20 June 2024 – Graham Ward, Anthony Kearns and Kay Linnell
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(9.45 am)
Mr Beer: Good morning, sir, can you see and hear us?
Sir Wyn Williams: Yes, thank you very much.
Mr Beer: Can I check that Mr Ward can see and hear us?
The Witness: I can, yes.
Mr Beer: Thank you very much. May I recall Graham Ward, he needs to be resworn, please.
Sir Wyn Williams: Yes.
Graham Ward
GRAHAM WARD (re-sworn).
Questioned by Mr Beer
Sir Wyn Williams: Mr Ward, you may recall that, before you gave evidence on the last occasion, I gave you what I’ll call a direction about answering questions which the answers to which might incriminate you. Do you remember you doing that?
Graham Ward: I recall that, yes.
Sir Wyn Williams: Since a number of months have gone by, I think it’s appropriate that I remind you of that before you answer questions this morning, all right. So it will be in very similar terms, if not identical, to the direction I gave you on the previous occasion when you gave evidence. So, under our law, a witness at a public inquiry has the right to decline to answer a question put to him by any lawyer at the Inquiry, or, for that matter, by anyone else, if there is a risk that the answer to that question would incriminate the witness. This legal principle is known in shorthand form as the privilege against self-incrimination.
I remind you that is for you to make it clear to me in respect of any question put to you if you wish to rely upon the privilege against self-incrimination. So if any questions are put to you by any of the lawyers who ask you questions, or by me, which you do not wish to answer on the ground that to answer might incriminate you, you must tell me immediately after any such question is put to you. At that point I will consider your objection to answering the question and, thereafter, rule upon whether your objection should be upheld.
Now, you’re giving evidence remotely this morning. Do you have the facility to take legal advice from anyone should this issue arise.
Graham Ward: Yes, I have, yes.
Sir Wyn Williams: Fine. So should this issue arise and should you wish to speak to the legal person who is assisting you, you must tell me and then I will consider whether that is appropriate, all right?
Graham Ward: Okay.
Sir Wyn Williams: So do you understand all that, Mr Ward?
Graham Ward: Yes, sir, I understand.
Sir Wyn Williams: Thank you. Over to you, Mr Beer.
Mr Beer: Thank you.
Good morning, Mr Ward.
Graham Ward: Good morning.
Mr Beer: You gave evidence on 1 February 2024, and I want to ask you some questions today about a single issue, namely your involvement in changes made to Gareth Jenkins’ witness statement in the case of Noel Thomas; do you understand?
Graham Ward: Yes, I do.
Mr Beer: You gave evidence about that issue on 1 February 2024. The Inquiry is now in possession of material with which we can further explore that issue. Can I recap in general terms of where we were when you gave evidence on the last occasion. We’re dealing with events in 2006, where you were the assistant Casework Manager in the Security team; is that right?
Graham Ward: I think in 2006 I was the Casework Manager.
Mr Beer: Okay. That was a position you’d held since 2002?
Graham Ward: Correct.
Mr Beer: You told us on the last occasion that you were the Casework Manager for the case of Noel Thomas and, therefore, acted as the single point of contact between the Post Office and Fujitsu in relation to Litigation Support in that case.
Graham Ward: That’s correct.
Mr Beer: On the last occasion, we dealt with proposed changes and changes made to a witness statement prepared by Gareth Jenkins for the purpose of the prosecution of Noel Thomas.
Graham Ward: That’s correct.
Mr Beer: Now, before I ask my questions of you, I think it’s fair to remind you of what you said on the last occasion about this topic. Now, that’s going to involve reading a very significant part of the transcript of your evidence on the last occasion but it’s important that I put the questions that I’m about to ask you in the context of that evidence, so that you can see and hear what you said on the last occasion, okay?
Graham Ward: Okay.
Mr Beer: Can we look, please, at the transcript. It’s INQ00001124. We can see, at the top left-hand side, if we can just scroll in on – zoom in on that, rather. It’s Thursday, 1 February 2024, and you gave evidence and you swore an oath like you have on this occasion.
Graham Ward: Okay.
Mr Beer: Can we go forward to page 40, please, and can we look in the bottom right-hand corner, please, at internal pagination 160, and scroll down once more. Thank you. This is partly picking it up mid-way through the topic, or partway through the topic, but I had to pick somewhere to start and this is a good place. It’s a gentle run in to the questions that matter. I’ll read it. It’s me speaking, page 160, line 2:
“We’re now in March 2006 and you’re emailing the Fujitsu email account in relation to a range of cases, ‘ARQs, statement request and assistance’, and you speak about two attached files:
“‘Both of the above requests relate to cases where the Post Office are being challenged about the accuracy …’
“You deal with Marine Drive and Torquay [Drive] next, further down, if we scroll on, please. Then at the bottom of the page, you say:
“‘On a separate matter, I also require a witness statement in [relation] to the following ARQs’, and then there’s one of the ones we’ve seen already, 401.
“Answer: Yes.
“Question: There’s also 459 and 460, all of which relate to Mr Thomas’ branch:
“‘We need the usual (leave out paragraphs H(b) and J but we do need K) covering an analysis over the period 01/11/04 to 30/11/05. Penny – you may recall this one relates to nil transactions, my previous emails … refer. Can you add an extra paragraph in your statement explaining how online banking transactions are processed and the data downloaded and how nil transactions can occur?’”
Then over the page, page 161:
“So five or six months has now passed and you’re now asking for a witness statement to address the things that had been mentioned in the three emails that you refer to there it; is that right?
“Answer: Sounds like it, yeah.
“Question: Can we go to FUJ00152582. Look at page 3, please. This is 11 days later, you emailing Penny Thomas about Mr Thomas’ branch:
“‘These are the nil transactions you sent us and will need to be produced and explained within your (Brian’s) statement.’
“You attach the 401 analysis and then the ARQ data under the numbers 459 and 460, by which you have now got these, yes?
“Answer: Yes.
“Question: If we go down to page 2 please. We can see that, if we scroll down a little bit, in an email that you wouldn’t have known about at the time, Brian Pinder of Fujitsu is forwarding that email to Gareth Jenkins:
“’… please see extract from a recent email below in italics from Graham Ward …’
“Then he extracts your email of 10 March that we looked at a moment ago:
“’… regarding providing a statement about nil transactions and online banking. If you’re able to put something together for us, I’d be grateful. If you send it back I’ll arrange for Neneh or Penny to write into a statement for your signature.’
“Then he cuts in what you had said in your 10 March email; can you see that?”
“Answer: Yeah.”
“Question: The important part is in bold in italics:
“‘Can you add an extra paragraph in your statement explaining how online banking transactions are processed and the data downloaded and how nil transactions can occur.’
“So this is Mr Pinder asking Mr Jenkins to put something together for him or for us, for Fujitsu, in order to address that issue. If we go up to page 1, please, scroll down, please, we can see Mr Jenkins’ reply:
“‘I’ve had a look at the ARQs and I think there is sufficient info there to explain in most cases why there are zero … transactions. I suggest the [that should probably be ‘following’) as a brief explanation.
“‘Three main reasons why zero transactions maybe generated as part of the banking system.
“‘No financial effect;
“‘Declined by bank; or
“‘There has been some sort of system failure.’
“He gives some examples:
“‘How do you want to play this? Do you want to add in specific text to the witness statement to cover these two codes or persuade [Post Office] that the generic statement is okay perhaps with some clearer words?’
“Further up the page, please. She – that’s Neneh Lowther – says that she’s updated your witness statement – Mr Jenkins’ witness statement. She’s not included the response below because she’s not sure how to fit it in. Could you help:
“‘Also I believe that Graham Ward is thinking that ‘system failures’ are drastic events.’
“Is that true?
“Answer: Well, I just wanted them explained. I didn’t know whether they were drastic or not. It’s just from – you know, and it’s going back such a long, it’s so hard to sort of recall what I was thinking, but I’m guessing that the first statement wasn’t clear to me at that time so I just wanted a bit more context around what he meant by system failures.
“Question: Then scroll up, please. Mr Jenkins says he’s annotated it with revisions and doesn’t feel able to include the last two paragraphs which may make the statement useless.
“Can we now look, please, at the draft that he had previously provided. Can we start, please, with FUJ00122204. Can we scroll down please. He says:
“‘There are three main reasons why a zero value transaction may be generated …’
“System failure is the third of them:
“‘Such failures are normal occurrences.’
“He then sets out in summary terms in substance the same thing in the email we looked at, about response codes; can you see that?
“Answer: Yeah. Yes, I can, yeah.
“Question: Would you agree that this is important information that a zero value transaction may be shown or may be generated, including by reason of a system failure –
“Answer: Yes. It is important, yeah.
“Question: – and that he is saying that such failures are normal occurrences –
“Answer: Yeah.
“Question: – and he’s saying that there’s a system code that may identify them?
“Answer: Yeah, I don’t know that I was tying in the paragraphs beneath that with system failures. Maybe that’s just my ignorance of not knowing exactly what nil transactions were.
“Question: Doesn’t this explain it? His numbered paragraph 3, some sort of system failure is linked to the third bullet [attached] to this email?”
“Answer: I would like to think …”
Sorry, if we just go back, please, to the previous page:
“… linked to the third bullet at the bottom of this page: response code with a value greater than 10 implies some sort of system failure.
“Answer: Yeah –
“Question: They’re speaking about the same thing, aren’t they?
“Answer: Yeah, I can see that now, yeah.
“Question: Then if we go forward to page 3, please those last two paragraphs, can you see the one beginning ‘No reason to believe that’ and –
“Answer: Yeah.
“Question: – ‘any records to which I refer’?
“Answer: Yeah.
“Question: You remember he said he didn’t feel he was able to include those –
“Answer: Yes, I do, yeah.
“Question: – and that they may make the statement useless?
“Answer: Yes.
“Question: What did you think the purpose of the inclusion of those two paragraphs was?
“Answer: Well, these were two general paragraphs that the Criminal Law Team had asked to be included on statements that produced computer evidence. So it was, to my mind, important to have them in there to say that the system was operating properly and didn’t affect the information held on it.”
“Question: What did you take from the fact that he thought that these bits, which I think on the original were highlighted in yellow weren’t true, or he wasn’t sure were true?
“Answer: Well, that would have been a concern, obviously.
“Question: Sorry?
“Answer: That would have been a huge concern, if he –
“Question: Why would it have been a huge concern?
“Answer: Because if he can’t say that the system is operating properly, then, you know, there’s a problem isn’t there? If this – this wasn’t the final statement was it?
“Question: No.
“Answer: Oh, right.
“Question: What we’ll see happens is that he requests for them to be removed. They are removed and then, in the end draft, they come back in.
“Answer: What the statement that was produced in evidence?
“Question: Yes.
“Answer: I don’t know anything about that.
“Question: He says:
“‘Can this be deleted? All I’ve done is interpret the data …’
“Answer: Yeah.
“Question: ‘… in the spreadsheets you’ve emailed to me.’
“Would you have read this at the time, ie the attachment to this email?
“Answer: I would like to think I would, yeah.
“Question: This being the attachment to the email you got?
“Answer: Yeah, I would have thought so, yeah.
“Question: Do you understand these or did you understand these two paragraphs to be statements speaking to the accuracy and reliability of Horizon generally or about a system that had been used to extract ARQ data?
“Answer: Horizon generally.
“Question: Hence your belief that these were significant omissions –
“Answer: Yeah.
“Question: – or they would have been significant omissions?
“Answer: Yeah.
“Question: Can we look, please, at FUJ00122210. If we scroll down, on the 24th, ie the next day – sorry, scroll up, please:
“‘This statement needs more work …’
“You’re emailing Neneh Lowther, Brian Pinder, Keith Baines, Paul Dawkins and Diane Matthews:
“‘This statement needs more work. I’ve attached a suggested draft with a number of comments (as mentioned previously I think the “system failure normal occurrence” line is potentially very damaging).’
“Firstly, why did you think the ‘system failure normal occurrence’ line was potentially very damaging?
“Answer: Well, just for the reason that I’ve said previously. I think I was just looking for a little bit – it just wasn’t clear to me exactly what he meant by it and that may just be my ignorance of not knowing about banking transactions and nil transactions but, you know, I’m just offering a comment. I’m not trying to lead him into saying anything in his statement, or anything like that, I was trying to be helpful but clearly I wasn’t being. As I say, I can see here it says it may be worth someone from our team taking a statement directly from him.
“Question: Why did you think that was a good idea?
“Answer: I just thought it was getting a bit confusing with his statement and I just thought maybe it would be best for the Investigator dealing with the investigation to actually, you know, deal with it themselves.
“Question: Why would you be concerned if a person with expertise from Fujitsu is giving technical evidence, the effect of which was damaging? Wouldn’t you be pleased with that, as an Investigator or somebody associated with an investigation, the true position was being revealed?
“Answer: Well, yeah, when you word it like that, yes, and I really wasn’t trying to alter his statement or make him say anything; I was just wanting, you know, clarity on what he meant by ‘system failures’.
“Question: That’s not how it reads, is it?
“Answer: No, it’s not.
“Question: You’ve gone straight to the effect of what he says, ie it causes us, the Post Office, damage.
“Answer: Yeah, I can see how it looks now.
“Question: Again, is this one of those examples of the way that you were thinking at the time: the importance thing is to maintain, even in our prosecutions, the line that Horizon has integrity and produces reliable data?
“Answer: I wasn’t trying to do that, no. I just obviously had a closed mind to the way I put things across but I really wasn’t trying to – you know, at the end of the day, the truth is more important, and –
“Question: We don’t see that kind of sentiment in any of your email exchanges, do we?
“Answer: Well, no, maybe not, but I know the person that I am.
“Question: I think we can delete ‘maybe’ from that sentence and replace it with ‘definitely’.
“Answer: Okay.
“Question: Can we look, please, at POL00047895. This is a copy of the marked-up witness statement, marked up by you, forwarded by Ms Lowther to Mr Jenkins. If we scroll down, please, and we keep reading – sorry, if we just go back to the top, please. Then scroll down slowly, please.
Remaining in the statement, in the second paragraph, second line:
“‘I was asked to produce information relating to “nil” transactions’.
“Then if we go to the second page, please. Then the paragraph beginning ‘There are three’, we see your comments:
“‘There are three …’
“Then you’ve added:
“‘If these are the main three reasons, what are the rest?’.
“That’s in the nature of a question both in terms of the words used and the used of the question mark. So that’s clarificatory, isn’t it?
“Answer: Yeah.
“Question: Yes?
“Answer: Yes, sorry.
“Question: So you’re genuinely trying to find something out, by the look of it there –
“Answer: Yeah.
“Question: – why a zero transaction may be generated as part of the banking system. Then we see Mr Jenkins’ own words:
“‘Transaction has no financial effect. Transaction has been declined by the bank.’
“Then we see system failure reason missing, don’t we; you’ve delete it, haven’t you?
“Answer: No, I would not have deleted anything at all.
“Question: Well, why doesn’t it appear here?
“Answer: I don’t know.
“Question: You’ve typed over it:
“‘This is a really poor choice of words which seems to accept that failures in the system are normal and therefore may well support the postmaster’s claim that the system is to blame for losses!!!!’
“Answer: No, I would not have typed over anything or deleted anything at all. I just know the person that I am and I wouldn’t have done that.
“Question: Well, you were concerned, we’ve seen, at the emails that preceded this, with what Mr Jenkins was proposing to say about system failures, weren’t you?
“Answer: Yeah, I was concerned, yeah. I just wanted clarity on it, as I said, but I would not have typed over or deleted it.
“Question: This is the attachment to an email that you sent to Neneh Lowther, who, in turn send it on to Mr Jenkins?
“Answer: Right.
“Question: Do you know where these words have come from, then?
“Answer: Well, I’m sure I’ve – I must have typed the words, yeah. But I wouldn’t have typed over ‘system failure’.
“Question: Okay, if we move on. Next page, please. We see that the paragraphs that were previously in yellow, which Mr Jenkins said he didn’t feel he could say, have been deleted. Did you delete those then?
“Answer: No. I can’t explain it at all. I would not have written over or deleted anything from anybody’s statement. Absolutely not.
“Question: Can we move to FUJ00122217.”
Then the Chairman intervenes:
“Well, before we do, since I think you’ve just accepted that you attached this witness statement to an email you sent, can you explain where there is witness statement came from, so as to enable you to attach it to an email?”
“Answer: No, I’m sorry, sir. I just cannot remember, you know, this at all.
“The Chairman: Well, people’s memory, of course, is for them to tell me about, but this is a pretty memorable event, is it not? This is you really becoming involved in an important statement in relation to the prosecution of someone in a way that you’d ever done before, as I’ve understood it. So can you try and rack your memory, please, as to how this statement came to be attached to an email you sent.
“Answer: Honestly, I just can’t explain it at all, no. I really can’t.”
We can take that transcript down. That’s where the relevant exchanges end. So that’s the entirety of the evidence that you gave on the last occasion about the issue of suggesting changes or actually making changes to the witness statement of Gareth Jenkins in the case of the prosecution of Noel Thomas.
Mr Ward, do you accept that, on the last occasion, you, firstly, agreed that you sent an email on 24 March 2006 to Fujitsu that had, as an attachment to it, a marked-up copy of Gareth Jenkins’ witness statement?
Graham Ward: Yes, I do, yeah.
Mr Beer: Do you agree that, on the last occasion, you denied deleting or typing over the “system failure” reason, the third reason for nil transactions that Mr Jenkins had given?
Graham Ward: Yeah.
Mr Beer: Do you agree that, on the last occasion, you said that you didn’t know why that line had disappeared from the draft witness statement but that you knew that it wasn’t you that had deleted it because that just wasn’t you?
Graham Ward: Yes, I agree.
Mr Beer: Now, the Inquiry is in possession of material that may assist us in where the truth lies here and I want to show you that material in a moment. Can we start, please, however, with what I showed you on the last occasion, the email. FUJ00122210. Thank you.
If we scroll down, please – thank you.
So this is your email of 24 March 2006 at 11.37 in the morning. So this is exactly the same one, exactly the same copy that I showed you on the last occasion?
Graham Ward: Okay.
Mr Beer: Now, if we just read the two paragraphs of the witness statement:
“This statement [Mr Jenkins’ statement] needs more work … I’ve attached a suggested draft with a number of comments (as previously mentioned I think the ‘system failure … normal occurrence’ line is potentially very damaging). It may be worth considering someone from our team taking a statement directly from Gareth Jenkins
(where is he based?)
Mr Beer: “Whilst there is some urgency with this, it is more important to get it right and ensure we are not embarrassed at court, which we certainly could be if we produced a statement accepting ‘system failures are normal occurrences’.”
Then the attached file, which you can see described there, and then:
“Let me know what you think of the draft.”
If we just scroll up, please, we can see Neneh Lowther forwards that email on to Gareth Jenkins directly, with the attachment that you had included, yes?
Graham Ward: Yes.
Mr Beer: Now, on the last occasion, we looked at that attachment as a separate document. I then went to another document, I gave it the name POL00047895, another version of it is FUJ00122211 – neither of those need be displayed at the moment – and we looked at that in an imaged copy, which is what this is here, it’s an image of an email?
Can we now, please, switch on our system at this end to the original of this email.
We’ve got the original email. Can you see that on your screen?
Graham Ward: Yes, I can, yeah.
Mr Beer: Can you see the email that we’ve just looked at, at the foot of the page there, that’s being displayed, 24 March, 11.37: exactly the same email. Yes?
Graham Ward: Yes, I can, yeah.
Mr Beer: We can see Neneh Lowther forwarding it at the top, just as we’ve seen in the image of this email that we’ve looked at. But, on this occasion, we can actually see the attachment in the email, can’t we –
Graham Ward: Yes, we can, yeah.
Mr Beer: – just like when you’re sitting at your computer?
Graham Ward: Yes.
Mr Beer: This is a more conventional format of an email which is attaching a Word document and the difference is we can now open the email attachment. So let’s open that. Thank you.
If we just scroll down to look at it. Thank you. I think this will be the more conventional format of a Word document that you, in your working life, would have been used to seeing; would that be right?
Graham Ward: Yes, it would, yeah.
Mr Beer: Where amendments have been made to a Word document, I think we can see three things: firstly, if it’s enabled – and here it was – the changes are tracked by being put in red and underlined, yes? That’s the first thing we can see.
Graham Ward: Yes, I can see that.
Mr Beer: Then the second thing is, if we hover, as the operator kindly has, above an amendment, we can see who made the amendment and the time at which they made it and the date on which they made it, yes; can you see that?
Graham Ward: Yes, I can.
Mr Beer: So, looking here – that’s it, if we hover above that one – we can see that that first amendment was made at 10.28 in the morning on 24 March 2006 and, would this be right, by you? Nobody else that access to your account?
Graham Ward: No, that would be me.
Mr Beer: Then the third thing we can see is, on the right-hand side, if there are any formatting changes, those appear in comment boxes on the right-hand side, yes?
Graham Ward: Yes.
Mr Beer: Now, we can see, if we hovered above each amendment and wrote down the times of them, take it from me the first amendment was made at 10.21 in the morning, I think that was the first one we were actually hovering over there – that’s it – at 10.21, and the last amendment, if we hovered over it, was made at 11.13 am, so over the course of 52 minutes.
If we just scroll down and hover again over each amendment, we can see that they’re all made by you. Okay?
Graham Ward: Yeah.
Mr Beer: If we scroll to the second page and just pick any amendment, please, operator, at random, and then the one in the middle, thank you; then the middle of the page; then do one at the bottom of the page; then over the page, yes?
Graham Ward: Yes.
Mr Beer: All of the amendments made by you. So these were all made by you, Graham C Ward. This isn’t a case of somebody else surreptitiously logging in to your system and pretending to be you; these are amendments made by you?
Graham Ward: That’s correct, yes.
Mr Beer: Can we go back to page 1 and look at the substance, then. The first thing you do in that second paragraph is you’re effectively writing in, to Mr Jenkins’ witness statement, him exhibiting three ARQs; is that right? So it says:
“Audit Record Queries (ARQs) 401, 459 and 460 … I was asked to produce information relating to ‘Nil’ transactions during the period specified. I have produced three spreadsheets which I now produce as exhibits GIJ01, GIJ02 and GIJ03.”
Yes? So that’s you writing into Mr Jenkins’ statement the exhibiting by him of the responses to three ARQs, yes?
Graham Ward: Yes.
Mr Beer: Then scrolling down. Is this right: you effectively explain the format of those three ARQs?
Graham Ward: Yes.
Mr Beer: Okay, I’ve got no questions about that but, if we go to the second page, please, and look at the second big paragraph down. The one beginning “There are three main”. Originally the statement read:
“There are three main reasons why a zero value transaction may be generated as part of the banking system.”
If we hover above the word “main”, you deleted that, didn’t you?
Graham Ward: Yeah.
Mr Beer: Then you added in the words “if these are the main reasons, what are the rest?” As we established on the last occasion, that was you asking a clarificatory question, correct?
Graham Ward: That’s correct, yeah.
Mr Beer: Then the three reasons were set out in the witness statement:
“[1] The transaction has no financial effect (ie a balance enquiry or a PIN change).
“[2] The transaction has been declined by the Bank.
“[3] There has been some sort of System Failure. Such failures are normal occurrences.”
If we hover above those, you deleted those words, didn’t you?
Graham Ward: Well, yeah, I mean, I’ve obviously put a line through it but, as I said at the outset, what I was doing here was reviewing this statement. My intention was not to insist on anything being put in or removed. I’m just reviewing it as I was asked to do.
