1 Wednesday, 11 October 2023 2 (10.00 am) 3 MR BEER: Good morning, sir, can you see and hear 4 me? 5 SIR WYN WILLIAMS: Yes, I can, thank you. 6 MR BEER: Thank you very much. May I call John 7 Scott. 8 JOHN MICHAEL SCOTT (sworn) 9 Questioned by MR BEER 10 MR BEER: Good morning, Mr Scott. As you know, my 11 name is Jason Beer and I ask questions on behalf 12 of the Inquiry. Can you tell us your full name 13 please? 14 A. John Michael Scott. 15 Q. Thank you very much for coming to assist the 16 Inquiry in its work and for previously providing 17 two witness statements to the Inquiry, we're 18 very grateful. Before I ask you questions, 19 about your witness statements, I think the 20 Chairman will deliver a warning. 21 SIR WYN WILLIAMS: Mr Beer, can you tell me whether 22 Mr Scott is legally represented this morning? 23 MR BEER: Yes, he is. 24 SIR WYN WILLIAMS: By a solicitor and counsel or 25 just solicitor? 1 1 MR BEER: Both. 2 SIR WYN WILLIAMS: Thank you. 3 Mr Scott, a witness at a public inquiry has 4 the right to decline to answer a question put to 5 him by counsel to the Inquiry, by any recognised 6 legal representative or by me if there is a risk 7 that the answer to that question would 8 incriminate the witness. 9 This principle of our law is known in 10 shorthand form as the privilege against 11 self-incrimination. I have decided, Mr Scott, 12 that fairness demands that I remind you of that 13 principle before you give your evidence. 14 However, I should also tell you that it is for 15 you to make clear to me that, in respect of any 16 question put to you, it is your wish to rely 17 upon the privilege. 18 If, therefore, there are any questions put 19 to you by any of the lawyers who asks you 20 questions, or by me, which you do not wish to 21 answer, on the grounds that the answer to such 22 questions might incriminate you, you must tell 23 me immediately after the question is put to you. 24 At that point, I will consider your objection, 25 and thereafter rule upon whether you should 2 1 answer the question or whether the objection 2 should be upheld. 3 As you've just heard me enquire, you are 4 represented here today by counsel and 5 a solicitor. No doubt, if the issue relating to 6 self-incrimination arises, they will assist you 7 and if, at any stage during the questioning, you 8 wish to consult your lawyers about the 9 privilege, you must tell me so that I can 10 consider whether that is appropriate. 11 Do you understand what I've just sought to 12 explain to you, Mr Scott? 13 A. Yes. 14 SIR WYN WILLIAMS: Thank you very much. Then please 15 begin the questioning, Mr Beer. 16 MR BEER: Thank you very much, sir. Mr Scott, you 17 should have in front of you a hard copy of 18 a witness statement in your name, dated 12 May 19 2023. If you turn to the last page of it, which 20 should be page 47, there should be a signature; 21 is that your signature? 22 A. Yes. 23 Q. With the corrections that you subsequently made 24 in your second witness statement, more of which 25 in a moment, are the contents of that first 3 1 statement true to the best of your knowledge and 2 belief? 3 A. Yes. 4 Q. Thank you. For the purposes of the transcript 5 the URN for that first witness statement is 6 WITN08390100, there is no need to display that 7 at the moment. 8 You produced a second witness statement of 9 your own volition yesterday and there should be 10 a hard copy of that in front of you; is that 11 right? 12 A. That's correct, yes. 13 Q. If you go to -- I think it's the ninth page, is 14 that right? 15 A. Page 10, yes. 16 Q. 10 in fact, okay, is that your signature? 17 A. Yes. 18 Q. Are the contents of that witness statement true 19 to the best of your knowledge and belief? 20 A. Yes. 21 Q. The URN for that is WITN08390200. Again, there 22 is no need to display it. Can I start, please, 23 with your career, qualifications and experience. 24 I think it's right, isn't it, that you were 25 employed by the Post Office and cognate 4 1 organisations between February 1993 and 2 September 2016; is that right? 3 A. Yes. 4 Q. So for 23 and a half years? 5 A. Yes. 6 Q. If we go to your first witness statement, 7 please, WITN08390100 -- it'll come up on the 8 screen for you, thank you -- go to page 2 and 9 look under the heading "Background" at 10 paragraph 5. Under the heading "Background" you 11 tell us: 12 "I have an MSC in Security & Risk Management 13 focusing on preventative security and 14 criminology. I also have other supporting 15 industry qualifications such as a Diploma in 16 Anti-Money Laundering." 17 Is that right? 18 A. Yes. 19 Q. I think it's also right that you are a former 20 police officer? 21 A. Yes. 22 Q. Can you tell us how long you served in the 23 police service for? 24 A. About seven years. 25 Q. Between what years was that? 5 1 A. 1984 to 1992. 2 Q. '84 to '92? 3 A. Yes. 4 Q. Thank you very much. Were you a uniformed 5 officer or a detective? 6 A. The vast majority uniform. A very small part as 7 a detective, for about three months. 8 Q. What rank were you when you left? 9 A. Sergeant. 10 Q. Were you trained in and did you operate under 11 the Police and Criminal Evidence Act 1984? 12 A. Yes. 13 Q. Did you construct files for advice to be given 14 on charging decisions? 15 A. I submitted files to the CPS, yes. 16 Q. I'm sorry? 17 A. I submitted files to the CPS. 18 Q. Yes, so you put files up to the CPS to make 19 charging decisions; is that right? 20 A. Yes. 21 Q. Did you ever make decisions about charging 22 suspects with offences yourself? 23 A. Not that I recall, no. 24 Q. Were you familiar with the terms of and 25 operation of the Code for Crown Prosecutors? 6 1 A. At that time, I can't recall, to be honest. 2 Q. You tell us in this statement here your 3 background and you tell us about your MSC in 4 security and risk management. You don't mention 5 here that you were a police officer. Was there 6 any reason for that? 7 A. No, not really. It's -- we got a significant 8 amount of documentation and pages with a very 9 limited time in which to respond to lots of 10 questions, so it was a challenge just to get the 11 statement in, to be honest. 12 Q. Did the documents that we sent you assist you to 13 remember whether or not you were a police 14 officer? 15 A. I knew I was a police officer. 16 Q. So I am asking you: in your background here you 17 tell us about your MSc, you don't tell us about 18 you being a police officer? 19 A. My MSc was done during the Post Office period. 20 They sponsored it and it's around the 21 preventative which was the strategy that I was 22 taking within the Post Office. 23 Q. You knew that in the questions we were asking 24 you to create the witness statement you were 25 being asked questions about adherence to the law 7 1 concerning the conduct of criminal 2 investigations and prosecutions, didn't you? 3 A. Um -- 4 Q. That's what the request was all about? 5 A. Okay, understand. 6 Q. Did you not think it was relevant to say that 7 you were a police officer? 8 A. As I say, it was a challenging time to get the 9 statement in and read all the documents. 10 Q. So it was the volume of documents that meant 11 that you didn't include the fact that you were 12 a police officer? 13 A. I have to say, I can't recall at that time 14 trying to get the statement in, to be honest, in 15 a challenging time. 16 Q. You held various roles in the Security team in 17 the Post Office, between joining in 1997 and 18 2004; is that right? 19 A. Yes. 20 Q. From 1999 to 2004 you were Head of Security for 21 Royal Mail International; is that right? 22 A. Yes. 23 Q. What were the primary responsibilities of that 24 job? 25 A. It was all preventative around the theft or loss 8 1 of international mail. 2 Q. Were you aware, in that period of time, of the 3 development of the Horizon System? 4 A. No. 5 Q. So in the five-year period between 1999 and 6 2004, you had not heard of Horizon; is that 7 right? 8 A. As far as I recall, no. 9 Q. So you weren't aware that the Benefits Agency 10 had been involved in the project and had 11 withdrawn from it? 12 A. No. 13 Q. You weren't aware of any what were described as 14 acceptance issues, ie in high level summary, 15 whether the Horizon System was performing as 16 expected or not during the development of 17 Horizon? 18 A. No. 19 Q. You weren't aware of issues that arose 20 concerning the reliability and accuracy of the 21 data that Horizon produced during the rollout of 22 Horizon? 23 A. No. 24 Q. You wouldn't have been aware that the rollout of 25 Horizon had to be paused -- 9 1 A. No. 2 Q. -- nor the reasons why rollout had to be paused? 3 A. No. 4 Q. From 2004 to 2007, you were the Senior Security 5 Manager for physical security; is that right? 6 A. For the Post Office, yes. 7 Q. Were you required to perform task in that role 8 that required an understanding of how Horizon 9 functioned in branches? 10 A. Very limited for Christmas duty. 11 Q. Can you explain, please? 12 A. So all employees would support the branch 13 network at Crown Offices and would go onto the 14 counter and do the very most basic of services, 15 like selling stamps. 16 Q. So it was just a knowledge sufficient to work at 17 a temporary cover level at Christmas? 18 A. Even more limited than that, because it is very 19 basic products we would have been selling. 20 Q. Sorry, if you just keep your voice up. It was 21 very basic products? 22 A. Such as selling stamps. It wasn't even extended 23 past those sort of areas. Very basic products. 24 Q. Between 2004 and 2007, did you receive any 25 training on the use of Horizon? 10 1 A. To do that, it would have probably been a one 2 day's training course to sell those basic 3 products. 4 Q. A one-day training course once, not each year? 5 A. Once. 6 Q. Did you receive any refresher training? 7 A. Not that I recall. 8 Q. In that period up until 2007, ie until you 9 became Head of Security, had you heard of any 10 issues with the integrity of Horizon or the 11 reliability and accuracy of the data that it 12 produced? 13 A. No. 14 Q. From 2007 onwards, you became Head of Security; 15 is that right? 16 A. Yes. 17 Q. You took over from Tony Marsh -- 18 A. Yes. 19 Q. -- and Mr Marsh moved to be in charge of 20 security at the Royal Mail Group; is that right? 21 A. Yes. 22 Q. You hesitated. 23 A. No, he did go to the Royal Mail Group, as Head 24 of Security, and then it evolved a little bit 25 after that, I think. 11 1 Q. Tell us about the evolution? 2 A. The Security Director or Group Security Director 3 left around about 2008 and he took on that role, 4 as well as the director of -- his existing role 5 so it merged two roles. 6 Q. So he didn't move to Royal Mail Group to be the 7 Head of Security; he moved for another role and 8 then a year later also took over that role? 9 A. No, he did go over to be the Head of security or 10 Director of Security for Royal Mail Letters and 11 then when the Royal Mail Group Director left he 12 took on that role as well as the Royal Mail 13 Letters role. 14 Q. Was there any chain of responsibility between 15 you and Mr Marsh, after Mr Marsh moved to the 16 Royal Mail Group? 17 A. Once he took over the Group Security Director, 18 yes, there was dotted line. 19 Q. What did the dotted line consist of? 20 A. He was the Group Security Director responsible 21 for security across all business units within 22 the Royal Mail Group. 23 Q. So, for example, how often would you meet or 24 otherwise communicate? 25 A. I do recall going and meeting him two or three 12 1 times in the first 18 months or couple of years, 2 and less so thereafter. 3 Q. If you can tell us more about what a "dotted 4 line" means. Was he responsible in any way for 5 your management or supervision? 6 A. Day to day, that's the responsibility of Post 7 Office line management. He was responsible more 8 for the security and -- yeah, the security 9 requirements across the business. 10 Q. What does that mean, "He was responsible for the 11 security requirements across the business", 12 insofar as that concerned you? 13 A. So he had overall oversight of the security 14 within the Post Office, the strategy, the 15 direction, what we're delivering to, our 16 performance, et cetera. 17 Q. So would you say he had oversight of the 18 discharge of the responsibilities of the 19 Security Department within Post Office, 20 including its leadership by you? 21 A. I guess so, yes. 22 Q. We've heard from Mr Marsh -- it's the transcript 23 for 5 July 2023, page 213, line 30 and on to 24 page 214 -- that he did not enjoy a good working 25 relationship between you. He said it wasn't 13 1 a great working relationship and it wasn't 2 a good working relationship. First, is that 3 right? 4 A. We had a good working relationship up until 5 about a certain point around about 2008 and, 6 thereafter, it was a bit more of a distant 7 relationship. 8 Q. Why was it a bit more of a distant relationship? 9 A. There was a complete disagreement in terms of 10 strategy around investigation and prosecution. 11 Q. Was it a personality issue between the pair of 12 you? 13 A. No. 14 Q. What was the nature of the disagreement, then? 15 A. I'd taken over as Head of Security for the Post 16 Office. The Investigation team, which I created 17 into the Fraud strand, was very much focused on 18 purely investigation and prosecution, whereas 19 I wanted to take a very much more preventative 20 approach, so to deter, to prevent, to disrupt 21 and then, if necessary, investigate and 22 prosecute. 23 And that approach took an analytical 24 approach, where we did a root cause in terms of 25 the MI on all the different products. We'd see 14 1 where we were getting our largest losses or we 2 were repeating the same type of investigations 3 and prosecutions, and I wanted to do it more 4 preventative, stop it at the outset, whether 5 it's fraud or non-compliance, rather than just 6 keep on investigating and prosecuting. 7 As such, the analysts would then draw up the 8 outliers, so we could see our branch profile, 9 and it was not within the -- sort of, the 10 boundaries of what all the other profiles of 11 that Post Office are, it was an outlier, and 12 that could be 1 to 50, 1 to 100 post offices 13 and, rather than investigating and looking to 14 prosecute all those outliers, I took 15 a preventative approach. 16 So we did letters out to them, we'd done 17 phone calls, we offered training, et cetera. 18 And his was very much he wanted every single 19 one investigated and, if necessary or 20 appropriate, prosecuted. 21 Q. How did he make this clear to you, that he 22 wanted everyone investigated and, if 23 appropriate, prosecuted? 24 A. I can't recall the discussions that we had when 25 I went to meet him but, ultimately, he left me 15 1 a message to say that, as Group Security 2 Director, he was going to take over the 3 Investigation team, as from the following week, 4 and have it reporting into his Head of Criminal 5 Investigations. 6 Q. If you didn't do what he said? 7 A. No, it was -- 8 Q. In any event? 9 A. He was going to do that in any event. 10 Q. Did that happen? 11 A. No. 12 Q. Why didn't it happen? 13 A. I reported it to my line manager -- 14 Q. Which was who? 15 A. I believe it was Mike Young at that time but it 16 is only I believe. It could have been Ric 17 Francis but I believe it was Mike Young. 18 Q. Sorry, I interrupted you. You reported it to 19 Mike Young and? 20 A. Obviously, I think there was conversations more 21 senior, then I was requiring to write a report 22 on the reasons and rationale of the strategy. 23 I think I got the Head of Fraud to write that. 24 That was submitted to Mike Young and 25 I understand the MD, Alan Cook, had 16 1 conversations with his senior executives in 2 Royal Mail Group and then it came back to say 3 I can continue with the prevention approach. 4 Q. So would that be from about 2008 onwards? 5 A. 2008/2009. I can't actually be precise. 6 Q. Had you encountered any difficulties with 7 Mr Marsh before he moved on to the Royal Mail 8 Group? 9 A. No, he was my line manager for three years 10 before that. 11 Q. Did you enjoy a good working relationship with 12 him then? 13 A. Yes. 14 Q. In any event, you assumed the role of the Post 15 Office's Head of Security in 2007 and you stayed 16 in that position until you left the organisation 17 in 2016; is that right? 18 A. Yes. 19 Q. Therefore, you were accordingly Head of Security 20 during one of the heaviest periods of 21 subpostmaster prosecutions; you know that now? 22 A. I accept that. 23 Q. You presided over the cessation of prosecutions 24 from 2014 onwards? 25 A. I thought it was 2013 but if it's 2014 -- 17 1 Q. The last months of 2013. 2 A. Yes. 3 Q. What was the driver for the change of policy? 4 A. Because the subject matter expertise (sic) 5 within Fujitsu had been discredited, apparently, 6 by the information that he'd been giving, the 7 evidence he'd been giving, and Cartwright King 8 said he cannot be used and, therefore, the Post 9 Office needed to find another subject matter 10 expert to support any evidence. 11 Q. Could you find another subject matter expert to 12 support reliance on the Horizon System? 13 A. By the time I left the Post Office, which is in 14 2016, no. 15 Q. So no expert could be found in three years or so 16 to support the reliability of Horizon; is that 17 right? 18 A. No. I wasn't really involved in those 19 discussions, so I'm not too sure what was in the 20 background but, as far as I'm aware, no. 21 Q. You were the Head of Security, the department 22 responsible for investigating and submitting 23 files for prosecution and, in your case, making 24 decisions on prosecutions? 25 A. For a short period of time, yes, I made 18 1 decisions on prosecution. 2 Q. You must know, therefore, what was done in order 3 to find an expert to speak to the reliability 4 and integrity of Horizon, mustn't you? 5 A. Sorry, can you repeat that? 6 Q. You must know, therefore, as Head of Security 7 with those responsibilities, what was done to 8 find an expert witness who could speak to the 9 reliability and integrity of Horizon? 10 A. I was aware that there were enquiries going on. 11 I only recall being in one meeting with 12 an external potential SME. 13 Q. Who was the potential external? 14 A. It was a London university. I don't know which 15 one. 16 Q. Were they prepared to give expert evidence 17 standing up the reliability of Horizon? 18 A. It was an early meeting and, no, I don't think 19 it was progressed thereafter. 20 Q. So the reason for the cessation of prosecutions 21 was twofold, is this right, on your 22 recollection: firstly, the subject matter expert 23 from Fujitsu had been discredited, according to 24 advice given by Cartwright King; a new expert 25 was needed but none could be found? 19 1 A. Correct. 2 Q. I think you retired in 2016, or you left the 3 Post Office in 2016, the year the Group 4 Litigation was launched and a claim was issued. 5 Did you know about that before you left? 6 A. Not that I recall, no. 7 Q. Did you retire then or did you move on to 8 another job? 9 A. Moved on. 10 Q. Was there any relationship between the 11 commencement of the Group Litigation in 2016 12 concerning the Horizon System and the data that 13 it produced being used for prosecutions and you 14 leaving the Post Office? 15 A. No. 16 Q. They were entirely unconnected events? 17 A. Yes. 18 Q. Can I turn to start asking you about the 19 substance of issues by looking at an issue which 20 arises towards the end of the era of private 21 prosecutions, so it's therefore out of turn in 22 the chronology. I want to start with it to work 23 out whether it tells us anything about the 24 values of the investigation and prosecution 25 functions of the Post Office more generally in 20 1 the earlier period. The topic is the recording 2 of information and the disclosure of material in 3 criminal proceedings. Okay? 4 I'm going to deal with matters 5 chronologically within this topic to give you 6 some context. We're in the year 2013, which, 7 right at the end of which, the prosecution 8 function, as we've discussed, came to an end, 9 okay? 10 Can we start by looking at something which 11 happen on the 3 July 2013. Do you remember 12 a man called Simon Clarke? 13 A. Yes. 14 Q. What do you recall about him? 15 A. He was a lawyer with Cartwright King. 16 Q. So he was an in-house barrister, do you 17 remember, at the solicitors firm Cartwright 18 King? 19 A. When you say "in-house", for us, he was 20 an external lawyer. 21 Q. Yes, he was a barrister in Cartwright King or 22 did you just know him as a lawyer? 23 A. A lawyer. 24 Q. Okay. Did you enjoy a working relationship with 25 him? 21 1 A. I don't recall actually having a working 2 relationship with him. I may have met him once 3 or twice but there wasn't a working 4 relationship. There was nothing -- 5 Q. Cartwright King were the firm of choice for the 6 conduct of private prosecutions, is that right, 7 for the Post Office? 8 A. Yes. 9 Q. Was that for the entirety of the period up until 10 now when you were the Head of Security, so from 11 2007 to 2013? 12 A. I only recall them around about separation, 13 either at separation or just prior to 14 separation. 15 Q. Ie from 2011 onwards; is that right? 16 A. Well, separation was 2012, so it was either just 17 before that or around that time. 18 Q. In any event, on 3 July 2013, Mr Clarke attended 19 a conference at Post Office Headquarters to 20 consider issues relating to the reliability of 21 the Horizon System and the prosecution of 22 subpostmasters for criminal offences. There's 23 no note that we have of this meeting of 3 July 24 2013 but the advice that he gave at that meeting 25 is addressed in a later advice that he wrote, 22 1 which is dated 2 August. 2 Can we look at that first, please. It's 3 POL00006799. So this is an advice dated 4 2 August 2013 -- take it from me rather than 5 looking at the end of the document -- and can we 6 just read paragraphs 1 and 2 together. He says: 7 "On 3 July 2013 I attended [the Post Office] 8 in conference at [Post Office] Head Office to 9 consider issues relating to the Horizon computer 10 system and the prosecution of criminal offences 11 committed against [Post Office] by 12 subpostmasters and clerks. 13 "One of the topics considered by the 14 conference was that of disclosure: I advised 15 that there ought to be a single, central hub, 16 the function of which was to act as the primary 17 repository for all Horizon-related issues. The 18 hub would collate, from all sources into one 19 location, all Horizon-related defects, bugs, 20 complaints, queries and Fujitsu remedies, 21 thereby providing a future expert witness, and 22 those charged with disclosure duties, with 23 recourse to a single information point [where] 24 all Horizon issues could be identified and 25 considered. The rationale behind this advice 23 1 derived from the need to protect [the Post 2 Office] from the current situation repeating 3 itself in future." 4 Did you attend that conference, the 3 July 5 2013 conference? 6 A. I don't recall attending. 7 Q. That answer, "I don't recall", is capable of 8 a wide range of possibilities, including "It's 9 very likely that I did attend but I've got no 10 present recollection, it being 10 years on, that 11 I did", right down to, "I don't think that did. 12 If I had attended I would remember it, albeit 13 I've got no present recollection". 14 A. The latter. 15 Q. Where in the spectrum are we? 16 A. The latter. 17 Q. You don't think that you did? 18 A. Correct. 19 Q. Do you recognise what is said there, the need to 20 create a single, central hub to collate from 21 a range of sources information about defects, 22 bugs, complaints, queries and remedies? 23 A. Yes. 24 Q. So, one way or another, you were told about the 25 need to create this hub; is that right? 24 1 A. I was told, I'm not necessarily saying I was, 2 perhaps, fully briefed in terms of its 3 requirements. 4 Q. You said you were told but not necessarily fully 5 briefed? 6 A. I don't recall getting a real briefing in terms 7 of the requirements of setting up the weekly 8 meetings. 9 Q. Moving on to paragraph 3, he says: 10 "[The Post Office] accepted that advice and 11 [accordingly] a weekly conference-call meeting 12 was established so as to meet the requirement of 13 the central hub. Participants were informed 14 that they should bring all Horizon-related 15 issues that they had encountered to the meeting; 16 minutes were to be taken, centrally retained and 17 disseminated to those who required the 18 information, this list to include [Post 19 Office's] Horizon expert witness." 20 Is the first part of that paragraph correct, 21 going back to the bottom of page 1: 22 "[Accordingly] a weekly conference call 23 meeting was established so as to meet the 24 requirement of the central hub." 25 A. Yes. 25 1 Q. Can we go on to paragraph 4: 2 "Three such conference calls were convened, 3 each conducted on a Wednesday morning. 4 A representative from Cartwright King solicitors 5 'attended' each meeting. A minute-taker was 6 appointed for each call and I understand that 7 each of the minute-takers retain their own 8 handwritten minutes." 9 We'll come back to all of that in a moment. 10 Can we move forward, please, to 15 July. That's 11 POL00006357. If we go to the last page, please, 12 which is page 14, and scroll down, please, 13 you'll see that it's dated 15 July 2013. This 14 is known as the first Clarke Advice, yes? 15 If we go back to the first page, please, and 16 look at the first paragraph, Mr Clarke says: 17 "I am asked to advise [the Post Office] on 18 the use of expert evidence in support of 19 prosecutions of allegedly criminal conduct 20 committed by those involved in the delivery of 21 Post Office services to the public through sub 22 post office branches. By and large these 23 allegations relate to misconduct said to have 24 been committed by [subpostmasters] and/or their 25 clerks. 