1 Thursday, 12 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: May I call Robert Wilson, please. 7 SIR WYN WILLIAMS: Yes. 8 ROBERT GEORGE WILSON (sworn) 9 Questioned by MR BEER 10 MR BEER: Good morning, Mr Wilson. As you know, my 11 name is Jason Beer and I ask questions on behalf 12 of the Inquiry. Can you give us your full name, 13 please? 14 A. Do you wish me to stand? 15 Q. No, you can remain seated. Please do. 16 A. Robert George Wilson. 17 Q. Thank you very much for coming to give evidence 18 to the Inquiry today and for the provision 19 previously of a witness statement. Before I ask 20 you questions about that witness statement and 21 indeed other questions, the Chairman, I think, 22 will deliver a warning. 23 SIR WYN WILLIAMS: Good morning, Mr Wilson, you're 24 giving evidence today and my understanding is 25 that you will, in all probability, return to 1 1 give evidence on a separate occasion before 2 Christmas. So what I'm about to say relates to 3 both those occasions. You're probably aware, 4 given that you're a solicitor, that a witness at 5 a public inquiry has the right to decline to 6 answer questions put to him by Counsel to the 7 Inquiry by any other recognised legal 8 representative, or indeed by me, if there is 9 a risk that the answers to those questions will 10 incriminate the witness. This legal principle 11 is known in shorthand form as the privilege 12 against self-incrimination. 13 Mr Wilson, I've decided that fairness 14 demands that I remind you of that privilege 15 before you begin your evidence. I should also 16 say, however, that it is for you to make clear 17 to me in respect of any questions put to you 18 that it is your wish to rely upon the privilege, 19 if that is indeed your wish. If, therefore, 20 questions are put to you by any of the lawyers 21 who ask questions, or by me, which you do not 22 wish to answer, on the ground that to answer 23 such questions might incriminate you, you must 24 tell me immediately after such question is put. 25 At that point, I will consider your 2 1 objection to answering the question and 2 thereafter rule upon whether your objection 3 should be upheld. 4 I understand from Mr Beer that you have 5 received legal assistance in respect of giving 6 evidence to the Inquiry but that you are not 7 represented at the Inquiry today. 8 I don't anticipate that that will prove to 9 be a problem but, if I am wrong in that 10 anticipation and at any stage during your 11 questioning you ask my permission to seek advice 12 from a lawyer, I will consider what you have to 13 say about it at that point and make a decision. 14 Do you understand everything that I've said, 15 Mr Wilson? 16 A. Yes, sir. 17 SIR WYN WILLIAMS: Thank you. 18 All right, carry on then, please, Mr Beer. 19 MR BEER: Thank you. 20 Mr Wilson, you should have in front of you 21 a hard copy of a witness statement in your name, 22 dated 11 May 2023. 23 A. Yes. 24 Q. I think there are three corrections that you 25 would like to make to it. 3 1 A. Yes. 2 Q. If we can display on it so everyone can see, 3 WITN04210100. I think the first correction that 4 you wish to make is on page 21 at paragraph 44. 5 A. Yes, that's correct. 6 Q. You'll see in the second line there's a sentence 7 that begins "Having conducted previous trials 8 counsel". 9 A. I think it's "When the Horizon IT System". 10 Q. Yes, so if we scroll down, so it's the second 11 line: 12 "When the Horizon IT System was first 13 implemented, I instructed senior counsel who had 14 undertaken a number of prosecutions ... to 15 provide an advice for the [Criminal Law Team]. 16 I understand it included specific wording to 17 cover the production of computer records ... and 18 wording to cover the production of business 19 records ... Counsel instructed had also received 20 training on a computer terminal that would be 21 used by [subpostmasters], counter clerks and 22 staff conducting transactions with members of 23 the public. I cannot now recall the full extent 24 of the advice prepared by counsel but recall 25 that it was a detailed advice." 4 1 Do you wish to delete the entirety of -- 2 A. I do. 3 Q. -- the sentences that I've just read? 4 A. Yes, I do. 5 Q. So from the words "When the Horizon IT System 6 was first implemented" all the way down to 7 "detailed advice"? 8 A. Yes, please. 9 Q. Secondly if we turn, please, all the way down to 10 page 24 and it's paragraph 52 at the top, you 11 say: 12 "The CLT did not prepare a generic witness 13 statement for expert witnesses. I cannot recall 14 comparing witness statements generated by anyone 15 at [the Post Office] or Fujitsu for use in 16 criminal cases ..." 17 Do you wish to delete the remainder of the 18 sentence from "so am unable"? 19 A. Yes, that's correct. 20 Q. To the end of the sentence? 21 A. Yes. 22 Q. Then, thirdly, please, on page 30 at 23 paragraph 72 -- if we just scroll up a bit so we 24 can get the context, please, a little bit 25 further -- you're dealing here in paragraph 71 5 1 and 72 with an email that Mr Simpson sent to you 2 in October 2010. In paragraph 72, you say: 3 "I do not know what the issue was that had 4 been reported by Fujitsu and concerned 5 Mr Simpson." 6 Do you now wish to delete those words in 7 that paragraph? 8 A. I do. 9 Q. The entirety of paragraph 72? 10 A. Yes, I do. 11 Q. With those three amendments, are the contents of 12 the witness statement true to the best of your 13 knowledge and belief? 14 A. Yes. 15 Q. As the Chairman has said, I am only going to be 16 asking you a limited number of questions 17 relating to Phase 4 of the Inquiry today, 18 because you're coming back on 12 December, 19 kindly, to give us evidence on some case 20 studies -- 21 A. Yes. 22 Q. -- that we're conducting and three, in 23 particular, in which you were involved. I'm not 24 going to ask you about the detail of any of 25 those three case studies today. 6 1 Just before we get into the detail, can we 2 go back to page 21, please, of your witness 3 statement. The passage that is highlighted, 4 could you explain to us just in general terms, 5 please, why you now wish for that to be deleted 6 from your signed witness statement? 7 A. Yes. I changed representation -- 8 Q. Stop there. If you can give the answer in a way 9 that does not involve telling us about 10 communications between you and your lawyers, 11 that may be preferable. It's a matter for you 12 whether you include in your answer any reference 13 to such communications. But if you do refer to 14 such communications, there's a chance that you 15 waive privilege over those communications and 16 other communications. So just be aware that, 17 when giving the explanation, it may not be 18 necessary for you to involve communications with 19 the lawyers. 20 A. Basically, I recently reread my statement and, 21 for some reason, I don't know why, but it 22 suddenly occurred to me that, in fact, I wasn't 23 in charge at the time Horizon was implemented. 24 The reason I was specific about counsel and 25 named counsel to the inquiry is because he was 7 1 someone who, on a regular basis, almost 2 exclusively gave me written advice which was 3 thorough and I worked with him on a number of 4 issues. 5 Q. What was his name? 6 A. Stephen John. 7 Q. Sorry, carry on. 8 A. And that's why I was so specific about who -- 9 counsel and, so far as the other details that 10 are in there, I had a picture in my brain of 11 what the advice looked like but it was 12 a completely false picture and I don't know why 13 I believed that I was in charge at the time, and 14 it was only when I reread the statement 15 recently. 16 Q. In the fourth line there, you say: 17 "I understand that it included specific 18 wording to cover the production of computer 19 records." 20 The "it" being counsel's advice? 21 A. Yes. 22 Q. You used the words "I understand". From where 23 did you get that understanding when you were 24 writing the statement? 25 A. From -- I had a picture in my brain of that 8 1 piece of evidence. 2 Q. The words "I understand" may suggest that you 3 had been told the information by somebody else, 4 rather than "I recall that it included", 5 "I believe that it included" or even "It 6 included"? 7 A. No, nobody told me. 8 Q. Why did you use the words "I understand"? 9 A. Loose terminology. I don't know why I used the 10 words. 11 Q. At the end of the paragraph, you say: 12 "Counsel instructed had ... received 13 training on a computer terminal that would be 14 used by [subpostmasters and others]." 15 Is that in fact true? 16 A. Yes, that -- 17 Q. So that did apply to Mr John? 18 A. Yes, it did. 19 Q. You said the reason that you recently recalled 20 that you had not commissioned this advice was 21 that you realised that you were not in charge 22 when the Horizon IT System was first 23 implemented -- 24 A. Yes. 25 Q. -- ie about 1999/2000? 9 1 A. Yes. 2 Q. Would you have needed to have been in charge in 3 order to have instructed counsel to provide 4 an advice? 5 A. Not necessarily, no. 6 Q. Why did your memory of you not being in charge 7 prompt you to wish to delete this paragraph, 8 then? 9 A. Because when I realised when I'd rejoined the 10 team in 2002, in May of that year, I realised 11 that I wasn't in charge at the time. 12 Q. But why would not being in charge mean that you, 13 as a "mere", in inverted comma, member of the 14 team could not nonetheless commission advice? 15 A. I don't think I was asked to do that -- 16 undertake that task. 17 Q. It's quite a detailed recollection that you 18 include here, albeit it ends with the words: 19 "I cannot ... recall the full extent of the 20 advice ..." 21 A. Yes. 22 Q. Have you received any information from anyone 23 that the Inquiry has searched for a copy of that 24 advice, and -- 25 A. No. 10 1 Q. -- has asked the Post Office to search for 2 a copy of the advice and there has been a nil 3 return? 4 A. No. 5 Q. That hasn't played any part in your decision to 6 wish to delete this part of the paragraph? 7 A. No. 8 Q. Thank you. Can we move on to page 24, please. 9 It's the words from "so am unable to say 10 whether a generic statement had been developed 11 either by POL or Fujitsu for their witnesses", 12 that you wanted to delete. 13 A. Yes. 14 Q. I think the explanation may be more 15 straightforward in this respect. Can you just 16 explain why you wish to delete that? 17 A. I received an additional bundle about a week ago 18 and in the additional bundle was a generic 19 statement. 20 Q. So a generic witness statement for witnesses 21 giving evidence, which we're going to look at 22 later today -- 23 A. Yes. 24 Q. -- you've now seen that and so you realise that 25 that what was said there is incorrect? 11 1 A. Yes, that's right. 2 Q. Does the same go for the third correction? 3 A. It does. 4 Q. The later provision of documents showed that 5 your memory was incorrect? 6 A. Exactly. 7 Q. Thank you. 8 Can I start, please, with your career, 9 qualifications and experience. I think you're 10 a solicitor, is this right, having qualified in 11 October 1980? 12 A. That's correct, yes. 13 Q. So that means that when addressing the events 14 with which we're concerned, between the 15 introduction of Horizon in 2000 and you moving 16 over to the Royal Mail Group in April 2012, you 17 would have had between 20 and 32 years' 18 post-qualification experience? 19 A. Yes. 20 Q. Before you joined the Post Office in mid-1986, 21 I think you had previously worked for a short 22 period of time as a court clerk in the 23 Magistrates Court; is that right? 24 A. That's correct. 25 Q. You then worked as a prosecuting solicitor for 12 1 the Northumbria Police; is that right? 2 A. I did, yes. 3 Q. Is that before the advent of the Crown 4 Prosecution Service? 5 A. Yes, I transferred across into the CPS from 6 Northumbria Police. 7 Q. That's when the prosecuting responsibility used 8 to fall to, essentially, the county solicitors? 9 A. Yes. 10 Q. Then was it 1985, upon the creation of the CPS, 11 that you moved across? 12 A. To Post Office Limited? 13 Q. No, from Northumbria Police -- 14 A. Oh, yes. 15 Q. -- to the Crown Prosecution Service? 16 A. Yes, it was a TUPE transfer. 17 Q. Then, as you said, in mid '86, you moved across 18 to the Post Office? 19 A. That's correct, yes. 20 Q. Can you explain in summary form, please, the 21 nature of the regulatory obligations of 22 an in-house solicitor, as you understand them? 23 A. My duties? 24 Q. Yes. 25 A. My principal duty was to run the prosecution 13 1 team and ensure that the prosecutions were 2 properly dealt with in accordance with the 3 legislation that applied and our prosecution 4 policy. I was responsible for managing 5 agents -- because we had agents throughout the 6 country and counsel throughout the country and 7 Wales. So I needed to understand how to brief 8 them and inform them of what was -- we were 9 doing. I had a team -- 10 Q. Mr Wilson, sorry to interrupt you. My question 11 was pitched at a slightly higher level than in 12 the job that you, in fact, were doing from 13 mid-'86 onwards what were your responsibilities? 14 I was asking what was your understanding of the 15 regulatory obligations, the duties of 16 an in-house solicitor were at that time? 17 A. Well, my duties were to ensure that we properly 18 prosecuted on behalf of Royal Mail, in 19 accordance with the legislation and in 20 accordance with the Code for Crown Prosecutors 21 when that came out in 1986, so, additionally, 22 the prosecution policy, that we'd adhered to the 23 rules and regulations that we'd prescribed for 24 ourselves in terms of prosecuting offenders. 25 Q. Can you please give us your understanding of 14 1 your professional duties as a solicitor and how 2 they sat with your duties to your employer as 3 an in-house solicitor? 4 A. My duties as a solicitor were to be independent 5 and objective in terms of prosecuting offenders, 6 which I felt that I was, throughout the -- 7 throughout my employment with Post Office and 8 Royal Mail. 9 Q. Did you understand those duties to include 10 an obligation or a duty owed to the court as 11 an officer of the court? 12 A. Yes. 13 Q. Some research published by the Solicitors 14 Regulation Authority has suggested that some 15 in-house solicitors may have not had the support 16 and internal controls within their organisations 17 to maintain their independence and that this may 18 be particularly risky where the commercial 19 interests of the organisation are not in 20 alignment with the solicitor's regulatory 21 obligations. 22 When you worked as an in-house solicitor for 23 the Post Office between 1986 and 2012, did you 24 ever believe that you lacked the support and 25 internal controls that were necessary to 15 1 maintain your independence? 2 A. No, I didn't. I was never under any pressure 3 from any individual within the Post Office or 4 indeed any team within the Post Office to do -- 5 take any action that I was not happy with. 6 Q. Did you ever feel that your independence was at 7 risk, where the commercial interests of the Post 8 Office were not in alignment with the -- your 9 regulatory obligations? 10 A. No, I never felt that at all. 11 Q. In this period did you understand that you were 12 required to comply with the Code of Conduct for 13 solicitors and the principles issued under it 14 and with the predecessor equivalents of the Code 15 and those principles? 16 A. Yes, I did. 17 Q. Did you understand that at all times that 18 included a duty to act with independence and 19 that included to act with independence from your 20 client? 21 A. Yes, I understood that and I never felt under 22 pressure at any stage during my career to act 23 other than independently. 24 Q. Were there any policies, protocols or guidance 25 in place during your extensive period in office 16 1 that were designed to protect the independence 2 of in-house solicitors and in-house counsel in 3 your team at the Post Office? 4 A. No, not that I recall. 5 Q. Why not? 6 A. Why not? That's a good question. I never felt 7 under any pressure to do anything whilst I was 8 a solicitor. I had -- we had contact with the 9 Law Society and I don't know why we didn't do it 10 but there were no rules or protocols in place, 11 that I can recall. 12 Q. Looking back, do you think that would have been 13 a good idea, in particular for maybe lawyers 14 less senior in the organisation than you, that 15 explained to them the nature of their duties and 16 how that was going to be carried into effect on 17 the ground in the Post Office? 18 A. It would have been a good idea but, at the time, 19 I never thought it was necessary. I didn't 20 think that we were ever -- either myself or my 21 team were under any pressure from any department 22 within Post Office Limited to take action or not 23 to take action if we didn't wholeheartedly agree 24 with that course of action. 25 Q. So in 1986 you moved into the Criminal Law Team 17 1 in the Post Office -- 2 A. I did. 3 Q. -- and I think you stayed there for 26 years -- 4 A. I -- I don't know. Probably. 5 Q. -- until -- I think 1986 until April 2012 -- 6 A. Yes. 7 Q. -- is 26 years. 8 A. Right. 9 Q. You prosecuted Horizon-based cases, ie cases 10 that relied on data produced from the Horizon 11 system, from the year 2000 onwards; is that 12 right? 13 A. I think even before that. I think in 1999 14 Horizon came in, didn't it? 15 Q. Well, there was a rollout in 1999 and so some 16 sub post offices will, in a staged process, have 17 been given the equipment and asked to operate it 18 before 2000. 19 A. Right. 20 Q. So you recall prosecuting cases in 1999 based on 21 Horizon data, do you? 22 A. Well, there was always a time lag between 23 investigating an offence and -- 24 Q. A suspected offence, presumably? 25 A. -- a suspected offence, and then actually 18 1 issuing summonses. So there was always a time 2 lag so some of the cases that we first 3 prosecuted under Horizon must have come in, 4 I guess, in 2001/2002. 5 Q. I was going to ask you how long, following the 6 rollout after Horizon, did the Post Office wait 7 before it started to prosecute its 8 subpostmasters? 9 A. I don't know the answer to that one. But I know 10 that pension allowance order fraud, which was 11 the big fraud prior to Horizon, continued until 12 2005 and I understand some of those cases must 13 have had evidence from the Horizon system. 14 Q. What, if anything, were the Criminal Law Team 15 told about the reliability and accuracy of data 16 produced by the Horizon system during the 17 national rollout period in 1999/2000? 18 A. I really can't remember. I imagine we were told 19 something but I can't remember. But it must 20 have been that the system was viable and 21 appropriate. 22 Q. Can you recall whether enquiries were actively 23 made by you and your team of Post Office 24 departments in that regard, "We've got a new 25 computer system it's producing data, we're 19 1 founding our charges on the basis of this data. 2 Can you tell us whether the system is reliable, 3 please"? 4 A. Well, that request would have gone via the 5 Investigators to obtain evidence from the 6 Fujitsu people who were producing the evidence 7 and would have appeared in their individual 8 statements. 9 Q. Right from the start? 10 A. I imagine so, yes. 11 Q. You would expect it to be a necessary element of 12 an investigation to establish the reliability of 13 the data upon which an investigation and then 14 potentially a prosecution was founded? 15 A. Yes, I would. 16 Q. Why would you think it simply just to be 17 an ordinary, necessary part of the 18 investigation? 19 A. Well, because if they couldn't establish that 20 the system was working properly, then the 21 evidence had no value. 22 Q. So reliability of the data was a fundamental or 23 essential part of any investigation founded upon 24 such data? 25 A. Absolutely. 20 1 Q. To your knowledge, was your team made aware of 2 the high severity Acceptance Incident known by 3 number 376, which concerned discrepancies and 4 lost transactions, in the course of the national 5 rollout? 6 A. I don't recall that at all. 7 Q. Do you remember something called Acceptance 8 Incidents? 9 A. No. 10 Q. Do you recall that, as part of the contractual 11 arrangements between the Post Office and 12 Fujitsu, there were a series of criteria that 13 had to be met before, essentially, the system 14 was permitted to go live across the national 15 estate -- 16 A. No. 17 Q. -- and that incidents -- Acceptance Incidents, 18 as they were called -- were raised if there were 19 problems; do you recall that? 20 A. No, I don't recall that at all. 21 Q. And that there were a series of those that 22 concerned the integrity of the data that Horizon 23 was producing? 24 A. No, I don't recall. 25 Q. Similarly, would it be right, therefore, that 21 1 you don't recall the team being made aware of 2 High Severity Acceptance Incident 218, which was 3 about a series of subpostmasters raising issues 4 about their ability to operate the system when 5 it came to balancing their accounts and 6 unexplained discrepancies appearing in their 7 accounts when they did the weekly balance? 8 A. No, I wasn't aware of that. 9 Q. The way you explained matters earlier suggested 10 that you thought that the Post Office started 11 prosecuting on the basis of Horizon data 12 relatively soon after Horizon was introduced? 13 A. I thought so, yes. 14 Q. It's been suggested by some senior Post Office 15 witness evidence given to the Inquiry that the 16 Post Office would "give the benefit of the 17 doubt" during and immediately following the 18 national rollout period because of the natural 19 difficulties that would be encountered in 20 introducing and then embedding a new system, and 21 so that, if discrepancies arose, postmasters 22 would be given the "benefit of the doubt" and 23 not prosecuted. 24 Was that something that trickled its way 25 down from those senior Post Office individuals 22 1 to you and your team? 2 A. No. My dealings were purely with the 3 Investigators, the investigation team. I had no 4 real contact within Post Office Limited 5 hierarchy above me and nobody of a senior level 6 ever contacted me and gave me that information. 7 Q. Like sort of a moratorium or a period of grace, 8 whilst the system was bedding in and 9 subpostmasters learned how to operate it rather 10 than moving straight to prosecuting them? 11 A. That may well have been the case and my memory, 12 again, may be faulty. I just got the impression 13 that when Horizon came in, that we -- it was 14 being used and we were obtaining evidence via 15 the investigators. 16 Q. Did you or members of your Criminal Law Team 17 meet with any technical staff from Post Office 18 to understand or gain an understanding of how 19 Horizon worked? 20 A. We -- I think the answer probably is yes. 21 I don't recall the meetings but I think the 22 answer probably would be yes. We, certainly, in 23 terms of training, offered training to a number 24 of counsel and agents who were used for 25 advocacy, and we had a number of training 23 1 sessions throughout the country where the 2 Horizon system was up and running and could be 3 used by those people. So I imagine, because 4 I went on training sessions as well, that some 5 explanation was given at that time as to what 6 the Horizon system did. 7 Q. How long did your training on Horizon take? 8 A. Well, I think I attended at least two, maybe 9 three sessions with counsel and possibly agents 10 throughout the country. I remember going to 11 Weston-super-Mare on one and I remember in 12 London, having a number of counsel who turned up 13 to one of the training sessions. 