1 Wednesday, 15 November 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 Before you begin examining the witness, 7 Mr Beer, I'd just like to let everyone know, if 8 they're not aware of it already, that the 9 programme for this week will go ahead as has 10 been scheduled, ie that is it will go ahead with 11 the witnesses which are named on our website and 12 I'll try to give an update, dealing with the 13 period between the end of this week and 14 Christmas, tomorrow or Friday at the latest. 15 All right? 16 MR BEER: Thank you very much, sir. 17 May I call Warwick Tatford. 18 WARWICK HENRY PATRICK TATFORD (sworn) 19 Questioned by MR BEER 20 MR BEER: Good morning, Mr Tatford. My name is 21 Jason Beer and, as you know, I ask questions on 22 behalf of the Inquiry. Can you tell us your 23 full name, please. 24 A. Warwick Henry Patrick Tatford. 25 Q. Thank you very much for coming to the Inquiry to 1 1 give evidence today and thank you very much for 2 the provision of a substantial witness statement 3 to the Inquiry. Can we look at that witness 4 statement please. It should be in the bundle in 5 front of you at tab A1. 6 A. I have it. Thank you. 7 Q. Excluding the index, it's 57 pages in length and 8 dated 25 October 2023. Can you turn to page 57, 9 please? 10 A. Yes. 11 Q. Is that your signature? 12 A. It is, yes. 13 Q. Are the contents of that witness statement true 14 to the best of your knowledge and belief? 15 A. Yes. 16 Q. For the transcript -- it needn't be displayed -- 17 the URN is WITN09610100. A copy of that witness 18 statement is going to be uploaded to the 19 Inquiry's website and I'm not going to ask you 20 questions about every aspect of it; do you 21 understand? 22 A. Thank you. 23 Q. Can I start, please, with a short number of 24 questions about your professional background. 25 I think you were called to the Bar in 1993; is 2 1 that right? 2 A. Yes. 3 Q. You became a tenant in chambers in 1994 -- 4 A. Yes. 5 Q. -- at your present chambers, albeit it's changed 6 name twice since then; is that right? 7 A. That's right, yes. 8 Q. You've practised almost exclusively in the field 9 of criminal law, both prosecuting and defending? 10 A. Yes. 11 Q. Most of my questions today are going to concern 12 the case of Seema Misra. Can I start at the 13 end, as it were, and go to page 56 of your 14 witness statement. 15 I wonder if that can be displayed on the 16 screen, please -- page 56, and the bottom half 17 of the page, please, if we scroll down. Thank 18 you. 19 This is the concluding paragraph of your 20 statement. Six or so lines from the bottom, you 21 say: 22 "I am proud of my role as a barrister in the 23 criminal justice system and am extremely sorry 24 that I played an unwitting role in Seema Misra 25 and Carl Page having unfair trials. I am 3 1 particularly conscious that in Mrs Misra's case 2 I was Prosecution Counsel at the head of 3 a difficult disclosure exercise that failed." 4 Then over the page: 5 "Over the years, as I have watched and tried 6 to learn from all the Horizon cases, I have 7 thought repeatedly about whether there was 8 something different I could have done, whether 9 I should have asked more or different questions, 10 whether I should have insisted on an independent 11 expert. I cannot see how Professor McLachlan 12 could have worked without considerable 13 assistance from Fujitsu and someone like Gareth 14 Jenkins, but perhaps there should have been the 15 extra precaution of an independent expert on the 16 Prosecution side." 17 Then I won't read the rest. So you tell us 18 in that statement there, unlike a number of 19 other witnesses who have sat in the same witness 20 box as you, that you are extremely sorry that 21 you played a part in Mrs Misra and Mr Page 22 having unfair trials. 23 A. Yes. I'd like to offer my unreserved apologies 24 to both of them. I know Mrs Misra, I can see 25 her, and I'm very sorry. I don't know if 4 1 Mr Page is here. It's -- I offer my apologies 2 to him. 3 Sorry, I find this rather difficult. It's 4 not actually about me but I am -- I do feel 5 ashamed about what had happened -- what's 6 happened and -- but the best I can do is try and 7 help the Inquiry and try and learn a bit myself, 8 but it's -- well, that's enough about me. It's 9 much more important to answer the questions, but 10 I'm sorry. I feel ashamed that I was part of 11 this, but I want to try to help if I can. 12 Q. Thank you very much, that can come down. 13 The Inquiry has heard evidence that the Post 14 Office saw the Seema Misra case as a test case 15 to deter subpostmasters for blaming the Horizon 16 system for alleged shortfalls or advancing 17 Horizon integrity issues as defences when they 18 were prosecuted. Did you get that understanding 19 when you were prosecuting this case? That it 20 was seen as a test case with a deterrent 21 purpose? 22 A. No. I knew it was an important case, and 23 important for all parties, but I've seen 24 reference to test cases. It seems to me that 25 a criminal trial can't ever be a test case 5 1 because the case is decided on the individual 2 case and everything is different. But it was 3 a very important case, and the -- Post Office 4 Limited clearly wanted to do whatever they can 5 to -- they could, to give a full evidential 6 picture of Horizon. It may be that they, and 7 indeed me, that I was -- and that we hadn't 8 realised the problems. But it seemed to me that 9 it was an exercise not in shying away from the 10 challenge; it wasn't a test case. 11 I do appreciate that after the trial, there 12 was an announcement made by my instructing 13 solicitor. For what it's worth, and it's only 14 my opinion, I thought that was unwise because my 15 view wasn't that this was a test case; it was 16 an important case. 17 One of the ironies of the case is that, when 18 it began, many of those involved in the Post 19 Office would have -- I think would have accepted 20 pleas to false accounting. One of the ironies 21 is I think I was the one who put my foot down 22 initially and suggested that we should proceed 23 on the theft trial. So certainly at that stage 24 it wasn't in any kind of test case. It became 25 important but I think test case -- I wouldn't 6 1 agree with that title but it was clearly very 2 important to the Post Office. 3 Q. Why was it important? In what respect was it 4 important to the Post Office? 5 A. Well, because the Horizon system was a system 6 used throughout the business and throughout all 7 the post offices up and down the land, and it 8 was important that that worked. Not only in 9 terms of criminal investigation but for the 10 general public. It's essential that it works. 11 Q. So if we take out of the question the legal 12 language of test case, would you agree that it 13 was seen by the Post Office as an important and 14 significant case -- 15 A. Yes. 16 Q. -- that was -- and it was important and 17 significant because it was necessary to 18 demonstrate convincingly that there were no 19 problems with Horizon? 20 A. Yes, I think I would agree with that, I do think 21 that it was treated as an individual case but 22 there was a significant challenge to Horizon, 23 and the Post Office did think that had to be met 24 and that there was a wider public interest in 25 that being met. 7 1 Q. How did that importance or significance manifest 2 itself in the conduct of the case? 3 A. In a strange way, it didn't. There was just 4 a feeling of a lot of pressure throughout the 5 case. At an early stage before Gareth Jenkins 6 was instructed, there was a lot of pressure 7 because of what we considered, rightly or 8 wrongly, to be very wide-ranging and 9 potentially, to an extent, irrelevant disclosure 10 requests. There was a lot of pressure trying to 11 deal with that situation. 12 And then, once Mr Jenkins and Professor 13 McLachlan were involved and, as I saw it, 14 cooperating together, it was seen, I think, as 15 important by both sides that they should work 16 together to try to establish whether the 17 problems that were alleged against Horizon, 18 whether they existed or not. That was 19 an important issue. 20 In a way, it was a slightly strange case to 21 choose because there were lots of complexities 22 to it. There were the complexities of the 23 initial defence statement, and so forth. In 24 a way, I suppose, if the Post Office wanted to 25 choose a test case, they might have chosen 8 1 a case that was more straightforwardly dependent 2 and dependent alone on Horizon deficiency. 3 Q. You mentioned that there was pressure and then 4 when you went on to explain that, you explained 5 it in terms of pressure to administer disclosure 6 requests. 7 A. Yes. I didn't feel -- I'm so sorry, 8 I interrupted. 9 Q. Was there anything other than the normal work 10 pressure that one has to deal with disclosure 11 requests and late disclosure? 12 A. No. I didn't -- for instance, I didn't have 13 any -- apart from an email that's in the bundle 14 talking about the difficulties of the workload 15 for Investigators, I essentially had no 16 communications from anybody higher or in a wider 17 capacity than my instructing solicitor and the 18 Investigator, Jon Longman. 19 Q. Can I turn, then, to your earliest involvement 20 in the case. 21 A. Yes. 22 Q. I think you received written instructions to 23 settle an indictment, to advise on evidence and 24 to appear for the prosecution at trial? 25 A. Yes. 9 1 Q. I wonder whether we can look at that, please. 2 POL00044585. We can see the summary of what 3 you're asked to do in the underlined emboldened 4 and capitalised section at the top: 5 "Instructions to Counsel to Settle 6 Indictment and Advise on Evidence and Brief for 7 the Prosecution". 8 I think this marks your first involvement in 9 the case? 10 A. Yes, that's right. 11 Q. If we go to page 3 and look at the foot of the 12 page, please, we'll see that these instructions 13 from Jarnail Singh and Mr Taylor, a senior 14 lawyer and legal executive respectively, are 15 dated a day in February 2009? 16 A. Yes. 17 Q. We haven't got the original, we've got one 18 that's been pulled from a computer and so the 19 exact date to be inserted, presumably in 20 handwriting, is not included? 21 A. Yes. 22 Q. So if we look at page 2, please, and the foot of 23 the page, please, bottom two paragraphs, your 24 solicitors ask you to: "advise on evidence and, 25 in particular, whether [you consider] any 10 1 additional evidence is required"; appear at the 2 Prosecution -- at a Plea and Case Management 3 Hearing on 20 March at Guildford Crown Court. 4 So that's the request, yes? 5 A. Yes. 6 Q. Can you tell us what an Advice on evidence is, 7 to your understanding, ignoring for the moment 8 here the particular or specific request for 9 consideration of any additional evidence? 10 A. Yes. An Advice on evidence is required by most 11 prosecuting authorities in almost every kind of 12 case, from the most straightforward to the most 13 complex. Sometimes an Advice doesn't need to be 14 in writing. A telephone Advice will be ample 15 and will be sufficient. Sometimes more detail 16 is needed. But the Advice at this stage would 17 simply involve counsel looking at the papers, 18 checking the proposed indictment, which counsel 19 would then draft, as was then the practice for 20 the Post Office. 21 I, as counsel in this case, would have 22 looked at the witness statements, the exhibits, 23 the unused material, the schedule that was 24 prepared at this stage and, also, the internal 25 Investigator's report, just to check that 11 1 everything was in order, and I did that in this 2 case. I didn't provide -- 3 Q. Sorry to interrupt you, Mr Tatford. I was 4 asking at a general level to start with, rather 5 than what you in fact did or didn't do in this 6 case. So an Advice on evidence is what? 7 A. Oh, well, it's advising, first of all, overall, 8 is there reasonable prospect of a conviction. 9 Q. That's what I wanted to understand. 10 A. Yes, forgive me. 11 Q. This document can come down. Thank you. 12 So an Advice on evidence, in the context of 13 criminal proceedings, is an Advice as to 14 evidential sufficiency to sustain the 15 allegations? 16 A. Yes. 17 Q. It's not an Advice about, or only about, what 18 future evidence or other evidence we might 19 obtain. It's an assessment of whether there's 20 a realistic prospect? 21 A. Yes. An assessment of that, assessment of the 22 public interest, assessment as to whether it's 23 the right charge. And then, after those more 24 important matters, then perhaps a consideration 25 of what evidence might be missing, whether 12 1 everything is in order. 2 Q. Can we turn to your witness statement, please, 3 page 20. On page 20, if we can look at 4 paragraph 41, please, and the fourth line: 5 "I did not provide a written Advice on 6 evidence at this stage: this was not unusual in 7 a case where, as here, I had been provided with 8 all the necessary paperwork and the case 9 appeared properly prepared." 10 So you were instructed to provide a written 11 Advice on evidence but you didn't? 12 A. Well, I think when counsel is instructed to 13 advise, I'm not sure it's necessarily in 14 writing. But sometimes it will be. What I did 15 in this case was to look at the evidence, to 16 look at the indictment, to consider the various 17 matters I've outlined and formed a view about 18 it. 19 I can't remember now whether I telephoned 20 Jarnail Singh, but one of the main results of 21 advising on evidence is drafting the indictment 22 because -- it's a shame these days counsel isn't 23 required to draft indictments more regularly, 24 because, if you'd have to draft the indictment 25 you really have to read the papers, and so, by 13 1 drafting the indictment, you'll have a very full 2 understanding of the case and be in a position 3 to advise, in a fairly brief and succinct way, 4 as to all the issues I've outlined. 5 Q. You give us the reasons for not preparing 6 an Advice here, that you'd been provided with 7 the necessary paperwork and the case appeared 8 properly prepared. Evidential sufficiency 9 requires an examination of that paperwork, 10 doesn't it, not just whether there are pieces of 11 paper -- 12 A. Oh, yes. 13 Q. -- in the brief. You say the case appeared 14 properly prepared. Did you, in fact, look at 15 the substance of what the evidence disclosed, as 16 opposed to whether it appeared well arranged? 17 A. Oh, yes, no, it's not a question of arrangement. 18 It's looking at the case summary, looking at the 19 Investigator's report, which is often more 20 detailed, and then checking the evidence. 21 What I was able to do, because I was 22 familiar with this sort of case, was to see that 23 it was in order. I could do that fairly quickly 24 because I was familiar with this sort of Horizon 25 deficiency case where it appeared to be 14 1 a straightforward deficiency case. 2 Q. To what extent did you understand, at this time, 3 and so early 2009, that the Post Office relied 4 upon independent counsel advising on the 5 sufficiency of evidence as part of its 6 governance and oversight of the prosecutorial 7 process? 8 A. Oh, I realise that was important to them. They 9 relied on barristers much more, for instance, 10 than the CPS. 11 Q. We've heard a number of witnesses say "Ah, 12 a part of our system was the use of the 13 independent bar and a member of the independent 14 bar advising on realistic prospect of 15 a conviction", and some of them have said, "and 16 on the public interest too". Did you do that in 17 this case? 18 A. Yes, but I think I did in writing later on -- 19 Q. I'm sorry to speak over you. 20 A. No, forgive me. 21 Q. We've got to get through some work. 22 A. No, absolutely. 23 Q. There is an Advice dated 25 January 2010, which 24 is an Advice about, principally, disclosure? 25 A. Yes. 15 1 Q. Not about whether there's a realistic prospect 2 of conviction. Was there ever any written 3 Advice on evidential sufficiency or public 4 interest? 5 A. Not written Advice but I gave telephone Advice 6 to Jarnail Singh on the day of the PTPH, because 7 we discussed pleas. 8 Q. Right, and so that was on 20 March; is that 9 right? 10 A. Yes. 11 Q. So between receiving the instructions and the 12 PTPH -- in fact I think back in the day it was 13 a Plea and Case Management Hearing -- 14 A. Yes. 15 Q. -- you hadn't advised on evidential sufficiency 16 and public interest? 17 A. No, I don't think that was -- I don't think that 18 was particularly surprising. I don't know 19 exactly when the brief came through but I had 20 advised on the indictment, and I took -- well, 21 when I advise on the indictment, I'm essentially 22 saying, at least by implication, that there is 23 a reasonable prospect of conviction, otherwise 24 I wouldn't be drafting the indictment. I'd do 25 an Advice to say there's no prospect of 16 1 conviction. 2 Q. So the fact that you settle an indictment is 3 an implied statement that there is a reasonable 4 prospect of securing a conviction on the counts 5 that you settle? 6 A. I think so, yes. 7 Q. Does that mean that you don't separately, where 8 you're settling an indictment, advise in 9 writing? 10 A. No, I think I did relatively few written Advices 11 for the Post Office and, indeed, for the CPS at 12 this time on fairly straightforward cases. I'm 13 not seeking to diminish the importance of cases 14 but instructions to counsel is to advise. There 15 isn't a time limit in the instructions, I think, 16 and -- 17 Q. What -- 18 A. -- it's an ongoing process. 19 Q. What's the important of that point? That there 20 wasn't a time limit? 21 A. Well, in this case, for instance, this case 22 changed. But I took the view that my duty was 23 to read the papers, to draft the indictment and 24 I would do -- only do that if I was satisfied 25 there was a reasonable prospect of conviction. 17 1 Then my view was that I'd complied by doing all 2 of that with the -- my instructions because 3 those are the instructions that come in every 4 single brief, and counsel tries to do written 5 Advices as often as possible but there is simply 6 not time, I'm afraid, in every single case. 7 Q. So was it usual in Post Office cases for you to 8 be requested to advise on evidence but you not 9 formally to do so. You either do so by a phone 10 call or by settling the indictment, which 11 carried the implication that there was 12 sufficient evidence? 13 A. Yes, I think so, and the instructions were very 14 much in -- those were instructions, I think, in 15 every brief, so it's part of the pro forma of 16 the brief. That's not to underestimate the 17 important of that. It's vital that prosecution 18 counsel does review those matters. 19 Q. Thank you. That document can come down. 20 As we've seen from the instructions, you 21 were also requested to settle an indictment. 22 Can you explain, for those who don't know, what 23 settling an indictment means, please? 24 A. Well, it means setting out the charges that fit 25 the evidence. So, in this case, it was one 18 1 count of theft and various counts of false 2 accounting in relation to various monthly branch 3 trading forms from the West Byfleet office. 4 Q. I think you've confirmed this already: in your 5 view, settling an indictment carries with it 6 an implication that there is a realistic 7 prospect of a conviction? 8 A. Yes. 9 Q. Would you not accompany your Advice by setting 10 out an analysis of evidential strengths and 11 weaknesses and where the public interest lay? 12 A. In an ideal world, yes, but I'm afraid there is 13 simply not enough time to do that in every 14 single case. It's simply impossible. The Post 15 Office, I think at that stage, paid counsel for 16 written Advices, so there's an incentive there. 17 But, for instance, in every single case, it's 18 simply impossible. The workload is too great. 19 We would all love to do that but I'm afraid, 20 even back then and more so now, it's very 21 difficult to do written Advices for every single 22 case. 23 Q. Accompanying the indictment was a "Schedule of 24 Charges". 25 A. Yes. 19 1 Q. Can we look at that, please. It's POL00045010. 2 This accompanied your brief and your 3 instructions. Are these the charges in respect 4 of which Mrs Misra had been committed by the 5 Magistrates Court to the Crown Court? 6 A. Yes. 7 Q. If we pan out a little bit, we see that Charge 1 8 was a theft allegation of stealing £74,000-odd 9 and the remaining four are false accounting 10 charges -- 11 A. Yes. 12 Q. -- as you've said. So one theft, four false 13 accounting. The date range in the theft 14 allegation is 15 November 2006 and 14 January 15 2008? 16 A. Yes. 17 Q. You say in your witness statement -- I'm so 18 sorry. 19 I wonder whether we can turn to POL00051092. 20 We can see an email from you to Jarnail Singh on 21 10 March, saying: 22 "Please find indictment attached for Misra, 23 which needs to be lodged today." 24 I think we've seen in your instructions that 25 the deadline for you settling the indictment 20 1 was, indeed, 10 March. 2 Then if we can look, please, at POL00051149, 3 we can see an indictment. You say in your 4 witness statement that you do not believe that 5 this is a copy of the indictment that you 6 settled and, instead, it was a copy included in 7 your papers as a draft indictment. 8 A. Yes, I think that's right, yes. 9 Q. Just dealing with those two things separately, 10 why it might not be a copy of the indictment 11 that you settled: plainly it wasn't the one 12 enclosed with the email because we can see 13 a T-number written in hand on the top right-hand 14 side. That wouldn't have been included in the 15 attachment to your email, would it? 16 A. No. 17 Q. If we look at page 3, please, at the foot of the 18 page, we can see it's dated 16 March 2009, again 19 in hand, which is after your email of 10 March, 20 yes? 21 A. Yes. 22 Q. Then if we look at the very foot of the page, we 23 can see that there's a character string 24 suggesting that this document may have come from 25 a drive or may have been saved in a drive 21 1 relating to Jarnail Singh; can you see that? 2 A. Yes, I do. 3 Q. So that, I think, establishes the first part of 4 the proposition that it's not the one that was 5 attached to your email. But you tell us as 6 well, that you think this was a copy included in 7 your papers as a draft indictment. That's 8 unlikely, isn't it, given these features, the 9 three features? 10 A. Yes, that's right, looking at the dates. I said 11 that, I think, because there often would be 12 a draft indictment. 13 Q. Well, the instructions that you received set out 14 the enclosures and draft indictment isn't one of 15 them? 16 A. Oh, well, I've missed that. That's me 17 thinking -- making a mistake because of other 18 cases, then. 19 Q. I just want to look at the substance then, 20 whether this looks to be the indictment that you 21 settled, albeit dates and signatures have been 22 added after you settled it. 23 Can we just look at page 4, please, which is 24 the next page, and scroll down, and scroll down. 25 Is that the kind of back sheet that you would 22 1 prepare when you were settling an indictment? 2 A. No, I wouldn't do a back sheet. If I sent 3 an indictment by email, I would simply send it 4 as an attachment to the email, I think. A back 5 sheet -- in this -- around this time, we were 6 still not using computers anywhere near as much 7 as the barristers use them now but I would only 8 send -- attach a back sheet to a written piece 9 of work, which was sent in the DX. 10 Q. If we scroll up, please, we can see this has got 11 a "Received" stamp on it of 11 March 2009, the 12 day after you settled it. Do you think you sent 13 one out in the post or by DX too? 14 A. No, I don't think so. I think I simply sent one 15 out by email. The reason -- the reason I don't 16 think this is the indictment I drafted is simply 17 because of the formatting. I don't think I'd 18 have underlined names in quite the way it is. 19 I may be in error about this because I've 20 noticed my formatting generally is very 21 different from now I format matters now. 22 Looking at the dates, this might well be the 23 indictment I drafted. I thought that it wasn't 24 because of the way it's formatted but I'm not 25 sure, I'm afraid. I don't think there's any 23 1 significant difference from the indictment 2 I drafted and the original draft. 3 Q. When you say the indictment that you settled and 4 the original draft, what are you referring to as 5 the original draft? 6 A. Oh, the charges, I think, in this case, as there 7 wasn't a draft indictment, it would be the 8 charges. So I used the charges, I compared them 9 against the evidence and drafted the indictment. 10 Maybe -- I'm so sorry -- sorry. 11 Q. In fact, if we look back at page 1 of the 12 indictment, we can see there are some material 13 changes. The theft count, you can see the 14 period of the alleged theft is expanded in terms 15 of its start date -- can you see that -- 16 A. Yes. 17 Q. -- and this remained so, including up to the 18 point of arraignment and at trial, 29 June 2005. 19 Then if we look at the accounts, remembering 20 previously there were four counts of false 21 accounting, if we just scroll through this 22 document -- and keep going. 23 We can see there are seven counts in total, 24 six counts of false accounting. So it's 25 expanded from four to six. You think that was 24 1 your work, the -- 2 A. Oh, yes, certainly the -- focusing on the date 3 is helpful because I'd have begun it with the 4 beginning of Mrs Misra's time at the West 5 Byfleet office. The more I look at this, it may 6 be I was misled by the way it was formatted. 7 This may well be the indictment I drafted. I'm 8 sorry if I made a mistake about that. 9 Q. That's all right. Just going back to Count 1, 10 then, and the theft, I think you just said that 11 you expanded the period of coverage from the 12 date that Mrs Misra started in the Post Office, 13 at West Byfleet, that being 29 June 2005. 14 A. Yes. 15 Q. At the point of settling the indictment, had you 16 got anything such as ARQ data? 17 A. No. 18 Q. Did you subsequently receive ARQ data? 19 A. Well, it was certainly -- I think I did, I must 20 have done. The defence was served it, I would 21 have had it served at the same time. I know 22 I advised that it be -- that it be served on 23 a disk, I think; they wished to print it out. 24 I'm trying to remember whether I had a full copy 25 myself but I would have thought I did, but 25 1 possibly just on a CD-ROM. 2 Q. Thank you. If we just look at some other 3 material that may help you -- 4 A. Of course. 5 Q. -- FUJ00122707. This is Penny Thomas, 6 an employee of Fujitsu, her witness statement 7 for the purposes of the Seema Misra prosecution, 8 dated 4 February 2010. You can see what she 9 says in the opening paragraph, if we just scroll 10 down a little bit, to remind you of who she was. 11 If we then turn to page 5, please, in that first 12 substantive paragraph, she produces a copy of 13 some ARQs, and she gives the number as her 14 exhibit PT1, and produces a CD as her exhibit 15 PT2. 16 A. Yes, I see. 17 Q. Then, if we go to page 7, please. This is 18 a document that she attaches to her witness 19 statement, which appears to give the date range 20 of the ARQ data that she was exhibiting. Can 21 you see the date range in the right-hand column 22 three boxes down -- 23 A. Yes. 24 Q. -- 1 December 2006 until 31 December 2007. That 25 period is a limited period covering only the 26 1 false accounting charges, rather than the whole 2 of the theft period, which ran from when 3 Mrs Misra took over West Byfleet on 29 June 2005 4 to 14 January 2008. Do you know why that was, 5 why the ARQ data was obtained for a different 6 period of time than the allegations in Count 1? 7 A. The -- well, I think this ties in with the -- 8 what I set out in my abuse of process argument 9 because the Post Office told me that it was -- 10 because of their contractual relations with 11 Fujitsu, they wouldn't be able to have ARQ data 12 to cover the full indictment period and I've set 13 out the reasons what -- as to what I was told 14 about that in my abuse of process argument. 15 I acknowledge straightaway that the Court of 16 Appeal in Hamilton have said that the full 17 material must be served but I've set out the 18 explanation as to why a shorter period was 19 chosen. It is to do with the cost and the 20 contractual arrangements but, also, a shorter 21 period was chosen so that there could be a focus 22 on a time when the data may not be affected by 23 the thefts that Mrs Misra said that she'd dealt 24 with. 25 Q. So that's the explanation, cutting through 27 1 matters, that you put when cross-examining the 2 defence expert, Professor McLachlan? 3 A. Yes. 4 Q. You said -- I'm not going to turn it up for the 5 moment -- the rationale behind why you were 6 given that 13-month period, ie December '06 to 7 the end of December '07, is because it's not 8 tainted by any suggestion of theft, 9 ie suggestion of theft made by Mrs Misra. It's 10 clean data to look at for computer error. 11 A. Yes, not tainted by theft by employees of 12 Mrs Misra, not Mrs Misra herself. It's to -- 13 clean data to focus on whether any patterns 14 could be seen that might be suggestive of 15 Horizon problems. It was really to focus on 16 that -- the three possibilities, that 17 possibility that was raised by her defence at 18 the trial. 19 Q. Professor McLachlan replied "But I requested the 20 data for the entire period", and you said: 21 "I fully accept that but, if one requested 22 and received every piece of paper for West 23 Byfleet, we would probably fill this room." 24 Is that your understanding of why the data 25 was not requested for the entirety of the period 28 1 of the theft count, ie cost and volume? 