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REGINA
“v-
SEEMA MISRA
ADVICE
1. I am asked to advise as to the responses to be made to the
two requests for disclosure by the Defence in this case.
2. We have been put on notice only in very general terms that
the Defence are challenging the reliability of Horizon. No Defence
Statement has yet been served that even mentions this issue. I
suggest that our response to the disclosure requests should raise this
failing. I suggest something along the following lines: “We will respond
to all reasonable requests that seek material that may undermine the
Prosecution case or support your client’s defence. We understand in
general terms that you are seeking to challenge the integrity of the
Horizon system. We feel obliged to point out, however, that you have
not as yet served a Defence Statement which raises any issue
whatsoever with the Horizon system. If any apparent errors were
occurring in the indictment period your client should have a good
knowledge of what they might be, simply because she would have
regularly been checking the stock against the Horizon records. We
take the view that a detailed Defence Statement is required in this
case which fully particularises any problems with Horizon upon which
your client would seek to rely at trial. The Defence Statement should
obviously make clear what the issues in the case are. At the moment
we do not know whether your client still claims that she was hiding
thefts by members of staff and to what extent those alleged thefts
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contributed to the deficiency at the office. We are handicapped in
fulfilling our disclosure obligations by the absence of an adequate
Defence Statement. The credibility of your client may also be damaged
at trial if no adequate Defence Statement is served.”
3. I will now turn to the specific disclosure requests.
Section 8 disclosure application
4. I have now viewed the paperwork held by the Civil and
Criminal departments in relation to all the “case studies” set out in the
Computer Weekly article which is attached to the s.8 application. In
deciding whether any material should be disclosed I have kept the
following test in mind: is there material that is capable of casting an
objective doubt on the reliability of Horizon? I discussed the suitability
of this test with the Defendant’s legal representatives when we all
attended the West Byfleet office on 6/11/09. They agreed with the test.
The mere assertion by a sub-postmaster that a loss should be
attributed to computer error is not capable of amounting to the sort of
objective material that ought to be disclosed.
5. The only material that should be disclosed from the files that I
have viewed is the Judgment in the Castleton case. I attach a copy of
the final Judgment to this Advice. All the other material simply contains
unsubstantiated claims by sub-postmasters. When those claims have
been investigated no supporting evidence has been found.
6. However, before we respond to the s.8 application I would
wish some further enquiries to be made from Fujitsu. Paragraph 23 of
the Castleton Judgment refers to the evidence of Anne Chambers, a
system specialist employed by Fujitsu. When she was cross-examined
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she appears to have had full knowledge of an error in Horizon that had
occurred at Callender Square in Falkirk. This appears to relate to
“case study 6” in the Computer Weekly article. I have seen some civil
paperwork in relation to Alan Brown, but not concerning a Horizon
error. I don’t know if Anne Chambers still works for Fujitsu but it should
be relatively straightforward for Fujitsu to provide full information about
what appears to have been a well-known problem at Callender
Square.
7. I also think that our disclosure duty requires us to ask Fujitsu
whether they are aware of any other Horizon error that has been found
at any sub-post office. I anticipate that there will be none, but it is
important that the check is made.
8. I assume that these enquiries can be completed quickly.
Once I have seen the results I can draft a response to the s.8
application.
Further Request for Disclosure
9. I hope it will be possible for my instructing solicitor to respond
to this document. I am happy to draft a response but there are a
number of matters that are outside my knowledge at present. A
number of the requests in this document are unreasonable. I will go
through the requests. in the order and under the headings they appear.
John Longman has also prepared a document in which he answers the
requests to the extent he can. I attach that document to this Advice. I
suggest the format adopted by Mr Longman, of setting out the Defence
request and then its answer, is adopted when the response to this
document is sent, not least because the numbering used in the
Defence document is a little haphazard.
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Contract
10. John Longman has obtained a full copy of the Defendant's
contract which should be served on the Defence. He is able to answer
enquiry 2a but not b. I do not understand how any of the information
sought under enquiry 2 is relevant to the Misra case. The Defence
should be told that this enquiry will not be answered unless they can
explain its relevance.
Training
11. Requests 1 and 2 in this section cannot be met because we
are not in possession of hard copies of the manual and the updates
that were sent to West Byfleet. The Defence should be told that the
only available copies of exactly what was sent to West Byfleet are still
at the office and they will be allowed to inspect them there. The CD
referred to in Mr Longman’s answer to 2 should not be served because
it will not reflect what Mrs Misra would have relied upon. We are in
possession of the records requested in enquiry 3. Copies of those
records should be served. Mr Longman’s answers to 4 and 5a should
also be communicated to the Defence. I understand that Mr Longman
will inspect the file referred to in his answer to 5b. I anticipate that that
file entry will need to be disclosed and a copy should be sent to the
Defence.
12. Mr Longman has told me that he will obtain a further
statement from Andy Dunks which will answer enquiry 6 fully. Enquiry
7 can be answered by the first 3 lines of Mr Longman’s response.
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Investigation
13. The detail requested in enquiry 8 is irrelevant. A general
answer along the following lines can perhaps be given: “We do not
understand what you mean by the first sentence of this paragraph. We
certainly do not accept that your client was misled at any stage of the
investigation. Each year there are a number of successful
prosecutions of sub-postmasters for theft following deficiencies found
in audits. Some of those successful prosecutions have involved full
confessions. We do not understand how the detail you seek in this
enquiry can possibly undermine the prosecution case or support your
client’s defence”.
14. The Defence enquiries in 9 and 10 can be answered in the
terms set out set out by Mr Longman, save that the inflammatory
words “Not true” at the beginning of the answer to 9 should be
replaced by something more diplomatic such as “There appears to
have been some confusion here.”
