1 Thursday, 25 January 2024 2 (10.00 am) 3 MR BEER: Good morning, sir, can you see and hear us. 4 SIR WYN WILLIAMS: Yes, thank you very much. 5 MR BEER: May I call David Teale, please. 6 DAVID SUTHERLAND TEALE (sworn) 7 Questioned by MR BEER 8 MR BEER: Good morning, Mr Teale. 9 A. Morning. 10 Q. As you know, my name is Jason Beer and I ask questions 11 on behalf of the Inquiry. Can you give us your full 12 name, please? 13 A. David Sutherland Teale. 14 Q. Thank you very much for coming to give evidence to the 15 Inquiry today and thank you for the provision of 16 a witness statement addressing the questions that we 17 asked you. Can we look at that witness statement to 18 start with, please, it's WITN10550100. That will be 19 displayed on the screen and I think you have the hard 20 copy in front of you too. 21 I think there are four corrections that you wish to 22 make to your witness statement, the first of which is on 23 page 4. If we can turn to that, please, and four lines 24 in, do you see the words "a list of productions"? 25 A. Yes. 1 1 Q. Is there an amendment you would like to make to those 2 four words? 3 A. That to be deleted. 4 Q. Thank you. So we can understand the effect of that, 5 you're here talking about the material that you would 6 have received from the Post Office in the Procurator 7 Fiscal's office in Lochmaddy in early 2009 and you're 8 providing a list of the documents or species of 9 documents that you say you would have received, and 10 you're deleting from that list the list of productions? 11 A. That's right. 12 Q. Thank you. 13 Can we turn, please, to page 7, and the very first 14 line at the top. You're addressing the sentence that 15 was passed upon William Quarm, and you say that he was 16 sentenced to 150 hours community service and you say 17 "reduced from 2,000 hours" for a guilty plea. Should we 18 delete one of the zeros? 19 A. Correct. 20 Q. That's just a typo; correct? 21 A. Correct. 22 Q. Thank you. Do you see the third line starting "It would 23 have been difficult"? 24 A. Yes, I do. 25 Q. Then the ninth line, ending with the words "previous 2 1 years"; can you see that? 2 A. I do. 3 Q. I wonder whether they could be highlighted. Thank you. 4 Is there an amendment that you wish to make to all 5 of the words between the two highlights? 6 A. Deletion, please. 7 Q. You would like to delete those. You were saying in your 8 statement that: 9 "It would have been difficult, if not impossible, to 10 prove the actual amount embezzled [by Mr Quarm] given 11 that the Horizon audit depended largely on the bogus 12 figures [inputted by him]. If the case had given to 13 trial, [you] would have had to rely on evidence from 14 [his] admissions as to how much he considered he had 15 embezzled and the period over which he considered he had 16 been operating falsely and other evidence such as 17 average takings over previous years." 18 A. Yes. 19 Q. Why do you now wish to delete that? 20 A. On consideration, I just realised that that wasn't the 21 case. 22 Q. You'd previously thought that proof of the case at trial 23 was reliant on Mr Quarm's admissions? 24 A. That's right. 25 Q. What caused you to think that proof of the case at trial 3 1 was not reliant on Mr Quarm's admissions? 2 A. Just once I got into the -- into considering in more 3 depth, as I was mulling it over, since I first made this 4 statement in December, I realised that that was probably 5 not the situation. 6 Q. Okay, well, we'll come to what other evidence there was 7 to prove the amount alleged to have been embezzled by 8 Mr Quarm a little later. Then is the fourth amendment 9 that you wish to make on page 8, and that's 10 paragraph 19. You're here dealing with Mr Quarm's 11 interview; is that right? 12 A. That's right. 13 Q. You say the things that he said: 14 "... it is difficult to treat them as serious 15 challenges given that Mr Quarm admitted taking cash 16 coming into his post office branch ..." 17 Then the words: 18 "... equivalent of around £4,200 every week for 19 an unknown period but conservatively estimated to be 10 20 or 11 months, and without putting it through his till." 21 Do you wish to delete those words? 22 A. I do. 23 Q. Is that because you realised that, in fact, Mr Quarm did 24 not make such admissions in his interview? 25 A. That's effectively right. 4 1 SIR WYN WILLIAMS: So that I can be clear, there should now 2 be a full stop after "branch", is that it, and then the 3 rest of that sentence deleted? 4 A. That's right. 5 SIR WYN WILLIAMS: Thank you. 6 MR BEER: Is that because you re-read his interview and 7 realised that the admissions that you attributed to him 8 there he hadn't, in fact, made? 9 A. Effectively, yes. 10 Q. Thank you. 11 With those four amendments brought into account, are 12 the contents of the witness statement true to the best 13 of your knowledge and belief? 14 A. They are. 15 Q. Is your signature there on page 12 to attest to that 16 fact? 17 A. It is. 18 Q. Thank you very much. That can come down, the witness 19 statement. 20 Now, Mr Teale, you're the first Scottish prosecutor 21 that the Inquiry has heard from who has been involved in 22 the prosecution of a subpostmaster, where evidence 23 provided by the Post Office was the basis for the 24 prosecution. I want to ask you, therefore, some 25 questions about the approach that the Procurator Fiscal 5 1 Service and you took to such cases. 2 A. Indeed. 3 Q. I think you're no longer a Procurator Fiscal; is that 4 right? 5 A. That's right. 6 Q. That role ceased for you in June 2015; is that right? 7 A. That's correct, when I retired. 8 Q. But you remain a practising solicitor; is that right? 9 A. That is right. 10 Q. In terms of your background, you qualified as 11 a solicitor according to Scots Law in 1980? 12 A. Yes. 13 Q. You then went into private practice, is that right, but 14 then in 1982 you joined the Crown Office and Procurator 15 Fiscal Service as a Procurator Fiscal Depute? 16 A. That's correct. 17 Q. In 2000 you were appointed, is this right, Procurator 18 Fiscal for the Western Isles? 19 A. Yes. 20 Q. Does that include, within its jurisdiction, the Sheriff 21 Court District of Lochmaddy? 22 A. That's correct. 23 Q. Within that jurisdiction, was the Post Office owned and 24 operated by William Quarm situated? 25 A. It is. 6 1 Q. Can I turn, then, to your involvement in prosecutions 2 involving subpostmasters before the prosecution of 3 William Quarm. In your witness statement, there's no 4 need for it to be displayed, you say over the years you 5 would have received and considered many reports from the 6 Post Office regarding criminality by their workforce. 7 A. That's correct. 8 Q. You say that: 9 "I found their reports were straightforward and 10 I cannot recall any instances where there was any 11 suggestion that the information provided was misleading. 12 I cannot recall any other Post Office case considered by 13 me which relied on data from the Horizon system." 14 So are you referring there, to receiving and 15 considering many reports about the Post Office 16 workforce, to your many years' of experience as 17 a Procurator Fiscal Depute? 18 A. Yes. 19 Q. Was that in busy offices in Glasgow, for example? 20 A. Correct. 21 Q. And Greenock as well? 22 A. And Greenock. 23 Q. With that experience in mind, and also borrowing some of 24 your knowledge on some legal issues, can you help us on 25 these four topics: firstly, the law of corroboration in 7 1 criminal proceedings in Scotland. We've had described 2 to us -- the cross-reference is paragraph 4 of the 3 witness statement of Kenneth Donnelly, I think you would 4 know Mr Donnelly; is that right? 5 A. I do. 6 Q. He is presently the Deputy Crown Agent for Specialist 7 Casework at the Procurator Fiscal office? 8 A. (The witness nodded) 9 Q. He says: 10 "There must be evidence from at least two separate 11 sources (corroboration) to establish that a crime known 12 to the law of Scotland was committed and that the 13 accused was the perpetrator." 14 A. That's correct. 15 Q. Is that a fair summary? 16 A. Very fair. 17 Q. So for all of the period that we're looking at, say from 18 2000 onwards until your retirement in June 2015, was 19 that the position? 20 A. Yes. 21 Q. Would you, therefore, expect that to be something which 22 was addressed in the reports submitted to you by 23 Specialist Reporting Agencies, including reports from 24 the Post Office? 25 A. Yes. 8 1 Q. Because if that's the law, it needs to be confronted, 2 doesn't it, it needs to be addressed? 3 A. It does. 4 Q. Just on Specialist Reporting Agencies, is it right that 5 that's a term of art within Scotland: an SRA, 6 a Specialist Reporting Agency? 7 A. Yes. 8 Q. Are there a number of those? 9 A. Quite a number. 10 Q. I've seen a figure of 172, presently; does that sound 11 about right? 12 A. That wouldn't surprise me. 13 Q. One of those is the Post Office. 14 A. Correct. 15 Q. So if that's the evidence that satisfies the Scottish 16 law of corroboration that you would expect to be 17 addressed specifically in a report submitted to 18 a Procurator Fiscal, that would be something which you, 19 adds the Procurator Fiscal, would wish specifically to 20 address in your decision making? 21 A. Correct. 22 Q. So when you're deciding whether to commence criminal 23 proceedings against an individual, you'll want 24 specifically to address the issue of where is the 25 corroborative evidence? 9 1 A. Correct. 2 Q. Although I'm getting ahead of myself a bit here, I think 3 it's right that that issue was not addressed in the 4 report submitted to you in the case of William Quarm? 5 A. No, I think it was addressed. 6 Q. Head on, did it say, "We understand that there is 7 requirement for there to be corroborative evidence and 8 the at least two pieces of evidence that we rely on to 9 satisfy that test are as follows"? 10 A. I don't think it said that in these words but the body 11 of the report indicated that there were two sources of 12 evidence. 13 Q. Were there two sources of evidence? 14 A. From the reports, yes. 15 Q. Again, we're getting ahead of ourselves a bit but, just 16 at this point in time, can you identify what the two 17 sources of evidence were? 18 A. Yes, there was the audit, the evidence of the shortfall, 19 and -- 20 Q. What did that show? 21 A. That there was a shortfall of £40,000. 22 Q. Which crime did that show had been committed? 23 A. Altogether, the evidence was -- 24 Q. No, just that one: which crime did that show that that 25 had been committed, the fact that there is a shortfall? 10 1 A. Embezzlement. 2 Q. So, on its own, the fact that there's a shortfall is 3 evidence that there has been embezzlement? 4 A. No, maybe it would be easier if I just explain what 5 I took from the report. Of course, I was looking for 6 corroborated evidence, evidence from two sources, 7 pointing (a) to a crime having been committed and (b) 8 that it was the accused who was the perpetrator. Now, 9 the evidence for both of these came from the evidence 10 that an audit had disclosed a shortfall of £40,000, and 11 the second source of evidence was his admission that he 12 had been taking funds from the Post Office and using 13 them to prop up his retail business. 14 Q. How much had he taken and how? 15 A. He'd taken £40,000. 16 Q. He admitted to taking £40,000, did he, in your mind? 17 A. It would probably be easier to look at precisely what he 18 said, rather than -- 19 Q. Okay, we'll come you to the interview. 