2 A. Cost, volume, those were the main reasons, I'm 3 afraid. It was also -- there was the additional 4 consideration of an untainted period but I -- 5 the dominant factors were cost -- the dominant 6 factor was cost and the contractual relationship 7 with Fujitsu, I think. 8 Q. I think you candidly accept in you witness 9 statement that, on reflection, this was the 10 wrong approach? 11 A. Yes. Very much so. And -- well, I set out 12 reasons for that. I agree. I accept that. 13 Yes. 14 Q. Would I summarise them correctly as follows: the 15 Crown chose to charge an ongoing theft over 16 a long period of time? 17 A. Yes. 18 Q. Once the defence raised the reliability of 19 Horizon, disclosing the Horizon data for the 20 whole of the indictment period was not a matter 21 of disclosing unused material; it was also the 22 primary evidence upon which the Crown relied in 23 order to prove that the property belonging to 24 another had been appropriated by the defendant? 25 A. Yes, that's right, it was served as evidence. 29 1 Q. In other words, that data was necessary to prove 2 the elements of the offence of theft? 3 A. Yes, I would agree with that. 4 Q. Therefore, Mrs Misra was entitled to receive the 5 entirety of the data for that period as served 6 evidence, so that her expert could analyse it 7 and see whether the Crown had indeed proved its 8 case? 9 A. Yes, I certainly would agree with that now. 10 I've explained the reasoning. I think the 11 reasoning now was wrong, as exposed by the Court 12 of Appeal. But, actually, the way that you've 13 exposed it shows that it's wrong simply in its 14 basic logic. 15 Q. Did you consider that the theft and false 16 accounting charges were essentially alleging the 17 same criminal conduct? 18 A. No. I was aware of the case of Eden, which 19 I referred to in my abuse of process argument, 20 and the Crown has to consider very carefully 21 whether to charge both types of offending. In 22 this case, it was fully justified because it 23 allowed Mrs Misra to plead guilty to what she 24 accepted but also allowed the Crown, if it had 25 the evidence to do so, to pursue the clearly 30 1 more serious allegation of theft. 2 Q. So these were separate offences, reflective of 3 two different types of alleged criminal 4 conduct -- 5 A. Yes. 6 Q. -- the first being a theft charge relating to 7 the alleged stealing of the money, the second 8 being a false accounting charge or a series of 9 false accounting charges relating to the alleged 10 covering up of the theft? 11 A. Yes, the false accounting was the covering up 12 but Mrs Misra, in her interview, suggested she 13 was covering up for thefts of others, so there 14 was a different motive for that offence, which 15 made it a less serious offence. If she was only 16 convicted of that offence alone and found not 17 guilty of the theft, she'd get a very different 18 sentence. 19 That's why I thought it very appropriate to 20 have the two different kinds of offending, 21 albeit they're linked but the motivations were 22 different. 23 Q. Can we turn to the Plea and Case Management 24 Hearing. That took place, as we've said, on the 25 20 March 2009 and you address what happened at 31 1 page 20 of your witness statement, paragraphs 42 2 and following, if we can turn that up please. 3 So page 20 of your witness statement, 42, 4 please. I'll just read these aloud: 5 "The PTPH [as I have said, I think it was 6 a Plea and Case Management Hearing] took place 7 on 20/3/09. I have a recollection of being 8 asked by Andrew Castle, the solicitor advocate 9 for Mrs Misra, whether pleas to false accounting 10 would be acceptable. I had anticipated being 11 asked this question as it was obvious from the 12 papers that such an offer was going to be made. 13 I had formed a view, before the enquiry from 14 Mr Castle, that such an offer should not be 15 accepted, because the suggestion that Mrs Misra 16 had been entering false figures over 17 a considerable period, only to cover the thefts 18 by members of staff, seemed clearly refuted by 19 the fact that her false figures continued to 20 rise long after the dismissal of the alleged 21 thieves. The figures would simply reach a false 22 plateau if the source of the loss ended. 23 Instead they continued to rise, suggesting that 24 the loss was continuing in spite of the 25 sackings. The obvious inference to me at the 32 1 time was that the hole in the accounts was 2 growing because Mrs Misra was stealing money. 3 It seemed far more rational that Mrs Misra would 4 use false accounting to hide a hole created by 5 herself than by others. My experience from 6 other cases was that a [subpostmaster] whose 7 shop was struggling might 'borrow' money from 8 the funds of their sub post office to put into 9 their shop, hoping in due course that they would 10 be able to return money into the sub post office 11 before an audit occurred. In the absence of 12 an audit the [subpostmaster] could hide the hole 13 in the accounts by false accounting. Only the 14 stocktake involved in an audit could reveal the 15 true deficiency. That was my opinion, but as 16 I only act on instructions it was essential for 17 me to discuss the plea offer with my instructing 18 solicitor. My recollection is that, whilst at 19 court before the hearing, I telephoned my 20 instructing solicitor, Jarnail Singh, to discuss 21 this. He agreed that the pleas were not 22 acceptable. I do not remember exactly what was 23 said ... but the advice I would have given would 24 have been along these lines: the account the 25 Defendant had given in interview, that she was 33 1 the victim of thefts by former employees did not 2 fit the evidence -- the apparent holes in the 3 accounts increased after the dismissal of the 4 stealing employees; I thought it did not make 5 sense that Mrs Misra would cover up, by false 6 accounting, a loss caused by the dishonesty of 7 others -- a desire not to lose the sub post 8 office did not appear to explain false 9 accounting on such a scale, because there would 10 be no point keeping hold of a business that was 11 haemorrhaging so much money; the Defendant said 12 in interview she had only reported a tiny 13 fraction of the thefts to the police -- this did 14 not make sense to me because she was obliged by 15 common sense and by contract to report the theft 16 and if she was prepared to report the theft, why 17 not report all of it?" 18 Now, in fact, it appears -- and you may have 19 forgotten this when you made your witness 20 statement -- that Mrs Misra pleaded guilty to 21 the six counts of false accounting at these Plea 22 and Case Management Hearing. 23 A. Oh, yes, I didn't mean to suggest anything else. 24 I was asked whether that would be acceptable on 25 its own. I said no, having taken instructions, 34 1 but then she entered her pleas. I don't know if 2 that's the precise order but she certainly 3 entered her pleas. I didn't mean to say 4 otherwise. 5 Q. Thank you. Can we look, please, at POL00051441. 6 This is a letter dated 13 May, so two months 7 or so after the PCMH to you or, in the 8 old-fashioned way, to your clerk. You'll see 9 that are, if we scroll down, right at the foot 10 of the page, it's from Mr Taylor, a legal 11 executive within the Criminal Law Division, 12 co-author of your instructions. 13 He says he'd received a telephone call from 14 Jon Longman, the Investigating Officer who took 15 over this case from Adrian Morris: 16 "Counsel will recall the Defence letter, 17 dated 16 March 2009 [so that's four days before 18 the PCMH] which advised the Defendant would 19 plead Guilty to all counts relating to false 20 accounting but Not Guilty to theft. 21 "Counsel will also recall that subsequent to 22 that ... letter dated 9 April 2009 the names and 23 addresses of 3 people who worked at the sub post 24 office at various times were notified to the 25 prosecution. Jon Longman has attempted to 35 1 contact these people and has attended their 2 addresses. None of them now live at the 3 addresses given and one is believed to now be 4 living in India. 5 "Bearing in mind the matters which the 6 Defendant set out on pages 13 and 14 (Exhibit 7 bundle) John has asked me whether it would be in 8 the public interest to continue with the 9 prosecution. 10 "Myself (or Jarnail who is also aware of 11 this) would appreciate Counsel's advice as to 12 whether or not it would be sensible to continue 13 with the prosecution or to accept the false 14 accounting charges." 15 So essentially summarising: the Investigator 16 was wondering, in the light of the allegation 17 that other people had been responsible for the 18 thefts, whether it would be in the public 19 interest to continue with the prosecution, 20 ie the prosecution for theft because that was 21 the only contested allegation that remained. 22 A. Yes. 23 Q. Can we turn, please, to POL00047864. 24 That's an errant reference. POL00047864, 25 that seems to be it. Can I try the reference 36 1 that I was originally going to seek to display: 2 POL00051586. 3 I'm sorry, sir. There appears to be a ghost 4 in the machine. I wonder whether you would mind 5 taking a 10-minute break now, slightly earlier 6 than usual, whilst we sort that out. 7 SIR WYN WILLIAMS: No, that's fine, Mr Beer. So 8 what time shall we start again? 9 MR BEER: Maybe 11.05, please. 10 SIR WYN WILLIAMS: Yes, that's fine. 11 MR BEER: Thank you very much. 12 (10.52 am) 13 (A short break) 14 (11.05 am) 15 MR BEER: Good morning, sir, can you see and hear 16 me? 17 SIR WYN WILLIAMS: Yes, I can, thank you. 18 MR BEER: Apologies for that interruption. Can we 19 display, please, POL00051586. Can we look at 20 the foot of this page, please. If we scroll 21 down a bit more, we can see an email from Phil 22 Taylor, the legal executive, to you, dated 23 22 May 2009. We can see that the Misra case was 24 in a warned list, according to the title of the 25 email, of 12 June 2009, yes? 37 1 A. Yes. 2 Q. He says: 3 "Hi Warwick, 4 "I am just a little bit in the dark about 5 Misra. You will recall that there is one count 6 of theft and some false accountings. The 7 Defence will plead Guilty to the false 8 accountings [in fact, of course, she already had 9 by then, as we've established] and Jon Longman 10 is fairly happy for us to accept those pleas." 11 In fact, those pleas, as I say, had already 12 been entered: 13 "However we are some £70,000-odd light at 14 the moment as I understand it and if we just 15 accept the false accountings it is very 16 difficult for us later to obtain a Confiscation 17 Order and subsequently compensation out of the 18 Confiscation. 19 "Could you let me have your views on this. 20 I would be very grateful to hear from you." 21 You will have seen there that Mr Taylor 22 appears to be drawing a link between the 23 decision whether to proceed with the theft 24 allegation or be content with the false 25 accounting pleas and whether it will be possible 38 1 to obtain a confiscation order, doesn't he? 2 A. Well, he draws a link. He seems to be ruling it 3 out, but yes. 4 Q. Seems to be ruling what out? 5 A. Well, he seems to understand that confiscation, 6 which is my view, would be very difficult with 7 false accounting, but -- well, I can explain 8 further but I'll wait for your question. 9 Q. So you agree that he's drawing a link between 10 whether we accept the pleas or not by reference 11 to the availability of a confiscation order? 12 A. Well, he is making that link. He's not 13 a lawyer, he's very much a case worker. He 14 would be called a case worker in the CPS, albeit 15 he's extremely experienced. His main concern 16 was preparing cases so witness bundles, 17 organising witness availability, and so forth. 18 It seems to me he's just approaching everything 19 in the round and asking what's going on but 20 simply because he doesn't know what I've 21 discussed with Jarnail Singh previously. 22 Q. In your witness statement, you tell us -- it's 23 paragraph 43, no need to turn it up -- that you 24 had always taken the view that the availability 25 of a confiscations order was an irrelevant 39 1 consideration in making a charging decision -- 2 A. Yes. 3 Q. -- and, do I take it from that, an irrelevant 4 consideration in deciding whether to accept 5 pleas or not or continue with counts on 6 an indictment? 7 A. I think so, yes. 8 Q. Is it right that that's always been your view? 9 A. Yes. Confiscation is a consequence on 10 conviction, it's not a -- it's really, it's out 11 of place, it seems to me, in any consideration 12 of the public interest and what's acceptable as 13 a plea. 14 Q. I was going to ask you why you hold that view. 15 Is that it: the reasons you've just given? 16 A. Yes. No, precisely. And it depends on other 17 factors, such as whether the defendant has any 18 means but those are factors to be looked at 19 after pleas are decided. It seems to me to 20 muddle the two is very dangerous. 21 Q. Why is it very dangerous? 22 A. Because cases should be prosecuted if the 23 offence and the evidence merits it not because 24 of the consequences. That applies to other 25 orders as well, I would have thought, 40 1 disqualification orders are different sorts of 2 offences. I think it's important to draw 3 a distinction between what the evidence shows, 4 what is in the public interest. That has to be 5 looked at in terms of charges and acceptable 6 pleas. 7 Consequences then follow automatically 8 according to the law. I think they do need to 9 be separated. That's my view. 10 Q. If we just go back to the email, please, 11 POL00051586 and look at the middle passage in 12 the email chain. There's your reply of 22 May, 13 the same day: 14 "Dear Phil, 15 "I have spoken to Jon Longman about this 16 case." 17 Just stopping there, would that be spoken at 18 this time, ie May, or are you referring back to 19 some previous occasion? 20 A. I'm not sure but I think it's previously. 21 I wouldn't be -- it may have been back at the 22 time of the PTPH, Jon Longman might have gone 23 along for that but I don't know. I'm not 24 entirely sure. I think I've spoken to him to 25 this communication, it's not at the time of this 41 1 communication. But I'm not absolutely certain 2 about that. 3 Q. Was that usual, for you to have direct 4 communications with Post Office Investigators? 5 A. Yes, I tried to do that as much as possible 6 because I found, as indeed with police officers, 7 one can achieve a great deal by having that 8 contact with the Investigator. I try and get 9 their mobile number as soon as possible in any 10 case I prosecute. It saves an awful lot of 11 unnecessary -- well, it saves a lot of time and 12 it helps get on with the case. 13 Q. What about an audit trail of such 14 communications: how is that kept? 15 A. Well, the audit trial, I suppose, these days 16 would automatically follow from email. 17 I wouldn't expect to have to set out an audit 18 trail for every phone call I had with 19 an Investigator in any case. 20 Q. So the answer is that there isn't an audit 21 trail? 22 A. No, no, it's one reason I do try these days to 23 use email for that reason. But there won't be 24 an audit trail and I don't think there's any 25 requirement for any audit trail for that sort of 42 1 situation. 2 Q. You continue: 3 "The case for theft is strong and we should 4 not accept the pleas. Confiscation would also 5 be a non-starter if we did. Jon is making some 6 further enquiries about the 'thieves' the 7 Defence have given us details for. It may be we 8 have been given false details which may 9 strengthen our case. 10 "Do call me on [your number] if you would 11 like to discuss further." 12 So you address evidential sufficiency of the 13 theft charge first, yes? 14 A. Yes. 15 Q. Then you continue: 16 "Confiscation would be a non-starter ..." 17 If the availability of confiscation was 18 an irrelevant consideration in deciding whether 19 or not to commence or to pursue charges, why are 20 you addressing it here? 21 A. I'm addressing it because Phil Taylor's 22 addressed it and I want him to know my full 23 position. But what I mean by my sentence 24 structure, the full stop is meant to be there: 25 "The case for theft is strong, we should not 43 1 accept the pleas", full stop. That's the end of 2 that consideration. 3 Confiscation would also -- that also is 4 important. That does reflect, I hope, exactly 5 what I've said about how I approach confiscation 6 after considerations of pleas. My grammar is 7 quite deliberate there. 8 Q. Did you ever gain a sense, when prosecuting for 9 the Post Office, that recovering money through 10 confiscation orders was a very important 11 consideration for it, the Post Office? 12 A. It's an important consideration. I never got 13 the impression that it was any kind of decisive 14 reason for any prosecution. The Post Office 15 were very -- they were most keen in ensuring 16 that confiscation orders were turned into 17 compensation orders, so that they would get the 18 money. But they were realistic about 19 defendants' means, and so forth. 20 It was an important matter for them, as it 21 should be for any prosecuting authority. 22 I didn't get the impression that it was of vital 23 importance in every case. It was a consequence 24 which they took seriously. 25 Q. Thank you. Can we move on to the first trial, 44 1 then, on 2 June 2009. If we can look at your 2 witness statement, please, at page 23. Bottom 3 paragraph, please, from 46 onwards, you say: 4 "The trial was placed in a warned list and 5 the case eventually listed for trial on 3/6/09 6 before Recorder Bailey. It was on this day that 7 concerns were raised for the first time in the 8 case about the integrity of Horizon. 9 "The attendance note of Jarnail Singh [and 10 you give a reference] seems to set out 11 accurately what happened on ..." 12 You call it 3 June, I think as we'll see it 13 is 2 June. 14 A. Forgive me. 15 Q. "... when Ms Misra's trial was listed. I don't 16 think I saw the attendance note at the time. 17 I was often attended upon when I prosecuted Post 18 Office cases and it was not unusual for the 19 reviewing lawyer to attend on the first day of 20 a trial", et cetera. 21 Then if we go down to paragraph 48: 22 "Until I saw the attendance note ... I had 23 believed that Defence Counsel was Keith Hadrill. 24 This was a mistake on my part because of 25 Mr Hadrill's later role as trial Counsel. I was 45 1 involved in a couple of cases with Mr Cousens 2 ... around the late '90s and early 2000s and 3 I do now think he was trial Counsel on 3 June 4 2009 but I am not 100% sure. I do remember 5 clearly that Defence Counsel produced 6 a photocopy of a Computer Weekly article about 7 alleged problems with Horizon and complaints 8 about various [subpostmasters]. This was the 9 first time in the case that I was made aware of 10 the issue of Horizon IT reliability and the 11 first time I was informed about problems at the 12 various sub post offices referred to in the 13 Computer Weekly article." 14 So that can come down. Thank you. 15 Defence counsel produced a copy of an 16 article from Computer Weekly. That was dated 17 11 May 2009, so only a few weeks before the 18 trial was due to begin on 2 June 2009. Then can 19 we go back, please, to your witness statement, 20 please, page 26. Just pick up the end of 21 paragraph 50, last three lines: 22 "All I did know was this was an important 23 new issue that needed to be considered properly 24 by both sides. It was therefore vital for there 25 to be an adjournment." 46 1 The trial was indeed adjourned, yes? 2 A. Yes. 3 Q. In 51, you tell us about a new firm of 4 solicitors. I'm going to skip over that. 52, 5 you tell us: 6 "I realised that we were about to embark on 7 a demanding disclosure exercise. I was 8 conscious that both sides were treading new 9 ground and the only guide I had so far was the 10 Computer Weekly article. As I thought about 11 matters, it seemed to me it would be important 12 to focus on the West Byfleet sub post office and 13 consider whether any Horizon problems had 14 occurred there. Complaints from 15 [subpostmasters] about problems at different 16 offices might raise evidence of a problem that 17 could be examined in relation to West Byfleet, 18 but it seemed to me that a simple complaint by 19 a [subpostmaster] was of very limited 20 assistance. There would need to be evidence of 21 what the problem was, or at least what its 22 symptoms might be, eg the location within the 23 office stock where the loss appeared to arise. 24 I discussed the way I was thinking with Keith 25 Hadrill and it was decided that there should be 47 1 a joint visit to the West Byfleet sub post 2 office." 3 From your diary, you can say this appears to 4 take place on 6 November 2009. 5 That can come down, thank you. 6 What was the purpose of visiting the branch? 7 A. Oh, to see Horizon in use by the staff there and 8 also to get an idea of how the branch was -- the 9 geography of the branch as a whole. It's always 10 helpful to look at the shop premises, but the 11 main purpose was to ensure that both sides had 12 seen Horizon in action at the West Byfleet 13 office. 14 Q. Did you think there was a problem with the 15 hardware in the branch? 16 A. No, because I had the evidence of Mr Vasani(?), 17 who took over control of the branch. He ran 18 other branches as well, and he reported no 19 problem. 20 Q. Do you think that the problems raised in the 21 Computer Weekly article related to the operation 22 of hardware in a branch? 23 A. I wasn't sure about that. That seemed likely 24 because they related to individual offices, 25 widely spread apart. But I wasn't sure because 48 1 there wasn't enough detail, for instance that 2 the Callendar Square issue, which I became much 3 more informed about, which very much was 4 a hardware issue within a branch, as 5 I understood it -- I wasn't clear from the 6 detail of the Computer Weekly article, but I was 7 trying to keep an open mind. 8 Q. With hindsight, do you think addressing a series 9 of concerns raised in the Computer Weekly 10 article in the operation of the Horizon system 11 would be addressed by going and looking at 12 hardware in a branch? 13 A. I simply thought it was a good place to start, 14 because our case was concerned with West Byfleet 15 and I wanted to ensure that the defence saw how 16 it operated because I was aware from other cases 17 that sometimes there were misunderstandings 18 about what the system was like, and how -- what 19 it looked like to operate. 20 Q. Can we look, please, at POL00053393. We can see 21 from the foot of the page it's from Mr Taylor, 22 and then, at the top of the page, we can see 23 this letter is dated 15 October 2009, so 24 a couple of weeks before the site visit. It's 25 addressed to Post Office Security with a copy to 49 1 the Investigator, Mr Longman. It reads: 2 "[Prosecution] Counsel Warwick Tatford has 3 been discussing this case with Defence Counsel 4 Keith Hadrill, both of whom are resident [at 5 your chambers]. 6 "What they have decided is to visit West 7 Byfleet ... premises and perhaps someone can 8 show them the Horizon system in operation which 9 hopefully will knock on the head this business 10 about the Defence requiring so many years worth 11 of Horizon data." 12 Was that your purpose: visiting the branch 13 to knock on the head a request for years of 14 Horizon data? 15 A. No. I wanted the defence to see how Horizon 16 worked and that would inform their disclosure 17 request, but I wasn't seeking to end proper 18 enquiries. 19 Q. How would viewing the hardware in the branch 20 inform their disclosure requests? 21 A. Well, it would inform them a great deal because 22 most of their -- about half of their disclosure 23 requests weren't about Horizon at all but were 24 about -- weren't about computer problems at all; 25 they were about how easy the system is to 50 1 operate and how errors arise, and that's exactly 2 what one could have a good idea about if you saw 3 somebody using the system. 4 Q. Do you know where this idea that a demonstration 5 of the operation of Horizon on a particular day, 6 years after the events in question, was seen as 7 a replacement for providing Horizon audit data 8 at times relevant to the events in question? 9 A. Well, I never saw it -- I never understood that 10 it was an alternative. The -- forgive me, 11 I can't see -- this is Phil Taylor's letter, 12 I think? 13 Q. It is, yeah. 14 A. The wording is very in character for Phil 15 Taylor. "Knocking on the head", for instance, 16 isn't a phrase I would use but I can imagine him 17 using. 18 The -- I suppose it certainly was right we 19 were using -- the visit -- I hoped the visit 20 would help focus disclosure requests. We'd 21 given an explanation as to why we thought 22 a particular span was appropriate and that was 23 still being considered, as I understood it, by 24 the defence, and I thought overall they'd be 25 helped by seeing the equipment. 51 1 I appreciate now, with hindsight, that's 2 wrong but, at the time, that appeared sensible. 3 Q. Why, with hindsight, is it now wrong? 4 A. Well, because with hindsight I now know that 5 there are lots of problems about Horizon which 6 are completely out of my knowledge. I had no 7 idea of anything that has been discovered since. 8 At this stage, I knew nothing, other than the 9 Computer Weekly article and I hoped that a visit 10 might give some focus. 11 Q. When we come to the trial a year later, we'll 12 see, in due course, that when you opened and 13 closed the case to the jury you said "How can 14 there have been a computer problem" -- I'm 15 summarising -- "when, if there was a computer 16 problem, it would have been evident to Mrs Misra 17 because she was the one operating the computer?" 18 A. Yes, I can explain what I mean by that because 19 I've seen that phrase, I'm aware of various -- 20 Q. Online criticism? 21 A. -- online criticism and what I meant by that, 22 and I hope this is a valid point, is that, if 23 there is a problem, Horizon gives you a lot of 24 opportunities to see where the problem might be 25 arising. It delivers fruitful enquiries. 52 1 Because, as indeed Mr Vasani said in his 2 evidence very clearly, he was able to find the 3 source of a problem by working through Horizon, 4 the various printouts. 5 I'm not suggesting that one can see 6 a computer problem from the screen of Horizon, 7 you can't, that's obviously right. But what you 8 can do is search the office from top to bottom, 9 using all the printouts that Horizon can give, 10 to get a full idea of where the problem might 11 arise, as indeed Mrs Misra had done when she was 12 able to identify thieves, and she did that by 13 using Horizon, as I understand it. 14 Q. Did that belief, the belief that you've just 15 expressed, inform your thinking of the 16 desirability or necessity of a site visit, 17 "Let's go down to the branch and see the system 18 in operation"? 19 A. Well, it did inform it. I thought it would be 20 helpful to everybody. 21 Q. That can come down. Thank you. 22 I'm going to turn to the appointment of 23 Mr Jenkins in the Misra case. Can I start, 24 please, with some general questions concerning 25 the duty of a prosecutor in relation to 53 1 an expert witness. 2 Would you agree -- and these propositions 3 I'm about to put to you, come from the evidence 4 that the Chair of the Inquiry has heard from 5 Mr Atkinson, King's Counsel -- that a prosecutor 6 intending to rely on expert evidence in criminal 7 proceedings was subject to an obligation firstly 8 to satisfy themselves as to the expert's 9 relevant qualifications and expertise? 10 A. Yes. 11 Q. Secondly, to satisfy themselves that the expert 12 had been appropriately instructed, including by 13 the provision of a written and detailed letter 14 of instruction or an email of instruction, all 15 being provided with written terms of reference? 16 A. Yes. 17 Q. Thirdly, under an obligation to satisfy 18 themselves that the expert was provided, within 19 the instructions, with identification of what it 20 is that his or her opinion is sought on and set 21 out issues or questions that he or she is expect 22 to answer? 23 A. Yes. 24 Q. Fourthly, a prosecutor is under an obligation, 25 would you agree, to provide guidance as to what 54 1 it is the expert is being asked to do and what 2 material they are being asked to consider in 3 order to undertake that task? 4 A. Yes. 5 Q. Fifthly, a prosecutor is obliged to set out the 6 material upon which reliance has been placed in 7 the prosecution and which may be relevant to the 8 questions which the expert is expected to 9 answer? 10 A. Yes. 11 Q. Lastly, a prosecutor is obliged, would you 12 agree, to inform the expert to as his or her 13 relevant duties? 14 A. Yes. 15 Q. Would you agree, again building on that, that, 16 even with those experts who are trained, 17 accustomed to or who make their living by giving 18 expert evidence, ie even if you were preaching 19 to the choir, a prosecutor has to make sure that 20 an expert understands what their duties are? 21 A. Yes. 22 Q. A prosecutor, would you agree, is under 23 an obligation to satisfy themselves that the 24 expert had understood in the first instance, and 25 then complied, with their relevant duties to the 55 1 court? 2 A. Yes. 3 Q. That was a necessary duty in order that the 4 prosecutor could be sure that the expert 5 evidence was admissible, as a basic condition of 6 admissibility? 7 A. Yes, that's right. 8 Q. Lastly, would you agree that a prosecutor was 9 under a duty to satisfy themselves that any 10 material or, indeed, literature, which might 11 undermine the expert's opinion, was reviewed by 12 the prosecution and, if potentially relevant, 13 disclosed not only to the defence but to the 14 expert? 