26 1 "This document considers the provision and 2 use of such evidence in past prosecutions and 3 those currently under way. [He] will deal with 4 future prosecutions separately." 5 Did you receive a copy of this advice? 6 A. I don't believe I did. 7 Q. Were you told about the contents of it? 8 A. I don't believe I did. 9 Q. Can we look, please, at page 13, paragraph 38 10 and following. I'm not going to go through the 11 entirety of the advice but just go to 12 Mr Clarke's conclusions. I'm going to replace 13 where Mr Clarke says "Doctor" or uses the word 14 "Jennings" with "Mr Jenkins": 15 "The reasons as to why [Mr Jenkins] failed 16 to comply with his duty are beyond the scope of 17 this review. The effects of that failure 18 however must be considered. I advise the 19 following to be the position: 20 "[Mr Jenkins] failed to disclose material 21 known to him but which undermines his expert 22 opinion. This failure is in plain breach of his 23 duty as an expert witness. 24 "Accordingly [Mr Jenkins'] credibility as 25 an expert witness is fatally undermined; he 27 1 should not be asked to provide expert evidence 2 in any current or future prosecution. 3 "Similarly, in those current and ongoing 4 cases where [Mr Jenkins] has provided an expert 5 witness statement, he should not be called upon 6 to give that evidence. Rather, we should seek 7 a different independent expert to fulfil that 8 role. 9 "Notwithstanding that the failure is that of 10 [Mr Jenkins] and, arguably, of Fujitsu Services 11 Limited, being his employer, this failure has 12 a profound effect upon [Post Office] and [Post 13 Office] prosecutions, not least by reason of 14 [Mr Jenkins'] failure, material which should 15 have been disclosed to defendants was not 16 disclosed, thereby placing [the Post Office] in 17 breach of their duty as a prosecutor. 18 "By reason of that failure to disclose, 19 there are now number of convicted defendants to 20 whom the existence of bugs should have been 21 disclosed but was not. Those defendants remain 22 entitled to have disclosure of that material 23 notwithstanding their now convict status. 24 (I have already advised on the need to conduct 25 a review of all [Post Office] prosecutions so as 28 1 to identify those who ought to have had the 2 material disclosed to them. That review is 3 presently under way). 4 "Further, there are a number of current 5 cases where there has been no disclosure where 6 there ought to have been. Here we must disclose 7 the existence of the bugs to those defendants 8 where the test for disclosure is met. 9 "Where a convicted defendant or his lawyers 10 consider that the failure to disclose the 11 material reveals an arguable ground of appeal, 12 he may seek the leave of the Court of Appeal to 13 challenge his conviction. 14 "In an appropriate case the Court of Appeal 15 will consider whether or not any conviction is 16 unsafe. In doing so, they may well enquire into 17 the reasons for [Mr Jenkins'] failure to refer 18 to the existence of bugs in his expert witness 19 statements and evidence." 20 Out of that, how much were you told? 21 A. I don't recall being told that. 22 Q. You were told none of this? 23 A. I don't recall seeing this document. 24 Q. That's a different question to whether you saw 25 the document, but you've already said that you 29 1 don't recall being -- seen it (sic), to how much 2 of what is written there you were told? 3 A. The only thing I remember being told was that he 4 couldn't have been used because he's no longer 5 a -- he's a discredited witness. 6 Q. You were told the bit about Mr Jenkins being 7 a discredited witness. Were you told the bit, 8 and I'm summarising, about that fact calling 9 into question the safety of past convictions? 10 A. I don't recall that. 11 Q. Who told you that Mr Jenkins was a discredited 12 witness? 13 A. I suspect that would have been my line manager, 14 Susan Crichton. 15 Q. Susan Crichton? 16 A. Mm-hm. 17 Q. Did she mention it in a meeting or in passing? 18 A. I can't recall, I think it was probably more 19 than once it was discussed. 20 Q. Did you say "Why? What's Mr Jenkins done 21 wrong?" 22 A. I suspect I did ask. I can't particularly 23 recall. 24 Q. Did you think "Well, hold on, if he's 25 a discredited witness, he's given evidence in a 30 1 number of prosecutions for which my department 2 is responsible"? 3 A. So I do recall the solicitors discussing, in 4 terms of reviewing the cases, and I believe they 5 reviewed the cases going back a number of years. 6 Q. Did you ask to see the advice? 7 A. I don't believe I knew the advice was there. 8 Q. So you're the Head of Security responsible for 9 nearly a decade for the prosecution of 10 subpostmasters, your department carries out 11 those functions and you neither saw this 12 document nor had its contents explained to you; 13 is that right? 14 A. That's what I believe, yes. 15 Q. Whose responsible would it be to show you this 16 document? 17 A. That would have been my line manager, Susan 18 Crichton. 19 Q. Do you agree, looking at it now, that you should 20 have been shown it? 21 A. Yes. 22 Q. Why do you think you should have been shown it? 23 A. Because, obviously, my team was responsible for 24 investigations and submitting case files to the 25 lawyers. 31 1 Q. And you yourself had made a number of decisions 2 to prosecute? 3 A. Yes. 4 Q. That can come down, thank you. 5 The next step is 19 July 2013 and you'll 6 recall that in the second Clarke advice, the one 7 that we looked at first, Mr Clarke had advised 8 the setting up of a single central hub, that the 9 Post Office had accepted that advice and, 10 accordingly, a weekly conference call was 11 established, and you've agreed that that is 12 accurate? 13 A. Yes. 14 Q. Now, the first hub meeting was on 19 July 2013. 15 Can we look at that, please, POL00083932. Can 16 you see this is a note of what's described as 17 a "Regular Call re Horizon Issues" on 19 July 18 2013. 19 A. Yes. 20 Q. Now, I don't think you're listed as being in 21 attendance; is that right? 22 A. Yes. 23 Q. Can you see under "Security", Dave Posnett and 24 Rob King are listed as being in attendance? 25 I think this was a telephone call, rather than 32 1 an in-person call; is that right? 2 A. I can see their names. I don't know whether 3 it's telephone call or in person. 4 Q. Can you tell us at this time, so July '13, the 5 function that Rob King performed? 6 A. He was the Senior Security Manager or otherwise 7 Head of Security Operations, which covered the 8 fraud and prosecutions. 9 Q. So was he a deputy to you? 10 A. No, the way that I structured the department was 11 that there were five strands, each with their 12 own security discipline, and he was the head of 13 the -- what was originally the Fraud strand but 14 merged with another to become the Security 15 Operations. So I had five direct reports, all 16 head of their own respective security 17 disciplines. 18 Q. Did he report to you? 19 A. Yes. 20 Q. So you were his line manager? 21 A. Yes. 22 Q. Looking back now, do you think you sent him 23 along as, essentially, your deputy for this 24 meeting? 25 A. Deputy, um, I think I'd asked him to actually 33 1 take a lead rather than deputise for me. 2 Q. So you asked him to conduct the meeting -- 3 A. Mm-hm. 4 Q. -- is that right? 5 A. I believe so, from looking at the documentation. 6 Q. You tell us in your new witness statement, the 7 one you filed yesterday, that you think you 8 delegated the task to Rob King of chairing the 9 meeting; is that right? 10 A. Yes. 11 Q. If we scroll through the minute, please, stop 12 there: 13 "Outlined the purpose of the meeting; to 14 identify any issues around the integrity of 15 Horizon from a technical prospective and take 16 any necessary action." 17 Does that describe, as you understand it, 18 the function or purpose of the meeting? 19 A. Yes. 20 Q. It says: 21 "A process needs to be set up within each 22 directorate where each representative 23 proactively seeks out any technically with 24 Horizon. 25 "No minutes circulated, but we will be 34 1 taking notes. In scope were issues and problems 2 the group were made aware of." 3 As to the line, "No minutes circulated but 4 we will be taking notes", said by or attributed 5 to Rob King, had you given any instruction or 6 direction that no minutes of the meeting were to 7 be circulated? 8 A. So, looking at the documentation that's been 9 sent to me, the email exchange between myself 10 and Susan Crichton -- 11 Q. That's on 13 and 14 August? 12 A. -- yes -- 13 Q. We're going to come to that in a moment, yes. 14 A. -- and, therefore, based on that document, I was 15 given a brief by Susan Crichton, which appears, 16 therefore, to have fed down into Rob King 17 through me. 18 Q. So the answer is yes, you did say that minutes 19 would not be circulated but that's because Susan 20 Crichton told you that that was what was to 21 happen? 22 A. Yes. 23 Q. Is that right? 24 A. Yes. 25 Q. Were you merely the conduit for Susan Crichton's 35 1 orders then? 2 A. Yes. 3 Q. You were just following orders? 4 A. Looking at the document, that's how I received 5 the brief and that's how I briefed Rob King. 6 Q. Then the part of the sentence "but we will be 7 taking notes", ie Security will be taking notes; 8 is that how you would understand it? 9 A. Yes. 10 Q. Was that part of the order that you passed on: 11 that it would be the Security Department that 12 would be taking notes? 13 A. Yes, looking at the email exchange, it was clear 14 that I wanted notes taken. 15 Q. If we carry on scrolling through the document, 16 please, and then stop there. Under "Martin 17 Smith", do you remember who Martin Smith was? 18 A. Yes. 19 Q. Who was Martin Smith? 20 A. A lawyer at Cartwright King. 21 Q. So he was a solicitor at Cartwright King, yes? 22 He, in the second part of the note that's 23 attributed to him says: 24 "Clarification on disclosure and email 25 correspondence." 36 1 Then in a sentence that is difficult, 2 perhaps, to decipher: 3 "Emphasised need to ensure that any document 4 produced would be potentially disclosable." 5 Do you remember giving any instructions 6 along those lines? 7 A. I don't recall. 8 Q. Would you understand this to mean that this is 9 simply recording the fact that, if a document is 10 produced, it needs to be retained so that it can 11 be disclosed? 12 A. Yes. 13 Q. There's nothing wrong with that? 14 A. Doesn't look wrong. Doesn't say what if you 15 don't write it down but doesn't look wrong. 16 Q. Yes. It's saying, if any document is produced, 17 one reading of it is there is a need to ensure 18 that it is retained so that it's disclosable? 19 A. Mm-hm. 20 Q. Mr Posnett makes a contribution and Andrew 21 Parsons then speaks. Who was Andrew Parsons? 22 A. A lawyer with Bond Dickinson. 23 Q. Did you, at this time, have any dealings with 24 Bond Dickinson? 25 A. I don't recall particularly at that time but 37 1 there may have been engagement at some point 2 over the years. There was a couple of occasions 3 where I dealt with Bond Dickinson but very 4 rarely. 5 Q. Anyway, the solicitor from Bond Dickinson says 6 there was a: 7 "... need to limit public debate on the 8 Horizon issue, as this [might] have detrimental 9 impact on future litigation." 10 Then if we scroll on, please, and keep 11 going. Then if we go to Mr Parsons again, 12 Mr Parsons is recorded as saying, in the second 13 part of this paragraph, that he: 14 "Spoke about emails, written 15 [communications], etc ... if it's produced it's 16 then available for disclosure, if it's not then 17 technically it isn't." 18 What do you understand that to mean? 19 A. The way that it's written there, that if 20 something is written down, it's definitely 21 disclosable, but if something is not, then, as 22 he says, technically it isn't. 23 Q. Is that a view to which you would subscribe? 24 A. No. 25 Q. Why not? 38 1 A. Because everything would need to be disclosable. 2 Q. Was it fed back to you that Mr Parsons had given 3 this advice at this meeting? 4 A. I don't recall. 5 Q. Can we move forwards, please, to 24 July, the 6 next meeting, the second hub meeting. The 7 reference for that is POL00083933. Thank you. 8 So we can see similar format, "Regular Call re 9 Horizon Issues", meeting on 24 July, and we can 10 see that you're not recorded as being present 11 but, from Security, there's Mr King again and 12 Andrew Wise. Who was Andrew Wise? 13 A. A Security Manager within the Security 14 Operations team, Investigator. 15 Q. Again, we can see that Mr King starts the 16 meeting off and, again, was it your 17 understanding that he was essentially chairing 18 the meeting? 19 A. Yes. 20 Q. Was he reporting back to you what was happening 21 at each meeting? 22 A. From the email exchange with Susan Crichton, it 23 says he was being -- I was being debriefed. 24 Q. You were being briefed about it? 25 A. Yes. 39 1 Q. Again, in the second paragraph there, Mr King is 2 recorded saying: 3 "No minutes circulated, but we will be 4 taking notes. In scope were issues and problems 5 the group were made aware of." 6 So that's materially the same as the warning 7 given at the beginning of the first meeting, 8 yes? 9 A. Yes. 10 Q. Again, does that reflect the instruction that 11 you gave to Mr King, passing on what Susan 12 Crichton had told you to tell the meeting? 13 A. Yes. 14 Q. Can we move forward to 31 July, please. 15 POL00139732. So this is the date of the third 16 hub meeting on 31 July 2013. We can see that, 17 again, you're not recorded as being present or 18 joining the call. It's Mr King and Mr Posnett 19 representing the Security Department, and 20 Mr Posnett is opening the meeting. Does that 21 mean, by this time, Mr Posnett had been put in 22 charge of chairing the meeting? 23 A. No, it would be Rob King. 24 Q. He remained the chair or the leader of the 25 meeting, is that right, to your knowledge? 40 1 A. Until mid-August. 2 Q. When you took over? 3 A. Yes. 4 Q. Again, you're not in attendance. I don't think 5 there's the warning at the beginning there. 6 Can we move forwards, please, to 31 July 7 2013, that's POL00139745. This is an attendance 8 note dated 1 August 2013, written, we understand 9 it, by Martin Smith, whose name is in the top 10 right-hand corner -- can you see that -- 11 A. Yes. 12 Q. -- in relation to a call that he had with you 13 the day before, 31 July 2013? Can you see under 14 "Detail", it says "TC", which may be telephone 15 call, "JS", which I presume is you at 6 pm on 16 31 July 2013: 17 "... Discussing disclosure issues: JScott 18 has instructed that typed minutes be scrapped." 19 First off, is that a call with you or is 20 that a call with Jarnail Singh? 21 A. I don't recall but my belief would be it wasn't 22 with me. 23 Q. Why is it your belief that it was not with you? 24 A. Because I don't recall having a relationship 25 like that with Cartwright King at that stage, 41 1 because it was very early on, but it's not to 2 say I didn't have the call with them. But 3 I don't believe that it would have been me. 4 Q. You'll see that the way that Mr Smith wrote his 5 attendance note is one person is referred to as 6 "JS", can you see that in both the summary and 7 in the detail? 8 A. Yes. 9 Q. And the other person is referred to as "JScott"? 10 A. Yes. 11 Q. Let's assume, for the moment, that this is 12 Mr Smith speaking to Jarnail Singh, at 6.00 pm 13 on 31 July 2013, and was telling Mr Smith that 14 you, "JScott", had instructed typed minutes to 15 be scrapped. Did you give an instruction that 16 typed minutes would be scrapped? 17 A. I do not recall what I said or how I said it or 18 in what clunky -- way. 19 Q. Did you say "in what clunky way"? 20 A. Yeah, or how it was interpreted. But I don't 21 recall asking for any minutes to be scrapped. 22 "Scrapped" is not a word I would have 23 particularly used to destroy or delete minutes. 24 "Scrapped" is more like a process, ie scrap 25 a process going forward. 42 1 Q. You said in that sentence "whatever clunky words 2 you use", why would you assume that you spoke in 3 a clunky way, rather than in a clear way? 4 A. I've no idea. But I would not go around asking 5 for things to be destroyed or deleted. That's 6 just not me. 7 Q. We've seen that in the typewritten minutes of 8 the meeting there was an instruction that 9 minutes were not to be circulated, but that the 10 Security Department were going to keep their own 11 notes. That was the instruction that you had 12 given, passing it on from Susan Crichton, yes? 13 A. Yes. 14 Q. So if typewritten minutes were, in fact, being 15 kept as we've seen they were, that would be 16 contrary to the instruction that you had given, 17 wouldn't it? 18 A. Sorry, say that one again? 19 Q. Yes. You told us, and it's reflected in two of 20 the first three sets of the minutes, that the 21 instruction that you passed on from Susan 22 Crichton was that minutes were not going to be 23 circulated but that the Security Department were 24 going to keep their own notes? 25 A. Correct. 43 1 Q. We've seen that typewritten minutes were, in 2 fact, being kept. We've just looked at three 3 lots of them, haven't we? 4 A. Correct. 5 Q. That would be contrary to the instruction that 6 you gave, wouldn't it? 7 A. I'm a bit lost on the point. 8 Q. If the Security Department were going to keep 9 their own notes -- 10 A. Yes. 11 Q. -- and somebody else had, in fact, been keeping 12 a typewritten version of what had happened at 13 the meeting, ie the three documents we've just 14 looked at -- 15 A. Mm-hm. 16 Q. -- that would be contrary to the instruction you 17 had given, wouldn't it? 18 A. Yes, in principle, yes. 19 Q. Therefore, if it was contrary to the instruction 20 you had given, you would want it to be stopped, 21 wouldn't you? 22 A. Once they are there, they're there. I might 23 have wanted, in the future, the process to be 24 stopped -- in the future -- but once the notes 25 are there, they're there. And if you refer back 44 1 to my email exchange, I was very clear in terms 2 of that notes had been retained -- had been made 3 and had been retained and were available. 4 Q. So you would want typewritten notes not to be 5 kept in the future because that was contrary to 6 the instruction that you had given passing it on 7 for Susan Crichton; is that right? 8 A. In principle, that may have been the case, 9 looking at the documentation. 10 Q. That would be consistent with you telling 11 Mr Singh to scrap typed minutes, wouldn't it, 12 ie what's written here? 13 A. I don't recall a conversation with Mr Singh. 14 I don't recall anything of that nature. I would 15 not -- I would not go around asking for things 16 to be destroyed or deleted. 17 Q. I'm not asking you at the moment about the 18 destruction of anything. I'm asking you about 19 the cessation, the stopping, the scrapping, of 20 the creation of typewritten notes? 21 A. That I can't recall. 22 Q. Well, it would be consistent with the 23 instruction that you had given, wouldn't it? 24 A. Yes. 25 Q. "Let's not keep typewritten notes" -- 45 1 A. Yes. 2 Q. -- to be circulated amongst the wider 3 readership? 4 A. Mm-hm. 5 Q. Is that fair? 6 A. Yes. 7 Q. Instead, notes should be kept by the Security 8 Department alone? 9 A. I imagine other people would have written their 10 own notes. 11 Q. Was that permitted or forbidden, according to 12 the direction that you passed on from Susan 13 Crichton? 14 A. No, it would be permitted. 15 Q. So what was forbidden, then? 16 A. I can only go by the email exchange with Susan 17 Crichton is to reduce the circulation of 18 minutes. 19 Q. What explanation did she give for the need to 20 reduce the circulation of minutes? 21 A. Reduce the risk of being widely circulated and 22 then being subject to Freedom of Information or 23 disclosure, as per my email. 24 Q. Can we move to the next day, please, 1 August 25 2013, and look at POL00139746. An email from 46 1 Jarnail Singh at 9.00 in the morning to Martin 2 Smith, copied to Rodric Williams. Who was 3 Rodric Williams? 4 A. Post Office lawyer. 5 Q. "Martin 6 "I know Simon [I think that must be 7 Mr Clarke] is advising on disclosure. As 8 discussed can he look into the common myth that 9 emails, written communications, etc, meetings. 10 If it's produced then it's available for 11 disclosure. If it's not then technically it 12 isn't. Possible [which may mean 'possibly'] 13 true of civil cases NOT CRIMINAL CASES?" 14 "Thanks. 15 "Jarnail Singh." 16 So would you understand this to be Mr Singh 17 asking Cartwright King and, in particular 18 Mr Clarke to advise on what's described as 19 a common myth, that information not reduced to 20 writing need not be disclosed? 21 A. Yes. 22 Q. Was that a myth that you had heard percolating 23 within the Security Department of the Post 24 Office? 25 A. I can't be explicit but I seem to recall there 47 1 was some element of that within the wider Post 2 Office. 3 Q. What do you mean by the "wider Post Office"? 4 A. Just within the Post Office itself. 5 Q. What, a clerk in Cleethorpes or a branch manager 6 in Bodmin, or what, within the wider Post 7 Office? 8 A. I would say the corporate level community. 9 Q. Who, please? 10 A. I can't recall. 11 Q. How widespread was this myth? 12 A. I can't recall. 13 Q. Was it a myth that you actively encouraged and 14 fostered? 15 A. No. 16 Q. Was it a myth that you disabused people of? 17 A. No. 18 Q. You let it persist? 19 A. By the email exchange with Susan Crichton, 20 I ensured that there were minutes made. We were 21 briefing solicitors in that meeting, so that 22 they were fully informed of what's going on, and 23 then they could then decide what they wanted to 24 disclose or use. 25 Q. In your witness statement of yesterday, you pick 48 1 up on the language used in this email here, and 2 draw a comparison to what Andrew Parsons said in 3 the first meeting on 19 July. 4 A. Yes. 5 Q. What's the point that you're making? 6 A. That's the communication that was coming from 7 lawyers. 8 Q. What's the point that you're making? 9 A. In terms of lawyers, we were saying that, if 10 it's written down, it's disclosable; if it's 11 not, then technically it's not. And that's from 12 an external lawyer as well. 13 Q. What's the significance of that, in your mind? 14 A. Just relaying around this myth element of where 15 it may have come from or what was going on in 16 the Post Office. 17 Q. So I understand it correctly, you're saying it 18 is maybe an explanation for the request for 19 advice, that the common myth might be 20 a reference, given the similarity and language 21 used, to what Andrew Parsons from Bond Dickinson 22 had said in that first meeting? 23 A. Reading into that, yes. 24 Q. Thank you. But, in any event, aside from what 25 Andrew Parsons from Bond Dickinson said, about 49 1 if it's not written down then, technically, it's 2 not disclosable, you're telling us that it was 3 also a myth that was circulating within the Post 4 Office more generally at this time? 5 A. Yes. 6 Q. Can we move to the next day, please, 2 August 7 2013, POL00006799. This is the second advice, 8 the so-called shredding advice of 2 August 2013 9 that we looked at earlier to hear about the 10 inspiration for the weekly hub meetings and, do 11 you remember, we looked at paragraphs 1, 2, 3 12 and 4. 13 If we look again at 3, please, at the foot 14 of the page, I asked you about the first 15 sentence and whether it was accurate and you 16 said yes. The second sentence: 17 "Participants were informed that they should 18 bring all Horizon-related issues they had 19 encountered to the meeting; minutes were to be 20 taken, centrally retained and disseminated to 21 those who required the information, this list to 22 include [the Post Office's] Horizon expert 23 witness." 24 That appears to be the suggestion that 25 Mr Clarke made. That wasn't translated into 50 1 practice, was it? 2 A. No. 3 Q. Was that because of the intervention of Susan 4 Crichton? 5 A. Going by my email, that appears to be the case. 6 Q. In that there weren't to be centrally retained 7 minutes, and such minutes were not to be 8 disseminated? 9 A. Minutes were to be taken, that was very clear in 10 my email exchange, and they were taken. They 11 were retained and were available. But, yes, in 12 terms of the dissemination. 13 Q. Can we move down to paragraph 4. 14 "Three such conference calls were convened, 15 each conducted on Wednesday. A representative 16 of Cartwright King 'attended' each meeting. A 17 minute-take was appointed for each call and 18 I understand that the minute-takers retain their 19 own handwritten minutes." 20 Is that accurate, to your knowledge -- 21 A. Um -- 22 Q. -- or was that accurate by 2 August? 23 A. I can't recall because I wasn't there. 24 I presume Rob King or Dave Posnett, who were 25 attending, were making the minutes. 51 1 Q. Do you know what happened to any of those 2 handwritten minutes? 3 A. Well, they were all retained because the minutes 4 were ultimately circulated from my email 5 exchange with Susan Crichton. 6 Q. Was that typed-up versions of the Posnett-King 7 handwritten notes? 