, I think this email, if you just scroll up to the people it is between, is, you know, an email between Martin Smith and Rodric Williams and, if you go up again, it’s a conversation between Rodric and – and then if you look, the email to which I am copied in, and which I would have paid the most attention to, he goes on to say, “If we wanted to make the extract complete we would need to at something like”, blah, blah, blah and then he says about balancing transactions, about which I knew.

I don’t know whether he then goes on to say anything about the fake basket hypothesis. In fact, he doesn’t so –

Mr Stevens: Well, Mr Bourke, it says there, above where it’s highlighted “the Deloitte report cited by Simon below”; presumably you would have read that?

Patrick Bourke: No, I don’t think I would have done.

Mr Stevens: So your evidence is, I think, that this email that says, “Rodric and everyone else by copy”, which you’re copied in to, you’re saying you didn’t read it?

Patrick Bourke: No, I’m saying I read the bit that was – I read the bit that was, you know – (no audio)

Mr Stevens: If you read it, you would have seen it says, “The Deloitte report cited by Simon below”?

Patrick Bourke: I agree, I would have read those words. That doesn’t mean I would have read the documents cited below. I took what I needed, for my purposes, from this email that was addressed by Andrew Parsons to other people and I was copied in to it.

Mr Stevens: Is your evidence at this stage, having read this email, that you were or were not aware of a report by Deloitte that covered balancing transactions?

Patrick Bourke: I was aware of the balancing transactions element but not the fake basket element, and I agree with you, had I read all the way through to the end and looked at Martin Smith’s correspondence with –

Mr Stevens: Sorry, Mr Bourke, that’s a different question. My question is: at this point in time, 9 March 2015, I’m trying to clarify if your evidence is that you knew that there was a Deloitte report that covered balancing transactions?

Patrick Bourke: I’m not sure if I knew there was a Deloitte report until this email but I knew about the balancing transaction process.

Mr Stevens: Right. So you received this email and you know there’s a Deloitte report?

Patrick Bourke: No, I know there’s a balancing transaction process. I didn’t know where it had emanated from.

Mr Stevens: I’ll ask that again: 9 March 2015, are you accepting that you knew there was a Deloitte report that described balancing transactions?

Patrick Bourke: Having read this email, yes.

Mr Stevens: Sir, I wonder if that might be an appropriate place to stop for lunch. I would ask if we could start again five minutes early, at 1.55.

Sir Wyn Williams: Yes, but let me just ask Mr Bourke this question, just so that I’m entirely clear, that’s all I’m doing it for. You acknowledged this morning that you were aware of what I would call the James Davidson email, the Fujitsu email.

Patrick Bourke: (No audio)

Sir Wyn Williams: – and you obviously would have been by this stage, yeah?

Patrick Bourke: Sir, I was aware – (no audio)

Sir Wyn Williams: The balancing transaction that Deloitte refers to, is that the same as the revelation in the Davidson email?

Patrick Bourke: I believe it is, yes.

Sir Wyn Williams: Yes, well, that’s what I thought. Does that throw any light upon how you would have viewed these emails?

Patrick Bourke: (No audio)

Sir Wyn Williams: In other words, were you being told something at the back of your mind you already knew or was this new information?

Patrick Bourke: That was the point I was trying to make, and obviously unsuccessfully, that I was aware of the facility of balancing transactions but I was not aware of it as having been recorded in any Deloitte report.

Sir Wyn Williams: Right. Okay, I understand.

Right. Do you want an extra three minutes, Mr Stevens, in view of that intervention?

Mr Stevens: No, sir. If we could come back at 1.55, I’d be grateful.

Sir Wyn Williams: Fine. Thank you.

Mr Stevens: Thank you.

(12.55 pm)

(The Short Adjournment)

(1.55 pm)

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

Sir Wyn Williams: I can indeed.

Mr Stevens: Mr Bourke, can you see and hear me?

Patrick Bourke: I can, thank you.

Mr Stevens: I can hear you.

Mr Bourke, before lunch, I just want to, I think, clarify where we got to, I think your evidence was that, as at the date of the email we were just discussing, 9 March 2015, from Andrew Parsons, at that point, you were aware of the existence of this Deloitte report; is that right?

Patrick Bourke: I don’t believe so. I was aware of the existence of a balancing transaction but not of the Deloitte report.

Mr Stevens: Right. So let me just bring that document up again, so that we’re all singing from the same hymn sheet. I’ll just get the reference. It’s POL00129447.

So, as we see, it’s from Andrew Parsons, you’re copied in, and it says:

“Rodric (and everyone else by copy).”

In the third paragraph down it says:

“The Deloitte Report, cited by Simon below, describes balancing transactions …”

I thought, having reviewed the transcript, that your evidence was that, at this date, you accepted you were aware of the existence of the Deloitte report?

Patrick Bourke: No, and I apologise if there was any – if I didn’t express myself clearly. I think I was aware of balancing transactions being possible quite early on but I didn’t know that it had been covered by a Deloitte report. It was something that was relayed to me, I think, in correspondence I’d been shown between James Davidson and, I think, Rodric Williams some time back in 2014.

Mr Stevens: So on reading this email and reading, as I say, “The Deloitte report cited by Simon below” and reading that, your evidence is you were not aware of the existence of the Deloitte report?

Patrick Bourke: I don’t believe so, no.

Mr Stevens: Is your evidence that you didn’t read this email?

Patrick Bourke: No, my evidence is that I read this top sheet but I didn’t go on to read the exchange which accompanies it.

Mr Stevens: So your evidence is that you read the paragraph that says, “The Deloitte report cited by Simon below describes the balancing transaction process”? You read that sentence?

Patrick Bourke: I did, yes.

Mr Stevens: So, presumably at that point, then, you must have been aware of the existence of this Deloitte report?

Patrick Bourke: Sorry, I think we’re just talking at cross purposes. I obviously, having read this email, was aware of a Deloitte report. Now, I was previously aware of balancing transactions. This was not news to me. The Deloitte report, however, was and I think the Deloitte report being referred to there is the Project Zebra report, which I only became familiar with in the context of the Swift Review.

Mr Stevens: Well, the Swift Review is later than this.

Patrick Bourke: I accept that, yeah.

Mr Stevens: So I’ll ask one last time: on reading this email, do you accept that you were informed of the existence of the Deloitte report that described balancing transactions?

Patrick Bourke: I accept that I was made aware, through this email, of a Deloitte report which describes balancing transactions.

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

We’ve covered that you’ve said you’re already aware of balancing transactions. Reading the transcript before, your evidence was that you were not aware of other issues raised in relation to data integrity, such as in relation to baskets, in the Deloitte report; is that right?

Patrick Bourke: That is right, yes.

Mr Stevens: Could we look, please, at POL00041059. This is a draft of the “Complaint Review and Mediation Scheme, Reply of Post Office Limited to Second Sight’s Briefing Report – Part Two”. Were you involved in contributing to the drafting of this document?

Patrick Bourke: Yes, I was.

Mr Stevens: Please could we look at page 57, paragraphs 14.5 and 14.6. It says:

“It has always been possible for Post Office to correct errors in and/or update a branch’s accounts. This most commonly done by way of a transaction correction however it could also be by way of a balancing transaction or transaction acknowledgement.”

It goes on to talk about balancing transactions.

At 14.6:

“All of these processes for correcting/updating a branch’s accounts have similar features. All of them involve inputting a new transaction into the branch’s records (not editing or removing any previous transactions) and all are shown transparently in the branch transaction records available to subpostmasters (as well as in the master ARQ data).”

Do you know why this didn’t refer to the distinction with balancing transactions that a subpostmaster did not have to accept a balancing transaction, whereas they did with transaction acknowledgements and transaction corrections?

Patrick Bourke: No, I don’t. I was involved in assembling this document but not for the substantive detailed content where it applies to technical issues. As we’ve previously discussed and as I think it says in paragraph 14.5, the use of a balancing transaction was only used once at least in the context of Horizon Online, and I –

Mr Stevens: That’s a different issue, Mr Bourke. You say you were involved in drawing it together but, based on the knowledge you had, you would have known that that was incomplete, wouldn’t you?

Patrick Bourke: Sorry, in what respect?

Mr Stevens: In that it doesn’t refer to balancing transactions being capable of inserting a transaction without the subpostmaster accepting it.

Patrick Bourke: Without the postmaster accepting it, yeah, I agree, but it leaves an auditable mark.

Mr Stevens: So I ask again: why wasn’t it included in –

Patrick Bourke: I honestly don’t know. I didn’t write this section.

Mr Stevens: Can you recall if this wording of the draft made it into the final document?

Patrick Bourke: No, I can’t.

Mr Stevens: That can come down, thank you.

I want to move on and look at a matter to do with Panorama. Please can we bring up POL00140211. This is entitled “Panorama Meeting – Tuesday 9 June”, would that have been June 2015?

Patrick Bourke: Yes, it would have been.

Mr Stevens: This is on Bond Dickinson notepaper. We will see, if we go down, Matt Bardo is listed there. Was this a meeting with researchers from the BBC?

Patrick Bourke: This was an on-the-record background briefing that Mark Davies initiated with Matt Bardo, and I think there was one other individual present at the meeting, as well, from the BBC, yes.

