1 Friday, 6 October 2023 2 (10.00 am) 3 (Proceedings delayed) 4 (10.10 am) 5 RICHARD DUNCAN ATKINSON KC (continued) 6 Questioned by MR BEER (continued) 7 MR BEER: Good morning, sir, can you see and hear 8 me? 9 SIR WYN WILLIAMS: Yes, I can, thank you. 10 MR BEER: Apologies for the delayed start, down to 11 me entirely and a problem with my computer. 12 SIR WYN WILLIAMS: Well, I'm not entirely surprised 13 that occasionally there can be problems with 14 computers! 15 MR BEER: Yes. The problem was identified very 16 quickly and remedied. 17 SIR WYN WILLIAMS: Thank you. 18 MR BEER: Sir, can we turn to charging decisions. 19 We were in your report, Mr Atkinson -- good 20 morning -- at page 55. 21 A. Yes. 22 Q. So that's EXPG0000002, and page 55, please. 23 Thank you. 24 From this paragraph, paragraph 118 onwards, 25 right up to paragraph 132 of your report, you 1 1 consider the charging decision process and the 2 charging decision process at the Post Office, as 3 reflected in policy documents. 4 A. Yes. 5 Q. You essentially address two questions, would 6 this be right -- and I'm drawing this from the 7 document -- rather than you expressly stating 8 it, was the structure of the charging 9 decision-making process sufficiently well 10 defined in the policy so as to ensure 11 consistency, rigour and fairness, according to 12 the law? 13 A. Yes. 14 Q. That would be one question. 15 A. Absolutely. 16 Q. Secondly, did the structure provide for 17 sufficient oversight at a senior and/or 18 independent level? 19 A. Yes. 20 Q. Thank you. Before we get to the answers to 21 those questions, can I briefly address, if 22 I may, the comparators and the sources of 23 material that you identify. Firstly, can we go 24 to paragraph 128 of your report, which is on 25 page 59. You address -- if we just get the 2 1 heading there, so we can see what we're looking 2 at, just scroll up a tiny bit please, thank 3 you -- "The Director's Guidance on Charging". 4 Between this paragraph and 131 you address 5 and cite extensively from the Director's -- 6 that's the Director of Public Prosecutions -- 7 Guidance on Charging. Can you help us, when was 8 the Director's Guidance on Charging first 9 issued? 10 A. I haven't been able to identify a first version 11 but the requirement that the director should 12 introduce such guidance was brought into the 13 Police and Criminal Evidence Act by the Criminal 14 Justice Act of 2003, so it would have been 15 shortly after that. 16 Q. I've been able to track down a 2nd Edition dated 17 2005, so that would sound about right. 18 A. Yes. 19 Q. So after 2003 -- 20 A. Yes. 21 Q. -- but certainly before 2005, because we were on 22 a 2nd Edition? 23 A. Yes, and just to explain, the Police and 24 Criminal Evidence Act, as originally enacted, in 25 the main put the decision as to charge on the 3 1 part of a Custody Officer at a police station. 2 Those was then an increasing move away from the 3 decision being taken by the police and more 4 taken by the CPS and that's what the change in 5 the Criminal Justice Act 2003 was designed to 6 achieve. 7 Q. Yes, and I think there was a Section 37A into 8 PACE -- 9 A. Yes. 10 Q. -- which introduced a requirement to issue 11 guidance? 12 A. Yes. 13 Q. So the Guidance has been in existence for some 14 but not all of the relevant period that we're 15 looking at? 16 A. Yes. 17 Q. Can you tell us in summary what is the 18 Director's Guidance on Charging? 19 A. What it seeks to do is to make clear the process 20 by which the police should carry out -- once 21 they've carried out an investigation, then seek 22 advice, either during the course of that 23 investigation or certainly before a charging 24 decision is reached from the Crown Prosecution 25 Service, the duty on the prosecutor to assess 4 1 that investigation, and then to apply the Code 2 for Crown Prosecutors to it. 3 So it sets out the process and underlines 4 the independence of the decision to charge from 5 the decisions made during the course of 6 an investigation. 7 Q. Thank you. Would you agree that it's 8 a recognition that even the Code for Crown 9 Prosecutors does not provide every insistence as 10 to those who must make decisions about charging 11 a person with a criminal offence and that more 12 assistance was needed? 13 A. Yes. 14 Q. In any event, we -- can we take what you say 15 about the Director's Guidance from your 16 paragraph 132, which is on page 62, at the foot 17 of the page. You tell us: 18 "In summary, therefore, in cases involving 19 the police and CPS as the investigator and the 20 prosecutor, the structure of responsibility is 21 clear. That is that in all but the least 22 complex or serious of cases, the decision to 23 charge is a decision independent of the 24 investigator, and by reference to a clearly 25 defined two stage test taken by reference to 5 1 clearly defined material. The structure also 2 makes clear where the final decision lies." 3 A. Yes. 4 Q. You'll appreciate that I've skipped a lot of 5 material. I've skipped the material that you 6 have helpfully included in your report about the 7 development of the move away from charge within 8 a police station by a Custody Sergeant, the 9 increasing role of the Crown Prosecution Service 10 in either making decisions on charge, advising 11 on charge and the division of responsibility as 12 it now is? 13 A. Yes. 14 Q. So that's the Director's Guidance. 15 Next, in paragraphs 133 -- so over the page, 16 please -- to 154, you address the Code for Crown 17 Prosecutors. Again, the material is quite dense 18 here. May I summarise it and see whether you 19 agree with my summary of what you said. 20 Firstly, the Code has a statutory basis, see 21 Section 10 of the POA 1985? 22 A. Yes. 23 Q. Secondly, the Code does not apply directly by 24 reason of Section 10 to those undertaking 25 prosecutions outside of the CPS? 6 1 A. No, that's right. 2 Q. But, thirdly, a range of organisations and 3 agencies have decided to bind themselves in 4 their decision making, doing so by reference to 5 the Code, including the DWP, the Environment 6 Agency and the Health and Safety Executive? 7 A. Yes. 8 Q. Fourthly, the Full Code Test, which is what's 9 relevant for our present purposes, involves two 10 stages: firstly, an evidential stage; and then, 11 secondly, consideration of whether the 12 prosecution is in the public interest? 13 A. Yes. 14 Q. Ordinarily, such tests are to be approached in 15 that order: evidential stage first; public 16 interest, second? 17 A. Yes. 18 Q. Thank you. Can we turn, then, to page 68 and 19 paragraph 145. I'm going to slow down and deal 20 with this in slightly more detail. 21 You tell us here that: 22 "At the evidential stage, the prosecutor 23 must be satisfied that there is sufficient 24 evidence to provide a realistic prospect of 25 conviction. Consideration must be given to what 7 1 the defence case may be, and how it is likely to 2 affect the prospects of conviction. A case 3 which does not pass the evidential stage must 4 not proceed, no matter how serious or sensitive 5 it may be. There is a realistic prospect of 6 conviction if 'an objective, impartial and 7 reasonable jury or bench of magistrates or judge 8 hearing a case alone, properly directed and 9 acting in accordance with the law, is more 10 likely than not to convict the defendant of the 11 charge alleged'." 12 Then you set out the questions that 13 a prosecutor should consider in answering this 14 question and you say that they are "identified 15 as". Is that identified in the 2018, 8th 16 Edition of the Code. 17 A. Yes, and equally in the earlier editions that 18 I've been able to identify. 19 Q. We're going to look at those very briefly in 20 a moment because I think the number and nature 21 of pointers changed over time, I'm not sure 22 relevantly, but I just want to look back at the 23 earlier iterations. 24 In any event, in this edition of the Code, 25 the questions identified: 8 1 "Can the evidence be used in court? 2 "Is the evidence reliable? 3 "Is the evidence credible? 4 "Is there any other material that might 5 affect sufficiency of evidence?" 6 Can we look at the 2004 edition, please, and 7 go to RLIT0000171. So this is the 2004 edition 8 of the Code, as reprinted in an appendix to 9 Blackstone's. 10 A. Yes. 11 Q. If we look, please, at the second page, under 12 the heading "The Evidential Stage" and look at 13 paragraph 5.4, the guidance back in 2004 was: 14 "When deciding whether there is enough 15 evidence to prosecute, Crown Prosecutors must 16 consider whether the evidence can be used and is 17 reliable." 18 A. Yes. 19 Q. "There will be many cases in which the evidence 20 does not give any cause for concern. But there 21 will also be cases in which the evidence may not 22 be as strong as it first appears. Crown 23 Prosecutors must ask themselves the following 24 questions: 25 "Can be evidence be used in court?" 9 1 I'm going to skip over that. Then, under 2 the heading "Is the evidence reliable?": 3 "Is there evidence which might support or 4 detract from the reliability of a confession?" 5 Reading on: 6 "What explanation has the defendant given? 7 Is a court likely to find it credible in the 8 light of the evidence as a whole? Does it 9 support an innocent explanation?" 10 A question about identity, and then (e): 11 "Is the witness's background likely to 12 weaken the prosecutions case? For example, does 13 the witness have any motive that may affect his 14 or her attitude to the case, or a relevant 15 previous conviction? 16 "Are there concerns over the accuracy or 17 credibility of a witness? Are these concerns 18 based on evidence or simply information with 19 nothing to support it? Is there further 20 evidence which the police should be asked to 21 seek out which may support or detract from the 22 account of the witness? 23 "Crown Prosecutors should not ignore 24 evidence because they are not sure that it can 25 be used or is reliable. But they should look 10 1 closely at it when deciding if there is 2 a realistic prospect of conviction." 3 Then if we can turn, please, to RLIT0000170. 4 Thank you. Turn to the third page, please. 5 This is the 2010 edition of the Code, and 6 paragraph 4.7 is similarly worded, by way of 7 introduction, as the previous edition of the 8 Code. 9 Then under the cross-heading "Is the 10 evidence reliable?" you'll see a slightly 11 expanded section: 12 "What explanation has the suspect given? Is 13 a court likely to find it credible in the light 14 of the evidence as a whole? Does the evidence 15 support an innocent explanation? 16 "Is there evidence which might support or 17 detract from the reliability of a confession? 18 Is its reliability affected by factors such as 19 the suspect's level of understanding?" 20 Then the question about identity: 21 "(g) Are there concerns over the accuracy, 22 reliability or credibility of the evidence of 23 any witness? 24 "(h) Is there further evidence which the 25 police or other investigators should reasonably 11 1 be asked to find which may support or undermine 2 the account of the witness? 3 "(i) Does any evidence have any motive that 4 may affect his or her attitude to the case? 5 "(j) Does any witness have a relevant 6 previous conviction [et cetera]. 7 "(k) Is there any further evidence that 8 could be obtained that would support the 9 integrity of evidence already obtained?" 10 Then scroll down, please. Then at 4.9 11 exactly the same guidance as before. 12 So in both of these editions of the Code and 13 in the present 2018 edition of the Code, which 14 you've cited, prosecutors were asked to ask 15 themselves a range of questions that went to the 16 central issue of reliability. Would that be 17 fair? 18 A. Yes. 19 Q. Can we turn back to your report, please, and 20 look at page 68, and it's paragraph 146 at the 21 foot of the page. So picking up where we left 22 off, 146, you tell us that: 23 "It follows that the reliability of the 24 evidence is identified as being a central 25 consideration to whether there's a realistic 12 1 prospect of a conviction ..." 2 Is that a theme that has run through every 3 iteration of the Code for Crown Prosecutors. 4 A. Yes. Certainly all that I've seen. 5 Q. So what's that telling a prosecutor to do? 6 A. Clearly, it will tell them different things, 7 depending on the nature of the case that they're 8 dealing with. If it's a case with eyewitnesses 9 then it's all about the reliability of the 10 eyewitness accounts and whether there is 11 material that supports or undermines that. But, 12 at a fundamental level, it is telling the 13 prosecutor that they need to consider not just 14 what the evidence in front of them says but 15 whether it is reliable in doing so and whether 16 there is either material available or material 17 that needs to be obtained that will affect or 18 may affect its reliability, because they need to 19 be satisfied that that which because forward, if 20 they charge, is a reliable case. 21 Q. So one can't say simply because the words on the 22 page or the figures on a page -- 23 A. No. 24 Q. -- are in front of me I need only look at those, 25 and decide whether there's a realistic prospect 13 1 of a conviction? 2 A. No, that's right. 3 Q. One needs to apply a probing mind to look at the 4 issue of reliability? 5 A. Yes, so if you have a case where a witness says, 6 "I saw the defendant do it", you don't just say, 7 "Oh, well, that's fine". You have to consider 8 whether that person is reliable, whether there's 9 material that might undermine their credibility 10 or reliability in assessing whether there's 11 a realistic prospect of a conviction based on 12 what they say. 13 And, in the same way, if you have a computer 14 spreadsheet that says, effectively, that the 15 defendant did it, you have to be satisfied that 16 that is a reliable basis for asserting that. 17 Q. Thank you. Can we move on to the public 18 interest stage, please? 19 A. Yes. 20 Q. That's over the page to page 69, and 21 paragraph 148 of your report. You tell us that: 22 "If the evidential stage is satisfied, the 23 prosecutor must consider whether the prosecution 24 is in the public interest. As the Code observes 25 (paragraph 4.10): 'It has never been the rule 14 1 that a prosecution will automatically take place 2 once the evidential stage is met. A prosecution 3 will usually take place unless the prosecutor is 4 satisfied that there are public interest factors 5 tending against prosecution which outweigh those 6 tending in favour. In some cases the prosecutor 7 may be satisfied that the public interest can 8 properly be served by offering the offender the 9 opportunity to have the matter dealt with by 10 an out-of-court disposal rather than bringing 11 a prosecution'." 12 Then at paragraph 149, you tell us that: 13 "The prosecutor is required to consider the 14 factors identified at paragraph 4.14 [being]: 15 "a) The seriousness of the offence. 16 "b) The level of culpability of the suspect 17 [and] the Code lists relevant factors including 18 'the suspect's level of involvement; the extent 19 to which the offending was premeditated and/or 20 planned; the extent to which the suspect had 21 benefited from criminal conduct; whether the 22 suspect has previous criminal convictions and/or 23 out-of-court disposals and any offending whilst 24 on bail or whilst subject to a court order; 25 whether the offending was or is likely to be 15 1 continued, repeated or escalated; the suspect's 2 age and maturity'. 3 "c) The circumstances of and the harm caused 4 to the victim. 5 "d) Whether the suspect was under age of 18 6 at the time of the offence. 7 "e) The impact on the community. 8 "f) Whether the prosecution is a 9 proportionate response. 10 "g) Whether sources of information require 11 protecting." 12 So that is a developed list of factors that 13 is not exhaustive -- 14 A. No. 15 Q. -- is that right? 16 A. That's absolutely right. 17 Q. But they're pointers? 18 A. Yes, and in each iteration of the Code that 19 I have seen there has been a list. It's never 20 been just a question of consider the public 21 interest, full stop. It's always been a whole 22 series of factors. 23 Q. Once the Full Code Test has been applied and 24 it's been decided to prosecute, is that the end 25 of the matter or is there yet a further question 16 1 that arises, namely what charges should in fact 2 be -- 3 A. Yes. 4 Q. -- preferred or what information laid? 5 A. It's not the end of the process in two ways: 6 firstly, that once it has been identified that 7 there is a realistic prospect of conviction on 8 the basis of the evidence and in the public 9 interest to do so, you'd then have to determine 10 what charges should be laid, but you'd then also 11 have of the continuing obligation, which, as 12 I've read it, has been consistent throughout the 13 iterations of the Code to keep that process 14 under review, both as to whether you've got the 15 right charges and as to whether it remains in 16 the public interest and it remains a realistic 17 prospect of a conviction. 18 Q. Can we look, please, at page 71, paragraph 154 19 of your report, at the foot of the page, which 20 addresses one of those two ways in which the 21 satisfaction of the two elements of the test is 22 not the end of the matter, and you tell us that: 23 "The Code also addresses the determination 24 of what offences to charge where the Full Code 25 Test has been applied and prosecution has been 17 1 determined upon. At paragraph 6.1, it is stated 2 that the charges should 'reflect the seriousness 3 and extent of the offending; give the court 4 adequate powers to sentence and impose 5 appropriate post-conviction orders; allow 6 a confiscation order to be made in appropriate 7 cases, where a defendant has benefited from 8 criminal conduct; and enable the case to be 9 presented in a clear ... way'." 10 You add: 11 "It follows from this analysis that the 12 interests of justice do not always require the 13 charging of the most serious potential charge." 14 You cross-refer us to paragraph 6.2 of the 15 Code: 16 "The prosecutor should never seek to 17 pressure a defendant into pleading guilty 18 through the charges chosen ... and should [as 19 you said] keep the charge under review 20 [paragraph 6.3 and 6.5 respectively]." 21 The idea that the prosecutor should not seek 22 to pressure a defendant into pleading guilty 23 through the charges chosen, can you give us 24 an example, a practical example of that? What 25 does that mean in practice? 18 1 A. So the charges should not be chosen so that 2 a defendant feels they have to plead to 3 something to avoid the risk of being convicted 4 of something more. So, just to take an example, 5 one should not charge false accounting as well 6 as theft to make a defendant feel they have to 7 plead to false accounting because they don't 8 want to be convicted of theft. 9 Q. Thank you. Can we turn, then, to the adoption 10 of the Code by the Post Office in its policies 11 and can we turn to page 72 of your report, 12 please, and paragraph 155. You tell us that: 13 "The Post Office has at least purported to 14 apply the Code for Crown Prosecutors. That is 15 demonstrated by the following ..." 16 You list five policy documents that, in 17 different ways, I think, represent the Post 18 Office saying that it will either apply or have 19 regard to the Code for Crown Prosecutors; is 20 that right? 21 A. Yes, so either expressly. So, for example, that 22 in paragraph (a) refers to the Code, that in 23 paragraph (b) doesn't refer to the Code but does 24 refer, in general terms, to the test from the 25 Code. So I took it as being a reference to the 19 1 Code. 2 Q. Thank you. Would you agree that, as a private 3 prosecutor, the Post Office was not obliged to 4 apply the Code as a matter of law? 5 A. Absolutely. 6 Q. But, as you've set out, the Post Office did? 7 A. Absolutely. 8 Q. So does the fact that the Post Office was not 9 obliged to apply the Code as a matter of law 10 have any continuing relevance in the light of 11 their decision to do so? 12 A. No, I don't think so. I think that it was 13 recognised in those cases where it was said that 14 a private prosecutor was not required to apply 15 the Code, that there was, nevertheless, 16 a requirement that a defendant understand the 17 basis for the decision being made to prosecute 18 them and, increasingly, it was recognised that 19 the Code was a clear statement of that, which, 20 however you worded it, would need to be 21 considered by a prosecutor. 22 But it seems to me, once the Post Office had 23 determined that they would apply the Code, that 24 is the standard against which you can judge 25 their decisions because it's the one that they'd 20 1 adopted. 2 Q. So the fact they weren't obliged to apply it, as 3 a matter of law, hasn't got any continuing 4 relevance in examining whether the Post Office 5 did, in fact, do what their policy said they 6 would do? 7 A. No. 8 Q. Can we go over to page 73, I want to look at 9 paragraphs 156 and 157 and, as I read this, 10 you're identifying some outlier policies, 11 essentially; would that be fair? 12 A. Yes. 13 Q. Which are not consistent with the policies that 14 you had identified, the five of them, in 15 paragraph 155? 16 A. Yes. 17 Q. If we just read those, you say that the Crime 18 and Investigations Policy of September 2008, 19 October 2009 and April 2011 state: 20 "... 