20 A. -- rather than taking it as a generality. 21 Q. But in your mind, there was an admission to taking 22 £40,000, correct? 23 A. No, the overall -- the audit had indicated that there 24 was a shortfall of £40,000. 25 Q. Now, am I right that none of the available documents 11 1 that you have record contemporaneously what the two 2 sources of evidence that you considered to exist to 3 amount to corroboration were? 4 A. No, I'm sorry, could you repeat that question? 5 Q. Yes, there's no contemporaneous document recording your 6 decision making on why this was a case that should go 7 for prosecution? 8 A. No, you mean my minutes, which I would have made on the 9 case file; is that what you're getting at? 10 Q. Yes. 11 A. No, there isn't, at least as far as I know. I haven't 12 been presented with any such documents. 13 Q. You mention minutes on a case file. At this time, would 14 this have been electronically or would it have been by 15 paper that you make a minute of your decision making? 16 A. As this date by paper. 17 Q. By paper? 18 A. This is 2008, we're talking about. 19 Q. So how much of your decision making would you reduce to 20 writing in a case like this? 21 A. Anything that I considered to be important in the 22 decision-making process. Sometimes it's perfectly 23 obvious and you don't have to say anything. 24 Q. So there would be nothing? 25 A. Well, I don't know whether there was anything or not -- 12 1 Q. No, no, no. In such a case where it was perfectly 2 obvious that you don't have to say anything, you would 3 literally just write nothing down? 4 A. You would just write "Proceed share(?) of summary" or 5 "Proceed by petition", or whatever. 6 Q. What about in a case like this, would you isolate the 7 evidence in the way you've just done, "There were two 8 pieces of evidence that amounted to corroboration here, 9 they are the shortfalls shown at audit plus the 10 admissions interview"; something like that? 11 A. Possibly something like that. 12 Q. But we should be able to, if those minutes still exist, 13 we should be able to find a record of your 14 contemporaneous thought process? 15 A. There might be something, this might -- it seemed to me 16 pretty obvious, on re-reading it in December of last 17 year, what the evidence was to proceed. So whether or 18 not I would have been equally satisfied in 2008, I just 19 don't know. 20 Q. Can we turn to the second issue I want to ask for your 21 assistance on, please, namely the test that a Procurator 22 Fiscal applies when deciding whether to commence 23 criminal proceedings against an individual or not. Is 24 it right that that's governed by a document called the 25 Crown Office and Procurator Fiscal Service Prosecution 13 1 Code or the "Prosecution Code" for short? 2 A. I don't know if there was a Prosecution Code in 2008. 3 Q. I think we have got one that starts in 2001 -- 4 A. Okay. 5 Q. -- the first edition of it. Was that a document that 6 you would have at your fingertips? 7 A. You mean physically or just know what it's about? 8 Q. Yes, either or both. 9 A. Yes, of course. 10 Q. Can we look at the one that has been provided to us, 11 WITN10510101. Thank you. You can see this was first 12 published on 1 May 2001 but it was updated last year in 13 July, and it's not possible to tell which parts have 14 been the subject of amendment between those two dates. 15 I'm not saying that this was in these precise terms 16 applicable when you made your decision in 2008 but 17 I just want to get your evidence, please, on the test 18 that Procurators Fiscal applied. 19 If we scroll down, please, and look at "Criteria for 20 decisions", thank you: 21 "In considering the action to be taken in relation 22 to reports of crime the prosecutor must take account of 23 both legal and public interest considerations." 24 Is that a familiar distinction to you? 25 A. Yes. 14 1 Q. So is it right that in Scotland, too, there were two 2 elements to the test? 3 A. That's correct. 4 Q. Then under the heading "Legal considerations": 5 "In considering cases the Procurator Fiscal must 6 decide whether the conduct complained of constitutes 7 a crime known to the law of Scotland and whether there 8 is any legal impediment to prosecution. For example, it 9 may be necessary to consider the effect of any delay", 10 then something about international law. 11 Then "Evidential considerations, Sufficiency of 12 evidence": 13 "The Procurator Fiscal must be satisfied that there 14 is sufficient admissible evidence to justify commencing 15 proceedings. 16 "In general, for there to be sufficient evidence 17 there must be corroboration, that is evidence from at 18 least two separate sources to establish the essential 19 facts of the case, ie 20 "that the crime was committed; and 21 "that the accused was the perpetrator." 22 Then we see reference to the burden and standard of 23 proof: 24 "The prosecution must prove these matters beyond 25 reasonable doubt." 15 1 Then there's a bit about the sources of evidence and 2 then, if we move on, please, we then see that the 3 prosecutor, under these next three headings, before we 4 get to "Public interest considerations", is directed to 5 consider admissibility, reliability, and credibility. 6 So "Admissibility": 7 "The laws of evidence determine whether a court can 8 consider certain types of evidence ... the prosecutor 9 will assess whether, having regard to the laws of 10 evidence, the court will allow the evidence to be 11 considered in the case." 12 Then "Reliability": 13 "Although there may be sufficient admissible 14 evidence to justify proceedings, consideration must also 15 be given to the reliability of that evidence. This 16 involves an assessment of the quality of the evidence." 17 Then "Credibility": 18 "As with reliability, the assessment of credibility 19 of evidence is ultimately a matter for the court. 20 However, there may be doubt about the credibility, or 21 truthfulness, of a witness's evidence", et cetera. 22 Are those three things -- admissibility, reliability 23 and credibility -- things that, when you were making 24 decisions as a Procurator Fiscal, you consistently 25 addressed? 16 1 A. Yes. 2 Q. On reliability, would you accept that, if your case is 3 founded on evidence that's produced by a computer, then 4 it's necessary for the prosecutor to consider the 5 reliability of the evidence produced by that computer? 6 A. Yes. 7 Q. Now, the document then turns to consider public interest 8 considerations, which I'm not going to address with you. 9 What the Prosecution Code does not do is describe the 10 test that a prosecutor must apply when deciding whether 11 to commence criminal proceedings or not; do you 12 understand? 13 It says the things you must address are evidential 14 sufficiency and public interest but it doesn't say what 15 the test is that a prosecutor must apply. What was the 16 test that the prosecutor must apply? 17 A. I don't know. I'm sorry, I just don't know what you're 18 saying, what you're asking me. 19 Q. Well, in England and Wales a prosecutor is directed, and 20 has been for the last two decades, to be satisfied that 21 there is a realistic prospect of a conviction, and the 22 Code in England says that a realistic prospect of 23 a conviction is an objective test and it explains that 24 realistic prospect of conviction means that a jury or 25 a bench of Magistrates, properly directed in accordance 17 1 with the law, will be more likely than not to convict 2 the defendant of the charge alleged. 3 So there's an explanation of the standard that must 4 be achieved in the prosecutor's mind in order to 5 commence criminal proceedings. 6 A. Well, that doesn't exist in that form in Scotland. 7 Q. What test was applied? 8 A. Public interest. 9 Q. Now, the public interest is addressed, separately in the 10 document, whether, for example, proceeding is in the 11 interest of the victim, the accused and the wider 12 community, and matters of that sort. I am asking about 13 the evidential sufficiency part of the test. What test 14 was applied? 15 A. Well, there isn't a test as such, as I understand it, 16 from what you're asking me. 17 Q. Well, what approach was taken, then? 18 A. Well, we look at the evidence, we look at the evidence, 19 is it admissible, is it reliable and is it credible? 20 Q. Overall, is there a compendious approach that you take 21 when you've done those things: I think there's enough 22 evidence to go ahead; I believe there's enough evidence 23 to go ahead; I guess there's enough evidence to go 24 ahead; I think it's more likely than not that the 25 accused will be committed; I'm fairly sure that that's 18 1 so; I'm certain that that's so. 2 Was there no fulcrum around which the issue turned? 3 A. No, you're very much guided by what the report tells you 4 and, on that, you assess the quality of the evidence and 5 whether there's sufficient evidence, sufficient 6 corroborated evidence, from two sources pointing to the 7 facts that the crime has been committed and committed by 8 the accused. 9 Q. What I'm trying to probe is: it's correct, then, that in 10 Scotland there was no test that was applied across the 11 Procurator Fiscal Service, so far as you are aware, that 12 ensured consistency of decision making, so that everyone 13 had a datum point past which the evidence must pass, in 14 the prosecutor's mind, before proceedings were 15 commenced? 16 A. No. 17 Q. What test in your own mind did you apply: I think this 18 case will succeed; I believe this case will succeed; 19 I suspect this case will succeed; I'm pretty convinced 20 this case will succeed? 21 A. No, likelihood of success doesn't come into the decision 22 of whether to prosecute or not. 23 Q. That was an irrelevant consideration, how likely it was 24 that the evidence was sufficient to establish guilt? 25 A. There's some cases that you would take up that you would 19 1 think -- you wouldn't say, "I'm bound to succeed in this 2 case" or "I'm doubtful whether I'll succeed so I won't 3 take it up", if they're sufficient and it's in the 4 public interest to prosecute then, by and large, you 5 would take that decision to prosecute. 6 Q. Very well. 7 Thirdly, can I ask you about computer evidence in 8 Scotland. What was the law regulating the admissibility 9 of evidence produced by a computer before 2015, the year 10 that you left? 11 A. I don't know of any such evidence. 12 Q. You don't know to of any such law? 13 A. Law, I beg your pardon. 14 Q. Is that because you never addressed your mind to it -- 15 A. Um -- 16 Q. -- or that you know positively that there isn't such 17 a law? 18 A. It's because I haven't addressed my mind to it. 19 Q. You've told us that, in a number of cases, you 20 considered files by the Post Office as a specialist 21 prosecuting agency? 22 A. Yes. 23 Q. Did a number of those rely on computer evidence? 24 A. I don't think -- I can't think of any that did. 25 Q. Other than this one? 20 1 A. Other than this one. 2 Q. What were the other cases about? 3 A. Theft, theft of mail. 4 Q. So would they be Royal Mail Group cases, so to do with 5 the post rather than the Post Office? 6 A. I suppose, as you make that distinction, yes. 7 Q. I think you were going to go on and describe some other 8 species of case? 9 A. I can't -- I can tell you that I can't remember any 10 other case which positively relied on computer evidence. 11 I started, in Lochmaddy, or the Western Isles, in 2000, 12 and I certainly didn't receive any Post Office cases 13 between 2000 and 2008. 