Mr Stevens: Was this recorded and then transcribed?

Patrick Bourke: I assume so, yes.

Mr Stevens: Could we look, please, at page 18. If we could go to the very bottom, we see Matt Bardo says:

“… mindful of the time … if I just say remote access you will immediately know what I am going to ask about.”

Then if we go over the page, the end says:

“So what exactly is possible and what exactly isn’t possible as far as you’re concerned when it comes to accessing transactions on a branch terminal?”

Then if we go down, please, we can see Angela van den Bogerd gives an answer, and it says:

“I think the question is really can anybody access the branch data without an audit trail?”

Tim Robinson says: “Yes, without the subpostmaster’s knowledge.”

Angela van den Bogerd says: “Yes and the answer to that is no.”

Matt Bardo: “Sorry, when you say an audit trail, you mean an audit trail that is completely transparent to the subpostmaster?”

Angela van den Bogerd says: “Yes.”

Mr Stevens: Did you agree with that position at the time?

Patrick Bourke: Yes.

Mr Stevens: So was it not your understanding that a balancing transaction could be inserted into branch accounts without the subpostmaster’s knowledge?

Patrick Bourke: On the basis that an audit trail is available to the postmaster, then, I mean, I don’t want to get into semantics but the audit trail shows that that transaction was not – or, sorry, not that transaction but that insertion was not created by the postmaster, and it is therefore not something that I would say is outwith the knowledge of the postmaster.

Mr Stevens: So you’re saying it’s within the subpostmaster’s knowledge because the transaction could go in without their knowledge but they could, to the best of your belief, look at an audit trail and see that an external transaction has been inputted into their branch accounts?

Patrick Bourke: Yes, if they are doing their daily cash declarations and reconciling the accounts as something they were required to do under the terms of the contract, the transaction would identify itself as having been something done by somebody else and, therefore, it would have been transparent to the postmaster.

Mr Stevens: Do you think that that position, that we’ve discussed there, is adequately conveyed by Angela van den Bogerd, simply by saying that transactions cannot be inserted without the subpostmaster’s knowledge?

Patrick Bourke: Well, I mean, I think – I mean, look, you could go on to explain it more fully but I don’t think she was being disingenuous when she was saying that. It was a shorthand, that, as I say, if the postmaster is looking at his or her accounts, you know, as they’re required to do, this would be something that would highlight itself as being something that they didn’t recognise as being from them. So, to that extent, it would have been within the subpostmaster’s knowledge, not necessarily at the time the insertion was made but certainly very soon after it had been done.

Sir Wyn Williams: That’s really something I wanted to ask you – sorry to interrupt, Mr Stevens – but when you talk about an audit trail, do you mean by that that, if they looked at the audit available to them on a given day, then, if there had been an insertion, they could notice that, amongst all the various transactions, there was one that didn’t bear their hallmark, yes?

Patrick Bourke: Correct.

Sir Wyn Williams: If they didn’t look at it on that particular day, they wouldn’t know, would they, because they then wouldn’t have access to the relevant part of the audit trail?

Patrick Bourke: The – my understanding is that in Legacy Horizon, then subsequently in Horizon Online, they had 42 days, in the former case, of audit available to them in branch and, in the latter case, 60 days of audit. So if they were trying to balance their accounts, as they were required to do by their contract, it wouldn’t have taken long to identify it.

Sir Wyn Williams: Sorry, say that again? They had 42 days where the audit trail would remain in Legacy Horizon, and what about on Horizon Online?

Patrick Bourke: 60 days, it would have been extended for another 18.

Sir Wyn Williams: Okay, fine. Thank you.

Patrick Bourke: I think the reason for those time periods, sorry, just to build on that because it’s helpful, I think the timings, the 42 and 60 days, were designed to enable them to complete all their cash declarations both – weekly, daily and monthly, that they needed to, in a full cycle available audit data.

Sir Wyn Williams: Yes.

Mr Stevens: Just to clarify, because it’s something which the Inquiry may need to follow up, is it your evidence that the understanding you’ve just given about the data that was available to subpostmasters, on the audit, as you say, your understanding, did that come from Fujitsu?

Patrick Bourke: Yes. We were consistently told that any insertion that took – sorry, any injection of a transaction would always be auditable.

Mr Stevens: I’m asking a slightly different thing. I’m saying not auditable, as a broad matter, but available for the subpostmaster to see in branch within the 42 or 60 days?

Patrick Bourke: That’s my understanding, yes.

Mr Stevens: Your understanding came from Fujitsu; is that your evidence?

Patrick Bourke: Yes.

Mr Stevens: Please can we turn the page in the document to page 21. If we could go down to – a bit further, please. You start talking about remote access and the part I want to look on is Tim Robinson says:

“But not without knowledge of …”

You say: “But not without the knowledge and it has been used once. Once and once only in the entire time Horizon has been effective. It happened as part of the pilot. That is what a pilot is supposed to surface and it was done you know …”

At this point, did you know that balancing transactions or something equivalent to balancing transactions hadn’t been used in Legacy Horizon?

Patrick Bourke: No, I didn’t. I’m afraid, I probably didn’t draw the distinction between the two systems. My understanding was that balancing transactions had only been used once and, as it turns out, that would have been as part of the pilot for Horizon Online.

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

I want to move to look at the Swift Review, please. Can we bring up your witness statement, page 86, paragraph 181. You say:

“My recollection is that [Post Office Limited] remained concerned about unresolved disputes following the closure of the scheme, and wished to provide reassurance that it was doing all that it was reasonable to do to seek to resolve those disputes. Jane MacLeod or possibly me, felt that [Post Office Limited’s] incoming Chairman, Tim Parker, who was without any vested interests, could perform that role supported by external counsel, who was entirely independent from the team at [Post Office Limited].”

So my understanding of that is you say the provenance of what we now call the Swift Review was either an idea by you or Jane MacLeod?

Patrick Bourke: I think that’s right, although the actual instruction for it to begin was given by Baroness Neville-Rolfe, but I don’t know whether that was as a result of discussions we’d had with the department and it was adopted as their solution but my recollection is that I think the initial idea probably emanated from us.

Mr Stevens: Could we look, please, at POL00153064. This is an email from you to Jane MacLeod on 2 September 2015, so before the Swift Review, effectively, and you say:

“Following a recent further (and pretty major I gather) wobble on BNR …”

That’s Baroness Neville-Rolfe, isn’t it, BNR?

Patrick Bourke: Yes.

Mr Stevens: Was that a yes, sorry?

Patrick Bourke: Sorry. Yes, it was.

Mr Stevens: Now, in your witness statement at paragraph 130 you say that wobble or wobbles referred to episodes of discomfort and concern on the part of Baroness Neville-Rolfe; do you stand by that?

Patrick Bourke: Yes, I do.

Mr Stevens: In fact, was what you were meaning here that Baroness Neville-Rolfe had wobbled from the party line that no further investigation was necessary?

Patrick Bourke: No, no, it is unsurprising to my mind that, when faced with colleagues in the House suggesting there’s more – you know, that the Panorama programme revealed all sorts of things, that, you know, her confidence would have been shaken and it only – it is only a reference to the fact that, you know, when faced with something that is difficult, challenging, that ministers, you know, will feel like any normal human being, ups and downs in terms of the confidence they’ve got in the matters before them.

Mr Stevens: The second paragraph, you refer to an email from MPs Andrew Bridgen, Kevan Jones, and, it says:

“… it would appear, Oliver Letwin, requesting an early further meeting on the back of the ‘very serious findings’ of Panorama’s investigation.”

It goes on to say, in the last sentence, that:

“The email goes on to suggest that someone like Sir Terry Leahy (ex CEO of Tesco …) or Stuart (now Baron) Rose … would be ideal.”

Now, that was referring to those two people being good people to oversee an independent review, wasn’t it?

Patrick Bourke: Yes.

Mr Stevens: You say:

“Beyond bizarre, but there you go.”

Do you see that?

Patrick Bourke: Yeah, absolutely.

Mr Stevens: So is it not the case that you were against the idea of a further investigation into the matters which had been described as “Sparrow issues”?

Patrick Bourke: At that stage, I didn’t feel it was a sensible course of action. I think, at this stage, we had the CCRC already engaged in conducting its important work and it wasn’t immediately clear to us that the Panorama programme had, in fact, unveiled anything terribly new. The whistle-blower in question, despite our repeated efforts to understand what he was alleging, came to nothing, and I note that, in the Swift Review itself, I think Jonathan Swift comes to the conclusion that it wasn’t entirely clear what the person who it was, Richard Roll, was actually suggesting had happened or was possible.

Mr Stevens: Okay, so 2 September, then, you’re against the idea of the review. Before going back to the Swift Review, let’s just look at the next paragraph. You refer to internal discussions about key risks, and you say:

“Bluntly, while BIS officials do a sensible enough job of relaying information, we are less confident about their ability/willingness to provide her with proactive, robust advice and deliver difficult messages.”

Is this, in effect, a criticism of Shareholder Executive decisions for not putting a Post Office spin on information relevant to the Sparrow issues?