14 Q. Did those training sessions involve gaining 15 an understanding of how data was produced by the 16 Horizon system and how it could be translated 17 into evidentially sound material for the use of 18 an investigation and a prosecution or was it 19 more about "This is what a keypad does, this is 20 what the system looks like, this is the 21 touchscreen", that kind of thing? 22 A. Yes, more the latter explanation that you've 23 just given that -- not the technical details. 24 Q. Were there any meetings between you and Post 25 Office technical teams to gain an understanding 24 1 of the potential causes of errors or faults 2 within the system that may affect the quality of 3 the data that it produces? 4 A. No. 5 Q. Were there any meetings between you or, to your 6 knowledge, other members of the Criminal Law 7 Team with ICL Pathway, later Fujitsu, at this 8 early stage to determine what were the available 9 records and data streams from Horizon in order 10 that Post Office's disclosure obligations could 11 be met? 12 A. No. 13 Q. Wouldn't that have been necessary when 14 a national system was being rolled out, 15 involving a new species of evidence across 16 19,000-odd branches, that may be used a range of 17 prosecution contexts, to understand what are the 18 data stores within this system, which of them 19 are going to be accessed and which of them are 20 not, in order to found a prosecution? 21 A. I think we got that information via the 22 Investigators, no doubt in their reports, and 23 via the witness statements from the experts and 24 the Fujitsu personnel. So the instructions that 25 we got would have come from those two sources, 25 1 and we would have understood from the witness 2 statements that, for example, ARQ data was being 3 accessed or transaction logs, or whatever the 4 information was that we were relying on, and 5 were being exhibited via the witness statement 6 and an explanation from the investigator. 7 And I think that, if I had not understood 8 something, I would have asked the question. 9 Q. I'm talking about, rather than an ad hoc and 10 piecemeal process that developed where perhaps 11 a series of emails are exchanged between 12 Investigators and individual Fujitsu staff to 13 say, "Have you got this? Can Dave go and find 14 that? Has Mike got a copy of that", which we've 15 seen, a fundamental understanding, right at the 16 beginning of the process that "These are the 17 data streams, these are the data stores in this 18 new computer system. We will expect, 19 essentially, at a service level for 20 Investigators to find and obtain X material. It 21 isn't necessary for them to find or obtain Y 22 material". 23 A. It may well be that we did have a written 24 explanation of the system but now, looking back, 25 I can't remember. I couldn't swear on oath one 26 1 way or the other. But I never, looking back 2 now, thought that I didn't understand where they 3 were getting information from and what type of 4 information was being relied on. I don't think 5 I ever had a memory that, actually, this all 6 needs to be explained to me. 7 Q. Presumably that process was one of revelation to 8 you bit by bit, then? 9 A. I don't know. I mean, I don't know. It may be 10 they produced a document that we read and we 11 understood but, as I say, looking back, 12 I couldn't swear to it. 13 Q. In May 2002 you were appointed head of the 14 Criminal Law Team? 15 A. Yes. 16 Q. Who was your line manager at that time? 17 A. I think it was Catherine Churchard. 18 Q. What was her responsibility, what was her job? 19 A. She was General Counsel. 20 Q. Did your line manager remain the General Counsel 21 for the Post Office? 22 A. No, it didn't. 23 Q. Can you explain the changes, please? 24 A. Yeah, sure. I don't know whether Catherine 25 Churchard retired or what happened but, at some 27 1 point, we were told that the team was going to 2 be disbanded and made redundant. I know that 3 the Security Director at board level argued to 4 retain the team and he was successful. 5 So, after Catherine Churchard, I believe 6 I reported to Andrew Wilson and I reported to 7 Andrew Wilson for a number of years, I don't 8 know how long, but, at some point, General 9 Counsel asked to have the team back and I think 10 that was Doug Evans, and I then reported to Doug 11 Evans. 12 At each stage of the transfers, when I was 13 reporting to Andrew Wilson, I had dotted line to 14 General Counsel, so I attended team leaders' 15 meetings and such like, so I wasn't divorced 16 completely from the leadership in the Legal 17 teams. And from Doug Evans -- I think he left 18 in about 2011, possibly 2012, and there was 19 a new General Counsel, who I -- in fact, in the 20 middle of it, I may well have reported to Tony 21 Marsh for a short period of time when Andrew 22 Wilson retired. In fact, I think that's right. 23 Q. So you reported to the Head of Security? 24 A. Head of Security, yes. When Andrew Wilson 25 retired I reported to Tony Marsh and then -- for 28 1 a short period and then, after that, reported to 2 General Counsel Doug Evans, until about 2011. 3 Q. Did you ever report to the Company Secretary? 4 A. No. 5 Q. Do you remember Jonathan Evans as a name? 6 A. I do know him but I never reported to him. 7 Q. Who, over the period between the year 2000 and 8 the year 2012, was responsible at board level 9 for oversight of criminal prosecutions and 10 confiscation proceedings? 11 A. Probably Jonathan Evans but I couldn't swear to 12 that. 13 Q. Why would Jonathan Evans in that period have 14 responsibility, by way of oversight, for the 15 conduct of criminal proceedings in any 16 confiscation? 17 A. Because I believe the Security Director, who 18 I reported to, reported to a board member and, 19 if I remember rightly, it was Jonathan Evans. 20 Q. So the Head of Security reported to the Company 21 Secretary? 22 A. As far as I can recall, yes. 23 Q. You've told us that it was only for a short 24 period of time that you reported to Tony Marsh. 25 A. I think so, yes. 29 1 Q. What about other periods of time, then? Who did 2 your report report in to at board level? 3 A. Um ... 4 Q. I'm looking for the identity across this 12-year 5 period, so when Horizon really nationally rolled 6 out until when you left in 2012 -- 7 A. Yeah. 8 Q. -- who in the board would you say had 9 responsibility for the Post Office's conduct of 10 criminal proceedings? 11 A. I think Jonathan Evans did initially and, after 12 that, I don't know. If you could give me some 13 names, I could probably -- 14 Q. Well, over that 12-year period, there is a large 15 number of names with frequent changes. 16 A. I never had any dealings with anybody at board 17 level. 18 Q. So that was going to be my next question. To 19 what extent did you have access to the board? 20 A. No, I never had access to the board. I never 21 had any dealings. Well, I say I never had any 22 dealings. I may have got the odd telephone call 23 from somebody now and again, wanting a general 24 answer to a criminal question or something of 25 that nature, but nothing significant. 30 1 Q. Was there any regular reporting by the Criminal 2 Law Team to the board on its prosecutorial 3 activities? 4 A. No. Not that -- no, no there wasn't. Reports 5 for cases that were concluded went to General 6 Counsel and the Security Director, and possibly 7 somebody else, but I don't think they even went 8 to board level. 9 Q. When you say reports on concluded cases, do 10 I understand you to mean "We've prosecuted Mr X 11 or Mrs Y, that went to Z Crown Court, there was 12 a guilty plea or a trial, it resulted in 13 a finding, usually of guilt, and there were 14 these confiscations proceedings, £20,000 15 recovered", something like that? 16 A. Yeah, basically, yes, and I prepared, at the end 17 of the month, a list of number of new cases, 18 cases concluded, which teams they related to, 19 because there were other teams within POL -- 20 other than POL, there was Royal Mail, 21 Parcelforce. So I gave, at the end of the 22 month, a fuller description of what had happened 23 in that month, so people could get a picture of 24 what was going on in the team, apart from, as 25 you've just been talking about, the individual 31 1 reports of concluded cases. 2 Q. Was that more from a personnel management 3 perspective? 4 A. Yes, probably, yes. 5 Q. Appreciating that you didn't attend board 6 meetings and, as you said, didn't have access to 7 the board, what was your understanding of how 8 it, the board, exercised oversight of the Post 9 Office's prosecutorial function? 10 A. Via the Security Director. I understand that 11 the Security Director will have gone to board 12 meetings now and again, possibly not every board 13 meeting, but I certainly recall Andrew Wilson 14 telling me information that had happened at 15 a board level meeting. I can't recall what it 16 was now but I do recall him going to board 17 meetings now and again. 18 Q. The Head of Security, Mr Marsh or Mr Scott, 19 reported to the Security Director? 20 A. I don't know about Mr Scott. I had very, very 21 few dealings with Mr Scott. The Security 22 Directors I dealt with and I recall were Andrew 23 Wilson and Tony Marsh. 24 Q. You're referring to them as Security Director? 25 A. Mm-hm. 32 1 Q. By that title, do you mean Head of Security? 2 A. Yes, Head of Security. 3 Q. Rather than a director of the company? 4 A. Oh, yeah -- no -- yes, head of Security. 5 Q. Was it your understanding that that position, 6 Head of Security, attended board meetings? 7 A. I think they did occasionally. I don't think 8 they did every board meeting, no, but I think 9 I do remember Andrew Wilson coming back from 10 board meetings and telling me something that was 11 pertinent at the time. 12 Q. Would I be wrong to take from your evidence that 13 there was, from your perspective, modest 14 intrusive oversight of the Post Office's 15 prosecutorial function by the board? 16 A. Yes, it was modest. 17 Q. It would be modest? 18 A. I think so. I think we weren't causing 19 difficulties. I know we're here because of 20 difficulties. We weren't causing difficulties 21 in terms of any criticism from any outside 22 authority. We were doing the job. The vast 23 majority of the cases -- individuals, pleaded 24 guilty and I don't think that our heads went 25 over the parapet, effectively. 33 1 Q. So the board were just letting you get on with 2 it; is that the feeling we should come away 3 with? 4 A. I think so, yes. 5 Q. Moving on, you tell us in your witness statement 6 at paragraph 6 -- I wonder whether we can turn 7 that up please, it's page 4. Can you see 8 paragraph 6 and you're dealing here with the 9 more general rationale behind the practice of 10 bringing private prosecutions? 11 A. Yes. 12 Q. If we go over the page, please, to page 7 -- 13 sorry, to page 5. In the second line, second 14 sentence, you say: 15 "Investigators were often recruited from 16 counter staff because of their familiarity with 17 accounting documents and procedures. It was 18 felt that such in-house knowledge of accounting 19 systems, practices and procedures was difficult 20 to acquire overnight by police officers who had 21 no knowledge of the workings of [the Post 22 Office]. It was therefore not felt appropriate 23 to pass the investigation of crime within [the 24 Post Office] to the police." 25 Yes? 34 1 A. Yes. 2 Q. So the Investigators -- and you're talking about 3 here the Investigators within the Security team, 4 is that right -- 5 A. I am, yes. 6 Q. -- were historically and usually counter staff, 7 ie counter clerks or the like? 8 A. They weren't always. Occasionally we did 9 recruit police officers and I think we did 10 recruit people from outside Post Office Limited, 11 so it wasn't exclusively people who had had 12 audit functions or whatever within Post Office 13 Limited. 14 Q. But the majority -- you use the word here 15 "often" -- were counter clerks or ex-counter 16 clerks? 17 A. A lot of them were, yes. 18 Q. They were people who had no investigative or 19 prosecutorial experience? 20 A. No. 21 Q. What role, if any, did the Criminal Law Team 22 play in the training of these former counter 23 clerks? 24 A. We did have a role. We've, as part of their 25 training, we arranged mock trials. I can 35 1 remember addressing new recruits on various 2 different topics and we would support the 3 training wing, if and when needed. 4 Q. Was it needed? 5 A. Yeah, I think that -- I was involved in a number 6 of training packages, yes. 7 Q. What were the topics for which the Criminal Law 8 Team offered assistance in the training of the 9 former counter clerks who were now the 10 Investigators? 11 A. I believe disclosure was a big training pack -- 12 package. 13 Q. So the Investigators were trained in their 14 disclosure duties; is that right? 15 A. The Policy and Standards Team, as I can recall, 16 prepared some of the training packages for new 17 Investigators and, from time to time, I would 18 have had an input but we had a specific training 19 wing who had a continually rolling function of 20 training, not just the new Investigators, but 21 the existing Investigators, throughout the 22 years. 23 So -- and they also produced the -- the 24 training wing also produced, almost on a weekly 25 basis, any amendments to any legislation or 36 1 procedures that were -- that had been decided. 2 So it wasn't just "Here's your training", it was 3 a continual process. And we had what I would 4 call the intranet, where all of the training 5 packages and the processes and procedures and 6 the policy documents were stored, so that the 7 investigators could historically look back and 8 see what was going on. But they weren't just 9 left to their own devices. As I say, there was 10 a continual process of updating their knowledge. 11 And I remember going on, for example, 12 a training package throughout the country on the 13 preparation of committal papers because I think 14 we were having difficulties, or we'd identified 15 some problems or some gaps, and so we put 16 together a training package for that. 17 Q. So, from your perspective, would you say overall 18 that the training afforded to Investigators, in 19 relation to their duties under the law, was 20 adequate? 21 A. Well, hopefully more than adequate. 22 Q. What epithet would you use to describe it? 23 A. Well, I would like to think that it was 24 professional. 25 Q. So no Investigator could point towards the 37 1 training and say, "Well, I didn't know that the 2 law required me to do that because I wasn't 3 properly trained"? 4 A. He shouldn't be able to, no. 5 Q. Would you agree that, if Investigators were 6 mainly drawn from a Post Office counter clerk 7 background and, therefore, they had no prior 8 expertise in criminal investigation and criminal 9 prosecutions, it was important that the Post 10 Office's policies that regulated their 11 activities were clear and precise as to the 12 roles and duties and the obligations that they 13 owed? 14 A. I think the roles and duties that they had were 15 probably not in the prosecution policies. They 16 were in the processes and procedures manual that 17 the training wing will have put together. 18 Q. So there was a high-level policy, there was 19 a process and procedure document -- 20 A. Yes. 21 Q. -- and then there was some training that trained 22 on that process and procedure document; is that 23 right? 24 A. Yeah, I mean that's basically how it went. The 25 prosecution policy was a very high level 38 1 document and I imagine that most of the 2 information that would have been pertinent for 3 the investigators was in -- was in a document 4 with the heading, you know, "Processes and 5 Procedures". 6 Q. If you had any concerns about gaps in 7 investigations or flaws in process, for example 8 a reasonable line of inquiry was not being 9 pursued, what would you do? 10 A. Well, I'd contact the Investigator directly. 11 Q. Would that be it? 12 A. Well, not necessarily. It depends on what the 13 problem would be. So, for example, what I was 14 referring to earlier, the committals, I remember 15 putting together a package on committals because 16 we were getting statements and exhibits that 17 were all over the place and were not dealt with 18 appropriately, and so we put together a package 19 so, if I'd identified a problem and it was 20 something that I thought was either serious or 21 persistent, then I would contact one of the 22 Investigators in the -- not necessarily the 23 training wing but the wing that dealt with 24 processes and procedures, and we would get our 25 heads together and we'd sort the issue out. 39 1 Q. So, to your understanding, between this period 2 of 2000 to 2012, all Investigators ought to have 3 understood their duty of candour when applying 4 for a summons to institute a prosecution? 5 A. They should have done, yes. 6 Q. They ought to have understood their duty to 7 pursue all reasonable lines of inquiry? 8 A. Yes, it would be implicit in what they're doing 9 that they should be understanding that, yes. 10 Q. I'm asking whether it was explicit, that they 11 were trained that there was a duty under the law 12 to pursue lines of investigation that pointed 13 away from the guilt of the suspect as well as 14 towards it? 15 A. That would have been included in a training 16 package. 17 Q. They would have all understood that it was part 18 of their duty to establish the reliability of 19 the evidence, including the data upon which they 20 were founding a case against the suspect? 21 A. Again, that would be in a training package and 22 they should have understood that, yes. 23 Q. What steps were in place to monitor the 24 professional performance of Investigators 25 against the standards required by the law? 40 1 A. Sorry, can you repeat that? 2 Q. Yes. What steps were in place to monitor the 3 professional performance of Investigators 4 against the standards required by the law? 5 A. Well, I think that if there had been a failing, 6 then that issue would have been raised both to 7 myself and the Head of Investigations and, 8 depending what the failure was, it would either 9 have been addressed individually or as a group 10 issue, where we would have put out 11 communications to address any problem. 12 Q. So it was only if failings were identified that 13 something would be done? I'm talking about 14 something more systemic and fundamental 15 monitoring the performance of people, in the 16 conduct of their investigations and 17 prosecutorial activities, to ensure that it's 18 not until something goes wrong that the balloon 19 goes up? 20 A. Yeah, there was a Casework Management Team where 21 the files from the Investigators were forwarded 22 to the Casework Management Team, who then 23 forwarded them to my team or to me and, part of 24 the case work management team function was to 25 check that the investigators had done what 41 1 they're supposed to have done. 2 I think there was a big checklist which 3 needed to be ticked and I think that, in the 4 event that they hadn't complied with what the 5 processes and procedures were, then the file 6 would necessarily be returned to the 7 Investigator to address the issue. 8 So I think this middle function was the 9 Casework Management Team and I guess that, if 10 there'd been a massive failure or something that 11 was pretty serious, then it would have been 12 flagged up to the Head of Investigations and 13 possibly myself. 14 Q. So this massive checklist, and we might look at 15 this after the break, was operated by the 16 Casework Management Team who performed a sort of 17 quality control function? 18 A. Yeah, that's how I recall it, yeah. 19 Q. How many people were in the Casework Management 20 Team? 21 A. I don't know. I mean, I think I recall going to 22 Leeds, which I believe is where it sort of ended 23 up, at least two or three times, and I think 24 there were about, if I can remember rightly, 25 probably about six to ten people in it. 42 1 Q. Under whose supervision did they operate? 2 A. I don't know who was the head of the team. 3 I can't remember. 4 Q. Were they part of the Security Department? 5 A. Well, I believe that most of them -- but I may 6 be wrong about this -- most of them were 7 ex-Investigators or they'd been Investigators 8 and they had been moved into the Casework 9 Management Team. Now, that might not be 100 per 10 cent right, some of them not have been but 11 I think that, at least -- I don't know. 12 I can't, actually -- I'd be making it up. 13 Q. Were there any lawyers within that team? 14 A. No. 15 Q. You got the files after they had passed through 16 the Casework Management Team? 17 A. Yes. 18 Q. The three issues that I mentioned -- knowledge 19 of the duty of candour, knowledge of the duty to 20 pursue all reasonable lines of inquiry and 21 knowledge of the duty to obtain evidence that 22 established the reliability of the data upon 23 which a prosecution or investigation was 24 founded -- were they the kinds of things that 25 the Casework Management Team were checking 43 1 compliance with? 2 A. I imagine so. 3 MR BEER: Sir, I wonder whether we can take an early 4 break because, in the light of the answers 5 given, I want to show some documents that 6 I don't think I'm going to be able to right now. 7 So if we took the break early now and came back 8 at 11.20? 9 SIR WYN WILLIAMS: That's fine, then, Mr Beer, yeah. 10 MR BEER: Thank you. 11 SIR WYN WILLIAMS: 11.20. 12 MR BEER: Thank you. 13 (11.03 am) 14 (A short break) 15 (11.20 am) 16 MR BEER: Sir, good morning. Can you continue to 17 see and hear me? 18 SIR WYN WILLIAMS: Yes, thank you. 19 MR BEER: Thank you very much. 20 Mr Wilson, can we look, please, at 21 POL00119917. You mentioned before the break 22 a system operated by the Case Management Team, 23 which involved checking against standards the 24 files that were submitted to them before they 25 went on to the Criminal Law Team, and you 44 1 mentioned a big long list, I think, or words to 2 that effect. 3 A. That was my recollection, yes. 4 Q. If you just take your time, just to look at 5 this, does that look like the big long list that 6 you were speaking about? 7 A. Probably, yes. 8 Q. This is an example. We've got lots of these 9 where, against the set of criteria, a file is 10 marked, and in the right-hand column a score is 11 given, which if we scroll down, we can see 12 potentially adds up to 100. This Investigator 13 got 94 out of 100 for their file. 14 A. Yes. 15 Q. You see that it says, "Compliance check 16 undertaken by" and it says, "Paul Southin" about 17 five lines from the top in the last line in 18 blue? 19 A. Yes. 20 Q. Would that be somebody in this Case Management 21 Team? 22 A. No, I think -- oh, hang about. Yes, it must 23 have been. I think I recall Paul Southin being 24 an Investigator but he may well have been in the 25 Compliance team as well -- 45 1 Q. I see. 2 A. -- later on. 3 Q. I see. As you said before the break, there may 4 be former Investigators who have moved on to the 5 Case Management Team? 6 A. Yeah, that's my recollection, that some of them 7 will have been Investigators and I'm pretty 8 sure -- well, I don't know. But I think 9 probably more had been Investigators than 10 weren't, if I can put it that way. 11 Q. Okay. If we look at this, if we just go back 12 up, please, we can see that some of the 13 criteria, against which compliance was judged, 14 are administrative in nature, can you see (1), 15 the right label was used? 16 A. Yes. 17 Q. Yes? Number 4, the correct font, namely, it had 18 to be Chevin Light 12, was used? 19 A. Yes. 20 Q. Yes? If you look at number 7, the file was 21 submitted within 12 working days, yes? 22 A. Yes. 23 Q. If you look at, under "Offender ... details", at 24 number 13, "Details of suspect interview and 25 searches as applicable"; "Adequacy of 46 1 interview"? 