1 Thursday, 5 October 2023 2 (10.00 am) 3 MR BEER: Good morning, sir. Can you see and hear 4 me? 5 SIR WYN WILLIAMS: Yes, I can. Thank you. 6 MR BEER: With your leave, may I call Duncan 7 Atkinson KC, please. 8 SIR WYN WILLIAMS: Of course, yeah. 9 RICHARD DUNCAN ATKINSON KC (sworn) 10 Questioned by MR BEER 11 MR BEER: Good morning, Mr Atkinson. As you know, 12 my name is Jason Beer and I ask questions on 13 behalf of the Inquiry. Can you give us your 14 full name, please? 15 A. My full name is Richard Duncan Atkinson but 16 I answer to the name of Duncan. 17 Q. Thank you. You've been instructed by the 18 Inquiry as an independent expert to assist the 19 Inquiry -- and this is a very high level summary 20 of the tasks -- as to the law and practice of 21 the conduct of investigations and prosecutions 22 by a private investigator or prosecutor between 23 the years 2000 and 2013 and the compliance or 24 not of the Post Office with that law and 25 practice in some of the investigations that it 1 1 undertook and the prosecutions that it initiated 2 and pursued in those years; is that right? 3 A. Yes. 4 Q. You have, I think, at the Inquiry's request, 5 divided your task into two parts: the first part 6 concerns the legal framework for investigation 7 and prosecution, both in the Post Office and 8 more broadly, and the framework relating to the 9 responsibilities of prosecuting authorities, 10 investigators, charging decisions, prosecutions, 11 expert evidence and disclosure. 12 A. Yes. 13 Q. That concerns consideration of the applicable 14 statutory provisions, the codes of practice 15 issued under statute, guidelines, guidance, case 16 law and other material from a range of sources, 17 and then consideration of the policy documents 18 and guidance issued by the Post Office? 19 A. Yes. 20 Q. The second part of your task is to assess how 21 the framework that you have so outlined was in 22 fact applied by the Post Office in specific 23 investigations and prosecutions by reference to 24 specific cases? 25 A. Yes, and I should say that I have moved beyond 2 1 the work I'd done at the time. I prepared this 2 report with a view to completing Part 2 but 3 I have not yet completed Part 2. 4 Q. I understand. Now, the first part of your task, 5 that's addressed in volumes 1 and 1A of your 6 report; is that right? 7 A. Yes. 8 Q. Can we look at those, please. Volume 1 is -- it 9 will come up on the screen for you and I think 10 you've got a hard copy there -- 11 A. I have. 12 Q. -- EXPG0000002. Is that the first page of 13 Volume 1 of your report? 14 A. Yes, it is. 15 Q. I think it runs to 181 pages including 16 appendices? 17 A. I'm afraid so. 18 Q. That report addresses all issues of the Part 1 19 task, apart from expert evidence; is that right? 20 A. Yes. 21 Q. Are the contents of this report true to the best 22 of your knowledge and belief? 23 A. Yes. 24 Q. Can we turn, please, to page 167. You should 25 find there Appendix 1 -- 3 1 A. Yes. 2 Q. -- which contains an expert's declaration. I'm 3 not going to ask you to read it all out now but 4 if the operator can just scroll through, please, 5 we'll see 11 paragraphs of a declaration, it 6 goes over the page. Are the declarations you 7 make on those two pages correct? 8 A. Yes. 9 Q. Thank you. Can we turn to volume 1A, please, 10 which is EXPG0000003. 11 Is this the front page of follow 1A of your 12 report? 13 A. Yes, it is. 14 Q. I think, with appendices, that is 15 pages long. 15 Are the contents of that report true to the best 16 of your knowledge and belief? 17 A. Yes, they are. 18 Q. Do the expert witness declarations that we've 19 just seen, the 11 declarations, apply equally to 20 this report too? 21 A. Yes, they do. 22 Q. Thank you very much. I think you are to provide 23 the Inquiry with a Volume 2 report reflecting 24 your opinion on Part 2 of your instructions and 25 you're to return to the Inquiry later this year, 4 1 in December, to provide further oral evidence; 2 is that right? 3 A. Yes, that's right. 4 Q. I think it's right however, as you've just said, 5 that you've now already reviewed a quantity of 6 the material that's relevant to your Volume 2 7 report, and has that assisted you in 8 understanding and giving an opinion on the 9 issues raised in the two reports that we're 10 considering today? 11 A. Yes, it has. 12 Q. Can I start then, please, with your background 13 and experience. Your CV is set out in 14 Appendix 2 to your Volume 1 report. It's 15 page 169 through to 171 for the transcript but 16 can I summarise it, and tell me whether you 17 agree or disagree, certainly the key elements of 18 it. You were called to the Bar in 1995 and took 19 silk in 2015; is that right? 20 A. (No audible response) 21 Q. You were Treasury Counsel between 2009 and 22 2022 -- 23 A. Yes. 24 Q. -- including a period of Senior Treasury Counsel 25 from 2015? 5 1 A. Yes. 2 Q. You are a specialist criminal practitioner with 3 elements of your practice involving both public 4 law and public inquiry work? 5 A. Yes. 6 Q. Have you regularly prosecuted for the Crown 7 Prosecution Service? 8 A. Yes. 9 Q. But also the Health and Safety Executive -- 10 A. Yes. 11 Q. -- the Serious Fraud Office, the SFO -- 12 A. Yes. 13 Q. -- and the Environment Agency? 14 A. Yes. 15 Q. Have you ever been instructed by Post Office 16 Limited? 17 A. No. 18 Q. Do you have any direct experience of private 19 prosecutions during what I'm going to call the 20 relevant period, which is 2000 to 2013? 21 A. Yes. 22 Q. Is that as prosecuting counsel or defence 23 counsel or both? 24 A. Both. 25 Q. I think you are widely published but, amongst 6 1 those publications that are significant and 2 relevant for our purposes, are you a co-author 3 of Blackstone's Guide to the Criminal Procedure 4 Rules, an OUP publication? 5 A. Yes. 6 Q. Also are you a contributor to Blackstone's 7 Criminal Practice also by Oxford University 8 Press? 9 A. Yes, the latter in a more up-to-date way than 10 the former. 11 Q. Thank you. I've already set out at a high level 12 the nature of your instructions. Can we look at 13 your Volume 1 report at page 5, please. That's 14 EXPG0000002 at page 5. This sets out, in 15 slightly more detail, the issues that you were 16 asked to consider and they were divided in broad 17 terms between issues relating to investigations, 18 on the one hand, and prosecution on the other; 19 is that right? 20 A. Yes, that's right. 21 Q. "In relation to investigation [you were asked: 22 "Whether any special difficulties arise, 23 where the same body is the victim, a witness, 24 the investigator and the prosecutor and, if so, 25 what should be done to ensure independence of 7 1 decision making", and you address that in your 2 report? 3 A. Yes, I do. 4 Q. You were asked to address: 5 "The terms, and adequacy, of [the Post 6 Office's] policy documents concerning the 7 conduct of investigations ..." 8 You addressed that in your report? 9 A. Yes. 10 Q. You were asked to consider: 11 "The duties of an investigator to pursue 12 a reasonable line of enquiry (generally, and 13 also where a person positively asserts that they 14 believed the problems they had experienced, 15 (accounting shortfalls at their Horizon 16 terminals) might lie with the computer system)." 17 A. Yes, that's right. 18 Q. Then, in relation to the second half broadly, 19 you were asked to address, under the heading of 20 "Prosecutions", charging decisions, including 21 the test that the prosecutor applied or ought to 22 have applied, including an analysis of Post 23 Office, prosecutorial guidance and policy and 24 any policy decisions made in relation to 25 prosecutions based on Horizon evidence. 8 1 A. Yes. 2 Q. You address that in your report. 3 A. (The witness nodded) 4 Q. The evidence that the prosecutor reviewed when 5 making a charging decision or which they ought 6 to have reviewed; the extent to which the 7 charging decisions appear to be thorough and 8 conscientious; the approach said to have been 9 undertaken of charging theft and false 10 accounting; and your attention was drawn to the 11 decision of the Court of Appeal in Eden in which 12 the practice of the Post Office charging both 13 theft and false accounting received judicial 14 disapproval. 15 You were asked to address how proceedings 16 were commenced by the application for the issue 17 of a summons in the Magistrates Court and the 18 existence of a duty of candour when applying for 19 such a summons. 20 A. In relation to that and, indeed, in relation to 21 3A(ii)(3) and to an extent (4), what I've looked 22 at for the purposes of this report is what there 23 is in policy terms and in terms of why the 24 guidance in relation to those issues, what 25 evidence was actually reviewed. The 9 1 thoroughness or otherwise of actual charging 2 decisions, and so on, is a Volume 2 matter 3 rather than for now. 4 Q. Yes. You were asked to, under this heading, 5 consider thirdly "Disclosure": 6 "Whether there was a "disclosure officer" 7 (as would exist in a prosecution conducted under 8 the CPIA), or equivalent (and, if not, any 9 difficulties that this created) ..." 10 Again, is that something of a mixed -- 11 A. Yes, it is. 12 Q. -- issue, in that in this report or in these 13 reports you've considered whether there was 14 policy relating to that issue. In your Volume 2 15 report, you'll address the position on the 16 ground? 17 A. Absolutely. 18 Q. Under this heading you were asked to consider 19 whether prosecutors reviewed the adequacy of 20 disclosure. Again, mixed question in this 21 report; you consider whether policy documents 22 required them to? 23 A. Yes, or equipped them to. 24 Q. The extent, lastly, under this subheading, of 25 the duty of cross disclosure, ie where an issue 10 1 arises in case A, there is a duty to give 2 disclosure of it in cases B, C and D, et cetera. 3 You address that in this report? 4 A. To an extent but I think that's more a question 5 for Volume 2. 6 Q. Lastly, prosecutorial practice: 7 "The practice said to have been undertaken 8 of 'plea bargaining' (ie offering no evidence on 9 a count of theft in return for a plea on a count 10 of false accounting)." 11 Lastly: 12 "The relevance of the approach taken to 13 reliance on Horizon data to the repeal of 14 [Section 69] of the Police and Criminal Evidence 15 Act 1984 by the Youth and Criminal Evidence Act 16 1999." 17 A. Yes. 18 Q. That can come down, thank you. I think you were 19 provided with a very large volume of material; 20 is that right? 21 A. Yes. 22 Q. That's listed in Appendix 3 to your report. 23 There's no need to turn it up. For the 24 transcript, it's pages 173 to 179 of the 25 transcript. Did you yourself additionally refer 11 1 to a large volume of publicly available 2 material? 3 A. Yes, in the versions that I was able to obtain. 4 Q. More of which later? 5 A. Yes. 6 Q. So, in your Volume 1 and 1A reports, you 7 cross-refer to publicly available material by 8 way of hyperlinks that are embedded in your 9 report -- 10 A. Yes. 11 Q. -- so the reader can click through and read 12 them, to or by footnotes -- 13 A. Yes. 14 Q. -- in your Volume 1 and 1A reports. Is all of 15 that material listed in Appendix 3, Part 2 -- 16 A. Yes. 17 Q. -- of your Volume 1 report. That's pages 179 to 18 181, for the transcript. 19 Were you additionally provided with 20 a quantity of material emanating from the Post 21 Office, consisting of, in broad terms, policies, 22 guidelines and guidance. 23 A. Yes, at various stages while I was working on 24 the report and since. 25 Q. Were you provided more recently with a report 12 1 commissioned by the Post Office Limited and 2 written by Jonathan Laidlaw King's Counsel? 3 A. Yes, I was. 4 Q. And also provided with a substantial body of the 5 material that was referred to in his report? 6 A. Yes. 7 Q. I think you were assisted in the assimilation of 8 material and the compilation of your volume 1 9 and 1A reports by Catherine Brown? 10 A. Yes, I was. 11 Q. A barrister in your chambers -- 12 A. Yes. 13 Q. -- I think, whose CV is set out on pages 171 and 14 172 of your Volume 1 report. But are the 15 opinions that you give in the report, and those 16 that you're able to give today, your own? 17 A. Yes, they are. 18 Q. Thank you. Can we start, please, by looking at 19 Volume 1 of the report, EXPG0000002, and look, 20 please, at page 4. At paragraph 2.1, if we 21 scroll down, you say: 22 "I am asked to address the following 23 questions in this report: 24 "An explanation of the law and practice of 25 the conduct of investigations and prosecutions 13 1 by a private investigator/prosecutor between 2 2000 and 2013 (focusing on the application or 3 non-application (as the case may be) of", and 4 then a series of statutes and other instruments. 5 A. Yes. 6 Q. Would you agree that a private prosecution is 7 a prosecution started by a private individual or 8 a private entity which is not acting on behalf 9 of the police or some other prosecuting 10 authority? 11 A. Certainly not acting on behalf of the police. 12 I think it slightly depends on your definition 13 of the authority as to whether it is a private 14 prosecution truly ascribed or not. 15 Q. Would a way of describing a "prosecuting 16 authority", in inverted commas, include 17 an entity which has a statutory power to 18 prosecute? 19 A. Yes. 20 Q. But it could extend beyond that? 21 A. Yes. 22 Q. So it includes but not limited -- 23 A. Absolutely, yes. 24 Q. -- to such an entity. So would the classic 25 example of a public prosecutor be the Crown 14 1 Prosecution Service, the CPS? 2 A. Yes. 3 Q. In that circumstance, it acts on behalf of or 4 prosecutes for the Police Service? 5 A. Amongst others, by reference to the Prosecution 6 of Offences Act, which sets out its statutory 7 position. 8 Q. And there are a large number of other bodies 9 that it prosecutes for? 10 A. Yes. Which are listed in, I think, Section 3 of 11 that Act. 12 Q. You identify in paragraph 34 of your report -- 13 there's no need to turn it up -- other entities 14 with the statutory power to prosecute during the 15 relevant period covered by your report, those 13 16 or so years, including the SFO, the Serious 17 Fraud Office, or the Director of the SFO, the 18 Department of Work and Pensions the Health and 19 Safety Executive and the Environment Agency. 20 Would you agree that those entities are public, 21 rather than private prosecutors? 22 A. They're, in some respects, something of 23 a hybrid, certainly on the basis to the approach 24 that the Court of Appeal and House of Lords have 25 taken to it. Sometimes they have treated them 15 1 as being public and sometimes private but with 2 a statutory basis for their activities. 3 Q. In what context have they approached that 4 hybrid -- 5 A. Looking at the -- usually, in the context of 6 a challenge to a decision either to prosecute or 7 not to prosecute, as to the extent to which they 8 were required to apply, for example, the Code 9 for Crown Prosecutors and, if not, what test 10 they were meant to apply. 11 Q. So is your answer to the question it is too 12 simplistic to put a label on them of "public 13 prosecutor" or "private prosecutor"? 14 A. Yes. 15 Q. Did you consider, for the purposes of your 16 report, the policy and practice of any other 17 classically private prosecutor, other than the 18 Post Office? 19 A. I think, on the definition I've just given, 20 clearly I looked at a number of agencies that 21 did prosecute but which did not have the 22 Prosecution of Offences Act as their bedrock for 23 doing so, like the Environment Agency, for 24 example, but in terms of an organisation, for 25 example, a supermarket chain that prosecutes 16 1 theft itself or organisations of that sort, no, 2 I didn't look at their practice. 3 Q. So you looked at some that might or have been 4 described as "hybrid" -- 5 A. Yes. 6 Q. -- including the Environment Agency? 7 A. Yes, and the Department of Work and Pensions is 8 arguably another example of that. It has 9 a statutory basis for what it does but it's not 10 a police-related prosecuting organisation. 11 Q. So for the purposes of these two reports, you've 12 looked at their policy, as opposed to their 13 on-the-ground practice? 14 A. I've looked at their practice, insofar as that 15 is identified by their policies, and their 16 recognition in those policies of what statutory 17 requirements applied to them, rather than, as 18 you say, looking at how they actually made 19 decisions on the ground. 20 Q. You're proposing to examine the practice of the 21 Post Office, in fact, between the years 2000 and 22 2013 in your volume 2 report? 23 A. Yes. 24 Q. But you're not proposing to -- because it's 25 an exercise, I don't think, that could 17 1 realistically be done -- compare that to the 2 practice of other truly private or hybrid 3 private prosecutors in that 13-year period? 4 A. No, I took my instruction for the purposes of 5 this volume -- so far as I was looking at 6 practice as well as law -- was to look at the 7 policy position in relation to the Post Office 8 and, where I could obtain it, other agencies, to 9 see what that told me about their practice but, 10 so far as the Post Office practice is concerned, 11 that is very much Volume 2. 12 Q. Thank you very much. In terms of the relevant 13 period, if we can look, please, at page 7 of 14 your Volume 1 report. Look at paragraph 6. You 15 say that you have: 16 "... endeavoured, with the assistance of 17 Catherine Brown and the Inquiry Secretariat, to 18 obtain the versions of statutory provisions, 19 codes of practice issued under statute, 20 guidelines and guidance, case law and other 21 relevant material that had application during 22 the period from 2000 to 2013. It has not always 23 been possible to do so with certainty as to 24 completeness. I have made clear that which 25 I have seen. I am not conscious of having been 18 1 deprived of access to any material necessary for 2 me to reach the conclusions I have set out 3 below. If further material is identified, I am 4 happy to consider it and, if necessary, address 5 it in an addendum to this report." 6 So you're making the point there, 7 essentially by way of caveat, that you have used 8 every endeavour to find the iterations of the 9 guidelines and guidance and other material that 10 was applicable in the relevant period but have 11 not always succeeded? 12 A. No, and an example of that is the Code for Crown 13 Prosecutors because it is available on the CPS 14 website. It is available on that website in its 15 present form. I was and I am conscious that 16 that's a code that has evolved over time but it 17 was only, I'm afraid, quite recently that it 18 occurred to me where, in the back of 19 Blackstone's, of all places, to find earlier 20 versions. And so at the time I wrote Volume 1, 21 I was looking at the 8th Edition, as I make 22 clear, rather than earlier versions. 23 Q. We'll come to it in due course but the Code for 24 Crown Prosecutors, 8th Edition, I think, was 25 dated October 2018? 19 1 A. Yes. 2 Q. You have helpfully found for us two earlier 3 iterations, if we can just show those on the 4 screen, so everyone has got the references, 5 please. RLIT0000171. Is that a copy of the 6 2009 edition of the Code for Crown Prosecutors. 7 A. It's the 2009 Blackstone's and, therefore, the 8 2004 Code for Crown Prosecutors, the 5th 9 Edition. 10 Q. Thank you for that correction, so 2004, in the 11 2009 edition of Blackstone's? 12 A. Yes. 13 Q. Then, equally, if we can look at RLIT0000170. 14 Is that the edition that was in the 2012 15 Blackstone's? 16 A. Yes, which is the 6th Edition, the 2010 version 17 of the Code. 18 Q. Thank you very much. We'll come later to 19 whether there are any material differences to 20 the opinions that you give by looking at these 21 back issues of the Code within the relevant 22 period? 23 A. Yes. 24 Q. Thank you. That can come down. 25 Just looking at other comparators still, 20 1 that excursion into back issues over, as far as 2 the DWP, the HSE -- the Health and Safety 3 Executive -- and the Environment Agency are 4 concerned, you, I think, have only had sight of 5 their more recent policies; is that right? 6 A. Yes, that's right. 7 Q. As opposed to all of the back issues that would 8 have been operative in the years 2000 to 2013; 9 is that right? 10 A. Yes, for the same reason that that is what was 11 available on their website. 12 Q. So that's a limitation -- is this right -- in 13 that you can't make a direct comparison to the 14 actual policies that were in place or may have 15 been in place in those institutions throughout 16 the entirety of the 13-year period? 17 A. No, that's right. 18 Q. Your instructions required you to consider both 19 the law and the practice of a private prosecutor 20 during the relevant period and -- would this be 21 fair -- you focused in your report primarily on 22 the Crown Prosecution Service as a comparator? 23 A. Yes. 24 Q. Would it be the case that any comparison between 25 the practice of the Crown Prosecution Service 21 1 and the practice of the Post Office would have 2 to be based on the actual practice of the Crown 3 Prosecution Service during the relevant period, 4 rather than just its written guidance and 5 policies, or is there a value in the exercise 6 that you have nonetheless performed? 7 A. It seemed to me that because, for the purposes 8 of Volume 1, I was looking at that which was on 9 paper, effectively -- so what the law was but 10 also how that had been addressed by prosecuting 11 agencies -- that there was a valid comparison 12 between looking at how different prosecuting 13 agencies approached the same challenges in 14 practice. Clearly, one could then go on to look 15 at how well or otherwise those issues were 16 addressed in practice by different prosecuting 17 agencies. It seemed to me from my instructions 18 that really, at that stage, I was being asked to 19 focus on the Post Office, rather than to carry 20 out an audit of how well or otherwise other 21 prosecuting agencies did -- 22 Q. Yes. 23 A. -- in that period. 24 Q. So you weren't asked to audit for a decade and 25 a half, whether the CPS across the country in 22 1 fact complied with its written policies? 2 A. No, and I'm aware that there are inspectorate 3 reports, for example, in relation to the Crown 4 Prosecution Service because it does audit its 5 activities in that way. I wasn't asked to and 6 I haven't looked at those for that reason. 7 Q. Is that by a CPS Inspectorate? 8 A. Yes. 9 Q. Is there, to your knowledge, any equivalent of 10 such an inspectorate for Post Office Limited? 11 A. Not that I've seen, no. 12 Q. Okay, can we turn then to some general questions 13 before we get into the detail. Would you agree 14 that the supervision of the investigation of 15 criminal offences and the supervision of the 16 instigation and conduct of criminal proceedings 17 is immensely important? 18 A. Yes. 19 Q. Is that because it's important to ensure that 20 the application of the criminal law to 21 individual citizens is not oppressive, 22 unjustified or misconceived but is, instead, 23 fair and reasonable? 24 A. Yes, and consistent. 25 Q. Can we turn, please, to page 7 of your first 23 1 report, please? 2 Look at paragraph 8, at the foot of the 3 page. You helpfully give us an overview of your 4 conclusions at the beginning of your report and 5 then there is a very substantial section at the 6 end of your report setting out your detailed 7 conclusions. 8 A. Yes, that's right. 9 Q. If we can start, please, with an overview of 10 your conclusions to let us know where we're 11 heading. You tell us in this paragraph that, 12 throughout the relevant period and indeed for 13 a significant period before that: 14 "... there had been a network of statutory 15 requirements, regulation provided through Codes 16 of Conduct issued under statute, and other forms 17 of directly applicable and mandated guidance in 18 place. This sought to ensure that the 19 procedures employed and decisions taken by 20 investigative and prosecutorial bodies, were 21 fair, transparently auditable and accorded with 22 the interests of justice. The structure erected 23 by that network of material was detailed and 24 therefore complicated. It required those 25 engaged in the investigation and prosecution of 24 1 crime to receive training, instruction and 2 guidance for each important stage of their 3 duties." 4 So what you describe there, the network of 5 materials from statute down, that was intended 6 to achieve the aims that we have just discussed: 7 fair, reasonable and consistent application of 8 the criminal law. 9 A. Yes. 10 Q. At this point -- is this right -- you're drawing 11 no distinction between public and private 12 prosecutions? 13 A. No. 14 Q. Can we turn, please, to page 145 of your report. 15 Just look at paragraph 335 at the bottom. If we 16 just scroll up a little bit, so we can catch 17 334. There you essentially repeat what we've 18 just looked at in the overview -- 19 A. Yes. 20 Q. -- and then you carry on here in the 21 conclusions, 335: 22 "Those requirements [that's in the network 23 of instruments] applied in critical respects, 24 every bit as much to a private prosecutor or 25 non-crime agency investigation as to a police 25 1 investigation or a CPS prosecution. This was 2 made clear, for example, in R(Kay) v Leeds 3 Magistrates' Court [2018 EWHC 1233], in which 4 [Mr Justice Sweeney] observed (at paragraph 23): 5 'a private prosecutor is subject to the same 6 obligations as a minister for justice as are the 7 public prosecuting authorities -- including the 8 duty to ensure that all relevant material is 9 made available both for the court and the 10 defence'." 