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Witness Name: Warwick Henry Patrick Tatford
Statement No: WITN09610100
Exhibits: WITN09610101 - WITN09610104
Dated: 25 October 2023
POST OFFICE HORIZON IT ENQUIRY
FIRST WITNESS STATEMENT OF
WARWICK HENRY PATRICK TATFORD
1, WARWICK HENRY PATRICK TATFORD, barrister of Foundry Chambers, 5-9
Quality Court, Ground Floor, Chancery Lane, London, WC2A IHP, will say as
follows:
1. I was requested to provide a witness statement pursuant to Rule 9 of the
Inquiry Rules 2006 on 21 September 2023.
Education
2. I read Classics (Lit. Hum) at University College, Oxford between 1987 and
1991, graduating with a First. I did the Common Professional Examination as
my law conversion course at Nottingham Polytechnic in 1991-2. I attended the
Inns of Court School of Law in 1992-3 and was called to the Bar in 1993.
Career at Bar
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3. I did a 12 month pupillage at the Chambers of Edmund Lawson QC, 4 Paper
Buildings and became a tenant there in October 1994. I have remained at the
same set ever since, though it has changed name (and location) twice — first
9-12 Bell Yard and then Foundry Chambers.
4. I have practised at the Bar without interruption. I have worked almost entirely
in the field of Criminal Law (prosecuting and defending), but I have done quite
a lot of Local Government prosecutions and very occasional Regulatory work
at the GMC and Law Society (both defending). For over 10 years I appeared
pro bono in Bar Disciplinary Tribunals (mainly presenting but also defending).
I am a member of the CPS Advocates General Panel, at level 4, the highest
grade. I am a member of the Rape and Serious Sexual Offences (RASSO)
and Serious Crime Panels (at level 4) and the Fraud Panel (at level 3). A
great deal of my practice now involves prosecuting serious sexual offences,
often involving vulnerable complainants and defendants, but I continue to
appear across the spectrum of the serious criminal cases in which senior
juniors prosecute and defend.
Privilege
5. In the light of correspondence I have received from the Inquiry I am
proceeding on the basis that legal professional privilege had been waived by
those who originally instructed me, the Criminal Law Division, Legal Services,
Royal Mail.
Experience working with the Post Office/Royal Mail.
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6. Throughout a significant part of my career I prosecuted cases on behalf of the
Post Office and Royal Mail. Many of my colleagues in Chambers did the
same.
7. I remember prosecuting 2 trials of theft by sub-post office employees which
predated the Horizon system, where the deficiency was hidden by manually
inflating figures for pension and allowance vouchers. I prosecuted a number
of Horizon theft cases as guilty pleas. I am unable to determine the exact
number because of insufficient case information on my Chambers’ Lex Diary.
In addition to the Horizon cases about which I have been asked detailed
questions, I remember prosecuting 2 Horizon-based theft trials: Abiodun
Omotoso at Luton Crown Court (trial dates 17-21/9/07) and Jan Kirk at
Bournemouth Crown Court (3-6/12/07). From my researches I know that
Abiodun Omotoso’s conviction was overturned in Ambrose & others [2021]
EWCA Crim 1443. I remember very little about the facts of Omotoso and have
not been provided with any papers for it. The Ambrose judgment indicates
that there was some kind of challenge to the integrity of Horizon, but I cannot
remember any of the details, other than I do not think there was any reference
to any problems at other sub-post offices and I do not think there was any
expert evidence in the case. I do not know if lan Kirk has sought to appeal his
conviction. I remember that Mr Kirk’s defence involved an acceptance of the
deficiency, but the assertion that it had been caused by a theft by an unknown
person(s). I believe the case of Seema Misra (2010) is the last Horizon trial I
prosecuted.
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8.
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I continued to prosecute occasional Royal Mail cases after that, often
instructed by the late Juliet McFarlane (who is the author of document
POL00053954). The Royal Mail criminal law department was by this stage
entirely separate from Post Office Ltd and its cases did not relate to Horizon
or sub-post offices. The last Royal Mail trial I was involved in was Didier
Nyamakolo (theft by postman, Blackfriars Crown Court) on 21-25/11/16.
I will now focus on the cases about which I have been asked detailed
questions. The cases are all from a significant time ago and I have long since
disposed confidentially of all my papers, notes, documents and almost all
emails in relation to all 3 cases. I have found a handful of emails concerning
Misra. I do remember the Page and Misra cases reasonably well, though
there is plenty of detail that I now cannot remember. I had very limited
involvement in the case of Rudkin and cannot really assist with that case
beyond the documents I have been given.
10.In my statement I have indicated various documents that I know to have been
1
a
created but which have not been provided to me. I will provide a list of such
documents to assist the Inquiry to locate those documents, if they still exist.
.I have never previously prosecuted a case that has been stayed as an abuse
of process, let alone one involving such an appalling abuse of process as
described in Hamilton & others. I feel ashamed as a barrister when I read the
judgment. I am deeply troubled by the possibility that there might have existed
computer bugs, relevant to the cases I prosecuted, which ought to have been
disclosed. I am very sorry that Seema Misra and Carl Page did not receive fair
trials and I am sorry that I played an unwitting role in this. I was completely
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unaware of the existence of any Horizon computer bugs at the time of the
Page case in 2005-6, or indeed that any problems had ever been raised. At
the time of the Misra case I ensured that the Callendar Square bug was
disclosed and made it very clear to those instructing me that enquiries should
be made with Fujitsu about any other problems and any other bugs should be
disclosed. I made this clear also to Gareth Jenkins, the expert instructed by
the Crown, and I made it very clear to Mr Jenkins that he was under a duty to
provide frank disclosure of Horizon problems to the defence expert instructed
in that case, Professor McLachlan.
12.In this statement I can only set out how I remember things. No particular
disclosure failings on my part have been brought to my attention and it is not
clear to me what, if any, criticisms are being made of my conduct in the cases
I prosecuted. I note that the reprehensible failings so starkly reported in
Hamilton & others appear to relate largely to a time after the cases I
prosecuted.
The Prosecution of Carl Page
13.1 have reviewed the documents sent to me and listed between paragraphs 5
and 19 of the annex to the letter of 21 September 2023 and have considered
the questions put to me in that letter.
14.My role in the case of Carl Page may not have been fully understood from the
available paperwork. I have been asked why I was instructed as new Counsel
for the retrial, which is incorrect. I was not new Counsel. My former colleague
from Chambers, Stephen John, now a retired Judge, prosecuted the case
initially alone but, as the case became more complicated, he requested and
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was granted a junior. I was instructed as junior and performed that role
throughout the first trial of Page & Whitehouse.
15.The first day of the trial of Page & Whitehouse was at Wolverhampton Crown
Court on 6/6/05. The trial was immediately transferred to what was then called
the West Midlands Fraud Centre, a converted office building near Dudley. The
trial took place there between 7/6/05 and 22/7/05 before HHJ Wood QC. On
22/7/05 both Mr Whitehouse and Mr Page were acquitted on count 1,
conspiracy to defraud. Carl Page faced count 2 alone, theft of £282,000. The
jury was unable to reach a verdict on that count and was discharged. A retrial
was ordered which was eventually listed at Stafford Crown Court on 14/11/06.
The retrial only justified one Prosecution Counsel. Stephen John was
unavailable, so I was instructed, on the basis that I had a very full knowledge
of the case from the first trial.
16. There seems to have been a misunderstanding in the Court of Appeal in
Hamilton & others as to the facts of count 2. Paragraphs 277-285 seem to be
incorrect in a number of important respects, unless other information was
presented to the Court of Appeal which does not appear in the judgment.
Although this is not related to issues surrounding Horizon, I thought it would
assist the Inquiry if I went into the detail. Count 2 only ever related to Carl
Page. The offence was quite separate from count 1, which involved a
conspiracy between the 2 Defendants relating to foreign currency: Mr Page
sold euros to Mr Whitehouse at preferential rates; Mr Page went against the
rates suggested to him centrally, which he was not permitted to do, and gave
Mr Whitehouse such good rates that Mr Whitehouse was able to make a
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substantial profit simply by converting the euros back into sterling at other
bureaux de change, something that in normal circumstances should result in a
heavy loss. That in very simple terms was the case on count 1 and count 1
essentially had nothing to do with the Horizon system, the equipment used for
foreign exchange being a Forde Moneychanger.
17.Count 2, against Mr Page alone, did relate to Horizon. When an audit
(essentially a stock-take) took place at Mr Page’s sub-post office it revealed a
shortfall of £282,000. The Horizon records suggested £282,000 worth of
foreign currency was being physically held at the branch in the ‘AM’ stock (the
drawer holding cash, receipts, stamps, vouchers etc for which Carl Page was
responsible). No such amount of foreign currency money was present in the
drawer (stock). The Crown’s case was that Mr Page had put false figures into
Horizon over a period of time so that the computer records would fail to reveal
that money was regularly going missing. The hole in the accounts would
become bigger as the theft continued over time, so, it was alleged, the only
way Mr Page could balance his office’s accounts was to pretend that there
was an increasing sum of cash in his stock that corresponded exactly to the
money he was stealing. It was an imaginary sum of foreign cash. The true
position could only be discovered when an audit took place and the stock was
physically examined and no such money was found.
18. The case on count 2 was made more complicated by the account Mr Page
gave in interview. The auditor found a cheque for £278,181.82. This cheque
hadn't been put through Horizon. In interview Mr Page claimed that he had
loaned euros, to this sterling value, to Mr Whitehouse. This seemed at first a
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good explanation for the £282,000 deficiency because it suggested that the
sum wasn’t an imaginary sum but was a real amount of foreign currency that
had been in the office but was now in the possession of Mr Whitehouse. The
trouble with this version of events was that it was going to be disproved in the
trial by Mr Whitehouse’s evidence. So, when Mr Page gave evidence at the
first trial he admitted this part of his interview was untrue. This can be seen in
the partial transcript of Carl Page’s evidence (POL00067005). I am afraid that
I can no longer remember the full details of the new explanation Carl Page
gave for the deficiency in his evidence and a complete transcript of his
evidence doesn’t appear to be available. I do remember his explanation
related to what he said was his incompetence and that of his employees. I
don’t remember him ever saying there might have been a computer glitch.
19.1 have tried to set out the facts of counts 1 and 2 in a relatively simple way
because I know they are not straightforward. When I was preparing the trial it
took a long time for me to understand the evidence on count 2. Stephen John
and I prepared an expanded opening note for the trial which was meant in
part to explain count 2 more clearly. It appears that expanded opening is no
longer available, but the reason I drafted a Revised Opening Note
(POL00066717) for the second trial was so that the Crown’s case on the sole
allegation at the re-trial was as clear as possible. In paragraph 32 of my
Revised Opening I set out reasons why the loan story of Mr Page’s interview
could not be true. I set out the reasons there because Mr Page no longer had
the disadvantage of a co-Defendant and it would be important, at an early
stage, for the jury to appreciate the interview account appeared untrue.