2 So adequacy of interview does suggest some 3 something more than administrative, doesn't it? 4 A. Yes. 5 Q. A qualitative assessment of the adequacy or 6 inadequacy of a piece of investigative work? 7 A. Yes. 8 Q. Would that be your understanding that this Case 9 Management Team looked at qualitative issues, as 10 well, rather than the more perfunctory issues 11 like font size? 12 A. Yes. 13 Q. Then if we go down, please, to "Post interview 14 details", can you see, at -- I think it's 19, 15 "Assessment of evidence available to support 16 charges"? 17 A. Yes. 18 Q. Can you see that? 19 A. Yes. 20 Q. Then two on, "Reliability of witness reported", 21 so seemingly a check over whether the file, the 22 report, contained an assessment of the evidence 23 available to support the charges, and the 24 reliability of any witness, yes? 25 A. Yes. 47 1 Q. For those things, can we look, please, at what 2 might be an associated policy document, keeping 3 those two things in mind, and look at 4 POL00118101. You'll see this is a Compliance 5 document or "Guide to the Preparation and Layout 6 of Red Label Case Files" for the Security and 7 Operations Team? 8 A. Yes. 9 Q. Can we go forwards, please, to page 7 and look 10 at the foot of the page, please. Thank you. 11 Essentially, these headings in bold, for the 12 most part, match the criteria that we've seen in 13 the spreadsheet that we just looked at; do you 14 understand? 15 A. Yes. 16 Q. So the one that we're looking at, at the moment, 17 was the heading against 19, at the bottom of the 18 page, which is paragraph 1.15, "Assessment of 19 evidence available to support charges". Then 20 over the page: 21 "This should contain the investigator's 22 assessment of the evidence available to support 23 the [charges] detailed in the preamble to the 24 report it should identify conflict interesting 25 evidence statements or admissions and include 48 1 comment on [the] demeanour of [the] offender, 2 an assessment of their response to questioning, 3 whether [the] full scope of [the] offence has 4 been admitted to and suggested reason as to why 5 [the] crime [was] committed (ie greed [or] 6 gambling)." 7 I've added a few words in there so that it 8 makes sense in English. 9 Was it your understanding, therefore, that 10 the case file and, in particular, the report 11 within it had to contain the assessment that is 12 set out there? 13 A. Yes, I think so, yes. 14 Q. Therefore, when we read, in the case compliance 15 matrix, assessment of evidence available to 16 support the charges, this is essentially what 17 it's being judged against? 18 A. Yeah, I believe so, yes. 19 Q. Then if we scroll down to 1.17, which is again 20 the heading -- I've skipped over "Details of 21 domestic and financial details of offender/s" -- 22 "Reliability of witnesses": 23 "This should contain the investigator's 24 assessment as to reliability of any relevant 25 witness or witness statement in the case." 49 1 Again, that matches the heading in the 2 compliance matrix that we just looked at? 3 A. Yes. 4 Q. So far as you can recall, in Horizon cases, did 5 such case files and, in particular, the offender 6 reports within them contain assessments as to 7 the reliability of the data on which the 8 proposed prosecution was to be founded? 9 A. I don't know. I -- yeah, I don't know. 10 Q. Would you accept that they should have done, 11 that, if it wasn't a witness-based case, it was 12 essentially a data-based case? 13 A. Yes. 14 Q. An assessment should have been made in the file 15 as to the reliability of the data on which the 16 proposed prosecution was founded? 17 A. Yeah, yes. I think there was a general 18 assumption that the data was sound. 19 Q. Do assumptions wash in the criminal courts? 20 A. No, they don't. 21 Q. No. What washes in the criminal courts? 22 A. Well, it has to be certain. 23 Q. It has to be evidence? 24 A. Yeah. 25 Q. It has to be evidence based, doesn't it? 50 1 A. Yeah, I don't know. I don't know whether Post 2 Office Limited went into that detail. I can't 3 recall. 4 Q. Okay, in the case files that we've seen, they 5 don't. 6 A. Right. 7 Q. Do you accept that, in a case that's based 8 substantially on evidence produced by 9 a computer, there needed to be an assessment in 10 the file which said, "Our data in this case is 11 obtained from this computer. These are the 12 security controls around that computer, which 13 ensure that it has, as a matter of physical 14 integrity, security. These are the controls 15 that are in place that ensure the information 16 security within the computer. These are, if 17 necessary, the continuity documents that 18 establish the production of the data. We have, 19 on enquiry, found that the system suffers from 20 some bugs, errors and defects. However, the 21 evidence is either that they didn't cause 22 discrepancies or they didn't cause material 23 discrepancies in this case"; that kind of 24 assessment was necessary? 25 A. Yes. 51 1 Q. Thank you, that can come down. Can we turn, 2 please, to Post Office Prosecution Policies and 3 look, please, at POL00030659. 4 If we just flip to the end of it, please, 5 which is page 4, and scroll down, we can see 6 this is dated December 1997 and produced by 7 Andrew Wilson. 8 A. Yes. 9 Q. What would have been his function at that time? 10 A. He would be the Security Director. 11 Q. Back to the first page, please. You've looked 12 at this policy, because it was disclosed to you 13 way back when you wrote your witness statement, 14 and you address it in your witness statement. 15 A. Yes. 16 Q. You will see that it says that it proposes 17 a rationale for prosecution policy, and I'm not 18 going to take you through it in detail but, 19 essentially, it reads like a discussion paper 20 about whether or not the prosecutorial function 21 should be retained by the Post Office or not, 22 yes? 23 A. Yes. 24 Q. Up until this point, 1997, was there 25 a prosecution policy or, to your knowledge, was 52 1 this the first? 2 A. I think this was the first. 3 Q. If we look at the foot of page 1, under "The 4 Case for Prosecution", thank you: 5 "The Post Offices prosecution policy appears 6 to have evolved after a considerable period with 7 little formal evaluation or review." 8 Would you agree with that sentiment? 9 A. Yes, that's probably right, yes. 10 Q. Mr Wilson identifies that the principles 11 underlying prosecution were deterrents and 12 serving the public interest. Then there's 13 a theoretical discussion of each of those, at 14 the foot of the page and then over the page. 15 Then he discusses the "Case Against 16 Prosecution" and identifies three factors 17 pointing away from the desirability of the Post 18 Office conducting its prosecutions: costs, 19 adverse publicity and industrial relations 20 consequences, and then there's a discussion of 21 each of those, which I'm not going to address. 22 Then if we go to the foot of the page, 23 paragraph 5, "Proposed Rationale for 24 Prosecution", and he says: 25 "Work which has already been carried out 53 1 into the profiling of internal offenders within 2 the Royal Mail enables a rationale for 3 prosecution to be constructed which can inform 4 policy development. In broad terms, offenders 5 can be placed into one of three categories ... 6 "Criminal 7 "Irresponsible [or] 8 "Irrational." 9 Then he addresses each of the three of them 10 by use of his italics; can you see that? 11 A. Yes. 12 Q. He says: 13 "The criminal category is involved in theft 14 of mail for personal gain ... 15 "The irresponsible category is usually 16 involved in wilful delay and/or destruction of 17 mail ... 18 "The irrational category are a minority and 19 are characterised by longer service and crimes 20 which are frequently easily detected (eg opening 21 [the] mail ... and leaving ... debris." 22 Then at the foot of the page, he says: 23 "From the above, it is possible to formulate 24 a prosecution policy as follows: 25 "The [prosecution] policy is normally to 54 1 prosecute those of its employees or agents who 2 commit acts of dishonesty against the Post 3 Office for the purpose of illegally acquiring 4 Post Office property or assets, or the property 5 or assets of Post Office customers and clients 6 while in Post Office custody, where this is 7 deemed to serve the public interest. Other 8 wrongdoings will normally be dealt with via the 9 discipline code." 10 Was that the prosecution policy until we see 11 the next policy issued in 2010? 12 A. No, I don't think so. There was -- from my 13 recollection, there was a prosecution policy in 14 2007. 15 Q. Was it, therefore, the prosecution policy until 16 2007? 17 A. I don't know. I would imagine that there would 18 have been a policy in between there at some 19 point. I know that the policies were reviewed 20 every year or they were referred to as being 21 reviewed every year in the later policies. 22 Q. That's a bit of a distinction, isn't it, that 23 a document says that they were to be reviewed 24 and whether they were in fact reviewed? 25 A. No, I think that -- I think they will have been 55 1 reviewed because there may have been changes in 2 legislation which would require them to be 3 changed, but I don't think they were necessarily 4 amended if there was no need to amend them. 5 So I think on a yearly, annual basis, the -- 6 I forget which team it was now. I think it was 7 one of the process teams -- I've forgotten the 8 name of it now -- would review them on an annual 9 basis but not necessarily, as I say, change 10 them. 11 Q. Let's assume that this did remain the 12 prosecution policy -- 13 A. Right. 14 Q. -- between 1997 and 2007. 15 A. Right. 16 Q. Do you see anything wrong -- if we just scroll 17 up so we can see the entire statement of the 18 policy. It's just the bit in italics. Thank 19 you. 20 A. This is "The Post Office's policy is normally to 21 prosecute those of its employees"? 22 Q. Yes. 23 A. I think that's the Security Director giving his 24 opinion of the position at that time in 1997. 25 I think the policy will have changed when the 56 1 Code for Crown Prosecutors came out and we 2 followed -- 3 Q. That was a decade earlier, though, in 1986. 4 A. Right. So -- yes, of course you're right. 5 Well, I think the later policies were more 6 specific in terms of referring to the Code for 7 Crown Prosecutors and the requirement that was 8 specified in there. For -- no, sorry, I'm 9 getting myself confused here. 10 Q. Well, is the problem with that statement that it 11 doesn't say "We'll prosecute if there's 12 sufficient evidence to do so"? 13 A. Yeah, I mean it doesn't say that. But I think 14 the later policies will have said -- 15 Q. I'm just looking at the moment of what may be in 16 operation for a 10-year period, ie this 17 document. 18 A. Yeah, I don't think that would have been in 19 operation for 10 years though. I think there 20 will have been other policies that possibly have 21 not been identified. 22 Q. Okay, then. For however long this operated, 23 would you agree that it's problematic, in that 24 it appears to assume that somebody is guilty and 25 doesn't include any evidential test? 57 1 A. Yes. 2 Q. It contains no reference to the Code for Crown 3 Prosecutors that had been in place for a decade 4 by this time? 5 A. Yes. 6 Q. Thank you. Can we move forward to the 2007 7 policy that you mentioned, POL00030578. Thank 8 you. If we look just at the foot of the page, 9 it's at the foot of every page, we can see it is 10 dated 1 December 2007, yes? 11 A. Yes. 12 Q. If we go to the last page, which is page 5, we 13 can see the owner of the policy is set out and 14 those who gave assurance to the policy set 15 out -- 16 A. Yes. 17 Q. -- which included you? 18 A. Yes. 19 Q. If we go back to page 1, please, and scroll down 20 to 3.1.4. Can you see that reads: 21 "The conduct, course and progress of 22 an investigation will be a matter for the 23 investigators as long as it is within the law, 24 rules and priorities of the business." 25 A. Yes. 58 1 Q. "Investigators will ultimately report to the 2 Director of Security with regard to the conduct 3 of criminal investigations." 4 Do you see anything difficult or problematic 5 with that first sentence? 6 A. The priorities of the business. 7 Q. What's difficult or problematic with that? 8 A. Well, they should be independent. 9 Q. Can we go forward to 3.2.9, please, on page 3: 10 "Suspect offenders will be prosecuted where 11 there is sufficient evidence ..." 12 I think this is what you were referring to 13 earlier, that later policies included 14 a cross-reference to the sufficiency of 15 evidence: 16 "... and it is in the public interest in 17 accordance with the Code for Crown Prosecutors." 18 In your view, was it sufficient to include 19 a cross-reference to the Code in this way, 20 rather than explaining the way in which the Code 21 operated and was to be carried into effect in 22 the context of a private prosecutor and, in 23 particular, where that private prosecutor was 24 the Post Office? 25 A. I think the Code for Crown Prosecutors would 59 1 have been more fully explained in the training 2 information that was passed to Investigators and 3 new Investigators. And the Code itself will 4 have -- certainly in my team, every lawyer had 5 a copy of the Code, all of the decision makers 6 had a copy of the Code and, rather than break it 7 down in what I would say would be a high-level 8 document, in this document, the Code itself 9 stood on its own but also will have been more 10 fully explained in the training information, is 11 my recollection. 12 Q. Was it recognised that special issues may arise 13 in the case of an organisation that was the 14 alleged victim of an offence, a possible witness 15 to the offence, where that organisation had 16 investigated the offence, would then decide 17 whether to prosecute the offence and, if so, go 18 ahead and prosecute the offence? 19 A. I think we tried to divorce the decision to 20 prosecute from the investigation function and my 21 function by putting it into the business for 22 a more objective look at the decision. 23 I think that, prior to 1997, the decision to 24 prosecute was made by a senior investigator 25 within the investigation part of the business 60 1 and, subsequently, in 2012, it reverted back to 2 the Investigator and I think that was because it 3 was imagined that, with the separation of Post 4 Office and Royal Mail, that, in order to obtain 5 consistency because people were changing their 6 jobs within POL and people were moving, people 7 were leaving, that it went back to the 8 Investigator. 9 But that was purely for consistency and, 10 within that period, the role swapped between, 11 I think, the Head of Human Resources or 12 nominated individuals within the business. 13 Q. We're going to come in a minute to look at that 14 decision-making responsibility? 15 A. Right, yeah. 16 Q. But are you saying that, essentially, in 17 summary, that the way the Post Office addressed 18 the fact that it was victim, witness, 19 investigator, decision maker and prosecutor, all 20 in one, was to get the lawyers to make decisions 21 on prosecutions? 22 A. So far as the evidence was concerned, yes. 23 Q. And to get somebody who wasn't involved in the 24 investigation to make the decision on public 25 interest? 61 1 A. Yes. 2 Q. What this does is it says decisions will be made 3 in accordance with the Code for Crown 4 Prosecutors and everyone had a copy of it? 5 A. Yes. 6 Q. Everyone relevant had a copy of it? 7 A. Yes. 8 Q. Was there anything which sat between those two 9 poles, "We're going to apply the Code", "Here's 10 a copy of the Code", which explained the 11 particular difficulties that may arise in 12 an organisation that would be investigating and 13 prosecuting theft from itself. 14 A. I don't think that that specifically will have 15 been addressed but we did address training for 16 the decision makers. Myself and the Head of 17 Investigations did provide training to those 18 people who were making the decision and I was 19 the contact point for anyone who was a decision 20 maker, if they had an issue or a problem or 21 wanted to discuss anything. 22 Q. What would you train them as to the 23 permissibility or impermissibility of taking 24 into account the "priorities of the business" in 25 such decision making? 62 1 A. Well, I don't -- yeah, I don't think that the 2 priority of the business I would have trained 3 them on at all. As far as I was concerned, the 4 decision had to be an independent decision. 5 Q. Can we turn forward to 2010, please, and look at 6 POL00030580. 7 If we look, please, at the bottom right-hand 8 corner of page 1, we'll see that it's dated 9 4 April 2010; can you see that? 10 A. Yes. 11 Q. If we just scroll up, please, the owner is said 12 to be Head of Security, who at that time was 13 Mr Scott? 14 A. Yes. 15 Q. What did it mean to be the "owner" of a policy? 16 A. Well, he will have been responsible for ensuring 17 that his Investigators adhered to the policy and 18 would have been responsible for checking that it 19 was accurate in terms of -- if it was dealing 20 with legislation. 21 Q. If we scroll down, please, and look at 22 "Assurance" and "Authorised", on "Assurance" 23 what would you understand it to mean if a person 24 had given assurance for a policy? 25 A. That they would have read the policy, be happy 63 1 with the policy, happy that it addressed any 2 issues, and that was not inaccurate and have 3 checked that it complied with any legislation 4 that was appropriate. 5 Q. Again, what would you understand it to mean if 6 somebody is shown as having authorised the 7 policy? 8 A. Well, effectively, I think I would have thought 9 that that was that they'd written the policy and 10 certainly were -- having written the policy or 11 got somebody to write it, that they were 12 responsible for it. 13 Q. You see in the right-hand column there it's got 14 a date for both of those things to happen, ought 15 they to be completed against "Assurance" and 16 "Authorised", right-hand side, date? 17 A. Yeah, meaning 4 April 2010? 18 Q. No, do you see under the words "Assurance" and 19 "Authorised"? 20 A. Oh, right, yes. 21 Q. Yesterday Mr Scott told us that this means 22 nothing because the date hasn't been included 23 against "Authorised" or "Assurance". 24 A. So, effectively, he's saying that this is 25 a policy that didn't hit the public domain? 64 1 Q. Well, he said it -- he called it a draft. 2 A. Oh, right. I don't know whether it was or it 3 wasn't. I mean, I don't know -- I don't think 4 my name is on that policy. 5 Q. No, it hasn't got a review section in it, unlike 6 the last one. 7 A. I don't know. Having not had any responsibility 8 for it, is what I assume happened. I can't 9 contradict or add any value to what you've just 10 told me. 11 Q. Again, if we go forwards to page 3, please, we 12 see the policy set out. Under the heading, 13 "Protecting the Business", it reads: 14 "Highlighting crime facilitators, 15 investigators will identify (i) non-compliance 16 with security and operational procedures, (ii) 17 non-compliance with the code of business 18 standards (iii) failings in management control 19 and (iv) shortcomings in physical security." 20 Then under "Conduct of Investigations": 21 "The conduct, course and progress of 22 an investigation will be a matter for the 23 investigators as long as it is within the law, 24 rules and priorities of the business. 25 Investigators will ultimately read to the Head 65 1 of Security with regard to the conduct of 2 criminal investigations." 3 Again, do you identify the same difficulty 4 with that? 5 A. Yes, I would. 6 Q. Can we move forwards, please, to POL00030598. 7 This is January 2011. 8 If we scroll to the foot of the page, 9 please. We can see the date of January 2011; 10 can you see that? 11 A. Yes. 12 Q. In the top right, as well, "V2", January 2011. 13 A. Yes. 14 Q. If we scroll down to "Standards", please, thank 15 you: 16 "The general standard is to prosecute those 17 whose suspected offences significantly damage 18 the public interest. Compliance with the Code 19 for Crown Prosecutors will ensure that 20 inappropriate prosecutions are not pursued." 21 Then at 4.3: 22 "The ... Criminal Law Team will be familiar 23 with both the evidential and the public interest 24 tests in the Code ... and advise accordingly." 25 Just in relation to that line, 4.1 the Post 66 1 Office will "prosecute offenders whose offences 2 significantly damage the public interest", was 3 that meant to add a gloss to what is the public 4 interest test? 5 A. I don't think that would have been adding 6 a gloss. 7 Q. Do you know what -- 8 A. I don't think it would have been put in there to 9 add a gloss. I think it's probably -- the word 10 "significantly" shouldn't have been added. 11 Q. Well, also, "significantly damage the public 12 interest", whereas the public interest test is 13 rather different to that. 14 A. Yeah. 15 Q. It's whether it is in the public interest to 16 prosecute -- 17 A. Yes, exactly. 18 Q. -- rather than whether the offence itself 19 significantly damages the public interest. 20 A. Sorry, I understand what you're saying, yeah. 21 Yes, I agree. 22 Q. That isn't the test within the Code for Crown 23 Prosecutors? 24 A. No. 25 Q. Thank you. That can come down. 67 1 In your witness statement, you state that 2 policies were drafted by the Post Office. Who 3 in the Post Office was responsible for drafting 4 policies relevant to criminal investigation and 5 prosecution? 6 A. I think, generally speaking, it would be the 7 Security Director, although there were a couple 8 of policies I understand my name is on. I can't 9 remember the year. But I can remember why it 10 was probably delegated to me and it was because 11 we'd had a problem in one of the businesses 12 where the decision makers had effectively put 13 people back on duty, despite the fact that we'd 14 recommended that the evidential test had been 15 met and, I think, because of that, myself and 16 the Head of Investigations agreed that 17 an additional clause should go in that 18 particular policy that I signed my name to. 19 Q. You also tell us in paragraph 9 of your witness 20 statement that the policies were owned in the 21 main by the Security Directors at the time of 22 their implementation? 23 A. Yes. 24 Q. That is Messrs Wilson, Marsh and Scott? 25 A. Yes. 68 1 Q. You say that your role was to advise on 2 policies. What would that consist of? 3 A. Well, that would be basically, if there had been 4 any change in legislation, any requirements that 5 needed to be altered or removed and generally 6 given oversight to what was being written. 