14 Q. You referred in your statement to receiving and 15 considering many reports from the Post Office regarding 16 criminality by their workforce -- 17 A. Yes. 18 Q. -- which is in paragraph 6. What were the other cases 19 of criminality by the Post Office workforce? 20 A. Well, as I say, theft of the mail came into it. 21 Q. So was that by postmen, as opposed to subpostmasters? 22 A. Correct. I can't remember any other postmaster that 23 I was involved in the prosecution. 24 Q. Did you, outside of the cases involving prosecution of 25 subpostmasters, prosecute any other cases that relied on 21 1 evidence produced by a computer? 2 A. I can't think of anything. 3 Q. So that would have been from 1982 until 2015, no 4 computer evidence in any of your cases? 5 A. Well, all I'm saying is that I can't remember whether 6 there were any or not. I'm not saying that there 7 wasn't. 8 Q. I mean, in that 33-year period it's likely that there 9 were some, weren't there? 10 A. I don't know. 11 Q. You don't think that there would have been, in a 33-year 12 period, a case involving computer evidence? 13 A. Listen, I can't remember whether there were any cases 14 involving computer evidence or not. 15 Q. But, in any event, in that 33-year period, you can't 16 recall ever checking what the law was on admissibility 17 of evidence produced by a computer in Scotland? 18 A. No. 19 Q. Can I turn to the fourth topic, then: the duty of 20 disclosure. What's your current understanding -- and 21 obviously we're talking now, but it would have applied 22 to when you were a Procurator Fiscal -- of the 23 Procurator Fiscal's duty of disclosure or revelation? 24 A. That everything must be -- that everything that 25 a Procurator Fiscal receives must be transmitted, must 22 1 be revealed to the defence. 2 Q. Do you mean that, that everything that a Procurator 3 Fiscal receives must be transmitted? 4 A. Pretty well everything. I'm being broad but, yes, broad 5 terms. 6 Q. What's the exclusion, then, that isn't within the 7 "pretty well everything"? 8 A. I suppose, if there was something that the police 9 provided that was deemed -- 10 Q. Sensitive? 11 A. Correct. 12 Q. So public interest immunity material? 13 A. Correct. 14 Q. Can you remember -- appreciating it's eight years or so 15 back since you left the PF -- can you remember the test, 16 the approach to disclosure that was the law in Scotland? 17 A. No, I think things changed in 2010. I think the 2010 18 Act provided that there was effectively going to be far 19 greater disclosure than there had hitherto been. It was 20 closely regulated following that. 21 Q. Well, if I suggested to you that, for the entirety of 22 the period we're looked at, say 2000 until after the 23 prosecution of William Quarm, there was a duty to review 24 all of the evidence and information that the Procurator 25 Fiscal had received, would that be right? 23 1 A. Oh yes, absolutely it would. 2 Q. And that you would have to reveal/disclose information, 3 even if it would materially undermine or weaken the 4 evidence led by the prosecution -- 5 A. Of course. 6 Q. -- and if it would materially strengthen the accused 7 case? 8 A. Equally. 9 Q. How did the Procurator Fiscal, in a case involving 10 a Specialist Reporting Agency, go about ensuring that 11 that legal duty was discharged? 12 A. Well, they have a duty, when they report a case, to 13 ensure that they're disclosing to the Fiscal everything 14 that should be disclosed. 15 Q. So you're dealing with the report stage at that point; 16 is that right? 17 A. Well, no, I'm dealing with the case as a whole, yes. 18 Q. Okay. We're going to come on, in a moment, to the 19 process by which cases were reported from Specialist 20 Reporting Agencies and then prosecuted, and then it 21 seems that there are essentially two stages: one is the 22 submission of a report; and then the documents come 23 later -- 24 A. That's right. 25 Q. -- in stage 2. Is that a fair, very high-level summary? 24 1 A. That's fair. 2 Q. At the first stage, that's when the decision to 3 prosecute is made? 4 A. Yes. 5 Q. So that's taken -- we're going to come on to this in 6 more detail in a moment -- not on the basis of the 7 Procurator Fiscal looking at the documents; he or she is 8 looking at a report? 9 A. Correct. 10 Q. So looking at the Investigator's summary of the 11 evidence? 12 A. Correct. 13 Q. At that stage, did the Specialist Reporting Agency owe 14 a duty to reveal to the PF material of the kind that 15 we're talking about -- 16 A. Yes. 17 Q. -- ie material that undermined the proposed 18 prosecution's case or may assist the proposed defendant? 19 A. Yes. 20 Q. So that was something that has to be in the report? 21 A. Yes. 22 Q. Then when it came to providing documents to the 23 Procurator Fiscal at the second stage, the later stage, 24 again, was that duty of disclosure one that applied to 25 the Specialist Reporting Agency at that stage too? 25 1 A. Of course. 2 Q. So it was a continuing duty throughout the life of the 3 prosecution? 4 A. Correct, and even after your stage 2, throughout the 5 life of the case. 6 Q. Yes. 7 A. That duty -- 8 Q. So right up until trial. I'm not going to come at the 9 moment to duties post-conviction. 10 A. Okay. 11 Q. How, in the report stage, was that duty of disclosure, 12 as a matter of practice, discharged? 13 A. It was -- the reporting agency was under a duty. 14 Q. That's a restatement of the existence of the duty. So 15 to give you an example, in England and Wales there are 16 a series of forms that the police service have to fill 17 out, and one of them is specifically in relation to this 18 issue. Was there an equivalent in Scotland -- 19 A. Prior to 2010, no, as far as I can remember. 20 Q. -- ie a part of the report or a separate document given 21 over to the identification of material that may 22 undermine the proposed prosecution case or advance that 23 of the proposed defendant? 24 A. No. 25 Q. So, in the report you got, there wasn't a box, 26 1 a section, an area of the report that forced the 2 Specialist Reporting Agency to address that? 3 A. No. 4 Q. Thank you. Can we look, please, at the relationship 5 with the Post Office. I just want to try to tap into 6 your long experience as a Procurator Fiscal to hear 7 about the way in which the Post Office and the 8 Procurator Fiscal interacted when the Post Office was 9 acting as a Specialist Reporting Agency. Now, we've 10 been told by Kenneth Donnelly in this witness statement 11 that the Crown Office and Procurator Fiscal Service has 12 been unable to identify any document at all issued by 13 the Procurator Fiscal to the Post Office about 14 prosecutions before the 5 September 2013. Are you aware 15 of any document, policy, a protocol, something written 16 down, by which each organisation set out the 17 expectations of the other? 18 A. No. 19 Q. Mr Donnelly has told us that no specific internal 20 guidance was issued before 2013 that's now been 21 identified advising how prosecutors were to assess 22 reports and evidence submitted to them by the Post 23 Office. Again, does that accord with your recollection? 24 A. Yes, it does. 25 Q. So for the three decades or so that you were doing this 27 1 work, nothing was ever written down as to how the 2 Procurator Fiscal is going to address proposed 3 prosecutions by the Post Office? 4 A. No. 5 Q. Now, as we've just discussed, I think it's right that, 6 when the Post Office Investigator wrote a report to you, 7 I think that was known as a Standard Prosecution Report; 8 is that right? 9 A. Yes. 10 Q. An SPR. I think after 2006, they were submitted via 11 a web portal; is that right? 12 A. Yes. 13 Q. You've explained that that would not attach the witness 14 statements to it? 15 A. It may have but, by and large, not. 16 Q. It wouldn't attach the exhibits or the productions to 17 it? 18 A. No. 19 Q. So your decision was based solely on what the 20 Investigator chose to reveal in the report? 21 A. Correct. 22 Q. Did, to your mind, the Investigator have a duty of 23 candour to you, in the same way as in England and Wales 24 when one lays an information before a Magistrates Court 25 seeking a summons, there's such a duty of candour? 28 1 A. Of course. 2 Q. In other words, they owed a heightened responsibility to 3 tell you of anything adverse to their case? 4 A. Of course. 5 Q. So that would ensure, would it, if discharged, that your 6 decision was made in the interests of justice, rather 7 than just the interests of, in this case, the Post 8 Office? 9 A. Correct. 10 Q. What safeguards were in place to ensure that the 11 Procurator Fiscal was getting the full picture from the 12 Investigating Officer in the report? 13 A. I don't know if there was -- if there were any 14 safeguards. It was understood by the reporting agency 15 that they had to have a duty of candour. 16 Q. They may not summarise all of the evidence, mightn't 17 they? 18 A. That's a possibility that they might not, yes. 19 Q. They might missummarise the evidence? 20 A. Correct. 21 Q. They might not fully summarise what an exhibit or the 22 exhibits showed? 23 A. Correct. 24 Q. They might missummarise what an exhibit showed? 25 A. Correct. 29 1 Q. They may not summarise what happened in the interview? 2 A. Correct. Properly, yes. 3 Q. Sorry? 4 A. They may not properly summarise what happened -- 5 Q. Yes. 6 A. -- in the interview, yes. 7 Q. Ie getting over to you the full nuances of what happened 8 in an interview? 9 A. If there were vital nuances, correct. 10 Q. Yes. You wouldn't have any means of knowing that? 11 A. At that early stage, no. 12 Q. So you would have to take it on trust that everything 13 was being done correctly by all Investigators in all 14 cases? 15 A. At that stage of report, yes. 16 Q. Were the Post Office cases directed within the 17 Procurator Fiscal Service to one specific team to 18 consider? 19 A. Not in the sort of offices that I worked in, which are 20 remote and manned really just by me. 21 Q. So they weren't all directed to a central office; they 22 were spread across whichever jurisdiction the Procurator 23 Fiscal covered, according to where the branch was 24 situated? 25 A. Yes. 30 1 Q. Okay. So there wasn't a process of allocation, that 2 just naturally followed jurisdiction; is that right? 3 A. Correct. 4 Q. So there wouldn't have been, is this right, any sort of 5 cross-sharing of information within the Procurator 6 Fiscal about issues or problems that the Post Office 7 cases may have presented? 8 A. No. 9 Q. Do you recall taking cases involving subpostmasters 10 before the introduction of the Horizon computer system 11 in 2000? 12 A. No, I can't recall. 13 Q. I think you told us that the only one that you took 14 post-2000 was this one: William Quarm? 15 A. Correct. 16 Q. How would you describe the Procurator Fiscal's 17 relationship with the Post Office when it was acting as 18 a Specialist Reporting Agency, so far as you could see 19 from your, as you've said, quite remote jurisdiction? 20 A. Yeah, it was fine. 21 Q. Would you take any steps to interrogate the suggestions 22 and findings presented to you in a Post Office 23 Investigator's report? 24 A. You mean the SPR? 25 Q. Yes. 31 1 A. I could, yes. 2 Q. Would you ordinarily engage with the Investigation 3 Manager at the Post Office in a dialogue? This is 4 pre-decision to prosecute. 5 A. Yes, I could and would, if it was necessary. 