'where a business leader, manager or 21 employee is the subject of a criminal 22 investigation and grounds are established to 23 suspect them of having committed a criminal 24 offence, breached Royal Mail Group's code of 25 business standards or subverted business 21 1 systems, controls or policies, they may enter 2 one or both of the following processes: the 3 relevant national Criminal Justice System and 4 the business unit Code of Conduct'." 5 You say: 6 "... the policy goes on to say that 'once 7 committed to the relevant Criminal Justice 8 System it is the accountability of the Royal 9 Mail, its investigators, criminal lawyers and 10 prosecuting agents to ensure that the case is 11 present impartiality but with all possible 12 evidential support and preparation. It is the 13 function of the relevant court to decide upon 14 guilt ...'." 15 But you make the point that: 16 "... the policy identifies no more than 17 [mere] suspicion as a precursor for a case 18 entering the criminal justice system, and 19 [doesn't include any] of the guidance for 20 prosecutorial decisions to be found in the Code 21 for Crown Prosecutors." 22 A. Yes, so I found this difficult to reconcile with 23 the policies that we'd just looked at. So that 24 in the end of 2007, the Criminal Investigation 25 and Prosecution Policy had made express 22 1 reference to the Code for Crown Prosecutors as 2 the test and then, less than a year later, this 3 Crime and Investigations Policy, rather than 4 referring to the Code and a determination of 5 a sufficiency of evidence for there to be 6 a realistic prospect of conviction, there was 7 a reference to a suspicion of someone having 8 committed a criminal offence being a reason to 9 put them into the criminal justice system. 10 I just didn't -- I couldn't see readily how 11 those two things could be reconciled. 12 Q. Then paragraph 157, again, something of 13 an outlier, a "Criminal Enforcement and 14 Prosecution Policy" dated November 2012" 15 addressing relevant factors to the application 16 of the Code simply says, on the evidential side: 17 "... 'evidence of guilt sufficient to give 18 a realistic prospect of success in criminal 19 proceedings'", without any development of it. 20 Is that the point? 21 A. Yes, yes. 22 Q. Then: 23 "In relation to the public interest [test] 24 a list of factors to be taken into account 25 [which is] summarised as: 'the seriousness and 23 1 effect of the offence, the deterrent effect of 2 a prosecution on the offender and others, any 3 mitigating factors'." 4 What was the issue or problem with that? 5 A. Again, that which is there is not in any way 6 irrelevant from the assessment of the public 7 interest but nor is it the totality of that 8 which is irrelevant to the assessment of the 9 public interest. So, again, it was a more 10 defined list of public interest considerations 11 than, in fact, I'd seen in some of the earlier 12 policies but it was still far from 13 a comprehensive one. 14 Q. Thank you. Can we go to page 75 of your report, 15 please. Between paragraphs 161 and 163 on this 16 page, you refer to a draft formulation of policy 17 written by Andrew Wilson, essentially suggesting 18 that there be a presumption in favour of 19 prosecuting those committing dishonest acts 20 involving acquisition of property or assets from 21 the Post Office in the course of their duties. 22 A. Yes, and, again, I was less than clear as to the 23 status of this paper. It was -- I highlighted 24 it because it was December 1997, so it predated 25 the Inquiry's period of concern, whereas almost 24 1 all of the documents that I otherwise saw came 2 from within that period. But it was a fuller 3 exposition of what the prosecuting policy would 4 be than some of those other documents. 5 Q. In relation to what Mr Wilson suggested, would 6 you agree that an offence of dishonesty and 7 breach of trust by an employee, involving either 8 theft or the dishonest acquisition of property 9 at the expense of their employer, would be 10 treated as a serious offence by the criminal 11 courts. 12 A. Yes, if made out. Yes. 13 Q. And that in those circumstances, if a CPS lawyer 14 was to be presented with sufficient evidence to 15 prove such an offence, the lawyer would be 16 likely to conclude that the prosecution is in 17 the public interest, subject to any 18 case-specific or personal circumstances that 19 apply to the particular individual? 20 A. If they were satisfied that its sufficiency 21 included its reliability, yes. 22 Q. And that, therefore, for the Post Office, it 23 wasn't unreasonable to adopt a position, whereby 24 if there was sufficient evidence to have 25 a realistic prospect of conviction and there 25 1 were no countervailing personal or case-specific 2 circumstances, prosecution should ordinarily 3 follow? 4 A. Ordinarily, yes. 5 Q. So what's wrong with Wilson is suggesting? 6 A. My concern was that it was a very bald 7 description of a policy that there would be 8 a presumption, if there was evidence of 9 dishonesty by an employee, they would be 10 prosecuted without the nuance that the Code for 11 Crown Prosecutors, by way of example, brings 12 that process, in terms of the range of factors 13 that need to be considered, both in deciding 14 whether you have sufficient evidence to 15 establish that dishonesty and whether, even if 16 you have, it's in the public interest to 17 prosecute. 18 Q. So it might, would this be right, encourage 19 almost a rubber stamping of decisions to 20 prosecute, without a sort of deep dive into the 21 circumstances? 22 A. Yes, if this were all. If this was the policy, 23 then that is the risk that it would run, yes. 24 Q. Thank you. Can I turn to charging practice, 25 please, and the related issue of plea 26 1 bargaining. We asked you to consider, in the 2 context of the Post Office's charging practice, 3 the decision of the Court of Appeal in Eden. 4 That was because, in the light of what appears 5 to be the Post Office's charging practice and 6 because of the high number of cases in which 7 that charging practice had been applied across 8 the relevant period, it appeared to be 9 a relevant consideration. 10 You tell us about the facts of Eden on 11 page 76 at paragraph 165. Thank you. Can you 12 just summarise for us, if you can remember, what 13 it was that had come before the court? 14 A. Yes, so the defendant was a subpostmaster who -- 15 in relation to whom discrepancies had been 16 identified between voucher records, on the one 17 hand, and payments out, on the other, and so 18 they were charged with a series of what were 19 described as twin counts of theft and false 20 accounting. And the issue that led it to going 21 to the Court of Appeal was that the prosecution 22 stance, which was the Post Office's stance in 23 that case, was to invite the jury only to 24 convict of one of those parts of the twin, the 25 theft, if they also convicted of the other, the 27 1 false accounting. 2 And the jury instead convicted of the false 3 accounting, not the theft, and making clear, 4 unusually -- because usually a jury just gives 5 a verdict without giving its reasons -- that 6 they considered that the false accounting was 7 made out on the basis that the postmaster had 8 got in a muddle and falsified things to cover 9 the muddle, rather than to steal money. 10 Q. In those circumstances, you tell us in 11 paragraph 166 -- I'm not going to read it out -- 12 what Lord Justice Sachs, speaking for the Court 13 of Appeal, said in relation to this part. Given 14 the jury had made clear that there was no 15 dishonesty, the convictions were quashed? 16 A. Yes. 17 Q. Over the page to page 167, please. Lord Justice 18 Sachs additionally went on to say: 19 "... 'It seems to this Court to be rather 20 off [which was the language of the day] that two 21 counts, theft and false accounting, should be 22 put in parallel setting, if it is the object of 23 the prosecution to secure a conviction on the 24 first only if the second is proved, or on the 25 second only if the first is proved. There would 28 1 seem in those circumstances but little point in 2 putting in two separate counts. It would be 3 better in future that the prosecution should 4 make up its mind as to whether or not it really 5 wants a conviction on a count of false 6 accounting only if theft is proved: if so, 7 reliance should be placed on one count only. On 8 the other hand, there may be cases when it is 9 wise to have a count of false accounting: where, 10 for instance, a temporary gain could be the 11 object of the dishonest act. No such object was 12 put before the jury in the present case'." 13 If we turn to paragraph 168, you say: 14 "Although those observations were made in 15 1971, it does not appear that the practice of 16 charging both theft and false accounting was 17 altered for almost the whole of the Inquiry's 18 period of concern." 19 Then you cite from a paper written by Chris 20 Aujard, and that's the paper we looked at on the 21 screen yesterday but a different part of it, at 22 3.1, and it said that: 23 "... the Post Office 'typically' prosecuted 24 subpostmasters 'for false accounting combined 25 with theft and/or fraud'." 29 1 It then went on to say: 2 "... 'the choice of charge is largely 3 dependent on whether we have obtained 4 an admission of guilt, or other compelling 5 evidence that the Defendant has taken money 6 directly from us, or have only secured evidence 7 that the Defendant covered up losses by falsely 8 recording the branch's financial position ... 9 typically Defendants plead guilty to a charge of 10 false accounting, with the charge of theft then 11 being dropped." 12 Carrying on, you tell us in paragraph 169 13 that a later document -- a "criminal offences 14 points to prove" document, of December 2008, 15 which had as its purpose helping investigators 16 and interviewers to understand the elements of 17 criminal offences, which was updated in August 18 2011 and again in June 2012 -- did not address 19 the Eden considerations as to charges. 20 You tell us that, whilst training materials 21 were produced that address the elements of 22 offences of dishonesty, those training notes did 23 not also address charging decisions nor the Eden 24 considerations. 25 A. No, that's right. 30 1 Q. If we go forwards, please, to paragraph 170, you 2 tell us that the choice of charges was not 3 addressed in the various prosecution policies 4 that you had seen until 2013, nor were the 5 implications of Eden addressed. It was in the 6 November 2013 Post Office Prosecution Policy 7 England and Wales that Eden was addressed, 8 where, at paragraph 5.2, it said: 9 "... 'where a suspect is charged with 10 offences of theft and false accounting arising 11 out of the basic same facts, those charges will 12 always be alternative charges. This approach is 13 not to be regarded as an invitation to plead 14 guilty to any particular charge(s)'." 15 You were asked, in the context of Eden, the 16 lack of specific Post Office guidance relating 17 to it and, you say, "no doubt, the observations 18 in the paper just quoted to consider the 19 practice of 'plea bargaining' in [that] 20 context". 21 So, essentially it was only at the end of 22 the relevant period in 2013, November 2013, that 23 Eden was addressed at all in the documents that 24 you've seen? 25 A. Yes, and so whilst, as the court made clear in 31 1 Eden there will be cases where it's entirely 2 appropriate to have a charge of false accounting 3 as an alternative to a charge of theft to 4 address a different potential scenario, it is 5 a process that needs to be thought through and 6 for an understanding as to why the false 7 accounting is there as an alternative to be 8 fault through, rather than for it, effectively, 9 to be treated as a package deal that you would 10 always have both. 11 Q. Which seemed to be the import of what Chris 12 Aujard said? 13 A. Yes. 14 Q. Thank you. So it was only at the end of the 15 period in November 2013, on the documents that 16 you have seen, which I think is 42 years after 17 Eden was decided, that the issue raised in Eden 18 was addressed? 19 A. The only thing that I saw written down, yes. 20 Q. What were or what could be the potential adverse 21 effects of a failure by the Post Office to 22 follow the guidance in Eden? 23 A. One potential risk is that, if it is regarded 24 that you would always have that package deal of 25 charges there, there might be a lack of scrutiny 32 1 of whether, in fact, you had evidence that 2 established theft and so, if the basis for 3 a charging decision at the end of 4 an investigation was that there were shortfalls 5 in the computer records and, therefore, a charge 6 of theft on the basis the money had been taken 7 and of false accounting if it hadn't, that you 8 would just have the package there without 9 actually looking to see whether the evidence did 10 show any also of money, in fact, as opposed to 11 on the records. 12 And the other risk, as identified, is 13 a defendant may consider that, because they had 14 to acknowledge that there were accounting 15 shortfalls, as shown by the records, that they 16 had, at least, to plead guilty to false 17 accounting because there was the risk, if they 18 went to court, that they would be convicted of 19 stealing the money, whereas, in fact, that 20 charge of theft may, in fact, never have been 21 made out on the evidence at all. 22 Q. Because, for example, there was no evidence of 23 an actual loss? 24 A. Yes, and/or an actual gain to the postmaster. 25 Q. Would you accept that there can be factual 33 1 circumstances which make a conviction of both 2 theft and false accounting appropriate? 3 A. Certainly Lord Justice Sachs in Eden had 4 concerns about that and I think I would side 5 with him. 6 Q. Can we turn to plea bargaining, please. In 7 paragraphs 171 to 177, which is on page 78 -- 8 thank you -- right up to paragraph 177, you 9 outline the position so far as the CPS is 10 concerned, in relation to the acceptance of 11 pleas and, for reasons of time, I'm going to 12 take that whole section as read. 13 A. Yes, I think it's right to say that the guidance 14 is not just CPS-specific, in the sense that the 15 proper approach to taking a plea to a lesser 16 offence than that original charged or the 17 alternative count on an indictment, the guidance 18 in relation to that is given in decisions from 19 the Court of Appeal, it's given in the guidance 20 from the Farquharson committee, which speaks 21 beyond the CPS to other prosecutors, as well. 22 Q. And, indeed, the Attorney General's 23 Guidelines -- 24 A. Yes. 25 Q. -- which speak to prosecutors, other than the 34 1 CPS? 2 A. Absolutely. 3 Q. Would you agree that, in considering whether to 4 accept a plea to a lesser or different offence 5 to the one charged, the CPS would ordinarily 6 seek and consider, even if they weren't bound by 7 them, the views of the victim? 8 A. Yes. 9 Q. Would you agree that, whilst the victim's views 10 should not be considered determinative, they are 11 a relevant consideration to bear in mind in 12 reaching a decision on prosecution -- 13 A. Yes. 14 Q. -- and plea? 15 A. Yes. 16 Q. Given that the Post Office acted as a perfectly 17 at prosecutor and was both prosecutor and 18 victim, would you agree that it was appropriate 19 for the Post Office's business interests to, 20 therefore, be a factor when deciding whether to 21 accept a plea to a lesser offence? 22 A. Yes, but with the proviso that, where you are 23 both the prosecutor and the victim, the need for 24 that process to be transparent and the criteria 25 that you're applying to be readily identifiable 35 1 becomes all the more important because, in 2 a case brought by the CPS, it will be -- they 3 have a set of criteria, not least in the 4 Attorney General's Guidelines on the acceptance 5 of pleas, that they will be applying in that 6 process, of which the victim's view will be only 7 a clearly defined part. 8 If the process is entirely in-house with the 9 victim also being you, it -- unless it's 10 similarly delineated, then it becomes difficult 11 to be sure that the process is applying the 12 interests of justice. 13 Q. Later in your report -- I'm not going to ask you 14 to turn it up now -- you noted that the court in 15 Asif v Ditta, made clear that the fact that 16 a private prosecutor has a motive other than 17 only the pursuit of justice for their actions, 18 does not necessarily make it improper for them 19 to bring a prosecution? 20 A. No, absolutely. 21 Q. Given that in the cases that the Post Office 22 prosecuted, the Post Office was also the victim, 23 are you suggesting that, even if the Post Office 24 did not allow this to override its other 25 prosecutorial functions, it was not entitled to 36 1 consider whether continuing an investigation or 2 prosecution was in its own business interests in 3 deciding whether to proceed with the 4 investigation? 5 A. No, it was clearly entitled to take that into 6 account as a factor but it could not be the 7 reason, either to prosecute or not. 8 Q. Is it right that the interests of the business 9 in the relevant policies are identified as only 10 one of the factors to be considered? 11 A. Yes. Although often they're the first. 12 Q. Thank you. Can we turn to the initiation of 13 proceedings. That can come down from the 14 screen, please. 15 For reasons you explained yesterday, the 16 Post Office did not charge suspects but instead 17 initiated process by laying an information in 18 the Magistrates Court, seeking the issue of 19 a summons? 20 A. Yes. 21 Q. You address, if we turn up, at page 83, between 22 paragraphs 185 at the foot of the page through 23 to paragraphs 189, the procedural rules -- 24 A. Yes. 25 Q. -- for the issuing of a summons and the laying 37 1 of an information. 2 A. Yes. 3 Q. I'm not going to ask you to repeat those and I'm 4 not, indeed, going to summarise them. I'm just, 5 instead, going to take those passages of your 6 report as read. But on page 86, you tell us in 7 paragraph 190, about some additional holdings or 8 dicta of Mr Justice Sweeney in the Kay case that 9 we referred to yesterday? 10 A. Yes. 11 Q. Can we look, please, at paragraph 190. You say 12 that: 13 "Having identified that framework ..." 14 That's the legal framework that I've just 15 skipped over. 16 A. Yes. 17 Q. "... Mr Justice Sweeney then identified the 18 duties of a private prosecutor in relation to 19 the making of such an application ..." 20 That's the application for an issue of 21 a summons? 22 A. Yes. 23 Q. "... so as to ensure that the Court was able 24 properly to approach those considerations. He 25 observed that any applicant for a summons owed 38 1 a duty of candour. Having reviewed the relevant 2 authorities, he expressed that duty (at 3 paragraph 25) as: '... one of "full and frank 4 disclosure" which "necessarily includes a duty 5 not to mislead the judge in any material way" 6 and which requires the disclosure to the court 7 of "any material which is potentially adverse to 8 the application" or "might militate against the 9 grant" or which "may be relevant to the judge's 10 decision, including any matters which indicate 11 that the issue ... might be inappropriate". As 12 Lord Justice Hughes (as he then was) memorably 13 put it In re Stamford International Bank Limited 14 at [paragraph 191]: "... In effect a prosecutor 15 seeking an ex parte order must put on his 16 defence hat scant him what, if he were 17 representing the defendant or third party with 18 a relevant interest, he would be saying to the 19 judge, and, having answered that question, that 20 is what he must tell the judge ...".'" 21 So that's the explanation as to the law on 22 the duty of candour when applying for a summons? 23 A. Yes. 24 Q. Mr Justice Sweeney then considered, in your 25 paragraph 191, you tell us, how the duty 39 1 operated. At paragraph 37 of his judgment he 2 said, quote: 3 "... 'in order to enable the court to 4 properly carry out its duty to consider whether 5 the application was vexatious, an abuse of 6 process or otherwise improper; to consider 7 whether to make further enquiries; to require 8 the claimants to be notified of the application; 9 and to hear the claimants' and the summons that 10 had been issued was quashed. He observed (at 11 paragraph 38): 'As this case demonstrates, the 12 grant of summonses, typically conducted ex 13 parte, can have far reaching consequences. 14 Compliance with the duty of candour is the 15 foundation stone upon which such decisions are 16 taken. In my view, its importance cannot be 17 overstated'." 18 In paragraph 192 of your report, you address 19 the issue of the extent to which the duty of 20 candour is addressed in any Post Office policy. 21 A. Yes. 22 Q. You tell us that the: 23 "Post Office Conduct of Criminal 24 Investigations Policy, dated August 2013, 25 addressed the obtaining of a summons as the 40 1 mechanism for initiating proceedings [but] there 2 is no reference ... to the duty of candour ..." 3 A. No. 4 Q. "The 'Summons and Cautioning' policy, dated 5 October 2001, also addressed the obtaining of 6 a summons to initiate criminal proceedings. 7 That did not address the duty of candour ..." 8 A. No. 9 Q. You say: 10 "This remained the case in the November 2005 11 revision of the policy." 12 Then, again: 13 "... the Royal Mail 'Magistrates and Crown 14 Courts Procedures' policy, issued in May 2013, 15 and the 'Casework ...' policy, issued in June 16 [2013] the procedure for obtaining a summons [is 17 described], and the circumstances in which this 18 is appropriate, but [neither refers] to the duty 19 of candour." 