7 Q. In all of these policies, we don't see any 8 mention of, for example, the duty of candour, 9 the duty to pursue reasonable lines of inquiry 10 and the disclosure obligations of a prosecutor? 11 A. Yeah, disclosure was a massive topic and I think 12 that the idea of having the policy was to have 13 a very short, sweet, high-level document that 14 somebody who was a third party could read and 15 understand. And that, therefore, disclosure 16 will have been dealt with by the training wing 17 in a much more comprehensive way than to add it 18 into the policy. I think we -- the decision 19 would have been to keep them separate. 20 Q. But, for example, "We will comply with the CPIA 21 and the Code issued thereunder" or "We will 22 comply with the Attorney General's Guidelines on 23 disclosure", and then updating when new 24 guidelines were issued in 2000, 2005, 2010, for 25 example, not even those cross-references? 69 1 A. No. I think it was regarded as a ring-fenced 2 topic that needed to be looked at on a regular 3 basis and no doubt amended, as and when the 4 Attorney General made new guidelines, or 5 whatever. 6 Q. You tell us that each policy was reviewed 7 annually. What did the annual review consist 8 of? 9 A. Well, I think, the old policy will have been 10 looked at and checked and a decision would have 11 been made: is it fit for purpose for continuing 12 for another year or do we need to add or detract 13 from it? 14 Q. Who undertook that annual review? 15 A. I think Ray Pratt was Head of the Policy and 16 Standards Team at the time. 17 Q. Was it the function of the Policy and Standards 18 Team, then, to undertake the annual reviews 19 rather than -- 20 A. I believe so -- 21 Q. -- the Criminal Law Team? 22 A. No, I believe it will have been -- the Policy 23 and Standards Team will have reviewed it on 24 a yearly basis. He may well have come and 25 spoken to me about it and asked a view. 70 1 Q. Can we look, please, at paragraph 9 of your 2 witness statement, which is on page 6. Do you 3 see halfway through, you say: 4 "My role was to advise the Security Director 5 and critique the content of those policies. 6 I was also required to review the existing 7 policies and advise on any changes that may be 8 [required]. Each policy that was developed was 9 reviewed annually but was not necessarily 10 changed each year." 11 Just stopping there, doesn't that suggest 12 that it was your responsibility to review and 13 critique the content of policies, advise on 14 changes and to do so annually? 15 A. Yeah, no, it does. But I think what would 16 happen was, in reality, that Ray Pratt would 17 come to me and say, "We need to have a look at 18 the policy again", and we would sit down and 19 look at the policy. And, from a legal 20 perspective, that side of it would have been my 21 responsibility. 22 Q. So for the years that, by way of example, the 23 policies said that in deciding on prosecutions 24 or investigations regard is to be had to the 25 priorities of the business, that was simply 71 1 overlooked, was it? 2 A. Yeah, I think so, yes. 3 Q. Or did that, in fact, reflect the reality that 4 the priorities of the business were an important 5 element in deciding on what to investigate and 6 who to prosecute? 7 A. No. I don't think -- the business interest was 8 not of any concern to my team. 9 Q. We've seen a series of documents identifying 10 over the years -- I'm not going to take you to 11 them now -- objectives being set for the 12 Security Department to reduce the loss to the 13 business through investigation and prosecution? 14 A. Right. 15 Q. Did any of that filter through to your team's 16 decision making? 17 A. I don't believe it did no. 18 Q. In the last line here, you say: 19 "I was responsible for seeing that any 20 stipulations included in the policies were 21 adhered to." 22 That may be an incredibly broad statement. 23 A. Yes. 24 Q. What did you mean by it? 25 A. Well, if we saw a file that was outside the 72 1 policy, then that would be my responsibility to 2 identify and address. 3 Q. You've written that in an expansive fashion 4 there, which might be taken to include 5 responsibility for ensuring that all of the 6 Investigators were doing all of the things that 7 the policies required them to do. That plainly 8 wasn't the case? 9 A. No, I -- no. That wouldn't have been the case, 10 no. 11 Q. So what did you, in fact, mean, then? 12 A. Well, what I mean is that, at a high level, 13 ultimately I was responsible for every 14 prosecution, it was my call and that, because it 15 was my call and because it was my 16 responsibility, if I'd identified anything that 17 was outside the policy, then I needed to deal 18 with it. 19 Q. You said there "it was my responsibility and my 20 call". 21 A. Yes. 22 Q. What did you mean by that? 23 A. Well, I was head of the Criminal Law Team so 24 I was responsible for the prosecutions. At any 25 particular stage, I could be summonsed into 73 1 court, maybe a Crown Court -- which did actually 2 happen on one occasion -- and I couldn't say, 3 "Well, this is the Investigator's fault". I had 4 to admit any responsibility if there was 5 a problem because it -- I was in charge. 6 Q. When you said, "it was my call", did you mean it 7 was your call to decide whether to prosecute or 8 not? 9 A. No, no, no, not that. 10 Q. What was your call, then? 11 A. My call was I was responsible for every 12 prosecution that we signed our name to. That's 13 what I mean. 14 Q. Can we turn to the decision maker in 15 prosecutions then, please, and can we turn to 16 paragraph 6 in your witness statement, which is 17 on page 4. 18 You set out for us helpfully here -- and, in 19 fact, it's just above that. It's paragraph 5, 20 at the top of the page, thank you. 21 You set out for us helpfully here the 22 prosecution decision maker and you say, when you 23 first came into the CLT: 24 "... the decision to prosecute was taken by 25 Senior Investigation Managers ... The 1997 74 1 policy references to the decision maker as being 2 from the Personnel Department of each Business 3 Unit following advice from the [Criminal Law 4 Team]. This later changed to a nominated 5 representative in the Business [that's the 6 policy of April 2010]. The [2011 policy] 7 specified the decision maker as the Senior 8 Security Manager for [the Post Office]." 9 Just breaking that down, in 1997 until you 10 joined, the decision maker on whether to 11 prosecute was a member of the Personnel 12 Department? 13 A. Yes. 14 Q. So from Human Resources? 15 A. Yes. 16 Q. It says, "from each Business Unit". What does 17 that refer to in this context? 18 A. Well, the business units were Royal Mail, Post 19 Office Limited, Parcelforce. I think there were 20 just the three. 21 Q. So somebody in Personnel, in our case, from Post 22 Office Limited? 23 A. Yes. Ah, now, no, I think -- some of the 24 prosecution policies refer in some of the -- in 25 one of the paragraphs towards the end of the 75 1 policy that Post Office Limited adhered to the 2 general Royal Mail policy but also had their own 3 specific guidelines processes and procedures, 4 and I think it's a paragraph towards the end of 5 the 2007 and 2011 policies. 6 Q. We'll come to that later. At the moment we're 7 just dealing with 1997 -- 8 A. Right, okay. 9 Q. -- and decision maker from Human Resources. 10 A. Yes, that must be right, yes. 11 Q. So did the person from Human Resources have 12 a copy of the Code for Crown Prosecutors? 13 A. Yes, yes, they were trained specifically by 14 myself and Phil Gerrish, who was Head of 15 Investigations. We went around the country. We 16 prepared a -- what was a dummy investigation 17 file. We -- and we prepared a dummy standard 18 letter that the -- one of the solicitors would 19 have written, in terms of the evidence and the 20 public interest, and we gave them a copy of the 21 Code for Crown Prosecutors and we explained -- 22 we went through and explained what to look for 23 in the file, what to look for in the Code and 24 went through the public interest test that was 25 in the Code. 76 1 Q. That dummy letter, was that essentially 2 a template for them to issue? 3 A. No, that -- 4 Q. -- if they decided to prosecute? 5 A. No. The dummy letter was a letter that they 6 would receive on the papers that had been 7 written by one of the lawyers authorising 8 prosecution -- sorry, providing information 9 about the evidence. They were the one who 10 authorised the prosecution. 11 Q. Do you know what the rationale was for giving 12 the prosecutorial decision-making function to 13 people within HR? 14 A. Yeah, I think it was basically Andrew Wilson had 15 identified a team that was independent of the 16 Investigation team and that could give 17 an overall view of what was in the public 18 interest; somebody who was independent, 19 basically. 20 Q. So these people would be looking at the offender 21 report that they were given and all of the 22 underlying material, witness statements and 23 exhibits; is that right? 24 A. Yeah, so they'd be looking at a complete file. 25 Q. They would be expected to read the witness 77 1 statements and the exhibits? 2 A. Um, actually -- I -- no. I don't -- I can 3 picture the file in my brain, which seems like 4 a large file but it may not have been. It may 5 have simply been a truncated file. 6 Q. In what respect was it truncated? What did it 7 not include? 8 A. Yeah, well, their decision was whether it was in 9 the public interest or not. They weren't there 10 to look at the evidence in terms of whether 11 there was sufficient evidence. We -- 12 Q. Hold on. Why was that -- 13 A. Well, because -- 14 Q. -- and where does it say that? 15 A. Because the lawyer was the person who made the 16 decision on whether there was sufficient 17 evidence to prosecute. They were simply 18 deciding on whether it was in the public 19 interest. 20 Q. Right, and so the decision on sufficiency of 21 evidence had already been made? 22 A. Yes, effectively, the lawyer had made the 23 decision that the evidence was sufficient to 24 prosecute. What we wanted from them was to make 25 an independent decision on the public interest 78 1 test. 2 Q. What material were they given in order to make 3 that decision? 4 A. Well, yeah, following your question before the 5 last one, I don't know whether they did get 6 a full file now but they got a version of the 7 file. 8 Q. What was the version of the file? 9 A. I imagine -- 10 Q. -- they got? 11 A. -- it was information about the alleged crime, 12 so it will have been, I guess, a report, 13 possibly the interview, maybe one or two other 14 documents. I can't remember. 15 Q. So they made no decision at all on evidential 16 sufficiency? 17 A. No. 18 Q. That decision had already been taken by 19 a lawyer? 20 A. Yeah, the lawyer had already -- effectively 21 saying there was sufficient evidence to 22 prosecute, yes. 23 Q. Your statement says that they would take the 24 decision following advice from the Criminal Law 25 Team. Was that advice about the public interest 79 1 test too? 2 A. Yes. Usually, the advice would be pretty 3 limited in terms of the size of the theft or any 4 other information that was pertinent. 5 Q. Can we go, please, to POL00030659. And look at 6 page 4, please, under paragraph 6, "The 7 Prosecution process". This is the 1997 Andrew 8 Wilson policy. It reads: 9 "In order to streamline the process and to 10 facilitate a consistent approach, it is 11 recommended that a single point within the 12 Personnel Department of each Business Unit 13 should make decisions on prosecutions, following 14 advice from Legal Services Department as to the 15 likelihood of success and the potential for 16 embarrassment to be caused to the Post Office." 17 That's rather different from how you 18 explained it just now, isn't it? 19 A. Yeah, I mean, this is a policy in 1997 that -- 20 Q. I'm only dealing with the 1997 policy at the 21 moment. 22 A. Right. 23 Q. I've not moved forward to 2007, to 2010 or 2011. 24 A. Yeah, that's not my understanding of what 25 actually happened. 80 1 Q. Because this, on its face, suggests that the HR 2 person is going to make all decisions on 3 prosecution, yes? It doesn't divide it up 4 into -- 5 A. No, it doesn't. 6 Q. -- sufficiency and public interest, does it? 7 A. I'm not sure how you describe this document, the 8 words that you used when you actually described 9 the document. But this, for me, is not 10 a prosecution policy document; it's a paper 11 that -- 12 Q. I was taking -- I mean, I described it as 13 a discussion paper. 14 A. Yeah. 15 Q. In your witness statement, you say, "The 1997 16 policy refers to the decision maker as being 17 from the Personnel Department" -- 18 A. Yes. 19 Q. -- referring to this. 20 A. Yes, I accept that it was the policy that Andrew 21 Wilson put out but I think that you are accurate 22 in what you say: it's more of a discussion 23 document than a proper policy. 24 SIR WYN WILLIAMS: Sorry to intervene but does that 25 mean that there was no written policy, at least 81 1 that the Inquiry has discovered, until 2007? 2 A. Well, sir, I think there were policies. Whether 3 they've been discovered or not and where they're 4 lurking and what year they were prepared, but 5 there was -- you know, I'm pretty sure there was 6 more than that, but I can't tell you when or 7 where they are. And I can't believe that it 8 went from 1997 to 2007, 10 years, without 9 a prosecution policy being in place, a proper 10 one. 11 SIR WYN WILLIAMS: Forgive me, but the impression 12 I'm getting from you is that this document 13 itself did not become, in the formal sense, 14 a policy. It was, as Mr Beer and you have 15 discussed, more in the nature of a discussion 16 paper. 17 A. Well -- 18 SIR WYN WILLIAMS: So that would mean that, for very 19 many years, so far as we know at the moment, let 20 me put it in that way -- or in case other people 21 know more than me, so far as I am aware -- there 22 is no written adopted policy covering the period 23 1997 to 2007. 24 A. Yes, sir, that appears to be the position, yes. 25 MR BEER: We can look at paragraph 7 to see what the 82 1 nature of this document is for a bit of further 2 help. It says: 3 "The proposals in this paper have been 4 formulated [et cetera]. Personnel Strategy 5 Steering Group are invited to endorse them as 6 Post Office POLICY", in capital letters." 7 But I don't think we've got a document that 8 either carries that into effect or says, "No, 9 something different is going to occur". 10 So, just on paragraph 6 as it's worded, it 11 would be wrong to take from that that the HR 12 people were making decisions about both limbs of 13 the test, correct? 14 A. Yes, correct. 15 Q. It would be wrong to take from that that the 16 Legal Services Department were giving advice to 17 the HR team about sufficiency of evidence. They 18 were taking decisions on sufficiency of 19 evidence? 20 A. Yes, the Criminal Law Team were taking 21 decisions. 22 Q. Thirdly, it would be wrong to say that the 23 Criminal Law Team were giving advice as "to the 24 potential for embarrassment to be caused to the 25 Post Office as a relevant consideration"? 83 1 A. Yeah, I can't -- I don't recall ever doing that. 2 Q. Can we move forwards then, please, to 2007, 3 which we've looked at already. It's 4 POL00030578. It's page 3 and paragraph 3.2.9: 5 "Suspect offenders will be prosecuted where 6 this sufficient evidence and it is in the public 7 interest in accordance with the Code for Crown 8 Prosecutors. Decisions to prosecute in 9 [non-CPS] cases will be taken by nominated 10 representatives in the business with 11 consideration to the advice provided by the 12 Royal Mail Group Criminal Law Team." 13 So from 2007, taken out of the hands of 14 Human Resources; is that right? 15 A. Yes, but it was, again, somebody within the 16 business. I think it was -- the wording was 17 used is "nominated representative"? 18 Q. Yes. Who were the nominated representatives 19 within the business -- 20 A. In 2000 -- 21 Q. -- from 2007 onwards, taking decisions on 22 prosecutions? 23 A. I don't recall which team was nominated 24 representatives. I can't recall. 25 Q. As a matter of practice, from 2007 onwards, who 84 1 was taking decisions on whether a subpostmaster 2 or counter clerk should be prosecuted? 3 A. Somebody outside of the Investigation team. 4 Q. But who? 5 A. I don't remember which team it was. 6 Q. But they were now taking decisions on both limbs 7 of the test; is that right? 8 A. No. 9 Q. What was happening, then? 10 A. Well, it was the same as before. Basically, the 11 Criminal Law Team would advise on the evidence 12 and, if there was sufficient evidence with 13 a realistic prospect of securing a conviction, 14 the papers would then go to whoever was the 15 nominated representative within the business to 16 decide on the public interest factor. 17 Q. So this is wrong too? 18 A. Is it wrong? 19 Q. Well, this appears to suggest that both limbs 20 are being taken by this nominated 21 representative -- sorry, both limbs of the test 22 are being considered by this nominated 23 representative of the business but that's with 24 consideration to the advice provided by the 25 Criminal Law Team. Whereas, on your account, 85 1 what it should say is "There are two limbs to 2 the test, evidential sufficiency and public 3 interest. The Criminal Law Team will take 4 decisions as to the first limb, sufficiency of 5 evidence, and will make a decision as to whether 6 there's a realistic prospect of conviction". 7 Full stop. "A nominated representative of the 8 business will take decisions as to the second 9 limb of the test, the public interest test, in 10 accordance with the Code for Crown Prosecutors. 11 They may do that by considering the advice 12 provided by the Criminal Law Team". 13 A. Yeah. The nominated representative didn't take 14 decisions on the evidence. It was purely the 15 public interest test. 16 Q. So this policy doesn't represent reality either? 17 A. Not on that wording, no. 18 Q. Can we turn, please, to September 2008 and 19 POL00030800. Can you see that you're the owner 20 of this policy? 21 A. Yes. 22 Q. It says it was dated or created in September 23 2008 but it's effective from two and a half 24 years later? 25 A. Yes. 86 1 Q. Can you help us with what's happened there? 2 A. Basically, I think that what that means is that, 3 in September 2008, this policy came to fruition 4 and then, between 2008 and 2011, it will have 5 been reviewed each year but this, in 2011, was 6 being reissued. 7 Q. I see. So the update was effective from April 8 2011, albeit the policy in a potentially 9 different form had been created from and was 10 effective from September 2008? 11 A. Yeah, I think that's what this means, yes. 12 Q. Okay, let's take this as being effective from 13 September 2008 then and can we turn to the 14 second page, please, and look at paragraph 4, 15 and 4.1: 16 "The decision to prosecute Royal Mail Group 17 investigation cases in England and Wales will be 18 reached in agreement between the Human Resources 19 Director for the affected business unit or his 20 or her nominated representative, the nominated 21 representative from the Investigation team and 22 the lawyer advising." 23 Can you see this is a yet further difference 24 from that which we've seen before? 25 A. Yeah, I mean, I think what's -- what that's 87 1 saying is, effectively, the lawyer will advise, 2 and the -- again -- I mean, it's not worded in 3 this way, but again, the Human Resources 4 Director will make the decision. 5 Q. Which decision? 6 A. On the public interest test. 7 Q. Again, it doesn't say any of that, does it? 8 A. No, it doesn't say that. 9 Q. So this is the third policy that we've looked at 10 that doesn't say what it should; is that right? 11 A. That's right. 12 Q. So how has that come about? You, I think, wrote 13 this? 14 A. Yeah, I -- I don't know how it's come about. It 15 would have been so easy to put it in more 16 appropriate wording. 17 Q. But you're telling us that's what written as the 18 prosecution decision-making policy here is not 19 correct, in that it did not reflect reality? 20 A. Well, in one sense, the Human Resources Director 21 will reach the decision to prosecute because he 22 has the final decision on whether it's in the 23 public interest. And the lawyer was advising 24 that the evidential test had been met, so it 25 just is not specifically referring to those two 88 1 facts. 2 Q. Well, it's saying that it's a three-way 3 decision, in which there must be agreement, and 4 it doesn't divide the test into two. Correct? 5 A. Yes. 6 Q. To what extent did a nominated representative 7 from the Investigation team, in fact, 8 participate in decision making on either 9 evidential sufficiency or the public interest? 10 A. They -- I don't know whether this is one of the 11 policies which changed the wording in relation 12 to where somebody had been placed back on duty 13 or not. But if this was one of the policies, 14 I think the wording for that included the Head 15 of Investigations and myself, as being -- 16 advising the nominated representative. 17 This I what I referred to before where 18 a number of individuals were put back on duty 19 and effectively precluded us pursuing 20 a prosecution. 21 Q. Can I ask the question a different way again. 22 Did a member of the Investigation team 23 participate -- sorry, a nominated representative 24 from the Investigation team participate in 25 decision making on evidential sufficiency? 89 1 A. No. 2 Q. Why does it say that they do? 3 A. The only reason I can think of is where, as 4 I just pointed out, that we had this problem 5 but, no, they didn't. 6 Q. Did a nominated representative from the 7 Investigation team participate in decision 8 making on the public interest? 9 A. No. 10 Q. Why does it suggest that they do? 11 A. It shouldn't have. 12 Q. But why does it? Why is it, in almost every 13 material respect, wrong? 14 A. I don't know. 15 Q. Can we move forwards, please, to January 2011, 16 and we looked at this before. It's POL00030598. 17 Remember, we looked at this, January 2011. If 18 we go down to paragraphs 4.3 and 4.4, which is 19 at the foot of the page, 4.3: 20 "The ... Criminal Law Team will be familiar 21 with both the evidential and the public interest 22 tests in the Code ... and [will] advise 23 accordingly. 24 "The ... Human Resources Director, or in 25 Post Office Limited cases the Senior Security 90 1 Manager ..." 2 Just shopping there, the cases that we are 3 considering are all Post Office Limited cases -- 4 A. Yes. 5 Q. -- so it's the Senior Security Manager that we 6 are considering? 7 A. Yes. 8 Q. "... will act as the 'Decision Maker' in 9 authorising prosecutions or not. All Decision 10 Makers will be familiar with evidential and the 11 public interest tests of the Code for Crown 12 Prosecutors and make decisions accordingly." 13 The document embeds the Code in it and draws 14 attention to the pages on which the two tests 15 are set out. So does it follow that, from 16 January 2011 onwards, the Senior Security 17 Manager took all decisions as to authorise 18 a prosecution and they took decisions both as to 19 evidential sufficiency and public interest? 