Mr Beer: In what way is reviewing a statement consistent with putting a line through something and deleting it?
Graham Ward: Well, it was – I can’t explain that. I really can’t.
Mr Beer: You agree that you deleted the words – the third reason that Mr Jenkins had given for a nil transaction value appearing – “There has been some sort of System Failure, such failures are normal occurrences”; you agree that you deleted those words?
Graham Ward: I’ve put a line through it, yes, I can see, and it’s deleted, and that’s what it says on there. But my intention was absolutely not to have anything deleted from that statement that Mr Jenkins wasn’t happy with at all. I was just trying to help him and to review a statement.
Mr Beer: Do you agree with this, Mr Ward: that, contrary to your denial on the last occasion, both in answer to questions from me and from the Chairman, you did delete the third explanation?
Graham Ward: I can see that I’ve deleted it, yes, but it was not my intention for it to be removed from that statement –
Mr Beer: Let’s put aside the intention issue for the moment, Mr Ward. On the last occasion you denied deleting the third reason: you said, “It’s just not me. I know the type of person I am”. Do you agree that, in fact, you did delete that third explanation from Mr Jenkins’ witness statement?
Graham Ward: I can see that now, yes.
Mr Beer: Can we turn to what you wrote after your deletion:
“This a really poor choice of words which seems to accept that failures in the system are normal and therefore me well support the postmaster’s claim that the system is to blame for the losses!!!!”
Do you agree that discloses your motive for deleting the third explanation?
Graham Ward: No, I don’t agree with that. I’m just reviewing a statement. You know, I can see how it looks now, I really can.
Mr Beer: Never mind how it looks now. Do you agree that the connection between the deletion of the words and what was in your mind is shown by the explanation that you’ve added in round brackets?
Graham Ward: Yeah, well, I can agree that there’s a connection, yes.
Mr Beer: And that connection is: it needs to be deleted because if it’s left there, it might support the postmaster, Mr Thomas’, defence, agreed?
Graham Ward: As I’ve said, you know, my intention was not for anything to be deleted but I can see that, yes, that’s how it looks.
Mr Beer: Do you agree that the information that you deleted was material to the prosecution of Mr Jenkins (sic)?
Graham Ward: Yes.
Mr Beer: Do you agree that, by the time that you deleted it, you knew that a prosecution had been commenced against him?
Graham Ward: Yes, I do –
Sir Wyn Williams: There may be some confusion. You said, “Mr Jenkins”, Mr Beer –
Mr Beer: I’m so sorry.
Sir Wyn Williams: – but we all know Mr Thomas –
Mr Beer: Mr Thomas, I’m so sorry.
I’ll ask the question again: did you know that, by the time of your deletion, a prosecution had been commenced by Mr Thomas?
Graham Ward: Yes, I knew there was a prosecution against Mr Thomas.
Mr Beer: Do you accept that, by your conduct, you caused to be removed material information from Mr Jenkins’ witness statement at the time that a prosecution was afoot against Mr Thomas?
Graham Ward: No, I don’t. I think the decision to remove that had to have been Mr Jenkins’ decision. I’ve made a comment and I’ve made a review and I accept that I shouldn’t have been doing that, but the final decision to make that statement and for the – you know, for what went in there, that was for Mr Jenkins to decide.
Mr Beer: You’ve agreed, I think, that your reason for deleting that line from the statement was that it might support the defendant’s case that Horizon was to blame for the losses that were being attributed to him, agreed?
Graham Ward: Yes.
Mr Beer: If we read on, as per the original witness statement, it said:
“Each transaction has … with it a response code field, which identifies what has happened. Those values are included (together with their descriptions) in the …”
Originally it said “ARQs” and you’ve added “Spreadsheets produced”.
Then “In summary”. I’m going to skip over the next two paragraphs which deal with values of 1 or between 2 and 10, but the third one, which you do amend is:
“[A response code] RespCd with a value greater than 10 implies some sort of system failure – The actual value provides further information as to the nature of the failure within the overall system.”
So, rather oddly, you’ve left that in the witness statement, haven’t you?
Graham Ward: Yes.
Mr Beer: Was that just a mistake by you, that it ought to have been, if you were acting consistently with your earlier deletion, to have been deleted as well, ie the mention of a system failure?
Graham Ward: No, not at all. It’s not a mistake. I mean, there’s just a bit more context.
Mr Beer: What does that mean, Mr Ward? You deleted the system failure reason why zero transactions may be generated, but left in an explanation of the response code values relating to system failure?
Graham Ward: Well, as I say, you know, going back 18 years, or whatever it is now, I can’t really remember what I would have been thinking then but the fact that that paragraph there has a little bit more information in it, you know, made sense to me then.
Mr Beer: What do you mean, that paragraph had a bit more information, made sense to you?
Graham Ward: Because it’s got a value greater than 10 implies some sort of system failure. There’s a bit more information than just saying “system failure”. That is all I can think that I would have been thinking at that time.
Mr Beer: But you wanted the system failure reason deleted?
Graham Ward: I didn’t want it deleted, no.
Mr Beer: Why did you delete it?
Graham Ward: As I’ve said, yes, it looks – I’ve put a line through it and I’ve put, you know, in brackets that I think it’s a poor choice of words but that is just me reviewing it. I’m not, for one second, suggesting anything needs to be removed from the finalised statement.
Mr Beer: You didn’t just say it was a poor choice of words. In the brackets, you said that, if we leave those words in, it “may well support the subpostmaster’s claim that the system is to blame for the losses”. That’s what was motivating you, wasn’t it?
Graham Ward: No, I don’t believe it was, no. I mean it’s just a poor choice of words.
Mr Beer: Poor choice of words by who?
Graham Ward: Well, by me, obviously.
Mr Beer: Why, when you spent 52 minutes amending this witness statement, did you select “a poor choice of words”?
Graham Ward: Well, I don’t know. I really don’t know. I’m just going to repeat what I’ve said. I mean, I haven’t got anything else I can add to it. I was trying to genuinely help put a statement together for him. This – you know, back in 2006, Horizon integrity just wasn’t an issue for us at all and this was a fairly new statement, as I said on my previous evidence, I think, a banking transaction witness statement. So I was just trying to get the statement correct. That was my intention and I’m really sorry for the way it comes across, I really am, but I was trying to just do my job.
Mr Beer: That last paragraph there, the one that says, “[Response code] with a value greater than 10”, you’re not saying to us that you left that in the witness statement because you thought that that was a sufficient explanation to a court and gave adequate disclosure to a defendant and that that was, therefore, justification for deleting the third reason from Mr Jenkins’ list?
Graham Ward: Well, I really don’t know. But I just think there’s more context to it there. That’s all I can say. I’m sorry, it’s such a long time ago. I just really just do not remember this at all.
Mr Beer: Can I suggest one explanation: that this was a rather sloppy attempt at covering up, in criminal proceedings, evidence of system faults within Horizon and that, if you’d been pursuing your motive properly, you would have also deleted that last paragraph that we’ve just read. It’s just a mistake by you that you haven’t seen through the task that you were setting for yourself.
Graham Ward: No, that’s absolutely not. I wouldn’t agree there. I’m not trying to cover anything up at all. I’m just trying to get a statement correct.
Mr Beer: Your motive was that you didn’t want to disclose, in the prosecution of Noel Thomas, information that suggested that a fault in Horizon could have caused nil transactions, agreed?
Graham Ward: No, I don’t agree.
Mr Beer: Can we look, please, lastly, at the original email. FUJ00122210. Look at your email if we just scroll down. Thank you. You say:
“This statement needs more work …”
That’s the statement we’ve just read.
“… I’ve attached a suggested draft with a number of comments …”
Then you say:
“… (as previously mentioned, I think the ‘system failure … normal occurrence’ line is potentially very damaging).”
So the very line that you deleted, you recognised to be “potentially very damaging”, agreed?
Graham Ward: Yes, but I just wanted more context on it, as I’ve said.
Mr Beer: You say that that line that you deleted was “potentially very damaging”. That, again, draws a direct line between the reason for the deletion of the line and the deletion of the line, doesn’t it?
Graham Ward: I can see that it looks that way, yes.
Mr Beer: Well, it is that way, isn’t it? That’s the motive, right there, in black and white: “I’m deleting it because it’s potentially very damaging”?
Graham Ward: There is no motive from me to remove anything because, at the time, there was absolutely, in my head, no issues with Horizon at all.
Mr Beer: If we look at the second paragraph:
“Whilst there is some urgency with this, it is more important to get it right and ensure we are not embarrassed at court, which we certainly could be if we produced a statement accepting ‘system failures are normal occurrences’.”
Again, that’s the third occasion, one in the witness statement itself, in your comment, and the other two in the covering email, this email, that reveals what was operating on your mind, agreed?
Graham Ward: I think what I take from that is, it’s more important to get it right because I want to get the statement right. I didn’t think there were any issues with Horizon. We weren’t told there were any issues with Horizon. So the idea that I’d be covering anything up just wouldn’t have been in my head at all.
Mr Beer: Why did you say, “we need to ensure we’re not embarrassed at court, which we could be if we produced a statement accepting ‘system failures are normal occurrences’”?
Graham Ward: Because I wanted more context on what system failures there were, rather –
Mr Beer: In which case, you would have typed, Mr Ward, “Can I have some more context, please, on what system failures are?”, rather than deleting “system failures” from the witness statement and saying, three times, “We need to delete this because it’s damaging, it’s potentially embarrassing, and it would assist the subpostmaster’s defence”.
Graham Ward: I can see how you would say that, yes. I do understand that but, as I’ve said, I don’t recall finalising the final statement either and that’s why I’m suggesting that somebody from the team should go and take the statement directly.
Mr Beer: Your motive was a desire that the Post Office was not embarrassed at court by revealing that Horizon had defects, system errors, wasn’t it?
Graham Ward: No, not at all. My desire was that the statement was produced correctly. I was unaware that there were bugs, errors and defects in the Horizon system.
Mr Beer: Mr Jenkins was saying that there are defects in the system, in his witness statement, and you were deleting that information?
Graham Ward: He said there were system failures.
Mr Beer: And you wanted that deleted?
Graham Ward: I didn’t want it deleted, no.
Mr Beer: Why did you delete it?
Graham Ward: I didn’t delete it, as I’ve said to you.
Mr Beer: In what sense is striking through –
Graham Ward: I can see –
Mr Beer: – a sentence in tracked changes and providing three explanations why that should be removed not a case of deletion?
Graham Ward: I can see how it looks, I really can, and I’m sorry it looks that way but I can assure you, my intention was not for that to be deleted.
Mr Beer: Mr Ward, they are the only questions that I ask you.
Sir, do you have any questions?
Sir Wyn Williams: No. Thank you very much.
Mr Beer: Sir, that’s all of the evidence from Mr Ward this morning. Because he’s remote, we need to take a break now until we move to our next witness, who is live.
Sir Wyn Williams: Yes. All right.
Well, thank you for returning to give evidence, Mr Ward. That completes your evidence to the Inquiry.
So we’ll now have a ten-minute break, Mr Beer?
Mr Beer: Yes, I think probably 15, actually, to get the screens out.
Sir Wyn Williams: All right, fine. 15-minute break before we resume. So that will be – well –
Mr Beer: 10.50?
Sir Wyn Williams: 10.50, yes.
(10.37 am)
(A short break)
(10.52 am)
Ms Hodge: Good morning, sir, can you see and hear us?
Sir Wyn Williams: Yes, thank you very much.
Ms Hodge: Our next witness is Anthony Kearns.
Sir Wyn Williams: Yes.
Ms Hodge: Please can the witness be sworn.
Anthony Kearns
ANTHONY PAUL KEARNS (sworn).
Questioned by Ms Hodge
Ms Hodge: Mr Kearns, as you know, my name is Ms Hodge and I ask questions on behalf of the Inquiry. Please give your full name.
Anthony Kearns: Anthony Paul Kearns.
Ms Hodge: You should have in front of you a witness statement dated 9 May this year. Have you got that there, please?
Anthony Kearns: I have.
Ms Hodge: This is the second statement which you’ve provided to the Inquiry; is that correct?
Anthony Kearns: It is.
Ms Hodge: It runs to 15 pages. Can I ask you, please, to turn to page 14 of that statement.
Anthony Kearns: Yes.
Ms Hodge: Do you see your signature there at the end of the statement?
Anthony Kearns: It’s actually not on this hard copy that I’ve got.
Ms Hodge: If you could just bear with us. We’ll ensure that you have a copy with your signature.
Anthony Kearns: Yes.
Ms Hodge: Thank you. You can see you signature there at the end of the statement dated 9 May this year?
Anthony Kearns: (The witness nodded)
Ms Hodge: That’s right?
Anthony Kearns: Yes.
Ms Hodge: Thank you. Is the content of that statement true to the best of your knowledge and belief?
Anthony Kearns: It is.
Ms Hodge: Thank you. That statement will stand as your evidence to the Inquiry in Phases 5 and 6. I shall be asking you some questions that seek to expand upon and clarify some aspects of your evidence.
You first appeared before the Inquiry on 29 November 2022, when we were examining issues of relevance to Phase 2; is that correct?
Anthony Kearns: Correct.
Ms Hodge: I don’t intend to revisit those issues with you, save to the extent that they are relevant to the issues that we’re examining in Phases 5 and 6; is that clear?
Anthony Kearns: It is.
Ms Hodge: Thank you. Now, in terms of your roles and responsibilities, you were previously employed as an Assistant Secretary of the Communication Workers Union between 1997 and 2002; is that right?
Anthony Kearns: That’s correct.
Ms Hodge: Whilst employed in that role, your primary responsibility was to promote the interests of CWU members who were employed by Post Office Limited; is that right?
Anthony Kearns: Correct.
Ms Hodge: This would have included post office counter clerks who were employed at Crown Office branches, staff working in cash centres and administration staff working in the Post Office’s back offices; is that right?
Anthony Kearns: Correct.
Ms Hodge: You say that, since 2002, you’ve been employed as the Senior Deputy General Secretary of the Communication Workers Union; is that right?
Anthony Kearns: That’s correct.
Ms Hodge: You were elected to perform that role by the members of the union; is that right?
Anthony Kearns: Yes.
Ms Hodge: In your statement, you say you’ve not had any direct responsibility for Post Office matters since your appointment as Senior Deputy General Secretary; is that right?
Anthony Kearns: That’s correct.
Ms Hodge: Who within the senior leadership of the Communication Workers Union has direct had direct responsibility for postal matters since 2002?
Anthony Kearns: Andy Furey.
Ms Hodge: Thank you. I’d like, very briefly, to revisit some of the evidence which you gave on the last occasion about your role as a member of the Horizon Working Group during 1999 to 2000. This was at a time when you were employed as Assistant Secretary with responsibility for Post Office employees; is that right?
Anthony Kearns: Yes.
Ms Hodge: The Horizon Working Group had been established to oversee the operational live trial and later the national rollout of the Horizon system to the Post Office Network; is that correct?
Anthony Kearns: Correct.
Ms Hodge: You confirmed on the last occasion that you gave evidence to the Inquiry that you were made aware of technical issues being raised during the live trial; is that right?
Anthony Kearns: Correct.
Ms Hodge: You understood these to relate to balancing; is that right?
Anthony Kearns: I was informed by Crown Office staff on visits that I would make to local branches that some individuals were experiencing difficulties with balancing, following the introduction of the Horizon project.
Ms Hodge: Just to confirm, by “balancing”, you mean whether the money received in and paid out by the branch was accurately recorded in the weekly financial accounts; is that right?
Anthony Kearns: Each counter clerk employed at a Crown Office is responsibility for their own individual balance on a Wednesday, the end of the balancing week, and that’s when that balance takes place.
Ms Hodge: I think you said on the last occasion that problems with balancing had been reported to you before Horizon was implemented; that’s correct, is it not?
Anthony Kearns: Yeah, we regularly had staff who reported difficulties with balancing prior to, and subsequent to, the introduction of Horizon.
Ms Hodge: But you said that, after the introduction of Horizon, it was your perception at the time that the number of people reporting problems had increased?
Anthony Kearns: Yes.
Ms Hodge: Is that right? I think you’ve just confirmed that that was information you obtained during your visits to local branches?
Anthony Kearns: Correct.
Ms Hodge: Were these problems with balancing an issue that you were recording or tracking at a national level within the Communication Workers Union at the time?
Anthony Kearns: No, we had a process, which I think I outline in my witness statement, for how losses and gains or incorrect balances were dealt with through a system losses and gains procedure that was in place at the time and subsequent to the Horizon project.
Ms Hodge: We’ll come on shortly to that but just dealing firstly with the issue of how the issue was being, let’s say, monitored, I think your evidence is it wasn’t, at a national level; is that fair? That is to say that you weren’t keeping records or you weren’t tracking the number of branches or the number of staff who were having difficulties with balancing?
Anthony Kearns: No, there was no facility or process for that.
Ms Hodge: Would it be fair to say that you were relying on those local procedures to identify whether balancing problems were caused by the system or by the performance of the employee?
Anthony Kearns: Yes, that would be dealt with through that losses and gains procedure, at various levels.
Ms Hodge: Do you think that local representatives and branch managers would have had sufficient knowledge or understanding to identify whether a balancing problem was caused by the system or by the employee’s performance?
Anthony Kearns: I couldn’t say whether they were able to identify specifically whether a misbalance, a loss or a gain, was directly attributable to the system.
Ms Hodge: If you were not tracking the issue at a national level, how would your local reps know whether they were dealing with an isolated incident or an issue affecting several branches or employees?
Anthony Kearns: I think I made in my last – in one of my statements or the last time I gave evidence – so we have a network of representatives who operate at local branch level, sort of area level, regional level, and then a national executive, and what would happen if somebody was – so there was a process in place, a losses and gains procedure, and what would happen is, if somebody was considered by the Post Office to be falling foul of that procedure, they would be called for interview.
They would talk to their local rep or their area rep or their regional rep and ask for representation. So dealing with those – the idea of that system as the idea all of the agreements and so the industrial relations framework we had with the Post Office at the time, and still through to today, is to get these matters dealt with, for want of a better phrase, at the coalface, at the lowest common place you can deal with. So people having local firsthand knowledge would be the office rep; subsequent to that would be the area rep. So if someone found themselves in difficulties over the losses and gains procedure and was going to be called for interview, they would contact their local rep or their union branch and they would deal with the issue.
So those issues were dealt with predominantly by – at a local level.
Ms Hodge: I understand the point you’re making but I think that the gist of my point is this: if it’s not being looked at at a national level, would those local reps and those local branches would they be able to know that this is something that was affecting more than one area, do you think?
Anthony Kearns: Yeah, we would have regular meetings of – local reps would meet regularly at branch level. Area reps, regional reps, would get together and discuss the problems that they were facing, how best to deal with them.
Ms Hodge: So you would have expected that to have been discussed at those – at the branch level at the regional level, if it had been something that was causing significant difficulties. Is that –
Anthony Kearns: If those reps had a wide scale concern, yeah, I’d expect them to discuss it with each other. Standard practice, is sort of sharing, you know, “I’ve got this problem, how have you dealt with that? I’ve got a new problem, how have you dealt with that?” That’s how reps sort of interact and build up their knowledge.
Ms Hodge: Now, when you finished in your role as assistant secretary, to whom did you hand over responsibility in 2002?
Anthony Kearns: Andy Furey was elected, so it wasn’t me handing over responsibility. He was elected by the relationship –
Ms Hodge: Into the role of Assistant Secretary?
Anthony Kearns: Into the role of Assistant Secretary.
Ms Hodge: Did you brief him on the knowledge you’d obtained during your time as a member of the Horizon Working Group?
Anthony Kearns: Andy Furey was an elected member of our national executive, prior to being elected to that position, and, given that his background was a – he was directly employed by the Post Office as a counter clerk, Crown Office staff. He worked closely with me and would attend a lot of national negotiations – so, in reality, there was no formal handover, insofar as he’d worked in my department with me, for the previous five years. So he was more than well aware and was involved in a lot of discussions about these matters up to that point.
Ms Hodge: So your evidence is you wouldn’t have done a formal handover; is that right?
Anthony Kearns: That’s correct.
Ms Hodge: But you think you would have discussed issues, including issues with the balancing, with him, before he took over that role?
Anthony Kearns: Myself and Andy worked almost together on a daily basis over number of years and anything I was aware of in my role, he was aware of.
Ms Hodge: I’d like to move on, please, to a new topic, another topic which concerns the support and the representation which was available to members of the Communication Workers Union if they were held accountable for shortfalls shown by Horizon. Now, you address this at paragraph 33 of your second witness statement, please, if that could be shown on the screen. WITN06370200, at page 7.
Paragraph 33, please. Thank you. This reads:
“The CWU has always provided strong and effective representation for members accused of accounting discrepancies.”
Just pausing there, please. Is that assertion based upon your personal experience of representing members of the CWU?
Anthony Kearns: It is.
Ms Hodge: Are you referring here to cases where the accounting discrepancies were shown by Horizon?
Anthony Kearns: I’m referring to cases that our members would be called for interview under the losses and gains procedure.
Ms Hodge: You said you were talking about your own personal experience. Is that before Horizon was implemented or after Horizon or both?
Anthony Kearns: Both the losses and gains procedure is what was used to, for want of a better phrase, measure the ability of counter clerks to do their job. I was a counter clerk before I was an elected representative and the losses and gains procedure, in various formats – it’s been rewritten a number of times – is the measure that individual counter clerks are held to see whether or not they can do their job. Each individual counter clerk, as I explained earlier, balances their stock on a Wednesday evening, that would either balance, or it would produce a loss or a gain, either of which, in the eyes of the Post Office, losses and gains are considered to be evidence of an inability to do the job to varying degrees, and there can be a variety of reasons why people record losses and gains, and then there was a process to take people through to investigate why those losses and gains have occurred, mostly designed to be corrective.
Ms Hodge: Mr Kearns, I wonder if I could please ask you if you can try to slow down in your answers, please, just to assist our stenographer who is making a verbatim record of what you’re saying.
Anthony Kearns: Apologies.
Ms Hodge: Thank you. Forgive me, coming back to the question, please:
Is it your evidence that you have personal experience of representing members of the Communication Workers Union who were accused of accounting discrepancies after Horizon was rolled out?
Anthony Kearns: Me personally? No.
Ms Hodge: No. Are you aware of any specific cases in which members were asked to account for shortfalls shown by Horizon?
Anthony Kearns: No.
Ms Hodge: Now, you have stated that your responsibilities relating to the Post Office ceased in 2002. From where have you obtained your knowledge of cases after that date?
Anthony Kearns: I don’t really have any detailed knowledge of cases after that date because it wasn’t my responsibility. It wasn’t my day job. I’ve paid a general interest to the union structures and how it represents its members since then because that’s my job to sort of oversee partly how the union functions, but I don’t have any firsthand experience since I left that role in 2002 of individual cases.
Ms Hodge: So would it be right to say that, as a general assertion that you’re making there, it’s not one based on any personal experience after 2002?
Anthony Kearns: Apologies. General assertion, what?
Ms Hodge: Sorry, you’re making a general assertion that the CWU has always provided strong and effective representation for members accused of accounting discrepancies. What I’ve been trying to explore with you is the basis of that assertion and I think what you accept is that, after 2002, you had no personal experience of those matters, and you don’t have any information about any individual cases; is that right?
