13 June 2024 – Andrew Parsons
Hide video Show video
(9.45 am)
Mr Blake: Good morning, sir, can you see and hear me?
Sir Wyn Williams: Yes, I can, thank you.
Mr Blake: Thank you very much. This morning we’re going to hear from Mr Andrew Parsons.
Sir Wyn Williams: Yes.
Andrew Parsons
ANDREW PAUL PARSONS (affirmed).
Questioned by Mr Blake
Mr Blake: Thank you. Can you give your full name, please?
Andrew Parsons: Andrew Paul Parsons.
Mr Blake: Mr Parsons, you should have in front of you a bundle containing your witness statement. Is that witness statement dated 17 April 2024?
Andrew Parsons: It is.
Mr Blake: It is a very lengthy witness statement, 557 pages in length. Could I ask you to turn to the final substantive page, page 557. Is that your signature?
Andrew Parsons: Yes.
Mr Blake: Can you confirm that that statement is true to the best of your knowledge and belief?
Andrew Parsons: It is.
Mr Blake: Thank you. That statement has the Unique Reference Number WITN10390200 and that will be uploaded on the Inquiry’s website in due course. That sits alongside 1,172 exhibits, comprising 18 substantive bundles of exhibits.
There’s a large amount of paperwork today. I’m not going to take you to hard copies – I’m going to try to deal with it all on screen – but I will be taking a note of my own in relation to a few matters as we go along.
You are currently a partner at Womble Bond Dickinson?
Andrew Parsons: Yes.
Mr Blake: You began your career there as a trainee, I think, in 2006 when it was Bond Pearce; is that correct?
Andrew Parsons: Yes.
Mr Blake: You qualified in September 2008 and joined the Southampton office?
Andrew Parsons: Yes.
Mr Blake: You became a senior associate in 2012?
Andrew Parsons: Yes.
Mr Blake: You became a partner in 2016?
Andrew Parsons: Yes.
Mr Blake: We know from Phase 4 of this Inquiry that Bond Dickinson was involved in civil actions against subpostmasters from the early time when you were qualified as a solicitor, so the early years of your qualification. We heard from, for example, Stephen Dilley who was involved in the Castleton case. Was that something you were aware of when you qualified?
Andrew Parsons: I was aware of the Castleton case.
Mr Blake: Your main involvement in Horizon, I think, was from April 2013; is that correct?
Andrew Parsons: That’s correct.
Mr Blake: When you first started working on those Horizon related matters, as a senior associate, who did you report to within Bond Dickinson?
Andrew Parsons: Gavin Matthews.
Mr Blake: Thank you. In terms of the Post Office, who were your main points of contact at that stage?
Andrew Parsons: Initially it was Rodric Williams and then later Susan Crichton.
Mr Blake: What was your view as to their competence and abilities?
Andrew Parsons: They both seemed like experienced in-house lawyers.
Mr Blake: I’m going to start today by taking you to the Helen Rose Report. That can be found at POL00022598, please. This is a report that’s well known to the Inquiry but I’ll take you very briefly to a couple of key paragraphs in that report. The date of that is 12 June 2013, so soon after your Horizon work began, and it’s an investigation into the Lepton branch.
If we could turn over the page, the subpostmaster in this case had denied carrying out a transaction and there was an investigation. Helen Rose has written this report. If we scroll down, there’s a section on reviewing the data. She says there:
“The Fujitsu logs were requested for this branch, but whilst waiting for these to arrive communications took place with Gareth Jenkins at Fujitsu for more details to gain an understanding what had occurred at this branch.”
Just pausing there, Gareth Jenkins, is that somebody who you were aware of, even in broad terms, in April 2013, or thereabouts?
Andrew Parsons: Thereabouts or shortly thereafter.
Mr Blake: “Questions asked and extracts from various emails in response.”
We’ve seen this plenty of times, there are a set of questions that Helen Rose has asked and answers that have been provided by Gareth Jenkins. If we scroll over the page, please. One of the key parts for this Inquiry if we scroll down, she says:
“Question – I can see where this transaction is and now understand the reason behind it. My main concern is that we use the basic ARQ logs for evidence in court and if we don’t know what extra reports to ask for then in some circumstances we would not be giving a true picture.
“I know you are aware of all the Horizon integrity issues and I want to ensure that the ARQ logs are used and understood fully by our operational teams who have to work with this data both interviews and in court.”
If we scroll over the page she makes some recommendations.
“Recommendations
“I do believe that the system has behaved as it should and I do not see this scenario occurring regularly and creating large losses. However, my concerns are that we cannot clearly see what has happened on the data available to us and this in itself may be misinterpreted when giving evidence and using the same data for prosecutions.”
Now, you’ve set out in your witness statement why, in your view, this wouldn’t have changed the picture very much. I think it’s paragraph 84 of your witness statement, I don’t need to take you to it.
We can see that this report was sent to you. Could we please turn to POL00190324. We have an email at the bottom of the page, please, from Dave Posnett to Rodric Williams. He says as follows:
“Rodric,
“Please find associated a report from our fraud analyst, Helen Rose, in respect of Lepton SPSO. This office doesn’t feature as part of our Second Sight spot reviews …”
Just pausing there, by this stage, so summer of 2013, I think you were involved in those Second Sight spot reviews; is that correct?
Andrew Parsons: I was assisting Post Office with drafting the responses to the spot reviews.
Mr Blake: Thank you:
“… but the subject matter is Horizon (and indeed Credence) related. Could I ask that you consider the report and feed any comments back as it could be a potential issue at some stage.
“In summary, the specifics concern a ‘system reversal’ of a transaction following a system failure. This is normal practice, but the Horizon logs (and Credence logs) indicate that the reversal is an ‘existing reversal’, implying that the reversal was manually entered by the clerk/subpostmaster.
“I think there’s a remote possibility that this could be a problem in terms of using the data for evidence/prosecution purposes, but nevertheless it is still a possibility. Myself or Helen are happy to talk through anything that requires explanation.”
If we scroll up to the top of the first page, please, we can see Rodric Williams sends it to you on 3 July 2013, and he says:
“Andy – can you take a look at this so you can give me an overview on the phone sometime today.”
He attaches there the Helen Rose Report.
I think you’ve said in your statement that you don’t recall receiving the report; is that correct?
Andrew Parsons: I don’t recall receiving the report, no.
Mr Blake: Looking at this email, it is likely that you did receive the Helen Rose Report on 3 July –
Andrew Parsons: Yes.
Mr Blake: – and it is likely that you considered its contents?
Andrew Parsons: Correct.
Mr Blake: You would have seen the wording at the bottom, the concerns that are raised by Dave Posnett?
Andrew Parsons: I would have focused on the aspects of that report that were talking about transaction reversals because that was the same issue that had arisen in spot review number 1, that I’ve looked at recently.
Mr Blake: The report itself is not very long. It’s four pages.
Andrew Parsons: (The witness nodded)
Mr Blake: So it’s likely, isn’t it, that you would have read the report? I mean, it’s actually three pages of text and one page of front page?
Andrew Parsons: Yes, I accept I would have read the report.
Mr Blake: Yes. Moving on to the suspense account bug, I think at that time it was the 14 bug or referred to the number 14 because of the number of branches that it was known to have affected; is that correct?
Andrew Parsons: Correct.
Mr Blake: Could we please look at POL00296703. If we start at the bottom of the first page, we can see an email from Ben Thorp, was he in the Post Office Legal team?
Andrew Parsons: He was a secondee from Bond Dickinson to the Post Office Legal team.
Mr Blake: Thank you. In fact, that’s how he introduces himself at the beginning of this email. He says:
“By way of a very brief introduction, my name is Ben Thorp. I am a Bond Dickinson secondee (from the Newcastle office) currently working with Rodric Williams in [the Post Office’s] Legal Team for the next few weeks.
“We have received the attached query from business regarding historical issues a very limited number of branches had with Horizon. [The Post Office] intends to refund any losses caused by these issues, but not seek to recover any gains.
“Could you please review the letters and let Rodric and me have any comments you may have, particularly in the context of the spot reviews?
“If you would like to discuss anything arising from your review, please do give either Rodric or me a call.”
If we scroll up we can see your response. You say:
“Ben, Rodric
“To be honest, I don’t quite follow the logic of Andy Winn’s letters (I suspect this is just me and that this just makes expect sense to the subpostmasters!).
“The risk here is that disclosing any form of an error in Horizon could become problematic if it ends up in the hands of the [Justice for Subpostmasters Alliance]. However, we have no real option but to disclose this issue and make right the error with the [subpostmasters] that have been [affected]. To do otherwise, risks damaging [the Post Office’s] credibility on Horizon and severe criticism from the Fed.
“My [suggestion] therefore is to make sure that we fully understand the root cause of this error before going public. Hopefully, this will give us a good explanation as to why this one error does not undermine our general view that Horizon is otherwise robust.
“With that in mind, are you happy for me to speak … to Simon Baker/Andy Winn to get some more background/technical details?”
You say there “Hopefully, this will give us a good explanation as to why this one error does not undermine our general view that Horizon is otherwise robust”; were you concerned, on reading that, that it was a possibility that that general view could have been undermined?
Andrew Parsons: At this stage, I didn’t understand the nature of the error in hardly any detail. I was also only about two months into working for Post Office in earnest, so my understanding of Horizon was pretty limited, so I wanted to understand more information before forming that view.
Mr Blake: Can we please turn now to POL00144848. So letters by this stage had been drafted and sent to you for review. You are now responding to Rodric Williams and you say:
“I’ve reviewed the [subpostmaster] letters. I’ve attached mark-ups of the two letters which show the suggested amendments that should be made across all the letters.”
You set out in bullet points the various amendments that you’ve made. The first:
“To insert an opening paragraph that explains [the Post Office’s] investigation and highlights the fact that we have sought to protect [subpostmasters] from any harm in the interim period.
“To remove the word ‘problem’ and to replace with the dramatic word: ‘issue’.”
Just pausing there, was that your own initiative; was that something you were aware of, that the business wasn’t happy with certain language?
Andrew Parsons: No, I had no instructions as to use of particular language. I think it’s a fairly ordinary thing for lawyers to do to soften wording in letters.
Mr Blake: You say:
“I don’t think we should apologise in the letters. I know this sounds hard but in apologising we are admitting some degree of culpability. I think we should maintain a more cold, procedural approach to correcting what is effectively an accounting irregularity.”
Is that, again, something you did, your own initiative without instructions on that particular matter?
Andrew Parsons: These are my recommendations to Post Office.
Mr Blake: You then say:
“In some circumstances it appears that [an] error caused a transaction record from a former [subpostmaster] at a branch to be carried over into the records of a later [subpostmaster] at the same branch. In my view this is a dangerous admission, as the complete separation between [subpostmaster] records is a cornerstone principle of ensuring Horizon’s integrity. Although this has happened and is completely explainable, I don’t think we ever want to expressly document this.”
Are you saying in that final bullet point that it’s such an important issue for Horizon that you don’t think that it should be documented?
Andrew Parsons: I’m talking here in the context of these letters, which are individual letters to go to individual subpostmasters.
Mr Blake: Why wouldn’t you want to expressly document something that is the cornerstone of ensuring Horizon’s integrity?
Andrew Parsons: We’re talking here about these particular letters. This isn’t advice to suggest that the whole issue should not be documented.
Mr Blake: Why wouldn’t you want to document it in those letters?
Andrew Parsons: Because each letter was individual to each branch. Each one was customised, so it dealt with the issue in that individual branch.
Mr Blake: Why wouldn’t it matter? Why would you be concerned about expressly documenting something? Is it because you would be concerned about disclosure, for example, in other cases?
Andrew Parsons: Disclosure of this issue may have come out anyway because the issue was documented in other documents. What I’m talking about here is the individual letters, each one was customised to each individual subpostmaster to reflect their position and how it had impacted on them.
Mr Blake: I’m not too sure how that answers the question that I’ve just asked though, which is about disclosure in other cases. Were you concerned that, by documenting it in these particular cases, it would then be on record to be disclosed in other matters? Was that a concern that you had that is expressed in this bullet point?
Andrew Parsons: If it had been documented in those letters then, yes, it would have been disclosable in other matters but my point being is there would have already been in existence documents about this issue.
Mr Blake: Was a concern that you had that, if you documented it, it would then become disclosable in other matters?
Andrew Parsons: I don’t believe I gave it that level of thought.
Mr Blake: You were, at this time, summer of 2013, concerned about expressly documenting matters relating to Horizon integrity?
Andrew Parsons: Again, this is in the context of letters to individual subpostmasters. It’s not a general observation on how Post Office should document problems in Horizon.
Mr Blake: Can we please look at the letters. Can we turn to POL00144849. Thank you. These are your amendments to the letters. This is to a subpostmaster and it says:
“I am aware that you have communicated previously with our Current Agents team in relation to 2 unexplained discrepancies that have impacted your branch. Thanks for alerting us to the issues.”
So this is a letter where someone has already made a complaint and it’s responding to their specific complaint?
Andrew Parsons: That’s what I understood, yes.
Mr Blake: You’ve added this. You’ve added:
“In light of these discrepancies, Post Office has thoroughly investigated your branch’s records and, whilst undertaking this investigation, we have ensured that any known discrepancies have not been charged to your account. I write now to confirm the outcome of our investigations.”
What was the thorough investigation that had taken place?
Andrew Parsons: This was information provided to me by Andy Winn of Post Office.
Mr Blake: This was your insertion into a draft letter. What investigations had you carried out that the Post Office had thoroughly investigated the branch’s records?
Andrew Parsons: I had personally not carried out any investigations.
Mr Blake: Were you, nevertheless, comfortable in inserting that addition?
Andrew Parsons: Those were my instructions from Andy Winn.
Mr Blake: “I can confirm”, and then you speak about the gains. Then we see you’ve changed the word “problem” to “issue” and you’ve struck out the words “by the former subpostmaster”; is that because, as you identified in that previous email, that, at the cornerstone of ensuring Horizon’s integrity, was the separation between subpostmasters accounts –
Andrew Parsons: That’s what I understood at the time.
Mr Blake: – and, thereby, by removing reference to the former subpostmaster, it would not be clear to the person reading this letter that that strict division between subpostmasters’ accounts had not, in fact, functioned on that occasion?
Andrew Parsons: I think it would have been possible for the subpostmaster to have worked that out because it mentions 2010; “TP8” is trading period 8, so they would have known whether that happened whilst they were the subpostmaster or not.
Mr Blake: So why strike it out?
Andrew Parsons: Because I didn’t think it was relevant to this particular subpostmaster.
Mr Blake: It’s not because you didn’t think it was relevant. We can go back to those bullet points if you want but you said, in that final bullet point, that:
“It is my view this is a dangerous admission as a complete separation between subpostmasters’ records is a cornerstone principle of ensuring Horizon’s integrity. Although this has happened and is completely explainable, I don’t think we ever want to expressly document it.”
Surely, by removing reference to “by the former subpostmaster”, you’re making it less clear that that separation had been violated?
Andrew Parsons: I accept that.
Mr Blake: If we scroll down, please, and, again, strike out the word “problem”, replace it with “issue”, and then strike out the apology at the end?
What was the problem, legally, with making an apology?
Andrew Parsons: I think sometimes apologies can be interpreted as admissions and it’s not – I think it’s pretty common for lawyers to – in letters, to consider whether the apology is appropriate or not.
Mr Blake: Post Office were, in this case, making an admission, weren’t they?
Andrew Parsons: Yes.
Mr Blake: There had been an issue or a problem, it had been corrected and this was notification to the subpostmaster that that had been corrected. What was the problem in this particular case of apologising for that?
Andrew Parsons: In my view, it leads people to consider that there was, as I say, an admission of legal fault when, in fact, Post Office’s view is, yes, there had been a problem but it was being corrected through proper channels.
Mr Blake: Was that something you did regularly on behalf of the Post Office?
Andrew Parsons: It would depend on the circumstances.
Mr Blake: Are there other letters where you would have removed apologies?
Andrew Parsons: Possibly.
Mr Blake: Could we please look at POL00144850. This is the other attachment. This is the other amendment, made very similar amendments. If we scroll down we can see reference to that “thorough investigation”.
Do you see, in terms of the thorough investigation, is it likely that, in fact, the investigation was only in relation to this particular issue that had been identified, the 14 bug?
Andrew Parsons: I can’t now recall.
Mr Blake: Do you recall any wider investigation that took place in relation to these subpostmasters’ branches investigating their branch records, any wider than the identified issue in this particular case?
Andrew Parsons: I can’t recall.
Mr Blake: Would you accept that, reading that letter, it sounds as though a thorough investigation has taken place that is wider than simply one particular issue?
Andrew Parsons: I can see how someone could read it that way but I also think it’s read in the context of looking at a particular issue.
Mr Blake: Where does it explain that a particular issue has been thoroughly investigated?
Andrew Parsons: Because it’s targeting those specific discrepancies in the accounts.
Mr Blake: Did you draft it intentionally so that it was ambiguous as to what the investigation had been into?
Andrew Parsons: I don’t believe so.
Mr Blake: For example, why wouldn’t it have said, “The Post Office has thoroughly investigated this issue”? It says, “investigated your branch’s records”. It’s drafted in quite a wide way, would you accept that?
Andrew Parsons: I can see how you could read it that way. I don’t believe I gave it that level of thought at the time.
Mr Blake: Can you see how the recipient may well read it that way?
Andrew Parsons: I think they would have recognised that this was investigating a particular discrepancy and that’s what was being investigated.
Mr Blake: So it wasn’t your intention to suggest a broader investigation than, in fact, had taken place?
Andrew Parsons: Correct.
Mr Blake: Can we please turn to POL00144864. We’re still on the same day, 27 June 2013, POL00144864. I think it’s the bottom email on that page. You email Rodric Williams, you say:
“Rodric
“As discussed, please find attached a version of the letter for those [subpostmasters] who are currently not aware of the situation.”
So there were letters going out to those who had actually made specific complaints, those who knew about the investigation, and then a third set of matters which was to those who weren’t already aware of the situation; is that correct?
Andrew Parsons: I can’t now recall what that was a reference to.
Mr Blake: Well, looking at this email, does it seem as though there was a further set of letters to the subpostmasters who were not currently aware of the situation?
Andrew Parsons: My recollection is there were two versions of the letters, one for those who had suffered a loss, and one for those who had suffered a gain. I don’t recall whether there was a third version for another category.
Mr Blake: Okay, well, let’s have a look at the draft letter that’s attached to this tell that’s sent in your name on 27 June 2013. That is at POL00144854. This is the letter that was attached to your email. If we scroll down, we can see it’s informing a subpostmaster and it says, “Branch discrepancies at”, and it names the Post Office:
“You may have been aware of 2 small value unexplained discrepancies that have impacted your branch.
“In light of these discrepancies, Post Office has thoroughly investigate your branch’s records and, whilst undertaking this investigation, we have ensured that any known discrepancies have not been charged to your account. I write now to confirm the outcome of our investigations.”
It refers to a small value declaration that was amended.
Looking at this, is this something you recall now; does this assist?
Andrew Parsons: It appears that the first paragraph has been changed.
Mr Blake: This isn’t a change; this is one that you sent independently.
Andrew Parsons: Mm.
Mr Blake: You said, “Please find attached a version of the letter”, so it’s a further letter to those who weren’t aware and it refers specifically to an issue in their particular Post Office, doesn’t it?
Andrew Parsons: Correct.
Mr Blake: Do you think it’s fair to say that a reader of this letter will be under the impression that, in fact, there are two small-value discrepancies and that this is effectively a business as usual type correspondence, no explanation, for example, of it affecting other branches?
Andrew Parsons: I couldn’t comment on whether this was a business as usual type correspondence for Post Office to send.
Mr Blake: You were drafting the letters?
Andrew Parsons: Mm-hm.
Mr Blake: You were assisting the Post Office drafting the letters?
Andrew Parsons: (The witness nodded)
Mr Blake: If you were to read this and you’re a subpostmaster, do you think you might get the impression that you were the only one affected by this discrepancy?
Andrew Parsons: You might get that impression.
Mr Blake: Do you think you might get the impression that, in fact, it’s only two small-value discrepancies that have occurred?
Andrew Parsons: In that branch, yes.
Mr Blake: But you wouldn’t have known about other branches, would you?
Andrew Parsons: Correct.
Mr Blake: Again, was that the intention of this correspondence: to suggest to the recipient of the correspondence that it was only them that was affected and that it wasn’t a big deal?
Andrew Parsons: I don’t believe that was the intention.
Mr Blake: Why in that correspondence not say to the recipients “You are one of a number of branches that have been affected by this issue”?
Andrew Parsons: I don’t believe we just – I gave that any consideration and the instruction was to draft a letter that was focused on each individual branch and explain their position.
Mr Blake: Can we please turn to POL00144871. Same day, another email between you and Rodric Williams. The bottom email is Rodric Williams to you saying:
“When We discussed this yesterday, you mentioned this might have been kicking around for [circa] 12 months.
“Can you give me a couple of bullet points on when this first came up and what [the Post Office] did next?”
If we scroll up, we see your response. You say:
“Rodric
“The issue manifested in around 2011 and those [subpostmasters] that suffered sizeable errors (ie ones that were easy to spot) reported the issue immediately.”
Pausing there, so there were subpostmasters who experienced sizeable errors?
Andrew Parsons: Yes.
Mr Blake: So the correspondence we saw before about the two small-value unexplained discrepancies. Alongside those small-value discrepancies, there were large ones?
Andrew Parsons: That’s my – yeah, my distant understanding is there were some larger ones, yes.
Mr Blake: “However as it was any a few branches, Chesterfield didn’t see the pattern in the errors for over 12 months. It was only as more issues were raised and no individual branch-by-branch explanation could be found, that someone (not sure who) realised that it could be an error in Horizon affecting multiple branches.
“I presume that it then took time to engage Fujitsu; investigate the technical causes and determine the effect of the causes; etc.”
So this is a bug that occurred in 2011 that was only realised 12 months later; is that right?
Andrew Parsons: That was – I think that was my understanding at the time, based on what Andy Winn had told me.
Mr Blake: We’re now in 2013, summer of 2013, and you say you presume it took time to engage Fujitsu, so a considerable further period has taken place before subpostmasters have received any correspondence on the issue or received that correspondence explaining the issue?
Andrew Parsons: That’s my presumption at the time, though I just would note that my understanding of this bug is it’s nature was that it was annually reoccurring. So it would only come up once a year, which was part of the context of this.
Mr Blake: So it had happened twice before it was actually spotted?
Andrew Parsons: Correct.
Mr Blake: You say there:
“I presume that it then took time to engage Fujitsu; investigate the technical causes”, et cetera.
Were you aware of the extent to which Fujitsu had been investigating the causes?
Andrew Parsons: Not at this time.
Mr Blake: So, again, if we refer back to those letters that I took you to, where you referred to a thorough investigation, in fact, you personally weren’t aware of the extent of the investigation?
Andrew Parsons: I was working on the instructions provided to me by Andy Winn.
Mr Blake: Did you question those instructions?
Andrew Parsons: I remembered speaking to Andy Winn and discussing the matter but, beyond that, I can’t remember the details of those conversations.
Mr Blake: So we’re still in the summer of 2013, you now, by this stage, know that there was this bug, not just that subpostmasters’ records couldn’t be kept separate from a successor subpostmaster but it was also a bug that went on for a year without anyone noticing and took even more time to resolve; is that right?
Andrew Parsons: Correct.
Mr Blake: So summer 2013, I’m going to put new evidence of suspense bug, you were concerned about its implications for accounting integrity –
Andrew Parsons: Correct.