8 A. I don't know. 9 Q. Moving on to paragraph 5: 10 "At some point following the conclusion of 11 the third conference call, which I understand to 12 have taken place on the morning of Wednesday, 13 31 July, it became unclear as to whether and to 14 what extent material was either being retained 15 centrally or disseminated. The following 16 information has been relayed to me: 17 "i. The minutes of a previous conference 18 call had been typed and emailed to a number of 19 persons. An instruction was then given that 20 those emails and minutes should be, and have 21 been, destroyed: the word 'shredded' was 22 conveyed to me." 23 Did you give that instruction, that the 24 electronic records and emails of a previous 25 conference call should be destroyed? 52 1 A. I have no recall from that period, from 10 years 2 ago, but that is not me. That's just not me, 3 what I would say or ask. 4 Q. Have you any knowledge of such an instruction 5 being given? 6 A. No. 7 Q. Who would be in a position to give such 8 an instruction, who would have the power, the 9 responsibility, the function to give such 10 an instruction? 11 A. A number of people, I'd guess. 12 Q. Who is within that number? 13 A. Obviously, my line manager, me -- 14 Q. So if you can name them: Susan Crichton? 15 A. Susan Crichton. 16 Q. You? 17 A. Me, and then Rob King as chair of that and, 18 probably, I don't know, other people. 19 Q. Who else? 20 A. It's hard to say. I wouldn't expect lawyers to 21 be saying that. 22 Q. I'm talking at the moment the people involved in 23 this enterprise, who amongst them would have the 24 power to give an instruction like that? 25 A. I guess those three. 53 1 Q. Those three, okay. 2 At (ii), Mr Clarke says: 3 "Handwritten minutes were not to be typed 4 and should be forwarded to [Post Office] Head of 5 Security." 6 On that issue, did you give that 7 instruction? 8 A. I don't recall. 9 Q. That's more similar to what you have said you 10 had passed on originally to Mr King? 11 A. I don't recall whether I've actually asked for 12 that or he's decided to say that. 13 Q. Did you want to be the custodian of any minutes? 14 A. That would be very unlikely that I'd want to. 15 Q. Why would it be unlikely? 16 A. Because that's not what I see my role as. If 17 he's chair then he would have retained the 18 minutes, the notes. 19 Q. Were you aware of any such instruction being 20 given that the handwritten minutes that the 21 Security Department were writing up were not to 22 be typed but, instead, should be forwarded to 23 you? 24 A. I don't recall. 25 Q. "iii. Advice had been given to [the Post 54 1 Office] which I report as relayed to me 2 verbatim: 3 "'If it's not minuted it's not in the public 4 domain and therefore not disclosable. 5 "'If it's produced it's available for 6 disclosure -- if not minuted then technically 7 it's not'." 8 That second one is a facsimile of what 9 Mr Singh asked in his email to Mr Smith, isn't 10 it? 11 A. Yes. 12 Q. To (iv), please: 13 "Some at [Post Office] do not wish to minute 14 the weekly conference calls." 15 Do you know who at Post Office may not have 16 wanted to minute the weekly conference calls at 17 all? 18 A. I can only go by my email exchange with Susan 19 Crichton and that's the brief. 20 Q. What does that mean? 21 A. She didn't want minutes being circulated to 22 reduce the risk. 23 Q. This is a different issue again. This is not 24 minuting the calls at all. Were you aware of 25 any such instruction being given? 55 1 A. No, because, in my email exchange, I made it 2 very clear that minutes were taken or notes were 3 taken and retained and were available. 4 Q. Were you shown a copy of this advice at the 5 time? 6 A. No, I don't recall seeing either of the Clarke 7 Advices at the time. 8 Q. Were you told the gist of it? 9 A. No, I remember having a conversation with Susan 10 Crichton and she raised a couple of areas about 11 getting the central log more organised and, 12 secondly, for the Security team to have 13 disclosure training. 14 Q. What was the central log that needed to be more 15 organised? 16 A. Of the issues that have been escalated. 17 Q. In what respect did it need more organisation? 18 A. I think all the issues, looking at the 19 documentation, that they were in the minutes 20 rather than actually having say, for example, 21 a central single Excel spreadsheet, which they 22 can be looked at and maintained and tracked. 23 Q. But nothing was passed on to you of the nature 24 of the four things that we've seen that 25 Mr Clarke had been told? 56 1 A. No, I don't recall having that conversation. 2 Q. Also on this date, 2 August, can we look, 3 please, at POL00139747. Can we start, please, 4 by looking at the second page, an email from 5 Mr Clarke: 6 "Chaps, 7 "Please consider first draft. 8 "I would not object to any suggested 9 alteration, including typos." 10 We can see from the foot of page 1 that the 11 subject is "ADVICE -- First Draft", sent, 12 I think, to a series of lawyers within 13 Cartwright King? 14 Then further up the page, we can see 15 an email from Steve Gelsthorpe to the same 16 description list: 17 "Dear All 18 "I attach a note which I believe captures 19 all we talked about this morning. Please check. 20 You chaps are closer to this than RH [I think 21 that's Rupert Hawke] and I and if there's 22 anything I have not grasped or covered you must 23 let me know. Equally if there is anything that 24 is plain wrong you must let me know. 25 "I have seen [Simon Clarke's] note. The 57 1 comment I have is how we're going to impart the 2 advice to the [Post Office] that if there are 3 factions within it who are running around trying 4 to lay off blame for their own shortcomings by 5 lying about the advice they have received then 6 they lose privilege. I thought [Simon Clarke's] 7 advice would cover this. On reflection it may 8 be something for Andy [I think that's Andy Cash] 9 to raise with Hugh and to note or confirm in 10 a letter to him." 11 Do you know who the "faction" within the 12 Post Office Mr Gelsthorpe is referring to 13 there -- ie a faction running around trying to 14 lay off blame for their own shortcomings by 15 lying about the advice they've received -- is 16 referring to? 17 A. No. 18 Q. Can you assist us with any help as to who he may 19 be referring to? 20 A. No. 21 Q. Is he referring to you? 22 A. I can't comment on what he's referring to but 23 I don't consider it to be me. 24 Q. Were you aware at this time of people within 25 your department who were beginning to realise 58 1 that there were problems with the integrity of 2 Horizon that ought to have been disclosed to the 3 criminal courts and that they were seeking to 4 lay blame by lying about the advice they've 5 received from lawyers? 6 A. No. 7 Q. Were you aware of anyone in relation to the 8 exercise that was being undertaken, the setting 9 up of the hub, and bringing of issues to the hub 10 and the recording of information by the hub, 11 lying about the advice they'd received from 12 Cartwright King? 13 A. Sorry, what's the exact question there, please? 14 Q. Were you aware of anyone involved in the hub 15 exercise lying or seeking to lie about the 16 advice they had received about the retention of 17 material and the disclosure of material? 18 A. No. 19 Q. Have you any clue why these lawyers might think 20 that their clients may subsequently seek to lie 21 about the advice that they'd received? 22 A. No. 23 Q. On your evidence, there's no grounds for these 24 lawyers to think that at all, is there? 25 A. Correct. We're taking notes, lawyers were on 59 1 the call. 2 Q. Can we turn to the 13 August, please, 3 POL00139690. This is the email exchange that 4 you've referred to a number of times, so far, 5 correct? 6 A. Correct. 7 Q. Can we start, please, at the foot of the page 8 and it's the exchange, as I've said, of 13 and 9 14 August 2013. It's an email to you from Susan 10 Crichton at 8.34 on 13 August, with the subject 11 heading of "[Wednesday] call". That's 12 a reference to the Horizon hub calls that we've 13 been talking about, which, for the most part, 14 happened on a Wednesday, correct? 15 A. Correct. 16 Q. She says to you: 17 "John -- as part of our remedial action 18 I had asked you to set up and chair this call, 19 I have had very worrying feedback re this call 20 from [Cartwright King] and it sounds like this 21 is not being chaired, the participants are 22 unclear as to its purpose and no minutes are 23 being kept -- or is there confusion. 24 "Can we discuss?" 25 Do you know what the very worrying feedback 60 1 was? 2 A. No, I don't recall. 3 Q. Can we look up and see your reply, please. Just 4 if we can check the date, 14 August 2013, at 5 7.39 in the morning. You say: 6 "Susan. 7 "The brief given by yourself for this 8 meeting was to provide in effect an under the 9 radar escalation point from across the business 10 of issues that may impact the integrity of the 11 Horizon System. You were frustrated in regards 12 to the production and circulation of the Helen 13 Rose report and therefore did not want any 14 electronic communication which may be subject to 15 FOI [Freedom of Information] or Disclosure." 16 Is it right that, essentially, in this first 17 paragraph, Susan Crichton made -- or you're 18 referring to three points that Susan Crichton 19 made to you: firstly, the meeting should be 20 under the radar, yes? 21 A. I have written that, yes. 22 Q. Well, did that faithfully reflect what she told 23 you? 24 A. I can only read what I'm reading here now. So 25 if that's what I've said, then yes. 61 1 Q. Secondly, that she told you she was frustrated 2 by the production of the Helen Rose Report, yes? 3 A. Yes. 4 Q. Thirdly, she told you that electronic 5 communication should not be created because they 6 might fall to be disclosed, in one way or 7 another? 8 A. Yes, I think it was probably -- if you look at 9 my interpretation of the next email, is reducing 10 it to legal privilege, which is the second 11 paragraph, as much as possible. 12 Q. Can I examine each of those three in turn, 13 please. Firstly, you say: 14 "The brief given by yourself [ie you, Susan] 15 for the meeting was to provide in effect 16 an under the radar escalation point ..." 17 This was to be a hub concerning issues about 18 the integrity of Horizon, correct? 19 A. Correct. 20 Q. "Under the radar", would you agree, means things 21 which should go undetected, which should leave 22 no trace, which cannot be seen? Correct? 23 A. I wouldn't necessarily agree with that, looking 24 at my -- another paragraph in there. It was -- 25 the meetings were conducted with lawyers, 62 1 therefore, everything was being reported to 2 lawyers and escalated to lawyers. But, taking 3 an interpretation of this, she didn't want it 4 widely circulated, which would then avoid legal 5 privilege where that could be applied. 6 Q. You're saying this is all about privilege, now. 7 It's nothing to do with the creation of 8 documents in the first place; is that what 9 you're telling us? 10 A. Looking at my -- one of my paragraphs, I believe 11 it was reducing the risk and keeping it within 12 legal privilege, wherever it could be. 13 Q. The words you used are an "under the radar 14 escalation point". Just as a matter of 15 language, would you agree that "under the radar" 16 means something that cannot be detected, 17 something which leaves no trace, it doesn't show 18 up, it cannot be seen? 19 A. As language, yes. 20 Q. Why was it important that discussion of issues 21 which may impact the integrity of the Horizon 22 System should not be detectable, that no trace 23 of them should be left? That they should be 24 conducted in a way that meant that they couldn't 25 subsequently be seen? 63 1 A. You see, I don't agree with that because it's 2 been reported to solicitors on the meeting, and 3 I think it's more about reducing the risk of 4 disclosure by using legal privilege. 5 MR BEER: Sir, that's a convenient moment before we 6 move to the rest of the email. I wonder whether 7 we can take a break until 11.40. 8 SIR WYN WILLIAMS: Yes, of course. Thank you very 9 much. 10 MR BEER: Thank you, sir. 11 (11.26 am) 12 (A short break) 13 (11.40 am) 14 MR BEER: Sir, good morning, can you see and hear 15 me? 16 SIR WYN WILLIAMS: Yes, I can, thank you. 17 MR BEER: Thank you very much. 18 Mr Scott, can we continue to look at 19 POL00139690. We were looking at the first 20 paragraph. I'd asked you about the "under the 21 radar" comment. You continue: 22 "You [that's you, Susan Crichton] were 23 frustrated in regards to the production and 24 circulation of the Helen Rose report ..." 25 Why was Susan Crichton frustrated that the 64 1 Helen Rose report had been produced? 2 A. I cannot recall. 3 Q. Was it because it revealed a problem with the 4 integrity of data produced by Horizon? 5 A. I cannot recall. 6 Q. Why was she frustrated that the Helen Rose 7 report had been circulated? 8 A. I cannot recall. I can only go by this email. 9 Q. Was it because there was a report that was 10 critical of the integrity of Horizon now 11 available for disclosure -- 12 A. I don't know. 13 Q. -- and that reports should not be written, less 14 still circulated, that revealed problems with 15 the integrity of the data produced by Horizon? 16 A. I don't know what she's thinking. 17 Q. Wouldn't you challenge her and say, "Hold on, if 18 there's a report that's critical of the 19 integrity of the data that Horizon is producing, 20 we prosecute people using that data and they get 21 sent to prison; it's good that such reports are 22 produced and it's really good if they're 23 disclosed". 24 Isn't that what a Head of Security, a former 25 police officer, would say, to somebody who is 65 1 saying, "Don't write reports and don't circulate 2 them"? 3 A. I guess that's a good opinion. 4 Q. Did you say that? 5 A. I can't recollect. I don't know whether 6 I challenged or not. 7 Q. Your email continues that: 8 "... and therefore [she] did not want any 9 electronic communication which may be subject to 10 [Freedom of Information] or Disclosure." 11 "Disclosure", capital D there, means 12 disclosure to a court, yes? 13 A. I can only go by that and I presume the 14 interpretation, yes. 15 Q. How did you come to believe that the Post 16 Office's General Counsel, Susan Crichton, did 17 not want any electronic communications created 18 which may be the subject of disclosure to 19 a court? 20 A. Sorry, what's the first part of the question: 21 how did? 22 Q. How did you come to believe that Susan Crichton 23 did not want any electronic communications 24 created which may be the subject of disclosure 25 to a court? 66 1 A. Must have been a conversation with her. 2 Q. So the General Counsel was saying, "In this 3 enterprise concerning the integrity of Horizon, 4 I don't want electronic communications created 5 which may be the subject of disclosure to 6 a court", correct? 7 A. I can any go by this email. 8 Q. So the answer would be yes, then -- 9 A. Yes. 10 Q. -- because that's what the email says in terms? 11 A. Yes. 12 Q. Again, would you have challenged her? 13 A. I may have. I may not. I can't recollect. 14 Q. Why may you not have challenged her? 15 A. Because I just cannot recall. I'd like to think 16 I challenged her. 17 Q. Was the reality that you wouldn't challenge her 18 because you were part of an enterprise too that 19 didn't want the creation of electronic 20 communications which may be the subject of 21 disclosure to a court? 22 A. No. I ensured that there were notes taken. 23 Q. Handwritten notes? 24 A. Handwritten notes or whatever notes -- 25 Q. No, handwritten notes: that's what you ensured, 67 1 isn't it? 2 A. Yes. 3 Q. Why did you want handwritten notes to be 4 created? 5 A. To ensure that all the information was captured. 6 Q. Why not electronic notes? 7 A. Because that's the brief I had from Susan 8 Crichton. 9 Q. It's because they're not easily discoverable, 10 isn't it? 11 A. I don't know on that one. 12 Q. They leave no trace, don't they? They can be 13 hidden away in a cupboard, can't they? 14 A. I can only take my brief from Susan. 15 Q. An electronic note leaves a footprint, doesn't 16 it? 17 A. Yes. 18 Q. The fact that it existed but has been deleted 19 leaves a footprint, doesn't it? 20 A. Yes. 21 Q. That's why you don't want electronic notes 22 created, isn't it? 23 A. But notes were created. Notes were maintained. 24 Q. I'm asking you about why you wanted handwritten 25 notes not electronic notes? 68 1 A. Because that's the brief I had from Susan 2 Crichton. 3 Q. It's because they are less likely to be found 4 and disclosed, isn't it? 5 A. (Non-verbal answer) 6 Q. Mr Scott? 7 A. Mm-hm? 8 Q. It's because they are less likely to be founding 9 and disclosed, isn't it? 10 A. In terms of that she -- I can only assume from 11 my second paragraph that she wanted to reduce 12 the risk of FOI disclosure with the legal 13 privilege not wrapped around it. 14 Q. Let's turn to the second paragraph: 15 "The conference calls have been set up and 16 they are chaired by a senior manager from the 17 Security team and then I'm briefed thereafter 18 (I wasn't aware I had to specifically Chair, but 19 that is easily remedied). At the outset the 20 purpose of the call was given that this was 21 an informal escalation point and no electronic 22 notes would be taken or circulated [and then] 23 and communication would be created", which looks 24 likely an incomplete part of a sentence. 25 "Written notes have been taken for each call 69 1 and activity has been driven behind the scenes." 2 Just stopping there. Why would electronic 3 notes not be taken? 4 A. Because that's the brief. 5 Q. Is it because the taking of an electronic note 6 would create a potentially disclosable record of 7 the call? 8 A. Potentially, yes. 9 Q. Was it so that disclosure obligations in 10 criminal proceedings could be avoided: if you 11 don't create an electronic record of 12 a discussion, you don't have to disclose it? 13 A. No, because the meetings were involving lawyers, 14 both internal and external. They were being 15 briefed on all the issues being escalated and 16 notes were being taken. 17 Q. An electronic record has the distinct 18 disadvantage, doesn't it, would you agree, for 19 a person who wishes to subvert their disclosure 20 obligations, that an electronic record can be 21 looked for and more easily found by others? 22 A. Correct, it's more easily -- 23 Q. Sorry? 24 A. Correct, it's more identifiable. 25 Q. It's difficult to remove all traces of 70 1 an electronic record, isn't it? 2 A. Yes. 3 Q. It leaves a footprint, even if it's deleted, 4 doesn't it? 5 A. Yes. 6 Q. Whereas a written note can be hidden, concealed 7 or even destroyed, can't it? 8 A. In principle. 9 Q. You say here: 10 "Written notes have been taken for each call 11 and activity has been driven behind the scenes." 12 Was that done on the instructions of Post 13 Office's General Counsel, Susan Crichton? 14 A. Going by this email, I'd say, yes. 15 Q. Did she instruct you that only written notes 16 should be kept? 17 A. Going by this email, I'd say, yes. 18 Q. It says, just in the line above the ones 19 highlighted: 20 "At the outset the purpose of the call was 21 given that", and then following. 22 Did you give Mr King the instruction that's 23 referred to there? 24 A. Sorry, say that one again, please? 25 Q. Yes, the line which says, "At the outset," ie at 71 1 the outset of the conference calls: 2 "... the purpose of the call was given that 3 this was an informal escalation point and no 4 electronic notes would be taken or circulated 5 ..." 6 Did you give that instruction to Mr King? 7 A. Going by this email, I suspect I did pass that 8 brief on to Rob King. 9 Q. Did anyone that you spoke to ever push back and 10 say, "Hold on, why aren't we allowed to keep 11 an electronic record?" 12 A. I've no recollection. 13 Q. Did anyone say, "Hold on, why aren't we allowed 14 to communicate about these matters using 15 electronic means?" 16 A. No recollection. 17 Q. Was there a common understanding, a meeting of 18 minds, amongst those in the Security Department 19 and those on the call that the reasons for not 20 creating disclosable records about Horizon 21 integrity issues was that that would avoid 22 having to disclose documents about Horizon 23 integrity issues in the future? 24 A. I've no recollection but that wasn't the culture 25 within the team. 72 1 Q. It wasn't the culture? 2 A. No. Notes were made, solicitors were briefed. 3 Q. You continue: 4 "For example, a potential Horizon glitch was 5 raised that had been reported previously to 6 Simon Baker. This was then managed consequently 7 directly with Rodric Williams and Steve Beddoe 8 by myself in a manner to bring it under legal 9 privilege as far as possible." 10 So you managed an issue to bring it under 11 legal privilege as far as possible. What did 12 you do to bring this issue under legal privilege 13 as far as possible? 14 A. I can only go by that email, as in I must have 15 brought Steve Beddoe into contact with Roderick 16 Williams, who would have then dealt from there 17 on in. 18 Q. So you involved a lawyer, is that right? Is 19 that what you're saying? 20 A. (The witness nodded). 21 And he would determine what's legal 22 privilege or not. 23 Q. Why did you want to manage the issue under the 24 cloak of legal privilege? 25 A. Because that's the direction in terms of the 73 1 Legal Services wanted to take. They wanted to 2 have access and sight and decide whether they 3 wanted legal privilege, as applicable, or not, 4 going by that email. 5 Q. You were aware of Horizon system issues that 6 would require management by both the Post Office 7 and Fujitsu at this time -- 8 A. Yes. 9 Q. -- including Horizon system issues that could 10 lead to discrepancies or shortfalls or losses 11 being shown? 12 A. I was aware there was issues being raised. 13 Q. Why would those require to be managed "in 14 a manner to bring them under legal privilege as 15 far as possible"? 16 A. I can't recollect. 17 Q. Whose idea was it to manage Horizon system 18 integrity issues in a way to bring them under 19 legal privilege, as far as possible? 20 A. I can't recollect. 21 Q. Was it a decision of Post Office or Fujitsu or 22 both? 23 A. I've no idea on that. 24 Q. If it was within the Post Office, who was 25 responsible for determining that Horizon 74 1 integrity issues should be managed, so far as 2 possible, under legal privilege? 3 A. I have no idea. 4 Q. Who are the possible candidates for it? 5 A. Clearly my line manager Susan Crichton. There 6 may be others. 7 Q. Can we move on, please, to paragraph 5, which is 8 the last paragraph the one beginning "Clearly": 9 "Clearly I will now attend the conference 10 calls as Chair and following on from the 11 previous discussions and the steer below, unless 12 otherwise directed, this will become a formal 13 meeting with terms of reference, electronic 14 notes, actions and appropriate governance within 15 such approach. This will be built into the 16 operating and governance model and the previous 17 notes and actions over the last three will now 18 be electronically recorded and circulated. This 19 does run the risk that more communication will 20 be generated electronically with issues, reports 21 and actions responded to etc that may include 22 inappropriate comments, opinion, assumptions 23 that may be subject to FOI and Disclosure (as in 24 the Helen Rose report)." 25 To your recollection, was there a reply to 75 1 this from Susan Crichton? 2 A. I don't recall. I don't even recall this email 3 until it was sent to me. 4 Q. To the best of your recollection, did she say, 5 "Hold on, we've got disclosure obligations. 6 That's not a reason not to create documents"? 7 A. I've no recollection. 8 Q. Why were you raising the risk of the generation 9 of information electronically that may be the 10 subject to disclosure in a court? 11 A. Sorry, can you -- 12 Q. Yes. In that last paragraph, why were you 13 running the risk, saying, "If I do what you're 14 now telling me to do, which is have a more 15 formal meeting with some terms of reference, 16 creating electronic notes, operating under 17 a governance model, you should know that that's 18 going to create documents that might be 19 disclosed"; why were you telling her that? 20 A. Because it appears from the earlier paragraphs 21 that she didn't want documents widely 22 circulated. Then that would come -- avoid legal 23 privilege. 24 Q. So were you saying, "Be careful what you wish 25 for, Susan"? 76 1 A. I can only go by this email. 2 Q. Is that what you're essentially saying? 3 A. I'm not too sure what I was saying, in terms 4 of -- 5 Q. Well, help us. 6 A. I'm just advising her, then, that where she was 7 challenging around circulation of the Helen Rose 8 report, then, obviously, that's similar. It may 9 be available for more disclosure or Freedom of 10 Information. 11 Q. In any event, does this exchange indicate that 12 there hadn't been a similar formal route or 13 mechanism for regular liaison between Legal and 14 Security on Horizon integrity issues until after 15 the first Simon Clarke advice was written? 16 A. I can't recollect. 17 Q. Well, he was suggesting it be introduced, if you 18 remember. 19 A. Mm-hm. 20 Q. Does that tell us that it doesn't exist 21 beforehand? 22 A. That may have been the case but obviously 23 I wouldn't have known if the Security Operations 24 team for fraud were having conversations already 25 with Cartwright King. So I wouldn't have known 77 1 what their activity was. 2 Q. Can we turn to the next day, please -- that 3 document can come down -- and look at 4 POL00139749. This is an attendance note of 5 Martin Smith of Cartwright King of the 14 August 6 2013. Under the "Detail", it records "MJS to 7 SC", who at the moment I'm going to take to mean 8 Susan Crichton? 