In full: Former senior Post Office lawyer gives evidence | Horizon inquiry
e e e e e e e e e e e e e e e e e e e e e e good morning sir can you see and hear me yeah yes I can thank you very much thank you sir um first we will be hearing from Mr Oar uh we heard from him last weekend there are cor participant questions remaining um so you’ll be hearing from four sets of participants first Miss Paige who estimates will be up to 20 minutes then Mr Maloney who estimates 15 minutes then Mr Steen who estimates 15 minutes and then miss Oliver who is between 10 and 12 minutes um between then uh after that we’ll hear back from Mr Smith uh we have Mr ojar today attending by uh video remotely can I just check Mr ojar can you see and hear us yes I can indeed thank you sir well I think that’s yeah thank you Mr Stevens um can I just remind you Mr Oar that you’re still on oath even though there’s been a break uh between you starting your evidence and now completing it this morning so uh over to miss paage first thank you sir thank you sir when you joined uh post office in Autumn 2013 it was in the midst of a legal crisis wasn’t it uh as um it was to explain to me at the time um it was uh to take on a mediation or help with a mediation scheme I don’t think that the words crisis were used either um in the interview process or um as and when I joined did you identify it as a crisis when you joined that said it became um apparent as um my time at poll continued that there was um a in in a lot of scrutiny around the mediation scheme in particular uh and that that was um although that was occupying um um some of my time it was by no means the the the vast majority of my time that the the direction that I was given um by um Paula and um Alice Perkins upon joining was that I was there as a a corporate general councel and this um I don’t believe the word crisis was used um at any time and that that certainly not in the first the first sort of six months or so whether or not anybody else used the word crisis you must have recognized as a lawyer that there were considerable legal challenges facing post office yes indeed yes indeed and your task as general counsel was to make sure that board had clear advice on what they ought to be doing according to the law yes yeah one of one of my tasks yes you ought to have been the backtop the break on a natural inclination to cover up problems hide them away move on part of my role is to is to uh be transparent and clear with the board and inform them as to information that crosses my desk that they ought to know at paragraph 393 of your statement no need to bring it up you say this the overall misunder understanding of the size of the issue led to the approach taken by post office when challenged which was that there is no problem here a comment that was in retrospect made by way of assertion and possibly in Reliance on the presumption that a computer operates correctly unless shown otherwise rather than by reference to more exhaustive investigations this inevitably led to a situation that was more adversarial and less Cooperative than it perhaps needed to have been as well as the one that did not identify the problem quickly enough let’s get real here Mr Oar there was no misunderstanding of the size of the issue was there the board had notified the insurers of a litigation risk and they were asking for advice on their personal liability so it’s not about a misunderstanding of the size of the issue it’s what you say next that’s key isn’t it it was a deadly presumption at work the board desperately wanted to believe that the system was working didn’t they um if I could answer that question in as follows the um in terms of the size of the problem that I believe is a reference to comment I make earlier in the witness statement about the uh mediation scheme and the size uh of the number of applicants that applied to that um which although more than the board expected was somewhat less than uh than one would have anticipated ated if there was a widespread systemic error at least that’s that’s um I think how the board saw it um in terms of the presumption um I believe and I’m not sure on what basis this belief is held but I believe it’s either from link lers or Bon um Dickinson or uh possibly carright King that there was a belief within pole that there was a um the system worked as it should um in all circumstances until proved otherwise so absolutely correct there was a presumption at all levels within pole that it’s correct and as you accept this led to needless adversarialism as I say my statement led to assertion rather than um detailed um perhaps a detailed review Lord Abbot has said that he believed relations with post office became quotes Less open and more combative after you became interim general councel what do you say to that um so my um involvement with Lord of bunut was was very limited I believe I had maybe two uh meetings uh with him um possibly three but I believe it was two um and I can understand why from an external persp perspective um he he might draw those um conclusions they were however um I think as a result of the actions taken in relation to the mediation scheme and those actions were very much um uh directed by um both the sparrow subcommittee and and the board um as was seen in my um evidence last week is the reality that your arrival timed with the board’s reaction to an adjustment to the Clark advice and the very serious implications of that the poll board was going into coverup mode and that was the mood and the tenor of the leadership team that you were joining if it was that I certainly didn’t recognize it um at the time and I certainly would struggle to put my finger on specific instances of um someone engaging in um cover up uh Behavior at the board level U as as a board well let’s look at a few uh documents and we’ll start please with um a uh an email it’s it’s about a report into John Scott’s department now John Scott is somebody who reported to you isn’t he yes indeed I took over his reporting line when I joined poll and your uh statement says that you had no concerns about him in his capacity at the in the role he was fulfilling at the time which was principally in relation to physical security yes well that’s uh perhaps an important caveat isn’t it because if we have a look at um a document it was I don’t know if you accept this whether I need to show you the email but it was shown to you in uh the um January of 2014 by Mr Ron warmington and it’s a document that it makes some very severe criticisms of Mr Scott’s Department do you accept that Mr warmington gave that to you in January 2014 yes I believe it’s a document I asked Ron for and it was a draft report prepared for Susan kryon um and from recollection it was heavily caveated um most important caveat of which saying that he hadn’t discussed any of this or interviewed anybody in that Securities team well nevertheless let’s have a look at it shall we poll 0034 4051 and if we just uh have a look at paragraph one it starts Paul investigators and investigations are overwhelmingly focused on obtaining an admission of false accounting from the interviewed spmr or employee Paul investigators often appear to have paid scant attention to the interviewees assertions of Innocence or his her reference to specific transaction anomalies they seem to have shown little or no willingness to establish the underlying root cause of any given shortfall this disinterest seems to be driven by the desire to quotes get the money back from the SP PMR knowing that a false accounting conviction will provide a relatively inexpensive to poll Pathway to that goal in the event that an spmr has not committed any criminal offense then Clause 12 of the standard contract provides an equivalent Pathway to asset recovery using civil law and if we then just go down little bit to paragraph three in none of the cases examined so far did any investigator record anything that indicated that there might be any widespread systemic problem worthy of Investigation despite similar allegations being made by different unconnected spmr uh and then if we just go down to five as well please the overwhelming impression gained from reviewing the transcripts of investigative interviews is that the spmr was viewed as an enemy of the business the culture within the investigation team appears to be one of quotes a presumption of guilt when conducting an investigation rather than an aim of quotes seeking the truth see comments on the consequences of tunnel vision at the foot of this report and then lastly uh if we SC down a little bit to the paragraph Beginning by failing to investigate I’m sorry I should have found out what page that’s on I think we may have gone past it um if we could go back up to paragraph five please well rather than scrolling up and down if I may I’ll read it out to you and if I’m wrong I’m sure I’ll be corrected by failing to investigate those spmr assertions or even to pay proper heed to them during interviews the investigators have alienated all of them it is that group The spmr Who evidently still believe themselves not only to be innocent but also to have been cheated by pole who really have become enemies of the business that’s the needless aders serialism right there isn’t it I think the ADV serialism I was referring to in the uh my earlier comments which is part of the Reflections in my witness statement was around the uh attitude taken by poll uh generally um this I think is a specific case of a specific team allegedly behaving in a certain way um as set out in this draft report and I do agree this is um this this reads as though that team is adopting an adversarial approach to their investigations and a failure to investigate as um you also identified in