Mr Blake: – and you had, in an email raised concerns about documenting that?
Andrew Parsons: I’d raised concerns about documenting it in these specific letters, not generally.
Mr Blake: Can we please turn to POL00407496, please. Still in the summer of 2013, 1 July 2013 now. Could we start on the second page, the bottom of the second page. An email from Simon Baker to Rodric Williams:
“Rod
“It would be helpful if we can show that Horizon bugs were discussed openly in our court cases.
“We know that the Falkirk bug was discussed in the Misra case, can you find out if there are any other examples where bugs have been discussed in court.”
That request is ultimately sent to you, and we can see that and your answer, on page 1. So if we go to the top of page 1, we can see, you say:
“Other than the Castleton and Misra, we are not aware of any litigation that has involved an allegation of an actual bug in Horizon.
“However, this is based on anecdotal discussions inside Bond Dickinson.”
Just pausing there, who had you spoken to inside Bond Dickinson?
Andrew Parsons: I don’t recall.
Mr Blake: “Please bear in mind that we have handled [hundreds] of cases over the last 5-10 years for [the Post Office] so (absent a case-by-case review) it’s impossible to say for certain that no [subpostmaster] alleged a Horizon bug.
“We are however confident that no case in the last 2 years has involved an allegation that there is a specific flaw in Horizon.”
Just pausing there, the first paragraph that I took you to refers to an actual bug.
Andrew Parsons: Mm-hm.
Mr Blake: At the third paragraph, we’re talking about a specific flaw. Were those words quite carefully chosen, in that what you’re saying here is an actual bug that has been referred to, for example, by name or that is known about, rather than, for example, a wider problem with Horizon?
Andrew Parsons: I don’t think I meant any difference between those two phrases.
Mr Blake: Well, you were aware that, in that time, subpostmasters had been raising problems with Horizon and that they couldn’t necessarily pinpoint that to a specific or actual bug?
Andrew Parsons: Yes.
Mr Blake: “There are a number of cases handled by our paralegal team that have been put on hold because [a subpostmaster] has alleged problems with Horizon.”
So there are also some that are now on hold because, I think, Second Sight are investigating?
Andrew Parsons: Correct.
Mr Blake: “These cases are suspended pending Second Sight Report. It may be that on closer inspection these cases reveal a specific complaint about an error in Horizon however we would need to undertake a deeper review of each case to determine this.
“On Castleton:
“I have spoken to the lawyer had a conducted this litigation which took place in 2007.”
Can you assist us who it was that you spoke to?
Andrew Parsons: I can’t recall but I believe it would have been Stephen Dilley.
Mr Blake: “The case was principally about accounting records – the Horizon challenges by Castleton were generally uncoordinated and piecemeal. It should be borne in mind that Castleton was unrepresented so there was no logical attack on Horizon.”
You say:
“I’m still looking to Misra and will report back soon.”
So can I add here to my list of things in summer of 2013 that you knew about the Castleton case; you knew in broad terms, although not the specifics, about the Misra case; and you knew that other cases were on hold because of Horizon challenges?
Andrew Parsons: I think the other – I knew both about those cases, and I think the other cases were generally all paused because the Second Sight work was going on.
Mr Blake: You knew that they were paused because they were raising concerns about the integrity of the Horizon system?
Andrew Parsons: That’s what it says there but I can’t recall that now.
Mr Blake: The second Sight Interim Report is then 8 July 2013. I’m going to take you very briefly to that report. The Inquiry has seen it many times. It is POL00099063. Thank you. If we turn to page 6, please. We see there the bugs that are referred to as “defects” in the Second Sight Report. The first is the receipts and payments mismatch problem impacting 62 branches. The second is the local suspense account problem, that’s the 14 branch issue that you had already been dealing with?
Andrew Parsons: I’d been drafting the letters on.
Mr Blake: Yes. 6.10, there’s also another bug, I think that’s the Callendar Square/Falkirk bug. It says:
“POL has informed us that it is disclosed, in Witness Statements to English Courts, information about one other subsequently-corrected defect or ‘bug’ in the Horizon software.”
That was, in fact, the issue that you were looking into on behalf of Rodric Williams, wasn’t it; you were looking into whether there were other bugs that had been disclosed in court cases?
Andrew Parsons: Correct.
Mr Blake: Misra was one you were going to come back to him on; presumably you did come back to him on Misra?
Andrew Parsons: Yes, I believe we had someone review the case.
Mr Blake: Because I am going to add, we’re in the summer of 2013, 8 July, at least three bugs known to you?
Andrew Parsons: I knew of three bugs at that time.
Mr Blake: Yes. Cartwright King’s advice on Gareth Jenkins now. That was dated 15 July 2013. You’ve dealt with it in your witness statement, paragraph 87. Could we please start with WBON0000133. If we can start on page 4, please, bottom of page 4, 16 July 2013. Susan Crichton emails you and she says:
“Andy – we received a letter from the [it should be ‘CCRC’, Criminal Cases Review Commission] yesterday which I have asked Cartwright King to review. Their advice feels odd to me as if given on a take it or leave it basis and I am not comfortable that’s particularly useful in this context. Could we discuss, I am happy to go to another firm that specialises in criminal law or a barrister, somehow it feels as if there is a conflict here which I am not sure I understand.”
Over the page to page 3, please. There’s advice given by Gavin Matthews. So he was your supervising partner, was he, at this stage?
Andrew Parsons: Correct.
Mr Blake: He says:
“I know that you are with Simon and Andy today so I have taken an initial look at this for you.”
So on 16 July, is “Andy” a reference to you? Were you meeting with Susan Crichton on 16 July?
Andrew Parsons: I think that is a reference to me but I don’t recall that meeting.
Mr Blake: He says:
“I agree with you that I would expect the advice to [be] more prescriptive, ie you need to say this in response.
“I do also have concerns from a civil point of view over a couple of statements in the draft response.”
So this is the draft response to the Criminal Cases Review Commission that had been drafted by Cartwright King. He says:
“In particular, where it states:
“‘He has done so both to [the Post Office] and, in expert witness statements and oral evidence, to the court. In particular he has: attested to the presence of defect detection and rectification systems; the robustness of the prosecution audit trail; and stated that, in his expert opinion, Horizon accurately records and processes all information submitted into the system. The Second Sight Interim Report demonstrates that this was not the case’.”
So that’s there a reference to Gareth Jenkins, isn’t it?
Andrew Parsons: Yes.
Mr Blake: Yes. Your supervising partner there is raising a concern about that being included in the letter to the Criminal Cases Review Commission?
Andrew Parsons: Yes.
Mr Blake: He says:
“I consider this to be unhelpful, given that the [Second Sight] report found there to be no systemic problems with Horizon.
“It shows the need for all [Post Office] letters (criminal and civil) to contain a consistent message – so that the right hand and the left hand know what they are each doing.”
Were you aware that that was the advice from your firm: that there needed to be greater coordination between the criminal and civil sides?
Andrew Parsons: I was copied to this email.
Mr Blake: Yes, so you were aware –
Andrew Parsons: I was aware of –
Mr Blake: – not just from this email but perhaps from conversations with your supervising partner or –
Andrew Parsons: I don’t believe before this point my firm had any involvement in the criminal side, so there may have been no conversations before this email was sent.
Mr Blake: So, from this point on, the approach of your firm was, and the advice to the Post Office was, that “We need to coordinate more between the criminal and the civil side”?
Andrew Parsons: I think that is an early comment from Gavin, which will have been the first time we’ve been asked to consider the crossover between the civil and criminal side and, as he goes on to say later down, he notes he’s not a criminal lawyer and he suggests that they get advice from a criminal barrister.
Mr Blake: Can we turn, please, to the first page. There’s another email from Gavin Matthews. You were presumably at this stage very much aware of the Gareth Jenkins issues because you were meeting Susan Crichton that very day?
Andrew Parsons: I think I had been informed a few days earlier that there was something to do with Gareth Jenkins but I wasn’t fully aware of the issues until I received a copy of the advice from Cartwright King.
Mr Blake: Thank you. We will go through that advice shortly.
Gavin Matthews emails Susan Crichton and says:
“Susan
“thought I would give you my preliminary views on this pending our call …”
Were you involved in a call on that day? I know you met her, I think, on the 16th. Do you recall a call the next day?
Andrew Parsons: No. At this time, I was mainly focused on looking at the response to Second Sight, because their report had just been published.
Mr Blake: “1. [The Post Office] needs to look at the response to the CCRC in the context of the overall strategic advice received from [Cartwright King] (including their advice regarding [Gareth Jenkins/Fujitsu]).
“2. If [the Post Office] suffers losses directly referable to [Gareth Jenkins’] failure to comply with his obligations as an expert witness, there are 3 potential entities against whom [the Post Office] may have an action – [Gareth Jenkins, Fujitsu and Cartwright King] …
“4. Given that [Cartwright King] are potentially liable to [the Post Office] for any failure on the part of [Gareth Jenkins/Fujitsu], I do think it would be sensible to get a criminal QC to oversee the strategic advice being given [Cartwright King] – I’m not saying that [Cartwright King] have definitely done anything wrong but they may have done and are trying to blame [Gareth Jenkins/Fujitsu] so it is very important to check that their tactical approach is now overseen by someone completely unbiased.”
We will see, in due course, that advice is sought from that criminal QC. We’ll look at that advice. Could we please, first though, turn to WBON0000770. If we scroll down slightly, we can see that Martin Smith sends Susan Crichton the Simon Clarke Advice on Gareth Jenkins and, if we scroll up, please, we can see that Susan Crichton sends you that advice and that’s that same day, 17 July 2013.
Can we please turn to the Advice and that is POL00006357. This is Cartwright King’s advice, the Clarke Advice on Gareth Jenkins, entitled “Prosecutions – Expert Evidence”. Could we please start on page 5, paragraph 14, “Expert evidence relied upon by [the Post Office] in prosecuting offences”:
“For many years both [Royal Mail Group] and latterly [the Post Office] has relied upon Dr Gareth Jenkins for the provision of expert evidence as to the operation and integrity of Horizon.”
So you were aware at this stage that the Post Office had been relying on Gareth Jenkins for a number of years to provide expert evidence?
Andrew Parsons: That’s what I took from this advice, yes.
Mr Blake: Paragraph 15:
“Dr Jenkins had provided many expert statements in support of [the Post Office and Royal Mail Group] prosecutions …”
So lots more than one, a number of different expert statements, is that what –
Andrew Parsons: That’s what it says there.
Mr Blake: Was that your understanding?
Andrew Parsons: Yes, having read those words.
Mr Blake: Thank you. Could we turn to page 13, please. We have the conclusion, paragraph 37:
“What does this all mean? In short, it means that [and that should read ‘Gareth Jenkins’] has not complied with his duties to the court, the prosecution or the defence.”
Paragraph 38:
“The reasons as to why [Gareth Jenkins] failed to comply with this duty are beyond the scope of this review. The effects of that failure however must be considered. I advise the following to be the position:
“[Gareth Jenkins] failed to disclose material known to him but which undermines his expert opinion. This failure is in breach of his duty as an expert witness.
“Accordingly [his] credibility as an expert witness is fatally undermined; he should not be asked to provide expert evidence in any current or future prosecution.”
If we scroll over the page, please. We see there that first bullet point on the page, it says:
“… not least by reason of [Gareth Jenkins’] failure, material which should have been disclosed to defendants was not disclosed, thereby placing [the Post Office] in breach of their duty as a prosecutor.
“By reason of that failure to disclose, there are a number of now convicted defendants to whom the existence of bugs should have been disclosed but was not. Those defendants remain entitled to have disclosure of that material notwithstanding their now convicted status.”
The next bullet point:
“Further, there are also a number of current cases where there has been no disclosure where there ought to have been. Here we must disclose the existence of the bugs to these defendants where the test for disclosure is met.”
A very serious advice, one that you presumably took very seriously at that time?
Andrew Parsons: I read it but this was within the remit of the criminal lawyers to deal with.
Mr Blake: It’s not just dealing with the existence of bugs, that we’ve already seen you were aware of throughout the summer of 2013 but, by now, potential miscarriages of justice. Was that not something that played on your mind at all?
Andrew Parsons: It was a serious matter but it looked like to me it was being addressed by Cartwright King and then subsequently Post Office understood the seriousness, which is why they brought in Brian Altman.
Mr Blake: There were the subpostmasters who had been convicted on the back of that evidence. Presumably, irrespective of your day job, you were concerned about that?
Andrew Parsons: I could see the seriousness of the matter.
Mr Blake: Can we turn to POL00083932, please. This then sets in motion a number of different actions, one of which is this regular call regarding Horizon issues. Do you recall those regular calls?
Andrew Parsons: I recall the calls as a concept. I don’t recall any of the individual ones.
Mr Blake: Here we have the first of those, which was presumably significant in the sense that it was the very first. 19 July 2013, you are named as an attendee; do you recall attending that first regular call?
Andrew Parsons: I don’t recall attending that call but I have no reason to doubt that I was there.
Mr Blake: There are two entries from you that are recorded in these minutes. Can we please look at the first, which is on page 2. It says:
“Andrew Parsons … Commented on the need to limit public debate on the Horizon issue as this may have a detrimental impact on future litigation.”
Over the page, please, to page 4, second entry on page 4:
“Andrew Parsons … Stated all lists and spreadsheets should be sent to Rosie Gaisford for [collection].
“Spoke about emails, written comms, etc … If it’s produced it’s then available for disclosure, if it’s not then technically it isn’t.”
Is that accurate?
Andrew Parsons: I don’t believe this minute is a verbatim record of what was said and so I suspect some of the context or wider language used has been lost somewhere. I don’t think it would be unsurprising for me to have given Post Office advice on what its civil disclosure duties might be, and that’s what’s being given there.
Mr Blake: Do you see the civil disclosure duty to be, if it isn’t produced, it’s then available for disclosure; if it’s not, then technically it isn’t?
Andrew Parsons: This is talking about the fact that in – civil rules of disclosure are attached to documents, which is information that’s recorded.
Mr Blake: Can you see that it might be interpreted as advice that people shouldn’t be writing things down?
Andrew Parsons: No.
Mr Blake: Martin Smith has given evidence to this Inquiry and he said that you also spoke at the beginning of the meeting, after Rob King, and you raised concerns about difficulties which could arise following circulation of minutes. Do you recall advising of concerns about the circulation of minutes?
Andrew Parsons: I don’t recall advising on minutes at all in these meetings. These calls were set up by the criminal lawyers and they were driving the process.
Mr Blake: Could we please turn to POL00006799, please. This is a contemporaneous piece of advice from Cartwright King, it’s what we know as the “shredding advice” or what’s been referred to as the “shredding advice”, disclosure, the duty to record and retain material. Over the page, please, it summarises the information that’s been given to Mr Clarke. It says:
“At some point following the conclusion of the third conference call, which I understand to have taken place on the morning of Wednesday, 31 July, it became unclear as to whether and to what extent material was either being retained centrally or disseminated.”
If we scroll down, please, to point (iii) he summarises the various bits of information that he has received, and he says:
“Advice had been given to [the Post Office] which I report as relayed to me verbatim:
“‘If it is not minuted it’s not in the public domain and therefore not disclosable.
“‘If it’s produced it’s available for disclosure – if not minuted then technically it’s not’.”
Again, those are the words, in effect, that we saw in those minutes a moment ago. This is a contemporaneous document. It was drafted/written on 2 August 2013. That sounds very much like the advice that’s attributed to you in that first meeting; do you agree with that?
Andrew Parsons: No, I think the wording is different between the two documents and, as I say, I didn’t produce those minutes, and I didn’t approve those minutes. I don’t thin Simon has been accurately recorded in them. To be clear, I never advised Post Office that they should not minute those calls and, until the suggestion that there was some connection between what I had said and this advice was raised in this Inquiry, I had no idea that there was any connection with anything I’d done.
Mr Blake: There is a body of evidence that the Inquiry has seen that suggests that your advice to the Post Office was not to keep a paper trail?
Andrew Parsons: I disagree. I did not advise Post Office against minuting those meetings.
Mr Blake: There is some evidence that you advised caution in minute taking; do you agree with that?
Andrew Parsons: In the context of this, I did not advise Post Office not to minute those calls.
Mr Blake: Do you think that those who were present at meetings with you could have got the impression, from the advice that you were giving at those meetings, that they should be careful about writing things down?
Andrew Parsons: I think they would have got the impression that they would be subject to disclosure duties, which is what I’d advised them. Had I said something to the effect that could have been interpreted to mean that they shouldn’t be taking minutes, I would have expected Martin Smith, from Cartwright King, who was on those calls, to have said something, and nothing was said.
Mr Blake: That can come down. Thank you. Do you think that you gave advice to the Post Office that they shouldn’t write things down because they would be disclosable?
Andrew Parsons: No.
Mr Blake: Could we please turn to POL00145716. This is an issue we’re going to come back to but, given your answer just now, I would like to give you the opportunity to address it. If we start on page 4, please, around the same time, July 2013, 24 July, the bottom of page 4, Susan Crichton emails you and says:
“Andy could you take a look at this … draft letter to go to our insurance broker regarding the Horizon issue. I have not looked at it.”
Your response is above, you say:
“The letter does nothing more than put [the Post Office’s] insurers on notice of the Horizon issues. It’s very bland. My only hesitation is whether it is strictly necessary to do. From PR perspective, it would look bad if this got into the public domain – sign of guilt/concern from the Board.
“I’d be happy to have one of our insurance lawyers to look over the D&O policy to see if [the Post Office] is required to notify the insurers. If not, then we might want to hold fire on this.
“I would recommend tweaking the first paragraph. The current version suggests there are problems with Horizon – when at present there are no systemic problems to report.”
Over the page, please, can we go to page 1, there comes a time when you’ve spoken to the lawyers who looked over the D&O cover. You say as follows:
“I’ve spoken to one of our insurance lawyers [regarding] the D&O cover.”
It is the last three paragraphs I want to look at, you say:
“The risk of notification is that it would look bad for [the Post Office] if it ever became public knowledge that [the Post Office] that notified its insurer.
“To reduce this risk, it is recommended that the rather than sending a formal written notification, [the Post Office] speaks to Chartis (renamed AIG) and verbally notifies them so as not to leave a paper trail. In our experience, AIG may be prepared to accept a verbal notification.
“[The Post Office] should make expressly clear to AIG that the notification is subject to litigation privilege (this should help protect disclosure under [the Freedom of Information Act]).”
Are you not there, in July 2013, giving advice to the Post Office that they shouldn’t write something down, that they should communicate it only verbally?
Andrew Parsons: In the context of this insurance point but, earlier, we were talking about the minutes of those calls.
Mr Blake: My question was much broader earlier. I said to you “Have you ever advised the Post Office” –
Andrew Parsons: In which case –
Mr Blake: – “not to write something down”, and here we are, July 2013, precisely the same period in which that advice is attributed to you, doing exactly that, aren’t you?
Andrew Parsons: In which case, I apologise because I misunderstood your question. I thought you were asking it in the context of the minutes of the Horizon call.
Mr Blake: So you are accepting that, in July 2013, at the same period of time you did advise the Post Office not to communicate in writing to their insurer, not to notify their insurer, because that would become disclosable but, for some reason, the minutes that are attributed to you, regarding very similar advice, that those are wrong, are they?
Andrew Parsons: I don’t accept it was very similar advice. The advice that was recorded in those minutes, which, as I said, they’re not verbatim minutes and I’m not sure of their accuracy, simply records the position that documents need to be disclosed if they’re created.
This is talking about a different matter, which is communications with the insurance company and, actually, ultimately, off the back of this, a written notification was provided to the insurers.
Mr Blake: Yes, but your advice in July 2013, the same period in which this first Horizon weekly call is taking place, was “Don’t notify something because it will be disclosable”. Isn’t that the advice you are giving in relation to minutes on the 19 July 2013?
Andrew Parsons: No. They are two separate pieces of advice in different contexts where I say different things.
Mr Blake: They are remarkably similar though, aren’t they?
Andrew Parsons: No, I don’t believe they are. I think the first one is talking about the disclosability of documents. It doesn’t say anything in that minute about me saying that minutes should not be kept or documents should not be produced. And then, we’re now ten days later, talking in a different context about insurance issues.
Mr Blake: But it’s the same point: that if you write things down about Horizon, about problems with Horizon, it might become disclosable.
Andrew Parsons: But that’s correct.
Mr Blake: You shouldn’t do that?
Andrew Parsons: Apologies, that is correct.
Mr Blake: That is correct?
Andrew Parsons: Well, that is the state of the law, if you write documents down you create documents, they can become disclosable.
Mr Blake: Therefore, you shouldn’t create such documents?
Andrew Parsons: I disagree.
Mr Blake: But that is, in fact, what you’re advising in relation to the insurance?
Andrew Parsons: As I say, it depends on the context in which the question is put.
Mr Blake: Okay, let me take you to your explanation in your witness statement. So it’s WITN10390200.
Thank you, it’s page 64, paragraph 105. You say as follows:
“I do not understand the reference to ‘produced’ in the comment that is attributed to me. The word ‘produced’ is not a word I would ordinarily use in this context. I think of the word ‘produced’ in the context of running a ‘production’ of documents from a data room (which is a technical eDiscovery process), which are then given to the other side in civil litigation as part of disclosure. I would not use this word when describing the creation of new documents by my client which are then potentially disclosable. The use of this word suggests to me that the note is not an accurate record of precisely what was said.”
So I’ll just repeat the words that are in the minutes. It spoke about:
“… emails, written comms, etc.
“If it’s produced, it’s then available for disclosure. If it’s not, then technically it isn’t.”
Your explanation in your witness statement is “That doesn’t sound like me, I don’t use the word ‘produced’ in that context”; is that right?
Andrew Parsons: I generally don’t. I consider it in the context of running productions of documents.
Mr Blake: That’s quite an elaborate explanation, isn’t it, that’s set out at paragraph 105?
Andrew Parsons: No, I think it’s also reflecting – if you look at the minute, it’s clearly a short précis of what was said. It doesn’t stand to be a verbatim minute and, therefore, I think there is probably some inaccuracy in the minute taking.
Mr Blake: Your basis for saying that the minute is inaccurate is, amongst other things, that you don’t use that word in that context?
Andrew Parsons: Amongst other things but, also, reading the minute as a whole, I think it’s obvious that it’s not a verbatim minute.
Mr Blake: Can we please turn to FUJ00081921. The context of this email does not matter for now, it’s a 2019 email, but let’s just have a look at that middle email. It’s an email from you. You say, as follows:
“Pete, Matthew, Dave
“As part of the Court process, the experts on both sides have to meet to try to agree a joint statement on the key issues in the case. This has resulted in them producing 4 Joint Statements. These statements are produced without the involvement of the legal teams, hence why we haven’t sent these over to [Fujitsu] for comments before now.”
Could we turn, please, to POL00253345. Thank you.
Another email from you, again context doesn’t matter. Turn over to the third page, please. There are points there:
“The draft order also sets out our proposed directions to the March 2019 trial. These split out into four phases …”
Then we look at Phase 3:
“… the experts produce their principal reports into Horizon.”
“Phase 4 … supplemental reports are produced in light of anything coming out [of] the Common Issues trial.”
Can we please turn to POL00000444. It’s coming up. Your witness statement in the Alan Bates case, fourth witness statement, if we scroll down. Can we please turn to page 24, bottom of page 24 of your witness statement in those proceedings, paragraph 117. In the second half of that paragraph, if we scroll down slightly, you say:
“To attempt to locate all of the training materials, Post Office would need to contact all trainers since 2000 to understand what materials were produced and where they were kept.”