11 Then you say: 12 "Although that was a case decided in 2018, 13 that was a position that had been made clear for 14 a considerable period before that." 15 Now, given the importance of the point that 16 you have made, based on the extract from the 17 Divisional Court's decision in Kay and 18 an additional sentence after the one you quoted, 19 and some questions I'm going to ask you in 20 a moment, I think it may pay dividends, 21 unusually, to look at the decision itself. 22 I'm not going to do this very frequently, 23 you'll be pleased to hear, because for many 24 documents you've quoted and extracted them in 25 full in your report. 26 1 So the decision in Kay is our tab D23, which 2 is RLIT0000117. Thank you very much. You'll 3 see that it's a decision of a Divisional Court 4 consisting of Lord Justice Gross and Mr Justice 5 Sweeney and we see, from the top right, it was 6 a decision made on 23 May 2018. 7 A. Yes. 8 Q. It's reported under the neutral citation number 9 that I've just given. If we go to the second 10 page, please, we'll see that Mr Justice Sweeney 11 gives the judgment and then, right at the end, 12 we'll see that Lord Justice Gross agrees with 13 him? 14 A. Yes, he does. 15 Q. If we can turn to page -- I think it's 15. 16 Scroll down, please, and again. It's just on 17 the next page, then. Looking for paragraph 23. 18 Under the cross-heading of "The duties of 19 a private prosecutor", the court said: 20 "It is not disputed that authorities such as 21 ..." 22 I'm not going to cite them all. They are, 23 by name of party Watts, Charlson, Dacre, Barry, 24 Zinga and Haigh: 25 "... established that: 27 1 "(1) Whilst the Code for Crown Prosecutors 2 does not apply to private prosecutions, 3 a private prosecutor is subject to the same 4 obligations as a minister for justice as are the 5 public prosecuting authorities -- including the 6 duty to ensure that all relevant material is 7 made available both for the court and the 8 defence." 9 Then the second point, and this is what 10 I just wanted to pull out of this decision, the 11 court says that those authorities establish, 12 secondly: 13 "Advocates and solicitors who have the 14 conduct of private prosecutions must observe the 15 highest standards of integrity, of regard for 16 the public interest and duty to act as 17 a minister for justice in preference to the 18 interests of the client who had instructed them 19 to bring the prosecution -- owing a duty to the 20 court to ensure that the proceeding is fair." 21 In your report you said that, although this 22 case was decided in 2018, the position set out 23 in these paragraphs was one which had been made 24 clear for a considerable period before 2018. 25 A. Yes. 28 1 Q. If we just scroll up, please, you'll see that 2 what the court says is "It is not disputed 3 that", then there's a list of authorities, 4 "establish" those two principles. 5 The first of those two cases referred to, 6 ex parte Watts. If we just scroll up for the 7 citation, keep going and keep going. 8 A. I think we may just have missed it. 9 Q. Okay, scroll down, thank you. 10 A. Beginning of paragraph 22. 11 Q. I think we'll see that it's a decision of 1999. 12 If we scroll down a little bit more, please. 13 It's the second case cited there, Watts. 14 A. Yes, I think that may, with all due respect to 15 Mr Justice Sweeney, be a typing error. It's 16 actually a case from 1992. So it's [1992] 17 2CrAppR 188, rather than 1999. And, perhaps in 18 this context, it's worth noting that, in that 19 case, where they concluded that a private 20 prosecutor was subject to the same obligations 21 as a minister of justice as a public prosecutor, 22 they relied on a decision called George Maxwell 23 Developments Limited, which was a decision from 24 1980 that said the same thing. 25 Q. So when in your report you said that, although 29 1 the case was decided in 2018, Kay, it was 2 a position that had been made clear from 3 a considerable period before that, were you 4 relying on this list of cases, essentially -- 5 A. Yes. 6 Q. -- to ground that point, or your experience, or 7 both? 8 A. Both. 9 Q. So this wasn't something that came out of the 10 clear blue sky from Mr Justice Sweeney in 2018? 11 A. No, not at all. 12 Q. So, in answer to a question "Are you able to 13 point to any authorities relating to private 14 prosecutions before the period 2013, which made 15 clear the duties and positions you would refer 16 to", you would say, "Yes, see that list of cases 17 there"? 18 A. Yes, and those that those cases, in turn, relied 19 upon. 20 Q. So in general terms, how well established would 21 you say it was, or not, that the principles that 22 are set out by the court in paragraph 23(1) and 23 (2) were embedded or not in the law? 24 A. Sorry, they were well established principles, 25 which were restated by the court in that case, 30 1 rather than it being anything new in 2018. 2 Q. Thank you. That can come down. Would you agree 3 that Kay emphasises what the duties are and the 4 fact that they exist for both private and public 5 prosecutors, rather than saying that a public 6 prosecutor and a private prosecutor have to 7 discharge them in the same way? 8 A. No, that's right. 9 Q. So the obligation is one of outcome, of result, 10 rather than means? 11 A. Yes, which is why, for example, it makes clear, 12 at the first of those paragraphs, that the Code 13 for Crown Prosecutors does not apply to 14 a private prosecutor because it is, on the face 15 of it, a document for the Crown Prosecution 16 Service but the underlying approach to decisions 17 on prosecutions be recognised to be the same, in 18 effect, for a long period before that, not least 19 because a defendant, it is well recognised, had 20 the right to know what test was being applied in 21 a decision to prosecute them, whoever it was 22 making the decision to prosecute them. 23 Q. So Kay, and, indeed, no other case, does not 24 establish that the Post Office was under 25 an obligation to have the same policies -- 31 1 A. No. 2 Q. -- as the Crown Prosecution Service? 3 A. No, as it happens, certainly from 2007, the 4 documents that I've seen from the Post Office 5 did indicate that they were going to apply the 6 Code for Crown Prosecutors but that was a choice 7 that they made as to the test, as indeed other 8 agencies had done, for example the Department of 9 Work and Pensions or the Environment Agency. 10 Q. You use a phrase in paragraph 9 and also in 335 11 of your report, that the network of instruments 12 that you have described sought to ensure that 13 the procedures employed by investigators and 14 prosecutors are "transparently auditable"? 15 A. Yes. 16 Q. Can you explain what you mean by "transparently 17 auditable"? 18 A. First, what I mean by that is that, for there to 19 be proper supervision of those who are making 20 those decisions, it is important that the 21 criteria that they are applying are 22 identifiable, so that those supervising them can 23 test what they have done against those criteria; 24 secondly, it's important that a court that is 25 dealing with a case brought by that agency is 32 1 able to understand the criteria that had been 2 applied; and, thirdly, it is important that 3 those who defend in such a case understand the 4 criteria that had been used to make the 5 decision, for example, to prosecute. 6 Q. So, even if the Post Office did not owe, say 7 public law duties, in terms of the publication 8 and accessibility of its investigative and 9 prosecutorial policies and guidance, that would 10 not be a reason not to have such investigative 11 and prosecutorial policies and guidance? 12 A. No, and the risk that would be run if an agency 13 didn't have that kind of policy in place is, 14 firstly, that decisions could be taken 15 arbitrarily; secondly, they could be taken 16 inconsistently; and, thirdly, it would difficult 17 for them to justify those decisions if 18 challenged, if they weren't able to point to the 19 basis on which they'd reached them. 20 Q. Thank you. Can we go back, then, to the 21 overview, page 8 of your report, please. It's 22 paragraph 9 and following that I'm going to take 23 you through, if I may. So this is before we get 24 into the detailed reasons for your developed 25 conclusions, I would like, if I may, to address 33 1 briefly the conclusions in overview form. 2 You set them out from paragraph 9 onwards 3 and you say that you have: 4 "... reviewed the Post Office policies in 5 relation to the investigation, prosecution and 6 related areas, and have concerns as to their 7 adequacy to achieve these objectives. The 8 policies recognise that the Post Office as 9 an investigator and prosecutor was and is 10 subject to [PACE and the CPIA] and the Codes 11 issued under each Act. However, in particular 12 during the earlier period from 2000, policies 13 referred to that fact without setting out the 14 ways in which this was the case, the specific 15 aspects of those Acts and Codes that applied, 16 and the ramifications of that to those 17 undertaking investigation and prosecutions." 18 A. Yes. 19 Q. You say in the first sentence that you have 20 concerns as to the adequacy of the Post Office 21 policies in the relevant period. Can you 22 calibrate your level of concern for us, please? 23 A. In a sentence, my concern in relation to, 24 particularly, the Criminal Procedure and 25 Investigations Act is that there are various 34 1 policies that acknowledge that it is exists but 2 they don't identify within the policy which 3 parts of what is quite a substantial piece of 4 legislation, those who are undertaking work for 5 the Post Office were meant to be applying or how 6 they were meant to be applying it. And clearly, 7 as we'll go on to, training plays a role in that 8 but my concern -- and it is these a real 9 concern -- is that it is a different thing to 10 say this Act applies to you and to say this part 11 of this Act applies to you and this is how it 12 applies to you and this is what you are meant to 13 do under it. 14 If you do the latter, there is much greater 15 chance that it will be done correctly and so 16 I think it is a serious concern that there was 17 acknowledgement, rather than explanation, in 18 relation to those very important pieces of 19 legislation, which are in place to ensure 20 consistency and fairness in investigation and 21 prosecution. 22 Q. So what's the vice of bare reference to the 23 application of a statute in a policy by the way 24 PACE applies to your investigations or CPIA 25 applies? 35 1 A. The risk is, first, that someone will have 2 received training when they started and they 3 will recall that there was this piece of 4 legislation and it had parts that applied to 5 them, and they will rely on their memory. They 6 will look at the Police and Criminal Evidence 7 Act and see that it is vast and stop. And there 8 is the risk that they will look at the Act, find 9 a part that they think is the right bit, look at 10 it and do their best to understand it. But, on 11 that approach, you may have any number of 12 different interpretations operating within the 13 same prosecuting agency, rather than one clearly 14 defined one, which is why other agencies -- and 15 the Crown Prosecution Service is an example of 16 this -- have detailed guidance on the approach 17 to different parts of these acts, so that there 18 is a consistency -- at least the intention is 19 there would be a consistency in how it is 20 applied. 21 Q. So your expectation is that there ought not to 22 be just bare references but an explanation as to 23 how the relevant parts of the legislation, 24 a code or other instrument, are to be carried 25 into effect in this organisation? 36 1 A. Yes. 2 Q. Can we turn to paragraph 10, please. You say: 3 "In some respects, the policy documents 4 themselves differed from training materials 5 which did seek to address the PACE Codes of 6 Practice, and do identify which parts apply in 7 what context. However, such training materials 8 did not represent a suitable alternative to 9 policy documents which themselves steered the 10 correct path through the application of PACE, or 11 the Codes thereunder. Such training documents 12 would not necessarily ensure the application of 13 up-to-date regulation. I have also not seen 14 comparable training materials relating to the 15 CPIA or the Code thereunder, save in relation to 16 the retention of investigators' notebooks, until 17 2012." 18 Why would training material not represent 19 a suitable alternative to policy documents, 20 which steer the correct path through, in this 21 example, the application of PACE or the Codes 22 issued under it? 23 A. The -- I should say, in relation to training 24 materials, that when initially started to 25 prepare this report and, indeed, produced 37 1 a first draft of this report, I hadn't seen any 2 real training materials at all. I then received 3 them, and in relation, for example, to the Codes 4 of Practice under the Police and Criminal 5 Evidence Act, which are codes to address, for 6 example, how interviews are correctly to be 7 undertaken, how searches are to be undertaken, 8 and matters of that sort, the training material 9 did identify "This is the Code of Practice that 10 applies to this activity", for example 11 interviews, "These are the parts of the Code 12 that apply", and they were correct and clear in 13 that training document. 14 But the Codes change and there is the risk 15 that, if someone is relying on their training 16 notes, that they may not be looking at 17 an up-to-date version of the Code or appreciate 18 that that is the position. 19 The fact that the training documents were 20 able to set out that kind of analysis and that 21 kind of application, to my mind, underlined the 22 importance of the policy documents doing that as 23 well, because the point of putting it in the 24 training is so people understand how the Code 25 applies to them. Well, similarly, in my view, 38 1 a policy document should do that and so it could 2 never be a substitute for a policy addressing 3 the responsibilities of, for example, 4 an investigator in sufficient detail, so that 5 they could do so lawfully and consistently and 6 fairly. For them to rely on training material, 7 instead, seemed to me an unsatisfactory 8 alternative because it could well be out of 9 date. 10 Q. So although the training materials focused on, 11 I think you've mentioned, the conduct of 12 searches -- 13 A. Yes. 14 Q. -- and interviews in particular -- 15 A. Yes. 16 Q. -- the second level of concern that you express 17 here is that you had not seen comparable 18 training materials in relation to the CPIA? 19 A. No, and that is the statute that regulates the 20 disclosure process and sets out the 21 responsibilities of investigators and the 22 supervision of those investigators by 23 prosecutors. And so the detail of the 24 requirements of that Act are centrally important 25 to those processes being undertaken consistently 39 1 and fairly and I didn't see training material 2 that did that drilling down into those 3 requirements and why they applied and how they 4 applied and who they applied to, in the same way 5 that there had been training material that 6 addressed the Police and Criminal Evidence Act. 7 Q. So in relation to duties of disclosure and the 8 duty to pursue reasonable lines of inquiry -- 9 A. Yes. 10 Q. -- there was an absence of both policy and 11 training materials? 12 A. Yes. 13 Q. How, if you can -- again, calibrate your level 14 of concern as to that, please? 15 A. I think it's a very serious concern, if the 16 position that an investigator or a prosecutor is 17 left with is that it is left to them to do their 18 own research of an important piece of 19 legislation, for them to work out how they think 20 it applies to them, rather than it being clear 21 to them from the policy that they are required 22 to apply exactly how it applies to them and what 23 they're meant to do under it, there is a very 24 real risk, in my view, if you leave it to 25 initial training or self-interpretation, that 40 1 things will go wrong. 2 Q. Turn to paragraph 11, please. You say: 3 "During ... the relevant period the degree 4 of detail and guidance in [the] policies did 5 improve, and was thorough, for example, as to 6 the conduct of interviews." 7 A. Yes. 8 Q. You've just said that. Did that seem to be 9 a topic that was marked out, how Post Office 10 investigators should interview their suspects? 11 A. Yes, there was an increasing amount and, 12 certainly by the latter part of the period, 13 a good deal of material, almost too much 14 material, in relation to interviews, which was 15 in stark contrast to other areas, like 16 disclosure. 17 Q. "Moreover, there was guidance for the disclosure 18 of unused material in place from at least 2001. 19 However, there were other aspects of the 20 structure of statute and regulation that were 21 not addressed in detail, and in some instances 22 not really addressed at all." 23 You would identify the following areas: 24 "(a) First, there was a lack of explicit 25 instruction to investigators to undertake or 41 1 prosecutors to monitor the CPIA Code requirement 2 that 'In conducting an investigation, the 3 investigator should pursue all reasonable lines 4 of inquiry, whether these point towards or away 5 from the suspect. What is reasonable in each 6 case will depend on the particular 7 circumstances'." 8 You say: 9 "This duty is of central importance to the 10 securing of a fair trial, not least through the 11 achieving of fair and adequate disclosure." 12 Again, if we can just go back to that, 13 please. That first concern, the lack of 14 instruction to investigators and lack of 15 instructions to prosecutors in relation to that 16 Code requirement to "pursue reasonable lines of 17 inquiry [that] point towards or away from the 18 suspect", can you calibrate your level of 19 concern in relation to that, please? 20 A. That is a fundamentally important requirement, 21 because it makes explicitly clear to both 22 an investigator in them undertaking 23 an investigation and a prosecutor in their 24 review of that process, that the requirement for 25 the investigation is to look at all lines of 42 1 inquiry, including those leading away from the 2 person that you are investigating and it is, in 3 my view, fundamental that that is a guiding 4 light to any investigation and any review of 5 an investigation and, if, as was the case, the 6 disclosure policy, for example, of the Post 7 Office did not refer to that requirement until 8 2010, that is a serious omission because it does 9 not put front and centre, in policy terms, for 10 those doing those roles, that that is what they 11 are meant to be doing. 12 Q. You said there -- we'll come back to this in 13 more detail in a moment -- that the disclosure 14 policy didn't even refer to the requirement 15 until 2010. When had the requirement entered 16 into the law? 17 A. It had applied throughout the period of concern 18 for this Inquiry and it was not included in the 19 2001 disclosure policy, which was otherwise 20 designed to address for the Post Office how they 21 were meant to undertake disclosure in accordance 22 with that Act of Parliament and the Code 23 thereunder. 24 Q. If we go to (b) over the page, please, you say: 25 "Secondly, the AG's Guidelines ..." 43 1 We're going to come back to this in a moment 2 but can you summarise what the AG's guidelines 3 were, please? 4 A. Yes. Those were a series of guideline documents 5 starting from the year 2000, which were designed 6 to flesh out the requirements for investigators 7 and prosecutors as to how to undertake their 8 disclosure responsibilities. They were 9 a recognition by a succession of Attorney 10 Generals that, for there to be fair and 11 consistent disclosure, they needed to give more 12 guidance than the CPIA or the Code under that 13 had already given. And so they address, stage 14 by stage, what investigators and those 15 supervising them and what prosecutors and those 16 supervising them had to do and how they were to 17 work with each other. 18 Q. Thank you. You say that they were not 19 addressed: 20 "This limited the guidance as to the role of 21 prosecutors in overseeing, monitoring and 22 securing proper compliance with the requirements 23 of disclosure. It also meant that there was 24 almost no guidance as to the handling of third 25 party disclosure throughout the Inquiry's 44 1 relevant period." 2 So you mention two consequences there, or 3 two facts there. Again, can you calibrate the 4 level of concern that you had in relation to 5 those two issues or each of those two issues, 6 please. 7 A. Yes. So as we will see or anticipate, the 2001 8 policy in relation to disclosure acknowledged 9 that there was an Attorney General's Guideline 10 in relation to disclosure. Interestingly, the 11 2010 version didn't. But that was the extent, 12 in the material that I have seen, of that 13 recognition and so there was at least the risk 14 that those who were seeking to engage in the 15 disclosure process would overlook the Attorney 16 General's guidelines and, therefore, overlook 17 the detailed guidance that those guidelines gave 18 them for how to do their job correctly and 19 fairly. And third party disclosure -- 20 Q. Just tell us what you mean by "third party 21 disclosure"? 22 A. Yes. That is material that is not in the 23 possession of the prosecutor or the investigator 24 but which they have reasonable grounds to 25 anticipate a third party would have. So, for 45 1 example, an investigator who was relying on 2 computer data that is provided by a computer 3 system operated by a separate entity would 4 recognise that that entity was likely to have 5 material that was relevant to the reliability of 6 the data, and that would be third-party material 7 and the Attorney General's Guidelines have 8 always made clear that there is a responsibility 9 on investigators and prosecutors to identify 10 where there may be such third-party material and 11 to take steps to obtain it, so they can review 12 it for disclosure. 13 That is something that is addressed 14 primarily, in fact, in the Attorney General's 15 Guidelines, rather than the CPIA or the Code 16 thereunder and so, if one is not looking 17 routinely at the Attorney General's Guidelines, 18 one could miss that important responsibility. 19 And if there is no reference in your policy to 20 third-party material, again, there is a risk 21 that it will be overlooked. 22 Q. How, again, would you calibrate your level of 23 concern in relation to that issue? 24 A. I think if one is assessing, insofar as one can, 25 the practice from what was written down, it is 46 1 a very significant omission, because if there's 2 no reference to the Attorney General's 3 Guidelines in your policy, it's difficult to see 4 how you can be satisfied that they will be 5 applied, nonetheless, and they have to be, 6 because they are fundamental to getting the 7 disclosure right. 8 Q. Just at this point, may I ask if you carried 9 out, as an investigator and prosecutor, a set 10 number of types of investigation -- they might 11 be robberies on branch, they might be burglaries 12 of branches, they might be thefts in the mail, 13 they might be fraud committed by customers, they 14 might be fraud committed by Post Office staff, 15 using umbrella term -- and the sources of 16 third-party data are different for each of them, 17 would your expectation be that the policy should 18 say, "For X species of investigation, we 19 habitually rely on this data to either prove or 20 disprove the offence, and one must, therefore, 21 consider the following categories of material 22 that should be sought", or "The data is held in 23 this repository, this the contact of the person 24 in that very repository to get the data from". 25 Would that be your expectation? 47 1 A. It would certainly be the safest way to make 2 sure it was undertaken properly. I don't think, 3 on the material that I have seen, it could be 4 said that that was how other agencies were 5 routinely undertaking that responsibility, but 6 they were -- for example, the Crown Prosecution 7 Service, in their policy documents, were 8 identifying in detail what the disclosure 9 requirements were, in relation to third-party 10 materials, so that anyone undertaking 11 a disclosure exercise by reference to their 12 policy would know that they had to consider that 13 topic. But, obviously, the Crown Prosecution 14 Service are dealing with a much wider range of 15 offences and situations. 16 If an agency had a more limited range then 17 they had greater scope to give greater help to 18 their investigators and prosecutors in how to do 19 those more limited range of offence 20 investigations well. 21 Q. Thank you. Can we turn to paragraph 12, please. 22 You say: 23 "I consider that the policy landscape ..." 24 By that, do you mean the Post Office policy 25 landscape? 48 1 A. Yes. 2 Q. "I consider that the Post Office policy 3 landscape for a significant period was not 4 sufficient to ensure consistent and 5 comprehensive compliance with a number of 6 important aspects of the [Police and Criminal 7 Evidence Act] and CPIA regimes, and in 8 particular in relation to independent decisions 9 as to charge, disclosure of material that might 10 undermine the reliability of data systems and 11 third party disclosure. It will readily be 12 appreciated that each of these is an area of 13 importance to the Inquiry's terms of reference." 14 This is an overarching conclusion; is that 15 right? 16 A. Yes. 17 Q. In it, you highlight, firstly, concerns as to 18 independence of decision making, as to charging? 19 A. Yes. 20 Q. You highlight, secondly, concerns over the 21 disclosure of material that may undermine the 22 reliability of data systems and you highlight 23 concerns over obtaining third-party disclosure? 