your paragraph 394 that was their job to investigate and yet they were failing to investigate and what’s more this document was identifying the fact that although the same complaints were coming up time and again nobody was looking at this as a system problem now whilst they were no longer carrying out investigations this was telling you was it not that there were serious concerns over past prosecutions wasn’t it I have no specific recollection of what I thought of the document at the time however my uh belief is that I would have looked at this and asked a number of questions such as why did Susan Kon commissioner was it a an attempt by her to remove certain individuals from that team I suppose the third thing I would have thought at the time is it is a draft report that is heavily caveated and uh would at some point in the future um had I been a permanent GC and stayed on in rooll um require uh you know uh further investigation to understand what was going on or what had gone on historically in that team well exactly this is a document that required and demanded immediate action to make sure that it was properly properly understood wasn’t it so the document was provided to me by way of um a uh historic um piece of background here is something that Susan had did it require immediate attention or not Mr Oar my view at the time was given it was marked as a draft document and heav heavily caveated it is something that would have required um investigation in in due course in due course I for longer what in fact happened to the document so far as you concerned Mr Ro um so I believe this was handed to me by way of a uh just more background information my um recollection is that I would have read it at the time and put it to one side and that would have informed my thinking more fully about the organization that I just joined beyond that I can’t say that I took any further action or I can’t recollect taking any further action in relation to this document all right thank you there was a um another section of your statement I wanted to consider you uh and indeed the poll board refer to an expectation Gap in the mediation process in clear terms that meant the board wanted payouts to be minor whereas applicants wanted compensation for their very substantial losses yes correct and when that was discussed in an off- the reccord meeting meeting with Sir Anthony Hooper and we can bring that up it’s pole 0010 0335 um he brought that matter to something of a head didn’t he uh in paragraph two Miss venel um opens uh the meeting and she says that she’s expecting as we see at the end of that paragraph uh there to be outcomes in many cases which might be by an apology Andor a small gratuitous payment and if we go down to paragraph 7 we see your note of Sir Anthony Hooper’s uh view which was rather different Quantum of the payments was discussed Sir Anthony Hooper noted that the applicant cqrs often painted a very distressing picture where there had been a loss of livelihood and other losses his view was that should the evidence show that Paul had not acted properly then the amount of compensation payable could be quite material now um he was telling Paul two things one that he might find that Paul had not acted properly and two that if so Paul might owe a lot of money in compensation now in effect Mr Oar that was the death nail for the mediation scheme wasn’t it I’m terribly sorry you could I Poss have a look at the date on that note yes it’s at the top and I believe it’s the um it’s February 2014 uh 24th there we there we have it so thank you um so my um recollection is that the um expression expectations Gap was um in circulation within poll as early as um November 2013 and um that arose really is a consequence of um advice that Paul had received prior to my aring that it’s um compensation paid should be paid in accordance with contractual principles and I believe the um expression um the guidance was three months maximum the question I asked Mr Oar this was the death nail for the mediation scheme wasn’t it uh the expectation gap which I think you’re referring to as the death Nell here is had its roots no no I’m not ref ing to the expectation Gap as the death Nell I’m referring to Sir Anthony Hooper’s Clear View that a Paul might not have acted properly and B if so they would owe a lot of money that was the death Nell wasn’t it I I don’t believe I wouldn’t characterize this as a death null no I’m afraid I wouldn’t uh the um the the scheme structure was such that the working group which Antony Hooper chaired uh was um there for the the purpose of ensuring that um cases were either mediated or not mediated um the uh the amounts of money or compensation paid uh really were something that was arranged in the mediation itself will you accept don’t you that following this advice it was this that sent the poll board off to link lers and the brief for link lers was to find a way to sack second site and end the mediation process wasn’t it I believe the first brief for inators was to examine the um sub poost Mar’s contract and aine on that quite April advice you seek to make a distinction in your statement between um on the one hand the litigation risk and on the other hand the risk that Horizon was in fact flawed don’t you very is points I comment on both yes that’s really the sort of Distinction that gives lawyers a bad name don’t you think in advising the board I thought they needed to be advised on all all the risks that they were presented with it’s not a useful distinction is it the risk that a claim will be successful is inextricably linked to the question of whether what the allegations are saying is true that that’s absolutely correct yes and let’s put the notional risk into the real world when faced with the risk that Sir Anthony Hooper might find against pole the board decided to spend a lot of money on link lers and then deoe rather than continuing to spend money on second site didn’t they I I don’t recognize that a decision the board made well that’s in effect what happened isn’t it so the board in addition to retaining second site and paying for their work to support the working group also commission work from linklaters and uh and deloid that is correct yes the trouble with accepting the inextricably bound nature of the two risks is that Paul would have had to accept the possibility of committing fault wouldn’t they in in connection with a mediation matter yes yes not necessarily no I think the mediation was structured so that there could be um examples where Paul agreed that H had uh failed in some way perhaps in a training sense or um through another matter and that would lead to a successful outcome of the mediation indeed there were a number of cases that went through the mediation scheme that were did have successful outcomes um sir if I’m allowed I would like to take the witness to one last document but I’m conscious of the time um if you assure me that this will take no more than a couple of minutes you can do it Miss B I’m very grateful it’s poll 0012 4350 this is a letter that uh you sent to the CCRC on the 5th of June of 2014 and it purported to be a summary of the Orman review I think you’ve been shown it quite recently yes indeed last night thank you this um uh appears to have been originally drafted by Susan kryon before she left is that right I believe it was drafted by Bon Dickinson from the bundle that I’ve been provided with well you picked up on it following uh a a chaser if you like from the CCRC is that right yes the Chaser is unclear to me whether it was an email to Susan’s email account that somebody had picked up um but it’s clear from the context that they were unaware that Susan kryon had left so that’s quite possible now this uh purports to be a a summary it’s um devoid of any mention of the issues which the CCRC really needed to to know about isn’t it it’s devoid of any mention of the Clark advice correct that is correct it doesn’t it doesn’t uh mention the Clark advice it’s devoid of the concern that Mr Jenkins had given misleading evidence isn’t it and that’s correct that was indeed mentioned by uh Mr Orman repeatedly and it’s devoid of any mention of the case of a misra isn’t it mentioned some 15 times in the ultman review that’s correct you accepted from Mr Stevens that the content of the Clark advice was startling there’s nothing of that startling nature here is there this is a bland reassuring letter aimed at making sure it would all just go away do you accept that so the letter was in response to a specific request aimed at Susan uh which I picked up and it asked about progress with the uh review matters and the progress that you set out here is all peachy isn’t it everything’s fine uh so this is the advice I had the time from uh Brian ultman and cartright king um the advice that you’re referring to earlier the cutright King advice I believe in the 16th of um July was not something that was made visible to me um for uh my at my time during my time at poll and uh it wasn’t raised um with uh with with um like I suppose Bon Dickinson who drafted this letter or rather so this letter was um attempting to respond to a specific request um on um a matter that they’ve been dealing with Susan with can I be clear Mr Ard the the the advice by Mr Clark which um gives rise to the criticisms of Mr Jenkins uh that’s dated I think the 15th of July and I just want to be clear are you saying that during the whole time that you were working at the post office you did not see that advice no sir what I’m saying is that in my time at the post office um I was reliant on cartright King to advise me as to actions I should be taking in respect of the events that had occurred during right so you w aware of the advice I believe I believe so I