That’s a witness statement to the court verified by a statement of truth. Do you want to revisit that part of your witness statement in these proceedings which said that the word “produced” is not a word that you would use in that kind of a context?
Andrew Parsons: I think my statement says I would not ordinarily use this word. I clearly have used that word on occasion.
Mr Blake: Do you, therefore, want to revisit whether that minute reflects the advice that you gave to the first of those meetings, that, if it’s produced, it’s available for disclosure; if it’s not, then technically it isn’t?
Andrew Parsons: I still believe that that minute is not a full and accurate record of what was said in that meeting. I think you only have to read the minute to realise it’s not a verbatim record.
Mr Blake: Is it still your position, therefore, that you didn’t advise caution in relation to the creation of minutes because of their potential disclosure?
Andrew Parsons: I did not advise Post Office against minuting those meetings.
Mr Blake: Thank you, sir. I think that’s an appropriate time for our first morning break.
Sir Wyn Williams: All right. Yes. What time shall we resume?
Mr Blake: 11.05.
Sir Wyn Williams: Yes, 11.05 it is.
Mr Blake: Thank you.
(10.56 am)
(A short break)
(11.06 am)
Mr Blake: Thank you, sir. Can we please move on to WBON0000777. We’re still in July 2013, 23 July. If we scroll down to the bottom of that first page, you are, by this stage, involved in corresponding with the Criminal Cases Review Commission. You say:
“Susan, Jarnail …”
So now Susan Crichton and now Jarnail Singh, that wasn’t a name you mentioned at the beginning. He was a criminal lawyer at the Post Office –
Andrew Parsons: Yes.
Mr Blake: – and you’re now liaising with him:
“Please find attached a draft holding letter to go to the [Criminal Cases Review Commission]. This letter probably needs to go from Paula.
“This letter just holds the current position until we have spoken to Brian Altman tomorrow.”
Brian Altman, criminal counsel, so we’re now liaising with Post Office’s criminal lawyer, and making reference to criminal counsel who is going, please, advising on the Cartwright King processes, et cetera.
Andrew Parsons: Yes.
Mr Blake: Could we, please, have a quick look at that letter. It’s POL00099346. So this wasn’t just a holding letter in the sense of “We’ll get back to you”. There is some substance in the response. Could we scroll down, please. This is 23 July, you’re meeting Brian Altman the next day and it’s in reference to the Criminal Cases Review Commission, who wrote to the Post Office – we’ve seen that letter:
“This letter briefly explains the background to the matters raised in your letter and steps currently being taken by [the Post Office]. I anticipate being able to provide you with a more detailed response by the end of this week.”
That’s because you’re going to have a discussion, I think, with Brian Altman and, hopefully, send a further letter; is that right?
Andrew Parsons: That was the intention.
Mr Blake: Yes.
“At the centre of [the Post Office’s] business is an IT system known as Horizon. The system is used by over 11,000 subpostmasters … As you will be aware, [the Post Office] has commissioned an independent firm of forensic accountants (called Second Sight) … The aim of this report is to highlight any issues in Horizon …
“This month Second Sight released an Interim Report highlighting a number of issues that required further investigation but also reached the interim conclusion that there were no systemic problems with Horizon.
“The data stored on Horizon is sometimes used by [the Post Office] in the prosecution of criminal offences … Historically [the Post Office] was a division of the Royal Mail Group, however Post Office was separated out … on 1 April 2012 and each became separate and unrelated organisations. Prior to separation it was [Royal Mail Group] who conducted the prosecution of criminal offences committed by subpostmasters and/or their clerks, however post-separation [the Post Office] assumed the role of prosecutor.
“We are now looking at Second Sight’s findings in detail and are also investigating whether those findings have an impact on any historic or ongoing prosecutions. I hope to be able to send you a more comprehensive response on these matters by the end of this week.”
That letter ultimately went out.
Sir, I’m not going to take the witness to that letter but, for your record, it is POL00116112. There is then a further letter that is sent, again for your record POL00297998.
So I’m going to add to my list of things that happened in the summer of 2013 that, by that stage, you were also liaising with the CCRC on Post Office’s behalf.
Andrew Parsons: I wouldn’t accept that characterisation of it. We drafted this one – or I drafted this one letter, which I think is a holding letter, sets out some very basic background information. Other than that, we were bringing in Brian Altman to advise on the CCRC approach.
Mr Blake: Okay, so let’s change “liaising” to corresponding with the CCRC. You were corresponding or were drafting correspondence to the CCRC?
Andrew Parsons: I accept that I drafted this one letter.
Mr Blake: That is correspondence, isn’t it?
Andrew Parsons: Yes.
Mr Blake: Yes. Okay, and you were also, by that stage, liaising with criminal counsel to take matters forward?
Andrew Parsons: We were acting as a conduit, so that Post Office could get advice from criminal counsel.
Mr Blake: You were meeting with Brian Altman, discussing matters relating to the Criminal Cases Review Commission with Brian Altman; weren’t you?
Andrew Parsons: If we’re talking July and August, I’m not sure if I ever actually met Brian in that period.
Mr Blake: Okay, let’s turn back to that email, the covering email, WBON0000777. It’s the bottom email, you say:
“Please find draft holding letter …
“This … just holds the current position until we have spoken to Brian Altman tomorrow.”
The suggestion being that there was going to be a meeting with Brian Altman the next day.
Andrew Parsons: There was. I just can’t recall whether I attended it or not.
Mr Blake: Okay. So July 2013, corresponding with CCRC, and coordinating with Brian Altman KC?
Andrew Parsons: I would say that we were acting as a conduit for Brian’s advice.
Sir Wyn Williams: Who actually instructed Mr Altman; was it the Post Office Legal team directly or was it Bond Dickinson, or was it somebody else?
Andrew Parsons: It was Bond Dickinson.
Sir Wyn Williams: Right. Fine, thanks.
Mr Blake: In fact if we turn to WBON0000393, at the bottom of the page we see Mr Altman, on 2 August, so shortly thereafter, sending Gavin Matthews, who was your supervising partner, and Simon Richardson, who I think ultimately became the Chair of Womble Bond Dickinson; is that correct?
Andrew Parsons: Correct.
Mr Blake: So two partners at Bond Dickinson, Mr Altman is sending them his observations on the terms of reference and interim review of Cartwright King’s current processes. So, very clearly, it was his view that they were the instructing solicitors. In fact, he doesn’t even copy in the Post Office to that correspondence.
Andrew Parsons: Bond Dickinson was Brian’s instructing solicitors.
Mr Blake: Yes. If we scroll up, we can see Simon Richardson sending that to you as well. He said, “You ought to have this too”, if you scroll up to the top, please.
Can we now, please, turn to POL00021981 and those were the observations that were sent to you from Mr Altman.
If we scroll over the page, the Inquiry has been through this but I will just highlight a few matters that are raised in those observations. Thank you. He sets out there that he understand the terms of reference are as follows. The first:
“To prepare by 5 August an interim review of Cartwright King’s current process …
“(2) To review, and advise [the Post Office] in writing on [a number of matters].”
The first is:
“Its strategy and process for reviewing past and current criminal prosecutions in light of Second Sight’s Interim Report and/or the role of Gareth Jenkins and his impact on any possible appeals;
“b) Its response to the [Criminal Cases Review Commission].”
So that is the further letter, further to your holding letter:
“c) The identification of any flaws in the process of, or from the evidence arising from, the review of a statistically significant number of past prosecutions in which Horizon has been an issue in the proceedings.”
Then we have a third there:
“To review, and, if appropriate, to recommend changes to, the existing investigations and conduct of future prosecutions by [the Post Office], including, if appropriate, the investigative/prosecutorial role being undertaken by another authority …”
If we scroll down and over to page 3, please, we can see there is a footnote at the bottom of page 3 and he says as follows, footnote 4:
“It is for [the Post Office] and those instructing me to determine whether or not it is only the efficacy (ie effectiveness) of past prosecutions etc that I am being asked to consider with the Board, or in fact the potential safety of past convictions following [the Post Office] prosecutions (ie whether, in my judgment, the Court of Appeal is likely to ‘think that the conviction is unsafe’: section 2 of the Criminal Appeal Act). This is an important distinction. If it is the latter then the appropriate term is ‘safety of past convictions’. I note in this regard of paragraph 24 of Simon Clarke’s Ishaq case review”, et cetera.
I don’t need to read any more of that. But he says there:
“It is for the Post Office and those instructing me to determine.”
So it seems as though Bond Dickinson weren’t just providing a conduit but it was certainly Brian Altman’s understanding that Bond Dickinson at least had some input on the scope of that instruction. Would you accept that?
Andrew Parsons: At this time, I was primarily focused on dealing with the response to Second Sight. This work was being conducted by Gavin Matthews and Simon Richardson, so I find it difficult to comment on exactly what the role was. My understanding was that we were a conduit for his advice.
Mr Blake: Well, looking at this, does it seem as though, does it appear to you, that, in fact, it was more than just a conduit?
Andrew Parsons: It appears from those words that that’s what Brian understood.
Mr Blake: Could we please turn to POL00021980. An email from Gavin Matthews, so your colleague is here advising on the terms of reference:
“Dear All
“Please find attached two separate terms of reference for Brian Altman QC as amended in response to his observations document which I also attach for ease of reference.
“Please note that [the Post Office] needs to decide on the issue of whether he is to be asked to report to the Board on the efficacy or safety of past prosecutions – see footnote 4 on page 3 of Brian’s observations.
“Simon’s and my view is that he shouldn’t report on the safety of past convictions for two reasons:
“[1] this is likely to involve a more significant analysis of lots of cases, thereby delaying his report.
“[2] and potentially blurs the boundary between [Brian Altman] and [Cartwright King’s] respective roles.
“The terms of reference need to be finalised in time for Brian’s return from holiday.”
It looks, from that email, that your supervising partner was more than just a conduit for Brian Altman’s instructions; he was, in fact, advising on the scope of Brian Altman’s investigations, wasn’t he?
Andrew Parsons: It appears to a very limited extent there, yes, but I would note that Susan Crichton would have been well aware that Gavin and Simon were not criminal lawyers.
Mr Blake: Technically correct but they were involved in the instruction, and directing the instruction and formulating the instruction of a criminal barrister?
Andrew Parsons: They were – as I say, at this time, I was working on a different workstream. So I don’t have full visibility as to how they went about it but I accept that my firm were the ones that instructed Brian, but my recollection, it’s distant and dim now, is that the scope of the work was largely led by Brian, as instructed by Post Office.
Mr Blake: A barrister is instructed to carry out work. Here we have a firm to solicitors who are instructing him, advising on whether a criminal KC/QC looks into the safety of convictions. That’s what’s happening here, isn’t it? A fair reading of this email: the instructing firm is advising on whether a criminal silk is looking into the safety of convictions or not?
Andrew Parsons: I accept that that email expresses a view on that question.
Mr Blake: Is it that difficult to accept what I’m saying in that respect?
Andrew Parsons: I think the context is really important, that we were instructing Brian largely because it made it administratively more easy for Post Office, and I don’t think Post Office were expecting Gavin, Simon or I to give them any advice on criminal law, because they knew we weren’t criminal lawyers. And I think that context is really important. I think Susan would that have had – probably Susan, in the context here – would have read that as a practical view but I don’t think she would have been led by the advice she was getting from WBD on criminal matters.
Mr Blake: They’re the instructing firm and they are there, very senior partners – so Gavin Matthews and you have Simon there, who, as we know, went on to become the Chair – by that stage, 2013, was he a particularly senior partner within the firm –
Andrew Parsons: I think he was the client relationship partner for Post Office.
Mr Blake: – giving a view as to whether Mr Altman should be reporting on the safety of past convictions?
Andrew Parsons: I accept they were giving a view but I think the context of what we were doing is very important.
Mr Blake: Can we please turn to POL00298417. You’re copied into this email that we’ve just been looking at and, now, if we scroll down, we’re at 20 August 2013 and Rodric Williams is, in fact, now corresponding with Susan Crichton and you. So Gavin Matthews is not a recipient of this email. Rodric Williams says as follows:
“All,
“I would like the [terms of reference] to include that [Brian Altman QC] consider and advise on how we satisfy the prosecutor’s continuing duty of disclosure when ‘issues’ with Horizon will continually be it raised.”
So he asks a series of questions that he would like Brian Altman to be looking into. By way of example, we can look at the third bullet point:
“Is there anything we can do to limit the need to review all past prosecutions each time a disclosable issues arises?”
Certainly, Rodric Williams, by 20 August, seemed to think that you were a contact point for advising on the terms of reference or assisting with the amending the terms of reference.
Andrew Parsons: I – my distant memory is Gavin might have been on leave for a few days.
Mr Blake: So while your supervising partner was away, while you were working on issues relating to Second Sight, having been copied in to previous correspondence about Brian Altman’s terms of reference, you are now a sole point of contact relating to those terms of reference?
Andrew Parsons: Simon Richardson is also copied on this email.
Mr Blake: Yes. But you are in the “To” column?
Andrew Parsons: I am. Rodric would have known me more than he knew Simon, which would have explained why he addressed it to me and only copied Simon.
Mr Blake: So can I add to my list of the summer of 2013 that, by August 2013, you were involved with Brian Altman QC’s terms of reference?
Andrew Parsons: I think that overstates the position. My recollection is that I had very little involvement in the terms of reference but I note that these documents were only sent to me a couple of days ago and I’ve not had an opportunity to go back and check the position.
Mr Blake: It wasn’t so long ago. Are you able to recall, the summer of 2013, receiving an email relating to the terms of reference for Brian Altman? Is that likely something that you would have been receiving and something that you likely would have given an answer to?
Andrew Parsons: I would have been copied in on various emails but, at this time, the work around Brian’s terms of reference was being led by Gavin and Simon and not me.
Mr Blake: Would you have read this email?
Andrew Parsons: Yes, I suspect I would have read it.
Mr Blake: Would you have been aware that the Post Office wanted to change the terms of reference to look at the prosecutor’s continuing duty of disclosure?
Andrew Parsons: I wasn’t that close to the issues to have identified those points.
Mr Blake: Do you think that your firm were competent enough to be dealing with issues relating to the prosecutor’s duty of disclosure?
Andrew Parsons: As I said, we were acting as a conduit. So I would have expected these types of issues to have been passed back to Brian for him to consider.
Mr Blake: What does a conduit involve, though? I mean, is it simply a post box; is it something more than that?
Andrew Parsons: Largely, we were acting as a way of getting instructions up to Brian and answers back down again. On occasion, I can see that views will have been expressed on points but I think, again, the context is really important. Post Office were fully aware that Simon, Gavin and I were not criminal lawyers.
Mr Blake: Do you think it is right for your firm to be assisting in something that is outside of their competence?
Andrew Parsons: It is outside of our core competence but instructing counsel is something we understand and, of course, we have the context of the whole situation, being involved on the civil side.
Mr Blake: So if your firm were involved in advising on whether Brian Altman’s terms of reference should include the prosecutor’s continuing duty of disclosure, do you think that’s something they could have advised on?
Andrew Parsons: I don’t – personally – I can’t speak for Simon and Gavin but I wouldn’t feel comfortable advising on that. I can see a view may have been offered but, ultimately, I think all questions were deferred to Brian to consider.
Mr Blake: What’s the difference between a view of a lawyer and advice from a lawyer?
Andrew Parsons: I think one of them is offering perhaps some pragmatic thoughts, as opposed to definitive advice on the position.
Mr Blake: How would a client distinguish between pragmatic thoughts and actual legal advice?
Andrew Parsons: By the nature of the way it’s given.
Mr Blake: What do you mean by that?
Andrew Parsons: If we go back to the last email, what you’ve got is an email that something that says something to the effect – I haven’t got it in front of me now – that says these are Simon’s and Gavin’s views and couple of bullet points.
Mr Blake: Do you think that nuance is understood by clients?
Andrew Parsons: I think it would have been understood by Post Office, yes.
Mr Blake: I said I’d come back to the insurance notification issue and I’m going to turn to that now but it’s POL00021991.
Now, it’s that bottom email that I’d like you to look at but you can ignore the date there, because we’re still, actually, in the summer of 2013, is the document that I want to take you to. You’re forwarding this particular document to David Oliver and Chris Aujard on 12 March 2014.
We can see there you’re attaching a number of different documents. One is a settlement presentation, and we’ll come to that settlement presentation, and you say:
“This presentation is for a talk I gave to what was at the time the Sparrow steering group.”
But it’s the third one that I want to take you to now “Insurances risks note”:
“This note had the dual purpose of advising the board (its contents were later reflected in a Board paper) and acting as notification to [the Post Office’s] insurers – hence why this doesn’t look like a traditional piece of legal advice.”
You refer there to the contents being reflected in the Board paper. Did you see the Board paper?
Andrew Parsons: I have looked at that sentence again and I think that sentence is wrong because I can’t find any record of that paper going to the Board.
Mr Blake: Thank you. It doesn’t look like a traditional piece of legal advice. That’s your words. Let’s turn to it and have a look at it. POL00021996.
So why do you say in that covering email that it doesn’t look like a piece of legal advice?
Andrew Parsons: Just because of the way it was drafted. This note was drafted to notify Post Office’s insurers.
Mr Blake: How would legal advice act as notification to an insurer?
Andrew Parsons: I don’t think I’m suggesting that I – that it was. I – what I’m trying to say here is this note was drafted for the purpose of notifying Post Office insurers of those issues that are set out in this note. I don’t think it actually gives advice, say, on the merits of the position or what needs to happen next, or things like that, which you would traditionally expect to see in a piece of legal advice.
Mr Blake: If you were the insurer and you saw “Bond Dickinson” on the top right-hand corner, you saw “Confidential & Legally Privileged, Common Interest Privilege, Litigation Privilege”, was it not designed to look like legal advice?
Andrew Parsons: I don’t believe it was designed to look like legal advice.
Mr Blake: What do you mean by common interest privilege there?
Andrew Parsons: In the sense that, if there was a claim against Post Office, which was an insured claim, then there may be a common interest between Post Office and its insurers.
Mr Blake: So the common interest there is between the Post Office and the insurer?
Andrew Parsons: That’s what that reference was, from memory.
Mr Blake: And was that designed to ensure that this document was not disclosable because it was covered by common interest privilege between Post Office and its insurer?
Andrew Parsons: We considered that question and, on balance, I think we thought it probably was privileged communication in its nature to the insurers, but it could be challenged.
Mr Blake: Was one of the reasons for adding “Common Interest Privilege” at the top there to try and cover it in a blanket of privilege?
Andrew Parsons: It was to indicate that we thought there was – common interest privilege might apply to this document.
Mr Blake: It doesn’t say might be common interest privilege?
Andrew Parsons: I think it’s just a heading to a document. It’s designed to indicate to the reader that this document could attract common interest privilege.
Mr Blake: Or “is considered to attract common interest”?
Andrew Parsons: No –
Mr Blake: You wouldn’t add it if you’d didn’t think there was a reasonable argument –
Andrew Parsons: That’s fair. At this point, my view is I thought this document would attract common interest privilege but we also thought that could be challenged later.
Mr Blake: Can we please scroll down this document. We saw earlier that email about concerns you had about notifying the insurer in writing that it could become disclosable. So the reason behind this being in the form that it is is that that was an attempt to cloak it in privilege, thereby not disclosing it?
Andrew Parsons: The – whether or not of the document is privileged turns on its nature and the purpose for which it was sent. I think lawyers, where they think a document is privileged, will often mark them as privileged but marking a document as privileged doesn’t make it privileged.
Mr Blake: But you intended to be covered by privilege. As in, this letter, if it’s not advice, if it’s not legal advice, it could have been written by the Post Office and sent to the insurer?
Andrew Parsons: It could have been written by the Post Office, yes.
Mr Blake: It has been disguised here as Bond Dickinson advice, covered by legal privilege, with the intention that, should somebody ask the insurer for a copy or should the Post Office be asked for a copy, they could say it was legally privileged?
Andrew Parsons: Would you mind scrolling back up to the top of the document, please? So the top of this document refers to common interest privilege and litigation privilege. It doesn’t refer to legal advice privilege.
Mr Blake: Yes. Common interest privilege.
Andrew Parsons: Mm.
Mr Blake: What’s the point you’re making: that because it doesn’t say, “Legal advice privilege” that means that it’s not legal advice?
Andrew Parsons: So I think your suggestion was that we were dressing it up as legal advice to try to get it under the banner of privilege. That wasn’t what we were doing. This was drafted as a notification to the insurer, my understanding is, when you notify insurers, and I got it this understanding from one of the insurance partners, is that the forms of privilege that might apply are litigation privilege and common interest privilege.
Mr Blake: It says at the top of “Confidential & Legally Privileged”, doesn’t that cover all forms of legal privilege?
Andrew Parsons: I think you’re reading too much into those words.
Mr Blake: Let’s have a look at what it says, if we scroll down, “Risks to Post Office”, page 2, please, “Prosecutions & Convictions”:
“As noted above, where circumstances warrant, Post Office prosecutes subpostmasters who have acted criminally. The basis of these prosecutions is often found in the transaction records recorded in Horizon. As a result of Second Sight’s investigation/Interim Report, Post Office is reviewing all its criminal prosecutions over the last three years to identify any cases where a conviction may be unsafe.
“In particular, the expert evidence of one of Post Office witnesses, Dr Gareth Jenkins of Fujitsu, may have failed to disclose certain historic problems in the Horizon system. Under the criminal prosecution guidelines Post Office has an obligation to disclose, (even retrospectively) this previously undisclosed information to subpostmasters’ defence counsel. Post Office is required to make these retrospective disclosures where the additional information (ie Dr Jenkins’ knowledge of historic, but now resolved, problems with Horizon) may have undermined a prosecution case or assisted with [the] accused’s defence.”
Reference there to prosecutions and convictions in cases relating to Gareth Jenkins or where Gareth Jenkins has provided evidence.
Could we please turn to POL00040025. So that’s the version that you sent colleagues or Chris Aujard and – who was David Oliver?
Andrew Parsons: He was part of the Mediation Scheme team at Post Office.
Mr Blake: So you sent that in March 2014, as the notification. But I want to look back now at the drafting process for that document. We have here an email from Rodric Williams to you and he says:
“Andy,
“Please find attached the ‘Horizon Risks’ document, which I have amended following input from Cartwright King on the criminal law risks. Can you please check that it will still serve the purpose of notifying insurers of the grounds for potential claims?
“Once you are happy it does, I intend sending it to our broker, under cover of the following email.
“‘Mark, Richard,
“‘Please find attached a note from our solicitors outlining the risks presented by the recent investigation into “Horizon” IT system used in Post Office branches’.”
So the proposed notification to the insurers is that it’s a note from our solicitors outlining risks. I mean, that sounds quite a bit like legal advice, doesn’t it?
Andrew Parsons: I think it – I don’t believe we considered it advice. I drafted it simply to set out the facts and backgrounds for the insurers.
Mr Blake: Why couldn’t you have drafted it on a piece of paper to be sent by the Post Office on their own headed paper?
Andrew Parsons: We could have done.
Mr Blake: Again, I’ll go back to it. Surely the purpose was to add that level of privilege over it, wasn’t it?
Andrew Parsons: I’m not sure I gave it that level of thought as to whether it would come from Post Office or from Womble Bond Dickinson.
Mr Blake: We saw that you gave it quite a lot of early thought about problems that it would cause if it were disclosed.
Andrew Parsons: Yes.
Mr Blake: So surely you thought about who should be sending it and why?
Andrew Parsons: Not in terms of who – I don’t believe I did, in terms of who would write the note. I think it was just that we were in the position to write it. We wrote the note and, as it marked at the top, we considered it could be subject to common interest privilege and litigation privilege.