Anthony Kearns: I don’t have any personal experience and I didn’t deal with any individual cases. My assertion about the CWU dealing with them is that the rep structures that we had in place to deal with those issues, it’s changed but it remains broadly the same, as in we have local reps, branch reps, what used to be called regional reps are now called territorial reps, who deal with those issues on a day-to-day basis and that procedure remains largely in place as does a losses and gains procedure that they would work with.
Ms Hodge: Now, before we come to the losses and gains procedure, do you know what type of training union representatives received to enable them to provide support to staff who found themselves in this situation, where they’re being asked to account for discrepancies?
Anthony Kearns: Yes. We would run what we would call schools, educational classes every time – more or less every time a major agreement would change and we would get reps together at varying levels, explain to them any changes we’d negotiated in policies and procedures and train them through what we would call basic skills – we now call them skills 1, skills 2 – on how to be an effective rep, how to engage with an individual who might be having problems, how to represent that to the employer. Yeah, we had an education and training programme, designed to do just that.
Ms Hodge: Now, you go on to say at paragraph 33, that the:
“CWU collective agreements including the ‘Losses and Gains Procedure’ have been significant ensuring a fair hearing for directly employed members.”
You referred to that procedure in your evidence before the Inquiry on the last occasion. I think you recall it being in place at the time when you were assistant secretary and you’ve said, just now, it’s something which has been updated over the years; is that correct?
Anthony Kearns: That’s correct. I was employed by the Post Office in 1978 and there was a losses and gains procedure in place then and some of the papers sent to me show a losses and gains procedure from – I think it’s 2013 and 2014. A losses and gains procedure for directly employed counter clerks, as we used to call them, by the Post Office, has been in place for that length of time.
Ms Hodge: Would it be a fair summary to say that that policy applied a threshold or number of thresholds below which an accounting discrepancy would be treated as a performance issue but above which it might be treated as suspected theft; is that a fair summary?
Anthony Kearns: No, that’s not how the losses and gains procedure was applied. The losses and gains procedure, if people fell foul – if individuals fell foul of that procedure, they were given the opportunity to explain why they thought that the Post Office would be saying to them “Your performance is unacceptable, we need improvements,” they’d be given deadlines, or a number of specific occasions where they were allowed to misbalance before more serious disciplinary action would ensue.
My experience is that mostly people would understand the seriousness of the situation, for want of a better phrase, apply themselves wore diligently to their job and were very unlikely to fall foul of that procedure to the point of dismissal.
Ms Hodge: I think if we put to one side what might be characterised as small discrepancies, in the order of £5 or £6, which would ordinarily be treated as a performance matter – is that fair –
Anthony Kearns: Yes.
Ms Hodge: – and if we consider a more substantial discrepancy, in the order of several hundred pounds or possibly even several thousand pounds, a discrepancy of that type, would it not be referred to the Post Office to be investigated as suspected criminal activity?
Anthony Kearns: My experience was single large losses like that would be dealt with outside of this process and would usually be subject to a specific investigation.
Ms Hodge: So if Horizon was showing a substantial shortfall, which a Post Office staff member could not explain, they would not be helped by this procedure, would they? That is to say that they would be in exactly the same position as a subpostmaster who had a substantial shortfall which they couldn’t explain, would they not?
Anthony Kearns: If, at the end of the week, an individual counter clerk’s balance, either or pre or post-Horizon, showed up a significant amount of the amounts that you’ve referred to, my experience is that that would be investigated by the Post Office Investigation Branch, as it was then, or whatever its title is now.
Ms Hodge: Essentially, you, as the CWU, and that staff member, would be reliant upon the Post Office investigating the cause of the shortfall, would you not, and establishing whether any fault lay within the system?
Anthony Kearns: Yeah, the Post Office – they would interview the individual for their view of why such a loss occurred, and then the Post Office would make its own investigations.
Ms Hodge: Now, if we go back, please, to your statement at paragraph 33, you go on to say that:
“The CWU has no record of any of our directly employed members losing their jobs or being prosecuted due to problems with Horizon.”
What I want to ask you is this: does the CWU make and retain records relating to the dismissal or the prosecution of its employees – of its members, forgive me.
Anthony Kearns: No.
Ms Hodge: If you don’t have any record, or if you don’t make and retain such records, does it not follow that there might well be directly employed members who have lost their jobs or been prosecuted due to problems with Horizon, of which you’re not aware?
Anthony Kearns: That’s possible.
Ms Hodge: So would it not be more accurate to say that you don’t know whether, and, if so, how many, of your members have lost their jobs or been prosecuted due to problems with Horizon because this isn’t something which you’ve actively monitored?
Anthony Kearns: So the statements I make, which is the CWU has no direct record of any of our directly employed members losing their jobs or being prosecuted due to problems with Horizon is a statement of fact for – as far as I’m concerned. We don’t have that record.
Because of the extensive network we have of reps and the relationship we have between the national officials and our local reps and regional reps, my belief is that we would be made aware if individuals had come to our reps at local level and said to us “We’re losing our jobs” or “We’re being” – let’s take the issue of prosecution. If any of our members were to be prosecuted over that, we’re fairly certain that they would come to our reps through the process I’ve outlined and, if – if our reps thought that was a problem, they would come to us but we don’t have any record of that.
Ms Hodge: Now, I think what you’ve just said really is that you make an assumption that that information would have filtered its way up to national headquarters if that had been the case; is that fair?
Anthony Kearns: Yeah, we would assume our reps would tell us if they were being asked by our members to assist them in such cases.
Ms Hodge: You’ve also said earlier that you would have expected these issues, accounting discrepancies, to be resolved at a local level and that you didn’t expect that to be something that would be escalated to national level?
Anthony Kearns: There are two separate things.
Ms Hodge: In what sense?
Anthony Kearns: So I work at a Crown Office. I used to work at a Crown Office and I work alongside people who on a Wednesday night would do their balance and would misbalance more regularly than the losses and gains procedure at the time allowed for. So they would be interviewed by the Post Office with their union rep or their local area union rep and they would go through the losses and gains process with the intention of rectifying their performance on the job, so to speak.
There were regular occurrences. When I was a local rep I used to deal with those cases on behalf of the members, one or two a month. They’re just dealt with at local level and that’s where it ends, and that’s the idea of that procedure, is to rectify those problems, for want of a better phrase, at the coalface, so that the individual counter clerk can prove that their doing their job properly.
It’s also true to say that, if our members were being dismissed or prosecuted and our reps felt that was, for want of a better phrase, unfair and wanted to defend them and wanted our assistance in helping them do that, they would come to us.
Ms Hodge: Are you saying that, at that stage, there would be some record held centrally of a request for assistance or that, effectively, you would have some records showing that that request had been made?
Anthony Kearns: Yeah, if they – if somebody wanted us to help assist them in representing a member, they would email – back to ‘99, write to us – with details of the case, asking us could we assist or was it possible to assist, depending on the nature of the individual case.
Ms Hodge: But any record of that would have been in emails at the time, which presumably you haven’t gone back and checked over, have you?
Anthony Kearns: Yeah, we asked our research department what documents and I think our research department and Andy Furey’s department – my successor in that previous role – provided a number of documents to the Inquiry over the last couple of years, with regards to what information we have around Horizon. And we haven’t come across – to my knowledge, we’ve not come across any correspondence, emails or letters of that type.
Ms Hodge: Now, the final thing you say in paragraph 33 is this:
“There have been cases of actual theft amongst CWU represented grades, but invariably when people are caught out they are quick to admit to theft. In these cases, the CWU is generally not involved as people resign before being dismissed.”
Now, again, are you speaking here from your personal experience of dealing with cases of theft?
Anthony Kearns: Yes.
Ms Hodge: On how many occasions were you called upon to deal with cases of theft by CWU staff members while you worked as the assistant secretary?
Anthony Kearns: Not when I worked as assistant secretary but when I worked as a local rep – when I was a local rep – back in Liverpool. When I worked as a local rep back in Liverpool, I dealt with – from memory, it’s 30 years ago – from memory, three cases of individuals accused of theft.
Ms Hodge: Was it your experience that members who were accused of theft by the Post Office always admitted their guilt?
Anthony Kearns: Of the three cases I remember dealing with, one didn’t, and we subsequently won that case in Employment Tribunal. The Post Office had no evidence. One individual – I think I made this in my earlier submission, one individual was accused of stealing £500, who denied it, right up until the final interview and then admitted it, and then resigned, and then was subsequently prosecuted.
Ms Hodge: Were you involved in any cases of alleged theft after Horizon was rolled out?
Anthony Kearns: No.
Ms Hodge: Therefore, insofar as you make a general statement about cases of theft, is it right to say that that wouldn’t apply to the period after 2002, of which you didn’t have any personal experience?
Anthony Kearns: I have no experience after 2002. Sorry, maybe I’m misunderstanding the question, sorry.
Ms Hodge: Sorry, it was badly phrased, so that’s my fault. I’m saying, insofar as you make a general statement about cases of theft, it’s right to say that that applies prior to 2002 but not afterwards; is that fair?
Anthony Kearns: I wasn’t dealing with them after 2002 but, generally – what I say in my statement, generally, is the CWU generally is not involved, as my experience is, if people are guilty, then they resign rather than wait to be dismissed. I’ve seen that, prior to 2002.
Ms Hodge: Thank you. Now, when you previously gave evidence you said that you were aware of the Post Office practice of prosecuting staff members and you’ve just referred now to an incidence of that. You also stated that, prior to Horizon, I think you’d represented a member of the CWU who’d gone on to be prosecuted by the Post Office. In which type of hearings would you be representing individuals at that stage?
Anthony Kearns: So the individual concerned showed to a £500 loss in their weekly balance. They were then called to interview by the Post Office investigation branch and then allowed to have friend/witness in and the Post Office investigation branch put it to them that a loss of that figure, around 500, couldn’t possibly have been a discrepancy; it was theft. And the individual denied it and we went through the process of them being dismissed, me doing the appeal, and it was at the appeal stage that the individual changed their position and said that, in fact, they did steal the money.
So yeah, that’s how that process is dealt with.
So, under the investigation process, the individual’s allowed to have a witness/friend, whatever you want to call it, in the room with them, predominantly to make sure that that interview is conduct correctly, fair play, in line with rules. Yeah, and so I’ve dealt with that case.
Ms Hodge: So you would have dealt with it and others in your position would have dealt with it at this stage of the internal disciplinary hearing; is that right?
Anthony Kearns: Yes.
Ms Hodge: And any appeal hearing –
Anthony Kearns: Yes.
Ms Hodge: – which followed. Did the CWU offer legal representation to members against whom criminal proceedings were brought by the Post Office?
Anthony Kearns: CWU does not offer legal assistance to members for criminal cases.
Ms Hodge: That’s in any circumstances?
Anthony Kearns: To the best of my knowledge and experience, yes.
Ms Hodge: You’ve been shown some statistics relating to the number of prosecutions brought against subpostmasters, assistants and Post Office employees in the decade before and in the decade after Horizon was introduced; is that right?
Anthony Kearns: Correct.
Ms Hodge: Now, it’s right to acknowledge that the records on which these statistics are based are incomplete, particularly insofar as they relate to the decade before Horizon was implemented. But I think you accept, do you not, that, on the basis of the data we do have, it tends to show a substantial increase in the number of prosecutions bought against Post Office employees after Horizon was rolled out; is that fair?
Anthony Kearns: They appear to double: 2002 over 2001; 2003 over 2001; drop back down again, 2004. So they fluctuate but it’s certainly true to say in – so assuming we’re (unclear) enough to say the same thing, it says in 1999 for employees, which are the people we were responsible for, there were five, in 2001 there were six and then in 2002 there were 13, in 2003 there were 13, in 2004 that dropped back down to seven, and then up to 11 in 2006 and so it fluctuates. But it is correct to say that, in 2002/2003, there were more than there were in 2001 and 1999.
Ms Hodge: Now, in your most recent statement, you say that you were not aware at the time of the rise in prosecutions and convictions of Post Office employees; is that right?
Anthony Kearns: That’s correct.
Ms Hodge: Do you think you should have been aware or that you should have known about this in your role as assistant secretary and subsequently as Senior Deputy General Secretary of the union?
Anthony Kearns: No, because, as I said earlier, they wouldn’t get reported to us –
Ms Hodge: Well –
Anthony Kearns: – at national level, sorry.
Ms Hodge: But I think you said the opposite. I think you said you would have expected – had members been prosecuted, you would have expected that to have reached you at national level because you would have been told that?
Anthony Kearns: No, I would have expected, if our local reps thought that they should have been involved, they thought something wasn’t right, I would have expected them to have raised it with us at national level.
Ms Hodge: So your expectation –
Anthony Kearns: So I’ve referred – sorry, so I referred earlier to they would email us or they would write us to saying “We’ve got a problem here, can you assist?” and so I would say “We have no record of that”, that’s why we wouldn’t have been aware of, what, 1999, five prosecutions, if I’m reading this correctly; 2001, six prosecutions, if I’m reading it correctly. We would only have been aware or we would have been made aware if representatives who had been dealing with those cases had contacted us, basically to say, “I’ve been dealing with this case its looks like they’re going to dismiss them, it looks like they’re going to prosecute them, we don’t think that’s fair, we don’t think that’s right, is there something we can do can we talk about this?”, so on and so forth.
I’ve no recollection of people coming to me in my role as the Assistant Secretary at national level and raising that type of complaint, if you like, or concern.
Ms Hodge: What you seem to be saying, essentially, is that you were relying upon your local rep effectively to identify if there was a system fault, were you not?
Anthony Kearns: That is the system we have in place. As I explained earlier, the idea of dealing with discrepancies or even – not just discrepancies in balancing, if you like, on the counter but any discipline cases for any reason – insubordination, failure to attend for duty – the whole system was set up to deal with those issues quickly, at the point they occurred, and then there would be a process you would go through where, in more serious cases, there would be escalated up, in terms of the Post Office, their managerial structure and, in the case of the union, our representative structure. And that’s how the issues would be dealt with.
So, insofar as we would have no record of, let’s say in 1999, exactly how many individual members of the CWU were interviewed under the losses and gains procedure, we wouldn’t have that record because they were dealt with locally. So, in the same way, if somebody was prosecuted, unless those individuals contacted us, unless representatives contacted us, we would have no record of that.
Ms Hodge: Okay, so, unless either the member themselves or the local rep came to you and said, “I’m being prosecuted because of a shortfall in Horizon which isn’t my fault it’s the system at fault”, you’re saying that there would be no record and you would have no awareness of the fact of prosecutions being brought?
Anthony Kearns: We would have no awareness at national level, no.
Ms Hodge: Now, given what you knew about problems with balancing during the rollout of Horizon, do you think that the bringing of prosecutions by the Post Office is something which you ought to have been monitoring at a national level?
Anthony Kearns: We weren’t aware of the prosecutions at national level, so we wouldn’t have been monitoring it.
Ms Hodge: But my point is you knew that the Post Office brought prosecutions; is that not something which you should have proactively been monitoring?
Anthony Kearns: So let me just step back on we were aware of the Post Office bringing prosecutions. At national level, we don’t have a record, we don’t keep a record of the prosecutions that the Post Office carries out. I think the point I made in my statement is, usually, by the time – historically, by the time it got to that point, we’d have individuals resigning, so we wouldn’t have a record of the prosecutions that the Post Office took out against direct employees.
Ms Hodge: I understand what you’re saying, which is you didn’t have one. My question was: do you think you should have had one, bearing in mind that you knew that there were increased numbers of Post Office staff who were complaining about problems with balancing?
Anthony Kearns: No, because they were dealt with under the balancing procedure.
Ms Hodge: I’d like to move on to another topic, please, which concerns the CWU’s representation of subpostmasters. When you worked as an assistant secretary, the CWU did not represent the interests of subpostmasters; is that right?
Anthony Kearns: No, that’s correct.
Ms Hodge: Do you know why it was that subpostmasters were not admitted as members of the CWU at that stage?
Anthony Kearns: Because they were members of the National Federation of SubPostmasters and that was – so, within the Post Office at the time, there were number of different unions. There was the Post Office Engineering Union, who were responsible for light and heat and vans; there was the Communication Workers Union who were responsible for directly employed Post Office staff working on Post Office – now Royal Mail – issues as well; there was the Communication Managers Association, who were responsible for representing managers; and there was the National Federation of SubPostmasters who were responsible for representing subpostmasters.
And so, if you fell into one of those categories, the recognition of the employer for anybody employed in those categories were to – within those unions. So the reason we didn’t represent them is because we didn’t have recognition agreements and they joined the National Federation of SubPostmasters.
Ms Hodge: In your statement you say that you don’t consider the interests of subpostmasters and Post Office employees necessarily to be aligned; is that right?
Anthony Kearns: I did say that, yeah.
Ms Hodge: What do you mean by that?
Anthony Kearns: Well, because subpostmasters – so – Crown Office staff, Post Office staff, were directly employed employees, of the Post Office. Subpostmasters, to my knowledge/recollection, worked on a contractual basis as private business people, for want of a better phrase, and had a private contract with the Post Office. So there were two distinct, different groups: one were directly employed workers and the other were privately employed – private businesses, and directly engaged, if you like, as agents by the Post Office. So two separate interests.
So we would negotiate and argue, for example, for increased wages and terms and conditions for directly employed staff, whereas my understanding at the time is the contracts between the Post Office and subpostmasters would remunerate subpostmasters based on the transactions they did, which are two distinctly different things. They’re not aligned.
Ms Hodge: Now, there came a time when the CWU started to recruit subpostmasters as members of the union. Do you recall when efforts were first made to recruit subpostmasters?
Anthony Kearns: Only from evidence that’s been given to me in this and from my involvement on the National Executive Council for the union. I think that was around the 2014/2015.
Ms Hodge: Now, you’ve been shown a printout from the CWU website which tends to indicate that the union were actively recruiting subpostmasters in October 2011. That’s NFSP00001463, please.
Thank you very much. If you look at the very bottom of the page, please, you can see this is from where it’s drawn, so www.cwu.org/postmasters, and the date is 3 October 2011. If we could just scroll down, please, thank you. So, in that first box, it identifies the Chairman of what was called the CWU Postmasters & Agents section, and that’s Mr Nippi Singh.
Anthony Kearns: Mm.
Ms Hodge: A little further down, please. Thank you. There’s a further box which identifies Mark Baker as the Vice Chairman of the same section. So it appears that, by this time in October 2011, the CWU had established a separate section to represent the interests of postmasters and agents. Do you think that’s a fair –
Anthony Kearns: Yeah.
Ms Hodge: – inference from what we can see here? Do you recall the circumstances in which these two individuals, Mr Baker and Mr Singh, joined the Communication Workers Union?
Anthony Kearns: No, I wasn’t involved in that but, from discussions, I was – so the final decision on allowing them – or setting up a subpostmaster section and actively trying to recruit them was a decision of the National Executive Council, of which I was a member. And my understanding from memory, although I’m talking about nine, ten years ago now, is that they had a sort of dissatisfaction with the National Federation of SubPostmasters, then a dissatisfaction with the direction that Post Office was going, in a general sense, and my understanding was they didn’t have much faith in the National Federation of SubPostmasters representing them, which is why they approached us, and then we went “Well, if you’re going to approach us, then we’re set up a section, we’re going to try to recruit more people from that cohort into the union”.
Ms Hodge: Now, in your statement, you say that within of the roles of the union is to regulate tension between its members; is that right?
Anthony Kearns: Between its members and the employer.
Ms Hodge: Well, between members and employer but between – but internally between members, as well; is that not right?
Anthony Kearns: Do I say that in my statement?
Ms Hodge: If we go, please, to page 3, paragraph 8b. Thank you.
So in the preceding paragraph you describe the objectives of the union and you go on to say here at (b):
“[They are] To regulate the tensions between members and their employers, and between members.”
Anthony Kearns: Yeah.
Ms Hodge: Do you consider that tensions existed or exist between subpostmasters and Post Office employees, bearing in mind what you said about their interests not necessarily being aligned?
Anthony Kearns: No. No, I don’t think there’s a tension. We can represent and do represent separate groups of workers to the employers who are not necessarily in the same workplace, not necessarily in the same, if you like, industry. So no, it’s – I don’t believe that, no.
Ms Hodge: Thank you. Another related topic, please, which concerns the relationship between the Communication Workers Union and the National Federation of SubPostmasters. In your statement, you say, at the time when you worked as assistant secretary, the two organisations held equal status; is that fair?
Anthony Kearns: They were both recognised by the employer, by the Post Office, as having negotiating rights. So, yeah, equal status insofar as they could both directly represent to the Post Office the concerns of their members.
Ms Hodge: You said you would occasionally communicate on key issues and priorities but you did not collaborate on projects or member representation; is that right?
Anthony Kearns: That’s correct.
Ms Hodge: Now, there came a time when the Federation and the union discussed a possible merger; do you recall that?
Anthony Kearns: I don’t.
Ms Hodge: It may assist you, please, if we –
Anthony Kearns: Sorry, generally, yes. I think we were approached by the then General Secretary, I think at the time was – I think at the time was George Thomson, but it wasn’t my day job so that approach would have been through Andy Furey and the then General Secretary, I think, Billy Hayes. So only in the sense that we were also approached once by the Society of Telecom Executives, which was the managers in the – in BT, where we also have members and, over the years – excuse me – over the years, we had – we do have general discussions with other unions and representative bodies about whether or not there is common ground or there is the possibility of us merging or are there any common interests.
So yeah, that approach – or whether they approached us or we approached them, I don’t know because I was not involved but I’m generally aware that a discussion took place.
Ms Hodge: Thank you. Could we please bring up CWU00000076. Thank you. As you can see, this is a report to the National Executive Council on 18 June 2015, for consideration at a meeting scheduled for 25 June. Were a member of the NEC at this time?
Anthony Kearns: Correct, I was.
Ms Hodge: Did you receive a copy of this report?
Anthony Kearns: I would have done.
Ms Hodge: You would have read it, presumably, at the time?
Anthony Kearns: Yes.
Ms Hodge: Now, to place this in context, can we please take a look at the heading and introduction. So this report relates to the NFSP, Post Office Limited and CWU. Under “Introduction”, it reads:
“It is prudent for us to consider the challenges, opportunities and options for the CWU given the likelihood that the NFSP special conference next month decides not to enter into a Memorandum of Understanding with the Post Office in preference to a transfer of engagements to us or the National Federation of Retail Newsagents.”
This is a reference, is it not, to what later became known as the Grant Framework Agreement, that was concluded between the NFSP and the Post Office in July of that year; are you aware of that?
Anthony Kearns: I am not. I’m not aware of that last point. As I say, my understanding was, along with other unions over a period of time, the NFSP had approached us, as well as others, including the National Federation of Retail Newsagents here, to understand or identify what scope there was for the two organisations to come together, but I wasn’t aware of that – of that other point, as I say because that was no longer my area of responsibility.
Ms Hodge: What this appears to suggest is that that approach, that you say you received from the NFSP, seems to have come at a time when they were also in negotiations with the Post Office over a possible long-term partnership and a funding arrangement; is that fair?
Anthony Kearns: Yeah, I think that’s fair. I mean, I referenced discussions we’d had with other unions about potentially merging with the CWU. But what happens is, if an organisation thinks there’s a need to merge, for want of a better phrase, they’ll keep a number of options open, they’ll have discussions with a number of partners, if you like, and then to a decision about which they think is the possession, fit for them. So, yeah, they were talking to us, talking to the National Federation of Retail Newsagents and talking with the Post Office, as I understand it, new arrangements which led to the contract that you just referred to.