15 A. Yes. 16 Q. Before we get into the weeds of emails and 17 letters and draft witness statements, would you 18 agree with the following three points, just as 19 a matter of generality and stepping back: 20 Firstly, Mr Jenkins was never provided with 21 a written document which met any of the 22 requirements that we have just identified? 23 A. That appears to be right. I think I may have 24 assumed that he had been because I worked on the 25 assumption that he'd been instructed properly. 56 1 But I should have checked that and I didn't. My 2 assumption was wrong, perhaps. 3 Q. Would you agree that there's no documentary 4 record which can be pointed to that confirms 5 that Mr Jenkins understood any relevant expert 6 duties of which he was subject? 7 A. Well, I think that must be right because 8 I haven't seen anything and it would have been 9 shown me, if it existed. 10 Q. Lastly, there's no documentary record which 11 confirms that any prosecutor themselves, any 12 part of the prosecution team, was satisfied that 13 Mr Jenkins understood any of the relevant expert 14 duties to which he was subject? 15 A. No, there appears to be no document. That's 16 right. 17 Q. Would you agree that, by at least 2009/2010, the 18 time that we're considering -- in fact it had 19 been the position for many years before -- the 20 following were necessary inclusions in an expert 21 report: 22 Firstly, details of the expert's academic 23 and/or professional qualifications, their 24 experience, their accreditation, that was 25 relevant to the opinions expressed in the 57 1 report? 2 A. Yes. 3 Q. Secondly, the range and extent of their 4 expertise and any limitations upon that 5 expertise? 6 A. Yes. 7 Q. Thirdly, an expert report was required to 8 include a statement setting out the substance of 9 all instructions received, whether that's oral 10 instructions or written instructions, questions 11 upon which their opinion was sought, the 12 materials provided by their instructing client 13 and considered by them, the documents, 14 statements, evidence, information or assumptions 15 that were material to the opinions that they 16 were about to express? 17 A. Yes. 18 Q. Fourthly, a report necessarily had to include 19 information relating to who carried out any 20 examinations or investigations, the methodology 21 used and whether or not such investigations were 22 carried out under the expert's personal 23 supervision? 24 A. Yes. 25 Q. Fifthly, a report was required to include 58 1 whether there was a range of opinion in relation 2 to the matters dealt with in the report, 3 a summary of that range of opinion and the 4 reasons given by the expert for adopting 5 a position within that range? 6 A. Yes, I think that might depend on the particular 7 case and what range might be relevant to the 8 particular case. But, generally, I agree with 9 that. 10 Q. Yes, if there was a range -- 11 A. If there was a range, yes. 12 Q. If there was a range, then it should include it? 13 A. Yes. 14 Q. That carried with it a concomitant duty to set 15 out any material facts or matters that detracted 16 from the opinion that the expert was 17 proffering -- 18 A. Yes. 19 Q. -- ie any points that might fairly be made 20 against the opinion that they were offering? 21 A. Yes. 22 Q. A report was required to include, sixthly, 23 I think, relevant extracts from literature or 24 any other material that might assist the defence 25 or the court? 59 1 A. Yes. 2 Q. Seventhly, the report was required to include 3 a statement that the expert had complied with 4 their duty to the court to provide independent 5 assistance by way of objective and unbiased 6 opinion, in relation to matters within their 7 expertise, and an acknowledgement that the 8 expert would inform the parties and the court 9 that, if their opinion changed, they would tell 10 the court and the defence so? 11 A. Yes. 12 Q. Did you understand that those duties not only 13 existed but that the requirements went to the 14 substance of an expert's report, rather than 15 just being administrative details that needed to 16 be complied with? 17 A. Well, I certainly realised that they were 18 requirements and they might well determine the 19 admissibility of the report. 20 Q. So they're not just about form? 21 A. No, no, it's not just about form. 22 Q. It's about substance? 23 A. Yes. 24 Q. We know that those requirements were 25 incorporated into the Criminal Procedure Rules, 60 1 Rule 33, which came into effect in November 2 2006. At the time that you were prosecuting 3 Mrs Misra in 2009/2010, did you know that those 4 requirements had been introduced into the 5 Criminal Procedure Rules? 6 A. I did know they were in the Criminal Procedure 7 Rules. I quite clearly didn't consider them 8 properly. I can give an explanation for that 9 but, clearly, I failed in that and I -- and 10 that's a clear failing. 11 Q. You tell us in your witness statement -- we 12 needn't turn it up -- you refer to a case called 13 Stubbs, the decision of the Court of Appeal 14 Criminal Division -- 15 A. Yes. 16 Q. -- that a witness who is not functionally 17 independent of a party, for example because 18 they're an employee of a party, may nonetheless 19 be called as an expert on behalf of the 20 prosecution. Would you accept that, in such 21 cases where the witness is not functionally 22 independent of the relevant actors in the case, 23 it's all the more important that the expert 24 witness understands and complies with the duties 25 that I've just mentioned? 61 1 A. No, I absolutely agree with that. Yes. 2 Q. Would you agree that there's a particular duty 3 to ensure understanding with and compliance with 4 such duties in such a witness's case, because of 5 the particular risk that an individual, whose 6 day job is not being an expert witness and who 7 is asked to give evidence about issues including 8 their own work, may not understand the nature of 9 their expert duties? 10 A. No, absolutely. Absolutely. 11 Q. They may also have skin in the game? 12 A. Yes. 13 Q. Was this a risk that you appreciated? 14 A. Oh, yes, and we were utterly transparent. 15 I fully accept that we haven't -- that the 16 statements of Mr Jenkins didn't comply with the 17 Criminal Procedure Rules but we made -- and 18 I certainly made considerable efforts to ensure 19 that the witness did understand his duties. 20 I accept that the best way to do it is to 21 follow the rules. That protects all parties, 22 including Mr Jenkins, and I can see now that 23 by -- well, what I remember -- just so the 24 explanation is clearly understood, I do 25 remember, particularly when I saw Mr Atkinson's 62 1 evidence, I do remember thinking that the 2 statement that we'd eventually been -- received 3 from Mr Jenkins was the final statement, 4 essentially was his main statement, 5 I appreciated that didn't comply but I was aware 6 of the time constraints. 7 I have a recollection of speaking with Keith 8 Hadrill about that to check whether there was 9 any issue as to admissibility. It's only 10 a recollection. I can't be absolutely sure 11 about that. I concede, though, that is nowhere 12 near enough to comply with the rules. 13 What I can see now is that, because of the 14 difficulties of timing and various other 15 stressors within the case, I tried to cover the 16 points myself by explaining things orally when 17 that simply isn't the safe way to proceed, and 18 I was in error in that. 19 Q. Again, before embarking on the detail, would 20 that in Mrs Misra's case, no statement relied 21 upon by the prosecution, by the Post Office, 22 from Mr Jenkins, included any of the necessary 23 in conclusions required by the common law and 24 the Criminal Procedure Rules, in order to 25 conform to the requirements of proper expert 63 1 evidence? 2 A. Yes, I would. There's a reason for that, though 3 and it comes from the -- I would accept, the 4 muddled way in which he was instructed. Our 5 thinking in the prosecution side wasn't -- was 6 muddled. He became involved, initially, in the 7 case simply as a way of responding to the 8 disclosure requests because the officer in the 9 case was unable to deal with that. 10 So a person at Fujitsu needed to be 11 identified who could help with that and then 12 he -- by a process that is unclear to me, he was 13 then presented to me as our expert. Now, 14 I think I assumed that letters of instruction, 15 and so forth, had been sent and that doesn't 16 appear to be the case. But there was muddled 17 thinking to do with the demanding exercise of 18 complying with the disclosure requests, and that 19 led to muddled thinking and a failure to follow 20 the rules. 21 I tried to follow the substance but I accept 22 that the rules are there not just for form but 23 also for substance, and the efforts I made were 24 not adequate and the rules should simply have 25 been followed. That would have been the proper 64 1 way. But it started off in an unusual way, and 2 that was the original cause of the problem. 3 For instance, Mr Jenkins, on my advice, was 4 providing a series of witness statements, which 5 essentially were responses to interim reports by 6 Professor McLachlan to try to assist him, 7 because we had a flurry of these reports and 8 I thought it important that it was set down in 9 writing so that Mr Jenkins could be 10 cross-examined on it in due course, if 11 necessary, what his position was, so that there 12 was in effect an audit trail, and it was clear 13 what he was saying. 14 But that muddled beginning tarnished the 15 thought process throughout Mr Jenkins' 16 instruction and I regret that. It was 17 a mistake. 18 Q. Just generally, again, before we get into some 19 of the detail, the muddled beginnings, 20 ie starting the process of engaging Mr Jenkins 21 in any way in the case, in an unusual way, as 22 you've just described it, that was itself the 23 choice of the prosecution, wasn't it? 24 A. Yes, and it was a choice made because we were 25 very concerned about complying with our 65 1 disclosure obligations by responding to 2 requests. We should have sat down and thought 3 about it much more clearly. Our response was 4 a knee-jerk response to the requests. 5 Q. Secondly, you said that you'd assumed that 6 a letter of instruction was sent? 7 A. Yes, I did assume that. 8 Q. Wouldn't you want to see it and ensure that it 9 should have been disclosed? 10 A. No, I agree. I should have asked to see it. 11 Q. Thirdly, you said that you complied or sought to 12 comply with substance of what the rules required 13 by engaging in conversations with Mr Jenkins? 14 A. Yes. 15 Q. Is there any record of those conversations? 16 A. No, it's only my recollection. 17 Q. So, if it came to an issue at court, either as 18 to admissibility on a voir dire of the expert 19 evidence or in the event of challenge at trial 20 as to what the expert had been told as to their 21 duties, the material with which they had been 22 provided, whether they'd been informed of their 23 duties and the like, there would be no record 24 which could be produced? 25 A. I agree. It was muddled thinking throughout, 66 1 and that was -- I had overall responsibility, 2 I should have corrected that. I didn't think it 3 through. 4 Q. If it came to that, in an argument over 5 admissibility, you would end up calling yourself 6 as a witness? 7 A. Yes, I hadn't thought that through. I did think 8 that that was essentially impossible in the 9 case, though, the way it was working through it, 10 because the way that I thought we had found, 11 which was unconventional and certainly not in 12 accordance with the rules, but actually involved 13 mutual cooperation between the experts in a way 14 that seemed to be beneficial to both. 15 And it was actually the only way of making 16 progress in the case, because we were 17 essentially having an unending circle of interim 18 reports with hypotheses which didn't match our 19 understanding of Horizon but we needed somebody 20 with expertise to explain that to the expert. 21 We needed two experts to work together, as they 22 did, eventually providing a joint statement 23 showing agreement and disagreement. 24 So I suspect -- well, looking at it now, 25 I was lulled into a false sense of security that 67 1 this was an unconventional way of doing the 2 right thing in this case. But it was wrong. 3 Q. You say in your statement -- I'm not going to 4 turn it up -- that you took great pains in all 5 your conversations with Mr Jenkins to make sure 6 that he understood the duties of an expert 7 witness? 8 A. Yes. 9 Q. You explained it was his overriding duty to 10 assist the cost -- 11 A. Yes. 12 Q. -- to give an opinion that was objective and 13 unbiased, and that that duty overrode any 14 obligation that he might feel to the party 15 calling him: the Post Office. You explained 16 that it was his duty to disclose anything that 17 might undermine his position and that he should 18 be entirely open with both the Post Office, as 19 prosecutor, and Professor McLachlan, about any 20 Horizon problems? 21 A. Oh, yes, because the -- I had asked previously 22 in my advice for Fujitsu to be contacted and to 23 inform us of any problems and I saw Mr Jenkins 24 as an obvious route to doing that. That's how 25 I saw things. And it seemed to me, particularly 68 1 from the feedback I was getting from the 2 defence, that this approach was working. 3 Q. Sorry, you've referred to "the defence" a number 4 of times now. 5 A. Yes. 6 Q. Are you saying that conversations with 7 a colleague in chambers -- 8 A. No, I really mean Professor McLachlan. 9 Q. I see. 10 A. It was perfectly clear to me that he found it 11 helpful to work with Mr Jenkins. It seemed to 12 fit his way of doing things because his way of 13 approaching things was to suggest hypotheses 14 which needed somebody to help him with. They 15 needed to sit down together and it's absolutely 16 clear that they did that, from the evidence they 17 gave at the trial. 18 Q. Before we get into the detail of the 19 communications between you, the Post Office and 20 Fujitsu and Mr Jenkins, if you were mindful of 21 these expert duties and the need to make them 22 crystal clear in somebody who did not enjoy 23 functional independence from the party that was 24 calling them, and you explained them to 25 Mr Jenkins, how is it that every witness 69 1 statement which the Post Office sought to rely 2 on from Mr Jenkins omitted any of the necessary 3 in conclusions for an expert report? 4 A. Because most of -- until the last statement, all 5 of those were responses to Professor McLachlan. 6 It is important to bear in mind that there had 7 been an abuse of process argument that had been 8 dependent entirely on submissions made about 9 responses and what the defence were saying were 10 inadequate responses. I had undertaken, at that 11 hearing, to ensure that the experts would work 12 together. That's why we did it. I was 13 essentially trying to ensure that the 14 undertakings I gave in the abuse of process 15 argument were fulfilled. 16 Q. How does that explain the absence of any of the 17 required content in any of the witness 18 statements? 19 A. Well, it should have -- they should have been in 20 all of the witnesses and I thought of this point 21 particularly when the final statement was 22 forthcoming because, as I've said, the earlier 23 ones were meant to assist. They were 24 essentially answers to questions posed. And the 25 idea, or my idea, was to have the final 70 1 statement setting out all matters. 2 That final statement should have complied 3 properly with the Criminal Procedure Rules. It 4 didn't, but that statement wasn't available 5 until about two days before the trial and my 6 recollection is I spoke with the defence to see 7 if that was going to raise any problem with 8 admissibility and I understood it wasn't going 9 to be because their understanding was that the 10 two experts were working well together, and that 11 Professor McLachlan needed the assistance he was 12 getting from Mr Jenkins. 13 Q. Does the fact that none of the statements 14 include the required content for an admissible 15 expert report and there isn't a single document 16 that records the explanation to Mr Jenkins of 17 the existence of his duties instead show that 18 the Post Office and its lawyers failed properly 19 to consider what duties Mr Jenkins was subject 20 to? 21 A. I think, as a whole, that may be right. I was 22 trying and I thought it had been -- I assumed -- 23 it was an assumption. I assumed that these 24 obligations were being explained by my 25 instructing solicitor as well. 71 1 Q. On that point, I'm focusing on you at the moment 2 but you suggest that you explained orally to 3 Mr Jenkins some of the duties to which he was, 4 in fact, subject. Given it was the Post 5 Office's solicitors who were responsible for 6 instructing Mr Jenkins and the Post Office who 7 bore the statutory duties and common law duties 8 in respect of disclosure, rather than having 9 conversations with the expert that aren't 10 recorded, did you not make it clear to or advise 11 the Post Office that they should be the ones who 12 should approach Mr Jenkins on the basis that he 13 was an independent expert and they should be the 14 ones that discharged the duties of compliance 15 that I've mentioned? 16 A. I didn't make that clear because I thought that 17 had been followed and that's how he came to be 18 instructed. It goes back to the muddled and 19 unclear way in which he came forward as 20 an expert. He went from one day, as 21 I understood it, to the person who was helping 22 with the disclosure enquiries, to becoming our 23 expert. And I may have -- well, I did assume 24 that instructions had been properly made. 25 I should have required to see the paperwork, as 72 1 I've said earlier. 2 Q. You tell us in your witness statement that your 3 Advices to the duties that you mentioned 4 occurred in the course of conversations with 5 Mr Jenkins. When did those conversations occur? 6 A. I think I had phone conversations with him and 7 there was also a conference shortly before the 8 trial. I don't remember the conference but 9 I can see it is referred to in emails. And what 10 I imagine I did, because it's the sort of thing 11 I would have done at that time in my practice, 12 would have gone -- would have actually had to 13 have my Archbold with me and go through with him 14 in the conference what the requirements of 15 an expert was. 16 But I don't have a recollection of the 17 conference, but that's the sort of thing I would 18 have done as part of my practice. But, again, 19 I have no specific recollection of that. 20 Q. In relation to the phone conversations first, 21 dealing with the conference second, was there 22 a solicitor present, taking a note of the -- 23 A. No. 24 Q. -- conversations that you were having with the 25 prosecution's expert? 73 1 A. No. 2 Q. Is that advisable or suboptimal? 3 A. No, it's certainly suboptimal. 4 Q. How would you rely, if any issue had been raised 5 at trial, as to whether Mr Jenkins had been 6 informed of his expert duties or, indeed, on 7 an appeal, if your solicitors weren't making 8 a record of what he had been advised? 9 A. Well, I agree, that encapsulates the failing. 10 Q. Turning to the conference, we've seen only 11 reference to one conference, I think -- 12 A. Yes. 13 Q. -- likely mentioned in emails, of October 2010. 14 Was that an occasion on which advice was given? 15 A. That's what I believe, although I don't have 16 a specific recollection of it but, as I say, 17 that's the sort of thing I would do. The whole 18 point of meeting with Mr Jenkins was to ensure 19 as -- well, my main point was to ensure that he 20 understood what his job was because I was well 21 aware he hadn't been an expert before and 22 I wanted to help him. 23 I've obviously failed in that but, actually, 24 what I wanted to do was to help him. 25 Q. Can I turn, then, to specific communications -- 74 1 A. Yes, certainly. 2 Q. -- in the Misra case to try to track the initial 3 instruction of Mr Jenkins to work out how it 4 came about in October 2010, he was called to 5 give evidence as an expert witness. Can we 6 start, please, with FUJ00152843. 7 We can see, I think, that this is an email 8 of 26 November 2009, from the Investigator, 9 Mr Longman, to Jane Owen -- just to remind you, 10 she was a Security Team Advisor in the Post 11 Office's Security team -- and to Andy Dunks, 12 also a member of the Post Office's Security 13 team. You're not copied in on it but it refers 14 to some advice that you are said to have given: 15 "Jane 16 "I attach a report from the defence expert 17 where he has highlighted a number of problems 18 with the Horizon system." 19 The attachment was the second interim report 20 of Mr McLachlan: 21 "Our barrister, Warwick Tatford, has asked 22 that the problems with Horizon that he has 23 raised in his report are replied to in a witness 24 statement form. I presume that an employee of 25 Fujitsu would have to produce the witness 75 1 statement." 2 Does that reflect the advice that you 3 originally gave as to how Professor McLachlan's 4 report ought to be responded to? 5 A. Yes, I advised that it be put in a witness so 6 that, as a witness, he could be cross-examined 7 on it but I was anxious that he had the 8 information as quickly as possible so he could 9 make progress. 10 Q. There's no suggestion here, if this summarises 11 your advice, that Professor McLachlan's report 12 would be responded to by expert evidence? 13 A. No, at that stage, I didn't envisage that. 14 Q. Why? 15 A. Because -- well, because what I thought we were 16 trying to do was simply to give him an informed 17 position on Horizon and then he could provide 18 a report, rather than an interim report based on 19 hypotheses that may not even apply to Horizon. 20 I think -- it's difficult to remember now, it's 21 a long time ago, but I think I may have thought 22 that, if a report came forward, we might have to 23 consider then an expert. 24 But I didn't form any final views on this. 25 I was -- I was doing my best, with my solicitor, 76 1 to respond to very strenuous, wide-ranging 2 disclosure requests, which were supported in 3 a rather unhelpful way, I thought at the time, 4 by interim reports of an expert. And it was 5 a case of firefighting, which -- and which 6 produced muddled thinking. 7 Q. Can we see what the Post Office Security team 8 did with this when they received it. 9 FUJ00152847. Can we look at page 2, please. 10 I should just look at page 3 first, just so 11 you can see it. There's the email we've just 12 looked at, "Jane, I attach a report from the 13 defence expert"; can you see that? 14 (No audible answer) 15 Then if we look at the foot of -- sorry, if 16 we look at page 2. Thank you. Jane Owen, the 17 Security Team Advisor -- if we scroll up -- 18 forwards the email to Penny Thomas in Fujitsu, 19 saying: 20 "Penny 21 "This is the email and attachments that we 22 chatted about. Please let me know if you need 23 anything else from me and if this kind of 24 request needs to be raised in a more official 25 way." 77 1 Then page 1, foot of the page, please. 2 Penny Thomas replies: 3 "Do you know what the return/court 4 requirements are for this case, please?" 5 Then at the top of the page. 6 "[I have] Spoken to the investigator and he 7 has asked is there any chance of us having the 8 information by Christmas?" 9 So there are some administrative details. 10 Would you agree that this collection of emails 11 is an insufficient and improper way of 12 commissioning expert evidence from an employee 13 of Fujitsu? 14 A. Yes, I'm not sure it's quite reached the stage 15 of obtaining expert evidence, as an expert 16 witness, but it's wrong, clearly. 17 Q. That can come down. Thank you. 18 Can we move forwards a little bit, please -- 19 that was December 2009 -- to your disclosure 20 advice of 5 January 2010. POL00044557. If we 21 look, please, at the last page, which is 22 page 9 -- scroll down, please -- we can see that 23 you sign it off, dated 5 January 2010. 24 A. Yes. 25 Q. Yes? Then if we go back, please, to page 2, you 78 1 say, under the heading "Section 8 disclosure 2 application": 3 "I have [reviewed] paperwork held by the 4 Civil and Criminal departments in relation to 5 all the 'case studies' set out in the Computer 6 Weekly article which is attached to the 7 Section 8 application." 8 Just for those watching, what's a Section 8 9 application? 10 A. Oh well, that's an application if the defence 11 are unhappy with the secondary disclosure, 12 following a defence statement. 13 Q. They had made an application asking for 14 disclosure of material relating to or relevant 15 to the case studies set out in the Computer 16 Weekly article? 17 A. Yes, they had. They hadn't, at this stage, 18 I think, served a defence statement relating to 19 those issues at all, so it was a little cart 20 before the horse, really, because a Section 8 21 application should follow on from a defence 22 statement that actually raises the issue of 23 Horizon. At this stage, we just simply had 24 a defence statement saying it was other thieves 25 in the office. 79 1 Q. You say: 2 "In deciding whether any material should be 3 disclosed I have kept the following test in 4 mind: is there material that is capable of 5 casting an objective doubt on the reliability of 6 Horizon?" 7 What did you mean by "casting an objective 8 doubt"? 9 A. Oh, so that there was evidence of a problem, 10 rather than simply a complaint by 11 a subpostmaster. So somebody -- so that there 12 are records showing a problem. 13 Q. What do you mean "records showing a problem"? 14 A. Well, that there could be all sorts of records. 15 (1) the -- the difficulty is if you have 16 a subpostmaster who says, "I have a problem but 17 I've dealt with the problem by putting false 18 figures in so the accounts balance" then you 19 don't have the evidence; you've simply got the 20 complaint. 21 If, for instance -- and this didn't happen 22 at all from what I came across -- but if 23 a subpostmaster had a problem, did a printout, 24 for instance -- I take a silly example because 25 I always use stamps as a silly example -- they 80 1 take a printout from Horizon for the number of 2 stamps they have in a particular stock and the 3 printout says they have 100 books and they can 4 see they only have one, they could video that, 5 for instance, with the printout, and that would 6 be evidence, that would be objective evidence. 7 Now, nobody, I don't think, ever did 8 something like that but that would be a way of 9 having objective evidence -- or have somebody 10 who has seen that there is a problem. 11 Q. Like a trainer? 12 A. Like a trainer, that's possible, yes, or 13 an expert who has been asked to look at it. 14 Q. Or a more Senior Manager at the Post Office? 15 A. Yes, somebody independent, some -- an Area 16 Manager, for instance, who might have -- 17 Q. Who had been in the branch? 18 A. Yes. 19 Q. -- watching figures mysteriously increase or 20 decrease on the screen in front of their very 21 eyes? 22 A. Yes. 23 Q. Were you ever told about such matters? 24 A. Well, the matters -- I remember being told about 25 those matters in Mrs Misra's evidence. But, as 81 1 I understand it, there wasn't evidence from any 2 trainers of that sort of problem, but -- 3 Q. I'm going to come to -- 4 A. No, no, please, I need to re-refresh by looking 5 at the -- my memory to be refreshed by looking 6 at the documents. 7 Q. Other than Mrs Misra's case, did the Post Office 8 reveal to you evidence that met your objective 9 test, ie which proved by means other than the 10 word of the subpostmaster themselves? 11 A. Well, what I discovered was the Callendar Square 12 problem, which I discovered from reading the 13 judgment but I knew that needed to be further 14 investigated. So that was a piece of objective 15 evidence, precisely the sort of thing I was 16 looking for. 17 Q. Were you aware that subpostmasters made 18 complaints about errors in Horizon that weren't 19 investigated and, therefore, the availability of 20 so-called objective evidence would never arise? 21 A. Well, I would have been aware of that as 22 a theoretical possibility. All I had done so 23 far, following the steps I had been asked to do, 24 was to bring the Computer Weekly article to the 25 attention of the Post Office and ask to see the 82 1 civil files. I did that for two days and 2 I found the Callendar Square problem. 3 It may be that I should be given more 4 evidence about other matters on those two 5 visits. But that would -- that's what I was 6 trying to do, to find objective evidence because 7 it did seem to me that simple complaints were 8 going to be inadmissible and wouldn't assist any 9 party. 10 Q. What about lines of inquiry that it might allow 11 the defence to pursue? 12 A. Oh yes, well, it depends on -- I have to -- what 13 I needed to do -- to see was to see the details 14 of the complaints. That's why -- and the 15 details were not there in the Computer Weekly 16 article. That's why I wanted to look at civil 17 files to see if I could find more details. More 18 details might lead to an enquiry which would 19 give that piece of objective evidence. 20 Q. Were you aware at this time when you attended 21 and spent -- I think it was a day; is that 22 right? 23 A. Two days, and separated, as well, by a period of 24 time so that gave an opportunity to reflect, on 25 the part of the Civil department if there was 83 1 anything that I hadn't been shown. 