24 A. Yes. 25 Q. Again, can you calibrate the level of your 49 1 concern in relation to each of those three, 2 please? 3 A. Those were areas that I was alive from my 4 instructions were areas that, certainly by the 5 time I come back in December, I will need to 6 have addressed. But, at this stage, looking at 7 the policies and how well they equipped the 8 process for those things to happen, though I had 9 concern as to whether the policies did properly 10 ensure independent decisions as to charge. So 11 that's decisions by lawyers applying identified 12 criteria to make that decision, rather than 13 there being a risk that non-lawyers were 14 ultimately making those decisions and, if so, on 15 what criteria they were making them, and the 16 policy position in relation to that was unclear, 17 at the very least, to me. 18 And so I have a concern about that but 19 I recognise that that might be a concern that 20 could be allayed by a detailed understanding of 21 how the decisions were actually made in the 22 cases. So that's perhaps one I will have to 23 return to in Volume 2. 24 Q. What you've read so far of the Volume 2 25 material, has that allayed your concerns, not 50 1 affected your concern or heightened it? 2 A. I think heightened it, in the sense that I have 3 seen evidence of recommendations from 4 investigators as to what -- whether there should 5 be a prosecution and, if so, for what. I have 6 seen evidence of lawyers providing advice, 7 albeit, I have to say, that those advices have 8 been brief. But it's not clear, on what I have 9 seen, who then actually made the decision and on 10 what basis. And that is an area that the 11 policies left opaque to me and the material 12 I have seen has not clarified. 13 So that -- what I thought was a risk does 14 look like it is materialising in the material 15 I've seen for Volume 2. 16 Q. Thank you. The second concern, disclosure of 17 material that may undermine the reliability of 18 data systems. Again, if you can calibrate your 19 level of concern there? 20 A. Because the evidence that I saw of training in 21 relation to disclosure, of policy guidance in 22 relation to disclosure and the lack of 23 cross-reference to the fundamental sources of 24 guidance as to disclosure was as it was, and 25 because I did not see anything that highlighted 51 1 disclosure and material that might undermine 2 reliability as a topic at all, that was and 3 remains, a very real concern to me because it 4 is -- has the potential to result in fundamental 5 failures of disclosure, through omission of 6 instruction. 7 Q. Then, thirdly, an insufficient policy landscape 8 concerning third-party disclosure? 9 A. The reality, as I saw it, barring a reference in 10 2001 to the existence of an Attorney General's 11 Guideline, was that there was no internal Post 12 Office policy guidance as to third-party 13 disclosure and, therefore, the very real risk 14 that that could be overlooked. And that could 15 have fundamental consequences, clearly. 16 Q. Sorry, I missed what you said there. That could 17 have? 18 A. Fundamental consequences because, if one has not 19 appreciated that you don't just look at what you 20 have already got as part of your disclosure but 21 what you ought to get as part of your 22 disclosure, then there's the real risk that you 23 wouldn't get it and, if you don't get it, you 24 won't review it; and, if you don't review it, 25 you won't disclose it; and, if you don't 52 1 disclose it, then important disclosure necessary 2 for fairness will not happen. 3 Q. Can we turn to paragraph 13, please. You say: 4 "Similarly in relation to decisions to 5 charge, I do have concerns about the adequacy of 6 policy guidance to achieve a proper division of 7 responsibility so as to achieve independence, 8 transparency, accountability and consistency. 9 Whereas in other areas, for example pursuant to 10 the Prosecution of Offences Act 1985, such 11 a division is instilled and maintained, Post 12 Office policies left it open for the same 13 person, or group of persons, to make key 14 investigation and prosecution decisions. Whilst 15 such prosecutions were, by reference to a number 16 of important policies, to be undertaken with the 17 application of the [CPS] Code for Crown 18 Prosecutors, there was in my view, a lack of 19 detailed guidance as to how this was to be done, 20 or how compliance with proper standards was to 21 be achieved or monitored." 22 You mention that you have concerns about the 23 adequacy of policy to achieve independence 24 transparency and accountability and consistency. 25 Again, if you can calibrate the level of your 53 1 concern, please? 2 A. So I recognise that the Post Office is not the 3 Crown Prosecution Service and it's not under the 4 Prosecution of Offences Act, so that decisions 5 as to prosecution are taken in a clearly defined 6 way that is separate from investigative 7 decisions taken by the police. But it is 8 recognised much more generally, including for 9 private prosecutors, that it is important that 10 the decision to prosecute is taken in 11 an independent accountable way, and the 12 expectation, certainly, that that would be done 13 by a lawyer. 14 The policies that I saw left room for 15 an interpretation that, although legal advice 16 was being provided, it was not necessarily the 17 lawyer that was making the decision. It could 18 be, on some of the policies I saw, with input 19 from HR or from the Director of Security, who 20 was also the person responsible for supervising 21 the investigation. 22 And so you could have the investigator 23 deciding on the prosecution, taking -- having 24 received legal advice but by no means clear 25 whether they had to follow it or not. 54 1 Q. You mention that, although there was 2 a cross-reference to the Code for Crown 3 Prosecutors, there was a lack of detailed 4 guidance as to how it was to be applied and how 5 compliance was to be achieved or monitored. 6 Again, can you calibrate the level of your 7 concern about that issue? 8 A. Again, on the material I saw there, it's a very 9 real concern because, if the interpretation I've 10 just described is right and the person making 11 the decision, albeit on legal advice, may not be 12 a lawyer, then they need all the more clear 13 guidance as to how the two tests within the Code 14 for Crown Prosecutors -- which are the realistic 15 prospects of conviction and whether 16 a prosecution is involved public interest -- how 17 those work for the offence they're considering, 18 the offending that they are considering, or 19 alleged offending that they are considering, and 20 that needs specific guidance. 21 The material that I saw acknowledged that 22 the Code for Crown Prosecutors was to be applied 23 but not how it was to be applied, which factors 24 within it were likely to be particularly 25 relevant to a Post Office prosecution or not, 55 1 and there was also, in the material I saw, 2 references to a series of factors that it was 3 considered were relevant to a prosecution, which 4 included the best interests of the business and 5 the integrity of the mail, as opposed to the 6 much more nuanced and detailed set of criteria 7 that would or should be applied to a prosecution 8 decision by reference, for example, to the Code. 9 Q. Thank you. Then, lastly, before we take the 10 break, paragraph 14. You say: 11 "There was a similar lack of guidance as to 12 proper decisions as to which charges to prefer, 13 and for example little guidance as to the 14 application of the Court of Appeal decision in 15 Eden." 16 We mentioned that briefly. 17 A. Yes. 18 Q. Could you just summarise, before we get into the 19 detail, probably tomorrow, what the guidance 20 that the Court of Appeal gave in Eden was? 21 A. So in Eden, the Court of Appeal were considering 22 a situation where the individual, who was 23 a postmaster, had been prosecuted for theft and 24 false accounting, charges which I'm aware 25 regularly occur in the cases that we are here 56 1 considering, and there was a concern from the 2 Court of Appeal as to the prosecution for both 3 offences, in reality on exactly the same 4 allegation, and whether it was right to have 5 both charges there, where actually, it was 6 an allegation of theft, rather than 7 an allegation of theft and a separate allegation 8 of false accounting. 9 And so it was a Court of Appeal decision, 10 looking at a particular factual situation but in 11 relation to charges that are -- have been 12 routinely used by the Post Office and it, 13 therefore, seemed to me helpful to consider the 14 extent to which that guidance from the Court of 15 Appeal had been acknowledged and applied by the 16 Post Office, and the best way to see that was to 17 see where it appeared in their policies, and the 18 answer was that, until 2013, it didn't. 19 Q. So that 1971 decision didn't appear in any 20 policy documents -- 21 A. Not in those I saw, no. 22 Q. -- that you saw -- 23 A. Yes, until 2013. Yes. 24 Q. -- until 2013. You continue: 25 "There was equally no reference to the 57 1 [Attorney General's] Guidelines on the 2 Acceptance of Pleas until 2016 ..." 3 Again, can you just summarise now the AG's 4 Guidelines on pleas? 5 A. Yes, so this was again the Attorney General, 6 with their supervisory responsibility for 7 prosecutions, beyond any particular agency, 8 setting out guidance as to how properly to 9 approach decisions as to whether to accept 10 a plea. So, for example, using the offences 11 we've just referred to, when it was appropriate 12 to accept a plea to false accounting in the 13 alternative to an offence of theft and the 14 criteria to ensure that that was done in a fair 15 and non-oppressive way, so, for example, that 16 the person being prosecuted did not feel under 17 pressure to plead to false accounting because 18 the theft charge was there, in a way that would 19 be unfair. 20 And so those guidelines, which have been in 21 place for a long time, have set out how that is 22 properly to be done and I didn't see a reference 23 to those in Post Office materials until, as 24 I say, 2016. 25 Q. Thank you. You continue: 58 1 "... I have not identified any reference to 2 the duty of candour required in applying for 3 a summons to initiate criminal proceedings in 4 any of the policies I have considered where that 5 might have been expected." 6 Again, can you just summarise the duty of 7 candour, in particular how it applies in 8 relation to the point at which one initiates 9 proceedings? 10 A. Yes. So one method of initiating proceedings, 11 and the method that was used by the Post 12 Office -- and I have no criticism of them for 13 that because it was the obvious one for them to 14 apply because they were not a police force -- 15 was to summons the defendant to attend at the 16 Magistrates Court and proceedings initiated as 17 a result. 18 There is a longstanding requirement on 19 anyone seeking a summons to what is called have 20 a duty of candour which is to identify to the 21 court anything -- any relevant circumstance that 22 may incline that court not to grant the summons. 23 So they have to be satisfied, the court, that 24 there's a proper basis for a prosecution but 25 they also need to have an understanding of 59 1 whether such a prosecution might be an abuse of 2 process, whether there is material that would 3 make them less likely to grant the prosecution. 4 And that is a well recognised duty. 5 I saw very little material, in fairness, at 6 all about obtaining summonses and how they were 7 to be obtained within the Post Office material 8 that I saw, but nowhere did I see a reference to 9 that duty. 10 Q. So no reference to the duty on the Post Office 11 to be candid with the court? 12 A. Yes. 13 Q. You say: 14 "These omissions in the policy documents 15 were consistent with the failure of the training 16 materials that I have seen to address these 17 topics." 18 So in these three cases, the suggestion of 19 cure through training wouldn't run? 20 A. Certainly not on the material that I saw. 21 Q. You say: 22 "Finally, I have considered the implications 23 of the repeal of Section 69 [of] PACE as to the 24 obtaining of confirmation as to the reliability 25 of computer data. The real concern however, is 60 1 and was as to the appreciation of the need to 2 consider reliability of computer data in 3 reaching charging decisions as to the disclosure 4 of material that undermined that reliability." 5 A. Yes. 6 Q. Can you explain, firstly, what, just in summary 7 form, Section 69 of PACE was about, the repeal 8 of it and when, and your identification of what 9 you say was the real concern? 10 A. So when originally enacted, the Police and 11 Criminal Evidence Act included at Section 69, 12 a requirement for there to be a satisfaction as 13 to the reliability of computer data as, 14 effectively, a precursor for reliance on that 15 data. The Law Commission made proposals for the 16 repeal of that because the Law Commission 17 considered it to be cumbersome and not to 18 actually be achieving its objectives. 19 There was a consultation in relation to 20 that, a range of organisations responded, 21 including the Post Office. There was a broad 22 support amongst those organisations, 23 interestingly with the exception of one that 24 related primarily to computer software 25 personnel, but a broad support for repeal of the 61 1 section. 2 So there was no longer that precursor of 3 satisfying a reliability test for computer 4 material thereafter. But that -- the point 5 I would seek to make in this paragraph, is that 6 did not mean that the reliability of computer 7 data became irrelevant. It's always been well 8 recognised that the reliability of the evidence 9 that underpins the prosecution is something that 10 investigators have to address, that prosecutors 11 have to consider and that, where necessary, both 12 have to demonstrate in criminal proceedings. 13 And so I rather took the view that it wasn't 14 so much the repeal of Section 69 that was the 15 fundamental question, as whether the material 16 I saw in policy terms addressed that question: 17 is this material -- is this data reliable or 18 not? 19 Q. Did it? 20 A. No. There were references occasionally to 21 computer data but more in the sense of how to go 22 about getting it, rather than how to go about 23 testing it. 24 MR BEER: Thank you, Mr Atkinson. 25 Sir, with your permission, can we take the 62 1 break, please, until 11.45. 2 SIR WYN WILLIAMS: Yes, of course. We'll resume 3 then. Thank you. 4 MR BEER: Thank you very much, sir. 5 (11.26 am) 6 (A short break) 7 (11.45 am) 8 MR BEER: Sir, good morning. Can you continue to 9 see and hear us? 10 SIR WYN WILLIAMS: I can, thank you. 11 MR BEER: Thank you very much. Mr Atkinson, we're 12 turning to the Post Office as a private 13 investigator and as a private prosecutor. 14 I just want to examine briefly, if I can, to 15 start with, some of the risks that may arise for 16 a private investigator and a private prosecutor. 17 Can you explain what risks might arise for 18 the Post Office in its position as potential 19 victim of a crime, potential witness to a crime, 20 the investigator of the crime and the prosecutor 21 of the crime? 22 A. Those risks can be encapsulated in the risk that 23 those different categorisations can become 24 merged and the risk that it is not clear to 25 identify which of those hats is being worn by 63 1 a particular person at a particular time, unless 2 great care is taken to make sure that there are 3 measures in place to keep a separation between 4 those different categorisations. 5 Q. So would you agree that the risks might include, 6 fundamentally, a lack of objectivity? 7 A. They can do, yes, and with private prosecutors, 8 in perhaps the most literal sense, an individual 9 who feels aggrieved and seeks to take recourse 10 themselves to a criminal court to address that, 11 clearly they are both the victim and, as they 12 perceive themselves to be, and the prosecutor. 13 So their decisions, which are meant to be 14 objective decisions as to investigative steps 15 and/or prosecutorial decisions, could be taken 16 from their perspective as an aggrieved person, 17 rather than a minister of justice. 18 Q. Would a second risk include the bringing of 19 prosecutions on the basis, or the conducting of 20 prosecutions on the basis, of the furtherance of 21 impermissible objectives? 22 A. Yes, and so again, taking that example of 23 someone who is an aggrieved individual, they may 24 feel aggrieved at someone who they perceive 25 having cheated them a business arrangement, and 64 1 their pursuit of the matter may be with view to 2 obtaining ultimately financial redress through 3 confiscation, rather than where the objective 4 tests that ought to be applied by any prosecutor 5 along the way have been applied. 6 Q. So over-emphasising or the use of the 7 prosecution as a facility to recover money? 8 A. Yes. So if one of your criteria for deciding 9 whether to prosecute or not is the best 10 interests of the business, you may be guided by 11 the fact that there is a loss identified to the 12 business, as a reason to prosecute, rather than 13 stepping back to identify whether, objectively, 14 there is a proper basis for prosecuting 15 an individual in relation to that loss. 16 Q. Would a third risk be a win-at-all-costs 17 mentality? 18 A. It could be, yes. 19 Q. Would you agree that those risks, if they exist, 20 may be multiplied or not called in to be 21 checked, if there is no external inspection or 22 oversight of the prosecutorial process? 23 A. It's both harder to identify them at the time 24 and harder to address them after the event, if 25 there isn't that kind of oversight. 65 1 Q. Would you say that scrutiny of the private 2 prosecutorial function ought to begin in-house? 3 A. Yes, and I recognise different ways that that 4 can be done and different ways that it is done 5 by different organisations that have private or 6 quasi-private prosecutorial functions but that 7 they should have that independent scrutiny and 8 separation of scrutiny, clearly, is a way to 9 ensure that there is effective scrutiny. 10 Q. You've used the example, in answer to a couple 11 of my questions, of a private individual 12 aggrieved at a financial loss that they say that 13 they have sustained. In terms of the Post 14 Office -- and like you in your report I am 15 referring to the Post Office in each of its 16 legal entities -- 17 A. Yes. 18 Q. -- across the piece and not distinguishing when 19 it was RMG and when it became Post Office 20 Limited -- would you equate the Post Office as 21 a private prosecutor to such an individual or is 22 it different, in any way? 23 A. There are potential similarities in the sense 24 that the individual who feels that they have 25 lost financially through their dealings with 66 1 a particular person and who then seeks to 2 prosecute them, clearly, is both the loser, with 3 grounds, certainly in their head at least, to be 4 aggrieved about that, and the prosecutor. 5 Where the Post Office was prosecuting 6 someone that they perceived had cheated them, 7 and had caused them loss, then they were both 8 the person who had suffered the loss -- the 9 organisation, rather, that had suffered the 10 loss, the organisation that wanted to recoup the 11 loss and the person prosecuting the person they 12 held responsible for the loss. 13 Q. Can I also draw some distinguishing features, 14 perhaps, between those two classes of people? 15 A. Yes. 16 Q. The Post Office had been prosecuting for 17 hundreds of years; is that right? 18 A. Yes. 19 Q. So it was an established private prosecutor? 20 A. Yes. 21 Q. The nature, number and scale of its private 22 prosecutions is obviously very different from 23 the individual that you just mentioned? 24 A. Yes. 25 Q. It had, itself, given over whole departments to 67 1 investigative and prosecutorial work, hadn't it? 2 A. Yes. 3 Q. The Security Department and the Criminal Law 4 Team, the CLT -- 5 A. Yes. 6 Q. -- to name just two. Would this, in any way, be 7 a relevant feature: that the company was 8 entirely owned by the Government, through 9 ownership of a single share? Does that bear on 10 the issues that we're looking at or not, in your 11 view? 12 A. It certainly doesn't have to. The -- so to take 13 an example that was flagged up in the report 14 that I've seen recently, that where the London 15 Fire Service were both responsible for fire 16 safety but also, potentially, for a prosecution 17 in relation to a fire, the fact that they had 18 separate parts of their organisation dealing 19 with one and dealing with another was a factor 20 to ensure that they were capable of dealing with 21 that fairly. 22 So the fact that there are separate 23 departments within organisation that keep them 24 separate from their owner, for example, can 25 overcome any issue. It depends on how it's 68 1 done. 2 And so to answer your question, the fact 3 that the Post Office was effectively owned by 4 the Government, on the one hand gave them more 5 of a responsibility to ensure that they applied 6 policy and statute that were laid down by 7 Government to ensure that the job they were 8 doing was done appropriately and fairly; but, if 9 they built the necessary separations and 10 independent scrutiny into their system, then 11 there would be no pressure on them from their 12 owner for how they did it or there shouldn't be. 13 Q. Thank you. Can we turn to the status of 14 proceedings that the Post Office brought and 15 this is page 10 of your report. 16 A. Yes, thank you. 17 Q. If we can have that up on the screen, please. 18 EXPG0000002 -- thank you -- page 10. If we 19 scroll down to get paragraphs 15 and 16. In 20 paragraphs 15 and 16 of your report you 21 summarise the history of the postal service 22 undertaking investigations and prosecutions of 23 criminal offences. I'm not going to ask you 24 about that and instead take these paragraphs as 25 read. 69 1 In the course of that investigative work 2 that you undertook, I believe you sought to 3 identify the statutory basis for the Post 4 Office's investigation of and prosecution of 5 offences -- 6 A. Yes. 7 Q. -- and you didn't find one, I think that's 8 right? 9 A. No, that's right. 10 Q. I think you were heartened by some material that 11 you found amongst the documents that you were 12 given by the Inquiry that emanated from the Post 13 Office's then general counsel -- 14 A. Yes. 15 Q. -- Chris Aujard, dated 8 November 2013. 16 If we just look at that, please. It's 17 POL00027501. If you're working from hard copy, 18 Mr Atkinson, it's E4. 19 A. Thank you very much. 20 MR BEER: Sir, I'm afraid we'll have to take 21 a break. There's something gone wrong with the 22 system. Can we leave it that we'll come back to 23 you when that fault has been cured? 24 SIR WYN WILLIAMS: Yes, of course. I'll take myself 25 off screen but I won't leave the room I'm in, so 70 1 that I'll be ready when you are. 2 MR BEER: Thank you very much, sir. Maybe if 3 Mr Atkinson can go to the room. Thank you. 4 (11.58 am) 5 (A short break) 6 (12.09 pm) 7 MR BEER: Sir, I can now see you. Can you see and 8 hear me? Thank you. Apologies for that delay 9 and apologies, Mr Atkinson, for that delay. 10 We were trying to look at POL00027501, which 11 I think is now on the screen. Just to orientate 12 ourselves in the document, if we go to page 5, 13 please, and look at the foot of the page. We 14 can see that it is authored by Chris Aujard on 15 8 November 2013. 16 Go back to the front page, please. We can 17 see the document is entitled "Post Office Audit, 18 Risk and Compliance Committee [and] Prosecutions 19 Policy". You can see the purpose of the policy 20 set out in paragraphs 1.1 and 1.2, but it is 21 what is said about the Post Office's power to 22 bring prosecutions that I wanted to draw to your 23 attention. 24 We can see at paragraph 2.2 it says, since 25 that update -- last October, that was -- Brian 71 1 Altman, Queen's Counsel, has prepared two 2 separate reports, et cetera. 3 Then if we go down to paragraph 2.5: 4 "An important fact to emerge from the 2 5 reports [that's Mr Altman Queen's Counsel's 6 reports] is that the Post Office does not have 7 any special statutory powers to bring 8 prosecutions ..." 9 So this the Post Office's general counsel 10 saying it's emerged now that we, the Post 11 Office, don't have a special statutory power to 12 bring prosecutions: 13 "... rather it brings prosecutions in 14 a purely 'private' capacity further to 15 Section 6(1) of the Prosecution of Offences Act 16 1985, which gives all individuals and companies 17 the right to bring a private prosecution, should 18 they see fit. To that extent, therefore, the 19 decision to undertake prosecutions is 20 discretionary: no legislation or regulation 21 requires Post Office to undertake prosecutions, 22 nor is there any legislative policy that 23 mandates that prosecutions should be brought. 24 That is not to say that the standards of 25 evidence are in any way reduced, or that the 72 1 process is less rigorous than would be the case 2 with a public prosecution, it's simply that the 3 Post Office steps in to assume a function that 4 typically would be undertaken by the CPS, after 5 the referral to it of a case by the police." 6 I think you agree with what is summarised 7 there; is that right? 8 A. Yes. 9 Q. That's accurate -- 10 A. Yes, it is. 11 Q. -- and provided, as I said, a heartening 12 reaffirmation of what you had discovered or 13 failed to discover as a result of your own 14 researches? 15 A. That's right. 