20 A. It shouldn't have been evidential. 21 Q. So this is wrong too? 22 A. Yeah. The lawyer would have done that. But 23 they did take the overall decision whether to 24 prosecute or not. 25 Q. So, again, this should bifurcate the process 91 1 between evidential sufficiency and public 2 interest, saying that evidential sufficiency is 3 the decision of the lawyer and public interest 4 is the decision of the Senior Security Manager? 5 A. Yes. 6 Q. So all relevant policy documents failed to 7 describe accurately the Post Office's 8 prosecution decision-making process; is that 9 right? 10 A. Yes. 11 Q. Can we take that down, please, and move on. 12 In paragraph 5 of your witness statement, 13 perhaps if we turn that up, which is on page 3 14 of your witness statement, you say: 15 "The [Criminal Law Team's] role so far as 16 the policies and practices relating to the 17 prosecution of subpostmasters, managers, 18 assistants and Crown Office employees was to 19 assess the evidence obtained, independently and 20 consider whether the evidence was reliable and 21 credible." 22 Yes? 23 A. Yes. 24 Q. That mirrors an answer to a couple of questions 25 that I asked you earlier about whether the 92 1 lawyer was to include, as part of their 2 function, an assessment of reliability and 3 credibility of evidence. 4 In cases founded on Horizon data, did the 5 lawyer's function, therefore, include 6 an assessment of whether the Horizon data was 7 reliable and credible? 8 A. Yes. 9 Q. Did it include that duty, even if the suspect 10 had not suggested in interview or otherwise that 11 there was likely to be or potentially a problem 12 with the Horizon system? 13 A. Yes. 14 Q. Is that because of the answer that you gave 15 earlier: that if you're founding a prosecution 16 on computer-based evidence, you need to assess 17 the reliability and credibility of the evidence 18 produced by the computer? 19 A. Yes. 20 Q. Is it right that there was some resistance 21 within the Criminal Law Team to the CPS 22 prosecuting any cases involving Horizon data? 23 A. Yes, we would prefer to have prosecuted our own 24 cases. 25 Q. Why was that? 93 1 A. Well, because we -- we had a team of 2 investigators who were familiar with the 3 processes and procedures in Post Office Limited, 4 and we felt that we, of course, were familiar 5 with the prosecutions and we thought it would be 6 easier for us to continue the prosecutions. 7 I mean, I know that some CPS did actually 8 prosecute our cases but, if they wanted to 9 retain the papers, then they would retain the 10 papers and that was the end of it. 11 Q. Can we look, please, at POL00106867, please. 12 This is a long email chain. Can we look at 13 page 7, please. We're going to come back to 14 this chain later on today but can we see here 15 an email from you to Sue Lowther, Andy Hayward, 16 Dave King, Dave Posnett and David Smith, that's 17 David X Smith -- yes -- 18 A. Yes. 19 Q. -- dated 9 March 2010. You say: 20 "We have additional difficulties in relation 21 to challenges to Horizon. Today I have been 22 made aware of a prosecution being conducted by 23 the CPS where Horizon is being challenged. The 24 case may already have been identified by you. 25 The difficulty however will be our lack of 94 1 control over any case that's not being 2 prosecuted by my team." 3 What were the additional difficulties you 4 referred to in the first line? 5 A. Well, it would be to do with whether the police 6 could obtain the relevant information from 7 Fujitsu, whether they would know where to obtain 8 the evidence in relation to the -- that they 9 would need in relation to the prosecution and, 10 basically, how the system worked, whether they 11 would be able to glean enough information to 12 sustain the prosecution. 13 Q. This exchange here is all in the middle of 14 a discussion, I think you'll be aware, over 15 what, in the title is described as "Horizon 16 disputed cases", and whether to get in 17 an external reviewer to validate the robustness 18 of Horizon? 19 A. Yes. 20 Q. If there was no concern or question about 21 Horizon's integrity being able to be evidenced 22 in court, why were you expressing a concern that 23 you would lack control over any case that isn't 24 prosecuted by your team? 25 A. Well, it depended how the CPS would react to the 95 1 prosecution and react to requests for 2 disclosure. 3 Q. But, Mr Wilson, if the CPS were applying the 4 same Code tests, why would the Post Office be 5 concerned about any question of Horizon 6 integrity being raised in a CPS-led prosecution? 7 A. Because they might not know where to go to to 8 obtain the evidence. 9 Q. You could tell them, "Just go off to Fujitsu, 10 they'll help you out like they help us out"? 11 A. Yes, I could, if they asked a question, yes. 12 Q. You refer in the last paragraph to the "lack of 13 control". In what way did your team exert 14 control over prosecutions involving Horizon 15 challenges? 16 A. Well, our control would be over the 17 Investigators and whether they'd obtained 18 sufficient evidence. 19 Q. Were you concerned that, if the CPS were 20 involved in cases concerning challenges to 21 Horizon integrity, that the control that your 22 team exerted over the revelation of problems 23 with Horizon integrity would be lost? 24 A. I don't think we were controlling the revelation 25 of Horizon issues. 96 1 Q. Is this a reference to the need to close down 2 challenges to the integrity of Horizon -- 3 A. No. 4 Q. -- to protect the position or the commercial 5 position of the Post Office? 6 A. No. 7 Q. So why couldn't the Post Office just signpost 8 the CPS, if it was necessary, to Fujitsu? 9 A. Well, we could have done, if they'd asked us the 10 question -- asked the question. 11 Q. You think that they wouldn't ask the question? 12 A. Well, I don't know what they would have asked. 13 All I think that had happened here is I'd been 14 told that the CPS were prosecuting one of the 15 cases. So I'm not sure that I even knew where 16 it was at the time. 17 Q. Were you essentially highlighting a red flag or 18 raising a red flag here by saying, "Hold on, we 19 can't just control our own prosecutions, the 20 ones conducted by my team. If we start 21 independently investigating Horizon through the 22 use of an external expert, we've got to take 23 into account what the CPS might do with such 24 evidence". 25 A. No, I mean, I can remember speaking to the Crown 97 1 Prosecution Service about some of our cases that 2 they had but I would speak to them because I had 3 knowledge of where they were and who they are 4 and I had a contact point and, no doubt, that 5 was found out by the Investigator. So I'd ring 6 them up and have a discussion. So I was 7 perfectly happy to help the CPS if they needed 8 assistance. 9 Q. That can come down, thank you. 10 Can we turn to a different topic, 11 disclosure. How did you and your colleagues in 12 the Criminal Law Team supervise the conduct of 13 the disclosure process in criminal proceedings? 14 A. You mean on an individual case basis? 15 Q. Yes. Yes, if you can describe what processes 16 were in place, the roles undertaken by your 17 team? 18 A. Well, we would receive the case papers from the 19 investigator and he would be asked to prepare 20 a schedule of non-sensitive unused material and 21 highlight whether there was any material that 22 undermined or assisted -- undermined our case or 23 assisted the defence. And, when the case had 24 been committed for trial, we would receive 25 defence case statements from the defence and we 98 1 would submit those to the Investigator to 2 identify any material that required to be 3 disclosed. 4 If there was any issue in relation to the 5 defence statement and it needed explaining, we 6 would contact the solicitor and request 7 an explanation. We would resubmit any papers to 8 the defence that provided additional disclosure 9 that the Investigator had identified from the 10 defence statement and we would keep the case 11 continually under review until its conclusion. 12 Q. Thank you. In all of that, you mentioned going 13 back to the Investigator. You didn't mention 14 a Disclosure Officer. 15 A. Well, yeah, the Disclosure Officer could be the 16 Investigator, normally was the Investigator. If 17 the case was particularly complex or voluminous, 18 then a separate Disclosure Officer would be 19 designated to deal with disclosure on that 20 particular case. 21 Q. Did that happen in practice? 22 A. Yes. 23 Q. Was the process any different in cases which 24 involved a challenge to the integrity of Horizon 25 data? 99 1 A. No, I don't think so. 2 Q. Were any special instructions given to 3 Investigators or Disclosure Officers in cases 4 involving challenges to the integrity of 5 Horizon, as to what they should do about 6 disclosure, in terms of to whom they should turn 7 in Fujitsu or within other parts of the Post 8 Office to obtain appropriate disclosure? 9 A. I think the Investigators knew more about who 10 worked in the different areas within Fujitsu 11 than we -- than the lawyers will have known. 12 And, therefore, they will have had -- they will 13 have developed contact points within Fujitsu to 14 obtain the relevant information that they needed 15 to obtain. 16 Q. Can I look at something that the Court of Appeal 17 Criminal Division noted when considering 18 disclosure in its judgment in the Hamilton and 19 others appeals. It, in fact, involves the Seema 20 Misra case. We're going to return to that in 21 detail in December but I just want to look at 22 this for present purposes because it concerns 23 the completion of an unused material schedule. 24 Can we turn up, please, POL00113278 and can 25 we turn to page 24, please. It's paragraph 91. 100 1 The court says: 2 "The material which we have seen includes 3 other indications of the approach to Horizon 4 issues taken by at least some [Post Office 5 Limited] personnel involved in the conduct of 6 these and similar prosecutions. For example, in 7 relation to the prosecution of Seema Misra, 8 an appellant in whose case it is now accepted 9 that there was a failure of disclosure ..." 10 Then it continues. It goes to (ii). It 11 speaks about a schedule of sensitive material 12 being prepared. I'm not actually convinced that 13 this schedule of material was a schedule 14 relating to Seema Misra's case, despite what 15 Lord Justice Holroyde says, but that does not 16 matter for present purposes because it is 17 an unused material schedule. 18 It reads: 19 "On 15 January ... a schedule of sensitive 20 material was prepared. The Disclosure Officer 21 who signed it stated that she believed the 22 single item listed on the schedule was 23 sensitive. The item was described as 'Article 24 relating to integrity of Horizon system, 25 supplied with accompanying letter by defendant'. 101 1 The reason for sensitivity was said to be 'Could 2 be used as mitigation, ie to blame Horizon for 3 loss'. Given that the item appears to have been 4 a document supplied by the defence, the 5 appellant was not in fact deprived of material 6 she should have seen; but the important point 7 for present purposes is that a [Post Office] 8 employee acting as Disclosure Officer felt it 9 appropriate to treat a document as sensitive, 10 and withhold it from disclosure, because it 11 could be used to assist the defence. Such 12 an approach to disclosure is plainly wrong, but 13 it does not appear that any action was taken by 14 anyone on behalf of [Post Office Limited] to 15 correct the officer's serious error." 16 I think you would probably agree that 17 an approach of listing an article that came from 18 the defendant, which sought to blame Horizon for 19 the loss and, therefore, could be used as 20 mitigation is not a sufficient reason to put 21 an item on an unused material sensitive 22 schedule? 23 A. Yes. 24 Q. What level of supervision did your team exercise 25 over the completion of unused material 102 1 schedules, both sensitive and non-sensitive? 2 A. Well, we would look at the schedule, we would 3 copy the material and we would tick off, 4 effectively, whether it was -- whether we agreed 5 that it was rightly placed on the schedule of 6 unused material or whether it should have been 7 placed on another material, or whether it 8 undermined the prosecution case or supported the 9 defence. 10 So we would have a look at the individual 11 items. We would ensure that where there were 12 a large number of documents that were being 13 produced under a generic title, that they were 14 split up and described more properly, and we 15 would generally critique what we'd received. 16 Q. So it follows that this schedule would have 17 passed through or passed across the eyes of 18 a member of your Criminal Law Team? 19 A. Yes. 20 Q. I think you'd probably agree that it therefore 21 paints something of a poor picture in relation 22 to the safeguards in place? 23 A. Yes. 24 Q. Was what we read here indicative of the attitude 25 of the Security team to challenges to Horizon, 103 1 namely that they were seen as sensitive and 2 something that should be hidden away? 3 A. I don't think that was indicative. I think -- 4 I don't know who the Disclosure Officer was, but 5 it was completely inappropriate that -- and 6 plainly wrong that that item should have been on 7 a schedule of sensitive material. 8 Q. Was it the case that the unearthing of any 9 criticism of Horizon, even if it came from the 10 defence, ought to be avoided because it was 11 sensitive for the Post Office? 12 A. You'll have to ask the Investigators that, but 13 I wouldn't have believed -- it's 14 an extraordinary decision that this particular 15 Investigator made in relation to that document. 16 MR BEER: Thank you. 17 Sir, we're about to turn to a new topical. 18 I wonder whether we might break until 2.00. 19 SIR WYN WILLIAMS: Of course. So we'll resume at 20 2.00. 21 MR BEER: Thank you very much, sir. 22 (12.59 pm) 23 (The Short Adjournment) 24 (2.00 pm) 25 MR BEER: Good afternoon, sir, can you see and hear 104 1 me? 2 SIR WYN WILLIAMS: Yes, thank you. 3 MR BEER: Thank you very much. In a moment I'm 4 going to turn back to one additional set of 5 questions on prosecutorial policies and who was 6 responsible for decision making, but there's 7 a slight IT problem which needs to be resolved 8 before I do so. So can we turn to a separate 9 topic, please, which is expert evidence. 10 Can we turn up page 23 of your witness 11 statement, please. It's paragraph 51. You tell 12 us the guidance given to expert witnesses called 13 on behalf of the Post Office was the same as 14 that of a non-expert witness, namely that the 15 witness statement should be truthful and, if it 16 were otherwise, they could be liable to 17 prosecution, yes? 18 A. Yes. 19 Q. Then, in the remainder of the paragraph, is this 20 right, you go on to tell us about some duties 21 that an expert, in fact, owes? 22 A. Yes. 23 Q. So dealing with the first sentence then, what 24 guidance was given to expert witnesses -- 25 A. I don't recall -- 105 1 Q. Hold on. I haven't asked the question yet, 2 sorry. I was pausing myself. 3 A. Okay. 4 Q. In relation to what you say there, the guidance 5 given was the same as a non-expert witness 6 namely they should be told to tell the truth 7 and, if it proved otherwise, they could be 8 liable to prosecution. That tends to suggest 9 that they were told two things, yes, and they 10 were only told those things that also applied to 11 a witness of fact, a non-expert; is that right? 12 A. Sorry, say that again, please? 13 Q. Yes. It tends to suggest that they were told 14 the same things as applies applied to a witness 15 of fact, a non-expert witness, namely the duty 16 to tell the truth, and the consequences if they 17 didn't tell the truth, ie they could be 18 prosecuted? 19 A. Yes. 20 Q. You may know that we've received some expert 21 evidence ourselves on the duty of an expert 22 witness across the period 2000 to 2013 on the 23 relevant duties of an expert witness, and upon 24 the duties upon a prosecutor seeking to rely on 25 an expert witness across that period. I want to 106 1 put, if I may, some elements of the evidence 2 that we heard to see whether you agree or 3 disagree with them. 4 Would you agree that the prosecutor must 5 provide an expert with instructions as to the 6 issue or issues upon which his or her opinion is 7 sought? 8 A. Yes. 9 Q. Would you agree that the prosecutor must provide 10 the expert with questions which the expert is 11 expected to address or to answer? 12 A. Yes. 13 Q. Would you agree that the prosecutor must supply 14 an expert with material upon which the 15 prosecution relies and which may be relevant to 16 the questions which the expert is expected to 17 answer? 18 A. Yes, if the evidence is relevant, yes. 19 Q. Do you agree, secondly, that, throughout this 20 period, 2000 to 2013, a prosecutor intending to 21 rely on expert evidence in criminal proceedings 22 was under a duty to satisfy themselves as to the 23 expert's relevant qualifications and expertise? 24 A. Yes. 25 Q. They were required to satisfy themselves that 107 1 the expert had been appropriately instructed, 2 including by the provision of a letter of 3 instruction or terms of reference? 4 A. Yes. 5 Q. That they were required to satisfy themselves 6 that the expert had been informed as to their 7 relevant duties, including a duty to the court? 8 A. Yes. 9 Q. The prosecutor, in that period, was required, 10 would you agree, to satisfy themselves that the 11 expert had understood and had complied with 12 their duties to the court? 13 A. Yes. 14 Q. They, the prosecutor, would you agree, was 15 required to satisfy themselves that any 16 literature or material which undermines the 17 expert's conclusions had been reviewed by the 18 prosecutor and, where appropriate, disclosed to 19 the defence? 20 A. Yes. 21 Q. And lastly, the prosecutor was required to bring 22 to the attention of the defence and to the court 23 any material which the prosecutor was aware was 24 reasonably capable of undermining the expert's 25 opinion -- 108 1 A. Yes. 2 Q. -- and that includes matters relating to the 3 expert's qualifications, the factual basis for 4 their opinions and their credibility? 5 A. Yes. 6 Q. Thirdly, would you agree that, if a prosecutor 7 wishes to rely on an expert witness in this 8 period, the prosecutor must be or is duty bound 9 to ensure that the individual concerned, the 10 expert, actually understands that they're giving 11 evidence in the capacity of expert witness and, 12 therefore, special duties apply to them? 13 A. Yes. 14 Q. Fourthly, would you agree that any duties of 15 disclosure that are required to be discharged 16 are those of the prosecutor and that they can't 17 subcontract them to the expert themselves? 18 A. Yes. 19 Q. Fifthly, would you agree that, if a party seeks 20 to rely on an expert who is not functionally 21 independent of a party in the case, then the 22 party is under a particular obligation to show 23 that the expert understands the duties to which 24 he or she is subject -- 25 A. Yes. 109 1 Q. -- and that that applied, in this case, in that, 2 if expert witnesses, such as Mr Gareth Jenkins, 3 were called, who were not functionally 4 independent from the Post Office, they were not 5 akin to conventional experts, who were 6 accustomed and trained to giving expert 7 evidence. 8 You were under, your team was under 9 a particular duty to ensure that those 10 individuals, including Mr Jenkins, understood 11 the duties to which they were subject? 12 A. Yes. 13 Q. You tell us at the beginning of this paragraph 14 that the guidance given to expert witnesses, was 15 that they were told that they needed to tell the 16 truth and, if they weren't, they could be 17 prosecuted, does it follow that the list of 18 things that I've just read out were not 19 undertaken in relation to experts called by or 20 on behalf of the Post Office in the relevant 21 period? 22 A. Yes. 23 Q. How did that come about, then? 24 A. Because, at the time, I believed that Gareth 25 Jenkins understood his duties, that he was 110 1 cross-examined by the defence and 2 examined-in-chief by the prosecution to outline 3 his expertise and that, from that information, 4 I believed that he fully understood that he was 5 independent and objective, irrespective of the 6 fact that he was employed by Fujitsu and was 7 giving evidence in relation to his employer and 8 Post Office Limited. 9 Q. The things you've just spoken about there all 10 happened once he was in the witness box? 11 A. I understand that. 12 Q. The things I've spoken about happen before we 13 get to the witness box, don't they? 14 A. Yes. 15 Q. What was done to ensure the list of things that 16 I have read out, that all happen before somebody 17 walks into the witness box, were done? 18 A. I don't recall. I don't specifically recall 19 ever seeing Mr Jenkins, although I must have met 20 him at some point in time, and I believe I may 21 well have been present when he was in court, 22 although I can't recall that happening. 23 Q. If we go forward to paragraph 54 of your witness 24 statement, please. Thank you. It's the last 25 line. You say something similar to that which 111 1 you said a moment ago: 2 "Gareth Jenkins was aware that his duty was 3 to the court and not to the [Criminal Law Team] 4 who instructed him or Fujitsu who paid him." 5 A. Yes. 6 Q. On what basis do you say that Gareth Jenkins was 7 aware that his duty was to the court? 8 A. I believe that he will have understood that from 9 either the solicitor dealing with him in the 10 particular case/cases that he was involved or, 11 indeed, from when he was cross-examined by the 12 defence or examined-in-chief by the prosecuting 13 barrister when he was giving evidence. 14 I believe it will have been explained to him 15 then and that he would have known on the first 16 occasion. 17 Q. Thank you. That can come down. 18 Was there any Post Office policy guidance or 19 protocol which reflected any of the principles 20 which I grouped into five and which I mentioned 21 a moment ago? 22 A. No. 23 Q. Was there, therefore, a complete absence of any 24 Post Office policy guidance or protocol giving 25 instructions either to investigators or to 112 1 prosecutors as to how to handle expert evidence? 2 A. Yes. 3 Q. Can you identify any steps that were taken to 4 satisfy the Criminal Law Team that Mr Jenkins 5 enjoyed relevant qualifications and expertise? 6 A. Sorry, can you -- 7 Q. Yes, are you aware of any steps that the 8 Criminal Law Team took to satisfy itself or 9 themselves, the members of the Criminal Law 10 Team, that Mr Jenkins enjoyed the relevant 11 qualifications and expertise to give evidence as 12 an expert? 13 A. I believe that his credentials were looked up. 14 I may be wrong in saying that I thought he was 15 a professor. He certainly had some 16 qualifications that appeared to be relevant to 17 his position within Fujitsu. I forget whether 18 it was a doctorate or some other qualification. 19 So my understanding from his qualifications is 20 that he appeared to be an expert in his 21 particular field. 22 Q. Are you aware of any steps taken by members of 23 the Criminal Law Team to ensure that Mr Jenkins 24 was appropriately instructed by provision of 25 a relevant and detailed letter of instruction or 113 1 terms of reference? 