2 Q. At this time, when you conducted the two-day 3 visit to Post Office offices, were you aware of 4 something called the Horizon Helpdesk? 5 A. Oh yes, well, that was part of the evidence in 6 our case and I was aware of it from other cases, 7 as well, I think. 8 Q. Were you aware of other levels of support 9 available -- 10 A. Yes, I think so, yes. 11 Q. -- something called the SSC -- 12 A. Yes. 13 Q. -- sorry, the SEC? 14 A. Yes, I'm not very good on remembering what these 15 stand for but I think I was aware, yes. 16 Q. You were aware of other tiers of support? 17 A. Yes, yes. 18 Q. Were you shown any records within those computer 19 databases of complaints by other subpostmasters? 20 A. No. No. I'm not sure, I didn't think of that 21 enquiry, so it may be partly the fault is mine. 22 But I don't think -- what I was shown were the 23 files that related to the particular complaints 24 and all I could see within those files were the 25 fact that a complaint had been made but there 84 1 may not -- there was no evidence to support it 2 one way or another. Sometimes there wasn't 3 a requirement for the money to be paid back, but 4 I was rather frustrated, quite frankly, from my 5 two visits because I didn't really have very 6 much information, apart from the Callendar 7 Square, which I needed to investigate. 8 Q. You say that the test that you had in mind: is 9 there, rewording it a little bit, objective 10 evidence that is capable of casting a doubt on 11 the reliability of Horizon? 12 A. Yes. 13 Q. You discussed that with the defendant's legal 14 representatives when you met in the Post Office. 15 Was that with Mr Hadrill from chambers? 16 A. Yes. I think he was there and I discussed it -- 17 I had discussed it with him on other occasions, 18 in any event. I think I first raised it on the 19 visit to West Byfleet and I think Mr Hadrill and 20 Issy Hogg were present then, I think. I'm not 21 absolutely sure of that. 22 Q. They agreed with the test, you say? 23 A. Oh, yes. I thought it very important to discuss 24 it together because they might have useful 25 additions to the test I was considering. 85 1 Q. So you were looking for evidence where it had 2 already been established that Horizon, in some 3 respect or other, was lacking in reliability? 4 A. Yes. That was absolutely key. 5 Q. Not mere complaints, no matter whether they came 6 from tens, hundreds or thousands of 7 subpostmasters? 8 A. No, because it seemed to be a complaint was 9 simply a complaint. It wasn't actually -- 10 I would see it would be difficult actually to be 11 admissible in a trial. 12 Q. What about the point that I've made about it 13 might put the defence on a train of inquiry? 14 A. Well -- 15 Q. Rather than applying a test for disclosure of 16 whether the product of disclosure would 17 ultimately be admissible? 18 A. I agree with that. That's part of the 19 disclosure exercise, to put the defence on 20 a route to inquiry. But they had a series of 21 complaints. They were well aware of the 22 complaints in Computer Weekly and I think were 23 brought up to speed about other complaints as 24 and when they arose. 25 I knew that they were being proactive there 86 1 in a very sensible way. But I was just trying 2 to find something that went just slightly beyond 3 the fact of a complaint, because a complaint can 4 be genuine or it can be an excuse for 5 inappropriate behaviour. 6 Q. Can we move on. You say, in paragraph 5: 7 "The only material that should be disclosed 8 ... is the Judgment in the Castleton case. 9 I attach a copy of the final Judgment to this 10 Advice. All the other material simply contains 11 unsubstantiated claims by subpostmasters. When 12 those claims have been investigated no 13 supporting evidence has been found." 14 Yes. 15 Q. You say in paragraph 6 you would wish some 16 further enquiries to be made from Fujitsu: 17 "Paragraph 23 of Castleton ... refers to the 18 evidence of Anne Chambers, a system specialist 19 employed by Fujitsu. When she was 20 cross-examined she appears to have had full 21 knowledge of an error in Horizon that appeared 22 to have occurred in Callendar Square in Falkirk. 23 This [is] 'case study 6' [seemingly in Computer 24 Weekly]. I have seen some civil paperwork in 25 relation to Alan Brown, but not concerning 87 1 a Horizon error. I don't know if Anne Chambers 2 still works for Fujitsu but it should be 3 relatively straightforward for Fujitsu to 4 provide full information about what appears to 5 have been a well-known problem at Callendar 6 Square." 7 At this time, did anyone in the Post Office 8 tell you about something known as a Known Error 9 Log. 10 A. I don't remember, I don't remember. 11 Q. By the time of the trial, next year, the 12 following year, by October 2010, had you been 13 told by either Fujitsu, through Mr Jenkins or 14 otherwise, or by the Post Office, of a species 15 of document called a Known Error Log? 16 A. I don't think so. I don't think the title means 17 anything to me that I can think of at the 18 moment. 19 Q. A document that records Fujitsu's own assessment 20 of there being -- 21 A. Oh -- 22 Q. -- an error in Horizon, either in hardware, in 23 coding, in communication? 24 A. No. That's the sort of thing I set out in my 25 Advice I'd like -- the sort of thing I might 88 1 hope to get but I wasn't aware of anything like 2 that. 3 Q. That's precisely the thing you'd be looking for, 4 a self -- a recognition by Fujitsu itself -- 5 A. Oh, that would be the best evidence of all. 6 Q. So far as you can recall, now did anyone mention 7 the word KEL or Known Error Log at any time in 8 your instructions -- 9 A. I don't think so, no. 10 Q. We've heard evidence from Mr Atkinson that every 11 part of the Post Office was subject to a duty to 12 record and retain evidence potentially relevant 13 to the conduct of prosecutions. Did you ever 14 advise the Post Office to conduct a disclosure 15 exercise itself as to what records it held in 16 relation to any problems or issues with Horizon? 17 A. No, I didn't ask the Post Office. I thought the 18 enquiry should be made to Fujitsu. But you're 19 right, it's a sensible enquiry. I didn't think 20 of that. 21 Q. Why did you limit the exercise to looking at the 22 case papers that happened to be identified in 23 a Computer Weekly article? 24 A. Well, I didn't limit them to that. That was my 25 starting point. I've made it absolutely clear, 89 1 and my Advice is very clear on this, that 2 I needed to have disclosure of any problems 3 relating to the reliability of the Horizon 4 system. That is what I make very clear I need 5 in that Advice, and I made it clear in all my 6 dealings with those instructing me. They were 7 well aware of that. 8 From all I can tell, the Criminal Law 9 Department were trying to achieve that end, as 10 well. But everybody knew and you asked me 11 earlier about whether this was a test case and 12 I said it was an important case. I assumed, and 13 it was a very obvious assumption, that people 14 much higher than I would ever come across in the 15 Post Office and Fujitsu knew about the case and 16 knew about the pieces of disclosure, I wanted to 17 see if they existed. 18 I assumed I had set in process something 19 that should have readily brought forth important 20 pieces of disclosure and, because nothing came 21 forward, I assumed that the Callendar Square was 22 the problem. 23 Q. Why not ask the actual party that is 24 prosecuting, which itself is subject to the 25 disclosure obligations, for any documents that 90 1 it holds or to conduct a disclosure exercise to 2 identify any documents that it holds in relation 3 to problems or issues with Horizon? 4 A. Well, I thought -- I rather thought that was 5 implicit in my general advice. I'd been rather 6 vague about matters, I suppose, but deliberately 7 so, to ensure that we could capture -- the net 8 could be spread wide. 9 Q. Can we go back to your advice, then, to look at 10 the focus on Fujitsu, POL00044557. Page 3, 11 please, paragraph 7. You say: 12 "I also think that our disclosure duty 13 requires us to ask Fujitsu whether they are 14 aware of any other Horizon error that has been 15 found at any sub post office. I anticipate that 16 there will be none, but it's important that the 17 check is made." 18 I think you've acknowledged in answer to 19 a question I asked a couple of questions ago 20 that you think, on reflection, that you were in 21 error in focusing on only Fujitsu and that you 22 ought to have asked the Post Office to look in 23 its own depositories for any records of problems 24 or issues with Horizon. 25 A. Yes, I should have said -- it requires us to ask 91 1 Fujitsu and consider within the Post Office 2 whether anybody is aware of any Horizon error. 3 That would be a better way to formulate it. 4 I did assume that this -- I did draft this very 5 widely. I assumed, perhaps wrongly, that 6 Fujitsu would be well aware of something that 7 was the Post Office was well aware of. It's 8 a joint system, as it were. 9 Q. On what evidential platform did you say you 10 anticipate that there will be none but it is 11 important that a check is made? 12 A. Because nobody had ever told me about anything. 13 I'd found the one piece of objective evidence on 14 my own and nobody told me about anything else, 15 and I was -- and I -- I mean I've said elsewhere 16 that I was aware of the danger of the robust 17 term being a mantra. It needed to be justified. 18 But I was given quite clear confidence from all 19 I spoke to that there wasn't a problem with 20 Horizon. 21 I thought I'd found a one-off problem at 22 Callendar Square. That's why I thought I'd 23 found nothing at the Civil department. And that 24 was the impression I had from having 25 conversations with Mandy Talbot at the Civil 92 1 department, I think. I can't remember those 2 exact conversations. My understanding was that 3 this was the only thing and I think I was the 4 one who found it. I'm not sure she bought it to 5 my attention. I found it within the judgment 6 and it was striking to me that Gareth Jenkins 7 wasn't familiar with this problem. He needed to 8 research it himself. 9 All this met together to suggest that this 10 was a good system, I'd found something that 11 needed to be investigated, I acknowledged that 12 any computer system can have lots of glitches. 13 That's perfectly possible, and they can arise at 14 future dates as well, but this was how I thought 15 the process was working well. 16 Q. Can we go forward to page 9, please. After 17 paragraphs 25 and 26 under the heading "Other 18 Matters", you say: 19 "[Mr Longman] has sensibly suggested that 20 the Defence expert might want to meet with one 21 or more representatives from Fujitsu to discuss 22 technical issues and to reach as much agreement 23 as possible. This is an obvious way of avoiding 24 much wasted time and such an invitation should 25 be given to the Defence. 93 1 "Gareth Jenkins at Fujitsu has provided 2 Mr Longman with a number of comments about the 3 Defence 2nd interim report which confirmed my 4 suspicion that the theory that Horizon cannot 5 deal with refused credit card transactions is 6 simply wrong. He suggested in his comments that 7 there are also a number of areas where [the Post 8 Office] could provide assistance. It seems it 9 would be relatively easy to disprove the 10 theories of the 2nd report by witness statements 11 from Mr Jenkins and a suitable witness at [the 12 Post Office]. Those statements should be sought 13 now. Although the Defence are likely to come up 14 with other theories, it will hopefully save time 15 and expense on both sides if we try to rebut 16 false theories as and when they arise." 17 Would you agree that still at this stage, 18 this was not advice that treated Gareth Jenkins 19 as an expert witness? 20 A. Oh, yes, I was using him as a way of responding, 21 to the disclosure requests. 22 Q. Despite the fact you were advising that 23 Mr Jenkins reply to a defence expert report? 24 A. Well, because I saw him as a witness and 25 I thought it important that it was set out in 94 1 writing so he could be cross-examined on any 2 answers. I didn't see him as an expert witness 3 at that time, although albeit I appreciated he 4 had considerable expertise. 5 Q. Can you explain why you did not appear to 6 consider that any statement from Mr Jenkins 7 replying to an expert report would itself be 8 expert evidence? 9 A. Oh, well, if there was a statement from Jon 10 Longman in reply, that wouldn't be expert 11 evidence either. I saw him as a witness of fact 12 at this stage from his -- but as an employee of 13 Fujitsu. He could give factual answers to 14 inform Professor McLachlan who was -- who needed 15 information about Horizon. That's what the 16 professor needed. He had hypotheses but he had 17 no idea whether they were relevant to Horizon. 18 That's why I thought Mr Jenkins could help. Not 19 as an expert witness necessarily at that stage 20 but a witness of providing facts from his 21 knowledge as an employee of Fujitsu. 22 Q. Is that what happened: that Mr Jenkins only 23 provided facts? 24 A. Well, then it becomes muddled. I would have to 25 see what's being provided. I can't think -- 95 1 I can't remember every single statement and 2 every line of it. But it becomes muddled and 3 I can see that. I'm sure. 4 Q. Can we turn back to the chronology, please, 5 FUJ00152887, and look at page 2, please. At the 6 foot, and keep going, thank you -- a little bit 7 more, thank you. 8 This is a continuation of the email trail 9 that we were looking at before the excursion 10 into your Advice. So before we examine what 11 happened as a result of your advice, let's just 12 track back to see what happened following the 13 administrative arrangements being discussed 14 between Jane Owen and Penny Thomas. At the foot 15 of the page is an email from Penny Thomas to 16 Jane Owen: 17 "I hope all is well with you. 18 "Our expert, Gareth Jenkins, has made 19 comments on the 2nd Interim Technical expert's 20 report which I attach for review by Prosecution 21 counsel. Please note that where [the Post 22 Office] is required to respond he has state so 23 in the text. We agreed that in the New Year we 24 would discuss how this would be presented." 25 Mr Jenkins is here being referred to as 96 1 an expert, which of course may mean either 2 a person with expertise or a person who 3 qualifies as an expert witness in legal 4 proceedings. At this point, what was your 5 understanding of Mr Jenkins' status? 6 A. Well, I didn't understand him to be an expert 7 witness yet. I thought he was answering 8 disclosure requests through his expertise. But 9 I can see how it's becoming blurred, that's the 10 trouble, and I acknowledge that. 11 Q. Then page 1, please. An email from Mr Longman 12 to Penny Thomas, of 27 January: 13 "Our defence barrister has asked for all of 14 Gareth's replies in relation to the Defence's 15 2nd Interim Report ... to be produced as 16 a witness statement. I would suggest that the 17 question from the defence is reproduced and then 18 Gareth's replies are recorded immediately after 19 for clarity purposes." 20 Then the second paragraph is not relevant. 21 That is reflecting what you had advised, isn't 22 it? 23 A. Yes. 24 Q. Again, at this stage, it wasn't suggested, 25 I think, in this email train that Mr Jenkins was 97 1 being treated as an expert witness? 2 A. Yes, that's right. 3 Q. Would you agree that, so far, the requests made 4 to Fujitsu did not constitute the proper 5 instruction of Gareth Jenkins as an expert 6 witness? 7 A. Yes. 8 Q. Can we move on, please. FUJ00152902. We're 9 moving on to the second page, please. 10 1 February 2010 and over the next five or six 11 days there's quite a bunch of emails that we're 12 going to have to go through before lunch. 13 1 February 2010, Mr Longman, the 14 Investigator to Penny Thomas at Fujitsu: 15 "Penny 16 "At a pre-court hearing today the judge 17 ordered that all the defence requests for 18 further information be answered by ... Monday 19 8 February." 20 So that's a seven-day order: 21 "Our solicitor in the case has asked that 22 Gareth's statement is completed by Wednesday so 23 that he and our barrister can examine the 24 statement. 25 "Gareth's statement needs to cover the 98 1 following four points. 2 "1. Our defence barrister ..." 3 I think that's you. 4 A. Yes, it's a typo. 5 Q. "... has asked for all of Gareth's replies in 6 relation to the Defence's 2nd Interim Report ... 7 to be produced as a witness statement." 8 Then the repetition of what we've seen 9 already: 10 "2. My barrister [I think that's you, 11 again] telephoned me yesterday evening and 12 requested that I find out any information that 13 Fujitsu may hold in relation to an office called 14 Callendar Square in Falkirk. Apparently, Anne 15 Chambers a Systems Specialist employed by 16 Fujitsu was cross-examined and it is said that 17 she had full knowledge of an error in the 18 Horizon system at this Post Office. 19 "3. When Gareth completes his statement 20 could he also mention whether there are any 21 known problems with the Horizon system that 22 Fujitsu are aware of. If none, could this be 23 clarified in the statement." 24 That's a reflection, I think, of paragraph 7 25 of your advice, isn't it? 99 1 A. Yes. 2 Q. Then: 3 "Could Gareth read the statement from 4 Eleanor Nixon attached below ... 5 "In addition, our barrister would like to 6 speak to Gareth directly and would be grateful 7 if in the first instance whether Gareth could 8 either send him his contact details or give him 9 a call on his mobile." 10 Then details are given. 11 So paragraph 2, a request to find out 12 information in relation to Callendar Square in 13 Falkirk and the issues with Horizon that arose 14 there. That arose as a result of reading the 15 judgment of His Honour Judge Havery? 16 A. Yes. 17 Q. "Disclosure about any known errors in Horizon". 18 It is translated into: 19 "... Gareth completes his statement, can he 20 please mention whether there are any known 21 problems ..." 22 The request that you'd made was slightly 23 different to that, wasn't it? 24 A. Yes, and it's -- 25 Q. It's been watered down? 100 1 A. It's watered -- well, yes, and it's unfortunate, 2 that because, if it had remained at Fujitsu, we 3 may have perhaps got some more answers, I don't 4 know. 5 Q. Unfortunate why? 6 A. Well, it shouldn't just be for Gareth Jenkins 7 and it's -- I think I should have pressed on 8 that requirement in paragraph 7 of the advice. 9 I think I -- it's now become -- it's Gareth 10 Jenkins is going to deal with it. It has been 11 watered down. That's an appropriate phrase and 12 it's not -- it's watering down what I wanted, 13 and that was wrong. 14 Q. So it's gone, would this be the fair 15 characterisation of it, from asking for 16 a disclosure exercise to be undertaken by 17 a third-party provider of the computer system, 18 of any known problems or issues with Horizon, 19 which would be a proper request to a third 20 party, to one man mentioning in a witness 21 statement if there are any known problems? 22 A. Yes, but I still expected to be told, because 23 Fujitsu and the Post Office were aware of this 24 case, were aware of what I wanted, and 25 I expected to be told if there was a problem. 101 1 As I understand it, although I don't pretend to 2 fully understand all the problems that have been 3 identified, there was plenty that should have 4 been disclosed and it wasn't forthcoming. So 5 I assumed that it wasn't there to be given. 6 So in a way, I would have been -- if I'd 7 thought about this being watered down, 8 I wouldn't have seen the danger because 9 I assumed that those who had information, who 10 knew about the case, would do what had been 11 requested of them. 12 Q. Can we turn to POL00054085 and look at the 13 second page, please. This looks like it was 14 meant to be an email to you, because of the 15 salutation, "Jarnail/Warwick", but I can't see 16 that it's sent to you? 17 A. Yes, I don't think it was, no. 18 Q. In any event, Mr Longman says to Mr Singh: 19 "I have spoken to Penny Thomas and she has 20 arranged for a meeting to be held today to 21 discuss the statement that we require from them. 22 After that meeting she will then be in 23 a position to confirm the timescales involved 24 and the cost to [the Post Office] for the 25 statement. An authority to proceed will then 102 1 need to be authorised ... 2 "She is ... aware of the [deadlines]." 3 So it seem that there was then to be 4 a meeting between the Post Office, including 5 Mr Longman, and Penny Thomas on behalf of 6 Fujitsu, concerning the nature of the statement 7 that was required from Fujitsu. 8 A. Yes. 9 Q. Can we turn, please, to UKGI00014895. Thank 10 you. 11 We can see that this is an email from the 12 defence solicitor Issy Hogg to Jarnail Singh, 13 copied to her counsel, Keith Hadrill, and copied 14 to you, dated 3 February still. In the fifth 15 paragraph, if we scroll down a little bit, the 16 one beginning "You have", it states: 17 "You have indicated you do not propose to 18 rely on an expert but on the employees of 19 Fujitsu. For the first time, at the hearing on 20 1 February 2010, you identified that witness as 21 an employee named Jenkins. However, not only 22 have you not served his evidence prior to 23 suggesting a meeting, you accept that you 24 haven't even taken a statement." 25 At this point, does that characterisation by 103 1 the defence accurately reflect the position that 2 Mr Jenkins was neither instructed nor regarded 3 as an expert by the prosecution? 4 A. Yes, and it ties in later with what they said at 5 the abuse of process argument, that the expert 6 hadn't been properly instructed, which is a very 7 valid criticism. Perhaps I didn't take it on 8 board and think it through as much as I should 9 have done. 10 Q. Can we move on to a couple of days later, 11 a series of emails exchanged between Post Office 12 and Fujitsu on 5 February 2010 in relation to 13 a provision of a witness statement from 14 Mr Jenkins. Can we start, please, at 15 FUJ00122713. If we start at the very bottom of 16 the page and go over to the next page, we'll see 17 an email of 5 February at 12.34 from Jarnail 18 Singh to David Jones -- he's a lawyer in 19 Fujitsu, David Jones -- asking if Mr Jenkins 20 could give a witness statement in the Misra case 21 once he returned from leave: 22 "I refer to our conversations of 4 and 5 23 February ... with regards to obtaining a witness 24 statement of the Defence challenging the 25 reliability of Horizon. I understand that 104 1 Mr Jenkins has been identified as an experienced 2 person to give this statement. I would be 3 grateful if you could confirm to me", when he'll 4 be available, essentially. 5 So Mr Singh, into a lawyer in Fujitsu. 6 Then scroll up to the first page, please. 7 Mr Jones' reply to Mr Singh, copying in 8 Mr Jenkins and Penny Thomas: 9 "Thank you for your ... email -- which 10 I have now received! 11 "I met this morning with [Mr Jenkins] who 12 came into the office briefly to meet with me. 13 Gareth will help with this matter ... he should 14 be back to normal working next week. His input 15 will be coordinated by Penny who is responsible 16 to delivery to [the Post Office] of support in 17 this Security area. 18 "Attached is a first draft to a statement 19 from Gareth. I would like you to review it and 20 indicate if it answers the questions in the 21 detail you require. 22 "... there are some areas where Fujitsu 23 cannot deal with the Defendant's expert's 24 criticisms as they are about Post Office 25 procedures or requirements and it seems evident 105 1 that there will need to be a [Post Office] 2 internal 'expert' who can work with Gareth to 3 deal with these areas." 4 So they continue, sorry: 5 "One concern is that [the Post Office] have 6 not apparently requested transaction data for 7 West Byfleet for the period and transactions in 8 question. This would normally be provided in 9 previous cases and would include Fujitsu 10 extracting log files from the system to enable 11 us to provide details of transactions. 12 Surprisingly, this has not been requested in 13 this case. Perhaps you will consider the need 14 for this." 15 At this point in time, you're not a copy-ee 16 of this chain at the moment, did you understand 17 the problem with asking a person with expertise, 18 Mr Jenkins, to comment on what the defence 19 expert was saying, without having requested 20 transaction data for this branch? 21 A. No, I didn't realise that was -- or fully 22 realise that that was a problem. I thought he'd 23 be able to deal, at least in part, with 24 answering the questions, particularly to deal 25 with the questions that were based on 106 1 a misunderstanding. 2 Q. Can we go, please, to POL00029369. Can we look, 3 please, at page 2, and scroll down. This is the 4 first time the statement emerges at 2.53, 5 an email to you and Mr Longman: 6 "Dear Jon and Warwick 7 "Herewith statement from Gareth Jenkins. 8 Just all of the press. Please let me have your 9 comments and whether this adequate for our 10 purpose or does it require additions before 11 being served on the defence." 12 So Jarnail is asking the Investigator and 13 you, as prosecution counsel, whether the 14 statement is adequate and for your comments. 15 Then if we go to page 1, please. At the foot of 16 the page, we see Mr Longman's reply. 17 "Jarnail 18 "Points 2-4 have not been answered", and he 19 reproduces them below: 20 "My barrister telephoned me yesterday 21 evening and requested that I find out any 22 information that Fujitsu may hold in relation to 23 Callendar Square", et cetera. 24 Do you remember that? 25 "3) When Gareth completes his statement 107 1 could he also mention whether there are any 2 known problems with the Horizon system that 3 Fujitsu are aware of." 4 So that's the watered down, if I can call it 5 that, requirement emanating from paragraph 7 of 6 your advice? 7 A. Yes. 8 Q. Then over the page, please. 9 "If none could this be clarified ... 10 "4) Could Gareth read the statement from 11 Eleanor Nixon", et cetera. 12 So Mr Longman is saying points 2 to 4 have 13 just not been addressed by Mr Jenkins, yes? 14 A. Yes. 15 Q. Go back to page 1, please. You reply the 16 following morning at 7.07, can you see that? 17 A. Yes. 18 Q. You only reply to Mr Singh, taking Mr Longman 19 out of the copy list, and you say: 20 "[Mr Longman] sets out in his email ... the 21 extra matters that I asked Mr Jenkins to look 22 at. In relation to the Eleanor Nixon statement 23 Mr Jenkins should also be made aware of the 24 information we recently received [et cetera]. 25 "The areas where Mr Jenkins says 'for [Post 108 1 Office] to respond' should be deleted from the 2 statement. These areas will only lead to 3 a flood of further disclosure requests and I am 4 afraid that [the Post Office] will never 5 respond." 6 Why were you suggesting that where 7 Mr Jenkins was saying, "This is not something 8 where I can respond to, it's a matter for Post 9 Office to respond to" should be deleted? 10 A. Well, it didn't seem to me to be part of his 11 witness statement but I think I was simply 12 frustrated at the various delays there had been 13 that were causing so much problems with the 14 chronology of the case trying to get it towards 15 a trial. 16 Q. Wasn't that important information, or relevant 17 information, that the expert felt -- or the 18 person with expertise felt unable to answer 19 a question and said, "This is for the Post 20 Office to reply"? 21 A. Well, yes, but the enquiry that already been 22 made, and the -- I'd have to look at the 23 document because I can't remember exactly what 24 the enquiries were but I'm afraid it all comes 25 out of a generally very frustrating situation, 109 1 where there are an enormous amount of disclosure 2 requests that it's proving very difficult to 3 respond to. And I was just trying to limit 4 them, because it was out of control and efforts 5 that I had made to try to put it under control 6 had failed. 7 Q. Why did you think the Post Office would never 8 respond? 9 A. Well, I think that's -- those are heated words 10 that perhaps aren't fully thought through but 11 I was frustrated that it was taking so long and 12 frustrated that I was being told that, 13 essentially, the Investigation Team was going to 14 be clogged up completely for an indefinite 15 period while requests -- efforts were made to 16 respond to requests. 17 At the same time, I have a court -- judges 18 at Guildford Crown Court making very strict 19 requirements for progress to be made and it's 20 a very frustrating situation generally and I'm 21 expressing the frustration, I suppose. 22 Q. Does it follow from that that, although you 23 advised that the sections of the witness 24 statement, where Mr Jenkins had said, "Post 25 Office should respond", should be deleted, you 110 1 didn't give any advice to the Post Office that 2 it should meet its disclosure obligations in 3 relation to them? 4 A. No, I should have done that and it's -- I was 5 finding this all very stressful and that's 6 a symptom of it and it's my fault, but this was 7 difficult. 8 MR BEER: Sir, that's a convenient moment to break, 9 bearing in mind that we took an early break and 10 it was short and we haven't taken a second 11 break, and I've done that deliberately in order 12 that we can get through all of the business that 13 we need to today. I wonder whether you might 14 break until maybe 1.35? 15 SIR WYN WILLIAMS: Yes. By all means. 16 So I'll see you all at 1.35? 