9 A. Mm-hm. 10 Q. "John S will not be on conference call. He 11 admitted in an email to her last night to 12 sending out [instructions] to shred." 13 Did you send such an email to Susan 14 Crichton? 15 A. No, I would not do that. 16 Q. Did you say anything to that effect to Susan 17 Crichton? 18 A. I can't recall if I've had a conversation with 19 her but that's not a thing would say. 20 Q. Do you know where Susan Crichton may have got 21 such an idea from? 22 A. No. 23 Q. Can we turn to POL00139748. This is later that 24 day, 14 August. Again, an attendance note by 25 Mr Smith, and look at the "Detail", "[Telephone 78 1 call] from JS". Again, I'm going to assume that 2 that's Jarnail Singh because of the description 3 of you as John Scott rather than JS: 4 "[Telephone call] from [Jarnail Singh]. 5 John Scott will be in the [conference] call, 6 [Martin Smith] said not appropriate." 7 Had you done anything to your understanding, 8 that was wrong that meant it would be 9 inappropriate for you to be included in the next 10 conference call? 11 A. No. 12 Q. On your account, you'd just been following 13 orders? 14 A. Yes. 15 Q. Yet it seems that it was not appropriate, 16 according to Mr Smith, for you to be on the 17 call? 18 A. That's what he's stated. 19 Q. Had you done anything that might make it 20 inappropriate for you to join the conference 21 call? 22 A. No. 23 Q. In fact, I think the record shows that you did 24 attend the conference call on the 14th? 25 A. Yes. 79 1 Q. Can we divert for a moment from this period of 2 July and August 2013 and look back at an earlier 3 episode to see whether it assists us. It's 4 POL00107696. I wonder if we can just start at 5 the bottom of page 2, please, thank you. 6 Can we see a message from Emily 7 Springford -- do you remember who she was -- 8 A. No. 9 Q. -- to a collection of people, including Angela 10 van den Bogerd, Hugh Flemington, Susan Crichton 11 and you. The heading is "JFSA claims -- 12 disclosure and evidence gathering", and the 13 email is titled "Privileged and confidential". 14 "Dear all, [then over the page] 15 "As you are aware, [the Post Office] has 16 received 4 letters of claim from former 17 subpostmasters, making a number of allegations 18 about the training they received, the support 19 available to them in using the Horizon System, 20 and the Horizon System itself. There is 21 a possibility that these [claims] will be 22 followed up with Court proceedings, in which 23 case [the Post Office] will have a duty to 24 disclose to the claimants all documents relevant 25 to the claims, even if they might adversely 80 1 affect [the Post Office's] defence." 2 Do you agree with everything so far that's 3 said? 4 A. Yes. 5 Q. "This obligation extends to soft copy documents 6 (emails, and all documents stored on the IT 7 network, hard drives, handheld devices and so 8 on) as well as hard copy documents and 9 manuscript notes. 10 "Please ensure that this communication 11 reaches everyone in your department who has 12 access to, or who is in a position to create, 13 documents relating to the issues arising in the 14 claims (as set out more fully below). I have 15 started a list of teams which we believe may 16 hold relevant documents. The list is attached: 17 I should be grateful if you would let me know of 18 any other teams which might hold documents 19 relevant to the claims." 20 So this is saying we've got four letters of 21 claim in from JFSA claims and there are some 22 disclosure obligations that arise accordingly, 23 agreed? 24 A. Yes. 25 Q. If we scroll down, "Document preservation": 81 1 "[The Post Office] must take immediate steps 2 to preserve all documents which might 3 potentially be relevant to these claims. 4 'Relevant' documents are those which contain 5 information about the issues below: 6 "the subpostmasters or branches in question 7 ... 8 "the recruitment of subpostmasters 9 "the training given to subpostmasters 10 "the support given to subpostmasters in 11 using the Horizon System ... 12 "the integrity of the Horizon System 13 "[the Post Office's] branch accounting 14 procedures. 15 "Please note that no historic time limit 16 applies, so that all documentation within these 17 categories should be preserved, regardless of 18 when it was created. 19 "Could ... you please inform the members of 20 your teams who hold or create documents in these 21 categories that they should not delete or 22 destroy any documents in these categories until 23 further notice. 24 "It is important that you keep a note of any 25 routine document destruction policies that you 82 1 suspend within your department, and the dates on 2 which they are suspended, together with a note 3 of any other steps you take to ensure that your 4 department complies with the above 5 requirements." 6 Do you agree with everything so far -- 7 A. Yes. 8 Q. -- as an understanding, correctly, of disclosure 9 obligations? 10 A. Yes. 11 Q. Under "Document creation", then: 12 "It is very important that we control the 13 creation of documents which relate to any of the 14 above issues and which might be potentially 15 damaging to [Post Office's] defence to the 16 claims, as these may have to be disclosed if 17 these claims proceed to litigation. Your staff 18 should therefore think very carefully before 19 committing to writing anything relating to the 20 above issues which is critical of our own 21 processes or systems, including emails, reports 22 or briefing notes. We appreciate that this will 23 not always be practicable, however. 24 "Where it is necessary to create a document 25 containing critical comment on these issues, it 83 1 will in certain circumstances be possible to 2 claim privilege over the document, so that [the 3 Post Office] will not have to disclose it in any 4 proceedings. As litigation is now a distinct 5 possibility, the document will be privileged if 6 its dominant purpose is to give/receive legal 7 advice about the litigation or to gather 8 evidence for use in the litigation. This also 9 applies to communications with third parties -- 10 ie with other organisations -- provided they are 11 confidential and their dominant purpose is as 12 set out above. All of the following steps 13 should be taken in order to maximise the chances 14 of privilege attaching to [a] document: 15 "If the dominant purpose of the 16 communication is not to obtain legal advice, try 17 to structure the document in such a way that its 18 dominant purpose can be said to be evidence 19 gathering for use in litigation; 20 "Mark every such communication 'legally 21 privileged and confidential'; 22 "If you are sending the document to someone, 23 state in the covering email [et cetera] that you 24 are not waiving privilege by doing so; 25 "Request that the recipient of 84 1 a communication confirm that the document will 2 be kept confidential and that he/she will not 3 forward it to anyone else; 4 "Think very carefully before 'replying to 5 all' on an email ... 6 "Where possible and appropriate, copy a 7 member of Legal Services into the communication, 8 and make [sure] that you are doing so to enable 9 them to advise on the content. Please note that 10 copying a member of Legal Services into the 11 communication alone will not necessarily 12 suffice." 13 Now, we may in due course investigate the 14 propriety of some of the advice given there with 15 other witnesses and how it was subsequently 16 acted upon, but how did you understand the 17 advice that you were given here? 18 A. Is there a particular part or the whole lot? 19 Q. The whole lot. 20 A. It was giving advice on disclosure. 21 Q. Was it saying to you, "Be careful about the 22 creation of documents that might be damaging or 23 potentially damaging to our defence of the 24 claim, and do everything you can to badge them 25 up as privileged"? 85 1 A. In part, looking at that, yes. 2 Q. Did that form part of your considerations when, 3 in August 2013, you had to make decisions as to 4 the approach to be taken with the Horizon hub 5 meetings on Wednesdays? 6 A. So I don't recollect this email at all and 7 whether it had a part on that decision, 2013, or 8 not, I have no idea. 9 Q. It says "It is important that we control the 10 creation of documents. Your Staff should think 11 very carefully about committing anything to 12 writing, in particular if they are critical of 13 the Horizon System or the reliable of its data". 14 Isn't that what you were instructing should 15 occur in the July and August Horizon hub calls? 16 A. In terms of the hub calls it was about informing 17 the solicitors in terms of all the issues and 18 for them to decide whether legal privilege would 19 then apply. 20 Q. Sorry, say that again: in terms of the hub calls 21 it was about informing the solicitors for them 22 to decide whether legal privilege should apply? 23 A. So, obviously, the issues were being picked up 24 and dealt with and progressed but, of course, 25 you had lawyers on the call to make 86 1 an assessment whether something was disclosable 2 or not. 3 Q. What's that got to do with only writing things 4 on pieces of paper and not recording them 5 electronically? 6 A. Because, once it goes much more broader, then -- 7 to a broader audience, then it's outside of the 8 legal framework, the lawyers can't make 9 an assessment or can make an assessment but it's 10 broader. 11 Q. Can we go back to Mr Clarke's so-called 12 shredding advice at POL00006799, and can we turn 13 to page 5, please, and look at paragraph 9. He 14 advises the Post Office: 15 "The duty to record and retain material 16 cannot be abrogated. To do so would amount to 17 a breach of the law and, in the case of 18 solicitors and counsel, serious breaches of 19 their respective Codes of Conduct. Accordingly, 20 no solicitor, no firm of solicitors and no 21 barrister may be a party to a breach of the duty 22 to record and retain. Neither may they act in 23 circumstances where they are aware, or become 24 aware, that a practice has developed within the 25 investigative or prosecutorial function such 87 1 that the duty to record and retain is being 2 deliberately flouted, or avoided. Again to do 3 so would amount to breaches of both the law and 4 Codes of [Practice]." 5 Then this: 6 "A decision-based failure to record and 7 retain material would readily amount to such 8 a practice. Such a decision, where it is taken 9 partly or wholly in order to avoid future 10 disclosure obligations, may well amount to 11 a conspiracy to pervert the course of justice on 12 the part of those taking such a decision, and 13 those who implement such a decision where they 14 do so in the knowledge that it was taken partly 15 or wholly for that purpose." 16 Was the purpose of the instruction that you 17 gave a decision to not record and retain 18 material in order to avoid disclosure 19 obligations? 20 A. No. We were recording. We were taking notes. 21 Q. Sorry? 22 A. We were taking notes. 23 Q. On pieces of paper? 24 A. On pieces of paper but they were there. They 25 were retained and on the August they were still 88 1 there and retained and able to be used and 2 circulated. 3 Q. Can we go, after that excursion, back to where 4 we were in the chronology, to POL00083930. As 5 I mentioned earlier, the conference call on 6 14 August shows that you're present. Despite 7 what we'd read earlier about it being 8 inappropriate for you to join the call, you and 9 others are on it. 10 Were you ever told that there was doubt 11 about whether you were going to be permitted to 12 take part in this call and future conference 13 calls? 14 A. No, I don't recall that at all. 15 Q. After your email exchange of the 13th and this 16 day, the 14th, with Ms Crichton, you just turned 17 up on the phone? 18 A. No. I said in my email that I would now be 19 attending and chairing. 20 Q. Yes, but you didn't know that there had been in 21 the background this discussion amongst lawyers 22 about whether -- 23 A. No. 24 Q. -- it would be appropriate for you to attend or 25 not? 89 1 A. No. 2 Q. You just joined the call? 3 Can we move forward to 19 August, please, 4 POL00139691. This is a later email trail 5 involving Rob King, Jarnail Singh and then 6 earlier Dave Posnett and Andy Parsons. I don't 7 think you're copied into it. Can we look at the 8 second page, please, then look at the foot of 9 the first page, please -- and then scroll up, 10 please. We see an email from Mr King of your 11 department to Mr Singh: 12 "Apologies if I seemed a little evasive 13 earlier. To date I have worked to the remit of 14 establishing a group whereby issues and concerns 15 are raised and recorded (see below). However 16 with an initial mandate of not circulating notes 17 made, it is difficult to apply the usual 18 governance on the process. Notes have been 19 typed, actions captured and will be circulated. 20 This should provide the proper framework for 21 resolving issues. I was under the impression 22 that a working group would be set up to deal 23 with these, placing the weekly conference call 24 superfluous. Investigators have been instructed 25 to report back any issues raised during 90 1 interview. These will be fed through to legal 2 and a record made of them. I still maintain 3 that security is not the best place though to 4 resolve issues with the Horizon System. As you 5 know John Scott is chairing this con call going 6 forward. It may be useful if you reply to John 7 Susan's concerns. Speak tomorrow." 8 The line "However with an initial mandate of 9 not circulating notes made", does that reflect 10 your understanding of the initial mandate there 11 was to be no records circulated for these 12 meetings? 13 A. Yes, but notes were to be made. 14 Q. He says that Security is not the best place to 15 resolve issues with the Horizon System. Do you 16 know why that was? 17 A. Because I think the -- any issues escalated may 18 be much broader than Security. 19 Q. Was this discussed with you? 20 A. I can't recall. 21 Q. The last line "It may be useful if you reply to 22 John or if you relay to John Susan's concerns", 23 do you know what Susan Crichton's ongoing 24 concerns were? 25 A. He sent a document which outlines -- ie identify 91 1 the issues and hunt down the issues and root 2 cause and deal with them. 3 Q. That can come down. Thank you. There are 4 "Regular Calls re Horizon Issues" on 21 August, 5 I'm just going to give the reference rather than 6 looking at it, POL00139726 -- at which you're 7 an attendee, and 28 August, POL00083935, and you 8 are an attendee. 9 In September 2013, Susan Crichton left the 10 Post Office, correct? 11 A. I believe it's about that time. 12 Q. There wasn't an immediate replacement for her, 13 was there? Somebody had to act up as 14 an interim, do you remember that? 15 A. No, I thought a -- well, an interim person was 16 employed. Not -- an interim General Counsel 17 from external. 18 Q. Why did Susan Crichton leave? 19 A. I have no idea. 20 Q. She was somebody with whom you worked closely? 21 A. She was my line manager, yes. 22 Q. And she was somebody who you worked closely 23 with? 24 A. Yes. 25 Q. Was there no discussion as to why she left? 92 1 A. No. 2 Q. Did she leave suddenly? 3 A. I think she left the next day, after informing 4 me or others. 5 Q. Was there no discussion about why she departed? 6 A. I would not discuss that with a line manager. 7 That's personal to them. 8 Q. Did she not say to you "I'm leaving because X 9 and there isn't somebody in place ready to take 10 over from me. We've got to get an interim in"? 11 A. I don't recall, no. 12 Q. Was her departure anything to do with the issues 13 we've just been looking at this morning? 14 A. I have no idea at all. 15 Q. I'll leave the Susan Crichton thing. We've got 16 no documents that help us at all as to why she 17 said she was leaving one day and disappeared the 18 next. 19 Can we turn, please, to 9 October and look 20 at POL00139695. 21 Can we see an email of 9 October, and 22 I don't think you're on the copy list; is that 23 right? 24 A. I can't see my name. 25 Q. It's an email from Gayle Peacock from Branch 93 1 Training and Support attaching something called 2 "The protocol". She says: 3 "Apologies for the delay in circulating 4 these notes from last week's notes. We had 5 a mix up with who was taking them so I've put 6 some together based on the bits that I have 7 captured ... 8 "I've also attached the Protocol document 9 which Martin talked about on the call last week. 10 I think there are still a few tweaks to be made 11 to this but you can see the general principles." 12 So this is an email, would this be right, to 13 a working group, but not including you, 14 enclosing a protocol? 15 A. Can I see the names again, please? 16 Q. Sorry? 17 A. Can I see the names? 18 Q. Yes. If we just scroll up, please. 19 A. I don't recognise a couple of the names but most 20 of them are those who attend the meeting, that 21 I've seen in the minutes. 22 Q. Can we look at the protocol itself, please, 23 which is POL00139696. I want to try to do this 24 quite briefly because it's a seven-page document 25 but what I'm going to suggest is, when we read 94 1 through it, we can see that it's a rather good 2 if not excellent protocol about how the 3 Wednesday morning telephone conferences should 4 be conducted about how to identify material, to 5 record material, to retain material which may be 6 the subject of duties of disclosure. 7 It starts off with a citation, can you see, 8 under the preamble, from something which is in 9 fact from the foreword to the Attorney General's 10 Guidelines on Disclosure, that disclosure is one 11 of the most important issues in the criminal 12 justice system. It reads: 13 "As a prosecutor, Post Office Limited is 14 under a positive duty to identify, record and 15 retain any information which might assist 16 a defendant in preparing or presenting his case 17 or which might undermine the prosecution case 18 against him ... we must ... be able to prove 19 that, where we rely information provided by 20 Horizon Online to prosecute, that system is 21 reliable and accurate; that those using the 22 system have been properly trained; and that 23 appropriate support systems are in place and 24 available to users. The duty extends to all 25 information held by the prosecutor; or to which 95 1 he may have access; and to information which 2 came into existence before any crime was 3 detected but which meets the test for 4 disclosure. 5 "As a fair and public-spirited prosecutor 6 and always acting in the interests of justice, 7 Post Office will take all reasonable steps to 8 ensure that we are ... in a position to fully 9 meet our disclosure duties. Accordingly we will 10 in future collect and retain any and all 11 information which might suggest that Horizon 12 Online may not be working as it should, or that 13 our training and back-up systems are less than 14 we would ..." 15 I suspect there is nothing with which you 16 disagree in those two paragraphs? 17 A. Correct. 18 Q. "Those best placed to provide the information we 19 are required to identify, record and retain are 20 those within the organisation who are Horizon 21 Online users or those who on a regular basis 22 come into contact with Horizon Online and its 23 users. It is those persons, departments and 24 sections therefore at whom this protocol is 25 directed and who will be our front line in the 96 1 information gathering exercise. 2 "Defendants are entitled to this information 3 where it meets the test for disclosure and we 4 would not wish to be associated with any 5 wrongful conviction." 6 Over the page: 7 "Wednesday morning telephone conferences 8 "Post Office will conduct a telephone 9 conference on each and every Wednesday morning 10 ... 11 "The primary purpose ... will be to 12 Identify, Record, Retain and disseminate all 13 such material ... set out in [a clause] below." 14 2: 15 "Post Office will appoint a ... chair ... 16 "The Chair will not be a Head of Department 17 or section mentioned in clause 3.2 below or 18 a representative thereof, but may be a member of 19 staff of such a Department ... The Chair will 20 not be a person mentioned in [a clause below]. 21 "The functions ... of the Chair are set out 22 in [the clause below]. 23 "3. Attendance 24 "The Chair will ensure the attendance at 25 conferences of those Heads of Department or 97 1 sections set out [in a clause] below, or such 2 departments or sections as are responsible for 3 the functions indicated in that clause ... 4 "3.2. The following are the Departments to 5 which [a clause] above refers. 6 "Criminal Law, Litigation ... 7 "Civil Law ... 8 "Post Office Security [and others] 9 "3.3. In addition ... the Chair will ensure 10 the attendance at each and every conference of 11 the following ..." 12 Scroll down please: a solicitor from Bond 13 Dickinson; a solicitor from Cartwright King; 14 a minute-taker appointed by Bond Dickinson. 15 They will: 16 "... take all reasonable steps to ensure 17 that the appointed representative and the 18 minute-taker is the same individual at each and 19 every conference. 20 "4. Functions and duties of the Chair ..." 21 I'm going to skip over those. 22 If we go over the page, please, and go to 5, 23 "Duties and responsibilities of persons 24 attending Wednesday morning Telephone 25 Conferences", you will see the duties set out in 98 1 5.1 to 5.5. 2 Then 6, a definition of equipment and 3 material subject to the protocol. 4 Then 6.2, additional categories of material 5 subject to the protocol: 6 "Any information, in whatever form, which 7 relates to or is associated with, any aspect of 8 the Horizon Online ... which may 9 "Indicate the presence ... of a defect, 10 'bug' fault or virus; 11 "Tend to suggest that any data produced may 12 be inaccurate, false or otherwise unreliable; 13 "Tend to suggest that any balance produced 14 may be inaccurate ... or otherwise unreliable; 15 "Indicate a failure, error, inadequacy or 16 insufficiency in the presentation of data. 17 "Indicate a requirement for further training 18 ... 19 "Indicate an inadequacy of back-up or 20 support ... 21 "Indicate a requirement to alter, modify, 22 rearrange or redefine any process", et cetera. 23 Would you agree that this protocol 24 appropriately captures the duties to create, 25 identify, record, retain material which may be 99 1 subject to duties of disclosure? 2 A. Yes. 3 Q. Why was it not in place for a decade before? 4 A. I have no knowledge on that one. 5 Q. You were Head of Security? 6 A. Yes. 7 Q. Your department was responsible for 8 investigating and instigating criminal 9 proceedings -- 10 A. Mm-hm. 11 Q. -- against hundreds of subpostmasters? 12 A. (The witness nodded) 13 Q. Why was a protocol like this not in place before 14 late 2013? 15 A. I did not know that these issues were not being 16 captured. I'd have expected the IT Department 17 to have been capturing these and feeding these 18 through, had they had concerns. 19 Q. Do you agree that a protocol like this should 20 have been in place -- 21 A. Yes. 22 Q. -- at all material times when subpostmasters 23 were being prosecuted? 24 A. Yes, I think that would have been best practice. 25 Q. When you say "best practice" you mean required 100 1 practice by the law? 2 A. Right. 3 Q. That document can come down, please. In your 4 witness statement of yesterday you've analysed 5 the contents of a series of documents that were 6 created concerning the July and August 2013 7 weekly meetings and you've made points about 8 them, drawing extracts from them and analysing 9 them, over the course of 10 pages or so. 10 A. Yes, I've made observations. 11 Q. That's in relation to an allegation that's been 12 made against you in the past, that you were 13 responsible for an order that minutes should be 14 shredded? 15 A. Yes. 16 Q. When you were reviewing the sufficiency of 17 evidence to prosecute subpostmasters, did you 18 subject that evidence to the same level of 19 scrutiny? 20 A. In terms of prosecution decision? 21 Q. Yes. 22 A. I'd have expected to have done so, yes. 23 Q. Because we can see from your witness statement 24 that, where the allegation is made against you, 25 you analyse all of the material, pull parts from 101 1 here and there, put them together and draw 2 inferences from them? 3 A. (The witness nodded) 4 Q. Make denials, agree with certain things, yes? 5 A. (The witness nodded) 6 Q. Is that what you did when you were reviewing 7 files against subpostmasters? 8 A. I'd have read all the file documents that were 9 forwarded to me. I would have read the suspect 10 offender report. I'd have probably read the 11 tape summary and most definitely the legal 12 advice that would have been provided. 13 Q. Did you read the underlying material? 14 A. Online material? 15 Q. Underlying material, rather than somebody else's 16 summary or views of it? 17 A. I may have looked at, on occasions. I'm not 18 saying that I would look on every single 19 occasion. 20 Q. Or did you think, because it had passed through 21 Legal and they had recommended prosecution that 22 it was your job to rubber stamp it? 23 A. No, I would still be looking to -- just to know 24 and understand. 25 Q. Did you ever say a case should not be 102 1 prosecuted? 2 A. Obviously, you sent me a document where it does 3 say prosecution won't go forward. 4 Q. In your nine years as Head of Security -- 5 A. Yes? 6 Q. -- how many times did you say that a case should 7 not be prosecuted? 8 A. I can't recall. 9 Q. Can we turn to the offender report, which you 10 just mentioned. 