Mr Blake: “‘Can you please share this with our insurers so they are aware of the circumstances which could potentially give rise to claims against the policies we have with them, preserving so far as possible, the legal privilege attaching to the note’.”
Doesn’t the fact that it came from you strengthen the claim for legal privilege and wasn’t it intended to do so?
Andrew Parsons: On the first of your points, I guess there is something in the fact that lawyers are considering legal risks that makes it more likely that litigation is in contemplation, which is one of the grounds you need to claim litigation privilege. I don’t recall any discussion around whether the note should come directly from Post Office or from my firm in the context of making it more or less privileged.
Mr Blake: I mean, isn’t really what’s going on here that the notification to the insurers is being covered in LPP in order to prevent it from being disclosed?
Andrew Parsons: I accept that we were asserting legal privilege over this document, yes.
Mr Blake: For that purpose?
Andrew Parsons: Yes.
Mr Blake: So that it wouldn’t be disclosed?
Andrew Parsons: Correct.
Mr Blake: In fact, although the draft email suggests that it’s a note from our solicitors, we can see there that it is not only Bond Dickinson who are inputting but Cartwright King and also Post Office themselves.
Andrew Parsons: Correct.
Mr Blake: So to suggest that it was simply a note from the solicitors, that wouldn’t be right, would it? I mean, the impression given in that draft covering email is that “This is something we’ve received from Bond Dickinson, here you go, here’s a piece of legal advice we’ve received”. But, in truth, it was a document in which a number of different people had input into, which was put on your headed paper, in order to cloak it with legal privilege.
Andrew Parsons: We – as I say, it was draft as a notification to the insurers to give them the factual information to assess whether there was insurance cover. I accept that we considered that communication to be privileged. But I don’t – and I accept that “Please find attached a note from our solicitors”, I think that probably fairly describes what that document was.
Mr Blake: Okay. POL000 –
Sir Wyn Williams: Sorry, Mr Blake. Before we go any further it may be that I’m being a bit slow but I just want to understand the drafting process. The document which was – well, let me just ask the direct question: who, so far as you are aware, Mr Parsons, produced the very first draft of that document?
Andrew Parsons: I created the first draft.
Sir Wyn Williams: You did?
Andrew Parsons: Yes.
Sir Wyn Williams: Right. So then the sequence was that you sent it to Mr Rodric Williams, who amended it, as I’ve understood what’s being said here, with the help of Cartwright King in particular, so far as it related to the criminal law risks? Yeah?
Andrew Parsons: That’s my best recollection, yes.
Sir Wyn Williams: Well, that’s what this appears to say, this email.
Andrew Parsons: Yes.
Sir Wyn Williams: Which is what I was checking.
So the part of the document which deals with Gareth Jenkins, this is what I was coming to, was that something which was in your original draft or was that something which was added by Cartwright King/Mr Rodric Williams?
Mr Blake: Sir, before Mr Parsons answers that, could I take you to the attachment to this email, because that actually does address this issue or it may assist –
Sir Wyn Williams: Sorry, Mr Blake.
Mr Blake: Not at all.
Sir Wyn Williams: I appreciate I was butting in but I just wanted to get this sequence right in my mind.
Mr Blake: Could we please look at the attachment, it’s POL00040026 and perhaps when this comes up, could we also have it side by side with the version you sent around in 2014, that’s POL00021996. I can make very clear, the version you sent around in 2014, in fact, was not the version that was sent to the insurers –
Andrew Parsons: Mm-hm.
Mr Blake: – and we’re going to see the difference between them. So if we could turn to the second page of both of them to the section on “Risks to Post Office”, please. Thank you. So they’re very similar on the first paragraph, although there’s – the difference is that there’s now reference – or sorry, in the Cartwright King version that was sent to you, it refers to 1 January 2010, rather than over the last three years. So that’s a change. The more significant change is in that second paragraph. The version on the right-hand side says:
“Post Office has an obligation to consider whether further disclosure should be made to defendants. It is of concern to Post Office that the expert evidence of one prosecution witness, Dr Gareth Jenkins, of Fujitsu, may have to failed to disclose certain problems in the Horizon system potentially relevant to a case.”
A case.
The left-hand version says quite a lot more about Gareth Jenkins and is perhaps more accurate. It says:
“In particular, the expert evidence of one [prosecution] witness, Dr Gareth Jenkins of Fujitsu, may have failed disclose certain historic problems in the Horizon system.”
It also says:
“Post Office is required to make these retrospective disclosures where additional information … may have undermined a prosecution case or assisted with an accused’s defence.”
It doesn’t refer there to a single case. The one on the right-hand side very clearly gives the impression that it’s only one case that is affected. Do you recall that insertion?
Andrew Parsons: Just to check, my version is the one on the left?
Mr Blake: Well, the 2014 version that you circulated is the one on the left.
Andrew Parsons: Okay.
Mr Blake: The one on the right-hand side is the one that was circulated by Rodric Williams with a covering email that said, “Please find attached the Horizon Risks document which I have amended following input from Cartwright King”, et cetera. It’s not at all clear whether the one on the left was the original version or some other version but it certainly wasn’t the version that went to the insurers.
Do you recall there the – in any way, reference to Gareth Jenkins being amended?
Andrew Parsons: I don’t recall that change.
Mr Blake: Do you recall that the ultimate – the final – version that was agreed was a version that only said that Gareth Jenkins may have failed to disclose certain problems in the Horizon system potentially relevant to a case?
Andrew Parsons: I don’t recall that change.
Mr Blake: Do you recall in broad terms discussing the changes, for example, in response to Rodric Williams’ email, discussing with Rodric Williams the various changes that were being made to that document that had your header?
Andrew Parsons: I don’t recall discussing those changes with Rodric.
Mr Blake: Let’s look at the final notification, that’s POL00112856. So this is the notification from somebody called Stuart Corney who was partner, Claims, Financial Risks Division:
“Dear Sir/Madam,
“Please find attached details received of a new D&O matter for your consideration. The notice concerns challenges which have been made to the accounting system used in the Post Office Network to monitor sub post offices for any improper behaviour.”
You’ll see halfway down that paragraph, it says:
“A review of the Horizon system was undertaken and whilst recommendations were made for improvements no systemic problems were revealed which would call into question the changes previously made against subpostmasters. It is of concern to Post Office that the expert evidence of one prosecution witness, Dr Gareth Jenkins of Fujitsu, may have failed to disclose certain problems in the Horizon system potentially relevant to a case.”
If we scroll over the page, we can see the Bond Dickinson note, “Horizon Risks”, that was sent – if we scroll down, scroll down, if we scroll over the page, we can see, under “Prosecutions & Convictions” the version is the version that only relates to Gareth Jenkins may have failed to disclose certain problems relevant to a case.
So it certainly suggests that the version that was sent around to the insurers was not that version that you sent around in 2014 and would you accept that that version is highly misleading?
Andrew Parsons: Yes, it appears that way, though I’m not sure I was cognisant that that change had been made at that time.
Sir Wyn Williams: Well, hang on a minute. This version, the one that, on the face of it, looks as if it was sent to the insurer, in respect of the heading “Prosecutions & Convictions”, is identical, is it not, to the one which was sent to you by Mr Rodric Williams, under cover of an email which drew your attention to the fact that there’d been an amendment in relation to Gareth Jenkins?
Andrew Parsons: I accept that a copy of it was sent to me. I don’t now recall being cognisant of that change or its importance.
Sir Wyn Williams: All right. That’s your answer to that. Just to clear up where I started, the version that you sent around in March 2014, which wasn’t the version sent to the insurer, was it the version, so far as you can remember, which you had originally drafted?
Andrew Parsons: I believe so.
Sir Wyn Williams: Right.
Andrew Parsons: I believe so but it did go through a few iterations.
Sir Wyn Williams: That’s your answer: you believe that your original draft contained the details, which we see in what I’ll call the 2014 document but, in fact, it was amended in 2013 and something different, namely what’s on the screen, was sent to the insurers. Have I got that straight now?
Andrew Parsons: That appears to be the case.
Sir Wyn Williams: Fine. Thank you.
Mr Blake: Can we go back to the email from Rodric Williams. It’s POL00040025. So this is the email that he sent you with the version – as the Chair has highlighted, is the version that was ultimately sent to the insurers. If we scroll down, he has sent it to you and he says:
“Please let me know if you have any comments on the proposed email or approach generally.”
Presumably you did correspond with him on this?
Andrew Parsons: My distant memory is I think I responded briefly saying the cover note looks okay, or something to that effect.
Mr Blake: Presumably, you would that have opened the attachment and read it?
Andrew Parsons: I presume so but I can’t recall.
Mr Blake: Looking at it now, is that paragraph not crying out for further detail?
Andrew Parsons: It strikes me that now but I don’t remember considering that at the time.
Mr Blake: Given the significance of the advice on Gareth Jenkins and the implications for criminal prosecutions, wasn’t it important to get that absolutely right, that section?
Andrew Parsons: This is a notification to the insurers and so, yes, it’s important that it’s accurate but it’s also at a high level of detail. So the insurers are aware of the general issues that are in play.
Mr Blake: Were you concerned when drafting this about the potential disclosability of the information that’s provided and, therefore, seeking to minimise those problems?
Andrew Parsons: I was concerned about the disclosability of the document, which is why we considered it to be a privileged document. In terms of its content, though, the version I produced was candid about the issues, I felt.
Mr Blake: Why in that earlier 2014 email did you say that it had been summarised for the Board? Where did you get that idea from?
Andrew Parsons: So this insurance note was to the D&O insurers, the Directors’ and Officers’ insurers, and I think in the week or two before that I had provided Post Office with an email of advice on directors’ duties and, looking back now, I wonder if I got those two points confused.
Mr Blake: Can we please turn to POL00123004. Can we start on the bottom of page 4, please. We’ll see that this eventually reaches you but it’s an email from Andy Holt to Martin Edwards and the subject is “Information for Paula’s [one-to-one] with Chairman”. So it seems as though they are gathering information for a conversation between Paula Vennells and the Chair.
If we scroll down, there is a section called “Project Sparrow Update”, so this looks like the original draft that was proposed for that one-to-one and it sets out an update on Project Sparrow:
“The improvement workstream has completed the ‘as is’ experience for subpostmasters. The team are now progressing with the ‘to be’ picture and identifying the gaps and issues as well as the activities that will need to get us to our future model.”
There’s a reference to the Mediation Scheme, now received 46 applications, final stages of appointing Sir Anthony Hooper:
“The criminal case reviews continue with our external firm of solicitors. They have completed several sifts of past cases and have recommended disclosure on 11. Brian Altman QC’s review is also progressing well and is expected to complete as planned by the end of October.”
If we scroll up, please, we can see on page 4 a response from Mr Edwards to Mr Holt. He says as follows:
“Thanks very much for this. A few questions/ requests for further information …
“Would be good to include a line on the review of prosecutions policy – ie just updating the Board that work … is progressing and they will see a paper at the next ARC or Board. Following yesterday’s discussion, please can we confirm the arrangements?”
“2. I think we should have a few lines on compensation policy.
“3. I think the criminal cases review process needs more explanation. In particular, an explanation of the implications of the 11 cases where disclosure has been recommended (even if we don’t want to include too much on this in the text himself, useful for Paula to have in her background notes). Can we also have an explanation of the high level conclusions of the Brian Altman review along the lines outlined by Rodric yesterday?”
If we scroll up we can see that Rodric responds saying:
“Andy – I’ve asked Andy P to … respond to Martin’s points.”
Then if we turn to the bottom of page 1, we can see that you have responded substantively to those points that have been made. So the bottom of page 1, please. We can see the questions there are slightly less bold than the answers. I think in the original they would have been in a different colour, perhaps:
“Draft answers to Martin’s questions below – too much detail or not enough?”
So you are drafting for Andy Holt proposed answers to those questions. The first one:
“Would be good to include a line on the prosecutions policy …”
You’ve drafted as follows:
“Brian Altman QC’s review of the prosecution policy is being finalised. The report was originally due on 31 October but should now be ready by 25 October. The review will address the question of how [Post Office] may wish to approach prosecutions in the future.”
You say:
“ANDY – I’m not sure what the Board process is for the report. Hugh mentioned there might be an extraordinary ExCo to review the report before it goes to the [Audit and Risk Committee] or the Board.”
More answers, if we look at 3, where the request was:
“I think the criminal cases review process needs more explanation …”
You’ve put in there:
“Jarnail/[Cartwright King] to amend/complete.”
But you have drafted a section on Brian Altman’s first review, which you say has now been received:
“This first review looked into [the Post Office’s] compliance with its prosecution duties in light of Second Sight’s findings – in particular, it considered [the Post Office’s] legal duty to ensure that Second Sight’s findings were fully disclosed to any person who is currently being or has previously been prosecuted by [the Post Office]. Mr Altman concluded that [the Post Office] is complying with its duties and that the approach adopted by the prosecution team was ‘fundamentally sound’. This report gives [the Post Office] good grounds to resist any formal external review of his historic prosecutions (ie by the Criminal Cases Review Commission).”
Now, earlier this morning you were very keen to emphasise that you were effectively a conduit for Brian Altman. Now, it certainly seems from this email that you are, by this stage – so October 2013 – substantively involved in advice on a brief that would go to the CEO of the Post Office.
Andrew Parsons: This paragraph here is repeating the information I’ve had from Brian.
Mr Blake: Yes. Were you involved in advising or drafting advice for the CEO that related to that underlying work?
Andrew Parsons: I think this is just a factual summary of the status of Brian’s report and reflects what I understood his advice to be.
Mr Blake: Next question:
“Further to yesterday’s discussion, please could we also have some lines for background speaking notes on the process”, et cetera.
Then you say:
“ANDY/BELINDA – thoughts on the below?
“Work is continuing on managing [Second Sight] out of the scheme. In general, [Second Sight’s] role is gradually being reduced until they can be removed entirely.”
You were involved at that stage by dealing with Second Sight. Was that the main part of your work, then?
Andrew Parsons: Correct.
Mr Blake: You have, in this email, answered a request in relation to a briefing for the CEO, covering matters relating to the criminal cases review process, for example. No mention here of the Gareth Jenkins issue. Do you think that that’s something that might warrant inclusion in an update to the CEO?
Andrew Parsons: My understanding of this time is that everybody had been briefed on the Gareth Jenkins issue.
Mr Blake: Was it not so significant that it perhaps required quite a significant update to the CEO?
Andrew Parsons: Possibly, but that’s also why the comment above says, “This needs to be run past Jarnail and Cartwright King”.
Mr Blake: In relation to the Criminal Cases Review Commission, did you just see your job simply as repeating exactly what Brian Altman told you?
Andrew Parsons: Largely because I’m not a criminal lawyer, so I’m not in a position, really, to amplify what he was saying.
Mr Blake: Why instruct someone? Why be the instructing firm to somebody if all you can do is parrot what they tell you to the client?
Andrew Parsons: So, again, the context here is that Post Office already have retained criminal solicitors in Cartwright King. The role of Brian Altman is to act as a second opinion on Cartwright King’s work. Post Office wanted that to come from a QC, they weren’t looking to instruct another firm of solicitors to do it and so our role was to – is to facilitate them getting that advice.
Mr Blake: Did you feel comfortable in answering these kinds of questions from the Post Office?
Andrew Parsons: In the sense that they were asking for a brief update of what had happened, I felt able to provide that.
Mr Blake: Could we please turn to POL00372551. This is the very same day as you’re having this correspondence. If we scroll down slightly, you can see an email from Paula Vennells to Alice Perkins, so this is some form of one-to-one:
“Hi Alice, don’t worry about the lateness of this note …”
So that’s actually very first thing on that day, its 12.47 am:
“… I am clearing the [I think it must be ‘in-tray’] before signing out. I hope your weekend has been good despite the autumn rains.”
It says “A couple of updates”, and then it updates on Sir Anthony Hooper/Sparrow. Then it says as follows:
“My concern re Sparrow currently is our obligations of disclosure re an unsafe witness (the representative from Fujitsu made statements about no bugs, which later could be seen to have been undermined by the [Second Sight] Report). We do not think it is material but it could be high profile. Martin E is briefed if you want more detail. This is just in case.”
So it seems as though her belief at that point was that it was not material or not thought to be material.
If you could go back to the advice we looked at much earlier today, please, and that’s POL00145716. It’s the middle email. This is the advice that I took you to much earlier today about notifying the insurer and you said as follows:
“The risk of notification is that it would look bad for [the Post Office] if it ever became public knowledge that [the Post Office] had notified its insurer.
“To reduce this risk, it is recommended that rather than sending a formal written notification, POL speaks to … and verbally notifies them so as not to leave a paper trail.”
We also saw the advice that is attributed to you in that meeting, the first weekly Horizon meeting.
Could that approach that you took to not putting things that are damaging in writing to weakening of the Gareth Jenkins issue, as we saw in that final notification, could that have been in some way responsible for the CEO’s lack of understanding of the true gravity of the problem?
Andrew Parsons: This is over a three-month period, where I’m not the one advising Post Office on criminal law risks and I’m not the one who is responsible for ensuring what information goes to the CEO. As far as I was concerned, the CEO had been briefed on these issues.
Mr Blake: Could the obsession with covering things, blanketing things, in legal professional privilege have been responsible for that lack of understanding at Board level?
Andrew Parsons: Not as far as I was aware.
Mr Blake: Could we please turn to POL00022002. This is the presentation that you sent again in that 2014 email that I referred to. It is dated 8 October 2013, so approximate period to that Paula Vennells email to Alice Perkins.
You’ve said in that earlier email that this was a presentation that you gave to the Sparrow Committee; is that right?
Andrew Parsons: Yes.
Mr Blake: If we turn over the page, please, your presentation says as follows:
“Privilege – a reminder
“Legal privilege = vital to success.
“Do not discuss any legal advice or anything to do with [subpostmaster] settlements with:
“Anyone outside Post Office
“JFSA
“Second Sight
“Subpostmasters
“[The sponsoring department, the Department for Business and Industrial Strategy/Members of Parliament]
“[Even] Your teams unless absolutely necessary.”
Did you see legal advice covering things in privilege to be vital to the Post Office’s success?
Andrew Parsons: I think the – in the context of this document, which is discussing settlement criteria and what Post Office may or may not be prepared to pay, keeping that type of advice confidential is of paramount importance, and I think that is the sort of advice that any lawyer would give to a client in those circumstances.
Mr Blake: Looking back at it now, do you think that that was in some way responsible for a lack of information transferring within the company?
Andrew Parsons: No because this is talking about communications outside of Post Office and then potentially down into teams. I don’t think anyone would have interpreted that as somehow putting a block on information being passed up to senior management.
Mr Blake: It says, “Your teams unless absolutely necessary”.
Andrew Parsons: Yes.
Mr Blake: “Don’t discuss any legal advice”, even with your own team?
Andrew Parsons: Yes, because –
Mr Blake: Keep information clearly compartmentalised is what it’s advising, isn’t it?
Andrew Parsons: No, because this meeting of the steering group tended to be more senior people and so the idea is that they will have more junior staff underneath them, and there’s a – that’s not just advice that I’m providing, that is the state of the law on legal advice privilege, which provides that legal advice privilege doesn’t extend to the entire client organisation but only those groups within the organisation who need to receive that advice.
Mr Blake: Can we turn to page 14 of this document, please, still with the presentation, “Settlement thresholds”. You set out here “Recommended threshold of proof”, and “Risks”:
“Where the nature of the complaint is that Horizon inaccurately records data/transactions …
“Risks
“Post Office should be slow to concede that Horizon has any technical faults. To do so could open the floodgates to a large number of claims. It will be almost impossible to reverse this position if conceded.”
Now, all those things that we’ve been going over today, all those various bugs in the summer of 2013, the suspense account bug, Castleton, Misra, all of those issues that we’ve been discussing, how, by that stage, could you still hold that position, could that still fairly be the Post Office’s approach?
Andrew Parsons: So those three bugs that you just mentioned had all been publicly disclosed, so they were out there. So this is talking about us coming across any new defects in Horizon during the course of the scheme. Reflecting on this now, I think that sets the bar too high.
Mr Blake: I’m going to address one more issue, sir, before we take our second morning break. I appreciate time is marching on –
Sir Wyn Williams: That’s fine.
Mr Blake: – but perhaps we can take a slightly later lunch.
Can we please turn to POL00029707, page 3, please. In the middle of page 3, we have an email from Steve Darlington to Rob Wilson and Post Office Group and he says as follows:
“As Priti has stated in her last sentence, we are seeking a stay on the time limits on all cases under review due to the implications of [the Post Office’s] non-disclosure of system-generation transactions and Horizon integrity issues.”
Do you remember who Steve Darlington was?
Andrew Parsons: I think he was a lawyer acting for some of the applicants in the scheme.
Mr Blake: Yes, so it’s a complaint from Howe+Co, following disclosure of, amongst other things, the Helen Rose Report. He says:
“The ‘Helen Rose Report’ is of critical significance to all cases. The information contained within it is a compelling case for such a stay in its own right. When combined with the Andy Winn/Alan Lusher email in the case of Ward which explicitly states that Fujitsu can remotely change the figures in the branches without the [subpostmasters’] knowledge or authority, the case for a general stay is overwhelming.
“We ask that the Working Party considers this request as a matter of urgency in order that we do not prejudice our clients’ cases by omitting information which is clearly of the utmost general significance.”
If we scroll to the first page, please, you provide your view on this email. You say as follows:
“Belinda
“I have spoken to both Rodric and Simon Clarke at [Cartwright King] about the email from Priti Singh at Howe …”
So Priti Singh is a lawyer at Howe who has made this complaint:
“… and all three of us have similar thoughts on the way to proceed.
“The only redactions made to the copies of the reports sent to [subpostmasters] was to remove:
“1. The personal information of some of the individuals named in the report …
“2. A header in the document that said the document was subject to legal privilege when it clearly was not …
“In light of this, I don’t understand Howe+Co’s complaint that there is substantial missing material. It is not suggested that [the Post Office] provides an unredacted version of the report as (i) this is not necessary and (ii) we do owe some duty of privacy to the individuals involved. Instead, it is recommended that [the Post Office] maintains its current position and simply explains the redactions to the report.”
So this is the Helen Rose Report that has been redacted. You are here explaining why there have been redactions that have been made to that report; is that correct?
Andrew Parsons: Yes, the redactions were made by Cartwright King, though, not me.
Mr Blake: Yes, and you are explaining why they have been made?
Andrew Parsons: I’m explaining why – Cartwright King’s reasons for why they were made.
Mr Blake: You are suggesting an approach that the Post Office should take in response to Howe+Co’s complaint about the redactions?
Andrew Parsons: Yes.
Mr Blake: That document had been disclosed to the individual in the criminal context, it had been part of that criminal disclosure arising from Cartwright King’s review?
Andrew Parsons: I believe that’s the case.
Mr Blake: Yes. You say:
“In this vein, I have set out below a possible response to [Howe+Co] to go from Chris. This response is purposefully short in order to avoid any dialogue with Howe on this matter. I do not believe this matter needs to go through the [Working Group] because this is about [the Post Office’s] prosecution duties and not scheme business. The response could, and in my view should, be sent regardless of Steve Darlington’s email below as it is important that [the Post Office’s] position is clearly stated before Ron begins to escalate Steve’s views to the Working Group.”
Now, “I do not believe this matter needs to go through the [Working Group] as this is about POL’s prosecution duties and not scheme business”; you’ve been very clear throughout this morning to distinguish between your involvement in civil and criminal matters. It is clear here that you are getting involved in correspondence that relates to the Post Office’s prosecution duties.