Horizon System
15. Request 11. The Defence have previously requested “service
logs” for an enormous period: from 6 months prior to the Defendant's
taking up the position of sub-postmaster to the present day. As I
understand it, if Fujitsu are asked to supply all the Horizon data for this
period the cost will be in the region of £15,000. On the other hand if
much more specific requests are made, eg. for credit card transactions
for a relatively short period, the cost may be much more limited. I
understand that the reason for the distinction may be based on the
contract with Fujitsu as much as the amount of work involved and that
there may be a contractual limit to the amount of data requests that
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can be made of Fujitsu each year. If the Defence request to justify the
cost of their blanket enquiry can be met without breaching any
contractual sensitivities then a brief justification would be appropriate.
The Defence should be asked to provide more focussed requests.
Something along the following lines may be fitting: “We can
understand why you would want to see specific areas of the Horizon
data. Your expert will want to check his theories against the relevant
data. Your client will also presumably be able to direct you to specific
types of transactions where she feels errors may have occurred. We
do not understand how your expert will be assisted by being presented
with a mountain of data covering 5 years.”
16. Request 12 appears reasonable. I hope that Fujitsu can
provide details of the rigorous testing of Horizon without, of course,
breaching any commercial sensitivities.
17. I have spoken to Issy Hogg about request 13 and have
suggested to her that she already has all the material which proves the
deficiency. She has said that she will reconsider this request.
18. Request 14 appears reasonable. I imagine it is relatively easy
to check whether there were any hardware changes during the
indictment period. Mr Varsani has already confirmed in his witness
statement that there have been no changes in his time. If there have
been any hardware changes an explanation should be provided as to
why this should not affect the reliability of the equipment, along the
lines set out by Mr Longman in his document.
19. Request 15. I have been chasing a copy of Eleanor Nixon’s
statement from the Defence and finally received a copy on 4/1/10,
although the Defence claim that a copy was faxed to my instructing
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solicitor on 30/11/09. I have forwarded a copy to Mr Longman and
attach a copy to this Advice. I will ask Mandy Talbot, who has been
extremely helpful in retrieving civil files and explaining them to me, to
try to obtain any civil papers in relation to Mrs Nixon. The witness
statement does not reveal a problem with Horizon’s reliability but
rather a mistake that she claims can easily be made because of the
layout of the screen. It may be that the alleged layout problem is
something which Fujitsu is aware of and has been rectified. A copy of
Mrs Nixon’s statement should be forwarded to Fujitsu for their
comments. It should also be straightforward to ascertain whether or
not Mrs Misra was falling into the trap identified by Mrs Nixon. The
error described would presumably create a cash shortage matched by
an equal surplus elsewhere. There would also presumably be a flurry
of error notices if she was making substantial mistakes. Overall, I
anticipate that we should be able to serve witness statements
relatively quickly which can prove that the Nixon theory is inapplicable
to Misra’s situation.
20. Request 16 appears to be a request for temporary immunity
from prosecution for the mystery sub-post mistress. Paragraph 2.1.3.8
of the Defence expert’s 2™ interim report seems to suggest that this
lady routinely commits offences of false accounting. The Defence
should be told that we are unable to make any promise along the lines
they suggest, as it would be a clear breach of our duty to investigate
criminal offences.
21. Request 17. I don’t know if there are any imminent changes
expected at West Byfleet before our trial. If there are, it is obviously
important that the current equipment is safely preserved so that the
Defence retain the ability to examine it.
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22. Request 18a. I have spoken to Prosecution Counsel
instructed in the case of MacDonald, who is John Gibson at India
Buildings in Liverpool. No interim report has yet been served in that
case which is now not due to be tried until the middle of 2010. I am
satisfied that there is no material so far in that case that is capable of
raising an objective doubt as to the reliability of Horizon and so, as yet,
there is nothing that should be disclosed. The Defence should be
informed that no interim report has been served in that case, that
nothing yet falls to be disclosed but that we will keep disclosure in
relation to that case under review.
23. Request 18b. By a happy coincidence the Brief in the case of
Hosi is in Chambers. Sarah Selby is instructed and Juliet McFarlane is
the Principal Lawyer. I have read through the Brief. A Defence
preliminary expert report has been served. That report, although rather
unimpressive in many respects, is material that ought to be disclosed
in our case. The report would not be comprehensible without sight of
the other case papers. I suggest that, in addition to the preliminary
report, the witness statements, exhibits, defence statement and
summary of facts be copied and served. It would be sensible to
contact the solicitors for Hosi, EPD Solicitors, to ask whether they
consent to their report been disclosed. I am sure they will consent
because in due course they will no doubt request disclosure from our
case for their trial.
24. Request 19 is unreasonable for the same reason as I have
set out for request 8. The Defence should be reminded that our duty of
disclosure only extends to material that may undermine our case or
that may support their client’s defence.
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Other Matters
25. John Longman has sensibly suggested that the Defence
expert might want to meet with one or more representatives from
Fujitsu to discuss technical issues and to reach as much agreement as
possible. This is an obvious way of avoiding much wasted time and
such an invitation should be given to the Defence.
26. Gareth Jenkins at Fujitsu has provided Mr Longman with a
number of comments about the Defence 2" interim report which
confirmed my suspicion that the theory that Horizon cannot deal with
refused credit card transactions is simply wrong. He has suggested in
his comments that there are also a number of areas where POL could
provide assistance. It seems that it would be relatively easy to
disprove the theories of the 2" report by witness statements from Mr
Jenkins and from a suitable witness at POL. Those statements should
be sought now. Although the Defence are likely to come up with other
theories, it will hopefully save time and expense on both sides if we try
to rebut false theories as and when they arise.
GRO
WARWICK TATFORD
5/1/10