2 A. I don't know when he was identified as an expert 3 witness. That could have been before I took 4 over the team but, if it was when I was in the 5 team, then that issue was not addressed. 6 Q. Are you aware of any steps taken by members of 7 the Criminal Law Team or by yourself to satisfy 8 themselves or yourself that Mr Jenkins had 9 understood and thereafter complied with his 10 duties as an expert witness? 11 A. I don't recall. 12 Q. What steps, if any, were taken to ensure that 13 the documents that Mr Jenkins produced and which 14 were submitted to the court by way of a witness 15 statement, rather than an expert report, 16 complied with the requirements at common law 17 before 2006 and then by reference to the 18 Criminal Procedure Rules from 2006 onwards as to 19 the contents of an expert report? 20 A. I don't know what steps were taken, but 21 I believe that -- from his witness statements 22 that had he -- had we failed to deal with that 23 properly, then counsel would have pointed that 24 out to me. 25 Q. Are you aware of what were called the Ikarian 114 1 Reefer duties in terms of the contents of 2 an expert report? 3 A. I don't recall that, no. 4 Q. Do you remember those requirements which arose 5 in a civil case called the Ikarian Reefer being 6 applied at common law to criminal proceedings? 7 A. I don't recall. 8 Q. Do you remember in 2006 the Criminal Procedure 9 Rules incorporating them as a matter of law from 10 the common law into the Criminal Procedure 11 Rules? There are 13 requirements, or so, of 12 an expert report? 13 A. I may have done at the time -- I may have at the 14 time but I can't recall now I'm afraid. 15 Q. You mentioned a moment ago that you would assume 16 or believe that, if the report was in any way 17 division, that counsel would have pointed it out 18 to you? 19 A. Well, not necessarily prosecution but defence 20 counsel, as well, yes. 21 Q. That's not really how the law operates though, 22 is it? 23 A. No, I -- 24 Q. I think you'll understand. 25 A. I fully understand that, yes. 115 1 Q. That duties imposed by the law by statute or in 2 delegated legislation, or another form of legal 3 instrument, are imposed on the prosecution and 4 one can't delegate that to the defence to pull 5 you up? 6 A. No, I do understand that, yes. It was my 7 responsibility. 8 Q. In your witness statement at paragraph 19, 9 I wonder whether we could turn that up, please, 10 it's on page 10, this was in answer to 11 a question that I think we directly asked you as 12 to what independent oversight was exercised in 13 respect of the conduct of prosecutions. You 14 answered at 19: 15 "There was no independent oversight 16 exercised in respect of the conduct of 17 prosecutions." 18 Is that right? 19 A. Yes. 20 Q. Does it follow that you wouldn't regard the 21 instruction of counsel to prosecute a case as 22 a form of independent oversight? 23 A. I didn't consider counsel in the context of the 24 question. I thought you meant some external 25 body like the Attorney General's office or the 116 1 Crown Prosecution Service. 2 Q. Thank you. That can come down. Do you, with me 3 reformulating the focus of the question, think 4 that counsel instructed by the Post Office 5 provided some form of independent oversight in 6 respect of the conduct of prosecutions? 7 A. Yes. 8 Q. Who ordinarily settled the indictment in a case 9 that was committed to the Crown Court? 10 A. Counsel. However, the solicitor drafted the 11 indictment for counsel's consideration and 12 approval. 13 Q. Was there a policy that counsel had to advise on 14 evidential sufficiency in each case? 15 A. Yes. 16 Q. Did they, therefore, have to advise in every 17 case that there was sufficient evidence of 18 a realistic prospect of a conviction? 19 A. Yes. 20 Q. Can we just turn up paragraph 33 of your witness 21 statement, please, which is on page 15. If we 22 scroll down, thank you. You say: 23 "There were occasions when counsel's advice 24 was sought prior to a decision to prosecute 25 being reached. The CLT did not seek advice from 117 1 external lawyers. Seeking advice from counsel 2 on certain matters continued throughout my role 3 in the CLT. Such advice was occasionally sought 4 in complex [matters]." 5 That was rather different from what you just 6 said, which was, in all cases, counsel advised 7 on evidential sufficiency. 8 A. Yeah, what I'm saying there is that, in complex 9 cases, we would ask counsel for their initial 10 advice prior to drafting charges, but this 11 paragraph 33 -- so that's paragraph 33. What 12 I was saying before was once we had charged and 13 case had been committed to the Crown Court, we 14 would seek counsel's advice on every case. 15 Q. Counsel's advice about what? 16 A. The evidence. 17 Q. What about the evidence? 18 A. Whether it was sufficient, whether we needed to 19 expand the investigation, lines of inquiry, 20 anything to do with the up and coming Crown 21 Court case. 22 Q. So have I got this right: there was no policy 23 that counsel had to advice pre-decision to 24 charge or decision to initiate a prosecution? 25 A. Yeah, only -- 118 1 Q. That happened occasionally? 2 A. That happened occasionally in complex cases. If 3 we weren't sure of the direction where it was 4 going, what we needed, if we needed any 5 assistance, that initial case would go to 6 counsel. Usually only complex cases. 7 Q. Right. That's paragraph 33. 8 A. Yeah. 9 Q. That can come down. Then, on the other hand, 10 you're telling us that, in every case, counsel 11 advised, as a matter of course, post-initiation 12 of proceedings on whether there was sufficient 13 evidence to secure a realistic prospect of 14 a conviction? 15 A. Yes. 16 Q. So, in all of the cases we're going to look at, 17 we should find such an advice? 18 A. Well, it was not whether there was a realistic 19 prospect of conviction; it's whether we needed 20 to get other evidence, whether there were lines 21 of inquiry that counsel would suggest that we 22 ought to pursue. 23 Q. Ah, right. Well, that's rather different from 24 what you said a moment ago. 25 A. I'm sorry that I've misled you. 119 1 Q. We've certainly got advices and advice on 2 evidence where counsel says, "On page 444 3 there's a reference to Mr So-And-So, he ought to 4 be traced". 5 A. Mm, yeah. 6 Q. "On this exhibit, it's got the exhibit reference 7 SG1, I think that should be SG4, or is there 8 an SG4?", or something like that. 9 A. Yeah -- 10 Q. Or "We need to bottom this out" or "that out"? 11 A. Yes. 12 Q. Not in each and every case addressing 13 fundamentally, or addressing at all, the 14 question "On the evidence before me, there is or 15 there is not a realistic prospect of 16 conviction"? 17 A. No, I'm sorry; I misunderstood your question. 18 Q. Why wasn't such advice sought? 19 A. About the realistic prospect of conviction? 20 Q. Correct. 21 A. Because I believe that when the case had been 22 committed for trial, there was sufficient 23 evidence to afford a realistic prospect of 24 conviction. 25 Q. What duties did you understand counsel to be 120 1 subject to after a prosecution had been 2 initiated, in reviewing the state of the 3 evidence? 4 A. Well, I think counsel's duties would be to point 5 out to us, if there were any failings in the 6 evidence, whether the case was robust enough to 7 continue within the Crown Court and -- but 8 advise on additional evidence, if appropriate. 9 Q. So, even if they weren't asked to advise on 10 whether there was a realistic prospect of 11 a conviction, did you understand them to hold 12 a professional duty to review the evidence and 13 to advise if they considered that the evidential 14 test or, indeed, the public interest test had 15 not been met? 16 A. Yes, I'm sure counsel would have done that 17 automatically. 18 Q. Can you recall cases in which that happened? 19 A. No. 20 Q. Can we turn to a new topic please. Ah, good. 21 I'm told that we can now turn to the hangover 22 from this morning. Can we go to POL00031010? 23 Ms Price, over the lunch hour, helpfully 24 pointed out that there was an additional 25 document in the run of policy documents that 121 1 addressed the issue of who took the decision to 2 prosecute subpostmasters and counter clerks that 3 I ought to draw to your attention. Can we just 4 look at the foot of the first page, please, 5 a bit more. Thank you. 6 Can you see this is dated June 2002? 7 A. Yes. 8 Q. If you look at the top of the page it's 9 described as an "Investigation and Prosecution 10 Policy". It's purpose is to: 11 "... set out the criteria against which 12 Consignia investigates crimes and suspect crimes 13 committed against the Businesses and also define 14 when actions proceed under the criminal law." 15 Would this policy apply to the prosecution 16 of subpostmasters and counter clerks? 17 A. Without seeing it all, I'm not sure. 18 Q. Well, thankfully, it's only a page long. So if 19 we can just scroll down slowly and let you read 20 it because I don't think you will have seen this 21 before. 22 A. Certainly 3.2, "Reporting Offences", they're all 23 Royal Mail offences. 24 Q. The reason for asking you is that there's 25 a sign-off box on the second page -- 122 1 A. Yes. 2 Q. -- and, if we just go to the second page, you 3 can see that, amongst those who gave assurance 4 to the policy, you are named. 5 A. Yes. It looks to me as though that's a Royal 6 Mail, as opposed to Post Office Limited 7 document, because of the people who were 8 involved, Garth McCarron and Paul Woods and Paul 9 Booth, as far as I'm aware, were never in Post 10 Office Limited. They were Royal Mail 11 Investigators. 12 Q. So this policy wouldn't apply to the class of 13 suspects and defendants that we're here 14 considering? 15 A. No, it wouldn't have. 16 Q. Can I just, out of completeness, however, draw 17 your attention to what 3.3 says on the first 18 page. If we scroll down, thank you: 19 "Each case will be dealt with on merit and 20 action taken (if any) will be in accordance with 21 the disciplinary code of the business. 22 "Where evidence of a crimes committed by 23 a Consignia employee against Consignia or its 24 customer is established, the offending employee 25 may also be dealt with in accordance with 123 1 criminal law. The prosecution guidelines of the 2 business will be used in making any decision to 3 proceed under criminal law, in consultation with 4 SIS [that's the Security and Investigation 5 Services] and the Legal Services Criminal Law 6 Division where appropriate." 7 A. Yes. 8 Q. Does that also indicate that this isn't 9 a relevant policy? 10 A. Yeah, I think what it's saying is it could be 11 Parcelforce, it could be Royal Mail but, as 12 I say, those three individuals that are named 13 were not Post Office Limited Investigators. 14 Q. In which case, I'm not going to ask you 15 questions about where that statement of policy 16 may fall short. Can we move on then, please, to 17 the issue of guilty pleas. 18 A. Yes. 19 Q. The Inquiry is in possession of a large body of 20 material which appears to suggest that pleas 21 would not be accepted, guilty pleas would not be 22 accepted, in cases where the basis of plea 23 called into question the integrity of Horizon? 24 A. Yes. 25 Q. Does that sound, as a high-level statement, 124 1 something with which you were familiar in the 2 relevant period we're looking at? 3 A. Yes. 4 Q. Can I just look at three examples of that in 5 action. Can I again start with the Court of 6 Appeal's decision in Hamilton, and I'm using it 7 because it collects together quite a bit of 8 material conveniently. POL00113278. It's 9 page 41, please. 10 Can we look, please, at paragraph 167, which 11 starts at the foot of the page. The court says: 12 "These factors [that's the factors addressed 13 in the preceding three paragraphs] are 14 sufficient for the court to quash Mrs Hall's 15 conviction on both Grounds 1 and 2. We were 16 however presented with further information which 17 bolsters our conclusion that Mrs Hall's 18 prosecution should not have been brought and 19 which forms the basis of [the Post Office's] 20 concession under Ground 2. On 30 June 2011, 21 [the Post Office's] external solicitor wrote to 22 [you] recording what had taken place in court 23 that day, including the basis on which Mrs Hall 24 had pleaded guilty to fraud as an alternative to 25 theft. Despite the fact that Mrs Hall had not 125 1 sought to make any express criticism of Horizon 2 in her defence, the attendance note records the 3 fact that it was made clear that: 4 "'The Prosecution would not accept any 5 criticism or blame concerning the Horizon 6 system'. 7 "[The Post Office] accepts that it was 8 improper to make the acceptability of Mrs Hall's 9 basis of plea to fraud conditional on not making 10 any criticism of the Horizon system." 11 Can we look at the second source of 12 evidence. I'm going to look at all three and 13 then ask you some questions, please. 14 POL00055783. This is an exchange of emails with 15 Dianne Chan, who I think was counsel who 16 prosecuted cases for the Post Office; is that 17 right? 18 A. Yeah, that's right. 19 Q. It's an exchange with you and I think we can 20 glean what's necessary from the top of this 21 page. You say to her on 17 November 2010: 22 "Dianne 23 "Have received a defence statement today, 24 despite the telephone conversation yesterday. 25 A hard copy has been put in the post ... 126 1 "At point 2 the Defence allege that any 2 discrepancy was as a result of the Horizon 3 system. There is also a challenge to the 4 initial missing figure of £18,000 which was 5 reduced according to the Defence statement in 6 a matter of minutes. The statement also 7 maintains that further investigation by the 8 auditor 'would have discovered the whereabouts 9 of the alleged missing sum'." 10 Then you say: 11 "Clearly if there were to be a plea to false 12 accounting but on the basis that the Horizon 13 system was at fault that would not be 14 an acceptable basis of plea for the 15 prosecution." 16 Then the last piece of evidence, please, 17 POL00069878, and if we look at page 2, please. 18 This is from a member of your team, 19 Ms McFarlane, yes? 20 A. Yes. 21 Q. If we just scroll up, please, to the page above, 22 so we can just get a date, 1 December 2006. 23 Yes? Then scroll down, please: 24 "Mandy 25 "Thomas is my Case. 127 1 "He was charged with Theft of [about 2 £48,000]. He blamed the online banking system 3 claiming that reports had several transactions 4 showing NIL transaction. This was looked into 5 and the investigator remained of the opinion 6 that the entries were deliberate & to facilitate 7 fraud. Mr Thomas's expert examined the Horizon 8 I understand from the officer that he took no 9 issue with the system and informed the officer 10 that we would be hearing no more. No Defence 11 expert report was served. 12 "Following the visit, Mr Thomas's Solicitor 13 offered a Plea to False Accounting that in doing 14 so he would not blame Horizon. This was 15 accepted to avoid the cost of a trial. 16 "... nine months imprisonment. Confiscation 17 proceedings ..." 18 This is describing a plea negotiation 19 involving Hughie Thomas, yes? 20 A. Yes. 21 Q. On the basis that the plea would not involve 22 blame being directed towards Horizon? 23 Now, you address this practice, plea 24 negotiations on the basis of Horizon never being 25 blamed, in your witness statement at page 25. 128 1 I wonder whether we could turn that up, please. 2 It's paragraphs 57 to 59. You say: 3 "There are examples in a number of 4 prosecutions where plea bargains were struck 5 before trial where the [Post Office] would offer 6 no evidence on a charge of theft in exchange for 7 a guilty plea on a charge of false accounting." 8 You give some references. 9 "I did not draft charges [you say in 58] of 10 theft in order to put pressure on defendants to 11 offer guilty pleas to charges of false 12 accounting. Charges of theft were only drafted 13 when the evidence was such that it was believed 14 that there was a realistic prospect of 15 conviction of the offender in relation to the 16 theft charge. 17 "59. I consider that a plea to false 18 accounting would not be acceptable if it was put 19 on the basis that the Horizon IT System was at 20 fault because I did not believe this was true 21 and as such felt that such a plea could not be 22 properly accepted." 23 In your years of operating as a lawyer in 24 the Criminal Law Team and then as head of it, 25 had you ever heard of a decision of the Court of 129 1 Appeal called Eden, addressing the Post Office 2 charging practice of charging counts of theft 3 and false accounting? 4 A. Yes. 5 Q. What guidance was issued to prosecutors about 6 the Court of Appeal's comments about the Post 7 Office's practice of charging those counts on 8 an indictment? 9 A. The guidance that I gave was that they should 10 not charge alternative allegations of theft and 11 false accounting; that they should follow Eden. 12 Q. Where is that written down? 13 A. I wrote it to my team. 14 Q. In a guidance document? 15 A. No, I noticed that there was a practice amongst 16 some lawyers of charging both theft -- and with 17 an alternative of false accounting, which 18 I disapproved of. 19 Q. Why did you disapprove of it? 20 A. Well, because it didn't follow R v Eden. 21 Q. In what respect was it wrong? 22 A. Well, it was wrong because R v Eden effectively 23 said you should pin your colours to the mast. 24 There is a case of R v Julian Wilson amongst the 25 papers, where I took on some papers that one of 130 1 my colleagues had -- was responsible for. They 2 were on holiday. My practice, when in charge 3 of -- being in the Criminal Law Team was that, 4 if somebody was on holiday, it was 5 an opportunity for me to undertake work that was 6 necessary at the time, to see what was going on 7 on cases. It was one of the measures that 8 I took, in this particular case, Julian Wilson. 9 The lawyer had charged both theft and false 10 accounting. 11 I prepared the instructions for counsel 12 because the case had been committed for trial 13 and I dropped the charge of theft, proceeded 14 with a charge of false accounting and, in the 15 instructions, I referred counsel to my opinion 16 that there was -- the evidence in relation to 17 theft was not -- I can't remember how 18 I described it, but was not good and that's why 19 I had drop the theft charge and preferred the 20 false accounting. 21 Now, I will have taken that up with the 22 lawyer involved and, at that stage, I would have 23 probably reminded the team that my instructions 24 were that you shouldn't charge both theft and 25 false accounting. You should be pinning your 131 1 colours to the mast. 2 Q. Thank you. Was there anything akin to 3 a playbook or a rulebook for the Criminal Law 4 Team? 5 A. A playbook? 6 Q. Yes, a set of standing instructions as to how 7 they were to go about their work? 8 A. No. But, as the head of the team I received the 9 post every morning, so I could monitor what was 10 going on in relation to individual files and, if 11 I had any concerns about what was going on, 12 I could sometimes see it with the post. Like 13 I've just told you about the case that I took 14 over for somebody who I believe was on holiday 15 at the time, that was another way I tried to 16 monitor cases and, if I had any -- and I also 17 did a random check on committal cases that were 18 in the legal exec's room, where the cases had 19 been committed for trial. I did a random check 20 on a, I don't know, six-monthly basis, 21 three-monthly basis, I'm not sure what it was. 22 Q. Like a dip sample? 23 A. Yeah. So I did that sample and, as a result of 24 those checks, if I felt there was something 25 amiss, then it would be flagged up to the team. 132 1 And one of my concerns did involve a number of 2 lawyers charging both theft and false 3 accounting. 4 Q. Did that happen more than once? 5 A. Yeah, more than once. 6 Q. Why was it happening more than once? 7 A. Because people weren't probably listening to me. 8 Q. You tell us in paragraph 59 that: 9 "... a plea to false accounting would not be 10 acceptable if it was put on the basis that the 11 ... system was at fault because [you] did not 12 believe [it to be] true." 13 A. Yes. 14 Q. Was that a belief which you shared with the rest 15 of the Criminal Law Team? 16 A. I will have done, yes. 17 Q. Was, therefore, this belief something that was 18 turned into a policy, applied in a similar 19 fashion by other prosecuting solicitors under 20 your supervision? 21 A. Not necessarily. 22 Q. Do you think some of them accepted pleas to 23 false accounting on the basis that the Horizon 24 IT System may be at fault, then? 25 A. No. The Code for Crown Prosecutors in 2010, at 133 1 paragraph 10.4, if I've quoted it right, headed 2 "Acceptance of Guilty Pleas", is fairly specific 3 in that it says that, if the prosecution and the 4 defence disagree in terms of the basis of plea, 5 then the matter may be referred for the 6 prosecution to actually call evidence. 7 So my understanding was that it was 8 perfectly proper to require -- to put our case, 9 effectively, to the defence, "This is our view", 10 and, following from that, if I'd not said that 11 we were challenging what the defence's view was, 12 then it would be tantamount to me saying, "We 13 accept there's a problem with Horizon". So -- 14 Q. Where did your -- I'm sorry. 15 A. So I was really following what was in the 2010 16 Code for Crown Prosecutors at that section. 17 Q. What you're referring to there, I think, existed 18 in practice before then, that if there was 19 a material dispute as to the basis on which 20 a person might be sentenced, in some cases it 21 would be permissible to, essentially, canvas 22 that with a court but, in others, it would be 23 necessary for the dispute to form up to a Newton 24 hearing. 25 A. Yes. 134 1 Q. So I don't think there was anything new in the 2 Code, then? 3 A. No, there wasn't but I did double check it 4 because my understanding was that you would have 5 a Newton hearing, as you've just said. 6 Q. But, by the same token, what was the basis for 7 your belief that there were no faults with the 8 IT system, the Horizon IT System, that were 9 capable of forming a basis of plea or, indeed, 10 relevant mitigation? 11 A. Well, because, at that stage, we'd -- we will 12 have had a committal bundle which will have had 13 evidence from Fujitsu, possibly from Gareth 14 Jenkins himself, effectively saying that the 15 system is sound. 16 Q. So it was the Fujitsu evidence that allowed you 17 to have the belief that there were no material 18 faults with the Horizon IT System? 19 A. Absolutely, yes. 20 Q. By this time, if one picks the period of 2010, 21 had there been any independent assessment of 22 Horizon's integrity? 23 A. There hadn't been an independent assessment but 24 Rod -- I've forgotten -- 25 Q. Ismay? 135 1 A. -- rod Ismay had prepared his report, I think it 2 was in August 2010, which effectively vindicated 3 the Horizon system. 4 Q. Is that how you read the Ismay report: that it 5 was a vindication of the Horizon system? 6 A. Yes. 7 Q. Did you regard it as thoroughly independent and 8 objective? 