Andrew Parsons: So this is where we end up with the overlap between the scheme and the fact that, within the scheme, there were some subpostmasters who were convicted. My lookout from here is to determine whether this is a matter for the scheme to consider or not, and the scheme was not considering Post Office’s prosecution duties or reconsidering the conduct of prosecutions. So I think – I don’t accept that is me advising on prosecution matters. I think that is me advising from the perspective of the scheme.
Mr Blake: You’re advising on something that touches on the prosecution’s duty of disclosure aren’t you?
Andrew Parsons: I accept that but also, if you scroll up to the top of this note, it says “I’ve spoken to both Rodric and Simon Clarke at Cartwright King” so the criminal law input would have come from Simon Clarke at Cartwright King.
Mr Blake: But he’s not sending any separate draft response. This draft is coming from you, having taken others’ views?
Andrew Parsons: Having taken Simon Clarke’s views on the appropriate approach on the criminal side.
Mr Blake: You say:
“Just for background information, the material part of the Helen Rose Report has nothing to do with her comments about reversal data. [Second Sight] and Howe are taking this point as evidence of a problem with the integrity of Horizon. In fact, Helen’s issue was that the Credence data, although accurate, did not on its face clearly distinguish between automated reversals and user generated reversals. This information is available but in a different report. The concern was not with the data’s accuracy but that the presentation of the data could be misleading if its limitation was not fully understood. Putting this issue aside [and this is the important part] the real (and confidential) reason that the report was disclosed was because Helen’s comment at the bottom of page 3 suggests it was widely known that there were problems with Horizon. This statement (regardless of whether it is correct) could have been used to attack Gareth Jenkins’ credibility as [the Post Office’s] Horizon expert as he had previously stated that there were no problems with Horizon.”
Then you go on to draft the response. If we scroll down, please, your draft response says as follows:
“The version of the report sent to Ms Robinson was redacted to protect the privacy and personal information of the individuals named in the report. This was done to ensure compliance with the Data Protection Act. All material information in the report has been provided to your client in full compliance with the Post Office’s legal duties.”
Now, where you say “legal duties”, do you mean in relation to the prosecutor’s duty of disclosure?
Andrew Parsons: Yes.
Mr Blake: So you are, in this draft email, proposing correspondence that relates to the prosecutor’s duty of disclosure?
Andrew Parsons: Having taken that from Simon Clarke at Cartwright King.
Mr Blake: “We will therefore not be providing an unredacted copy of the report.”
So that’s a decision that you also came to or advice to the clients that was encompassing others’ but also, ultimately, your advice.
Andrew Parsons: That was my advice, having discussed it with the criminal lawyers.
Mr Blake: “For the sake of good order, I note that [the Post Office] disagrees with the statements in your email about the integrity of data on Horizon and the safety of convictions.
“I do not believe that this matter should delay the submission of your clients’ CQRs.”
I want to look at the version of the Helen Rose Report that was attached to Ms Maru-Singh’s email, that was being brought to your attention. I want to look at it side by side with the unredacted version of the Helen Rose Report. So could we bring up on screen POL00022598, side by side with POL00147949. So that is the original version of the Helen Rose Report and this is the version – the version that’s about to come up on screen, is the version that was sent as part of that complaint from Howe+Co, and this is the redacted version and you’ve explained the redactions in your witness statement.
I think it’s paragraph 182 of your witness statement. We don’t need to turn that up.
So the author’s name is redacted, Helen Rose, but, if we turn over, please, on page 2 on both of them, we see there the first redaction is to the branch details; the second redaction is a username; but let’s look at that third redaction, please. The sentence on the right-hand side, the real version, if we scroll down sorry – thank you – it says:
“The Fujitsu logs were requested for this branch, but whilst waiting for these to arrive communications took place with Gareth Jenkins at Fujitsu for more details to gain an understanding what had occurred at this branch.”
We then have the redacted version, which you say is for data protection reasons, to the name of Gareth Jenkins. We then have a look at question 1 and the redactions that are made there. On the right-hand side, the original:
“I am requesting Fujitsu logs for the Lepton [branch] to look at a reversal”, et cetera.
Then we have in brackets:
“Gareth looked at the data at his end prior to me receiving the Fujitsu logs.”
We see there the name “Gareth” is redacted.
Now, how on earth could subpostmasters have attacked Gareth Jenkins’ credibility, as you’ve suggested was the purpose for disclosing this, if Gareth Jenkins’ name was redacted in that report?
Andrew Parsons: I’m not suggesting that. This was redacted by Cartwright King. I had no involvement in selecting those redactions or the reasons for those redactions. You would have to address those questions to Cartwright King.
Mr Blake: Well, let’s look at your email. POL00029707. I think you practice in data protection, don’t you?
Andrew Parsons: I do now.
Mr Blake: Let’s have a look at the covering email. POL00029707. You make clear in that email:
“The only redactions made to the copies … was to remove:
“The personal information”, et cetera.
If we scroll down, we can see your draft covering letter to the complainant from Howe+Co. If we scroll down to the bottom:
“The version of the report sent to Ms Robinson was redacted to protect the privacy and personal information of the individuals named in the report. This was done in order to ensure compliance with the Data Protection Act …”
I mean, did you not apply your mind anyone in any way to the redactions that had been made to that report when drafting your email?
Andrew Parsons: So the redactions were made by Cartwright King. They told me they made them for data protection reasons. Having looked at the report, it appeared to me that they were redacting personal data, subject to that one extra point around the mismarking of the document as privileged. That’s how I took the – I took their view on it.
Mr Blake: You’ve said there, sticking with this email:
“Putting this issue aside, the real (and confidential) [so nobody is being told] reason the report was disclosed was because Helen’s comment at the bottom of page 3 suggests that it was widely known that there were problems with Horizon. This statement … could have been used to attack Gareth Jenkins’ credibility …”
Gareth Jenkins’ name was redacted from that particular version.
Andrew Parsons: Again, you’re going to have to take that up with Cartwright King. I wasn’t involved in the disclosure of this document or the redactions.
Mr Blake: Why are you repeatedly drafting emails, sending substantive comments to the Post Office, when you weren’t involved, where you were just a conduit for information; why were you doing that? Why were you not thinking through the consequences of the things that you were advising?
Andrew Parsons: So this is where we get to the crossover between the scheme and the fact that some members of the – some applicants in the scheme were convicted. When those crossover issues came up, as you can see here, I went and spoke to the criminal lawyers. I feel like this email faithfully represents the advice they gave to me and I’m passing that advice back to Post Office.
Mr Blake: I’ve noted down all those things that happened in the summer of 2013, so we’ve got: suspense account bug that was brought to your attention; concerns regarding the integrity of Horizon; you had raised concerns regarding the documenting of certain information; Castleton; Misra; other cases on hold; Second Sight Report; three bugs; you corresponded with the Criminal Cases Review Commission, however you would like to put that.
You are here, in 2014, directly involved in advising the Post Office in respect of a document that was disclosed following a criminal conviction and saying that “We don’t need to unredact the redaction to Gareth Jenkins’ name”, aren’t you?
Andrew Parsons: Following the advice of the criminal lawyers.
Mr Blake: Why in those circumstances wouldn’t you have given it a little more thought?
Andrew Parsons: I wasn’t advising on the prosecution disclosures. I’m a civil lawyer. I don’t have any experience of criminal law. When these types of issues came up, I took the lead from the criminal lawyers, particularly from Simon Clarke, who is much more senior than I was.
Mr Blake: You were asked to unredact the Helen Rose Report. Your advice to the client is “You don’t need to unredact the Helen Rose Report, those redactions were made for data protection purposes”. Why wouldn’t you have satisfied yourself that they were sufficient that they were correct that they were fair?
Andrew Parsons: I have no independent means of doing that because I’m not a criminal lawyer. So I can’t advise the client independently on whether those redactions were appropriate or not. The best I can do is go and speak to the criminal lawyer who made those redactions and seek his view.
Mr Blake: You knew the significance of the Gareth Jenkins issue; you had read Cartwright King’s advice; you knew that the disclosure was being confidentially made for the purpose of disclosure. Do you think, looking back at all of that, you really reflected enough on the job that you were doing?
Andrew Parsons: I think if I – reflecting back on it now, I think there was probably an original mistake by the criminal lawyers in redacting Gareth Jenkins’ name and not being more transparent about his involvement and why they were making the disclosures back at the beginning of 2013.
Mr Blake: Why is it all the criminal lawyers’ fault? You were here involved in matters touching on criminal law, weren’t you?
Andrew Parsons: I’ve – I hope I’ve tried to explain my involvement with the criminal touch points but, as I’ve said, I’m not a criminal lawyer, I don’t know these rules and I can’t advise on them. What I’m trying to do here is helpfully give Post Office the advice they need, acting, as I say – and I know you don’t like this phrase – but as a conduit for the information from the criminal lawyers.
Mr Blake: Should there have been a point where you said, “I’m sorry but I can’t act as a conduit any more, this is so outside my area of expertise that I really can’t assist you?”
Andrew Parsons: I didn’t feel it at this point on this particular issue, no. Having spoken to Simon Clarke he was clear to me he thought those redactions were properly made.
Mr Blake: Sir, that might be an appropriate moment but I appreciate it is later in the day but if we could only take the second break of the morning, so to 12.40.
Sir Wyn Williams: Yes, and then how –
Mr Blake: Then we can take lunch at 1.30 if that’s suitable.
Sir Wyn Williams: So lunch at 1.30, all right. Fine.
Mr Blake: Thank you, sir.
(12.28 pm)
(A short break)
(12.40 pm)
Mr Blake: Thank you, sir.
Can we please turn to POL00146243. It’s page 4 I’d like to look at first, please, the bottom of page 4. We’re now on 2 September 2013. We have an email from Alwen Lyons, the company secretary, to Hugh Flemington, and she says:
“As per our conversation this morning. I would appreciate if you would get external advice on any risks in the Lessons Learned Review work. My concerns are specifically around the Freedom of Information Act or disclosure requirements for our criminal prosecutions and civil actions.”
If we scroll up, Hugh Flemington sends it to you.
“As discussed I’ve been asked for the advice per email below. Would you mind reverting to me in the first instance.”
We have the response and that begins at the bottom of page 2, please. Your response is as follows:
“Simon
“As discussed, please find below the high-level advice on the terms of reference for the ‘Lessons Learned Review’ …
“In general, the Post Office’s desire to review past activity and improve the future is understandable. However, the nature and timing of the review presents several risks to the Post Office … and, critically, cuts across number of ongoing activities.
“For these reasons, I would recommend that if the review does need to take place at all, then it should be deferred for 6-12 months so to first allow Second Sight to be managed out in the Mediation Scheme to be completed.”
Then heading “Disclosure of The Review”:
“Privilege – This review will not be legally privileged. This may make it difficult (if not impossible) to resist publicly disclosing details of the Review (as well as any documents and emails produced in the course of preparing the review) if a Freedom of Information Act request is made (by say the media, JFSA or a subpostmaster).”
Still under 1, the second heading under 1:
“Criminal disclosure – Should the review reveal any concerns about Horizon or branch accounting processes then Post Office may be obliged (under Criminal Procedure Rules) to proactively pass this information to subpostmasters involved in criminal prosecutions (both ongoing and historic). In particular, recommendations for change could be interpreted as highlighting historic problems that would need to be disclosed.”
Everything we’ve been talking about this morning, you’ve been very concerned to distinguish between your role as advising in relation to the civil matters only, not criminal matters. What do you have to say about a paragraph here where you are advising on criminal disclosure?
Andrew Parsons: So this is a very basic statement of the disclosure duties that Post Office was under and I’ve taken that from the advice that I’ve seen previous to this from Cartwright King.
Mr Blake: Are you advising the client in this email of the implications of the Lessons Learned Review in respect of criminal disclosure obligations?
Andrew Parsons: Yes.
Mr Blake: Thank you. Can we please now turn to POL00021865. We’ll come back to the 2013 period but I want to take you now to a few events over subsequent years that may be relevant to what occurred in 2013 and advice that you gave. This relates to the Panorama broadcast and you are providing Rodric Williams with your thoughts on the confidentiality position following Panorama. You say as follows:
“My thoughts below …
“In short, my view is that [the Post Office] either (i) does nothing but a bare denial of the allegations and waits for the Criminal Cases Review Commission or (ii) goes on a full attack – with the former being my strong preference. Any middle ground simply feeds the fire and I don’t believe that steady reasoned argument or disclosure or further documents will assist in changing the story.”
Then there’s a section on applicants and you say as follows:
“I’m not convinced that responding to the ‘inappropriate theft charge’ allegation for each case with a more detailed explanation of what happened would be worthwhile. Our arguments are technical, rely on the intricacies of the prosecution process and are based on a range of evidence rather than a single smoking gun. The man in the street will simply say: ‘where is the evidence of the [subpostmaster] putting the money in her pocket?’. I don’t believe we can win this battle in the media.”
You have there a fair grasp, in broad terms, of the criminal argument, don’t you? The criminal law arguments?
Andrew Parsons: At a very high level.
Mr Blake: You then say:
“[The Post Office] could however start attacking the postmasters credibility by calling out Thomas, Misra and Hamilton …”
Those are three people who have been convicted of criminal offences.
“… as the liars and criminals that they are.”
Now, how could you say that, having, for example, by this stage, received the advice on the reliability of Gareth Jenkins?
Andrew Parsons: On reflection, that language is too strong.
Mr Blake: “They all admitted to [false accounting] and all admitted to it again last night on Panorama. [The Post Office’s] language to date has been constrained (last night it was ‘deliberate dishonest conduct’ which was a generally way to put it). Perhaps some more punchy language, combined with more specific details of the [false accounting] might help rebalance public perception.”
Do you think that is appropriate advice to be giving?
Andrew Parsons: I don’t think that is the advice I’m giving. If you read the opening paragraph that you touched on, it makes it very clear that my advice is that Post Office should do something and wait for the CCRC. What I’m then setting out below is the alternative proposition but that wasn’t the advice I was giving.
Mr Blake: The advice you were giving is that there are two options, the former is your strong preference but you haven’t ruled out the latter, have you?
Andrew Parsons: No, I’m giving the client options and giving them what my preference would be, which would be to do nothing and wait for the CCRC.
Mr Blake: Do you think that couldn’t option was appropriate?
Andrew Parsons: I think it was an option that Post Office could consider but, as the top paragraph says, it wasn’t what I would recommend they do.
Mr Blake: How is it advice relating to a legal position, rather than, effectively, PR advice responding to the Panorama programme?
Andrew Parsons: Apologies. Could you put the question again?
Mr Blake: Absolutely. You’re looking there – an option, although admittedly one that wasn’t your strong preference, was to attack the postmasters’ credibility by attacking Thomas, Misra and Hamilton. How is that legal advice rather than, for example, PR advice, because it’s responding to the Panorama programme?
Andrew Parsons: I think the Panorama programme – and I haven’t watched it since that time because it was a long time ago – did stray into questions around legal responsibilities and liabilities. So I accept there’s a grey area here between legal advice and PR advice.
Mr Blake: If we scroll down, there’s also comments there on Second Sight. You say:
“For the reasons given above, I don’t believe that a substantive debate over [Second Sight’s] views on the ‘inappropriate theft charge’ allegation would be successful. Whatever we think about them, the wider perception is that they are independent experts and credible.”
Just pausing there, by 2015, what did you think of them?
Andrew Parsons: By this point, I had concerns about the quality of the work they were producing.
Mr Blake: Just the quality of the work?
Andrew Parsons: I also had concerns about – that they seemed to be leaning more towards the subpostmasters and ignoring some of the points the Post Office was making.
Mr Blake: You then say:
“If [the Post Office] wished to respond, I would again recommend attacking their credibility and start with disclosing the extract from their engagement terms that says: ‘it is acknowledged that matters relating to criminal law and procedure are outside Second Sight’s scope of expertise’.”
Now, you’ve identified a couple of issues that you had with the quality of Second Sight’s work but how could you attack their credibility?
Andrew Parsons: In this sense, it was because Second Sight had accepted in their engagement terms – again, I’m doing this from memory – that they didn’t have expertise in criminal law and procedure, yet they had gone on to offer opinions on those matters.
Mr Blake: Looking back at this email, is it your view that the advice that you were giving there and that the language you were using about subpostmasters was not appropriate?
Andrew Parsons: I accept that the comments about the three subpostmasters named was inappropriate but I think it all has to be read in the context of the top part of the email where it says, “My strong preference is Post Office does nothing and waits for the CCRC”.
Mr Blake: Reference to the CCRC there, reference to the inappropriate theft charge, referring to the credibility of three criminal defendants, it seems once again to be straying somewhat into the criminal sphere, doesn’t it?
Andrew Parsons: As I’ve explained, there are touchpoints between the criminal areas and the Mediation Scheme and the civil areas. Those points come into contact with each other but I don’t believe that I’m crossing the line into advising on criminal law matters here. To the extent that I refer to criminal matters, it’s based on advice I’ve received from the criminal lawyers.
Mr Blake: “Bare denial of the allegations and wait for the CCRC”, though, I mean, that comes pretty close, doesn’t it, to advising in relation to how the company acts in respect of the Criminal Cases Review Commission?
Andrew Parsons: I think the status quo at that point is Post Office was waiting for the CCRC, so I don’t think that’s telling Post Office anything new.
Mr Blake: As I said, I’m going to jump a number of years now, to a few different periods. Let’s move on a year, and go to WBON0000465, please. This is 5 October 2016. Amy Prime emails you. Who was Amy Prime?
Andrew Parsons: She was a solicitor on my team.
Mr Blake: She was, by that stage, a newly qualified solicitor, wasn’t she?
Andrew Parsons: Correct.
Mr Blake: I think we’ve seen her involvement in some other stages, perhaps when she was just a trainee, but, by this stage, she’s qualified that year?
Andrew Parsons: I believe so.
Mr Blake: She says:
“Andy
“Please find below a draft email to Rod on the Investigations Guideline – would appreciate your thoughts/comments on this.”
Then she has below a draft that has been drafted:
“Rodric
“The below is not urgent but for you to consider as and when you get a chance. Freeths have requested that we provide them with Post Office’s Investigation Guidelines since 1998 (including any revisions to date). In the earlier round of disclosure, we did not provide the guidelines since we wished to confirm whether the documents were covered by privilege. Brian Altman has confirmed that they will not be covered by privilege and as such the guidelines will, at some point, have to be disclosed.
“We have reviewed both the most recent version of the guidelines … and the prior version … Of note, the 2013 version … provides ‘Should the recent Second Sight review be brought up by a subject or his representative during a PACE interview the Security Manager should state: “I will listen to any personal concerns or issues that you may have that with the Horizon system during the course of this interview”.’
“Freeths will more than likely use this statement afterwards an opportunity to confirm that Post Office responded to postmasters using stock answers (a point which has already been raised in relation to the helpline) and further could be spun to show that Post Office was not taking issues with Horizon seriously and were trying to ignore any issues which were raised.
“Although we may face some criticism later on, we are proposing to try and suppress the guidelines for as long as possible on the grounds that the most recent version is not relevant since it post-dates the investigations complained of and it would require a full disclosure exercise to piece together all historic revisions of the guidelines. We thought it would be best to bring this to your attention early.”
You respond to Ms Prime the same day, let’s have a look at WBON0000467. Thank you, you respond as follows:
“One addition below. Little tip – try to always spell out exactly what is required from the client (even if that is nothing or a negative statement like below).”
So you’re there providing a tip to the newly qualified solicitor. Were you her supervisor or were you –
Andrew Parsons: I’m not sure if I was formally her supervisor but she was a lawyer in my team.
Mr Blake: You’re providing her with a tip to spell out exactly what is required to the client.
If we scroll down, we can see on the second page, the paragraph that you have then inserted that reads as follows:
“For now, we’ll too what we can to avoid disclosure of these guidelines and try to do so in a way that looks legitimate. However, we are ultimately withholding a key document and this may attract some criticism from Freeths. If you disagree with this approach, do let me know. Otherwise, we’ll adopt this approach until such time as we sense the criticism is becoming serious.”
Now, you’ve addressed this in your witness statement. If we could perhaps keep that on screen but also just bring up the witness statement on to screen, page 235. Thank you very much. It’s page 235, so the explanation starts at paragraph 411.
412 you come to this particular document and let’s see the explanation is at 413 so that’s over the page, please. You say:
“Regrettably, this email is worded very poorly. Whilst, as I have said I do not recall this email, my firm’s records show that Amy had sent a draft for my approval earlier that day which did not contain this final paragraph. I responded to her adding it into her draft though my purpose in doing so appears to have simply been to make clear what action we required from [the Post Office] on this point, rather than to consider or build upon the substance of her email. Though ill-expressed, having reviewed the relevant emails from around this time I consider that [that document] and the final paragraph in particular does not reflect the true position, as there were in fact substantive legitimate reasons for resisting disclosure of the investigation guidelines at this early stage. My email should have been better expressed to make that clear at the time.”
Let’s take that down on the left-hand side and let’s concentrate on that paragraph. It’s not just a poor choice of words, is it? Even if you take out the words in terms of legitimacy, so let’s take out “that looks legitimate”, what you are saying here is that “We are ultimately withholding a key document”.
I mean, that’s not a poor choice of words; that is your acknowledgement at that time that there is a key document, that it is okay to withhold that document for as long as possible, isn’t it?
Andrew Parsons: So we are advising Post Office here not to disclose this category of documents. I think the reference there to a key document is not referring to those two specific versions we have but the broader category of investigation guidelines, which is what the request was.
Mr Blake: So the investigation guidelines, that is the guidelines that led to people’s investigation, subsequent prosecution, conviction.
Andrew Parsons: No, the – the request was for investigation guidelines in the broadest sense so it could have included any form of investigation –
Mr Blake: Okay, so not limited to criminal prosecutions but including investigations that led to criminal prosecutions?
Andrew Parsons: Correct.
Mr Blake: Including investigations that led to people wrongly losing their jobs?
Andrew Parsons: I – yes, I guess so, but I wouldn’t be able to draw that line directly.
Mr Blake: Investigations that led to people becoming bankrupt?
Andrew Parsons: Yes.
Mr Blake: And, irrespective of your reference to doing so in a way that looks legitimate, you are saying there, you are advising a client, that you can withhold what you considered at the time to be a key document until the criticism is such that it’s becoming serious.
Andrew Parsons: So the context here is this is in the pre-action phase of the litigation. No disclosure orders have yet been made and the request that was made of us was for a broad category of investigation guidelines. The two documents we had were dated from August 2013 and 2016 and, therefore, post-dated, in this sense, any prosecution that Post Office had conducted because, as I understood it, Post Office hadn’t conducted any prosecutions after July ‘13.
So, in that sense, I thought there – looking at it now, it’s a very poorly worded email, I regret sending it but, having looked at it again, I believe there were legitimate grounds not to disclose those two documents at that point in time, which is during pre-action.
Mr Blake: What does it matter; what does it matter that you think now about those documents? At the time that this document – this email is drafted, this letter is drafted, you considered that it was a key document, didn’t you?
Andrew Parsons: I considered the investigation guidelines, as a category, a key document, yes.
Mr Blake: Your advice to the client was “withhold until criticism is so serious that you have to disclose”, isn’t it?
Andrew Parsons: Withhold those two versions of the document, which is the only two versions we had been provided at that time; there the only two documents we’d been provided with under that broad category of investigation guidelines. For the reasons that are stated in this email, we considered they weren’t disclosable. That’s not retrospectively my position; that was my position at the time. You said earlier the explanation for this began at paragraph 411. I think it begins at paragraph 404 and it does set out the background.