Patrick Bourke: No, it’s got nothing to do with spin. It’s a question of whether or not they were relaying the strength of our case effectively.

Mr Stevens: Could we please bring up POL00041135. So this is a letter dated 7 September 2015 to Baroness Neville-Rolfe from Jane MacLeod. We see it refers to a meeting on 6 August, a briefing about matters relating to the BBC Panorama documentary. If we could turn, please, to page 4, it says, “Way Forward”:

“At our meeting on 6 August 2015 you advised that you would ask the new Chairman, Tim Parker, to review the Post Office’s position.”

So is it not the case that this idea did come from Baroness Neville-Rolfe in early August 2015, rather than coming from you?

Patrick Bourke: Not necessarily, no., for the simple reason that we would have discussed these matters with Richard Callard and Laura Thompson and it may have been during the course of those conversations that the idea surfaced. As I say, I can’t be sure where the initial idea came from but I did say, a second or two ago, that certainly the decision to launch it was taken by Baroness Neville-Rolfe.

Mr Stevens: Yes, but, Mr Bourke, in your evidence you suggest that the idea came from either you or Jane MacLeod. We went to an email on 2 September 2015 when you were against the idea of some sort of review, and this tells us that Baroness Neville-Rolfe, on 6 August 2015, advised that she wanted Tim Parker to look at Post Office’s position. It’s pretty clear, isn’t it, that the idea for the Swift Review didn’t come from you?

Patrick Bourke: As I said, I’m not sure about that but I think we’re talking at cross purposes. I think the calls being made by Kevan Jones and others was for a different sort of review, ie a judicial review, a Government sponsored review, rather than something like this, which was one step below that but would hopefully – well, as it goes on to say in that very paragraph, you know, we would welcome the Government Department’s support in resisting the current calls for a public inquiry. So that’s what we were objecting to, not the review that Tim Parker eventually undertook.

Mr Stevens: Could we look, please, at the Swift Review itself. It’s POL00006355. Now, this is a detailed report. I’m not going to take you through all of it. Could we look, please, to page 51, thank you. If we could bring paragraph 145 into view, thank you.

So it says:

“It seems to us that the Deloitte documents in particular pose real issues for [Post Office Limited].”

The Deloitte documents, I think, referred to there are the Project Zebra documents from 2014; is that right?

Patrick Bourke: That’s my understanding, yes.

Mr Stevens: It says:

“First, both the existence of the balancing transaction capability and the wider ability of Fujitsu to ‘fake’ digital signatures are contrary to the public assurances provided by Fujitsu and [Post Office Limited] about functionality of the Horizon system. Fujitsu’s comment we quote above seems to us to be simply incorrect, and [Post Office Limited’s] Westminster Hall Response is incomplete.”

Now, pausing there, that was the response we were referring to earlier, wasn’t it, in January 2015?

Patrick Bourke: Yes, that’s right, yes.

Mr Stevens: So this is, effectively, it’s directly saying, in terms, that that response was incomplete, based on what was in the Deloitte report. Now, following receipt of this advice, did you inform either Shareholder Executive or UKGI about the fact that the Westminster Hall response was incomplete?

Patrick Bourke: I don’t think we did so in terms of, you know, an immediate call in to the department, no. But we shared the output of the Swift Review with Baroness Neville-Rolfe and Tim Parker.

Mr Stevens: Let’s be careful there. You said, “We shared the output of the Swift Review with Baroness Neville-Rolfe”, what do you mean by the “output”?

Patrick Bourke: Well, I haven’t got the letter in front of me but I think it detailed in – I think it went into some considerable detail about both the positive and adverse findings that Jonathan made – that Sir Jonathan made.

Mr Stevens: I see. So just to be – your evidence is that what Baroness Neville-Rolfe was told about the Swift Review is contained in the letter or correspondence from Tim Parker and there wasn’t further oral briefings on it?

Patrick Bourke: I honestly can’t remember but there was – I imagine conversations took place at official level because they would have been – sorry, UKGI would have been interested in – because it was UKGI by this stage – would have been interested in what was going on, but I honestly can’t remember the detail of those conversations. So it’s entirely possible that that was communicated to them but I can’t specifically recall that happening.

Mr Stevens: Could we look, please, at POL00103110. So if we can go down the page slightly, please, we see there Jane MacLeod to Tim Parker on 22 January 2016. So my understanding is this was shortly after a draft of the – or it’s an indication being given as to Jonathan Swift’s recommendations to Tim Parker but not a final report. A final report hadn’t been completed; is that right?

Patrick Bourke: Yes, I think Tim Parker received a draft report in the week of 11 January.

Mr Stevens: If we go again to the top of the page, we see that this email was sent to you there. So, if we can go, please, back down to Jane MacLeod’s email and over the page to “Briefing to the Minister”, it says:

“We also discussed with Jonathan whether there were any limitations from his perspective on the content of your briefing to the Minister. Jonathan confirmed that there were no limitation this is from his perspective, although he noted that if a physical or electronic copy were provided, this could result in the loss of legal privilege in connection with the document, recognising that, in the absence of privilege, the report could be disclosable under a [Freedom of Information] request.”

It says:

“Accordingly, our recommendation is that you provide a verbal briefing to the Minister that in response to the question”, and it goes on.

When he says “our recommendation” was “our” including the team, including you?

Patrick Bourke: No, I think she was referring to the – I think she could have easily have said “my recommendation” but I think what she was referring to there is the recommendation both of her and Jonathan Swift.

Mr Stevens: Did you discuss whether or not the Swift Review should have been shared with the Minister, as a document in itself, with Jane MacLeod or Tim Parker?

Patrick Bourke: Not personally, no. At least, I don’t think I did, no.

Mr Stevens: Please could we turn to POL00024911. So we have at the top a response from Jane MacLeod to you, it’s in response to an email that you sent earlier that day. If we could go down to that, please. You said:

“As promised, I spoke to Laura Thompson about any developments she might have to report on how best to communicate the shift in focus to the litigation and away from the review.”

Do you have any recollection of that conversation?

Patrick Bourke: A vague one but, yes, I remember the conversation having taken place.

Mr Stevens: What’s your recollection of the conversation?

Patrick Bourke: Well, I think there was a discussion because this, I think, came once proceedings had been issued and there was a question mark about whether or not the recommendations that Jonathan had made, eight in total, should be taken forward under the aegis of his review or whether, in the light of proceedings having been issued, they should instead be taken forward under the – you know, through the exercise to defend the litigation.

Mr Stevens: Did you tell Laura Thompson anything about the content of the recommendations in the Swift Review?

Patrick Bourke: I’m sure in the intervening period I would have told her about the sort of headline facts, yes.

Mr Stevens: What headline facts would you have told her?

Patrick Bourke: Well, there was some follow-up to be done on the IT front. We’d just been speaking about some of those. There was a question mark about whether or not the NBSC, the helpline, for want of a better expression, was providing sensible and accurate advice to those people calling it. There was a recommendation on the question of whether or not theft – sorry, a charge or theft was being properly levelled or was probably – properly being made in certain cases. So I think there were eight in total. I can’t remember each and every one of them individually but I would have given her or Richard Callard or both a heads-up on what remained to be done.

This was, you know, an exercise that we felt was important to ensure that we had done everything that we reasonably could to address the complaints that had been initially raised in the context of the Complaints and Mediation Scheme.

Mr Stevens: Would you have said anything about the Deloitte reports, the Project Zebra reports?

Patrick Bourke: I don’t think I would have said the words “Project Zebra” because I don’t think I ever knew about that codename for it. I think it’s unlikely. I think I would have – insofar as I talked to her about the specifics, it would have just been about the specifics rather than about, you know, particular names.

Mr Stevens: I want to look at one aspect of the recommendations which was taken forward, and that’s Project Bramble. Could we please look at POL00029990. This is an email from Andrew Parsons to you and others on 13 July 2016 and it says:

“… I wanted to give you a heads up on the ‘remote access’ issues that have been revealed through Deloitte’s preliminary report.”

Now this was, as you say, Project Bramble. One of the things Deloitte was looking at are matters to do with remote access on the recommendation of Jonathan Swift; is that broadly matter?

Patrick Bourke: No, that’s entirely accurate. Yeah.

Mr Stevens: What was your role in relation to Project Bramble?

Patrick Bourke: So I convened a meeting with colleagues from – one or two colleagues from the business and also three people from Deloitte – Andrew Whitton, Mark Westbrook and there was one other person, whose name escapes me – and, effectively, that was a meeting called with a view to initiating Project Bramble. We were very clear on the back of Jonathan Swift’s review that we want to – well, he had already indicated as soon as he got the draft that he wanted all recommendations accepted and followed through. So, even before the finalised report reached him on, I think, 8 February, we had already begun work to scope what would need to be done by Deloitte in order to satisfy his recommendations. So I attended – I convened a meeting to initiate that project.

Mr Stevens: It seems you’re still involved as an identified recipient where the summary of Andrew Parsons’ advice, when the first preliminary report is produced.

So at this stage, what’s your ongoing involvement?