16 Q. Can we look, then, please, at Section 6 of the 17 Prosecution of Offences Act -- sometimes called 18 the POA -- 1985, as it's a foundational 19 provision for the bringing of prosecutions. 20 That document, please, is at RLIT0000073. 21 That's the front page of the POA as 22 originally enacted. If we can scroll down, 23 please, to Section 6. I think that's on about 24 page 4., thank you. Section 6, "Prosecutions 25 instituted and conducted otherwise than by the 73 1 Service". The "Service" means the Crown 2 Prosecution Service, correct? 3 A. Yes. 4 Q. "Subject to subsection (2) below, nothing in 5 this Part shall preclude any person from 6 instituting any criminal proceedings or 7 conducting any criminal proceedings to which the 8 Director's duty ..." 9 The "Director" being the Director of the 10 Crown Prosecution Service? 11 A. The Director of Public Prosecutions, yes. 12 Q. "... to take over the conduct of proceedings 13 does not apply. 14 "(2) Where criminal proceedings are 15 instituted in circumstances in which the 16 Director is not under a duty to take over their 17 conduct, he may nevertheless do so at any 18 stage." 19 So this is essentially the power to bring 20 private prosecutions -- 21 A. Yes. 22 Q. -- reflected in statute. It's not obviously 23 a requirement to bring such prosecutions? 24 A. Yes. There was always recognised to be a right 25 to bring a private prosecution. What this Act 74 1 did, at this point in time, was to preserve that 2 right, even though, in other respects, it was 3 creating the Crown Prosecution Service and 4 setting out the duties of the Director in 5 relation to the bringing of prosecutions for 6 various agencies, including the police, more 7 generally. 8 Q. Can we go back, please, to POL00027501, which is 9 the document we were just looking at, the Chris 10 Aujard document. Thank you. 11 Can we look, please, at paragraph 2.4, which 12 we skipped over, towards the foot of the page. 13 Thank you. 14 The policy says: 15 "The forward looking report [that's 16 Mr Altman's report] is similarly positive in 17 tone with Brian Altman commenting that he had 18 '... seen no evidence to suggest that Post 19 Office Limited exercises its investigations and 20 prosecution function in anything other than 21 a well-organised, structured and efficient 22 manner, through an expert and dedicated team of 23 in-house investigators and lawyers, supported by 24 Cartwright King solicitors and their in-house 25 counsel ...'." 75 1 I'm not going to ask you about that 2 assessment. We're going to come back to that 3 rosy assessment later in the year and into next 4 year. The policy continues: 5 "That said, it was noted that 'Post Office 6 Limited's prosecution role is perhaps 7 anachronistic ...', and that '[Post Office 8 Limited] is the only commercial organisation, 9 (albeit Government owned) I can think of (apart 10 from [Royal Mail Group] who retains a residual 11 prosecuting function) that has a prosecution 12 role, and it is, to that extent, exceptional if 13 not unique." 14 The policy notes, relying on what Mr Altman 15 had said, that the Post Office's prosecution 16 role is anachronistic and exceptional, if not 17 unique. In your researches, did you find or 18 uncover any similar organisation to the Post 19 Office? 20 A. No, and in my report I highlighted a further 21 document, again from Mr Aujard, which is 22 paragraphs 17 and 18 of my report, where he 23 undertook a further analysis of that suggestion, 24 that the Post Office's prosecution role being 25 an exceptional one and he highlighted that other 76 1 financial institutions, even with in-house 2 investigative teams, would usually hand over 3 their cases at a particular point to other 4 prosecution and investigative agencies, rather 5 than carrying out that role themselves. 6 And even those that did undertake 7 a prosecution role themselves, like Transport 8 for London or the RSPCA, were focused in doing 9 that on persons outside its organisation, 10 whereas the Post Office, of course, was 11 prosecuting not only persons from outside but 12 also in-house, in the sense of prosecuting its 13 own employees themselves, rather than it being 14 dealt with by others. 15 And so, in those respects, in particular, 16 I would agree that it was exceptional and 17 I didn't find any comparable organisation. 18 Q. Thank you. That can come down now, please. Can 19 we go back to your report, please, at page 13, 20 please. 21 So it has been established that, generally 22 speaking, the Post Office has no special 23 investigative powers and no special 24 prosecutorial powers? 25 A. Yes. 77 1 Q. Can we look at paragraph 22, please. You say: 2 "It follows from this independent role that 3 the Post Office, as an investigative and 4 prosecutorial agency, has always operated 5 separately from the agencies and mechanisms of 6 mainstream investigation and prosecution of 7 crime. In particular, the police in relation to 8 the first and the CPS to the second. It is, 9 however, entirely appropriate to consider ... 10 the Post Office in the undertaking of criminal 11 investigations and the prosecution of criminal 12 offences by reference not only to the statutory 13 regime and guidelines that had direct 14 application to the Post Office in these 15 capacities but also to the statutory regime and 16 guidelines that applied in the same time period 17 to the police and CPS. The relevance of the 18 latter is both that it provides a bench mark 19 against which to assess investigatory and 20 prosecutorial practices by the Post Office 21 between 2000 and 2013, but also because in 22 important respects there was an expectation by 23 Parliament and the judiciary that they would 24 have regard to them." 25 Does this essentially, in this paragraph, 78 1 set out the foundation of your approach? 2 A. Yes, and I should make clear, I recognise that 3 the Post Office was entitled, as a private 4 prosecutor, to devise its own approach to areas 5 that the police and/or the Crown Prosecution 6 Service dealt with but it seemed to me a good 7 way of testing the effectiveness of those, to 8 see not only what the police and the CPS had in 9 policy terms set out but what the purpose of 10 that was, and to see whether those purposes were 11 also comparably being addressed by how the Post 12 Office, in policy terms, was doing it. 13 Q. Now, what you're saying is that, is this right, 14 the materials, whether they're statutes, codes, 15 guidelines and policies, which make up the 16 framework or the network that you have 17 described, have importance in three ways. 18 Firstly, in some cases they may be directly 19 applicable? 20 A. Yes. 21 Q. So some parts of the CPIA 1996 are directly 22 applicable and bind, as a matter of law, the 23 Post Office -- 24 A. Yes. 25 Q. -- when it's acting as a private prosecutor. 79 1 Secondly, those materials, even if they're 2 not directly applicable to the Post Office, they 3 provide a benchmark against which to judge the 4 Post Office's policies and practices and 5 ultimately its conduct? 6 A. Yes. 7 Q. Thirdly, in any event, there was an expectation 8 by Parliament and the courts that private 9 investigators and prosecutors would have regard 10 to such policies and practices? 11 A. Yes. 12 Q. Can I turn to the separation of the 13 investigative and the prosecutorial functions. 14 In a number of passages in your report -- 15 I don't ask for them to be turned up, but 16 they're paragraphs 26 to 35 and 55 -- you are 17 critical of the Post Office's policies for not 18 spelling out the separation of functions between 19 the investigative function, on the one hand, and 20 the prosecutorial function, on the other, based 21 on a comparison with the positions of the CPS 22 and the SFO; is that right? 23 A. Yes, or, perhaps more precisely, that the Post 24 Office policies that I saw allowed for or didn't 25 prevent a merging of investigative and 80 1 prosecuting decision making, in a way that, in 2 their different ways, the CPS and the SFO had, 3 and other organisations had. 4 Q. It's right that the CPS and the SFO were both 5 creatures of statute -- 6 A. Yes. 7 Q. -- and the statutes that create them ensure and 8 have hard-written into them the separation of 9 investigative and prosecutorial functions? 10 A. Certainly, the Prosecution of Offences Act very 11 much creates a distinction of investigative and 12 prosecutorial roles and makes clear that the CPS 13 only occupies the latter of the two. The SFO is 14 different from that, in the sense that the 15 director of the SFO has a responsible for the 16 investigation of fraud as well as the 17 prosecution of fraud. But there is the clear 18 expectation in that, not least through its 19 supervision by the Attorney General and 20 Parliament, that those roles will be kept 21 separate. 22 And that is and always has been very clear 23 in how the SFO has conducted itself. 24 Q. So the answer to my question is, yes, so far as 25 the CPS is concerned, hard-written into the 81 1 statute -- 2 A. Yes, absolutely. 3 Q. -- no, in relation to the SFO? 4 A. That's right. 5 Q. Thank you. Can we look, please, at page 17 of 6 your report and look at paragraph 29 at the foot 7 of the page. Sorry, did I say 17? I meant 15 8 of your report, paragraph 29 at the bottom. 9 Thank you? 10 You say: 11 "The status of the [Director of Public 12 Prosecutions], and the superintendence of the 13 [Crown Prosecution Service] by [His Majesty's] 14 Attorney General is recognised to have 15 significant importance. For example, in R v 16 Director of Public Prosecutions Ex P Manning 17 [2001] QB330, Lord Bingham of Cornhill [the Lord 18 Chief Justice] observed, in the context of 19 a challenge to a decision not to prosecute by 20 way of judicial [at paragraph 23]: '... as the 21 decided cases also make clear, the power of 22 review is one to be sparingly exercised. The 23 reasons for this are clear. The primary 24 decision to prosecute or not to prosecute is 25 entrusted by Parliament to the Director as head 82 1 of an independent, professional prosecuting 2 service, answerable to the Attorney General in 3 his role as guardian of the public interest, and 4 no one else' ... There is no comparable 5 oversight of the investigative and prosecutorial 6 activities of the Post Office", you add. 7 What, if anything, do you say are the 8 importance of Lord Bingham's remarks in Manning 9 to the present issues that we are considering? 10 A. What underscored what Lord Bingham there was 11 saying, in effectively saying that it would be 12 rare for a judicial review of a prosecutorial 13 decision to be successful, was that the reason 14 for that was that Parliament had entrusted 15 prosecuting decisions to the Director, the DPP, 16 but, more than that, that that was the DPP was 17 the head of an independent, professional 18 prosecuting service that was answerable to the 19 Attorney General, and thus to Parliament, and 20 so, in that context, the safety of prosecutorial 21 decisions came from that combination of 22 oversight and independence. 23 Where that combination is lacking or more 24 limited, the confidence one can have in 25 prosecutorial decisions is equally reduced. 83 1 Q. Thank you. You say at the end of the paragraph 2 that there is no comparable oversight of the 3 investigative and prosecutorial activities of 4 the Post Office. Is that right: is there no 5 oversight? 6 A. Not in the material that I saw, and I'm very 7 happy to be corrected on it, but certainly there 8 was identification of oversight within the Post 9 Office. So, for example, the Director of 10 Security had oversight of investigations but not 11 in the anyway that there was the independent 12 external oversight that there is for the CPS, by 13 way of example. 14 Q. Did you find, amongst any policy document or 15 guidance document that you were provided with, 16 any requirement that mandated Post Office Board 17 oversight of the Post Office's investigative and 18 prosecutorial activities? 19 A. Not that I can think of. I'm very happy, again, 20 to be corrected but not that I can think of. 21 Q. No, my purpose wasn't to set you up for a fail 22 on that one. It was to establish the position. 23 So, looking at internal scrutiny and oversight, 24 you didn't see anything in the policies that 25 mandated board oversight of this important 84 1 function of investigation and prosecution? 2 A. No. 3 Q. Can we look, please, at page 23 of your report. 4 Look at paragraph 48 at the bottom. You're 5 dealing here, in this part of your report, with 6 the distinction of roles, the separation of 7 powers and responsibilities between 8 investigators, on the one side, and prosecutors, 9 on the other -- 10 A. Yes. 11 Q. -- in other organisations. You're establishing, 12 I think, in paragraph 48 and the following 13 paragraphs, that distinction or separation of 14 roles amongst certain public investigators and 15 public prosecutors -- here, the police and the 16 CPS -- and you are identifying where that 17 distinction of roles is recognised and what 18 I call as hardwired into the system; is that 19 right? 20 A. Yes. 21 Q. You start at paragraph 48 by looking at 22 Section 3 of the Prosecution of Offences Act 23 1985, which you mentioned in passing ten minutes 24 ago, or so? 25 A. Yes. 85 1 Q. Is the short point this: that the statute, the 2 originating statute, itself draws a distinction 3 and a clear one, between the investigative role 4 of the police, on the one hand -- and other 5 investigative agencies like the National Crime 6 Agency, on the one hand, and the prosecutorial 7 role of the CPS on the other? 8 A. Yes. 9 Q. If we go over the page, please, to paragraph 49. 10 That distinction is drawn out and emphasised in 11 a document called Police and CPS Relations which 12 you refer and to quote from in paragraph 49; is 13 that right? 14 A. Yes. 15 Q. So we've had the statute so far, this guidance 16 document on police and CPS relations, secondly. 17 If we go forwards, please, to page 25, 18 paragraph 50, you say: 19 "Similarly, Section 3 of the present edition 20 of the Code for Crown Prosecutors ... (issued in 21 October 2018), addresses decisions whether to 22 prosecute, and again makes the distinction 23 between the roles of investigative authorities 24 such as the police in relation to investigations 25 on the one hand and that of the Director and in 86 1 relation to prosecutions on the other." 2 Then you cite from it. 3 A. Yes. 4 Q. Is that something that was unique to the 2018 5 8th Edition iteration or is that separation of 6 functions something that was ingrained right 7 from the beginning? 8 A. Right from the beginning. Different wording but 9 the essential point and essential importance of 10 that independence was always there. 11 Q. As you recognise in your report, Parliament 12 expressly permits prosecutions to be bought by 13 private prosecutors -- 14 A. Yes. 15 Q. -- and, in the legislation that permits that, it 16 doesn't require them to have this separate 17 separation -- sorry, this separation? 18 A. Yes. 19 Q. Are you aware of the reports of the Philips 20 Commission which considered private 21 prosecutions? 22 A. Yes. 23 Q. Is this right: that the Philips Commission 24 considered but did not recommend that the CPS 25 should take on responsibility of prosecutions 87 1 brought by non-police agencies and private 2 individuals and corporations? 3 A. That's right. 4 Q. Given that Parliament required expressly 5 separation between the police investigative 6 function and the CPS prosecutorial function but 7 declined to require it in the case of private 8 prosecutors, why do you consider that the Post 9 Office, as a private prosecutor, is obliged to 10 maintain an inbuilt separation of functions in 11 the same way as the police and the CPS do? 12 A. Neither the Philips committee nor the 13 Prosecution of Offences Act allowed private 14 prosecutors to have merged functions. They 15 didn't address that but that was already 16 addressed in cases that we have already passed 17 along the way, for example, I think, Maxwell, 18 where it was recognised that private prosecutors 19 nevertheless had to be ministers of justice 20 first and foremost, and that is all about the 21 independence of the prosecutor. And so it was 22 put into statute because it was a statute that 23 was creating a prosecution authority in the 24 majority of cases but that does not mean that 25 anyone who does not come within the Prosecution 88 1 of Offences Act was not nevertheless required to 2 have that independence of prosecutorial 3 decisions in place. It was already recognised 4 and the Act didn't take it away. 5 Q. Thank you. That document can come down, please. 6 So would this be right: the statutory regime 7 is itself a recognition of the fundamental 8 importance of the separation of functions? 9 A. Yes, and there are different ways it can be done 10 but that distinction is fundamental. 11 Q. Therefore, it's a recognition, would you say, of 12 the need for separation, the wisdom of doing so 13 and the consequences of not doing so? 14 A. Yes. 15 Q. So, would this be right from what you've just 16 said, it can't be said that, because Parliament 17 hasn't required it, there isn't a need for it to 18 be done? 19 A. No, that's right and, in one sense, Parliament 20 has identified the need for it, not just through 21 the Prosecution of Offences Act. But other 22 legislation and codes under legislation that 23 deal with investigative and prosecutorial 24 decision making, like the CPIA, by way of 25 example, all underlined that separation of 89 1 responsibilities. So Parliament has emphasised 2 it, rather than taking it away. 3 Q. On the policies that you have seen, are you able 4 to help us in general terms as to whether the 5 Post Office itself hardwired a separation of 6 decision making, as between investigative 7 functions, on the one hand, and prosecutorial 8 decision making, on the other, in its policies? 9 A. It's clear that it had an Investigative 10 Department and a Criminal Law Department. The 11 latter was the department that would advise on 12 prosecutions; the former was the department that 13 wound undertake investigations. And so, to that 14 extent, there were those two separate entities. 15 My concern was that, in relation to the 16 supervision of those and the ultimate decision 17 making as to prosecutions flowing from those, 18 there wasn't necessarily that clear separation, 19 so that the same person could be making 20 decisions as to prosecution who was also 21 supervising investigations. 22 Q. On what you've read so far of the Volume 2 23 material, if I can call it that, are you able to 24 help us as to whether, in fact, the Post Office 25 did enforce any separation of decision making? 90 1 A. Because in the material that I've seen for the 2 purposes of Volume 2 it has not been entirely 3 clear to me who made the decisions to prosecute, 4 I can't there see a delineation of investigative 5 and prosecuting decisions that I couldn't find 6 in the policies. 7 Q. Thank you. What about, picking another 8 organisation, say the Health and Safety 9 Executive, have you experience of delineation or 10 separation of functions within the Health and 11 Safety Executive? 12 A. So, for example, the Health and Safety Executive 13 certainly since 2011, which was as early as 14 I was able to trace things via their website, 15 had approval officers who had a role in relation 16 to prosecutorial decisions who were independent 17 of the investigation. So that was a built-in 18 filter of independence into the process, in 19 a much more clearly defined way than I could 20 find in comparable Post Office policy. 21 Q. Thank you. Can we turn, then, to the Post 22 Office policies on this issue. In several parts 23 of your report, in particular paragraphs 30 and 24 55, you're critical of what you regard as a lack 25 of proper policy guidance as to the need for 91 1 a division of responsibility between 2 investigators and decision-makers in relation, 3 in particular, to a decision to charge. Can we 4 look, please, at page 27 of your report at 5 paragraph 55. 6 From this paragraph (a) right through to 7 (j), you analyse a series of Post Office 8 policies and guidance materials -- 9 A. Yes. 10 Q. -- concerning investigation and prosecution and 11 analyse whether there is a proper policy 12 guidance within them on the division of 13 responsibilities; is that right? 14 A. Yes. 15 Q. So if we turn and look at paragraph 55(a), and 16 you refer there to the March 2000 Investigation 17 and Prosecution Policy. You say that: 18 "[It] identifies that investigations will be 19 undertaken by the Security and Investigations 20 Service ('SIS') or Business Security and 21 Investigation Unit. Whilst it refers to 22 prosecutorial decisions, which it says will be 23 taken in consultation with the SIS and Legal 24 Services Criminal Law Division, it does not 25 spell out by whom they are to be taken. It ... 92 1 does not indicate the standards to be applied, 2 or who is to ensure the standards are applied 3 correctly." 4 I think footnote 34 tells us that the 2002 5 revision of the Investigation and Prosecution 6 Policy is in the same terms. 7 A. Yes. 8 Q. So there are a collection of problems, is this 9 right, that you identify with that policy. 10 Firstly, it doesn't clearly state who will take 11 decisions to prosecute? 12 A. Yes. 13 Q. Secondly, it does not state the standards that 14 are to be applied, whoever that person is taking 15 the decision? 16 A. No, that's right. 17 Q. Thirdly, it doesn't state who is to ensure that 18 the standards are being applied correctly? 19 A. Yes, it doesn't either identify either the 20 decision-maker or the person who is there to 21 supervise or audit the decision-making process. 22 Q. A slightly later policy than the March 2000 one, 23 called the Post Office rules and standards 24 policies of October 2000, identifies that. 25 "... investigators are to maintain the 93 1 highest standards of professionalism, without 2 seeking to define them in any detail." 3 A. That's right. 4 Q. What's the problem with that, saying, "You're to 5 maintain the highest standards of 6 professionalism", full stop? 7 A. Two people's versions of what the highest 8 unspecified standards are may well be different 9 and one may be more exacting than another and, 10 in fact, neither of them may be right. 11 Q. Can we look at paragraph 55(B), please. You say 12 that: 13 "The Royal Mail Group Limited Criminal 14 Investigation and Prosecution Policy, in its 15 December 2007 version, states (at para 3.1.4): 16 'The conduct, course and progress of 17 an investigation will be a matter for the 18 investigators as long as it is within the law, 19 rules and priorities of the business. 20 Investigators will ultimately report to the 21 Director of Security with regard to the conduct 22 of a criminal investigation'. The Investigators 23 are defined, at [paragraph] 3.1.3, '[RMG] 24 Security Investigation Teams are the providers 25 of in-house investigations and will maintain the 94 1 lead in dealing with the Police'. In relation 2 to prosecutions, at para 3.2.9, it states: 3 'decisions to prosecute in non-CPS cases will be 4 taken by nominated representatives in the 5 business with consideration to the advice 6 provided by [RMG] Criminal Law Team'. The 7 policy remained unchanged in each of these 8 respects in its November 2010 iteration." 9 So the two issues that you identify as 10 potentially problematic within that December 11 2007 version of the policy, you tell us by your 12 footnote 37, remained unchanged in the 2010 13 iteration, yes? 14 A. Yes. 15 Q. Can we look, please, at the policy to which 16 you're referring. This is POL00104812. This is 17 the December 2007 version of the policy. If we 18 just scroll through it, we'll see how long it 19 is. I think it's three pages, isn't it? Scroll 20 down, keep going. Thank you, that's the end of 21 it. 22 Okay, so back to page 1 of the policy. If 23 we just look at -- I'm not going to do this with 24 every policy; I just want to pick some examples 25 to see where you have cited from the policy, 95 1 quoted from the policy, what the policy in fact 2 looks like, to get a bit more context. 3 3.1.3, if we can scroll down, please, 4 "Policing Crime", this something you cite: 5 "Royal Mail Group Security Investigation 6 Teams are the providers of in-house 7 investigations and will maintain the lead in all 8 dealings with the police." 9 So that's essentially narrative, isn't it? 10 A. Yes. 11 Q. Then if we go to 3.1.4: 12 "The conduct, course and progress of 13 an investigation will be a matter for the 14 investigators as long as it is within the law, 15 rules and priorities of the business." 16 What's wrong with that? 17 A. My concern about that is the lack of specificity 18 about each of those, as long as it's within the 19 undefined law, the undefined rules and the 20 unspecified priorities of the business, and 21 without identification as to which of those 22 trumps which. 23 Q. So what are the potential issues which arise? 24 A. Inconsistency of application, and one could read 25 that -- not least because if one looks further 96 1 up the policy box, and the first two policy 2 objectives, at 3.1.1, are "Protecting the 3 Integrity of the Mail" and 3.1.2 of "Protecting 4 the Business" -- that protecting the business is 5 the most important and, whilst that may not be 6 the intention, if it's not spelt out with 7 necessary guidance as to what it's talking 8 about, there's the risk of it going wrong. 9 Q. So a reader could read priorities of the 10 business as being those priorities identified in 11 3.1.1 and 3.1.2? 12 A. Yeah. 13 Q. So what's missing from that sentence 14 "investigations are a matter for investigators, 15 as long as they are within the law, rules and 16 priorities of the business"? 