Ms Hodge: Now, it appears that it was the expectation of the CWU that the NFSP would not enter into that agreement. Do you know why that was their expectation at the time?
Anthony Kearns: No, my sense for that, having been involved in discussions with other unions over a period of time, is you get a feel whether you’re just, for want of a better phase, as a bargaining chip for them to go somewhere else, so they will say to whoever their preferred partner is “These are offering us a better deal, we’re in discussions with this other group as well, so the deal had better be good from you”, whoever you are, “because we’ve got other options”.
Once you go through the sort of negotiation process on that, which I have been involved in but not the Federation, you start to get a feel about whether they’re serious about merging with you, or actually, they’re keeping their options open in case what they really want falls apart, and then they’ve got you as a back-up.
Ms Hodge: Now, if we could move on, please, to page 3 and we see this issue addressed in some more detail under the heading “Relationship issues”. Firstly, “With POL”, the first issue dealt with. That reads:
“There was an exchange of correspondence with POL in October 2014. This followed receipt by us of legal advice on the nature of POL’s relationship with the NFSP following the removal of the Federation from the list of accredited trade unions.”
Just pausing there, do you know why it was that the NFSP had been removed from the list of accredited trade unions?
Anthony Kearns: I don’t know the specific reason that would have been given by the CEO, no.
Ms Hodge: If we go on, please, to the second paragraph, it reads:
“We … need to return to that correspondence in the event of the merger process being terminated.”
So that’s presumably a reference to the possible merger between the CWU and the NFSP.
Anthony Kearns: I assume that – I’m assuming that’s what that refers to.
Ms Hodge: The:
“The exclusivity accorded to the NFSP does not appear to be consistent with particular legal obligations, especially as it necessarily means that CWU represented postmasters are excluded from arrangements which determine their contractual undertakings.”
Do you consider that the CWU was hampered in its ability effectively to represent the interests of subpostmasters by reason of the fact that they were not formally recognised by the Post Office for collective bargaining purposes?
Anthony Kearns: Yeah, I think – so, in reaching out to anybody who wants to be a member of any union or the CWU this say to them “This is what we can do on your behalf”, so we can say to directly employed staff, “What we can do on your behalf is go direct to the employer on pay, terms, conditions, that directly affect you. We are recognised by the employer to bargain on your behalf”.
I believe – my understanding, as of today, we still don’t have a recognition agreement with the Post Office for our subpostmasters’ section and, therefore, the offer that you make to potential members, one of the first questions they would ask is “What can you do on our behalf”, and we have to say to them “We’re not recognised by the Post Office to directly represent your interests”.
So, in answer, not being recognised by the Post Office to directly represent their interests is a hindrance to recruitment of that cohort, in my view. Sorry.
Ms Hodge: Well, it may be a hindrance to recruitment, is it also a hindrance to effective representation?
Anthony Kearns: Insofar as you cannot directly go to the Post Office, yes, it is.
Ms Hodge: Do you know the reasons which were given by the Post Office for refusing to recognise the CWU –
Anthony Kearns: No.
Ms Hodge: – as representative?
Anthony Kearns: I don’t.
Ms Hodge: What, if any, steps has the union taken to address this?
Anthony Kearns: I don’t know. As I think I’ve said in my statements, since 2002, not my day job. Andy Furey would be in the frontline of making that representation to the Post Office.
Ms Hodge: Now, in the second half of this page we can see the heading “Relationship issues … With the NFSP as reconstituted under an MoU”. It reads:
“We have received a copy of the much-discussed proposed Memorandum of Understanding between [Post Office Limited] and the NFSP. This is attached.
“The most salient points of this document can be summarised as follows …”
We’ll look at some of them now, please. The first one summarising paragraph 2 of the draft MOU:
“The NFSP will reconstitute itself as a trade association or similar organisation.”
Are you able to explain, please, the distinction between a trade union and a trade association?
Anthony Kearns: Um –
Ms Hodge: What the significance of that would be in –
Anthony Kearns: I understand what I know and believe a trade union to be and what its purpose is, and a trade association or similar organisation is there to protect the interests, as I understand it, of the business or the business owners, as opposed to all the workers who work in any particular trade or business, which is why I suspect the Certification Officer no longer includes the National Federation of SubPostmasters as an accredited trade union, because the Trade Union Certification Officer has a strict set of criteria about what a trade union is, and them not being listed as a trade union means that they fall outside of that remit. So there is a fundamental difference in protecting a business or protecting a trade, than there is protecting directly employed workers.
Ms Hodge: The second bullet point, please, states that:
“Under the MOU the, the [Post Office] (not [Post Office Limited]) will provide funding of ‘up to £1.5 million’ per annum from 2015/16’.”
It goes on to explain that the actual amount would depend on the difference between the revenues derived from the current membership model and the income stream and what they actually received, but it goes on to state at the bottom:
“In discussion, CWU representatives have described adoption of the MOU as meaning an inevitable cessation of subscription income – and no one [perhaps it should read ‘from’, rather than ‘form’] the NFSP has disagreed.”
So, essentially, a proposal to provide funding of up to £1.5 million.
If we could go over the page, please, the second bullet point there reads:
“‘PO will provide additional funding of no less than £1 million per annum as a budget for grants to the NFSP’. Thus the annual gross value of the MOU is up to £2.5 million per annum.”
Was a funding arrangement of this nature usual for a trade union or trade organisation to your knowledge?
Anthony Kearns: It’s not usual for a trade union. Absolutely not. Trade unions are almost predominantly funded by subscription income paid by their members. This document shows that had position for the Federation was to cease and they were to be funded directly by a payment from the employer or the Post Office.
Ms Hodge: Now, the document goes on to suggest that there were likely to be some conditions attached to the grant of this funding. If we can scroll down, please. Thank you. So these are referenced as part of paragraph 6, the first bullet point identifies paragraph 6 as a review mechanism for the agreement and states:
“At paragraph 6c it says that the ‘NFSP has not engaged in activities which are actively detrimental to the [Post Office]’ – but does not define what these are.”
The paragraph goes on to state that:
“… ‘the Post Office acknowledges that the NFSP … must have freedom to undertake activities that protect and represent their members’ views. In undertaking these activities, the NFSP agree that it will not introduce commercial risk to the [Post Office]’.”
The author observes this a “very wide potential prohibition”. Then:
“… while [Post Office] remains publicly owned, the proposed TTIP treaty …”
Do you know what that is a reference to: the TTIP treaty?
Anthony Kearns: I think that was an international agreement around how businesses transact standards that they had to operate under, from memory.
Ms Hodge: “… [that] could be prayed in aid as the arbiter of ‘commercial risk’ were the treaty to be ratified”, it suggests.
It goes on to say there are dispute management procedures, which are reasonably transparent and have a degree of independence but, in the final bullet point, please:
“Paragraph 6’s final subparagraph says ‘should the NFSP disclose [Post Office] information that is confidential or commercially sensitive (as defined in the confidentiality agreement) or encouragement [presumably was meant to read ‘encourage’] subpostmasters to take action which conflicts with their contractual obligations, except where all other avenues of dispute resolution have been exhausted, this will be deemed a material breach of this agreement.”
So, essentially, the NEC being notified there that there’s a new arrangement for funding to be made but that funding will come with certain conditions; is that fair?
Anthony Kearns: That’s my understanding of –
Ms Hodge: Now, if we could turn to the following page, please, we can see the overall conclusion reached by the CWU – forgive me, if you scroll up a little bit, thank you.
So, as to the effect of these provisions, the report provided:
“There can be no doubt that the MOU represents the abandonment by the Federation of any meaningful independence. Our relationship with them and the employer would necessarily change as a consequence, as the CWU would be the only organisation of standing able to offer postmasters effective representation.”
Now, reading that, it rather suggests that the CWU believed at that time that the NFSP had compromised or was going to compromise its independence in reaching this agreement; is that fair?
Anthony Kearns: That’s fair.
Ms Hodge: And that the CWU believed that it was the only organisation which could offer effective representation to subpostmasters?
Anthony Kearns: That was our view, yes.
Ms Hodge: Now, it’s a related issue but I’d like to deal now, please, with how the CWU responded to the emerging scandal. If we can please bring up your witness statement at page, that’s WITN06370200.
Thank you. Page 10, please, paragraph 43, you say this:
“I did not take any steps between 2009 and 2019 (inclusive) in raising any concerns regarding the integrity of the Horizon IT System with [Post Office Limited], the Government, the Shareholder Executive/UKGI, MPs, and peers or journalists as this issue no longer formed part of my remit to do so.”
Now, just pausing there, for a minute, you’ve just told us that, as a member of the NEC, you received a report saying that the NFSP was compromised or was compromising its independence; is that correct?
Anthony Kearns: That’s correct.
Ms Hodge: Do you not think that you had a duty to take forward these issues on behalf of subpostmasters who were not being effectively represented, in your view, by their trade association?
Anthony Kearns: So the question was: did I take any steps? The answer was I didn’t because it was not my job to do so. The CWU structure, at national level, is we have a National Executive Council, which I sit on, which is responsible for finance, admin functions, things like whether or not we agree to merge with another union to form a union, industrial issues, day-to-day industrial issues, which the Post Office and counter clerks are dealt with by a separate executive called the Postal Executive, of which Andy Furey is a national officer – I used to be a national officer of the Postal Executive from ‘97 to 2002.
So those issues are dealt with not by the National Executive Council but are dealt with by the industrial executive that I don’t sit on and is not part of my responsibilities. So my statement was in response to the specific question that I was asked by the Inquiry Team: did I take any steps between 2009 and 2019 in raising any concerns on the issue with those? And the answer is no because, as I’ve just explained, the remit for those was the then-Assistant Secretary couldn’t – Assistant Secretary, Andy Furey, and the postal executive.
Ms Hodge: The role of Assistant Secretary was not as senior as Deputy General Secretary, was it, in terms of hierarchy?
Anthony Kearns: In terms of the internal hierarchy of the union, correct.
Ms Hodge: Do you not think this was an issue which required the involvement of more senior leadership?
Anthony Kearns: No, because that isn’t the structure. So the responsibilities of the national officials are laid out within the rule book. Mine is to assist the General Secretary, and the Postal Assistant Secretaries and the Postal Executive have sole authority over the industrial issues with the employers, Royal Mail, Post Office, et cetera.
Ms Hodge: Thank you, sir. I think the stenographer would like a short break, please. I have very few further questions for this witness but I think there may be a couple of questions from the recognised legal representatives.
Sir Wyn Williams: Yes, that’s fine. We will take a break until 12.10.
Ms Hodge: Thank you.
(12.00 noon)
(A short break)
(12.10 pm)
Ms Hodge: Good afternoon, sir. Can you see and hear us?
Sir Wyn Williams: Yes, thank you.
Ms Hodge: Thank you, sir.
Mr Kearns, you’ve said in your statement and in your evidence that you simply weren’t aware that subpostmasters and Post Office employees were being prosecuted in reliance on data shown by Horizon; is that right, at least for a substantial period of time with which we’re concerned?
Anthony Kearns: Apart from when it became public, yes.
Ms Hodge: Do you recall when you first did become aware?
Anthony Kearns: I don’t recall, no.
Ms Hodge: I wonder, please, if we could look, again, at that report to the NEC dated 18 June 2015, that’s CWU00000076. This was the report we were looking at just shortly before the break, insofar as it related to the changes to the constitution of the National Federation of SubPostmasters and its funding arrangement with the Post Office. It also contained an update on Horizon. We can see that, please, on the first page., under the heading “Horizon”. It said this:
“As reported in LTB 269/15 …”
Is that a reference to letter to branch, “LTB”?
Anthony Kearns: “LTB”, letter to branch.
Ms Hodge: “… issued on 21 April, concern about the approach adopted by [Post Office Limited] to the alleged problems caused to postmasters by the Horizon operating system has now been raised directly with the Prime Minister.
“There has been a pause in political activity on this during the General Election period, but POL’s lack of engagement with the mediation process, the attempt to suppress a report by Second Sight – the company engaged to investigate alleged shortcomings of Horizon – and continuing concerns of both CWU and NFSP postmasters mean that the issue will not subside.”
Now, it goes on to read, please, over the page:
“The ‘Justice for Subpostmasters Alliance’ organisation has been set up by mostly ex-postmasters who believe that they have been unfairly treated. However, the key individual in JFSA, Alan Bates, is not currently in contact with the CWU parties’ branch.”
This suggests at least that, at this stage, Mr Bates hadn’t approached the CWU directly for support for his campaign; is that correct?
Anthony Kearns: Yes, that’s what it says, yes –
Ms Hodge: On the face of it, of what we have before us.
Anthony Kearns: Yes.
Ms Hodge: The second paragraph goes on to read:
“[Post Office Limited’s] position has essentially been based on the principle that the Horizon system cannot go wrong. However, this is not what we, NFSP and JFSA are saying. Our position is that however robust a computer system there can be and have been problems.”
What this appears to be is an acknowledgement by the CWU that there have been problems with the Horizon system; is that fair?
Anthony Kearns: That’s what that suggests, yes.
Ms Hodge: Now, the final paragraph reads:
“Due to the collapse of the Mediation Scheme at least two of our members will almost certainly now have normal [Post Office] disciplinary action taken against them (because they are still serving), which will quickly culminate in [Post Office Limited] terminating the contract of one member and forcibly making the other pay back his losses by deduction to pay.”
Now, if we just step back for a minute, this is obviously in a report to you as a member of the NEC – that’s correct – bringing to your attention concerns about Horizon; is that fair?
Anthony Kearns: Yes, it references –
Ms Hodge: Concerns which the CWU shared at that stage, or by that stage. These were concerns that affected both former subpostmasters and current subpostmasters, some of whom were members of the CWU at that time; isn’t that right?
Anthony Kearns: Yes, I mean – well, we had a subpostmaster section. So yes.
Ms Hodge: Given what you were being told in a report such as this, should you have done more, do you think, to raise awareness within Government and to lend your support to the campaign to expose the failings of Horizon?
Anthony Kearns: As I said before the break, that was not my area of responsibility. Our rule book, which is – under which the CWU operates, that responsibility is the responsibility of the Postal Executive and the officers of the Postal Executive, in this case Andy Furey, to deal with.
Ms Hodge: Would it be fair, do you think, to say that, in essence, the CWU left the group litigants to bear the burden of challenging the integrity of Horizon?
Anthony Kearns: Given that I had no involvement with that issue at that time, I couldn’t say I could agree with that statement. I’m not in a position to agree with that statement because I don’t know what the executive and the officer concerned were doing on a daily basis on this issue.
Ms Hodge: Thank you.
Sir, I’ve no further questions for this witness.
Before the recognised legal representatives ask their questions, is there anything you wish to ask, sir?
Sir Wyn Williams: No, thank you. No.
Ms Hodge: Forgive me, sir. If we just pause for one minute.
Sir Wyn Williams: Yes. (Pause)
Ms Hodge: Sorry, sir, we’ve had a late request for a further document to be put to the witness. It may be that the way we can approach it is to let Mr Stein, if you have questions, to go first.
I think the other representative is Ms Watt.
Sir Wyn Williams: Yes.
Ms Hodge: We can review the position in relation to that document to ensure that the witness is given a fair opportunity to review it before he is asked any questions.
Sir Wyn Williams: Sorry, we’re going to hear from Mr Stein and then Ms Watt, and then review whether we need to ask any more questions; is that it?
Ms Hodge: Well, sir, yes. I mean, my proposal is that we proceed with questions now whilst we review in the background what the effect of this document is and then we will perhaps see where we are in the next 15 minutes.
Sir Wyn Williams: Yes, that’s fine.
Ms Hodge: Thank you.
Mr Stein: Sir, I’ve no objection, of course, to us proceeding in that way. The difficulty though is, if the document is released and I need to see and it and consider it, for the purpose of any further questions, then I may beg an indulgence, which is to return to any questions we may have arising out of that document.
But on that basis, sir, would you mind if I then go ahead with our questions for Mr Kearns?
Sir Wyn Williams: No, no, carry on.
Mr Stein: I’m very grateful.
Questioned by Mr Stein
Mr Stein: Mr Kearns, you’re a longstanding employee of the CWU, the Communication Workers Union, you’re employed in an elected position as the Senior Deputy General Secretary of the CWU; is that correct?
Anthony Kearns: That’s correct.
Mr Stein: You may or may not know my name is Sam Stein, I represent a large number of subpostmasters/mistresses and employees working in branch offices of the Post Office.
I’ve just got a couple of questions, using, first of all, your experience, if may, as part of the trade union movement. In the judgment, judgment number 3 in the High Court – I’m not sure if you have this but I’ll read out the relevant part – a judgment by Mr Justice Fraser, now Lord Justice Fraser, he said this at paragraph 1120 of judgment 3 that:
“The National Federation of SubPostmasters is not independent of the Post Office.”
He went on to say:
“The Post Office also has a highly detailed funding agreement with the NFSP that would entitle the Post Office to claw back funds already paid to the NFSP if it does anything that would damage the Post Office’s reputation, including supporting the subpostmasters in this litigation.”
So he was making the points, which is the NFSP is not independent of the Post Office, there’s a funding agreement with the NFSP, allowing the Post Office to claw back funds paid to the NFSP if the NFSP anything that would damage the Post Office’s reputation.
Help us understand, with your own work within the trade union movement, is that a normal arrangement with a representative body working on behalf of, in this case, subpostmasters?
Anthony Kearns: No. I wasn’t aware of that specific but, having listened to what you said, I’ve never come across a representative body/trade union, that has such clauses in it. That doesn’t sit comfortably people with me as a trade unionist, that you could enter into that and claim to be a representative body.
Mr Stein: It may be, in some ways, obvious but what’s the problem with entering into an agreement to not criticise the employer of the people you represent; what’s the difficulty?
Anthony Kearns: Well, you would take away your independence, you take away your ability to challenge the direction that the employer or the company is going in, because you think it’s detrimental to both the members you represent. In the case of ourselves as the CWU, with recent examples of Royal Mail, the service they’re providing to the customer, to the public. If you’re unable to challenge that, it strikes me that it’s more like a business partnership than it is a representative body for the individuals that make up the organisation.
Mr Stein: Can I then elide that to a question that was asked by Ms Hodge that concerned and touched on collective bargaining. Now, you refer to collective bargaining at paragraph 7 of your statement, where you say you must add that:
“The CWU has long called for union recognition, for collective bargaining purposes, for subpostmasters but POL has consistently refused to grant this.”
You’ve added in your evidence you still believe that’s the position today; is that correct?
Anthony Kearns: That’s my understanding of it.
Mr Stein: Now, paragraph 11 says this:
“We engage in collective bargaining processes with several employers on issues such as pay, terms and conditions of employment.”
So Ms Hodge was seeking to establish with you what, if you like, are the advantages of collective bargaining on behalf of members of the CWU. You refer to it there as being discussions with employers on issues such as pay, terms and conditions of employment. What would be the effect of having what I am going to call a shackle on a representative body to not criticise the employer, in relation to collective bargaining?
Anthony Kearns: My view is that the shackle would be that you’re not able to effectively represent the members of that organisation and because – well, if you’re restricted, for want of a better phrase, in criticism, such – I give an example. You take the – we had a major industrial dispute with Royal Mail some years ago – I understand not everybody likes this but we took major industrial action which disrupted the service, partly because we didn’t think our members were being treated with due respect, partly because – the reason for that was because the direction that Royal Mail was setting out as a business, and therefore the industrial action that we eventually took was, if you like, for want of a better phrase, a protest against that, to defend our members against job losses, so on and so forth.
If you’re restricted from being able to make that criticism then, well, you’re not able to effectively represent those individuals who make up that organisation, is how I would see it.
Mr Stein: Now you’ve mentioned to Ms Hodge that the position of Mr Furey. Mr Furey, if I’ve got it right, is the Secretary to the CWU but also is the CWU’s national officer for postmasters, CWU members who are working in Post Office branches and working in the wider Post Office; is that correct?
Anthony Kearns: That’s correct.
Mr Stein: Right. So Mr Furey’s title is, essentially, to deal with all such matters in relation to CWU membership, subpostmasters, people employed in branches and working within the Post Office itself; is that right?
Anthony Kearns: Correct, his title is the Assistant Secretary, Clerical Cash Handling so all those issues which includes Crown Post Office staff and administrative staff in employment –
Mr Stein: Which is why, in your evidence, you’ve made it clear that, since, I think, around 2002, that’s not been your direct area of responsibility, it’s been Mr Furey’s; is that correct?
Anthony Kearns: March 2002, to be specific.
Mr Stein: I’m grateful. Then turning to Mr Furey, are you aware that he has given evidence before select committees in relation to the CWU subpostmaster branch employee membership?
Anthony Kearns: I am.
Mr Stein: Given evidence at least on two occasions that I can find on a quick search, is that right, and been interviewed generally in regards the Post Office and actions taken by the management of the Post Office and is quoted often in the press?
Anthony Kearns: Yes.
Mr Stein: Fairly obviously, Mr Furey would be someone who could take any other matters further if there were any other questions to be asked by the Inquiry?
Anthony Kearns: Correct.
Mr Stein: Thank you, Mr Kearns.
Sir Wyn Williams: Ms Watt?
Questioned by Ms Watt
Ms Watt: Good afternoon, can you hear and see me?
Thank you, Mr Kearns. I’m just diagonally behind Mr Stein there. Yes, we have this problem every time I speak. Thank you.
I have some questions for you on behalf of the National Federation of SubPostmasters and I think we actually spoke before when you were here the last time. Your union would have had hundreds, perhaps, if not thousands, of members working in what was then hundreds of Crown Office branches using Horizon during the 2000s when the scandal was emerging; that’s correct, isn’t it?
Anthony Kearns: Yes, my recollection, from around 2000, I think we have maybe 9,000/9,500 members. That’s severely diminished through the 2000s and to today because of –
Ms Watt: So A lot of members –
Anthony Kearns: Yeah.
Ms Watt: – many, many members –
Anthony Kearns: Yeah, thousands.
Ms Watt: – working in these Crown Office post offices?
Anthony Kearns: Correct, yeah.
Ms Watt: So you’ve accepted earlier this morning that there would have been prosecutions of Crown Office employees, you said the CWU didn’t know anything about these prosecutions because you didn’t provide legal funding for criminal representation and you’ve said, as I understand it, you don’t think you could would or should have known about these prosecutions at the time; is that correct?
Anthony Kearns: Yeah, they were not raised with us at national level. We were not aware of them. I mean, in terms of me saying I was aware of them, I was aware of them because I was handed a piece of paper that details prosecutions. That’s how I’m aware of them. I think also, in some of the questions I was given in preparing my statement was a question about what Legal Services the union offers to its members, and we don’t offer Legal Services for criminal prosecutions.
Ms Watt: But, as a generality, and this is over time – and I think Sir Alan Bates first raising of the point is around 2003/2004, and then everything gathers momentum over the years – there were these increasing voices about problems with Horizon and prosecutions and this was being reporting in the media, so my question is how or why could the CWU, even if you yourself in your role, not understand that issues with Horizon and prosecutions, given they were being talked about in the context of subpostmasters, might be able well be involving your members, could also be affecting them?
Anthony Kearns: As I say, from March 2002 – so the period you refer to, 2003/2004 – from March 2002, if such incidents occurred, they would go to Andy Furey and his department to deal with.