saw the advice it was to a a briefing document that was provided to me on the second day I arrived post off right well that’s what I thought so that’s why I couldn’t quite understand answer to to this Page’s question but but the plain fact is um is is your evidence that this is a document to which you put your name but which was drafted by others is that it so this document was from looking at the bundle so looked as though it been prepared by Bon Dickinson uh with blanks in there for the number of cases going through uh the system when the um follow-up email around D from the CCRC those blanks were completed and this document was dispatched and um this is my question as opposed to miss pages but um you did not think about the context of this letter independently you just signed it or did you consciously understand what it was saying and that was you thought an appropriate response to CC so I think it reflected the totality of my understanding of the issues at the time uh and those that understanding would have been informed by um discussions with principally Bon Dickinson uh but also to some extent carright King all right is that it Miss Paige thank you sir uh Mr Maloney thank you sir uh Mr oard I’d like to ask you about remote access of I may in 2014 the issue of whether Fujitsu was able to alter Horizon data without the knowledge of the postmaster was very important to post office wasn’t it yes indeed yes if fact it it went to the heart of the Integrity of horizon as as an accounting system didn’t it um I think two issues went to the um uh essentially yes yes and second site was pushing hard for clarification of the position as to whether or not remote access um was possible in general terms yeah and and you emphasized the importance of the issue at the board meeting of the 30th of April 2014 uh when deot had been commissioned to review Arizon yes yeah um and following that you were also instrumental in ensuring the change order for deoe which asked them to investigate the second site July 2013 concern that he effectively Branch ledgers could be amended remotely without visibility of the postmaster yes ask to investigate that in the um revised um uh set of instructions yeah because that was requested uh by deoe on the 6th of May 2014 and you actioned it on the 15th of May 2014 correct yes with the board’s approval yes and that was of course in keeping with what you had specifically raised during the board meeting the 30th of April indeed is post office had been trying to get to the bottom of the issue with Fujitsu so it could answer the questions raised by second site independently of Deo hasn’t it yes um that may have predated me I have no recollection of there being an ongoing dialogue with Fujitsu during my time at poll that point anyway well C can I can I just ask you to have a look at at at one um document it’s an email and it’s dated the 9th of May 2014 and it involves Mr Andrew Parsons uh from Bon Dickinson um Mr rodri Williams and Angela vanam Bogard and and the references p2’s 34478 that’s p2os 30 4478 and if he could just focus in on the top of that please um Mr ojard um this is Andre Parsons to Angela ven Bogard I’ve spoken to rodri the interim answer to SS question is uh and and said as requested at the working group meeting post officer has to produce a formal certification that it’s not possible for anyone to access horizon or Horizon online and aend transaction data without the knowledge of the sub postmaster all their staff and the the answer that was being given was it’s not clear what is meant by formal certification but inquiries have been made of senior Personnel at Fujitsu and in post offices it team there’s no functionality in the Horizon system through either a front end terminal or backend server to edit or delete transaction data once it’s been transmitted from a branch to the central branch data center the transmission of this data is encrypted transferred to the branch Data Center and then stored in a separate audit server where they’re sealed using industry standard secure protocols to ensure the data’s integrity although it is possible to input additional transactions into a Branch’s account e EG by way of say a transaction correction the sub postmaster will always have visibility of these extra transactions as they are shown separately in the Branch’s accounts a more detailed note will follow on this subject but this won’t be ready before the fact file needs to be submitted so this is the 9th of May of 2014 and uh the position being adopted by post office and essentially um no deletion could occur without it being apparent to the postmaster on the 23rd of may you received the draft de report yes correct a report was 72 pages long you may remember including the appendices so not a particularly long report and um can I just take you please to your recollection of the contents of that report is set out uh paragraph 254 of your statement I don’t know if we’re able to bring that up for Mr ojard so that all can see it and um paragraph 254 that’s great uh I’m very grateful to the document manager for the hard work I caused to there um uh this reads um just going down to um just reading down in the final draft version of the board briefing dated 4th of June providing me there’s reference to issue mentioned at paragraph 243 above or L it appears to be stated in different much more formal terms um in the section section 4.2 headed specific comments or the key control summary Deo pass comments on what they refer to matter three namely the test proposition that baskets of transactions recorded by the AIT store are complete and digitally sealed to protect their integrity and make it evident if they’ been tampered with the headline comment in this regard is as follows it appears that Horizon is designed so that its audit stor is a complete representation of the county transactions and ordered events and the data will be kept with Integrity for seven years in their detailed comments however they go on to say that we have not identified any documented controls designed to prevent a person with authorized privileged access from deleting a digital sealed group of data and replacing it with a fake group within the audit store they do however make the point that the audit store physically runs on separate specialist it Hardware which protects the data once it’s written in addition they comment that the so-called Horizon featuring question has been assured under ernston Young’s Isa report testing since 2012 so um the that’s the potential complication so far as the Deo report is concerned and then at the next paragraph paragraph 255 you say um as is referenced in paragraph 2017 you work closely with Leslie Su the Ben CIO and in relation to technical matters such as these I and the other lawyers will almost certainly relied on her and her team to decide whether such a lack of documentation was a significant issue or immaterial I’ve not been provided with any papers that assist my memory in this regard but my general recollection is that following receipt of this report it was still understood within poll that changes made to the audit store left an indelible audit Trail and then you don’t know the basis of that um is the final line of your that paragraph after post office received the deoe report there was a project zebra action summary do you remember that I believe that’s the document that I’ve been sent uh uh prepared by Julie George that’s it and that was sent I believe you had it before but it sent to you last night along with an email um and and what the zebra action summary essentially was we have this report what do we have to do as an or organization to meet its concerns that was it wasn’t it correct it was a forward-looking piece of work yeah entirely so if we can we just look at that please it’s poll 3 31409 and if we could just focus in on the header um we can see that um thank you the the authors are James Ree and Emma mcin and this is reviewed and signed by Julie George it’s version three and it’s the 12th of June 2014 so it’s it’s a it’s about two just over two weeks since you received the deit report it’s about a month since the position um was agreed between rodri Williams and um Angela ven Bogard and Andrew Parsons this is draft three and um you’ve looked at this document I can perhaps summarize it it um identifies all the concerns that were raised by the deoe report and then says what action should be taken in order to meet those concerns yeah broadly speaking that’s correct yes could we go to please to page six of this report paragraph 4.2 .2 4.2 is technical so uh 4.2.1 is data retention what what’s needed to be done about that but 4.2.2 is data loging and it reads one point raised in this report was that it was possible for someone with privileged access to delete data from specific areas of horizon this is always a risk with individuals using admin or power user accounts and is a persistent risk one that needs to be catered For in almost any organization due to the sensitive nature of the information contained in the databases monitoring of those databases should be put in place using technology to detect and record deletions and administrative changes to the databases if possible alerts should be generated for mass deletions and high risk changes to database schemes recommendation remediation the solution currently in place May able May may be able to undertake level of logging required within their arise and solution it’s recommended that the current loging and logs are reviewed on a daily basis this needs to be investigated further and the options on how to handle this defined through the risk management process and based on the solutions already in place or ones that could be procured to handle