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20. It follows from all this that the criticisms made by Holroyde LJ in Hamilton &
others [at 279] about the Crown changing its case between the 2 trials are
perhaps, I am afraid, incorrect. I do not know how the Court of Appeal came
to this view as I had no involvement in the appeal and was not asked
beforehand any questions about the Page case. The Crown’s allegation
remained the same for both trials - the deficiency in the ‘AM’ stock - £282,000
worth of supposed foreign currency, a fictitious sum of money.
2
=
.I hope it is clear that in seeking to make these corrections I am taking nothing
away from the sound reasons for the quashing of the conviction which
obviously relate to the reliability of Horizon and disclosure failures over many
years.
22. Following the first trial I remember submitting a short report to our instructing
solicitor, Rob Wilson, setting out the views of Stephen John and me about the
verdicts, any lessons to be learned and whether a retrial for Mr Page was
appropriate. I have not been sent this document by the Inquiry and do not now
have a copy myself, but I do remember drafting it and sending it by email. Our
overall view was that the trial had gone reasonably well for the Crown and that
the Defendants might have had the good fortune of an ultra-cautious jury. The
evidence on count 1 seemed stronger against Mr Whitehouse. To prove that
conspiracy it was necessary to prove the guilt of both Defendants, so if the
jury thought that a guilty Mr Whitehouse had used Mr Page as a dupe it would
have to acquit both Defendants. There seemed no reason not to seek a retrial
for Mr Page. This view was fortified when, in the months that followed the trial,
the Post Office received information to suggest that Carl Page may have
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perjured himself in an aspect of his evidence in the trial. He had spent some
time in his evidence in the first trial setting out his military record and he
claimed he had served in a secret capacity which he could not divulge. Rather
naively we had not considered that he might have been telling lies on this
point and we did not investigate the matter during the trial. This was a
mistake. In fact the CV which Mr Page supplied to the Post Office, when first
seeking a role as a SPM, referred to no military background; rather it
suggested he had a reasonable amount of accounting experience. Perhaps
he had hoped to create sympathy with the jury, from a military record, and had
hoped to hide accountancy experience, which wouldn't have sat well with his
defence of incompetence. My recollection is that the Crown served, in a notice
of additional evidence which has not been provided to me, evidence that
could potentially prove these apparent lies at the re-trial.
23.1 did not give any advice on evidence or the merits of prosecution in the run-
up to the first trial. Any such advice would have been given by Stephen John.
24.1 am asked about the involvement of Customs and Excise in the investigation.
They had begun the investigation because there was a natural suspicion that
Mr Whitehouse’s transporting of large amounts of cash was connected with
money-laundering. Once it was discovered that, in fact, the cash was euros
purchased from Mr Page’s bureau de change at preferential rates, then the
interest of Customs and Excise ceased and it was investigated as a fraud on
the Post Office. Stephen John inspected the papers held by Customs and
Excise and advised there was nothing to disclose. There were no audits
carried out by Customs and Excise as far as I am aware.
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25.1 am also asked about the police’s involvement in the investigation. They had
some limited role in the investigation but did not investigate the case in any
detail. This was a common feature of Post Office prosecutions for many years
before the existence of Horizon. The police might become involved in a case,
e.g. because Post Office investigators did not have a power of arrest, but the
role of the police tended to be very limited. Post Office investigators usually
came from a work background within the Post Office and were familiar with
complicated Post Office work practices whose detail would be difficult for a
police officer to understand without a great deal of preparation. The police
were generally very happy for a Post Office investigator to take over all
aspects of an investigation, e.g. by asking almost all the questions in a PACE
interview, while a police officer sat in relative silence. I have considered the
letter at POL00045921 which was sent to John Whitehouse on 7/5/03. I
recognise this letter and would have seen it in my review of the unused
material as I prepared the case for the first trial, after my instruction as junior.
The letter indicates that the Post Office would take the lead in the
investigation but the police agreed to carry out some limited parts of the
investigation — analysis of phone contact and bank accounts. The letter
betrays the limited understanding the police had of the case: the letter wrongly
states that John Whitehouse had been alleged to have stolen money from the
Post Office, colluding with Carl Page — this is a very garbled way of describing
the foreign currency conspiracy. The police’s conclusion in the letter that “as
the above enquiries have not provided any clear evidence of criminal conduct
either by, or between, the two men, Staffordshire Police decided not to press
any charges against them” properly had no sensible impact of the Post
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Office’s eventual decision to prosecute. It seemed to me at the time that the
police had a very limited understanding of the evidence and they only
investigated a specific part of the case. The fact that nothing suspicious was
found in phone calls and bank accounts was an important piece of disclosure
for the trial, but the police knew nothing of the extraordinary foreign currency
purchases that were the real reason for the conspiracy charge. The police’s
opinion is particularly irrelevant to any Horizon issue because there is nothing
to suggest that the Staffordshire Police knew anything about Horizon and
Horizon had nothing to do with John Whitehouse’s alleged criminality — the
equipment he, indirectly, made use of was the Forde Moneychanger.
26.1 am asked to explain the role of Manish Patel. He was the investigator for the
Post Office. He conducted the whole investigation, using his detailed
knowledge and experience of the complicated workings of a sub-post office,
expertise that a police or Customs officer could never hope to match. He
provided highly detailed statements and schedules that essentially set out the
whole case. I have not been provided with many exhibits from the case and
without these exhibits Manish Patel’s statements are difficult to follow. Mr
Patel conducted all the significant PACE interviews. I think he took many of
the witness statements. His role was very similar to that of a police “officer in
the case”, where that title applies to a highly competent officer who has been
involved in an investigation from the start. By the time of the trial Mr Patel had
had a change of career (1 seem to remember that he had become a
professional pilot). This meant that we did not have his assistance for much of
the trial, only those days when he was required as a witness. This was a
significant disadvantage for us but another very experienced investigator,
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Trevor Lockey, took over the role of “officer in the case” and he was present
throughout the trial. We had detailed discussions with Manish Patel before his
evidence, as would be entirely normal with any key investigator. I had not had
any dealings with him before the case, but I knew Stephen John thought
highly of him. I was impressed by what I saw of Manish Patel in the course of
the first trial. He had investigated a complex case which was initially confusing
to those who looked at it (not least because of the £278,181.82 cheque and
the account Mr Page chose to give of that cheque in interview). Stephen
John and I took pains to ensure that both Defence Counsel had every
opportunity to gain from Mr Patel’s deep knowledge of the case.
27.1 have been asked to consider the expert reports of David Liddell, an
accountant, at POL00045867 and POL00045868. I would have seen the
reports shortly after they were served. I remember Mr Liddell from the first
trial. He was a rather unusual expert who provided a new theory to explain the
£282,000 deficiency in the witness box without, as I remember it, setting that
theory out in a report. I am afraid I cannot now remember the details of that
extra opinion, but I do remember thinking at the time that it was rather poorly
considered and not difficult to refute. The conclusion at paragraph 2.7 of
POL00045867, that a large surplus of euros could not have built up in the
‘AM’ stock or elsewhere, was agreed by the Crown. But nobody ever
suggested that there was a large amount of euros that Carl Page had stolen
and there would be no reason for there to be a large amount of euros in the
‘AM’ stock because they should have been in the bureau de change stock. Mr
Liddell seemed to have completely misunderstood the Crown's case on count
2. The ‘AM’ stock was just the part of the branch accounts where the inflated
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figures were entered by Mr Page. The Crown’s case was that he was stealing
over a protracted period of time and he would hide the increasing hole in the
accounts by pretending he had a corresponding sum of foreign currency at
the branch, a sum that didn’t exist. By filling the hole in the accounts in this
way, the Crown said he was able to achieve the necessary weekly balance.
The opinion in 2.7, therefore, did not undermine in any way the theft count.
28. The opinion offered in paragraph 2.8 of Mr Liddell’s report, that a delay,
between a euros transaction by Mr Whitehouse being entered on Horizon and
his physical collection of the euros, might have caused a shortfall, involves a
similar misunderstanding of the Crown's case. Mr Liddell was again working
on the assumption that the deficiency in euros related to a real missing
amount of euros. It did not. The deficiency, on the Crown's case, was the
difference between Carl Page’s figures and the stock physically present on
audit.
29. The criticism in paragraph 2.25 of Mr Liddell’s supplementary report that “the
work carried out did not constitute an audit in the sense that data was not
verified back to source documentation nor critically examined” is essentially
correct, but is based on a misunderstanding of the terminology used by the
Post Office. A Post Office “audit” isn’t a complicated accountancy exercise. It
is a stock-take. The stock at the office (stamps, cash, foreign currency etc) is
physically counted and the resulting figures compared against the various
printouts that Horizon can produce. The figures should, of course, match. The
Post Office use of the word “audit” is a little pompous, but the importance of a
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stock-take, as in any shop, is very great. Only a physical count of the stock
can determine if the accounting records of the shop are accurate.
30.1 am asked about the reason for the change in Defence experts between
trials. My understanding, though it is only an inference from conversations
(which I may have misinterpreted or have misheard) with Nicholas Leviseur,
Defence Counsel instructed for the retrial, is that Mr Page instructed a new
expert, and indeed new Counsel, because he was dissatisfied with the
performance of Mr Liddell and was generally unhappy at the way his case had
been defended at the first trial. I remember there was a different solicitor's
representative present for the re-trial as well. Mr Taylor’s report (he was an
accountant with KPMG) at POL00061214 was certainly a much more serious
piece of work than the reports of Mr Liddell. Mr Taylor's report showed a good
understanding of how the accounting procedures at a Post Office worked and
he fully understood the Crown’s case on count 2. He accepted the increasing
deficiency identified by the investigator, Manish Patel, but pointed out that if
the correct missing figure was £282,000 and the accounts had been falsified
to hide this figure, then the deficiency must have been hidden in a more
complicated way than the Crown had so far managed to identify. Mr Taylor
correctly stated at p.20 of his report that “the Prosecution rely on the
assumption that the figures in Horizon are those recorded by Rugeley Post
Office staff themselves and that the Horizon system was working correctly
throughout the indictment period”. This is a statement of the obvious. It is also
the only occasion I have found that Horizon’s reliability was raised as any kind
of issue in the course of either Page trial. As far as I remember Mr Page did
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not raise any concerns about computer error. His defence was the
incompetence of himself and other staff members, not computer glitch.