Ms Watt: I mean, I understand it wasn’t you personally. I’m talking about the union as a whole, looking at its members and issues that were coming into the public domain, were in the public domain. How is it that the union itself couldn’t understand that those issues might be affecting their own members, even if they weren’t hearing about actual criminal prosecutions of their own members?
Anthony Kearns: I mean, I think the point I’ve made and tried to make is that the union is made up of a number of sections and those elected to the top of the union have completely different responsibilities. So the responsibilities for dealing with any issues that would arise for our members directly employed by Crown Offices would go to and rest with what I would call the Postal Executive, which is – under our rule book, which has the sole responsibility for dealing with those issues. So it’s not that the union in total would be aware of all of those issues because it’s not why – everyone employed by the union is not employed to deal with everything that the union faces.
So individuals and elected groups are responsible for specific, different aspects of the work we undertake. So we have a nationally elected executive that deals with all issues relating to our members employed within the postal industry, which includes the Post Office, and we have a Lead Assistant Secretary who deal with various businesses, in this case my responsibility up until March 2002, and then Andy Furey’s responsibility.
Ms Watt: So would it be fair to say that the CWU, whether it was you or whether it was Andy Furey, but the CWU is joining the list of a rather long line of people and organisations who were simply incurious about Horizon?
Anthony Kearns: No, I don’t think that’s fair to say.
Ms Watt: Well, you’ve said that you didn’t know anything about it and that, despite media coverage, no one was prompted to look at the issue for CWU members. So I’m suggesting to you that that is indeed being incurious?
Anthony Kearns: Well, I don’t think I said I didn’t know anything about it. I also, on a number of occasions, I’ve been quite specific about where the responsibility lies in a large trade union like ours to deal with these issues on a day-to-day basis.
Ms Watt: Just to –
Sir Wyn Williams: Let me just ask you, Mr Kearns. Clearly, I understand what you’re telling me about the demarcation of responsibility but would you expect that the relevant heads of the section which deals with Post Office employees and subpostmasters would have had information about the numbers of people who were either been prosecuted or dismissed on the strength of information from Horizon?
Anthony Kearns: If that information somehow was given to them, either by the Post Office or by our reps or members.
Sir Wyn Williams: Well, when you say “somehow”, were there any processes in place, so far as you know – perhaps you don’t know – which would allow information such as I’ve just suggested to you to go up the ladder, from the local reps, where no doubt it will have started, to the senior people at the head of the relevant section?
Anthony Kearns: If those were issues of concern to our representatives at local level, area level, regional level, they would be passed up through briefings and meetings that our executive and national officers would have with those representatives on a regular basis. So, if those were issues of concern, then, yes, that would be the process through the procedure –
Sir Wyn Williams: Without wishing to put words in your mouth, is this a fair summary: that you would expect that, if local representatives were concerned about issues such as prosecutions or dismissal on the strength of Horizon, they would have ensured that it went up the ladder to more senior people?
Anthony Kearns: That’s a fair summary, yes.
Sir Wyn Williams: Fine. All right.
Sorry, Ms Watt.
Ms Watt: Thank you, sir.
Just picking up and following on from that and earlier questions, you were referring in some evidence with Ms Hodge to the former NFSP members, such as Mark Baker, coming over to the CWU because they were dissatisfied with the NFSP. I think it’s fair to say it’s a matter of public record on their part – certainly, at least, Mark Baker’s part – that this was largely to do with the satisfaction about the way in which the issues on Horizon were being dealt with by the NFSP.
Now, even if it was the case, for instance, that the Post Office wouldn’t talk to the CWU about subpostmasters at the time – this is around 2011 – because they only wanted to deal with the NFSP on subpostmasters, surely any concerns being brought to the CWU by Mark Baker and others about Horizon would have been another way that your union was alerted to problems with Horizon that could be affecting your own Crown Office members, and you could have raised it with the Post Office then; would you accept that?
Anthony Kearns: That would be the – as I said earlier, that would – if Mark Baker has represented those to Andy Furey, who was dealing with those issues in 2011, that would have been a way of raising them with the Post Office, yes.
Ms Watt: But it just never bubbled up to the relevant surface of the CWU; is that where we’re –
Anthony Kearns: Sorry, it didn’t bubble up?
Ms Watt: Yeah, it didn’t reach/go through those layers that you described to the Chair there of how matters come up through to the top of the CWU and perhaps then go to the Post Office?
Anthony Kearns: Well, again, I’m – I know people might get fed up with me repeating this but, after 2002, it wasn’t my responsibility, so I’m not aware of which issues bubbled up, as you describe it, through that rep structure to Andy Furey, and what then transpired after that.
Ms Watt: Did the Postal Executive or the CWU ever bring issues about Horizon concerns and Crown Office employees to the Executive Council of the CWU, that you can recall?
Anthony Kearns: Not that I can recall.
Ms Watt: I’ve just got a couple more questions. I think you were just discussing there, towards the end of your evidence, about self-employed subpostmasters and collective bargaining. I think you’ve been discussing and you’d agree that self-employed subpostmasters running small businesses are quite a different beast to large-scale groups of employees such as postal workers on collective bargaining; would you agree with that?
Anthony Kearns: Yeah, they are different groups.
Ms Watt: One final question. When I asked you questions on the last time you appeared, you agreed it was likely that Post Office employees, such as Auditors and others, were or could have been members of the CWU. I think you’d agree that would likely also include Investigators, as well; would that be right?
Anthony Kearns: When you say Investigators, you mean –
Ms Watt: Those who carried out an investigation function. People who were formerly counter clerks and then investigated shortfalls and discrepancies and –
Anthony Kearns: The Audit Team, you mean?
Ms Watt: Yes.
Anthony Kearns: Yes, a number of those were – yeah –
Ms Watt: Yeah, members?
Anthony Kearns: – members – certain members of the Audit Team were members of the CWU. Managers of the Audit Team were not –
Ms Watt: We heard that.
Anthony Kearns: – members of the CWU. They were the Communication Managers Association.
Ms Watt: Yes, we heard that. We have also heard much evidence about the aggressive bullying and intimidating tactics used by Investigators and Auditors and I just wanted to ask what you have to say about that behaviour and what the Inquiry has heard about the way in which Auditors and Investigators operated?
Anthony Kearns: So I only saw a snippet of one of the Post Office investigation branches giving evidence. I’ve had experience of the Post Office Investigation Branch, as it was then in my day job, when I was a local rep. Having represented people who have been accused of theft, I do find their methods to be aggressive, I do find their methods to be almost – well, natural justice is innocence until proven guilty; my experience of sitting down alongside our members, facing the Post Office Investigation Branch, is there’s a strong belief in the Post Office Investigation Branch where people are guilty and they’re there to ensure that there are consequences to that.
I don’t find it – generally, my experience in the past – it’s a long time since I’ve had any dealings with Post Office Investigation Branch – is I found them to be aggressive, not always – I wouldn’t trust them.
Ms Watt: So, to the extent that any of those were your members, is it something that you could or should or would now provide training to your members in how to conduct themselves?
Anthony Kearns: Training to our members?
Ms Watt: Well, members who are conducting those kind of functions –
Anthony Kearns: Our reps?
Ms Watt: Yeah.
Anthony Kearns: We – as I said earlier, we provide training for our reps.
Ms Watt: Sorry, not your reps. The members who are actually conducting themselves in this way. Do you consider the CWU has an obligation to perhaps remind its members of how to conduct themselves when carrying out their functions?
Anthony Kearns: Sorry, members of the investigation branch were not members of the CWU, members of the Audit Team were.
Ms Watt: Audit Team, yes.
Anthony Kearns: I’m talking about – we’re talking about two different things.
Ms Watt: Two different things?
Anthony Kearns: We had the investigation branch who sit down and accuse people of theft or wrong doing. The Audit Team – so the Audit Team – predominantly in Crown Offices, individual stocks and the office balance is conducted on a Wednesday evening. Predominantly, Audit Teams would arrive before the opening of business on a Thursday morning and do a full audit. So they would audit all the individual stocks and the whole office balance to check that the closing balance that the office and the individuals declared on a Wednesday night was, in fact, accurate.
The staff who carried that out were CWU members but they were not the ones who would be interviewing individual members of staff and accusing them of, for example, theft. That was the Post Office Investigation Branch. Two separate bodies within the Post Office.
Ms Watt: But those individuals might have been the ones out in the field dealing with subpostmasters. That’s what the evidence has heard; would you accept that?
Anthony Kearns: The Audit Team?
Ms Watt: Yes, members of the Audit Team.
Anthony Kearns: Yes.
Ms Watt: Thank you. Those are all my questions. Thanks.
Sir Wyn Williams: Right, Ms Hodge where are we with this document?
Ms Hodge: Sir, I don’t think there’s any need to share it in the end. I think the questions were posed in a more general way.
Sir Wyn Williams: Fine.
Ms Hodge: So that concludes the questions from the recognised legal representatives and the witness may be released.
Sir Wyn Williams: Yes, thank you, Mr Kearns, for reappearing at the Inquiry and answering further questions. I’m grateful to you.
So, is it sensible to break for lunch now?
Ms Hodge: Sir, I think so, yes.
Sir Wyn Williams: So we’ll resume at 1.40?
Ms Hodge: Yes, thank you.
Sir Wyn Williams: All right, fine.
(12.41 pm)
(The Short Adjournment)
(1.40 pm)
Mr Stevens: Good afternoon, sir, can you see and hear me?
Sir Wyn Williams: I can indeed.
Mr Stevens: Thank you, we are going to hear from Kay Linnell.
Sir Wyn Williams: Yes.
Dr Kay Linnell
DR KAY CATHERINE SHEILA HILARY LINNELL (sworn).
Questioned by Mr Stevens
Mr Stevens: Please could you state your full name?
Dr Kay Linnell: Kay Catherine Sheila Hilary Linnell.
Mr Stevens: Thank you for attending the Inquiry to give evidence today. You have produced a written witness statement, could I ask you to turn that up, please. That’s in front of you. Excellent. It should have the date in the top right of 16 May 2024.
Dr Kay Linnell: Yes, it does.
Mr Stevens: Thank you. For the record, that Unique Reference Number is WITN00550100. Now, before I go to your signature, could I ask you to turn to page 24, please, paragraph 91. It doesn’t need to be shown on screen you, on the first line, refer to “Jo Swenson’s” – well, spelt with an “E”, I understand you wish to correct that to “Swinson”, spelt with an “I”?
Dr Kay Linnell: Yes, please. Spelling mistake, and it’s the first of two paragraphs 91, which is a numerical mistake.
Mr Stevens: Can I ask you to turn to page 41, please.
Dr Kay Linnell: Yes.
Mr Stevens: You should see paragraph 157 and then below that a statement of truth with your signature?
Dr Kay Linnell: That’s my signature. Thank you.
Mr Stevens: Can I ask, are the facts in that statement true to the best of your knowledge and belief?
Dr Kay Linnell: They are.
Mr Stevens: That will stand as your evidence in the Inquiry and it will be published shortly on the website. I’m going to ask you some questions about it but, before I do, I understand that you’d like to make a statement?
Dr Kay Linnell: Yes, please. Thank you.
Before I start, I’d like to say this is a good opportunity to pay tribute to those who have worked very hard behind the scenes to help the SPMs to right the miscarriage of justice that has been brought to light. There are many unsung and unseen heroes and I have been personally supported very strongly by Howe+Co in this matter and, before that, by Freeths in the High Court litigation, and by other firms, such as Hudgells.
I would like to pay my respect and thanks to them, because a lot of what they’ve done is unpaid and unnoticed. Their support continues.
One other person I’d like to nominate for a special vote of thanks, so to speak, on behalf of the SPMs and myself is Barbara Jeremiah, my business partner. I slightly blame her for becoming involved in this, because Barbara believed in Jo Hamilton’s innocence and would not believe me until we got involved. Jo is our local subpostmistress, or was, and Barbara has worked tirelessly providing support, guidance and encouragement to many subpostmasters in the very many years we’ve been involved.
Barbara has been involved in almost 20 years and has never once wavered from her steadfast belief against impossible odds. Barbara has never refused a request for help from any SPM and has always been mindful of the damage inflicted on them and their families by the malicious, incompetent, coercive, controlling behaviour of the shape-shifting Post Office.
We will continue to give support to SPMs in every way we can, through accountancy, taxation, counselling and advice, and any SPM who needs advice should contact us until the money wrongly extracted from them, and the damages to compensate them, have been paid in full.
The new Post Office team appear to be no better organised than the old one through recent events but I will not mention that. Thank you.
Mr Stevens: We are not going to cover any recent events, we’ll look at matters in the Inquiry’s terms of reference. I’m going to start with your background, please.
You qualified as a chartered accountant in 1979?
Dr Kay Linnell: Correct.
Mr Stevens: You now work as forensic accountant?
Dr Kay Linnell: That’s correct.
Mr Stevens: When did you first start to act as a forensic accountant?
Dr Kay Linnell: Possibly in the late ’80s/early ’90s.
Mr Stevens: From that point the late ’80s/early ’90s, did you work for a firm or on a self-employed basis?
Dr Kay Linnell: I began engagement with fraud when I was a partner in a small firm of chartered accountants in Derby and, having discovered fraud, I applied to and joined the Inland Revenue and ultimately became the board of Inland Revenue’s Chief Investigating and Prosecuting Accountant and Head of Accounting Profession, prosecuting several well-known figures. I then left HMRC, as it became, and I set up the Joint Insolvency Monitoring Unit to monitor insolvency practitioners.
I’ve also worked in the industry for Forte Plc as Head of UK Taxation and then went back into the profession with a small London firm of accountants and I was then headhunted by Smith & Williamson to set up a Southampton branch as a forensic accountant and latterly by BDO. In about 2010, I set up my own practice.
Mr Stevens: So when you were first engaged in or involved in matters relating to subpostmasters, for whom were you working at that stage.
Dr Kay Linnell: I was working for myself. It was about 2012.
Mr Stevens: I think you mentioned BDO, you were employed by BDO?
Dr Kay Linnell: Yes, I was the Forensic Director in Southampton.
Mr Stevens: What was the full name of BDO, sorry?
Dr Kay Linnell: I think, at that stage, it was BDO LLP, I forget.
Mr Stevens: Could I start with your initial interaction, then, with subpostmasters and the subpostmasters’ cause. Could we, please, bring up the witness statement at page 2, paragraph 5. If we could have paragraph 5 at the top. You say:
“I became involved in the Post Office treatment of its subpostmasters in 2009 because of my local postmistress, Jo Hamilton.”
You then refer to your business partner, saying she used to drop into Jo’s shop in South Warnborough to buy her lunch on the way to court:
“One day in 2005, she found Jo in tears because of ever increasing unexplained shortfalls in her business accounts.”
You go on to describe some aspects of the criminal trial.
Can I just clarify, were you first made aware of Jo Hamilton’s case in 2009?
Dr Kay Linnell: No, earlier than that, and I did try and get involved in 2009 but my real first involvement with Sir Alan was in 2012.
Mr Stevens: Thank you. So is it fair to say that you were aware of some facts of the issues, you were aware of Ms Hamilton’s case before – well, before you became involved with Sir Alan but it’s only at that later stage in 2012 when you became involved.
Dr Kay Linnell: Yes. You could almost say I got my hands dirty from 2012 onwards but I was well aware of it much earlier than that.
Mr Stevens: That can come down. Thank you.
You go on to say that your business partner suggested that you spoke to Jo Hamilton in June 2012.
Dr Kay Linnell: Yes, that’s right.
Mr Stevens: At that point, I think, Ms Hamilton suggested that you spoke to Sir Alan?
Dr Kay Linnell: That’s correct.
Mr Stevens: Now, had you heard of Sir Alan before that, before you spoke to him?
Dr Kay Linnell: Yes, indeed. Mrs Hamilton told me all about him, regularly.
Mr Stevens: Can you recall your initial meeting with him?
Dr Kay Linnell: I met Sir Alan outside James Arbuthnot’s office in a first meeting which we were going to have with James Arbuthnot, and Ron Warmington and Ian Henderson of Second Sight.
Mr Stevens: So I’m going to come to that meeting shortly but that’s, effectively, the first –
Dr Kay Linnell: That was my first physical meeting. I had had a couple of telephone calls with him.
Mr Stevens: I just want to ask a few points about representation generally, starting with the JFSA. At paragraph 9 of your statement, you say that JFSA is an unincorporated affiliation with no constitution, rules or hierarchy, but simply united by a common problem, which is to get back the money wrongly taken by Post Office and attempt to recover losses and damages caused by the Post Office operation of the Horizon computer and support system in the subpostmaster Post Office Network.
You say no hierarchy; was Sir Alan the chairman of the JFSA?
Dr Kay Linnell: In one way. He was effectively the person driving a campaign and the SPMs that I met preferred that he led the way for them. I don’t think there’s an officially recognised hierarchy or structure where there’s chairman or secretary or treasurer, or anything like that.
Mr Stevens: How was decision making on behalf of the JFSA as a whole, how did that decision making happen?
Dr Kay Linnell: It happened at group meetings by show of hands.
Mr Stevens: When you first met Sir Alan in 2012, can you recall roughly how many subpostmasters or former subpostmasters formed part of the JFSA?
Dr Kay Linnell: I don’t know that information.
Mr Stevens: Do you know how the JFSA was funded at that time?
Dr Kay Linnell: My understanding is it had no funding.
Mr Stevens: At that time, had you had any contact with the NFSP?
Dr Kay Linnell: None whatsoever.
Mr Stevens: Let’s go, then, to the meeting in July 2012, and I think you say that that was with Sir Alan, Ron Warmington, Ian Henderson and Lord Arbuthnot?
Dr Kay Linnell: Correct.
Mr Stevens: Before that meeting, what had you been told about the purpose of it – sorry, the purpose of the meeting?
Dr Kay Linnell: I was told the purpose of the meeting was to consider a mediation proposal put forward by the Post Office.
Mr Stevens: So did you say mediation proposal?
Dr Kay Linnell: A mediation proposal put forward by the Post Office to James Arbuthnot which he wanted JFSA to sign up to, to try to resolve the – I think it was 47 MP complaints about SPMs.
Mr Stevens: Pausing there, there was obviously the Mediation Scheme, which we’ll come to after the Interim Report in 2013. This in July 2012, prior to the Second Sight Interim Report, was this still described to you as a mediation proposal?
Dr Kay Linnell: My recollection, which may not be that accurate at this remove of time, but my recollection was there was looking to be a mechanism to resolve the disputes, effectively raised by the 47 SPMs complainants thorough their MPs, and they wanted an initial external independent forensic firm of accountants to look at it.
Mr Stevens: Prior to that meeting, had you had any experience or dealing with either Ron Warmington or Ian Henderson?
Dr Kay Linnell: None whatsoever. I looked them up before meeting them but I wasn’t certain that they weren’t people put up to do a whitewash burial job by the Post Office.
Mr Stevens: So we can actually bring up your witness statement, please, page 4. There you say:
“I was extremely suspicious of Second Sight, as they had been nominated by [Post Office] as independent forensic accountants, and I was concerned that their access to documents and review of [Post Office’s] Horizon system might be a whitewash. I challenged them at our meeting in 2012 but was satisfied with their responses.”
Can I ask your recollection of how you challenged them at that meeting?
Dr Kay Linnell: I recall I asked them various questions about their background and approach to what ended up being the spot reviews of the cases.
Mr Stevens: Do you recall what they said to satisfy you?
Dr Kay Linnell: Not precisely but I wanted to know what documents they were going to look at, what level they were going to look at in the IT support and whether they were going to meet the complainants.
Mr Stevens: You said in your evidence then what ended up being the spot reviews. From your recollection, was the concept of spot reviews discussed at that meeting?
Dr Kay Linnell: Not to my recollection, no.
Mr Stevens: Do you recall, broadly, what the proposal from Second Sight was?
Dr Kay Linnell: I think the initial proposal was to pick several of the 47 cases and do an in-depth review of each of them to try to find out what had gone wrong and whether the complainant had any substance in what they were saying.
Mr Stevens: So, at that stage, a focus looking to specific cases raised by MPs?
Dr Kay Linnell: Yes.
Mr Stevens: Lord Arbuthnot produced a witness statement and gave oral evidence to this Inquiry, the witness statement was dated 12 March, and he recalls this meeting taking place on 12 July 2012, and his evidence was that you and Alan were satisfied and agreed to the appointment of Second Sight at that meeting, with the caveat that you would be able to double check that Second Sight were acting independently; would you agree with that?
Dr Kay Linnell: Yes, that’s correct.
Mr Stevens: At that point, how did you envisage checking on Second Sight’s independence?
Dr Kay Linnell: At that stage, I thought I would be acting as an independent forensic accountant for JFSA and, I believe at the time, I prepared a letter of engagement and it was agreed I’d be paid a small fee for checking their work and going round with them, just to see what they were doing.
Mr Stevens: Let’s look at that letter of engagement now. It’s exhibited to your witness statement at WITN00550101. Is this the letter to which you were referring?
Dr Kay Linnell: Yes, it is.
Mr Stevens: It’s dated 6 July 2012, so shortly after the meeting with Lord Arbuthnot and Second Sight?
Dr Kay Linnell: 16 July 2012.
Mr Stevens: 16th, sorry, did I say the 6th? I do apologise. 16th. If we could go down, please. We see “Scope of Our Work”, it says, well, firstly a sentence about acting as expert accountant and –
Dr Kay Linnell: Yes.
Mr Stevens: – refers to Second Sight. The second sentence says:
“The initial investigation would be in two parts, the first being into current errors, the second to investigate the historic cases which have been raised by MPs and a number of cases you will recommend.”
Dr Kay Linnell: That’s correct.
Mr Stevens: So is that broadly what Second Sight were suggesting at this time, or at least your understanding of it, a look at, in the first tranche, current cases and then more historic ones in a second tranche?
Dr Kay Linnell: That was my understanding.
Mr Stevens: At this stage, was there any discussion, from your recollection, of systemic errors or looking for systemic errors?
Dr Kay Linnell: No, not at all.
Mr Stevens: That document can come down. Thank you.
If we could bring up the witness statement, please, page 4, paragraph 15.
Sir Wyn Williams: Before that comes up, Mr Stevens, can you remind me to whom that letter was addressed? I saw that it was on Ms Linnell’s notepaper but it’s “Dear sirs”; is there a –
Mr Stevens: Yes, the addressee is Justice for Subpostmasters Alliance but, actually, sir, you are quite right, the question I should ask, if it’s an unincorporated association, was to whom was that letter sent?
Dr Kay Linnell: It was sent to Alan Bates.
Mr Stevens: There we are on the witness statement. So paragraph 15, you refer to attending a meeting at Post Office with Alwen Lyons and Paula Vennells. You say “I think in around June or July 2013”.
Dr Kay Linnell: That’s correct.
Mr Stevens: Had you met with Alwen Lyons and/or Paula Vennells before then?
Dr Kay Linnell: I don’t think I’d met Alwen Lyons before then and I think I had seen rather than spoken to Paula Vennells. There was a briefing day in the September of that year when I definitely met them but I don’t recall meeting them before then.
Mr Stevens: The Interim Report is produced on 8 July 2013.
Dr Kay Linnell: Yes.
Mr Stevens: Was this meeting before or after the Interim Report?
Dr Kay Linnell: Unfortunately, I can’t find the date but I believe it was before the Interim Report was released.
Mr Stevens: But you’re confident that it was 2013 and not 2012?
Dr Kay Linnell: Yes.