this that’s signed off by Julie George as version three and effectively what this says is there are no controls and we’re going to have to do daily checks to make sure that we know about calculations this is not about inserting transactions is it Mr oard and this is not about balancing transactions it’s about deleting transactions it’s about of uh creating as I understand Del to put it uh fake fake digital signatures over fake information well it’s also about deleting material isn’t it if we go if you want to go back to the start I mean I asked you it’s about deletions isn’t it uh yes in your and then creating fake material afterwards um and and um it’s plain that these people in post office understood that data could be deleted and that would not be immediately apparent to the post office let alone postmasters correct that that’s what this implies yeah uh and of course we’ve heard other evidence from Mr Williams that post office really only appreciated this after the Swift review but this is something different did you see this document in 2014 Mr ojard I I have no recollection of seeing that document that’s not to say that it either wasn’t described to me or sent to me but I’ve had no nothing to make me uh Rec do my recollection in that regard um uh I would say that um from recollection of Julie George what was part of the uh team that was uh tasked with looking at what should happen uh following receipt of the de report again from recollection yeah and we you part of that to Mr O I was I I was the chairman at that stage of the um risk and compliance committee right received reports if you had seen this would it have been incumbent on you to correct what appeared to be the public position of post office in respect of the concerns of second site if I had seen this I think it would have been coming on me to talk to both Julie George and her boss Leslie Saul and ask what this meant in practice um for example yeah one of the um one of the things I think she comments on is uh people with requisite access rights an obvious question I think to ask is are there such people with requisite access rights yeah or are such access rights separated yeah for eyes principle so I don’t I I have no recollection either of um of taking that action um I may have done may not I may not I may have seen this or I may not I’m sorry that I can’t help so perhaps to summarize you’d have drilled down you’d have made sure as to whether or not people did have this access if they if people have did have this access you would have made it very clear publicly that people did have this access because this went right to the heart of the Integrity of horizon as we uh established right at the start of my question your VI I I would have asked the technical people what this what this really meant in the real world right is this an issue or is this not an issue okay that my that that from what I um know of my past Behavior that’s that’s what I would have done at a conversation or more with uh JY George not JY George with um Le okay well let’s have a look at any sorry go on so I was going to say um and if I did do that and and I have missed something that is that is a matter of in deep regret for me absolutely two um the public position has set out in the Bon Dickinson um rodri Williams statement is not consistent in my view with um uh with the statements here circumstances where there is an individual who has um the requisite access rights thank you very much Mr O I could just move on now and can we look please at P20 346 958 P2 346 958 um very grateful for the focusing in it’s from Julie George it’s the 17th of June 2014 so just a couple of days after the um the um zebra action summary was completed we can see that this subject line is zebra action summary version three the version we’ve looked at and the attachment is zebra action summary version three and it’s it’s sent to Rod Isme David Mason Malcolm Zach and Gina Gul and uh and it reads as follows I’ve tried to call you Rod attached to draft summary of actions arising from deo’s recent piece of work on the horizon system clearly there is no blame attached anywhere and this morning’s meeting with Chris Day Chris ojard Leslie and Malcolm focused on what we would need to put in place as an organization to address overall Assurance on all critical systems starting with Horizon from the first of April and it it it continues detailing appropriate industry standards and controls our business should be following against a risk based priority mechanism and and and continues that Rod we’d be happy to come to Chesterfield however it’ be better more cost effective if we could have a morning or afternoon in the next week or so old Street we four will need to be comfortable that we have a plan going forward including indicative costs of undertaking for risk and compliance committee on 21st of July which of course you chaired Mr ojard as you said and we will need to engage with ex Co members that is that the executive committee members correct attached and they um we’ve seen their names attached to veryify and agree to support prior to the committee meetings Gina can you arrange a meeting between Rod Dave Malcolm and myself thanks now it would appear from that bear Mr ojard that you were in a meeting that morning um with the reviewer as well as Leslie that would be Leslie Su uh and you were focusing on what you’d need to put in place as an organization to address the overall Assurance on all critical systems starting from the 1 of April of the following year presumably and um dealing with the points raised by the the zebra action summary yes there was a clearly a meeting in that morning yeah and you plainly will have seen the zebra action summary that morning and you PL will have fed in to the need for things to be addressed here for exco to become involved and for risk and compliance committee to sign everything off on the 21st of July were these recommendations followed and were actions taken to ensure overall Assurance on all critical systems starting with Horizon from the 1 of April um so my recollection is that the this ended up being a matter to be discussed at uh the risk and compliance committee meeting um and tracking was given to um the internal audit team a team was tasked with uh looking at changes that needed to be put in place uh in order to uh ensure appropriate Assurance over um I’m imagining it’s critical it systems uh in the organization um but I have no further documentation to show what other actions what what those were other than a record of the fact that there there was there was an agreed course of action in relation to these matters do you not think to tell second site who just been told a month earlier that that with that certification as it were actually may have got it wrong it may be that they can delete and postmasters wouldn’t be able to see all the deletions um I think that the uh again from recollection I’ve said my witness statement the uh sense from those that were reviewing um the uh deoe report was not that this was a uh a critical or significant matter uh and I do not know why that is the case um clearly the matter was considered and discussed by numerous people internally um it could be and I I don’t want to speculate but it could be that it was that there were no persons with the requisite with excess rights and that was a reason or there could be other reasons for it thank you very much Mr ojard that’s all I ask okay thank you thank you Mr Maloney um is it Mr Steen next yes sir Mr oard I’ve got a few questions to ask you can I start with please a little bit about your background you’d worked um in corporate law mainly in merges and Acquisitions is that fair correct my there the reason I was post office was for that purpose because those was corporate uh Financial Services uh and that was the role that was described to me predominantly given the post office as a distributor of financial services and uh you’d also worked for individual companies such as the National Australia Bank Ro London singer and freed Langer uh and um ju stint as general Council for a gold mining company is that correct yes that’s correct okay now your experience of working for those sorts of companies were that the boards of those companies were curious interested engaged um possibly quite annoying because they’re trying to get hold of you late at night and ask detailed questions before board meetings is that correct correct yes and in fact you set out what I’ve just summarized at paragraphs 26 and 27 of your statement at page 12 I don’t ask you to go to it what you say about uh some aspects of matters in relation to the post office office is that the decision-making processes tended to be uh more datadriven in your past employers rather than based on political concerns such as how a minister or an MP might react to a given decision within the post office is that fair correct yes so do we take it from that that the post office was often concerned about how it looked its image and brand rather more than more often the detail concerns had found in corporate companies that employed you in the past um I in a company which deals with consumers of course there is always a brand uh concern but in terms of the political angle uh that struck me as uh different uh not something I’d experienced before in other companies now the work of general counsel as you’re aware is to effectively uh be the senior uh lawyer um bringing together all of the different aspects of legal advice that are required and providing advice based upon that to the board is that correct that’s that’s that’s part of the role yes yes it is also General Council work is involved in diminishing risk to the business and making sure there’s a high standard of legal