20 A. No, and so what I have done in paragraph 192 is 21 set out as best I can every reference I could 22 find to the initiating of proceedings by summons 23 or the process of obtaining a summons, and so 24 those are the examples I could find, and in none 25 of them was there any reference to that 41 1 foundation stone duty. 2 Q. The same applied to all of the training 3 materials that addressed the issue of 4 proceedings? 5 A. Such that I saw, yes. 6 Q. Yes. So does it follow that, in none of the 7 documents that you have seen, was the duty of 8 the Post Office to be candid with the court 9 addressed? 10 A. That's right. 11 Q. Was that of concern? 12 A. It was. The risk is that the obtaining of 13 a summons is viewed as a purely procedural or 14 administrative function, rather than being, as 15 it is, a judicial exercise by a court and the 16 court, to carry out that exercise, needs to 17 consider the whole of the relevant 18 circumstances. That is what the rules require 19 of the court. But there's only one party 20 involved in that process with the court and 21 that's the prosecution, unless, exceptionally, 22 the court itself decided to hear from the other 23 side but they would only do that if they 24 realised there was a need to. 25 And so again, that goes back to the party 42 1 who is performing the prosecution undertaking 2 their duties properly because it's a judicial 3 process not a tick-box exercise. 4 Q. Can you calibrate the level of your concern for 5 us that the foundation stone, whose importance 6 could not be overstated by Mr Justice Sweeney, 7 was not referred to in any of the policy or 8 training material that was shown to you? 9 A. Well, clearly the central question is whether 10 that foundation of the process was recognised by 11 the Post Office in undertaking this task. 12 That's to be judged by what they actually did 13 but the fact that nowhere in the materials that 14 I had seen did they reference that duty at all 15 is a very real concern but because it's 16 difficult, where it's not written down anywhere, 17 to be satisfied that they understood that's what 18 they were meant to be doing or were doing. 19 Q. Thank you. Can I turn to a separate topic, 20 please. It will be out of order? 21 A. Can I just mention, because it's been weighing 22 on my conscience, that I corrected you as to the 23 year of Belmarsh Magistrates Court v Watts and 24 I was looking at two other cases, where they'd 25 got it wrong and you'd got it right; it was 1999 43 1 and not 1992, I'm very sorry. 2 Q. 8 February 1999, I think. 3 A. I'm not going to argue with that on -- with you 4 on that again. 5 Q. Thank you. In fact, I think your argument was 6 with Mr Justice Sweeney for a misquote? 7 A. Yes, and I'll apologise to him in due course! 8 Q. Yes, thank you. Can we turn to the separate 9 topic of expert evidence and I'm taking this out 10 of order. It's in your second report and we're 11 interleaving it, essentially? 12 A. Yes. 13 Q. It comes more in the process sequence of events. 14 Your expert report is at EXPG0000003. 15 What I'm going to do if I may, Mr Atkinson, 16 is seek to draw out from the report, rather than 17 take you to passages within it -- 18 A. Yes. 19 Q. -- some themes -- 20 A. Yes. 21 Q. -- if I may. So the first topic is the duty of 22 a prosecutor in first instructing an expert. 23 A. Yes. 24 Q. So we're here focusing on the prosecutor not the 25 expert themselves. 44 1 Before considering what duty a prosecutor 2 may have to ensure that the expert understands 3 his or her duties, would you agree that the 4 prosecutor must provide the expert with 5 instructions upon what it is that his or her 6 opinion is sought -- 7 A. Yes. 8 Q. -- and should set out issues or questions that 9 the expert is expected to answer -- 10 A. Yes. 11 Q. -- and should set out the material upon which 12 reliance has been placed in the prosecution, 13 concerning that particular issue or issues, and 14 which may be relevant to the questions which the 15 expert is expected to answer? 16 A. Yes. 17 Q. So they should describe the material, or list 18 it, and provide it? 19 A. Yes. 20 Q. Would you agree that, throughout the relevant 21 period, a prosecutor intending to rely on expert 22 evidence in criminal proceedings was under the 23 following obligations: firstly, to satisfy 24 themselves as to the expert's relevant 25 qualifications and expertise? 45 1 A. Yes. 2 Q. Secondly, to satisfy themselves that the expert 3 had been appropriately instructed, including by 4 the provision of a relevant and detailed letter 5 of instruction or terms of reference? 6 A. Yes. 7 Q. You hesitated slightly? 8 A. I hesitate because, clearly, the instruction 9 needs to provide the expert with explicit 10 guidance as to what it is they're being asked to 11 do and what material they're being asked to 12 consider in doing it, and that clearly is 13 detail. It would be in a form of letter of 14 instruction. It wouldn't have to necessarily be 15 in a conventional letter. It could be done in 16 an email format but it would need to be done in 17 a written format, because the expert, in due 18 course, would have a duty to make clear what 19 their instructions had been, and so, just by way 20 of a personal example, setting out, as I do at 21 the beginning of my report, what it was I was 22 being asked to report on. 23 Q. Yes. The prosecutor would be under a duty, 24 would this be right, to inform the expert as to 25 their, ie the expert's, relevant duties to the 46 1 court? 2 A. That is the question that I wrestled with in 3 this report. It is my view, borne out by the 4 practice of, by way of example, the Crown 5 Prosecution Service and the Health and Safety 6 Executive, that that is part of the prosecutor's 7 duty, because it is unquestionably part of the 8 prosecutor's duty to ensure that that is done by 9 an expert that they rely on. 10 Q. Fourthly, would there be a duty on a prosecutor 11 to satisfy themselves that the expert had, 12 firstly, understood and, secondly, complied with 13 their relevant duties to the court? 14 A. Yes, both because the Criminal Procedure Rules, 15 as I read them, required them to and, secondly, 16 because it was necessary for them to make sure 17 that had been done for them to be satisfied that 18 the evidence was going to be admissible, and 19 there was little point obtaining evidence from 20 an expert that wasn't actually going to go 21 anywhere near a courtroom. 22 Q. Fifthly, the prosecutor was under a duty, would 23 you agree, to satisfy themselves that any 24 material or literature, of which they are aware 25 and which may undermine the expert's 47 1 conclusions, has been reviewed by the 2 prosecution and, if appropriate, disclose to the 3 defence and the expert? 4 A. Yes. 5 Q. Would you agree that a prosecutor was under 6 a duty to bring to the attention to the defence 7 and to the court any material of which the 8 prosecutor was aware, which was reasonably 9 capable of undermining the expert's opinions -- 10 A. Yes. 11 Q. -- and that might be matters concerning the 12 expert's qualifications and experience -- 13 A. Yes. 14 Q. -- the factual basis on which the expert had 15 reached his or her opinion -- 16 A. Yes. 17 Q. -- and, more generally, the expert's 18 credibility? 19 A. Yes, and so, by way of example, if an expert who 20 you proposed to rely on has been criticised 21 for -- in ways that undermine their expertise or 22 their credibility in a previous court case, you 23 are required to disclose that. 24 Q. So drawing those threads together, if a party is 25 obtaining expert opinion and proposes to call 48 1 a person as an expert witness, the purpose of 2 that is to obtain their opinion on an issue or 3 a question which has been identified to the 4 expert? 5 A. Yes. 6 Q. Can we turn to the duty to ensure that experts 7 understand their duties. I think you address 8 this in paragraph 63 of your report. Page 30, 9 paragraphs 62 and 63. You tell us that: 10 "There is no question but that the law does 11 impose duties on expert witnesses, and the 12 expert owes their duty to the court to ensure 13 their compliance with these duties. 14 "This was well established in the civil 15 context through, for example, the Ikarian Reefer 16 case, and in the criminal context", and you name 17 couple of other decisions. 18 A. Yes. 19 Q. You say: 20 "It follows that by at least 2005-2006" -- 21 A. Which is the date of those cases. 22 Q. Yes, of Harris and B(T). 23 A. Yes. 24 Q. -- "any investigative or prosecutorial authority 25 should have been aware that any expert 49 1 instructed owed their primary duty to the court, 2 and that they were required to meet a series of 3 requirements as to the content of their report, 4 their underlying material and their conclusions. 5 This was supplemented, following the 6 introduction of the 2010 Criminal Procedure 7 Rules, by the duties of experts," was set out 8 therein. 9 You say: 10 "I have not identified in any Post Office 11 policy documents with which I have been provided 12 any analysis of these obligations, or their 13 implications for Post Office investigations." 14 Does that include both policy documents and 15 training documents? 16 A. Yes. There's very little reference to expert 17 evidence at all in the material that I've seen. 18 Q. Would you go further and say that, if 19 a prosecutor wishes to rely on an expert, the 20 prosecutor is bound to ensure that the 21 individual concerned actually understands that 22 they are to give evidence in the capacity of 23 an expert -- 24 A. Yes. 25 Q. -- and that that carries with it special duties? 50 1 A. Yes, and the first is because of the second. 2 Q. Then, does it follow that they, the prosecutor, 3 is therefore duty-bound to inform them of their 4 duties -- 5 A. Yes. 6 Q. -- because, otherwise, there's a risk that the 7 expert may not know what their duties entail? 8 A. No, and the bedrock of that is -- so it is 9 understood -- is that the expert is 10 an independent voice. They are there to bring 11 their expertise, independent of who is 12 instructing them, to bear on the issue they're 13 instructed to give their expertise about. And 14 they owe their duty not to the person who has 15 instructed them but to the court in which 16 they're giving evidence. And it is a particular 17 position that carries with it particular 18 responsibilities, and they are of such 19 importance that it's essential that they 20 understand them. 21 Q. Was there any different approach or any added 22 duty where the proposed expert was not 23 functionally independent from one of the parties 24 in the case? 25 A. I think, in that situation, the requirement to 51 1 make sure they understood the role that they 2 were being instructed in and the role that they 3 would be performing in the proceedings was all 4 the more important, because their independence 5 in such circumstances needed properly to be 6 understood by them. They were not helping their 7 employer; they were giving independent evidence 8 to a court that it owed -- that they owed a duty 9 to. 10 Q. So dealing with issues at a level of generality 11 at the moment, without going to the facts of any 12 of the 20-odd cases that you're to come back to 13 speak about -- 14 A. Yes. 15 Q. -- in the case of the Post Office seeking to 16 call witnesses from Fujitsu Services Limited to 17 provide opinion evidence, would you say whether 18 they were subject to that added duty or 19 particular duty that you've just mentioned to 20 ensure that such individuals knew that they were 21 being called in the capacity of expert and, 22 therefore, the duties to which they were 23 subject? 24 A. Yes. 25 Q. Would that be because witnesses from Fujitsu 52 1 wouldn't be akin to a conventional expert who 2 was accustomed and trained to providing expert 3 evidence and was part of, for example, an expert 4 witness institution or a professional body, and 5 so forth? 6 A. Well, it would be proper practice with that 7 latter category of person to make sure, even if 8 you were preaching to the choir, to make sure 9 they understood what their duties and 10 obligations were, even if that's what they did 11 for a living and they knew them already. You 12 were duty-bound to make sure they did, by 13 telling them. 14 And where there was a risk that they may not 15 appreciate that that is the capacity in which 16 they are being asked to give an opinion, then 17 it's all the more reason to make it absolutely 18 crystal clear to them that that is the capacity 19 in which they're being asked for their opinion 20 and that they have duties, as a result of that. 21 Q. Might that risk be triggered, especially where 22 the person involved, their day job is not being 23 an expert witness, they weren't a conventional 24 expert in the sense that they were completely 25 independent of the subject matter that they were 53 1 going to speak about -- 2 A. No, that's right. 3 Q. -- and, indeed, that they were going to speak 4 about some of their own work? 5 A. Yes. 6 MR BEER: Sir, I wonder whether we could take the 7 morning break there. I appreciated we started 8 seven or eight minutes late this morning but 9 that would be a convenient moment. 10 SIR WYN WILLIAMS: That's fine, Mr Beer. What time 11 shall we recommence? 12 MR BEER: 11.40, please. 13 SIR WYN WILLIAMS: Very well, fine. 14 MR BEER: Thank you. 15 (11.23 am) 16 (A short break) 17 (11.40 am) 18 MR BEER: Sir, good morning. Can you continue to 19 see and hear us? 20 SIR WYN WILLIAMS: Yes, I can, thank you. 21 MR BEER: Thank you. 22 Mr Atkinson, can we turn up, please, 23 RLIT0000172. This is an extract from Archbold 24 Criminal Pleading Evidence and Practice. It's 25 going to come up on the screen for you. Thank 54 1 you. 2 This is from the current 2023 edition -- 3 A. Yes. 4 Q. -- I should make clear. 5 Can we turn to page 14, please -- I'm told 6 it's only nine pages. Can you scroll forward, 7 please, to the bottom page number, which is 8 1694. At the bottom of the page there's a page 9 number, 1694. I think what that means is 10 somebody has scanned in every other page, just 11 the odd pages, not the even ones. I'm looking 12 at an even page number. 13 A. I have the page as well, if that helps. 14 Q. I'll read it out. I'm reading from page 1694, 15 one of the odd page numbers in Archbold, at 16 paragraph 10.25, and it says: 17 "It is the duty of an expert instructed by 18 the prosecution to act in the cause of justice. 19 It follows that if an expert has carried out 20 a test which casts doubt on his opinion or if 21 such a test has been carried out in his 22 laboratory and is known to him, he's under 23 a duty to disclose this to the solicitor 24 instructing him, who has a duty to disclose it 25 to the defence. This duty exists irrespective 55 1 of any requests by the defence. It is not 2 confined to documentation on which the opinion 3 or findings of the expert are based. It extends 4 to anything which might arguably assist the 5 defence. 6 "Moreover, it is a positive duty which, in 7 the context of scientific evidence, obliges the 8 prosecution to make full and proper enquiries 9 from forensic scientists to ascertain whether 10 there is discoverable material (see Ward [1993], 11 96 Criminal Appeal Reports 1)." 12 That statement of the law, although it's 13 included in a 2023 edition of Archbold, would 14 you help us, does that statement of the law 15 cover the entirety of the relevant period? 16 A. Yes. 17 Q. So it tells us that an expert instructed by the 18 prosecution has a duty to act in the cause of 19 justice. What do you understand that to mean? 20 A. That the -- an expert owes their duty to the 21 court to do what they can through their 22 expertise and their opinion, to ensure that that 23 court performs its function correctly in terms 24 of the acting, where it's a criminal court, in 25 the interests of justice. And so, if the expert 56 1 is aware of material that would undermine either 2 their own expert opinion or the premise, as 3 communicated to them in their instructions, of 4 the prosecution, then they're duty bound to say 5 so. 6 Q. Secondly, it tell us that the prosecution has 7 a duty to make full and proper enquiries -- 8 A. Yes. 9 Q. -- of prosecution expert witnesses, in order to 10 ascertain whether there is any discoverable 11 material. Are you aware of any Post Office 12 policy guidance or training, which reflected 13 either of those two principles, in the documents 14 that you have seen? 15 A. No, not that I can think of. 16 Q. Can I turn, please, to the necessary contents of 17 an expert report. Page 8 at paragraph 15 of 18 your Volume 1A report, so that's EXPG0000003. 19 Page 8, thank you. 20 You cite a summary of the duties of experts 21 that originally appeared in the Ikarian Reefer 22 case -- 23 A. Yes. 24 Q. -- a civil case -- 25 A. Yes. 57 1 Q. -- as essentially transposed into the common 2 law, insofar as it affects criminal proceedings; 3 is that right? 4 A. Yes. 5 Q. So what are described as the necessary 6 inclusions in an expert report, and there are 7 seven of them that are then set out. From what 8 date were these necessary inclusions in 9 an expert report in criminal proceedings? 10 A. The Ikarian Reefer case, which was a civil 11 decision but was a decision in 1993, was seeking 12 to set out that which it was already recognised, 13 in effect, were the necessary inclusions but it 14 conveniently set them out together. They were 15 then picked up on by the Court of Appeal in 2005 16 in a case called Harris, which was a decision of 17 Lord Justice Gage, who referred to them as being 18 established as the necessary inclusions and then 19 in this case, B(T) in a meeting of minds, Lord 20 Justice Gage, who had given the decision in 21 Harris was sitting with Mr Justice Cresswell who 22 had given the decision in Ikarian Reefer, and 23 they restated them. 24 So, certainly, by this time, by 2006, these 25 were necessary inclusions, but they were not new 58 1 in 2006; they were recognised already. 2 Q. One of the seven requirements was a statement to 3 the effect that the expert had complied with his 4 or her duty to the court to provide independent 5 opinion by way of objective unbiased opinion in 6 relation to the matters within his or her 7 expertise; is that right? 8 A. Yes, number 6 on the list. 9 Q. So by this time, at least 2006, there ought to 10 have been set out on the face of the report 11 a statement by the expert that they had complied 12 with these duties? 13 A. Yes. 14 Q. Would you agree that these requirements aren't 15 related to the format of an expert report but go 16 instead to whether substantively the report and 17 the expert have conformed to the fundamental 18 requirements of an expert and an expert report? 19 A. Absolutely. 20 Q. So they're issues of substance and not form? 21 A. Yes. 22 Q. Given the characterisation of the matters to be 23 included was that they were necessary 24 inclusions, would that mean that a failure to 25 include them and a failure to comply with them 59 1 may render a report inadmissible or at least 2 capable of being excluded from evidence under 3 Section 78 of the Police and Criminal Evidence 4 Act? 5 A. Yes, and I should say that, if they were not 6 included in written form but it was possible for 7 the party seeking to rely on the expert to 8 demonstrate that they had, nevertheless, been 9 complied with, then that may not result in the 10 exclusion of the evidence. So it is both the 11 substance of it and the form of it. 12 Q. So the significance of Harris and B(T), Thomas 13 I think is the full name of the case, lies not 14 just in the reiteration of the application of 15 the Ikarian Reefer principles to the criminal 16 law, but also that they became required to be 17 stated content in an expert report -- 18 A. Yes. 19 Q. -- and emphasise the need for the expert to 20 demonstrate an understanding of what their duty 21 of interpreters entailed? 22 A. Yes, and the fundamental nature of them is 23 underlined by the fact that they were then 24 incorporated into the next major review of the 25 Criminal Procedure Rules, so it was considered 60 1 that these were fundamentals that needed to be 2 included in any expert report. 3 Q. On that, it might be a footling point, but in 4 your report you say that Criminal Procedure 5 Rules Part 24 was replaced by Criminal Procedure 6 Rules Part 33 in 2010. I'm not going to go 7 through all of the detail but might it be the 8 case that Criminal Procedure Rules Part 33 was 9 introduced with effect from 6th November 2006, 10 ie immediately after -- the year after Harris 11 and B(T)? 12 A. Certainly, again by the time -- again, this was 13 an area where I was reliant on what I could 14 find, certainly by 2010 Rules 33 were there, 15 which incorporated this. I am perfectly willing 16 to accept that they appeared earlier than that. 17 Indeed, it would make sense that they did. 18 Q. For aficionados, it's Schedule 1 of the Criminal 19 Procedure (Amendment Number 2) Rules 2006/2636, 20 which introduced by their Schedule 1 the new 21 Criminal Procedure Rules part 33, coming into 22 force on 6 November 2006. 