17 A. If it spelt out there the Post Office policy 18 that they were to apply, which itself identified 19 the relevant statutes, the relevant codes under 20 statute, the relevant guidance from the Attorney 21 General, and so on, then the reader would know 22 exactly what it was talking about and what the 23 standards were. 24 Where it doesn't spell those out, there's 25 the risk that important areas of the law and the 97 1 rules will be missed. 2 Q. So the reader doesn't know which law? 3 A. No. 4 Q. Which rules, what priorities? 5 A. (Non-verbal answer) 6 Q. Are you advocating or are you saying that it 7 should all be stated in here or could be done by 8 cross-reference? 9 A. It could be done by cross-reference. 10 Q. If we go to page 3, please, and look at 3.2.9 at 11 the foot of the page. I should read 3.2.8 12 first: 13 "Investigations leading to potential 14 prosecution will be reported in accordance with 15 the [CPIA] and the [CPIA] Code of Practice." 16 What do you understand that to mean, that 17 investigations will be reported? 18 A. I must confess it's not altogether clear to me 19 what that means in the context of reporting 20 investigations. The CPIA addresses aspects of 21 the investigation and aspects of the disclosure 22 regime; the Code addresses those areas and also 23 the interaction of investigators and 24 prosecutors. So it may relate to that but, if 25 it's set out which parts of the Code and the Act 98 1 it had in mind, then we would know. 2 Q. So is this one of the examples that we spoke 3 about earlier, where there is a flashing 4 reference to an Act but it doesn't say in any 5 meaningful sense what's to be done? 6 A. Yes, and it could either here refer to the 7 relevant parts or it could refer to a policy 8 where those parts are identified. So, if there 9 was a policy that addressed the way in which 10 investigations were to be reported to 11 prosecutors and the parts of those that Act and 12 that Code that applied in that context, then 13 that would do the job. 14 Q. If we can look, please, at 3.2.9, "Prosecution": 15 "Suspect offenders will be prosecuted where 16 there is sufficient evidence and it is in the 17 public interest in accordance with the Code for 18 Crown Prosecutors. Decisions to prosecute in 19 non-Crown Prosecution Services cases will be 20 taken by nominated representatives in the 21 business with consideration to the advice 22 provided by the Royal Mail Group Criminal Law 23 Team." 24 Two questions there. What, if anything, is 25 wrong with that; and what, if anything, is 99 1 missing? 2 A. This, I think I'm right in saying in 2007, was 3 the first policy reference in the Post Office 4 policies I had seen to the Code for Crown 5 Prosecutors as being the test to be applied. It 6 doesn't actually reflect that test in referring 7 to sufficient evidence, rather than a realistic 8 prospect of conviction. 9 It then refers to decisions on prosecutions 10 being taken by nominated representatives in the 11 busy with consideration to advice but it doesn't 12 make clear how that consideration is to work. 13 On the face of this, the nominated 14 representative could have obtained advice from 15 the Criminal Law Team and ignore it, in the 16 sense that they could come to a contrary view to 17 the one expressed in the advice that they had 18 received, as long as they had obtained it. 19 Q. So in relation to the first concern, there's 20 a cross-reference to the Code for Crown 21 Prosecutors for the first time, so far as you've 22 been able to see -- 23 A. Yes. 24 Q. -- in December 2007, so well into our relevant 25 period. What's wrong with a policy saying, 100 1 "You're to take decisions in accordance with the 2 Code for Crown Prosecutors"? 3 A. Well, firstly, going back to an earlier 4 question, if those decisions are to be taken in 5 relation to a fairly defined range of possible 6 scenarios, there would be sense in your policy 7 addressing those scenarios and how decisions to 8 prosecute should be taken in those situations, 9 rather than referring -- just referring to 10 a code that is broader than that. 11 Secondly, if the nominated representative in 12 the business is making the decision and they may 13 not be a lawyer, then they need help as to how 14 to apply the Code for Crown Prosecutors, what 15 factors in it they need to focus on, how they 16 interact with each other, and so just being told 17 there is a code that will be applied may not be 18 enough. 19 It depends on who the nominated 20 representatives are, how they are trained, how 21 they are otherwise instructed beyond the scope 22 of this paragraph. But this paragraph, on its 23 own, doesn't make it clear. 24 Q. Reading on to 3.2.10 under the heading "Conduct 25 and Oversight of Investigations", the policy 101 1 tells us that: 2 "Royal Mail Group Security employees perform 3 a vital role on behalf of the public, the 4 Criminal Justice system and Royal Mail Group 5 Limited customers and employees. These 6 stakeholders must have absolute confidence in 7 the integrity, conduct and professional status 8 of Investigators. 9 "This means adherence to the laws, 10 regulations and codes along with their 11 respective Procedure and Standards referred to 12 above." 13 What's wrong with that, if anything? 14 A. Clearly, that is an entirely correct 15 observation, that that is what stakeholders 16 should have an absolute confidence in. Whether 17 this document and the references it makes at 18 this point to earlier parts of the document is 19 sufficient to ensure that, is a separate 20 question. 21 Q. So, overall, looking at this policy document, 22 your principal criticisms, is this right, are as 23 follows: it doesn't say who's in fact going to 24 take a decision to prosecute? 25 A. No. 102 1 Q. It doesn't explain the standards to be applied 2 and it doesn't explain how those standards are 3 going to be measured or audited to ensure that 4 they're being applied correctly? 5 A. And it doesn't identify, in addition to those, 6 how legal advice is to interplay into that 7 process. 8 Q. Thank you. 9 Can we go back to your report, please, at 10 page 27. I'm going to through the rest of (b) 11 to (j) in your examination of the policies but 12 without, on each occasion, going back to the 13 source. 14 A. Yes. 15 Q. You tell us -- and I think we've got time to fit 16 this in just before lunch -- at your 17 subparagraph (b), if we scroll down, please: 18 "The [RMG Limited] Criminal Investigation 19 and Prosecution Policy ..." 20 A. That's the one we just looked at, I think. 21 Q. Yes, quite right. Over the page to (c), thank 22 you at 28. Moving forward to April 2010: 23 "The Post Office Limited Security policy -- 24 [Fraud and investigation policy] identifies the 25 fraud investigation team as being in-house 103 1 investigators answerable to the Head of 2 Security. In relation to prosecutions at, 3 paragraph 3.15, it states: 'decisions to 4 prosecute will be taken by nominated 5 representatives in the business with 6 consideration to the advice provided by the 7 Royal Mail Group Criminal Law Team and where 8 there is sufficient evidence and it is in the 9 public interest'." 10 Is there any difficulty with that? 11 A. In this context, unlike the previous document, 12 there isn't a reference to the Code for Crown 13 Prosecutors and, therefore, no clear indication 14 as to how evidential sufficiency or the public 15 interest are to be assessed, providing those two 16 boxes are ticked. And again, my concern, which 17 may be overexacting but it is my concern, that 18 consideration to the advice provided by lawyers 19 could be interpreted as "As long as you've got 20 it, you don't have to follow it". 21 Q. So the principal problem, is this right, if 22 problem it is, is that, whereas three years 23 previously, there had been at least a reference 24 to the Code for Crown Prosecutors, that seems to 25 have evaporated? 104 1 A. Certainly in this particular document, it wasn't 2 there. 3 Q. So would a person taking a decision by reference 4 to this policy in April 2010 know that they've 5 got to apply the Code or not? 6 A. It would depend on what they were reading beyond 7 this. If this was all that they were applying, 8 then there's clearly the risk that they wouldn't 9 apply the Code. If they were looking at a wider 10 pool of policy instruction and/or training, then 11 they might extract it from that but they 12 certainly wouldn't get it from this. 13 Q. It doesn't say what "sufficient evidence" 14 means -- 15 A. No. 16 Q. -- nor give guidance on how to ascertain it -- 17 A. Right. 18 Q. -- nor explain what "the public interest" means? 19 A. As we'll see when we look at the Code in its 20 various iterations in due course, neither of 21 those is a one-line situation, although there 22 are a whole range of factors that are identified 23 as being relevant to the assessment of 24 evidential sufficiency and an even larger range 25 of factors that are relevant to the assessment 105 1 of the public interest. They're not 2 straightforward questions. 3 MR BEER: On that note, it's 1.00, sir, would that 4 be an appropriate moment to break until 2.00? 5 SIR WYN WILLIAMS: Yes, of course. Thanks very 6 much. 7 MR BEER: Thank you very much, sir. 8 (1.00pm) 9 (The Short Adjournment) 10 (2.00 pm) 11 MR BEER: Good afternoon, sir, can you see and hear 12 me? 13 SIR WYN WILLIAMS: I can, thank you. Yes. 14 MR BEER: Thank you very much. 15 Good afternoon, Mr Atkinson. Can we go back 16 to page 28 of your report, please? 17 A. Yes. 18 Q. On the screen, that's page 28. I think we'd got 19 up to (d); is that right? 20 A. Yes. 21 Q. So in this chronological run of policy documents 22 relevant to the issue of separation of functions 23 and separation of decision making, you turn to 24 the Royal Mail Group Prosecution Policy, which 25 carries two dates, but is in the same terms, of 106 1 October 2009 and April 2011, and states: 2 "The decision to prosecute Royal Mail 3 investigations in England and Wales will be 4 reached in agreement between the Human Resources 5 Director for the affected business unit or his 6 or her nominated representative, the nominated 7 representative from the Investigation team and 8 the lawyer advising." 9 The document at 5.5 addresses the process 10 where there is no agreement between those people 11 as to whether to prosecute or not. That's 12 obviously a change from the previous position? 13 A. Yes. 14 Q. But did you identify an issue or concern with 15 the policy being formulated in that way? 16 A. Well, it appeared, on my reading of it, to 17 identify who the nominated representatives may 18 have been in the earlier policies, which were 19 not spelt out in those, but it did suggest that 20 decisions as to prosecution would involve human 21 resources, amongst others, and that -- again, it 22 wasn't quite clear how the legal advice would 23 factor in to that process. So those were the 24 two areas that jumped out at me. 25 Q. Was there any concern that a member of the 107 1 investigation team would be a party to decision 2 making on whether the suspect should have 3 proceedings commenced against them? 4 A. Potentially, there's clearly no impediment to 5 the Investigation team having an input into the 6 process by which a decision is made. It would 7 be entirely normal, for example, for the police 8 to provide -- report and to provide their 9 assessment to the CPS before the CPS then made 10 the decision as to prosecution. So that 11 wouldn't be a problem. But, here, it does read 12 as if the decision to prosecute is a collegiate 13 matter with three parties, one of which is the 14 investigation team, one of which is the lawyer 15 and one of which is HR, and that, certainly in 16 my experience, is unusual. 17 Then the further stage, the -- where there's 18 disagreements, it's for the Criminal Law Team 19 and the Investigation team heads to come to 20 a decision as to what should be done. 21 Q. I think 5.5 envisages that HR are taken out of 22 the process? 23 A. Yes. 24 Q. Moving on to January 2011: 25 "... the Royal Mail Prosecution Decision 108 1 Procedure [provides] (at paragraph 4.4): 'the 2 Regional Human Resources Director, or in Post 3 Office cases the Senior Security Manager ... 4 will act as the "decision maker" in authorising 5 prosecutions or not. All decision makers will 6 be familiar with the evidential and public 7 interest test of the Code for Crown Prosecutors 8 and make decisions accordingly'." 9 So this seemed to suggest that it was the 10 Security Manager, in Post Office Limited cases, 11 who was the decision-maker. 12 A. Yes, and so, if I'm right in my reading of this 13 in conjunction with other policies, it would 14 therefore be the person with superintendence for 15 the investigation process who would then make 16 the prosecuting decision, and/or, depending on 17 the situation, the regional human resources 18 director. And, as I read it, they would be 19 tasked with understanding and applying the Code 20 for Crown Prosecutors, rather than being 21 an independent legal assessment and decision. 22 Q. The comments you made earlier, about assistance 23 being needed for non-lawyers with the terms of 24 and carrying into effect of the Code, apply 25 here, do they? 109 1 A. Yes. 2 Q. (f): 3 "The Royal Mail Prosecution Decision 4 Procedure [of] January 2011 ... at 5.1-2: 5 'A criminal lawyer will advise whether the case 6 papers meet the evidential test for prosecution 7 and provide advice on the most appropriate 8 action to be taken ... the PSO will forward the 9 relevant case papers to the appropriate Decision 10 Maker for a decision on whether it is in the 11 public interest to initiate a prosecution'." 12 What were the good or less than good points 13 about this iteration of the policy? 14 A. Well, clearly, it recognises the importance of 15 a lawyer providing advice. There isn't 16 a specific reference to the Code for Crown 17 Prosecutors but there is a reference to the test 18 from it, as to evidential sufficiency, as 19 opposed to the public interest test, and then 20 the decision is taken by the decision maker. 21 And this is 2011, so, if this is read in 22 conjunction with the policies above, then your 23 decision maker is again the -- either the person 24 with superintendence for the investigation 25 process or the Director for HR, so, again, it's 110 1 getting legal advice but the decision then being 2 made by someone else. 3 Q. (g): 4 "The Post Office Limited Criminal 5 Enforcement and Prosecution Policy, which [you] 6 understand can be dated to November 2012, 7 [provides] that 'decisions to proceed with 8 a prosecution will be taken by the Head of 9 Security of [Post office Limited], upon legal 10 advice'." 11 Was there any difficulty or concern with 12 that? 13 A. Only that, again, trying to rationalise these 14 policies with each other. The Head of Security 15 had earlier been identified as being the 16 superintendent of the investigation process. 17 So, again, it is the investigative arm that 18 makes the decision as to whether to prosecute or 19 not on advice, but an investigative, 20 effectively, decision. 21 Q. Thank you. Over the page to (h) please, moving 22 forward to November 2013, so coming towards the 23 end of the relevant period: 24 "The Post Office Prosecution Policy England 25 and Wales, dated November 2013, in contrast to 111 1 these earlier policies, stated that prosecution 2 decisions should be taken by a qualified lawyer 3 'independent of any Post Office Limited 4 Department having a direct financial or other 5 interest in prosecution'. It added in 6 a footnote that this was designed to mirror the 7 independence of CPS decisions." 8 A. And this is an important policy, this 9 November 2013 policy, first because of what 10 I highlight here, which is that it is -- I think 11 I'm right in saying -- the first policy that 12 I identified where it was a lawyer making the 13 decision on prosecution, as opposed to others 14 within the business. And, secondly, this 15 policy, in contrast to earlier policies, didn't 16 just refer to the Code for Crown Prosecutors but 17 set out in some detail, in the way that the Code 18 does, relevant factors, but Post Office specific 19 factors, that would inform both limbs of the 20 test for prosecution. 21 Q. We'll be coming back to look at the way it does 22 that when we come to charging decisions, which 23 is a subtopic -- 24 A. Yes. 25 Q. -- probably tomorrow. 112 1 I'm not going to deal with (i) and (j) 2 because they are policies or documents that are 3 either towards the end or outside of our period. 4 But, by this time, into 2014, did the Post 5 Office policies change? So, for example, in the 6 February 2014 policy, was it the case that, 7 rather than responsibility or accountability 8 being shared across a number of individuals, 9 that policy proposed an individual within Post 10 Office Limited to be appointed to take 11 responsibility? Then in the December 2015 12 proposed policy, essentially recommendations 13 being made on whether the decision should be to 14 prosecute or not, but the general counsel was 15 the final decision-maker? 16 A. Yes, so the -- I was a little concerned when 17 I read the February 2014 discussion paper, that 18 it either had appeared to me from the November 19 2013 policy that the question of who would make 20 the decisions had been resolved. It was going 21 to be a qualified lawyer independent of the Post 22 Office and then, in February 2014, there was 23 discussion about there being an identified 24 individual. 25 Clearly, both were going in the right 113 1 direction in terms of it being an independent 2 decision of the business. 3 Q. Is your overarching conclusion set out at 4 paragraph 56, at the foot of the page? 5 A. Yes. 6 Q. Namely: 7 "It follows that in the case of the Post 8 Office, throughout the Inquiry's relevant 9 period, there was no such distinction of roles 10 of investigator and prosecutor being undertaken 11 by separate agencies subject to separate 12 oversight, governed by separate Codes of 13 Practice and with an inevitable role the one 14 keeping the other in check." 15 A. Yes, and again, as I think I said this morning, 16 that doesn't have to be two entirely separate 17 organisations but it does have to be clearly 18 defined teams within organisation, where it is 19 clear which of them is ultimately making the 20 decision and, ideally, that ought to be 21 an independent lawyer, as it ended up being in 22 2013. 23 Q. You say: 24 "As will be seen, there are aspects of the 25 structure for disclosure under the Code of 114 1 Practice issued under the CPIA and the 2 guidelines issued by [His Majesty's] Attorney 3 General that similarly seek to divide 4 responsibility, and create cross-referring 5 superintendence of the disclosure regime, 6 between investigative agency on the one hand and 7 the prosecuting agency on the other. Where 8 those agencies are in fact the same agency, the 9 need to ensure that no blurring of lines of 10 responsibility and review becomes all the more 11 important." 12 A. Yes. 13 Q. You gave us an overview earlier on of this 14 issue. Just to restate it, in relation to this 15 point, the succession of policies which you 16 examined and the absence of a distinction of 17 roles, can you calibrate your level of concern? 18 A. Certainly in the earlier part of the period for 19 which I saw policies that identified who was 20 responsible for making prosecution decisions, it 21 was not clear that there was that independence 22 and delineation of role, and that is -- if that 23 is -- if I'm correct in that identification and 24 understanding of the policy position, that is 25 a serious shortcoming. 115 1 Q. Thank you. That can come down from the screen. 2 Moving to a separate subtopic: the role of the 3 prosecutor. You tell us in your report that the 4 proper role of the prosecutor, in the decisions 5 that they take as to whether to charge in 6 ensuring fair and proper disclosure in the 7 proceedings, and in the conduct of the 8 proceedings more generally, emerge from 9 a succession of decisions of the court, in 10 particular the Court of Appeal, from the Bar 11 Code of Conduct and from the recommendations of 12 the Farquharson committee; is that right? 13 A. Yes. 14 Q. Dealing with that trilogy of sources, can we 15 start with decisions of the court and I think 16 we're at page 19 of your report on paragraph 37. 17 A. Yes. 18 Q. Page 19. Thank you. So this is the first set 19 of sources that we're looking to, decision of 20 the courts, as to the role of the prosecutor. 21 You take us to the decision of a Court of Appeal 22 in Puddick and I think that was a decision made 23 in 1865; is that right? 24 A. It was, yes. 25 Q. So quite some vintage. Mr Justice Compton told 116 1 us that: 2 "... prosecution counsel 'are to regard 3 themselves as ministers of justice, and not to 4 struggle for a conviction'." 5 Then, moving on, the decision of again, 6 I think, a Court of Appeal in Banks, which 7 I think was a 1916 decision or at least reported 8 in that year, Mr Justice Avory made similar 9 observations: 10 "It is quite true that counsel for the 11 prosecution throughout a case ought not to 12 struggle for the verdict against a prisoner, but 13 that they ought to bear themselves rather in the 14 character of ministers of justice assisting in 15 the administration of justice." 16 In the remainder of that paragraph, you make 17 a point that, although the judges in one of 18 those cases was addressing how prosecution 19 counsel had expressed themselves in a closing 20 speech, I think, the point is a broader one. By 21 that, do you mean broader in that it involves 22 other stages of the prosecutorial enterprise, 23 charge, disclosure and the like, or that it 24 applied to individuals other than counsel, or 25 both? 117 1 A. It certainly applied to counsel in a broader 2 context just than the content of their closing 3 speech, the concept of the prosecutor as 4 a minister of justice, which has been developed 5 and developed since, those references at the end 6 of the 19th century and early into the 20th, in 7 terms of them being independent and seeking 8 always to put the proper administration of 9 justice at the forefront of what they do rather 10 than it being the winning that matters. 11 That is what those judges were talking about 12 in those cases and that is what that concept has 13 reflected since then, and with a wider 14 understanding, as things have developed, that 15 it's talking about the prosecution, rather than 16 just prosecution counsel, as it's gone on. 17 Q. So the answer is both: it's other parts of the 18 prosecutorial enterprise -- 19 A. Yes. 20 Q. -- and it's not just prosecution counsel? 21 A. Yes. 22 Q. Thank you. The second source of the description 23 of the duty, acting as a minister of justice and 24 all that that involves, I think you say emerges 25 from the Farquharson committee of 1986; is that 118 1 right? 2 A. Yes. 3 Q. You address that in paragraph 38 of your report. 4 A. Yes. 5 Q. If we can just read that, please. The second 6 line you say: 7 "The introductory paragraphs of the 8 Farquharson report state: 'There is no doubt 9 that the obligations of prosecution are 10 different from those of counsel instructed for 11 the defence in a criminal case or of counsel 12 instructing in civil matters. His duties are 13 wider both to the court and to the public at 14 large. Furthermore, having regard to his duty 15 to present the case for the prosecution fairly 16 to the jury, he has a greater independence of 17 those instructing him than that enjoyed by other 18 counsel. It is well known to every practitioner 19 that counsel for the prosecution must conduct 20 his case moderately, albeit firmly. He must not 21 strive unfairly to obtain a conviction; he must 22 not press his case beyond the limits which the 23 evidence permits; he must not invite the jury to 24 convict on evidence which in his own judgement 25 no longer sustains the charge laid in the 119 1 indictment. If the evidence of a witness is 2 undermined or severely blemished in the course 3 of cross-examination, prosecution counsel must 4 not present him to the jury as worthy of 5 a credibility he no longer enjoys ... Great 6 responsibility is placed upon prosecution 7 counsel and although his description as 8 a 'minister of justice' may sound pompous to 9 modern ears, it accurately describes the way in 10 which he should discharge his function'." 11 A. Yes. 12 Q. I'm not going to read the summary of the 13 Farquharson committee's views in the 14 propositions that you set out in paragraph 39 15 but, instead, can we turn to paragraph 40 on 16 page 21. You tell us that: 17 "... these principles, in relation to the 18 duty of fairness and the application of the 19 interests of justice to the prosecution and the 20 prosecutor, equally apply in a private 21 prosecution ..." 22 That's the headline point, is it? 23 A. Yes. 24 Q. "... as was demonstrated, for example, in Zinga 25 ..." 120 1 I think that's a 2014 decision of the then 2 Lord Chief Justice Lord Thomas -- 3 A. Yes. 4 Q. -- Mr Justice Foskett and Mr Justice 5 Hickinbottom. Lord Chief Justice Lord Thomas 6 said at paragraph 61, he was speaking for the 7 court: 8 "... advocates and solicitors who have 9 conduct of private prosecutions must observe the 10 highest standards of integrity, of regard for 11 the public interest, and duty to act as 12 a minister of justice (as described by 13 Farquharson J) in preference to the interests of 14 the client who has instructed them to bring the 15 prosecution. As Judge David QC, a most eminent 16 criminal justice, rightly stated in [the Maxwell 17 case], in respect of a private prosecution: 18 'traditionally Crown counsel owes a duty to the 19 public and to the court to ensure that the 20 proceeding is fair and in the overall public 21 interest. The duty transcends the duty owed to 22 the person or body that has instituted the 23 proceedings and which prosecutes the indictment 24 ...'" 