11 A. Mm-hm. 12 Q. So moving way from the approach taken to 13 disclosure to the creation of reports for the 14 purposes of bringing criminal and disciplinary 15 proceedings against subpostmasters and clerks. 16 Do you recall a document called "Security 17 Operations Case Compliance"? 18 A. No, you've sent it to me in the bundle but 19 I don't recall that at all. 20 Q. Can we look at it, please. POL00119917. Thank 21 you. 22 Can you see that this is a document headed 23 up "Security Operations Team -- Case Compliance" 24 so the Security Operations team came under your 25 responsibility? 103 1 A. Yes. 2 Q. This is in relation to a particular case. We've 3 got lots and lots of these, in the same or 4 similar format. Can you see that, in the 5 left-hand column, there is a reference to, 6 variously, the case file, the offender report, 7 the taped interview record, appendices A, B and 8 C, and then, scrolling down, the discipline 9 report, and then stakeholder engagement, yes? 10 A. Mm-hm. 11 Q. There are 50-items against which compliance is 12 seemingly judged; can you see that? 13 A. Yes. 14 Q. Then, in the right-hand column, there is a mark, 15 a compliance score as a percentage, which, if 16 the person submitting the file gets it all 17 right, they get 100, so 100 per cent. This 18 person submitting this file got 94 per cent; can 19 you see that? 20 Do you remember this case compliance 21 approach -- 22 A. No, I've no recollection at all. 23 Q. -- in which issues are identified and 24 a weighting is given to each of them? 25 A. No, this will be a -- sort of, a level of 104 1 operational detail that I wouldn't have 2 engagement with. This would be with the Head of 3 Security Operations. 4 Q. How many people were you responsible for, when 5 you were Head of Security? 6 A. At the outset, I think it was about 110 and that 7 dramatically reduced over the years. 8 Q. To? 9 A. I think -- well, less than 50, I think. 10 Q. So you, in your nine years, wouldn't be 11 responsible that there was a process being 12 undertaken to measure case compliance with 13 a series of standards? 14 A. I'd expect it to be there but I wouldn't be 15 getting involved in it. That would be the Head 16 of Security Operations or Head of Fraud, in the 17 earlier days. 18 Q. Wouldn't you receive reports to say, "We're 19 doing well, we're not doing very well, on case 20 compliance"? 21 A. I don't recall receiving reports. That's not to 22 say I didn't get an overall measure. 23 Q. Were you aware of a suite of documents that were 24 circulated very frequently within your 25 department informing their staff that they were 105 1 to be the subject of case compliance checks? 2 A. I've seen it in the bundle but I don't recollect 3 seeing that before. 4 Q. So this was going on, as you now recall it, 5 without you knowing? 6 A. As far as I'm aware, yes. 7 Q. Can we look at another one of the suite of 8 documents, please, that was distributed along 9 with these case compliance score sheets. 10 POL00118101. Can you see the heading of this 11 document "Post Office Limited Security 12 Operations Team", so the same team "Compliance, 13 Guide to the Preparation and Layout of 14 Investigation Red Label Case Files", and then 15 a subheading "Offender reports & Discipline 16 reports"? 17 Can you see that it's, at the bottom of the 18 page, said to be "In Confidence", and that's at 19 the bottom of each page. 20 If we go over the page to page 2, please, 21 and if we just read through the purpose of the 22 document: 23 "The purpose of the Suspect Offender report 24 is to provide a storyboard of events and 25 evidence of an investigation to the relevant 106 1 stakeholders and Criminal Law Team to enable 2 a decision to be made as to the future conduct 3 of a case." 4 So these are the reports that you got, yes? 5 A. Yes. 6 Q. "This guide is produced for all Security 7 Operations managers, irrespective of location 8 ... 9 "The general principle is that the 10 description of investigation activities should 11 read in the sequence they occurred so it may be 12 necessary to reorder paragraphs or elements 13 within them. The following is only a guide ..." 14 Then if we look at the foot of the page, 15 please. Can you see -- 16 Sorry, I've missed a part out that I should 17 have gone to. It's the fifth paragraph. The 18 one beginning "The text": 19 "The text element of the Suspect Offender 20 report should commence immediately underneath 21 the preamble/s. The Header/Footer on the report 22 should read 'Post Office Limited Confidential -- 23 Investigation, Legal'." 24 We'll come back to that in a moment. 25 Then if we scroll down, please, we'll see 107 1 the contents starting to be listed of 2 an offender report: a preamble; it should have 3 a header and footer; and the investigation 4 background; the offender interview details; what 5 happened post-interview. Scroll down, please. 6 Then the contents of a discipline report 7 under paragraph 2; headers and footers; 8 background; offender interview details; then, 9 over the page, post-interview. 10 Then we scroll down. Hold on, if we go 11 back, please. Back up a page. Thank you. 12 The offender report, more detailed guidance 13 is given; preamble; headers and footers; it 14 repeats the point that "Post Office Limited 15 Confidential Investigation, Legal" should be 16 printed. 17 Does that reflect the fact that legal 18 professional privilege was claimed over the 19 offender reports? 20 A. I believe it was. 21 Q. Can we go to -- I'm not going to read it all -- 22 page 9, please. We're still in the part of the 23 document that's dealing with the offender 24 report, rather than the discipline report. 25 1.24: 108 1 "Details of failures in security, 2 supervision, procedures and product integrity. 3 This must be a comprehensive list of all 4 identified failures in security, supervision, 5 procedures and product integrity. It must be 6 highlighted bold in the report. Where the 7 investigator concludes there are no failures in 8 security, supervision, procedures and product 9 integrity a statement should be made and 10 highlighted in bold." 11 Would you agree that that statement of the 12 things to be included in the offender report, 13 insofar as it refers to product integrity, would 14 include anything that emerged in the 15 investigation, whatever its source, about issues 16 with the accuracy or reliability of Horizon 17 data? 18 A. I'd expect so, yes. 19 Q. It would include issues about the integrity of 20 the Horizon System and the data that it 21 produced? 22 A. Yes. 23 Q. Would that be because those are things that are 24 all capable of undermining a prosecution case? 25 A. It seems so, yes. 109 1 Q. They are relevant issues for a person deciding 2 whether there is a realistic prospect of 3 a conviction to consider -- 4 A. Yes. 5 Q. -- and that such people positively need to have 6 such material identified to them, don't they? 7 A. Yes. 8 Q. It will also assist, would you agree, in the 9 discharge of disclosure obligations to have the 10 material collected together and highlighted in 11 bold in one place? 12 A. Yes. 13 Q. Can we scroll on, please. Just stop there. 14 Just scroll up just a little bit, please, bit 15 more. 16 We then, in paragraph 2, turn to the 17 discipline report. We see that the header and 18 footer of this is, by contrast, only to be "Post 19 Office Limited Confidential: Investigation 20 Personnel", yes? 21 A. Yes. 22 Q. Then can we get scroll through to page 10, until 23 we get to paragraph 2.15. Thank you. It reads: 24 "Details of failures in security, 25 supervision, procedures and product integrity. 110 1 This must be a comprehensive list of all 2 failures in security, supervision, procedures 3 and product integrity. It must be highlighted 4 in bold in the report. Where the investigator 5 concludes there are no failures a statement to 6 this effect should be made and highlighted in 7 bold." 8 So the same as in relation to the offender 9 report, agreed? 10 A. Yes. 11 Q. Again, it continues, however. 12 "Significant failures that may affect the 13 successful likelihood of any criminal action 14 and/or cause significant damage to the business 15 must be confined, solely, to the confidential 16 offender report. Care must be exercised when 17 including failures within the Discipline Report 18 as obviously this is disclosed to the suspect 19 offender and may have ramifications on both the 20 criminal elements of the enquiry as well, as 21 being potentially damaging to the reputation or 22 security of the business. If you are in any 23 doubt ... discuss with your Team Leader." 24 Would you agree that this is, in Post Office 25 written policy, a command to include only in 111 1 a document that enjoys privilege any issues that 2 may affect the successful likelihood of criminal 3 proceedings? 4 A. That's how it reads. 5 Q. It therefore included an explicit instruction to 6 keep secret and not to disclose any Horizon 7 integrity issues, didn't it? 8 A. No, because that would be reported to the 9 lawyers, who would then consider the requirement 10 for disclosure out to a suspect offender or his 11 or her lawyers. 12 Q. But not disclosing in a report that a suspect 13 would see any issues that may affect the success 14 of criminal proceedings. The reason given for 15 that is that it was potentially damaging to the 16 reputation of the business, isn't it? 17 A. The report that was given to the suspect 18 offender would have been a discipline report 19 around their employment or around their 20 contract, not about any criminal investigation. 21 That would be reported to the lawyers, who would 22 then make a decision of what they disclose to 23 that individual. 24 Q. So this is saying "Be careful not to let things 25 leak out that might cause damage to the 112 1 business"? 2 A. In part, yes. 3 Q. Was that the prevailing attitude of mind whilst 4 you were Head of Security? 5 A. I'd say no, bearing in mind that we were 6 communicating out as part of the prevention 7 strategy of saying what some of the security 8 weaknesses were, so that we could actually then 9 let them know that we were monitoring it and we 10 will be putting prevention in. 11 Q. This document and documents in the same terms or 12 similar terms were distributed according to 13 emails that the Inquiry has received to very 14 many Security staff under your command during 15 your tenure -- 16 A. Mm-hm. 17 Q. -- in your nine years, and they were told that 18 not only must they do that which is included in 19 these paragraphs but they would be audited to 20 ensure compliance to make sure that they didn't 21 breach the restrictions included here. Did you 22 know that was going on? 23 A. No. 24 Q. But it happened on your watch; how did that 25 happen? 113 1 A. I just have to give my apologies that I did not 2 see that or the senior management of the 3 Security Operations Team didn't spot it. 4 Q. Can we turn, please, to POL00118152. This is 5 another one of the suite of documents that was 6 regularly distributed to your staff. In the pro 7 forma for the discipline report and the offender 8 report, there was a section which required the 9 maker of the report to include an identification 10 code and this document was part of the suite of 11 documents distributed to them, telling them 12 which identification code to use. Do you see 13 anything wrong with this document? 14 A. Very much so. It's very racially offensive. 15 Q. Which parts? 16 A. I'd say it's all. 17 Q. Sorry? 18 A. All. 19 Q. This was distributed regularly to your staff on 20 your watch telling the staff that they needed to 21 use these codes and they would be audited for 22 compliance if they didn't. How did that come 23 about? 24 A. I have no recollection. I do not recall this 25 document. Had I seen it, I'd have challenged 114 1 and had it resolved. 2 Q. Did any of your 100 staff -- falling to 50 3 staff -- come to you in the nine years of your 4 tenure to say, "Hold on, boss, we've been asked 5 to fill out a document to say whether somebody 6 is a 'Negroid type'. I don't think that's 7 really appropriate"? 8 A. No. 9 Q. What was the purpose of using identification 10 codes for suspects and offenders? 11 A. I believe it's to do with official reporting to 12 the police. 13 Q. How was official reporting to the police 14 undertaken? 15 A. I can't recall. 16 Q. Who was responsible for reporting to the police? 17 A. It would be the Investigator who's in charge of 18 the case. 19 Q. How were they to report to the police? 20 A. Oh, I have no idea. 21 Q. What was the purpose of making a report to the 22 police of the suspect's identification? 23 A. I have no idea. 24 Q. At what stage in the process would they report 25 to the police the suspect's identification code? 115 1 A. I have no idea. I don't have that level of 2 operational detail. 3 Q. If reporting to the police was the purpose of 4 noting identification codes down for suspects, 5 wouldn't one need to know what the police 6 identification codes were, rather than these 7 Post Office ones? 8 A. That would make sense. 9 Q. Can you think of any other purpose, if the 10 purpose wasn't to report matters to the police, 11 for recording a suspect's identity -- 12 A. No. 13 Q. -- ie their ethnic or racial origin? 14 A. No. 15 Q. Were any statistics compiled of how many 16 "Siamese" people were prosecuted, how many 17 "Negroid types" were prosecuted, and how many 18 "Sicilian" people were prosecuted? 19 A. I've no recollection of ever doing that. 20 Q. Would therapy any purpose in recording that 21 information? 22 A. No. 23 Q. When you saw this document, it therefore came as 24 a complete surprise to you? 25 A. Yes. 116 1 Q. Who was responsible for issuing case compliance 2 instructions to the 100, falling to 50, staff? 3 A. Can I just clarify, when I talk about 100 down 4 to 50 staff, that was across all the five 5 strands, not just purely the Fraud strand or the 6 Security Operations strand, when you make 7 reference to that number. 8 Q. Okay. So presumably a smaller number then? 9 A. Yes. 10 Q. For those involved in fraud investigation and 11 security operations, how many did you start with 12 and how many did it fall to? 13 A. I'd say probably in the region of around about 14 60 to start off with. Towards the end, I will 15 struggle to think, because we -- or I merged two 16 teams together, the preventative physical team 17 with the fraud team, to make the security ops, 18 and there was an element of multi-skilling. So 19 how many were actually left to do the 20 investigation, I couldn't actually recall. 21 Q. But that number, 60 at the beginning and then 22 less than 60 at the end, who was responsible for 23 issuing to them the kind of documents, the three 24 documents, that I have mentioned? 25 A. Yes, that would have been down to the senior 117 1 management of the Security Operations team. 2 Q. Who was that in the relevant period? 3 A. What year are we talking? 4 Q. We've got emails showing that this was in 5 circulation between 2008 and 2012 and there was 6 further circulation, I think, up until 2016, so 7 really across your period of office? 8 A. Okay. I think I have listed it in my statement 9 and so I think Dave Pardoe -- 10 Q. Yes. 11 A. -- Iain Murphy -- 12 Q. Yes. 13 A. -- rob King and Amy Quirk. 14 Q. Would they not come to you and say, "Look boss, 15 we're introducing this thing called case 16 compliance. These are the things we're going to 17 ask for compliance with, one of them is we 18 require a particular font and line spacing", and 19 you say to them, "Well, hold on that's a bit 20 petty", or "That's a good idea, I like 21 everything to be produced in the same font"; 22 would they not come to you with things like 23 that? 24 A. No, that's not the level of detail that I would 25 be involved in. 118 1 Q. Would they not tell you "We're issuing case 2 compliance requirements and auditing staff 3 against them"? 4 A. I may have been briefed at a one-to-one. 5 Q. But the documents that I've shown you -- the 6 instructions on case file compilation, the Excel 7 spreadsheet of case compliance scoring and the 8 identification codes document -- were all 9 a surprise to you when you saw them recently? 10 A. Yes. They may have come across my desk at some 11 point but it's not documents that I'd actually 12 get involved in because it's at an operational 13 level, that I would leave to the senior managers 14 of the strand. 15 MR BEER: Sir, thank you. I'm about to move to 16 a separate topic and it's just coming up to 17 1.00. I wonder whether we might break until 18 2.00. 19 SIR WYN WILLIAMS: Of course, yes. 20 I take it you're aware that you shouldn't 21 speak to anyone about your evidence during the 22 lunch break, Mr Scott. I'm sure you probably 23 don't want to but, if there are things that you 24 would wish to speak to your lawyers about, then 25 just let Mr Beer know what you want to talk to 119 1 them about so he can decide whether anyone 2 should make a decision about whether that's 3 appropriate, all right? 4 THE WITNESS: Okay, thank you. 5 MR BEER: Thank you, sir. So 2.00, please. 6 SIR WYN WILLIAMS: Yes. 7 (12.58 pm) 8 (The Short Adjournment) 9 (2.00 pm) 10 MR BEER: Sir, good afternoon, can you see and hear 11 me? 12 SIR WYN WILLIAMS: I can, thank you. 13 MR BEER: Thank you very much. 14 Mr Scott, can we turn please to our next 15 topic. I would like, if I may, to examine your 16 role in the genesis, creation and purpose of the 17 Ismay report of 2010. Can we start, please, 18 back in February 2010 by looking at FUJ00156120. 19 This is an email chain, so we're going to 20 have to start at the back which is at page 8, 21 please. 22 If we just scroll down a little bit, please, 23 and a bit more. We can see this is an email 24 from Carol Ballan, a contract advisor in South 25 East England area. Then scroll up, please, to 120 1 the top of the page. It's to Mandy Talbot, 2 a lawyer within the Post Office, and others, Lin 3 Norbury, Jessica Madron and Dominic Williams, 4 and it's to do with a large debt outstanding in 5 the Alresford branch, okay? 6 She says: 7 "Mandy, I am aware that there are many cases 8 at the moment, both current and 9 [ex-postmasters], where there are challenges 10 regarding the integrity of the Horizon system." 11 Just stopping there at the moment, at that 12 time, were you aware of many cases in which the 13 integrity of the Horizon system was being 14 challenged, February 2010? 15 A. I was becoming aware because of the JFSA but 16 I wasn't aware of explicit examples. 17 Q. We're going to see in a moment that you're 18 copied in to this chain? 19 A. Mm-hm. 20 Q. Okay. But you say you were aware because of the 21 JFSA. What were you aware of because of the 22 JFSA? 23 A. They'd just been set up. 24 Q. What did that tell you or what did you learn 25 from the setting up of the JFSA? 121 1 A. That there were challenges around the Horizon 2 integrity. 3 Q. Had you seen an article in Computer Weekly in 4 2009? 5 A. I've seen it in the bundle. I don't recollect 6 it but I may have seen it. 7 Q. Were you aware of some coverage by the BBC in 8 2009/10 over Horizon integrity problems? 9 A. I don't recall that. 10 Q. In any event, this contract advisor for South 11 East England, or one of them, is aware of many 12 cases where there are challenges regarding the 13 integrity of Horizon. 14 Then in the next three or four paragraphs 15 she sets out some background to the case in 16 particular, okay, which we needn't read. 17 Essentially, there was a debt and she wants some 18 advice, please, from Mandy Talbot, the lawyer, 19 about how to handle it. It seems like there 20 must have been an attachment to it, which we 21 haven't got, concerning a request for access for 22 the purposes of an examination by an expert 23 witness. 24 She says at the end, Ms Ballan: 25 "Please can I have your advice on a response 122 1 to her solicitors." 2 Then can we go, please, to page 7 and look 3 at the foot of the page. We can see this is 4 an email, if we just scroll on, from Mandy 5 Talbot on to David X Smith, who was the Head of 6 Change & IS and she says to him: 7 "Has [the Post Office] received requests 8 like this before and if so how has it responded 9 to them? Does the business in principle have 10 any objection to meeting with a 'computer 11 expert' and explaining to him how the system 12 works. Possibly even showing him the data. It 13 may be beneficial in resolving this case but it 14 will set a precedent. If we refuse I anticipate 15 there is no way that we will be able to recoup 16 any money on the sale of the branch without 17 litigation which will revolve around computer 18 evidence. I have looked up Vella who appears to 19 be featured on a number of websites as 20 a computer expert but what his experience is in 21 the field is impossible to tell. Your opinion 22 would be really useful to us in advising the 23 business how it should respond to the request 24 against the background of attacks on Horizon in 25 the press and Courts." 123 1 So we've got somebody in the southeast of 2 England asking for advice on a particular 3 branch, it being routed by Mandy Talbot to David 4 Smith. 5 Then if we can look, please, at his reply. 6 We can see it's signed off at the end of the 7 page there. We actually have to go to page 5, 8 the foot of the page at page 5: 9 "Mandy, 10 "Forgive me if this is a rather long 11 response but it's important given my impending 12 departure from the Post Office that my logic is 13 fully understood after I'm no longer around to 14 ask. 15 "I've been embroiled in the various 16 newspaper, TV and flag case letters all claiming 17 that Horizon is at fault. As yet I haven't seen 18 a single shred of evidence to back up ... these 19 claims. However, a recent meeting with MPs 20 encapsulated the issue we face very nicely. 21 People know that computer systems go wrong from 22 time to time, particularly government computer 23 systems, and, therefore, believe that a computer 24 system such as Horizon could have caused these 25 discrepancies. As long as the argument is 124 1 carried out on the level of what could happen 2 then we will always struggle to win it. Our 3 greatest chance of winning the argument case by 4 case is to fix the debate on what actually 5 happened. 6 "Two cases of which I believe you are 7 familiar further reinforce this view and shape 8 my response to your question. In the case 9 referred to as Cleveleys an independent expert 10 was appointed. Unfortunately [the Post Office] 11 and Fujitsu did not manage this spectacularly 12 well and probably fielded the wrong people or at 13 the very least insufficiently briefed people. 14 I read the so-called experts report and I have 15 to say it was far from the professional effort 16 I would have expected. There was no sign of 17 a systematic approach to evidence gathering or 18 that the expert had gained essential knowledge 19 of how Horizon enables accounting integrity to 20 be maintained. The expert concluded that 21 Horizon could have created discrepancies. 22 Crucially the audit logs which would have proven 23 what did happen on the system had not been 24 retained. We settled out of court. This matter 25 was determined on what could have happened." 125 1 Stopping there, the reference to the 2 Cleveleys case, when did you first become aware 3 of the Cleveleys case? 4 A. I don't recall it. I think -- no, just don't 5 recall it. 6 Q. So, in due course, we will see you got this 7 email chain? 8 A. Yeah. 9 Q. So you will have been aware of it, at least by 10 February 2010 -- 11 A. Okay. 12 Q. -- ie that description of it? 13 A. I don't remember even seeing this in my bundle 14 so ... 15 Q. Okay, well, if we go forwards to page 4, we can 16 see an email that you sent on this chain; can 17 you see that? 18 A. Yes. 19 Q. From you to Sue Lowther -- 20 A. Yes. 21 Q. -- and when we get to the top of the chain we'll 22 see more correspondence from you? 23 A. Okay. 24 Q. Going back, please, I think we were on 25 Mr Smith's long reply, on page 6. If we scroll 126 1 down: 2 "In the case of Castleton we were able to 3 disclose the audit log. My recollection is that 4 Castleton's solicitor, or an expert retained by 5 the solicitor, examined the log and concluded 6 that Horizon did not cause the discrepancy. 7 I seem to remember that Castleton fired this 8 solicitor and decided to continue with his 9 counterclaim. He lost! Having heard 10 Castleton's arguments, the Judge decided that 11 there was 'no flaw' in the Horizon system, and 12 that 'the logic of the system is correct': he 13 said 'the conclusion is inescapable that the 14 Horizon system was working properly in all 15 material [respects '. We won the case on the 16 basis of what had actually happened." 17 Never mind for a moment whether that is in 18 any way an accurate summary of what actually 19 happened, that you heard of the Castleton case 20 before now, 2010? 21 A. No, I don't recall it, no. 22 Q. He, Mr Smith, continues: 23 "I believe that we should therefore allow 24 an expert to examine in the audit log having 25 been fully briefed on how Horizon maintained 127 1 integrity as this gives us the best chance of 2 winning the argument. However we need to do so 3 in a controlled manner and I suggest the 4 following way forward. 5 "1. It is not clear whether we have 6 examined the audit log for this branch over the 7 period during which the discrepancies occurred. 8 If not we should do so. It would also be useful 9 to understand the details of the investigation 10 including a statement from [Product and Branch 11 Accounting] as to whether it is possible that 12 there are outstanding transaction corrections. 