23 A. (The witness nodded) 24 Q. Thank you. That can come down from the screen, 25 thank you. 61 1 Can we turn to the topic of disclosure -- 2 A. Yes. 3 Q. -- moving away from expert evidence. Can we go 4 back to your first report, EXPG0000002, and turn 5 to page 95, please. It's at the foot of the 6 page under the heading "Disclosure", and you 7 tell us in paragraph 213 that: 8 "The prosecution's obligations as to the 9 disclosure of unused material to the defence is 10 governed through a combination of the CPIA, the 11 Code issued under the CPIA and the [Attorney 12 General's] Guidelines." 13 A. Yes. 14 Q. Then in paragraphs 214 to 217, you tell us about 15 the history which led to that position, 16 including instances of injustice caused by 17 material non-disclosure by the prosecution? 18 A. Yes. 19 Q. I'm going to take those paragraphs as read, if 20 I may. 21 A. Yes, of course. 22 Q. Then from paragraph 218 onwards, on page 98, you 23 tell us about the application and operation of 24 the CPIA. Again, can I try and summarise this 25 to cut through the material that you've 62 1 helpfully included, and tell me whether you 2 agree or disagree with my summary or want to 3 supplement it. 4 Firstly, the relevant provisions of the 5 CPIA, the Act itself, relating to disclosure, 6 and that's principally part 1 of the CPIA, are 7 of deliberately wide application, so that they 8 apply to, they capture, any criminal 9 investigation and they therefore apply directly 10 to the Post Office's criminal investigations and 11 prosecutions at all times throughout the 12 relevant period? 13 A. Yes. 14 Q. Secondly, the golden rule, as it was described, 15 was that the Act and fairness required full 16 disclosure of all material held by the 17 prosecution that weakened its case or 18 strengthened the case for the defence? 19 A. So, as originally enacted, it focused on 20 material that would undermine the prosecution or 21 that might undermine the prosecution case. From 22 at least 2005, it also addressed material that 23 might assist the defence case. 24 Q. Thank you for that qualification. Then, 25 thirdly -- and we can turn up a paragraph for 63 1 this because it is best that I read it, rather 2 than try and summarise it, it's on page 99. 3 Paragraph 224, at the foot of the page. 4 "It follows ... that the prosecutor's duty 5 arises from material in his or her possession, 6 rather than material in the possession of 7 a third party. The prosecutor's obligation to 8 disclose material in the hands of third parties 9 thus only arises if and when that material has 10 come into the possession of the prosecutor and, 11 at this early stage, when, in the opinion of the 12 prosecutor, it might undermine the prosecution's 13 case. That is the clear import of section 3. 14 The procedure for ... seeking to obtain material 15 from third parties is governed not by the CPIA 16 itself but, as will be seen, by the [Attorney 17 General's] Guidelines. The Act does not, 18 therefore, identify the test to be applied when 19 consideration is given to whether third party 20 material should be obtained." 21 A. Yes. 22 Q. Then, fourthly, the Act made provision for 23 continuing duties of disclosure in slightly 24 different terms as before 4 April 2005, as 25 opposed to all times after that -- 64 1 A. Yes. 2 Q. -- including in response to a defence statement? 3 A. Absolutely. 4 Q. But there was a continuing duty of disclosure 5 throughout the relevant period? 6 A. Yes, and so the presumption being, therefore, 7 that, after disclosure had been made by 8 prosecution, the defence would set out the 9 nature of their case in a document, the defence 10 statement, and that the prosecution would then 11 respond to that with any disclosure that arose 12 from it, but that, whether that defence document 13 was received or not, there was still a duty on 14 the prosecution to keep their disclosure under 15 review. 16 Q. Thank you. Then the second source of obligation 17 is the Code? 18 A. Yes. 19 Q. I think you tell us that the Code makes three 20 additional points that you identify in your 21 paragraph 232 to 235. That's page 103, please. 22 232 at the foot of the page. You tell us: 23 "The Code [this is the Code under the CPIA] 24 then addresses the interaction between the 25 investigation and the prosecution, and between 65 1 those responsible for each ... The first area is 2 in relation to the obtaining of advice. 3 Paragraph 6.1 ... states 'The officer in charge 4 of the investigation, the disclosure officer or 5 an investigator may seek advice from the 6 prosecutor about whether any particular item of 7 material may be relevant to the investigation'." 8 So what's a point that you're making there, 9 by reference to the Code? 10 A. So what the Code seeks to do in this respect is 11 to make the disclosure process identified in the 12 Act work by identifying those who are playing 13 roles in that process and how they should work 14 with each other and, in this particular respect, 15 is dealing with the situation where those 16 involved in the investigation, who have duties 17 in terms of the identification of material that 18 may be relevant and therefore may be 19 disclosable, should have recourse to the 20 prosecutor to get their advice about anything 21 they're uncertain about, so that there is that 22 dialogue and that they should understand that 23 uncertainty should result in the seeking of 24 advice. 25 Q. You continue: 66 1 "The second area is once a schedule of 2 material has been produced. The disclosure 3 officer is required [see paragraph 7.1] to 4 provide that schedule to the prosecutor when 5 submitting the case to them and to draw to the 6 prosecutor's attention 'any material 7 an investigator has retained (whether or not 8 listed on a schedule) which may satisfy the test 9 for prosecution disclosure in the Act, and 10 should explain why he has come to that view'." 11 A. So this is, in the three Rs that we talked about 12 yesterday -- and I'll try and get them right 13 this time -- of record, retain and reveal, this 14 is the reveal stage where the investigator is 15 setting out the material that might fall to be 16 disclosed for the prosecutor to then carry out 17 a review of, and it's an essential audit and 18 safeguard to make sure that disclosure is 19 undertaken properly, and that the investigator 20 has been doing their job properly. 21 Q. Over the page, please, at 233, you make a third 22 point: 23 "Additionally, the disclosure officer is 24 required to provide any of the following not 25 otherwise included in the above submission: 67 1 'information provided by an accused person which 2 indicates an explanation for the offence with 3 which he has been charged; any material casting 4 doubt on the reliability of a confession; any 5 material casting doubt on the reliability of 6 a prosecution witness; any other material which 7 the investigator believes may satisfy the test 8 for prosecution disclosure in the Act'." 9 Then you comment: 10 "This is an important requirement, because 11 it envisages that material that undermines the 12 investigation in important respects, such as 13 undermining the reliability of a key aspect of 14 the case against an accused, will be volunteered 15 to the prosecutor at the outset, and flagged up 16 as such." 17 A. Yes, and because the prosecutor needs to assess 18 the reliability of evidence as part of their 19 decision as to charge and their continuing 20 review of that and because the prosecutor has to 21 ensure that there is disclosure of material that 22 undermines or might undermine the prosecution 23 case to the defence, the upfront nature of this 24 requirement, that the investigation is 25 volunteering material in those categories or 68 1 relevant to those categories, the prosecutor is 2 of central importance. 3 Q. Thank you. Can we go to the third source of law 4 or the third obligation, namely the Attorney 5 General's Guidelines on disclosure. You address 6 these at page 110 of your report -- 7 A. Yes. 8 Q. -- under the heading "The AG's Guidelines". 9 This is a very substantial section of your 10 report. 11 A. Yes. 12 Q. It runs right up until paragraph 290. Again, 13 some summaries, if I may -- 14 A. Yes. 15 Q. -- to see if you agree or disagree, before 16 looking at some of the content of each iteration 17 of the Guidelines. Firstly, the Guidelines were 18 introduced in 2000 and applied throughout the 19 relevant period being examined by the Inquiry? 20 A. Yes. 21 Q. Secondly, would you agree that the purpose of 22 the Guidelines was stated to be improving the 23 operation of the arrangements for disclosure 24 and, in particular, addressing the roles of the 25 participants in the disclosure process, and that 69 1 statement was made after research had been 2 undertaken as to the operation or misoperation 3 of the CPIA? 4 A. Yes, and so it had been recognised, and the CPIA 5 had not been operating for that long, but it had 6 been identified that that it in itself, and the 7 Code under it in itself, were proving not to be 8 sufficient to make sure that its objectives were 9 being satisfied and proper disclosure was being 10 made. 11 Q. The third point is that the Guidelines applied 12 to prosecutions commenced at the instigation of 13 the Post Office, just as they did to 14 prosecutions commenced by other prosecutors? 15 A. Yes. 16 Q. Fourthly, the importance of the compliance with 17 the Guidelines with the emphasised in a series 18 of cases, time and again, throughout the 19 relevant period? 20 A. Yes. 21 Q. I'm not going to take you to the purple prose 22 used by the courts on each occasion but is that 23 summary sufficient? 24 A. Absolutely, and the fact that the courts had so 25 much recourse to the Guidelines as an exposition 70 1 of what the requirements were and why they 2 mattered, just serves to underline how important 3 the Guidelines have always been as a central 4 part of the disclosure framework. 5 Q. If we can turn, then, and look at some content 6 of the Guidelines. Starting with the 2000 7 iteration, and that's page 112, and between 8 paragraphs 254 and 264, you address the content 9 of the 2000 Guidelines? 10 A. Yes. 11 Q. Are there any particular points that you would 12 wish to emphasise content of the 2000 13 Guidelines? 14 A. Perhaps the most striking thing about them is -- 15 which I suppose in one sense is unsurprising, 16 given they're written by the Attorney General, 17 who has a supervisory role in relation to 18 prosecutions -- that they are very clear as to 19 the responsibilities and duties of prosecutors 20 in order to make sure that disclosure works 21 properly, which involves not only their own 22 decision making but their superintendence and 23 supervision of those who have undergone the 24 investigation before it reaches them. 25 Q. Thank you. I'm going to take the content as 71 1 read in the interests of time. 2 A. Yes, of course. 3 Q. Can we move to the 2005 iteration of the AG's 4 Guidelines, that's page 117? 5 A. Yes. 6 Q. You address the 2005 Guidelines between 7 paragraphs 265 to 274 and, again, I'm afraid 8 it's a rather open question: are there any 9 particular points that you would emphasise about 10 the 2005 iteration of the Guidelines? 11 A. So the 2005 Guidelines was brought in because 12 the test for disclosure had been changed by the 13 Criminal Justice Act 2003, so that it involved 14 both material that might undermine the 15 prosecution case and material that might assist 16 the defence case, and so it was designed to 17 address that. 18 It was designed also to engender a greater 19 dialogue in relation to disclosure, so that it 20 wasn't just a matter of prosecution decisions in 21 abstract but also prosecution decisions taking 22 account of the defence case as identified, for 23 example, in a defence statement. 24 And thirdly, it was the beginnings of real 25 attempts to grapple with the difficulties of 72 1 disclosure, where there's material held on 2 computers and, therefore, the review of that 3 material for disclosure is a more arduous task. 4 Q. Thank you. Again, I'm going to take the content 5 of the Guidelines as read. 6 I think the next version was 2013, which is 7 right at the end of our relevant period -- 8 A. Yes. 9 Q. -- and you address that at paragraph 285 and 10 following. I'm therefore not going to ask you 11 for any supplemental views on that. I think 12 it's right that, between the second and the 13 third edition, Supplementary Guidelines on 14 digitally stored material were issued -- 15 A. Yes. 16 Q. -- in 2011? 17 A. Yes. 18 Q. You address those at page 120, at paragraph 275 19 and following. Again, the open question: 20 anything in particular on the Supplementary 21 Guidelines that you would wish to emphasise 22 beyond that which is in your report? 23 A. So again, this is specific guidance which is 24 designed to address how an investigator and how 25 a prosecutor are to go about complying with 73 1 their obligations, where there is a very large 2 amount of material stored on a computer. It's 3 designed to be practical to make that achievable 4 but underlying, of course, that there is the 5 obligation to do it and to ensure that a fair 6 result drives from that process. 7 Q. Thank you. So we've looked at the three sources 8 of law, as I've described them. Can we turn to 9 the Post Office's policies. 10 A. Yes. 11 Q. You address these from paragraph 237 onwards at 12 page 105, please. If we can look at page 105. 13 You address the Post Office policies between 14 paragraphs 237 and 243? 15 A. Yes. 16 Q. In 237, you tell us that the Post Office 17 Casework Management policy of March 2000 makes 18 reference to the CPIA at a number of points: 19 "It is of note that paragraph 3.3 20 specifically refers to the retention periods for 21 evidential material ... Both in the 2000 22 iteration and the February 2002 [iteration], 23 this policy required full details of any 24 'failures in security or operational procedures 25 are identified which may or may not be directly 74 1 connected to the offence' to be included in the 2 investigation report." 3 Just stopping there, could you ascertain 4 from the policy whether the investigation report 5 was itself a disclosable document? 6 A. There was debate within the paperwork that I've 7 seen as to whether it was or not. It's 8 a feature of many of the 20-odd cases that I'll 9 be coming back to talk about in relation to 10 Volume 2 but it's effectively the document that 11 went from the investigator to those who made 12 decisions as to whether the person under 13 investigation should be suspended and whether 14 the person under investigation should be 15 prosecuted, and was usually the document that 16 appeared to be relied on by the person making 17 the charging decision. 18 And it's not clear from what I've seen as to 19 whether it was regularly disclosed and there are 20 certainly instances where it wasn't, and 21 a decision was taken that it wasn't disclosable. 22 Q. Thank you. You continue that the policy adds: 23 "... 'the issue of dealing with information 24 concerning procedural failures is a difficult 25 one. Some major procedural weaknesses, if they 75 1 become public knowledge, may have an adverse 2 effect on our business. They may assist others 3 to commit offence against our business, 4 undermine a prosecution case, bring our business 5 into disrepute, or harm relations with major 6 customers. Unless the offender states that he 7 is aware that accounting weaknesses exist and 8 that he took advantage of them, it is important 9 not to volunteer the option to the offender 10 during interview'." 11 Just in relation to the sentence that "if 12 weaknesses become public knowledge they may have 13 an adverse effect on our business because they 14 may undermine a prosecution case", is that 15 a reason not to reveal them? 16 A. No, if there's material that undermines 17 a prosecution case then it is disclosable rather 18 than the contrary. 19 Q. Is the fact that making public knowledge "may 20 bring our business into disrepute" a reason for 21 non-disclosure? 22 A. No. 23 Q. Is the fact that "revelation may harm relations 24 with major customers" a reason for 25 non-disclosure? 76 1 A. No, and so there are situations, taking a step 2 back from this, where there can be competing 3 public interests where, for example, revealing 4 failings in an investigative technique would 5 have the consequence of revealing what that 6 investigative technique was, which might 7 frustrate its use in other cases, and it would 8 a decision as to where the public interest lay. 9 And that might involving recourse to a judge for 10 the judge to decide whether the interests of 11 justice required its disclosure. 12 But you are there talking about things that 13 might undermine the effectiveness of the 14 criminal investigation process generally. You 15 are not talking about issues of reputation or 16 customer relations. 17 Q. Moving to paragraph 238, you tell us that the 18 "Disclosure of Unused Material -- Criminal 19 Procedure and Investigations Act 1996 Code of 20 Practice" that was issued in May 2001 was three 21 pages long. It addressed the roles of the 22 investigator and disclosure officer, without 23 specific cross-reference to the CPIA Code. You 24 tell us that: 25 "An investigator (paragraph 3.2) is someone 77 1 [who is] 'involved in the conduct of a criminal 2 investigation involving Consignia', who has 3 a duty in particular to record and retain 4 information. They share a duty to the 5 disclosure officer to 'be fair and objective and 6 must work together with prosecutors to ensure 7 that disclosure obligations are met'." 8 Over the page: 9 "The disclosure officer is the person 10 'responsible for examining material retained 11 during an investigation, revealing material to 12 Legal Services during the investigation and ... 13 certifying to Legal Services that he has done 14 this'." 15 You say, and it's a point you made 16 yesterday, that, by contrast to the CPIA: 17 "... the policy proceeds on the basis that 18 the investigator and disclosure officer will 19 'normally' be the same person". 20 A. Yes. 21 Q. The policy states that: 22 "The disclosure officer should inspect, view 23 or listen to all material retained, saved where 24 a large amount has been seized. In those 25 circumstances, the existence of the material 78 1 should be identified to the defence." 2 Lastly: 3 "The disclosure officer should ensure the 4 description of unused material is sufficient for 5 the prosecutor to review it, and should draw the 6 prosecutor's attention to any material about 7 which they are in doubt." 8 In relation to the point that the disclosure 9 officer and the investigator will normally be 10 the same person, would you agree that the CPIA 11 Code does allow for this -- 12 A. Yes. 13 Q. -- and allows the officer in the case and the 14 disclosure officer to be the same person? 15 A. Yes. 16 Q. Would you agree that, even in cases investigated 17 by the police and prosecuted by the CPS, for 18 many cases, and perhaps the majority of more 19 minor or smaller cases, the disclosure officer 20 would regularly be the officer in the case? 21 A. Yes. 22 Q. Given that it may be common practice for the 23 functions to be performed by the same police 24 officer in many cases, prosecuted by the CPS -- 25 and we're here dealing with a private prosecutor 79 1 and there's nothing in the CPIA to prevent it -- 2 would you accept that having the function of 3 disclosure officer held by the investigating 4 officer is neither contrary to the law nor 5 practice, applicable to these private 6 prosecutors during the relevant period? 7 A. Yes. What it -- I highlighted it because, first 8 that it was predicated here as being normal 9 rather than an option and, secondly, because of 10 a concern that, in a case brought by the Crown 11 Prosecution Service on the basis of 12 an investigation by the police, there are still 13 those two separate agencies involved, and so 14 there is that independent scrutiny of the 15 disclosure process by the CPS in those cases. 16 Where it is all being done by the same 17 organisation, that there would be merit in there 18 being more of a delineation of roles to ensure 19 a proper scrutiny exercise, that was my only 20 concern. 21 Q. Thank you very much. Can we just scroll forward 22 to paragraph 240, please. Here you're dealing, 23 as opposed to policies, with training material 24 and you say that you have seen a range of 25 training workbooks, along with the an undated 80 1 document entitled "Criminal Investigation", 2 which addresses nine e-books, which represent 3 the theoretical learning from the investigation 4 foundation course. You say that, in 5 combination, they show that there was no 6 specific training in that package in relation to 7 the CPIA or to disclosure. There was a workbook 8 about investigators' notebooks. 9 Just stopping there, do investigators' 10 notebooks seem to be a particular issue that 11 crops up again and again in these policies? 12 A. Yes. 13 Q. It seems to be a particular focus of attention? 14 A. Yes. 15 Q. In any event, that did not refer to the duty of 16 retention. It didn't refer to the CPIA, nor did 17 it refer to the 2001 policy document? 18 A. No, that's right. I should mention, for 19 completeness, that I have, in material recently 20 provided to me, seen some further training 21 material, including, I think, a 2010 22 presentation on disclosure, although it was not 23 clear to me who that presentation was intended 24 for. 25 Q. Did that improve upon this training material 81 1 that you summarise in paragraph 240? 2 A. It took whoever it was given to through the CPIA 3 obligations, in terms of the duty of disclosure, 4 and so on, and made reference to the Code. It 5 didn't, though, refer to the Guidelines, the 6 Attorney General's Guidelines. 