25 So in short the Farquharson principles 121 1 encapsulated in that phrase, that a prosecutor 2 must act as a minister of justice, are 3 recognised to apply not just to public 4 prosecutors but to private prosecutions and to 5 advocates and solicitors conducting them? 6 A. Yes, and, as with Kay, that we looked at this 7 morning, Lord Thomas was not saying anything new 8 in 2014 in that regard, as, for example, his 9 reference to the 1980 decision of Maxwell 10 underlines. 11 Q. Yes. So that's not just a nice point being made 12 that common law, when it's stated by a court, 13 has always been the common law. It's 14 a different point that you're making that this 15 wasn't the first recognition of the application 16 of the Farquharson principles to private 17 prosecutors? 18 A. Absolutely. 19 Q. It had been established, including in Maxwell? 20 A. Yes. 21 Q. Can we turn to the role of independent counsel. 22 That can come down from the screen. Thank you. 23 Would you agree that any barrister 24 practising in criminal law and particularly any 25 barrister that prosecuted ought to be aware of 122 1 their Farquharson duties as independent 2 ministers of justice? 3 A. Yes. 4 Q. Would you expect any such counsel instructed to 5 prosecute to review the evidence in the case and 6 advise if they felt the evidence did not support 7 the charge or the prosecution more generally? 8 A. Yes. 9 Q. Would you agree that the Post Office was 10 entitled to place reliance on the fact that the 11 counsel that it instructed would exercise those 12 degrees of independent scrutiny -- 13 A. Yes. 14 Q. -- and advise accordingly? 15 A. Yes. 16 Q. Of course, that depends on, does it not, the 17 revelation of the material to that counsel to 18 allow them to perform that function? 19 A. Yes. 20 Q. Were you aware that the conduct of Post Office 21 prosecutions was undertaken primarily by counsel 22 instructed from the independent bar? 23 A. Yes, and certainly I -- now that I'm up to my 24 neck in Part 2, I see that a lot. 25 Q. And would you accept the proposition that, given 123 1 that role of counsel and their instruction to 2 prosecute for the Post Office, that was 3 independent oversight of the Post Office's 4 prosecutorial decisions? 5 A. It was a degree of independent oversight but it 6 very much would always depend on what was 7 disclosed to counsel as part of the process to 8 enable them to undertake that oversight. 9 Q. Do you want to explain that in any more detail? 10 A. Well, clearly, if counsel were making the 11 initial decision to whether a charge should be 12 brought or not, then they had an independent 13 role at that stage. 14 I have to say that the cases I've been 15 looking at for Volume 2, that doesn't appear to 16 be what was happening, that decisions were made 17 in-house and then counsel were then instructed. 18 It would then be for counsel to advise on the 19 evidence, as it was presented to them, which 20 would often involve them looking at the 21 investigation report and that -- an assessment 22 from the investigation and the evidence that was 23 served upon them. 24 Q. Just stopping there, Mr Atkinson. Had you seen 25 many formal instructions to counsel to advise on 124 1 evidence, and if that's a question too far at 2 the moment, then we'll come back to it in 3 Volume 2? 4 A. I can think of, off the top of my head, two of 5 the 20 that I've looked at so far, where I've 6 seen instructions at all, and I don't recall 7 there being a specific request for advice on 8 anything in particular. I have seen in some of 9 the cases I looked at a degree of advice from 10 counsel, based on what they had been given. 11 Q. Thank you. In terms of other forms of 12 oversight, would you regard the Magistrates 13 Court as providing scrutiny and oversight of the 14 Post Office's prosecutorial practices and 15 decision making because it could, in any 16 particular case refuse to issue a summons? 17 A. Clearly, the Magistrates Court can refuse to 18 issue a summons but that is why the duties of 19 candour to the Magistrates Court is so 20 important, because the Magistrates Court can 21 only fulfil that role properly if it is told not 22 only that which underpins the allegation but 23 also anything that may count against the 24 prosecution of that allegation. 25 So, for example, if that prosecution would 125 1 represent an abuse of process, there is 2 a requirement that that is identified and, if 3 that doesn't happen, then it's rather difficult 4 to see how the Magistrates Court can carry out 5 any realistic oversight. 6 Q. Would you regard the Crown Court, for those 7 cases that reached the Crown Court, as providing 8 supervision and oversight of the Post Office's 9 prosecutorial practices and prosecution decision 10 making? 11 A. Again, it can fulfil that role but, again, it 12 depends on that court being seized of the 13 necessary information to undertake that process. 14 So for example, again in the 20 cases that I've 15 been looking at more recently, there was 16 certainly at least one where there was an abuse 17 of process application. There were a couple 18 where there were applications for further 19 disclosure, pursuant to section 8 of the CPIA, 20 and that's -- after the defence have set out 21 their case in the defence statement, they can 22 submit to the court that there hasn't been 23 proper disclosure to them as a result of that. 24 And so those were occasions on which the 25 Crown Court could have addressed those issues 126 1 but it clearly depended on what they were told 2 in response. 3 Q. So there were occasions in the criminal process, 4 in the Crown Court, where opportunities arise to 5 test evidential sufficiency -- 6 A. Yes. 7 Q. -- through an application to dismiss or 8 a halftime submission? 9 A. Yes. 10 Q. There are occasions that arise where 11 applications for disclosure can be made under 12 Section 8, as you've just described, of the 13 CPIA? 14 A. Yes. 15 Q. Do they provide oversight and scrutiny of 16 prosecutorial practices and prosecutorial 17 decision making? 18 A. Again, I think the answer is that they can do 19 but they very much depend on the prosecution 20 approaching its role with that "minister of 21 justice" hat squarely on, that the prosecution 22 are making the court aware of the shortcomings 23 of its case and the validity of any argument 24 raised against it, so that the court can 25 properly undertake its task. If the court is 127 1 not put in possession of the facts then it can't 2 carry out an oversight of that which it doesn't 3 know. 4 Q. To add to the obvious point that you just made, 5 courts are obviously only cited on a small part 6 of the information that a prosecutor may be in 7 possession of? 8 A. Yes, and so now we're -- as an illustration of 9 that, where cases are served in a digital format 10 and the court has access to the digital folder 11 for the case, it will not often have access to 12 the unused material sections of that, and the 13 same was the case, ordinarily, when things were 14 served on paper, that the court would have the 15 served case not the unused material, that which 16 had been disclosed but was not part of the 17 prosecution's evidence, and so wouldn't be able 18 to carry out that sort of exercise for itself. 19 It would need to be told that there was an issue 20 and what the material was. 21 Q. We're going to come to disclosure later but, 22 just for those that are watching or listening 23 that aren't aware of the distinction between the 24 served case and the unused material, can you in 25 a sentence or two explain what that is, please? 128 1 A. I'll give it a go. So the served cases is the 2 material that the prosecution rely on to prove 3 its case and to establish, if all goes its way, 4 the guilt of the accused. 5 Other material that is in the prosecution's 6 possession, which is acquired during the course 7 of the investigation and which may undermine its 8 case or assist that of the defendant, ought to 9 be disclosed to the defence, ought to be 10 recorded in schedules of unused material, so 11 it's wider material than that which is relied on 12 and would be called before a jury, but which is 13 nevertheless generated or acquired during the 14 investigation. 15 Q. To add two points to the limitation of the 16 oversight function, do courts proceed on the 17 basis that prosecutions are being pursued 18 competently and professionally in accordance 19 with the minister of justice duties? 20 A. Yes. 21 Q. Is there a limitation on oversight in cases 22 where guilty pleas are entered, in particular at 23 an early stage of the process? 24 A. Yes, and so, if there is a charge before the 25 court and the court is told the defendant is 129 1 pleading guilty to it, it's unlikely the court 2 would dig into the material to decide for itself 3 whether the defendant was right to be doing 4 that. They would rely on the parties to have 5 reached that position responsibly. 6 Q. Can we turn to motives for prosecuting, please, 7 and this is page 22 of your report at 8 paragraph 44. If we can just read that 9 together: 10 "In relation to the motivation of a private 11 prosecutor, the approach of the Court of Appeal 12 in Asif v Ditta, the decision's primary focus 13 was as to whether the Crown Court judge had been 14 entitled to stay proceedings brought by 15 a private prosecutor as an abuse of process 16 where satisfied that the proceedings were being 17 brought by a proxy for a person with 18 a significant background in fraud, for 19 collateral purposes and for an improper motive. 20 The Court of Appeal declined to interfere with 21 the decision, observing 'the court has the power 22 to stay proceedings ... where it will be 23 impossible to give the accused a fair trial, and 24 ... where it offends the court's sense of 25 justice and propriety to be asked to try the 130 1 accused in the particular circumstances of the 2 case'." 3 On to paragraph 45: 4 "However, [the court] went on to observe 5 that 'it is well established that a private 6 prosecutor can have another motive as well as 7 being motivated by a public interest factor. 8 Mixed motives are not of themselves a bar to 9 a private prosecution ... the question is where 10 the line is to be drawn between the public 11 interest motivation and the other "oblique" 12 motive'. [The court] cited in support of the 13 latter observation the earlier decision of 14 Ex parte South Coast Shipping Limited. In that 15 case challenge was unsuccessfully made to the 16 bringing of a private prosecution by the 17 bereaved family of one of those who died in the 18 Marchioness disaster. The fact that the family 19 also wanted a public inquiry did not prevent 20 such a prosecution." 21 Then on to 46: 22 "That approach was also adopted by the 23 Administrative Court in R (Smith-Allison) v 24 Westminster Magistrates Court [2021] EWHC 221 25 Admin, in which Mr Justice Eady observed at 131 1 paragraph 48: 'although a prosecution whether 2 public or private, must not be improperly 3 motivated, the courts have recognised that, in 4 any private prosecution, a prosecutor will have 5 a motive other than simply a desire that justice 6 be done and that a criminal offence, if proven, 7 should be punished'." 8 Mr Justice Eady carried on by citing from 9 D Limited v A & others, in which Lord Justice 10 Davis observed: 11 "'... mixed motives may often be present in 12 many prosecutions. In a public prosecution, the 13 proceedings will be brought in the public 14 interest; but the actual complainant may often 15 be accused of (say) seeking revenge after 16 a relationship has failed, and so on. This may 17 sometimes indeed be the case but the true motive 18 of the complainant may still be to seek justice. 19 In a private prosecution, the complainant of 20 course is frequently the prosecutor. But there 21 too it is well established that mixed motives do 22 not of themselves vitiate the prosecution ...'." 23 So it's right, isn't it, that the law has 24 established that, whilst private prosecutors may 25 properly have a mixed motive for bringing 132 1 a prosecution, which won't vitiate their 2 decision, that did not mean either that the Post 3 Office was permitted to derogate from the need 4 to make decisions on an objective basis or that 5 they could make decisions on the basis only of 6 such motives? 7 A. No. Absolutely. 8 Q. Was there any evidence in any policy documents 9 that you've seen of the Criminal Law Team or its 10 leadership being required to monitor 11 prosecutions, for example by dip sampling, in 12 order to ascertain whether prosecutors were 13 meeting their legal duties? 14 A. I can't think of any examples of that, no. 15 Q. That prosecutors were applying the code test 16 properly and diligently? 17 A. Again, this is perhaps slightly more a Volume 2 18 question, a question of whether the charging 19 advices that I saw showed that. I think it 20 would be difficult, looking at them on their 21 own, to say that they did fully apply both limbs 22 of the Code for Crown Prosecutors, particularly 23 the public interest limb, which was regularly 24 not addressed at all in the advices that I saw. 25 Q. Just sticking at the moment, reining ourselves 133 1 back in to Volumes 1 and 1A, in the policy 2 documents that you saw, did you see any 3 requirement of the Criminal Law Team leadership 4 being required to monitor or oversee whether 5 prosecutors were applying the Code tests 6 properly? 7 A. Again, I can't think of any. 8 Q. For example, whether they were making 9 appropriate decisions about disclosure or 10 non-disclosure? 11 A. In terms of monitoring that process? 12 Q. Yes. 13 A. Again, I can't think of examples of that. 14 Q. To did you see any evidence on their face that 15 the policies concerning the investigators' 16 duties and the prosecutors' duties within the 17 Post Office were themselves reviewed or audited 18 by any external third parties, such as 19 solicitors or barristers? 20 A. Clearly, as my report highlights, the various 21 policies were updated at intervals. In the 22 main, I don't think I saw any evidence as to why 23 they were updated or who updated them, or what 24 had led them to do that. I think the difference 25 is, I think the 2013 policy that we touched on 134 1 a little earlier, that clearly came about as 2 a result of work that was undertaken by 3 Cartwright King and, from memory, at that stage, 4 Brian Altman KC, as to their review of how 5 prosecutions were being done and those policies 6 were the result of that. 7 So there was that independent involvement at 8 that stage but I can't think of comparable 9 evidence in relation to earlier policies. 10 Q. Thank you. Can we turn, please, to the conduct 11 of investigations? 12 A. Yes. 13 Q. You consider the conduct of investigations 14 between paragraphs 57 to 117 of your report and 15 you go back to it at 366 to 370 of your report. 16 Can we start, please, page 31 at paragraph 59. 17 You're here in paragraph 59, I think, referring 18 to the power of the Secretary of State to issue 19 Codes of Practice under the Police and Criminal 20 Evidence Act, PACE, 1984, in relation to the six 21 topics or activities that you mentioned in (a) 22 to (f)? 23 A. Yes. 24 Q. These are all very well known, certainly to the 25 Chair of the Inquiry. So I'm not going to look 135 1 too much at the terms of the codes nor to their 2 statutory basis. Can we move on to paragraph 3 60, please. You say: 4 "In an approach similar to that intended to 5 be achieved by Section 26 [of the] CPIA, which 6 is considered in more detail below and which 7 requires others involved in criminal 8 investigations to have regard to the Code issued 9 under the CPIA which sets out the manner in 10 which investigators should 'record, retain and 11 reveal to the prosecutor material obtained in 12 a criminal investigation', application of these 13 PACE codes [that's the six codes you've 14 identified] to investigators beyond the 15 immediate ambit of PACE is achieved by 16 Section 67 [of] PACE." 17 So here you're drawing attention to the fact 18 that the PACE Codes of Practice apply primarily 19 to the conduct of the relevant activities by 20 police officers? 21 A. Yes. 22 Q. But by a statutory device, their reach is 23 extended beyond the police officers? 24 A. Yes. 25 Q. This is achieved by Section 67(9) to (11) of 136 1 PACE -- 2 A. Yes. 3 Q. -- 67(9) providing: 4 "Persons other than police officers who are 5 charged with the duty of investigating offences 6 or charging offenders shall in the discharge of 7 that duty have regard to any relevant provision 8 of such a code." 9 That's any one of the six codes? 10 A. Yes. 11 Q. "A failure on the part of ... any person other 12 than a police officer who is charged with the 13 duty of investigating offences or charging 14 offenders to have regard to any relevant 15 provision of such a code in the discharge of 16 that duty, shall not of itself render him liable 17 to any criminal or civil proceedings." 18 But in (11): 19 "In all criminal and civil proceedings any 20 such code shall be permissible in evidence; and 21 if any provision of such a code appears to the 22 court or tribunal conducting the proceedings to 23 be relevant to any question arising in the 24 proceedings it shall be taken into account in 25 determining that question". 137 1 So what's the importance of these provisions 2 in our present context? 3 A. It's recognised that whether a person other than 4 a police officer is charged with a duty of 5 investigating offences or charging offenders is 6 a question of fact, depending on the 7 circumstances but it seemed to me, when I first 8 started to approach this, that it was -- it 9 would be difficult for the Post Office to argue 10 that its Investigation Department was not 11 charged with a duty of investigating offences 12 and, therefore, that it did fall within this and 13 was therefore required to have regard to these 14 codes and, in fairness, it was clear to me when 15 I then looked at the Post Office policies that 16 they accepted that and they recognised that. 17 Q. They thought they did too? 18 A. Yes. 19 Q. So, in general terms, your view would be that 20 Post Office investigators were charged with the 21 duty of investigating offences and the Post 22 Office recognised that themselves? 23 A. Yes. 24 Q. It would be your view that Post Office employees 25 were charged with the responsibility of charging 138 1 offenders with criminal offences -- 2 A. Yes. 3 Q. -- and the Post Office recognised that too? 4 A. Yes. 5 Q. So that means that there was a duty on each 6 class of individual to have regard to any 7 relevant provision of a Code of Practice when 8 discharging those duties? 9 A. Yes. That they recognised that courts that they 10 would then be taking any such case to would be 11 looking to them for their compliance or 12 otherwise with those codes and the protections 13 that they were designed to give. 14 Q. So let's turn over the page to page 33, then, 15 and see what the Post Office policies tell us 16 about what needs to be done to comply with PACE 17 and, in particular, the Codes of Practice under 18 PACE. I think that's your subheading there -- 19 A. Yes. 20 Q. -- "Post Office policies relating to PACE", and 21 paragraph 64 onwards. You say: 22 "In the Consignia Investigation Procedure of 23 January 2001, there are limited references to 24 PACE and the Codes ..." 25 Under "Enquiry methods": 139 1 "At 3.3.1 [the policy said] 'the 2 investigator should endeavour to ascertain the 3 facts in an effort to solve the case. There is 4 no compulsion to anyone involved unless it is 5 considered to be necessary or expedient.'." 6 Are there any difficulties or problems with 7 that? 8 A. It is largely a statement of the obvious. It 9 perhaps didn't assist as much as it could have 10 done as to identifying when it would be 11 necessary or expedient to question people but 12 that would be the only comment I'd make on that. 13 Q. So it's more what it doesn't say than what it 14 does? 15 A. Yes. 16 Q. "At 3.1.2 [the same document] states 17 'Investigations. Collection of facts in 18 accordance with the Police and Criminal Evidence 19 Act and the other legislation'." 20 You tell us there is no reference in the 21 document to the application or otherwise of the 22 Codes in relation to arrest, search, seizure or 23 interviews. Is that the problem you identified 24 with it? 25 A. Yes, the Police and Criminal Evidence Act is 140 1 a vast doorstop of a piece of legislation and it 2 would not help someone looking at this on its 3 own to know what that meant to them. 4 Q. You turn to a different policy but say that the 5 same approach and the same comments apply, 6 namely your (c), by your reference to the Post 7 Office rules and standards policy issued in 8 October 2000, which identifies the investigators 9 are bound by PACE and the Codes without saying 10 how? 11 A. Yes, so it was absolutely correct to identify 12 that, by reference to section 67(9), that they 13 were bound by them or that they were to have 14 regard to them. They went further than that and 15 that was a good thing. But then, stopping short 16 of giving them the people who were going to be 17 doing it, on the face of that policy, the 18 necessary information as to what that meant to 19 them, and it's of notable -- we'll come on to 20 it -- that was something that the Post Office 21 developed a lot in their policies going forward 22 from there. So clearly there was, as I see it, 23 a recognition by them, looking back, that this 24 wasn't enough. 25 Q. So this is an example, an early example, of what 141 1 you described earlier: essentially, name 2 checking an Act of Parliament -- 3 A. Yes. 4 Q. -- but not doing anything else? 5 A. Yes. 6 Q. In paragraph 65, you note that within the 7 October 2000 policy there is a cross-reference 8 to comprehensive training notes having been 9 issued or to be issued. I think, by the time 10 you wrote your report, you had been provided 11 with the Security Foundation Programme "Open 12 learning on PACE Codes of Practice" workbook -- 13 A. Yes. 14 Q. -- which you thought might be the 15 cross-reference -- 16 A. Yes. 17 Q. -- to the comprehensive notes? 18 A. Yes. 19 Q. They set out the background to the Codes, the 20 areas addressed by each code, and then in 21 slightly more detail the relevance to a Post 22 Office investigation of codes B, searching; C, 23 detention and questioning; and E, tape recorded 24 interviews. 25 A. Yes, and so it seems to me that those training 142 1 materials did provide a good deal more 2 information as to which codes applied and how 3 they applied, and they were talking about the 4 codes that were the logical ones for them to be 5 talking about. 6 Q. However, in your paragraph 66, you identify 7 three points for us through problems. Can you 8 see first you say that: 9 "... [the] training notes do not amount to 10 a 'comprehensive' guide to how those Codes 11 should be applied in an investigation, by whom 12 and to whom." 13 Do you want to explain what you meant by 14 that, please? 15 A. So they identified what the code was, what its 16 purpose was, but didn't, it seemed to me, 17 provide sufficient guidance to someone who was 18 going to benefit from that training as to what 19 then they were to do, using that code, when they 20 were to use it, and so it didn't, in and of 21 itself, deal with the lack of information in the 22 policies from that period of time as to how the 23 codes were to be applied by investigators. 24 Q. You make a second point that it wasn't adequate 25 to expect those undertaking criminal enquiries, 143 1 criminal investigations, to rely on notes given 2 during a training session because, as you'd made 3 clear already, the statutory and policy 4 framework inevitably alters and such notes will 5 be rendered out of date? 6 A. Yes. 7 Q. You say in the last part of the paragraph there: 8 "Further, it can be properly argued ..." 9 You use that formulation a number of times 10 in there. When I'm speaking with my children 11 I sometimes use that formulation to make clear 12 that I'm not entirely sure of my ground. Is 13 that how I should read that or is there 14 something more definitive in your mind? 15 A. I think my concern was that I was conscious that 16 I had not seen the full range of training 17 material that was available. I became aware, 18 through my reading of what I was given, that 19 there was a database in existence, which I had 20 not seen -- the contents of which I had not 21 seen. 22 Q. I think that remains the position for -- 23 A. That remains the position -- 24 Q. -- both you and the Inquiry? 25 A. -- yes. So it's difficult for me to be more 144 1 clear-cut than that, not knowing what other 2 sources of material were available that could be 3 added to what I had seen in relation to, for 4 example, the application of the PACE Codes to 5 investigators. 6 Q. So it could be that the most up to date versions 7 of the CPIA Code or indeed the PACE Codes were 8 readily available in that database. You don't 9 know one way or the other? 10 A. And that -- I have seen very recently some 11 examples of circulars that appeared to have been 12 generated by or in conjunction with that 13 database, that did -- certainly from memory -- 14 include at least one occasion when the circular 15 referred to an updated version of a particular 16 PACE Code, I think code G, and so, on the face 17 of that, there may be not only up-to-date 18 versions of the Code available to investigators, 19 but they were being told -- if they were the 20 ones who were receiving the circulars -- which, 21 again, I don't know -- may have been told that 22 there was an up-to-date version. 