13 "2. Horizon is a very complex system. We 14 should ensure that the experience of the expert 15 equips him to carry out the task. Being a bit 16 of a whiz on a PC wouldn't make the guy 17 an expert -- I'd expect a background in the 18 technical detail of say large scale banking 19 system as the experience that would equip 20 someone to carry out this task. This is not 21 just in our interest it is also in the interest 22 of the subpostmistress. 23 "3. We should control the process. Firstly 24 whoever faces off to the expert -- and I'd 25 suggest a combined Post Office/Fujitsu effort -- 128 1 should have first immersed themselves in what we 2 discover from 1 so that they can prepare their 3 explanation in the light of what we know. 4 Secondly we should set out how Horizon maintains 5 integrity and illustrate how this is ensured and 6 explain how the audit log demonstrates this 7 integrity. Then and only then should we hand 8 over the audit log. Finally we should ensure 9 that the expert has an open channel to our 10 experts to follow up any queries. Finally, and 11 we possibly can't insist on this, we should try 12 to get the opportunity to comment on any report 13 that is drafted before it is finalised." 14 So, overall, Mr Smith was saying, would you 15 agree, in summary, that he was keen to ensure 16 that the expert has got to be the "right 17 expert", he has got to understand the processes 18 which protect the integrity of the Horizon 19 system and he points to the Castleton case to 20 support his approach? 21 A. Yes. 22 Q. Can we go, please, to page 5. We can see, if we 23 just scroll down a little bit, it's Mandy 24 Talbot's email. Then scroll back up again. She 25 replies: 129 1 "Dave 2 "[Thanks] for the comprehensive reply. 3 "Who do you suggest we go to within the 4 business and Fujitsu to obtain the full audit 5 logs ... sorry that you're going to be leaving 6 us, can you suggest who we should talk to about 7 Horizon issues after you are gone ... 8 "I agree that once we get everything we can 9 together it should be examined by POL and 10 Fujitsu -- again can you suggest some useful 11 candidates who are expert but also quite robust 12 so as to be capable of rebutting anything that 13 the subpostmistress's expert can throw at us." 14 Just stopping there, would that have been 15 the prevailing attitude, on your understanding 16 at the time, that the imperative was to be 17 robust and rebut anything that suggested that 18 Horizon lacked integrity? 19 A. I don't recall that. 20 Q. What was the prevailing attitude at the time: 21 one of openness to the possibility that there 22 might be Horizon flaws? 23 A. No, I think the feedback from the business and 24 from people like Dave Smith was that the Horizon 25 system was robust and reliable. 130 1 Q. Therefore, if you read this, you wouldn't see 2 anything wrong in getting somebody who was 3 themselves robust so that they could rebut 4 anything that an independent expert might throw 5 at them? 6 A. I mean, clearly that's what Dave Smith is 7 recommending. 8 Q. I'm sorry, I missed that. 9 A. That's clearly what Dave Smith is recommending. 10 Q. Yes. You wouldn't see anything wrong in that? 11 A. No. 12 Q. She continues: 13 "Ultimately given the complexity of the 14 Horizon system are there any external 15 individuals or firms who you can recommend who 16 would have the appropriate background to create 17 a proper report in case POL has to defend 18 itself?" 19 Then the reply, please, on page 4, at the 20 foot of the page, David Smith replies: 21 "I'm on holiday in Mexico ... 22 "John and Rod have individuals who access 23 the audit log via Fujitsu." 24 If we scroll up, we can see this is when 25 you're copied into the email. Can you see? 131 1 A. Yes. 2 Q. So you entered the chain at this point. What 3 individuals did you have who accessed the audit 4 log at Fujitsu? 5 A. The team didn't access directly to Fujitsu; they 6 made requests for records. 7 Q. What part of the Security team that you led did 8 that? 9 A. That would be the Fraud strand, which then moved 10 into the Security Operations strand. 11 Q. Were there any written instructions that you 12 were aware of that told them how to do it and 13 what to request? 14 A. In the early years, I can't recall but, clearly, 15 I've seen in the bundle that there was 16 a procedure written up later on. I think 2013. 17 Q. In late 2013? 18 A. Sorry in the late tenure or in the late part of 19 my tenure in 2013. 20 Q. Was that written up almost at the same time that 21 the Post Office stopped prosecuting? 22 A. Well, that would be about the same time, yes. 23 Q. So what about such a protocol for the period of 24 time that the Post Office was prosecuting, were 25 you aware of anything? 132 1 A. No. 2 Q. Was there a menu of material that the people who 3 had the function of obtaining the material from 4 Fujitsu could look at to determine what they 5 should seek? 6 A. I have no knowledge of that sort of level of 7 operation at all. 8 Q. Or what was available? 9 A. I have no knowledge. I just didn't know that 10 type of information at the operational level. 11 Q. Mr Smith continues: 12 "Within Fujitsu I believe Gareth Jenkins is 13 the individual best to interpret the audit log 14 but also explain how Horizon is set up to 15 maintain integrity both in normal running and 16 when failures occur. Rod would have to field 17 someone to explain the back office controls we 18 have. I will contact Fujitsu to make sure that 19 Gareth or a suitably qualified alternative is in 20 place. 21 I would suggest that one of the big 22 accounting firms would be the best bet for 23 an expert report. They have system experts. 24 This is likely to be quite expensive as Horizon 25 underwent very frequent change." 133 1 Scrolling up the page, please. You yourself 2 forward the chain on to Sue Lowther; do you see 3 that? 4 A. Yes. 5 Q. You say: 6 "Can you please support and advise Mandy & 7 Co in this exercise and provide some initial 8 thoughts. 9 "... Sue leads on Information Security for 10 [the Post Office]." 11 What function did Sue Lowther then perform 12 in February 2010? 13 A. I don't know, I can't recall. 14 Q. Was she within your report? 15 A. I believe at that time, yes. 16 Q. Was there an element of your Department that 17 had, as its responsibility, information 18 security? 19 A. Yes, that was led by Sue Lowther. 20 Q. How many people were in the Information Security 21 Department? 22 A. I think there were about three or four permanent 23 and couple of contractors. 24 Q. Can you recall the names of any of them? 25 A. Sue Lowther -- no, Sue Lowther was a direct 134 1 report to me. I can't remember the team members 2 underneath. 3 Q. What function did Information Security perform? 4 A. They provided the policies, standards and 5 oversight and assurance of the IT within the 6 business. 7 Q. Were they responsible in any way for the 8 obtaining or the extraction of data? 9 A. No, I don't believe they were. But they may 10 have -- I don't know. I'd have to say not for 11 investigations. 12 Q. If we go further up the page, a reply comes 13 back: 14 "John, 15 "More likely to be Dave Posnett that will be 16 of assistance to Mandy." 17 Then scroll up a little bit further. You 18 then forward the chain to Dave Posnett: 19 "... if you can support and assist Mandy ... 20 in the issue described, I'll leave you to get 21 engaged with those involved." 22 So you are farming that out to Mr Posnett, 23 essentially? 24 A. Yes. Delegating, yes. 25 Q. Then further up the page, please. Mr Posnett 135 1 replies: 2 "Mandy, 3 "For info as discussed." 4 Essentially seeking information. 5 Scroll down, please, and scroll down again. 6 He says: 7 "Once I have [that information], I'll look 8 to arrange a [conference] call ..." 9 Do you know what happened to the discussion 10 over the appointment of an independent expert 11 from one of the big accountancy firms, for 12 example, or consulting firms who had systems and 13 IT experts within them to undertake a review? 14 A. No, I can't recall. 15 Q. Is that because you delegated this to Mr Posnett 16 and that was the end of it? 17 A. That may be a potential but, again, I can't 18 recall. 19 Q. Can we move forward in the tale to POL00119858. 20 Can you see an email, if you look at the foot of 21 the page, from Mr Ismay, the head of Product and 22 Branch Accounting, to you and Mandy Talbot -- 23 can you see that -- 24 A. Yes. 25 Q. -- dated 24 February? So shortly after the 136 1 email chain that we've just looked at. Would 2 you agree that this is a discussion at quite 3 a high level within -- or quite a senior level 4 within the Post Office, head of P&BA and Head of 5 Security? 6 A. Yes, we're obviously heads of our own 7 departments. 8 Q. At this time, what would your understanding of 9 Mandy Talbot's role be in relation to the 10 Horizon challenges? 11 A. I don't recall. I don't particularly recall 12 Mandy Talbot, to be honest. 13 Q. In any event, Mr Ismay says to the pair of you: 14 "Further to your emails with Dave ..." 15 I think that might be a cross-reference to 16 the Dave Posnett emails that we've just seen, 17 which is why I showed them to you: 18 "I think we do need to get some independent 19 heavyweight assurance to rebut the challenges. 20 "Dave's outline made sense. 21 "He suggested one of the big accounting 22 firms. I actually received a 'cold call' 23 proposal from Deloittes recently for exactly 24 that work after they read the articles about 25 Horizon in Accountancy Age Magazine." 137 1 Can you recall the articles in Accountancy 2 Age Magazine? 3 A. No, not in an accountancy magazine, no. 4 Q. When you get an email like this, what would you 5 do? There's somebody referring to articles 6 about the Horizon system in a publication that 7 you maybe don't subscribe to, what would you do? 8 Would you think "I'd better find out what that 9 is"? 10 A. I can't recall, if it's an accountancy magazine, 11 I probably wouldn't have access. You may speak 12 to Rod who does access but I just can't recall. 13 Q. In any event, he says: 14 "Deloittes are engaged with Group Audit 15 already in a set price framework agreement. 16 I think we should consider them. I shall speak 17 to them in a 'no commitments' sense. Given the 18 existing framework deal I don't know if we could 19 just use them (if they fitted the bill) or 20 whether we have another preferred supplier or 21 whether weird need more of a 'tender'. The 22 other obvious candidates are our auditors [Ernst 23 & Young] plus KPMG and PwC. 24 "I think it would be worth us having a 3 way 25 call. Looks like you are in workshops ... 138 1 "I think we ... need to understand what 2 cases are under way in this area." 3 Then scrolling down: 4 "I found out that Carol Cross in my team and 5 Jon Longman from yours ... are in court soon for 6 West Byfleet (or West Byfield). This ... is 7 an office who as part of their defence is 8 challenging the integrity of Horizon. I didn't 9 know if you were involved Mandy? I think we 10 need to be clear about all live cases so we can 11 ensure the same consistent robust response 12 throughout and based on the sensible principles 13 of Dave's emails about pinning down the exact 14 transaction logs and talking about facts not 15 speculation." 16 So would you agree that this email is 17 starting up a conversation about two things: the 18 benefit of an independent review and how to take 19 that forwards, and, separately, the 20 recommendations made by Mr Smith, Dave Smith, 21 for an approach to investigations to support the 22 Post Office's position in challenges to Horizon. 23 A. Yes. 24 Q. The message from Mr Ismay here is suggesting 25 that he push forward the conversation about 139 1 an independent audit or review with Deloittes in 2 the first instance? 3 A. Yes. 4 Q. Occupying the senior position that you did, was 5 that a decision that Mr Ismay could take himself 6 or would it need to go off to the board or some 7 other decision-making body for approval? 8 A. I suspect it would have to go off to somewhere 9 else. 10 Q. The someone else being what or who? 11 A. I'd expect it to be the Executive Committee at 12 that level, or higher, the board. 13 Q. So the Executive Committee or the board. What 14 was your role in this? Did you need to agree to 15 or authorise his proposal to go off and get 16 an expert report on Horizon from an external 17 body? 18 A. No. 19 Q. Could you have shut it down? Could you have 20 said, "Hold on, stop"? 21 A. No. 22 Q. We see in the email, in the last paragraph, 23 Mr Ismay saying that "We need to understand what 24 cases are under way in this area". At this 25 time, by February 2010, was there no tracking 140 1 mechanism within the Post Office, whether within 2 security or more widely, that monitored the 3 number and nature of challenges to Horizon? 4 A. Not that I can recall, no. 5 Q. Is the October 2013 protocol the first attempt 6 at such a mechanism, to your knowledge? 7 A. To my knowledge, yes. 8 Q. Can you recall what you did as a result of this 9 email? 10 A. No, I can't recall. 11 Q. Can you recall whether the three-way call that 12 he suggests happened? 13 A. No, I can't recall that. 14 Q. Therefore, you can't recall what was discussed? 15 A. No. 16 Q. Can you recall what happened next? 17 A. No. 18 Q. Can you recall whether there was any discussion 19 with Fujitsu or involving Fujitsu at this stage? 20 A. No, I can't recall. 21 Q. Can we turn forwards then again, please, to 22 POL00054371. If we look, please, at page 3, at 23 the foot of page 3, the start of this chain on 24 25 February is an email from Andrew Daley to 25 Jason Collins and Graham Brander, blind copied 141 1 to Andy Hayward; can you see that? 2 A. Yes. 3 Q. "Andy [I think that's Andy Hayward in context] 4 called me yesterday and asked whether you guys 5 ... could put together some stats on these cases 6 ..." 7 Remembering that the subject of the email 8 was "Horizon disputed cases": 9 "... where the accused's defence was/is that 10 the Horizon data is unreliable for any amount of 11 reasons given by the accused. 12 "This should be sent to Iain within the next 13 few days. [He] will need as much information as 14 possible." 15 Again, does it follow that, by this time, 16 February 2010, there was no central repository 17 of issues that subpostmasters had raised with 18 the integrity of Horizon data? 19 A. Not that I can recall. 20 Q. If we go back to the third page, please. We see 21 the reply: 22 "Andrew, 23 "Thanks for this ... 24 "When completed can you also [forward] 25 details to Sue Lowther as she is leading on 142 1 behalf of Security", which I think is consistent 2 with the email we saw right at the beginning but 3 inconsistent with then Mr Smith saying is that 4 Dave Posnett might be the better option: 5 "Please also send Sue any additional 6 documents or reports pertinent to the specific 7 cases (ie Jason the forensic report from 8 John L's case). 9 "... bullet points will suffice, if more is 10 needed we can supply ..." 11 Then further up the page, Graham Brander 12 replies: 13 "I'm aware of two ongoing cases at West 14 Byfleet (Jon Longman) & Orford Road (Lisa Allen) 15 and also some historical cases ... but as FIs 16 ..." 17 Is that Financial Investigators? 18 A. I presume so, yes. 19 Q. "... we wouldn't have Horizon disputed cases 20 other than those report by the Investigators, 21 who will have far more details on the issues 22 than us. 23 "I've attached an article from an IT 24 magazine which may have brought this issue to 25 the fore in the 1st place and which may of 143 1 interest to Ian." 2 Then page 2, please. At the foot of the 3 page, we see this chain being sent to you: 4 "All, 5 "Further to our discussion earlier today, 6 additional information in the attached pdf 7 article below [which I think is the IT magazine 8 that's referred to]. As part of the wider 9 review it may well be worthwhile understanding 10 the 'outcome' of each of the case studies 11 referenced, where applicable (ie criminal/civil) 12 and that may assist ..." 13 Further up the page -- a little bit further 14 please -- you're copied in on this email of 15 8 March 2010: 16 "As was discussed on the conference call and 17 taking into account Rob's comments, to confirm 18 what we're looking at is a 'general' due 19 diligence exercise on the integrity of Horizon, 20 to confirm our belief in the robustness of the 21 system and thus rebut any challenges." 22 Can you recall discussion at this time about 23 the need to seek a general due diligence 24 exercise, the purpose of which was to confirm 25 the Post Office's belief in the robustness of 144 1 the Horizon system? 2 A. No, I don't recall. 3 Q. Wouldn't you think the better question would be, 4 "We're looking for a due diligence exercise on 5 the integrity of Horizon to see whether it is 6 robust or not" -- 7 A. Yes. 8 Q. -- rather than, "to confirm our pre-existing 9 beliefs"? 10 A. Yes. 11 Q. "The information Security team have looked at 12 the information that has been forwarded to them 13 re the above and it seems that the issues raised 14 are mainly around procedural items and about 15 'Accounting' reconciliation." 16 Then there are some requests. Then over to 17 the first page, please -- scroll up, please, 18 a little bit more -- to Mr King's email: 19 "Rob 20 "Thanks for your time earlier." 21 He copies in Rob Wilson, the Head of 22 Criminal Law in the Post Office: 23 "As discussed, I can confirm we are in no 24 way questioning/investigating the financial 25 integrity of Horizon, or of the accounting 145 1 system as a whole." 2 Can you help us how Mr King came to the view 3 that an independent expert report into the 4 integrity of the Horizon system would be in no 5 way questioning or investigating the financial 6 integrity of Horizon? 7 A. No, I can't comment on what Dave King was 8 thinking. 9 Q. Isn't this redolent of a mindset within the Post 10 Office at this time that "We're not actually 11 looking to find out whether there is something 12 wrong with the system, we only want to hear that 13 there's nothing wrong with the system"? 14 A. That's not how I recall it, no. 15 Q. But why don't we see in a single email it put in 16 that rather neutral and open way? Why are all 17 of the emails written "We want a report that 18 will confirm our existing beliefs that it's 19 robust, we're not going to question or 20 investigate the integrity of Horizon"? Why are 21 they all written the wrong way round? 22 A. I can't explain that. 23 Q. Well, is it because -- is this the simple truth: 24 that they accurately reflect the mindset of the 25 day? 146 1 A. I can't recall. I don't -- I can't recall it 2 being like that, but no. 3 Q. If everyone did have an open mind, wouldn't we 4 see that written across these pages that I keep 5 showing you? 6 A. Yes, I'd say so. 7 Q. Does its absence from any of the pages that 8 we're going to look at and that we have looked 9 at mean that there wasn't that open mind to the 10 possibility of Horizon lacking integrity? 11 A. I don't recall it as that being at the time but, 12 clearly, with hindsight, it shows a different 13 picture. 14 Q. Why does it take hindsight? I'm asking you 15 about contemporaneous material that all seems to 16 point in one direction: a group of people 17 looking to stand the system up, not a group of 18 people with open minds looking genuinely to 19 enquire whether their system works or not. It 20 doesn't take hindsight. This is just 21 a reflection of the values of the day, isn't it, 22 Mr Scott? 23 A. It's not what I recall, no. 24 Q. At this time, that's late February 2010, what 25 did you know about bugs, errors or defects in 147 1 Legacy Horizon, the old Horizon before it became 2 Horizon Online? 3 A. I wasn't aware of any bugs, issues or defects 4 that impacted investigations. 5 Q. Would you agree that, if there were bugs, errors 6 and defects in Horizon, in particular if they 7 affected the integrity and reliability of the 8 financial data produced by Horizon, you should 9 have been aware of them? 10 A. Yes. 11 Q. Were you actually keen to find such information 12 or did you close your eyes to it? 13 A. No, I would always be open to understand whether 14 there's any issues with it and whether anything 15 needed to be examined. 16 Q. By this time, it seems, from the email exchange, 17 there would be a sufficient number of Horizon 18 disputed cases to be able to compile statistics 19 of them. So a number of them, yes? 20 A. (The witness nodded) 21 Q. If that were the case, why had no effort been 22 made previously to compile a clear picture of 23 how often and why the system was challenged by 24 accused subpostmasters? 25 A. I can't explain why it wasn't. 148 1 Q. Again, is that because the principle that 2 operated was 'least said soonest mended'? 3 A. No. 4 Q. Can we turn, please, to POL00106867. Can we 5 start with page 3, please. 6 Just give me a moment to catch up with my 7 hard copy papers. 8 If we scroll down, please. We can see 9 a message from Mr Hayward to a number of senior 10 people at the Post Office, including Rod Ismay, 11 David X Smith and you. 12 A. Yes, I'm cc'd in. 13 Q. Can you help us with some of the others on this 14 distribution list: Rebekah Mantle? 15 A. No. 16 Q. Iain Murphy? 17 A. He was a Senior Security Manager Head of Fraud 18 at the time, I believe. 19 Q. So within your area of responsibility, within 20 your Department? 21 A. Yeah. 22 Q. So we can see this is sent at 5.01 on 23 26 February and this is after the previous 24 message that we had seen Mr Ismay had sent to 25 you and Mandy Talbot, suggesting Deloittes as 149 1 a possibility, yes? 2 He says: 3 "Following our conference call today, below 4 is a brief summary of the agreed key activities 5 to progress the next steps on relations to the 6 above piece of work ..." 7 The heading is "Challenges to Horizon": 8 "AH & MT ..." 9 Can you help us with who "AH" might be in 10 that context: him, Andy Haywood? 11 A. Yes. 12 Q. "... [and Mandy Talbot] to provide SL/DK ..." 13 "SL"? 14 A. I will make a presumption that's Sue Lowther. 15 Q. "DK"? 16 A. Dave King. 17 Q. "... with information on past and present cases 18 with reference to the Horizon Challenges, 19 (Criminal & Civil cases). 20 "(Note: I have asked the fraud team to 21 review [approximately] the past 2-3 years case 22 file although these challenges are of a more 23 recent nature)." 24 Do you know why the review was to be of the 25 past two to 3 years of case files, ie why it was 150 1 limited to about 2007/2008 to 2010 -- 2 A. No, I don't recall. 3 Q. -- rather than going back to when the 4 prosecutions commenced in 2000, in reliance on 5 Horizon? 6 A. No, I don't recall. 7 Q. Presumably -- I mean we will see in a moment 8 your contributions to this chain -- you didn't 9 say at the time "Hold on, haven't we been 10 prosecuting for 10 years on the basis of 11 Horizon? Why are we only looking at two to 12 three years?" Why not? 13 A. I don't recall why. 14 Q. He continues in paragraph 3: 15 "Subject to agreement of 2 above, conduct 16 full investigations into integrity issues, with 17 conclusions/report provided. Once investigated 18 and conclusions drawn, gain external 19 verification to give a level of 'external 20 gravitas' to the response to these challenges 21 (recommend Ernst & Young as most suitable 22 partner to complete this ... [to be advised])." 23 So this was setting out a plan to 24 investigate the challenges to Horizon integrity, 25 yes? 151 1 A. Yes. 2 Q. First, the investigation was going to be 3 an external one, yes, that was the plan? 4 A. Yes. 5 Q. It was going to reach conclusions, yes, and only 6 then was there to be an independent review by 7 someone outside the organisation, potentially 8 Ernst & Young. 9 The witness was nodding, rather than giving 10 an oral verbal answer. 11 Can you, when you wish to give a non-verbal 12 communication -- ie shaking your head, nodding, 13 this morning you put your hands -- up explain 14 what you mean in words so the stenographer can 15 type them into the record, please. 16 Yes, so the question was: the independent 17 investigation was going to reach conclusions and 18 then it was going to be referred to an outside 19 organisation to "give a level of external 20 gravitas" to it? 21 A. Yes. 22 Q. It seems by this stage that Ernst & Young were 23 to be recommended as most suitable, and 24 Mr Ismay's suggestion earlier in the day that 25 Deloittes were going to be contacted has fallen 152 1 by the way side, hasn't it? 2 A. From this, it appears so. 3 Q. Was there sufficient concern within your team to 4 consider that the challenges to Horizon needed 5 to be explored, investigated and then 6 conclusions drawn? 7 A. I don't recall but there's indication here, 8 isn't there? 9 Q. And sufficient concern that any conclusions 10 should be accompanied by a level of external 11 oversight? 12 A. Yes. 13 Q. Given members of your team were acting as 14 Investigators in Horizon cases and as the 15 prosecuting authority for the Post Office, was 16 that something of a significant concern to you? 17 A. I can't recall. 18 Q. Well, help us. Looking at this now, do you 19 think it would be a significant concern to you? 20 A. Yes. 21 Q. It would be important to appreciate whether 22 there were or were not integrity issues with 23 Horizon -- 24 A. Yes. 25 Q. -- both to appreciate whether you could continue 153 1 with existing investigations and prosecutions -- 2 agreed -- 3 A. Yes. 4 Q. -- and to consider whether you may have any 5 duties in respect of cases where convictions had 6 already been secured? 