Patrick Bourke: Well, I think it’s beginning to reduce, only because I think my role changed but, at this stage I – you know, I’m – obviously I have been involved in the scheme and I’ve been involved in some of the debates about remote access and one of the reasons I think Andrew Parsons is sharing this with me is because it extends very substantially, the understanding that certainly I had and, as I understand it, my colleagues had, of what was possible in terms of remote access by Fujitsu.

Mr Stevens: Well, in your own words, could you set out what your understanding was of that expansion?

Patrick Bourke: Well, we had – prior to this email, my understanding had always been that any data recorded on the whatever the repository was, BRDB, can never be deleted, amended, manipulated. All that could happen is a new transaction – a new entry being put in, the balancing transaction, and that would be auditable. This, as it says in line one of the background, says very clearly that they have the ability to delete and edit transactions. Now, that is – that was entirely new information.

Mr Stevens: Do you know how widely the Project Bramble report was shared? So, to the best of your knowledge, was it provided to the Post Office Board?

Patrick Bourke: To the best of my knowledge, I don’t, but I can imagine it would have been.

Mr Stevens: To the best of your knowledge, was the Project Bramble report provided to UKGI?

Patrick Bourke: I honestly don’t know but, since UKGI have a seat on the Board, that would have had the same effect.

Mr Stevens: Please could we look at POL00028070. This is a further draft report –

Apologies, we’re just waiting for a phone, thank you.

This is a further draft report, 3 October 2017. To what extent were you still engaged with Project Bramble at this point?

Patrick Bourke: I don’t know which one in the sequence this was. I think I’d listed, or you disclosed to me eight or – seven or eight versions of iterations of this report. My level of engagement reduced over that time very markedly because I was moving away from anything to do with this subject area but I was keeping, you know, in loose touch, just through discussions with Mark Underwood, who I think was the point person engaged with Deloitte colleagues in making sure they were getting what they needed. There is an email, I think, addressed to me from Mark Westbrook indicating that he was having some difficulty in getting what he needed out of Fujitsu and I think, simply because I was more senior person than Mark Underwood at the time, he was effectively asking me to give them a nudge to accommodate the work that they were doing. But, as I say, my involvement with bramble dwindled quite rapidly.

My last understanding of what it had found was that the – whilst the Horizon system was certainly not completely watertight, the steps one would need to take to overcome the various security controls would be really quite difficult to achieve and that – I think I say in my witness statement – I think it wasn’t entirely clear to me why somebody at Fujitsu would be – with the wherewithal and the right access rights, would set their mind to doing that.

Mr Stevens: If we look at the content of this and turn to page 7, please, paragraph 1.4.2.6. It refers to:

“A limited number of authorised Fujitsu personnel have sufficient privileges to theoretically add/delete/ change data in the BRDB (Privileged Users).”

It goes on to say, the bottom paragraph:

“Through our enquiries, we have identified that 25 current Privileged Users [sorry, that’s at the bottom of the page, please] have access to the KMS …”

That’s the key management system, is it?

Patrick Bourke: I don’t know.

Mr Stevens: “… such that they could theoretically cover up changes they make to the BRDB data. This is a failure by Fujitsu to implement its own segregation of duties policy. We are unable to determine how long this vulnerability has existed as records of historic users are not kept.”

Then if we go over the page, please. We have:

“Based on assertions from Fujitsu [paragraph 1.4.2.14], there is a key split in dates around the audit trail of privileged user usage in July 2015:

“Pre-July 2015 only superuser log on and log offs were logged. However these are expected to be of low volume, and would always (if valid accesses) be approved by a documented access request form.”

Then after 2015 it refers to various audit data that was created.

Now, looking back, what you were describing earlier of your knowledge and your understanding, is that effectively what’s set out here? Do you think you would have read this report at the time and understood this to be the position that Deloitte were taking?

Patrick Bourke: What’s the date of this document, please?

Mr Stevens: It’s 3 October 2017.

Patrick Bourke: I mean, I think it’s unlikely. I certainly – I mean, with the best will in the world, the documents are – make for quite difficult reading, make hard reading and I think, unless you’re quite well versed in these matters, they would be – you know, I would find it very difficult to draw sensible conclusions from it without some considerable guidance, which I didn’t have. So I think the answer to that is – the short answer is no, I don’t think so.

Mr Stevens: Well, let’s go further on in the document. Page 132, please, appendix 7. It says:

“Clarification questions

“The below clarification questions and associated answers attempt to provide clarity on queries arising from the content of this report.”

Presumably questions which have been put by Post Office. Do you remember anything about that?

Patrick Bourke: Not in the context of this exercise, no. I mean –

Mr Stevens: Apologies. I spoke over you.

Patrick Bourke: I was just going to say, by this time, this exercise was being done in the context of the Group Litigation. So, if you like, the internal client for these purposes was – were the people who were conducting the litigation rather than me.

Mr Stevens: Yes, but you did sit on the Postmaster Litigation Steering Group, didn’t you?

Patrick Bourke: Yes, I did, and –

Mr Stevens: Remote access was a key issue in the Group Litigation, wasn’t it?

Patrick Bourke: Of course it was, yes.

Mr Stevens: You were involved in establishing this project, correct?

Patrick Bourke: Yes, yes.

Mr Stevens: You say, I think, your involvement dwindled but, given your responsibilities on the steering group, do you not think you would have read these clarification questions and answers to understand what position or what advice Deloitte was providing?

Patrick Bourke: You know, the fact of being on the PLSG does not mean that I was the best person to, you know, understand or query or challenge the information of being – you know, also on the PLSG were people who were specifically employed by the company to deal with IT issues. So I’m afraid the answer is, no, I didn’t. You know, I followed it as a matter of curiosity but not with any great application or rigour.

Mr Stevens: How widely available or – let me rephrase that, sorry.

To what extent were these Deloitte reports discussed in the Postmaster Litigation Steering Group?

Patrick Bourke: I honestly don’t recall. I really don’t think they would have been gone through in any forensic detail, simply because they would have only really been intelligible to people with the necessary expertise and I think that would have made for a very difficult and, if I may say so, boring meeting for the majority of participants.

Mr Stevens: Can you recall passing on any of the Bramble reports to any other person outside of Post Office Limited?

Patrick Bourke: No, because I didn’t think I had – I didn’t have custody of the Bramble reports.

Mr Stevens: You say you didn’t have custody, is your evidence that you didn’t have access to the Bramble reports?

Patrick Bourke: I could have had access if I’d asked for it but I didn’t have routinely access to it. As I say in my witness statement, I’m amazed it went on for as long as it did and produced so many reports. I simply had no knowledge of that or, insofar as I did, it didn’t register.

Mr Stevens: I wanted to now just cover a few topics on the Group Litigation itself.

Sir Wyn Williams: Before you do, Mr Stevens, and I’m sorry to be a bit interruptive today so to speak.

Mr Stevens: Not at all.

Sir Wyn Williams: I just want to put these things in a chronological order, if I can. This draft report of 3 October 2017 appears to be describing a form of remote access which had hitherto not been known at the Post Office but which seems to have existed from 2015, all right? Now, I’m not sure if I’ve got that right but let’s assume that for the moment.

In Mr Justice Fraser’s judgments, he dealt with Legacy Horizon, which was from commencement to 2010, roughly; Horizon Online; and then third version, that which was extant when he was carrying on the proceedings. The question I want to ask you is, first, the third version, was that a version which was either in being and/or under construction, if that’s the right word, in or around 2015?

Patrick Bourke: If you’re addressing that question to me, sir, I’m afraid –

Sir Wyn Williams: You don’t know the answer, all right. Well, the next question – you may not know the answer to this either: was there any attempt to understand whether the what I’ll call “enhanced ability” to remotely access outside the branch was available under either Legacy Horizon or Horizon Online, as opposed to the version which succeeded Horizon Online?

Patrick Bourke: Again, I don’t know. What I do know of the judgments, of course – I mean, if I can characterise it, I think Mr Justice Fraser described the first version, Legacy Horizon, as being sort of full of holes –

Sir Wyn Williams: Yes.

Patrick Bourke: – and the second being rather better but only the third version as being robust comparable to other systems in use in other places.

Sir Wyn Williams: Exactly so, but I was trying to work out in my own mind whether what we had here, putting it bluntly, was a function of remote access, which was “enjoyed”, in inverted commas, with Horizon Online, but nobody ever reviewed it until much later, or whether the enhanced access, which is revealed in this draft report, came about either coincidentally or otherwise with the third version of Horizon. That’s what I’m trying to establish.

Patrick Bourke: Yeah, I’m afraid I can’t assist –

Sir Wyn Williams: You can’t help. That’s the top and bottom of it.

All right, Mr Stevens looks as if he may know the answer.

Mr Stevens: I can assist by taking you through the document. They are quite –

Sir Wyn Williams: Don’t waste the time with the witness.

Mr Stevens: Yes.

Sir Wyn Williams: We can do certain things by you just educating me, Mr Stevens.

Mr Stevens: Yes, I’ll do that. I will cover it another time. But we will leave it there with this witness. Thank you, sir.

Sir Wyn Williams: Yes.

Mr Stevens: I was moving to the Group Litigation.

Please could we bring up POL00025509. These are terms of reference and membership for the Postmaster Litigation Steering Group and, if we go to the bottom, please – thank you – we can see you are a representative of Corporate Services. What was Corporate Services’ role on the Postmaster Litigation Steering Group?

