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RE: POST OFFICE LTD
PROSECUTIONS - EXPERT EVIDENCE
ADVICE ON THE USE OF EXPERT EVIDENCE RELATING TO THE
INTEGRITY OF THE FIJITSU SERVICES LTD HORIZON SYSTEM
I am asked to advice Post Office Ltd. on the use of expert evidence in support of
prosecutions of allegedly criminal conduct committed by those involved in the delivery
of Post Office Ltd. services to the public through sub-post office branches. By and large
these allegations relate to misconduct said to have been committed by SPMR’s and/or
their clerks.
2. This document considers the provision and use of such evidence in past prosecutions and
those currently under way. I will deal with future prosecutions separately.
Background
3. Historically the Post Office was a division of the Royal Mail Group (RMG), however
Post Office Ltd. (POL) was separated out of the RMG on the 1“ April of 2012 and each
became separate and unrelated organisations. Prior to separation it was RMG who
conducted the prosecution of criminal offences committed by SPMR’s and/or their
clerks, however post-separation POL assumed the role of prosecutor.
In general only three distinct offences are prosecuted by POL: Theft; False Accounting;
and Fraud, either by False Representation (ss.1&2, Fraud Act 2006) or by Abuse of
Position (ss.1&4). The detection and successful prosecution of such offences is almost
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always dependant upon the proper analysis and presentation of Horizon data and
accordingly it is imperative that the integrity and operation of the Horizon system is
demonstrably robust. In many prosecutions the defence will fall into one or more of the
following categories:
a.
b.
The defendant will raise issues attacking Horizon, suggesting in general and often
ill-defined terms that the shortfalls giving rise to prosecution are inexplicable and
thus must rest with Horizon. Here the defendant does not specify the Horizon
failing, he or she merely asserts that because they did as they should, the system
itself must be at fault;
An express assertion that Horizon has failed in some way;
In admitting Fraud or False Accounting (but NOT theft), that either a. or b. above
is true, their culpability being limited to the covering-up of otherwise inexplicable
losses rather than revealing what is a genuine (on their account) problem to POL.
Here the issue is that of sentence, Judges being required to consider the quantum
of losses when determining the appropriate punishment.
In all three of the scenarios noted above a defendant often also complains of a
lack of training on Horizon and/or inadequate customer support.
5. Where a defendant asserts, rightly or wrongly, that Horizon is at fault, it is for the
prosecution to demonstrate the integrity of the system and the evidential audit trail
derived from Horizon. This is usually accomplished by the serving of expert evidence,
detailing:
a.
b.
c.
The expert’s qualifications and standing;
The purpose and function of the system;
Such systems as are in place to detect and identify problems, bugs etc;
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d. And stating in clear terms that:
— where the defence has raised merely a general and unspecified criticism
of Horizon, it is not only generally free from error but that it is protected
by such systems and security as to prevent error;
— Where the defence has raised specific criticisms, he has considered
those matters and has concluded that there is no proper foundation for
them.
Duty of an expert witness.
6. Part 33 of the Criminal Procedure Rules 2012 sets out the duties of an expert witness.
That Part provides:
33.2.—
(1) An expert must help the court to achieve the overriding objective by giving objective, unbiased
opinion on matters within his expertise.
(2) This duty overrides any obligation to the person from whom he receives instructions or by whom
he is paid.
(3) This duty includes an obligation to inform all parties and the court if the expert's opinion changes
from that contained in a report served as evidence or given in a statement.
7. Further to the provisions of Part 33, it is also the duty of an expert instructed by the
prosecution to act in the cause of justice.' Accordingly an expert witness possessed of
material which casts doubt upon his opinion is under a duty to disclose the fact to the
solicitor instructing him, who in turn has a duty to disclose that material to the defence.
This duty exists irrespective of any request for disclosure by the defence. The duty
extends to anything which might arguably assist the defence. Moreover, it is a positive
duty.
8. Expert evidence is required to be the independent product of the expert, uninfluenced as
to form or content by the exigencies of litigation; an expert should provide independent
assistance to the court by way of objective unbiased opinion in relation to matters within
his expertise and should never assume the role of advocate.” In particular the expert
witness should not omit material facts which detract from his opinion. If an expert
'R. v. Ward, 96 Cr. App. R. 1, CA.