.I was going to ask Manish Patel at the retrial to consider Mr Taylor's report,
with a view to see to what extent we could challenge it. I was not overly
concerned about the report and I did not think it would be very difficult to show
that Mr Page might have chosen a variety of locations for inflated figures in
his accounts. Before that could happen, I was approached at Court by
Defence Counsel, Mr Leviseur, with a formal offer of a basis of plea. I think
this was on the first day of the listed re-trial. I don’t think the process had
begun to select a jury. I was formally asked whether the Crown would accept
a plea to theft on the basis of a loss of £94,000. This figure was based on Mr
Taylor's report — he cast doubt on the deficiency figure prior to 28/8/02 but
agreed with Manish Patel at 5.4.8 that the deficiency then increased from
£188,000 to £282,000, an increase of £94,000, the figure suggested in the
Defence offer. I took instructions, probably from Rob Wilson, but my memory
is not entirely clear on whether I spoke to him or another lawyer. Together we
decided that the basis of plea offered was acceptable, because of the long
history of the case and because it was felt that this clear admission of
significant theft met the justice of the case: to reject the offer and have
another trial would not have been in the public interest. This was my view,
which I communicated to the lawyer, who agreed, after we discussed the
matter, and instructed me to accept a plea on the offered basis. I am asked
about my reaction to the guilty plea. I was not surprised that there was an
offer of a guilty plea. The case on count 2 seemed to me to be strong and
would have been stronger if a jury was permitted to hear of Mr Page’s
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seeming perjury at the first trial. I did not think it was in the public interest to
hold out for a larger value for the theft, which I did not think would make a
significant difference to sentence, given the long history of the case. I thought
a Judge would not be inclined to hold a Newton hearing to try and decide the
exact amount, but would consider that the Defendant had admitted enough to
allow the Judge to pass an appropriate sentence.
32.My recollection is that nothing further happened on that first day of the trial
and that Mr Page reflected on matters overnight and entered his guilty plea on
the second day. I don’t believe any jury was sworn, but this is presumably
something that can be checked if necessary.
33.1 am asked what my view was of the amended Defence Statement,
UKG100012306. The simple answer is that I thought it was a good summary
of a potential defence speech, but that it seemed not to understand the
Crown's case on count 2. The Defence Statement seems also to have been
drafted before receipt of the evidence of Mr Page’s possible perjury about his
military record. I have a vague recollection of re-drafting the opening note in
the hotel room where I was staying in Stafford to help Mr Leviseur understand
the case better, but I am not sure of this. It may be that this amended Defence
Statement is the origin of the mistaken view held in the Court of Appeal that
the Crown had changed the way it put its case on count 2. I am a loss as to
why so many people seem to have misunderstood count 2 over such a long
period of time. I found that once the penny dropped (which for me took a long
time, when I first prepared the case) it was not difficult to understand.
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34.1 note that there does not seem to be any reference to the possibility of
computer error in the Defence Statement. I make this not as a criticism. It was
for the Crown to prove the case and, if in possession of material to undermine
the integrity of Horizon, to disclose that material, whether it was requested or
not. But the absence of any reference to a computer bug is a good illustration
of how far away this issue was from the parties’ minds in 2006.
35.Sentence was adjourned for a pre-sentence report (PSR). I would have read
the contents of that report but do not remember them now. The PSR would
have included the Defendant’s account of the offending and I do not
remember anything to suggest that the plea was equivocal or was not a clear
admission of guilt.
36. Disclosure was largely complete before I was instructed. It had been
supervised by Stephen John. It was obvious to me that there had been
considerable and very full disclosure. The correspondence I saw was at times
a little bad-tempered but it seemed clear to me that the Crown was taking its
obligations seriously and the Defence was taking a very active role in
ensuring the Crown discharged its obligations. I do not remember the issue of
computer reliability being raised by any Barrister or indeed anyone else at any
stage in the case. No computer expert was instructed by either side. It is
important to remember that this was an early Horizon case. I do not know,
because I was not privy to the disclosure in the Hamilton Appeal, what it is
suggested should have been available to be disclosed in a case of this date. If
there was evidence available in 2005/6 of a Horizon bug capable of creating a
phantom deficiency, then obviously that should have been disclosed. All I can
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say is that it was a topic not mentioned, as far as I can remember, by anyone
in either trial.
37.1 am asked for my reflections on the way the investigation and prosecution
was conducted. At the time both of the first trial and the second when Mr
Page pleaded guilty, it did not occur to me that any abuse of process might be
happening. I joined the case late but that allowed me to have a fresh
perspective and I saw nothing that caused me concern. I have to accept that
the Court of Appeal has taken a very different view of the Page trials, from all
it knows of the Horizon disclosure history, and that view is much more
informed and important than mine. I am simply doing my best to remember
what I experienced at the time of the trials.
Prosecution of Seema Misra
38.1 have reviewed the documents sent to me and listed between paragraphs 21
and 44 of the annex to the letter of 21 September 2023.
39.1 was first instructed in this case after the case had been committed to the
Crown Court. As was common with Post Office briefs at the time I was
required to settle the indictment, which was to be lodged by 10/3/08, so I must
have received the brief before 10/3/08, perhaps at the end of February or
beginning of March.
40.My initial brief would have included the Instructions at POL00044585, the
various backsheets at POL00044585 (with their enclosures), the Summary of
Facts, POL00044613, the Schedule of charges at POL00045010 and
POL00045220, the schedule of unused at POL00050750 which shows Jon
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Longman was the disclosure officer, the Sensitive Schedule (nil) at
POL00050751 and the investigation report of Adrian Morris, the original
investigator, at POL00044541.
.As instructed I drafted the indictment - see the email sending the indictment at
POL00051092, dated 10/3/09. I don’t think the indictment at POL00051149 is
the one I drafted but a proposed indictment sent to me by my instructing
solicitor. I did not provide a written Advice on evidence at this stage: this was
not unusual in a case where, as here, I had been provided with all the
necessary paperwork and the case appeared properly prepared. At this stage
Seema Misra was not making any allegations about the reliability of the
Horizon IT system.
The PTPH took place on 20/3/09. I have a recollection of being asked by
Andrew Castle, the solicitor advocate for Mrs Misra, whether pleas to false
accounting would be acceptable. I had anticipated being asked this question
as it was obvious from the papers that such an offer was going to be made. I
had formed a view, before the enquiry from Mr Castle, that such an offer
should not be accepted, because the suggestion that Mrs Misra had been
entering false figures over a considerable period, only to cover the thefts by
members of staff, seemed clearly refuted by the fact that her false figures
continued to rise long after the dismissal of the alleged thieves. The figures
would simply reach a false plateau if the source of the loss ended. Instead
they continued to rise, suggesting that the loss was continuing in spite of the
sackings. The obvious inference to me at the time was that the hole in the
accounts was growing because Mrs Misra was stealing money. It seemed far
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more rational that Mrs Misra would use false accounting to hide a hole
created by herself than by others. My experience from other cases was that a
SPM whose shop was struggling might “borrow” money from the funds of their
sub-post office to put into their shop, hoping in due course that they would be
able to return money into the sub-post office before an audit occurred. In the
absence of an audit the SPM could hide the hole in the accounts by false
accounting. Only the stock-take involved in an audit could reveal the true
deficiency. That was my opinion, but as I only act on instructions it was
essential for me to discuss the plea offer with my instructing solicitor. My
recollection is that, whilst at court before the hearing, I telephoned my
instructing solicitor, Jarnail Singh, to discuss this. He agreed that that the
pleas were not acceptable. I do not remember exactly what was said in this
conversation, but the advice I would have given would have been along these
lines: the account the Defendant had given in interview, that she was the
victim of thefts by former employees did not fit the evidence — the apparent
hole in the accounts increased after the dismissal of the stealing employees; I
thought it did not make sense that Mrs Misra would cover up, by false
accounting, a loss caused by the dishonesty of others — a desire not to lose
the sub-post office did not appear to explain false accounting on such a scale,
because there would be no point keeping hold of a business that was
haemorrhaging so much money; the Defendant said in interview that she had
only reported a tiny fraction of the thefts to the police — this did not make
sense to me because she was obliged by common sense and by her contract
to report the theft and if she was prepared to report the theft, why not report
all of it?
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43.1 have been asked to explain my email exchange (POL00051539) with Phil
Taylor on 22/5/09. Phil Taylor's email seems to be a follow-up to his letter
dated 13/5/09 (POL00051441). As I believe is clear from Phil Taylor’s email
timed at 16:55:03 he had limited knowledge of the case and he seems to have
been unaware of the discussions I had previously had with Jarnail Singh on
20/3/09 about why the pleas to false accounting were not acceptable. Phil
Taylor's role was essentially that of a case worker. He was immensely
experienced, but he was not a lawyer, and his work was focussed on case
preparation. On the date of this email exchange it was still completely
unknown to me that Mrs Misra would later seek to challenge the integrity of
the Horizon system. My opinion that the evidence was “strong” related to what
I understood to be the evidence at the time, in particular that the apparent
hole in the accounts could not be fully explained by the explanation given by
Mrs Misra in interview, because the hole continued to grow after the alleged
thieves had been dismissed. I have already set out my opinion of the
evidence in the preceding paragraph, so I will not repeat it again in full. My
opinion that “confiscation would...be a non-starter’” is simply an inelegant
reference to how s.6 of the Proceeds of Crime Act 2002 might apply to the
case. If pleas to false accounting were accepted it would have been
impossible to argue, I thought, that Mrs Misra had benefitted from her
particular criminal conduct, pursuant to s.6(4)(c). I was not seeking to express
the view that confiscation was a reason in itself to pursue the theft count. I
have always taken the view that confiscation is irrelevant to any charging
decision. It is simply a consequence that can arise after a conviction. Phil
Taylor replied to my email on 27/5/09 at POL00051586.
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44. My attention has been drawn to POL00051441 and I am asked about my view
of the public interest in continuing with the trial. When I gave advice on the
acceptability of pleas I naturally had regard to the public interest, as well as to
whether there was a reasonable prospect of conviction. Stealing a large
amount of money as a SPM, in breach of trust, is plainly a serious offence. I
would have considered that it was very much in the public interest for such an
allegation to be tried, even where significant pleas to false accounting were
being offered. The latter would often merit a suspended sentence or even a
community order, whereas the former would usually require a sentence of
immediate imprisonment.
45.A Defence Statement was served and the case was prepared for trial on the
basis of the issues that first Defence Statement raised. That first Defence
Statement is mentioned in the trial transcripts but I have not been provided
with a copy. I had considered the Non-Sensitive Unused Schedule
(POL00050750) when I first received the papers. I was satisfied that
disclosure was being dealt with properly at this stage, on the basis of the
issues that we understood them to be, namely that somebody else was
stealing the money. I did not advise specifically on disclosure until after the
issue of Horizon reliability was raised, which did not happen until 3/6/09.
46. The trial was placed in a warned list and the case eventually listed for trial on
3/6/09 before Rec. Bailey. It was on this day that concerns were raised for the
first time in the case about the integrity of Horizon.
47.The attendance note of Jarnail Singh at POL00051773 seems to set out
accurately what happened on 3/6/09 when Mrs Misra’s trial was listed. I don’t
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think I saw the attendance note at the time. I was often attended upon when I
prosecuted Post Office cases and it was not unusual for the reviewing lawyer
to attend on the first day of a trial. If a representative of the Post Office was
present I would usually not send an attendance note myself. Even if I was
unattended it was often not necessary to send an attendance note; a
telephone call would often suffice and the call might be recorded in a written
attendance note by the person taking the call. Such an attendance note would
not necessarily be sent to me.