6 Q. What might make it necessary? 7 A. Lack of clarity. 8 Q. Would you typically go back with questions or ask for 9 further enquiries to be conducted? 10 A. When you say "typically", I've said that I hadn't had 11 any cases between 2000 and 2008, so typically is quite 12 a difficult question to answer. 13 Q. What about the cases involving the post, rather than 14 subpostmasters? 15 A. They're in the '90s, '80s, I can't remember. 16 Q. Did you ever engage with anyone other than the 17 Investigation Manager within the Post Office? 18 A. Not that I can remember. 19 Q. Taking your evidence on this as a whole, would it be 20 fair to say that you worked on an assumption that the 21 Post Office Investigator had pursued all reasonable 22 lines of inquiry, including those that point away from 23 the guilt of the accused and had fully and fairly 24 summarised all of the witness and exhibit evidence, 25 documentary evidence, in their report? 32 1 A. Yes, of course. 2 Q. You took that on trust? 3 A. Yes. 4 Q. Within the last couple of weeks, Mr Donnelly has made 5 a public statement on behalf of the Procurator Fiscal 6 Service in relation to the Horizon cases that were 7 prosecuted in Scotland, and he said that the estimation 8 of the service is that up to 100 cases involving 9 Scotland may be affected and that that is a lower number 10 than in England and Wales, due to the Procurator 11 Fiscal's policy decisions made in response to awareness 12 of Horizon system issues. 13 Before 2013, were you aware of any -- what he 14 describes as Procurator Fiscal policy decisions made in 15 response to awareness of Horizon system issues? 16 A. No. 17 Q. When did you first learn of possible issues or 18 challenges to the accuracy of Horizon data? 19 A. I can't recall, I'm afraid. 20 Q. Can you remember how you learned it? 21 A. Equally, I can't recall. 22 Q. Was it before or after you left the service in June 23 2015? 24 A. I can't recall. 25 Q. Were there communications within the Procurator Fiscal 33 1 Service before you left in June 2015 in relation to the 2 accuracy and reliability of Horizon data? 3 A. Well, I personally can't recall. That's not to say that 4 there weren't. I know that the Lord Advocate addressed 5 Scottish Parliament recently on 16 January and I think 6 she said in that that Procurator Fiscals were advised by 7 Crown Office to desist from prosecutions. 8 Q. In 2015? 9 A. I can't remember the date -- 10 Q. Yes, we'll come to that in a moment, I'll give you a bit 11 of detail to help on that. But, at the moment, from 12 your memory, can you recall whether any announcement was 13 made before you left in June 2015 -- 14 A. I can't remember. 15 Q. -- by the service to all Procurator Fiscal Deputes, for 16 example making them aware of possible issues with the 17 reliability of Horizon data? 18 A. Well, I can't remember. 19 Q. What about the other way round? Were you ever asked by 20 the Service of your experience of reviewing cases? It 21 would have been limited, I think, to Mr Quarm's. 22 A. No. 23 Q. Can we look then, please, at WITN10510100. This is 24 Mr Donnelly's statement to the Inquiry, the relevant 25 parts of which were read into the Inquiry record 34 1 earlier. I'm just going to use this as a basis for 2 asking you some questions about these issues rather than 3 what the Lord Advocate said to the Scottish Parliament 4 on 16 January. 5 If we can go to page 13, please, and paragraph 43. 6 I should say that this is a statement made on behalf of 7 the Service, the Procurator Fiscal Service. 8 Mr Donnelly, on behalf of the service, says that: 9 "Between 2000 and 2013, [the Procurator Fiscal 10 Service] was not institutionally aware of the bugs and 11 errors in the [Post Office Limited] Horizon ... system 12 that significantly impacted the reliability of evidence 13 submitted by the Post Office." 14 Then paragraph 44, he says: 15 "On 14 May ..." 16 At that time, 14 May 2013, you would still be 17 employed; is that right? 18 A. Yes. 19 Q. "... [Post Office], via their Scottish agents, BTO 20 Solicitors, contacted [the Procurator Fiscal Service] to 21 request a discussion about issues with the Horizon 22 Online system ... On 29 July 2013, solicitors for [the 23 Post Office] explained to [the Procurator Fiscal 24 Service] that as a result of the 'Second Sight' and 25 'Helen Rose' reports, [Post Office Limited] had 35 1 instructed their ... solicitors, Cartwright King, to 2 carry out a review of all cases reported against 3 subpostmasters/mistresses, dating from the rollout of 4 Horizon Online in January 2010. In cases where an 5 [subpostmaster] had raised an issue with either Horizon 6 Online or their training of the system, both the 'Second 7 Sight' and 'Helen Rose' reports were being disclosed to 8 the defence by [Post Office Limited]. BTO then advised 9 [the Procurator Fiscal Service] that it would be 10 reviewing all the Scottish cases that could be affected 11 by the issues identified in these two reports. On 12 9 August 2013, [the Procurator Fiscal Service] Policy 13 Division made Senior [Procurator Fiscal Service] 14 officials aware of the developments and asked that 15 information regarding the issues with Horizon Online be 16 passed to prosecutors dealing with ongoing reported 17 cases." 18 So, in summary, Mr Donnelly is telling us that, in 19 2013, Post Office solicitors told the Procurator Fiscal 20 Service about some challenges around the Horizon 21 evidence, yes? 22 A. Yes. 23 Q. You were not, I think, present in any of these meetings. 24 Were you told about the fact that they were taking place 25 or the issues that came out of them? 36 1 A. Not that I recall, no. 2 Q. Were you told about the Second Sight review -- 3 A. No, not that I recall. 4 Q. -- and the Helen Rose report? 5 A. No. 6 Q. The last sentence, "[The] Policy Division made Senior 7 ... officials aware of the developments and asked that 8 information regarding issues with Horizon Online be 9 passed to prosecutors dealing with ongoing Post Office 10 reported cases"; did that happen to you? 11 A. I can't recall. 12 Q. Okay. Were you, in fact, in 2013 dealing with 13 an ongoing Post Office case or not? 14 A. No. 15 Q. You weren't? Okay. Were you aware of the instruction 16 of BTO Solicitors in 2013? 17 A. No. 18 Q. Can we move on, please, to paragraph 45. If we just 19 scroll down, we're moving to later in the year, in 2013: 20 "On 5 September ... a meeting took place between 21 [Post Office], BTO Solicitors [that's the Post Office's 22 Scottish solicitors], Cartwright King [that's their 23 solicitors for England and Wales] and Crown Office 24 Policy Division officials at the Crown Office in 25 Edinburgh. Cartwright King senior counsel, Simon 37 1 Clarke, was in attendance. At the meeting BTO 2 Solicitors explained that it had carried out a review of 3 all live Scottish cases and had determined that the 4 Horizon system defects identified in the 'Second Sight' 5 and 'Helen Rose' reports did not play a part in any live 6 Scottish cases save for one. BTO's review processes 7 assessed cases as either 'Type A' or 'Type B'; 'Type A' 8 ... in which Horizon had provided the information as to 9 wrongdoing but was not the provider of primary evidence. 10 In almost all of these cases the [subpostmaster] had 11 admitted to the taking of monies belonging to [the Post 12 Office] for their own unauthorised purposes. 'Type B' 13 ... where Horizon or the training of its use had been 14 raised by the [subpostmaster]. Cartwright King and BTO 15 Solicitors advised that only 'Type B' cases were cases 16 which, in their view, required disclosure of [those two 17 reports]. BTO's review concluded that all but one live 18 Scottish case was 'Type A' and that all concluded cases 19 were 'Type A' cases which did not necessitate further 20 review or disclosure." 21 Was that communicated to you, that this distinction 22 between cases existed, that they were to be treated 23 differently? 24 A. Not that I can recall, no. 25 Q. You didn't have a case on your books at the time? 38 1 A. Correct. 2 Q. You can't recall any memorandum or edict coming out from 3 the centre about the treatment of a Post Office case, if 4 one was to land on your desk? 5 A. No. 6 Q. Okay. Were you equally asked to provide any details of 7 all cases which you had as ongoing? 8 A. No, I don't think so. 9 Q. If we move on to paragraph 47, please. 10 "[Post Office Limited] advised [the Procurator 11 Fiscal Service] that a full examination of the Horizon 12 system would be undertaken and would be completed within 13 6 to 8 months." 14 I take it that kind of information wasn't fed down 15 to you either? 16 A. No. 17 Q. Paragraph 48: 18 "In the light of these revelations, an instruction 19 was thereafter circulated within [the Procurator Fiscal 20 Service] for prosecutors to consider [Post Office] 21 reported cases on their facts and circumstances in 22 determining whether they should be adjourned pending the 23 outcome of [Post Office's] review. [The Procurator 24 Fiscal Service] did not terminate all Scottish [Post 25 Office] cases." 39 1 Can you remember that kind of instruction or 2 memorandum coming out? 3 A. No, I can't. 4 Q. Paragraph 50: 5 "Ultimately, it is understood that [Post Office] did 6 not commission a second report [as had been discussed]. 7 [Post Office] subsequently advised [the Procurator 8 Fiscal Service] that despite consulting with academics, 9 a further interrogation of the Horizon Online system was 10 not possible." 11 Moving on to paragraph 51, please. 6 October, there 12 was a meeting. By then you'd left; is that right? 13 A. Yes. 14 Q. So 6 October, you had left the service by then. I'm not 15 going to ask you about anything there. 16 It seems that, up until the point you left, from 17 when -- the first date that this statement talks about 18 a revelation occurring in May 2013 -- there was a form 19 of ongoing dialogue between the Post Office and its 20 various solicitors, on the one hand, and the Procurator 21 Fiscal Service, on the other. Was any of that revealed 22 to you as a Procurator Fiscal? 23 A. No. 24 Q. As I've said, you weren't asked to make a return to 25 establish whether or not you were prosecuting any cases? 40 1 A. Not that I -- 2 Q. In fact, you weren't. 3 In fact, you weren't prosecuting any such cases 4 then? 5 A. Correct. 6 Q. Okay. The system that was, by then, in operation, 7 a web-based portal, as I've described it, for submission 8 of reports, I think that had, is it right, a unique 9 identifier for each of the Specialist Reporting 10 Agencies? 11 A. Yes. 12 Q. Would it be possible for somebody at the centre, as I'm 13 calling them, ie in the Procurator Fiscal Service, to 14 identify how many cases there were that were being put 15 before Procurators Fiscal by the Post Office? 16 A. I can't answer that question. I don't -- 17 Q. I'm just trying to understand whether it required 18 positive action by the centre to come out to each of the 19 Procurators Fiscal to find out whether you had a case on 20 your books or whether they could tell from the computer? 21 A. I don't know. 22 Q. You don't know. Okay, thank you. 23 Can we turn, please, to the prosecution of William 24 Quarm. That can come down from the screen, that witness 25 statement. 41 1 I think overall in your witness statement -- would 2 this be fair -- you seek to convey the view that the 3 prosecution of Mr Quarm was carried out entirely in 4 accordance with the applicable law and practice in 5 Scotland and raised no concerns for you whatsoever? 