Mr Stevens: We’ll come back to that meeting, then, in due course. Can I please ask for us to look at POL00091028. If we could go down, please, thank you. So we have an email from Ronald Warmington to Mike Wood MP. You’re not in copy to this, so you wouldn’t have seen it at the time, presumably?
Dr Kay Linnell: No.
Mr Stevens: Have you seen it for the first time when preparing for the Inquiry?
Dr Kay Linnell: That’s correct, yes.
Mr Stevens: The second paragraph of that email says:
“The idea of carrying out a deep dive into Horizon is on hold until we have completed the Case Reviews. Few of us think that sort of review will work well. Some of us think it would probably turn out to be a colossal and expensive disappointment (for those seeking evidence of anomalies in Horizon). Those pressing for such a Review now seem happy to wait to see what the Case Reviews throw up.”
Do you have any recollection, between the meeting you had with Second Sight on 12 July and this meeting on 18 July, of any discussion about a deep dive review or specific case reviews?
Dr Kay Linnell: No, we only had the one meeting to start the process off. I think it’s referring to our first meeting.
Mr Stevens: At this stage, you were happy with the case reviews approach?
Dr Kay Linnell: I think if you didn’t approach it through case reviews, you wouldn’t know what anomalies you would be looking for. You’d be checking 100 per cent of the system at vast cost and it would take an enormous amount of time, so I do agree with starting with the problems and then working back to see what went wrong.
Mr Stevens: Thank you, that document can come down.
Please can we bring up your witness statement at page 11, paragraph 47. Thank you. Now, this is something I’ve already touched on. You say here about the distinction between systems error and systemic error. You say:
“It’s worth noticing the difference between a ‘systems error’, (that is an IT coding error that will replicate an error of the entry of the same data and processing of the transactions in the IT system) and a ‘systemic error’), that is one caused by incorrect implementation and management of the subpostmaster network using the Horizon computer accountancy system).”
Were those concepts, as you describe them there, discussed with Second Sight in 2012?
Dr Kay Linnell: I think the first time the words “systemic error” was used was in a letter from Sir Alan to, I think, James Arbuthnot, and the difference between Ron and Ian’s definition of systemic errors and ours is theirs was restricted solely to the computer system, whereas ours saw it to be a complete system of administration, training, implementation and management, using the computer Horizon.
Mr Stevens: Do I take it from that, then, that there wasn’t a discussion with Horizon on the difference between “systems error” and “systemic error” in 2012?
Dr Kay Linnell: Not that I recall.
Mr Stevens: Could we look, please, at the Interim Report. It’s POL00099063. If we could go to page 22, please, so this is an appendix to the Interim Report which sets out, it says, the remit of the inquiry. It says:
“The remit of the Inquiry will be to consider and to advise on whether there are any systemic issues and/or concerns with the ‘Horizon’ system, including training and support processes, giving evidence and reasons for the conclusions reached.”
Do you recall the first time you heard the inquiry expressed in those terms was?
Dr Kay Linnell: I think it was on the publishing of this report which I didn’t see in draft before it was published. I just saw the final version.
Mr Stevens: Keeping at the time when the Second Sight review was commissioned, so July 2012, what at that time was your view of the Post Office’s motivations for commissioning that review?
Dr Kay Linnell: Personal opinion is that they wanted to settle the MPs’ complaints and make it quiet.
Mr Stevens: What was that based on?
Dr Kay Linnell: It was based on the attitude of the Post Office in falling over themselves to provide information about those particular cases and nothing else.
Mr Stevens: In your view at the time, what, if any, other options were open to the JFSA to push forward with the subpostmasters’ concerns?
Dr Kay Linnell: The JFSA were an alliance of people who had similar problems with the Horizon system, who’d suffered personal damage but had no information whatsoever. If it could be taken to the next stage of taking it to the court, the SPMs, JFSA, required evidence, and there was no way of getting evidence from the Post Office, except through MP complaints. So there was no other course of action they could have taken at that stage, in my personal opinion.
Mr Stevens: Just to be clear, that was your opinion at the time?
Dr Kay Linnell: It was my opinion at the time and remains so.
Mr Stevens: In 2011, the Inquiry has seen letters of claim from Shoosmiths starting or intimating actions and the Inquiry has heard evidence of, in 2005, Post Office considering that a group action may be on the horizon at some stage. Why was that not a viable option for the JFSA at the time? You’ve mentioned the evidential concerns; were there any others?
Dr Kay Linnell: There are two problems that JFSA faced: one is no evidence or information; and the second is no funding. So to get funding, you’d have to put a case together to take to a litigation funder and, without any information being extracted from the Post Office, it would be impossible. It had already been tried and kept being tried to get Freedom of Information requests, and the one I am familiar with is Jo Hamilton’s, which came about an inch thick with nearly every page redacted but for one or two words. It was a document that must have cost a lot of ink but it couldn’t be used for litigation because there was no information worth using.
Mr Stevens: So is it fair to say that the access to information about the cases and the system, was absolutely imperative to pursuing the subpostmasters’ campaign?
Dr Kay Linnell: It was critical because, without such information, it would not have been possible to convince any lawyer there was a case to be answered.
Mr Stevens: At this stage, to what extent had the JFSA sought out assistance from other bodies, such as the NFSP?
Dr Kay Linnell: I’m not aware of that, I’m afraid.
Mr Stevens: I’d like to now, look, at the Second Sight investigation itself. Please could we bring up POL00097402. This is an email on 25 January 2013 from Ian Henderson to Janet Walker. Now, Janet Walker worked for Lord Arbuthnot, then James Arbuthnot MP.
Dr Kay Linnell: That’s correct.
Mr Stevens: It says:
“Ron and I have discussed this.
“We both think it’s an excellent idea for Alan and Kay to be invited [referring to a meeting]. We are now working quite closely with them and have almost daily contact.”
Would you agree with that about the state of your working relationship at January 2013?
Dr Kay Linnell: Yes, I was going out to various meetings with SPMs with Ron, and Alan and Ian were also talking quite a lot so, yes, I would agree with that.
Mr Stevens: At that stage did either Mr Henderson or Mr Warmington communicate to you any of their views on what they’d heard about the Horizon IT System?
Dr Kay Linnell: As you’ve heard from them on Tuesday, you’ll know that they’re not backward at telling their views about things, so yes, they had.
Mr Stevens: What’s your recollection of what they said?
Dr Kay Linnell: My recollection was they found sufficient errors, defects and problems that the complaints by the subpostmasters through their MPs were generally being found to be based on errors in the Horizon system.
Mr Stevens: At that stage, how satisfied were you with the work that they had and were carrying out?
Dr Kay Linnell: I was very satisfied that they were trying to do their best to get information from Post Office to answer the question we’d all been asking: why had these differences occurred?
Mr Stevens: At that stage, January 2013, had either Mr Warmington or Mr Henderson mentioned concern that there may have been miscarriages of justice?
Dr Kay Linnell: No, we didn’t discuss criminal prosecutions or miscarriage of justice. We were simply looking to try to find out why the errors had occurred.
Mr Stevens: Please could we bring up POL00098315. If we can move down the page, please. Thank you. We have an email from Sir Alan to Ron Warmington on 12 May 2013. I believe that data protection has covered up the email address but I believe that’s you in copy; is that right?
Dr Kay Linnell: Yes, I was copied.
Mr Stevens: It’s responding to quite a lengthy email from Mr Warmington, which I don’t need to take you to. As you may expect, it’s the “System Errors vs Systemic Failures” that I want to deal with. It says:
“I think there may be, at times, confusion by others over the referring of these two points. At its most basic, system errors would to me be something like an extra loop in the software code causing the false result of a transaction, but as you rightly say, that would affect every one of the 11,500 offices. Then at the other end of the scale it might be something far more complex resulting from a network communication failure and an incomplete recovery of a transaction at a particular office …”
It goes on, and Sir Alan goes on to say:
“Now systemic failures on the other hand are different, and in my letter to James Arbuthnot …”
Now, pausing there, was that the letter to which you referred earlier in your evidence as the first time you recollect this issue arising?
Dr Kay Linnell: Yes, that’s my recollection.
Mr Stevens: He says:
“… where I first use the phrase, I have qualified its context.
“This occurs in the first sentence of paragraph 2, where I say ‘the weight that it adds to the systemic failures with Post Office and the Horizon system’. It is these systemic failures with Post Office and their Horizon system that are the proven facts.”
Now, do you agree with that definition of system errors and systemic failures.
Dr Kay Linnell: Yes, I do.
Mr Stevens: Did you have any further discussion on that distinction with any representatives of Second Sight following this email?
Dr Kay Linnell: No, I left this to Alan because he had some experience in point of sales and software and, frankly, I’m too old. I use pen and ink, really.
Mr Stevens: Before we move to look at the Interim Report itself, to what extent were you aware of Fujitsu’s involvement during the – sorry, I’ll rephrase that.
To what extent were you aware of Fujitsu being consulted by Post Office during the Second Sight investigation?
Dr Kay Linnell: I assumed, at this time, that Fujitsu held some of the electronic evidence and data and they would have to be asked by Post Office to produce it. I’m not aware of any consultations.
Mr Stevens: So is it fair to say that was an assumption you made because they operated the computer system but you had no direct knowledge of Post Office contacting Fujitsu?
Dr Kay Linnell: Not at that time, no.
Mr Stevens: At that time, had you heard of Gareth Jenkins?
Dr Kay Linnell: No, I had not.
Mr Stevens: I said it would be before I move to the Interim Report but, of course, I put off the question I was going to ask earlier about a meeting with Paula Vennells and Alwen Lyons. Could we please bring up your statement at page 4, paragraph 15. Thank you.
So you refer to, again, this meeting in either June or July 2013 and my understanding is that this was before the Interim Report came out. That was your evidence earlier.
Dr Kay Linnell: Yes, that’s correct, and I believe it was requested by Post Office. We’d written and asked for a meeting I think on around the beginning of June 2013, and the date was suggested by, I think, Paula Vennells.
Mr Stevens: Well, let’s see if we’re thinking about the same email. Could we bring up POL00098418, please, and if we could go to the bottom of the page, please. This is an email from Sir Alan on 21 May 2013, and the last paragraph on the page says:
“Would it be possible for Kay Linnell and I to meet with you?”
Is that the email you were referring to?
Dr Kay Linnell: Yes, and I think there’s some subsequent emails where she comes back and I think a date of 5 June was suggested but that wasn’t convenient. Yes, it’s down there at the bottom of the page.
Mr Stevens: So looking at this email, Sir Alan refers to you and who you are, as a reminder. If we go down, he says that:
“The main purpose of the meeting is to ensure that you have been receiving the full details of what has been occurring with the Second Sight investigation. Bearing in mind what has been discovered so far, I for one am surprised that we haven’t yet met to discuss the implications.”
Now, pausing there, at that stage, what had been discovered so far that prompted an email from Sir Alan? I should ask, sorry, did you and Sir Alan discuss this before sending it?
Dr Kay Linnell: Yes, we regularly discussed things and swapped drafts and, as I recall, what had been discovered is there had been substantial and important errors in the operation of the computer, which had caused differences in shortfalls in SPMs’ accounts, and it was, at this stage, we had, from the spot reviews, evidence that Horizon did not operate perfectly and left differences.
Mr Stevens: It goes on to say, the final sentence of the paragraph:
“I have little doubt that it is now feasible to show that many of the prosecutions that [Post Office] have pressed home should never have taken place, and I believe this is a view shared by Kay.”
Was that a view shared by you?
Dr Kay Linnell: Very much so.
Mr Stevens: Again, so we’re clear here, what was it at that stage that led you to believe that it was feasible to show that many prosecutions should not have taken place?
Dr Kay Linnell: Bearing in mind I had personal knowledge of Jo Hamilton’s case and her case was taken to the doors of the trial before a plea bargain, without any evidence being given to Jo to check, as to how and why the errors arose, when Second Sight started their spot reviews, they also found that there were errors which hadn’t been disclosed to people who were prosecuted as part of the spot cases.
Mr Stevens: Just pausing there, when you say “errors”, can you remember, putting yourself back to the time, what those errors were which led you to believe this?
Dr Kay Linnell: I can’t remember which names the bugs had but –
Mr Stevens: Is it bugs that you’re referring to?
Dr Kay Linnell: It’s bugs and everyone has called them bugs but they’re actually errors in the computer software programming that, when you put in a certain series of transactions, always cause a difference. And as the Post Office read the contract, that it was always the subpostmaster’s fault or liability, whatever the circumstances, it was clear to me that money had been taken wrongly, and also, as in Jo’s case, they had relied on the computer figures to mount a prosecution, and I therefore felt at that stage prosecutions might or probably were unsafe.
Mr Stevens: Was that, the prosecutions being unsafe –
Let me rephrase it. Who did you discuss your concern that prosecutions may have been unsafe, other than Sir Alan and, by way of this email, Paula Vennells?
Dr Kay Linnell: Nobody, because it’s a suspicion, not evidence and, as forensic accountant, I have prosecuted people while I was at HMRC/Inland Revenue, and I am aware of the standard beyond reasonable doubt and the evidence required to show criminal intent, none of which appeared to be present in Jo’s case. But I was not aware of sufficient evidence to take that anywhere else. It was a suspicion.
Mr Stevens: The last question I’d like to ask on this email is the use of the words:
“The main purpose of the meeting is to ensure that you have been receiving the full details of what has been occurring …”
Do you know why Sir Alan used that turn of phrase?
Dr Kay Linnell: We actually discussed this. It’s a question, we thought, of the Post Office being a former Government organisation which had silos where, for example, the Legal Department appeared to be completely separate from the Operation and Management Department of the Post Office Network and there appeared to be management layers between them and the Board and the CEO. So Alan and I wanted to make sure the people at the top knew exactly what had been found.
Mr Stevens: If we then can go back to the meeting, which we had in your witness statement, so if we could bring back page 4 of the witness statement, please, paragraph 15, it says that:
“We asked to meet Paula Vennells as CEO to try to get a reality check on the [Post Office] opposition to recognising the plight that [Post Office] had caused [subpostmasters], to admit Horizon was not 100 per cent perfect (as no computer system can be) and to get money paid back to [subpostmasters as soon as possible].”
You go on to say:
“At that stage, JFSA did not want a full public exposure just proper care for SPMs in giving money back wrongly taken and paying for losses and damages. We were asking for substantial amounts but nothing compared to their own bonuses published in great deal in the [Post Office Limited] annual accounts.”
There you don’t refer to prosecutions. Did you not discuss that with Paula Vennells at this meeting?
Dr Kay Linnell: As far as I can recall, we discussed everything, and we were slightly worried that they’d used no evidence at all to mount criminal prosecutions without any idea of whether there was a guilty mindset or not. But I didn’t refer to it there because I am not certain. I don’t have any notes of that meeting. I can’t even find the date of it, unfortunately.
Mr Stevens: From your recollection, what do you think you said to Paula Vennells and Alwen Lyons about your concerns as to criminal prosecutions?
Dr Kay Linnell: I believe Sir Alan and I have always been concerned about giving money back to subpostmasters who were in dire financial straits, having had money taken away from them, and the thought about prosecutions was something we suspected but couldn’t prove or worry about. As in 2013, so many years ago, we wanted the money given back to people it had been taken off, and that still is a primary concern. And, you know, I’m sorry to expand on the answer but I recall that all we got from Paula Vennells was her main purpose was to learn from the past and build the brand and make it profitable, which is not an answer to our questions at all.
Mr Stevens: Do you recall there being any discussion on, or proposal put forward, by either Alwen Lyons or Paula Vennells that went to concerns about either criminal prosecutions or giving money back to subpostmasters as you requested?
Dr Kay Linnell: No. None.
Mr Stevens: Thank you. That document can come down. Thank you.
Please could we – actually, before we go to that, the Interim Report, we know, is published on 8 July 2013. What, if any, involvement, did you have with looking at or discussing drafts of the Interim Report with Second Sight?
Dr Kay Linnell: None whatsoever.
Mr Stevens: Did you have any discussion with representatives of Second Sight more generally about the content of the – not specific drafting but the content, the general content, of the Interim Report before it was published?
Dr Kay Linnell: Not before it was published.
Mr Stevens: What did you understand the purpose of Second Sight releasing the Interim Report to be and, just to be clear, my question is before it was released?
Dr Kay Linnell: Before it was released, I believe there was some pressure, particularly from – James Arbuthnot was my MP, as well as Jo’s, and I think there was some pressure from the MP committee, led by James, to actually give some sort of Interim Report as to what the Second Sight investigation was finding. So, I believe they selected a few cases, four or five, and produced, effectively, a distilled analysis of them. Before they produced it, I expected it a full in-depth analysis of them.
Mr Stevens: That purpose, so producing an interim distilled analysis of four or a select number of the spot reviews, did you think that was a – what did you think of that as an idea?
Dr Kay Linnell: Not a bad idea because it might start the ball rolling towards giving the money back, I thought, and as long as it’s only a stepping stone in their enquiries, it wouldn’t make any difference.
Mr Stevens: Was there any discussion, before the Interim Report was published, as to what would happen to Second Sight’s investigation after it was published?
Dr Kay Linnell: No, I don’t believe there was a discussion, I think there was an understanding that the Second Sight investigation would continue until they’d finished the subpostmasters’ complaint cases, the ones from the MPs.
Mr Stevens: Sorry, I –
Dr Kay Linnell: I beg your pardon.
Mr Stevens: I overcut you there. I was about to ask, you said “until they’d finished the subpostmasters’ complaint cases”, and then you say the ones from the MPs, as in the cases referred by the MPs?
Dr Kay Linnell: And I think they were augmented in some way by a few added by Post Office as sample cases, from memory.
Mr Stevens: You referred to an understanding that Second Sight’s work would continue. When you say that understanding, was that just your understanding or one shared by others?
Dr Kay Linnell: The original engagement of Second Sight was by the MPs, countersigned by JFSA and Post Office were used by the MPs as a vehicle to implement the contract and pay, because the MPs did not have a budget. So my understanding was the MPs were instructing Second Sight, nobody else, and the MPs wanted an answer to their queries.
Mr Stevens: Could we look now at the Interim Report, please. It’s POL00099063. If we could look at page 8. The preliminary conclusions are very well known to the Inquiry. We see there (a) “no evidence of system wide (systemic) problems” and (b) referring to two incidents of where “defects or ‘bugs’ in the Horizon system”, and it goes on to refer to two of the bugs that the Inquiry has heard a lot about.
What do you think of, in particular, these two preliminary conclusions at the time?
Dr Kay Linnell: I was particularly disappointed by conclusion (a) because I didn’t think there was sufficient data for Second Sight to reach that conclusion. I don’t think they should have opined at all on whether there were systemic problems at that stage. I also found in my own research, following them round, that they had found problems across the system where one error would affect many, many branches, and I was therefore disappointed.
Mr Stevens: Just taking that in stages. Firstly, you say disappointed because you didn’t think they had the evidence to say that, the fact they’ve said, “We have so far found”, so saying, “we haven’t found evidence of a systemic problem”, did that not reassure you?
Dr Kay Linnell: Quite the opposite. It made me think that Post Office had interfered with the report.
Mr Stevens: When you said that you felt you had seen evidence of “system-wide (systemic) problems”, do you recall, at the time, what you thought those were?
Dr Kay Linnell: No, I can’t recall. There was something to do with ATMs but I don’t know whether that – and it was the Bank of Ireland, but I’m sorry, my memory of that is very hazy. I just remember being quite cross about this because they shouldn’t have put anything in without the evidence to support it and, from what I’d seen of Ron Warmington and Ian Henderson, they were very thorough, so I don’t believe, on their own, they would have written that.
Mr Stevens: Just to be clear, you weren’t involved in the drafting process, so you don’t have any direct knowledge of how this report was drafted?
Dr Kay Linnell: None whatsoever.
Mr Stevens: Can we turn to page 12, please. This is spot review 5, which concerns the allegation that had been made by Michael Rudkin, regarding what’s now referred to in shorthand as remote access. The Inquiry has seen this a lot, I don’t need to go through it in full. If we could just look at the bottom of page 13, please, saying:
“We are left with a conflict of evidence on this issue and our enquiries are continuing, particularly in light of the new information confirming that the meeting on 19 August 2008 did in fact occur.”
Were you told anything about Fujitsu’s ability to access data or insert data into branch accounts remotely, prior to the issuing of the Interim Report?
Dr Kay Linnell: Yes.
Mr Stevens: What were you told?
Dr Kay Linnell: I was told it was possible to enter the system through a backdoor and it was a systemic error.
Mr Stevens: Who told you that?
Dr Kay Linnell: Well, believe it or not, I think it was Ron Warmington, but I’ve certainly talked to Sir Alan about it and we knew about the Bracknell and other parts of Fujitsu who regularly made corrections to the live system.
Mr Stevens: So you spoke about it with Sir Alan and I think you said Ron Warmington discussed it with you. At this stage, so when the Interim Report was released, were you aware of Gareth Jenkins as a person?
Dr Kay Linnell: No, I’m still not aware of Gareth Jenkins at this stage.
Mr Stevens: You say in your statement – we don’t need to pull it up – that you thought the Interim Report could have been much stronger with regard to the Post Office Limited field of operation and systemic working errors, and, in your oral evidence you’ve expressed frustration about the report.
Did you discuss your feelings on the report with either Mr Henderson or Mr Warmington at the time?
Dr Kay Linnell: After the report was issued, yes.
Mr Stevens: What did you say to them?
Dr Kay Linnell: I was disappointed.
Mr Stevens: What was their response?
Dr Kay Linnell: I don’t exactly recall what they said, except that, you know, they’d had to discuss the draft with Post Office and clear it, which I still don’t understand.
Mr Stevens: I want to now look, then, at what happens next in the chronology. It’s the Mediation Scheme. Were you involved in any discussions with Post Office representatives following the publication of the Interim Report about what to do next, following its findings?
Dr Kay Linnell: Yes, there were extensive discussions generally led through James Arbuthnot and Alan Bates about how we should go forward from the Interim Report because, although I thought they’d carry on finishing the job, it was clear they wanted to take a different line.
Mr Stevens: When you say it was clear they wanted to take a different line, how did you come to learn of that? When you say “they” do you mean Post Office?
Dr Kay Linnell: Post Office, I’m sorry, I should say. Post Office wanted to be seen, in my view, as reacting to the Interim Report in a positive way.
Mr Stevens: Were you involved in the initial discussions as to the establishment of what became the Mediation Scheme?
Dr Kay Linnell: Yes, I was.
Mr Stevens: Who else was involved in those discussions?
Dr Kay Linnell: Sir Alan Bates, Ron Warmington, Susan Crichton, Ian Henderson, James Arbuthnot; possibly some others.
Mr Stevens: So, on behalf on the Post Office, it was Susan Crichton?
Dr Kay Linnell: Susan Crichton led the discussions.
Mr Stevens: And can you recall, in terms of dates, when those discussions took place?
Dr Kay Linnell: They were some time around August 2013.
Mr Stevens: What was your view of Susan Crichton’s approach to the issues in the Mediation Scheme?
Dr Kay Linnell: She struck me as somebody who was trying to get to the bottom of what had gone on and to put forward some redress or remediation for the people who’d been caught up in it.
Mr Stevens: The Working Group that oversaw the Mediation Scheme, do you remember when that first became suggested as an idea?
Dr Kay Linnell: The Working Group was merely a part of the Mediation Scheme, and I think it was called the Initial Complaints and Interim Mediation Scheme, as it’s supposed to be a model where we tested whether complainants could get redress, and I believe it started with a training session in September 2013, which I attended with Julian Wilson from the JFSA.