48. Until I saw the attendance note at POL00051773 I had believed that Defence
Counsel on 3/6/09 was Keith Hadrill. This was a mistake on my part because
of Mr Hadrill’s later role as trial Counsel. I was involved in a couple of cases
with Mr Cousens (I am unsure of the correct spelling) around the late 90s and
early 2000s and I do now think he was trial Counsel on 3/6/09, but I am not
100% sure. I do remember clearly that Defence Counsel produced a
photocopy of a Computer Weekly article about alleged problems with Horizon
and complaints by various SPMs. This was the first time in the case that I was
made aware of the issue of Horizon IT reliability and the first time I was
informed about problems at the various sub-post offices referred to in the
Computer Weekly article. The complaints made by SPMs in the article were a
topic that had never been mentioned to me before by the Post Office, an
investigator or any barrister colleague. I was not aware then of the Castleton
case.
49.1 am asked what I thought was the significance of these allegations about
Horizon reliability at this time, early June 2009. I was first of all very surprised.
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This was an entirely new issue and there had been no previous hint of it in the
case. Looking at the transcript of Mrs Misra’s evidence at her eventual trial
(UKGI00014845 at p.136B-D) it is clear what the explanation was for this
issue arising so unexpectedly: Mrs Misra in her evidence said that she first
saw the Computer Weekly article “the day before my first trial’, so there was
presumably no opportunity to bring it to her solicitors attention prior to the trial
listed the next day. I have not been given a copy of the Computer Weekly
article, but from memory it set out complaints by a number of SPMs at
different sub-post offices. The SPMs referred to included Lee Castleton, Jo
Hamilton and others. I don’t think the article specifically referred to the
Callendar Square computer bug. I hope the Inquiry will be able to show me
the exact article. I have researched matters on the internet but there is an
obvious danger in relying on something that isn’t exactly what I saw. From
memory I took a copy for my instructing solicitor and myself.
50. The Defence eventually decided to apply to adjourn the trial so that this new
potential issue could be investigated by expert evidence. I decided not to
oppose that application, even though this was a new defence that had not
been raised in the defence statement or in Mrs Misra’s interview. Some
prosecutors might have taken a more hardline view and some Judges might
have been persuaded not to allow an adjournment. I considered, however,
that the matter had to be properly investigated, even though it had been
raised very late and without any warning. I thought that fairness to both sides
required an adjournment. At that stage it appeared to me quite unclear as to
whether the complaints set out in the Computer Weekly article were of
relevance to Mrs Misra’s case or not. Prior to that day, from the papers I had,
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she had not been alleging unexplained deficiencies. On the contrary, she said
that she had been able to find the cause of the losses — her dishonest
employees. Her interview had not made mention of her suffering losses right
from the beginning, in the presence of her trainers while they were training
her, before any possible theft was involved, which was something she later
relied on heavily in her evidence at trial. All I did know was this was an
important new issue that needed to be considered properly by both sides. It
was therefore vital for there to be an adjournment.
.I became aware fairly shortly afterwards that a new firm of solicitors had been
instructed by Mrs Misra, Coomber Rich, and that Keith Hadrill had become
Defence Trial Counsel. I used to share a room with Keith Hadrill when he was
at 9-12 Bell Yard. I also knew Issy Hogg, the new solicitor from Coomber
Rich; she had in fact instructed me in the past.
I realised that we were about to embark on a demanding disclosure exercise. I
was conscious that both sides were treading new ground and the only guide I
had so far was the Computer Weekly article. As I thought about matters, it
seemed to me that it would be important to focus on the West Byfleet sub-
post office and consider whether any Horizon problem had occurred there.
Complaints from SPMs about problems at different offices might raise
evidence of a problem that could be examined in relation to West Byfleet, but
it seemed to me that a simple complaint by a SPM was of very limited
assistance. There would need to be evidence of what the problem was, or at
least what its symptoms might be e.g. the location within the office stock
where the loss appeared to arise. I discussed the way I was thinking with
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Keith Hadrill and it was decided that there should be a joint visit to the West
Byfleet sub-post office. From my Chambers Lex diary it appears that this joint
visit took place on 6/11/09, though the diary entry does suggest the possibility
that the date of the visit may be moved. Issy Hogg and I certainly attended
and I think Keith Hadrill was there as well. I think Jon Longman was there and
possibly (though I have no memory of this) a representative from the Royal
Mail criminal law department, perhaps Phil Taylor. We were shown the
Horizon equipment in action by the staff who had taken over the running of
the office after Mrs Misra’s arrest. We were additionally able to view the full
site of the Costcutter shop and the sub-post office inside.
53. The Defence expert, Professor McLachlan, sensibly visited the West Byfleet
office on 19/11/09 and spent 2-3 hours there — see transcript POL00001856
at p.105.
54. My work on disclosure began with viewing files held by the Royal Mail criminal
and civil departments that related to the complaints in the Computer Weekly
article. I had previously discussed with Defence Counsel what material I was
going to view and what disclosure test I should have in mind. I suggested that
unsubstantiated complaints by SPMs that they had suffered a computer glitch
would on their own be unlikely to require disclosure. What was required was a
degree of objective evidence of computer error. I was sent relevant criminal
files (relating to Jo Hamilton and Noel Thomas) which I read between
25/11/09 and 29/11/09. I then attended the civil department twice, on 11/12/09
and 23/12/09, where I viewed civil files relevant to the article. The civil
department was quite separate from the criminal department and in a
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completely different building. I drafted a short schedule referring to the files I
had seen which I sent to Jarnail Singh and the defence. I have not been
provided with that schedule in preparation for this statement but I was sent a
copy of the schedule by Mrs Misra’s solicitors (I think) while the disclosure
exercise was being undertaken for the Hamilton appeal and asked questions
about the document, so the schedule should be readily available to the
Inquiry. When I visited the civil department I spoke with Mandy Talbot about
the Castleton case and about the Computer Weekly article. She provided me
with the Castleton judgment, which I read. I think I would have explained that I
was looking for any objective evidence of Horizon computer problems, rather
than unsubstantiated complaints by SPMs. My conclusion from the visits to
the civil department was that the Callendar Square problem was the only bug
that needed to be disclosed because there was clear objective evidence for it,
but that we should keep the subject under continual review. I cannot
remember exactly how I became aware of the Callendar Square problem, but
I think I realised that it would require disclosure from the body of the Castleton
judgment. I think the SPM for Callendar Square, Alan Brown, may have been
mentioned in the Computer Weekly article but I do not think I would have
realised that there was objective evidence for this problem until I conducted
my review of the civil files and read the Castleton judgment.
55.1 explain in the above paragraph that I have not been provided with the
schedule I drafted after viewing the civil files. After searching through my old
emails I have found a form of the schedule that I sent to Jarnail Singh in
relation to R v Gurdeep Singh Dhale, a case in which I was not instructed, but
which seems to have been listed at Bradford Crown Court for trial on 7/2/11
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[WITN09610101 & WITN09610102]. In order to assist the Inquiry to retrieve
the schedule I am referring to, I re-produce the schedule I sent to Jarnail
Singh in an email dated 11/1/11 for the Dhale case. It is clear from this form of
the schedule that I have updated it somewhat to reflect information about
Callendar Square that was later provided by Gareth Jenkins, but otherwise I
think the schedule is very similar to the one that I believe I sent to Jarnail
Singh after viewing the civil files and which was then sent to the Defence. The
schedule from this 11/1/11 email is as follows:
Alan Bates Viewed all papers held by Civil Dept, consisting
almost entirely of correspondence. No material to
disclose. The debt was written off not because of any
problem with Horizon but because not all the
paperwork had been retained which would be
necessary for a civil action.
Alan There was a problem at Callender Square, Falkirk,
Brown/Callender which was rectified in March 2006. Therefore
Sq disclosure of this is only appropriate if the deficiency in
the particular case predates March 2006. The best
way to provide disclosure in relation to this office is to
serve the summary of the Callender Square problem
prepared by Gareth Jenkins and attached to his final
report for the Misra trial.
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Jo Hamilton
I viewed the complete criminal file. No material to
disclose.
Noel Thomas
I viewed the complete criminal file. No material to
disclose.
Rajinder Bilkhu
I viewed the only papers held by the Civil Dept, a
small amount of correspondence. No material to
disclose.
Anar Bajaj
I viewed the only papers held by the Civil Dept, a
small amount of correspondence. No material to
disclose.
Lee Castleton
I viewed 4 boxes of material in relation to the High
Court case. This was not all the material held in
storage and I was asked by Mandy Talbot if I required
to see the remainder. Having read the Judgment I
decided that there was no need to request any further
material. The Judgment is a complete refutation of
Castleton’s allegations. I advised in Misra that the
Judgment in the High Court case be served but this
was only because of the mention in that Judgment of
the Callender Square problem. Now that we have
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Gareth Jenkins’ summary there will be no need to
disclose the Judgment in other cases.
Julie Ford I viewed the only papers held by the Civil Dept, a
small amount of correspondence. No material to
disclose.
56.1 will now set out as fully as I can the history of disclosure requests made
following the adjourned trial hearing on 3/6/09. I will try to set out clearly in this
disclosure review what my opinion of the various disclosure requests was. In
summary, I thought that some requests were onerous but reasonable, others
far too wide and irrelevant. These very wide requests contributed to making
the disclosure exercise fractious.
57. The Defence served a s.8 disclosure request dated 30/9/09. The request
exhibits 3 magazine articles SM/1, 2 and 4 (though I have not been provided
with these) and an interim report from the Defence expert Professor Charles
McLachlan (POL00093689). In that report the Professor sets out possible
hypotheses he would like to examine in relation to the Horizon system:
a. “The User Interface gives rise to incorrect data entry: poor user
experience design and inadequately user experience testing can give
rise to poor data entry quality. In cases that users are working under
pressure, insufficiently trained or are using a system presented in a
different language different from their first language the problems of
data entry can be exacerbated.” This is a complicated way of saying
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“manual error in using the screen, because of pressure, poor training or
language difficulties”, i.e. not a computer problem. Professor
McLachlan suggested he wanted to sit beside a user who represented
the “kind of user engaged by the Defendant”. In later reports the
Professor would continue suggesting experiments along these lines,
without, it seemed to me, considering that a first port of call might be
for the instructions of Mrs Misra to be taken so that she might be able
to help him in assessing what her problems might have been and what
losses she might have caused. I felt, rightly or wrongly, that the sort of
experiments Professor McLachlan proposed were potentially irrelevant
to Mrs Misra’s situation and unrelated to any computer problem.
b. “The Horizon system fails properly to process transactions: accounting
systems are usually designed to ensure that accounts balance after
each ‘double entry’ transaction. In particular, a database technology
referred to as ‘two-phase’ is used to ensure that either both entries or
neither entry is recorded on the system.” This was a potential computer
problem. In due course Professor McLachlan was able to satisfy
himself, with the assistance of Gareth Jenkins, that Horizon did, as he
in fact already assumed, have appropriate technology to guard against
this problem (see e.g. transcript POL00001856 at p.22G-23B).