compliance across the business do you agree um compliance within the legal risk appetite which is set by the board typically yes yes all right um can we have a look please at how you dealt with one particular matter do you remember that uh the working group was concerned about what was happening or what had happened to sub postmaster monies when they paid uh money into a suspense account and whether that money had been taken into income or profit as part of the Post Office business do you remember those concerns yes those concerns I think started in mid to late 2014 and Sir Anthony Hooper was particularly driven by those concerns was B basically tried to find out where on Earth the money had gone is that correct I don’t know whe his concerned to find out where the money has gone he was concerned to find out how the money was accounted for well perhaps perhaps that’s a fancy way of saying where’s the money gone let’s have a look at a document that deals with your um with the way that you dealt with that particular matter can we go please to pp0 40805 and if we can go please to page uh three or four of that document and uh scroll down a little bit further you’ll see there at the middle of Page Three that there’s an email from you to alist Cameron subject suspense accounts do you see that Mr ojard do indeed okay so um the first part we don’t need to deal with um you then go on to say as you will see I really need someone from your team who has technically switched on resuspend accounts and can handle themselves in front of an adversarial audience okay so you wrote that then you go on to say this as you can imagine I am concerned we give second site no more information that is necessary to address the narrow proposition that money is missing from an SP spmr account is somehow taken into our suspense accounts and then appropriated to our profit and loss now you don’t appear there to be suggesting that Paul should take an an open and inquiring attitude toward these issues you appear to be on the other hand trying to take a less is much better attitude towards um these particular issues do you agree I think I believe I’m taking the approach that polls should um answer their question but not uh not engage in um matters which are um extraneous to to their investigation in other words can we translate that as your advice as general counsel to Paul was make sure that Paul doesn’t take any risks uh my advice I think here is to not this I wouldn’t characterize this advice this is uh in the context of a uh new newly arrived um CFO uh who has um limited um background on the mediation scheme and and uh the series of questions that have been asked about suspense accounts going back and forth so I do I do acknowledge uh that it is Abridged and abbreviated and it it uh looks uh it may may be interpreted the wrong way indeed it may have been read the wrong way by um alist aliser Cameron that wasn’t the intention at the time the intention was to make it clear that this there was more uh to this matter than simply a factual request for factual information I think as it turns out my concerns were were misplaced um about this but um as aliser um I think provided the information uh that that second site needed and um ensured that the right tip meth expert was made available all right in the middle of that long answer do we take it that you accept that as the nearly arrived individual dealing with these matters you were risk adverse I I I I I was I I uh I’m relatively risk Avers yes right let’s move on then to one remaining matter I think which is the um an answer you gave to questions being answer asked of you by Council to the inquiry when you were last here you gave evidence in relation to uh matters previously on the 24th of April and you were asked this this is about the Simon Clark advice of the 15th of July and the Helen Rose report okay so um to Miss Paige you said these words in advising the board I felt they needed to be advised on all the risks they were presented with those were what you said to Miss Paige when you answered her questions earlier what you said to Council of the inquiry about the Simon Clark advice and I will read it from the transcripts it says this following a meeting with Paula venel did you inform anyone on the board about the Simon Clark advice of the 15th of July 2013 your answer to Council of inquiry was this now I’m afraid that I had assumed that this advice had been or at least the contents of it had been communicated to the board prior to my arrival then you asked this question is it the same for this Helen Rose report yes indeed yes was what you said to Mr Stevens Council to the inquiry now help us understand a little bit more about what you you mean by this are you saying that you can um think back now some 10 years and you can think back to yourself sitting at a desk somewhere within uh the post office organization and you can think back to you assuming that the Simon Clark advice on the Helen Rose report had gone to the board is that what you’re trying to tell us you can remember assuming something no I think I was answering the question what was my uh the question I think I was being asked at that that stage was um did I think it uh uh did I did it occur to me to uh make the um Simon Clark advice available to the board and I think the in circumstances at the time day two of a new role uh with this being an appendix to a large document my um I would have thought that that would have been flagged up to me very clearly so if it hadn’t if if it required further action absent that being flagged up to me um I would have assumed that that there were no there was no further action required to be taken do you do you know what on Earth you did in relation to this matter at all or you just making an assumption that you an assumption that you’ve assumed something I I was guided very much uh By the uh individuals I was dealing with at um uh cartright King as to what the next steps were so no I I wasn’t just assuming things I was listening and engaging well you’re listening and engaging in a way that seems to completely ignore a red hot topic of the Simon Clark advice in relation to Mr Jenkins and you’re listening and uh concerned attitude in relation to that is not to urgently take it to the board do you agree um as I said to the inquiry when I gave evidence last week um in the normal course of events I would have expected something which is uh that is red hot and Urgent to be flagged as such by um the individuals briefing me that is indeed the way General councils um operate people brief and um inform them of I’m terribly sorry the lights have gone out here um the that is the way the role works but you also have personal responsibility don’t you you have a responsibility to do your job you are Guided by the regulatory objectives in relation to your work as a lawyer which I basically say for you that you need to take independent decisions on your legal advice do you agree yes indeed right so where is this that we can see that in dealing with red hot topics such as the Clark advice and the Helen Rose report which must surely you must think go to the board where do we see your role in that as being what a complete incompetent someone that failed to do it someone that was so risk adverse that you prefer to keep it away from the board which of those is it I don’t believe it’s any of those I believe that um as I said Inari last week um I was in a m with a matter as you put it is red hot um it would have been flagged to me as such on on arrival um my um briefing if you like on arrival was that the the actions that needed to be taken um were in relation to the sift reviews and that was the um totality of action that needed to be taken had there been um an indication that further action needed to be taken would expected that to be um brought to my attention in in very very firm terms Mr roard you rapidly came to a conclusion as you and I discussed at the beginning of my questions that this was an incurious board a board that didn’t operate the way that previous corporate uh boards that you had been involved with had worked in the past they didn’t ask the questions late at night in calling you irritatingly to get your advice they didn’t ask for short presentations before board meetings so you were aware rapidly on assuming this role that this was a um uh a board that barely it seems from your evidence be paying any interest in matters and yet you didn’t make sure that they were aware of these high risks is that what we should find from your evidence Mr ojard no no I think what we should find from my evidence is that um I I retained a dialogue with cartright King and uh they indeed uh were also involved in ongoing collation of um data that um could or should be closed to um uh persons that have been convicted of a criminal offense um and I would very much have expected that this matter if if it was uh uh significant is something that they would have mentioned to me on not just one occasion but more than one occasion and that that’s that’s not to the best of my Reon what happened Mr can we say as summary that the position appears to be that the executive team within the post office was essentially the main body for decision making rather than the board of the post office is that what we can take from your evidence that it was Executives making decisions rather than the board no I believe that would be incorrect all right thank you I think I think that we’ explored that enough now Mr Ste yes so that was in fact the end of my questions but anyway thank you sir perfect uh Miss Oliver thank you sir good good morning Mr oad I ask questions on behalf of Gareth Jenkins you gave evidence last week that you had been briefed by cartright King as to