6 A. That's correct. 7 Q. Does that remain the case? 8 A. It does. 9 Q. Can we look, please, at your witness statement at 10 paragraph 11, which is on page 4. If we scroll down, 11 it's at the foot of the page. You say: 12 "It goes almost without saying that the Procurator 13 Fiscal will inevitably rely on the accuracy of any such 14 report ..." 15 There we're dealing with the report submitted by the 16 Specialist Reporting Agency to the Procurator Fiscal: 17 "... inevitably rely on the accuracy of any such 18 report on which to base his decision and it is well 19 accepted that he is entitled to rely entirely and 20 absolutely on its accuracy for justification of any 21 consequent actions taken by him." 22 So that is reflection, I think, of the evidence 23 you've given to us already about total and utter 24 reliance on the Post Office Investigator. 25 Does that mean that the level of scrutiny that the 42 1 Procurator Fiscal could, in practice, apply at the point 2 of deciding whether to prosecute was somewhat lacking? 3 A. I wouldn't go as far as that. It's certainly got the 4 potential for problems arising, if there is lack of 5 candour. 6 Q. But in England and Wales, for example, police officers 7 produce a summary of the evidence to a prosecutor on 8 a document called an MG5, and many, many prosecutors, 9 indeed members of the Bar as well, would say, and indeed 10 are taught, "Don't rely in what a police officer says 11 the summary of the evidence is. Go and read the 12 evidence. Look at the witness statements. Read the 13 exhibits. Read the documents. See for yourself what 14 the evidence actually shows. Not rely on what somebody 15 who might have a vested interest in presenting a rosy 16 picture might say". That was an impossibility for you, 17 at the point of prosecution? 18 A. At the point of raising the prosecution, it's not 19 an impossibility because, if there was some doubt about 20 any aspect, you would, of course, go back to the 21 reporting officer and ask for clarification. 22 Q. But that's -- only if the way they had written the 23 document -- 24 A. I beg your pardon? 25 Q. That would any be if the way they had written the 43 1 document raised an issue. 2 A. Well, no, it might be apparent by virtue of a lack of 3 saying something. 4 Q. You continue: 5 "If there were ever any concern by a reporting 6 officer in any agency whether police, DWP, SSPCA 7 [I think that's Scottish Society for the Prevention of 8 Cruelty to Animals] or Post Office that any part of 9 their report was open to doubt then that should be 10 brought to the attention of the Procurator Fiscal in the 11 body of the report." 12 Is that the safety net, then? Is that what you're 13 describing there? 14 A. Yes. 15 Q. So have I understood this correctly, that it places 16 responsibility on the author of a document to identify 17 anything in his or her document, if there is anything in 18 that document, that they're writing isn't accurate or 19 open to doubt? 20 A. They should have, they should make the Fiscal aware, 21 yes. 22 Q. Are they the best person in the world to identify 23 whether what they're writing might be inaccurate? 24 A. Well, I can't answer that, but that's what happened. 25 Q. You continue: 44 1 "If, in this case, had there been any doubt as to 2 the accuracy of the data produced by Horizon known to 3 the reporting officer, then, of course, that should have 4 been made very clear since it would have seriously 5 affected the decision made by the Procurator Fiscal." 6 Can I understand what you're saying there? It 7 appears to be that doubt as to the accuracy of the data 8 produced by Horizon had to be shown before the accuracy 9 of the data produced by Horizon needed to be checked? 10 A. Give me that again, please? 11 Q. Yes. Is what you're saying there that doubt as to the 12 accuracy of the data produced by Horizon had to be shown 13 before the accuracy of the data produced by Horizon had 14 to be checked? 15 A. No, I didn't mean that. 16 Q. Okay, what did you mean? 17 A. I meant that, if the reporting officer had known that 18 there was some doubt, generally, about the accuracy of 19 the Horizon system, then that should have been -- the 20 sort of doubt that came to light later on. 21 Q. I see. If you were relying on data produced by Horizon, 22 or a document which is made up of data produced by 23 Horizon, or an analysis which relies on documents 24 produced on the back of data produced by Horizon, like 25 an audit, to prove that a loss had occurred, to prove 45 1 that certain transactions had been conducted by 2 a subpostmaster, wouldn't you have to establish the 3 accuracy and reliability of those data, in any event? 4 A. Well, at what stage are you talking about? Are you 5 talking about the reporting stage? 6 Q. Yes. Remembering the Prosecution Code, which says, in 7 deciding whether to prosecute, you must have regard to 8 admissibility, reliability, and credibility. On 9 reliability, if you're relying on data produced by 10 a computer to prove a loss, to prove transactions, don't 11 you have to establish the reliability of those data 12 first? 13 A. Well, I think you're entitled to expect that the 14 reporting officer will have satisfied themselves as to 15 the reliability, in the same way that you accept the 16 evidence from a forensic science laboratory, that their 17 DNA analysis is accurate and hasn't been tainted, in the 18 same way that you expect a police officer who's 19 operating a speed gun to be satisfied that it's 20 operating accurately. There are certain things that, at 21 that stage, you simply, almost as a matter of course, 22 accept. 23 Q. So you would proceed on the basis of an assumption that 24 the computer was operating properly? 25 A. Yes. 46 1 Q. But if somebody, a suspect, the defendant, had said the 2 system is not working properly, would that be sufficient 3 to trigger what you speak about in paragraph 11? 4 A. It would certainly trigger concerns in my mind. 5 Q. You go on later in your witness statement to say that no 6 Horizon ARQ data was sought in this case? 7 A. I didn't seek it. 8 Q. Yes, I mean, I think what you say, this is paragraph 24: 9 "I have been asked whether any Horizon data and in 10 particular ARQ logs was requested from Fujitsu in this 11 case. No Horizon data was requested from Fujitsu." 12 A. By me, no. 13 Q. Or by anyone, so far as you're aware? 14 A. Well, I'm not aware of that, by me. 15 Q. All right, have you seen any positive evidence, even 16 now, that Horizon ARQ data was sought by anyone? 17 A. No, I haven't seen any such evidence. 18 Q. Okay. 19 A. But that's not to say that there hasn't been. I just 20 haven't seen it. 21 Q. Well, we've heard from Mr Daily and Mr Grant, the 22 Investigators, and they've told us from your chair that 23 no such data was sought in this case. 24 A. That's fine. 25 Q. So let's work on the basis that no ARQ data was sought. 47 1 A. All right. 2 Q. Were you aware of the facility to ask for ARQ data? 3 A. No. 4 Q. Even if you didn't know that it was called ARQ data, 5 were you aware of the facility to ask for information, 6 material evidence, to establish to some extent whether 7 transactions conducted in a branch were attributable to 8 a subpostmaster? 9 A. Sorry, go back to the beginning of that question. 10 Q. Were you aware, when you were prosecuting this case, of 11 the facility to ask for information, for evidence, that 12 would establish to some extent whether transactions 13 conducted in a branch were attributable to the 14 subpostmaster? 15 A. No, I wasn't aware as such but I was aware that, if 16 I had need to find that information, I would have asked 17 the Investigating Officer. 18 Q. What about this: were you aware of a facility to find 19 out information, to get data, to see whether any system 20 faults had occurred that were material to the 21 transactions that had been carried out or the process of 22 balancing? 23 A. No. 24 Q. Were you aware of something called the Horizon Helpdesk? 25 A. No. 48 1 Q. So I think it follows that you weren't aware of the 2 facility to ask for Horizon Helpdesk records? 3 A. That is correct. 4 Q. Similarly, a body called the National Business Support 5 Centre, the NBSC, were you aware of that when you were 6 prosecuting this case -- 7 A. No. 8 Q. -- and, therefore, its records about issues that may 9 have been phoned in by a subpostmaster concerning 10 Horizon or balancing? 11 A. No. 12 Q. Were you aware, was it revealed to you, a species of 13 documents called PinICLs or PEAKs -- 14 A. No. 15 Q. -- which recorded faults or suggestions of faults with 16 Horizon -- 17 A. No. 18 Q. -- that either related to an individual specific branch 19 or to a type of problem or to the system generally? 20 A. No. 21 Q. Okay. Was it revealed to you that there was a species 22 of documents called a KEL, a Known Error Log -- 23 A. No. 24 Q. -- that recorded, amongst other things, known bugs, 25 errors and defects in the Horizon system, and the steps 49 1 that might be taken or had been taken to seek to resolve 2 them? 3 A. No, remember, at this stage, I'm only reading the report 4 and I think we've got the report here. 5 Q. Yes. 6 A. I don't think any of that was mentioned. 7 Q. No. 8 A. If it wasn't mentioned then I wouldn't know about it. 9 Q. I think that applies to the rest of the prosecution as 10 well, all of the categories of material that I have 11 mentioned, ARQ data, records of calls to Helpdesk, 12 records of calls to the NBSC, PinICLs, PEAKs and KELs, 13 they weren't revealed to you in the course of the 14 prosecution at all? 15 A. No. 16 Q. You tell us that the investigation appeared to have been 17 conducted thoroughly and fairly? 18 A. As far as I could you see, at that stage, yes. 19 Q. Everything was addressed promptly and properly by the 20 Post Office? 21 A. It seemed to be, yes. 22 MR BEER: Thank you very much. I wonder whether we can take 23 a break there, please, until 11.30. 24 SIR WYN WILLIAMS: Yes, of course. So we'll resume at 25 11.30. 50 1 MR BEER: Thank you very much. 2 (11.16 am) 3 (A short break) 4 (11.30 am) 5 MR BEER: Good morning, sir, can you continue to see and 6 hear us? 7 SIR WYN WILLIAMS: Yes, thank you very much. 8 MR BEER: Just before we move on with the questions that 9 I was proposing to ask Mr Teale, I've been asked to 10 display a document. 11 It's not relevant to the answers that Mr Teale gave 12 but should be displayed in any event: WITN10510200. 13 It's a second witness statement from Mr Donnelly, it's 14 dated 15 January and it's a correction to his first 15 witness statement. If we go down the page, please. In 16 the first paragraph, he says: 17 "This [statement] seeks to clarify and correct 18 an inaccuracy in my first statement ..." 19 Paragraph 2: 20 "In my first statement, at paragraph 46 [this was 21 a paragraph I read to Mr Teale], I [said this]", and you 22 can see what's there. 23 SIR WYN WILLIAMS: Yes. 24 MR BEER: Do you remember it said that the Second Sight and 25 Helen Rose reports did not play a part in any live 51 1 Scottish case, save for one? He says: 2 "The final part of this passage is incorrect. 3 "At the meeting ... BTO explained to [the Service] 4 that the review of live Scottish cases had determined 5 that the defects identified in ... 'Second Sight' and 6 'Helen Rose' ... did not play a part in any live 7 Scottish cases. 