Patrick Bourke: Corporate Services was the name – was the temporary name given to the expanded Legal Team to include the Audit and Risk and Information Rights teams as well as the Security Team, as it evolved, as it reduced in size, and so it didn’t have any – save for the legal function, it didn’t have any subject matter expertise to bring to the party in the way that perhaps other participants did.

Mr Stevens: In practice, what would you say your role was on this committee?

Patrick Bourke: I think, really, in practice, I was on it, really, for two reasons: partly as a sort of deputy for Jane MacLeod, as a sort of eyes and ears; and, secondly, because I might be able to offer some insight on the basis that I understood some of the issues that had been raised in the context of the scheme, which, of course, is only a very small or subproportion of those who joined the Group Litigation.

Mr Stevens: Now, we earlier referred to the Swift Review recommendations and the crossover with the Group Litigation. To what extent were the recommendations in the Swift Review being pursued separately to the Group Litigation, from the time that the claim form was served?

Patrick Bourke: So my recollection is that, all eight recommendations were set in train as soon as we got the draft report from Sir Jonathan Swift, so that’s to say the week of 11 January 2016; the finalised document was presented on 8 February, and then the proceedings, I think, were issued in July 2016, at which point, advice was obtained from both Anthony de Garr Robinson, the QC then with responsibility for the management of the litigation as a whole, as well as Jonathan Swift QC, as the author of the Swift Review, as to whether it was appropriate to cease the work under the banner of the review but carry out equivalent work under the banner of the litigation, and we double checked that that was something that was – that was something that Jonathan Swift was agreeable to, which he was.

Mr Stevens: If we turn the page in this document, please, the terms of reference say that the objectives of the PLSG are to ensure that Post Office’s defence of the claim, first! “Protects the Network”; what does that mean?

Patrick Bourke: I think it simply means that, you know, it enables the running of 11,500 branches to continue without interruption.

Mr Stevens: The rest:

“Is proportionately managed;

“Does not place unplanned constraints or resources burdens on Post Office; and

“Is Consistent with business as usual practices …”

So did the steering group have any responsibility for following up on the recommendations in the Swift Review?

Patrick Bourke: I don’t believe so, certainly not in formal terms, no.

Mr Stevens: So who was responsible for keeping any oversight of the recommendations in the Swift Review at this point?

Patrick Bourke: I assume the Legal team was appropriately supported by other specialists whether in finance or elsewhere.

Mr Stevens: Please can we bring up POL00110482. Can we go to page 3, please. We see here it’s Jane MacLeod’s email of 26 July 2016, which you’re copied into. It refers to briefing the Group Executive:

“… this morning of the progress of the litigation and the planned positioning of various issues …

“As expected there was significant concern around the apparent change in emphasis from previous public statements, the resultant adverse publicity this may create, and the impact this may have on new ministers, who will not have been briefed.”

I should have said in the above, it says:

“In particular, I commented on the issues around the response to the remote access issue.”

Now, this was in the context, was it, of, a couple of weeks earlier, the first operation Bramble report being produced?

Patrick Bourke: So I think that’s right. It was certainly 13 days precisely after Andy Parsons sent me and others the email which disclosed the fact that Fujitsu revealed the ability of super users to edit or otherwise manipulate existing data on the ARQ.

Mr Stevens: Were you involved in the discussion with the Group Executive?

Patrick Bourke: No.

Mr Stevens: If we turn to Andrew Parsons’ email, I think it’s page 1, please, at the bottom. He refers to:

“Jane’s email accurately records our current understanding.”

It says:

“Deloitte are investigating the key questions …”

Then if we go up to Jane MacLeod’s email, it talks about wording, and this is wording for the letter of response, isn’t it, how to deal with remote access?

Patrick Bourke: How to deal with remote access on the basis of incomplete information.

Mr Stevens: What Jane MacLeod suggests here is to write:

“Access to databases. Database and server access and edit permission is provided, within strict controls to a small, controlled number of specialist Fujitsu personnel. Our current understanding is that although it may be possible theoretically to use these permissions in a way that could affect a branch’s accounts, it is unclear why any such permissions would be used by those specialists in such a way. Any such use of these permissions in this way would, in any event, be logged and be subject to compliance with the specified controls.”

Then in brackets:

“We have asked Fujitsu to advise whether such permissions have ever been used in this way.”

You’re not copied in to that email. Did you have any discussions around this time with people within Post Office as to how to deal with the wording on remote access in the letter of response?

Patrick Bourke: I don’t recall doing so. I think it’s fair to say that the 13 July revelation, if I can put it that way, from Andrew Parsons, caused a fair bit of consternation. So it would have been the subject of discussion generally between the people involved but I don’t think I had any role in actually finalising or suggesting particularly forms of word that might accommodate what, as I say, was incomplete information.

This was new information. We still hadn’t got to the bottom of exactly what it meant, and Fujitsu hadn’t provided us with the, you know, A to Z in terms of the comprehensive answer that we were looking for.

So, given that the letter of response was due to go, I think, in very short order, when this revelation was made, I think colleagues were looking for the best way of reflecting this new knowledge, and this is the sort of exchange that took place in order to do that.

Mr Stevens: Could we please look at POL00041259. It’s an email from Andrew Parsons the following day, and you’re included on the recipient list. It says:

“Please find attached the final version of the letter of response that we intend to send tomorrow.

“The only outstanding point is Tony’s approval …”

That’s presumably Anthony de Garr Robinson KC?

Patrick Bourke: That’s correct, yes.

Mr Stevens: “… approval of the remote access wording …”

Do you remember if you looked at this copy of the letter of response?

Patrick Bourke: I think I was sent it and asked if I had any input to make. From memory, I did read it. I think I may have made a one or two minor suggestions but – and I don’t actually recall what those were and whether they related to this remote access point, in particular.

Mr Stevens: Let’s have a look at the draft that was attached. It’s POL00041260 and, if we could go to page 24, and if we could go down to paragraph 5.16.4. So how it’s drafted there, the last two sentences say:

“As far as we are currently aware, privileged administrator access has not been used to alter branch transaction data. We are seeking further assurance from Fujitsu on this point.”

That was changed from previously, where the draft suggested:

“We have asked Fujitsu to advise whether such permissions have ever been used in this way.”

So the draft that Jane MacLeod sent has changed to this and it appears to have gone from saying, “We don’t know if this access has been used this way”, to, “As far as we’re aware, it hasn’t been used in this way but we’re seeking further assurance”.

Are you aware of whether Fujitsu provided any input into whether the privileged administrator access had been used when drafting this version of the letter of response?

Patrick Bourke: I don’t think I am aware of whether or not they were – they provided any input at this juncture.

Mr Stevens: I don’t need to go there, sir, but, for your reference, the version of this, as sent, is POL00110507.

Sir, looking at the time – I don’t have that much to go – but, for the transcriber, I propose we take a short ten-minute break.

Sir Wyn Williams: Yes. Sorry, could you give me that reference again?

Mr Stevens: I’m sorry, sir, I’m rushing through. It’s POL00110507.

Sir Wyn Williams: Thank you.

Mr Stevens: Sorry, I’m told it’s a 15-minute break. I’m sorry, so could we say 3.20?

Sir Wyn Williams: Jolly good.

Mr Stevens: Thank you, sir.

(3.07 pm)

(A short break)

(3.20 pm)

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

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

Mr Stevens: Thank you.

Mr Bourke, can you see and hear me?

Patrick Bourke: I can, thank you.

Mr Stevens: Thank you. Please can we bring up Mr Bourke’s witness statement, page 118, paragraph 275. Thank you. You say that:

“In relation to specific aspects of disclosure [this is disclosure in the GLO] I am asked about [your] knowledge of Fujitsu’s Known Error Log …”

You say it “was and remains limited”:

“I had a layman’s understanding of what it was insofar as it had become part of the lexicon around the time of the Group Litigation and I would hear the term referred to in conversation around [Post Office Limited].”

When did you first become aware of the Known Error Log?

Patrick Bourke: I think it was in the context of a PLSG meeting.

Mr Stevens: So, during your time on the scheme, as the scheme manager, no one in Post Office Limited had discussed a Known Error Log with you?

Patrick Bourke: Not to the best of my knowledge, no.

Mr Stevens: Just explain in your own lay term, what – I mean, is it fair to say that the Known Error Log could be described as a log of known errors?

Patrick Bourke: Yes. I believe that’s right. I think I say elsewhere in my statement that I thought that it denoted a record, a sort of live document, a live record, of non-material issues that would crop up from time to time in the operation of the system.

Mr Stevens: Well, that point, non-material, where did you get that understanding from?

Patrick Bourke: That’s a fair question: I’m not sure I know. I formed the view – and this is quite possibly completely incorrect – that the Known Error Log was – you know, recorded sort of hiccups but I think the PEAK was more serious. But I don’t recall now what “PEAK” even stands for, I’m afraid.

Mr Stevens: If you could look at POL00003340. If we look at page 2, please. This is the Post Office’s generic defence and counterclaim in the GLO proceedings, which I think in your evidence you say you reviewed at the time, yes?

Patrick Bourke: I think I’ve read, yes.