Mr Blake: But what does it matter now that you consider those documents were not disclosable, if, at the time, you thought not only are they disclosable, they are the key documents?
Andrew Parsons: No, no, apologies. Maybe I’m not being clear. The email is poorly expressed but my belief at the time was that those documents were not disclosable.
Mr Blake: Your belief at that time was they were not disclosable?
Andrew Parsons: Correct.
Mr Blake: Where on earth in this correspondence does it say that? How could anybody reading this get the impression that your view was that they were not disclosable? How does that paragraph – how can that possibly be read as suggesting that it wasn’t disclosable?
Andrew Parsons: So the explanation is in the paragraph above, where it says:
“The most recent version is not relevant since it post-dates the investigations complained of and it would require a full disclosure exercise to piece together all the historic versions of the guidelines.”
Again, the context is important. This is during the pre-action phrase of the litigation where a party is not required to undertake a disclosure exercise.
Mr Blake: Doesn’t this show a mindset, a mindset that we have already seen from 2013, not to record, not to disclose or, if you’re going to have to disclose something, hold onto it to the very last moment until you absolutely have to disclose it.
Andrew Parsons: I think each of those has to be considered on its own merits, in its own circumstances at the time. I think, against that, I would weigh the fact that we advised Post Office to run the Mediation Scheme, which itself is a process that gave rise to lots of information being provided to subpostmasters. So I think there are other points on the other side of that equation.
Mr Blake: Let’s look at the same criticism but in different circumstances. We’re going to look at the Known Error Log. Can we please turn to POL00245938, please. If you could turn to page 5, there’s a request that is sent to the Post Office, I think it’s by Tim McCormack, although, slightly facetiously, it’s entitled “AN Obody”, or “A Nobody”. If we turn to the top of page 5 he sends an email to the Post Office and he says as follows:
“I thought I sent a reply to you but it doesn’t seem to have got through.
“I cannot talk to anybody about this because I have signed off my branch accounts with the wrong figure and I can go to prison for doing that. I haven’t taken any money. I want to know what errors to look for. I read all this talk about errors in Horizon on the Internet. I want to know what they are. You say you have that information but you won’t give me it so what is my alternative. I don’t have the sort of money to give to you. Will you prosecute me for my accounts if I talk to Mrs Bogard? Please tell me, surely you have to tell me what these errors are?”
What he’s doing there, what that email is designed to do is to try to draw out of the Post Office information about known errors because, if you were a subpostmaster who had signed off your branch accounts, you know there’s a problem but you don’t know what the problem is, you want information from the Post Office to tell you what are the problems; what are the known errors that might explain my discrepancy?
Did you understand that to be the background or the picture to be painted here?
Andrew Parsons: I can see those are the questions being asked but the fact that it was sent from AN Obody made me doubt the veracity of this request.
Mr Blake: Absolutely. So it may not be somebody who is actually having a problem but it poses a theoretical problem for the Post Office to answer.
Let’s go to page 1, and this is your advice on that email. You respond to Rodric Williams, you say:
“Draft [business as usual] response attached. I’ve gone for a very soft known. Although I’m 99% sure this is a fictional case, we just can’t take the risk.
“I’ve not made any express reference to the [Known Error Log]. Even the phrase ‘known error’ could set hares racing so I’ve avoided it entirely. I hope however the key message (‘cart before horse’) still comes across.”
Were you still concerned, even at 2016, about disclosing the fact that there was a Known Error Log?
Andrew Parsons: So at this point in November 2016, the Group Litigation is under way, Freeths are aware that there is a Known Error Log. There is ongoing discussions around the disclosure of a Known Error Log, so the fact that it exists is out there with the claimants’ lawyers. I think the response here is in the context of this feeling like a fictional request, one improper request for some improper purpose, and I don’t think Post Office should be required to provide extensive details in those circumstances, where it feels like the request is somehow being made as a, I don’t know, a trial or a joke.
Mr Blake: What do you mean by set hares racing there?
Andrew Parsons: Because I think the phrase “known error” conjures up views in people’s mind around the extent of problems and, at this point in time, we had been told by Fujitsu that the Known Error Log didn’t contain any bugs that affected Horizon – sorry, didn’t affect branch accounting.
Mr Blake: Let’s fast forward to 2019. Can we please look at POL00043147.
We’re now in the thick of it in the litigation, addressing the Known Error Log. An email from you to Rodric Williams and others:
“Rod, Kate
“Bullets for comment. Below is a possible email to Ben …”
I think that’s Ben Foat, is it?
Andrew Parsons: Yes.
Mr Blake: “… from Rod. Attached is an updated board report.”
Then the email says as follows:
“Ben
“Please find attached the updated board report addressing your points. The key points to note are:
“1. [Womble Bond Dickinson] are assessing the risk over the weekend of the 93 high-risk [Known Errors Logs]. By [a date] next week counsel will have reviewed those KELs in detail and given a view on whether they are likely to cause the Horizon trial to be recommenced/the judgment delayed.
“2. In relation to the [circa] 14,000 other [Known Error Logs] (ie those not used at the trial), the key risk of reviewing the 14,000 … is that the claimants have not asked for the documents yet. If we review them now, [the Post Office] will be required to disclose any adverse documents uncovered. This is doing the claimants’ work for them and may highlight new bugs in Horizon that the [claimants] had previously decided not to raise/overlooked. The advice of [Womble Bond Dickinson] therefore is that the [Post Office] should not review the 14,000 other Known Error Logs unless the claimants ask for them or Tony’s review highlights major risks that warrant a wider review.”
So your advice there is that you shouldn’t look at that wider body of error logs because there may be bugs in there that are found that need to be disclosed?
Andrew Parsons: No, not quite, because these are – these 14,000 KELs are back versions of KELs. So the original – the final version has been disclosed already within the Group Litigation. So these are only earlier versions of documents that have already been put out there and so they may contain more information about already disclosed problems but I think it’s unlikely they would have contained existence of new bugs.
Mr Blake: “This is doing the claimants’ work for them and may highlight new bugs in Horizon that the claimants had previously decided not to raise or overlooked.”
Andrew Parsons: Yes. There is a possibility of that, I accept that, but the context is important: that these are back versions of KELs that have already been disclosed.
Mr Blake: Once again, is this a concern in relation to looking for things or mentioning things just in case they had to be disclosed?
Andrew Parsons: Well, at this point we’ve already informed the claimants that there are these 14,000 KELs and they can, of course, request them and disclose them – request them and review them if they wanted to. In a piece of litigation like this, I don’t think it was incumbent upon Post Office to have to review those documents.
Mr Blake: Were you concerned that, if you carry out too many investigations at this stage, there would arise some information about the integrity of Horizon that would be disclosable that you wouldn’t want to be disclosed?
Andrew Parsons: I think that the depth of information around Horizon was massive. There were hundreds of thousands of documents and I think, if you review more technical documents on the system, there was always a possibility that it would give rise to a new problem. That’s just an inherent risk in a pile of documents that big and, if that happened, we would have to disclose it.
Mr Blake: That’s looking about in the system but what about discussing things with Fujitsu, for example? Were you concerned about discussing things with Fujitsu, just in case they gave you something that you might have to disclose?
Andrew Parsons: I don’t recall that being a consideration in terms of us being worried that Fujitsu would tell us that there was something to be disclosed. In fact, we repeatedly asked them for that type of information.
Mr Blake: So you were repeatedly asking Fujitsu for information, and what – is your concern that they weren’t giving it to you?
Andrew Parsons: Well, for example, if you go back, and this is at the end of – this is 2019 – if you go back to the earlier stages of the KEL, when we asked them about the KEL originally and we asked them explicitly are there any bugs that affect branch accounts within the KEL, they told us there weren’t any.
Mr Blake: Let’s look at POL00043169, please. We’re still on the KEL. Bottom of page 1, please, an email from you to Catherine Emanuel, Rodric Williams and others:
“No more progress on the [Known Error Log] review because I’ve asked Tony to turn his efforts to the [Known Error Log] response letter that now urgently needs to go out the door.
“He’ll then circle back to the remaining KELs to be reviewed of which there are about 15. We will then have a shortlist of about 25 (I’m guessing) KELs that will need [Fujitsu’s] input. We are collating a list of all the questions to [Fujitsu] on these 25 but before sending that to [Fujitsu] we need to take a tactical decision on whether that is a good idea, bearing in mind that sometimes we ask [Fujitsu] a question and get answers we don’t like!”
Isn’t that the opposite of what you’ve just told me in respect of to your relationship with Fujitsu?
Andrew Parsons: I wasn’t concerned there that they would turn around and say, “Look, there’s some more bugs in the system”. If they’d have told us that, we’d have disclosed it. The challenge at this stage was that the answers we’d get from Fujitsu would be opaque or difficult to understand, and could lean to lines and lines of questions, which means – and what we were trying to do here was move this matter to a conclusion.
Mr Blake: Surely what you’re doing there is very similar to what we saw from 2013 onwards, which is: don’t seek something out, don’t get hold of a document or information, because you might have to disclose that and it might be something that we don’t like?
Andrew Parsons: I don’t see the dots that you’re connecting there, I’m afraid. As I say, you have to consider each of these points in time as you look at them.
Mr Blake: Sir, that might be an appropriate moment to take our lunch, please.
Sir Wyn Williams: Certainly.
Mr Blake: Could we, please, therefore, come back at 2.15?
Sir Wyn Williams: 2.15. Right. Very well, yeah, we’ll resume at 2.15.
Mr Blake: Thank you very much.
(1.15 pm)
(The Short Adjournment)
(2.14 pm)
Mr Blake: Good afternoon, sir, can you see and hear me?
Sir Wyn Williams: Yes, I can, thank you.
Mr Blake: Thank you. Mr Parsons, we’re going to move on to a few separate topics, the first of which is Second Sight. Can we start, please, with WBON0000767, so we’ll start on 12 July 2013. If we scroll down there, there’s an email from you to Susan Crichton and you say as follows:
“Susan
“Had a quick chat with Gavin.”
Who is Gavin; is that Gavin Matthews?
Andrew Parsons: Correct.
Mr Blake: What was his position?
Andrew Parsons: He was my supervising partner.
Mr Blake: Yes.
“Arbitration will probably end up as formal and long-winded as court proceedings. We’d also lose a degree [of] control – the process and timing would be controlled by the arbitrator. I’m not attracted to this.”
So they’re discussing options: one is arbitration, another is mediation? You come on now to address mediation, and you say:
“Mediation is a definite possibility. I could envisage a mediation between [the Post Office] and each [subpostmaster] (with also [Second Sight] in the room – and perhaps Shoosmiths?). This gives each [subpostmaster] the opportunity to voice their views and discuss [Second Sight’s] findings. Having a mediator in the room would help equalise the imbalance of power. Mediation would not commit [the Post Office] to any outcome (unless one was agreed by both parties) and could be conducted on our timetable. If the mediations were run after [Second Sight’s] final report, this may help ensure that the report focuses on general themes whilst leaving specific cases to be heard in the subsequent mediation process.
“The risk in is that mediation is usually set up with a view to reaching a resolution. As discussed yesterday I doubt we will ever reach closure on these cases. [The Post Office’s] Comms Team would therefore need a robust media strategy to explain why the mediations will, in the majority of cases, fail to reach consensus between [the Post Office] and the [subpostmaster]. Otherwise, this may be spun as a failure to close out this matter.”
It seems as though there was a discussion the previous day, then, about mediation; do you recall those discussions?
Andrew Parsons: I recall that during this period there were a number of discussions about different ways of taking things forward after the Second Sight Interim Report, of which mediation was one of the possibilities.
Mr Blake: Now, why would mediations in the majority of cases fail to reach a consensus?
Andrew Parsons: My understanding at this point in time is that there was a large delta between Post Office’s view of the world and the subpostmasters’ view of the world.
Mr Blake: We know that it did go to mediation, ultimately. What was the purpose of mediation, if there was this large gulf that was unlikely to result in any resolution?
Andrew Parsons: So the shape of this moved on, after this email, into a slightly different shape of scheme, where the cases would be reinvestigated first and then mediated, which I thought would close the gap between the two parties and give mediation more of a prospect of success.
Mr Blake: Could we please turn to POL00191954. The same day, in fact, 12 July. If we turn to page 4, we can see there that Alan Bates has been in touch, addressing matters have been discussed, and it comes to a point where you are advising, if we turn to page 1, please – he made some suggestions on how the Mediation Scheme might be conducted and then we have your advice to Susan Crichton here. You say:
“Alan’s approach seems similar to what we discussed yesterday, however there are some critical differences:
“[Second Sight] seem to be being used as a weapon by the [Justice for Subpostmasters Alliance] to force [the Post Office] into settlement – that is not their job.
“The approach assumes that [the Post Office] is liable and will offer settlements (and seems to hint at cash settlements). I’m not sure where [Second Sight] have got this idea from? Any hint that [the Post Office] may be considering cash settlements would encourage the toxic cases, encourage Shoosmiths and play badly in the media. I think we need to put a stop to this quickly.”
Let’s just unpack that paragraph, please. First of all, cash settlements. It seems as though you’re surprised by the suggestion of cash settlements in the summer of 2013. Why is that?
Andrew Parsons: I think if – I can’t see Alan’s email here but I think the scheme that he was envisaging was more of a compensation scheme, whereby there was a sort of almost a presumption of liability and it was just then about compensating people, whilst, at this stage, Post Office wasn’t – their instructions weren’t that they weren’t prepared to accept liability across a wide piste.
Mr Blake: What is the purpose of mediation if there isn’t going to be a financial settlement at the end of it?
Andrew Parsons: There could possibly be a financial settlement at the end of mediation but, as I say, I think Alan’s proposal, which is further down this email chain, wasn’t a mediation proposal; it sort of assumed more of a compensation scheme structure.
Mr Blake: “Any hint that the Post Office may be considering cash settlements would encourage the toxic cases …”
Just pausing there, that’s an expression we’ve seen elsewhere. Can you see us with what “toxic cases” were?
Andrew Parsons: I think that was Alan’s choice of words to describe what he saw as particularly difficult subpostmaster cases.
Mr Blake: So they would be encouraged by the idea of cash settlements:
“… encourage Shoosmiths and play badly in the media. I think we need to put a stop to this quickly.”
Just reading that, what would be the – I mean, mediation would, at some stage, presumably, lead to some cash payments to subpostmasters, wouldn’t it?
Andrew Parsons: Yes. But, as I said, I think Alan’s email below isn’t really talking about a mediation-type structure; it’s talking more about a compensation scheme structure that assumes liability. So they’re two very different concepts and I was concerned here with Post Office conceding the liability point and assuming there would be cash settlements in every case.
Mr Blake: We’re going to move on to December 2013. Can we please turn to POL00327110. It’s an email from you to Martin Smith, Jarnail Singh and Rodric Williams:
“Martin, Jarnail, Rodric
“As discussed last week, below is our next thorny question on the interaction between the mediation and criminal prosecutions.
“We now have 4 cases in the scheme subject to live criminal investigations/prosecutions. Thus far we have refused to provide any details of these cases to the Working Group. However, the Working Group are concerned that as they have no oversight on these cases, there is no way for them to validate that the applicant’s application to the scheme should remain suspended. Underlying this is a general (and in my view unwarranted) distrust by [Second Sight] and the [Justice for Subpostmasters Alliance] of how [Post Office] handles criminal cases.”
We’ve spoken a lot today about how, in your view, you had a very hands-off approach to the criminal cases. How is it you formed the view that their distrust was unwarranted?
Andrew Parsons: I can’t recall this particular email and what drove that thought.
Mr Blake: Presumably, you had a sufficient knowledge of how the criminal cases were being addressed to write in an email that it was an unwarranted distrust?
Andrew Parsons: All my knowledge about the criminal cases was passed to me by the criminal lawyers. I never reviewed any of the criminal cases myself.
Mr Blake: But you didn’t say “in Cartwright King’s view it’s unwarranted”. You had formed a view at this stage about the trust that should be placed in the Post Office’s handling of criminal cases. How did you form that view?
Andrew Parsons: Based on the information I’d seen from the criminal lawyers.
Mr Blake: Did you just assume that what they had told you was correct, in that respect?
Andrew Parsons: Yes, because I was relying on them to provide me with that information.
Mr Blake: Can we please turn to POL00201761. We’re now in March 2014, 13 March and this is an email from yourself to Rodric Williams. If we actually scroll down slightly, at the bottom you can see there he is asking you, he says:
“What are your thoughts on how we should feed to [Second Sight Fujitsu’s] response below on [Second Sight’s] M014 report?”
So that’s a specific review that Second Sight are conducting. If we scroll up, please, you say as follows:
“Rodric
“I think we hold fire until we see the thematic report.”
So, by this stage, Second Sight were working on a second report that addressed themes; is that correct?
Andrew Parsons: That’s correct.
Mr Blake: “At the [Working Group] meeting on Friday [Second Sight] hinted that their concern is not a comms failure between branch and data centre (and therefore a failure to record transactions to the audit log in the DC) but rather it was where a third party system received the transactions but there is a comms failure that stops the transaction completing at the branch end … They call this the ‘one-sided’ transaction issue. The point is not expressly drawn out in M014 but does come out more clearly in M001 – Castleton.”
You then say this:
“The variation on the comms theme is not directly covered in the [Fujitsu] data integrity documents so we may need to commission further work from [Fujitsu] once we know for certain how [Second Sight] have characterised this in their thematic report. On that basis, I think sending more [information] at [Second Sight] at this stage risks them asking more questions. My preference is for a targeted attack on the [Second Sight] report when we understand the specifics of their position rather than be on the back foot in trying to defend the entire Horizon comms infrastructure.”
Second Sight were a firm of independent investigators that had been instructed by the Post Office to carry out that independent investigation. Is the approach that you’re taking here very similar to the approach in litigation? A targeted attack on their report. It does seem rather adversarial, doesn’t it?
Andrew Parsons: Yes, I accept that I adopted a reasonably adversarial approach.
Mr Blake: Was that based on instructions or was that the way that you saw it should be approached?
Andrew Parsons: It was a combination of my doubts at this point in the quality of Second Sight’s work and that was the general direction and theme that Post Office were taking.
Mr Blake: Who was setting that direction and theme, in your view?
Andrew Parsons: The group of individuals I was talking to on a daily basis about the scheme: so Rodric Williams, Belinda Crowe and the other members of the Project Sparrow team.
Mr Blake: When the scheme was set up, did anybody ever tell you, for example, “This is intended to be like a truth and reconciliation commission”, or something along those lines, “Where we’re not to take an adversarial approach”?
Andrew Parsons: Don’t recall any – I don’t recall anything along those lines.
Mr Blake: Can we please turn to POL00305714. We’re moving now swiftly to the summer of 2014, 11 August, and there is a meeting. Second Sight’s draft Part 2 mediation briefing report. It’s a teleconference. Amongst the participants you’re listed there as the representative from Bond Dickinson; do you recall that meeting?
Andrew Parsons: No, I don’t.
Mr Blake: Let’s have a look at the notes. The record of that teleconference. Could we go perhaps and look at page 3, please, the bottom half of page 3. Thank you:
“Lack of evidence
“Second Sight expressed concern that the character of the conversation is one of litigants – antagonistic.”
That’s a fair reflection of the approach you’ve just described, isn’t it?
Andrew Parsons: I think it waxed and waned so there was certainly a period of time at the beginning where we were very much looking to cooperate with Second Sight, provide as much information as we could, particularly in the individual cases. At times it became more adversarial and at times we tried to row that back again because we realised it had got too adversarial. So I think it moved during the course of, what, the 18 months that the scheme was running.
Mr Blake: “Second Sight claimed this is the antithesis of what the CEO and Chair assured them would be the case.”
Were you aware of any discussions or instructions from the CEO and Chair about how the scheme should be conducted?
Andrew Parsons: I don’t recall.
Mr Blake: “Post Office reassured Second Sight that the conversation is not antagonistic. Post Office expressed concern about Second Sight not getting to the truth of the case and not providing evidence.
“Post Office stated not trying to fetter Second Sight independence or take things out, just want to get the paper right. Post Office expressed concern that the lack of evidence doesn’t take things further. Post Office concerned applicants may feel issues are more widespread than they are.
“Second Sight claimed they report the truth, with an objective to help the applicants.”
Scroll over:
“Post Office raised two examples of items that are out of scope, et contract and criminal. ‘If you look at criminal matters need to ask why and who are you doing this for’.”
Just looking back at the attendees, there was nobody from Cartwright King at this meeting. You were the only external legal advisor at the meeting. Were these likely to have been your words or a summary of your words?
Andrew Parsons: I don’t recall this call and I think this document was only sent to me a few days ago, so I haven’t had a chance to look into it.
Mr Blake: “Post Office flagged the risk of straying into legal – layer upon layer of legal argument/dangerous ground to comment on contract – applicants may rely on as legal advice.
“Post Office suggested if there are areas Second Sight are not qualified to investigate – that might be an issue for Post Office to look at. Had the scope been criminal or contract, wouldn’t have employed accountants.
“Second Sight concerned late in the day to mention out of scope. ‘Don’t recall anyone raising this previously’. ‘No one previously cried foul’.
“Post Office responded that this is not about crying foul. Raising now as out of scope has first raised as a material point.”
You may not recall this exact meeting at which you were attending but can you recall, in the summer of 2014, those kinds of real tensions between the Post Office and Second Sight?
Andrew Parsons: Those issues around scope were points of tension. Post Office thought that Second Sight were exceeding their cope by including commentary on legal issues within their reports, where Post Office had attempted to run the scheme without advancing legal defences, certainly during the investigation phase. But, alongside this, there was also a lot of cooperation in terms of providing information to Second Sight.
Mr Blake: If we scroll up it’s not just scope, there’s the section on “Lack of evidence”, and it said there, penultimate paragraph:
“Post Office expressed concern that the lack of evidence doesn’t take things further. Post Office concerned applicants may feel issues are more widespread than they are.”
Is that a concern that you recall at that time –
Andrew Parsons: (No audible answer)
Mr Blake: – a concern at the Post Office that Second Sight might be giving the impression that things are more widespread than Post Office thought them to be?
Andrew Parsons: I don’t recall the last bullet point being discussed with me.
Mr Blake: You were at this meeting, though?
Andrew Parsons: As I say, I don’t recall the meeting.
Mr Blake: Do you remember that being a concern?
Andrew Parsons: I don’t recall that idea coming up.
Mr Blake: Can we please turn to POL00075810. Moving now to 16 October 2014. There’s an email, the second email on that page, please, if we scroll down, an email from you to Anthony Hooper, the Chair of the Working Group, and you say:
“On our last [Working Group] call you asked Post Office to make clear which cases it considers are suitable for mediation before the face-to-face meeting tomorrow. You asked Belinda to ensure that this information was copied to Second Sight so I have [copied in] Ron and Ian.
“Having carefully considered Second Sight’s final CRRs …”
Is that the questionnaires?
Andrew Parsons: No, that’s the Second Sight Report?
Mr Blake: “… Post Office’s position on mediation is set out below. We will explain at the meeting tomorrow our reasons for taking these positions.”
So you’ve been asked to identify which cases you consider are suitable for mediation and you have responded to the Chair of the Working Group and we have there set out the Post Office’s position on mediation. Can we please look at that. So if we scroll down slightly: number 1, unsuitable; number 3, unsuitable; number 5, currently minded to consider unsuitable; 17 unsuitable; 21 unsuitable; 29 unsuitable; et cetera, et cetera, et cetera.
At that point, all of the cases were listed by yourself as being unsuitable for mediation; do you recall that?