17 MR BEER: Thank you very much, sir. 18 (12.42 pm) 19 (The Short Adjournment) 20 (1.35 pm) 21 MR BEER: Good afternoon, sir, can you see and hear 22 me? 23 SIR WYN WILLIAMS: Yes, I can, thank you. 24 MR BEER: Good afternoon, Mr Tatford. Can we pick 25 up where we left off in the late afternoon of 111 1 5 February 2010, by looking at FUJ00122735. 2 If we scroll to the bottom half of the page. 3 We'll see that on 5 February 2010 at 4.47 4 Mr Jenkins emailed David Jones -- remember, 5 a lawyer in Fujitsu -- and Penny Thomas, also at 6 Fujitsu, saying: 7 "David, 8 "I've provided in line comments to the 9 document as revisions." 10 This was the third supplemental report of 11 Professor McLachlan and -- I don't want to turn 12 the document up at the moment but, essentially, 13 he had gone through Professor McLachlan's report 14 and had added this comments to it: 15 "I'm happy for this to be passed to [the 16 Post Office] if you feel it is appropriate." 17 Then Mr Jenkins said: 18 "The simple answer is that without 19 retrieving the logs everybody is speculating and 20 as discussed this morning nobody has bothered to 21 ask us for any logs. At this stage it is not at 22 all clear what transactions are thought to be 23 missing at what time or even in what time 24 period. Analysing logs over a long period (and 25 I think this is over two or three months) is 112 1 very, very time consuming. This is NOT going to 2 happen by Monday. 3 "Does anybody have a copy of Andy's witness 4 statement?" 5 Then if we scroll up, please. We can see 6 that Mr Jones forwards that to Jarnail Singh, 7 copying in Gareth Jenkins and Penny Thomas. So 8 this is Mr Jenkins saying, is this right, that 9 in order to respond to Professor McLachlan's 10 report, the Post Office needed to obtain 11 underlying data the transaction data? 12 A. Yes, sorry, yes. 13 Q. By this time, that's February 2010, had you been 14 aware, for a very considerable time, that the 15 defence wanted exactly the same data? The 16 transaction logs, as they're called, and that 17 such logs had not been obtained? 18 A. Yes. Well, there was an ongoing dispute about 19 what period of logs was necessary. I appreciate 20 with hindsight the Post Office was in the wrong 21 but that was a number of many disclosure 22 requests and I do think that the full context 23 needs to be looked at. If anybody thinks this 24 was easy to deal with, they are deluding 25 themselves. This was very difficult and we were 113 1 all trying our best, I thought. Obviously it 2 didn't work but we were trying our best. 3 Q. Let's just look at the defence requests for 4 exactly the same things as Gareth Jenkins was 5 saying are important and that, without 6 retrieving the logs, everyone is speculating. 7 Can we look, please, at POL00052202. Can we 8 look at page 3, please, starting with an email, 9 the year before, 14 July 2009, between Jon 10 Longman and the fraud team: 11 "Can you please assist with the following 12 three points ... 13 "2. The defence will be calling their own 14 expert to analyse the Horizon data as the 15 defendant is now claiming that some of the loss 16 in the case is caused by errors within Horizon. 17 Therefore, I will need transaction log data 18 covering the period 30 June 2005 to 14 January 19 2008 together with a covering witness 20 statement." 21 Then page 2, please, scroll down. A reply 22 from Mr Posnett: 23 "Due to the size of the ARQ request I cannot 24 authorise Fujitsu to proceed at this stage ... 25 We have an annual allowance of 670 ARQs ... we 114 1 can only 60 ARQs per month ... this Defence 2 request could be detrimental to other 3 Prosecution requests. 4 "We have a contract with Fujitsu to 5 [require] ARQs for our prosecution cases, and we 6 pay for these ... 7 "For 'lumpy' Defence requests, we can obtain 8 a quote from Fujitsu ... 9 "Aside from the costs and our quota, another 10 reason for this approach is because many cases 11 plead guilty at the eleventh hour and/or nothing 12 is found by 'experts' to challenge the Fujitsu 13 data -- the usual attempts at muddying the 14 waters. 15 "Can you consider and seek views/input from 16 our Criminal Lawyer in the case. Happy to 17 discuss ..." 18 Then page 1, please. Email, Mr Longman to 19 Jarnail Singh: 20 "At the hearing ... the Defence indicated 21 they would be seeking the services of a forensic 22 accountant to analyse the Horizon data ... 23 I have tried to order the data from the time 24 Ms Misra was subpostmaster (3 years) but as you 25 can see ... there are a number of issues. 115 1 "Please could you advise counsel of these 2 issues and inform me as to what action to take 3 ..." 4 Do you recall being involve in this? 5 A. Yes, I do. But I don't think via email but, 6 obviously, I was speaking with Jarnail Singh on 7 the phone, so I may have been speaking on the 8 phone around this time. I don't have a specific 9 recollection but I was aware of the ongoing 10 issue, and I was trying to see if it might be 11 possible to have a less wide span. 12 I appreciate now that's obviously wrong but 13 that's what we were trying to do -- the way of 14 dealing with the competing demands that are 15 obvious in these emails. 16 Q. Do you now have a recollection of being asked to 17 being asked to advise on this issue? 18 A. I don't think -- I can't remember a specific 19 request. There was an ongoing conversation and, 20 in my earlier Advice, I tried to set -- forgive 21 me, I'm getting the time period wrong now. 22 Q. So we've gone back to 2009. 23 A. We've gone right backwards. Oh, sorry, I think 24 there was an ongoing discussion but we've gone 25 backwards so -- this will lead up eventually to 116 1 what we come up with or what the Post Office 2 decided to produce. 3 Q. What I'm looking at is Mr Jenkins in February 4 2010 saying, "I can't assist you unless you get 5 the underlying data". 6 A. Yes. 7 Q. I'm going back to the summer before saying the 8 defence are asking for the underlying data and 9 trying to work out what happened with that 10 request. At the moment, the Investigator, 11 Mr Longman, has asked Mr Posnett. Mr Posnett 12 said, "We've got a contract; it would exceed our 13 requirements, essentially, under the contract; 14 it will be expensive". That's forwarded to 15 Jarnail Singh by Mr Longman and he says, "Could 16 you advise counsel of these issues and inform me 17 as to what action to take". 18 I'm asking: at there is time, in summer 19 2009, did you provide advice on the approach to 20 take to disclosure of the underlying data? 21 A. I don't know. I may have provided advice over 22 the phone but I simply I can't remember, it is 23 quite a long time ago. 24 Q. Yes. 25 A. Obviously didn't provide anything in writing, so 117 1 there may be nothing, I don't know. 2 Q. Can we a look, please, at FUJ00154851, and look 3 at page 4, please. This is a letter dated 4 14 August 2009. If we scroll down to the next 5 page we can see who wrote it: Phil Taylor. Back 6 up, please. We can see it's to the then defence 7 solicitors -- if we scroll up a little bit, 8 thank you -- the Castle Partnership: 9 "I understand from Prosecuting Counsel that 10 on the last occasion Defence Counsel asked for 11 Horizon data for the period during which your 12 Client was subpostmistress at West Byfleet sub 13 post office." 14 Is that right: that defence counsel asked 15 you for disclosure of Horizon data for the 16 entire period when Mrs Misra was 17 subpostmistress? 18 A. Well, that was certainly an ongoing request. 19 I can't remember when -- a request at court, I'm 20 not going to remember at this time (unclear). 21 Q. No, understood: 22 "As you may be aware the Horizon system is 23 a product of Fujitsu Limited and the Post Office 24 has purchased this system from Fujitsu in the 25 same way that any other company would purchase 118 1 goods or services for its business. Other than 2 that Fujitsu is not in any way an associated 3 company of the Post Office. 4 "The request has been put to Fujitsu and 5 a reply has been received by the person who 6 liaises with this company. 7 "The data will take 6-8 weeks to produce ... 8 your Client made 107 calls to the Horizon 9 Helpdesk during her period of tenure which 10 equates to roughly 2-3 calls per month. In 11 order to provide the data Fujitsu will wish to 12 know exactly what is required and for exactly 13 what period. Please could you also advise as to 14 why you consider the data relevant. You ... 15 already [know] from the NAE from Andrew Dunks 16 ... dealing with the calls to the Helpdesk. 17 "The retrieval of data by Fujitsu is not 18 a free service. It is very expensive and 19 depends upon the amount of data which has to be 20 retrieved which is why you requested to be very 21 precise. At that stage a firm quotation can be 22 obtained and Counsel will be asked to give 23 further advice as to disclosure and payment for 24 this service. The Post Office will not 25 underwrite the cost if Counsel considers the 119 1 data irrelevant. You will of course be aware 2 that the same system operates throughout the 3 country and was not particular to your Client's 4 sub post office. 5 "I have set out the matter above quite 6 clearly because in the past many thousands of 7 pounds have been spent on obtaining this type of 8 data subsequent to which a late plea of Guilty 9 is tendered which means that the exercise has 10 been a complete waste of time and money." 11 So that, essentially, reflects the Posnett 12 answer, doesn't it? 13 A. Yes. No, it does. 14 Q. If we go to page 3, we can see that Mr Taylor, 15 on the same day, 14 August, sends a copy of the 16 letter to Post Office Security, cc'd Jon Longman 17 and says: 18 "Here is a letter which I have written to 19 the Defence and copied to Counsel for your 20 information." 21 I can't see any evidence, on the face of it, 22 that it was copied to you. But can we deal with 23 it this way -- 24 A. Oh, certainly, if I see the letter, I'm happy to 25 deal with it. It may well have been sent to me. 120 1 There's no reason for saying, "copied to 2 counsel" unless it's been done. 3 Q. Did what is set out in the letter reflect any 4 advice that you had given to the Post Office as 5 to the correct approach to obtaining what we now 6 know to be ARQ data? 7 A. I can't remember now. I was simply aware of the 8 ongoing dispute and trying -- on the prosecution 9 side, trying to see if a shorter period would be 10 possible, and not -- and essentially having the 11 answer no or not having a response. That's the 12 impasse, as it were. 13 Q. Can we deal with it in this way: had the impasse 14 lasted until at least February 2010, when 15 Mr Jenkins himself was asking for this data in 16 order to be able to advise? 17 A. Yes, but then it -- with the abuse argument, 18 just before then, the Post Office, off its own 19 bat, decided to disclose a significant span of 20 data after having no alternative suggestions 21 from the defence. I appreciate, with hindsight, 22 that's the wrong approach. But one can see the 23 pressures, cost and time, and so forth. 24 Q. Can we go forwards, please, to FUJ00152966. 25 Thank you. 121 1 If we go to page 2, please, and scroll down. 2 Thank you. 3 A little later in the afternoon, Gareth 4 Jenkins emailing David Jones and Penny Thomas: 5 "Brief responses as follows, but not sure 6 that I should put them in a Witness Statement 7 ..." 8 3 -- as you remember 3 was originated in 9 paragraph 7 of your Advice: Fujitsu tell us 10 about any issues or problems acknowledged with 11 Horizon -- I'm summarising. 12 Mr Jenkins says: 13 "This is where I'm reluctant to make a clear 14 statement. I am aware of one problem where 15 transactions have been lost in particular 16 circumstances due to locking issues. When this 17 happens we have events in the eventing logs to 18 indicate that there was an issue and whenever we 19 provide transaction logs to [the Post Office] we 20 check for any such events. In the case of West 21 Byfleet we have not provided any transaction 22 logs and so have not made these checks." 23 Did you ever get to see this, that 24 Mr Jenkins was reluctant to make a clear 25 statement over whether there were any problems 122 1 with Horizon? 2 A. No. I say no simply because, if I'd seen this, 3 I would have realised that there was a problem 4 with dealing with paragraph 7 of my advice. I'd 5 have gone back to that and tried to sort it out 6 and I would have started asking more questions. 7 Perhaps I should have been pressing it anyway 8 but I'm troubled, reading this. Well, this is 9 bound to make me ask questions and I don't 10 remember seeing this. 11 Q. There's two problems with this paragraph that 12 arise, aren't there? First is the refusal of 13 the person with expertise being reluctant to 14 make a clear statement about whether there are 15 problems with Horizon; and, secondly, in any 16 event, saying that he's aware of a problem where 17 transactions have been lost, and we can't tell 18 at the moment whether this afflicted West 19 Byfleet because we haven't got the data and, 20 therefore, we haven't made the checks. 21 A. Yes, and it's unclear to me what this problem 22 is. It seems to be a different problem of which 23 I've not been made aware. 24 Q. Can we go to POL00167159. Thank you. Just 25 dealing with it from the top, we can see that 123 1 it's sent by Mr Singh, I think that's his PA or 2 assistant, Marilyn Benjamin, to you on 3 8 February -- we were looking at an email chain 4 of 5 February: 5 "Warwick and John, 6 "For your information and comments." 7 Then if we scroll down: 8 "Jarnail 9 "This is an email I received earlier from 10 Gareth. You will see that he is clear that in 11 order to answer Counsel's question about any 12 issues he needs to be able to check the 13 underlying transaction logs to be able to say 14 whether there were any issues. On the specific 15 issues you raise Gareth's view is: 16 "2. He needs information and time to 17 research the background to this before providing 18 any response ..." 19 Then 3, cutting in what has been said: 20 "He is not currently in a position to make 21 a clear statement. It is possible for there to 22 be problems where transactions have been 'lost' 23 ... due to locking issues", et cetera. 24 So it does look, Mr Tatford, does it not -- 25 A. No, I agree. 124 1 Q. -- as if this has been forwarded to you? 2 A. Well, I have to accept that. I don't remember 3 seeing this but it's obviously something I've 4 missed. If I'd -- it's my fault. I'm sorry, 5 I didn't remember seeing this. It would have 6 made me ask questions. 7 Q. So do you agree that you were on notice from 8 your solicitors that Mr Jenkins had explained 9 that there could be locking errors in Horizon 10 which would cause transactions to be lost? 11 A. Well, yes, clearly. I've obviously missed this 12 and haven't taken it on board. 13 Q. Would you agree that this chain was forwarded to 14 you in direct response to Mr Longman's 15 translation of paragraph 7 of your Advice? 16 A. Yes, I think it was. 17 Q. I think it follows, from you not remembering 18 having received this, you can't help us as to 19 what your response was to learning that the man 20 with expertise, Mr Jenkins, felt unable 21 currently to make a clear statement as to 22 whether or not there were problems or issues 23 with Horizon? 24 A. Yes. 25 Q. You can't help us with what your response was to 125 1 knowledge that there was a problem with Horizon, 2 according to the man with expertise, of lost 3 transactions? 4 A. Well, no, I can't remember this, so I don't know 5 if it appears later on. It's obviously 6 something I've missed. I haven't remembered 7 this at all or don't remember seeing this at 8 all, and if I had seen it and thought it 9 through, I would have taken action. 10 Q. I think it follows that, if you had realised the 11 significance of what was being said to you in 12 this paragraph here, you would realise the need 13 to advise the Post Office to take steps to meet 14 its disclosure obligations in relation to this 15 issue? 16 A. Yes. 17 Q. For example, what was the nature of the issue, 18 what was the scope of the issue, what was its 19 severity and how that information ought to be 20 provided to the defence? 21 A. No, absolutely. 22 Q. Overall, would you agree that this chain shows 23 that Mr Jenkins did say, at this point in time, 24 he was unable to make a clear statement about 25 Horizon not having problems? 126 1 A. Well, yes. I suspect -- I mean, if I was 2 reading this document, if I hadn't quite 3 cross-referred it with other documents, that may 4 have been the error but it's obviously something 5 I've missed and this is important, and I've 6 missed it. I'm sorry about that. 7 Q. Can we turn, please, to FUJ00122808. We're 8 moving forwards, if we look at the time at the 9 top of that email, to 2.33 on 8 February. 10 Mr Jenkins sends through to Jarnail Singh, 11 copying Penny Thomas and David Jones: 12 "... a new Witness Statement saying what 13 I don't know about Falkirk and also comments on 14 the 3rd report. 15 "I doubt they are of much use without 16 getting the various detailed logs." 17 Can we look at the attached statement, 18 please, at POL00001569. This is the attachment 19 to that email, Mr Jenkins' witness statement, 20 then dated 8 February 2000. In the second 21 paragraph, he says: 22 "I have been asked if issues found at 23 Callendar Square Post Office in Falkirk could 24 have caused the discrepancies in the case of 25 SEEMA MISRA. At this stage, I am not aware of 127 1 the details of the problems in Callendar Square 2 Post Office in Falkirk. However I expect to be 3 able to find out the details of that case and 4 also to compare the failing scenarios with the 5 detailed logs that are to be extracted for the 6 SEEMA MISRA case and should then be able to make 7 it clear if the scenario is relevant." 8 Then the rest of the statement consists of 9 a number of other references to the fact that 10 the Post Office hadn't made any requests to 11 Fujitsu for any data relating to West Byfleet 12 that would enable Mr Jenkins to respond to 13 Professor McLachlan's report. Okay? 14 A. Yes. 15 Q. Can we go to POL00054056. This is an email to 16 you from Jarnail Singh: 17 "For your information I attach two 18 statements by Gareth Jenkins which [were] served 19 on the Defence Solicitors today by email." 20 The second of those is the 8 February 21 statement that we've just looked at. So, at 22 this stage, Mr Jenkins was still saying, and 23 indeed saying in witness statements being served 24 on the defence, "I can't respond to the expert 25 because I haven't got the data"? 128 1 A. Yes. 2 Q. By this stage, a month or so before the 3 anticipated March 2010 trial, do you agree that 4 you had not advised the Post Office that 5 Mr Jenkins ought to be treated as an expert 6 witness? 7 A. Yes, I agree. I don't think I ever advised that 8 he be an expert witness. I was -- I don't 9 remember how -- it was essentially presented to 10 me but I don't remember how that came about. It 11 wasn't as a product of my advice but, as 12 I concede, that was down to muddled thinking, 13 for which I have to take overall responsibility. 14 Q. Would you agree that by this stage, February 15 2010, the Post Office had not sought to instruct 16 Mr Jenkins as an expert witness -- 17 A. That seems to be right, yes. 18 Q. -- and that none of the statements that 19 Mr Jenkins had provided incorporated in any way 20 the necessary inclusions for a statement to 21 amount to expert evidence? 22 A. Yes, I agree, yes. 23 Q. Can we move forwards, please, to POL00093946. 24 This is a skeleton argument settled by Keith 25 Hadrill on 24 February 2010, in support of his 129 1 client's application for a stay of the 2 proceedings as an abuse of process. Can we just 3 look at paragraph 2, please, about five lines 4 in, four lines in, it says: 5 "Trial on Count 1 was fixed to take place on 6 30 May 2009 [as we know] but was stood out on 7 the day on the defence application for enquiries 8 to be made as to the integrity of the Post 9 Office Horizon computing system, which is 10 central to the Prosecution case." 11 I just want to see what was being argued by 12 the defence, by looking at page 3, please. The 13 bottom half of the page, under "Trial history", 14 paragraph 4 repeats what we've just read. 15 Paragraph 5: listed for PTR and directions on 16 14 July, directions are given which included the 17 service of experts' reports. 18 Do you recall that, that at a PTR there was 19 a direction made for the service of expert 20 reports, plural? 21 A. Yes, no, I think there's an attendance note to 22 for that but I can't recall the date of the 23 hearing. I think it was before His Honour Judge 24 Critchlow, I think. 25 Q. The resident judge? 130 1 A. Yes. 2 Q. Can you recall how you reacted to an order which 3 directed the service of expert reports by 4 a timetable and yet the prosecution was not 5 relying on an expert? 6 A. Well, the trouble -- well, I reacted with 7 dismay, I suppose, but the trouble was that we 8 were given very strict directions by the courts 9 and yet it didn't seem to fit with what we were 10 going to be able to do in time. It's a product 11 of muddled thinking but the disclosure requests 12 are very wide. 13 We -- you've been very properly focusing on 14 the logs, which is the key, I accept. But they 15 were much wider than that and I suppose, to 16 an extent, I've -- well, directions are made for 17 a timetable because the court wants to try to 18 make progress in the case. I probably should 19 have said on that day, "We're not going to be 20 able to deal with this", but I was doing my best 21 to try to keep things going. 22 Q. In paragraph 6: 23 "The Prosecution, by a letter dated 24 14 August 2009 ... said it would instruct 25 Fujitsu, the supplier and operator of the 131 1 Horizon system, to assist as experts. In that 2 letter the prosecution stated that the request 3 for data had been submitted to Fujitsu and 4 acknowledged." 5 Then over to page 5, please: 6 "This is in total contradiction to the 7 statement received by Gareth Jenkins of Fujitsu 8 who states that no requests have been made for 9 any data relating to the West Byfleet branch." 10 I think that was accurate. We can skip over 11 paragraphs 7, 8, 9 and 10 on this page and go on 12 to page 7, please, paragraph 12: 13 "The Prosecution had failed, until 01/02/10 14 to instruct an expert. At the Court hearing on 15 01/02/10 the Prosecution stated it had 16 identified their expert, Gareth Jenkins from 17 Fujitsu, but not yet instructed him. The Court 18 confirmed that the Prosecution expert should 19 report by 08/02/10." 20 A. That's seven days. One can see the pressure 21 that's being looked on us by the court. 22 Actually, looking at it now, it's completely 23 unrealistic but I was trying my best and the 24 prosecution as a whole was trying its best to 25 keep the trial going and trying to keep to the 132 1 trial date. But that's -- looking at that, one 2 only has to read it to see how unrealistic it 3 is. 4 Q. Would you maintain that position, even if there 5 had been a direction of July the previous year 6 requiring the service of experts' reports. This 7 wasn't the first time the court -- 8 A. No, I appreciate that. I appreciate these are 9 legitimate criticisms and there has been a lot 10 of muddled thinking and that's why we ended up 11 having an abuse of process argument and we 12 missed the trial date it. I accept all that. 13 Q. In paragraph 13, Mr Hadrill says: 14 "A short statement, dated 8 February [that's 15 the one we've just looked at], was served from 16 Mr Jenkins ... In that report Mr Jenkins could 17 generally not assist because: 18 "(a) he had not been given sufficient 19 material and documentation by the prosecution 20 ... 21 "(b) he had only just been instructed to 22 assist and would need time ... 23 "(c) some of the questions raised by 24 Professor McLachlan he did not understand ... 25 "(d) some of the information requested from 133 1 Fujitsu should, in fact, come from the Post 2 Office." 3 Then he says this: 4 "It is apparent that the Prosecution has 5 given no clear instructions to its own expert, 6 or provided him with adequate material to assist 7 the Court." 8 On reflection, would you agree that that's 9 a fair criticism? 10 A. Yes, and I think I agreed that they were fair 11 criticisms in the abuse argument. My essential 12 argument was to say we have to move on and we've 13 found a way to solve these problems. 14 Q. Was -- cutting through it -- the essential 15 approach taken, that one sees quite often, that 16 these are all issues that can come out in the 17 wash to ensure that a fair trial is achieved? 18 A. No, I think that's unfair. It's not coming out 19 in the wash. A fair trial can be achieved 20 within a reasonable amount of time because what 21 happened after the abuse of process argument was 22 the experts did cooperate. They cooperated very 23 fully, provided in due course a statement of 24 their agreements and disagreements, and then 25 gave evidence back to back, lasting two days, so 134 1 that the jury, I thought at the time, were given 2 a very full understanding. 3 The correspondence in this case was very 4 demanding indeed and, essentially, in some of 5 the disclosure requests we were being asked to 6 look at every single post office for all 7 manner -- some of the disclosure requests were 8 so wide we had to give disclosure of every time 9 there's been an investigation at a Post Office. 10 There was no focus, and that's what I was 11 doing my best to try to get a focus. I was 12 trying to get the focus back to West Byfleet, 13 which, in fact, Gareth Jenkins is trying to do 14 by saying "We need the logs". 15 It was a difficult mess and I found it 16 a mess and I found it very difficult and, if 17 that's my weakness and my inability to cut 18 through all these things, I take full 19 responsibility for it. 20 Q. Can we move on, please, to FUJ00152996. So 21 we're now in late February. An email from 22 Mr Jenkins within Fujitsu and he's referring to 23 a conversation with you. You're not copied into 24 this email but I want to ask you about what he 25 says that you said. 135 1 "Following the email exchange below I've now 2 had another call from [the Post Office's] 3 Prosecution Barrister (Warwick Tatford) asking 4 me to do some analysis of the various logs 5 associated with this case. 6 "He is going to arrange for me to be sent 7 details of what has been alleged and also what 8 has been admitted so that I can identify some 9 part of the logs to look through and discuss 10 with the expert. 11 "Even if we limit the scope this sounds like 12 a very time consuming task. I'm not sure 13 I really want to be doing that and need some 14 guidance as to the priority of this compared 15 with everything else. 16 "Apparently the defence are saying it is too 17 hard to get detailed in for and therefore there 18 can't possibly be a fair trial and [Post Office] 19 are clearly keen to counter that argument. 20 Trial date is in two weeks time so this is 21 likely to be urgent! 22 "What do I do and who can sort out with the 23 Post Office exactly what we should and shouldn't 24 be doing to support this?" 25 So, by this time, you had got Mr Jenkins' 136 1 phone number, either mobile or his desk. Again, 2 this form of instruction, an oral instruction 3 from prosecution counsel to prosecution, 4 putative expert witness, was it normal for you 5 in Post Office cases to work in this way? 6 A. No, because I'd never been involved in anything 7 like this before. I'd never been involved, 8 although I'd been involved in the case of Page, 9 there was no expert in that case on the 10 prosecution side. This was an entirely new 11 situation for me and I was finding it very 12 difficult, and just trying to find a way through 13 to make -- to have a practical way forward. 14 Q. So does it amount to this: that the defence had 15 identified that the Post Office had failed to 16 provide Mr Jenkins with any material, and then 17 Mr Jenkins is now speaking with you about what 18 should happen? 19 A. Well, as a way to try to make progress, because 20 at the moment, Mr Jenkins had no idea what to 21 look for. So we were discussing ways of looking 22 at the logs to see if problems could be 23 identified. It was a way of thinking it 24 through. 25 Q. Would you agree that this doesn't amount to any 137 1 sort of proper expert instruction? 2 A. No, I do agree with that but I also suggest that 3 this isn't a case where the -- the disclosure 4 requests were very wide and going beyond the 5 ordinary case where one would have one expert on 6 each side. There'd been a lack of focus, and it 7 caused confusion and I was obviously a victim of 8 the confusion as well, and I -- well, I've 9 obviously made a lot of mistakes. I acknowledge 10 that. 11 Q. Can we move forward, please, to POL00054213. So 12 within a couple of hours of the email that we 13 were just looking at, at just after 4.00 on the 14 same day, Mr Jenkins is emailed by Mr Singh, 15 saying: 16 "As per discussions I now enclose: 17 "Copy Case Summary 18 "Copy Indictment 19 "Copy Defence Statement 20 "Copy of the interview 21 "Copy Defence Expert's name is Charles 22 McLachlan ... 23 "... important that we are proactive on this 24 and that you contact him as soon as possible 25 with a view to concluding this", and then some 138 1 words of thanks. 2 Is this the closest we get to a formal 3 instruction by the Post Office of Mr Jenkins. 4 A. Yes, I think it probably is. It's certainly the 5 only -- yes, I suppose it must be. It's the 6 only printed form of instruction that I've seen. 7 Q. But, in reality, it doesn't amount to a proper 8 instruction of Mr Jenkins as an expert witness? 