Mr Stevens: Can we turn, please, to page 23. This is paragraph 50(4) in the generic defence. It refers to the Known Error Log and says:

“To the best of Post Office’s information and belief, the Known Error Log is a knowledge base document used by Fujitsu which explains how to deal with, or work around, minor issues that can sometimes arise in Horizon for which (often because of their triviality) system-wide fixes have not been developed and implemented. It is not a record of software coding errors or bugs for which system-wide fixes have been developed and implemented. To the best of Post Office’s knowledge and belief, there is no issue in the Known Error Log that could affect the accuracy of a branch’s accounts or the secure transmission and storage of transaction data.”

Was this paragraph and Post Office’s response ever discussed at the Postmaster Litigation Steering Group?

Patrick Bourke: I don’t know. I don’t know. It may have been. I didn’t attend every meeting of the PLSG but I have no memory of that being discussed, no.

Mr Stevens: To the best of your knowledge, who would have given instructions for that paragraph to be pleaded?

Patrick Bourke: I would have imagined – I don’t know this for sure – but I imagine it would have been Rob Houghton who was I think, by that stage, our Chief Information Officer.

Mr Stevens: Could we please look at POL00023013. We see it’s an email from Mark Underwood on 25 September 2018. It’s sent to you, attaching papers ahead of a Postmaster Litigation Steering Group call, and one of those is:

“Whether Post Office should disclose the contents of the PEAK system to the claimants.”

If we look at that decision paper now, it’s POL00023013 – sorry, it’s POL00023014. My apologies.

So it’s talking about whether Post Office should disclose the PEAK system, and on “Voluntary Disclosure”, we see there, there’s paragraph 1.3.5:

“The Post Office has an ongoing duty to disclose adverse documents. Given the nature of the documents contained in the PEAK system, it is likely it will contain adverse documents and therefore, disclosure of these will need to be given at some stage.”

Now, pausing there, when did you first become aware of the PEAK system?

Patrick Bourke: It would have been in the context of one of these meetings but, as I say, I don’t know what a PEAK refers to, really.

Mr Stevens: Was any consideration given to whether the PEAK system needed to be reviewed for the purposes of considering the safety of past criminal convictions?

Patrick Bourke: I don’t know.

Mr Stevens: Bear with me one moment, please.

Please could we turn up FUJ00081944. We see this is an email from Mark Underwood to Kevin Lenihan, you’re copied in to it. It says “4/7/2015”. My understanding is that’s an Americanised date and this is 7 April 2015; is that correct?

Patrick Bourke: Yes, that’s correct.

Mr Stevens: We see there are two attachments to this: one is “Receipts and Payments Mismatch Notes”; and one, “Correcting Accounts for Lost Discrepancies.”

I want to look at one of those, please, and that’s FUJ00081946.

Do you recall reading this document when it was sent to you?

Patrick Bourke: Yes, I think so, though I think it was the other document, which I was focused on, but yes.

Mr Stevens: This says:

“This note relates to PEAKs [and then gives the numbers].”

Then it says:

“PC0204263 describes a problem with the [stock unit] balancing that will result in a receipts and payments mismatch.”

At this point, did you enquire as to what the PEAK database was?

Patrick Bourke: No.

Mr Stevens: Why not?

Patrick Bourke: Because what was being brought to my attention through this document was something else, which was a reference in the other document to the – well, two things: one, the – effectively, the balancing transaction issue, which we’ve spoken about; and secondly, some language in there seems to suggest that Fujitsu could remotely access – could access branch accounts more freely than what we thought possible.

Mr Stevens: Right. Well, let’s look at that just for completeness. It’s FUJ00081945. Is this the document you’re referring to?

Patrick Bourke: Yes, it is.

Mr Stevens: This a well-known document to the Inquiry regarding the receipts and payments mismatch bug. At page 3, is this what you’re referring to, Solution One refers to:

“… Alter the Horizon branch figure at the counter to show the discrepancy. Fujitsu would have to manually write an entry value to the local branch account.”

Then it says:

“Risk – This has significant data integrity concerns and could lead to questions of ‘tampering’ with the branch system and could generate questions around how the discrepancy was caused. This solution could have moral implications of Post Office changing branch data without informing the branch.”

That’s what you were referring to earlier?

Patrick Bourke: So that’s the balancing transaction issue, I think. I seem to recall – and perhaps it’s not in this document, but somewhere, I think, in this document, there’s some language that seems to suggest that Fujitsu have had the ability to do – to remotely access branch accounts more freely than we’d understood, and this was brought to my attention by Second Sight on the eve of the finalisation of the Part Two Report, on 8 or 9 April 2015 and, immediately on receipt, I remember instructing Mark Underwood and Andrew Parsons to work with Fujitsu to put me in a position to be able to respond to the suggestion being made by Ian Henderson with something meaningful and accurate to go back to him with.

They also consulted Pete Newsome, who, at that time, confirmed and was very insistent upon the fact that, whilst the language might point to a more easy remote access than we thought possible, he considered it to be loose language by non-experts and that he was confirming absolutely that the only way that, you know, this could be done was through a balancing transaction, which would leave an auditable trail, and those are the terms upon which I then replied to Ian Henderson on, I think, 8 April, and he finalised the report on that basis.

But the information is contained in Section 17, if I’m not mistaken, of the Part Two Report – sorry, section 14, if I’m not mistaken, of the Part Two Report.

Mr Stevens: Sir, we’ve had actually had an application for a Core Participant to ask questions on that issue, so I’m going to leave that there and one of the Core Participants will deal with it.

I’ve just got one last question. It’s on your witness statement, please, page 124, paragraph 294.

You say, at the bottom of the page, actually, if we could just go down a little more, please:

“I therefore joined myself to the apology [Post Office Limited] has quite rightly made for its failings during this period.”

Why have you used the term you “join [yourself] to the apology”?

Patrick Bourke: I thought long and hard about this, and I’m obviously also aware of the various apologies that have been made by previous participants to this Inquiry. As I say in the preceding lines, I personally think that I was engaged in some good faith exercises that we did – that I did, according to the best of my ability. I wasn’t involved in the prosecutions; I wasn’t involved in disclosure failings; and I fear that, if I were to say I have a personal apology to make, that would be, you know, potentially derided by those it was intended to – it was intended for.

If you ask me what I genuinely feel, it is more in the nature of, you know – I wouldn’t be human if I didn’t think that – you know, or if I didn’t regret massively what – all the sort of upset, destruction, distress that’s been occasioned by this dreadful saga for all those affected but, particularly, for those people who were wrongly prosecuted and wrongly convicted, but that is a human sentiment and it is meant very, very genuinely. But whatever failings POL made in the context of, you know, improper disclosure in the prosecutions of certain individuals prior to my joining the Post Office, it just feels to me to be a bit hollow for me to apologise for those things.

But I – as a representative of the organisation, I do absolutely want to join myself to the apology that it has made because it was quite right to have made it.

Mr Stevens: Where you say “POL has quite rightly made for its failings during this period”, what do you consider its failings to be?

Patrick Bourke: Well, as best I understand it and having looked at this – you know, the developments that we’ve seen from – in recent years, you know, and particularly the quashings of convictions in, I think, April 2021 onwards, there was obviously some real deficiency in the disclosure – deficiency in the process of prosecutions through a failure of disclosure in those cases, with the appalling result that, you know, people who might have otherwise had a defence were left without one to make, or had one – few defences to make.

So, you know, anybody who is on the receiving end of something like a custodial sentence or even not a custodial sentence, as a result of having that criminal procedural rights infringed, I mean, you’d have to be, as I say, completely heartless not to feel deep pain and sorrow for that.

Mr Stevens: Do you think Post Office Limited is responsible for any failings or was responsible for any failings whilst you were employed by it from 2014 onwards?

Patrick Bourke: I’ve no doubt that it got a number of things wrong but, in respect of – I mean, to be perfectly honest, I think that question is too broad, really, to answer sensibly. No doubt we could have approached things differently. One can always make improvements but my observation of the time that I was engaged in these matters is that certainly myself and all the people who were working around me were working to the best of their ability in good faith. We did find it frustrating because we didn’t seem to achieve any cut through at all with those people either applying to the scheme or their supporters in Parliament and, you know, it’s of regret that we didn’t find a device to sort of put things more differently.

But, you know, beyond that, you know, I think I’ll remain – I’ll stick with what I’ve said.

Mr Stevens: Thank you.

Sir, that concludes my questions. We have had applications from Core Participants to ask some questions. I understand it will be Ms Page first, who will be about ten minutes; then Mr Moloney will be, I think, less than five minutes; and ten minutes from Mr Stein.

I think you’re on mute, sir.

Sir Wyn Williams: All right. Over to you, Ms Page.

Ms Page: Thank you very much, sir.

Questioned by Ms Page

Ms Page: Mr Bourke, as Mr Stevens has said, there’s an issue I want to ask you about and it is to do with the 11th hour response to Second Sight’s Part Two Report, which dealt with the “Solution One” meeting, didn’t it?

Patrick Bourke: The Solution One meeting?