23 It has to be said that the circular that I'm 24 talking about just said there is a new version 25 of Code G; it didn't tell anyone anything more 145 1 than that. 2 Q. Would you agree or disagree with the suggestion 3 that it's not enough to have up-to-date Codes of 4 Practice on a database but, instead, the Post 5 Office investigators and prosecutors needed to 6 know from a policy what they had to access and 7 how they should apply it in their circumstances? 8 A. It is a good thing, in my view, a good thing to 9 have a database that has the up-to-date versions 10 of applicable statutes, codes, guidelines, 11 available, but that is not a substitute for it 12 being clear to, for example, an investigator 13 that these are the things they have to apply, 14 how they have to apply them, when they have to 15 apply them, and how they can be satisfied that 16 they have applied them properly. 17 And so it's a part of the picture. It is 18 not, in my view, a substitute for there being 19 a policy that says these are the criteria you're 20 meant to be applying in this situation by 21 reference to Code C, and then they can 22 understand which bits of Code C apply to them 23 when, and they can check they're up to date then 24 by looking at the database informed by the 25 policy, but not one without the other. 146 1 Q. What about the point that the Codes of Practice 2 are generally drafted in a way that they make 3 clear what's required of an investigator or 4 a prosecutor on their face, that they're -- 5 because they're written in that kind of 6 language, there was no need for such codes to be 7 more than referred to in the policies 8 themselves; they needn't be paraphrased or 9 summarised or carried into effect in the 10 policies? What do you say to that suggestion? 11 A. It's certainly right that the aim of the codes, 12 as drafted, is to make them as accessible as 13 possible. The difficulty with that though is 14 that the PACE Codes are primarily designed for 15 use by police officers, by reference to the 16 powers of police officers, which are different 17 in important respects from the powers of persons 18 who aren't police officers and, therefore, as in 19 fairness to the Post Office, recognised there 20 were powers available to police officers, duties 21 that flowed from those for police officers, that 22 did not apply to them. 23 And so simply to provide someone with 24 a code, however clearly written, parts of which 25 apply to them and parts of which didn't, parts 147 1 of which applied as written, parts of which 2 applied in a slightly different anyway to them, 3 would not be enough. They needed to understand 4 the difference and the difference came from 5 policy being set out clearly for them against 6 the background of training. 7 It's the combination of the three that makes 8 sure that someone, particularly someone who is 9 not a police officer, knows how a police code 10 applies to them. 11 MR BEER: Thank you, Mr Atkinson. 12 Sir, it's 3.00, I wonder if we could take 13 now the afternoon break until 3.15? 14 SIR WYN WILLIAMS: Yes, that's fine, thank you. 15 MR BEER: Thank you very much. 16 (2.58 pm) 17 (A short break) 18 (3.15 pm) 19 MR BEER: Sir, good afternoon. Can you see and hear 20 me? 21 SIR WYN WILLIAMS: Yes, thank you. 22 MR BEER: Thank you very much. 23 Mr Atkinson, can we pick up a few questions 24 where I left off. Would you accept the idea 25 that there was an inherent value to the 148 1 simplicity of the Post Office policies that 2 we've seen, with detail being contained in Acts 3 of Parliament, codes of practice and other 4 policy documents that were obtainable by 5 investigators or prosecutors elsewhere? 6 A. No. 7 Q. Why is that? 8 A. For the reasons that we were discussing before 9 the break. If the aim is to achieve correct and 10 consistent application of the law, it is not 11 enough to tell people where it is. You need to 12 tell them how they are meant to apply it, and 13 there are different ways of doing that: through 14 training and making those sources of law 15 available to them; but also by telling them what 16 parts of, for example, a vast Act of Parliament 17 they're meant to be looking at and how it 18 applies to them and when it applies to them, and 19 simply name checking is not going to do that, in 20 my view. 21 Q. Would you accept that the Police and Criminal 22 Evidence Act, the CPIA, and the Codes of 23 Practice issued under each of those Acts were 24 freely available online for anyone to go and 25 look up? 149 1 A. Yes. 2 Q. Is that sufficient? 3 A. No, and on my reading of the policies in 4 relation to PACE, the Post Office clearly did 5 not think it was sufficient because they develop 6 their policies in relation to, for example, 7 interviewing, so that by the end of the 8 Inquiry's period of particular concern, there 9 was a raft of policies in relation to different 10 contexts in which they might be interviewing 11 different kinds of person about different things 12 and how they were to do that. 13 So it was clearly recognised it was not 14 enough to have a policy that says, "If you're 15 interviewing somebody, this is the Code you need 16 to read, and it's online". They recognised that 17 and, in my view, they were right to recognise 18 that. 19 Q. Given that you accept that Post Office 20 investigators received some training in respect 21 of the police and Criminal Evidence Act and the 22 CPIA that may have been relevant to their work, 23 would you accept that they would, therefore, 24 have known of the existence of the Acts, the 25 codes and the guidelines online and, therefore, 150 1 could have looked at them as and when required? 2 A. There is, in my view, a significant difference 3 on what I have seen between the degree of 4 training in relation to the Codes under the 5 Police and Criminal Evidence Act, on the one 6 hand, and the CPIA and the Codes under the CPIA, 7 on the other. I saw very limited material in 8 relation to the latter. 9 In relation to PACE, again, the training 10 was -- would clearly have been of value, having 11 the material online would have been of value 12 but, in my view, and as it seems to me was 13 recognised ultimately, more was needed and, 14 ultimately, more was given. 15 Q. Given, as you said today, that training 16 materials would not necessarily reflect the 17 up-to-date amendments to Codes and to guidance, 18 wouldn't you, therefore, accept that there is 19 great sense in not including the detail of the 20 guidance in any of the policies but, instead, to 21 have the most up-to-date sources of law 22 available in either a database or online? 23 A. The better approach, it would seem to me, would 24 be that when a new version of the Code came out, 25 you updated your policy so that the two 151 1 continued to run together. Just as, for 2 example, the Attorney General updates the 3 Attorney General's Guidelines in relation to 4 disclosure when the CPIA Code changes, and just 5 as the CPS has updated historically its 6 disclosure manual, its Code for Crown 7 Prosecutors and its other guidance, as the law 8 has evolved, the law is never static, and policy 9 needs to move with it, rather than be so bare in 10 its detail that it doesn't have to be. 11 Q. Thank you. Can we turn to a new topical, 12 please, the CPIA and the CPIA Code of Practice. 13 A. Yes. 14 Q. This is paragraph 76 of your report on page 39. 15 Firstly, and in very general terms, can you 16 explain to us what the CPIA is? 17 A. The Criminal Procedure and Investigations Act is 18 an Act that seeks to do a variety of things, but 19 the key part of it, for present purposes, is 20 that it sought to set out in statutory form the 21 process and the stage process that was necessary 22 in relation to disclosure in criminal 23 proceedings. So, going back to what we were 24 talking about earlier, in addition to the 25 service of the material that the prosecution was 152 1 relying on as part of its case, what its duties 2 were for the disclosure of wider material 3 acquired during the investigation and how that 4 process was to operate with the involvement at 5 relevant stages of input from the defence. 6 And so the key sections are the early 7 sections of the Act which set out that stage 8 disclosure process and then Section 23, which 9 you can see referred to at paragraph 77 of my 10 report, which was and is the key section that 11 required the Secretary of State to prepare 12 a Code of Practice for how that process was to 13 be undertaken and what the interaction between 14 investigator and prosecutor should be to ensure 15 that process did happen and happened fairly. 16 Q. Thank you. Is it right that some parts of the 17 CPIA apply to proceedings commenced by the Post 18 Office? 19 A. Yes. 20 Q. So that would include the disclosure obligations 21 in Part 1 of the CPIA? 22 A. Yes. 23 Q. Other parts of the CPIA apply only directly to 24 criminal investigations undertaken by the Police 25 Service? 153 1 A. Yes, and that is clear, for example, because it 2 refers to police officers in various sections, 3 for that reason. 4 Q. I am going to look at a more direct reason in 5 a moment, just to nail that down as to why those 6 parts only applied directly to police officers. 7 Then we'll move on to how they apply indirectly 8 to the Post Office. You set out for us, if we 9 just scroll down, please, Section 23 which you 10 said is of fundamental importance of the CPIA, 11 and you can see that it says that: 12 "The Secretary of State shall prepare a code 13 of practice containing provisions designed to 14 secure -- 15 "that where a criminal investigation is 16 conducted ..." 17 Then it continues. 18 You'll see the words "where a criminal 19 investigation is conducted" there, yes? 20 A. Yes. 21 Q. I just want to examine whether those words, 22 "criminal investigation" are a term of art, 23 a defined term. I think we have to look at 24 section 22 of the CPIA to establish that and 25 I think we'll have to look at the Act to find 154 1 that. That is RLIT0000079, it's your tab C14. 2 RLIT0000079. Perfect. 3 If we can go to page -- I think it's 15. 4 Thank you. It's an introductory section to 5 Part II of the CPIA and, remember, I'd 6 highlighted those words in 23(1)(a), a criminal 7 investigation. 22 provides: 8 "For the purposes of this Part a criminal 9 investigation is an investigation conducted by 10 police officers with a view to it being 11 ascertained", et cetera. 12 A. Yes. 13 Q. So is that the first reason why the direct 14 applicability of the Code issued under 15 Section 23 is only in relation to criminal 16 investigations being conducted by police 17 officers? 18 A. Yes, although interestingly, as we will see, the 19 Post Office disclosure policies in 2001 and then 20 in 2010 refer to that definition of a criminal 21 investigation for the purposes of the Post 22 Office as well. 23 Q. Yes. Albeit that's not in fact the statutory 24 route -- 25 A. No. 155 1 Q. -- by which they were required to have regard to 2 it? 3 A. No, but it showed their recognition of what 4 that -- what it was talking about. 5 Q. Thank you. If we go back to your report, 6 please, on page 40 at paragraph 78. Page 40, 7 please, paragraph 78. You say: 8 "[The] CPIA goes on to address matters that 9 the Code may or may not address. The terms of 10 the section make clear, in so doing, that the 11 Code will only directly apply to the conduct of 12 investigations by the police." 13 A. Yes. 14 Q. You picked up the reference to the police or 15 police officers in other parts of section 23. 16 So that's another reason making it clear -- 17 A. Yes. 18 Q. -- of the direct application? 19 You go on to say, if we go down to 20 paragraph 80, that: 21 "The application of the code issued under 22 section 23 ... to the police is also made clear 23 by the introduction to the Code itself." 24 Then you cite it. It's introduction in 25 paragraph 1.1-2. It: 156 1 "... applies in respect of criminal 2 investigations conducted by police officers 3 which begin on or after the day on which this 4 Code comes into effect." 5 But then this: 6 "Persons other than police officers who are 7 charged with the duty of conducting 8 an investigation as defined in the Act are to 9 have regard to the relevant provisions of the 10 Code, and should take these into account in 11 applying their own operating procedures. This 12 code does not apply to persons who are not 13 charged with the duty of conducting 14 an investigation as defined in the Act." 15 You say: 16 "This text appeared in the original 1997 17 version of the Code and has been unaltered ever 18 since." 19 A. Yes. 20 Q. I think we need to look at Section 69 -- sorry 21 Section 67(9) of the CPIA -- can we first look 22 at Section 76. That's paragraph 81. 23 A. Yes. 24 Q. If we just look, rather than going back to the 25 Act, the terms of the section, Section 26(1): 157 1 "A person other than a police officer who is 2 charged with a duty of conducting investigation 3 with a view to it being ascertained -- whether 4 a person should be charged with an offence, or 5 whether a person charged with an offence is 6 guilty of it, shall in discharging that duty 7 have regard to any relevant provision of a code 8 which would apply if the investigation were 9 conducted by police officers." 10 So that's the application of the Code on 11 a 'have regard' basis to non-police officers 12 where they are charged with a duty of conducting 13 relevant investigations. 14 A. Yes, and so it's that same wording as we saw in 15 relation to section 67 of the Police and 16 Criminal Evidence Act, the same "have regard 17 to". 18 Q. So the same device is used? 19 A. Yes. 20 Q. Similarly, in Section 26(2), the breach not 21 rendering such a person reliable to criminal 22 civil proceedings. The same but admissibility 23 under Section 26(3) the same too? 24 A. Yes. 25 Q. So that's the provision, is this right, which 158 1 you say meant that the Code -- I'm going to use 2 the word "applied" to the Post Office -- 3 A. Yes. 4 Q. -- and it's a "have regard to" duty? 5 A. Yes. 6 Q. Was there a different and more circuitous route 7 to this too? Section 67(9) of PACE required 8 investigators to have regard to note 11(b) of 9 Code C? 10 A. Yes. 11 Q. Note 11(b) of Code C says that: 12 "The CPIA Code of Practice states that, in 13 conducting an investigation the investigator 14 should pursue all reasonable lines of inquiry, 15 whether these point towards or away from the 16 suspect. What is reasonable will depend on the 17 particular circumstances. Interviewers should 18 keep this in mind when deciding what questions 19 to ask in an interview." 20 A. Yes. 21 Q. So summarising there, that's a more circuitous 22 route of the application to the Post Office of 23 the reasonable lines of inquiry duty at the 24 point of interview? 25 A. Yes. 159 1 Q. Can we turn, please, to page 42 of your report. 2 Where you address the issue of the recognition 3 of the CPIA and its duties in Post Office 4 policies. In this paragraph and up to 5 paragraph 92 of your report, on page 45, you 6 identify the presence of bare references to the 7 CPIA and its Code of Practice in Post Office 8 policies; is that right? 9 A. Yes. 10 Q. You identify the absence of any reference at all 11 to the duty to pursue reasonable lines of 12 inquiry? 13 A. I think until 2010. 14 Q. You identify the absence of guidance on what the 15 duty means in practice and how it is to be 16 achieved? 17 A. Yes. 18 Q. You identify the limited reference in training 19 material to the fact of the CPIA and its Code? 20 A. Yes, and in that respect, there was a contrast 21 between the material I saw in relation to PACE 22 and the material I saw in relation to the CPIA. 23 There was a lot more on PACE than there was on 24 the CPIA. 25 Q. Was a lot of that on PACE about the treatment of 160 1 a suspect in interview? 2 A. Yes. 3 Q. Was that the overwhelming majority? 4 A. It was the major topic, yes. 5 Q. How to interview a suspect? 6 A. Yes, and in fairness, the other Codes, for 7 example, as to arrests and searches, the Post 8 Office recognised that, in that kind of area 9 there was a lot of overlap between what actually 10 they could or couldn't do and what the police 11 therefore had to do in conjunction with them, 12 and so that's -- whereas interviews very much 13 were something they were doing themselves so 14 that did make sense. 15 Q. Have you any views to offer as to the adequacy 16 or otherwise of the treatment of the CPIA and 17 the Code in these policies? 18 A. So the two disclosure policies that were 19 produced, the one in 2001 and the one in 2010, 20 did give, or particularly the 2010, did give 21 an overview structure of what the CPIA and its 22 Code required of an investigator and 23 a prosecutor. So there was that material but 24 the absence from both of any detailed analysis 25 of how other sources of information in relation 161 1 to disclosure, such as the Attorney General's 2 Guidelines was a concern, and we'll come back, 3 I know, to that -- the absence of a reference 4 until 2010 of the requirement that 5 an investigation pursue all reasonable lines of 6 inquiry, including those leading away from the 7 suspect was in my view a fundamental omission. 8 It is an important and, in some respects, 9 counterintuitive requirement of a fair and 10 proper investigation, that you don't just look 11 for the evidence to prove your case; you look 12 for the evidence that shows your case is wrong 13 and/or that will afford a defendant a fair 14 exploration of your case. And, for that not to 15 be mentioned for the majority of the Inquiry's 16 relevant period is a significant failure, in my 17 view. 18 Q. So the absence for a decade of a reference to 19 the core duty was, have I understood it 20 correctly, a particularly striking failure? 21 A. Yes, and it's telling, in my view, that where 22 one looks at section 23 and what it was the 23 Secretary of State was required to prepare 24 a Code to address, the first thing that it was 25 meant to address was reasonable steps being 162 1 taken for the purposes of the investigation and 2 all reasonable lines of inquiry being pursued. 3 So it was identified from the outset, as 4 being a fundamentally important thing and so for 5 that to be a feature of the Act, a feature of 6 the Code, but not a feature of the policy that 7 was seeking to apply the Code to the Post 8 Office, is a real concern. 9 Q. If we just turn to page 45, please, and look at 10 paragraph 92. It's the last four lines. You 11 say: 12 "If it is proper to argue that the 13 limitations of PACE related policies had to be 14 balanced by the extent of PACE related training, 15 which is not an argument with which I agree for 16 reasons developed above, then the same argument 17 cannot be made in relation to the CPIA." 18 A. Yes. 19 Q. Can you just explain what you mean by that, 20 please? 21 A. Because, on the material I saw, there was so 22 little training material in relation to the CPIA 23 and its Code. If it were to be argued, well 24 what we did was we had a policy that identified 25 that the Act existed that it Code existed and 163 1 that people needed to know that they existed, we 2 then provided them with training so they 3 understood how they applied to them, and we had 4 them online up to date. That was an argument 5 that you could make, but with the problems that 6 I've identified in relation to PACE. But you 7 can't make on what I have seen in relation to 8 the CPIA because the training just wasn't there 9 on what I saw. And, again, I haven't seen the 10 database and there is that qualification. 11 Q. Thank you. Can we turn, please, to paragraph 12 106 of your report on page 50. It's about 13 halfway down. Thank you. Under the 14 cross-heading "The application of the CPIA Code 15 by the Post Office". You tell us in 106 that: 16 "It is of not that the Post Office 17 'Disclosure of Unused Material -- Criminal 18 Procedure and Investigations Act 1996 Code of 19 Practice' policy, issued in May 2001, defines 20 a criminal investigation in line with the CPIA 21 definition." 22 Is that the point you were making just a few 23 minutes ago? 24 A. Yes. 25 Q. "It says at paragraph 3.1, it is 164 1 an investigation 'with a view to ascertaining 2 whether a person should be charged with 3 a criminal offence or if charged with an offence 4 is guilty of it'." 5 The same wording appeared in later policies 6 of 2009, 2011, 2012, 2013, and also appeared in 7 the policy on "Disclosure of Unused Material" in 8 July 2010. 9 So is the point that you're making in 106, 10 have I got it right, that these policies all 11 define a Post Office criminal investigation in 12 a way that triggers the duties in the way that 13 we've seen in Section 26 of the CPIA. 14 A. Yes. 15 Q. Good. 16 Paragraph 107, please. You tell us: 17 "The 'Disclosure of Unused Material -- 18 Criminal Procedure and Investigations Act 1996 19 Codes of Practice' policy was issued in 20 May 2001. It addresses the roles of the 21 investigator and disclosure officer, without 22 specific cross-reference to the CPIA Code. It 23 is 3 pages long ... 24 "The essential points in terms of roles are 25 ..." 165 1 Then you set out the role, over the page, of 2 an investigator being someone involved in the 3 conduct of a criminal investigation who has 4 a duty in particular to record and retain 5 information: 6 "They share a duty with the disclosure 7 officer to 'be fair and objective and must work 8 together with prosecutors to ensure that 9 disclosure obligations are met'. 10 "The disclosure officer is the person 11 'responsible for examining material retained 12 during an investigation, revealing material to 13 Legal Services during the investigation and ... 14 certifying to Legal Services that he has done 15 this'. In contrast, arguably, to the CPIA Code, 16 the policy proceeds on the basis that the 17 investigator and disclosure officer will 18 'normally' be the same person." 19 So in paragraph 107, more generally, what 20 are the points that you were making as to the 21 existence of satisfactory provisions and 22 unsatisfactory provisions? 23 A. So the -- this 2001 policy had the basic 24 structure and the -- with one obvious exception: 25 that -- the key areas of the CPIA in relation to 166 1 disclosure and the Code in relation to 2 disclosure set out. And so, for example, both 3 the Act and the Code focus very much on what 4 I've characterised as the three Rs, the duties 5 to record, retain and review (sic) information, 6 and it correctly set out those matters. It set 7 out what the roles were in relation to those. 8 It did so in a fairly bare-bones way but, in 9 relation to those areas it covered, it would 10 allow for a degree of interaction in a useful 11 way between someone reading the policy and 12 someone reading the code that underpinned the 13 policy. It gave them steers on most but 14 unfortunately not all the key areas that applied 15 to them. 16 Q. Just on the three Rs, is the third R "review" or 17 "reveal"? 18 A. It's "reveal". You're quite right, yes. 19 Q. Any other issues arising from paragraph 107? 20 A. The other area in relation to that is that the 21 Code and the Act identify as separate roles that 22 of investigator and disclosure officer, and they 23 are identified as separate roles because they 24 are separates jobs with separate 25 responsibilities. It's recognised in the Codes 167 1 that those can be undertaken by the same person 2 and I am aware that, particularly in smaller 3 police investigations, they are undertaken by 4 the same person, but there was a difference 5 which I therefore highlighted, that the Post 6 Office policy identified that they would 7 normally be undertaken by the same person, 8 rather than that they could be undertaken by the 9 same person. 10 Q. Thank you. Paragraph 108, please. This is 11 another in the line of Post Office policies that 12 fails, is this right, to identify what needs to 13 be done? 14 A. It again identified the roles, it again 15 identified that they would normally be 16 undertaken by the same person but without any of 17 the surrounding detail as to what that actually 18 meant and, if the same person is to undertake 19 both roles, there's perhaps a greater need for 20 exactly what that meant and how it was to be 21 done, to be spelt out. 22 Q. "The Consignia Investigation Procedure of 23 January 2001 [you tell us in paragraph 109], 24 makes limited references to the CPIA and the 25 Codes issued thereunder. It refers to 168 1 circumstances in which records relating to 2 surveillance equipment should be retained (see 3 paragraph 3.2), and the retention of notebooks 4 in compliance with CPIA retention periods (see 5 paragraph 3.3). It does not seek explicitly to 6 mesh with the 'Disclosure of Unused Material -- 7 Criminal Procedure and Investigations Act 1996 8 Codes of Practice' policy ..." 9 You say: 10 "It is of note that the training materials 11 relating to notebooks that appears to have been 12 in use at this period of time (by reference to 13 its copyright date of 2000) do not refer to the 14 duty of retention, the CPIA, or [even] this 2001 15 policy document." 16 A. Yes, so really the point I make there is the 17 lack of cross-reference and someone charged with 18 an investigative duty reading the investigative 19 procedure is not being told in that procedure 20 that they have also to apply a separate policy 21 and, which has wider ambit of implications for 22 them as an investigator than the investigation 23 procedure alone would have told them. 24 Q. If we can read through paragraph 110 together, 25 please. You, tell us that: 169 1 "The Post Office Limited Financial 2 Investigation Policy, in its May 2010 version 3 made no specific reference to the CPIA or the 4 Code issued thereunder, although it did identify 5 as an aim (see paragraph 3.1) adherence to UK 6 and EU legislation." 