9 A. Yes, it -- yes, I believe it did. As far as 10 I was concerned, it vindicated the system, yes. 11 Q. We're going to come back to Mr Ismay's report 12 later but he's told the Inquiry that his 13 instructions, his terms of reference, were to 14 look for and to include only evidence that 15 showed that Horizon was a robust system and that 16 the data that it produced enjoyed reliability 17 and integrity and not to include anything that 18 showed otherwise; did you know that? 19 A. No. 20 Q. That it was a deliberately one-sided effort? 21 A. No, I didn't know that at all. 22 Q. That the dice were loaded before he even set pen 23 to paper, because it was a myopic view that only 24 looked at material to back the system? 25 A. No. 136 1 Q. You didn't know that? 2 A. No. No, I didn't at all. I think -- 3 Q. He's told us these things from the seat that 4 you're sitting in. 5 A. Yes. No, had I known that, then I wouldn't have 6 given any credence to the -- well, I think I'd 7 have asked him "Well, what was wrong with the 8 system at the time, then"? 9 Q. I think he'd have replied "I'm not allowed to 10 look". 11 A. Well ... 12 Q. Were you relying on Mr Ismay's report after 13 August 2010, therefore, in adopting this 14 practice of refusing to enter plea negotiations 15 if they involved any blaming of the Horizon 16 system? 17 A. Well, I wasn't refusing to enter plea 18 negotiations. What I was saying to the defence 19 is, depending on what they said in the defence 20 statement, look, our view is contrary to your 21 view and that, therefore, this issue may have to 22 be resolved by calling evidence. 23 Q. Thank you. That can come down. Were you aware, 24 by autumn 2010, of the discovery of the receipts 25 and payments mismatch bug? 137 1 A. Was that the Juliet McFarlane bug? 2 Q. No, I don't think it was, from memory. 3 A. Is this the 40 offices? 4 Q. I'm sorry? 5 A. There were 40 -- 6 Q. 40 -- 7 A. -- offices. 8 Q. 14. 9 A. 14? 10 Q. Yes, I think. 11 A. No. I was aware of the Juliet McFarlane where 12 I think there were two of the -- it was the new 13 Horizon problem, I was aware of a Dave Posnett 14 single office problem and I was aware of 15 Jon Longman's. I don't recall the 14 and 16 I don't believe that there are any documents in 17 my papers that refer to that one. 18 Q. Did the information that you received about the 19 problems that you have just identified to us 20 affect your faith in the integrity of Horizon? 21 A. Horizon, the 2007 problem that Dave Posnett 22 referred to, as I recall, was a single office. 23 A fix had been implemented the year after and we 24 were told in 2009 and I wrongly took the view 25 that that needn't be disclosed, I felt at the 138 1 time. Now, looking at it, I should have 2 disclosed that issue. I don't think 3 I considered that the integrity of Horizon had 4 been destroyed by that. 5 The Juliet McFarlane issue we disclosed to 6 the defence and I believe it was referred to in 7 a generic witness statement that was prepared by 8 Fujitsu. And the Jon Longman case, I've 9 recently received some papers from you which 10 explained what the case was, concerning 40 11 offices where there was a problem, and I've been 12 able to read that, and I don't know what 13 happened with that case. 14 But that, as far as I can understand, was 15 a new Horizon issue. So, so far as old Horizon 16 was concerned, I didn't have any belief that 17 there was a problem (a) because of the Rod Ismay 18 report; and (b) because the Seema Misra case had 19 been comprehensively challenged and we'd secured 20 a conviction, and I thought that that supported 21 what we were doing. 22 Q. Thank you. We're going to come back to those 23 three disclosures of bugs when you return on 24 12 December -- 25 A. Right. 139 1 Q. -- and some others too -- 2 A. Right. 3 Q. -- and whether or the extent to which you knew 4 about other bugs when making disclosure 5 decisions. 6 A. Right. 7 Q. Can I turn, as you've mentioned it, therefore, 8 to the Ismay report. Can we look, please, at 9 POL00106867. If we look, please, at page 3 and 10 scroll down, please, we can see a message from 11 Mr Hayward of 26 February 2010 at 5.01 to 12 a range of people, rather senior people, within 13 the Post Office, but not including you. 14 A. Yes. 15 Q. You can see that it refers to a conference call 16 earlier in the day and I think that's 17 a conference call in which you did not 18 participate; is that right? 19 A. That's right, yes. 20 Q. It sets out some agreed next steps, can you see 21 those listed at 1, 2 and 3? 22 A. Yes. 23 Q. The first one, Mr Hayward and Ms Talbot to 24 provide Sue Lowther and David King with 25 information on past and present cases with 140 1 reference to the Horizon challenges, both 2 criminal and civil cases, and Mr Hayward notes: 3 "I have asked the fraud team to review 4 approximately past 2 to 3 years case file 5 although these challenges are of a more recent 6 nature." 7 Then paragraph 3: 8 "Subject to ... 2 above, conduct full 9 investigations into integrity issues with 10 conclusions/report provided. Once investigated 11 and conclusions drawn, gain external 12 verification to give a level of 'external 13 gravitas' to the responses to these challenges. 14 (Recommend Ernst & Young as most suitable 15 partner to complete this ... [to be advised])." 16 Would you agree that this evidences a plan 17 amongst relatively senior member of the Post 18 Office team, setting out a plan to investigate 19 Horizon integrity concerns and challenges? 20 A. Yes. 21 Q. First, there was going to an investigation 22 within the Post Office, an internal 23 investigation, and then an independent review by 24 sudden consultants, possibly Ernst & Young? 25 A. Yes. 141 1 Q. Would you agree that this apparently suggests 2 that there was sufficient concern to consider 3 an investigation to be necessary? 4 A. Yes, I imagine it was. 5 Q. Would that be, would you agree, because it would 6 be important for the Post Office as a business, 7 but also as a prosecutor, actually to appreciate 8 whether or not there were integrity issues with 9 Horizon? 10 A. Yes. 11 Q. That would be important to know to determine 12 whether future investigations and prosecutions 13 could be conducted but also whether duties of 14 disclosure might arise in respect of cases where 15 convictions had already been obtained? 16 A. Yes. 17 Q. Did that independent review, to your knowledge, 18 ever happen? 19 A. Not in the time that I was in the Post Office, 20 no. 21 Q. Can we go forwards, please, to POL00054371 and 22 go to page 2 at the bottom, please. Keep going 23 a bit more, please. We can see an email an hour 24 later from Mr Hayward to the same group of 25 similar people, again not including you? 142 1 A. Yes. 2 Q. Albeit a month later, I think, you get this 3 chain because we just saw from the top you get 4 it in March. He, Mr Hayward, says: 5 "Further to our discussion ... today, 6 additional information in the attached pdf 7 article below. As part of the wider review it 8 may well be worthwhile understanding the 9 'outcome' of each of the case studies 10 referenced, where applicable ... and that may 11 assist in our review." 12 So this was Mr Hayward apparently 13 circulating an article that covered issues about 14 Horizon integrity and contained some references 15 to cases that might need to be included in the 16 review? 17 A. Yes. 18 Q. Can we go to POL00106867 and go to the bottom of 19 the page, please, keep going a little bit more, 20 thank you. Picking up the chain where we left 21 it off, you're now added to this chain as 22 a copy-ee, can you see that? 23 A. Yes. 24 Q. Mr Posnett says: 25 "All, 143 1 "Can we please ensure that Rob Wilson (Head 2 of Criminal Law ...) is kept appraised of the 3 situation and included in any further meetings 4 ... on this subject. Our prosecution cases have 5 faced an increase in challenges as well as our 6 civil cases, so the activities below, and indeed 7 going forward, are applicable to both Legal 8 teams." 9 Would you understand the reference to both 10 legal teams being the civil in the criminal law 11 teams? 12 A. Yes. 13 Q. Thank you. So you're now being included? 14 A. Yes. 15 Q. Can we go to the top of the page, please. Top 16 of page 1. We now have your response -- 17 A. Yes. 18 Q. -- on 3 March. So five or so days later. 19 MR BEER: Can we deal with that after the break, 20 please, sir, and take a 15-minute break until 21 3.15? 22 SIR WYN WILLIAMS: Sorry, I was on mute. I said 23 certainly. 24 MR BEER: Thank you very much, sir. 25 (3.00 pm) 144 1 (A short break) 2 (3.15 pm) 3 MR BEER: Good afternoon, sir, can you see and hear 4 me? 5 SIR WYN WILLIAMS: Yes. 6 MR BEER: Thank you. 7 Mr Wilson, we were looking at POL00106867. 8 Just to remind ourselves of where we are, on the 9 foot of the page, Mr Posnett had copied you in 10 on 1 March to the exchange that had happened on 11 26 February and you replied on 3 March 2010, if 12 we look at the top of the page. 13 Do you know why you weren't involved in this 14 conversation from the outset? 15 A. No, I have no idea. 16 Q. You were a bit annoyed about that, weren't you? 17 A. I certainly was. 18 Q. We can see that from the last paragraph of your 19 email, where you say: 20 "Given the nature of the discussions that 21 took place on [26 February] I am staggered I was 22 not invited to take part in the conference." 23 Why were you staggered? 24 A. Well, because my team needed to know what was 25 going on and, if there was such a concern within 145 1 the business, when I needed to know that. 2 Q. Why did you need to know it? 3 A. Well, because I was responsible for the 4 prosecutions, if I -- you know, if I wasn't 5 aware of what was going on around me, what was 6 I going to do, as a prosecutor? I needed to 7 know that, if there was a problem in the system, 8 what the problem was and, yeah, I was completely 9 staggered. 10 Q. Your response, however, isn't to say, "I needed 11 to be included because I need to know, in order 12 for me and my team to discharge our 13 responsibilities"? 14 A. No. 15 Q. Your response is to give a list of reasons to 16 not do what was proposed? 17 A. No. I mean, the first sentence in that response 18 is effectively saying that, if it's thought 19 there's a difficulty with Horizon, then clearly 20 the actions set out in your memo is not only 21 needed but imperative. I mean, that's the 22 response. 23 Q. But then the rest of it is a "but", isn't it? 24 The entirety of the page is then a "but", 25 "Clearly, if you think we -- if there's 146 1 a problem, we need to do something, however", 2 and then you give a list of half a dozen reasons 3 not to do that, don't you? 4 A. Well, within five days of this, I'm being told 5 by Dave King that they're going to do a report, 6 and I'm not saying don't do the report. I think 7 this was just a reaction to having been excluded 8 from what I considered to be very important and, 9 basically, it was me throwing everything onto 10 the page that I probably would have said in 11 a different way had I been in the meeting. 12 Q. Are you saying that you can explain away the 13 fact that that this lists, by my reckoning, 14 seven reasons not to commence an independent 15 investigation, the reason for that is pique or 16 anger at not being invited to the meeting? 17 A. Yeah, I'm not trying to explain it away, it's 18 just my mindset at that particular time was 19 I need to know if there is a difficulty with 20 Horizon and, yet, there was a meeting that went 21 ahead, I don't know how long it took but, you 22 know, what detail they went into I need to know 23 this. 24 Q. But you don't say that? 25 A. No, I know I don't say that but what I'm saying 147 1 to you is that my mindset at the time was -- 2 I was angry and I have just -- I've acknowledged 3 that, yeah, if there's a problem, there's 4 a problem and we need to deal with that, but, 5 you know, here's some stuff that I might have 6 been saying at the meeting, as I say, not 7 necessarily in that particular way, but I would 8 have obviously been able to listen to what was 9 going on in the meeting, what the concerns were 10 and tailored my answer to that meeting, as 11 opposed to having a blank page because I didn't 12 know what had been going on and throwing 13 everything down. 14 Q. Are you tailoring what you say now to try to 15 explain away the contents of this email, trying 16 to explain it away on the basis of anger or 17 frustration? 18 A. No, because, like I said before, within five 19 days, I'm contacted by Dave King saying, "We're 20 going to do this exercise", and I don't say, 21 "Well, you can't" or "Don't do it" or whatever, 22 I just say, "Okay". 23 Q. But that never happened either, did it? What 24 happened was the Ismay report? 25 A. Yeah, I imagine that this moved into the Ismay 148 1 report. 2 Q. The one sided "Let's look for material that 3 supports the integrity of Horizon"? 4 A. Yeah, I mean, I hear what you say, and I did -- 5 Q. Well, it was Mr Ismay saying it. 6 A. Sorry? 7 Q. It was Mr Ismay who actually said it. 8 A. No, no, I hear what you're saying now but 9 I didn't know that it was -- that you would 10 describe it as a one-sided report. 11 Q. You're not saying, overall in this email, "If 12 there is a basis to investigate the integrity of 13 Horizon, we should get on and investigate the 14 integrity of Horizon, this really important", 15 are you? 16 A. Not in so many words, no. 17 Q. What you were saying by this email is "The Post 18 Office will be in serious trouble if we get on 19 with an independent investigation into the 20 integrity of Horizon". 21 A. Well, not necessarily. It depends what the 22 independent report was going to say. 23 Q. No, you say that there were a whole bunch of 24 reasons not even to look, don't you? You come 25 up with a list of reasons -- we're going to go 149 1 through each of them -- not even to start 2 an investigation? 3 A. Yes, okay, I accept that, but that was my -- 4 that wasn't my intention. I think that 5 I overreacted to being excluded from what I saw 6 as being critical to me as the Head of the 7 Criminal Law Team. 8 Q. Did you speak to anyone directly before writing 9 this email or afterwards? 10 A. I don't think so no. 11 Q. Did you speak with John Scott or Andrew Hayward 12 about it? 13 A. I don't think so. I didn't have a great of 14 dealings with John Scott and I'm not sure I knew 15 who Andy Hayward was. 16 Q. If there was a sufficient level of concern 17 amongst senior members of Post Office staff 18 about the integrity of Horizon, wasn't the right 19 thing to do to conduct a full Inquiry as 20 an imperative, full stop? 21 A. Yes. 22 Q. Doesn't it appear that that had been the plan of 23 senior members of the Post Office right up until 24 your input? 25 A. I'm sure my input didn't dissuade them one way 150 1 or another. 2 Q. Let's look at the reasons that you give, second 3 line. You say: 4 "The consequence ... will be that to 5 commence or continue to proceed with any 6 criminal proceedings will be inappropriate." 7 That's reason 1, yes? 8 A. Yeah. 9 Q. So, if we start in investigation, looking at the 10 integrity of the data we rely on, we cannot 11 continue with any criminal proceedings. 12 A. Yeah. 13 Q. Was that an overstatement? 14 A. Yeah, probably. 15 Q. Why did you make an overstatement? 16 A. I think I just wanted to impress on these people 17 that, if there was issues going on, I needed to 18 know what they were. 19 Q. You say: 20 "My understanding is that the integrity of 21 Horizon data is sound and it is as a result of 22 this that persistent challenges that have been 23 made in court have always failed." 24 Now, at this time, you obviously don't 25 benefit from the wisdom of Mr Ismay's report. 151 1 What were you referring to there, that your 2 understanding is that the integrity of Horizon 3 data is sound? 4 A. Based on the prosecutions that had been 5 successful. 6 Q. In how many of those had a question been raised 7 as to the integrity of Horizon data? 8 A. I can't remember. But, you know, I guess 9 a number. 10 Q. Were the vast majority of them guilty pleas? 11 A. I think they ended up as guilty pleas, yes. 12 Q. What do you mean by that? 13 A. Well, I think we had a number of cases where we 14 were facing trial and the defence decided to 15 plead guilty at the last moment. 16 Q. Often to false accounting? 17 A. Yes. 18 Q. On the dropping of the theft charge? 19 A. No -- well, in the papers there are, I think, 20 seven references to my charging of offences: 21 three were for theft on their own; three were 22 for fraud on their own; and one was in relation 23 to a theft and a fraud, albeit in the advice 24 letter I say that the theft and the fraud are 25 not alternatives. 152 1 So I was not charging false accounting and 2 a theft or a Fraud Act offence as alternatives. 3 I tried to avoid doing that at every 4 opportunity. 5 Q. You continue: 6 "These challenges are not new and have been 7 with us since the inception of Horizon as it has 8 been the only way that Defendants are left to 9 challenge our evidence when they have stolen 10 money or where they need to show that our 11 figures are not correct." 12 A. Mm. 13 Q. What you're saying by that is "What's new here? 14 They're all guilty of theft, they're just coming 15 up with this as an excuse, blaming Horizon", 16 aren't you? 17 A. No, I wouldn't interpret it in that way. I'm -- 18 what I'm saying -- 19 Q. What are you saying by "the only way that 20 defendants are left to challenge our evidence 21 when they've stolen money"? 22 A. Well, that's if they're a thief. 23 Q. You're not saying that at all, are you? You're 24 saying that the challenges made to Horizon are 25 a figment of guilty thieves' imagination and 153 1 it's the only thing they can come up with when 2 they know they're guilty and they've stolen the 3 money. That's what you're saying by that 4 sentence, isn't it? 5 A. Well -- well, I don't view it in that way but 6 I can see why you do, yes. 7 Q. Can you explain to us what it does mean, then? 8 A. Well, we had, right from the inception of 9 Horizon, experienced defendants saying "It 10 wasn't me; it was the system", yet they plead 11 guilty, and that's part of something that 12 I couldn't understand: why somebody who was 13 saying, "I'm effectively innocent" would ever 14 plead guilty. 15 Q. Have you ever thought of the possibility that 16 people did so in order to get a shorter term of 17 imprisonment or a suspended sentence -- 18 A. Well -- 19 Q. -- being of good character, quite often being 20 trusted Post Office employees? 21 A. I have to say that my mentality would be that, 22 if I was prosecuted for theft and I was not 23 dishonest, I would not admit it. 24 Q. So, again, this doesn't mean, the sentence "The 25 only way they're left to challenge our evidence 154 1 when they've stolen the money is to blame 2 Horizon"? 3 A. Well, like I say, hear what you say. 4 Q. Well, what do you mean by you hear what I say? 5 I'm reading out some words in black and white to 6 you -- 7 A. Yeah, I know. 8 Q. -- and you're saying they don't mean what I'm 9 suggesting. Please tell us what they do mean. 10 A. Well, when I wrote that email, I was annoyed and 11 I think that's -- what I've put in there went 12 over the top and, had I been in the meeting on 13 the day, I hope that I would have been a lot 14 more constructive in terms of what I contributed 15 towards the meeting. 16 Q. Okay, so that's the second reason. The first 17 reason is we'll have to stop all criminal 18 proceedings; the second reason is but these 19 challenges have been around since time 20 immemorial. 21 Can we turn, please, to the next paragraph: 22 "What is being suggested is that an internal 23 investigation is conducted. Such 24 an investigation will be disclosable as 25 undermining evidence on the defence in the cases 155 1 proceeding through the criminal courts." 2 Why would it be undermining? 3 A. Well, it would be undermining on the basis 4 that -- if it reveals that there was anything 5 wrong with the system. 6 Q. Well, it doesn't say that, does it? Your 7 understanding was that Horizon data was sound 8 and that all past challenges had failed. What 9 you're saying here is that the fact of 10 an investigation will be disclosable as 11 undermining the defence. 12 A. Yeah. 13 Q. Why would the fact of an investigation be 14 disclosable as undermining evidence? 15 A. Well, it wouldn't be, you know, it's something 16 that I put in that's erroneous. 17 Q. So that's the third reason. If we continue: 18 "Inevitably the defence will argue that if 19 we are carrying out an investigation we clearly 20 do not have confidence in Horizon and therefore 21 to continue to prosecute will be an abuse of the 22 criminal process." 23 That's the fourth reason. 24 A. Yeah. 25 Q. Does that involve a very significant 156 1 overstatement too? 2 A. Well, I mean if -- yes, probably. Yes. 3 Q. "Alternatively we could be asked to stay the 4 proceedings pending the outcome of the 5 investigation, if this were to be adopted the 6 resultant adverse publicity could lead to 7 massive difficulties for [the Post Office] as it 8 would be seen by the press and media to 9 vindicate the current challenges." 10 That seems like a more moderate possibility, 11 doesn't it? If you're conducting 12 an investigation into the integrity of your 13 data, a defendant who is affected by that data 14 may say, "Stop the prosecution for the moment, 15 adjourn the proceedings". 16 A. Yes. 17 Q. Yes? 18 A. Yes. 19 Q. But you give it, as a fourth or a fifth reason 20 here, "It will adversely affect the Post Office 21 in the media". 22 A. Yes. 23 Q. When you're weighing up, on the one hand, 24 whether to conduct an investigation into 25 concerns about the integrity of data that's used 157 1 to prosecute people in the criminal courts and 2 potentially send them to prison and, on the 3 other hand, some negative press, which wins the 4 day? 5 A. The first. 6 Q. You continue: 7 "The potential impact however is much wider 8 for [the Post Office] in that every office in 9 the country will be seen to be operating 10 a combined system with untold damage to the 11 Business." 12 Doesn't that and the sentence right at the 13 beginning of this paragraph, "Such 14 an investigation will be disclosable as 15 undermining evidence", suggest that you thought, 16 as well, "Hold on, there might be some system 17 integrity problems here"? 18 A. I never thought that, no. 19 Q. Why would an investigation, or an investigation 20 which resulted in a conclusion that the Horizon 21 system enjoyed complete integrity, be seen as 22 the Post Office operating a compromised system 23 in every office in the country. 24 A. Well, it wouldn't. 25 Q. Would only a report that said, "No, there are 158 1 data integrity problems" lead to that kind of 2 untold damage? 3 A. Yes. 4 Q. So why have you written this in this way? If 5 you didn't think there was anything at all wrong 6 with Horizon, why would untold damage be caused? 7 A. I really go back to what I was saying to explain 8 everything, apart from the first sentence, in 9 that I hadn't been included in the meeting, 10 I was annoyed and I reacted to that. And I just 11 wanted to put everything on paper which may or 12 may not have been discussed in the meeting, 13 I didn't know. And, yes, it was an 14 overreaction, I accept that. 15 Q. You continue: 16 "Our only real alternative to avoid the 17 adverse publicity will be to offer no evidence 18 on each of our criminal cases. This should 19 mitigate some adverse publicity but is not 20 a total guarantee." 