2 R. v. Harris; R. v. Rock; R. v. Cherry; R. v. Faulder [2006] 1 Cr.App.R. 5,
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changes his view on material matters, such change of view should be communicated to
the other side and to the court without delay.’
Thus an expert witness is not a partisan witness: his function is to assist the court on
matters within his area of expertise. He should do so by providing honest opinion
evidence based soundly in fact and should not withhold any information which speaks
against his opinion. Where information is known to him which undermines his opinion
he must inform the prosecutor, who must act in accordance with his disclosure duties.
Prosecution disclosure duties*
10.
Defendants are entitled to challenge prosecution evidence and this entitlement extends to
expert evidence. Thus they are entitled to see the information upon which an expert bases
his opinion, together with any material which on one view might undermine the opinion,
for such material may assist a defence expert in arriving at an alternative opinion. This is
the foundation for the duties of disclosure placed upon the expert witness and
prosecution.
. Accordingly, when prosecuting such cases it is the duty of the prosecutor (POL) to act
openly and honestly and to ensure that the evidence it relies upon is itself reliable. He
must consider whether or not the prosecution is in possession of, or has access to, any
material which “...might reasonably be considered capable of undermining the
case for the prosecution ...or of assisting the case for the accused....”° This
duty extends to examining any information of which the prosecutor becomes aware (and
for these purposes this includes information which Post Office Ltd becomes aware of) so
as to determine whether or not that test is met.
. The prosecutor must, at all times before the conclusion of the case, keep under review
the question whether there is any information which must be provided to the defence.°
This duty extends to the consideration of material mentioned in paragraph 8 above.
bid.
* See in general, Criminal Procedure and Investigations Act 1996, ss.1-12; Code of Practice thereunder;
Protocol for the Control and Management of Unused Material in the Crown Court; and A-G’s Guidelines on
Disclosure.
5 CPIA 1996, ss.3&7
“Ibid, s.7A
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13. Disclosure of material which meets the test for disclosure can only be avoided by the
obtaining of a Public Interest Immunity certificate from a judge or, ultimately, by
stopping the prosecution.
Expert evidence relied upon by POL in prosecuting offences.
14. For many years both RMG and latterly POL has relied upon Dr. Gareth Jenkins for the
provision of expert evidence as to the operation and integrity of Horizon. Dr Jenkins
describes himself as an employee of Fujitsu Services Ltd. and its predecessor company
ICL since 1973. He holds a number of distinguished qualifications in relevant areas. He
has worked on the Horizon project since 1996; he is accordingly a leading expert on the
operation and integrity of Horizon.
15. Dr. Jenkins has provided many expert statements in support of POL (& RMG)
prosecutions; he has negotiated with and arrived at joint conclusions and joint-reports
with defence experts’ and has attended court so as to evidence on oath in criminal trials.
Example expert statements
16.1 have considered the following statements, provided by Dr. Jenkins in the cases
mentioned:
Statement Date Case Court
1. 5/10/2012 R. v. Nemesh PATEL Peterborough Crown Court
2. 27/11/2012 R. v. Kim WYLIE Newcastle Crown Court
3. 15/1/2013 R. v. Jishaan PATEL Preston Crown Court
4. 15/1/2013 R. v. Khayyam ISHAQ Bradford Crown Court
4a. 6/3/2013 Further report
5. 3/4/2013 R. v. Jamie DIXON Exeter Crown Court
” see e.g. the prosecution of Khayyam Ishaq, Bradford Crown Court, February — May 2013
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17.1 have selected these statements because they both represent recent examples of the
evidence being given in support of POL prosecutions by Dr. Jenkins and highlight the
situation as asserted by him afier it became known that there were defects in Horizon
which materially affected the presentation of data and the provision of false balance
figures.
18. In addition to those statements mentioned at paragraph 15 above, I have also considered:
a. the draft report of Helen Rose dated 12 June 2013 and dealing with a Horizon
issue which arose at the Lepton SPSO on the 4" October 2012.
b. The Second Sight Interim report.
c. Instructions provided to me by POL on the 27/28" June 2013.
d. Information provided to MS and me in a telephone call with Gareth Jenkins on
Friday 28" June 2013.