issues that had been raised in relation to Mr Jenkins is that right uh uh yes yes you were aware that he’d been used as an expert witness in past criminal prosecutions brought by the post office is that right correct and you told us that you were aware that an expert in a criminal trial owed a positive duty of disclosure including a duty to inform the prosecutor of any material that cast doubt on his or her opinion or that could arguably assist the defense correct were you equally aware of the duties that rested with a prosecutor who was calling expert evidence I don’t know whether I’d be expressly aware but by implication that must be the case can I perhaps outline a few of those for you and you can tell us whether you were aware of them firstly to satisfy themselves that an expert had been appropriately instructed by the provision of a written relevant and detailed letter of instruction or terms of reference setting out the issues and questions the expert was expected to answer were you aware of that I I don’t know if I was aware of it in those terms but it would be something that would follow from the of an expert witness thank you secondly to provide explicit guidance as to what the expert was being asked to do and what material they were being asked to consider was that something you were aware of not in those terms but again it would follow from the um it would follow from the nature of the expert witness in my view and thirdly to inform the expert as to their relevant duties and to satisfy themselves that these had been both understood and complied with was that something you were aware of uh again not in those terms but it it must follow from the nature of the overall Duty uh to to the court thank you you were taken to the briefing note which reflected the Clark advice which was annexed to it which I think you were provided with in October 2013 I’m going to try and avoid going to it but do you remember that that consider that set out that it considered Mr Jenkins failure to mention the Second Sight bugs or the the bugs that were mentioned in the interim report in expert witness statements breached his duty of expert disclosure do you remember that conclusion I have no independent recollection prior to reading the document but upon rereading it correct thank you a and your evidence last week was that to your mind this was an historic issue you and you were given assurances by cartright King that the issue had been or was being addressed have I summarized that correctly no I don’t think you have summarized that correctly I I I think uh when I arrived in the post office on October the 14th um I was given a a large range of briefing material very very large range the role of the general council is very extensive and covered many areas this was just a component part of that uh the this particular briefing I received on the 16th I believe of October and uh my um understanding from that was that this was background briefing it wasn’t uh there were no further there was no further action to be taken and that the action that did need to be taken was in relation to the so-called sift reviews and that was put U at the very center of my attention um on uh upon receiving that briefing so it wasn’t that I received a briefing that nothing should be done the opposite is true I I received to the best of my recollection no briefing at all in relation to any ongoing uh Duty that the post office had in that regard so your view that it was an historic issue was your assumption on reading that briefing rather than being given Express assurances assumption would be uh putting it the wrong way around it was a meeting I think the briefings were designed to identify courses of action that I should take as the incoming interim General councel this wasn’t identified as as an ongoing action um in your witness statement you indicate that in addition to the briefing pack you were provided with Brian ultman Casey’s written advice dated the 15th of October 2013 do you remember that yes I do yes do you recall that in the course of that advice he comments I am not clear whether Mr Jenkins was challenged about the non-disclosure to post office and if so what the explanation was for it I’m not sure recall that that paragraph We can go to it it’s P0 6581 please it’s paragraph 148 of that device that advice on page 47 thank you does reading that paragraph jog your memory in that regard sorry is it paragraph 148 or 149 it’s the beginning of 148 yes yes I can see that paragraph now and is that something you would have read in October 2013 I can’t say for sure that I read um the entirety of the advice but I’m uh sure that I would have looked at the advice and tried to pick out Salient uh uh points that were required further action um reading this now I cannot see that there was a um that it would have immediately Le off the page to me that there was a an action buried in that paragraph to the extent that that paragraph makes clear that Mr Jenkins or at least to Mr alman’s knowledge Mr Jenkins may not have been challenged or been able to give an explanation as to the alleged nondisclosure did reading that advice prompt any concern on your part that post office needed to ascertain the circumstance ances in which Mr Jenkins had been instructed including an obtaining including obtaining an explanation for him as to the alleged non-disclosure I don’t believe that uh that paragraph alone would have prompted that conclusion um as I said it was um upon joining I was received an enormous volume of background material in that context as the role itself is extremely wide and covers many many matters other than the matters that concern the inquiry today I I I think that in that context um I believe I would have read that trying to understand uh I would have imagined the time I read this my understanding of what had happened previously was was relatively limited and that I had um an um a very imprecise um understanding of um all the events that have occurred uh prior to my to my arrival so the answer to your question is I don’t think that would have prompted uh a trigger to do take any action does it follow from your answer that whether from this advice or from an independent conclusion you were able to draw from all the material that had been brought to your attention uh you did not feel prompted to ask any questions of cartright king or the lawyers at post office as to how Mr Jenkins had been instructed and specifically whether he had been instructed as to the expert duty of disclosure no I don’t believe that I that this this paragraph or other matters would have prompted me to ask uh that question um however I did ask I believe the um question on what basis was he tainted and uh I recall my general um understanding throughout my entire time at the post office two bugs in the system which he had failed to disclose so I did clearly ask a question about why is it that he is Tainted can we please go to [Music] p0155 please um this is a note um dated the 2nd of September of 2013 we now know that it was authored by rodri Williams if we can just go down to the bottom of that note please on the right hand side we see noted there the question what were we doing to instruct GJ from what we take we take from that that that means Gareth Jenkins and on the left hand side a list under the words M Smith don’t think he’s ever been advised of his duties um when you joined post office shortly after this note was written in September did anyone share with you a knowledge or concern that post office had failed to instruct Mr Jenkins properly or that there was at the very least a serious question as to whether they had um I have no recollection of that uh being shared at the at the time or shortly after joining would you have expected that to be information that Mr Williams ought to have shared with you the concerns in this note ye yes yes indeed I think the general structure of um of legal teams in house legal teams General council’s role as it relies very much on a a sort of a full and candid um description of um of of of matters being disclosed to you by all members of the team um in a sense without prompting so um I have no recollection of it I’m not say I don’t believe that it was mentioned to me at all in those first few weeks at poll or thereafter and do you agree that following that mission statement of full cander um that the potential failures acknowledged in this note both in relation to the their relevance to individual cases but also because they may give rise to serious questions about the basic competency with which post office prosecutions were brought were so serious that they ought to have been shared with post offices board with second site with the mediation scheme with Mr ultman and with the CCRC yes indeed I do I do agree with that if if this had been made as clear as has been made uh in the course of the last few minutes in this questioning to to anyone I believe in the in the the legal team that the um Next Issue would be who who knows how should the what what are the implications of this I’m grateful um if I be may be permitted just to ask on one final topic sir I hope I can do it in in about two minutes thank you uh and it’s just to follow up on some questions you’ve been asked about um remote access and knowledge within the post office in 2014 as to fujitsu’s ability to insert transactions remotely and crucially in a ma in a manner which did not require the approval or consent of spms um if we can quickly please go to [Music] poll1 08538 and the top of page four please thank you um this is an exchange between Mr Williams and James Davidson of Fujitsu on the 14th of April of 2014 James could Fujitsu please answer the questions below so that we can respond to a specific challenge