58. The next disclosure request I have in the documents provided to me is
POL00058503. From the emails it is clear that it follows another similar
request and is dated around 28/11/09. I have provided a written Advice
(POL00044557) in response to this Defence request and it may be helpful to
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place that Advice alongside the 2 disclosure requests. As can be seen from
paragraph 4 of my Advice I summarise the work I have done in relation to the
civil and criminal files. I set out the test for disclosure that I agreed with the
Defence “when we attended the West Byfleet office on 6/11/09”. In paragraph
6 of the Advice I ask for enquiries to be made about what I have discovered
about Callendar Square, from a careful reading of the Castleton judgment. My
words in the Advice seem to confirm that the decision to make enquiries about
Callendar Square, leading to disclosure of that issue, was indeed down to me.
Paragraph 7 of my Advice also appears to be highly significant both generally
and in terms of determining my role in disclosure: “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.” My suggestion
is clear and deliberately wide-ranging. I assumed, and my assumption
seemed confirmed from everything else I read and heard in the case, that my
very clear request had been complied with and would continue to be
considered by my instructing lawyer and those who provided information to
me and him about Horizon (Fujitsu and Gareth Jenkins). My Advice was naive
enough to suggest these Fujitsu enquiries could be completed quickly and it is
obvious from my remarks that I accepted that what I was being told about
Horizon was right. I always thought that the labelling of Horizon by POL as
“robust” was not an answer in itself, but it always seemed to me that it was
justified. The remarks I made in my closing speech at POL00065708 p. 23G-
24A were meant to show that there was a legitimate basis to the suggestion
that Horizon was “robust” and that this was not an empty mantra. Another
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factor in my acceptance that Horizon was robust was that I was told by my
instructing solicitor that there was an absence of complaints about Horizon
from Crown Offices, the larger free-standing Post Offices that were not part of
a shop.
59. Returning to my Advice and particularly the disclosure requests of
POL00058503. In paragraph 10 of the Advice I explain that the requests in the
Contract 2) a) and b) sections are far too wide and seem to have no relevance
to Mrs Misra’s case. It is an enquiry like this that is going to cause frustration —
it is irrelevant and if complied with will waste time that should be spent on
obtaining and considering relevant disclosure. The disclosure request at
Paragraph 11) and my remarks at Advice paragraph 15 make for bitter
reading in the light of Hamilton & Others, from which it is clear that these logs,
the ARQ data, must be assessed first by the Prosecution fully for bugs and
then must be disclosed in full, and the Court of Appeal poured proper scorn
on the objection of the cost of this exercise. I can only say by way of
mitigation that in 2009/10 much less was known about Horizon problems than
by the time of the Clarke Advice in 2013 and I personally only knew about
Callendar Square. The lawyers on both sides in the Misra case were dealing
with a novel situation and, unlike the Court of Appeal, had no benefit of
hindsight. The Defence at paragraph 11) of the disclosure request
POL00058503 only pressed for an explanation of the cost and subsequently
made no s.8 application for a wider span. The Crown on the other hand felt
that more focussed enquiries about specific transactions might be more
helpful. I am still of the view that the efforts to encourage greater specificity
were justified. I thought, rightly or wrongly, that it was reasonable to suggest
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that Mrs Misra, who had had the opportunity to check her office’s stock
against the various available Horizon printouts at any time she chose, might
have been in a good position to suggests fruitful areas of enquiry. Her
knowledge of Horizon had been sufficient, according to her, to identify thieves.
The Crown considered that the Defence should at least try to focus their
requests on the basis of what their client had experienced at the coalface.
There are many defence requests that I consider reasonable in my Advice
and it can be seen (my Advice, paras 22 and 23) that I made the effort to
contact other barristers instructed to prosecute other cases. The request at
paragraph 19) of POL00058503 is astonishingly wide. I recommended some
diplomatic language to be used to respond to this.
60.POL00053723 is the email from Jarnail Singh which asked for my Advice
(POL00044557). Within the email chain seems to be part of the disclosure
requests POL00058503 or a very similar document. Also present in the email
chain is an email from Mark Dinsdale dated 11/12/09 explaining the practical
difficulties these disclosure requests were going to cause the Post Office
investigation team. Jon Longman was the investigator (having taken over from
Adrian Morris) and disclosure officer. He, therefore, had the responsibility to
reply to the disclosure requests. The point being made in Mark Dinsdale’s
email is that the requests are so demanding that they will not only occupy all
of Jon Longman’s time but they will also paralyse the work of the whole
investigation team. The Post Office employed a relatively small amount of
investigators to cover all of its nationwide criminal cases.
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61.1 do not seem to have been provided with the Further Request for Disclosure
dated 30 November 2009 (POL00053646), but infer that it is essentially the
same document as POL00058503.
62. The first action taken on my Advice (POL00044557) was unfortunately the
rather brusque letter dated 11/1/10 (POL00053746). The wording used in the
letter is taken directly from paragraph 2 of my Advice, but I had meant these
words (as my Advice tried to make clear) to be part of our response to the
requests, not a stand-alone letter. There was nothing wrong with requiring a
proper particularised Defence Statement, but I do think this letter set an
unfortunate tone which contributed to the Defence losing patience and
deciding to argue abuse of process.
63. There was a much fuller response to the disclosure requests on 27/1/10
(POL00044553), which largely follows my written Advice together with
information provided by Jon Longman. The attendance note drafted by Jarnail
Singh dated 27/1/10 (POL00053849) appears to have been written before the
27/1/10 letter and it seems that the discussion referred to in the attendance
note may have prompted that letter: “Counsel said that we should disclose
everything we can disclose at this stage so the Defence will know where we
are coming from. We should be seen to be willing.” I was anxious that the
tone of the 11/1/10 letter should not give a false impression that we were
being obstructive. The 27/1 letter does exactly what I advised in the
attendance note — it discloses what we could at the time. I was still awaiting
the matters I raised for Fujitsu’s attention in my Advice at paragraphs 6-8
before responding to the s.8 application. I am asked, with reference to
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POL00053849, what I understood to be the problem, in January 2010, with
the disclosure of data from the Horizon IT system. I don’t think POL00053849
is suggesting that there was a particular problem. I read the document as
meaning that Jon Longman will chase up Fujitsu/Gareth Jenkins for the
answers I requested in my Advice at paragraphs 6-8.
64.1 have found an old email which appears to show that I drafted and served a
short response to the s.8 application on 29/1/10 [WITN09610103 &
WITNO09610104]. The concluding paragraph of the document I drafted reads
as follows: “Further enquiries are being made about the “problem” at
Callender Square, Falkirk, which is discussed at paragraph 23 of the
Castleton Judgment. Further, more general enquiries are being made with
Fujitsu.” I exhibit the email and s.8 response I drafted.
65. The 27/1 letter was designed to assist the Defence in time for a mention on
1/2/10. My colleague Elizabeth Smaller (now HHJ Smaller) covered the
hearing which is recorded in an attendance note by Jarnail Singh
(UKGI00014903). The attendance note shows that a second Defence
Statement had been served on 21/1/10, as had been requested in the letter of
11/1 (POL00053746). The Attendance Note suggests that Gareth Jenkins will
provide a statement dealing with the Horizon aspect of the case, by which I
understand both the Horizon enquiries in the Defence disclosure requests and
also those matter raised in my Advice at paragraphs 6-8. I referred to Gareth
Jenkins, in my Advice paragraph 26, as being the person with whom Jon
Longman was dealing to answer questions raised by Professor McLachlan.
My recollection is that this is how Gareth Jenkins came into the case, as the
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person with the right expertise to deal with Horizon enquiries and questions
raised by Professor McLachlan. It was simply impossible to answer defence
Horizon enquiries without his expert help.
66.1 have seen a draft reply in email form (POL00054162), dated 22/2/10, toa
third defence disclosure request. I have not been provided with the third
disclosure request, so it is not easy for me to deal with this document in detail.
The document shows that Gareth Jenkins was now being treated as an expert
witness by the Crown, as it refers to 2 experts. There is an important
concession to note in paragraph 11, that the Crown will review its position on
the acceptability of pleas if analysis by the experts of the logs, i.e. the ARQ
data, suggests the deficiency may have been caused by mistakes rather than
theft. Reading through the document my impression is that I would have
advised, probably by telephone, both before this document was written and
after it. I note that the wording of the email when it was eventually sent out
seems to be the same as the draft, though the layout is slightly different (it
appears in the email chain in POL00054248, dated 24/2/10). I was regularly
giving advice to Jarnail Singh over the phone about disclosure matters after
my written Advice. I cannot remember the precise details of this non-written
advice because of the lapse of time, but one of the main purposes of my
written Advice of 5/1/10 was to set out some clear parameters to assist Jarnail
Singh with what I considered reasonable and what were unreasonable
requests.
67.1 have been asked about Juliet McFarlane’s concern, in the letter dated 2/2/10
(POL00053954), about paragraph 23 of my written Advice. I had advised
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there that the expert report and case papers in Hosi be disclosed. I made
clear in the Advice that the Hosi report appeared unimpressive (and so
perhaps of borderline assistance to the Defence in Misra). Juliet McFarlane
was perfectly entitled to raise the concerns she did in the POL00053954
letter, particularly that the report was preliminary. I cannot now remember any
of the contents of the expert report but it is clear from the email POL00054162
at paragraph 18 that I reconsidered the matter and changed my mind. I hope I
am sufficiently robust to make that kind of decision myself. I was not brow-
beaten by Juliet McFarlane who was a gentle person. An open-minded
prosecutor will from time to time change their mind.
68.1 am asked about the Post Office’s reaction to my advice on disclosure, not
just in relation to the small episode with Juliet McFarlane, but generally. I was
feeling some pressure from the Post Office side about what it saw as
excessive requests but I never detected any wish on its part to be obstructive
or to do anything other than comply in good time with the Prosecution’s
disclosure responsibilities. I largely agreed about many of the disclosure
requests being far too wide. The main impression I had throughout, although I
confess to finding the disclosure exercise a stressful experience, was that
what the Post Office most wanted was to be helped by me. Jarnail Singh
regularly contacted me to discuss disclosure, in addition to relying heavily on
my written Advice. I did not feel the Post Office was fighting tooth and nail on
every disclosure point. There may have been an unwise frustration from time
to time, on my part as well as theirs, but that was really because the task was
novel and difficult. It was a novel task for the Defence as well. They were
guided by Professor McLachlan, who set out a series of hypotheses and
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suggested various experiments and said, in his evidence at trial, that he had
never spoken to Seema Misra (POL00001856 p. 72C); he thus had no idea
about how well she could speak English, even though language difficulties
was a topic he wanted to suggest as a cause of Horizon mistakes. He had
never looked at her CV (POL00001856 p. 81B). The Professor didn’t think
trying to obtain a list of problems Mrs Misra had actually experienced at West
Byfleet would have been a helpful starting-point (POL00001856 p. 74E-F). He
had made no attempt to discover whether Mrs Misra had experienced any of
the symptoms of the Callendar Square bug (POL00001856 p. 84H-86F). I do
not forget that, whatever the nature of the requests, the duty of disclosure is
on the Prosecution and I remain very troubled that paragraph 7 of my written
Advice should have been answered in a different way - “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.” However, my
experience of the Post Office attitude at the time of this huge disclosure
exercise was that they knew what their duty was and they wanted to fulfil it. In
the years since I have had many animated discussions with CPS lawyers
about disclosure; they too demand, correctly, detailed Defence Statements;
they too query relevance of disclosure requests. The fact that these
discussions are held does not mean that those lawyers are being obstructive.