Common features of Dr. Jenkins’ statements
19. All of the statements listed at paragraph 15 above contain a number of common
paragraphs. This is unsurprising given that they all relate to the one Horizon system.
Those common paragraphs describe: Dr. Jenkins’ qualifications and career history; the
Horizon system, including time line and business scope; data handling and processing;
failure protection and post-failure retrieval; checks and alerts installed to detect and
inform of failures, bugs efc.; and a declaration that Horizon is accurately recording and
processing data. I extract a number of those common paragraphs below:
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Location Extract
Page 1 I am employed by Fujitsu Services Ltd who have been
contracted by Post office Ltd to provide the Horizon systems
operating in Post Offices around the country. However I
understand that my role is to assist the court rather than
represent the views of my employers or Post Offices Ltd.
Usuallyp.9 At this point a check is made that indeed there are no missing
or duplicate jsns for any counter and should any be found an
alert is raised.
Note that this could only happen as a result of a bug in the
code or by somebody tampering with the data in BRDB and
this check is included specifically to check for any such
bugs/ tampering.
Usually p.11_ ....should it not be, then an alert is raised and the basket is
discarded and an error response returned to the counter.
Note that this could only happen as a result of a bug in the
code and this check is included specifically to check for any
such bugs.
Usually final In summary I would conclude by saying that I fully believe that
page. + . . . s
Horizon will accurately record all data that is submitted to it
and correctly account for it.
Individual reports.
20. Statement 1. This statement only contains the common paragraphs referred to in para.18
above.
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21. Statement 2. In addition to the common paragraphs previously identified this statement,
page 2 addresses issues raised in the Defence Statement served by the defendant. Dr.
Jenkins makes the following comments:
— “...1 am not aware of the specific allegations regarding missing
user information or phantom logs, and so cannot comment on
those.”
— “Horizon....is not wholly affected by a bug in one aspect of it”
— “...in those cases where there is a failure, the integrity of the data
recorded is maintained and any discrepancies resulting from the
failure are restricted to the transactions being processed at the
time of failure.....”
22. Statement 3. Contains the common paragraphs. At page 2 Dr. Jenkins states that he
understands that in the case of Jishaan Patel “,,,the integrity of the system has been
questioned and this report provides some general information regarding the
integrity of Horizon.” The report then reverts to the common paragraphs previously
mentioned.
23. Statement 4. Contains the common paragraphs. At page 2 Dr. Jenkins states that he
understands that in the case of Khayyam Ishaq “...the integrity of the system has
been questioned and this report provides some general information regarding
the integrity of Horizon.” The report then reverts to the common paragraphs previously
mentioned.
24. Statement 4a. Also refers to the case of Khayyam Ishaq. This additional statement deals
with a discussion of information contained within Horizon logs and the settlement of
shortages centrally or locally. The statement does not deal with any challenge to Horizon
integrity.
25. Statement 5. Contains the common paragraphs. At page 2 Dr. Jenkins states that he
understands that in the case of Jamie Dixon “...the integrity of the system has been
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questioned and this report provides some general information regarding the
integrity of Horizon.” Dr. Jenkins then reproduces Point 4 of the Defence Statement
and answers the criticism contained therein thus:
— “Point 4 (second part) : He does not have confidence in the
Horizon accounting system, or that transactions were accurately
recorded.
This is a contentious statement with nothing to substantiate it. I would say
that Horizon does accurately record all transactions that are input into it
and these transactions that are the basis of the audit trail described in the
remainder of this report.”
The report then reverts to the common paragraphs previously mentioned.
Helen Rose draft report dated 12" June 2013: Lepton SPSO: 4" October 2012
26. This report is based upon a series of email passing between Helen Rose, a POL Security
Fraud Analyst. The emails appear to have been sent/received over the period 30" January
2013 to 13" February 2013. The essence of the contact is a ‘question-and-answer’
process between Helen Rose and Dr. Jennings in circumstances where Helen Rose is
enquiring into a reversals issue at the Lepton SPSO. I again extract a number of
paragraphs:
On 30/1/2013 Dr. Jennings tells Helen Rose that:
“It isn’t clear what failed...”
“,,.the counter may have rebooted and so perhaps may have crashed
in which case the clerk may not have been told exactly what to
GO; »» soesinns the system is behaving as it should”
“It is quite easy for the clerk to have made a mistake....”,
In her email of 13/2/2103 Helen Rose says:
“T know you are aware of all the Horizon integrity issues...”