Ms Page: The Solution One meeting; the meeting at which Solution One – that may be shorthand for us in the Inquiry that you’re not perhaps quite as familiar with – but Solution One was offered up, wasn’t it, by Fujitsu as a means of dealing with the receipts and payments mismatch bug?

Patrick Bourke: The balancing transaction, yes.

Ms Page: Yes. Now, what I want to do first is just look at the email chain where you set up the meeting with Fujitsu, which you referred to. That’s POL00353224. If we go, please, to page 3, this email was – yes, if we go to page 3 we’ll see how the chain sort of gets kicked off.

The second paragraph, this is Mark Underwood, and you’re copied in, and this is Mark Underwood basically seeking that sort of 11th hour response. In the second paragraph, he says:

“Back in 2010, a bug was identified in Horizon which caused a receipts and payments mismatch issue … Second Sight has been provided with [documents].”

So those documents were the notes of the meeting and Gareth Jenkins report, yes, on the bug?

It says this at the end of the paragraph:

“Second Sight are not interested in the bug itself but rather the method by which Post Office could have edited branch data to resolve the bug.”

So that’s what is being investigated at the 11th hour just before the Part Two Report is to be published, yes?

Patrick Bourke: Yes.

Ms Page: Then, if we just scroll down, what the email does is it quotes the Solution One wording and, in particular, it refers to that question of risk:

“This has significant data integrity concerns and could lead to questions of ‘tampering’ with the branch system …”

So, again, that’s what’s being looked at, isn’t it? That’s the sort of key concern?

Patrick Bourke: Yes.

Ms Page: All right. Well, if we go up to page 1, we see that then there’s your follow-up to that, stressing the urgency. If we just scroll down a little bit, that’s your email saying:

“Thanks all.

“Needless to say it’s really important that we do have something really meaningful and accurate to go back to [Second Sight] with at some point tomorrow.”

Then you suggest this meeting between Mark Underwood, Pete Newsome – that’s the Fujitsu man, yes; is that right?

Patrick Bourke: Yes.

Ms Page: And Andrew Parsons. You suggest that they have that meeting and they’re going to then discuss how to respond to that key concern, aren’t they?

Patrick Bourke: Yes.

Ms Page: So I can say, just for the record, that there is then a diary appointment the following morning but there’s nothing in writing from Fujitsu, so it must be that meeting at which the response from Fujitsu is consolidated it; is that right? Is that your recollection?

Patrick Bourke: It’s not my recollection but, if you say so, yes.

Ms Page: All right. Thank you.

Following that meeting, if we then look at your response to Second Sight, it’s POL00029836. If we go to page 2, please, if we scroll up just a little bit we can see that this is your email to Ian Henderson of Second Sight and Jane MacLeod, your General Counsel, copied in to those various people, including Ron Warmington of Second Sight, and Mark Underwood, who was at the meeting with Fujitsu.

Then, if we scroll down a little bit to the bottom of page 2, if we can just look at the penultimate paragraph, you say this:

“The language used in the documents produced by Post Office/Fujitsu and to which you refer is unfortunate colloquial shorthand used by those working on the Horizon system. I can see how it could be read to suggest that Post Office was ‘altering’ branch data but the above explains why this is not the case.”

So that is presumably what you meant when you said to Mr Stevens just a little while ago that Mr Newsome was insistent that the use of the word “tampering” was loose language by non-experts; is that right?

Patrick Bourke: I believe so, yes.

Ms Page: So you composed this based on what Mr Newsome said in that meeting?

Patrick Bourke: No, the email was composed through a combination of Andy Parsons and myself and others, and other, I think, documents that I’ve exhibited to my witness statement show very clearly that there were some track changes in this document that point to the fact that this was, you know, a collaborative effort. But there was a substantial input from –

Ms Page: Sorry, can I just focus in, though, on this point about colloquial language. That was based, presumably, on Mr Newsome saying that there had been loose language by non-experts at the meeting when solution one was offered; is that right?

Patrick Bourke: That’s my recollection, yes.

Ms Page: Now, loose language is one thing. Colloquial language is another. We could also characterise it in this way couldn’t we, Mr Bourke: it’s deeply troubling language, isn’t it, if somebody says that there’s a capacity to tamper with branch accounts; would you accept that?

Patrick Bourke: Yes, I can accept that, yes.

Ms Page: Thank you. The email can come down now.

Whether or not those at the meeting where solution one was discussed were experts, what they do say, what those Fujitsu people must have said, was that Fujitsu was able to tamper with branch accounts and that’s what was being investigated. As Mr Stevens established with you earlier, Mr Bourke, you did not know anything about whether that had happened during the lifetime of Legacy Horizon, did you?

Patrick Bourke: No.

Ms Page: Yet your response to Second Sight was, in effect, to dismiss the idea that there had ever been any tampering, wasn’t it?

Patrick Bourke: I was relaying the information that was provided to me by Fujitsu, and the only other point I’d raise in this context is that this is information that Second Sight had for some considerable time prior to raising it with me on the eve of their finalisation of the Part Two Report.

Ms Page: Nevertheless, in your formal response, or rather in Post Office Limited’s formal response to the Part Two Report, that wording from your email was used almost word for word. I won’t take you to it because, as I say, it’s more or less the same, but I’ll give the reference: POL00041059, and the relevant bit is at page 57. So your email was used as the Post Office’s formal response to that section of the Part Two Report.

Now, in fact, one of the Post Office employees who attended the meeting at which Fujitsu offered up Solution One was a gentleman called Andrew Winn. He has told this Inquiry that he was the person who signed off on Fujitsu’s use of the power to insert transactions into branch accounts.

It would have been a simple matter, would it not, to have talked to the Post Office employees who went to the meeting when Solution One was offered up, wouldn’t it?

Patrick Bourke: If you’re suggesting that there’s something I could have done, sensibly, yes, but, given that this was not new information, I think it was reasonable to expect this had been bottomed out prior.

Ms Page: Well, you’ve told us that you didn’t know whether Solution One or the tampering facility was used during the lifetime of Legacy Horizon. It would have been perfectly reasonable at this juncture, given the seriousness of what Second Sight were suggesting, to try to find out, at least by speaking to those Post Office employees who had been at the meeting, and who were still in the employ of Post Office at that time, wouldn’t it?

Patrick Bourke: Well, yes, but I have no way of knowing whether that happened or not. I can tell you that I didn’t do it, no.

Ms Page: You took at face value from an interested party, that is Fujitsu, what they wished to say by way of a gloss on the wording of Solution One, instead of finding out the truth from Post Office’s own staff, didn’t you?

Patrick Bourke: Well, no, because, you know, as I’ve said throughout my witness statement, you know, I was in the habit of taking at face value the views and the expertise offered to me. I had no reason, at this point, to doubt the veracity of what I was being told by Fujitsu. We are not – we are not, at this stage, in 2024, but instead in 2015.

Ms Page: In Second Sight’s report, they were giving you the reason to doubt it. They were suggesting that there was another way that you could look at this information and you had other ways to look at it and, instead, you just took the interested party’s view, instead of the disinterested party’s view; that is Second Sight’s view, didn’t you?

Patrick Bourke: I wouldn’t characterise it that way but –

Ms Page: This is part of a culture of denial and turning a blind eye when disinterested and legitimate concerns were being raised, wasn’t it, Mr Bourke?

Patrick Bourke: I completely refute that.

Ms Page: I think the witness said, “I don’t accept that,” or words to that effect?

Sir Wyn Williams: That’s what I understood, Ms Page. Yes.

Ms Page: Thank you, sir. Those are my questions.

Sir Wyn Williams: Thank you very much.

Is it Mr Moloney next?

Questioned by Mr Moloney

Mr Moloney: Sir, yes. Thank you.

Mr Bourke, you told Mr Stevens that, at one point, when relations with Second Sight were breaking down, Post Office contemplated enforcement action including demanding the return by Second Sight of all documents provided to them during the Mediation Scheme, yes?

Patrick Bourke: No, I said that we would envisage doing so if there was a very serious breach of that confidentiality –

Mr Moloney: You said to Mr Stevens that your overriding concern in doing so was to preserve the personal data of the applicants to the Mediation Scheme?

Patrick Bourke: Yes, I think that’s right.

Mr Moloney: Yes. With that overriding concern in mind, did you ever ask for the return of personal data of the applicants that had been provided to the JFSA?

Patrick Bourke: I can’t recall.

Mr Moloney: Because they’d received much of the same material that Second Sight had received, hadn’t they?

Patrick Bourke: Well, yes, but they would have received only that which pertained to them, rather than pertained to the whole group of 136. It is – given it’s their personal data, the concerns were obviously less significant.

Mr Moloney: Thank you very much, Mr Bourke.

Sir Wyn Williams: Mr Stein?

Questioned by Mr Stein

Mr Stein: Mr Bourke, you gave evidence earlier today and you were discussing the ability of subpostmasters to consider the audit trail, okay? Your evidence related to a question of – as you were talking about – you thought for Legacy Horizon, that subpostmasters might have something like 42 days to consider what was on the audit trail, and you thought that perhaps, in relation to Online, it might be longer, something like 50 or 60 days.

Now, we’re going to, with the Inquiry, look into that in more detail but does it help to be reminded that it was more likely to be from trading period to trading period, in other words that it related – this period of time with which any examination within the branch could take place, would have had to have taken place between the trading periods that existed at the time; is that fair?