69. The Defence dissatisfaction with disclosure culminated in an abuse of
process argument before Rec. Bruce on 10/3/10 (date from POL00054275).
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70.1 was disappointed that the Defence had resorted to an abuse argument at
this stage. The Prosecution had, in fact, disclosed a wide-ranging amount of
material and answered arduous questions. Our efforts to encourage focussed
disclosure requests, based on West Byfleet, had largely fallen on deaf ears.
There was a temptation on the Prosecution side to think that the requests
were so wide in order that they would be refused in part, and were thus
designed to lead to an abuse argument. On the other hand, I do acknowledge
that both sides were in a very challenging situation and more diplomacy in the
Prosecution’s correspondence would have been helpful.
71. I don’t seem to have been provided with the Defence abuse skeleton. I
remember it helpfully set out the full history of disclosure requests and
Prosecution responses. There are likely to have been disclosure requests that
I haven't set out in this statement, because I haven't been provided with the
documents, and the defence skeleton may help complete the picture.
72. There was a strong focus in the Defence abuse argument on the undoubted
abruptness of the Prosecution responses to disclosure. I considered their
arguments less strong on the true merits.
73.In my skeleton (POL00054346) I refer, with justification, to the “avalanche” of
disclosure requests. I have been involved in many complicated and serious
cases since — e.g. last year an Encrochat cocaine conspiracy (R v Lockyer &
others) with huge quantities of unused and sensitive material — but I have
never known a more difficult case for disclosure than Misra.
74.\In paragraph 2 of my skeleton I set out relevant facts about West Byfleet —
Mrs Misra was a longstanding SPM; her successor, Mr Varsani, had had no
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Horizon problem with the equipment he inherited — in order to show that the
Defence may have been able to provide more focussed disclosure requests. I
see a reference to a disclosure request dated 3/2/10 in paragraph 4; this may
be the request that was responded to by POL00054162, dated 22/2/10, but I
obviously cannot be sure as I have not been provided with that disclosure
request.
75.1 explain, at paragraph 6 of my skeleton, why Gareth Jenkins has been
instructed as an expert: “his instruction was a belated recognition that the only
way fully to comply with our disclosure obligations was to instruct an expert at
Fujitsu”. At paragraph 7-8 I explain that the Crown had decided, at some
expense, to provide a year’s worth of ARQ data. I set out the £20,000 cost
and the amount of transactions involved (431,490). I explain that the Defence
had provided no proposal as to an appropriate span of data, other than their
original suggestion, but I also set out the reasons why that 12 month span has
been chosen: the Defendant admitted consistent false accounting throughout
nearly 2 % years, so, if this was down to a Horizon problem, it would appear
to be a long-standing, consistent problem that should be apparent in a
narrower span of data as much as in the full data; the period post-dated when
Mrs Misra claimed she had put a stop to thefts by employees, so that span of
data shouldn't be confused by the alleged theft problem. I have to concede
that with hindsight this approach to the disclosure of ARQ data was wrong.
This is clear from Hamilton & others (at paras 91 (i), 131 and 207). Although I
have been critical of the Defence in terms of some of their disclosure
requests, on this issue they were entirely correct. I hope it is clear, however,
that the approach to the service of ARQ data was carefully considered and
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issues such as the Clarke Advice, that informed the Court of Appeal’s
approach and the concessions made by the Respondent in Hamilton & others,
had simply not happened yet. Nevertheless, POL should still have understood
its own equipment and quite why it came to be that a large amount of data
was served without any further information as to Horizon problems other than
Callendar Square, I cannot say. I was clear in what I said in my written Advice
at paragraph 7.
76.At paragraph 10 of my skeleton I query the relevance of Professor
McLachlan’s plan to film another SPM in action but the point I seek generally
to make is that the two experts already seemed to be working well together.
With their cooperation I genuinely believed that we had all found a way of
working towards an entirely fair trial.
77. The Recorder gave a judgment on 12/3/10 when he declined to stay the case
for abuse, largely because to do so is an exceptional course and it seemed to
him that the alleged unfairness could be cured by the recent developments
which would allow the experts to work together on the transaction logs. The
trial date was adjourned to 21/6/10. The Recorder made it clear that he had
made no finding of fact and he should not be thought of having approved the
Post Office’s responses to disclosure requests. I think the question of costs
was reserved, which was a sign that he was unhappy, at least in part, with the
Post Office responses and had had some sympathy with some of the Defence
complaints.
78. The next hearing was on 7/5/10 before the resident Judge, HHJ Critchlow
(see my attendance note POL00045565). There was a new disclosure
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request on this day in relation to the “central Horizon computer system”. I
remember very little about this request, apart from what is set out in my
attendance note, and have not been provided with a copy. The request had
been drafted by Professor McLachlan who indicated that his new planned
work on this material was likely to take 42 hours. I did not see the relevance of
this disclosure. I told the Defence that I was not prepared to make any further
disclosure and they would have to make a s.8 application. When HHJ
Critchlow was shown the document he stated that the suggested 42 hours
work would be a complete waste of public money. The Defence did not
pursue the matter further. The 21/6 fixture was broken for Keith Hadrill’s
convenience and the new date for trial was fixed of 11/10/10. The Judge
ordered that the experts should compile a schedule of their points of
agreement and disagreement.
79.1 am asked to give an account of the abuse or process application made by
the Defence at trial. On the first day of the trial, 11/10/10, HHJ Stewart gave a
ruling against a stay for abuse of process (at p.24H — p.27A of transcript
UKGI00014994). The application to stay was renewed again, on 18/10/10, at
the end of the Prosecution case, by which stage the jury had heard evidence
from both Professor McLachlan (see paragraph 84 below for the reasons for
the timing of his evidence) and Gareth Jenkins and so the abuse point was
understood by all parties with greater clarity. The second ruling is at transcript
UKGI00014845, p.25B — p.27F. I had little memory of this abuse argument
until I read the trial transcripts that have been provided to me but I can now
piece matters together.
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80. The abuse application was very different from the argument that was heard in
March. It did not relate to any previous disclosure request and it was not in
connection with the 12 months of West Byfleet transaction logs. Gareth
Jenkins in his statement dated 8/10/10 (POL00110275) had given a summary
of the Callendar Square problem, at 2.4.1, and explained why he thought the
symptoms of the Callendar Square problem were not evident at West Byfleet
— there were no calls to the Help Line that matched the obvious symptoms of
the Callendar Square problem and there were no System Events for West
Byfleet from 30/6/05-31/12/09 in which a Callendar Square problem was
visible — see Jenkins’s report (POL00110275) at p.19. Gareth Jenkins had
described the Callendar Square problem in an earlier statement, dated 9/3/10
[POL00001643, at p.12]. Professor McLachlan seemed initially to have
accepted what Mr Jenkins had said in his March statement and seemed to
renew his interest in Callendar Square only shortly before the trial. On the first
day of the trial, as the 2 experts discussed Callendar Square as they worked
together outside court, Mr Jenkins showed Professor McLachlan on his laptop
a peak incident report containing a summary of the Callendar Square
problem. Gareth Jenkins had relied on this peak incident report to describe
the Callendar Square problem in his statements; he was not himself the
author of the peak incident report. Professor McLachlan suggested he wished
to see the underlying material for the peak incident report. That underlying
data was archived but retrievable within a few days.
81.The first abuse argument was set out in a handwritten document which was
read out at transcript UKGI00014994, p.11D and then expanded upon at p.12.
Time was given for the experts to work together to see if they could reach
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agreement but at p.16F-H it can be seen that Professor McLachlan still
wanted the underlying material which was described by Mr Hadrill as
“unavailable”. I pointed out at p.19Gff that the Crown had alerted the Defence
to the Callendar Square issue in the first place and Gareth Jenkins gave an
explanation of the problem in a report dated 8/3/10 which I then summarised. I
explained that the Crown was seeking the material Professor McLachlan had
requested “today”. I pointed out that it was important to remember that the
Callendar Square problem was solved in March 2006, so it could only have, at
the very most, a limited relevance to an indictment period that ended in
January 2008. HHJ Stewart in his ruling stated that he was quite satisfied that
the issue of Callendar Square could be fairly explored in the course of the
trial. If Professor McLachlan remained “of the opinion that his ability to
express a concluded view is hampered by some lack of information which the
prosecution should have supplied, he may express that view in the course of
his evidence...if I conclude that the consequence is that the trial is not and
cannot be fair then I retain the power to order a stay of the proceedings”
(p.26B-D).
82.In his evidence at POL00001856 p.47-48, Professor McLachlan explained
that he had the evidence of the symptoms of the Callendar Square problem
from the peak incident report but that he would wish to go back and verify the
symptoms for himself.
83. The application to stay was renewed again, after the close of the Crown's
case (transcript UKGI00014845 p.20-22). I argued (UKGI00014845 at
p.23Cff) that the Callendar Square issue was essentially irrelevant to the trial.
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Professor McLachlan himself agreed that he had seen no evidence that the
Callendar Square problem existed at West Byfleet at all. I pointed out the
unlikely scenario of the symptoms being misreported in the peak incident
report. The data Professor McLachlan wanted was archived (transcript
UKGI00014845 p.23F) but could be made available in a couple of days.
Instead of pressing for the material, which they could potentially have asked
for long before the trial, the Defence made an abuse application. The Judge
ruled that Callendar Square “issues can most emphatically be dealt with as
part of the trial process and if there is any disadvantage to either party...that
is something which the jury can consider and take into account in deciding
whether or not the prosecution have made them sure that Mrs Misra is guilty
of the offence of theft” (p.25G).
84.1 cannot now remember whether the raw material was finally retrieved.
Professor McLachlan had asked to give evidence early in the trial because he
was making a business trip to South America (POL00029406 p.2A), so he
probably wouldn’t have been in a position to consider the material if it arrived.
In due course it is worth noting that when Mrs Misra gave evidence she did
not suggest for a moment that she had experienced the Callendar Square
symptoms at West Byfleet.
85.1 am asked to provide an account of Fujitsu’s involvement in these
proceedings and explain the involvement of Gareth Jenkins and Penny
Thomas. I cannot help on Penny Thomas. I had no dealings with her. Jon
Longman appears to have liaised with her, and through her with Gareth
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Jenkins, as he attempted to answer the disclosure requests I have previously
outlined above that could only be answered by somebody at Fujitsu.
86.1 am asked to give my view of the appropriateness of Fujitsu employees giving
evidence in a prosecution in which the Defence was attributing deficiencies to
problems with the Horizon IT system. I don’t see anything inappropriate about
Fujitsu employees giving evidence in a trial about Horizon. Some of the
questions raised by Professor McLachlan could only be answered by
someone at Fujitsu and the Professor was actively seeking help from Fujitsu
to see if any of his theories about Horizon, a system of which he had no prior
knowledge, were relevant or simply misunderstandings on his part. If Fujitsu
hadn't been involved we would have had a non-ending cycle of interim reports
containing unevidenced hypotheses.