9 A. Yes. 10 Q. In particular, on the question of a joint 11 meeting with Professor McLachlan, it doesn't 12 provide any sort of instruction as to how 13 Mr Jenkins was supposed to undertake such 14 a joint expert meeting? 15 A. No. I don't know what other -- I don't -- 16 there's no evidence, from what I can see, of any 17 other communications between Jarnail Singh and 18 Mr Jenkins, so it appears from this that he's 19 not been given all the information he needs; 20 he's not been given the assistance he needs. 21 Q. Can we go forwards, please, a couple of days 22 later, POL00054267. 1 March, Jarnail Singh to 23 Gareth Jenkins: 24 "I now enclose Defence Expert's 4th and 5th 25 reports after his conversation with you of 139 1 12 February. As you are our Horizon Expert you 2 need to telephone Charles McLachlan, his mobile 3 telephone number is ... to arrange a meeting 4 where you can discuss all his reports and his 5 concerns about the Horizon so you can deal with 6 it and rebut it which you have done in your long 7 telephone conversation about his various 8 hypothesis and then write a detailed report 9 which would go some way of progressing and 10 concluding this matter and importantly 11 preserving the Horizon system." 12 "Importantly preserving the Horizon system", 13 was that a feature of the instructions that you 14 received, that the evidence in the case should 15 have as its aim the preservation of the 16 integrity of the Horizon system? 17 A. No, not that I received no. I can see what it 18 says here and, clearly, this is not 19 an open-minded enough set of instructions. 20 There's much more to it than preserving -- it's 21 about ensuring that Mrs Misra has a fail trial. 22 I wasn't under any pressure from what I feel -- 23 from what I remember, that I was essentially 24 being told to arrange things so that we 25 preserved the Horizon system. I didn't feel 140 1 that that was pressure being put on me. 2 Obviously, these words show thinking that's not 3 conducive to a fair analysis. 4 Q. Anyway, this may be the second of the two emails 5 that we're looking at, that comes closest to 6 an instruction of Mr Jenkins. Mr Singh 7 continues: 8 "Maybe the simplest and practical way of 9 dealing with this whole question is to find the 10 shortest span of logs, analyse it, disprove or 11 rebut what the Defence Expert is saying in his 12 reports." 13 Do you agree that's an inappropriate 14 instruction to -- 15 A. Yes, that's completely wrong. 16 Q. Then I think the closest that we ever come to 17 a reminder of an expert's duties: 18 "Just a reminder you are an Expert for 19 Fujitsu. You'll be giving evidence in Court. 20 The judge and jury will be listening to you very 21 carefully and a lot will hang on the evidence." 22 A. No, it's -- 23 Q. Risible? 24 A. Well, disastrous, I was going to say. I'm 25 sorry, this shouldn't have happened, and -- this 141 1 isn't what I intended to happen, but I -- that's 2 not an excuse because, as far as I'm concerned, 3 I was prosecution counsel in the case, I have 4 responsibility for the case as a whole, and this 5 is -- I have obviously failed to ensure that 6 there's an atmosphere where an expert can be 7 properly instructed, and wrong decisions are 8 being taken, and I understand the evidence about 9 Post Office not being aware of its duties in 10 relation to expert evidence, and this is the 11 natural result. 12 I wasn't -- I don't think I was aware of 13 this sort of instruction. I like to think if 14 I'd seen it, I would have done my very best to 15 resolve this and put an end to this but it's 16 very troubling reading. 17 Q. Can we move forwards to two days later, 3 March, 18 FUJ00153027. If we scroll down, we can see, to 19 start with, an email from Jarnail Singh or on 20 behalf of Jarnail Singh to Penny Thomas. Yes? 21 A. Yes. 22 Q. If we just look at the top of the email chain we 23 can see Penny Thomas sending it on to Gareth 24 Jenkins, yes? 25 A. Yes. 142 1 Q. I appreciate in these emails that I'm showing 2 you more recently, you're not a copy-ee and so 3 far, as I can see, you weren't sent these. This 4 is all going on beneath the surface. So if we 5 just scroll down to see what Jarnail Singh said 6 to Penny Thomas, which got forwarded to Gareth 7 Jenkins: 8 "What has been requested ... is transaction 9 logs for best Byfleet (this is the whole of the 10 false accounting period to which Ms Misra has 11 pleaded to) from 1 December 2006 to 31 December 12 2007. This should then be given to Gareth 13 Jenkins at Fujitsu to confirm by his witness 14 statement whether there are any errors within 15 the Horizon system for the transaction log 16 period. 17 "Gareth Jenkins will need to study the 18 Defence expert's reports which he has in hand 19 and he had lengthy discussions with the Defence 20 expert Charles McLachlan ... There is a need for 21 an urgent meeting ..." 22 Next paragraph: 23 "It may be the practical approach for Gareth 24 Jenkins to find the shortest period span of 25 transaction log data", et cetera. 143 1 So the cutting and pasting into this email 2 that which we've seen before. So this amounts 3 perhaps to the third instruction to Mr Jenkins, 4 would you agree? 5 A. Yes. 6 Q. In that antepenultimate paragraph, three lines 7 in, it says: 8 "Mr Gareth Jenkins is an expert for Fujitsu. 9 He will give evidence in Court." 10 Then a passage about the jury and the judge 11 will be listening very carefully. 12 Do you agree that, insofar as it can be said 13 that this document constituted some form of 14 instruction, it was limited to the examination 15 of logs for a specific period to determine 16 whether there was evidence of a problem within 17 that period relating to West Byfleet? 18 A. Yes. 19 Q. That was, I think, consistent with what you 20 appear to have told Mr Jenkins to do in your 21 telephone conversation of the 26th; is that 22 right? 23 A. Yes. 24 Q. But the bigger task, paragraph 7 of your Advice 25 task, appears to have been lost by now, doesn't 144 1 it? 2 A. Yes. No, it's -- it does seem to have been 3 completely lost, and we go from an expert 4 I understood to be -- that I wanted to look at 5 the logs with an open mind, to be being given 6 the instructions we can see here that are so one 7 sided and unfair. I'm afraid it betrays 8 a complete lack of understanding of what 9 an expert is for and that's obviously very wrong 10 and, actually, very unhelpful to Mr Jenkins as 11 well. 12 Q. Can I ask to what extent were you involved in 13 the selection of the date parameters for the ARQ 14 data? 15 A. I don't think I was involved in -- well, 16 I approved the dates on the basis that it was 17 free of the thefts. I can't remember now if 18 I -- that's something I approved after the event 19 or whether I advised before. I'm afraid I can't 20 remember that. 21 Q. Can we see if we can get any help from the 22 skeleton argument that you lodged for the abuse 23 of process argument. That's POL00054346. If we 24 can look at page 5, we can see you signed this 25 off on 7 March. Can we look on page 2, please, 145 1 and paragraph 7 at the foot of the page. You 2 say: 3 "One of the main sticking points in the 4 disclosure process has been the cost of 5 obtaining Horizon data ... The Defence's request 6 has been for logs from 6 months prior to the 7 Defendant's tenure to the present day. [That] 8 is far too wide and the cost of obtaining that 9 data would frankly be astronomical (see 10 paragraph 8 for the cost ...). The Crown has 11 explained on numerous occasions how expensive it 12 is to obtain this material. The expense simply 13 results from Royal Mail's contractual 14 obligations to Fujitsu. We have asked the 15 Defence repeatedly to consider a narrow timespan 16 for their request or a narrow field of types of 17 transactions. The reason for this suggestion 18 was that the Defendant's false inflations 19 increased consistently over a long period of 20 time." 21 Then 8: 22 "The Defence has made no proposal as to 23 an appropriate span of data, even though it has 24 the potential advantage of the Defendant's 25 insider knowledge. This failure by the defence 146 1 has been rather frustrating but it may have been 2 in part because the defence put its request on 3 hold while it asked for justification of the 4 cost ... the Crown has chosen therefore, at 5 a cost of over £20,000, to obtain logs for the 6 period December 2006-December 2007. The chosen 7 time period covers the full extent of the 8 Defendant's admitted false accounting. It also 9 post-dates the time when the Defendant claims to 10 have put a stop to thefts by employees." 11 To what extent here were you rehearsing your 12 instructions, or were you rehearsing your own 13 advice, or repeating your own advice, as to the 14 date parameters. 15 A. I can't remember, that's the difficulty, because 16 it's not in the -- it's not in a written 17 document. So I can't remember. I can't 18 remember whether this was suggested to me and 19 I approved it or whether I suggested it. 20 I suspect it's the former, actually, from the 21 wording here, because -- but I can't remember, 22 I'm afraid. 23 Q. Okay, I understand. Can we move forwards, 24 please, to look at Mr Jenkins' witness statement 25 of 9 March. POL00001643. Can you see that this 147 1 is his witness statement of 9 March? 2 A. Yes. 3 Q. If we scroll down, please. He says that: 4 "Further to [the two statements that we've 5 seen earlier were served by Mr Singh] on 6 8 February ... I would like to add the 7 following: 8 "I have examined the 5th Interim Technical 9 report", and then he comments on it and that's 10 how the statement proceeds. 11 If we just go to the top, please. This is 12 in Criminal Justice Act form isn't it? It's 13 an MG11 -- 14 A. Yes. 15 Q. -- if it was a police case format. How is it, 16 if, by this time, Mr Jenkins was being treated 17 as an expert witness, that he was giving his 18 evidence, by way of a Criminal Justice Act, 19 a section 9 witness statement that doesn't 20 comply with either the common law or the 21 Criminal Procedure Rules for expert evidence? 22 A. That was -- I think, follows from my advice that 23 his responses to the expert, which were meant to 24 assist, rather than being a formal report -- 25 Q. These are served evidence in the case? 148 1 A. Well, they are served evidence and I suggested 2 putting in a witness statement. What I should 3 have done was to say "Oh, actually, the time has 4 clearly come where it needs to be set out more 5 clearly as an expert's report". But my advice 6 was given in order to speed matters along. It 7 clearly wasn't the right advice. 8 Q. Can we move forwards to July 2010, please, and 9 look at FUJ00153157, and can we look at the 10 second page, please, and scroll down? Thank 11 you. Can you see there an email of 22 July 2010 12 sent at 7.30 in the morning by the defence 13 solicitor Issy Hogg -- 14 A. Yes. 15 Q. -- to the prosecution solicitor Mr Singh, in the 16 case of Misra: 17 "Jarnail, 18 "As a result of the meeting that took place 19 between Charles McLachlan and Gareth Jenkins, as 20 directed by the judge, we now need to have: 21 "access to the system in the Midlands where 22 it appears there are live, reproducible errors. 23 "access to the operations at Chesterfield to 24 understand how reconciliation and transaction 25 corrections are dealt with. 149 1 "access to the system change requests, Known 2 Error Log and new release documentation to 3 understand what problems have had to be fixed." 4 So this is a defence shopping list or 5 request for disclosure, arising out of an expert 6 meeting. You'll see that it includes Known 7 Error Logs. Can we scroll up, please. Mr Singh 8 forwards that email to you and to the 9 Investigator, Mr Longman: 10 "I enclose a copy of an email received from 11 Issy Hogg ... content ... is self-explanatory. 12 Could you please be kind enough to let me have 13 your urgent instructions as to the access and 14 information she is requesting in respect of the 15 system in the Midlands, the operation at 16 Chesterfield and the error logs. [He'll] 17 contact Gareth to find out what happened at the 18 meeting with Charles ..." 19 I think it follows from this that the 20 evidence you gave earlier that you hadn't heard 21 of Known Error Logs must be in error after all 22 this time? 23 A. Well, yes precisely. I mean, it is a long time 24 ago. 25 Q. Just scrolling down, if you, at the time, had 150 1 seen an email such as this, would Known Error 2 Log have jumped out at you as having a special 3 significance, or would it be just one of another 4 species of material that -- 5 A. It should have leaped out at me because the very 6 words have that objective quality that I was 7 seeking and I suspect, in considering this, I've 8 been blinded by the first two requests, which 9 are less obviously important for the trial. 10 Q. So scrolling back up, then, we see that it was 11 sent to you five days later, on 27 July and then 12 scroll up again, please. Mr Longman sends it on 13 to Fujitsu through Penny Thomas: 14 "Could you ask Gareth to explain in more 15 detail how the three points raised by Issy Hogg 16 below came about." 17 Then scroll up. 18 We can see Penny Thomas's reply to 19 Mr Longman, and she says she's had 20 a conversation with Gareth, and his views on the 21 email string are as follows. This is 22 essentially an email cut into her email. I'm 23 going to skip 1 and 2, which is about access to 24 the system: 25 "3. System Change Requests: Basically, he 151 1 was asking to look at all system faults. 2 I suggested that as we kept all testing and Live 3 faults in the same system and that there were 4 around 200,000 of them, then this wasn't going 5 to get him far. He then suggested looking at 6 the system changes and would like to see all 7 changes that have happened to the system. 8 Again, I don't think this will help and I don't 9 know how practical it is for Fujitsu's Release 10 Management to provide that. I think all we can 11 do is ask the question." 12 Do you see what this overlooks is a response 13 by Mr Jenkins to-- when I say "overlooks", I put 14 that to -- does not include, putting it very 15 neutrally, any response to any request for Known 16 Error Logs? 17 A. Yes. 18 Q. Would you agree this is not really a response of 19 substance to the defence's disclosure requests, 20 is it? 21 A. Well, no, it's not properly thought through, 22 I agree. 23 Q. Can we go, please, to POL00055073. We can see 24 that that email of 3.39 on the 27th from Longman 25 to Singh was almost immediately eight minutes 152 1 later, sent on to you. Does it follow that you 2 didn't pick up that the defence were asking for 3 something of potential significance, Known Error 4 Logs, the type of material that you were looking 5 for, some objective recognition of fault? 6 A. Yes, I agree. Precisely. 7 Q. And that Mr Jenkins had not answered that 8 question? 9 A. Yes, I agree. 10 Q. Can you recall what your response was to what 11 was said, that there were some 200,000 system 12 faults in Horizon? 13 A. Could I just -- could it just be scrolled down 14 because I can't see it in front of mine -- 15 Q. It's at paragraph 3, the cut-in part of the 16 email. 17 A. Thank you. 18 Well, I haven't -- I obviously haven't 19 considered this properly because that's ... 20 Q. I can't see, Mr Tatford, any follow-on advice 21 from this. 22 A. I know. I think -- 23 Q. Telling the Post Office the steps that it needed 24 to take to ensure that it met its disclosure 25 obligations by reference to what is disclosed by 153 1 paragraph 3? 2 A. No, I agree. I haven't thought this through. 3 I think I've been distracted by the other 4 requests and haven't thought this through. I'm 5 sorry. 6 MR BEER: Sir, I wonder whether that would be 7 an appropriate moment to take a break -- 8 Sir, I wonder if that would be 9 an appropriate moment to take a break. We can't 10 hear you at the moment. I think you're saying 11 yes. 12 SIR WYN WILLIAMS: (The Chair nodded) 13 MR BEER: You are. Can we say again by non-verbal 14 communication, 2.55, please? 15 SIR WYN WILLIAMS: (The Chair nodded) 16 MR BEER: Thank you very much. 2.55. 17 (2.39 pm) 18 (A short break) 19 (2.55 pm) 20 MR BEER: Sir, good afternoon, can you see and hear 21 me? 22 SIR WYN WILLIAMS: I can, much to my relief. 23 I should explain that, just as you were asking 24 me to break, the battery in my mouse ran out and 25 so I couldn't unmute myself, but I managed to 154 1 cure that. 2 MR BEER: There's a number of quips I could make 3 there, sir, but I'll resist the temptation! 4 SIR WYN WILLIAMS: Yes, I'm, shall we say, nervous 5 about some aspects of not being with you, 6 Mr Beer. 7 MR BEER: Yes. 8 Mr Tatford, we were looking at the email 9 exchange of 27 July that was forwarded to you by 10 Mr Singh for your information and consideration. 11 Can we look at what happened when you got it, 12 ie the next day, 28 July 2010, by looking at 13 POL00055118. So this is the day after you were 14 forwarded the email exchange containing the 15 three Issy Hogg disclosure requests, two about 16 access to systems, the third about a variety of 17 things, including system change requests and 18 Known Error Logs, and Mr Jenkins' reply, 19 including the "There are 200,000 system faults". 20 The attendance note is: 21 "One telephone call received from Warwick 22 Tatford ... After discussion he confirmed that 23 they [I think that's the defence] are seeking 24 exactly what they were seeking before and to 25 respond to the Defence that if they wish 155 1 disclosure of these items they need to make 2 a Section 8 application to the Court and also 3 that our Expert Mr Jenkins has informed their 4 Expert that the material from Chesterfield that 5 is the Logs is not relevant information that 6 would assist them." 7 I suspect you no longer remember this 8 telephone conversation? 9 A. No. 10 Q. The gist of it is that what the defence was now 11 seeking, the Issy Hogg email request, was what 12 they were seeking before. That's, in fact, not 13 correct, is it? 14 A. Well, I think it's -- I think I'm concentrating 15 on the first two requests, and -- well, not 16 deliberately ignoring but missing the third one, 17 which is actually the one that really matters. 18 But it's clearly -- I mean, I've no reason to 19 suggest -- to think that this is inaccurate in 20 any way. I understand -- 21 Q. Why would disclosure of the Known Error Logs 22 require a defence Section 8 application? 23 A. Well, no that wouldn't. That's precisely the 24 point I'm trying to make, that I think -- I'm 25 presuming that I'm referring to the first two. 156 1 So request for an access -- to another site in 2 the Midlands, request to access to Chesterfield. 3 That's, I think, what I've thought of in 4 relation to a Section 8 application. 5 I've obviously missed the third one and the 6 third one, as I've just said. That's primary 7 disclosure, the first one. That's exactly I've 8 said I was looking and now I've obviously failed 9 in my own test, and I apologise for that. 10 Q. Can we go to POL00055126. This is from Jarnail 11 Singh on 28 July 2010. It's sent to Hannah 12 Ivory, who is another solicitor in the defence 13 firm: 14 "I refer you to Ms Issy Hogg's email of 15 22 July 2010. 16 "These have been previously requested by you 17 and our view is consistent. The prosecution do 18 not have [I think the word 'an' is missing] 19 obligation to grant you access and [then I think 20 'that' is missing] you require or are not 21 prepared to disclose this material. However you 22 are perfectly entitled to make a Section 8 23 application to the Court." 24 You accept that Mr Singh's response to 25 Mrs Misra's solicitors reflects the advice that 157 1 you're recorded as giving on -- 2 A. Oh, yes, and it reflects the answer I gave 3 previously. 4 Q. So here, the important parts of the defence 5 disclosure requests have been overlooked? 6 A. I'd agree with that. Well, I certainly agree 7 with it now. The problem that I faced 8 throughout this case was that there were so many 9 disclosure requests and I've obviously made 10 mistakes, but that's the context. That's all 11 I'm trying to say. As I said earlier, you've 12 just shown that I failed my own test. 13 Q. Can we turn, then, to Mr Jenkins' draft witness 14 statements of October 2010. That can come down. 15 Before we look at them, would you agree that 16 by 2010, there was a requirement under the Code 17 of Practice issued under the Criminal Procedure 18 Investigations Act 1996 to retain and record 19 final versions of witness statements and draft 20 versions of witness statements where their 21 content differs from the final version? 22 A. Well, I think that is right. Whether I applied 23 that to my mind, I rather doubt, from what 24 I know of the notes and suggestions. But ... 25 Q. I'm reading from paragraph 5.1 of -- 158 1 A. Oh, I'm quite happy to accept it. 2 Q. -- the 2005 edition. 3 A. No, I do accept it. I can see, thinking things 4 through, where I'm going to be at fault. 5 I accept it says that and I accept being aware 6 of it, I think. But -- yes. 7 Q. Can we turn, with that in mind -- the duty to 8 retain drafts where contents differ from the 9 final version and record them on a schedule of 10 unused material -- to what became Mr Jenkins' 11 October 2010 witness statement. Can we look, 12 please, at FUJ00123006. Can you see this is 13 a draft witness statement dated 6 October 14 2010 -- 15 (No audible response) 16 -- in Mr Jenkins' name. If we scroll down, 17 please, and again, then look at page 2., can you 18 see in the second paragraph there Mr Jenkins 19 writes: 20 "In Section 1.2 of his report, Professor 21 McLachlan lists a number of 'Hypothetical 22 issues' with the Horizon system. However there 23 doesn't appear to be a thorough justification as 24 to why these might be relevant." 25 Then there's some text that appears after 159 1 it, which, in the original, was red. 2 A. Oh, I see, yes. I understand. 3 Q. Can you see? 4 A. Yes. 5 Q. I wonder whether that can be marked up, the 6 "I wonder if you might be", and the rest of the 7 paragraph down to "hypotheses at all". Thank 8 you. 9 So what happened was Mr Jenkins' draft 10 statement was sent to you for comment and you 11 replied, and these are your replies -- 12 A. Yes. 13 Q. -- in what was originally red. 14 A. Yes. 15 Q. Can you see there that Mr Jenkins said: 16 "... there doesn't appear to be a thorough 17 justification as to why these [issues listed by 18 Professor McLachlan] might be relevant." 19 You said: 20 "I wonder if you might be prepared to use 21 slightly stronger wording. There doesn't appear 22 to be any evidential basis for the hypotheses at 23 all." 24 Yes? 25 A. Yes. 160 1 Q. Can we move forwards, please, to page 8. Can we 2 see, on page 8, the red text beginning with "Can 3 you expand on this?" So: 4 "Professor McLachlan explores issues with 5 training of Users in section 2.3.4 of his 6 report. I support his finding regarding 7 discrepancies in cash in almost every period." 8 Then you added: 9 "Can you expand on this and explain in 10 layman's terms, perhaps giving a couple of 11 examples? I do not understand exactly what 12 [Professor McLachlan] is referring to and your 13 agreement might be interpreted as a concession 14 that the Crown's case is entirely flawed. 15 Discrepancies are always to be expected." 16 Yes? 17 A. Yes. 18 Q. Then if we carry on reading, scroll down, 19 please. Towards the end of the red section 20 beginning with "M": 21 "M seems surprised that thefts over a long 22 period should go undiscovered." 23 You wrote: 24 "This is rubbish. If a [subpostmaster] is 25 cooking the books only an audit will reveal the 161 1 truth." 2 Then can we go forward to page 10, please. 3 Second line onwards, it's the entirety of this 4 paragraph. 5 "Please provide your full explanation of why 6 Callendar [Square] doesn't apply so that this 7 statement can stand alone. The Defence are 8 going to bang on about this." 9 Then five lines on: 10 "My understanding is that Misra is unable to 11 describe at all what may have been going wrong 12 with her system. According to her Defence 13 Statement she simply put the losses down to 14 theft by employees and/or incompetence. This 15 appears to be to me to be ludicrously vague. 16 She should at least be able to say where the 17 losses were occurring. Are you not surprised 18 that [Professor McLachlan's] reports appear to 19 have received no guidance whatsoever from Misra? 20 Were you surprised to see that Callendar 21 [Square] was still an issue for [Professor 22 McLachlan]? Did you have any idea that he 23 wanted the earlier logs before you received his 24 final report?" 25 Page 13, top part: 162 1 "Finally, towards the end of the section 2 Professor McLachlan hypothesises 'There are 3 missing Transaction Corrections which would 4 reduce the cash balance expected by the Horizon 5 system (ie be in favour of Misra)'." 6 Then Mr Jenkins said: 7 "This may indeed be true." 8 Then you said, if this can be highlighted: 9 "Why? Isn't this wish "Thinking by 10 [Professor McLachlan]? There is no evidential 11 basis whatsoever for his assertion. Have the 12 transaction corrections disappeared by magic? 13 However my understanding is that normally", and 14 I think that's back to Mr Jenkins' writing. 15 Then further down the page, Mr Jenkins 16 writes: 17 "Section 2.5.2 of the report discusses 18 remittances. However I don't understand the 19 relevance of this discussion to the case. 20 Professor McLachlan mentions that my analysis 21 'identified a pattern or remittance transactions 22 which is consistent with Misra's statement that 23 she declared cash held in remittance pouches in 24 the safe which were not actually present'." 25 Mr Jenkins continues: 163 1 "In my view is this not an indication of 2 guilt?" 3 Then you added: 4 "Please rephrase and expand. It is surely 5 surprising that a [subpostmaster] should go to 6 all the trouble of preparing scores of empty 7 bags rather than trying to find out what the 8 problem was. In fact Misra had considerable 9 computer experience -- you may want to speak to 10 Jon Longman as to her CV." 11 Then lastly page 14, the foot of the page: 12 "Section 3.2 mentions screen calibration 13 issues. While I can't [I think that's supposed 14 to say 100%] rule out such issues as causing 15 some issues. However I can't see how this could 16 account for anything like the full extent of the 17 losses." 18 You added: 19 "Please rephrase. This will be taken as 20 a damaging concession. You need to explain what 21 is meant by 'screen calibration issues'. Give 22 examples if you can. How can any such issue 23 lead to a deficiency? Above you any refer to 24 the possibility of confusion arising, not 25 a deficiency." 164 1 Thank you, that can come down here. 2 Mr Tatford, is what we see here prosecution 3 counsel seeking to harden up his expert? 4 A. Well, I'm seeking him to consider various 5 points, points that I see as legitimate, and 6 I was trying to express it in a way that merely 7 to invite further consideration, but I'm asking 8 him to focus on what I understand to be the 9 evidence. 10 Q. Would you agree that the way you went about it 11 was inappropriate? 12 A. In the context of everything that we've gone 13 through, I should have acted differently, 14 I think. I think it's -- I think I may have 15 been lulled into feeling that your experts are 16 cooperating and I was merely clarifying details 17 to make sure that Mr Jenkins really meant what 18 he said. But it all comes back to the 19 safeguards that are there in the Criminal 20 Procedure Rules, that they should have been 21 followed, and -- 22 Q. But here this isn't about just the rules; this 23 is about what you personally did? 24 A. Oh, yes. No, I agree. It's -- 25 Q. You ask questions in a very leading way, don't 165 1 you, in this? You point out what your view is. 2 A. I do, I do. I should have been -- I should have 3 handled it differently. 4 Q. Consistently with the Criminal Procedure Rules, 5 do you agree that this draft statement marked up 6 by you should have been retained and recorded on 7 a schedule of unused material? 8 A. Yes, I think that's right and that's something 9 I didn't consider. I obviously wasn't thinking 10 these things through at all. I'm sorry for 11 that. 12 Q. Thirdly, do you agree, as a consequence, that 13 the defence at trial were denied the opportunity 14 to explore with Mr Jenkins how his written 15 evidence came to look as it did at trial, if the 16 facts of this exercise and the records of it 17 were not revealed to the defence and to the 18 court? 19 A. Well, that would follow. 20 Q. Would you agree that that is not only a breach 21 of the rules but an unfairness in itself? 22 A. No, I think it is unfair and I'm sorry for that. 23 I can -- I think what I was doing was just 24 trying to clarify matters and make things clear 25 but I do agree that I've overstepped the mark 166 1 there. 2 Q. You said in your witness statement that you were 3 at pains throughout to ensure that Mr Jenkins 4 understood that he was subject to a duty of 5 independence, that he was the subject of a duty 6 to be impartial and that he was under a duty to 7 assist the court and not the Post Office. Do 8 you think that the approach that we see in the 9 examples I've given you of trying to press 10 Mr Jenkins to say that it was likely that 11 Mrs Misra had stolen the money is consistent 12 with those claims that you've made? 13 A. No, I accept that it isn't but what I was trying 14 to do in my witness statement was remember the 15 overall picture, which I did think -- genuinely 16 thought involved mutual cooperation and trying 17 to focus on the issues. But -- well, I've 18 summarised matters in that way, in a way 19 that's -- that makes me appear better than 20 I clearly have been. I accept those failings, 21 you rightly pointed them out. 22 Q. Finally on this topic, do you see any 23 inconsistency with your view that Mr Jenkins was 24 called at trial as an expert witness and your 25 approach as disclosed by this marked-up witness 167 1 statement of seeking to push the independent 2 expert to take a more unequivocal view in his 3 witness statement? 