7 Is that sufficient to say we must adhere to 8 UK and EU legislation in a policy of this kind? 9 A. It's a commendable aim but there's an awful lot 10 of it and it might have helped more if they'd 11 specified which bits they had in mind for 12 adherence in this context. 13 Q. You continue: 14 "The revision to this policy in February 15 2011 added a procedures and standards section 16 which identified adherence with the CPIA. It 17 was silent as to the manner in which this was to 18 be achieved, save for adding that financial 19 investigators should 'ensure that all 20 investigations are recorded correctly and in 21 a timely manner'. Similarly, the casework 22 management policy at 3.3 enjoined 'team leaders 23 should ensure all avenues of enquiry have been 24 exhausted', but it does not spell out that this 25 involves lines of inquiry leading away from the 170 1 suspect as to well as to implicate them." 2 A. Yes. 3 Q. I think you've, in explaining the policy, set 4 out the problems with them, as you've gone along 5 there; is that right? 6 A. Yes. 7 Q. Is there anything you want to add to -- 8 A. No, thank you. 9 Q. -- 110? 10 At paragraph 111, you tell us that: 11 "There are some acknowledgements of the 3Rs 12 [you've just explained those to us] to be found 13 in the Post Office policies that [you] have 14 considered, albeit they are limited and far from 15 comprehensive. In the Investigation Procedures 16 [of January 2001] it states (at paragraph 3.2) 17 'local records may be required as evidence or 18 unused material. If so, they must be kept in 19 connection with the Post Office Codes of 20 Practice under the CPIA' and in relation to 21 notebooks (at paragraph 3.3) 'where used in 22 evidence, notebooks must be retained in 23 compliance with the retention periods set out in 24 the Post Office Code of Practice under the 25 CPIA'." 171 1 You say: 2 "I have not seen the Code to which this 3 refers, but the Post Office [Code of] Conduct of 4 Criminal Investigations Policy [of] August 2013, 5 states in relation to the duty to record ... 'it 6 is important to document every action, decision 7 and reason for decisions being made during the 8 course of [an] investigation'. That policy also 9 noted ... that 'all activities undertaken during 10 an investigation should be recorded on the event 11 log'." 12 So here you're addressing the extent to 13 which Post Office policies over the years 14 acknowledged or even referred to the three Rs. 15 A. Yes. 16 Q. You say they're limited and far from 17 comprehensive. Again, could you help us by 18 calibrating the level of concern, if any, that 19 you have about this? 20 A. Well, it -- my level of concern may rather 21 depend on what the Post Office Code of Practice 22 under the CPIA was. If it was the disclosure of 23 unused material, Criminal Procedure and 24 Investigations Act 1996 Codes of Practice that 25 was issued in May 2001, then that would, by the 172 1 cross-reference, ensure that someone approaching 2 their duty to record the various matters set out 3 here would also have understood how that meshed 4 with the CPIA. If it's not that, then I haven't 5 seen it, it's certainly not got the same name as 6 the document I've just referred to, which may 7 not help. 8 Q. No. 9 A. But so my level of concern would very much 10 depend on whether they're talking about 11 a cross-reference to the CPIA procedure or not. 12 If they are, then the position is perhaps less 13 concerning than it would be otherwise. But, 14 really, what I've done here is identify 15 occasions when the duty to record is given in 16 specific examples, giving the specific examples 17 is a good thing but helping people to understand 18 why they're meant to be doing it and what 19 they're going to do with it later, in terms of 20 disclosure and revelation to the prosecutor, 21 would make it a more effective process. 22 Q. If it assists, I don't think we still have 23 a document that's entitled "Post Office Code of 24 Practice under the CPIA". 25 Moving on to paragraph 112, you tell us 173 1 that: 2 "That 2013 policy ..." 3 That's the Post Office Conduct of Criminal 4 Investigations Policy of August 2013; is that 5 right? 6 A. Yes. 7 Q. "... did also address the supervision and 8 conduct of a criminal investigation. Under 9 [a heading it said] 'the decided course of 10 action needs to be proportionate and necessary. 11 It may, if the circumstances warrant be more 12 appropriate to consider other actions that could 13 be done and don't necessarily lead to a criminal 14 investigation ... proper consistent supervision 15 is vital to ensure that cases are thoroughly 16 investigated and submitted in a timely manner. 17 Team leaders with the support of financial 18 investigators need to quality assure the 19 investigation [to make] sure prior to initial 20 submission that all available evidence has been 21 gathered'." 22 Then it continued. If we scroll down to 23 113, please, it continued: 24 "... 'it is important to consider the aims, 25 objectives and scope of the investigation. The 174 1 Security Manager is required to "prepare 2 an investigation plan which will outline the 3 terms of reference in the way the investigation 4 will be conducted". It ... made reference ... 5 to the standard of proof [which] was necessary 6 in criminal investigations including those which 7 involved material from the Horizon System. It 8 stated 'The security manager has been tasked to 9 prove or dispel the allegation. In criminal 10 cases where the burden of proof is beyond all 11 reasonable doubt, it is necessary to draw on all 12 available evidence which is likely to 13 substantiate the allegation. In cases 14 concerning the Horizon System, it is important 15 to establish of the level of training the 16 suspect received, when this was received and 17 action the subject took to remedy any identified 18 faults. A key point to cover template has been 19 produced to ensure that security managers 20 establish these facts during the interview 21 process ...' Sources of evidence to be collated 22 were then identified." 23 You make a number of points on this even 24 August 2013 policy, right at the end of the -- 25 A. Yes. 175 1 Q. -- relevant period, in your paragraph 114. You 2 tell us that: 3 "There was [some] recognition ... looking at 4 material that led away from the suspect ..." 5 A. Yes. 6 Q. Is that the line, "It may, if the circumstances 7 warrant, be more appropriate to consider other 8 actions that could be done and don't necessarily 9 lead to a criminal investigation"? 10 A. It's also the reference to the Security Manager 11 being tasked to prove or dispel the allegations, 12 so looking both at that which helps establish 13 a case and that which undermines it. 14 Q. But you say, that was only a passing 15 observation -- 16 A. Yes. 17 Q. -- it was "without explanation as to the 18 implications". What do you mean, "without 19 explanation to the implications"? 20 A. It was just those words: that the Security 21 Manager has been tasked to prove or dispel the 22 allegation. It would, in my view, have made 23 that clearer, if they were referred to the words 24 of the CPIA Code test, namely that they should 25 pursue all reasonable lines of inquiry that lead 176 1 towards or away from the suspect -- or the 2 wording of the CPIA, in that respect -- so it is 3 clearer what that involves them doing. 4 Q. You say that you're going to consider 5 paragraph 5.5.9 "in a moment", which we will, 6 but you say: 7 "... the focus [of] 5.5.7 was on the 8 strengthening of the case against a suspect, 9 rather than identifying whether he might not be 10 correctly suspected." 11 A. Yes, so having said "prove or dispel the 12 allegation". It then goes on to talk about all 13 available evidence, which is necessary to 14 substantiate the allegation. 15 Q. So giving with one hand but taking away with the 16 other? 17 A. Yes. 18 Q. Then when it mentions Horizon, is it right that 19 the policy said that in cases concerning 20 Horizon, one must refocus one's attention on the 21 training given to the suspect -- 22 A. Yes. 23 Q. -- and that what he, the suspect, did to remedy 24 a fault? 25 A. Yes. 177 1 Q. You tell us in (b) that: 2 "... there was no reference to the 3 consideration of, or ... investigation of or 4 disclosure of, anything that might suggest 5 a failure in the operation of the system, as 6 opposed to failure by the suspect ..." 7 A. Yes, so it was focused on the operator, not the 8 system that they were seeking to operate. 9 Q. Did that remain the case in the 2014 issue? 10 A. Yes. 11 Q. Did that remain the case in the 2018 edition? 12 A. Yes. 13 Q. Albeit that I think you tell us that Horizon was 14 identified as a specific interview topic? 15 A. Yes. 16 Q. So did you have any concerns or observations on 17 this, the specific mention of what's called 18 a Horizon-related investigation or cases 19 concerning the Horizon System, but focusing 20 attention back on the suspect? 21 A. The potential concern there was that, in a case 22 where the evidence was Horizon dependent, the 23 focus would still be on whether the person 24 operating the system had had the training to use 25 it with a view to establishing that they 178 1 therefore should have been able to operate it 2 correctly, rather than any consideration of 3 whether, despite their training, there was 4 an issue that was beyond their control in 5 relation to the reliability of the evidence from 6 the system. 7 So it rather was borne out in some of the 8 material I saw for the purposes of Volume 2 that 9 there was questioning in interview about 10 training, there was the obtaining of evidence in 11 relation to training in relation to Horizon, 12 with a view to establishing that they should 13 have been able to work the system properly with 14 the then conclusion, potentially being drawn, 15 that therefore it couldn't have been a user 16 error; it must have been a deliberate action by 17 the user that something had gone wrong, but 18 without considering the other possibility that 19 was always potentially there: namely, that there 20 was a problem with the system, not them. 21 Q. Are you aware of any high-profile cases 22 concerning prosecutions by the CPS, where it 23 transpires that information contained on the 24 Police National Computer, the PNC, had been used 25 in support of prosecutions but was incorrect? 179 1 A. No. That's not to say that there weren't any, 2 but I'm not aware of them. 3 Q. Thank you. 4 A. There certainly weren't any cases prosecuted by 5 me. 6 Q. Yes, very good. 7 Can we turn to paragraph 115, please, which 8 is on page 54 -- 9 A. Yes, thank you. 10 Q. -- which you promised to come back to in 11 a moment, earlier in your report. You say that 12 5.5.9, this is again still the August 2013 13 policy states: 14 "... 'The security manager must not overlook 15 the fact that a fair investigation is there to 16 establish the truth as well as substantiate the 17 allegation, so it is important that any evidence 18 uncovered that may support the subject's 19 position is also recovered. It is important to 20 document every action, decision and reason for 21 decisions being made during the course of the 22 investigation'." 23 You say that paragraph reflects 24 paragraph 3.4 of the CPIA Code and "the need to 25 consider evidence that exonerates as well as 180 1 implicates". You say: 2 "It is of note that it was in what appears 3 to be the 2018 reviewed and amended version of 4 this policy that the need for schedules of 5 unused material was addressed." 6 A. Yes. And so the point I'm making is that, 7 whilst I had identified limitations to the 8 references to the duty to pursue all reasonable 9 lines of inquiry, including those leading away 10 from the suspect at paragraph 5.5.7 of this 11 policy, that that balance was moved back towards 12 a proper appreciation of what that duty was by 13 paragraph 5.5.9. So someone reading the two 14 would be in a better position to understand what 15 was required of them than someone just reading 16 the first of those. 17 Q. You say: 18 "Similarly [in paragraph 116], the July 2010 19 revision of the Royal Mail 'Disclosure of Unused 20 Material' policy did expressly state, under the 21 heading of duties of investigators and 22 disclosure officers, at para 3.2: 23 "'Investigators must pursue all reasonable 24 lines of inquiry, whether these point towards or 25 away from the suspect.'" 181 1 A. Yes. 2 Q. Is that the anchoring of the point you've 3 already made a couple of times already, it's not 4 until July 2010 -- 5 A. Yes. 6 Q. -- that we actually see the core duty 7 reflected -- 8 A. Yes. 9 Q. -- in the documents you've seen? 10 A. Yes, absolutely. 11 Q. "'What is reasonable in each case will depend on 12 the particular circumstances. For example where 13 material is held on a computer, it is a matter 14 for the Investigator to decide which material on 15 the computer it is reasonable to enquire into 16 and in what manner'. That policy replicates the 17 definitions of material and relevance set out in 18 the Code ... and then addresses the 3Rs ... 19 retention, record and revelation." 20 A. Yes. 21 Q. Just in terms of the reference to material being 22 held on a computer, it's a matter for the 23 investigator to decide what material on that 24 computer is reasonable to enquire into and in 25 what manner. Have you any observation to make 182 1 in relation to the quality and extent of that 2 guidance, in cases which are founded upon data 3 produced by a computer? 4 A. What I think that sentence is intended to 5 replicate, because the 2010 policy was designed 6 to give effect to the 2005 Attorney General's 7 Guidelines, amongst other things, was the 8 recognition that disclosure obligations in 9 relation to a -- the content of a computer did 10 require an assessment of what was proportionate 11 to identify, in interrogating the computer and 12 how you were going to do that and what 13 involvement there would be from the defence, 14 which was something that was built on by 15 subsequent Attorney General's Guidelines in 2011 16 and 2013. 17 So I think that's the context there for that 18 that, rather than it having any reference to the 19 assessment of the reliability of computer data 20 as a potential line of enquiry. 21 Q. Thank you. Moving on to paragraph 117, you say 22 that: 23 "The Post Office Prosecution Policy England 24 and Wales, dated November 2013 ... addressed 25 disclosure in a more detailed manner more akin 183 1 to comparable CPS documents." 2 So it is, by this time, the end of the 3 period we're looking at, that one sees some 4 convergence; is that right? 5 A. Yes. 6 Q. "It states (at paragraph 6.2): 'Post Office 7 Limited will take all reasonable steps to 8 identify and record material which may meet the 9 test for disclosure [making specific reference 10 to CPIA section 3 in a footnote] ... in doing so 11 the Post Office will operate a continuous 12 process designing to identify any material 13 whether the subject of a criminal investigation 14 or not which may relate to the integrity and 15 reliability of Post Office Limited's IT and data 16 systems'." 17 Is that the first reference you've seen in 18 policies which recognises the need to identify 19 material that concerns the integrity and 20 reliability of the Post Office's data systems? 21 A. Yes, certainly from my recollection, I think 22 that's right. 23 Q. That's November 2013? 24 A. Yes. 25 Q. "In keeping with this more detailed 184 1 consideration of disclosure in 2013, there is 2 evidence of training that specifically addressed 3 disclosure in November 2012, which included 4 an 'introduction' to the 'Principles of 5 Disclosure', the role of the disclosure officer, 6 the types of material that fell to be considered 7 and the schedules that were required to address 8 the disclosure exercise. Thereafter, a set of 9 training slides for a Presentation on Principles 10 of Disclosure were prepared in February 2015 in 11 similar terms." 12 However, you point out: 13 "Neither could be described as comprehensive 14 or sufficient in [themselves] to ensure CPIA 15 compliance." 16 A. Yes. 17 Q. Why do you say that? 18 A. As with other training material that I've seen, 19 they are clearly useful and they clearly will 20 help but it wouldn't be enough to provide 21 someone with a set of training slides. Going 22 forward they would need to have a more 23 comprehensive policy of the kind that the 2013 24 policy in many respects was, and so I -- the 25 point I'm making is the training in and of 185 1 itself was not enough. You needed the policy as 2 well. 3 That was a position that was achieved in 4 a much more thorough and satisfactory way from 5 2013 onwards and in stark contrast to the 6 position before that. 7 Q. Standing back, what are your views on the 8 adequacy or otherwise of this suite of policies, 9 insofar as the CPIA and the Code issued under it 10 are concerned, from an investigator's 11 perspective? 12 A. The policy from 2001 onwards did give a correct 13 and, in many respects, helpful overview of what 14 was required and who it was requiring to do 15 what, but the omission of the duty in relation 16 to all reasonable lines of inquiry was 17 an important omission. The lack of reference to 18 the types of lines of inquiry that ought to be 19 considered, like that of the integrity and 20 reliability of data systems, which finally found 21 its place in 2013, again, was an omission. 22 So they were -- the earlier policy documents 23 were helpful, insofar as they went, but they did 24 not, in my view, equip investigators properly to 25 appreciate what their duties as investigators 186 1 were in the fundamental respect of looking for 2 material that exonerated as well as implicated 3 a suspect. 4 Q. On the core duty, the reasonable lines of 5 inquiry duty, given the centrality of it in 6 Section 23(1), do you think it can be said that 7 because it was so obvious, from Section 23(1), 8 that it follows that investigators must have 9 known about it? 10 A. That would -- I suppose the process would then 11 be that they received their training -- although 12 I've seen very limited material in relation to 13 what that training would have covered or not, 14 and so whether it would have covered that 15 fundamental duty or not -- they would have 16 received the 2001 policy that made no reference 17 to it, and would have not led them to consider 18 that aspect of the Code as necessarily being one 19 that applied to them, and so it would have 20 required them to then look beyond the policy, 21 identify there was something in the Code that 22 was not addressed in the policy, identify that, 23 despite that, it applied to them, and to have 24 applied it -- rather than to have considered 25 that the policy told them which bits of the CPIA 187 1 and its Code applied to them, and just look at 2 those. 3 Q. Was there anything in any of the policy 4 documents that you have read that suggested to 5 an investigator what they should do if a suspect 6 raised the operation of the Horizon System as 7 a possible explanation for losses during their 8 interview under caution? 9 A. I think the short answer to that question is no. 10 They could have understood from the policy that 11 they were required to disclose material that 12 undermined the prosecution case and, therefore, 13 if they had ready access to that, to material 14 that did that, and supported the defence case in 15 that respect, then they ought to have disclosed 16 it. Given the lack of more than the barest of 17 reference in the 2001 policy to the Attorney 18 General's Guideline, they may not have 19 appreciated, just by reference to that, that 20 they were under a duty to address that 21 third-party material in relation to that topic. 22 And so there's an outside chance that they might 23 have realised that they needed to pursue that, 24 if it was raised by someone in interview, but 25 equally, a chance that they wouldn't. 188 1 Q. If they had failed to do so, would you consider 2 that the prosecutor -- and by that I mean 3 a lawyer reviewing whether there was sufficient 4 evidence to charge or not -- or a lawyer in fact 5 having conduct of a prosecution post-charge, to 6 have advised that lines of inquiry should be 7 pursued if a suspect had raised the operation of 8 the Horizon System as being an explanation for 9 shortfalls shown in their accounts? 10 A. So a prosecutor reading and understanding the 11 CPIA Code and the Code for Crown Prosecutors in 12 each of the various iterations of both of those 13 would have understood, or should have 14 understood, that they were under an obligation 15 to consider whether there were lines of inquiry 16 that ought to be pursued, that the content of 17 a suspect's interview would highlight such lines 18 of inquiry. And so applying those, they should 19 have, where it was raised in interview, raised 20 the question as to whether -- and that had been 21 investigated or not, and if not, that it should 22 be. 23 But that would require them to be looking at 24 those Codes, rather than at any Post Office 25 policy that specifically was telling them that 189 1 that's what they ought to do. 2 Q. Can we turn to paragraph 141 of your report, 3 please, which is on page 67. 4 A. Thank you. 5 Q. I'm taking things slightly out of order here 6 because we're going to come back to charging 7 decisions tomorrow. It's just a point on the 8 contents of the October 2018 iteration -- 9 A. Yes. 10 Q. -- of the Code for Crown Prosecutors. In the 11 third sentence or third line you say: 12 "The Full Code Test should be applied 13 (paragraph 4.3): 'when all outstanding 14 reasonable lines of inquiry have been pursued; 15 or prior to the investigation being completed, 16 if the prosecutor is satisfied that any further 17 evidence or material is unlikely to affect the 18 application of the Full Code Test, whether in 19 favour of or against a prosecution'." 20 Is it right that those qualifications there, 21 the introduction of the cross-reference to "all 22 outstanding reasonable lines of inquiry have 23 been pursued" appeared for the first time in the 24 2018 edition -- 25 A. Yes. 190 1 Q. -- of the Code of Practice? 2 A. Yes. 3 Q. Similarly, if we look at paragraph 146 of your 4 report, which is at the foot of page 68, you 5 cite paragraph 4.8 of the Code for Crown 6 Prosecutors, and you say: 7 "It follows that the reliability of the 8 evidence is identified as being a central 9 consideration ... together with the question of 10 'whether there is any material that may affect 11 the assessment of the sufficiency of evidence, 12 including examined and unexamined material in 13 the possession of the police, and material that 14 may be obtained through further reasonable lines 15 of inquiry'." 16 Is that an addition? 17 A. That wording is, yes, in 2018. It's right to 18 say that the requirement for the reviewing 19 lawyer to provide advice as to lines of inquiry 20 and the need for further evidence was always, 21 and had been, for certainly throughout the 22 Inquiry's period, had always been an aspect of 23 the Code. So that wording was new in 2018. The 24 role of a prosecutor in identifying evidential 25 deficiencies, lines of inquiry that should be 191 1 pursued, was not new in 2018 and certainly had 2 appeared in the versions of the Code that I have 3 identified from 2004 onwards. 4 Q. Thank you. Then lastly, before we break, if we 5 just turn to paragraph 151 on page 70. 6 You cite paragraph 3.6 of the Code: 7 "... 'Review is a continuing process and 8 prosecutors must take account of any change in 9 circumstances that occurs as the case develops. 10 This includes what becomes known of the defence 11 case, any further reasonable lines of inquiry 12 that should be pursued, and receipt of any 13 unused material that may undermine the 14 prosecution case or assist the defence case, to 15 the extent that charges should be altered or 16 discontinued or the prosecution should not 17 proceed'." 18 Is that also a 2018 addition? 19 A. Yes and no, is the answer to that. "The 20 continuing process of review and the need to 21 take account of changes in circumstances as the 22 case develops" is a wording that did appear in 23 the earlier versions of the Code. The further 24 specific reference to the defence case, and what 25 that gave rise to, that was the new bit. 192 1 MR BEER: Thank you very much. 2 Sir, if it's convenient to you, it's 3 convenient to me, that's a break. We move next 4 to charging decisions. 5 SIR WYN WILLIAMS: Yes, that's fine, Mr Beer. 6 It's been a long and interesting, from my 7 point of view, day. Thank you very much, 8 Mr Atkinson, for the clarity of your answers and 9 the economy of words used. 10 I take it you won't want to be told not to 11 speak to anyone about your evidence, since 12 I can't imagine you will want to. But if, by 13 chance, there is any reason why you should speak 14 to anyone, then let Mr Beer know, who will 15 consult with his colleagues about what would be 16 appropriate for you to do, all right? 17 THE WITNESS: Yes. Thank you very much, sir. 18 MR BEER: So it's 10.00 tomorrow, please. 19 SIR WYN WILLIAMS: Fine. Thank you. 20 (4.17 pm) 21 (The hearing adjourned until 10.00 am 22 the following day) 23 24 25 193 1 I N D E X 2 RICHARD DUNCAN ATKINSON KC (sworn) ............1 3 Questioned by MR BEER .........................1 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 194