87.1 am asked whether I considered Gareth Jenkins to be acting as an expert in
the case and, if so, what discussions I had with Mr Jenkins about the role of
an expert and the existence and nature of the duty owed by an expert to the
court.
88.1 did not specifically advise that the Crown should instruct an expert at all, but
it became obvious that having only Jon Longman liaising with Fujitsu in order
to answer complex disclosure requests was untenable. Greater technical
expertise was needed to answer the enquiries raised by Professor
McLachlan’s interim reports. I therefore saw the initial contact with Gareth
Jenkins as a way to fulfil our disclosure obligations, simply because he had
the necessary expertise to answer Professor McLachlan’s questions. It was
soon obvious both that Gareth Jenkins had the necessary expertise to be an
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expert witness and that he and Professor McLachlan should be able to work
together in a cooperative way. It therefore seemed to me that it was entirely
appropriate that we should use Gareth Jenkins as an expert witness: his
evidence would be of assistance to the court; he had relevant expertise; he
seemed to me, from all my dealings with him, to be impartial and able to
provide unbiased, objective evidence on matters within his field of expertise. I
bore in mind that he was an employee of Fujitsu and considered very carefully
whether that presented a conflict of interest that should disbar him from being
an expert witness in the case. It is well established that a potential conflict of
interest does not operate so as to disqualify automatically an expert witness
from giving evidence. The key question is whether the evidence that the
witness gives is impartial. In R v Stubbs [2006] EWCA Crim. 2312 an
employee of HSBC, the loser bank, was permitted to give expert evidence
about the Hexagon system at HSBC, even though it was submitted (see para
41) that “he lacked the necessary independence to be an expert witness, in
particular because of the commercially catastrophic effect of one of HSBC's
employees conceding on oath that the system suffered weaknesses or was
open to attack in various ways. It was argued that the court should not allow
the opinion evidence of such a person in respect of the operation and
reliability of a computer system that he was in effect paid to defend.”
89. The key point where there is a potential conflict of interest is complete
transparency so that the weight of the expert's evidence can be properly
assessed, and that is what I sought to achieve.
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90.1 was aware that Mr Jenkins had not been an expert witness before. I took
9
=
great pains in all my conversations with him to make sure he understood the
duties of an expert witness. I explained that it was his overriding duty to assist
the court by giving an opinion that was objective and unbiased. I explained
that his duty to the court overrode any obligation he might feel to the party
calling him. I explained that it was his duty to disclose anything that might
undermine his opinion. I made it clear that he should be entirely open with
both the Crown and Professor McLachlan about any Horizon problems and
their symptoms which might be relevant to the case.
.It is noteworthy that throughout the trial Professor McLachlan was at pains to
express his gratitude for the expertise and help of Mr Jenkins: see for
example in transcript POL00001856 p.20E, p.47D, p.48B, p.51D, F-G, p.85A
(on Callendar Square), p.111A. All their interactions and the evidence they
gave suggested very strongly to me that they were cooperating in an entirely
fair and open way. I never had any indication that Mr Jenkins might in any
way be failing in his duty as an expert witness. He struck me, throughout all
my dealings with him and from what I saw of him in court, as straightforward,
modest, open-minded and impartial. I appreciate that some very severe
criticisms have been made of Gareth Jenkins since. I can only describe what I
saw of the man and I, at least, have the benefit of having had considerable
face to face dealings with him.
92. It is perhaps important to consider what the Judge said about both experts in
the trial. The Summing-Up deals with the experts at POL00065708 p.61G-
66A. HHJ Stewart described both experts as “experienced and highly
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qualified” (61G). At p.63A the Judge refers to an exchange he had with Mr
Jenkins (which can be seen at POL00029406 p.138G-139A) about whether
his employment status might have affected his evidence: “he (Jenkins)
insisted that that is not the position, and you saw him”. Throughout the trial my
impression was that Gareth Jenkins was genuinely engaged with Professor
McLachlan in a sincere and open examination of Professor McLachlan’s
hypotheses. That was clearly also the Professor's view, as he said repeatedly
in his evidence.
93. In the trial I thought Gareth Jenkins gave fair and thoughtful evidence. A good
example of his appreciation of the role of an expert witness is at
POL00029406 p.124D-F. His answer “I've no way of knowing whether the
money loss was due to theft. I don’t even know that the money was lost” is
scrupulously fair and indicative of the engaging and modest way he gave his
evidence. I obviously cannot comment about Gareth Jenkins outside of the
context of the Misra trial, but it never occurred to me that he was anything
other than impartial. I was fully prepared and considered it my duty, if he and
Professor McLachlan discovered something of significance to help the
Defendant, to review the prosecution.
94. I am asked whether Mr Jenkins’s email POLO00054250 had any effect on my
assessment of Mrs Misra’s defence. Mr Jenkins does raise the same sort of
query as I had been raising long before: “What I still don’t understand is
exactly what it is that the defence is claiming in terms of where exactly
Horizon might have “lost” this money’. I suppose I might have been slightly
reassured that Mr Jenkins was thinking in similar terms to me, that the
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Defendant might be able to give some kind of clue as to where losses were
occurring, but I don’t remember this email having any real effect on my
assessment of Mrs Misra’s defence.
95. I am asked about UKGI00014898, POL00055100, POL00055150 and
POL00055146 which I think concern two different requests by the Defence,
only one of which related to Horizon.
96. The first request concerned an unidentified sub-post office in the Midlands
where according to Professor McLachlan, who had interviewed the person
concerned, the SPM, who wanted to remain anonymous, was suffering
Horizon problems. The full details of Professor McLachlan’s investigation into
that sub-post office are set out in his second interim report, dated 19/11/09,
(POL00094101) at p.11-17. It can be seen that the Professor obtained a great
deal of information from the anonymous SPM. My reaction when I read this
report was surprise that the Professor should go to such trouble to interview
this SPM but not Mrs Misra. The disclosure request POL00058503, at
paragraph 16, appeared to request immunity from criminal investigation for
this Midlands SPM.
97.The second request sought access to the main office at Chesterfield so that,
as I understand it, Professor McLachlan could examine procedures there, in
particular in relation to transaction corrections. This second line of enquiry
didn’t seem to relate to Horizon but rather to human error possibilities at
Chesterfield. Andrew Bayfield gave evidence, amongst other things, about
procedures at Chesterfield in relation to transaction corrections on day 3 of
the trial, 13/10/10 (I have read the transcript of his evidence on the internet;
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transcripts of the whole Misra trial have been readily available on the internet
for some years and my memory of the case would be much poorer without
their assistance). I can see from the documents, which I list at the beginning
of paragraph 95, that access was requested and refused in fairly robust terms
on both sides. I seem to have provided telephone advice to Jarnail Singh on
this topic on 28/7/10 (POL00055118).The Defence was told (in
POL00055146) that they could pursue this request by as.8 application, a
course they did not follow.
98.1 am asked about my view of the outcome of the case at the time. At the time
of the trial I believed that Mrs Misra had had a fair trial. I wasn’t surprised by
the verdict, but I also would not have been surprised by an acquittal. I thought
the jury had been given a very full understanding of the issues in the case.
They had been assisted by nearly 2 full days of expert evidence from experts
who seemed to be working well together. Professor McLachlan graciously
conceded theoretical hypotheses, where he accepted they could be shown by
evidence to be without foundation; but he was also firm and clear where he
thought there were areas of doubt and the real risk of a computer problem.
Mrs Misra gave a full account in evidence. I hope I cross-examined fairly and I
hope that my speeches were fair — they are all set out in the transcripts, so
others can judge. I did not seek to hide behind the mantra that Horizon was
“robust”. I argued that point on the evidence. I did not suggest that the system
was infallible and I conceded that all computer systems can have glitches,
which is a matter of common sense and human experience — one only has to
look at the recent problem with air traffic control. The Summing-Up was
detailed and fair. I hope it is not unfair to point out that there were several
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difficulties for the Defence to confront from the evidence: Mrs Misra’s
successor, Mr Varsani, had suffered no significant problem with the same
Horizon equipment; Andrew Dunks gave evidence about Help Line calls —
there were none suggestive of a Horizon problem consistent with the degree
of false accounting employed by Mrs Misra; there were significant omissions
from her PACE interview — no mention of her problems using Horizon about
which she gave evidence, no mention of the problems her trainers had
apparently witnessed, no mention that her losses began right at the start with
her trainers present, no mention that she had told her area manager, Timiko
Springer, about thefts by her staff; Mrs Misra claimed to have been
incompetent in her handling of Horizon, yet was able to falsify her accounts by
sophisticated means. On the other hand there were plenty of good defence
points that can be seen in the transcript of Mr Hadrill’s closing speech. I
thought the trial was fair and matters fairly left to the jury.
99.1 am asked to reflect about the trial now, particularly in the light of the
Hamilton judgment. I have thought about this case for many years; that is why
I remember it much better than other more recent cases. I don’t pretend that I
have come to any clear conclusions. I am very troubled by the case and to an
extent confused.
100. I am particularly concerned when I read paragraph 206 of Hamilton &
others. This refers, I think, to a communication about a specific bug very
shortly before the Misra trial. I was asked in the disclosure exercise for the
Hamilton appeal about an email (I think, or possibly a memo) relating to the
RPM bug and whether I had seen the email/memo. I said I had not seen the
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document before, which is true. I have not been provided with that document
by the Inquiry and I have not seen it since I was asked the question. I have
had to rely simply on the summary of the position in the Hamilton judgment at
paragraph 206. If I had seen that email/memo at the time of the Misra trial I
would have insisted on its disclosure and I would also have required a
rigorous enquiry into the question of any other bugs, because I would have
feared that the clear instruction I had given in my written Advice
(POL00044557), at paragraph 7, had not in fact been followed. I don’t pretend
to understand the reason why I did not see this email/memo. It ought to have
been very clear from my Advice, and, I think, everything I said in the case,
that I needed to know about computer problems and bugs and that they would
need to be disclosed. This RPM bug didn't affect Legacy Horizon, so strictly
speaking it could not have affected Mrs Misra’s case, but, quite frankly, that is
beside the point.
101. I have dealt elsewhere in this statement with the reasons for the
chosen span of ARQ data. I accept the criticisms made at Hamilton & others
paragraphs 91 (i), 131 and 207. The Court of Appeal, looking at the full history
of Horizon disclosure failings, has rightly concluded that Mrs Misra did not
have a fair trial. That is exactly the opposite of what I wished to achieve.