put To Us by second site in connection with a mediation scheme complaint namely that the Andy win Allan Lusher email in the case of Ward were you aware that that was a 2008 email that had been identified by Second Sight no I don’t believe I was um that that email explicitly sh states that Fujitsu can remotely change the figures in the branches without the spm’s knowledge or authority um and there follow a series of questions for Fujitsu if we can then please go to the top of page two at question two Mr Davidson is asked can Fujitsu change Branch transaction data without a sub postmaster being aware of the change and the answer comes once created Branch transaction data cannot be changed only additional data can be inserted if this is required the additional transactions would be visible on the trading statements but would not require acknowledgement or approval by a sub postmaster the approval is given by post office via the change process were you aware of this information being obtained from Fujitsu in April 2014 um I don’t don’t believe that I was copied in on that email chain but I could be uh wrong um if I was there was a subsequent chain which I was copied and on which um concludes with a question and and the answer and I comment on that in my witness statement um so uh I don’t know if that is the same chain as this or not certainly in this version of the chain you’re not copied in although I think you are referred to can we please go to something you were aware of which was the draft project zebra deoe report dated the 23rd of May 2014 um that you recall led to the answer led to the asking of four questions to deoe the answers to which formed part of the board briefing dated the 4th of June of 2014 if we can perhaps go to that please it’s poll tri0 28069 and if we can go to page eight of the document although it’s internal page seven please and the bottom of the page thank you under number three um this document is dealing with the balancing transaction process and it says this is an emergency process accessible only to restricted IND individuals in Fujitsu which can create transactions directly in Branch ledgers this process creates an identifiable transaction in The Ledger verbally asserted by poll staff to be visible to sub postmasters in their Branch reporting tool but does not require positive acceptance or approval by the sub postmaster um do you agree that both of these documents from April and May 2014 clearly sorry of June 2014 clearly showed by then that it was explained to post office that a balancing transaction could be done by Fujitsu without requiring the approval or consent of a sub postmaster yes I agree that that this this this um is references the possibility um in circumstances where there are individuals with the approp appropriate access right yes yes you were taken by my learned friend Mr Maloney to a holding response that was sent to Second site in line of those James Davidson answers that were given in April 2014 and I think you’d agree that holding response made no mention of um the fact that balancing transactions don’t require approval or consent do you agree with that in light of the limitations in that holding response was that knowledge about balancing transactions and the lack of approval or consent by uh sub postas ERS shared by post office with second site and the mediation scheme working group I don’t believe it was and I believe the reason for that is that it was as I said earlier perceived within post office that this was a very positive document uh indeed there was um there were proposals to publish it um and make it widely available um which were un happily not proceeded with due to um restrictions imposed by I believe deoe um so the to answer that question precisely it it was known but it was the understanding of the implications this are quite were quite different then to what they are today and the reasons for that I’m afraid I just do not know okay do you think it should have been shared at the time I believe knowing what we now know about uh Horizon and the uh matters that have come to light and with the benefit of hindsight this this document uh or the this this particular finding um should have been yes indeed I don’t think you need hindsight do you um Mr oard to be able to say that when second site ask the post office a specific question um which requires a clear and specific answer they should should be given it yes sir that’s correct sorry I was referring more generally to the uh rest of the world all right I think that concludes the questioning for you does it not miss all of that it does and I’m sorry to have gone over time sir thank you that’s all right um so thank you for your very long witness statement and thank you for attending twice uh to give evidence to the inquiry I’m grateful to you so uh Mr Stevens shall we break off for our morning and I think we better make it a 15minute break now given the events which have occurred uh yes sir and then we’ll we’ll hear from Mr Smith yeah fine so does that make us um uh what time should we start 11:25 yeah 11:25 sir thank you by e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e good morning sir can you see and hear me yes thank you thank you Mr Smith has returned and will be with us for the rest of the day today yes of course thank you um Mr Smith we left off yesterday after discussing the conversation you had with JN El Singh I think you said you were in a car pulled over to the side of Road yes I i’ parked up um at a suitable opportunity and and then um attempted to record the latter part of the uh conversation given what Mr Sing was telling me um and you said record was that on on your phone or um it was using one mobile phone my personal mobile phone to record the conversation that was taking place on my at work mobile phone um did you retain that recording um I didn’t retain it no um it was removed from my personal mobile phone before I went abroad I asked Carri King to remove it for me when you say you removed it you moved it onto a different device or um I left I left the IT department working out how to download it and are you aware of whether it was or wasn’t downloaded I believe it was um and if it’s still held will it be held by cartright King I I have no idea whether it’s still held I’m afraid I I left cartright King some time ago thank you the inquiry will make inquiries about that recording um can we please look at poll 001 39747 I’m now moving on to Mr Clark’s advice that followed that phone call if we could start by looking at the second page please we can see there Simon Clark is circulating um a draft of his advice and if we scroll up um we can see that you are one of the recipients I don’t need to take you to it you did respond to this with some typographical changes are you aware of having made any other I I did respond to it did I you did yes um I mean I can take you to it if we if you’d like to see it but it was just typographic I I I don’t I don’t recall making changes but I I I don’t dispute that if you say that I did respond to it then I I did yes for the record it is Paul 00 327054 but we don’t need to go to it um there’s a response from Steve gorp who who was he he was one of the um directors one of the senior directors at cartri King and I’m going to read to you the second paragraph there he says I have seen Simon Clark’s note the comment I have is how we are going to impart the advice to the post office that if there are factions within it who are running around trying to lay off blame for their own shortcomings by lying about the advice they have received then they lose privilege I thought Simon Clark’s advice would cover this on reflection it may be something for Andy to raise with Hugh and to note uh or to confirm in a letter to him can you assist us with what your understanding was at the time of fact within the post office I didn’t fully understand um that comment made by Steve gorp um what I assumed he was referring to was the suggestion being made to John El Singh that if anyone asked about the destruction of the minutes I.E the central record they would say that that was the advice of cartright King and of course that wasn’t the advice of cartright King it was cartright King who advised that they should have a central record was your understanding at the time of that conversation that cart Wright King were being intentionally blamed or that somebody had misunderstood advice that cartright King had given um I don’t I don’t think it was a throwaway comment I think it was a comment made that if an inquiry was made about why minutes had been destroyed that is what would be said that is why I was so concerned about what I’d heard said said in a threatening manner or in well I I it was related to me by Mr Singh so I only had what Mr Singh had said but did Mr Sing say that he would tell somebody or or that Mr Scott would tell somebody that King Mr Sing who had um reported to me what um um Mr David posnet had said thank you let’s have a look at the advice itself it’s poll 0000 6799 thank you and if we scroll down and over to page two please we can have a summary of information that Mr Clark says had been relayed to him um he says as follows at some point following the inclusion of the third conference call which I understand to have taken place on the morning of Wednesday the 31st of July it became unclear as to whether and to what extent material was either being retained centrally or disseminated the following information has been relayed to me um one the minutes of a previous conference call had been typed and emailed to a number of persons and instruction was then given that those emails and minutes should be and have been been destroyed the word shredded was conveyed to me and where he