Andrew Parsons: I’m trying to think if there was any commonality in those cases that led to that decision. Because this is towards the end of 2014, the cases to which were suitable tended to move through the scheme quicker, so they may well have already passed through and what was left were the ones which were more heavily contested, where Post Office thought they were unsuitable. So the fact that that list is nearly all unsuitable may be a product of where we are in the scheme at that point in time.
Mr Blake: If we scroll up slightly:
“On our last [Working Group] call, you asked Post Office to make clear which cases it considers are suitable for mediation before the face-to-face meeting”, so you have been asked which are suitable and your response is, in effect, all were unsuitable?
Andrew Parsons: I suspect, at this point in time, these were the cases that were pending decision on whether to go to mediation. So by the end – if you can scroll up ever so slightly so I can see the date. So October ‘14, at this point the cases will all have been at different stages, some will be waiting investigation, some will have been investigated by Post Office, some will have been investigated by Second Sight and some will probably have gone through to mediation, so I think that’s just a snapshot in time of those cases.
Mr Blake: Do you think that, in reality, by that stage of 2014, this was a properly functioning scheme?
Andrew Parsons: I think it began to break down – well, the Working Group began to break down around this time and towards the end of 2014.
Mr Blake: Was the Working Group was meant to determine which ones were suitable and, at least on the face of this email, it’s not actually receiving any that the Post Office considered to be suitable?
Andrew Parsons: Well, as I say, this is a snapshot. How many cases are there, about ten? There are 150 cases in the scheme.
Mr Blake: Could we please turn to POL00141727, please. Still in October, 31 October now, an email from you to Patrick Bourke:
“Patrick
“In recent CRRs, I’ve noticed [Second Sight] using language such as ‘[the Post Office] has failed to disprove the applicant’s assertion’ – see paragraph 4.2 attached for an example. This is building in a presumption that the applicant is correct and that [the Post Office] has to disprove the position, even where the applicant has put forward no corroborating evidence. This will lead to [the Post Office] losing a lot of battles. I think this may be a point to raise with [Second Sight] on our next call as it’s not within their gift to apply an evidential presumption in favour of the applicants. If anything, the presumption should go in [the Post Office’s] favour given that (i) we are notionally the defendant and (ii) no one has yet proved a flaw in Horizon.”
Again, real tensions in that period between the Post Office and Second Sight, it seems?
Andrew Parsons: Yes, there were tensions during this period. I would just note that the way that Second Sight were asked to produce their reports by the Working Group is they were required to give an opinion where there was evidence and then identify issues on which they didn’t believe there was sufficient evidence to offer an opinion. So the concern here is they weren’t using the structure that was set by the Working Group.
Mr Blake: They weren’t, sorry?
Andrew Parsons: Using the structure for their reports that was set by the Working Group.
Mr Blake: I think Sir Anthony Hooper’s evidence to the Inquiry was that he wasn’t particularly concerned by the paperwork coming from Second Sight at this stage. Would you take a different view?
Andrew Parsons: I didn’t see Sir Anthony Hooper’s evidence and, I apologise, I’m not quite sure what the context was for his comment.
Mr Blake: Is your evidence that you personally had concerns about Second Sight’s paperwork as at October 2014?
Andrew Parsons: I had concerns at that point about the quality of the work product they were producing.
Mr Blake: Can we please turn to POL00176599. 7 November 2014, this is an email that the Inquiry has seen before, it’s Martin Smith to you and others. He says:
“From a criminal perspective, we would advise as a general rule against the disclosure of any documents from a criminal file which have not previously been disclosed to the defendant during the course of the original proceedings. To do otherwise may well enable the defendant or Second Sight to attempt to criticise the way in which the prosecution was conducted or how the Prosecution Policy was applied. Clearly such arguments in a public arena would be uncomfortable for [the Post Office].”
Did that raise any concerns for you?
Andrew Parsons: My recollection is that we, WBD, on the WBD side, looking at it from the scheme perspective, were keen to use the material in those files because we thought it helped explain the cases, and Martin and Cartwright King were pushing back against it. I think ultimately that question was taken up to the Working Group and Sir Anthony gave some directions on how to proceed.
Mr Blake: Can we please now look at POL00214323. 9 December 2014. Second Sight have provided a list of questions that they are seeking answers to. You can say there there’s an attachment, “Second Sight Questions for [the Post Office]”. This is an email from you to Belinda Crowe and others and you say as follows:
“There are some sensible questions in here but there is also a massive fishing expedition for information that does not address issues raised by applicants. I’ve highlighted all the questions that I think are just fishing for info in blue. There are also a number of questions that are outside the scope of the scheme. Most telling is the fact that there are only a handful of questions about Horizon; nearly all the questions are about accounting practices.”
I think you’ve accepted already that the approach that the Post Office was taking was adversarial in nature. Is this an example of that because, of course, Second Sight had been appointed as independent investigators, they’d made a request to the Post Office for information, and you, a lawyer, on Post Office’s behalf, have gone thorough that and reached the view that it’s what you might call a fishing expedition in litigation, and are addressing there which ones should and shouldn’t be answered.
Andrew Parsons: As I said earlier, the adversarial nature of it waxed and waned over time. Here I’m expressing concern about some of the questions but my understanding is, actually, that a good number of those questions – I can’t remember the exact amounts – were actually answered.
Mr Blake: We can have a look – I can take you, if you’d like, to – I may be able to take you to that document perhaps tomorrow morning. But is your approach here particularly adversarial, given that Second Sight had been appointed as independent investigators?
Andrew Parsons: No, I don’t think so I’m just advising Post Office on what I think is the relevance of the questions and, if you look at the last part there, it says, “My guess is this is going to take quite a lot of work to answer all these questions”, and, as I recall, it was quite a lot of work but a lot of the questions were answered.
Mr Blake: Well, let’s have a look at that. Can we look at POL00021863, please. Same month, December 2014, I think we’re in 29 December now. If we can turn to page 3 please, Belinda Crowe emails, she says:
“Mark/Paul/Andy Parsons – would you be able to prepare the schedule of questions to which Post Office is not prepared to respond and the reasons why – it would be that some of the text I have included in the letter is best placed in the schedule.”
So there’s a letter that’s being prepared to Second Sight in relation to the questions they’ve asked. If we scroll up, please. There’s a response from Mark Underwood, he says:
“Hi Belinda,
“As requested please find attached a list of questions we are not providing answers to, and the reasons why.
“Andy – there is one question I have highlighted. Did we actually your send out the response with regards to suspense accounts as I am unsure?
“In total we are not providing answers to 41 of the 1110 questions posed (37%). Splits by reason in the table below …”
He there sets out the table. So I think your evidence just before was that you did provide answers to lots of the questions. 37 per cent of those questions you weren’t answering, 25 per cent because you considered them to be fishing. Why even use “fishing” as an expression in relation to your independent investigators?
Andrew Parsons: This is Mark Underwood’s assessment of those questions. I know that this – these actually went through a two-stage process, so I think this is version 1 of the answers and then there was a discussion with Second Sight, I recall, where they clarified some of the questions. There was a discussion with the Working Group where the Working Group advised that some of the questions were too wide and a version 2 was produced with a lot more answers.
Mr Blake: Would you accept that’s quite a high percentage of questions not being answered at that stage?
Andrew Parsons: At that stage, yes.
Mr Blake: If we scroll up, we can see your response. You say:
“I’ve tried to flesh out some of the ‘reasons’ so that it doesn’t look like we are just stonewalling. I also think there are a few questions that we may be able to answer or at least fudge an answer. I think it would be better to try and answer a question than just refuse entirely wherever possible.”
So were you trying to push the Post Office to at least answer some more questions.
Andrew Parsons: If possible. From memory, some of the questions were very wide to the point where they were – you know, it would require disproportionate effort and what I was trying to encourage Post Office to do was at least try to answer a question, even if they couldn’t provide a full answer.
Mr Blake: You asked to see the questions and, I think, the table, and I can actually bring that on to screen, that is POL00021864. Is this what you had in mind?
Andrew Parsons: No, I had in mind the actual final version of the answers that were sent at the end of January.
Mr Blake: Well, this is attached to that email that I’ve just taken you to, where you’ve used the words “fudging an answer” and we can see 4.6d, for example, the question is, Second Sight are asking Post Office:
“Any instance in the last 3 years in which Post Office initially determined that a cash loss was attributed to a subpostmaster but where it was subsequently found that the subpostmaster was not responsible for the loss.”
The reasons for not providing an answer is:
“Request general information on the occurrence of certain events, without reference to it being raised by the applicants.”
Somebody has inserted there:
“Note: I think we could fudge the answer to this as follows …”
If we scroll down.
“As explained to Second Sight previously, subpostmasters can challenge any cash loss or transaction correction in their branch in relation to ATMs. In many circumstances, the information needed to determine the cause of any discrepancy is only held by a subpostmaster. There will therefore have been occasions when a transaction correction against a subpostmaster has been challenged and reversed – this is however standard operating practice.”
Can you assist us with who would have inserted that suggested form of words? If we scroll out again we can see the reference. In your email, you referred to “may be able to answer or at least fudge an answer”, and, if we scroll up we can see it says, “Note: I think we could fudge the answer to this as follows”. Does it suggest that that proposed answer is coming from you?
Andrew Parsons: It may have been but I was only provided this document a couple of days ago so I haven’t had a chance to consider it.
Mr Blake: Is it likely, given that you’ve used the word “fudge” in a covering email on the same date, that that is in fact coming from you?
Andrew Parsons: I think that’s possible, yes.
Mr Blake: Taking that as an example, why is it that that would have been something that couldn’t be answered by the Post Office in response to a request from Second Sight?
Andrew Parsons: So my recollection is that Post Office was only given by the Working Group a very short period of time to respond. I think it might have been a month, I may have that wrong. And if you look at that question, it says, “Any instance in the last 3 years in which Post Office initially determined that a cash loss was attributed to a subpostmaster”. That is a very large period of time to cover across 10,000 branches. So my view is that I don’t think it would have been practical to be able to get to the bottom of that answer within the time available.
Mr Blake: Why wouldn’t that have been the response? Why did you feel a need to fudge an answer to your independent investigators when the explanation could well have been, as you’ve just said, “That is not reasonably practicable in the time”?
Andrew Parsons: Well, I think the answer that’s given there is trying to assist them in – to give them a steer as to why this information may not be relevant or needed but I’d have to see the final version of the document to decide where we actually ended up with this.
Mr Blake: Is “fudging” a steer or is “fudging” fudging?
Andrew Parsons: No, I think we couldn’t answer the question because there wasn’t enough time. I think the answer given there, which I’m just reading again now, is an attempt to try to give a steer as to what Post Office’s position was.
Mr Blake: Isn’t it, yet again, taking a particularly adversarial approach to the independent investigators?
Andrew Parsons: Again, I don’t know what time this document was – sorry, I lost the date, I think you said it was 2014. My recollection is that, after this, there was a meeting with Second Sight to discuss the questions that couldn’t be answered to try to reframe them, narrow them, recast them, if needed, so that Post Office could then answer them so, yeah I accept that, to an extent, this is adversarial but it’s also – as I say it waxes and wanes and then there’s periods of cooperation as well.
Mr Blake: When in your view did it wane?
Andrew Parsons: Well, for example, sitting down with Second Sight and talking through these questions and trying to get to a mutual position on them.
Mr Blake: Could we please turn to POL00150460. We’re still in December 2014, the very end, 31 December 2014, and there has been the Westminster Hall debate and the Post Office is formulating a response to a case related to Members of Parliament’s queries. You’re emailed by Melanie Corfield, who, if we scroll down slightly, is emailing you and Angela van den Bogerd and others. She says:
“On the criminal cases the main message to land now that [Post Office] investigations are completed is our view that there is nothing that undermines the safety of convictions (but legal routes have of course never been closed to people). This will be unpalatable in the extreme to some and any meetings will certainly be made public, so we need to be in a position where we can release supporting, non-case specific documentation to counter inevitable allegations as much as possible.”
So, “On the criminal cases the main message to land now that the [Post Office] Investigations are completed is our view that there is nothing that undermines the safety of convictions”; what investigations did you understand that to be referring to?
Andrew Parsons: I think that’s a reference to the investigations through the mediation scheme.
Mr Blake: Having been somebody involved in the Mediation Scheme, quite heavily in this period, is it your view that the result of that mediation taking place was sufficient for the Post Office to form a view that there’s nothing that undermines the safety of convictions?
Andrew Parsons: Every case in the scheme – sorry, the investigation reports for every case in the scheme went to Cartwright King for review and I don’t recall Cartwright King raising anything in those reports that caused them to question the safety of a conviction.
Mr Blake: I’m going to move to the termination, proposed termination, of Second Sight. Can we please look at POL00022352. We’re now in February 2015, 5 February 2015. Patrick Bourke emails you and he says:
“Dear Andy
“We spoke briefly.
“I would be grateful if [Bond Dickinson] 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 if other matters occur) the nature and extent of [the Post Office’s] ability to control access to, and uses of, all and any information it has provided [Second Sight]; the duration and effectiveness of that control in particular with regard to the Part II report they are preparing; and the legal and practically effects of the 30-day notice period which the letter of engagement provides for.
“I am also interested in the effects, in legal and practical terms, of a termination given that the letter of engagement tries to make it clear that, although they are engaged by us, they in fact work to the [Working Group]. You can imagine the sorts of arguments which might be made.”
Now, this is very shortly after the Select Committee appearance of Second Sight and Paula Vennells. It seems from this email, were you aware, that it was the intention Post Office from this point to terminate the contract with Second Sight and not to have a Part Two Report?
Andrew Parsons: I – either shortly before or shortly after this, I think I was provided with a – I can’t remember if it was a Board paper or steering group paper about the termination of Second Sight. So I was aware that that was the direction of travel that Post Office were heading in.
Mr Blake: Were you aware that one of the reasons why they wanted to terminate Second Sight at that point was before the Part Two Report could be completed?
Andrew Parsons: The second version of the Part Two Report, the first version had already been produced by this point. I don’t remember it about stopping the Part Two Report. I remember the concern was more about ensuring that Second Sight focused on completing their investigations into individual cases before they focused on the Part Two Report.
Mr Blake: Shall we look at the advice that you gave? That’s POL00006364. It has “Bond Dickinson” on the final page, 6 February 2015. Is this is an advice that you wrote?
Andrew Parsons: Yes.
Mr Blake: If we scroll down, please, there’s a section on “Contract Termination”, so:
“The contract between [Post Office] and [Second Sight] is governed by the Engagement Letter dated 1 July 2014 and a Side Letter …”
If we scroll over the page, please, to Second Sight’s position during the notice period. Here you’re addressing the position of Second Sight during that 30-day notice period. You say as follows:
“Under the [engagement letter, Second Sight] is required to continue providing the Services until the end of the 30-day notice period and is entitled to be paid for any work done.
“There is however no converse obligation on Post Office to keep asking [Second Sight] to do work during the notice period or at any other time.
“[Second Sight] may try to argue that they have a right to continue to work during the 30-day notice period. We consider that this argument would be difficult for [Second Sight] to advance. First, the terms of the [letter] simply do not provide for this. Second, effectively [Second Sight] would be arguing that there was a minimum guaranteed volume of work due to them when no such guarantee was ever given. Third, [Second Sight] are paid on an hourly rate so their pay is not conditional on the completion of any work.
“One complicating factor is that the Services include [Second Sight] ‘assisting with any reasonable requests made by the Working Group and/or Post Office’. Although the Working Group has no legal standing to enforce the [Engagement Letter], decisions of the Working Group can nevertheless influence [Second Sight]’s work. If during the notice period the Working Group were to direct [Second Sight] to complete some work (within the scope of the services), then [Second Sight] would be entitled to complete this work and expect payment.
“To avoid this situation, we would therefore recommend that in tandem with the termination of [Second Sight], the Working Group is also disbanded so that it cannot give any directions to [Second Sight]. This will then enable Post Office to direct [Second Sight] to immediately cease all work.”
You’ve given in your witness statement a number of reasons why it was a sensible idea to terminate the Working Group. But, looking at this now, is a significant consideration in the disbanding of the Working Group that the effect of that would be to stop Second Sight from carrying out any further work?
Andrew Parsons: This advice was from the legal perspective on that decision and, from a legal perspective, if Post Office wanted a clean exit, then it seemed to me that they needed to disband the Working Group as well.
Mr Blake: Had you had discussions with the Post Office, their intention was to end Second Sight’s work and to prevent them from being provided with any other instructions by the Working Group?
Andrew Parsons: No, that wasn’t my understanding. My understanding is they wanted to bring to an end the current arrangement and replace it with a new arrangement that could see Second Sight complete their work. I can’t now recall whether that explicitly included Part Two or not.
Mr Blake: Let’s look at the disbanding of the Working Group. Let’s look at POL00021908. There was a draft paper that was circulated for the Sparrow subcommittee. We see that if we scroll over the page on page 2, Mark Davies is sending a first draft of that paper.
We then have, on page 1, your views. I’ll just take you to a few passages from this email:
“Belinda
“A few thoughts below on the Sparrow paper. In general, I agree with the idea of disbanding the [Working Group] as (i) it offers no real value and (ii) it is the source of much of the criticism of [Post Office Limited]. However, I can see some challenges with the other two limbs of proposal.”
Then you go on to address those two limbs. First is Second Sight’s role. You say:
“If [Second Sight] are independently contracted by applicants then I cannot see how [the Post Office] can dictate [Second Sight’s] scope of work.”
So one of the proposals was to let applicants themselves appoint Second Sight; is that correct?
Andrew Parsons: Yes.
Mr Blake: Your view was that that was not sensible because the Post Office would lose control?
Andrew Parsons: Yes. In particular, in terms of timing, because the great difficulty to this point was that Second Sight were a long way behind schedule.
Mr Blake: If we scroll down, we can see a second suggestion: mediating all non-criminal cases. You say as follows:
“Mediating all non-criminal cases of course means mediating lots of hopeless cases. Mediating unmeritorious cases raises applicants’ expectations unfairly and may in fact create greater animosity and complaints (certainly that was my experience from M002). My recommendation would be for [Post Office] to take a tougher line and only we date meritorious cases (even if the bar for this is set low).”
Just pausing there, wasn’t that the very purpose of the Working Group itself, to vet those applications to work out which were meritorious so they could go forward?
Andrew Parsons: That’s what I expected at the outset, however, through a series of decisions of the Working Group during the course of 2014, Sir Anthony Hooper decide to take an approach which lowered the bar on whether cases should go to mediation or not.
Mr Blake: Did you disagree then with Sir Anthony Hooper’s approach?
Andrew Parsons: I did disagree with that decision, yes.
Mr Blake: Aren’t you here, though, suggesting, imposing a bar, albeit a low bar?
Andrew Parsons: The distinction here is that the Working Group were prepared to put cases through to mediation where the subpostmaster had been convicted. That created a problem for Post Office because it had been advised by its criminal lawyers not to mediate with anyone with a conviction and that tension, in my view, was probably the root cause of the Working Group breaking down at the end of 2014.
Mr Blake: We saw earlier that email where – I know you said it was just a snapshot, but a very high number of cases had been deemed unsuitable by the Post Office. How do you get from a position where you are determining that a large number are unsuitable to saying, “Actually, we’ll mediate all non-criminal cases”?
Andrew Parsons: So, again, I think you have to be careful with that list because I feel it may not be a – I think it may be a subset of subpostmasters. I recognise some of the numbers on those lists and I think number of them were subpostmasters with convictions, though I can’t remember all the names and the numbers now. So I wouldn’t draw anything from that list. I think this is a proposal here to say Post Office should be looking to mediate meritorious cases even if the bar is low.
Mr Blake: Reflecting now on all those emails and just your recollection of the mediation process; do you think that the process itself was doomed fail?
Andrew Parsons: No, I don’t believe so. I think people went into it with good faith. I think the breakdown of – I think the relationship with Second Sight could have been better – between Post Office and Second Sight. I think that could have been more collaborative. I think that would have required more compromise on both sides to reach that stage. But I still think that the Mediation Scheme did a lot of good.
Mr Blake: Do you think, reflecting on it, you personally should have taken a less adversarial approach?
Andrew Parsons: Towards Second Sight? Yes, with hindsight I wish – I think there were some points where we were fair in criticising Second Sight but there were somewhere we were too adversarial.
Mr Blake: I’m going to move on now to the topic of remote access. I will I’ll go thorough a few documents and then we’ll take our afternoon break but then I’ll stick with remote access for the rest of the day. It’s possible I might move on to one other topic before we finish for the day.
Could we start, please, with POL00031456. So we’re starting 1 February 2015, and there are discussions with Melanie Corfield and Mark Underwood. If we scroll down slightly – actually, let’s start on page 3. Melanie Corfield emails Rodric Williams.
“What would be the circumstances for [Post Office] adding a transaction (we did so once in 2010 using functionality)? I know [very] rare, strict authority but would we need to ever do this?”
If we scroll up to page 2, there’s an email from you, if we scroll up slightly more, and you respond to say:
“Mel
“Sorry – we’ve never got any clarity of this point. The reality is that the use of the manual balancing process is so rare that there is no protocol for its use.”
If we scroll up, we see more correspondence on the issue. Page 1, the middle of page 1, and you’re still involved in this email chain: Mark Underwood to Melanie Corfield and you. Mark Underwood says:
“It comes back to Andy’s point about the question being wrong.
“‘Access’ can mean view …
“The question is can transactions be edited remotely – to which the answer is no.
“Once a transaction is in, it cannot be removed or edited in any way – all that can happen is for additional transactions to be put in to correct mistakes – all of which are visible to the [subpostmaster].”
Now, we know now that that is wrong:
“If PV and MD [that’s Paula Vennells and Mark Davies] are still confused – I would just send them the below extract from the paper as I think it makes it quite clear what can and cannot be done.
“Alternatively, we treat any questions about [remote access] with the contempt they deserve – why on earth would [Post Office] have a secret bunker in Bracknell accessing [subpostmasters] accounts?”
Then it sets out there the issue and the response.
If we scroll up, we see a response from Melanie Corfield, and she says:
“At one time our line was simply that there is no remote access but for most people I think that sounded unlikely given that you have to have [full] support etc. It has a different meaning for different people. I completely agree re showing contempt about the allegations on this subject! It’s a prime example, actually, of our rigour and investigating allegations that are in the realms of fantasy …”
What was your view on receiving those emails?
Andrew Parsons: It appears to me that Mark Underwood has set out factually what we understood the position to be at that time. Admittedly that was wrong. The language around, “and treat with contempt”, I think is probably too strong.
Mr Blake: Did you think that at the time or were those the kinds of emails that you would receive on the topic of remote access?
Andrew Parsons: I think at the time, people thought it was a very unlikely possibility that remote access was the actual cause of losses in branches. And at this time, going through the Mediation Scheme, determining the cause of a loss in the branch is the central, central question. So people generally thought, including myself, that remote access was never going to really move forward these cases, through the scheme.
Mr Blake: Can we please turn to POL00312743. The bottom of page 1, over into page 2. March 2015:
“All
“We’ve been through the prosecution file for M056 – Wylie. There will be further documents to disclose including the attached witness statement by Gareth Jenkins. At the top of page 3, Jenkins states:
“‘I also note a comment being made about it being [possible] to remotely access the system. It is true that such access is possible; however in an analysis of data audited by the system, it is possible to identify any data that has not been input directly by staff in the branch. Any such change to data is very rare and would be authorised by Post Office Limited. As I have not had an opportunity to examine data related to this branch, I cannot categorically say that this has not happen in this case, but would suggest it is highly unlikely’.”