7 Q. Then lastly on this topic, if we can go forward, 8 please, to page 120, and look at paragraph 274, 9 this is after you've summarised the 2000 and 10 2005 AG's Guidelines? 11 A. Yes. 12 Q. You then turn in this paragraph to see how well 13 were they reflected in Post Office material and 14 you tell us that, although the "Disclosure of 15 Unused Material, CPIA 1996 Code of Practice" 16 issued in May 2001 did allude to the original 17 version of the AG's Guidelines, you hadn't seen 18 any amended version of that policy following the 19 2005 Guidelines until the 2010 revision. That 20 2010 document referred to the 2005 Code of 21 Practice but not the AG's Guidelines alongside 22 it. No materials addressed this important 23 revision to the Guidelines. 24 A. No, so the 2001 document said: 25 "In the light of the Human Rights Act, the 82 1 Attorney General has issued new Guidelines on 2 disclosure of unused material, the Guidelines 3 clarify the responsibilities of investigators, 4 disclosure officers, prosecutors and defence 5 practitioners." 6 And that was the extent of the application 7 of a detailed document in that policy -- of 8 course, I don't know because I don't know what 9 was on the database as to whether the guideline 10 was there. When that disclosure of unused 11 material policy was updated, the reference to 12 the Guidelines was removed. 13 Q. So that's slightly counterintuitive? 14 A. Yes, and so there's -- I couldn't detect 15 evidence of explicit updating of policy to 16 reflect the Guidelines but I did detect the 17 removal of the Guidelines from the policy. 18 Q. That can come down from the screen, thank you. 19 So is a summary, a high level summary, of 20 the position that, although you have seen Post 21 Office policies in relation to disclosure in 22 investigations, you have not seen any 23 prosecutorial policies in relation to 24 disclosure? 25 A. There is reference within, both the 2001 and 83 1 2010 Disclosure of Unused Material policies, to 2 what it described as "prosecutor's guidelines". 3 They're half a page of bullet points which 4 reflect aspects of that which is contained in 5 a combination of the CPIA and the Code 6 thereunder, but there is no separate, that I 7 saw, separate prosecution guide -- policy as to 8 how prosecutors were to undertake their 9 disclosure responsibilities, their 10 responsibilities for the supervision of the 11 investigation and ensuring that disclosure was 12 undertaken appropriately and fairly. 13 Q. We -- to update you -- now have a witness 14 statement from a senior member of the Criminal 15 Law Team, Rob Wilson, who in his statement says 16 that: 17 "No guidance in relation to disclosure 18 obligations was given in any prosecution policy 19 documents. I believe that the policy and 20 standards team within the Post Office Security 21 were responsible for providing written guidance 22 and training with input from me. It was felt 23 that as the Code for Crown Prosecutors did not 24 provide guidance on disclosure, that this should 25 be dealt with in a separate document." 84 1 Firstly, have you seen any policies that 2 were provided by the Post Office Policy and 3 Standards Team concerning disclosure obligations 4 to be discharged by prosecutors. 5 A. I don't think so. I can't think of any. 6 Q. Yes, thank you. 7 Can I turn to the topic of third-party 8 disclosure, please. You address this issue 9 between paragraphs 294 and 332 of your report, 10 starting on page 128. Again, some high level 11 points, if I may: is it right that you did not 12 identify any Post Office policies in the 13 relevant period that addressed the obtaining of 14 third-party disclosure -- 15 A. That's right. 16 Q. -- and that applies both to investigative duties 17 and prosecutorial duties -- 18 A. Yes. 19 Q. -- or duties owed by an investigator and 20 duties -- 21 A. Of course. 22 Q. -- owed by a prosecutor? 23 A. Yes. 24 Q. Was that a concern? 25 A. Yes. The -- it was recognised that, as one of 85 1 the things that the CPIA in its Code did not 2 address, that to ensure fair proceedings in the 3 interests of justice, it is not enough for 4 a prosecution to make disclosure of that which 5 it already has, because there may well be 6 material that is beyond what it has that will 7 nevertheless undermine its case, or assist that 8 of the defendant, or that might undermine its 9 gates or assist that of a defendant. 10 So what the Attorney General's Guidelines 11 sought to do was to make it absolutely clear 12 that there was that obligation on investigators 13 and prosecutors to think outside the box of what 14 they already had as to what they might need and 15 to ensure that they were doing all they could to 16 make sure that the proceedings were fair, by not 17 blinkering themselves as to just looking at what 18 they already had but to think what else might be 19 necessary. 20 And that's what third-party disclosure is 21 all about, that process of thinking about 22 whether there is material beyond what you've got 23 that you ought to obtain, if you can, and then 24 review that material for disclosure in the same 25 way as what you have already got. And you do 86 1 that because you need to ensure the process is 2 fair. 3 If there is nowhere written down for you as 4 an investigator or for you as a prosecutor that 5 that is what you need to do, there is every risk 6 that you will overlook it, that you will think 7 "I have done what I'm required to do because 8 I have looked at the schedule that the 9 investigators provided me. I have reviewed the 10 material that my investigation has generated, 11 and I have done what is required by the Code and 12 by the Act in relation to that". That would not 13 be the end of your job but if there's no 14 reference in your policies to it being a part of 15 your job, you may think it is. 16 Q. Can we turn to paragraph 306 of your report, 17 which is on page 133, where you cite a passage 18 from the speech of Lord Bingham in of the House 19 of Lords in the case of R v H and C., where he 20 said: 21 "... 'If material does not weaken the 22 prosecution case or strengthen that of the 23 defendant, there is no requirement to disclose 24 it'." 25 But then this: 87 1 "'For this purpose, the parties' respective 2 cases should not be restrictively analysed'." 3 Is that a feature of the conduct of criminal 4 investigations and prosecutions, that when 5 making decisions on disclosure, the prosecutor 6 must not restrictively analyse the case of the 7 defendant? 8 A. Absolutely. It may be -- to take a case away 9 from any that we're concerned with here -- that 10 there's an allegation of assault, and the 11 defendant is saying, "I was acting in 12 self-defence". If there is material that would 13 not just undermine the prosecution case or 14 support his case in relation to that, but also 15 calls into question whether proper procedures 16 had been followed and fair practices adopted in 17 relation to some other aspect of the case 18 against him, or if there was material that 19 undermined the credibility of the prosecution 20 witness in other respects, or other material 21 that could provide the defence with a completely 22 different layer of argument as to the 23 admissibility of evidence or the fairness of the 24 proceedings, then those are all things that the 25 prosecution need to be including in their 88 1 process of assessment as to whether material 2 undermines its case or assists the defence, not 3 least because the defence may not identify as 4 something that will assist them something that 5 they don't know anything about. 6 Q. Thank you. That passage or that report can come 7 down from the screen. Thank you. 8 Is it right that the concept of corporate 9 knowledge operates in respect of material which 10 may meet the disclosure test and which is within 11 the knowledge of any arm of the prosecution 12 authority? 13 A. In the sense that a prosecuting or investigative 14 agency knows something, because of other cases 15 that it has dealt with, but which has 16 a relevance to the case they're now dealing 17 with, yes. 18 Q. Would that concept operate in the context of the 19 Post Office acting as private prosecutor to mean 20 that the Post Office's disclosure obligations 21 extended to material within the control of the 22 Post Office, whether or not that material was 23 actually in its possession or not? 24 A. Yes. 25 Q. That phrase that I've used, "material within the 89 1 control of the Post Office", would that require 2 any legal obligation on the party that 3 physically possesses it to deliver or provide it 4 to the Post Office? 5 A. It would depend on the nature of the control 6 that the Post Office had, if it was something 7 that that other party were obliged to provide to 8 them if they asked for it, for example -- 9 Q. Under a contract, for example? 10 A. -- under a contract, for example, then it is 11 material that the Post Office would be easily 12 able to obtain and therefore should obtain. 13 There are always complications in relation to 14 third-party material that the only route that 15 you, as a prosecution, have to access, is where 16 you obtain a witness summons against that third 17 party to hand over the material because there 18 are particular and specific criteria for the 19 obtaining of a witness summons, and that third 20 party would be able to litigate, whether you had 21 met those criteria or not. 22 But that, on the scenario you're positing, 23 wouldn't arise. This is separate from that and 24 therefore easier. 25 Q. So one might regard material within the control 90 1 of the Post Office, pursuant to a contract, as 2 material that it had an obligation to obtain and 3 to disclose, rather than being a case of 4 third-party disclosure? 5 A. It certainly had the obligation to obtain it. 6 It then had to apply the disclosure test to it. 7 And the point I was seeking to make at this 8 point -- the point we were just looking at in my 9 report, is that there are those two stages. 10 What the Attorney General's Guidelines makes 11 clear is that where an investigator or 12 a prosecutor identifies that a third party might 13 have material that might prove to be relevant to 14 the issues in the case, they have a duty to seek 15 to get it so that they can then decide whether 16 it's disclosable or not. 17 Q. Thank you. Are you aware of any Post Office 18 policy, guidance or training document which 19 addressed the issue that we've just discussed, 20 ie material within the Post Office's control but 21 not within its physical possession? 22 A. No, I don't think so. 23 Q. Are you aware of any Post Office policy guidance 24 or training document that you've seen which 25 assisted in the application of the parties' 91 1 cases not being restrictively analysed 2 principle? 3 A. No. 4 Q. Would you agree that the disclosure obligations 5 that arise under Sections 3, 7 and 7A of the 6 CPIA are imposed upon and are personal to the 7 prosecutor? 8 A. Yes. 9 Q. Therefore, responsibility for ensuring 10 compliance with the obligations that arise rests 11 with the prosecutor, who, in one of the cases, 12 is said to be in the driving seat -- 13 A. Yes. 14 Q. -- at the stage of disclosure? 15 A. Yes. 16 Q. Even in the case of third-party material, the 17 decision as to whether such material is to be 18 obtained and is to be disclosed must be taken by 19 the prosecutor? 20 A. There is an expectation that that process will 21 have already been gone through once by the 22 investigator, but the prosecutor's role is both 23 to check that it's been done and, either where 24 it's not been done at all or properly, or they 25 identify a wider pool of potential material for 92 1 them to do it as well. 2 Q. If it had got to the stage that the investigator 3 had not done it, for example, the prosecutor, 4 would this be right, would not be able to, in 5 effect, subcontract out to the third party the 6 question of whether material is relevant and 7 falls to be disclosed? 8 A. No, and one of the cases that I refer to in my 9 report, a case called Alibi, was a case very 10 much on that topic, which was where 11 a prosecution was predicated on material from 12 a company. There was a difference between how 13 the prosecution went about getting material from 14 that company, on the one hand, and what it then 15 did in terms of its disclosure obligations, on 16 the other. And the disclosure obligations were 17 for them, not the company. 18 Q. Would you agree that, if the Post Office 19 required information about the operation and 20 functioning of the Horizon System, in a case 21 where a postmaster, for example, made 22 allegations about its faulty operation in 23 a given case, the correct approach would be for 24 a formal request at an organisational or 25 an institutional level being made to the 93 1 operator of that system, Fujitsu? 2 A. It would depend on what the set-up was. One 3 could envisage that where, on the scenario you 4 posit, a postmaster has said something to that 5 effect in interview, that it would be for the 6 investigator, as part of the investigation, to 7 make contact with whatever their liaison was 8 with Fujitsu to make enquiries of them. 9 If there was a comparable liaison 10 arrangement at a prosecutorial level, for that 11 to be used, but if that route either was not 12 available or was not working then, yes, 13 absolutely, at a higher level. 14 Q. In any event, in the case of Post Office 15 prosecutions, the Post Office, would you agree, 16 was required to consider whether Fujitsu was in 17 possession or likely to be in possession of 18 disclosable material and request that material 19 from Fujitsu -- 20 A. Yes. 21 Q. -- either pursuant to any contractual 22 arrangements -- and I think we'll come back to 23 those in Part 2 -- but, if necessary, by issuing 24 a witness summons or even seeking a production 25 order? 94 1 A. Yes. 2 Q. Is the cost of obtaining material a relevant 3 consideration in deciding whether to seek 4 material from either a third party or 5 an organisation, over which you have control, in 6 terms of the disclosure of documents? 7 A. Not in those bald terms, no. 8 Q. Why not? 9 A. Because your obligation is to undertake 10 appropriate and fair disclosure and that is not 11 a cost benefit analysis. That is a hard and 12 fast obligation. How you go about it -- because 13 there is always a margin of appreciation as to 14 exactly how it is done, providing the result is 15 fair, you may be able to take account of cost 16 where there are different routes that will 17 achieve the same ultimate objective. But only 18 if they achieve the same ultimate objective. 19 And the cost may come into play in the sense 20 that, if you come to the conclusion that to 21 satisfy your disclosure obligations will be 22 enormously costly, you may make the decision not 23 to prosecute for that reason but that is the 24 decision you would have to make. You can't go 25 ahead and prosecute knowing that you haven't 95 1 undertaken your disclosure obligations properly 2 because it costs too much. 3 Q. Thank you. Can I turn, before the lunch break, 4 to a separate topic, which is Section 69 of the 5 Police and Criminal Evidence Act 1984. In broad 6 terms, can you confirm that the purpose of 7 Section 69 was to enable the admission into 8 evidence of a statement contained within 9 a document where that document had been produced 10 by, for example, a computer? 11 A. Yes. 12 Q. That might include something like a readout from 13 an Intoximeter or even a receipt produced from 14 a till? 15 A. Yes. 16 Q. I think it's right that concerns were expressed 17 by the Court of Appeal before the repeal of 18 Section 69 that its operation had been 19 misunderstood; is that right? 20 A. Yes. 21 Q. As you have included in your report, the Law 22 Commission made a recommendation for the repeal 23 of Section 69? 24 A. Yes, so Section 69 had created certain 25 precursors before a statement in a document 96 1 produced by a computer could be admissible. It 2 was recognised by the Law Commission that that 3 was -- particularly if misread as meaning if 4 you're relying on anything to do with the 5 a computer you needed to go through that 6 process, had become incredibly cumbersome. So 7 they looked to see whether it was actually 8 necessary and concluded that it was not. 9 Q. The Law Commission undertook a consultation 10 exercise -- 11 A. Yes. 12 Q. -- the nature of which you set out from page 90 13 onwards of your first report. 14 A. Yes. 15 Q. So EXP0000002. 16 A. It was a consultation on a wider range of topics 17 than just Section 69; it was dealing with 18 hearsay -- 19 Q. It was mainly about hearsay? 20 A. -- but it included a section on whether 21 Section 69 was fit for purpose or not. 22 Q. It's paragraph 200 at the bottom. So there was 23 a consultation exercise commencing in May 1995, 24 with the Law Commission's Consultation Paper 25 138, yes? 97 1 A. Yes. 2 Q. The problems with Section 69 were summarised by 3 you in your (a) and (b) there; is that right? 4 A. Yes. 5 Q. One of the respondents to the Commission was the 6 Post Office -- 7 A. Yes, it was. 8 Q. -- and you addressed that in your paragraph 206 9 on page 92, with a letter, the author of whom is 10 redacted in the copy that both you and I have, 11 from the Post Office to the Law Commission, 12 which said: 13 "... 'a large number of subpostmasters now 14 complete their cash accounts and other 15 accounting records by [using] a computer. The 16 subpostmaster is often the only person working 17 in a sub post Office or the only person who uses 18 the computer. In the event of the subpostmaster 19 being prosecuted for theft or false accounting, 20 the Post Office may need to rely on the 21 computerised accounting records. The 22 subpostmaster is frequently the only person who 23 can give the evidence required by Section 69 ... 24 In the absence of admittance or other direct 25 evidence the Post Office may not be able to 98 1 prove the case solely on the ground of being 2 unable to satisfy the technical requirements of 3 Section 69 ... Computers are now being used 4 within branch offices, Parcelforce depots and 5 Royal Mail Sorting Offices'." 6 You comment, over the page, please, at 7 paragraph 207, that this submission is of note 8 because it's predicated on the basis that the 9 person best placed to attest to the operation of 10 the Horizon System was the subpostmaster, rather 11 than the operators of the system at any higher 12 level. At the time at which that was written, 13 October 1995, it couldn't have referred to 14 Horizon? 15 A. No, I now appreciate that. Yes. 16 Q. It's right I think, as you say in paragraph 208, 17 to note that the Post Office was far from unique 18 in its support for the repeal of Section 69? 19 A. No, that's absolutely right. 20 Q. I think since you've written this report, you 21 have received a high number of additional 22 submissions from consultees which, save for one, 23 supported reported the repeal of Section 69? 24 A. Yes. 25 Q. I'm not going to examine any of those in detail 99 1 because that may be a matter we come back to 2 later in the Inquiry. That material has been 3 obtained by the Inquiry from the Law Commission 4 itself? 5 A. Yes. 6 Q. The one exception, was that a company that 7 specialised in the operation of computers and 8 computer forensics? 9 A. Yes. 10 Q. Can you summarise what the opposition was, if 11 you can remember? 12 A. So this was an organisation called Computer and 13 Systems Telecommunications Limited and their 14 position was that computer evidence was always 15 to be regarded as legally unreliable and the 16 question was only the extent to which it was 17 unreliable, and that that was apparently because 18 of its -- and this I quote without necessarily 19 entirely understanding it -- "its inherent 20 non-linearity in determinability and insecurity 21 of the architecture of computer systems and 22 software". 23 And so the predicate of this submission was 24 that it was necessary for there to be expert 25 evidence to demonstrate that a computer system 100 1 was reliable against a presumption that it would 2 otherwise not be, because there was always the 3 risk of faults within a computer system that 4 anyone other than an expert might not be able to 5 identify, and including the operators of 6 a particular computer as being amongst those who 7 wouldn't necessarily know that it wasn't 8 operating properly in a material respect. 9 Q. Thank you. In any event, despite that 10 opposition, the Law Commission recommended 11 repeal and repeal occurred? 12 A. Yes. 13 MR BEER: Thank you very much. 14 Sir, I think that's an appropriate moment to 15 break for lunch, if it is convenient to you. As 16 you know, sir, we're aiming to finish by 3.15 17 today and so if we broke now until 1.45, that 18 would certainly give sufficient time to go 19 through Mr Atkinson's conclusions, which is the 20 last and remaining topic for us. 21 SIR WYN WILLIAMS: Yes, that's fine, Mr Beer. 22 There is just one point that I'd like to 23 clarify my mind with Mr Atkinson, arising out of 24 the questions you asked him about what I'll call 25 third-party disclosure. 