7 A. Yes. 8 Q. Did that independent review ever happen? 9 A. As far as I recall, no. 10 Q. Did the internal investigation that has been 11 mentioned here in the way that's described here 12 ever happen? 13 A. I don't recall. I don't know whether it was 14 conducted or not and I wasn't aware. 15 Q. Are you aware of anyone intervening to prevent 16 it from happening? 17 A. No. 18 Q. Further up the page, please. We see here the 19 end of an email signed off by Dave Posnett, yes? 20 Then if we can go to the foot of page 1, 21 please, to miss out the blank page. We can see 22 at the foot of the page Dave Posnett, I think 23 same distribution list, but I think Rob Wilson 24 has been added now: 25 "All, 154 1 "Can we ensure that Rob Wilson (Head of 2 Criminal Law) is kept appraised of the situation 3 and included in any further meetings/updates ... 4 Our prosecution cases have faced an increase in 5 challenges as well as our civil cases, so the 6 activities outlined below, and indeed going 7 forward, are applicable to both Legal teams." 8 Then if we scroll up to the top of page 1, 9 please. We'll find an email -- thank you -- to 10 a number of people on the distribution list, but 11 you seem to have been excluded; can you see 12 that? 13 A. Yes, I think I was excluded on the one below. 14 Q. If we just scroll down, please. Yes, I think 15 you're right. Dave Posnett has cut you out. 16 Then if we go back to Mr Wilson's reply to Dave 17 Posnett of your team, he, Mr Wilson, says: 18 "If it is thought that there is a difficulty 19 with Horizon then clearly the action set out in 20 your memo is not only needed but imperative. 21 The consequence however will be that to commence 22 or to continue to proceed with any criminal 23 proceedings will be inappropriate. My 24 understanding is that the integrity of Horizon 25 data is sound and it is as a result of this that 155 1 persistent challenges that have been made in 2 court have always failed. These challenges are 3 not new and have been with us since the 4 inception of Horizon as it has always been the 5 only way that Defendants are left to challenge 6 our evidence when they have stolen money or 7 where they need to show that our figures are not 8 correct. 9 "What is being suggested is an internal 10 investigation is conducted. Such 11 an investigation will be disclosable as 12 undermining evidence on the defence in the cases 13 proceeding through the criminal courts. 14 Inevitably the defence will argue that if we are 15 carrying out an investigation we clearly do not 16 have confidence in Horizon and therefore to 17 continue to prosecute will be an abuse of the 18 criminal process. Alternatively we could be 19 asked to stay the proceedings pending the 20 outcome of the investigation, if this were to be 21 adopted the resultant adverse publicity could 22 lead to massive difficulties for POL as it would 23 be seen by the press and media to vindicate the 24 current challenges. The potential impact 25 however is much wider for the Post Office in 156 1 that every office in the country will be seen to 2 be operating a compromised system with untold 3 damage to the Business. Our only real 4 alternative to avoid the adverse publicity will 5 be to offer no evidence on each of our criminal 6 cases. This should mitigate some adverse 7 publicity but is not a total guarantee. 8 "To continue prosecuting alleged offenders 9 knowing that there is an ongoing investigation 10 to determine the veracity of Horizon could also 11 be detrimental to the reputation of my team. If 12 we were to secure convictions in the knowledge 13 that there was an investigation, where the 14 investigation established a difficulty with the 15 system we would be open to criticism and appeal 16 to the Court of Appeal. The Court of Appeal 17 will inevitable be highly critical of any 18 prosecutor's decision to proceed against 19 Defendants in the knowledge there could be 20 an issue with the evidence. 21 "What we really need to do is impress on 22 Fujitsu the importance of fully cooperating in 23 the provision of technical expertise and witness 24 statements to support the criminal and civil 25 litigation now and in the future. 157 1 "Given the nature of the discussions that 2 took place on [26 February] I am staggered I was 3 not invited to take part in the conference." 4 Do you read this as Mr Wilson saying, "If 5 there is a basis to investigate problems, we'd 6 better get on and do it", or is he saying, "If 7 we get on and investigate, we'll be in serious 8 trouble if we do"? 9 A. It does come across like that, yes. 10 Q. The latter? 11 A. Yes. 12 Q. So he wasn't saying there's an imperative to 13 investigate; he's saying, "We simply can't 14 question Horizon because it's got all of these 15 adverse consequences". 16 A. I think it's for Rob Wilson to give his 17 interpretation of what he was trying to say. 18 Q. But, Mr Scott, you had been the subject of 19 a number of discussions and email exchanges 20 about the need to conduct an independent 21 investigation -- 22 A. Mm-hm. 23 Q. -- either by getting in external consultants or 24 by the Post Office itself conducting an internal 25 investigation and sending the conclusions to 158 1 an external body for external gravitas. 2 You must have wanted to know what happened 3 to those two proposals? 4 A. I can't recall. 5 Q. Did you not say, "Hold on, one moment, we were 6 going to investigate the entire basis on which 7 we prosecuted a whole cohort of people, some of 8 whom have gone to prison, and the next minute 9 we're not. What's happened between A and B?" 10 A. I'm sorry, I just can't recall what was 11 happening. 12 Q. You were also responsible for Mr Posnett and 13 Mr Hayward and Mr King, addressees to this 14 email? 15 A. Yes. 16 Q. Did none of them come back to you and say, 17 "Boss, the whole thing has had the brakes put on 18 it because this lawyer has got involved and the 19 lawyer, who is staggered that he wasn't included 20 in an earlier meeting, is now saying 'We can't 21 do this because it might generate adverse 22 publicity to the organisation'"? 23 A. Sorry, I can't recall them coming to me to say 24 that. 25 Q. Would you agree that, objectively, if there was 159 1 any concern about the integrity of Horizon, the 2 right thing to do was to conduct a full inquiry 3 as an imperative? 4 A. Yes, if there was doubt over its integrity, yes. 5 Q. Had that been the plan of the senior team 6 members involved in the earlier telephone 7 conference until Mr Wilson's input? 8 A. That appears to be the case. 9 Q. Was the effect of Mr Wilson's input to shut down 10 any internal or external substantive examination 11 of the integrity of Horizon? 12 A. I can't recall this email because, obviously, 13 I didn't see it so I don't know what the -- he 14 was actually trying to achieve, whether he was 15 actually trying to achieve that or not. 16 Q. But, Mr Scott, we've seen that you were involved 17 in a number of discussions -- 18 A. Yes. 19 Q. -- up until now that were on, if not train 20 tracks, heading in a direction, and, as you've 21 agreed, neither of the things ever happened. 22 Were you not curious at the time why the two 23 alternative plans were not seen through to 24 completion? 25 A. No, sorry, I can't recall. 160 1 Q. Was there a concern, as expressed in this email 2 here, an overriding concern in the Post Office, 3 to avoid adverse publicity for the business? 4 A. I think all businesses want to avoid adverse 5 publicity. 6 Q. Did anyone mention what might be in the other 7 hand, "Adverse publicity, on the one hand, and, 8 on the other, we've prosecuted hundreds of 9 people, many of them have gone to prison. We 10 might have done so on the basis of data that 11 lacked integrity, let's weigh them up"? 12 A. I don't recall such conversations. 13 Q. Was there ever an 'other hand', a "Hold on, 14 there might just be a problem with the integrity 15 of Horizon here. People may have been convicted 16 on the basis of unsound data. We need to do 17 something about it"? 18 A. I can't recall. I'd expect the lawyers to have 19 shouted. 20 Q. The recipients of this email at least would have 21 been aware, because the email says so, that the 22 challenges to Horizon are not new and have been 23 with us since the inception of Horizon. Did you 24 know that: that the challenges to Horizon had 25 been there from the start, right back to 2000? 161 1 A. I don't recall that. 2 Q. When you became Head of Security, did anyone 3 brief you to say, "Look, Boss, we prosecute 4 people on the basis of data that's produced by 5 this system called Horizon. For the past seven 6 years there have been a myriad of complaints 7 about the reliability of the data it produces"? 8 A. I don't recall that. 9 MR BEER: Sir, I wonder if that's an appropriate 10 moment to take the afternoon break. 11 SIR WYN WILLIAMS: Yes, by all means. 12 MR BEER: So 3.15, please. 13 SIR WYN WILLIAMS: Very well. 14 MR BEER: Thank you very much. 15 (2.58 pm) 16 (A short break) 17 (3.15 pm) 18 MR BEER: Good afternoon, sir. Can you see and hear 19 me? 20 SIR WYN WILLIAMS: Yes, I can thank you. 21 MR BEER: Mr Scott, we've seen a series of emails in 22 which various members of the Post Office 23 expressed their confidence in the integrity of 24 Horizon and the data produced by it. If you had 25 been aware, by 2010, that Fujitsu had got 162 1 concerns from the outset, from the national 2 rollout in 1999 to 2000, that the EPOS system, 3 the Electronic Point of Sale system at the start 4 of Horizon, might require a rewrite or a design, 5 might that have impacted upon your confidence? 6 A. If I'd known that, then yes. 7 Q. If you'd been aware of a series of bugs, errors 8 or defects being identified in Horizon, 9 including some which could impact upon 10 discrepancies and balancing, would that have 11 impacted upon your confidence in Horizon? 12 A. If I'd known, yes. 13 Q. Can we turn forwards, please, to POL00120479. 14 Now, if we look at the foot of the page first, 15 we can see Mr Ismay distributing a document 16 called "Horizon Challenges -- draft report", and 17 you're not included on that? 18 A. Yes. 19 Q. If we go up, please, and a bit more, we can see 20 Mr Ismay sending it to a wider collection of 21 people, including Mandy Talbot, Rob Wilson and 22 Sue Lowther. Was anyone in that list within 23 your Department? 24 A. Yes. 25 Q. Other than Sue Lowther? 163 1 A. Yes. 2 Q. Who else? 3 A. Dave Pardoe. 4 Q. Yes, of course. Thank you. Anyone else? 5 A. No. 6 Q. He, Mr Ismay, says: 7 "Dear all -- Latest version incorporating, 8 as best I can manage, all the input you have 9 made." 10 Did you know, in mid-2010, that members of 11 your Department were providing input into 12 a report written by Rod Ismay about Horizon 13 challenges? 14 A. Sorry, I can't recall whether I did. 15 Q. He says: 16 "Thanks for your time and comments in the 17 last couple of days. 18 "This is a complex area and I would value 19 any further comments you have, but realistically 20 [they] have to be by lunch tomorrow [et cetera]. 21 "Regardless of how this document is 22 finalised, there are number of improvement 23 points which we will need to work on together 24 ..." 25 Then this: 164 1 "The priority should probably be to provide 2 any input considered appropriate for closing 3 down the issues that cause Channel 4 to consider 4 this a news item. Also to ensure we're prepared 5 for the next court cases." 6 Now, you're not included on this email but 7 want to ask you about that last paragraph and 8 the sentiments included in it. Did that reflect 9 the prevailing mood in the senior levels of the 10 Post Office at the time, that the priority was 11 to close down any issues that the media 12 considered to be newsworthy? 13 A. On the basis that everyone was being told that 14 the system was robust and reliable, I guess that 15 was one of the areas that they were looking at. 16 Q. What investigation had taken place to establish 17 whether or not the system was reliable? 18 A. I don't know. 19 Q. How were people allowed to convince themselves 20 that the system was reliable, if 21 an investigation hadn't taken place? 22 A. Sorry, I don't know. 23 Q. But, again, did this, what we see written here, 24 to a wide range of people including members of 25 your Department, reflect the culture and values 165 1 of the Post Office at the time, that the 2 priority, the main thing, should be to close 3 down issues that cause, in this case, Channel 4 4 to consider this to be a news item? 5 A. No, I think on the basis that everyone has been 6 told the system is robust and reliable, then 7 that's why they're looking to change challenge 8 the adverse media. 9 Q. To your knowledge, did anyone ever put their 10 hand up and say, "Hold on, actually, the 11 priority is to see if there's a problem with 12 Horizon"? 13 A. I can't recall but there may easily have been. 14 Q. Or "Actually, the priority -- I'm sorry to have 15 to raise this, everyone, the priority is 16 actually to see if we have sent anybody to 17 prison that shouldn't have gone to prison"? 18 A. Mm-hm. No, sorry, I can't recall. 19 Q. "The priority is establish whether anyone 20 innocent has been convicted on the basis of data 21 that's unreliable, that's the priority". Did 22 anyone ever say that, to your knowledge? 23 A. No, I don't recall that. 24 Q. Ever been in a meeting where anyone raised that 25 point? 166 1 A. I can't recall that. 2 Q. Have you seen any email where anyone raised that 3 point, "Our priority should be our postmasters, 4 and whether any innocent men and women have been 5 sent to prison"? 6 A. Sorry, I just can't recall that. 7 Q. Can we move forward to the Ismay report itself, 8 2 August 2010, POL00029475. This is a copy of 9 the Ismay report itself and we can see it's 10 dated 2 August, and you'll see that you're 11 a named recipient of it? 12 A. Yes. 13 Q. Can we go forwards, please, to page 19 and look 14 at the bottom half of the page, "Independent 15 Review and Audit Angles", Mr Ismay says: 16 "[The Post Office] has actively considered 17 the merits of an independent review. This has 18 been purely from the perspective that we believe 19 in Horizon but that a review could help give 20 others the same confidence that we have." 21 To your recollection, was that the frame of 22 reference for any consideration of 23 an independent review -- 24 A. I can't recall. May have been. I can't recall. 25 Q. -- ie we're not actually going to look to see 167 1 whether there's anything wrong with the system; 2 we're only going to look at it because we 3 believe the system is robust, and we need to 4 convince others? 5 A. There was the belief that the system was robust 6 and reliable. 7 Q. He continues: 8 "Our [discussion] between IT, Legal, 9 [Product and Branch Accounting], Security and 10 the Press Office has continued to be that no 11 matter what opinions we obtain, people will 12 still ask 'what if' and the defence will always 13 ask questions that require answers beyond the 14 report. Further such a report would only have 15 merit as at the date of creation and would have 16 to be updated at the point at which Horizon or 17 the numerous component platforms are upgraded." 18 You see it says, "Our [discussion] between", 19 amongst others, Security, did that discussion -- 20 SIR WYN WILLIAMS: Sorry, Mr Beer. It's "decision". 21 MR BEER: Quite right: 22 "Our decision between [amongst others] 23 Security ... has continued to be that no matter 24 what opinions we obtain", et cetera. 25 Was that decision one to which you were 168 1 a party? 2 A. I don't recall. It's most likely I'd have 3 delegated that down to the people involved in 4 the draft report. 5 Q. Were you party to any discussions or 6 decision-making process that the Press Office 7 contributed to? 8 A. Sorry, can you give a bit more clarity on that? 9 Q. Yes. Were you a party to any discussion or 10 decision-making process to which the Press 11 Office was a party? 12 A. Not that I recall. 13 Q. Mr Ismay gives us a reason for not seeking 14 an independent report, that such a report would 15 only have merit as at the date of creation and 16 would have to be updated. Would you agree that 17 that's true of all reports that are seeking to 18 assess the reliability of, for example, 19 a computer system? 20 A. I guess there's an element to that but I'd say 21 that a report wouldn't last -- it has more than 22 just the date of the creation, I'd say. 23 Q. Well, in this case, at 2010, it had the ability 24 to look 10 years backwards, hadn't it? 25 A. (The witness nodded) 169 1 Q. Wouldn't that be a value in itself? 2 A. Yes. 3 Q. So how do you understand the expression of 4 a reason for not getting an independent review, 5 that the report would only have merit at the 6 date of its creation? 7 A. I can't say I could agree with that. 8 Q. But is it a bit worse than that: it's palpably 9 weak as a reason? 10 A. No, I think it doesn't -- doing a review over 11 10 years, that is worthwhile because then you 12 flush everything out. 13 Q. He says: 14 "Ernst & Young and Deloittes are both aware 15 of the issue from the media and we have 16 discussed the pros and cons of reports with 17 them. Both would propose significant caveats 18 and would have limits on their ability to stand 19 in court ... we have not pursued this further." 20 Do you know what the caveats that Ernst & 21 Young and Deloittes said that they would have to 22 make. 23 A. No, sorry, I don't even recall being in any of 24 those conversations. 25 Q. Do you know why external auditors or experts 170 1 would have difficulty in standing in court and 2 speaking to their report? 3 A. No. 4 Q. Over the page, please. 5 "It is also important [says Mr Ismay] to be 6 crystal clear about any review if one were 7 commissioned -- any investigation would need to 8 be disclosed in court. Although we would be 9 doing the review to comfortable others, any 10 perception that [the Post Office] doubts its own 11 systems would mean that all criminal 12 prosecutions would have to be stayed. It would 13 also beg a question for the Court of Appeal over 14 past prosecutions and imprisonments." 15 When you received this report, did you 16 understand that a reason for not getting outside 17 experts in is that a product of their work may 18 have to be disclosed in court proceedings? 19 A. I don't actually recall this document from back 20 then and I think I saw Rob Wilson's name on it, 21 so I think that would have been covered off by 22 Rob Wilson. 23 Q. What do you think of it now, as a reason not to 24 get an independent report, that it might uncover 25 things that you have to disclose in court, as 171 1 a reason for not going and getting 2 an independent expert report? 3 A. It's not. 4 Q. I'm sorry? 5 A. It's not. 6 Q. It's not a good reason, is it? 7 A. No. 8 Q. So when you get this report, presumably you read 9 it? 10 A. Almost certainly, I would have thought so. 11 Q. Wouldn't these things strike you "Hold on, the 12 reasoning here is paper thin for not getting 13 an expert report. Why aren't we doing this"? 14 A. I can't recall, although knowing that Rob 15 Wilson's on the circulation as Head of Criminal 16 Law, I'd have expected him to have responded. 17 Q. Well, indeed, that appears to be a reflection or 18 a summary of the Rob Wilson advice, doesn't it? 19 A. Yes, which I didn't see. I wasn't on that 20 email. 21 Q. The warning shot, "Be careful what you wish for, 22 if you go and get an expert report, you might 23 have to disclose it in criminal proceedings". 24 That's essentially what's being said here. 25 Again, is the absence of any kickback or 172 1 reaction to this by you or, indeed, others 2 symptomatic of the fact that you like what this 3 report said, "We don't need to go and get 4 independent expert evidence, we've got our guy, 5 Rod Ismay, to say that everything is fine, let 6 the caravan move on?" Was that the prevailing 7 attitude at the time? 8 A. Sorry, no, I just don't recall it as that. 9 Q. Can we go back to page 1, please. Halfway down, 10 please, he says: 11 "This paper has been compiled as 12 an objective, internal review ..." 13 Did you know what Mr Ismay's terms of 14 reference were? 15 A. I don't recall and, probably, I wouldn't have 16 known if I've just received that and not been 17 involved in the draft. 18 Q. He has told the Chairman on his oath that his 19 terms of reference were only to look for and to 20 include evidence that supported the integrity of 21 Horizon, to not be objective and not included 22 any material that undermined the integrity of 23 Horizon. Did you know that? 24 A. No. 25 Q. So what did you do with this report when you got 173 1 it? 2 A. I don't recall what I did with the report, to be 3 honest. 4 Q. Did you issue any instructions about the 5 necessity of disclosure of it in any criminal 6 proceedings? 7 A. I don't recall -- 8 Q. Were you aware of any criminal proceedings in 9 which it was disclosed? 10 A. No, I don't recall that. 11 Q. Can we turn to a new topic, please. That can 12 come down. Your role in Horizon integrity 13 cases. Can we turn up paragraphs 20 to 26 of 14 your first witness statement, please. That's 15 WITN08390100. Paragraph 20 starts on page 7. 16 Between paragraphs 20 and 26, you tell us about 17 your role as Head of Security. You tell us in 18 20 there are a range of serious issues that 19 required your attention. 20 In 21 and 22 you tell us about physical 21 threats and attacks on subpostmasters and then, 22 over the page, to paragraph 23, you carry on 23 talking about physical threats. Then on 24, you 24 say that, on taking up the role: 25 "... I brought with me a personal interest 174 1 in information gathering and data/intelligence 2 to identify and drive down losses." 3 You were keen to drive the compilation and 4 analysis of POL information across the security 5 business. Your ethos was one of loss prevention 6 rather than being reactive. That's essentially 7 what you told us first thing this morning? 8 A. Yes. 9 Q. In 25, over the page, please, on page 9, in the 10 third line, you say you commissioned: 11 "... Detica, a subsidiary of BAE Systems to 12 conduct an initial review of [Post Office's] 13 systems with a loss and fraud digitalisation 14 goal in mind." 15 Then over the page at 26, you say: 16 "To summarise, my role as Head of Security 17 was [multifaceted] which, amongst other things, 18 required me to manage sensitive and demanding 19 situations, travel frequently and oversee 20 various large and complex projects." 21 A. Yes. 22 Q. In those paragraphs, you appear to suggest that 23 your knowledge of the day-to-day activities of 24 your staff was limited, would that be right? 25 A. Yes, I operated more strategically and left that 175 1 to the heads of the respective strands. 2 Q. If we go back to page 6, please, you tell us in 3 paragraph 18, second sentence: 4 "I was informed by my predecessor, Tony 5 Marsh, that the Fraud Team was well established, 6 that the investigative framework was effective 7 and running well, and that the investigators 8 were proficient in their role and able to 9 effectively organise and run investigations. 10 That was also my experience." 11 Then about ten lines on: 12 "I was not involved in carrying out or 13 overseeing criminal investigations on 14 a day-to-day basis ..." 15 Then the last line: 16 "To [an extent] the Fraud team ran itself 17 ..." 18 A. Yes. 19 Q. Does it follow that you did not have oversight 20 of and, therefore, no responsibility for the 21 actions of some to of those under your command, 22 who had a part in the prosecution of 23 subpostmasters? 24 A. I was the Head of Security, so overall in 25 charge, but the day-to-day operations was 176 1 managed by the respective heads of the 2 respective strands. 3 Q. So would you put it this way: that, although you 4 might have theoretical accountability for the 5 actions of some of them who were operating under 6 your command, in fact, you'd got no factual 7 responsibility for what they did or failed to 8 do? 9 A. No, overall, as Head of Security, ultimately, it 10 comes up to me if anything gets escalated or 11 reported to me or it's not working in the 12 correct fashion. But the day-to-day management 13 of the operations and the teams was delegated to 14 the heads of the strands. 15 Q. But, as a matter of fact, you didn't have 16 oversight of and responsibility for their 17 actions? 18 A. Not on a day-to-day basis. 19 Q. Was, therefore, the Security Department 20 structured in a way that meant that you had no 21 proper oversight of what they were doing on 22 a day-to-day basis? 23 A. No, I did have formal meetings, one-to-ones, 24 with the heads of -- and if we're talking about 25 the Fraud and Security Operations, so we did 177 1 meet on formal one-to-ones. They'd also have 2 a formal Security lead team meeting on a monthly 3 basis where things were raised, et cetera. 4 Q. If we go forward to page 16 of your witness 5 statement and look at paragraph 43. You say: 6 "The Fraud strand senior management and team 7 leaders were responsible for the conduct of the 8 investigations along with the investigators. As 9 explained in paragraph 18 [which I've just taken 10 you to], I was told by my predecessor that the 11 investigators in the team were experienced and 12 I understood they were well versed in 13 investigative processes. I therefore assume 14 that it would have been the investigators 15 themselves who would decide how a criminal 16 investigation would be conducted, applying the 17 relevant policies as appropriate." 