8 "It is not the case that BTO advised [the Procurator 9 Fiscal Service] that one case had been reviewed and the 10 defects identified in the two reports had been 11 determined to 'play a part' in the case." 12 Then just read page 2, paragraph 5: 13 "The single case ... had been determined to be 14 a 'Type B' case. It is not the position system defects 15 identified [I think there's an error in this correction 16 statement] in the 'Second Sight' and 'Helen Rose' 17 reports impacted this case." 18 Thank you, I don't think that affects the answers 19 that you've given, because you weren't told about this 20 at all. Thank you. 21 A. (The witness nodded) 22 Q. Can we go back to your witness statement, please. At 23 paragraphs 20 and 21, which is on page 8, please -- 24 page 8, paragraph 20 -- you say: 25 "At the time of taking my decision to prosecute [and 52 1 we're dealing here with the section of your statement 2 that deals with Mr Quarm] I can safely say that I would 3 not have had any doubts as to the reliability of the 4 evidence provided in the Post Office report." 5 Why would you have no doubts as to the reliability 6 of evidence? 7 A. Because none were raised by the Investigating Officer. 8 Q. So, again, you were relying on this sort of 9 self-policing fairly to summarise and identify issues 10 about the reliability/credibility of evidence? 11 A. Yes. 12 Q. So there's nothing in there where the reporting officer 13 identifies that there may be an issue with this evidence 14 or that, for example, in the interview, there may be 15 nuances to what Mr Quarm was saying? 16 A. No. 17 Q. You continue: 18 "Certainly there was no suggestion at all that the 19 Horizon IT system had produced or was producing 20 unreliable data. [Had there been] I would have 21 seriously considered proceeding further against the 22 accused." 23 By that, do you mean that, if it had been identified 24 to you that the data produced by Horizon, which had been 25 used to produce the audit report, was unreliable or may 53 1 have been unreliable, you would have considered 2 seriously not proceeding further? 3 A. Correct. 4 Q. We've got some evidence from William Seaton, who I think 5 you will remember was Mr Quarm's solicitor, a local 6 solicitor; is that right -- 7 A. That's correct, yes. 8 Q. -- who says in his evidence, looking back, it was 9 assumed that the Post Office IT system was faultless. 10 The Procurator Fiscal's position was the same. He was 11 a bit like "How dare we challenge it", is what he says. 12 Does that fairly reflect your approach to the system at 13 the time? It just wasn't an issue? 14 A. That doesn't reflect accurately. That suggests that 15 I was approached by him to say that there was something 16 wrong with the system, it can only be the system, and 17 I've refused to listen to him, and that was certainly 18 not the case. 19 Q. What was your approach to the system then? 20 A. What was my approach? 21 Q. Yes. 22 A. That, as far as I could tell, there was nothing to 23 indicate it was working -- that it was not working. 24 Q. Did you, so far as you can remember, go through thought 25 process that "I'm relying on an audit report as one of 54 1 my two sources of corroborative evidence"? 2 A. Yes. 3 Q. "I need to be satisfied that the data relied on to 4 produce that audit report is itself reliable"? 5 A. Correct. 6 Q. "Where is the evidence of that?" 7 A. Correct. 8 Q. Where was the evidence the positive evidence that the 9 data relied on was reliable? 10 A. Well, it would have come from an examination, 11 presumably, of a detail of the audit, and a comparison 12 with the bank statements. 13 Q. When you say a comparison to the bank statements, had 14 you got those at the time that you made your decision to 15 prosecute? 16 A. No. 17 Q. Were they summarised, in any way at all, in the report? 18 A. I would have to look back at the report and I'm prepared 19 to do that. 20 Q. In your witness statement, I don't blame you for this at 21 all, you refer to a report as being the report that you 22 were sent. I think you know that that's probably 23 erroneous. That was an internal report to within the 24 Post Office and that the report that you were sent on 25 the system is a rather different document. Have you now 55 1 realised that? 2 A. Well, I think it was me that brought it to the Inquiry's 3 attention. 4 Q. Right. Good, excellent, then. 5 A. Thank you. 6 Q. So if we look at your witness statement and if we look, 7 please, at paragraph 9 on page 3, if we scroll down, you 8 say: 9 "I have been asked to describe my role in ... this 10 case. The report from the Post Office was received ... 11 in early 2009. [You say] I read it and considered it. 12 [They] follow a standard form ... There follows 13 a summary of the evidence against the accused ..." 14 Over the page: submitted by the officer in the case 15 who you expect to have been Raymond Grant, given the 16 contents of the document. Then you refer to the report 17 as POL00166596. If we can look at that, please. 18 That's the report you speak about in your witness 19 statement; can you see that, yes? 20 A. Yes. 21 Q. That's not the report you received, is it? 22 A. No. 23 Q. That's an internal report within the Post Office. 24 A. That's correct. 25 Q. So you never got to see this report? 56 1 A. I never got to see which report? 2 Q. The one we're looking at. 3 A. I think it was part of the bundle, was it not? 4 Q. When you say "the bundle" -- 5 A. Oh, you mean did I see it at the time of taking my 6 decision? 7 Q. Yes. 8 A. No, I wouldn't have seen that. 9 Q. Okay, so we can correct your witness statement when it 10 says, "I read the report and this is the report"; this 11 is not the report at all, correct? 12 A. That's correct. 13 Q. All right. Well, let's have a look at the report that 14 you did get to see. 15 A. I have to say I didn't -- when I was writing 16 paragraph 9, I didn't -- I knew that it wasn't the 17 report that I did receive and I made that clear. And if 18 you look at my paragraph 31. 19 Q. Yes, got it. 20 A. I wonder if that could be shown. 21 Q. Yes, that's on page 11. 22 A. That might just explain the position. 23 Q. Page 11 of the witness statement. You say you don't 24 have access to the papers, missing is a copy of the case 25 report. It's important because it contains a summary of 57 1 the evidence. I can only surmise that the summary of 2 evidence would have been roughly similar to the document 3 we've just looked at. 4 A. Correct. 5 Q. So let's look, then at COPF0000002. If we just skip 6 over that page, the second page, and then go to the 7 third page; is that the report -- 8 A. Yes. 9 Q. -- that was submitted to you? 10 A. Yes. 11 Q. Is this, if we just go back to the first page, please, 12 in the standard form that, by this time, 2009, it's 13 April 2009, the document was received -- 14 A. Yes. 15 Q. -- that they were submitted? 16 A. Correct. 17 Q. If we go forwards to page 3, we see a summary of the 18 evidence. Go to page 4., the summary continues. Then 19 over to page 6, please, some Branch Trading Statements 20 are produced -- yes -- 21 A. Yes. 22 Q. -- or referred to. They're not actually produced to 23 you? 24 A. Correct, referred to, yes. 25 Q. Then, at the foot of the page: 58 1 "Since the interview Mr Quarm has disclosed 2 financial details." 3 Then I think there is a reference to Alliance & 4 Leicester bank statements, Bank of Scotland statements 5 with one account number, a credit card statement with 6 another account number, RBS statements with another 7 account number and a loan. 8 Then, over the page, reference to some more 9 documents that he has, since the interview, produced 10 because the interview was back on 7 August 2008 and this 11 is April 2009. 12 A. That's right. 13 Q. There wasn't any analysis of those documents in this 14 report, was there? 15 A. Correct. 16 Q. And they weren't provided to you? 17 A. Correct. 18 Q. What was your understanding of what was alleged to have 19 occurred in terms of the transfer of money by Mr Quarm 20 from the Post Office to either his Royal Bank of 21 Scotland account or his Alliance & Leicester accounts? 22 A. Well, I wonder if I could just look at the document 23 which I have. Can you identify which number it would be 24 in my bundle so I can access it quite easily? 25 Q. You have to tell me a bit more than that. 59 1 A. How do I find the document that you're looking at in the 2 bundle which I'm holding in my hands? 3 Q. Oh, right. It's tab E1. 4 A. Thank you. I've only got to D35. 5 Q. We can look on the screen. It's a short document. 6 A. It's what? 7 Q. We can look at it on the screen, we can scroll backwards 8 and forwards. 9 A. It's easier if I can see it in its entirety. 10 Q. Okay, you can have mine. (Handed) 11 A. Thank you. I've been told that, actually, I have them 12 but they're in the shelf here. 13 Q. Maybe take them out of the shelf then I can have mine 14 back. 15 A. Good. 16 Q. Thank you. 17 A. E1. Thank you. (Handed) 18 Q. Thank you. 19 A. No, I'm sorry, but could you ask me again, please? 20 Q. Yes, what was your understanding of how it was alleged 21 that Mr Quarm had transferred money from the Post Office 22 accounts into his Alliance & Leicester and/or Royal Bank 23 of Scotland accounts? (Pause) 24 A. It starts at the bottom of -- it starts with the 25 paragraph "When asked how he removed money from the Post 60 1 Office". 2 Q. So which page of the document? 3 A. I beg your pardon, 4. 4 Q. Yes, so let's display that on the screen, COPF0000002, 5 page 4. You're referring to the last paragraph on the 6 page, yes? 7 A. Yes. 8 Q. "When asked how he removed the money from the post 9 office Mr Quarm was at first very hesitant to give 10 details of how the [£163,000] came to be missing." 11 A. No, it's not 163,000, it's 40,000. 12 Q. Yes, £40,277.76, so that's some extra digits and 13 an ampersand added to that line, yes? 14 A. Which appears to be a function throughout the document. 15 Q. Anyway, that amount of money came to be missing. He 16 then gave an explanation, I think, that he would credit 17 his A&L account number: 18 "... with sums of money equivalent to around £4,200 19 every week without putting the cash in the till. He 20 would then use this money by means of drawing on this 21 account by cheque payments to pay his suppliers." 22 Yes? 23 A. Yes. 24 Q. So is the summary of what is alleged based on, and only 25 on, what Mr Quarm said? 61 1 A. Well, the details of the mechanics of how he went about 2 it are based on that. 3 Q. Did you understand what's being alleged is that he 4 fictitiously created the receipt of a sum of money -- 5 yes -- into the post Office? 6 A. Partly that. If we go over the page it continues. We 7 can go through that if you want. 8 Q. Let's just stick with this bit at the moment. 9 A. Okay. 10 Q. So he fictitiously created the receipt of sums of money 11 in cash, yes? 12 A. That's right. 13 Q. Using his Post Office Horizon system? 14 A. Yes. 15 Q. "I've received £1,000 here, £2,000 there, £4,000 there", 16 so that on the post office account it would show money 17 in credit? 18 A. Correct. 19 Q. Then he transferred that money from what? 20 A. From his accounts to -- 21 Q. No, no, from what? How did he transfer money out of the 22 post office account into this own bank account? 