101 1 I think I know what you're telling me, 2 Mr Atkinson, but, if I put it in rather crude 3 terms, it will help me to be certain about that. 4 It's this, really: if an investigator or 5 a prosecutor gets to the point where they think 6 it appropriate, in order to comply with 7 disclosure duties, that they seek disclosure 8 from a third party, the fact that their 9 contractual position with that third party might 10 make disclosure expensive or difficult or 11 whatever other word you might wish to use, is 12 irrelevant once they've determined that it's 13 appropriate to seek disclosure. 14 A. Yes -- 15 SIR WYN WILLIAMS: Is that correct? 16 A. -- and so, sir, they would -- once they had 17 determined it was something that needed to be 18 done, then they needed to do it, and if they 19 couldn't do it, they then needed to review 20 whether the prosecution was viable without that 21 having been done. 22 SIR WYN WILLIAMS: But the simple point for me to 23 keep in my mind is that the duty to seek 24 disclosure in those circumstances overrides any 25 contractual position -- 102 1 A. Yes. 2 SIR WYN WILLIAMS: -- and if they don't like the 3 effect of the contractual position, they have to 4 review whether or not to prosecute and, in 5 an appropriate case, not prosecute? 6 A. Absolutely. 7 SIR WYN WILLIAMS: Fine. Thank you very much. 8 MR BEER: Thank you, sir. 9 SIR WYN WILLIAMS: Sorry, that's eaten two minutes 10 into your lunch break. If you want to make it 11 1.50, that's fine by me. Did you say 1.45? 12 MR BEER: I now say 1.50. 13 SIR WYN WILLIAMS: Fine. 14 MR BEER: Thank you. 15 (12.50 pm) 16 (The Short Adjournment) 17 (1.50 pm) 18 MR BEER: Good afternoon, sir, can you see and hear 19 me? 20 SIR WYN WILLIAMS: Yes, thank you. 21 MR BEER: Thank you. 22 Good afternoon, Mr Atkinson. Two follow-up 23 questions, if I may, from issues that we 24 discussed this morning. 25 A. Yes. 103 1 Q. Firstly, I asked you some questions about the 2 cases that established that a prosecutor is 3 under a duty to disclose material that otherwise 4 falls within the disclosure test that's within 5 the knowledge of "any arm of the prosecution", 6 and you answered to the effect that a prosecutor 7 must include, within their consideration for 8 disclosure, material obtained or generated in 9 other cases in which they had been involved. 10 A. Yes. 11 Q. I mean, I'm summarising. 12 A. Yes, yes. 13 Q. Can I ask you about a slightly different aspect 14 of the "any arm of the prosecution" principle. 15 Can you confirm that, as a single organisation, 16 which was a victim, a witness, an investigator 17 and a prosecutor, the Post Office's disclosure 18 duties applied across the whole of the Post 19 Office? 20 A. Yes. 21 Q. In other words, all departments or divisions 22 within the Post Office were subject to a duty to 23 retain and record information that was or might 24 be relevant to the Post Office's function of 25 bringing prosecutions? 104 1 A. Yes. 2 Q. So the "any arm of the prosecution", in this 3 different context I'm referring to, relates to 4 across the Post Office and the duty of retention 5 and recording and then revelation applied not 6 just to one department that happened to be 7 conducting the prosecutions? 8 A. Yes, absolutely. 9 Q. Thank you. Secondly, the Attorney General's 10 Guidelines apply a test of reasonable 11 practicability in obtaining disclosure from 12 a third party and that has been interpreted in 13 the case law as meaning or referring to 14 a "persistent prosecutor who does not readily 15 accept no for an answer" -- 16 A. Absolutely. 17 Q. -- and who is prepared to take the initiative 18 and to apply to the court to enforce disclosure 19 obligations against a third party? 20 A. Yes. 21 Q. In general terms, what obligation is there on 22 an investigator and a prosecutor in testing the 23 answers that they receive from a third party as 24 to whether or not the third party holds relevant 25 material? 105 1 A. One would assume that they would start from 2 a position of having identified that third party 3 as likely to have relevant material. If they 4 received an answer back "We don't have 5 anything", they would not just take that at face 6 value and say "Thank you very much", and go 7 home. They would need to test that against 8 their earlier expectation and be persistent in 9 asking questions about the type of things that 10 they had in mind, so that they drilled down 11 into -- in more detail what that third party has 12 or has not got and the reasons they're given as 13 to why, if they say they haven't got it, why 14 they haven't got it. 15 Q. So the duty might extend to asking the third 16 party "Who is giving you your information within 17 the third party? What searches have been made? 18 Where have you looked? What criterion has been 19 applied" -- 20 A. Yes. 21 Q. -- to satisfy themselves as to the completeness 22 and reliability of the answer received? 23 A. Yes, and so, effectively, asking -- if they say 24 they haven't got it, exploring why they haven't 25 got it and to test whether that's right or not. 106 1 Q. So if a suspect in a particular case says "I'm 2 suspected of theft or false accounting, based on 3 data produced by a computer system that shows 4 a discrepancy, a loss, which I can't account 5 for, but I can tell you this isn't a real loss, 6 the loss that is shown on your documents, Post 7 Office, is an artefact of the computer system 8 that produced the document. I haven't been 9 dishonest, I took no money. I think the error 10 is in the system; there's a bug, error or defect 11 in the system", would it be sufficient for the 12 prosecutor or investigator who was relying on 13 the data from the system to prove its case to 14 ask the third party "Are there any bugs, errors 15 or defects within your system?" 16 A. No, because you would, as a prosecutor, need to 17 understand how that process was undertaken by 18 the third party, to understand how reliable 19 an answer it was. So if you said, "Have you got 20 any bugs in your system?" and they say, "No", 21 that would not be enough. You'd need to 22 understand what process of evaluation and 23 testing had gone -- been gone through so that 24 they're able to come to that answer, so that you 25 are satisfied it was a reliable answer. 107 1 Q. So there is, to that extent, a duty to go behind 2 the "No"? 3 A. Yes. 4 Q. Thank you. 5 Can we turn to your conclusions, please, and 6 it's Volume 1, which is EXPG0000002. At 7 page 145, please, starting at paragraph 333 -- 8 so it's the page before, thank you. 9 In this part of your report, from 10 paragraph 333 right through to 391, so over the 11 course of 20 pages, you set out your conclusions 12 by reference to the questions that we asked you 13 in your instructions. 14 A. Yes. 15 Q. In an attempt to try to draw the threads 16 together, I'm going to use this as the basis for 17 my questions of you. 18 In relation to the first question, 19 an explanation of the law and practice of the 20 conduct of private investigations or 21 prosecutions between 2000 and 2013, I have taken 22 you to these passages earlier in your evidence, 23 and I wouldn't, therefore, propose to repeat 24 those now, unless there was anything you wanted 25 to say about all of those paragraphs up to 343. 108 1 I realise that's putting the onus on you to 2 identify matters but it seemed to me that, one 3 way or another, we had addressed all of the 4 issues that you mention there? 5 A. Yes, I agree. 6 Q. Can we go forwards, please, to page 149, please, 7 and to the second question, which raised issues 8 as to non-independent investigations. You tell 9 us in paragraph 344 that: 10 "In [your] judgment, special difficulties 11 can arise where the same body is the victim, 12 a witness, the investigator and the prosecutor." 13 As we discussed briefly earlier: 14 "It has been recognised ... in Asif v Ditta, 15 that the fact that a private prosecutor has 16 a motive other than the pursuit of justice for 17 their actions does not necessarily make it 18 improper for them to been a prosecution." 19 But that case made it clear that the 20 motivation of a private prosecutor carries with 21 it a risk that proceedings are brought that 22 aren't in the public interest or the interests 23 of justice. 24 The roles of investigator and prosecutor are 25 roles that carry with them significant 109 1 responsibilities and, if they are to be 2 undertaken properly, have to be undertaken 3 dispassionately, objectively and fairly. 4 That's the point of principle that you 5 raise -- 6 A. Yes. 7 Q. -- concerning non-independent investigations. 8 In paragraph 346 you draw a contrast and 9 describe it as a significant one between the 10 Post Office as an investigator and prosecutor on 11 the one hand, the police, the CPS and other 12 prosecutorial and investigative agencies on the 13 other. 14 A. Yes. 15 Q. Can you just summarise the significant 16 differences, please? 17 A. Yes. So the -- by statute and by a barrage of 18 policies issued under statute, the Crown 19 Prosecution Service is absolutely a prosecuting 20 organisation that is independent of those who 21 have investigated the cases that reach it and it 22 has a superintendent role, in relation to those 23 investigations, as opposed to a role actually in 24 the direction of the investigations themselves, 25 which means that there is that testing back and 110 1 forth between the two to ensure that, between 2 them, they have complied with their obligations 3 to ensure full and proper investigation and full 4 and proper disclosure and proper and rigorously 5 reached prosecuting decisions. 6 Other agencies either do the same thing 7 through there being independent parties involved 8 or by having very clearly defined, separate 9 entities that do different things and with 10 requirements as to how one monitors the 11 activities of the other. 12 In contrast, I find it much more difficult 13 to glean from that which I saw how that 14 distinction was drawn and enforced within the 15 Post Office, so that investigations were 16 undertaken in such a way that they were 17 transparent to the prosecutor and that the 18 prosecutor was then able to reach an independent 19 decision with a degree of superintendence of the 20 investigation upon which it was based, in the 21 way that other agencies had achieved. 22 Q. Thank you. If we go over the page to 347, you 23 say that: 24 "There is a risk that may arise from a lack 25 of such a statutory structure in that there is 111 1 a lack of clarity and transparency as to areas 2 of responsibility, routes to accountability and 3 considerations relevant to the making of 4 necessary decisions both in investigative and 5 prosecutorial terms." 6 A. Yes. 7 Q. So you're saying that, because the division of 8 responsibility and the inclusion of routes of 9 accountability that a statutory structure gives 10 you, the absence of them gives rise to the risks 11 that you mention? 12 A. Yes, and those are risks that can be addressed, 13 and other organisations, where I was able to see 14 their structure, do address it. My concern was 15 that looking at policies that ought to have made 16 crystal clear that prosecution decisions were 17 being taken independently of both the business 18 and the investigation side of the business, 19 those policies were not making that clear. 20 Q. You tell us at 348, at the bottom, that: 21 "A solution to the difficulty ..." 22 That's the absence of an express statutory 23 regime that hardwires divisions of 24 responsibility and accountancy into the 25 organisation: 112 1 "... is arguably presented ... (at least 2 now) by the [Health and Safety Executive, whose] 3 Enforcement policy entrusts the decision of 4 whether to commence a prosecution to the 5 Approval Officer, who should not be closely 6 involved in directing, or identified with, the 7 investigation process." 8 A. Yes. 9 Q. So an attempt at least to separate the 10 prosecution decision from -- 11 A. Yes. 12 Q. -- the conduct of the investigation. 13 You had previously highlighted -- we had 14 skipped over it in 347 there -- seven or eight 15 lines from the bottom of 347, you say: 16 "In areas such as disclosure this is 17 important because the structure depends on the 18 prosecutor providing advice as to and 19 undertaking a second review of decisions by the 20 investigator to ensure that the correct 21 decisions are reached. No such safeguards are 22 built inherently or transparently into the 23 system where the same organisation performs each 24 role, even more so where the organisation is 25 also the victim of the alleged offending." 113 1 A. Yes. 2 Q. Did you find an absence of those measures in the 3 case of the Post Office policies when you turned 4 to them? 5 A. Yes. 6 Q. Can we turn to those, then, over the page at 7 151. You tell us: 8 "In that regard here the wording of the 9 relevant policies operated by the Post Office 10 [gives] rise to concern." 11 Then in 350, you identify, I think, three 12 slightly different issues. You say in the March 13 2000 Investigation and Prosecution Policy it 14 identifies that investigations undertaken in 15 part by Security and Investigation Services, 16 which is to be superintended by the Director of 17 Security also takes -- he also or she also takes 18 prosecution decisions. 19 A. Yes, and so, rather than being a separation, it 20 appeared that the same person superintended 21 investigations and then took the decisions at 22 the end of them. 23 Q. Secondly, building on that concern, the Director 24 was enjoined to obtain legal advice but, as you 25 read the documents, the decision was then taken 114 1 by a non-lawyer? 2 A. Yes, I mean, that, I say, is predicated on not 3 knowing whether the Director of Security was 4 a lawyer or not but, certainly, the Director was 5 required to obtain legal advice. He or she was 6 required to consider it. They weren't required 7 to follow it and, in part, they were applying 8 tests that were legal tests without being 9 lawyers. 10 Q. Then lastly, at the end of that paragraph, you 11 say, thirdly: 12 "... the involvement of Human Resources, 13 which has a role in the consideration of 14 employment and disciplinary issues in the making 15 of decisions as to criminal proceedings is of 16 concern, as it might be suggested that 17 prosecution was a part of the disciplinary 18 process rather than independent of it." 19 A. Yes, and that where the persons being 20 investigated were employees is a particularly 21 acute consideration. 22 Q. You move on in paragraph 351 to advert to 23 a different concern; is that right? 24 A. Yes. 25 Q. You say that a number of the Post Office's 115 1 policies drew attention to the fact that 2 financial and business-related factors are 3 relevant in the investigative and prosecutorial 4 process -- 5 A. Yes. 6 Q. -- and in decision making in relation to each of 7 them. 8 You give, I think, three examples of that: 9 a policy in 2001, which says: 10 "... 'factors that influence as to whether 11 certain actions are required [in the context of 12 an investigation] are based on the following: 13 the potential loss to Consignia business in 14 value, reputation and customer retention; 15 quality ... of the information (intelligence) 16 and the level of incident, of probability; 17 timeliness as to whether the incident reported 18 is recent or not; a named suspect'." 19 Secondly, the Royal Mail Group Criminal 20 Investigation and Prosecution Policy included as 21 a consideration the "priorities of the 22 business", and I think you told us yesterday it 23 didn't say what they were. 24 A. No. 25 Q. Then lastly, over the page, the policy that 116 1 we've looked at, or seen you look at, in the 2 past in three iterations, four iterations, 3 identify that prosecution may be appropriate 4 where a business leader, manager or employee is 5 the subject of criminal investigation and 6 grounds are established to suspect them of 7 having committed a criminal offence, breached 8 the group's Code of Business Standards or 9 subverted business systems controls and 10 policies. 11 So, overall, what was your concern here 12 about the identification of financial and 13 business-related factors in investigative and 14 prosecutorial decision making. 15 A. I'm not necessarily saying that a business is 16 not entitled to take account of business 17 considerations at all when it takes on the roles 18 of an investigator and prosecutor but, where the 19 policies were either very limited or silent as 20 to, for example, the kinds of criteria for the 21 assessment of the public interest that are set 22 out in the Code for Crown Prosecutors or the 23 Attorney General's Guidelines, but were explicit 24 about business considerations, the reader of the 25 policy -- be it me reading them for the purposes 117 1 of this report or be it those working in the 2 business at the time -- would take away from it 3 that the business considerations were the 4 considerations that mattered, rather than ones 5 that weren't there, or only there in very 6 abstract or bare terms. 7 Q. Thank you. You essentially set that conclusion 8 out in paragraph 353, if you scroll down, thank 9 you, five lines from the bottom. You say: 10 "On the review I have undertaken ..." 11 That's of the policies? 12 A. Yes. 13 Q. "... one proper reading is that the same 14 personnel were involved in dealing with 15 decisions whether to start a disciplinary 16 process, a criminal investigation and a criminal 17 prosecution and at each stage taking account of 18 business priorities and financial 19 considerations. That is not a reading that 20 instils confidence in the independence, fairness 21 or transparency of those decisions." 22 A. Particularly if the situation is that the person 23 taking, ultimately, a decision to prosecute is 24 someone who is well versed in the business 25 considerations through their job, less well 118 1 versed in that degree of independent assessment, 2 by reference to a wholly different set of 3 criteria that an independent, fair and 4 transparent prosecution decision would require. 5 Q. You make the point, by way of caveat, at the 6 beginning of paragraph 353, that you hadn't 7 actually, at the time of writing, looked at any 8 case-specific information -- and that will 9 follow -- 10 A. Yes. 11 Q. -- in December -- but you make the point that 12 any such assessment ought to start with the 13 policy and guidance framework in place? 14 A. Yes. I was asked to look at law and practice 15 and, as I said yesterday, practice I, at this 16 stage, gleaned from what the policies inform me 17 as to the practice. 18 Q. Thank you. 19 Can we turn to the second part of our second 20 question to you, namely Post Office 21 investigations policy. At paragraph 354, you 22 say: 23 "The terms, and adequacy, of Post Office 24 policy documents concerning the conduct of 25 investigations falls to be judged in a number of 119 1 categories, by reference to the iteration of the 2 policy being considered, and the statutory and 3 other extra-Post Office guidance that applied to 4 the areas addressed by those policies." 5 A. Yes. 6 Q. Essentially, to decode that a bit, are you 7 saying that the policies changed over time, as 8 did the regulatory landscape over time? 9 A. Yes, or, perhaps more accurately, given the 10 situation as I found it to be, the landscape was 11 changing on a fairly regular basis over time. 12 Policies changed from time to time with the 13 effect of giving some effect to that changing 14 landscape. 15 Q. Thank you. Over the page to page 153, please. 16 You say in those policies, which did seek to 17 address investigative areas otherwise covered by 18 PACE, what was required from them was: firstly, 19 to identify those areas that Post Office 20 investigators could do and could not do for 21 themselves, and those which required the 22 involvement of the police; secondly, to identify 23 how the liaison with the police service was to 24 operate and how its results were to be assessed; 25 and to identify, thirdly, those areas which, by 120 1 virtue of Section 67(9) of PACE -- remembering 2 that's the provision that applied through 3 a 'have regard' duty -- 4 A. Yes. 5 Q. -- all six Codes of Practice to the Post Office 6 are governed by the codes issued under PACE and 7 how their requirements are to be met. 8 A. Yes. 9 Q. In paragraph 356, you address the extent to 10 which those policies complied with those three 11 requirements. Can you summarise your view? 12 A. Yes, so the position in relation to PACE and the 13 codes under PACE went very much from nearer 14 famine to nearer feast over the period of time 15 that I was considering. So, at the beginning of 16 the period 2000/2001, there was name checking of 17 PACE and the codes. By the later policy 18 documents that I saw, there was a good deal more 19 detail of how PACE and, more particularly, the 20 relevant codes under PACE applied in areas, for 21 example, searches and, in particular, 22 interviews. 23 Q. Thank you. In paragraph 357 you tell us that, 24 by reason of those defaults, there was a risk 25 that there would have been inadvertent 121 1 non-compliance or inconsistent compliance with 2 PACE, albeit you say that was addressed by the 3 training materials that are copyrighted in 2000 4 and which did seek to address relevant sections 5 of PACE codes in relation to, for example, 6 searches, arrests and interview. But you make 7 the point that the fact that such training 8 material could or did address those issues, that 9 raises the question why the same analysis wasn't 10 set out in the policies? 