18 Did you ever think to question that or did 19 you proceed on the assumption that you have set 20 out? 21 A. In -- set out? 22 Q. You assumed that everyone was doing things 23 correctly, they were well versed in 24 investigative processes. They would decide how 25 to conduct a criminal investigation and, 178 1 therefore, you didn't involve yourself in it? 2 A. No, so, as I said, I did meet up with the head 3 of the Fraud strand and security operations. 4 I'd meet with lawyers as well and have 5 discussions around the performance and 6 proficiency of the cases and case files and the 7 evidence. I even travelled to Scotland and 8 Northern Ireland once to see our external 9 criminal lawyers and they gave me comfort that 10 all was appropriate and correct. So there was 11 a number of different channels that I was 12 looking at. 13 Q. In his witness statement -- I'll give the 14 reference, no need to bring it up, it's 15 WITN08160100 -- at paragraph 47, Mr Hayward of 16 your department said that he was made aware of 17 issues raised regarding Horizon integrity, 18 although he had no direct involvement in dealing 19 with them: 20 "This was being led by others within the 21 business. With regard to the Security team, 22 updates were provided by the Head of Security, 23 JS, in summary, these being that the Horizon 24 integrity issues were being reviewed. JS also 25 requested that all case files were passed to him 179 1 for personal review." 2 Are you the "JS" that Mr Hayward is 3 referring to there? 4 A. Potentially. What year? 5 Q. Well, he refers to -- I'm not sure if this will 6 be on the system but POL00095547. 7 No, not on the system. I believe it's 2011. 8 He refers to a document in the introduction to 9 that paragraph -- 10 A. Yes. 11 Q. -- and says, "With regard to this document, 12 I say as follows". I believe that's 2011? 13 I think you say in your first witness 14 statement it was only in 2013 and in your second 15 witness statement you say, "I've been shown some 16 more documents", and you think that it was 2012. 17 A. Ah. So that's different, talking about 18 different things -- 19 Q. Okay. 20 A. So if you're talking 2011, I do not recall case 21 files being sent to me, because you'll be 22 talking -- they had 200 or 300 on the go at any 23 one point and I can't recall receiving 200 or 24 300 case files. In terms of 2012/2013 that you 25 just mentioned is around being asked by my line 180 1 manager, Susan Crichton, to take on the role of 2 decision-maker for prosecution, so that would be 3 at some point in 2012, most likely the 4 separation would've triggered that, but 5 I believe now, looking at documents, that would 6 have ceased mid-2013. 7 In terms of all the case papers, in my 8 statement, what I have said is that I initiated 9 then a monthly review meeting for the 10 investigation and prosecution status, which all 11 the cases were reviewed. At that meeting I had 12 Cartwright King solicitors in the meeting as 13 well. 14 Q. So, in summary, then, when did you first take 15 over the responsibility for decision making on 16 whether there should be a prosecution or not? 17 A. So I believe now it's around about 2012. 18 Q. What was the instigation or the reason for you 19 taking that over? 20 A. I can't recall. It may have been the separation 21 of Royal Mail Group. 22 Q. Why would the separation from RMG have 23 necessitated you taking over that function? 24 A. I don't know. I remember speaking to Susan 25 Crichton as to whether we will continue with 181 1 prosecutions or not in separation, because 2 I needed to know whether to -- how to manage the 3 structure of the team and it may have been 4 instigated from that discussion but I can't 5 recall. 6 Q. In your witness statement, if we look at page 6, 7 please, at the foot of the page, page 19, you 8 say: 9 "My remit in respect of investigations did 10 slightly change towards the end of 2013 ..." 11 That's what you've corrected to "2012"? 12 A. Yeah. 13 Q. "... when I was asked by my line manager at the 14 time ... Susan Crichton, to review and sign off 15 on any new investigation files ..." 16 What do you mean by "sign off"? That may 17 give the impression, if you sign off on 18 something, that you are merely endorsing that 19 which has already been decided. 20 A. Well, I obviously am signing to say that we will 21 continue progressing to a prosecution. 22 Q. "We will continue to progress" or "I authorise 23 the institution of criminal proceedings"? 24 A. I guess it will be authorised. 25 Q. Again, it's the language that you've used and, 182 1 appreciating this is 10 years on, did your 2 understanding of your function amount to you 3 signing off on a decision that had already been 4 made by the lawyers? 5 A. I believe so, yes. 6 Q. So to what extent did you review the underlying 7 material? 8 A. I would have reviewed it. If it was case 9 papers, I'd have gone through all the case 10 papers. 11 Q. Sorry, can you just say that again? I missed 12 what you said there? 13 A. Yeah, if the case papers were sent to me, I'd 14 have read all the case papers, including the 15 suspect offender report, the tape summary, any 16 other sort of material and, obviously, the legal 17 advice. 18 Q. Did it always consist of all of that material or 19 sometimes did you just get offender report plus 20 legal advice? 21 A. I can't recall, I think it was generally always 22 more stuff, to be honest. 23 Q. In the course of reviewing those cases for the 24 prosecution, can you recall asking for enquiries 25 to be made or investigations being undertaken, 183 1 in the light of what we've seen happen in 2010 2 and 2011 about Horizon integrity issues, for 3 those questions to be actively considered in the 4 investigations that you were signing off for 5 prosecution? 6 A. I can't recall saying that or doing that. 7 Q. But why not? 8 A. I can't recall whether I did or didn't. 9 Q. You think you might have asked for statements 10 proving the integrity of Horizon? 11 A. On that, most likely not. I don't recall doing 12 that. 13 Q. Can I turn to a separate topic -- that can come 14 down, thank you -- your role in reporting to the 15 board. Did you report to the board? 16 A. I don't recall reporting to the board, RMG or 17 Post Office. 18 Q. Did you report to the Risk and Compliance 19 Committee? 20 A. Yes. 21 Q. What was your understanding of what the Risk and 22 Compliance Committee's function was? 23 A. To provide oversight from a risk and compliance 24 perspective of Post Office. 25 Q. How frequently did you attend upon the Risk and 184 1 Compliance Committee? 2 A. I don't think I was quorum. I believe I was 3 a member and attended as and when. I can't 4 recall. They varied throughout the 10 years, so 5 I can't recall whether they were monthly or 6 quarterly, and that may have changed throughout 7 the 10 years. 8 Q. Can we look, please, at an example of 9 attendance, POL00021422. Thank you. If we can 10 just expand that, the first page is landscape. 11 Thank you. 12 The chairman was Peter Corbett. We can see 13 the attendees, Paula Vennells, you and David 14 Pardoe, Secretariat. Was that the same person 15 that became part of Security? 16 A. Sorry, yes, he was Security. 17 Q. Was he Security at this time? 18 A. Yes. 19 Q. So Security provided the Secretariat function 20 for the Risk and Compliance Committee? 21 A. Looking at that, yes. 22 Q. Can you recall how frequently the Risk and 23 Compliance Committee met? 24 A. No, it would either be monthly or quarterly. 25 Q. I'm sorry? 185 1 A. No, I can't recall exactly but it would either 2 be monthly or quarterly. 3 Q. We haven't got a complete set, I think, of the 4 minutes to be able to see with precision how 5 frequently it met. What would determine whether 6 you attended or not? 7 A. At this particular time? 8 Q. Yes. 9 A. Yes. Um ... 10 Q. So this a year or so into your role? 11 A. I suspect I would be attending them all at that 12 stage. 13 Q. You would expect? 14 A. To be attending them all at that stage. 15 Q. Can we look, as an example, of the kind of 16 contributions you made at page 8, please, and 17 scroll down please. 18 You're recorded as telling the Committee 19 that you planned to see your team lead 20 an initiative on further reducing Crown losses, 21 2008/09, by at least 25 per cent. You were 22 pleased to see that consideration was being 23 given to renewed focus in this area: 24 Keith Woollard ..." 25 Can you remember what his function was? 186 1 A. I think he was Head of Compliance. 2 Q. "... concurred and expanded on option one by 3 saying that this could well see a first quarter 4 'blitz' on the Crown estate." 5 Was this a theme at this time, at 2008, 6 early 2008, to seek to reduce losses from both 7 the Crown estate and from subpostmasters? 8 A. Yes. 9 Q. Was investigation and prosecution, including the 10 use of confiscation proceedings, the means by 11 which that was to be done? 12 A. No. I was taking a very much preventative 13 approach and putting in other mechanisms or 14 programmes in which to drive up compliance. 15 Q. So the "blitz" here is a preventative blitz? 16 A. Yes. 17 Q. Not a prosecution blitz? 18 A. Preventative. 19 Q. How would you preventatively blitz Crown 20 Offices? 21 A. I can't exactly recall but I imagine we would 22 have done analysis to see where recorded losses 23 are happening in the Crowns and there would have 24 been interventions, whether directly training 25 comms, et cetera. 187 1 Q. Can we look, please, at POL00031322. This is 2 a report of the Risk and Compliance Committee 3 from the following year -- or a report, I think, 4 to the Risk and Compliance Committee, of the 5 following year. You can see that, by now, it 6 records the members on the one hand and then 7 other attendees on the other, and you're listed 8 as an "other attendee". Does that mean that, by 9 this time, you weren't a standing member? 10 A. By the looks of this, yes. 11 Q. I just want to pick up a couple of pieces of 12 information given here. Can we look at slide 13 15, please, page 15. This slide gives 14 diagrammatic explanations of "Asset Recovery 15 Against Fraud", the commentary being for all 16 closed cases, the year to date figure is 17 £237,000 recovered against identified losses of 18 £360,000, and the current year to date figure 19 for recoveries is 66 per cent. 20 Then, in the explanation below, it's said 21 that the Security team currently has 56 cases on 22 hand with a total loss of £4.8 million being 23 investigated under the Proceeds of Crime Act. 24 Through the provisions of the Proceeds of Crime 25 Act legislation, the Security team continue to 188 1 robustly restrain identified assets. This has 2 resulted in significant understands being 3 recovered when cases are progressed to 4 confiscation than may otherwise have been 5 dissipated. 6 Then an example is given of a case at 7 Kingston Crown Court, a confiscation order of 8 £43,600 was set, this being the available amount 9 from assets identified, of which £21,500 in cash 10 had been restrained in various bank accounts. 11 The Post Office was awarded the full amount in 12 compensation. A total the benefit from crime 13 figure was set at £99,400. The initial 14 investigation was £73,000. 15 Does this report show that seizing money 16 through confiscation proceedings from 17 subpostmasters and Crown Office agents was still 18 an important element of your investigative and 19 prosecutorial strategy? 20 A. It was an established team that, when I took 21 over, it was a requirement for me to continue 22 but yes, that's what that team was there for, 23 was asset recovery, when someone has been 24 convicted at court. 25 Q. The figures there in that last case, a total 189 1 benefit from crime figure was £99,000 but the 2 loss was only £73,000. 3 A. Yes. 4 Q. Was that quite common, that the benefit from 5 crime figure was assessed to be greater than the 6 amount that the Post Office had lost? 7 A. Obviously, I can see that there. So I did have 8 an escalation in regards to an increase. Went 9 and reviewed it with the FIU team, found that 10 they had added a calculation that was more than 11 a loss and, at that point, I put in 12 an instruction to say that you only claim what 13 was actually stolen and proven at court. 14 Q. Was the Risk and Compliance Committee your route 15 as the Head of the Security team, into reporting 16 issues into the board, essentially? 17 A. Essentially, that's where I reported into. 18 Whether that went into the board or ExCo, I'm 19 not too sure which way it went. 20 Q. Who was your direct report, as Head of Security? 21 To whom did you report directly? 22 A. So, over the period, it was Ric Francis, Mike 23 Young, Susan Crichton, Chris Aujard, Jane 24 McLeod. 25 Q. So for a period it was General Counsel? 190 1 A. From around about 2010/2011 until I left the 2 Post Office. 3 Q. Thank you very much. If you just give me one 4 moment, I'll just check my notes. 5 Yes, one set of last questions, please. If 6 we can turn up page 73 of your witness 7 statement, which is on page 26. You say in 8 paragraph 73, at the foot of the page: 9 "The Inquiry has asked me to consider the 10 following policies and explain my role in their 11 development ..." 12 You then list 13 policies that we asked you 13 to look at. You say: 14 "I do not recall these policies and had no 15 role in their development, including those that 16 list me as an owner or assurer, such as 17 POL00030580. Any policies on prosecution would 18 have been decided by RMG prior to separation, 19 and post separation by the POL Board and the 20 Legal Team." 21 Can we just look at one of those, I'm not 22 going to go through all 13. The one that you 23 list, POL00030580. This is a policy of April 24 2010. So it's three years after you took up the 25 role as Head of Security. It's about fraud 191 1 investigation and prosecution. Can you see that 2 it says the owner of the policy is you? 3 A. Yes. 4 Q. If we scroll down, please, it says the assurance 5 of the policy was given by you, yes? 6 A. Well, it's not dated. 7 Q. In what respect is it not dated? 8 A. As in me actually saying it's assured and dated 9 as and when I did it. 10 Q. I see, so on the right-hand column? 11 A. Yes, and also, I'm not too sure I'd have been 12 able to sign it off, because Royal Mail Group 13 was the group parent and it's their prosecution 14 policy that was the overarching one. 15 Q. Would you make the similar comment for it being 16 authorised by you? 17 A. Err -- 18 Q. The sentence underneath -- 19 A. Yes. 20 Q. -- "Authorised, Head of Security -- Post Office 21 Limited"? 22 A. Yes. 23 Q. So, essentially, you're being verballed up on 24 this policy here, aren't you? It's being said 25 that you own it, you assured it and you 192 1 authorised it? 2 A. I can't recall it and I can't recall seeing it 3 before. So I'm not too sure what its existence 4 is there for. 5 Q. If I showed you a number of other policies where 6 you're the owner, you gave assurance, you'd say 7 the same thing, would you? 8 A. Some of them, I can see, have been -- my name 9 put on as for the seniority of the head of, but 10 I wasn't into policy writing. That would be 11 someone else. 12 Q. Was it common practice within the Post Office to 13 list the wrong person as being the owner of 14 a policy, the wrong person for assuring 15 a policy, and the wrong person for authorising 16 a policy? 17 A. No, I'm not -- well, I don't recall this because 18 there's no date and I'm not too sure I would 19 have signed it off because it's a Royal Mail 20 Group overarching prosecution policy. Post 21 Office couldn't have its own prosecution policy. 22 Q. So whoever has written this has wrongly included 23 your name? There should be one or two or three 24 different names on here? 25 A. Well, it shouldn't have been written because the 193 1 Royal Mail Group prosecution policy should have 2 been in existence. But, potentially, yes. 3 Q. Again, was that a common thing, that people who 4 owned policies were not listed on them, but the 5 wrong person was? 6 A. Not that I recall. I mean, if this still in 7 draft, then it's not gone to live. 8 Q. You say this is still in draft. 9 A. It may be because there's no date. 10 Q. So, in order to show that this was a policy that 11 was extant, you would want, in that right-hand 12 column, would you, two dates against "Assurance" 13 and "Authorised"? 14 A. In principle, yes. 15 Q. You say in principle, do you mean, actually, 16 yes? 17 A. Yes. 18 Q. So does it follow that we shouldn't rely on any 19 policy as being that of the Post Office, unless 20 it has got a date against all relevant boxes of 21 owner assurance and authorisation? 22 A. It gives more evidence to say that, actually, 23 it's been approved, it's been assured and it has 24 therefore gone live. Without a date, it puts it 25 into doubt. 194 1 MR BEER: Yes, thank you very much, Mr Scott. 2 I think there's one set of questions from 3 the Hodge Jones & Allen representative, sir. 4 SIR WYN WILLIAMS: All right. 5 Questioned by MS PAGE 6 MS PAGE: Thank you, sir. 7 Mr Scott, I represent a group of 8 subpostmasters -- 9 Hello, I represent a group of 10 subpostmasters, including Seema Misra. You were 11 taken to an email earlier on, just to help us 12 with the questions on it and to ask some other 13 questions on it, I'll ask that it's brought up. 14 It's POL00119858. If we can go down to the 15 final paragraph in that email and refresh your 16 memory of it, it says: 17 "I found out today ..." 18 This was the email from Rod Ismay, which was 19 dealing with whether there should be 20 an independent report on Horizon in 2010. But 21 he also says here at the end: 22 "I found out today that Carole Cross in my 23 team and Jon Longman from yours ... are in court 24 soon for West Byfleet ... This, apparently, is 25 an office who as part of their defence is 195 1 challenging the integrity of Horizon." 2 So that raises the trial that was -- became 3 quite well known and you're obviously finding 4 out about it here in mid-2010, yes? 5 Did you know anything about it before then? 6 A. No, I don't recall and he's obviously only 7 mentioned it by the Post Office name. 8 Q. Yes. Well, he goes on to say -- after asking 9 Mandy whether she's involved, he says: 10 "I think we need to be clear about all live 11 cases so that we ensure that the same consistent 12 robust response throughout and based on the 13 sensible principles of Dave's email", et cetera. 14 So, in other words, he's suggesting that the 15 three of you -- the three of you in this email 16 chain -- need to be clear about all live cases 17 from this point forward, yes? 18 A. That's what he's indicating. 19 Q. So you will have -- you, Mr Ismay and Ms Talbot, 20 will have kept a bit of watching brief 21 thereafter on that case; is that a fair 22 assumption? 23 A. I don't recall. It's not necessarily the case, 24 just because someone wrote me an email and said 25 that's what they're doing. 196 1 Q. So are you saying that you don't remember the 2 West Byfleet trial, the Seema Misra trial? 3 A. I don't particularly recall it when it's 4 obviously come out over the last couple of 5 years. So it didn't trigger anything, I don't 6 recall it. 7 Q. So when he suggests that the three of you need 8 to keep an eye on all live cases, you just 9 ignored that, did you? 10 A. No, we obviously must keep a look on all live 11 cases but I don't recall looking out for this 12 particular one on its own. 13 Q. Even in the context of the fact that the 14 challenge to the integrity of Horizon was the 15 key theme in that case? 16 A. Sorry, I don't recall. 17 Q. All right. Well, let's take that document down, 18 then, and look at the next one, which is the 19 only other one I'm going to show you. It's 20 FUJ00155516. If we just go down to the end of 21 this two-page chain, we can see this is an email 22 from someone called Tom Lillywhite and he's at 23 Fujitsu, yes? 24 A. Yes. 25 Q. Is that a name that rings a bell or not 197 1 particularly? 2 A. No. 3 Q. Well, if we go up, just to the top of this 4 email, we can see that he's sent you this email 5 on 14 September 2010 and he's copied in two 6 others. He says: 7 "John, 8 "The email text I promised, following our 9 telephone call ..." 10 So evidently the two of you have spoken just 11 prior to him sending this message, yes? Does 12 that make sense to you? 13 A. Yes. 14 Q. He says this: 15 "Our RMG Account Fraud and Litigation 16 Service are currently acting on an ARQ [and he 17 gives a reference]. This request for 18 transaction records which covers March 2010, is 19 in respect to an outlet (Derby) which is already 20 migrated to HNG-X." 21 He says: 22 "Because of number of technical issues 23 (errors detected) that arose during migration up 24 to June 2010, and which POL technical 25 specialists are aware of, the information 198 1 gathered in respect of this particular ARQ may 2 be subject to issues of integrity. Our 3 technical staff have investigated the record in 4 question and, at this stage, although they 5 report that there is no obvious evidence of 6 suspicious behaviour, they can add nothing 7 further with any certainty and they do not have 8 the ability to determine if there really are any 9 financial implications with the messages. In 10 other words, any response from us would have to 11 bear the health warning that there was no 12 guarantee as to the integrity of the data 13 provided by us. 14 "The issue is of particular relevance in 15 light of the fact that provision of an ARQ could 16 result in a request for a Statement of Witness 17 to support litigation activity. As such, any 18 Statement of Witness provided would, in real 19 terms, have to reflect this." 20 So let's just be clear about what he's 21 saying there. He's saying that an ARQ request 22 has come through for a particular outlet, that 23 is Derby. An ARQ request is evidently one where 24 somebody in your team, the Security team, have 25 asked for data from the branch, yes? 199 1 A. I presume so, yes. 2 Q. What he's saying is that, because of a known 3 issue they can't say that that data has any 4 integrity, yes? So there is a known issue about 5 Horizon data integrity -- 6 A. On that particular one, yes. 7 Q. -- and he's alerting you to it, yes? 8 A. Yes. 9 Q. If we go further up, we can see your response. 10 On 18 September you respond, and say: 11 "Tom. 12 "Thank you for your telephone call and email 13 in regards to the matter below. 14 "Just to let you know the outcome, the ARQ 15 was raised due to a key entry discrepancy in 16 a customer deposit. There is no investigation 17 in this matter and will therefore not be used in 18 Court. 19 "I would also be grateful if you could 20 advise if there are any other ARQs at risk." 21 If we scroll up, we can see that seems to be 22 pretty much the end of the matter, as far as you 23 are concerned. 24 What you don't say is "You've alerted my 25 attention to a known Horizon data integrity 200 1 issue", do you? 2 A. No, not that I can see. 3 Q. This is in September 2010. This is just after 4 you had received the Rod Ismay August 2010 5 report, which claimed that there were no Horizon 6 integrity issues. Do you see anything 7 problematic about your response, Mr Scott? 8 A. I can see that it was a known technical issue. 9 It was known. They went to the root cause to 10 understand it and, therefore, from my 11 perspective looking at that, it's an isolated 12 issue that was known, root caused and resolved. 13 Q. What led you to think it was a known, root 14 caused issue? 15 A. From the -- well, it says it's a technical 16 issue -- 17 Q. Yes. 18 A. -- from what I've seen there. 19 Q. Yes. 20 A. I mean, I've literally only just seen this. 21 I don't recall seeing this document before. 22 Q. There's nothing in it that suggests that this is 23 a limited issue or that it's only related to 24 this branch. It's a known issue and you haven't 25 raised it, have you, with Mr Ismay, who has just 201 1 written a report on the integrity of Horizon? 2 A. I don't recall whether I have or not. 3 Q. You haven't raised it with the Seema Misra 4 defence team who were, at that very time, 5 conducting a defence which raised the issue of 6 the integrity of Horizon? 7 A. Sorry, I don't recall. 8 Q. Do you wish to take any share of responsibility 9 for the fact that your team -- you, in 10 particular -- knew about a Horizon data 11 integrity issue in the month before Seema Misra 12 was tried and convicted? Do you wish to take 13 any responsibility for the failure to disclose 14 that to her team? 15 A. I can see it. I don't know whether I did 16 disclose it or not or forward it on. If 17 I should have done, my apologies, but I don't 18 know whether I did or didn't. I just can't 19 recall. 20 MS PAGE: Thank you. Those are my questions. 21 SIR WYN WILLIAMS: Thank you, Ms Page. 22 So is that it, Mr Beer? 23 MR BEER: Yes, it is, sir. 24 SIR WYN WILLIAMS: Well, thank you for your witness 25 statement, and thank you for coming to give oral 202 1 evidence and answering a good many questions. 2 THE WITNESS: Can I just confirm I'm released and 3 I can speak to my lawyers? 4 SIR WYN WILLIAMS: Yes. 5 MR BEER: Yes, that's right. Thank you very much. 6 SIR WYN WILLIAMS: So we start again at 10.00, 7 Mr Beer, yes? 8 MR BEER: Yes. Rob Wilson. 9 SIR WYN WILLIAMS: All right. Thank you very much. 10 (4.14 pm) 11 (The hearing adjourned until 10.00 am 12 the following day) 13 14 15 16 17 18 19 20 21 22 23 24 25 203 I N D E X JOHN MICHAEL SCOTT (sworn) ....................1 Questioned by MR BEER .........................1 Questioned by MS PAGE .......................195 204