Mr Stevens: If we look at that now, if you can bring up your witness statement, please, page 18, paragraph 66. So, as you rightly say, it was attended by Julian Wilson and you say:
“The training day was also attended by Second Sight, and presentations were given by Susan Crichton, Angela van den Bogerd and Andy Parsons.”
Is this the first time you’d met Andy Parsons or had you met him before then?
Dr Kay Linnell: No, I think this was my first meeting with him.
Mr Stevens: Do you have any recollection of his approach to the training session itself?
Dr Kay Linnell: The training session was done in such a way to explain the background to the way Post Office operated and its structure and Andy Parsons gave some legal overview. I forget the details precisely.
Mr Stevens: Angela van den Bogerd, was that your first dealing with her or had you met her before?
Dr Kay Linnell: No, this was my first dealing with her.
Mr Stevens: Again, the same question. What was her – what was your view of her – sorry, I’ll rephrase that.
What was your view of her approach to the training day and the Mediation Scheme at that point?
Dr Kay Linnell: Her approach was to tell us sufficient to understand how the Network was managed by Post Office and the duties of the subpostmaster.
Mr Stevens: Please can we look at WITN00550103, and page 11, please – actually, no, sorry, if we start on page 1., usually a good place to start. I think this is exhibited to your witness statement as a presentation given at this training day; is that correct?
Dr Kay Linnell: That’s correct. This is a copy of the slide deck.
Mr Stevens: Can we turn to page 11, please. So we see Bond Dickinson at the top. Can we infer from that that it would be Andy Parsons giving this part of the presentation?
Dr Kay Linnell: This is Andy Parsons’ presentation.
Mr Stevens: We have “Possible remedies”, I want to ask about two. Can you recall what was said about compensation?
Dr Kay Linnell: My recollection of this day is quite muddled, to be honest. I have a feeling he said, if there is something that’s been done wrong, clearly the Post Office will compensate you, or some wording like that. My notes are also pretty fuzzy because I’m talking to people and presenting as well. But I think it basically was that they would pay compensation to people who had suffered, if there was an error proved by Post Office.
Mr Stevens: I appreciate you say your memory is – I think the words were “quite muddled” but do you recall what was said about “Support a criminal appeal”?
Dr Kay Linnell: Again, if the evidence – I think my recollection is that Andy Parsons said, if there was a proven miscarriage of justice, they would support a criminal appeal. Just as an aside, if I may, you would have thought, if they’d known about Gareth Jenkins at this stage, they would have actually told us in the briefing.
Mr Stevens: Can we look, please, at POL00022120. This is a document titled “Overview of the Initial Complaint Review and Mediation Scheme”. Was this a document to which the JFSA had input?
Dr Kay Linnell: Yes, we had a lot of input.
Mr Stevens: Was it an agreed document?
Dr Kay Linnell: In the end, yes. It was compromised in various parts but it was generally agreed.
Mr Stevens: Throughout my questions today, I’ll come back to this, and there may be points where I ask you where there’s been compromise but I’m not going to ask you for the whole of the drafting by committee. Could I look, please, at page 5. We have “Frequently Asked Questions about the Scheme”, and at the bottom, “What if my case involves a completed criminal prosecution or conviction?” It says:
“You may put your case through the Scheme even if you have already receive a police caution or have been subject to a criminal prosecution or conviction.
“However, Post Office does not have the power to reverse or overturn any criminal conviction – only the criminal courts have this power.
“If at any stage during the scheme, new information comes to light that might reasonably be considered capable of undermining the case for a prosecution or assisting for the defence, Post Office has a duty to notify you and your defence lawyers. You may then choose whether to use that new information to appeal your conviction or sentence.”
You may have already answered my question. At this stage were you aware of the advice of Simon Clarke, dated 15 July 2013, which raised allegations that Gareth Jenkins had breached his expert duties to the court?
Dr Kay Linnell: I believe the Clarke Advice was only disclosed in March 2021, after the criminal appeal trials.
Mr Stevens: At this time, were you aware of the substance of the allegations, namely that Gareth Jenkins had produced expert evidence in breach of his duties to the court?
Dr Kay Linnell: No, I wasn’t aware.
Mr Stevens: At this stage, were you aware that Post Office was conducting an internal investigation into past convictions?
Dr Kay Linnell: No, I wasn’t aware.
Mr Stevens: Sir, that might be a good time to stop for an afternoon break.
Sir Wyn Williams: Yes, that’s fine. What time shall we resume?
Mr Stevens: Can we say 3.00, sir.
Sir Wyn Williams: Yes, by all means.
Mr Stevens: Thank you.
(2.47 pm)
(A short break)
(3.00 pm)
Mr Stevens: Sir, can you see and hear me?
Sir Wyn Williams: Yes, I can. Thank you.
Mr Stevens: Thank you. I want to carry on with a few points on the Mediation Scheme now. Can we please have your witness statement on the screen, page 20. Go to the page before, please. Thank you. At paragraph 76, you refer to Belinda Crowe as being the appointed administrator and acted as secretary to the Working Group.
Dr Kay Linnell: Correct.
Mr Stevens: You say at 77:
“I was not aware at that time that [Post Office] had a separate committee chaired by Belinda Crowe called Project Sparrow which was only revealed after the High Court trials. The fact that JFSA did not know about this is typical of [Post Office Limited’s] behind the scenes obsession with secrecy and control.”
At the time, at the time, did you have any concerns as to the appropriateness of Belinda Crowe’s appointment as a person to provide secretarial support to the Working Group.
Dr Kay Linnell: I didn’t know anything about Belinda Crowe, except she was a Post Office employee. I’m not sure that anybody else was able to afford the services of a secretariat to manage the case flows and assist with the disclosure exercise of Post Office, which was headed up by Angela van den Bogerd’s Investigation Team, and I just accepted her as someone nominated to do a job. But what I wasn’t aware of, which is what those two paragraphs indicate, that she was senior in Post Office and not just a secretary or somebody, and that she seemed to be chairing somebody – well, some group of people who were working against the disclosure and settlement of the cases. It’s disingenuous in terms of a mediation scheme.
Mr Stevens: With hindsight, with that knowledge now, do you have any concerns as to whether or not it affected the Mediation Scheme or disclosure within it?
Dr Kay Linnell: I believe it affected the recording of the minutes and the progress of cases through mediation, but nothing else.
Mr Stevens: You say recording of the minutes, is that because Belinda Crowe took the minutes?
Dr Kay Linnell: Belinda Crowe was responsible for the minutes the case administration and producing bundles of documents for the cases we looked at, at an early stage, to make sure the system was working properly.
Mr Stevens: I’m going to come back to the minutes later. So I won’t deal with it now. Could we look, please, at page 15 of your statement. At paragraph 55, you referred to minutes for the 30 January 2014 Working Group. You say:
“[Post Office] sought to narrow the terms of reference and JFSA objected, Chris Aujard went away to review the terms for [Post Office] and report back. He did not report to any other Working Group meeting, and to my recollection simply imposed the [Post Office] new terms unilaterally to restrict the authority of the Working Group that effectively further slowed up the completion of cases and passing cases to mediation.”
Can we bring up those minutes, please. That’s POL00026641. We see it’s 30 January 2014.
Dr Kay Linnell: Yes.
Mr Stevens: If we can just scroll down slightly, please. Thank you. We see there’s a discussion about the terms of reference, and under “Action” it says:
“Alan Bates raised the issue of the scope of the Working Group and whether the intention was that the terms of reference would replace existing documentation particularly but not limited to the ‘raising concerns about Horizon’ documentation.”
Secondly:
“Discussion then turned to the purpose set out for the Working Group with the point being made that if the terms of reference superseded previous documentation then JFSA felt the terms of reference as drafted were insufficiently broad.”
Is that what you were referring to in your statement as the challenge?
Dr Kay Linnell: Yes, it was an attempt to narrow the terms of reference that the Working Group could look at.
Mr Stevens: In what way was the attempt to narrow the terms of reference?
Dr Kay Linnell: Preparing the two sets of documentation, the first set, prepared under Susan Crichton, was to embrace the reasons for the differences.
The set of documentation, as I recall the new terms of reference prepared by Chris Aujard, or someone under his direction, sought to limit anything the Working Group looked at solely to the Horizon computer system.
Mr Stevens: We see there it says:
“Responding for Post Office Chris Aujard explained that the terms of reference accurately reflected the purpose of the Working Group as explained to him when he had taken over the General Counsel and that his understanding was that the Working Group’s purpose was narrower than Alan Bates had set out.”
Pausing there, just as a slight detour, in your statement you refer to a change of tone and approach for the mediation when Chris Aujard replaced Susan Crichton. Can you explain what you mean by the change of tone?
Dr Kay Linnell: Yes, Susan Crichton was a lawyer, counsel for the Post Office, who was tying to find out why differences had occurred and it was under her instigation we got two excellent investigators, Ron Warmington and Ian Henderson; it was under her instigation we had a training day for people sitting on the Working Group to understand the system. So it was kind of open environment where access was given to documents to try and find the true reason for things.
The second she disappeared without explanation and Chris Aujard replaced her, we had someone who appeared to be a litigation lawyer attempting to obstruct any access to documentation, slow things down, narrow the focus on to the narrowest of margins to limit damages for the Post Office. That’s how it appeared to me.
Mr Stevens: You appearing to be suggesting that direction came from Chris Aujard. Was that anything he said or did that made you think that, or was it just a timing matter that, once Susan Crichton left and Chris Aujard came, there was this change of tone?
Dr Kay Linnell: The change of tone was obvious. It’s not always reflected in the minutes by Belinda Crowe but, for example, at the beginning of every meeting, Sir Anthony Hooper would ask could the Post Office please explain what has happened to this money, where are the suspense account items, where has the money from subpostmasters gone? And this is only referred to in two sets of minutes, one in November 2014, and Chris Aujard says he will ask his accounts team to answer what is a really simple question, and it simply doesn’t recur again.
But at the start of every Working Group meeting, Sir Anthony Hooper asked that question and Chris Aujard has simply blocked it and stopped anything happening with regard to revealing it. It is clear to me that he’s there to close the scheme and close them down and make sure that we don’t see anything that damages the Post Office brand. So, yes, it was a change of tone and it came from Chris Aujard.
Mr Stevens: I’m going to look at suspense accounts later. Sticking with the terms of reference, can we bring up, please, POL00026656. So this is the notes of the meeting of 7 March 2014. So we previously were at the January 2014, we are now 7 March 2014. If we look down, please, to “Terms of Reference”, it says:
“The Working Group discussed the revised terms of reference. The reworked Clause 4.9 was agreed. Clause 4.10.1 was agreed subject to the addition of the phrase ‘and any associated issues’ after Horizon. It was confirmed that the terms of reference allowed for different lengths of mediation. It was agreed that the Working Group should not have its own budget but would use the process set at in Section 8 where funding was required. The terms of reference were agreed.”
Now, the inclusion there of the “and any associated issues in Horizon”, was that addressing the concern you had about the narrowing of the terms of reference?
Dr Kay Linnell: It was supposed to make sure the previous issues were still included in the Working Group remit.
Mr Stevens: Why did you say “supposed to”?
Dr Kay Linnell: Well, I don’t believe it did. I mean, for example, one of the other things we discussed extensively was the retention of documents required for the cases and, bear in mind, we’ve got a lot more cases, we’ve got the 136 now, which is the 150 minus the ones the Post Office objected to, and every time again we’d say, “Please don’t destroy any documents”, and Chris Aujard would say, “Well, if there are issues in those documents and they’re more than six years old, we’ll probably have destroyed the documents”. He made no effort to retain documents.
Mr Stevens: Let’s look at what you say on that in your witness statement, please. It’s page 16 of your witness statement – sorry, no, it’s not. It’s page 28.
Thank you. This is a section on concerns raised at the Working Group meetings. We’ll be coming back here and I’m just going to deal with the paragraph 108 first, and you say that:
“… Sir Anthony Hooper asked how the documents for [subpostmasters] and other affected cases were being preserved. He warned Chris Aujard not to destroy any documents at all. Chris Aujard replied to Sir Anthony Hooper that [Post Office Limited] would continue to destroy documents following its usual six-year statute of limitations document destruction policy.”
Can we just look at some minutes on that, please, starting with POL00026640.
Now, as happens with some of these meetings, we have the standing agenda and attendees there. The date of the document is on the second page, so 23 January. Would that be 23rd January 2014?
Dr Kay Linnell: Yes, it would. These were telephone calls. We only met in person, I think, once a month.
Mr Stevens: Can we look at page 8, please under “AOB”. It says:
“ACTION Post Office to reinforce the point that files not to be destroyed – Note to issue in Chris Aujard’s name – including letter to Royal Mail and other relevant bodies.”
Do you recall that being discussed?
Dr Kay Linnell: Yes, it was discussed at every meeting.
Mr Stevens: If we can go, please, to POL00026635, and if we can just start at page 2, to date the document, Thursday, 6 February. If we go back to the front page, please, we see that you’re not in attendance at this meeting.
Dr Kay Linnell: No.
Mr Stevens: Would you have reviewed the minutes?
Dr Kay Linnell: Yes. I always reviewed the minutes when they came out.
Mr Stevens: Can we turn to page 5, please, and, if we can go to the bottom of the page under 7. We have “Review of outstanding actions”, and reference number 28, it’s the point we went to earlier at AOB.
“Post Office to reinforce the point that files not to be destroyed …”
It says:
“Update
“Correspondence issue to Royal Mail and from Royal Mail to Iron Mountain.”
Was it not the case that Post Office were taking steps or saying they were taking steps not to destroy documentation?
Dr Kay Linnell: Well, they said they’d corresponded with their previous head, covering Royal Mail, which separated in 2012, and Royal Mail had stored some documents at Iron Mountain, so presumably they told Royal Mail since 2012 and earlier not to destroy documents. It didn’t affect really what the Post Office were doing with their own documents. A lot of the cases being reviewed were pre-2012, so that was relevant, but whether it was complete, I can’t say.
Mr Stevens: Can we bring up your witness statement, please, page 27, paragraph 101. You discuss here a practice by JFSA of retiring during discussion of individual cases, and by “retiring”, do you know what I mean: not participating in the discussion?
Dr Kay Linnell: We left the room.
Mr Stevens: You left the room. It says:
“There was a development in the Working Group meetings where the originally agreed terms for the Mr Jenkins were unilaterally varied by [the Post Office] when the Working Group attempted to discuss cases where Second Sight had recommended mediation.”
So this is Second Sight do the report, Second Sight say, “We recommend mediation”, and there were situations where Post Office wanted to have a discussion as to whether or not the Working Group actually recommended mediation; is that a fair summary?
Dr Kay Linnell: Yes, except Post Office had no authority to do that.
Mr Stevens: No authority to do what, sorry?
Dr Kay Linnell: Well, at the point that – the original terms of reference, before Chris Aujard’s version, was that, if Second Sight, having reviewed the claim, the Post Office Inquiry report and the CRR by Second Sight, if Second Sight said it’s a case fit to mediate, it should go straight to mediation. Post Office had no right or authority to interrupt the flow to mediation and have a discussion at this point.
Mr Stevens: Can we look please at POL00022120. It’s the same document we went to earlier, just before the break about criminal convictions. Can we turn to page 2. If we can go down there, perfect, thank you. This is describing the scheme, and the fourth paragraph down says:
“As a result of this investigation, Second Sight will produce a Case Review summarising its findings and a recommendation on whether the case is suitable for mediation. A copy of this case review will be provided to you.”
Pausing there, this is aimed at an applicant subpostmaster, is it, so the “you” is the applicant?
Dr Kay Linnell: Yes, this briefing document is for the claimants to make a claim, so it is to encourage them and explain how it will work.
Mr Stevens: It then says:
“The Working Group will, however, take the final decision on any cases that may not be suitable for mediation.”
Dr Kay Linnell: That’s correct, so any case that Second Sight have rejected or can’t make a decision about, the Working Group should review. Ergo, it means that any case where Second Sight say it’s suitable for mediation should go straight thorough.
Mr Stevens: Is it not the case that Second Sight would produce a recommendation, which it was intended that the Working Group would then consider and arrive at a final decision?
Dr Kay Linnell: No, it wasn’t. The CRR, if it recommended mediation, should go straight to mediation. It’s only cases where they didn’t take a final decision.
Mr Stevens: Where did you get that understanding from, that that was the proper interpretation of what the Working Group’s role was?
Dr Kay Linnell: The Working Group will take a decision, a final decision, on any cases that may not be suitable for mediation, not on cases that are suitable for mediation. That’s what it says.
Mr Stevens: If we turn to page 8 as well, please, and “Will my case definitely be referred to mediation?” I think this is a paragraph to which Sir Alan referred in his evidence to the Inquiry. It says:
“If your case is suitable and you provide accurate, detailed information to Second Sight, then this is likely in most circumstances.
“However, the Working Group may consider that some cases are not suitable for mediation. For example, if there is insufficient information about a case or the case is not one requiring resolution.”
How does that work with your interpretation of the role of the Working Group, if it’s only going to decide cases for mediation where Second Sight haven’t made a recommendation?
Dr Kay Linnell: The Working Group was intended to process cases and make sure they had the relevant information and inquiries made before going to mediation. My understanding, when this document was issued, is only in exceptional or strange circumstances, when Second Sight, as competent investigators, couldn’t make a decision, or there was anyone sufficient evidence, would the Working Group consider the case. So it meant that the majority of cases should have rolled through to mediation, and Post Office, nor any other party around that table had the power to stop them.
Mr Stevens: The Working Group was chaired by Sir Anthony Hooper, a previous Court of Appeal judge, yes?
Dr Kay Linnell: Yes.
Mr Stevens: I think Sir Anthony Hooper was your recommendation?
Dr Kay Linnell: Sir Anthony Hooper was Chairman of the Expert Witness Institute and I was his Vice Chairman. I knew him quite well.
Mr Stevens: Was the purpose of appointing someone like Sir Anthony Hooper, with a legal background, to assist with resolving issues such as to whether a case should go for mediation or not?
Dr Kay Linnell: No, that wasn’t the main purpose, the main purpose was to find someone of great integrity and knowledge of the resolution of disputes, to make sure that the process produced by this mediation processing scheme was run fairly. I mean, it was an absolute bonus, he had substantial knowledge of criminal cases because he was able to review files where Post Office said this wasn’t fit to mediate because this person was going to be prosecuted or had a criminal conviction; Sir Anthony and went and reviewed the files and, in every case, he said “That’s not true, they can go through”.
Mr Stevens: I want to look at a few of the meetings where the issue of whether or not to mediate came up. Can we start, please, with POL00026673. This is hopefully dated on the first page, it’s 16 June 2014. Could we go to page 3, please, sorry, page 2. And if we could go down to point 3 at the top of the document:
“Case M054 was discussed to inform a decision as to whether the Working Group should recommend the case for mediation. Second Sight had, in their final report, recommended mediation.”
It says:
“The following points were considered during the course of the discussion:
“Regardless of a decision to recommend mediation by the Working Group, either party had the right to decline to mediate.”
Did you disagree with that?
Dr Kay Linnell: No, I think mediation has to be a consensual process.
Mr Stevens: It says:
“The extent to which case raises issues that had not been previously explained to the satisfaction of the applicant in the context of the benefit of mediation for the applicant in terms of being able to ‘move on’ after mediation from the events being mediated.”
What does that mean?
Dr Kay Linnell: This is a particularly difficult case because it involves someone who’d suffered, I believe, criminal conviction. I may be misremembering the number but I think this is one where there was a criminal conviction and there was strong opposition from Chris Aujard in particular that you could mediate anything, post a criminal conviction, but the financial loss was still there, whether they were convicted of something criminal or not, and if their conviction was based on some misinterpretation or some plea bargain under false circumstances with limited disclosure, we all felt that they should still have the opportunity to go face to face and discuss the financial issues.
Mr Stevens: So was this a case where Second Sight had recommended mediation, the JFSA were in favour of mediation but Post Office were against mediation?
Dr Kay Linnell: Yes, because there’d been a plea bargain in this case, if I’m, again, interpreting the number correctly and this individual had plea bargained to false accounting to avoid a theft charge and going to prison. But whether they’d actually done false accounting or not was pretty dubious.
Mr Stevens: If we go to the bottom of the page, it says:
“It being apparent that the matter of whether the Working Group should recommend M054 for mediation might proceed to a vote, the Working Group agreed the test the Chair should consider if called upon to use his casting vote as:
“‘On the assumption that both parties approach mediation in a genuine attempt to reconcile their differences. Is it reasonably likely that the parties will reach an agreed resolution of their issues’.”
Then, over the page, it says:
“The Working Group moved on to a vote. Post Office voted against … JFSA voted for.
“… the Chair undertook to decide the matter and provide the Working Group with his reasoned, written decision.”
So, at this point, were the JFSA engaging in a position where the Working Group were going to determine whether or not to recommend a mediation in circumstances where Second Sight had recommended mediation?
Dr Kay Linnell: Yes.
Mr Stevens: Why was that?
Dr Kay Linnell: Because this is, I think, one of the first times this occurs, and it was somewhat of a curveball because we’d previously understood the scheme, if mediation was recommended it would go through. Post Office strongly objected and indicated they wouldn’t take part in a mediation.
Mr Stevens: So is your evidence this was being caught off guard but engaging in the debate and the vote at the time?
Dr Kay Linnell: Yes.
Mr Stevens: Can we look, please, to POL00026665. So we’ve got a minute of the call on 26 June, which we see you’re in attendance at. Please can we go to page 8. So we have M054, that’s the case we were just discussing, and it says:
“[The] Chair asked all parties to consider the steps to be taken to inform applicant of the decision not to mediate the case.”
So it appears that that Sir Anthony Hooper had decided against recommending mediation in this case; is that correct?
Dr Kay Linnell: That’s correct.
Mr Stevens: “KL”, I assume that’s you?
Dr Kay Linnell: Yes.
Mr Stevens: “… raised a concern about sharing the Chair’s decision … The Chair noted this concern …”
Then it says “AB”, presumably that’s Sir Alan?
Dr Kay Linnell: It is.
Mr Stevens: “… voiced concern about the additional time delay this would cause the applicant, but agreed that the [Working Group] should take time to consider how to proceed in this case.”
Can we scroll down, please. We see at the bottom “AB” again:
“AB queried the role of the [Working Group] in the recommendation to mediate when [Second Sight] had recommended mediation. It was noted that this was the previously agreed process, and the one followed [in] M054.”
Do you recall the discussion that led to this minute?
Dr Kay Linnell: Yes. This is the point at which – we objected, really, to the intrusion of the Working Group committee into the recommendations by Second Sight. It was clearly going to cause delay and distress for the applicants when they had cleared the hurdle of proving there was a dispute that could be mediated.
Mr Stevens: When it was said, “It was noted that this was the previously agreed process, and the one followed for M054”, at that stage, were you in agreement that M054 had followed a previously agreed process?
Dr Kay Linnell: No. That’s the point. Belinda Crowe has written this minute. The first half of – the first half of the second sentence belongs with the first:
“AB queried the role of the Working Group in recommendation to mediate when [Second Sight] has recommended mediation, which was noted [was the previous agreed process. Stop. This was different for the followed for M054].”
Mr Stevens: That can come down, thank you. I don’t propose to take you to minutes of other Working Group meetings but I can, if you like. They showed, as you said earlier, that JFSA, from then on, would leave the room or not participate in discussions when the Working Group were deciding whether or not to recommend a case for mediation.