4 A. I was seeking to push him on the issues and to 5 focus clearly on the issues. But I agree, 6 looking at it now, I don't think I should have 7 done it. 8 Q. Can we look now at what Mr Jenkins did in 9 response to some of the comments that you made. 10 POL00167219, thank you. This is going to be 11 very difficult to read because there are four 12 colours going on in it. 13 This is essentially a version of Mr Jenkins' 14 October 2010 witness statement, returned by him 15 to you and the prosecution team, setting out 16 amendments that he'd made which are coloured in 17 red when he makes it an addition, are 18 struck-through and coloured in red when he makes 19 a deletion and then, including in a box, which 20 sets out in yellow and sometimes blue his 21 response to your comments. 22 So can we look, please, as an example, the 23 bottom of page 5. I wonder whether we can 24 display the text just at the top of page 62. So 25 we can see what your comment was, "WT", Warwick 168 1 Tatford: 2 "I wonder if you might be prepared to use 3 slightly stronger wording. There doesn't appear 4 to be any evidential basis for the hypotheses at 5 all. 6 "Gareth Jenkins: is that better?" 7 Then if we go up to see what changes he 8 made. Originally as drafted, the sentence read: 9 "However there doesn't appear to be 10 a justification as to why these might be 11 relevant." 12 It's been changed to: 13 "However there doesn't appear to be any real 14 justification as to why these might be relevant. 15 The purpose of these statements appears to be to 16 plant seeds of doubt without a factual basis." 17 You see he's picked up your point, there 18 isn't any factual basis for this, yes? 19 A. Yes. 20 Q. Then can we look, please, at the bottom of 21 page 16, thank you: 22 "WT: Can you expand on this and explain in 23 layman's terms", et cetera. 24 We just read that, yes, in the previous 25 marked-up version? 169 1 A. Yes. 2 Q. Then scroll down to see what his reply is: 3 "Gareth Jenkins: I'm not sure I can cover 4 all you suggest, but have made an attempt 5 above." 6 We can see, if we go up to page 16, the 7 entirety of that page is new text, yes? 8 A. Yes. 9 Q. Then if we can go on to page 17, please, and 10 scroll down -- if we scroll up a little bit, 11 thank you: 12 "WT: Isn't theft rather more likely? Are 13 these equally valid possibilities? Why would 14 a [subpostmaster] not monitor the system well on 15 a daily basis? Not to do so risks throwing 16 their own money down the drain. 17 "Gareth Jenkins: I would tend to agree, but 18 surely that is something for Post Office to 19 show. My expertise is in the system and not in 20 how a Post Office is operated." 21 So this is the expert pushing back on you, 22 isn't he? 23 A. Yes, he is. 24 Q. At the bottom of page 24, please, and on to 25 page 25. Thank you. 170 1 "WT: Please rephrase and expand. It is 2 surely surprising that a [subpostmaster] should 3 go to all the trouble of preparing scores of 4 empty bags rather than trying to find out what 5 the problem was. In fact Misra had considerable 6 experience -- you may want to speak to Jon 7 Longman as to her CV." 8 Reply: 9 "I've tried to do that. Not sure what the 10 relevance of her CV is to me. I'm just trying 11 to describe how Horizon works not her 12 competency." 13 Again, Mr Jenkins pushing back. 14 A. Yes, to his credit. 15 Q. Bottom of page 25, please. 16 "WT: As I mention above, if the 17 [subpostmaster] is fiddling the accounts only 18 an audit will uncover the problem. Misra will 19 have known this. 20 "Gareth Jenkins: Agree, but it is not for me 21 to say." 22 Again, pushback by Mr Jenkins? 23 A. Yes. No, absolutely. 24 Q. That can come down, thank you. 25 Overall it seems, would this be right, that 171 1 you were trying to materially to alter the 2 content of Mr Jenkins' evidence and, in some 3 cases, you succeeded and, in other cases, he 4 stood his ground; would you agree? 5 A. I wouldn't agree materially to all -- all to the 6 content. I was asking him to focus on issues as 7 I understood them to be, albeit the distinction 8 is quite narrow. Looking at it now, if I was 9 doing it now, I wouldn't have done it in that 10 way. 11 I think it's dealing with a different -- 12 a new and what was for me an unusual case and 13 I think I hadn't thought things through 14 properly. And that's my error, and I apologise 15 for it. 16 Q. Thank you. Can we turn to a new topic, please, 17 disclosure of training material. Can we just 18 turn up your witness statement, please, at 19 paragraph 50, which is on page 25 -- in fact, 20 it's the second part of paragraph 50 on page 26. 21 You're referring to Mrs Misra's interview and 22 you say: 23 "On the contrary, she said that she had been 24 able to find the cause of the losses -- her 25 dishonest employees. Her interview had not made 172 1 mention of her suffering losses right from the 2 beginning, in the presence of her trainers while 3 they were training her, before any possible 4 theft was involved, which was something that she 5 later relied on heavily in her evidence at 6 trial." 7 So the point that you're making here, is 8 this right, that at trial Mrs Misra relied on 9 an occasion or occasions where a loss was 10 suffered whilst a trainer was in the premises 11 with her, in the post office with her? 12 A. Yes. 13 Q. You're making the point: but, hold on, that's 14 not something she relied on interview? 15 A. Well, I think she -- I dealt with this. 16 I specifically went -- well, normal practice is 17 to go specifically to the questions to see 18 whether it is a matter that could legitimately 19 be raised at that time. But I'm trying to 20 remember exactly how it was. 21 I appreciate I made the point and -- that 22 I made that point in my speech and then 23 persuaded the judge that there was a potential 24 adverse inference on that point. 25 Q. So a Section 34 inference -- 173 1 A. Yes. 2 Q. -- against her. But, in any event, you're 3 making the point here that Mrs Misra relied 4 significantly on the fact that some of the 5 losses occurred in the presence of her trainer? 6 A. Yes. 7 Q. I just want to look at what was disclosed in the 8 trial, as against material that the Inquiry has 9 now uncovered? 10 A. Oh, right. All right. 11 Q. The Post Office has disclosed to us the 12 following document. It's called a "Request for 13 Ad Hoc Training", specifically in relation to 14 balancing procedures. Can we look at it, 15 please. POL00047578. Can you see it's called 16 "Request for Ad Hoc Training"? 17 A. Yes. 18 Q. Name of the outlet, West Byfleet, and its 19 identification code. "Agent's name", misspelt 20 Mrs Misra. 21 A. Yes. 22 Q. Then if we scroll down: 23 "Ad Hoc Training Required ... 24 "Balancing procedures." 25 A. Yes. 174 1 Q. "Training Delivery Team to complete", at the 2 foot of the page. Request received, 25 July 3 2005; days allocated, 27 July and Wednesday, 4 3 August 2005. The trainer Michael Opebiyi, 5 yes? 6 A. Yes. 7 Q. If we just look at the rest of the page, 8 "Balancing Procedure", this is for the field 9 trainer to complete. "Balancing procedure", 10 topic covered: 11 "Check daily procedures, weekly procedures, 12 weekly Horizon reports and cash account." 13 So it looks like there'd been a request for 14 ad hoc training, specifically in relation to 15 balancing procedures, that looks like it led to 16 Michael Opebiyi being allocated to perform 17 training on 27 July and 3 August. 18 Q. So, overall, this is a request for training 19 relating to Mrs Misra specifically relating to 20 balancing, yes? 21 A. Yes. 22 Q. Can we look, please, at POL00065114, 23 an "Intervention Manager Visit Log". This looks 24 like it's completed by the Intervention Manager 25 for the area, called Alan Ridoutt, and he's 175 1 recorded: 2 "This branch was visited on 10, 17 and 3 27 August 2005 regarding balancing issues and 4 the setting up of individual stock units. 5 I have spent many hours sorting out balancing 6 issues and helping with the stock setup as well 7 as arranging ad hoc training. 8 "The [subpostmaster] is still new and is 9 looking for support on many issues -- she has 10 the capability but needs occasional guidance." 11 Then this, if we can just scroll down and 12 highlight it: 13 "This branch is currently holding a loss of 14 £466.73 and an over of £96.80. That was put 15 into the suspense account by the trainer 16 'Michael'. Who told the [subpostmaster] that 17 a voucher would be issued to clear it. I have 18 spoken to Michael who confirmed that he did 19 this. I have warned the [subpostmaster] that 20 unless an error comes back they could be 21 liable." 22 Would you agree that this appears to be 23 a record that, whilst a trainer was there, he 24 agreed that an amount of £466.73 and an over of 25 £96.80 could be put in a suspense account. 176 1 A. Yes, it does. Can I just clarify, it's me not 2 understanding this: was this something that was 3 disclosed in the trial or it has come forward 4 more recently? 5 Q. More recently. 6 A. Well, it rather looks like I've made an error 7 and a bad, unfair point. 8 Q. You're ahead of me because I think you're 9 thinking ahead to the cross-examination of 10 Mrs Misra -- 11 A. Yes. 12 Q. -- when, essentially, you said that what she was 13 saying wasn't true. 14 A. Yes, and it looks like a bad point. I'm sorry 15 about that. My understanding was, from what 16 I remember, the training records were disclosed. 17 Q. Well, let's before we get ahead of ourselves -- 18 A. Forgive me, I'm getting ahead. My fault, I'm 19 sorry. 20 Q. Just see how disclosure unfolded at the trial. 21 Can we look, please, at POL00058503. Can we see 22 at the foot of this page an email from 23 28 November 2009 from Keith Hadrill to you: 24 "Hi Warwick 25 "Sorry to disturb your weekend. However, 177 1 herewith the further disclosure request drafted 2 by Issy. 3 "Call me if you need any further 4 clarification." 5 Then if we can look at the disclosure 6 request, next page, please. Look under the foot 7 of the page, under the cross-heading "Training", 8 copy of the training manual, when it was 9 supplied, all records provided to the defendant 10 qualifications of the trainer. Then this at 11 paragraph 5: 12 "During the second week of the Defendant's 13 tenure as a subpostmistress at West Byfleet the 14 trainer was present during the weekly 15 reconciliation. He called the helpline to 16 request explanation as to a loss as, in his 17 opinion, the Defendant had at all times followed 18 procedure. No explanation was given and the 19 Defendant made good the loss. Please provide 20 the following information: 21 "a) The name and contact details of that 22 trainer (to assist in identification the 23 defendant recalls his name was Michael and he 24 was black). 25 "b) What enquiries were made, bearing in 178 1 mind the request came from a trainer, as to the 2 cause of this loss." 3 If we go back to page 1, please. You 4 forwarded this, so you were getting it directly 5 from defence council. You forwarded it that 6 night, so the following night, to Jon Longman 7 and Phil Taylor: 8 "Dear Jon & Phil, 9 "Please find yet another disclosure request 10 from the defence, albeit, to an extent, a rehash 11 of what has gone before." 12 Does the language you've used there reflect 13 your frustration at the defence making 14 disclosure requests? 15 A. Yes. Not the act of making disclosure requests; 16 that's not a problem. The problem was their 17 wideness and they were very wide, and they -- 18 well, the trouble with very wide defence 19 requests that don't focus on matters is that 20 it's possible to be distracted by some things 21 and not concentrate on other more important 22 things. That's a potential danger. 23 A good prosecutor should be able to deal 24 with everything. But there were a lot of 25 disclosure requests, as I think is clear from 179 1 the paperwork, and they were very wide. 2 Q. That one we've looked at was pretty specific, 3 wasn't it, in the -- 4 A. Oh yes, it's one of the ones and I think I'd 5 dealt with that in my advice and I think Jon 6 Longman was providing information on that. It 7 maybe that he -- he wasn't aware of the full 8 information when he made disclosure but I'm sure 9 we'll come to that. 10 Q. Can we look at what happened at trial, please, 11 UKGI00014845. So this is the transcript of the 12 trial for 18 October 2010. If we can turn up 13 page 52, please. I'm jumping right in here, 14 this is her evidence-in-chief: 15 "What happened whilst Michael was there? 16 Did he also sit behind and watch what you were 17 doing?" 18 Mrs Misra says: 19 "Yeah, he was sitting behind me, but 20 I mentioned to him -- as he come in 'how is it 21 going?' I said 'not good. I am having to put 22 money in every day to the post office'. He was 23 more concerned than Junaid. He said 'that 24 should not be happening. Let us see how it 25 goes'. 180 1 "Question: Did it get any better? 2 "Answer: No. I have to again put money in 3 every day and then when balancing with Michael 4 it came round at £400 short. 5 "Question: At the end of the week?" 6 Then scroll down. End of D: 7 "... second balancing in office with 8 Michael. 9 "Question: So the first day with Michael on 10 the second week? 11 "Answer: That is right -- no -- yeah. That 12 is right. 13 "Question: It is £400 short? 14 "Answer: No, no, no, that is on the second 15 balancing £400 short. 16 "Question: So that is the end of the second 17 week? 18 "Answer: End of second week. 19 "Question: Did you get any error 20 corrections there? 21 "Answer: No. Michael said 'it is a bit 22 unusual. I know you have been doing the 23 transaction correctly'. Then I remember him 24 staying behind and he made a phone call from 25 [my] office ... he said he had been observing we 181 1 are doing the transaction correctly ... they 2 have been putting the money in every day to 3 balance the till and he can't understand why the 4 £400 shortfall is." 5 So she was showing quite a good recall for 6 the figures there, the £400, wasn't she? 7 A. Yes. 8 Q. Can we go towards page 132, please, B: 9 "Question: It is this interview I am 10 looking at. All right?" 11 This is you cross-examining: 12 "Answer: Okay. 13 "Question: In this interview you have not 14 mentioned Michael, Junaid, what auditor 15 threatened you with, the £500 and then you will 16 lose the post office. You don't mention Timiko 17 Springer. Yes? All those things are missing 18 from this interview. Do you accept that? 19 "Answer: I accept I gave answer to the 20 questions what they asked for. 21 "Question: Right what I want to understand 22 is why these things are missing because in fact 23 you have just given us another potential reason. 24 Is it because you were not asked the question or 25 is it because you had not realised how important 182 1 these things were at the time of interview? 2 "Answer: I can't remember, basically ... 3 "Question: If you cannot remember, 4 Mrs Misra -- 5 "Question: -- in an interview in 2008 how 6 is it you remember your dealings with Michael 7 and Junaid in 2005? 8 "Answer: It happen. It happen in my post 9 office. 10 "Question: If it happened why didn't you 11 tell the Post Office this in interview?" 12 You were suggesting here, not directly, but 13 by implication, through the use of the word 14 "if", followed up by the failure to mention 15 something in interview, that what she was saying 16 was false, weren't you? 17 A. Well, yes, that would follow from the not being 18 mentioned there that I'm not sure I was that 19 piece of more recent disclosure. But it may -- 20 if I'm wrong about that and I've made a mistake, 21 I'll let you go to where we need to go. 22 Q. If it's the case, which appears to be the case 23 that those records were not disclosed to the 24 defence or disclosed to you, relating to the 25 trainer Michael's experience, when he was in 183 1 branch, that led you to cross-examine Mrs Misra 2 on a false basis, didn't it? 3 A. Yes, it was a bad point. My understanding was 4 that the training records had been disclosed and 5 that they couldn't remember the details but I'm 6 trying to remember where that was from. But it 7 certainly appears clear and it's unfortunate, if 8 there's a piece of disclosure I didn't have 9 that's caused me to take a bad point then it's 10 an unfair point. It's not Mrs Misra's point 11 it's the fault of the prosecution as a whole. 12 Q. Can I turn, please, to the call logs and I'd 13 like, if I may, to explore a different aspect of 14 how the prosecution team went about giving 15 disclosure of evidence to Mrs Misra and her 16 legal representatives, and that's disclosure of 17 the logs of calls made by Mrs Misra to Helpdesks 18 about problems that she was having with the 19 Horizon system, including in relation to 20 balancing and discrepancies. 21 We know that there were 135 calls that she 22 made. Let's start with the raw material, 23 a record of a call. Can we start, please, with 24 POL00061793. Can we turn to pages 25 and 25 following, please. Look at the bottom half of 184 1 the page, and keep going. Thank you. 2 We can see that this is a record of a call 3 dated 23 February 2006. Thank you. The caller, 4 left-hand side, is Mrs Misra, the postmaster, 5 yes? 6 A. Yes. 7 Q. If we go over the page, please, we can see new 8 call taken by Joanne Rowland: 9 "[Postmaster] states that she has losses 10 every week in two stock units. 11 "NBSC states they have gone through all 12 checks with [postmaster]. 13 "NBSC states that on the CC stock unit 14 [postmaster] has rolled over with 1,500 loss, 15 JSA stock unit PM has rolled over with a £200 16 loss. NBSC states that on Saturday, 18 February 17 [postmaster] declared her cash and she had 18 a £900 loss up until Saturday and then when the 19 [postmaster] declared her overnight cash on Sat 20 at 1.00 went back to £200 loss. NBSC also 21 states that her AA stock unit has a £6,000 loss 22 [postmaster] has rolled over this as well." 23 Then reading four or five lines on: 24 "[Postmaster] states she has that 3 stock 25 units which are showing losses. [Postmaster] 185 1 has rolled over and [postmaster] states NBSC 2 went through checks with her." 3 Then a little bit further down about, 4 a third of the way down that page there, KEL 5 reference number, "No KEL found", so no Known 6 Error Log found. 7 A. Yeah. 8 Q. "Please check [two lines on] why [postmaster] 9 has losses in three of her stock units. 10 [Postmaster] has rolled these over before. 11 I could check her system. NBSC states they have 12 gone through all her paperwork with her. Please 13 see call for details." 14 Then at the foot of the page, 15 an intervention by Anne Chambers. Can you see 16 that at the foot of the page? If you just 17 scroll down, please. "Update by Anne Chambers". 18 Can we just go to the summary of this call 19 in Mr Dunks' witness statement, please. 20 POL00058457. 21 This is a witness statement of Mr Dunks of 22 29 January 2010. Just scroll down, please. He 23 introduces himself and says he has a working 24 knowledge of the computer system known as 25 Horizon. He's authorised by Fujitsu to 186 1 undertake extractions of audit data held on the 2 Horizon system. 3 Then page 2, please, the middle paragraph 4 there beginning, "I have reviewed": 5 "I have reviewed the [Horizon Helpdesk] 6 calls pertaining to the West Byfleet branch 7 [between] 30 June 2005 to 31 December 2009. 8 There were 135 calls ... to the HSH. This 9 equates to [2 to 3] calls ... which is average 10 for this size Post Office. All the calls are of 11 a routine nature and do not fall outside the 12 working parameters of the system or would affect 13 the working order of the counters." 14 He then proceeds to summarise them -- 15 A. Yes. 16 Q. -- the calls, if we scroll on, next page. Can 17 you see? If we skip to page 8, if we can scroll 18 down, please, to number 29 at the foot of the 19 page there. That's the summary of the call log 20 that we have just read, and the summary is: 21 "Annetee NBSC -- PM states that she has 22 losses every week in two stock units. 23 "Call close by Dave Dawe: PM was getting 24 discrepancies. SSC have investigated and 25 advised that the NBSC take a second look at this 187 1 as the office stock units appear to be in 2 a mess. 3 "Outcome 4 "SSC advice that call be passed back to NBSC 5 for further investigation." 6 At trial, was this the extent of the 7 information disclosed in the hearing as to the 8 nature and extent of the calls that Mrs Misra 9 had made. 10 A. Do you mean the statement and the log that we 11 looked at as well? 12 Q. Yes, was the log disclosed too? 13 A. I think so. I can't actually remember -- 14 I thought it had been -- 15 Q. You agree that this summary of it doesn't really 16 do justice to what we read? 17 A. No, it doesn't deal with the amounts, and so 18 forth. It's not quite as much detail, I agree. 19 Q. Well, it's an inadequate summary of it, isn't 20 it? 21 A. Yes, but my recollection was the call logs were 22 disclosed. 23 Q. What are you basing that recollection on? 24 A. Well, it's just what I remember. I mean, if I'm 25 wrong about that, then I'm wrong, but I would 188 1 expect them to be disclosed. Not simply 2 a statement. 3 Q. Not simply a statement summarising? 4 A. No. And if -- but -- I mean, obviously it can 5 be checked easily enough. I don't want to waste 6 time if I've misremembered something. Looking 7 at it now, if I was prosecuting a case now, I'd 8 expect the call logs to be disclosed together 9 with the witness statements. That's what I'm 10 assuming happened but I can't actually remember 11 it now. I thought that had happened but I can't 12 actively remember it. 13 Q. Can you recall whether at trial the contents of 14 the call logs themselves, the underlying data, 15 was brought in to evidence? 16 A. I can't specifically recall it. That's what 17 I thought had happened but, actually, a memory 18 of it and seeing a document of it, I can't 19 remember at the moment. But I'm sure it can be 20 checked. It's either there or it isn't, I would 21 have thought. 22 Q. Well, we do have a document from Mr Dunks 23 exhibiting something -- 24 A. Yes. 25 Q. -- and we don't know what the something consists 189 1 of? 2 A. Well, you see, he was cross-examined at some 3 detail and I can't see how he can be 4 cross-examined without the log. That's what 5 made me think we had the logs. It is obvious 6 that one should disclose the logs. If 7 a statement summarises, one should disclose the 8 logs that are being summarised. That's obvious 9 and that should happen. I thought it had 10 happened. If it hadn't, then that was wrong. 11 It should have happened. 12 Q. Thank you. Lastly on the Misra case, your 13 opening and closing speeches to the jury. Can 14 we look, please, at UKGI00014994. We can see 15 this is a transcript for the 11 October 2010 16 and, if we scroll down, we can see you're listed 17 as prosecution counsel. 18 If we go to page 30, please, and scroll 19 down, please, we can see there where your 20 opening speech commences. 21 A. Yes. 22 Q. Can we go to page 49, please. At B you describe 23 what the Horizon system is. You say: 24 "The system the Crown say is actually 25 a fairly simple system to use. It has got nice 190 1 coloured buttons, big buttons, and it has got 2 clear instructions in English, but it has also 3 been a system that has been used for a very long 4 time now and it has in fact recently been 5 replaced by an upgraded Horizon system but it 6 was rolled out to post offices between 1999 and 7 2002 and has continued until ... 2010. 8 "So at the time we are concerned with there 9 would have been -- a lot of post offices shut 10 down of course recently -- but in the time we 11 are concerned with there would have been around 12 14,000 post office branches, and you can just 13 imagine how many transactions the Horizon system 14 has to go through when you think of that number 15 of branches. The computer system will literary 16 process millions of transactions every single 17 day, and in peak times like around Christmas 18 perhaps nearly 20 million transactions per day. 19 "So it has got to be a pretty robust system 20 and you will hear some evidence from an expert 21 in the field as to the quality of the system. 22 Nobody is saying it is perfect and you will no 23 doubt hear about a particular problem that was 24 found, but the Crown say it is a robust system 25 and that if there really a computer problem the 191 1 defendant would have been aware of it. That is 2 the whole point because when you use a computer 3 system you realise there is something wrong if 4 not from the screen itself but from the 5 printouts you are getting when you are doing the 6 stocktake. 7 "So that is one issue in the case, whether 8 the Horizon system is any good or not. The 9 Crown say it must be good otherwise the whole 10 Post Office would collapse but you are 11 nevertheless going to have to consider that very 12 carefully and consider all the evidence that you 13 are going to hear." 14 Would you agree that what you're saying 15 there is a version of a prosecutor's fallacy, 16 namely the chances of Horizon getting fictitious 17 shortfalls must be small because it works 18 reliably in 14,000 offices, millions of times 19 a day and, therefore, you can conclude Mrs Misra 20 is guilty? 21 A. I don't think so, no. I'm saying that generally 22 it works but I also say, in my -- I think in 23 both opening and closing speeches, all computers 24 can have glitches and these things happen. But 25 all I think I'm saying by that is not that it's 192 1 a probability exercise; I'm saying it's 2 generally a robust system. It's not perfect and 3 I made it clear that it was not perfect; it 4 wasn't infallible. 5 When the defence suggested the Crown were 6 saying that, I made clear that wasn't what we 7 were saying. I don't think -- I certainly 8 didn't mean it as some sort of exercise in 9 probability. 10 Q. Why were you mentioning all of the other post 11 offices in -- 12 A. So -- 13 Q. -- which it worked and all of the other 14 transactions -- 15 A. Well, because -- to show that it was generally 16 a robust system, which is what I understood it 17 to be. If a system does work in a lot of 18 offices, there must be a lot of good to the 19 system. It's not excluding the possibility 20 there might be glitches. Glitches happen on 21 computers. Every day in a courtroom, if 22 something happens with a computer, it doesn't 23 mean the computer itself is bad. It means that 24 glitches are relatively a part of -- part and 25 parcel of a system that, in general terms, is 193 1 relatively good. 2 Q. From whom did you receive instructions that the 3 integrity of the system was such that it could 4 be described as robust? 5 A. Well, the robust term was used regularly by the 6 Post Office and I sought to justify it by 7 argument, not to rely on it simply being 8 a mantra. I was affected also by the evidence, 9 as I understood it, from Mr Jenkins and also 10 from the proposition, which I thought at the 11 time was significant that I understood from my 12 instructing solicitor, that Crown Offices, where 13 there wasn't a shop attached, didn't seem to 14 have the same sort of problems. 15 But I appreciate that I may have missed 16 things, I may have been misinformed but that's 17 the information as I understood it to be. 18 Q. You say in your witness statement: 19 "I did not seek to hide behind the mantra 20 that Horizon was robust." 21 A. No, I don't seek to hide behind a mantra; 22 I sought to justify the term. That's what 23 I mean. 24 Q. You're justifying the term in terms of 25 probabilities here, aren't you? 194 1 A. No -- well -- well, there's a difference between 2 saying "A system generally works" and "It's very 3 unlikely it's failed in this case". I'm not 4 making the second point. I'm making the point 5 that it works generally, which means generally 6 it's probably pretty good. But nothing is 7 perfect and some glitches happen. I was very 8 clear about that, in both opening and in 9 closing. Very clear to tell the jury that, if 10 they thought the loss might largely be explained 11 as a result of computer error, they'd be very 12 likely to acquit. 13 Q. Thank you. That can come down. 14 In relation to Mr Jenkins' oral evidence at 15 trial, I think it's right that when you called 16 him, you didn't seek to establish that he 17 understood his expert duties. 18 A. Not in the witness box, no, but I thought it was 19 obvious from everything I saw of him, and I give 20 an example in my witness statement of how 21 careful he was. 22 Q. Thank you very much, that's all I ask on 23 Mrs Misra's case. 24 Can I turn to two other cases much more 25 shortly. Firstly, Carl Page. 195 1 Firstly, a general question. Can you help 2 us as to whether or not Mr Jenkins had any role 3 in the prosecution of Carl Page, whether by 4 provision of a witness statement or giving 5 evidence at trial? 6 A. He had no role. My understanding is that his 7 first involvement as a witness -- this is my 8 understanding but it is -- from my conversations 9 with him, I think his first involvement as 10 a witness in a trial was the Misra case. 11 I understand that Debbie Stapel -- I knew 12 her as Debbie Helszajn -- that she suggested 13 Gareth Jenkins gave evidence at the Dudley trial 14 and that's simply incorrect. It's simply 15 misremembering. I was at the trial for six 16 weeks. I called a number of witnesses. I took 17 notes of all the evidence -- I wish I had the 18 notes still, they're long gone on an old 19 computer -- but I heard all the evidence. 