27. Ms. Rose’s ultimate conclusion is that this is not an issue which suggests a failing of
Horizon itself; rather it is an issue of data presentation, i.e. the problem appears to be that
the ARQ logs do not distinguish between system-generated and manual reversals, the
answer being to create a new column in the ARQ log to facilitate that distinction. The
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report however does allude to Horizon issues: the 30" January email is suggestive of the
proposition that Dr. Jennings does not know what went wrong; and the 13" February
comment is suggestive of the fact that Dr. Jenkins knows of other Horizon issues.
The Second Sight Interim report
28.In considering this report I only take account of those matters indicating a prior
knowledge of Horizon issues. The following paragraphs appear relevant:
64
6.5
6.6
6.7
6.8
In the course of our extensive discussions with POL over the last 12
months, POL has disclosed to Second Sight that, in 2011 and 2012, it had
discovered “defects” in Horizon online that had impacted 76 branches.
(SSIR published 8/7/2013)
The first defect....impacted 62 branches. It was discovered in September
2010.
The second defect.......... affected 14 branches....and generated
discrepancies. ..including a ....shortfall...and a surplus.....
POL was unaware of this defect until, a year later after its first occurrence
in 2011, it re-occurred and an unexplained shortfall was reported by an
SPMR.
POL’s initial investigations in 2012 failed to reveal the system defect and,
because the cause could not be identified, the amount was written off.
Fujitsu looked into the matter early in 2013 and discovered, and then
corrected, the defect.
Other sources of information.
29. On Thursday the 27" June Martin Smith of Cartwright King Solicitors was telephoned
by POL. There then ensued a number of conversations between MS and senior POL
executives. The import of what MS was being told may be summarised thus: he was
informed by POL that a report commissioned from Second Sight by Post Office Ltd. and
as yet unpublished, indicated that Horizon may not be ‘bug’ free. There was much
speculation as to the content of the Second Sight report. It appeared to POL that some
within the organisation had been aware of bugs affecting up to 30 offices including some
Crown Office branches. Jarnail Singh, head of Criminal Litigation had been unaware and
did not know how long POL had known of the existence of the bugs nor indeed who at
POL had known.
30.
31.
32.
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On the 28" June MS and I spoke with Dr. Jenkins, who told us that it was he who had
informed the Second Sight Committee of the existence of two bugs which had affected
Horizon. Dr. Jennings told us that the extant bug affects Horizon to a limited degree and
at specific post office locations only. Bugs have been identified in Horizon which call
into question some of the aspects of the way in which is operates. He said that the earlier
bug was historic and a patch had been applied to Horizon which had remedied the
problem.
Subsequent information by emails to MS revealed that there had been identified two
bugs affecting Horizon on Line. B14 was the more recent, having only being diagnosed
in early 2103. Some remedial work had been undertaken and a systems change is
planned for the 8" October.
At this point the Helen Rose report had not surfaced.
Discussion
33,
34.
35.
The Dr. Jenkins expert statements (see paragraphs 15 to 24 above) all have a similar
flavour to them. They all attest to the robustness and integrity of Horizon in express
terms (see e.g. my para.18 above “Usually final page” extract).
The general import of the statements also leads one to a similar conclusion: Dr. Jenkins
tells the reader that failures will only occur “...... as a result of a bug in the code or
by somebody tampering with the data in BRDB and this check is included
specifically to check for any such bugs/tampering” or that a problem can “....only
happen as a result of a bug in the code and this check is included specifically to
check for any such bugs” but he does not say that any bugs have been identified, either
by the checks referred to or otherwise. The inevitable conclusion to which the reader is
driven is that “...if that is right, there must be no bugs.”
Plainly therefore Dr. Jenkins is attesting to the then integrity and robust nature of
Horizon — there is nothing wrong with the system. Unfortunately that was not the case,
certainly between the dates spanned by the statements I have extracted here, the 5”
October 2012 and the 3 April 2013.
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36. By reason of the matters stated herein, it may reasonably be suggested that the
conclusions set out immediately below are established :
Since September 2010 Horizon on Line had suffered at least two defects, or bugs.