Dr Kay Linnell: That’s correct. I mean, the latter meetings were held at Matrix Chambers, rather than Bond Dickinson Womble’s (sic) office but we left the room, and sometimes the building, until they’d finished dealing with their interference in the Scheme because, frankly, it was a power the Working Group did not that have, whatever Chris Aujard’s explanation was when he joined Post Office.
Mr Stevens: Was it a case that Sir Anthony tried to encourage the JFSA to stay for that discussion?
Dr Kay Linnell: He did but I don’t criticise him for that. He simply wanted a straightforward way forward for the claimants who were being caught up in this battle.
Mr Stevens: Could you explain the basis on which, or the reasons for, not participating in those discussions, other than – you’ve given evidence that it wasn’t the agreed process. Were there any further reasons for not participating in the discussion?
Dr Kay Linnell: Not only was it not the agreed process; it was not what had been advertised to the claimants when they made an application to join the scheme. Once you joined a scheme and the rules are set, you can’t then do what Post Office often did, which is slip change into some other shape, so you do something different, you’ve got the people on Board, so then suddenly they’re not going off to Clacton-on-Sea, they’re off to Scarborough.
Mr Stevens: I want to move on, still in the time of the Working Group but could we bring up your statement, please, at paragraph 91, which is page 24.
Dr Kay Linnell: Is this the second 91?
Mr Stevens: You’re quite right; it is the second 91.
Dr Kay Linnell: Apologies for that.
Mr Stevens: None needed. When it arrives on the screen, it is the meeting with Paula Vennells.
Sorry – yes, if we can go to the bottom of the page, please.
So this refers to a meeting you had – I think it’s a coincidental meeting where you bumped into Paula Vennells at Bonn airport in Germany on 17 September 2014.
Dr Kay Linnell: Yes, I was waiting for my flight by the gate and she hove into view with two other people from the Post Office.
Mr Stevens: You say in your statement – and we’ll come to the email shortly – that you’ve now seen an extremely inaccurate file note of that conversation. When did you first see what you describe as the inaccurate file note?
Dr Kay Linnell: In the papers for this Inquiry.
Mr Stevens: Before seeing what you describe as the filenote, would you have recollected this conversation with Paula Vennells?
Dr Kay Linnell: Yes, I remember meeting her at the airport and bearding her, if that’s the correct phrase, with some sort of encouragement for her to settle and at least face up to the claimants and explain to them what had happened, and pay them back their money.
Mr Stevens: Let’s look at the note, actually. We’ll go straight there. It’s POL00101367. It’s an email from Paula Vennells to Chris Aujard. It’s on 17 September, so this is made on the day of the meeting; is that right?
Dr Kay Linnell: It’s – 17 September is when I saw her at Bonn airport.
Mr Stevens: Do you remember roughly what time the meeting was?
Dr Kay Linnell: No, I can’t. It was in the morning or around lunchtime, at a guess.
Mr Stevens: But you would accept that this is a contemporaneous account? I appreciate you dispute the accuracy of it but it was made on the day of the meeting?
Dr Kay Linnell: Well, it appears Ms Vennells has sent an email on the same day, yes.
Mr Stevens: It refers to just bumping into you at Bonn airport:
“… had a chat together. Off the record but of course not really.”
Do you know what that means or what would lead to that impression?
Dr Kay Linnell: Well, I did say that, I said, you know, “Paula can I have a word off the record because I do think you need to settle this because the subpostmasters need their money back, and they ought to have some sort of face-to-face explanation to explain why they’ve been treated so badly for so long, and if you don’t settle this, you’ll regret it”.
Mr Stevens: It says – I’m not going to go through all of the document, I think it’s the fourth bullet point down:
“Can we get Angela to lead on mediations? Particularly if we think we are unlikely to move our position. Kay’s view is that she is credible, understandable (v important) and stands the best chance of getting people on side or at least to feel they have been listened to, even if they still disagree.”
Now, taking it in stages, is Angela, in that bullet point, referring to Angela van den Bogerd?
Dr Kay Linnell: Definitely Angela van den Bogerd.
Mr Stevens: Did you discuss Angela van den Bogerd in your meeting with Paula Vennells?
Dr Kay Linnell: Yes, we did, because she was getting to the bottom of an investigation, which seemed to have been carried out for the first time on any of the applicants’ cases, and we were actually finding out why the differences had occurred. So she was very thorough, easy to understand in her explanations of how differences arose and, if you cut her in half, she’d be Post Office through and through.
Mr Stevens: Did you say that, about being Post Office through and through?
Dr Kay Linnell: No, I did not say that to Paula Vennells.
Mr Stevens: So the point that “Kay’s view is she is credible, understandable”, is that a fair comment for Paula Vennells to have made?
Dr Kay Linnell: Concerning the investigation of differences in the network, yes, but not generally.
Mr Stevens: She said:
“We should consider being more open to mediation on the cases where more money was at stake not less. Because this had a greater impact on those affected (lost jobs, homes, etc) and therefore, they are the ones who need to vent more. And who will benefit from us allowing them to ‘yell’ at us (she thinks we’re big enough to take that).”
Dr Kay Linnell: Where on earth has that come from?
Mr Stevens: That was about to be my question: from what was said – or do you recall anything being said at the meeting that would lead to this note being made?
Dr Kay Linnell: No.
Mr Stevens: We then have, it says, “Jo Harrison (JA SPMR)”. Now that means presumably Jo Hamilton, James Arbuthnot, subpostmaster?
Dr Kay Linnell: Yes, I’m pretty certain it’s Hamilton, not Harrison.
Mr Stevens: “… Kay intends to go into mediation with her – she thinks she needs looking after. Kay indicated that Jo had done something wrong but feels sorry for her …”
Now, I’m going to pause there because I know you dispute that. What is your recollection of what was said about Jo Hamilton at this meeting?
Dr Kay Linnell: My recollection is I said the system was such that Jo had been muddled and concerned, very upset and had had to roll over a difference which Angela had said, when we discussed M035, that was a reason she couldn’t get to the bottom of the reasons for the difference because it had been rolled forwards over so many periods.
I didn’t feel sorry for Jo. I did say she might have got out of her depth with the system but she didn’t have any documentation to check, which isn’t in the note, and I thought they could have been more sympathetic than taking someone into her home and interviewing her without anyone else present and attempting to take her goods, which was prevented by her mother.
I don’t remember saying Jo had evidence that they hadn’t got at the time of prosecution. I probably did say Jo should have had information disclosed by Post Office that wasn’t available at the time of prosecution. This is a complete misrepresentation of what I said.
Mr Stevens: Would you have said, as part of the discussion generally, about the fact of a guilty plea, whether or not you agreed with that guilty plea? Would you have mentioned that?
Dr Kay Linnell: No, I don’t believe we discussed prosecutions or guilty pleas, as far as I recall. My notes of this conversation have not been reduced to a file note at the time. They were in passing at an airport.
Mr Stevens: Thank you. That document can come down.
I want to go back to one of the two points you raised, and one of them I said I’d come back to. It’s page 28 of your statement, please, paragraph 107, and, if we could go to the bottom, please. Thank you.
These are two of the concerns that you raised here. We looked at 108 earlier; 107 is the question, “Where has the [subpostmasters’] money gone?” You say that Sir Anthony Hooper asked that question regularly.
Dr Kay Linnell: Yes, he did.
Mr Stevens: Now, you say at the end of that paragraph:
“[Post Office] failed to provide any explanation or figures at all.”
That’s in relation to “Where’s the money gone?”:
“Chris Aujard said he would get this information on several occasions but [he] never did.”
I just want to look at a few of the meetings on this issue and could we start, please, with POL00026685. This is a meeting on 16 September 2014. We see you’re in attendance. Could we look at page 6, please and, if we go down to “Suspense account paper”, thank you.
So “Suspense account paper”. Now, you do say in your witness statement that there are at least two types of suspense account potentially relevant. What type of suspense account was being discussed here?
Dr Kay Linnell: We should be discussing what I would call the head office suspense account, where differences were posted in the main Post Office Limited accounting system, and I would expect it to include things like the differences on reconciling Camelot or Bank of Ireland control accounts. But it must be that place where the subpostmaster’s money had gone and I know, talking to Ron and Ian at the Working Group, they definitely volunteered many times to go to Chesterfield, or wherever the accounts were held, and have a look for themselves to actually ascertain what had happened to the money.
Chris Aujard, on many occasions, confirmed that wasn’t necessary, it was too complicated, they weren’t going to be paid for it, and he would produce a paper from his accounts team asking the CFA. I’ve no idea what this paper was but I don’t believe it was a substantial explanation.
Mr Stevens: But this part here where Post Office explained they provided with a paper, you say you don’t know what that was?
Dr Kay Linnell: No, I’ve never seen it.
Mr Stevens: “Post Office explained that this request was too broad and they could not see how it linked to any case that Second Sight investigating. Second Sight undertook to provide their further specific question(s) in writing to Post Office.”
Could we look at the meeting on 17 October, which is POL00040475. It is 18 October, as I say. Can we go to page 2, please. This is referring back to the minutes of 16 September meeting. This is:
“Referring to page 6, item 5 Second Sight had written to Post Office with questions on the suspense account but are yet to receive a response. The Chair noted the complexity of the questions. He asked if there was a surplus in the account would it be taken into Post Office income. Post Office confirmed that it would after 3 years. Post Office and Second Sight agreed to clarify Second Sight’s precise needs for information.
“… The Chair asked Post Office for figures taken into income from the suspense account to be broken down year by year.”
Now, firstly, do you recall this conversation beyond what’s recorded in the minutes?
Dr Kay Linnell: I remember a November 2014 minute where Chris Aujard gave a specific undertaking, I can’t remember the wording, and that information was never followed up. But I know, to my own – from my own investigations that there were amounts of over £1 million pounds taken to the Post Office profit and loss account over a five-year period.
Mr Stevens: I think you have answered the question I was about to ask on what came next, and we’re going to jump forward to 14 January, please. POL00043633. We see 14 January 2015. Can we go, please, to page 3, and to the bottom of the page. Thank you. It’s “Additional Agenda Item: Update on Part Two Report”. So that’s the Second Sight Part Two Report.
Dr Kay Linnell: Yes.
Mr Stevens: The Chair asks for an update on progress of various matters and, at the bottom, we see:
“The Chair asked if Post Office was able to answer the question on suspense accounts that had been posed for several months. Ian reported that the information had not yet been provided. The Chair asked that this be addressed as a matter of urgency and suggested that Post Office arrange a meeting between Second Sight and Post Office Finance staff to do so.”
Now, the Inquiry has heard evidence, and there’s documentary evidence, on matters that happened thereafter. My question to you is: were you involved at all in this investigation into suspense accounts?
Dr Kay Linnell: No, I was not.
Mr Stevens: Did Ron Warmington or Ian Henderson tell you anything following this meeting about that investigation?
Dr Kay Linnell: “In about 2015 [I brought the paper to remind me] I was told by Ian Henderson that the amounts credited to the profit and loss account of Post Office in 2010/11 was £612,000; in 2011/12 was £207,000; in 2012/13 was £234,000; and in 2013/14 was £104,000.”
Mr Stevens: Can I ask you’re reading from a document, is that a note of a conversation that –
Dr Kay Linnell: It’s a note of a conversation I had and I highlighted it in yellow so I could find it.
Mr Stevens: So that’s – sorry, it’s gone off my – that was Ian Henderson who told you that?
Dr Kay Linnell: That’s correct.
Mr Stevens: Did you have any further involvement in investigating suspense accounts?
Dr Kay Linnell: There was no opportunity because the Mediation Working Scheme was cancelled unilaterally by Post Office without that question ever being answered.
Mr Stevens: I want to now turn to my final topic, what happened thereafter, and the Group Litigation –
Sir Wyn Williams: Before you do, am I right in thinking that either Mr Henderson or Mr Warmington had in their witness statement, when they gave evidence, figures either identical to, or very similar to, the ones which Ms Linnell has just referred to?
Mr Stevens: Sir, off the top of my head, I couldn’t say with confidence but, at the break, we’ll double check that point.
Sir Wyn Williams: Okay, I don’t think I’m imagining that, that’s all.
Dr Kay Linnell: If it assists, they’re in the published accounts.
Sir Wyn Williams: Right. So there’s a public record of them somewhere, anyway?
Mr Stevens: Yes.
Sir Wyn Williams: Fine. Well, you needn’t go researching then, Mr Stevens.
Mr Stevens: Thank you. It shows a confidence in my memory.
Turning, then, to the litigation, please. I asked earlier about the prospect of litigation in 2012 and my understanding of your answer was that you need funding for litigation –
Dr Kay Linnell: Yes.
Mr Stevens: – and, in order to get funding, you needed to have sufficient information to show a basis to put forward your claim?
Dr Kay Linnell: Yeah, and a reasonable chance of success or no sensible lawyer would take it on.
Mr Stevens: I’m now going to ask you some questions about the process of litigation but, remember, I’m not asking you anything which would require you to provide privileged information, unless you were in a position to waive it and you wanted to waive it.
Dr Kay Linnell: Thank you.
Mr Stevens: Once the Mediation Scheme had finished, so in 2015 –
Dr Kay Linnell: It was abruptly ended by Post Office in 2015 and I had a letter from Jane MacLeod out of the blue.
Mr Stevens: – how easy or difficult was it for you to find legal representation for the Group Litigation?
Dr Kay Linnell: Sir Alan and I did several things at the end of the Mediation Scheme. First of all, we had a look at the evidence that had been produced by the Post Office and Angela van den Bogerd. We also – without wishing to pierce privilege of mediation discussions – had some general feedback from those people who had been fortunate enough to reach the mediation panel. And, thirdly, we started putting together a panel of potential lawyers who had experience in Group Litigation.
We then went to several firms of lawyers and, as happenstance would have it, we ended up with Freeths, who also introduced us to litigation funders, after-the-event insurers and counsel, Henderson Chambers.
Mr Stevens: It’s well known that the litigation was funded by a litigation funder, Therium?
Dr Kay Linnell: Therium were the funders, yes.
Mr Stevens: If you hadn’t had funding by way of a funder such as Therium, would the GLO claimants have been able to pursue the litigation?
Dr Kay Linnell: No, they wouldn’t and if they hadn’t had generous solicitors and counsel, prepared to take a proportion on a conditional fee/success arrangement, we wouldn’t have been able to process either, and the funders recognised the importance of having after-the-event insurance for people in our claimants’ position. So we had to put all those four pieces in place before proceeding to litigation.
Mr Stevens: Just for the benefit of the public, when you say “after-the-event insurer”, do you mean an insurer who would indemnify the claimants if the litigation was unsuccessful and a costs order was made against them?
Dr Kay Linnell: If you look at the case of Lee Castleton, it’s very clear. If you lose in a court and the court has the power to award costs against you, it can have severe financial implications. The purpose of after-the-event insurance is to put an insurance policy in place so, if you lose, the insurance policy coughs up and pays the costs.
Mr Stevens: So, as I understand it, you say the sort of essential ingredients were: (a) Therium or a litigation funder; (b) the after-the-event insurer; and (c) solicitors and barristers who were prepared to take a portion of their fees on a conditional fee basis, or a no-win-no-fee basis?
Dr Kay Linnell: Yes, and bearing in mind all are essential, so you could take them all as one. There is no priority in that listing. And to get the solicitors and barristers interested, you have to have sufficient evidence to prove that something has been done wrong and there is similarity across a group of claimants, so that there are sufficient to actually put a force together to form a group litigation group. Quite high hurdles to overcome.
Mr Stevens: Just rounding this off, the information that you were able to obtain and put forward to the solicitors and barristers to get them interested, did that come from the Mediation Scheme?
Dr Kay Linnell: Yes. One of the things about going into the Mediation Scheme – because, normally, anything discovered in the mediation is privileged and within the bubble of mediation, but one of the things JFSA managed to negotiate is any document disclosed in the mediation would be usable by the claimant person. So yes, that’s where the data came from to enable litigation to take place.
Mr Stevens: Before I ask you another question about the GLO, then, to what extent, if at all, do you think the Mediation Scheme fulfilled its purpose?
Dr Kay Linnell: At least 85 or 90 per cent. Without the Mediation Scheme, there wouldn’t have been the volume and the capacity of claimants to go forward because Post Office has, throughout my involvement with them, deliberately or otherwise withheld documents that are essential for the defence of individuals or the prosecution of a claim.
Mr Stevens: Can we look at page 31 of your statement.
Sir Wyn Williams: So, again, Mr Stevens, sorry. But, if it be the case that the Post Office was seeking to use the Mediation Scheme as a sham, to use that word, in fact, on your view of it, it had the opposite effect because it provided you with the ammunition for the litigation that followed?
Dr Kay Linnell: Yes, that’s exactly right.
Sir Wyn Williams: Fine. Okay.
Mr Stevens: At paragraph 119 and 120, you say:
“The Freeths legal team put in place all the necessary mechanisms and steps to cope with and respond to the aggressive [Post Office] litigation strategy, which in my view and the view of others, was primarily designed to run the [Group Litigation] claimants out of funding. Mr Justice Fraser refers to this in his judgment by implication.”
You go on to specify what you saw as the aggressive litigation tactics by saying:
“[They] included limited and sporadic late disclosure, contested costs applications and other litigation ‘tricks’ such as [Post Office’s] recusal application to derail the planned five trial litigation.”
I want to just focus on one aspect of that, and that’s the recusal application. Were you in court when the recusal application was announced?
Dr Kay Linnell: Yes, I was.
Mr Stevens: What was your reaction to that?
Dr Kay Linnell: It happened after lunch, in the middle of someone’s testimony. I think Mr de Garr Robinson stood up and made the application. Fraser J insisted the witness was completed before he dealt with it, which was kind, because, otherwise, the witness would have been held over indefinitely, and I think it was an absolutely shocking result because it was the tactics of a desperate, drowning man, as far as I could see, to recuse a judge who had been no more than colourful in his language and comparatives.
It was the handing down of this judgment that same morning, and there were phrases in it which clearly the Post Office and their Legal Team objected to, such as “The Flat Earth Society”, and things like that. And I think it was absolutely disgraceful because there was no bias that I could see in that judgment. However, I’m not a lawyer, I’m a mere accountant. But I thought it was a disgraceful tactic and designed to stop the trial on the Horizon system, add huge legal costs to our side and try and derail the whole process.
Mr Stevens: Did you speak to other people in the claimant group about the fact of the recusal application being made?
Dr Kay Linnell: I certainly did because people wanted to understand what it was.
Mr Stevens: Can you summarise what the general feeling was within the claimant group about the application having been made?
Dr Kay Linnell: I can only say this from my personal point of view. I think there was some anger and frustration, as yet another tactic by Post Office stopped the move slowly towards redress, justice and some sort of conclusion as to what had happened to them.
Mr Stevens: The final question, or possibly questions, I ask is about interaction with Government. Now, when Sir Alan gave evidence, Mr Beer presented a series of letters that he had sent to ministers and went through various meetings. Did you have any interactions with Government or Government Ministers in respect of the Horizon IT System?
Dr Kay Linnell: Sir Alan and I decided that he should write the letters. We discussed the contents before they were sent. In particular, I was a part of his issuing of a bill to, I think, the Prime Minister at the time, Boris Johnson, concerning the litigation costs of 46 million plus interest.
Mr Stevens: Thank you.
Sir, before I – famous last words, saying it was my last question. If I may just have a moment to check a note. (Pause)
Thank you, sir. I do actually have one further question and it’s going right back to the start of your evidence, when you referred to working for a firm called BDO.
Dr Kay Linnell: Yes.
Mr Stevens: We’ve heard evidence about Lee Castleton’s civil case, and an expert report being produced to Womble Bond Dickinson, not disclosed in the hearing, by BDO Stoy Hayward. Did you have any involvement in the Lee Castleton case at all?
Dr Kay Linnell: No, I really wasn’t aware of Lee Castleton’s case until I met Alan Bates and we went into this process.
Mr Stevens: I’m not suggesting it’s necessarily the same firm. I just wanted –
Dr Kay Linnell: It will be the same firm, because Stoy Hayward and BDO, which was formerly BDO Binder Hamlyn, amalgamated at some point but I wasn’t involved in such high echelons of the firm to know anything about that.
Mr Stevens: Thank you.
Sir, those are the questions I have.
Now, Ms Linnell is represented by Mr Stein and would he like to ask questions in re-examination under Rule 10(2) which, subject to your approval, I think, is open to them. I think if we are doing that, though, first, I will check if there are other Core Participants who wish to ask questions?
No, sir. I think Mr Stein has two questions.
Sir Wyn Williams: Literally two, Mr Stein?
Mr Stein: Two topics, sir.
Mr Stevens: Sorry.
Sir Wyn Williams: No, I’m just concerned about the shorthand writer, that’s all. If you’re going to be literally a few minutes, I’m sure she’d prefer to finish but, if it’s more than that, we’ll ask her which she’d prefer.
Mr Stein: Our shorthand-writer is confirming that if it’s a few minutes then to go ahead, and it will be, sir.
Sir Wyn Williams: Fine.
Questioned by Mr Stein
Mr Stein: Sir, the reference in Mr Warmington’s statement to the suspense account monies is his statement WITN01050200, page 7, paragraph 12, and the figure of £612,000 is given. You’ll recall I asked him questions about that matter, and he referred to other sums.
Sir Wyn Williams: Yes.
Mr Stein: Ms Linnell, just two topics, as mentioned to Sir Wyn.
You were asked a question by Mr Stevens about your first joining meetings of the JFSA and we all know from the ITV drama that the meetings were sometimes at village halls – Fenny Compton, famously, otherwise at Kineton on occasions.
Now, regarding funding, which is what you were asked by Mr Stevens, how broke were the subpostmasters that you met at these meetings?
Dr Kay Linnell: Very broke and in “minus red land”, as my friend used to call it, with lots of credit card and other debts hanging around them.
Mr Stein: Sometimes, in relation to your support of subpostmasters/mistresses working with Mrs Jeremiah, you were helping them try and make their way through the mess that had been made of their finances. That needed, on occasions, to get things like bank statements, which aren’t necessarily free; how did you manage to do that?
Dr Kay Linnell: Barbara and I paid for them.
Mr Stein: Another question asked by Mr Stevens was regarding the JFSA and whether it engaged with the National Federation of SubPostmasters. Was there any desire amongst the people that you met at the JFSA to engage with the NFSP?
Dr Kay Linnell: The feeling among people I spoke to who were SPMs is that the National Federation of SubPostmasters were no more than part of Post Office and not to be trusted.
Mr Stein: Sir, thank you.
Sir Wyn Williams: Well, first of all, should I be calling you “Dr Linnell”?
The Witness: You could, sir.
Sir Wyn Williams: Well, hidden amongst your witness statement was a reference to you becoming a doctor in 2024. So, Dr Linnell, thank you very much for your witness statement and thank you very much for giving evidence before me this afternoon.
The Witness: Thank you, sir.
Mr Stevens: Thank you, sir.
I apologise for repeatedly saying “Ms Linnell” all the way through.
The Witness: No, no, I’m happy.
Sir Wyn Williams: I’d just like everybody to know that I do read the lines of the witness statement, Mr Stevens. That’s all.
Thank you very much, everyone.
9.45 tomorrow, yes?
Mr Stevens: Yes, sir. Thank you.
(4.06 pm)
(The hearing adjourned until 9.45 am the following day)