You say as follows, you say:
“I’m pretty certain that Jenkins is referring to the balancing transaction process that allows [Fujitsu] to input new transactions rather than edit old transactions. Nevertheless, this will be a red rag to Second Sight.”
Why would it be a red rag to Second Sight?
Andrew Parsons: Because they were concerned about anything around remote access.
Mr Blake: The suggestion here being not just old transactions can be edited but that new transactions can be input.
Andrew Parsons: Correct.
Mr Blake: Thereby adding some substance to the allegation of remote access, potentially?
Andrew Parsons: It would – it adds substance to the question of whether it was possible or not. I don’t think that would change the question of whether remote access was actually a probative cause of losses in branches.
Mr Blake: If we scroll up, please. Rodric Williams to you, he says:
“This is consistent with our responses/statements about remote access isn’t it, ie you can add data/inject a balancing transaction, and if done ‘it is possible to identify any data that has not been input directly by staff in the branch’?”
Your response is at the top:
“Not quite – we say that transactions entered by [subpostmasters] cannot be edited but we don’t go on to say that [Fujitsu] can input new transactions in exceptional circumstances. This information would therefore be entirely new news to [Second Sight].”
Were you, by this stage, quite concerned about the information that had, so far, been disclosed about remote access?
Andrew Parsons: Yes. So when I first found out about the ability to inject balancing transactions, was back in 2014. I’d advised Post Office that they should give that information to Second Sight and it’s a point of regret for me that I didn’t press them to do that much sooner than now.
Mr Blake: In response to this issue being raised in March 2015, are you aware of that information then being disclosed to Second Sight?
Andrew Parsons: I think it was provided to them the next month.
Mr Blake: Can we please look at WBON0001024. If we could start please on the bottom of page 3, onto page 4. We’re now in 2016, July 2016. You are emailing counsel, Anthony de Garr Robinson, and you say, over that page:
“Your comments on the [letter of response] …”
So, at this stage, on the letter of response to the Group Litigation; is that right?
Andrew Parsons: Correct.
Mr Blake: “… are understood and very [helpful]. We’ll rework the general structure of the letter and then come back to you to discuss specific points.
“Off the back of yesterday’s call, (I think) I now have a better grasp of the central tenants [sic] of our case. I’ve tried to capture these below just to see if it matches your thinking.”
Then it’s at 2 you address remote access. So:
“The branch accounting system (including the role of Horizon within the accounting system) is built around the principle that the postmasters approve every transaction that goes into their accounts:
“a. They (or their assistants) enter all transactions conducted in branch; and
“b. They (or their assistants) approve any transactions originating from [Post Office] (such as transaction corrections).”
In brackets it says as follows:
“Note – the issue of remote access is critical here – my understanding is that [Post Office] will not use a balancing transaction without postmaster consent in which case this complies with the above principle but we need Deloitte to confirm this. Absolutely.”
Are you able to assist in whose words those are? Is that your email or is that somebody inputting into your email?
Andrew Parsons: I can’t tell.
Mr Blake: Certainly by this stage, the summer of 2016, you recognised the critical nature of that remote access point?
Andrew Parsons: Yes.
Mr Blake: POL00029990. We have an email from yourself to Jane MacLeod, Rodric Williams and others. It’s further to some Deloitte investigations:
“Before tomorrow’s steering group meeting I wanted to give you a heads-up on the ‘remote access’ issues …
“Deloitte has identified that a small number of super-users at [Fujitsu] have the ability to delete and edit transactions from the branch database. The [branch database] is the central server on which all branch transactions are recorded before being passed to other servers … This access is subject to strict controls and Deloittes current understanding is that it would not be possible to delete or edit transactions without leaving a footprint in the audit trail. They also believe that (i) this type of access is not unusual and (ii) the likelihood of someone actually making such changes is extremely low. This super-user access is a separate, yet more extensive, process to the balancing transaction process we previously knew about.”
Then you go on to identify what the issue is:
“The immediate concern is that this means that [the Post Office’s] historic statements about not being able to edit or delete transactions appear, at least on face value, to have been materially incorrect. This therefore may bring into play:
“(i) Allegations of deceit in that the Post Office has made false statements;
“(ii) A basis for unwinding the settled cases; and
“(iii) The possibility for some claimants to extend their limitation deadline …”
If you scroll down, you say:
“Once we have a much clearer picture, we may wish to seek Brian Altman’s advice on whether this issue causes any concerns for criminal law/disclosure perspective. We may also need to give consideration to whether to inform the [Criminal Cases Review Commission].”
So, first of all, this is presumably quite a significant moment for you, having been involved in the issue of transaction corrections for quite a number of years now?
Andrew Parsons: The issue of balancing transactions.
Mr Blake: The issue of super-users?
Andrew Parsons: Sorry, yes, well, we were – by this point, we’d seen – I’d been provided with copies of Deloitte’s earlier reports and the Swift Review which pulled this issue out. So this is further investigations by Deloitte.
Mr Blake: You’ve identified there under “Issues”, slightly further up, some civil issues.
Andrew Parsons: Mm-hm.
Mr Blake: But then you refer also to seeking Brian Altman’s advice and the Criminal Cases Review Commission potentially having to inform them. Is this, again, an example where, although you are not, as you’ve said many times, a criminal law expert, you are touching upon matters that affect the criminal law potential appeals?
Andrew Parsons: Here, yes, because I also recall that, a year earlier, we’d already got Brian’s advice on the remote access issues.
Mr Blake: Thank you.
Sir, I will be continuing with more questions on remote access but perhaps that is an appropriate time to take our mid-afternoon break.
Sir Wyn Williams: Yes, by all means.
Mr Blake: If we could come back at 3.35.
Sir Wyn Williams: Certainly.
Mr Blake: Thank you very much.
(3.18 pm)
(A short break)
(3.35 am)
Mr Blake: Thank you. Can we please turn to POL00245978, please, the bottom of the first page into the second page, please. We’re now on 27 November 2016 and you have drafted a letter to Freeths in response to their last substantive letter and you say as follows:
“The majority of this letter addresses legal and procedural points. The key substantive area is section 9 on remote access …
“Following feedback from Deloitte, we cannot definitively say that [the Post Office] (as distinct from [Fujitsu]) never had the ability to change Horizon data because Deloitte and the current staff at [Fujitsu] just don’t have enough knowledge of Old Horizon to confirm this. This was a point made in an early draft but it has now been removed.
“We have (I hope) now found a formulation of words that avoids having to overtly throw [Fujitsu] to the wolves and avoids any risk of waiving privilege in any documents, but still gives us a fair story to tell.”
What did you mean there by throwing Fujitsu to the wolves?
Andrew Parsons: I think this letter is addressing not just remote access but the statements that Post Office had made historically about remote access and the view was that a lot of the previous incorrect statements about remote access were because that Fujitsu had given us incorrect information or had given incorrect information to Post Office.
Mr Blake: Was that your view, was that the view of the Post Office, or was it both?
Andrew Parsons: Both.
Mr Blake: You say:
“We have also toned down the admissions of making incorrect statements, though they are still there. I hope this might make it easier to get this letter cleared through [the Group Executive] and [Fujitsu].”
So it seems Fujitsu are clearing the form of words that go to Freeths; is that correct?
Andrew Parsons: Where we were writing letters on technical issues then that type of language would go past Fujitsu to get their confirmation that they thought it was accurate.
Mr Blake: If we scroll up, please, we have a response, from Rob Houghton. He says:
“I personally think we overdo the response on access and I’ve suggested some changes.”
If we scroll up again there is a response from Thomas Moran, also of Post Office. He says:
“My overall conclusion is that could very well have serious implications on the proceedings and we absolutely have to make sure we are briefing and securing the support of the right people internally before issuing.
“As I’m the lucky man with the responsibility for this as the [steering group] Chair, I must ask that we get this properly reviewed by Mark Davies and also Angela who I don’t think are on this list. In particular we need a full assessment and media plan based on the worst case consequences in place before sending.”
Can you assist us with the position within the Post Office, the concern at that time, regarding the letter that was going to be sent to Freeths?
Andrew Parsons: If it’s the letter I’m thinking of, it was making concessions that Post Office had previously made incorrect statements about remote access, and that was the concern.
Mr Blake: There’s reference here to Mark Davies.
Andrew Parsons: Mm-hm.
Mr Blake: Was he somebody you knew?
Andrew Parsons: I knew of him. He was the Communications Director.
Mr Blake: How involved was he in these kinds of issues, from what you saw?
Andrew Parsons: He would occasionally get involved in some of the legal issues that were coming up in the scheme.
Mr Blake: Is it a fair reading of this correspondence that there was real concern within the business at this stage about this admission?
Andrew Parsons: Yes, there was real concern about making this admission.
Mr Blake: Could we, please, turn to POL00415440. This is actually the day before that final email in the chain but it all relates to the same issue, the same letter. It’s from you to counsel and you say:
“Rod has gone through the remote access section. The content is broadly the same. He has reordered the structure (which I like a lot) and toned down the ‘mea culpa’ (but I think this still works).”
Was that something the Post Office was doing, toning down the mea culpa?
Andrew Parsons: My recollection at this time is this letter does clearly state that Post Office made incorrect statements about remote access. There was some debate about the language that was used then to describe that situation but I don’t recall that there was any real debate about the direction the letter needed to go in.
Mr Blake: If we look at POL00246005, at the bottom of that page. The bottom of the page, please, this is 28 November:
“Please find attached the updated ‘remote access’ wording. The general direction of your comments was to be less apologetic in on to and less repetitive, both of which we’ve tried to accommodate in the attached.
“The key issue is how far we want to go in accepting that incorrect statements have been made in the past. I believe that some of the drafting/tone changes are coming out of us not having a settled view on this issue”, and you suggest a call.
So you say there the general direction of your comments was to be less apologetic. Where in particular was that coming from, in your view?
Andrew Parsons: I can’t now recall. We’d have sought comments on that drafting from probably the people on this email chain.
Mr Blake: Moving in to 2017 now. Could we turn to POL00249553. We’re now on to the drafting of the defence. So the admission has been made to Freeths in November 2016. We’re now on to the defence, in the summer of 2017. You are sending around the draft defence from counsel. If we scroll down, paragraph 2, it says:
“Paragraph 50(2) – do we say that POL previously relied on incorrect statements from [Fujitsu] in relation to remote access? This is basically dropping [Fujitsu] in it.”
Same point, I think, as before, really. It seems as though your view at that point was that Fujitsu were at fault or were to blame in some way, or that it was suggestive of that in the draft defence.
Andrew Parsons: I felt that Fujitsu were primarily responsible, not solely responsible, but primarily responsible, and there was a – I recall there was some debate around exactly how we put that point in the draft defence.
Mr Blake: Could we turn to WBON0000496, please. From Anthony de Garr Robinson, you’re copied in here, 10 July 2017. Another version of the draft defence is circulated. If we have a look at paragraph 60, he says:
“… the more I think about it, the more I think the whole of paragraph 60 other than the first two sentences ought to be deleted.”
There’s reference to mediation, et cetera, in there that he doesn’t want included. It’s the final line or final sentence there, he says:
“This seems to give us no excuse for not having researched the problem properly before we said remote alteration was not possible.”
Where do you consider the blame lies for insufficient research? It seems as though his view there was “us”, being the Post Office, rather than Fujitsu. Where do you think the blame lies for not having researched the problem properly?
Andrew Parsons: I don’t – I’m not sure whether Tony is using the word “us” to mean Post Office or Fujitsu, or the collective side of the case that was the Post Office side of the case – sorry, can you repeat the question?
Mr Blake: What is your view, though? We’re here, we’re years later now, we’re in 2017, we’re still debating on how it’s going to be phrased, the remote access issue. It’s clearly an important issue to the business. You’ve placed a lot of blame with Fujitsu but is it your view that the blame only lies with Fujitsu or that there was a failure at the Post Office end to research the problem properly?
Andrew Parsons: My view is it primarily sat with Fujitsu. I think there may – there’s probably some underlying problem with Post Office not understanding the Horizon system in enough detail across its organisation and I also, to some degree, accept an accountability on my part, because I feel I should have pushed harder on this issue during the scheme.
Mr Blake: Could we please turn to POL00249919. We’re still in July 2017 and you send an email to counsel:
“A quick note so that you’re in the loop on my meetings with [the Post Office] over the last few days …
“Both the Postmaster Litigation Steering Group and the Group Executive are comfortable with the defence [by this stage].”
You say:
“I’ve briefed both the [Postmaster Litigation Steering Group] and [the Group Executive] on what I saw as the key risk areas as follows.”
Then (2) is “Horizon integrity/remote access”:
“Much more comfortable now we have Deloitte’s work. Deloitte’s view is that it is unlikely that data integrity/remote access is the true cause of problems.
“[The Post Office] has previously made false statements and we admit this. Deny that they were known to be false when made.”
Then you say this:
“Both [the steering group and the Group Executive] are very uncomfortable about this but understand the tactical reasons for this approach.”
Can you assist us with what you meant there?
Andrew Parsons: I recall that senior management at Post Office were uncomfortable with making an admission that the previous statements had been incorrect.
Mr Blake: Who do you have in mind there?
Andrew Parsons: I don’t – I can’t place it to an individual because I would have been, at that time, I think, getting a lot of the feedback indirectly via the Legal Team and I can’t now recall these calls or meetings I had with the GE at that time.
Mr Blake: But the message that was coming to you from the Legal Team is that the steering group and Group Executive were very uncomfortable about that?
Andrew Parsons: Yes, and, actually, I can recall speaking to the steering group about it and getting that sense directly from them, as well.
Mr Blake: “Much discussion about media comments and managing bad publicity.”
Do we understand, looking at all these documents that we’ve been looking at this afternoon in relation to remote access, that you were personally very involved in the remote access issue from the legal side?
Andrew Parsons: If you’re talking about – which period of time are you talking about?
Mr Blake: The documents we’ve been looking at, so let’s say 2016/2017 period?
Andrew Parsons: Yes.
Mr Blake: There was a lot of focus on the wording –
Andrew Parsons: (The witness nodded)
Mr Blake: – a lot of care was taken over how that was presented; do you agree with that?
Andrew Parsons: Correct.
Mr Blake: It was a significant issue for the business as a whole, the Post Office?
Andrew Parsons: Err –
Mr Blake: The admission?
Andrew Parsons: I couldn’t comment as to what they thought about it as a wider business issue. I can tell you they thought it was important within the context of the litigation.
Mr Blake: As we’ve seen, a lot of toing and froing and care taken over the issue of remote access, in terms of how it would affect the litigation.
Andrew Parsons: Yes.
Mr Blake: Could we please turn to POL00254632, please. Now, this is a chain of emails. I appreciate that it’s a document you will only have seen this morning but I’d like your assistance on it. Let’s start on page 4, if we may. If we scroll down, please – actually, if we go to page 6, just to have a look at how this issue comes in. There’s somebody from Information Services called Eleanor Bradley, on page 6, if we scroll up, please. Thank you.
It’s a discussion about an issue that has been raised in a particular post office. If we please turn to page 4, and the email from Jonathan Gribben to you. So Jonathan Gribben was a Managing Associate in your firm; is that correct?
Andrew Parsons: Correct.
Mr Blake: I’d like to just read this email. He says:
“Andy,
“I have spoken to Sree …”
Now, was Sree the postmaster, do you recall?
Andrew Parsons: I don’t know.
Mr Blake: I think it’s the person who has at least raised the issue:
“… and he has sent me the email chain below by way of further background.”
Ah, so, in fact, Sree is from the Post Office, he is the Lead Branch Availability Manager, so he has raised it with your firm:
“In summary, Post Office have exhausted all other ways of cancelling this [transaction correction] and I agree that there is no alternative but for [Fujitsu] to manually remove it.
“Some key points:
“The [transaction correction] relates to a redundant product that this branch never sold – Post Office reinstated the product and gave the branch permission to sell it, but it was not possible for the branch to accept the [transaction correction];
“Post Office cannot issue another [transaction correction] to net the first one off for the same reason …
“The [transaction correction] was issued due to human error rather than a technical fault.”
Just pausing there, a transaction correction has been issued in relation to this branch:
“The branch is a McColl’s branch, so it’s less likely that the claimants in the [Group Litigation] will become aware of the issue and get the wrong end of the stick; and
“In Sree’s view the real risk to Post Office is not fixing the issue – as it’s preventing the branch from completing its trading period the branch may have been incurring losses and in the circumstances Post Office likely to have to pick those losses up.
“Are you happy for me to give Sree the green light to have [Fujitsu] remove the [transaction correction]?”
So there has been an issue in a branch, it’s a McColl’s branch, I think that’s a chain branch, and it seems as though they are holding off asking Fujitsu to remove the transaction correction because of the ongoing litigation and the issue of remote access; is that right?
Andrew Parsons: Yes, that appears what that’s saying.
Mr Blake: If we scroll up, we have your response, and you say:
“Can they not settle the [transaction correction] centrally and then wipe it off the postmaster’s account?”
Were you, at this point, qualified to be making suggestions as to how to correct an error in a branch’s accounts?
Andrew Parsons: I knew enough about transaction corrections that there were a couple of ways they could be processed through the system. Where it refers to a “postmaster’s account” there, that doesn’t mean the account on Horizon; that means the account at FSC.
Mr Blake: Why are you getting involved in the minutiae of a postmaster’s account?
Andrew Parsons: Because it appears from the email below – and I have to say, I don’t recall this email and, as you said earlier, I only was passed it this morning – it appears from the email below that the solution being proposed is for Fujitsu to manually delete or remove some data. That’s a version of remote access, it appears, and that’s a very key issue in the litigation.
Mr Blake: If we scroll up, we see Angela van den Bogerd. She says:
“No. I asked Sree last night when he rang me. The issue is that the branch cannot process the [transaction correction] at all.”
If we scroll up, we have your response, and you say this:
“All,
“I think we (the legal team) need to take charge of this process. Whatever documents are produced are likely to be disclosable and I would like as far as possible for this to be covered by privilege or have controlled their content.
“1. As a first step, I would like Sree to copy all emails on this topic (past and future) to Jonny.”
So Jonny is a lawyer, is he?
Andrew Parsons: Correct.
Mr Blake: “Jonny, please then keep this somewhere separate and safe. He should then be instructed to take no further action for now.
“Second, I would like to escalate this to Pete and Torstein at [Fujitsu] so that they can produce for us a full (and privileged) note on what has happened and why there is no alternative but to editing the data.
“Third, we can then make a decision on how to proceed in light of the full facts.
“I understand that this is going to cause operational problems and risks in this branch, but if not handled properly this could be disastrous for the Group Litigation.”
Doesn’t this take us back to where we began today at the very beginning: that your advice to the Post Office is “Let’s blanket this in privilege”? This is a technical issue with a branch, not a claimant’s branch, a random branch that is affected that needs a correction and your advice is, “Let’s cover this in privilege because it could be disastrous for the Group Litigation”. Just as, in the very early years, you were advising in respect of, for example, the notification to the insurer, “Let’s not write that down; let’s deal with it, cover it in privilege as far as we can”?
Andrew Parsons: I think in the context here and as I’ve said a number of times, I think all of these decisions are context specific. We are in the middle of a large piece of litigation, an issue has arisen that is related to one of the key issues in that litigation. I think it’s appropriate for any organisation to avail itself of legal privilege to investigate that issue. To be clear, that is not to say the issue wouldn’t be brought to light. I think it’s possible for an organisation to investigate something under privilege and then to make decisions later, when it has the full facts, as to how that then gets disclosed through the litigation process.
Mr Blake: But here we have, “Hold off making that correction to a branch, unrelated branch, because of the impact on the Group Litigation”. Do you think that was an appropriate approach to take?
Andrew Parsons: I do think that was an appropriate approach to take.
Mr Blake: Does it make any difference for you that the Post Office is owned by the Government, by the taxpayer, in how that kind of litigation is conducted?
Andrew Parsons: I still think Post Office was entitled to avail itself of legal privilege.
Mr Blake: Final document I’ll take you to today, it’s POL00276195. It’s an email from yourself to Ben Foat and Rodric Williams in June 2019, and you’re explaining to Ben Foat about some of the history of the litigation and why an overall advice had not been obtained. I’ll read the email. It says:
“The concern at the outset was that any early settlement would be seen as conceding the [claimants’] arguments on the [subpostmaster] contracts and Horizon. This would then possibly open up the floodgates to more claims, so the plan was for Post Office to try to secure some positive decisions in its favour before breaching the topic of settlement.
“The strategy was to contest the Common Issues trial, because based on the advice from Counsel, Post Office should win on most points. When the Common Issues expected to be resolved in [the Post Office’s] favour, either the [claimants’] funding would collapse or they might walk away for a modest settlement that, when viewed against a positive Common Issues judgment, would not set a dangerous precedent. With this in mind, before the [Common Issues] judgment was handed down we had already agreed a mediator with Freeths and had begun planning for settlement discussions.
“Further, Post Office had Deloitte review the Horizon system out at the outset of the litigation and they advised that Horizon was robust and extremely unlikely to be the cause of shortfalls in branches. This therefore gave us a back-up plan in case [the] resolution didn’t come immediately in the wake of a Common Issues judgment. Deloitte gave us a degree of confidence in winning the Horizon trial, and that might then cause the [Claimants’] funding to collapse or a modest settlement would be possible.
“If this didn’t work, then the next step was to ‘thin the herd’. By this we meant identifying subgroups of Claimants whose claims could be defeated on a technicality or legal point. For example, trying to strike out all of the time-barred claims. By ‘thinning the herd’ you undermine the economics of the group. Less claimants means less damages which makes the funder’s return on investment lower to the point where they would prefer to settle rather than invest more money.”
It’s this final substantive paragraph that I’d like to focus on. You say:
“The strategy was never to seek an outright win through the Court process, for that would mean ultimately defending 500+ individual claims in 500+ separate trials (because the cases turn on their own facts and the utility of dealing with them as a group gradually erodes as more ‘group issues’ are resolved and you are left with individual issues). Even if Post Office’s legal case was perfect, securing a full resolution through the Courts would take years and be massively disproportionately expensive. Hence, the above plan to build leverage and air cover through the Court process to force a settlement or collapse of the litigation.”
Does that explain the approach that you took to disclosure throughout these years, that you would never see a final trial, so no one would ultimately look under the various rocks that had been placed over these pieces of information?
Andrew Parsons: No, I don’t ever recall thinking like that.
Mr Blake: Was it a strategy to delay disclosure of important documents, just like we saw in relation to that Amy Prime email that you inputted into: delay, delay, delay disclosure until the moment at which you’re becoming criticised and then you can provide it and, if that strategy worked, you would never have to provide certain information because the plan was never to hear the full trial until the end?
Andrew Parsons: No. I think you’ve referred to one outlier email and, if you look at the balance of the advice we gave on disclosure to Post Office, it was actually to err on the side of giving more disclosure and being generous with disclosure.
Mr Blake: Sir, that might be an appropriate moment to break for the day.
Sir Wyn Williams: Yes.
Mr Blake: I have, at most, one hour left, and then we have questioning from Core Participants, which shouldn’t be more than around an hour and a half, at most two hours. So we have plenty of time tomorrow.
Sir Wyn Williams: That’s fine. I’d be grateful, Mr Blake, if you’d just send me a rough breakdown of what we expect with the Core Participants, so that I am au fait of what’s likely to occur, if you would?
Mr Blake: Absolutely.
Sir Wyn Williams: But yes, let’s call it a day for today, and we will resume again at 9.45 tomorrow.
Mr Blake: Thank you very much, sir.
(4.03 pm)
(The hearing adjourned until 9.45 am the following day)