One appears to have been resolved in early 2011; the other remained extant until
at least January 2013 and, on one account, will not be remedied until October
2013.
Dr. Jenkins informed the Second Sight committee of the existence of the two
bugs within the 12-months preceding publication of their Interim report.
Accordingly Dr. Jenkins knew of the bugs, their history and resolution during the
period 5" October 2012 (date of first report reviewed by me — see para.16 above) and the
3° April 2013 (last reviewed report).
Whilst is certain that Dr. Jennings was aware of B14 in January 2013, given that
the Second Sight committee were informed of the existence of the two bugs
within the 12-months preceding publication of their Interim report, it is not
unreasonable to infer that he knew of B14 prior to January 2013.
Dr. Jenkins has, at least between January 2013 and 8" July 2013, been aware that,
arguably, B14 would remain unresolved until a systems change is planned for the
8" October.
Helen Rose’s comment to Dr. Jennings of the 13" February 2013 reinforces the
point: “I know you are aware of all the Horizon integrity issues....”
And during the period January/February 2013, Dr. Jennings was dealing with a
Horizon problem in circumstances where he was speculating as to what had
occurred because it “.....[wa]sn’t clear what failed”.
No mention is made of any of these Horizon issues in Dr. Jennings’ expert
witness statements considered in this review — see paragraphs 15 to 24 above.
Rather the statements attest to the robustness and integrity of Horizon.
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h. Had the existence of the bugs been disclosed by Dr. Jennings in his expert
witness statements then, in relation to any defendant who had raised Horizon
issues as part of his/her defence case, that material “... might reasonably be
considered capable of undermining the case for the prosecution ...or of
assisting the case for the accused....” and would undoubtedly have required
disclosure to such a defendant.
Conclusions
37.
38.
What does all this mean? In short, it means that Dr. Jennings has not complied with his
duties to the court, the prosecution or the defence. It is pertinent to recall the test under
which a prosecution expert labours: “....an expert witness possessed of material which
casts doubt upon his opinion is under a duty to disclose the fact to the solicitor
instructing him, who in turn has a duty to disclose that material to the defence. The duty
extends to anything which might arguably assist the defence. Moreover, it is a positive
duty.”*
The reasons as to why Dr. Jenkins failed to comply with this duty are beyond the scope
of this review. The effects of that failure however must be considered. I advise the
following to be the position:
— Dr. Jenkins failed to disclose material known to him but which
undermines his expert opinion. This failure is in plain breach of his duty
as an expert witness.
— Accordingly Dr. Jenkins credibility as an expert witness is fatally
undermined; he should not be asked to provide expert evidence in any
current or future prosecution.
— Similarly, in those current and on-going cases where Dr. Jenkins has
provided an expert witness statement, he should not be called upon to
8 Rv. Ward, supra. and see paras.6-9 above.
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give that evidence, Rather, we should seek a different, independent
expert to fulfil that role.
— Notwithstanding that the failure is that of Dr. Jennings and, arguably, of
Fujitsu Services Ltd., being his employer, this failure has a profound
effect upon POL and POL prosecutions, not least because by reason of
Dr. Jenkins’ failure, material which should have been disclosed to
defendants was not disclosed, thereby placing POL in breach of their
duty as a prosecutor.
— By reason of that failure to disclose, there are a number of now
convicted defendants to whom the existence of bugs should have been
disclosed but was not. Those defendants remain entitled to have
disclosure of that material notwithstanding their now convicted status. (I
have already advised on the need to conduct a review of all POL
prosecutions so as to identify those who ought to have had the material
disclosed to them. That review is presently underway.)
— Further, there are also a number of current cases where there has been
no disclosure where there ought to have been. Here we must disclose the
existence of the bugs to those defendants where the test for disclosure is
met.
— Where a convicted defendant or his lawyers consider that the failure to
disclose the material reveals an arguable ground of appeal, he may seek
the leave of the Court of Appeal to challenge his conviction.
39. In an appropriate case the Court of Appeal will consider whether or not any conviction is
unsafe. In so doing they may well inquire into the reasons for Dr. Jenkins’ failure to refer
to the existence of bugs in his expert witness statements and evidence.
Simon Clarke 15t July 2013
Barrister, Senior Counsel
Cartwright King Solicitors