Prosecution of Susan Rudkin
102. I had little involvement with this case and only covered the confiscation
hearing on 19/8/09. The guilty plea in the Magistrates and the sentence in the
Crown Court had been dealt with by a solicitor advocate, John Dove
(POL00051231 and POL00051380) who was unavailable for confiscation, so
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Counsel was instructed for that. Counsel instructed was Henrietta Paget (now
KC). On the backsheet (POL00052094) her handwriting appears above my
handwritten endorsement for 19/8/09. It can be seen that she read the papers
and sent advisory emails. There is reference to the advice about confiscation
given by Miss Paget (dated 17/9/09 on POL00057602). It appears that she
gave sensible advice that the amount to be sought in confiscation could be no
more than the loss; no order could be attached to the turnover of the business
(see POL00057602, entry for 17/8/09).
103. When I appeared on the case the confiscation order was agreed in the
sum of £35,894.15, the Defendant having already repaid some of the loss.
Apart from this information that I have gleaned from the documents I cannot
assist further about this case. I have no recollection of the case independent
of the documents and I do not seem to have provided any advice.
General
104. Finally, I am asked whether there are any further matters that I wish to
bring to the attention of the Chair of the Inquiry. I have dealt, fully I hope, with
the cases of Mrs Misra and Mr Page, and apologise for having little or no
recollection of Mrs Rudkin's case. Otherwise, in these cases, indeed in all
cases where I am instructed, I strived to do the best job possible while
following the conduct rules set out in all the relevant guidelines. I am proud of
my role as a barrister in the criminal justice system and am extremely sorry
that I played an unwitting role in Seema Misra and Carl Page having unfair
trials. I am particularly conscious that in Mrs Misra’s case I was Prosecution
Counsel at the head of a difficult disclosure exercise that failed. Over the
Page 56 of 61
WITNO09610100
WITNO9610100
years, as I have watched and tried to learn from all the Horizon cases, I have
thought repeatedly about whether there was something different I could have
done, whether I should have asked more or different questions, whether I
should have insisted on an independent expert. I cannot see how Professor
McLachlan could have worked without considerable assistance from Fujitsu
and someone like Gareth Jenkins, but perhaps there should have been the
extra precaution of an independent expert on the Prosecution side. I have
tried to set out in this statement a full account of both the Page and Misra
cases, the decisions I made and the reasons for those decisions, so that the
Inquiry can see what happened at the time and judge for itself what went
wrong and what lessons can be learned. I will obviously assist in any way I
can.
Statement of Truth
I believe the content of this statement to be true.
Dated: 25/10/23
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Index to First Witness Statement of Warwick Henry Patrick Tatford
No. I URN Document Description Control
Number
1 I POL00067005 I Carl Page case study: Evidence of Karl I POL-0063484
Adrien Page (R v Page and another)
before Judge W Wood
2 I POLO0066717 I Carl Page case study: Counsel for the POL-0063196
Prosecution's revised opening note to
jury in the re-trial of Carl Page
3 I POLO0045921 I Letter from DC Deans to Staffordshire POL-0042400
police regarding John Whitehouse dated
7/5/2003.
4 I POL00045867 Expert Accountant's Report of David POL-0042346
Liddell In the Crown Court at Dudley -R
v Carl Adrian Page
5 I POL00045868 R v Carl Adrian Page, Expert POL-0042347
Accountant's Report of David Liddell
6 I POL00061214 I Between Regina and Carl Adrian Page POL-0057693
Report to the Court prepared by T
Taylor, a Director in KPMG LLP.
7 I UKGI00012306 I Carl Page case study: Regina and Carl UKGI023102-
Adrian Page Defence Statement 001
8 I POLO0044585 I Seema Misra case study - Instructions to I POL-0041064
counsel to settle indictment and advise
on evidence and brief for the prosecution
in The Queen v Seema Misra
9 I POL00044613 I Summary of facts (POL v Seema Misra) I POL-0041092
10 I POLO0045010 I POL v Seema Misra - Schedule of POL-0041489
Charges
11 I POL00045220 I Schedule of charges - Post Office POL-0041699
Limited v Susan Jane Rudkin
12 I POL00050750 I Schedule of Non-sensitive unused POL-0047229
material, R v Seema Misra
13 I POLO0050751 Schedule of sensitive material, R v POL-0047230
Seema Misra
14 I POL00044541 POL Investigation Report for Seema POL-0041020
Misra (POLTD/0708/ 0249)
15 I POLO0051092 I Email from Warwick Tatford to Jarnail A I POL-0047571
Singh Re Indictment for Misra
16 I POLO0051149 I Indictment - R v Seema Misra POL-0047628
17 I POL00051539 I Seema Misra Case Study - Email from POL-0048018
Warwick Tatford to Phil Taylor re Seema
Misra Guildford Crown Court Trail - W/L
1st -12th June 2009.
Page 58 of 61
18
POL00051441
Letter from Phil Taylor to Mr Warwick
Tatford. Re: Counsel's advice on criminal
prosecution of Seema Misra for theft
WITNO09610100
WITNO9610100
POL-0047920
19
POL00051586
Email from Phil Taylor to Marilyn
Benjamin to Warwick Tatford RE:
REGINA v SEEMA MISRA GUILDFORD
CROWN COURT TRIAL - W/L 1ST -
12TH JUNE 2009 CASE NO:
POLTD/0708/0249
POL-0048065
20
POL00051773
Seema Misra Case Study: Attendance
Note by Jarnail Singh re: Seema Misra at
Guildford Crown
Court(CRM/258932/JSX)
POL-0048252
21
UKGI00014845
Regina v Seema Misra, before his
Honour Judge N.A.Stewart proceedings
on Monday 18th October 2010 day 6
UKG1I025638-
001
22
POL00001856
Transcript of Proceedings Day 5 In the
Crown Court at Guilford Before His
Honour Judge N. A. Stewart for Regina v
Seema Misra.
VIS00002870
23
WITNO9610101
Email from Warwick Tatford to Marylin
Benjamin re R v Gurdeep Singh Dale,
attaching Misra Disclosure Schedule
WITNO0961010
1
24
WITNO9610102
Schedule of documents reviewed by
Warwick Tatford to advise on disclosure
in Misra
WITNO961010
2
25
POL00093689
Exhibit SM3 for R v Seema Misra Case
at Guildford Crown Court. Expert report
on Horizon.
POL-0093811
26
POL00044557
Advice on requests for disclosure in
Seema Misra case
POL-0041036
27
POL00065708
Judgment re: HIS HONOUR JUDGE N.A
STEWARD REGINA -v- SEEMA MISRA
19/10/2010.
POL-0062187
28
POL00058503
Email from Warwick Tatford to John
Longman, Re: Misra further disclosure
request from the defence.
POL-0054982
29
POL00053723
Email from Jarnail Singh to Warwick
Tatford incl em chain from Mark Dinsdale
to Rob Wilson re: advice requested on
disclosure request in MISRA case
POL-0050202
30
POL00053646
Seema Misra Case study: Further
Request for Disclosure - R v Seema
Misra
POL-0050125
Page 59 of 61
31
POL00053746
Seema Misra case study - Letter from
Jarnail Singh to Coomber Rich Solicitors,
RE: R v Seema Misra, Guildford Crown
Court, Trial 15 March 2010
WITNO09610100
WITNO9610100
POL-0050225
32
POL00044553
Letter Jarnail to Singh to Seema Misra's
lawyers regarding Regina v Seema
Misra Guilford crown court
POL-0041032
33
POL00053849
Attendance note from Jarnail Singh for
Seema Misra dated 27/01/10.
POL-0050328
34
WITNO09610103
Email from Warwick Tatford to Fiona
Butler, Coomber Rich, attaching
response to s.8 request in Misra
WITNO961010
3
35
WITNO9610104
R v Seema Misra - Response to s.8
Disclosure Application
WITNO961010
4
36
UKGI00014903
Seema Misra case study: Court
Attendance Note from Jarnail Singh re
Seema Misra for Mention dated
01/02/10, updated 03/02/2010
UKGI025696-
001
37
POL00054162
Email from Jarnail Singh to Warwick
Tatford re Seema Misra Guildford Crown
Court - response to Defence's third
disclosure request dated 22/02/10.
POL-0050641
38
POL00054248
Memo from Issy Hogg to Jarnail A Singh
re. Regina v Seema Misra Guildford
Crown Court Trial - 15th March 2010
regarding disclosure and application to
stay count 1
POL-0050727
39
POL00053954
Letter from J McFarlane to the Clerk of
Warwick Tatford Re Regina v Seema
Misra
POL-0050433
40
POL00054275
Notification of Fixture of Hearing re
abuse of process application at Guildford
Crown Court on 10th March 2010 -
Seema Misra
POL-0050754
41
POL00054346
Seema Misra Case Study: Response to
Defence Abuse Skeleton by Warwick
Tatford - (R v Seema Misra)
POL-0050825
42
POL00045565
Regina Misra attendance note for the
case listed on 7/5/2010
POL-0042044
43
UKGI00014994
Seema Misra case study: Record of
proceedings in the matter between
Regina and Seema Misra in the Guilford
Crown Court (T20090070) on
11/10/2020 (Day 1)
UKG1I025787-
001
44
POL00110275
Witness Statement of Gareth Idris
Jenkins Version 3.0 11/02
POL-0108082
Page 60 of 61
45
POL00029406
Tape transcript of R v Seema Misra Trial
in Guildford Crown Court, 14 October
2010 - Evidence of Gareth Jenkins
WITNO09610100
WITNO9610100
POL-0025888
46
POL00054250
Email from Jarnail A Singh to Post Office
Security, copied to John Longman and
Warwick Tatford re. Regina v Seema
Misra enclosing expert reports
POL-0050729
47
UKGI00014898
Seema Misra case study: Email from
Jarnail A Singh, Andrew Winn, Marilyn
Benjamin and others re:
UKGI025691-
001
48
POL00055100
Emails between John Longman, Jarnail
A Singh and others, re. Regina V Seema
Misra - Guilford Crown Court - Trial
POL-0051579
49
POL00055150
Email from John Longman to Jarnail A
Singh, Re: West Byfleet-Misra
POL-0051629
50
POL00055146
Letter from Jamail Singh to Jon
Longman, Re: Regina v Seema Misra
Guildford Crown Court Trial Case No:
POLTD/07/08/0249
POL-0051625
51
POL00094101
Final version of the 2nd Interim
Technical Expert's Report
POL-0094223
52
POL00055118
Attendance Note re Seema Misra - Case
No CRM/258932/JSX dated 28/07/10.
POL-0051597
53
POL00051231
Susan Rudkin case study: Letter from
John Dove to Jarnail Singh re mags
hearing - guilty plea
POL-0047710
54
POL00051380
Susan Rudkin case study: Memo from
Rob Wilson to Fraud Team cc Mike
Wilcox, Ged Harbinson and Press Office
re: R v Susan Jane RUDKIN - report on
final result
POL-0047859
55
POL00052094
STAFFORD CROWN COURT -
CONFISCATION HEARING - 21st
AUGUST 2009, THE QUEEN v SUSAN
JANE RUDKIN, BRIEF TO COUNSEL
FOR THE PROSECUTION
POL-0048573
56
POL00057602
Financial Investigation Events Log,
POLTD/0809/0101 Susan Rudkin
POL-0054081
Page 61 of 61