23 A. Well, the summary doesn't tell you that. 24 Q. Well, okay, looking at all the papers, how did he do 25 that? 62 1 A. I don't know the answer to that. 2 Q. It doesn't emerge, does it? 3 A. I'm sure it doesn't. 4 Q. No, because one would expect to see some document which 5 showed the money leaving the post office account, I'm 6 going to call it, wouldn't you? 7 A. Eventually, that -- you'd have to do that to prove the 8 case. 9 Q. Yes, and you'd expect to see on the Alliance & Leicester 10 and the Royal Bank of Scotland bank statements money 11 coming in from a post office account, wouldn't you? 12 A. Yes, you would. 13 Q. So that's where you would look, wouldn't you? 14 A. You would. 15 Q. Did you? 16 A. I can't remember whether I did or not. The bank 17 statements would be there and, remember, we're talking 18 about different times. You're asking me -- you asked me 19 a moment ago when I'm reading the report, do I know 20 precisely how he was -- how the money was being 21 transferred? And the basic report doesn't tell me that. 22 But what I am interested in is, in broad terms, is 23 there evidence that he's taking Post Office money, he's 24 misappropriating it? And the audit seems to show that, 25 I'm told that it does. At this stage, of course, 63 1 I can't say exactly what the audit tells me. 2 Q. Did you ever establish how it was said that the money 3 was transferred from the post office accounts into his 4 bank account? 5 A. I can't remember whether I did or not. I think maybe it 6 might -- 7 Q. To be fair, is that because this ended up as a guilty 8 plea? 9 A. Effectively, yes. 10 Q. Therefore, there was not the need for you to do that? 11 A. Correct. 12 Q. Is that a fair way of looking at it? 13 A. Yes. I think maybe you should also be aware what was 14 happening in the case. He -- a plea of not guilty was 15 tendered and immediately a devolution minute was lodged, 16 and that is a challenge to the fairness of -- that's 17 a human rights issue, challenge to the fairness of the 18 trial, no legal representation during the interview. 19 Now, had that -- 20 Q. That was heard by the court -- 21 A. It was heard by the court. 22 Q. -- and dismissed. 23 A. It was. Now, that was -- the outcome of that would 24 determine whether the case would have proceeded further. 25 If the evidence -- 64 1 Q. Just stopping there, sorry to interrupt you, does that 2 mean that if the evidence which was being relied on as 3 admissions was excluded, you had insufficient evidence 4 to proceed? 5 A. Correct. 6 Q. Why couldn't you prove the case without Mr Quarm's 7 admissions? 8 A. Because they were one of the sources. 9 Q. Yes, but why couldn't you prove the case without his 10 admissions? 11 A. Because there wouldn't be corroborated evidence. 12 Q. Why not? 13 A. Because one of the strands would be missing. For 14 corroboration here, there are two strands: there's his 15 admissions and there's the evidence of the audit. Take 16 one away -- it's like a page being held up by two 17 pillars: audit, admissions. If one of them goes, the 18 whole page collapses. 19 Q. If the evidence actually showed this -- 20 A. Sorry, if the evidence actually showed what? 21 Q. If the evidence actually showed the following, that I am 22 outline to you, amounted to corroborated evidence, 23 documents from the Horizon system showing credits of 24 cash, documents from a Horizon account showing payments 25 of sums of money into Mr Quarm's private bank accounts, 65 1 bank statements showing the receipt of those sums of 2 money into his private account -- 3 A. Mm-hm. 4 Q. -- and then the use of those funds to pay his suppliers 5 on the grocery business -- 6 A. Correct. 7 Q. -- that would be sufficient sources of corroborated 8 evidence, would it not? 9 A. It would prove that money was taken from the Post 10 Office, yes, for his own purposes. 11 Q. Yes, that would prove embezzlement, wouldn't it? 12 A. It would. 13 Q. So why was the admission key? 14 A. Well, that would only be one source. 15 Q. But you've just told us that, without the admissions, 16 the case could not proceed? 17 A. Correct. You need both. 18 Q. Why did you need the admissions if the underlying 19 evidence would prove the case? 20 A. It wouldn't prove the case. It would be just one strand 21 of the case. 22 Q. Okay. 23 A. Am I understanding it correctly that corroboration 24 doesn't exist in England? 25 Q. Well, there is a law of corroboration but it's different 66 1 to that in Scotland. 2 SIR WYN WILLIAMS: Well, I think you're right to the extent 3 that, when you and I started to practice, Mr Teale, 4 there was a significant law of corroboration in England 5 and Wales but, over the years, it's been whittled away 6 to be very insignificant and, in most cases, doesn't 7 exist. 8 MR BEER: Almost non-existent. 9 A. Right. Thank you. 10 Q. What was the point you were making there about the 11 absence of an equivalent law of corroboration in 12 England? 13 A. Because I get the impression that you haven't accepted 14 what I'm saying, you haven't understood what I'm saying, 15 and -- 16 Q. Both of those things might be true in any given case. 17 What I'm asking is, I understand that, in fact, you had 18 two pillars -- 19 A. Correct. 20 Q. -- audit and admission -- 21 A. Correct. 22 Q. -- and you're viewing this as, if admission is taken 23 away, I've only got one pillar -- 24 A. Correct. 25 Q. -- and therefore the case can't proceed? 67 1 A. Correct. 2 Q. I'm saying, if there is all of this underlying evidence 3 about the dishonest inflation of cash figures, the 4 transfer of money from a post office account into 5 a private account and the dishonest use of that money to 6 pay grocery suppliers, why is that not sufficient 7 evidence? 8 A. You would have to then prove that it was him who had 9 done it. 10 Q. You'd have to prove that? 11 A. It was him who had transferred that money. 12 Q. So who were the other alternative people? 13 A. Haha. Well, I don't think I can explain it very much 14 more than I have. I'm saying in Scotland -- 15 SIR WYN WILLIAMS: I think I've got the point of difference 16 between you but the reality, Mr Teale, is that, at the 17 stage we are now talking about, the stage where there is 18 evidence of an audit shortfall and evidence of 19 admissions, if you knocked one of those out, I fully 20 understand that, even though the other one existed, that 21 wouldn't be enough because of the law relating to 22 corroboration. 23 Mr Beer's point, I think, is that, even without the 24 admissions, there were lines of inquiry which could and 25 perhaps should have been followed which would themselves 68 1 have produced evidence which, if they had turned out in 2 a particular way, would have been capable of being 3 corroboration. We'll never know because nobody followed 4 those lines of inquiry, isn't that it, in reality? 5 A. That is perfectly right. But can I just add to that, we 6 didn't need to pursue those lines of inquiry because we 7 had enough corroboration, given his admissions. 8 SIR WYN WILLIAMS: Yes, you didn't need to, once the judge 9 refused to rule inadmissible the admissions. 10 A. Absolutely. 11 SIR WYN WILLIAMS: That's what you're telling me, isn't it? 12 A. Yes, that's exactly right. 13 SIR WYN WILLIAMS: Yes, fine. 14 MR BEER: Did you read the transcript of Mr Quarm's 15 interview? 16 A. Have I read it? 17 Q. No, did you? 18 A. Yes. At the time, you mean? 19 Q. At what stage of the process did you read it? 20 A. When the statements had come in. 21 Q. Sorry? 22 A. When the full statements -- when the -- when the full 23 statements and the transcription would have come in to 24 the office. 25 Q. So I think that's August 2009, we can see. 69 1 A. All right. 2 Q. So, again, for the purposes of the decision to 3 prosecute, you're relying on this summary we've just 4 looked at -- 5 A. Correct. 6 Q. -- which that can in fact come down from the screen. 7 A. Correct. 8 Q. In his interview, Mr Quarm raised some issues about 9 training on Horizon; do you recall? 10 A. Yes. 11 Q. Was that investigated or does that fall into the same 12 category as, because you had admissions and an audit 13 shortfall, there was no need to? 14 A. Correct. 15 Q. In his interview, Mr Quarm raised issues about seeking 16 help from the Helpdesk because of difficulties in the 17 operation of Horizon. Does that fall into the same 18 category, not investigated to your knowledge, because of 19 the admissions and the shortfall? 20 A. Correct. 21 Q. In the interview, Mr Quarm identified that he had sought 22 help in relation to an ATM error resulting in 23 an unexplained loss of money: the same question, same 24 answer? 25 A. Yes. 70 1 Q. So does it amount to this: because there was 2 an admission, as you saw it, in interview and because 3 the Post Office audit -- 4 A. Hold on. An admission by a letter that in his interview 5 he had admitted writing. 6 Q. Did you see this as a case that did not, in fact, 7 require further investigation? 8 A. I couldn't have said that at the time of the report 9 coming in. Things -- once the devolution minute had 10 been refused then the case was proceeding -- would have 11 proceeded to trial, and it's at that stage that my 12 investigation would have taken a more serious -- in 13 fact, a very serious turn. I would have had to have 14 investigated everything to show the court, to 15 demonstrate to the court, what has been happening. 16 Q. So do you think, if it had reached that stage, you would 17 have then scrutinised the underlying evidence and asked 18 for further enquiries of the type that I've mentioned to 19 be pursued? 20 A. Yes, and I can say that, having read the court minutes, 21 I can see when the -- the date of the -- 22 Q. By "court minutes", just so that we all understand, 23 that's a record in summary terms of an appearance in 24 a court? 25 A. Correct, and they show that the debate of the devolution 71 1 minute was held on a certain date and I see from 2 Mr Seaton's statement that he approached me, and, 3 I suspect, immediately after the court hearing, to begin 4 negotiations which resulted in the guilty plea. So he 5 would be indicating at that stage that this was going to 6 be a guilty plea. 7 Q. A plea case, okay. Just on those negotiations, you were 8 negotiating with him the amount of money that was said 9 to have been lost? 10 A. Yes. 11 Q. I'm not going to go through all the correspondence but 12 you liaised with your Post Office client, essentially -- 13 A. No, not a client. 14 Q. Okay, your Specialist Reporting Agency -- 15 A. Correct. 16 Q. -- who sought to persuade you to hold out for a higher 17 sum of money? 18 A. Yes, slightly higher. 19 Q. Yes. They wanted you to agree to state that £30,000 had 20 been lost, whereas the proposal was £27,000. 21 A. I think the proposal was 24. 22 Q. And it got negotiated up to 27? 23 A. Correct. 24 Q. Is that normal, that you negotiate an agreement as to 25 the amount of money that has been lost? 72 1 A. Yes. 2 Q. Is there anything that regulates that kind of plea 3 negotiation? 4 A. Nothing formal: experience and good sense, and 5 a realisation of what happens if a guilty plea is 6 accepted, which doesn't reflect the seriousness of the 7 offence. 8 Q. For you and for the SRA the difference between £24,000, 9 £27,000 and £30,000 was not sufficient, is that right, 10 to affect the seriousness with which the court might 11 view the offending? 12 A. Correct. I think it was the difference between 40,000, 13 which the Auditor showed as the shortfall, and the 14 eventual outcome, 27,000. 15 Q. How do you go about that, then? What's the thought 16 process? Is it that the evidence shows that I might not 17 be able to prove a loss of £40,000? 