Patrick Bourke: I hesitate here because I’m not sure if my expertise extends that far but my understanding is that postmasters were required to do a number of checks on a daily, weekly and monthly basis, and that the period of time for which the information was available reflected their – well, was sufficient to enable them to discharge their contractual responsibilities.

Mr Stein: Right. Well, the Inquiry has heard evidence about the balancing period and how long that took and I won’t go back into that.

When considering what you were going to be saying by way of your evidence to this inquiry, did you, by any chance, watch or read the evidence of subpostmasters, as they’d given it in the earlier stages of the Inquiry?

Patrick Bourke: Do you mean in Phase 1?

Mr Stein: Yes.

Patrick Bourke: Yes, I watched some of it, yes.

Mr Stein: Do you remember that subpostmasters would talk about the fact that they would spend their evenings and sometimes nights trying to make sense of the material that they had before them, that they would neglect their families and their relationships, and all that they could do was try and make some sense of the material that they had, because it didn’t make sense to them; do you remember that evidence?

Patrick Bourke: I do. What I would say is that there are – for every one of those people who were having difficulties – and I don’t suggest for a second they weren’t having difficulties and I feel for them in that respect – there were thousands of others who were managing to do this on a daily basis across the UK.

Mr Stein: So you’re saying, are you, that the subpostmasters that had those difficulties, they brought it upon themselves, that they’re the ones that perhaps could have done things somewhat better, as against the ones that didn’t make complaints because, apparently, they were better than the people that had the problems? Is that what you’re trying to say, Mr Bourke?

Patrick Bourke: No, all I’m trying to say is that some people will have experienced difficulties but, actually, a large number of people didn’t, and that doesn’t make one or the other better than the other. It’s just a –

Mr Stein: But do you recognise that, for the people that were having these difficulties, trying to find some way of making some understanding or some better understanding of the material that they had, when it literally would not make sense, for hours and hours, are you seeking to say that that is something that perhaps maybe they should put behind them and get on with their lives?

Patrick Bourke: No, I’m not suggesting that at all but I don’t know whether that information they were looking at did or did not make sense. For example, in the Mediation Scheme, there were cases where postmasters did not understand things but, actually, they had the wherewithal to get to the right conclusions and, for whatever reason, they’d either forgotten the training, or what have you. So, you know, all I’m saying is that it is possible that another postmaster might have made sense of those.

Mr Stein: There speaks someone, Mr Bourke, yourself, who has, in fact, either no or little understanding about how these matters occurred within branches, as you said earlier; is that fair, Mr Bourke?

Patrick Bourke: Well, no, I don’t think –

Mr Stein: Is your opinion about matters that you don’t actually understand yourself?

Patrick Bourke: No, I don’t think it is fair. I’m simply thing to you the opposite hypothesis.

Mr Stein: Okay, let’s have a look at a document and see whether that helps about your attitude to matters. The document is POL00246340. If we look at the top line, we’ll see there that this is a reference to a meeting that’s due to take place. As you can see there, it includes you, Patrick Bourke, and the meeting is Tuesday at 3.00 pm and you’ll see there that under “Attachments” references are there to 6 December, okay?

Now, we’re now going to have a look at another document, which is POL00246342. So this is a document that is being referred to in relation to the meeting, as you can see there, 6 December 2016. The meeting email that we’ve just looked at included such people as Ms van den Bogerd, Mr Williams, and you and others. So this is in relation to, as we can see, top left-hand corner, “Postmaster Group Action, Confidential and Legally Privileged”. As we go down here, under “Background”, it says:

“Post Office has commissioned Deloitte to investigate ‘remote access’ issues within Horizon … Deloitte need input from Fujitsu, including its engagement at various workshops. However [it goes on to say] Fujitsu is refusing to cooperate unless it is paid for its services.”

Then it goes on to talk about two particular matters:

“Fujitsu has arguably contributed to the need for Deloitte’s investigations …”

Then it refers to, in short form – I’ll put it in the bullet points – “Statements about remote access”, and, if you look at the bottom line of that paragraph, it refers to the fact that Fujitsu has:

“… contributed to the allegation that Post Office has concealed an ability to change transaction data.”

Then next bullet point is “Gareth Jenkins”, and then it says this:

“Fujitsu put forward Gareth Jenkins, one of the engineers of Horizon, to give evidence in criminal prosecutions. Following a review by Brian Altman QC, Post Office was advised that Mr Jenkins’ evidence was incomplete because his statements led the Court to believe there were no issues with Horizon when Mr Jenkins knew there were.”

Then it goes on to talk about the damage to Mr Jenkins’ credibility.

Let’s just pause there for a moment and just deal with the Mr Jenkins question. So in this meeting, in relation to December 2016, by that date, do you know whether Fujitsu had been told that there were these credibility damaging issues in relation to Mr Jenkins or not?

Patrick Bourke: No, I don’t.

Mr Stein: Right. So we’ve got then two matters that are being considered and then it goes on to say at that page, under the “Gareth Jenkins” bullet point:

“In a more general sense, the fortunes of Post Office and Fujitsu are entwined.”

Then if you scroll further down, if you would, please:

“There would therefore seem to be good, albeit self-interested, reasons for why Fujitsu may wish to assist Post Office.”

Then if we look further down under the “Issue”:

“Post Office may therefore wish consider whether it is best to either:

“Pay Fujitsu for its time insisting Deloitte and not raise the above matters; or

“Use the above points so to persuade Fujitsu to provide its support in relation to the Group Litigation at reduced/zero [hour] cost.”

Okay?

Patrick Bourke: Yes.

Mr Stein: So, in relation to these particular questions, do you know whether the Post Office had decided to try to extort Fujitsu into the position whereby it was going to support the Post Office’s position within the litigation; do you know whether that was what was decided or not, Mr Bourke?

Patrick Bourke: I don’t, but the cooperation of Fujitsu in the Deloitte work was an issue which had been raised to my attention, and, indeed, I spoke to Mr Stevens about it this afternoon, where it was clear that they were not providing the sort of access and information that Deloitte needed to complete its work on what was then Project Bramble. So, clearly, my intervention did not meet with any success because, had it, this piece of paper would not have been needed.

Mr Stein: Well, Mr Bourke, do you think it’s appropriate that an institution such as the Post Office, wholly owned by the Government, is thinking about trying to twist the arm of a corporation such as Fujitsu by saying, “Look, this is what you’ve done to us. You’d better help out, otherwise these issues may become known”? Do you think that’s an appropriate way for the Post Office to behave, Mr Bourke?

Patrick Bourke: Well, it’s not something I would have done, no.

Mr Stein: Well, did you say at this meeting, “Well, I think this is horrendous. We can’t, in all good conscience, try and make Fujitsu do this sort of thing in this way. Why don’t we have an honest approach to them and say: ‘Look, there are real issues here, we ought to consider together, that affect the people’s lives’,” Mr Bourke?

Patrick Bourke: So I don’t know whether that approach had not already been tried and not met with success. It may be that approach was tried and did not meet with success and so this is, you know, the third attempt to try to get their cooperation, and you can understand, in the context that these really important matters that you’ve just outlined, that people are struggling to see how else we can bring them to the table and to cooperate.

Mr Stein: Lastly, Mr Bourke, you’ve discussed with Mr Stevens in the last few questions today the level of your own personal responsibility. You said that you, as an example, weren’t someone that was stopping disclosure. Well, did you, at this time, consider the question of whether this information that was apparently being considered to be used to arm wrestle or twist the arm of Fujitsu to cooperate, did you stop and consider whether it might be helpful for the subpostmasters to know this, rather than you weaponising it?

Patrick Bourke: I’m sorry, but I just didn’t have conduct of the litigation at all and, insofar as the – you know, these were new revelations to me, as much as anybody else. So given that the prosecutions, in which, you know, disclosure failings took place pre-dated my arrival at the Post Office, I think that’s, you know, a bit of a stretch.

Mr Stein: So not for your consumption, Mr Bourke; let somebody else try and make those decisions. You’re not prepared to enter into the consideration of whether subpostmasters should know about Mr Jenkins. That’s your excuse; is that right, Mr Bourke?

Patrick Bourke: It’s by no means an excuse. We had any number of eminent lawyers engaged in this matter. We have had General Counsel, we’ve had legal departments, we’ve had advice from Brian Altman, we’ve had Simon Clarke giving advice. Of all the people who might be providing advice on this issue, I should think I was one of the least likely people to offer it.

Mr Stein: Thank you, sir.

Sir Wyn Williams: Thank you, Mr Stein.

Is that it, Mr Stevens?

Mr Stevens: Yes, sir. That’s it.

Sir Wyn Williams: Right.

Thank you, Mr Bourke, very much, for your very detailed witness statement and for answering questions during the course of today. I’m grateful to you.

So we’ll resume again at 9.45 tomorrow with Ms Sewell; is that right?

Mr Stevens: That’s correct, sir.

Sir Wyn Williams: All right. Thank you very much.

Mr Stevens: Thank you.

(4.08 pm)

(The hearing adjourned until 9.45 am the following day)