11 A. Yes. 12 Q. How deep a level of concern is that? 13 A. I think in the initial period, the post-2000 14 period, I think it's a real concern because, if 15 the aim of your policy is to ensure consistent 16 application of the law and procedure by all 17 those who are undertaking your investigations, 18 then it needs to be spelt out in your policy 19 what it is they're required to do. 20 If you rely on a bare bone policy and people 21 are undertaking their own researches or 22 remembering their own training, then that will 23 not achieve consistency. And it seemed to me 24 that the Post Office had recognised that 25 because, in PACE respects, their policies became 122 1 so much more detailed. 2 Q. Turning to the CPIA -- and I think you start 3 that at paragraph 363 -- 4 A. Yes. 5 Q. -- which is at the foot of page 155, thank 6 you -- you say: 7 "A similar approach, and similar development 8 of detailed guidance in policy documents, can be 9 identified in relation to those investigatory 10 policies that address the application, by virtue 11 of Section 26 of the CPIA, of the CPIA and its 12 Code of Practice to the Post Office. In 13 policies ... in 2000, 2007, and 2010 there were 14 references to the need to comply with the CPIA, 15 without any identification of which parts of the 16 CPIA were engaged, how compliance was to be 17 achieved or reference beyond the fact of its 18 existence to the Code." 19 A. Yes, so it was name checking again, rather than 20 the detail. It was better in relation to those 21 aspects of the CPIA specifically relating to 22 disclosure, although there were fundamental 23 omissions to that, which I know we're coming on 24 to, but, in other respects, it was -- there was 25 more name checking than detail and I saw less 123 1 training material in relation to the CPIA to 2 comfort me in relation to that. 3 Q. You conclude in this section: 4 "It is difficult to see how compliance would 5 either be achieved or measured by reference to 6 such policies, or by the lack of direct and 7 detailed training, by reference to the training 8 materials that [you had] seen." 9 A. Yes. 10 Q. You tell us, if we scroll down in paragraph 364, 11 that: 12 "Although ... the definition of a criminal 13 investigation in Post Office policies accorded 14 with that in the CPIA ..." 15 That is the point that it is a recognition 16 by the Post Office that the undertaking of its 17 criminal investigations triggered the relevant 18 provisions of the CPIA. 19 A. Yes. 20 Q. "... the rationale and considerations relevant 21 to those included some of the business related 22 factors", that you have set out above. 23 There was a development in the degree of 24 detail given as to investigative roles and the 25 three Rs from an adequate starting point in the 124 1 disclosure policy of May 2001, but that 2 concerned disclosure rather than investigations. 3 At 365, you set out your conclusion. The 4 policies that you had seen would have been of 5 assistance to those engaged in investigations 6 but would not have been sufficient of themselves 7 to ensure that they understood which aspects of 8 PACE, CPIA and their codes had application, or 9 how to monitor such application. This was stark 10 in relation to disclosure -- 11 A. Yes. 12 Q. -- and the pursuit of reasonable lines of 13 inquiry -- 14 A. Yes. 15 Q. -- which we're about to look at. 16 So looking at this aspect of your work, 17 namely the Post Office investigations policy, 18 how would you describe the adequacy of them 19 across the relevant period? 20 A. So in relation to the Police and Criminal 21 Evidence Act and the codes thereunder, it got 22 better as the period went on. In relation to 23 both areas, both PACE and CPIA, I did consider 24 that, in whole or in part, they were not 25 sufficient to ensure that consistent application 125 1 of what was required. I repeat again the caveat 2 that I have not seen the database and, 3 therefore, can't speak to the extent to which, 4 if it did, that remedied that situation. 5 But, as explained yesterday, it is not 6 enough to tell someone there's a code or even to 7 tell them where they can download the code. 8 They need to understand what they're meant to do 9 with it and that's where policy comes in, 10 particularly if you're a non-police investigator 11 and, therefore, need to understand which parts 12 are the parts that (a) apply to you and (b) that 13 matter. 14 Q. So the existence of the database is not 15 a panacea by way of answer to the list of 16 problems that you've identified? 17 A. No, I mean, if I am right in my understanding of 18 the database, that it was making available to 19 those charged with investigations and 20 prosecutions, the material that was relevant to 21 their jobs, then it was a good thing that it was 22 there. If they were getting circulars that were 23 telling them about updates to it, then that was 24 a good thing too. If the circulars were such as 25 the ones I have seen and were doing no more than 126 1 saying there's a new code G, there was a limit 2 to the benefit that was to them. 3 But the place that seemed to me one would 4 logically look to find out how you're meant to 5 do your job in an important respect is to look 6 at what the policy was for how your organisation 7 had identified that job should be done and, if 8 that policy didn't tell you, then you were 9 having to work it out for yourself. 10 Q. Can we turn, please, to the third part of 11 question 2, namely the duty, the cornerstone 12 duty under the CPIA, placed upon investigator to 13 pursue all reasonable lines of inquiry, whether 14 they point towards or away from a suspect. You 15 tell us at the top of page 157 that that 16 obligation arises in every criminal 17 investigation. It had, as its origin, perhaps, 18 the decision of the Court of Appeal in Ward? 19 A. Yes, and that I think is important, because it 20 underlines the fact that the duty to pursue 21 reasonable lines of inquiry, including those 22 that exonerate rather than implicate, emerged, 23 to an extent, from a situation where there had 24 been a miscarriage of justice because that had 25 not been done, and so that is the warning from 127 1 the beginning: that this is why you have to do 2 this. 3 Q. In paragraph 367 over the page, you tell us 4 "Despite this", and the despite is that that 5 requirement was in the Code right from its first 6 iteration in 1997? 7 A. Yes. 8 Q. "... the duties of an investigator to pursue 9 a reasonable line of inquiry including those 10 leading away from a suspect was not spelt out in 11 any Post Office policy that you have identified 12 until the 2010 revision of the 2001 ... Unused 13 Material policy." 14 A. No, that's right. 15 Q. You say it follows that there was a significant 16 period of time when, on the documents you have 17 seen, the need to investigate lines of inquiry 18 that might exonerate a suspect was not spelt out 19 as being necessary. It is difficult to 20 conclude, therefore, at a policy level, that 21 such a requirement was recognised or undertaken 22 and no training material cures the omission. 23 A. No. 24 Q. How significant an issue was that lines of 25 inquiry omission? 128 1 A. In my judgement, very significant because it is 2 so fundamental to making sure that 3 investigations and, therefore, prosecutions 4 arising from investigations are fair and, if 5 your policy is not telling your investigators of 6 the bedrock of what they're meant to be doing, 7 then your policy is deficient in a way that 8 could lead to your investigators not 9 appreciating that, and that can lead to 10 unfairness and can lead to miscarriages of 11 justice. 12 Q. In paragraph 368 and following, you apply that 13 general point to cases involving reliance on 14 Horizon data, and you say: 15 "... in the present circumstances, that 16 requirement in particular involves consideration 17 of whether investigations included consideration 18 of whether accounting shortfalls at Horizon 19 terminals might lie with the computer system, 20 either as a matter of course or where such 21 a possibility was raised by a suspect in 22 interview." 23 The way you put it there as the possibility 24 required examination either as a matter of 25 course or where the suspect had raised it in 129 1 interview, why would it be raised as a matter of 2 course without a suspect saying, "My computer 3 has a bug with it"? 4 A. If, as it seems to me, the basis for your 5 identification of a shortfall is that the 6 computer says there is one, it is a reasonable 7 line of inquiry to ensure that that is right, or 8 at least to inquire as to whether there is any 9 risk that it is not, and that is not 10 a suspect-dependent situation. It is reasonable 11 line of inquiry, in any case where that is the 12 basis for your approach. 13 You can test it a number of ways, you can 14 look to see if there is evidence of a financial 15 benefit to the suspect, which would show that 16 what the computer was telling you may be right 17 because you can see the money, and "follow the 18 money" is standard investigative cliché but 19 a standard investigative approach in cases where 20 there is meant to be a financial benefit -- 21 Q. Just stopping there, sorry to stop you in 22 mid-flow, just so that I and others may 23 understand, when you say "follow the money" is 24 a standard investigative approach, do you mean 25 looking in the bank accounts -- 130 1 A. Yes. 2 Q. -- for example, or other financial accounts of 3 the suspect to see whether money from 4 an unascertained source or even from, in this 5 case, a Post Office source, has been paid in -- 6 A. Yes. 7 Q. -- or, you know, the classic looking for a boat 8 on the drive type investigation? 9 A. And so, if your suspicion is that -- the 10 computer says there's a shortfall and your 11 suspicion is that shortfall is caused by the 12 postmaster stealing the money, then you look to 13 see if you can find the money. If you can't 14 find the money, another reasonable line of 15 inquiry will be to look to see where else it 16 could have gone. 17 But a further line of inquiry will be to 18 look to see well, given that I can't see where 19 the money has gone, I will need to check that it 20 has gone, and that takes you back to the 21 computer system. So either, from the outset, by 22 looking at it as "I'm relying on the computer, 23 is the computer reliable", or "I can't find the 24 money, is the computer reliable?" It's 25 a reasonable line of inquiry. It's a line of 131 1 inquiry that may well lead you away from the 2 suspect but that is why you need to understand 3 that that is your job. 4 Q. We've heard evidence from Richard Morgan, King's 5 Counsel, who acted for the Post Office in civil 6 proceedings bought against the subpostmaster Lee 7 Castleton, and he said -- and I summarise his 8 evidence -- that he regarded it as axiomatic 9 that, if he was to seek to prove a case based on 10 a shortfall that was calculated by a computer 11 system, he would be required to prove the 12 reliability of the computer system. 13 Would the summary that I have just given of 14 his approach in civil proceedings equally apply 15 in criminal proceedings? 16 A. Yes. 17 Q. You continue, in paragraph 368, in the fourth 18 line: 19 "Until 2013, no policy document that I have 20 considered addressed the need for such a line of 21 inquiry to be pursued." 22 Indeed, if anything, there was some 23 suggestion to the contrary in the Casework 24 Management policy in 2000 and 2002, which 25 required full details of any failures in 132 1 security or operational procedures identified, 2 which may or may not be directly connected to 3 the offence to be included in the investigation 4 report. 5 It added: 6 "... 'the issue of dealing with information 7 concerning procedural failures is a difficult 8 one. Some major procedural weaknesses, if they 9 become public knowledge, may have an adverse 10 effect on our business'. Although the section 11 concluded 'The usual duties of disclosure under 12 the CPIA ... still apply' ... if [your] reading 13 of the policies is correct, the need to be aware 14 of the reliability or otherwise of Horizon data 15 was not identified as a matter to be 16 investigated routinely." 17 A. No, and those policies I just highlighted, on 18 one reading, were providing a series of reasons 19 why it would not be desirable to disclose any 20 such problems. 21 Q. And that's aside from the answer to my question 22 earlier about whether there was, in the policy, 23 an inbuilt requirement not to disclose the 24 investigation report -- 25 A. Yes. 133 1 Q. -- which may reveal weaknesses in business 2 practices or systems? 3 A. Yes. 4 Q. You continue: 5 "In the 2013 policy ... there was reference 6 to Horizon in the investigation context. 7 However, there was no reference to consideration 8 of, or either investigation of or disclosure of, 9 anything that might suggest a failure in the 10 operation of the system, as opposed to failure 11 by the subject in its operation. It was in the 12 2013 prosecution policy that there was 13 a reference to consideration of whether there 14 was an issue as to the integrity or reliability 15 of IT and data systems." 16 A. Yes. 17 Q. So it's only right at the end of our relevant 18 period -- 19 A. Yes. 20 Q. -- in 2013 that that is written into any policy? 21 You tell us that this lack of guidance is 22 a matter for real concern because it did nothing 23 meaningful to address the risk that those 24 engaged in Post Office investigations would not 25 have appreciated the need to consider the 134 1 operation of Horizon and its operation as part 2 of their investigations. 3 That was an issue particularly after the 4 repeal of Section 69. It didn't encourage 5 prosecutors to consider this topic as a matter 6 of course. It's omission from policy reduced 7 the chances of this being identified as 8 an omission in any supervision or review of 9 investigative steps and lines of inquiry. 10 How serious a concern do you hold in 11 relation to the material that you have read? 12 A. The fact that, in 2013, it was thought important 13 to explicitly refer to the need to consider the 14 integrity and reliability of data systems 15 carried with it a recognition that this was, in 16 the Post Office context, a very important factor 17 to be considered because so many Post Office 18 prosecutions of the kind that we're here 19 concerned with related to data and what that 20 data said. 21 If your policies do not address the need to 22 consider the reliability of data, there is every 23 risk that the investigator will not consider it. 24 There will then be every risk that the 25 prosecutor will not consider it and, therefore, 135 1 not set the investigator off on a line of 2 inquiry in relation to, that it will not be 3 a facet of the reliability of evidence that will 4 be considered in a prosecution decision and will 5 not be a facet of the material that will be 6 considered for the purposes of disclosure. 7 And so, if you don't write it down anywhere, 8 it becomes all the more difficult for it to be 9 considered and, where it is the evidence that 10 underpins an investigation and a prosecution and 11 its reliability is not something that is being 12 considered, things will go wrong. 13 Q. Thank you. Can we turn to charging decisions, 14 which is our third question, and go over the 15 page, please, to paragraph 372. You tell us 16 that the benchmark, the clear benchmark, for the 17 assessment of charging decisions is the Code for 18 Crown Prosecutors. You note the two-part test, 19 and then, in the sixth line, you say: 20 "Each of these two criteria, evidential and 21 public interest, is addressed in a series of 22 questions to be considered. This detail is 23 important because it highlights a range of 24 factors relevant to both stages of the test, 25 some of which will have greater import in some 136 1 factual circumstances than others." 2 Is the point that you're making there that 3 it isn't sufficient to state that there are two 4 criteria, one evidential and one public 5 interest? 6 A. Yes, because you can say to yourself: have we 7 got enough evidence to prove what we suspect? 8 And, if you're just looking at quantity rather 9 than quality, then that will not necessarily 10 lead you to the right conclusion. If you ask 11 yourself the question, is it in the public 12 interest for us to prosecute without 13 understanding what that means or what it may 14 mean, then you can come to a perhaps rather 15 supervision view as to what public interest 16 means or think that it is just a rather 17 straightforward tick box, in the sense that, if 18 they've committed an offence, of course it is in 19 the public interest to prosecute them, without 20 drilling into what is actually a much more 21 nuanced process. 22 Q. You make the point that the Code requires 23 consideration of material that might call into 24 question the reliability of evidence that is 25 relied upon. 137 1 A. Yes. 2 Q. Is that a reference to those variable -- there's 3 five, there's six, there's eight, I think, 4 depending on which iteration of the Code one 5 looks at, which direct prosecutors actively to 6 test the reliability of the evidence that they 7 propose to rely on? 8 A. Yes, and, of course, those questions in the Code 9 are designed to address a whole range of 10 offences and so they may, for example, refer to 11 the reliability of a witness but, when you read 12 them as a set and think "What is this asking of 13 me?" it is clear it is asking you to assess the 14 reliability of the material that you are relying 15 on. And so where what you relying on is data, 16 rather than an eyewitness, it reminds you that 17 you need to consider the reliability of that 18 data. 19 Q. Moving to paragraph 373, four lines in, you say 20 the earliest reference to the Code in Post 21 Office policies that you could find was in 2007 22 but that policy acknowledged the use of the 23 Code, rather than addressing in any detail at 24 all how it was to be applied or which features 25 peculiar to the offences investigated by the 138 1 Post Office were relevant to a charging 2 decision? 3 A. Yes, and one could test that, it seemed to me, 4 by comparing the name checking in 2007 with the 5 detail in 2013 and the new prosecuting policy 6 that was derived then, which did spell out, in 7 detail, a whole series of Post Office directly 8 relevant considerations, and would allow for 9 a prosecutor properly to carry out the task of 10 reaching a prosecuting decision in a way that 11 just saying "There's a Code out there" wouldn't. 12 Q. Over the page to 374, please. You I think make 13 a point that you made a couple of moments ago: 14 that, although the list of reliability 15 considerations included in a Code for Crown 16 Prosecutors had to be broad because of the range 17 of the offences -- 18 A. Yes. 19 Q. -- being considered by the CPS, essentially they 20 were directing a prosecutor to consider the 21 reliability of the evidence they proposed to 22 rely on, whatever form that may take? 23 A. Yes. 24 Q. In this case, logically, where a prosecution 25 depended on Horizon data, it required 139 1 consideration of whether there was anything that 2 might undermine the reliability of the Horizon 3 data; is that right? 4 A. Yes, absolutely. 5 Q. Thank you. You say in the first sentence at 6 paragraph 375: 7 "It follows that for almost if not the whole 8 of the Inquiry's relevant period, Post Office 9 policies did not include any detailed 10 application of the Code for Crown Prosecutors, 11 to the extent that they recognised its 12 application at all." 13 A. Yes. 14 Q. How serious an issue is that? 15 A. It ties in with my concern that we've already 16 considered of who was making the prosecution 17 decisions, as opposed to what legal advice they 18 might have received along the way. But 19 particularly if considerations -- decisions as 20 to prosecution were being taken other than by 21 lawyers, then the lack of detail as to what they 22 needed to consider in a Post Office context in 23 order to do that ran real risks of decisions 24 that were not properly grounded in identifiable 25 principle. 140 1 And a failure to acknowledge, analyse and 2 set out what a code for Post Office prosecutors 3 needed to address in reaching prosecution 4 decisions ran the risk of those decisions being 5 in error. 6 Q. Thank you. In paragraph 376 you allude to the 7 absence in Post Office policies, all of them, of 8 any reference to the DPP's Guidance on Charging? 9 A. Yes, and really that's because that identifies 10 the separation of roles, the separation of 11 decision-makers, where -- on the one hand, and 12 the lack of clarity as to that in Post Office 13 policies, on the other. That just concerned me. 14 Q. Thank you. You can include at the end of that 15 paragraph: 16 "This removed the [over the page] 17 potentially important safeguard of 18 an independent and ultimately decisive second 19 opinion before a decision to charge was 20 reached." 21 A. Yes. 22 Q. Can we turn to the decision in Eden. I'm not 23 going to ask you about paragraph 377 because we 24 addressed that this morning. Can we turn to 25 378. You say that, whether it was Post Office 141 1 practice to charge both theft and false 2 accounting, despite the judicial approval given 3 to that practice by the Court of Appeal in Eden, 4 can be looked at in Volume 2, because you need 5 to see the facts? 6 A. Yes. 7 Q. But it's noteworthy that in the material you had 8 seen, Chris Aujard's policy document noted that, 9 typically, that which the Court of Appeal 10 disapproved was gone? 11 A. Yes, and Eden is not saying -- and I'm not 12 suggesting that Eden is saying -- that you 13 cannot have both theft and false accounting on 14 an indictment. 