21 That's, essentially, a, repetition of 22 a point earlier. 23 A. Yes. 24 Q. "To continue prosecuting alleged offenders 25 knowing there is an ongoing investigation to 159 1 determine the veracity of Horizon could ... be 2 detrimental to the reputation of my team." 3 This is, I think, the sixth reason you give 4 for not doing it: 5 "If we were to secure convictions in the 6 knowledge that there was an investigation where 7 the investigation established a difficulty with 8 the system we would be open to criticism and 9 appeal to the Court of Appeal. The Court of 10 Appeal will inevitably be highly critical of any 11 prosecutor's decision to proceed against 12 Defendants in the knowledge that there could be 13 an issue with the evidence." 14 Isn't the problem with from that that you 15 knew from the exchange that it was proposed to 16 be an investigation, which is to establish 17 whether or not there was a difficulty with the 18 system, and you were nonetheless proposing to 19 proceed with prosecutions? 20 A. Yes. 21 Q. You say: 22 "What we really need to do is impress on 23 Fujitsu the importance of fully cooperating in 24 the provision of technical expertise and witness 25 statements to support the criminal and civil 160 1 litigation now and in the future." 2 So were you saying here, "All we need to do 3 is for Fujitsu to stand up and continue to back 4 their system by providing us with their evidence 5 in court that the evidence is sound"? 6 A. No, I wasn't suggesting that, if it wasn't 7 sound, that they should lie. What I was 8 suggesting was that, you know, as a matter of 9 course, we should be getting the full 10 cooperation of Fujitsu on each and every 11 prosecution and civil case. 12 Q. Were they not fully cooperating? 13 A. Well, I think there were tensions between 14 Fujitsu and POL, which certainly came out in the 15 Misra case, in terms of apparently not wanting 16 experts to talk to other experts. 17 Q. That hadn't happened yet. 18 A. No, but, I mean, I think -- 19 Q. That was later in the year? 20 A. Was it? Okay. 21 Q. Yeah, we're March, I think. 22 A. Well, I just have an impression that there were 23 tensions between Fujitsu and then the dealing 24 with POL or the investigators, or wherever it 25 was. 161 1 Q. Isn't this you really proposing an alternative 2 to an independent investigation that actually 3 looks objectively at whether there was anything 4 to the challenges or nothing to the challenges, 5 "Let's shut this down by getting Fujitsu to back 6 their system"? 7 A. I never believed that I was senior enough to be 8 able to do anything like that in any event. 9 I mean, I thought that there was no problem in 10 relation to the Fujitsu evidence or Horizon and, 11 as I keep saying, that I think this was me going 12 over the top, because I was annoyed that I had 13 not been included in the initial meeting. 14 Q. I take it you regret deeply sending this email 15 now? 16 A. Obviously. 17 Q. Because, on its face, it reads like an attempt 18 to shut down -- 19 A. Yeah. 20 Q. -- the commencement of an independent 21 investigation into the integrity of Horizon, 22 doesn't it? 23 A. All I can say is the first sentence -- "If it is 24 thought that there is a difficulty with Horizon 25 then clearly the action set out in your memo is 162 1 not only needed but is imperative" -- that, for 2 me, is the crucial bit. 3 Q. That's where the email should have ended, 4 shouldn't it? 5 A. Absolutely, yeah. 6 Q. Would you really say all of these things, with 7 these overstatements and gross overstatements, 8 as we've agreed them to be, were because you 9 were fed up that you hadn't been invited to 10 a meeting? 11 A. No, I think it wasn't that I was fed up that 12 I hadn't been invite to a meeting. What the 13 problem was was, if they're hide -- well, not 14 hiding this but, if they're not including me in 15 something like this, then that's pretty crucial 16 to me and my team, me particularly, running the 17 criminal prosecutions. 18 I need to know if there's a problem. You 19 know, I need to know immediately if there's 20 a problem and, clearly, whatever had generated 21 the meeting must have generated it some time 22 before, and so I'm being kept in the dark, and 23 that's what was rankling me, in relation to 24 this. 25 Q. Did you take it up beyond the sending of this 163 1 email? 2 A. Well, as I said earlier, five days later, Dave 3 King emails me saying, "We're going to do this, 4 we're going to have an internal inquiry", and 5 I think I ask him about a question about what 6 does -- I think there was mentioned information 7 security or something on that line. I asked 8 "What did that mean?" And I didn't, sort of 9 say, "Don't do it. You know, I've already 10 advised don't do it". I just said, "Thank you 11 very much". 12 Q. What happened to that internal inquiry? 13 A. I believe that was the Rod Ismay inquiry. 14 Q. Can we turn, please, to POL00120479. Just look 15 at the top of the page, please. We're just 16 before the final Ismay report comes out on 17 2 August and he's circulating a draft report, 18 including to you; can you see that? 19 A. Yes. 20 Q. Why were you being included as somebody who 21 could give comments on the draft report? 22 A. I don't know, presumably because I kicked up 23 a fuss. They were keeping me in the loop. 24 Q. So the proposal that had been initially for 25 an independent investigation had morphed into 164 1 what became the Ismay report? 2 A. It looks like it, yes. 3 Q. When did you first know that the Ismay report 4 was being undertaken, investigating the 5 integrity of Horizon? 6 A. I don't know. 7 Q. Well, when you did find out, did you say, "Hold 8 on, we're investigating the integrity of 9 Horizon. The consequence of that will be we 10 must stop prosecuting every case"? 11 A. No. 12 Q. Did you say, "Defendants will argue that the 13 proceedings against them are an abuse of 14 process"? 15 A. No. 16 Q. Did you say, "The consequence of us 17 investigating the integrity of Horizon will be 18 that they will ask to stay the proceedings 19 pending the outcome of the investigation"? 20 A. No. 21 Q. Did you say that "The Court of Appeal may be 22 critical and it will be detrimental to the 23 reputation of my team if we continue to 24 prosecute cases whilst there is an investigation 25 into the integrity of Horizon"? 165 1 A. No. 2 Q. All of the reasons that you gave in your 3 March 3 document applied equally to a different species 4 of investigation into the integrity of Horizon, 5 didn't they? 6 A. Yes. 7 Q. The Ismay report would fall to be disclosed in 8 future criminal proceedings? 9 A. Yes, only it, in my eyes, vindicated the Horizon 10 system. 11 Q. Let's look at what Mr Ismay is telling this 12 audience Post Office's priorities are. First 13 paragraph: here's the latest version, it's 14 a complex area, I'd value further comments. 15 Then he gives some timing. 16 Paragraph 3: 17 "Regardless of how this document is 18 finalised, there are [some] improvement points 19 which we will need to work on together ..." 20 Then this, "The priority": 21 "The priority should probably be to provide 22 any input considered appropriate for closing 23 down the issues that cause Channel 4 to consider 24 this a news item. Also to ensure that we are 25 prepared for the next court cases." 166 1 Was that the prevailing ethic amongst the 2 senior leadership of the Post Office at this 3 time: the priority was to close down issues that 4 were newsworthy? 5 A. Well, if you're telling me that Rod Ismay was 6 told not to report on anything that was 7 detrimental, then he probably was. 8 Q. Did you provide any additional input with the 9 aim of closing down issues that caused the media 10 to consider this to be newsworthy? 11 A. I don't recall giving any input to his report. 12 It may have been that I supplied some statistics 13 in terms of numbers, but I recollect -- my 14 recollection is that I received the report and 15 that was it. I didn't contribute to it in any 16 way. Now, I don't know what Rod Ismay would say 17 my contribution was but I can't recall one. 18 Q. Well, he said that the list of people to whom it 19 was distributed, he couldn't explain why, in 20 relation to a lot of them, it was distributed to 21 them. 22 A. Yeah. 23 Q. Can we turn then to the report itself, 24 POL00026572. We can see it is dated 2 August 25 and you're one of the addressees? 167 1 A. Yes. 2 Q. If we scroll down on the first page, please. 3 The first paragraph of -- sorry, the paragraph 4 above "Executive Summary": 5 "This paper has been complied as 6 an objective, internal review of POL's processes 7 and controls around branch accounting." 8 Mr Ismay told us that that sentence was 9 incorrect. It wasn't objective at all; it was 10 a one-sided picture, which didn't look at any 11 evidence that there may be problems with 12 Horizon. It only collected together existing 13 accounts of how reliable Horizon was. He 14 continues under his "Executive Summary": 15 "The allegations to which we are responding 16 follow on from cases where thousands of pounds 17 were missing at audit. We remain satisfied that 18 this money was missing due to theft in the 19 branch -- we do not believe the account balances 20 against which the audits were conducted were 21 corrupt." 22 Is that the headline that you took from 23 this? 24 A. Yes, I think -- yeah, one of the headlines, yes. 25 Q. Can we go forward to page 19, please. Scroll 168 1 down, please. Here he addresses the possibility 2 of independent review or independent audit and 3 he says: 4 "[The Post Office] has actively considered 5 the merits of an independent review. This has 6 been purely from the perspective that we believe 7 in Horizon but that a review could help give 8 others the same confidence that we have. 9 "Our decision between IT, Legal, [Product & 10 Branch Accounting], Security and Press Office 11 has continued to be that no matter what opinions 12 we obtain, people will still ask 'what if' and 13 the defence will always ask questions that 14 require answers beyond the report." 15 Just stopping there, were you party to 16 a decision, as a representative of Legal, that 17 included that amongst its reasoning? 18 A. I don't think so. As I said so before, I can't 19 recall having any input to this document. A lot 20 of the information in it I wouldn't have been 21 privy to, with the exception of possibly the 22 case numbers. 23 Q. But this isn't about a conclusion that's 24 reached; this is explaining why we haven't gone 25 to an independent reviewer or auditor and it's 169 1 suggesting that amongst those that were party to 2 a decision not to do so was Legal. Was that 3 you? 4 A. I don't recall ever having had dealings with Rod 5 Ismay on the phone or in meetings. I don't 6 think I ever met him and I didn't recognise the 7 name when it first came up. I don't think it 8 was me, no. 9 Q. We'll skip over the next couple of paragraphs, 10 please, and go to the next page. He then says: 11 "It is also important to be crystal clear 12 about any review if one were commissioned -- any 13 investigation would need to be disclosed in 14 court. Although we would be doing the review to 15 comfort others, any perception that the Post 16 Office doubts its own systems would mean that 17 all criminal prosecutions would have to be 18 stayed. It would also beg a question for the 19 Court of Appeal over past prosecutions and 20 imprisonments." 21 The first two sentences of that paragraph 22 are essentially what you were saying in your 23 March email, aren't they? 24 A. Yes. 25 Q. The last sentence: 170 1 "It would also beg a question for the Court 2 of Appeal over past prosecutions and 3 imprisonments." 4 That's not something that you raised in your 5 email, was it? 6 A. I don't recollect raising it, no. 7 Q. Do you know where that came from, which sounds 8 like something that a lawyer might advise, "if 9 we get an independent review, you should be 10 aware that it might call into question all of 11 the convictions of the subpostmasters that we've 12 obtained over the years"? 13 A. Yeah, I think that I remember speaking to Dave 14 King, who I think was part of the group that -- 15 involved with this -- involved this report. So 16 it may have come from me to Dave King but 17 I don't ever recall speaking directly to Rod 18 Ismay. 19 Q. Can we, shortly before we break for the day, 20 turn lastly to POL00105593. This is a new 21 document that we haven't looked at before, 22 I think. It's dated 28 March 2012. So we're 23 a year and a half on. It's an email exchange 24 between Chris Darvill and Susan Crichton. If we 25 scroll down to the foot of the page, please, we 171 1 can see who Chris Darvill was. Is that a name 2 that's familiar to you? 3 A. No. 4 Q. Looking at his designation and the address 5 given, and bearing in mind this is March 2012, 6 where do you think Mr Darvill sat within the 7 Legal Services offering of the Post Office? 8 A. I think he was in the Post Office Limited team, 9 solicitors team. 10 Q. So that's, what, neither the Criminal Law Team 11 nor the civil law team -- 12 A. Yeah, but -- 13 Q. -- but something else? 14 A. Something else, yes. 15 Q. If we go up, please, he says under the heading 16 "Comments from Rob Wilson": 17 "Susan 18 "The earliest Rob can speak to me is 3 pm. 19 (I have told him that you are meeting with Alice 20 [I think probably Alice Parsons] at 3.30 pm). 21 He has, however, sent over a few initial 22 comments ..." 23 Just scroll up. We will see when we look at 24 the whole context here that this appears to be 25 another exchange about commissioning 172 1 an independent audit in 2012. Mr Darvill says 2 that you have: 3 "... concerns regarding the [public 4 relations] implications over an audit being 5 conducted. I guess the point here is carrying 6 out an audit in response to the 'noise' 7 surrounding the integrity of the Horizon system 8 potentially looks reactive and will be seen as 9 [the Post Office] having lost confidence in the 10 system. 11 "Rob also has concerns regarding the costs 12 that would be incurred in carrying out an audit. 13 Depending on the scope of the audit, the costs 14 could potentially be significant. 15 "An audit commissioned by [the Post Office] 16 may not have the desired effect of curbing these 17 challenges in any event. It will always be said 18 that the audit was not independent. Ultimately 19 the only way to avoid criticism would be to 20 appoint a joint expert. 21 "Rob does not believe an audit would have 22 a great impact on current prosecutions in the 23 sense of finding a 'smoking gun' which explains 24 that the losses were due to computer error, but 25 if [the Post Office] is required to disclose 173 1 that an expert has been appointed to conduct 2 a review there would be a strong argument that 3 the cases should be adjourned pending the 4 outcome of the review. I will need to test with 5 Rob the extent to which this would need to be 6 disclosed. 7 "Rob remains firmly of the view that 8 an audit should not be carried out. In his 9 words: 'POL has to grit its teeth and get on 10 with prosecuting and defending civil actions'." 11 Was it your view that POL should just grit 12 its teeth and get on with prosecuting people? 13 A. I think so, yes. 14 Q. Just carry on regardless? 15 A. Well -- 16 Q. More important than whether or not there was 17 a problem with the system was public relations 18 and cost? 19 A. Well, I didn't believe that we had a problem 20 with the system because of the Rod Ismay report 21 and, by this time, we'd had the Seema Misra case 22 which had been fully challenged. 23 Q. Did you regard that as a resounding success? 24 A. Well, I didn't regard it in the same way as 25 Mr Singh, no. I didn't think it was going to 174 1 deflect the defence from continuing to say they 2 had problems with Horizon. I imagined that 3 there would still be challenges in relation to 4 the Horizon system. 5 Q. The views that you're recorded as giving here, 6 do you doubt that you gave them in any way? We 7 haven't tracked down a communication from you to 8 Mr Darvill. 9 A. No, I've no reason to suspect that he's got it 10 wrong. I mean, he may have emphasised it -- 11 I may have emphasised it in a slightly different 12 way but I think, essentially, I was saying 13 "Look, we -- from my perspective, the system has 14 been vindicated by a report. If you want to do 15 another report that's internal, you're wasting 16 your time, basically. If you want to do 17 an external report, well, that may be 18 a different matter". But -- 19 Q. This was about an external audit -- 20 A. Right, okay. 21 Q. -- because I think it talks about the costs? 22 A. Yeah. So, you know, in the end of the day it's 23 going to be your decision. I'm staying in Royal 24 Mail, you're going -- you're in POL. You know, 25 you're going to have to decide. But, as far as 175 1 my view is concerned at the current time, is 2 that we've already had a report and it's 3 vindicated us. 4 Q. The Ismay report. So it all stacks -- all of 5 this hinged on Ismay, did it? 6 A. Well, yes, but I didn't know that -- what you've 7 told me this afternoon. I never understood that 8 that was the position. If I'd realised that 9 that was the position, then it would be 10 completely different. 11 MR BEER: Thank you very much, they're the only 12 questions I ask you presently until December. 13 Sir, I understand that none of the Core 14 Participants are going to ask -- 15 Oh, in fact, my apologies. Mr Jacobs is 16 going to ask some questions. My mistake. 17 Questioned by MR JACOBS 18 MR JACOBS: Sir, just a quick question from me. 19 I want to ask you about paragraph 18 of your 20 statement. I represent 157 subpostmasters and 21 I am instructed by Howe+Co. So if we go to 22 page 10 of 36 and that's WITN04210100, page 10. 23 What you say there is: 24 "In the event that the defendant was 25 acquitted following trial I would contact 176 1 prosecuting council and ask for a full report 2 with a view to understanding the reason for the 3 acquittal." 4 One of our clients is Suzanne Palmer. She 5 was acquitted by jury after a three-day trial, 6 in relation to three counts of false accounting, 7 that was in January 2007. The jury accepted 8 that she had not acted dishonestly and accepted 9 what she said about the problems in the system. 10 What I want to ask you is what it was that 11 you were trying to understand after 12 an acquittal. Did acquittals, such as this one 13 and others, cause you to think that maybe there 14 was something in what the subpostmasters were 15 saying about the Horizon system and that at 16 least there should be an investigation? 17 A. Yes, if counsel had said to me "Yes, I do have 18 concerns over the Horizon system", then yes. 19 Sorry, but I -- apologies, but I can't recall 20 the case and I can't recall what counsel said in 21 relation to the acquittal. But, yeah, I mean 22 I think had counsel said to me "Look, Rob, we 23 have a serious problem here", then, yes, I would 24 have done something about it. 25 Q. But if the fact that a jury had rejected what 177 1 the Post Office was saying about the honesty and 2 integrity of a person who was appointed because 3 they're a person of good standing in their 4 community, if a jury had rejected that there 5 could possibly be an integrity issue with the 6 Horizon system, surely that ought to have caused 7 you to have paused and it should have been 8 an alarm bell, regardless of what counsel said? 9 A. Well, I don't know why the jury acquitted your 10 client. 11 Q. Right. Now, it seems to our clients, 12 particularly in light of the passage that 13 Mr Beer took you to, when you say "These 14 challenges are not new. They've been with us 15 since the inception of Horizon. It's always 16 been the only way the defendants are left to 17 challenge our evidence when they've stolen money 18 or when they need to show our figures are not 19 correct", it seems that your view, and the view 20 of Post Office, were entrenched and, when you 21 say in your statement that you tried to 22 understand the reasons for an acquittal, what 23 you were really doing was looking to see what 24 you could do in future to make sure that didn't 25 happen again and secure more convictions to get 178 1 it right next time? 2 A. No. 3 Q. That's right, isn't it? 4 A. No, no, it wasn't. No. It was a genuine 5 request for information to understand what had 6 gone on, not to strengthen our case in the 7 future, no. 8 Q. So, finally, you didn't think, then, did you 9 that an acquittal is a significant event that 10 ought to have at least caused some sort of 11 internal inquiry or investigation? 12 A. Well, no -- well, it did, in the sense of 13 requesting a report from counsel and, had 14 counsel expressed any reservations, I would have 15 obtained a transcript of the trial and that 16 would have been examined. I do recall, during 17 the course of my period as the team leader, 18 requesting transcripts -- not very often but 19 I do recall doing that -- because I wanted to 20 find out whatever it was that I needed to find 21 out. 22 MR JACOBS: Thank you. I haven't any further 23 questions for you. 24 THE WITNESS: Thank you. 25 SIR WYN WILLIAMS: Mr Beer, Mr Wilson is returning 179 1 in December. With other witnesses who have had 2 such a long delay between their tranches of 3 evidence, I have released them from the 4 prohibition on them talking about the evidence 5 generally, as far as I recall, ie I haven't said 6 anything along the lines of "You mustn't discuss 7 the evidence which you have already given", or 8 anything like that. 9 In this case, I don't see any reason to 10 depart from that general practice but I'd be 11 grateful if you or anybody else has any 12 observations about that. 13 MR BEER: Thank you, sir. No, there's no reason to 14 depart from what you've just said and every 15 reason to do it. In particular, because 16 Mr Wilson has got to write his second witness 17 statement and may require the assistance of his 18 lawyers to do that. 19 SIR WYN WILLIAMS: Yes. Nobody else is shaking 20 their head vigorously saying we've got it wrong, 21 are they? 22 MR BEER: No, they're not, sir. 23 SIR WYN WILLIAMS: Right. 24 Well, Mr Wilson, thank you for giving 25 evidence during the course of today and you are 180 1 now able to speak about your evidence with your 2 lawyers or, for that matter, anyone else but you 3 appreciate that you will be required to return 4 on a date in December to give further evidence? 5 THE WITNESS: Yes, I do, sir. There's nobody else 6 that I could really speak to. 7 SIR WYN WILLIAMS: Fine. Well, you don't have to 8 offer an explanation but thank you anyway. 9 THE WITNESS: Thank you, sir. 10 MR BEER: Sir, we return tomorrow at, I think, 11 10.00 am for Paul Inwood and Thomas Pegler. 12 SIR WYN WILLIAMS: Yes. Thank you very much, 13 Mr Beer. 14 I will see everyone in the morning. 15 MR BEER: Thank you very much, sir. 16 (4.09 pm) 17 (The hearing adjourned until 10.00 am 18 the following day) 19 20 21 22 23 24 25 181 I N D E X ROBERT GEORGE WILSON (sworn) ..................1 Questioned by MR BEER .........................1 Questioned by MR JACOBS .....................176 182