20 Gareth Jenkins was not a witness in that case. 21 And also, I've -- there's an email that's -- 22 I don't need to take you to it but you'll 23 remember the email when Gareth Jenkins says it 24 was nice to put names to faces after the 25 conference. If I'd met him before at Merry 196 1 Hill, Dudley, then he wouldn't have said that. 2 So it seems clear to me that, from my memory but 3 also the logic of the evidence, Gareth Jenkins 4 wasn't involved in the Page case at all. 5 Q. I think it's right that you've seen, like us, no 6 witness statement from him? 7 A. Yes, and that's the reason, and I checked 8 because I looked at Debbie Stapel's evidence 9 yesterday and I checked it against the witness 10 statements I have, and there's an absence of any 11 reference to computers working. The Inquiry 12 will be aware that often the Post Office tried 13 to rely on Section 69 of PACE, long after it had 14 fallen away, but my recollection is that nobody 15 sought to suggest the computer systems -- 16 anything about the computer systems in the Page 17 case. It was really dealt with on the basis of 18 the branch trading accounts. 19 Q. He's not mentioned in yours and Mr John's 20 opening note, is he? 21 A. No, he's not mentioned by the experts. He's not 22 mentioned significantly in a list of witnesses, 23 so I find it very hard to see how he could 24 possibly have become involved. 25 And Debbie Helszajn -- Debbie Stapel, 197 1 I should say now -- she was present for the 2 first week of the trial, because it's far away. 3 From London you have to stay up there, it's 4 quite awkward to get to the Merry Hill site, and 5 she, I think, would have seen some witnesses 6 because I think she was there for the first week 7 but she wasn't for the remainder. 8 So when she said, "I remember seeing Gareth 9 Jenkins give evidence", it seems to me that she 10 may be confused on that point. 11 Q. Thank you. 12 In view of the time, I'm not going to ask 13 you about the other case, the Susan Rudkin case. 14 Thank you very much. 15 A. Thank you. 16 MR BEER: Those are the only questions I ask 17 Mr Tatford. 18 I think there are some questions from Core 19 Participants. No from Howe+Co. 20 No, thank you, from Hudgells. 21 But yes, from HJA, so Mr Henry. Thank you. 22 Questioned by MR HENRY 23 MR HENRY: Mr Tatford, I represent several 24 subpostmasters, one of course is Seema Misra who 25 hits besides me. 198 1 Thank you for your apology and, without any 2 desire to harrow your feelings, I would like to 3 remind you of what happened to Mrs Misra as 4 a result of her being prosecuted to conviction. 5 As you recall, on the 11 November 2010, she 6 was sentenced to 15 months' imprisonment for the 7 offence of theft and six months' imprisonment on 8 each of the false accounting charges to run 9 concurrently. She went to prison on her son 10 Adi's 10th birthday, at a time when she was ten 11 weeks' pregnant with her second son, Jai. 12 Immediately upon being sentenced, she 13 collapsed in shock, complaining of severe 14 abdominal pain and was taken straight to 15 hospital for overnight observation, before being 16 removed to HMP Bronzefield the following 17 evening. 18 You may not be aware of this but she was 19 pilloried in the local press before and after 20 her imprisonment as a pregnant thief who got off 21 lightly. She was released on tag after nearly 22 four months inside. It was a hellish time. Her 23 husband, Davinder, was racially abused and 24 beaten up in the street. He suffered the 25 vilest, racist abuse in the months that followed 199 1 his wife's trial and imprisonment and Mrs Misra, 2 on her release from prison, was a pariah. No 3 one would talk to her, offer friendship, support 4 or consolation. 5 Because she was ostracised, the childminding 6 business she'd started failed, as no one wanted 7 to employ her. 8 As for her eldest son, Adi, she deliberately 9 took him late to school, so that she wouldn't be 10 shunned by the other parents at the school gate, 11 and she tried to conceal the shame of her 12 imprisonment from him saying she'd been in 13 hospital when she had not. Adi, who knows, may 14 have become complicit in this pretence to 15 protect his mother, but was not officially told 16 the truth, whatever he may have gathered in the 17 playground or elsewhere, that his mother had 18 been jailed whilst carrying his brother Jai, 19 until the results of the Bates litigation, some 20 nine years later. 21 Turning to the family's financial position, 22 perhaps you were aware, I'm sure you were, that 23 a considerable amount of family wealth had been 24 used to make up for shortfalls before she was 25 prosecuted. 200 1 A. Yes, and that came out in the evidence. 2 Q. You were aware of that? 3 A. (The witness nodded) 4 Q. Then, of course, compounded by her subsequent 5 conviction and disgrace, that family wealth was 6 obliterated. Her family lost almost everything 7 and, despite the Bates litigation, Mrs Misra 8 was, as a convict person, excluded from being 9 a claimant and was only given a meagre ex gratia 10 payment by those who settled the case. Perhaps 11 you weren't aware of that? 12 A. I wasn't aware of that, no. 13 Q. No. Even now, her family's financial state 14 remains insecure and they live a precarious 15 existence. 16 So thank you for your apology but, having 17 listened to what I've just precised from the 18 Human Impact hearing, which was heard on 19 25 February 2022, is there anything further you 20 would wish to say to her about how you, as 21 independent counsel, were misled and how you, 22 despite, as you say, trying your best, came to 23 preside as independent prosecution counsel over 24 what you have accepted yourself was a disaster? 25 A. Yes. Well, I've thought about Mrs Misra's case 201 1 for a very long time and I found it difficult at 2 the time, I found it a stressful case to 3 prosecute, and have thought about it on many 4 occasions afterwards, and I've followed the 5 publicity. And it's taken me a very long time, 6 in fact, to come to the view that I expressed at 7 the beginning of my evidence. 8 I've actually found -- I've actually found 9 the exercise -- and it's been quite a demanding 10 exercise to do a witness statement and go 11 through matters -- I have found that's clarified 12 my mind as to what happened and, when I said 13 I felt ashamed, I do. I actually feel worse 14 because it's become quite clear in the way that 15 the evidence has properly been put before me 16 that there are many failings that I had ignored 17 on my part and I perhaps created a rosier vision 18 in my memory that wasn't really there. 19 I apologise unreservedly for what happened. 20 I hope it can be remedied in some way. I hope 21 that -- I don't know what happens with 22 compensation in the future. That's obviously 23 something outside of my control but this Inquiry 24 process has been highly informative, and it's 25 some good, I hope, will come from it. 202 1 I have changed my view. It's taken me 2 a long time. I suspect I was in denial for 3 a long time, perhaps in a self-justificatory 4 way, and I apologise for that. 5 Q. Mr Tatford, thank you very much. I do not doubt 6 your feelings as expressed. Do you now 7 consider, particularly in the light of Counsel 8 to the Inquiry's questions to you and the way in 9 which matters, even today, have been revealed to 10 you, do you now consider that you were misled by 11 the Post Office as to the reliability and 12 robustness of the Horizon system before and 13 during Mrs Misra's trial? 14 A. I think I was misled. I find it difficult to 15 understand where the original source is and 16 that's something the Inquiry will no doubt show. 17 But the -- to give an example, I hope this 18 helps, because I haven't been asked about the -- 19 Mandy Talbot, for instance, was asked about 20 some documents that she -- in her evidence, 21 about a draft report in relation to the 22 Castleton case, and also some -- a report from 23 Mr Coyne and an Advice from counsel in a case 24 from Blackpool -- Wolstenholme, I think, is the 25 name of the case. I wasn't shown that material. 203 1 Now, I haven't -- I did go to some trouble 2 to try to discover material, and I remain very 3 surprised that those two items were not given to 4 me, particularly as I attended the civil office 5 on two separate days with a period of time in 6 between. 7 But I am conscious of a way of thinking 8 which is betrayed in that robust -- the robust 9 mantra that is used, and so it's difficult for 10 me to -- I remain in a certain sense of 11 confusion. I'm not trying to be difficult. It 12 seems to me that, if it is right, and I don't 13 know the full facts in terms of the disclosure 14 from the appeal and other matters about 15 Horizon -- it appears that there clearly were 16 matters that should have been brought to my 17 attention from the very beginning, should have 18 been brought to my attention, potentially the 19 Criminal Law Department. 20 Quite where the failure to provide 21 evidence -- information has come from is unclear 22 to me. But I was not given a full position of 23 the problems with Horizon, that's absolutely 24 clear, which involves being misled in some way. 25 By whom, it's difficult for me to say and I have 204 1 to be careful about this because I simply don't 2 know. 3 But what is clear, and I discover more about 4 it and I'll be learning more as the Inquiry 5 progresses, but there are problems that should 6 have been relatively straightforward to put 7 before those who prosecute the cases and who 8 decide whether to charge people. And that 9 didn't happen and quite why that happened is -- 10 I remain unclear about that. 11 Q. So you mentioned there that you visited the 12 civil offices and important documents 13 concerning, for example, the Cleveleys case were 14 not shown to you? 15 A. No, and I should be careful. Certainly, the 16 Cleveleys documents. I looked at Castleton 17 files -- it's so long ago I can't remember now 18 what exactly I saw, but I would be very 19 surprised if I had missed a draft report that 20 suggested a Horizon error because that's 21 precisely what I was looking for, and I didn't 22 see all the boxes. 23 Q. So if I were to put names to you, you would not 24 wish to -- because of the uncertainty that still 25 exists in your own mind, you would not wish to, 205 1 for example, point the finger at any individual. 2 Is that -- 3 A. Well, I think -- no, that is right. I don't 4 know. The -- 5 Q. From what you have seen today, however, 6 particularly given Counsel to the Inquiry's 7 questions, a certain sort of mindset, do you now 8 accept that there appeared to be, within the 9 Legal department and those connected to the 10 Legal department at the Post Office, a certain 11 siege mentality, that Horizon was under attack, 12 it was being assailed by, for example, Mrs Misra 13 and others, and that, if the walls were 14 breached, then chaos, confusion and widespread 15 theft by subpostmasters would follow? 16 A. Well, there was certainly a fear about -- well, 17 as was shown in the email that was shown to be 18 from my instructing solicitor, which I don't 19 think I was aware of -- the suggestion to 20 Mr Jenkins what he should do. I have to 21 confess, I seem to have been guilty of similar 22 suggestions. But there was a very clear mindset 23 there, I think the word "risible" was suggested 24 in terms of how to instruct an expert and that 25 is indicative of my mindset, I'd have to accept 206 1 that. 2 And the -- I wouldn't -- the feeling of -- 3 that the Horizon system worked, it seemed to me 4 that was a feeling genuinely widely held but it 5 may follow from that that there's a fear that 6 an attack to a system that's thought well of 7 needs to be confronted, and so that, in a way, 8 that's a siege mentality; in a way, that is 9 a way to describe it, I suppose. 10 Q. So there could be the benign siege mentality 11 based on overconfidence in the system or there 12 could have been -- and I don't suggest that you 13 would have been a part of this -- a malign siege 14 mentality, being aware of the deficiencies and 15 defects but deliberately seeking to suppress 16 them? 17 A. There -- certainly in terms of -- the email 18 I talked about, Jarnail Singh to Gareth Jenkins, 19 that's a good example of potentially a benign 20 siege mentality, I'd agree with that. Quite to 21 what extent there was a deliberate attempt by 22 any person to withhold information, that remains 23 to me -- a little unclear to me. 24 I simply don't know enough about what has 25 been disclosed in the appeal process. For 207 1 instance, I've never seen -- I've seen -- 2 I simply have seen the judgment in Hamilton and 3 others. I haven't seen any disclosure. I was 4 asked a question about a piece of disclosure, 5 for instance, which I haven't seen since, which 6 I refer to in my witness statement. I'm not 7 sure I quite have enough information. I'm not 8 trying to be unhelpful. 9 Q. No, I accept that. 10 A. But I am very conscious that one -- I can only 11 really deal with what I have knowledge of. 12 Q. Well, can I move on now to Fujitsu. Do you now 13 consider you were misled by Fujitsu as to the 14 reliability and robustness of Horizon, at the 15 time of Mrs Misra's trial? 16 A. Again, I don't know the full extent of faults, 17 although I remember -- as I said earlier, 18 I watched Debbie Stapel's evidence yesterday and 19 what she said about that dynamite document. 20 I remain very troubled about what I said in 21 my advice, that Fujitsu needed to be asked and 22 I appreciate it may have been more complicated 23 than that, the watering down effect, 24 I acknowledge. But I did ask the question and 25 it doesn't ever seem to have been answered. 208 1 Q. But concerning -- and I suppose arising from 2 what you've just said -- the vital issue of 3 disclosure, you unequivocally accept that, 4 because of a flawed approach to disclosure, 5 Mrs Misra did not receive a fair trial? 6 A. Oh, yes, and that's -- it's more important 7 that's what the Court of Appeal have decided, 8 and what was conceded significantly by the most 9 experienced criminal team for the respondents 10 that one can imagine. 11 Q. As was elicited and elucidated by Counsel to the 12 Inquiry, the manner in which she was 13 cross-examined and the premise upon which the 14 case was open and closed was regrettably 15 specious and spurious was it not? 16 A. Well, at the time I felt it was fair. That was 17 based on the evidence. Now, I feel 18 uncomfortable reading what I say about a robust 19 system, and so forth. 20 Q. More than uncomfortable, surely? 21 A. Oh yes, well, I don't have the full information, 22 but I feel -- I do feel very uncomfortable 23 reading that, yes. 24 Q. Now, you have, in answer to questions posed by 25 Counsel to the Inquiry and just recently, in 209 1 your -- one of your recent responses to me, you 2 acknowledge the possibility, don't you, that you 3 got caught up in the battle over Horizon's 4 reliability, for example, in the way in which 5 you were interacting with Mr Jenkins? 6 A. Well, I certainly -- that may be right. I got 7 caught up in what was a very stressful 8 disclosure exercise and, in a way, that's being 9 caught up in the battle. It wasn't on my part, 10 I hope, any idea to want to preserve Horizon 11 because, of course, I'm a self-employed 12 barrister. I'm not -- 13 But I was certainly caught up in the 14 pressures of the situation and, looking at it 15 now, I did some things that nowadays I wouldn't 16 do. I'm more experienced now than I was then 17 but I was pretty experienced at the time. 18 Q. I mean, essentially, you became embroiled in the 19 battle, and I'm not suggesting that you had any 20 stake in the battle, because you were 21 independent counsel, but you became embroiled in 22 it, didn't you? 23 A. I think it did affect me, yes. 24 Q. I mean, I suggest to you that, at times, you 25 failed to exercise detachment and objectivity 210 1 concerning your own witness, who was to become 2 an expert witness, at that. Do you accept that? 3 A. No, I think that is right, yes. 4 Q. So I don't take you to the statement of 5 6 October 2010 that you commented upon but you 6 will accept, don't you, that many of the changes 7 that you were suggesting were not out of 8 clarification or elucidation but they were 9 designed to insulate the prosecution case from 10 attack, weren't they? 11 A. They were designed to meet points raised by the 12 defence expert, which -- 13 Q. Which would be to insulate -- 14 A. Well, in a way, yes, that would be right. I saw 15 it, at the time, as clarifying issues. That 16 may -- I can look at that now and think that's 17 perhaps wishful thinking on my part. 18 Q. Well, I now want to come to the issue of 19 robustness. If your witness statement, 20 Mr Tatford, WITN09610100, could be put up on 21 screen, I want to concentrate on part of 22 paragraph 98, which is to be found at page 53 of 23 your witness statement, Mr Tatford. 24 A. Thank you. 25 Q. Thank you. You can see, in that paragraph: 211 1 "... I hope my speeches were fair -- they 2 are all set out in the transcripts, so others 3 can judge. I did not seek to hide behind the 4 mantra that Horizon was 'robust'. I argued that 5 point on the evidence. I did not suggest that 6 the system was infallible and I conceded that 7 all computer systems can have glitches, which is 8 a matter of common sense and human experience 9 ..." 10 May I ask you this, Mr Tatford: do you not 11 think that the prosecutorial decision not to 12 obtain the services of an independent forensic 13 IT expert for the prosecution ought to have 14 caused you to be highly cautious and 15 circumspect, in respect of all of your 16 submissions, whether to the court or the jury, 17 on the central issue of Horizon's reliability? 18 A. Well, it certainly had an impact that -- the way 19 we dealt with expert evidence in the case and, 20 I mean, if it is the case that there are 21 manifold weaknesses and problems with Horizon 22 that I wasn't aware of, then my words are very 23 hollow indeed. 24 Q. Can I take you to a transcript from your closing 25 speech, and this is POL00065708 at pages 23 to 212 1 24. Thank you. Pages 23 to 24. Just scrolling 2 down please, just scrolling down. Yes. 3 At letter G there, Mr Tatford: 4 "I conceded in my opening speech to you that 5 no computer system is infallible. There are 6 computer glitches with any system. Of course 7 there are. But Horizon is clearly a robust 8 system, used at the time we are concerned with 9 in 14,000 post offices. Mr Bayfield talked 10 about 14 million transactions a day. It has got 11 to work, has it not, otherwise the Post Office 12 would fall apart? So there may be glitches. 13 There may be serious glitches. That is 14 perfectly possible as a theoretical possibility, 15 but as a whole the system works and has been 16 shown in practice." 17 Now, Mr Tatford, very briefly, because this 18 has already been addressed by learned Counsel to 19 the Inquiry, if it hasn't happened on 14 million 20 occasions, then it cannot have happened on the 21 14 millionth and 1st. That is a version of the 22 prosecutor's fallacy, isn't it? 23 A. Well, I wasn't trying to seek to make that 24 argument. 25 Q. Do you think, though, that it could easily have 213 1 been misconstrued? The chances, for example, of 2 Horizon generating fictitious shortfalls are 3 very small because, as you've told the jury, it 4 works reliably in 14,000 offices with 14 million 5 daily transactions and, from there, it is not 6 difficult for a jury to understand your 7 submission that, therefore, Mrs Misra must be 8 guilty? 9 A. No, there is a danger of that and I'm actually 10 looking at my words, as well. I'm very 11 uncomfortable, actually, at the words 12 "theoretical possibility". I think that's 13 a word that I shouldn't have used. What I tried 14 to do, in my speech, was actually to say that 15 glitches are possible, and if -- but -- 16 Q. But then you would have offered no evidence. 17 A. Well, if I'd known that -- which may be the 18 case -- it's a matter, I think, for the Inquiry 19 to determine and they're matters that I don't 20 know -- but I rely to a great extent on 21 decisions that Mrs Misra made, things that were 22 said later, changes of the defence, and so 23 forth. I accept all of that doesn't amount to 24 a hill of beans if the prosecution case is based 25 on foundations of sand. 214 1 And if the reality is, as Debbie Stapel said 2 yesterday -- I've said that she may be mistaken 3 about something she remembers, I actually think 4 of her very highly, and was a very able lawyer, 5 and she was the person, for instance, that 6 explained the case of Carl Page to me. But her 7 reaction I found very powerful yesterday and 8 it's part of my continuing reflection on this. 9 When she said that document was dynamite, 10 well, I rather agreed with that and it caused me 11 considerable concern. I didn't -- I still don't 12 have the full context of that. I hope to find 13 out as the Inquiry goes along. 14 Q. I'm not suggesting you would be up to speed on 15 this, but it's the Horizon IT Issues judgment 16 and, in contradistinction to your submission, 17 which was a submission which was made to the 18 learned judge in that case, Mr Justice Fraser, 19 as was, he deprecated that approach and he 20 stated that the proper approach -- or to use his 21 exact words: 22 "The correct analytical approach is to 23 consider the branch activity for that branch for 24 that period, consider the evidence both for and 25 against (i) the existence of a bug and (ii) the 215 1 likely cause of the discrepancy, bearing in mind 2 both the burden and standard of proof, make 3 findings on the cause of the discrepancy and 4 then apply those findings." 5 So based on that, Mr Tatford, and bearing in 6 mind, of course, the burden and standard of 7 proof in a criminal trial, the correct question 8 for the jury was whether they could be sure that 9 Horizon generated the shortfall at West Byfleet 10 as a genuine loss of cash from the tills over 11 the indictment period or whether it was 12 an artifact. So it has to be analysed that the 13 jury have to be sure, on your case, that the 14 Horizon-generated shortfall reflected a genuine 15 loss of cash from the tills. You accept that? 16 A. Yes. 17 Q. If, based on all the evidence about the 18 existence of bugs, errors and defects, the 19 shortfalls were likely, or may have been, the 20 result of bugs, errors and defects, then the 21 right verdict would have been not guilty, would 22 it not? 23 A. Yes. 24 Q. Can I now move on to my final subject, which is 25 flaws obvious to the user. During your opening 216 1 and closing statements, as well as during 2 cross-examination of witnesses, you asserted 3 repeatedly that errors would be obvious to the 4 user. That isn't controversial, is it? You 5 remember saying that? 6 A. Well, what I meant by that -- I hope I've tried 7 to make clear -- is that the user is able, by 8 the Horizon printouts, to see where problems 9 arise. I wasn't seeking to show that one can 10 simply see the errors emerge in front of one 11 just by looking at the screen. I didn't seek to 12 make that point. If that's how it's understood, 13 then that would be wrong and, if I haven't made 14 that clear enough, then I was wrong. 15 Q. Could it have been that the theme that such 16 flaws would have been obvious to the user was 17 a strategy to convince the judge, on the 18 application, and the jury for the verdict, that 19 Mrs Misra should have been keenly aware of any 20 Horizon problems, that she should have been able 21 to discern and diagnose bugs, errors and 22 defects? 23 A. I wasn't trying to make that point. If it came 24 across that way, then I haven't made it clear 25 enough. All I was trying to make the point was 217 1 that, by the various printouts, it's possible to 2 determine where a loss is arising. That's the 3 point I was trying to make. From your repeated 4 questioning, it seems to me I obviously didn't 5 make that clearly enough and clarity is 6 important in prosecuting. 7 Q. Well, I'm grateful for your concession. Do you 8 also think that framing the issue in that way 9 was to reverse the burden of proof because, of 10 course, in law, it was the Post Office's duty, 11 prosecuting the case in the name of the Crown, 12 to prove that the system was working, to satisfy 13 the jury that they were sure that the system was 14 working. It was not for Mrs Misra to identify 15 when it may not have been? 16 A. But I wasn't trying to take it quite as far as 17 that. I was suggesting that Mrs Misra might be 18 in a position to say where problems might be 19 arising. I can see the danger in that, though. 20 I can see, by pushing it just a bit too far, the 21 danger you have alerted me to can arise and, if 22 I took it too far, then that's a mistake. 23 I tried not to do that but I can see the danger 24 potentially there. 25 Q. Do you recall -- and no need to put it up on 218 1 screen if you do recall it, but it's 2 POL00054346 -- this was your response to 3 Mr Hadrill's abuse of process. 4 A. Yes. 5 Q. "If, as the defence allege, there was 6 a continuing problem [this is your paragraph 2] 7 with the Horizon system at West Byfleet, 8 Mrs Misra should have been keenly aware of it at 9 the time it was occurring." 10 A. By that, I meant by losses occurring. 11 Q. I see. 12 A. All I was seeking to make the point, in that 13 argument, was simply to suggest it might be 14 a basis for a more -- for what I saw as more 15 focused disclosure requests. 16 Q. I see. I now want to go, in conclusion, to 17 an example or an extract, I should say, from 18 your closing speech, which is POL00065708. 19 While that is being put up on the screen, it 20 occurs to me that, of course, in view of your 21 last answer, that it would have been vitally 22 important that the summary of calls to the 23 Helpdesk were very, very accurately precised, if 24 they were going to be precised at all, because, 25 otherwise, again, the trial would proceed on 219 1 a false premise. You accept that? 2 A. Yes. 3 Q. So could we please go to the top of page 26. 4 The top of page 26: 5 "... but the point the Crown make is if 6 something is going wrong, the operator knows it, 7 that is the point, and Mrs Misra has given you 8 no evidence whatsoever of being aware of 9 a computer problem." 10 That would tend to have been contradicted by 11 the full logs to the Helpdesk, wouldn't it? 12 A. Yes. Would you mind, could we just scroll up to 13 the bottom of the previous page -- 14 Q. Of course. By all means. Bottom of page 25. 15 A. Yes, if we can scroll down to the next page, 16 please. I'm sorry. 17 Yes, I've got the context. I'm sorry, could 18 you repeat the question? It's my fault. I'm 19 sorry. 20 Q. Of course. The theme was the same: 21 "... if something is going wrong the 22 operator knows it, that is the point, and 23 Mrs Misra has given you no evidence whatsoever 24 of being aware of a computer problem." 25 That would tend to be contradicted, wouldn't 220 1 it, by the more full account of the calls to the 2 Helpdesk? 3 A. Yes, I think those calls, though -- the losses 4 they relate to may, I think, refer to the time 5 of the thefts from employees, rather than the 6 later computer problem. It's quite early in the 7 time period. 8 Q. I see. But returning to it in general, and this 9 is my final point, again -- 10 SIR WYN WILLIAMS: That's the third final point, 11 Mr Henry, so I'm going to hold you to it now. 12 MR HENRY: I'm very sorry, sir. I do apologise. 13 This is my final point and it's one sentence. 14 Based upon what you have submitted to the 15 jury there, Mr Tatford, and I'm grateful for 16 your assistance thus far: 17 "... if something is going wrong the 18 operator knows it, that is the point, and 19 Mrs Misra has given you no evidence whatsoever 20 of being aware of a computer problem." 21 You, of course, are now aware that there are 22 a number of bugs, errors and defects that were 23 not disseminated to the network of 24 subpostmasters and were withheld -- the 25 knowledge of them was withheld; you're aware of 221 1 that? 2 A. Yes. 3 Q. But do you again, on reflection, feel that you 4 framed the issue in a way that it inevitably 5 reversed the burden of proof? 6 A. Well, I think that the wording I use in that 7 passage is too strong. I agree with that. 8 MR HENRY: Mr Tatford, those are the questions 9 I ask. Thank you. 10 SIR WYN WILLIAMS: Is that it, Mr Beer? 11 MR BEER: Yes, it is, sir. 12 SIR WYN WILLIAMS: Well, I know that Mrs Misra is 13 present and the day has been about her case, 14 virtually exclusively, but certainly very 15 largely. So I hope, Mrs Misra, that you've 16 found today informative. 17 So far as you, Mr Tatford, are concerned, 18 I'm very grateful to you for a detailed witness 19 statement and for answering a great many 20 questions today. 21 So we'll now close today's session and 22 resume again at 10.00 tomorrow morning. 23 MR BEER: That's right, sir. 24 SIR WYN WILLIAMS: Thank you. 25 MR BEER: Thank you. 222 1 (4.33 pm) 2 (The case adjourned until 10.00 am 3 the following day) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 223 I N D E X WARWICK HENRY PATRICK TATFORD (sworn) .........1 Questioned by MR BEER .........................1 Questioned by MR HENRY ......................198 224