15 Q. No. 16 A. What Eden is saying is you need to think why 17 you've got them both on the indictment and what 18 they're there for. 19 Q. Over the page to 379. You say that, whether 20 there was a practice of plea bargaining needs to 21 wait for Volume 2. 22 A. Yes. 23 Q. Is that the long and short of it? 24 A. Yes. 25 Q. Thank you. "Initiation of proceedings", the 142 1 third part of our question 3. Is it essentially 2 this: that because proceedings were initiated by 3 way of laying of an information and the issue of 4 a summons by the Post Office, a proper 5 procedure, there was a duty of candour that 6 required to be complied with, there was no 7 reference in any document to that duty? 8 A. No, and although the case that I point to is 9 a decision in 2018, it was not plucked out of 10 the air in 2018. It was founded on a series of 11 cases over a longer period of time, so 12 throughout the Inquiry's relevant period. 13 Q. Thank you. Question 3(d), over the page at 163. 14 You say in the second sentence that you do have 15 concerns as to the adequacy of the disclosure 16 regime erected by the Post Office policies in 17 the relevant period and there's a real question 18 as to whether those policies were sufficient to 19 ensure that disclosure was properly undertaken, 20 considered and completed in cases prosecuted by 21 the Post Office in that period? 22 A. Yes. 23 Q. You tell us in 383: 24 "This is of very real concern because the 25 risks posed by failures of disclosure were 143 1 already well understood before the Inquiry's 2 relevant period commenced." 3 So the miscarriage of justice cases had 4 already, at least in this respect, passed 5 through the CACD. 6 A. Yes. 7 Q. You say in 384 that the Post Office correctly 8 identified and at least briefly addressed the 9 duty of disclosure under the CPIA and the 10 amplification of that duty in the Code from 2001 11 in its disclosure policy of that date. However, 12 it did so in outline and without specific 13 reference to the Code. It took until a decade 14 later, July 2010, to do so? 15 A. Yes, and so if the suggestion is that there's 16 a policy and outline and one could go away and 17 read the Code to resolve any questions one had, 18 it would certainly help someone to do that if 19 you told them where to look within the Code, 20 rather than just saying there is one. 21 Q. Over the page to 385, please. You say: 22 "Importantly ... my particular concern in 23 policy terms is the failure of Post Office 24 policies that [you] have seen to refer to, apply 25 and address the succession of iterations of the 144 1 Attorney General's Guidelines on disclosure." 2 A. Yes. 3 Q. That's because they address the pursuit of 4 reasonable lines of inquiry and the important 5 role of prosecutors in advising an investigator 6 on reasonable lines of disclosure and the act of 7 undertaking disclosure? 8 A. And also, as we'll come on to, third party 9 disclosure as well. 10 Q. You make that point in paragraph 386. You say 11 that "critically" -- in what respect was it 12 critical? 13 A. The policies that I saw did not address 14 third-party disclosure. 2001 disclosure policy 15 did acknowledge the existence of a guideline 16 from the Attorney General; the 2010 didn't do 17 that. But, in terms of making it sort of part 18 of the muscle memory of an investigator and 19 a prosecutor that that was a real part of their 20 role, it didn't give them a lot of help and, 21 certainly from 2010, didn't give them any at 22 all. 23 Q. In the third line you say: 24 "This is of great potential importance given 25 that Fujitsu would represent a third party in 145 1 possession of material that might have been 2 relevant to prosecution cases by reference to 3 its relevance to the reliability of the Horizon 4 System. There was nothing in the ... policies 5 that [you had] seen explicitly to direct 6 a prosecutor's attention to the need to consider 7 whether material had been sought as to the 8 reliability of the system, or to assist as to 9 how and from where that material should be 10 sought if it was outstanding. That is far from 11 satisfactory position." 12 A. Yes, and I should say that I had approached, for 13 these purposes, Fujitsu as a third party without 14 any consideration of the contractual position 15 and what that might mean. That is for cleverer 16 people than me. 17 Q. Sorry, I missed the last part of that sentence? 18 A. That is for cleverer people than me to 19 understand. 20 Q. Can we turn over the page to paragraph 388. You 21 deal with Section 69 of PACE. 22 A. Yes. 23 Q. I don't think there's anything additional 24 there -- 25 A. No. 146 1 Q. -- to the evidence that you gave earlier that 2 I need to illicit. 3 MR BEER: Mr Atkinson, thank you very much for the 4 evidence you've given. They're the only 5 questions that I ask. 6 I know that there's one Core Participant, 7 sir, Mr Stein, who has a small number of 8 questions to ask. 9 SIR WYN WILLIAMS: Over to you, Mr Stein. 10 Questioned by MR STEIN 11 MR STEIN: Mr Atkinson, can I take you please to 12 your report, finishing in a considerable number 13 of zeros and 2. In particular, I'll ask you 14 a couple of questions about paragraphs 254 and 15 253, internal pagination, page 112. 16 A. Thank you. 17 Q. Now, this part of your report you're discussing 18 the 2000 version of the AG's Guidelines. And 19 then at paragraph 255 you quote from the 20 Guidelines. I'm just going to go through the 21 first paragraph that relates to those quotes 22 that you've set out there in italics: 23 "Generally material can be considered to 24 potentially undermine the prosecution case if it 25 has an adverse effect on the strength of the 147 1 prosecution case. This will include anything 2 that tends to show a fact inconsistent with the 3 elements of the case that must be proved by the 4 prosecution. Material can have an adverse 5 effect on the strength of the prosecution case 6 (a) by the use made of it in cross-examination; 7 and (b) by its capacity to suggest any potential 8 submissions that could lead to (i) the exclusion 9 of evidence; (ii) a stay of proceedings ..." 10 Now, can we just deal, please, with what you 11 have set out there at numerals (i) and (ii). 12 A. Yes. 13 Q. If you would please, could you explain, no doubt 14 in reference to Section 78 of the Police and 15 Criminal Evidence Act, possibly Section 76, what 16 you mean by the "exclusion of evidence"? 17 A. So Section 78 of the Police and Criminal 18 Evidence Act is a route to the exclusion of 19 evidence that would have an unfair effect on the 20 proceedings, which will include by reference to 21 how that evidence was obtained. And so if, by 22 way of example, there was reliance on computer 23 data as evidence against an accused, if there 24 were material that might show that there was 25 unfairness in that reliance by reference to how 148 1 that data had been obtained, whether that data 2 was reliable, whether it was possible properly 3 within the proceedings to explore its 4 reliability, those would all be factors that 5 could be deployed by those acting on behalf of 6 the defendant to exclude the evidence. 7 And, clearly, they can only do that if they 8 are aware of that material, which is why it 9 should be disclosed to them, so that they can 10 then make the decision whether to pursue the 11 argument or not. 12 Q. Yes. Those sorts of exclusionary arguments 13 within criminal proceedings can sometimes 14 exclude part of a prosecution case -- 15 A. Yes. 16 Q. -- occasionally, the entirety of the prosecution 17 case -- 18 A. Yes. 19 Q. -- though that is quite rare. So the effect of 20 that can be that it removes from the criminal 21 proceedings, the trial before a Magistrates 22 Courts or a jury, some aspects of a prosecution 23 case; is that a fair description? 24 A. Yes, yes. 25 Q. Okay. Let's then move on to the next part, 149 1 which is a stay of proceedings. 2 A. Yes. 3 Q. Now, a stay of proceedings is a familiar term to 4 people that work within both civil areas of work 5 in law and criminal. A stay of proceedings is 6 a reference to an abuse of process? 7 A. Yes. 8 Q. Fundamentally, we, working within the criminal 9 justice system, are used to the two different 10 levels of abuse of process, one which is that 11 a trial should not occur because to try 12 an individual in those circumstances is unfair, 13 yes? 14 A. Yes. 15 Q. And the second, which is where there is some 16 unfairness that, in the circumstances of that 17 particular case, in other words relevant to that 18 case, that may mean that particular trial should 19 not go ahead; is that right? 20 A. Yes, either that they cannot, for whatever 21 reason, receive a fair trial or that it would, 22 in any event, be unfair to try them. 23 Q. Yes. So we've just analysed the question of 24 exclusion of evidence and then the stay of 25 proceedings. And the evidence that forms the 150 1 basis for making applications to remove part of 2 a prosecution case or indeed to stay proceedings 3 often actually has to come from the prosecution? 4 A. Yes. 5 Q. That can often happen in circumstances where the 6 defence have absolutely no knowledge that there 7 could be such an application, either to exclude 8 or indeed to stay the case? 9 A. No, that's right. 10 Q. So helping put this all together, do you agree 11 it means that prosecutors and investigators need 12 to be aware that their duty extends to the 13 disclosure of information that may thoroughly 14 undermine, effectively ruin their case entirely, 15 that if they were in the job of just winning 16 with no regard to truth or justice, they 17 wouldn't in 1 million years disclose, that 18 actually they have to disclose? 19 A. They have to do rather more than that. They 20 have to disclose in that situation that you 21 posit, but they don't have to be -- to think 22 that this is actually going to ruin their case. 23 If they think it is a proper argument for the 24 defence to run, even if they think it's one that 25 they have an answer to, they still have to 151 1 disclose it to give them the opportunity to try. 2 Q. Yes. So if I take you now, please, then to, 3 within the same report, your report, page 117, 4 paragraph 266. Now, to an extent, we're about 5 to emphasise really the same point that you've 6 just made. Paragraph 266. 7 So this is in reference now to the 2005 8 Attorney General's Guidelines. So we've moved 9 on slightly in terms of time, fundamentally the 10 basic position remains. 11 A. Yes. 12 Q. If we look at 266, what's described as primary 13 disclosure is now defined as follows, 14 paragraph 8 within the Guidelines: 15 "... 'Disclosure refers to providing the 16 defence with copies of, or access to, any 17 material which might reasonably be considered 18 capable of undermining the case for the 19 prosecution against the accused, or of assisting 20 the case for the accused, and which has not 21 previously been disclosed'." 22 So if we break this down, in terms of the 23 two points that I've just been asking you about, 24 in other words the ability for the defence to 25 mount an argument to exclude information or 152 1 exclude evidence, or the defence to put forward 2 an abuse of process application, the prosecution 3 duty isn't just to disclose it where it is, if 4 you like, a home run for the defence; it is to 5 disclose it where it might reasonably be 6 considered capable of undermining the case for 7 the prosecution or of assisting the case for the 8 accused. 9 So in the two regards, do you agree, that 10 I've been asking you questions about, 11 applications to exclude evidence or stay 12 proceedings, where the words say "or of 13 assisting the case for the accused" we might 14 read that including "or assisting the case of 15 the accused", in terms of putting forward 16 an application to include evidence or to stay 17 the proceedings; is that right? 18 A. Yes, yes it is. 19 Q. So in adding up the position that you reached 20 when you are the prosecutor, you have to make 21 sure that you are keeping in mind all of the 22 different range of applications that might be 23 made within the trial process and considering 24 those as though you are in the shoes of the 25 defence, if you're aware of the information; is 153 1 that fair? 2 A. Yes, and that's why it is explicitly recognised 3 that it's a continuing obligation, because 4 things will develop and you could not 5 potentially be criticised for anticipating 6 an argument at the very beginning of the process 7 when you first see the papers but, as 8 information comes in, you should always be 9 considering what does this mean and what does 10 this mean for my disclosure obligations? 11 Because it might be that a defence line occurs 12 to you that they should be entitled to explore, 13 and that means you have to disclose them. 14 Q. Yes. That's paragraph 267, reference to the 15 continuing duty? 16 A. Yes. 17 Q. So the continuing duty is both before the 18 proceedings start, so in the run-up to the trial 19 itself; is that right? 20 A. Yes. 21 Q. Through the trial process? 22 A. Yes. 23 Q. Just to nail this down, what about when the jury 24 has gone out, if it's a jury case? 25 A. Your disclosure obligations would continue up to 154 1 and including the point of verdict. They would 2 still continue even after that, although, 3 post-conviction, the post-disclosure obligations 4 are slightly different but they still exist. 5 Q. So these duties, in relation to the very points 6 that we've looked at regarding disclosure, 7 regarding a possible application for exclusion, 8 stay of proceedings, these are all wrapped up 9 within the continuing duty to disclose? 10 A. Yes. 11 Q. Okay. Now, the question of consideration, 12 therefore, as we've seen from the 2000 Attorney 13 General's Guidelines, has been well known to 14 prosecutors since at least the year 2000, 15 probably, in fact, if we look back a bit, before 16 that, that the disclosure duty applies to the 17 stay of proceedings and exclusion of material. 18 This is built in to the system? 19 A. Well, I forget off the top of my head when Ward 20 was but Ward was all about the exclusion of 21 material and material that should have been 22 disclosed to allow for the exclusion of 23 material. So that, certainly, is very much part 24 of the fabric of what a prosecutor should have 25 in their -- mixed metaphor -- but should have 155 1 available to them. 2 Q. So let's go back to paragraph 266, page 117 of 3 your report: 4 "... 'Disclosure refers to providing the 5 defence with copies of, or access to, any 6 material which might reasonably be considered 7 capable ...'" 8 Can I just concentrate on the words "any 9 material" for a moment, please. You've been 10 asked number of questions by Mr Beer today about 11 what sort of information might be useful in 12 terms of useful to be disclosed to the defence. 13 Mr Beer was raising the question in terms of 14 an allegation being made against a postmaster, 15 and the postmaster is saying, "Not me. I did 16 not nick the money, I didn't take that money. 17 There's something wrong with this system". 18 Okay? 19 So I put it in a different anyway to 20 Mr Beer, who did it much more elegantly, but 21 that's roughly what he was saying; do you agree? 22 A. Yes. 23 Q. All right. Now, help us a little bit further in 24 that. The questions you were asked by Mr Beer 25 was about the situation whereby there are known 156 1 to be some defects, let's be generous, within 2 the Horizon System. So knowledge of problems 3 with the Horizon System, from what you've said 4 to Mr Beer and in your report, essentially 5 should be disclosed, yeah? 6 A. It would always depend to an extent on your 7 appreciation of what those defects were and so, 8 just as the concern before they repealed 9 Section 69 was that there was this 10 misunderstanding of how Section 69 worked, that 11 if you were using a computer and there was 12 anything wrong with it, then the computer 13 evidence was out, even if it had nothing at all 14 to do with anything you were relying on. You 15 would have to -- and so if there were a defect 16 that had nothing at all to do and could have 17 nothing at all to do with what was in issue, 18 then that wouldn't necessarily give rise to 19 disclosure, but if it might, then you would. 20 Q. So a non-material defect that related -- I don't 21 know -- to it taking there were three days to 22 back-up and, in fact, it should only take two 23 and a half days? 24 A. Yeah. 25 Q. Well, we might consider that as being 157 1 non-material. 2 A. (The witness nodded) 3 Q. If the machine could cause shortfalls, we're 4 talking about something quite different? 5 A. Yes. 6 Q. Now, help us where there is knowledge within the 7 Post Office of the fact that it is either very 8 difficult or impossible to prove a loss. So we 9 have an individual, a subpostmaster, who is 10 facing an allegation by the Post Office of 11 having taken money, essentially taken money, 12 from the Post Office. The Post Office want to 13 prove that allegation of theft against that 14 individual and they may or may not have a false 15 accounting charge on the charge sheet or 16 indictment. 17 Now, if the Post Office is aware that they 18 can't or it is extremely difficult and very 19 expensive to prove the loss through the system, 20 so in other words proving a negative -- they 21 can't do this, they can't prove a loss -- should 22 that material, should that information be 23 disclosed? So proving, in the sense, 24 a negative, "We can't do this"? 25 A. It would potentially and only potentially -- and 158 1 it would depend on the facts rather more than 2 I understand them at present -- but it would 3 potentially depend on how they were putting 4 their case. If their case was the computer says 5 this amount of money was stolen by you, that's 6 what this data shows and, in fact, they can't 7 prove that there was a loss at all, then that is 8 something that undermines their case, because 9 it's directly contrary to what they're asserting 10 and, on that situation, they should, if they 11 want to go ahead with the prosecution, be 12 disclosing the material that shows that. 13 Q. So the fact that something may not, in fact, be 14 directly in writing somewhere, in other words 15 it's corporate knowledge that the Post Office 16 can't prove a loss using the Horizon System, 17 that is still perfectly capable of being 18 disclosed? 19 A. Depending on the circumstances, yes. 20 Q. Depending on the circumstances. 21 I think that the report you're working on at 22 the moment is going to be looking at individual 23 cases. 24 A. Yes, it is. 25 MR STEIN: Excuse me for one moment. 159 1 Thank you, Mr Atkinson. 2 Sir, no further questions. 3 Questioned by SIR WYN WILLIAMS 4 SIR WYN WILLIAMS: Mr Atkinson, Ward was decided in 5 1993, so you tell us at paragraph 366, or at 6 least the footnote to that paragraph. 7 A. Yes. 8 SIR WYN WILLIAMS: I take it that that was the first 9 authoritative exposition of disclosure in the 10 way that you have described it following the 11 Act. The Act was in 1985, was it? Yes? 12 A. So Ward was very much concerned with a failure 13 of disclosure by the combination of an expert, 14 and the prosecution relying on the expert, of 15 material that undermined the expert's 16 conclusions. And it put into clear focus the 17 need for there to be disclosure in that kind of 18 situation, and the fact that if there wasn't 19 a disclosure in that kind of situation, there 20 would at least be a risk, and on the facts of 21 that case, there was a miscarriage of justice as 22 a result. 23 And the whole structure since then, through 24 things like the CPIA, has been designed to try 25 and prevent that happening again. 160 1 SIR WYN WILLIAMS: Yes. My point is I think, all 2 that was going through my mind, really, given 3 that our time period for investigation begins in 4 about 2000, those engaged in the prosecution of 5 suspects -- or the investigation and prosecution 6 of suspects, rather -- would have had plenty of 7 time to digest what the Court of Appeal had said 8 in Ward, yes? 9 A. Very much so, yes. 10 SIR WYN WILLIAMS: Fine. All right. 11 Well, I thanked you yesterday for your 12 evidence and for your clarity and economy of 13 words, and today deserves a very similar thanks. 14 So thank you very much, Mr Atkinson, for all the 15 help you've tried to give me. 16 THE WITNESS: Thank you, sir. 17 SIR WYN WILLIAMS: I look forward to hearing from 18 you again before Christmas. 19 THE WITNESS: Thank you, sir. 20 MR BEER: Sir, can Mr Atkinson be released from the 21 embargo on speaking to anyone because we will 22 need to speak to him between now and when he 23 give evidence in December? 24 SIR WYN WILLIAMS: Unless anybody jumps up and says 25 that is inappropriate, Mr Beer, I intend to 161 1 release him. 2 MR BEER: Thank you very much, sir. 3 Sir, we return at 10.00 on Tuesday. 4 SIR WYN WILLIAMS: Very well. Thanks very much. 5 See you on Tuesday. 6 MR BEER: Thank you very much, sir. 7 (3.06 pm) 8 (The hearing adjourned until 10.00 am on 9 Tuesday, 10 October 2023) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 162 I N D E X RICHARD DUNCAN ATKINSON KC (continued) ........1 Questioned by MR BEER (continued) .............1 Questioned by MR STEIN ......................147 Questioned by SIR WYN WILLIAMS ..............160 163