18 A. No. 19 Q. So why do you ever accept an amount less than £40,000? 20 A. Haha. Pragmatism to a certain extent, a certainty of 21 plea, a certainty of outcome. 22 Q. So you can do a deal, essentially? 23 A. No, that's not the way to put it. 24 Q. How would you put it, then? 25 A. Well, I would put it that the Fiscal is always 73 1 considering whether you're going to cause difficulties 2 for the sheriff, for the judge, when it comes to 3 sentencing. I mean, if I were to accept a plea of 4 guilty to £5,000, that would have been a considerable 5 difference. As it stood, the difference between 27,000 6 and 40,000 would really not have affected his sentencing 7 powers. If he'd have wanted to send Mr Quarm to prison, 8 he could just as well have done it to the basis of 9 27,000 as 40,000. 10 MR BEER: Thank you. 11 Mr Teale, they're the only questions I ask. 12 I think there are some questions from Mr Stein. 13 Questioned by MR STEIN 14 MR STEIN: Mr Teale, I've just got a few questions for you. 15 I represent subpostmasters and mistresses. I'm 16 instructed by a firm of solicitors called Howe+Co, okay? 17 Can you just help me a little bit by way of the 18 procedure in Scotland. You were appointed the 19 Procurator Fiscal for the jurisdiction of the Western 20 Isles, is that correct, in 2000? 21 A. Yes. 22 Q. You left that post in 2015? 23 A. Yes. 24 Q. Okay. Above you, in terms of the system, who would be 25 the next person, if you like, as a line manager? Would 74 1 that be the Lord Advocate? 2 A. Oh, no, no, no. 3 Q. Okay. Help us, please, with the system going up 4 hierarchically above you? 5 A. Above me directly would be the Area Procurator Fiscal 6 and that would cover the whole of the Highlands and the 7 Islands and, above him, would be a Deputy Crown Agent, 8 I presume, and then, after that, the Crown Agent. 9 Q. Okay. So your work, as the Procurator Fiscal for the 10 jurisdiction of the Western Isles, would it be fair to 11 say that, operationally, you were in charge of 12 prosecutions within that area of the Western Isles? 13 A. That's correct. 14 Q. Right. So Mr Beer has examined some of the material in 15 relation to another statement that deals with the 16 question of contact from the Post Office with the Lord 17 Advocate's office, yes? 18 A. Yes. 19 Q. Okay. Would it be fair to say that any issues that may 20 have had an impact on your decision making for 21 prosecutions within the Western Isles area, should have 22 been, therefore, provided to you? 23 Shall I try that again? 24 A. Please. 25 Q. All right. If the Lord Advocate's office is provided 75 1 with some information about issues that related to the 2 prosecution of Post Office cases, should that have come 3 down to you? 4 A. It would depend entirely on what the information is and 5 whether the Lord Advocate thought it appropriate that 6 Procurator Fiscals on the ground should be aware of it. 7 Q. Right. Well, if it is of the nature of information that 8 relates to, say, the reliability of the Horizon system, 9 should that have come to you? 10 A. If it's of the level that the Lord Advocate has 11 indicated that it was, yes, and I understand that it did 12 come down. 13 Q. All right. Did it come to you? Mr Beer asked a number 14 of questions and you've used the term -- many a time you 15 used the term, "I can't recall, I can't remember"? 16 A. Yes. 17 Q. Did it or did it or not come to you? 18 A. How can I answer that? I can't recall whether it did or 19 not. 20 Q. Right. So it's a lack of recollection? 21 A. Correct. 22 Q. Right. So you're saying, essentially, that you do not 23 know whether or not it was sent to your office? 24 A. Correct. 25 Q. Okay. How do we check? 76 1 A. I suppose your first port of call would be Crown Office. 2 Q. Okay. Right. Now, moving on to Post Office cases, so 3 concerning the prosecution of subpostmasters, 4 mistresses, managers of post offices and employee staff 5 at post offices, okay. In police cases, you get 6 information from police officers; is that correct? 7 A. They're often the reporters of cases, yes. The 8 reporting officers, yes. 9 Q. Because in police cases, the police themselves are the 10 investigators, they're the reporters, normally to your 11 office when you were in charge at the Western Isles as 12 a Procurator Fiscal; is that correct? 13 A. Yes. 14 Q. Okay. So with police cases, you've got a basic 15 understanding that these are police officers who have 16 been trained in their job; is that correct? 17 A. Correct. 18 Q. They've been trained in the work of an investigator; is 19 that correct? 20 A. As far as I know, yes. 21 Q. Well, when you say as far as you know, you should know, 22 shouldn't you, Mr Teale, because of your work? 23 A. They are. 24 Q. They are, precisely. You're also aware that, therefore, 25 their training will include how PACE works -- yes -- the 77 1 Police and Criminal Evidence Act? 2 A. I don't know if that applies in Scotland. 3 Q. All right. 4 A. I think there's an equivalent. 5 Q. Equivalent in Scotland, the system of prosecutions, the 6 checks and balances in relation to the collection and 7 presentation of evidence? 8 A. Yes. 9 Q. Okay. 10 A. I think it's a 2010 Act -- 11 Q. I'm very grateful. 12 A. -- that regulates that. 13 Q. Also you're aware that, as regards the police, that they 14 have systems in place, so that they have -- 15 operationally, there are police officers, there are 16 Sergeants, Inspectors, there's an entire system of 17 checks and balances in relation to police work; do you 18 agree? 19 A. I'm not certain if that would be checks of balances, but 20 there is that range of authority, yes. 21 Q. Okay. Now, as far as you can recall, were you ever 22 given any information about the training and experience 23 of Post Office Investigators? 24 A. No. 25 Q. As far as you can recall, was there any protocol or 78 1 guidance as to how your office should deal with Post 2 Office cases? 3 A. There was guidance from COPFS to the reporting agencies 4 indicating what COPFS required of them, by way of 5 reports and investigations. Does that answer your ... 6 Q. Perhaps it does. Did that guidance go to the question 7 of the quality of the information that was being 8 provided; do you recall? 9 A. Yes, in fact, I think the document we have here, it was 10 provided to me yesterday, I think. 11 Q. Just helping one step further, if we can, please. In 12 relation to the Post Office, do you agree that one of 13 the factors that's different to the police cases for the 14 Post Office is that, in the Post Office cases, the Post 15 Office is the victim? 16 A. Yes. 17 Q. Did you ever give that any pause for thought and think 18 to yourself: have we got something here in relation to 19 post offices that is, say, different from a police case? 20 A. Yes, it's certainly something that, yes, I have 21 considered. 22 It's a commercial organisation and that has been 23 apparent to me throughout my career. Other reporting 24 agencies have got their own priorities, like DWP, loss 25 of funds to the public purse. But, yes, you're always 79 1 considering that, whenever you're looking at a case, is 2 there any reason to suspect that something might not be 3 as straightforward as it appears? 4 Q. As you say, in relation to a commercial organisation, 5 something like the Post Office, which also has 6 a reputation to uphold, how would you apply that 7 thinking to the analysis as to whether a case should go 8 ahead? 9 A. You've -- you're deciding on the basis of the evidence 10 that's being supplied to you and I suppose, if you had 11 some doubt that it was being manipulated or that it 12 wasn't accurate, you would be very careful about 13 proceeding. 14 Q. Now, Mr Teale, you held a senior position in the system 15 of prosecutions within Scotland for many years. You 16 must have been following the progress of the proceedings 17 in relation to Post Office cases. First of all, you're 18 aware that 555 individuals took on the Post Office in 19 the High Court; and, secondly, after that, in the 20 Criminal Court of Appeal -- the Criminal Court of Appeal 21 in England and Wales overturned many convictions later 22 on; you're aware that, in Scotland, its own procedures 23 are taking place in relation to convicted individuals; 24 and, finally, of course, here you are at the Post Office 25 Inquiry giving evidence in relation to your recollection 80 1 of events that you were party to in Scotland when you 2 were in post. 3 You know now that defects, errors, bugs were found 4 within the Horizon system. As we understand your 5 evidence, you were never told about those bugs, errors 6 or defects; is that correct? 7 A. I can't recall being told about them. 8 Q. Do you think you would have recalled, if you had been 9 told? 10 A. I can't say. 11 Q. What do you think now about the fact that, as far as you 12 know, you weren't told about bugs, errors and defects 13 within the Horizon system? Do you think that's a matter 14 that is of any concern to you now? 15 A. Being told by COPFS? 16 Q. Well, being told by all of the events that I've just 17 described having taken place, the judgment in the High 18 Court, the judgment in the Criminal Court of Appeal, the 19 sheer fact that we're at the Post Office Horizon IT 20 Inquiry. Does it give you any cause for concern that 21 you weren't told, it seems, that there were bugs, errors 22 and defects in the Horizon system? 23 A. Well, I think the Lord Advocate made the position quite 24 clear and, really, I don't think I can say anything 25 further than that. 81 1 Q. Do you think it would have been a good idea for your 2 office to have been told about those bugs, errors and 3 defects, Mr Teale? 4 A. I don't know. 5 MR STEIN: Thank you, Mr Teale. 6 SIR WYN WILLIAMS: Anyone else? 7 MR BEER: No, I don't think there is, sir. 8 SIR WYN WILLIAMS: Right. 9 Well, thank you, Mr Teale, for providing your 10 evidence in written and oral form. 11 Just in case I wish to become a little better 12 acquainted with the Scottish law of corroboration -- I'm 13 not saying I will but just in case -- am I right in 14 assuming that it's part of the common law of Scotland, 15 it is not based on a statute? 16 A. I think that's correct, yes. 17 SIR WYN WILLIAMS: So if I wanted to have a greater 18 understanding of how it operates, I'd probably need to 19 look at a few leading cases from the High Court, yes? 20 A. Stretching back many years, yes. 21 SIR WYN WILLIAMS: Yes. Fine, all right. Thank you very 22 much. 23 A. Thank you. 24 MR BEER: Sir, if it assists, you are right in that belief. 25 Indeed, there have been -- I wouldn't call it watering 82 1 down, but there have been tweaks made to the approach to 2 corroboration by the Appellate Courts in Scotland over 3 time. 4 SIR WYN WILLIAMS: Yes. Well, since we are not rushed for 5 time today, I did notice that in the most recent 6 Prosecutor Code you showed Mr Teale, the words "in 7 general" were used in advance of corroboration being 8 necessary. 9 MR BEER: Yes. 10 SIR WYN WILLIAMS: So it looks as if there are some tweaks, 11 as you say. Fine. 12 All right then. 10.00 tomorrow morning. 13 MR BEER: Yes, please, sir. Thank you. 14 SIR WYN WILLIAMS: Fine. 15 (12.19 pm) 16 (The hearing adjourned until 10.00 am the following day) 17 18 19 20 21 22 23 24 25 83 I N D E X DAVID SUTHERLAND TEALE (sworn) ................1 Questioned by MR BEER .........................1 Questioned by MR STEIN. ......................74 84