says the following has been relayed to me and he says they’re conveyed to me is that by you or by somebody else it would have been by me because this is very soon after the conversation with Mr Singh um and I think yesterday you said you couldn’t recall the exact words used I cannot recall the exact phraseology that um Mr Sing used um I cannot recall how he phrased it um I do recall being quite horrified and as I say recording the last part of the the very last part of the conversation um and as a result of that I recall traveling to Nottingham playing it to Mr Clark and relaying my recollection of the conversation and the concerns which Mr Singh had and which I had presumably it’s quite unusual for you to have recorded a client um very unusual I I was I was so concerned about what I was being told here um I that is why I Ed my other telephone to try and record this were you concerned about the potential impact on cartright King and their reputation I was concerned that wasn’t it wasn’t the concern about Carri king um well I suppose I would have been concerned if people were going to make allegations against carat King but I was concerned that the head of security at post office limited was allegedly suggesting that the central record be destroyed um the second point there is handwritten minutes were not to be typed and should be forwarded to the post office head of security again is that something that you would have relayed to Mr Clark um yes he wouldn’t have known otherwise and the third advice had been given uh to post office which I report as relayed to me verbatim and we see there the words used again when he says relay to me verb is that by you um I would expect so yes and that is in fact very similar to the minute that we saw yesterday isn’t it from Mr Parson yes was that your intention to convey the words that had been used by Mr Parsons in that meeting I think this was a a a a general conversation because I was unimpressed with how the approach to the Wednesday morning call was changing and I was also concerned about the conversation I’d had with with Mr Singh so this would have been a a a general conversation with Mr Clark so the information you’re providing Mr Clark with is not just from that conversation you had with Mr Singh but also for ex example the information that you obtained on the 19th of July weekly meeting well what I discuss with Mr Singh was my perception of how things were changing so it wasn’t just discussing the uh the the um the report that he had received from um Mr posnet I was discussing also with him um how the landscape appeared to be changing and and I and I wasn’t impressed by that and that’s number four some at the post office do not wish to minute the weekly conference calls um who did you have in mind there um I don’t know if uh we ascribed any names to that um thinking back to the time who might that I I I I do recall on the third call um saying to um rodri Williams that it was necessary to maintain a central record so I don’t know um whether I had him in mind at that particular point or other people but I was quite clear on the third call that it was necessary to keep a central record um and then of course um my subsequent call with um Mr Sing I think was either lateer the potentially the lateer the same day I think it could have been that evening thank you and um let’s have a look at the response from the post office to this advice could we please look at poll 000000 6797 I don’t know if you saw the evidence uh of Mr Williams or um of Mrs kryon where we discuss this document uh I I haven’t um had time to watch this all the time um so this is the response that is in Susan kon’s name I think um Roger Williams may have given evidence that he drafted it um I’m just going to read to you a a few small passages in the first paragraph it refers to Mr Clark’s advice and it says as follows that advice was prepared as a consequence of statements purportedly made in connection with the weekly conference calls uh we established to share across post office limited um issues identified with the Horizon system if we scroll down um we can see a paragraph there that says post office limited is committed to conducting its business in an open transparent and lawful manner any suggestion to the contrary would not reflect post office limited policy would not be authorized or endorsed by post office limited accordingly the purported statements referred to in Simon’s note do not reflect or represent post office limited’s position now they referred to there as purported was it your view that the information that had been conveyed in Mr Clark’s advice was simply purported or something that actually occurred I was under the impression uh that it was it had actually occurred now um if an instruction is sent out and and emails have been sent out to numerous people then obviously um not necessarily everyone is going to react to them at the same time in the same way um but nevertheless um I was concerned that an instruction had been given and information had been destroyed the commitment there to openness transparency Etc um does that reflect your understanding of the post office’s Approach at that point in time I think my my view changed over time um there was certainly um attempts to use um legal privilege to um cut down the amount of information which um might otherwise enter the public Arena but at this very early early stage um I was certainly of the view that there was going to be a single Central Hub of information which was going to be accurate and I could understand the position that post office would wish to avoid from a uh well from a um publicity perspective and also a civil litigation perspective of poten having incorrect information um through supposition or guest work entering into the public domain so um from your dealings with Mr Singh at that time Mr Williams at that time Mr Scott at that time um do you think that the statement that’s made there from the post office was an accurate one not in relation to Mr Scott no because WS um ask for the uh or instruct that the minutes be be destroyed can we please move on to poll 00 325492 and if we could please move on to the second page the bottom of the second page there’s an email from John El Singh to Mr Scott and Mr Parsons and it relates to the weekly call and it says john/ Andrew I understand the remit of the above meeting was to establish a weekly conference call to act as a central hub for all Horizon related issues attendees to bring all Horizon related issues that they had encountered minutes were to be taken centrally retained and disseminated to those who required the information most certainly the post office’s Horizon expert and QC would require this information and then there’s a list of um various issues that had been raised at telephone conferences and if we scroll down there are a series of questions that are posed in Mr sing’s email to Mr Scott and Mr Parsons and he asks who is retaining this information who is hunting down the issues what has been the precise problem in each case how was each case resolved and the contact details of each attendee need to be circulated amongst the group now first of all does this sound to you like an email that was drafted by John El Singh no um can you assist us with who might have drafted it if we scroll up we can see the recipients let let me pose the question slightly differently then um did cartright King draft emails that were sent by John El Singh in his own name there were certainly cases where um emails that had been sent to John El Singh could have been or would have been cut and pasted by Mr sing um but I also had almost daily telephone calls with Mr Singh and would um explain my views on things or pose questions and it was not uncommon for those then to appear in an email so is it possible that this email followed a either an communication from Yourself by writing or by a telephone call with yourself it is certainly possible that this email was sent by m Mr Singh following um a conversation with me um because I I think I would have been concerned to ensure that the minutes the central record was being kept and it sent to John Scott but also to Andrew Parsons and is um starts with saying John Andrew is there by this stage a kind of turf Warfare going on between cartri King and Bon Dickinson I don’t I don’t regard it as Turf Warfare um I felt that Bon Dickinson perhaps having too much control over post office and that’s what I um said to Mr sing um when I was in the car that particular um evening when when we discussed the uh the instruction to D Joy um the uh the minutes that had apparently been given because my view was that we had as a firm advised very clearly that a central record had to be kept that advice had been accepted by the legal team at post office um that advice was given by Simon Clark with myself present at at a meeting in Old Street um very soon after the second site interum report had been um um I don’t know if it’s been published at that time but we’d become aware of it certainly but that that information was important to post office post office had accepted that and then set up the Wednesday morning call and within a couple of of those Wednesday morning calls it’s almost as though that requirement to keep a central record was being watered down it was being being um I I I took the view it was being um overridden if you like by civil litigation objectives um because at the very first um Wednesday morning conference call Mr Parsons had been discussing the uh and of course I don’t as I’ve said yesterday I don’t agree with those minutes and it’s not a transcript either but Mr Parsons had explained from previous experience how it can generate nasty surprises when you have to do a troll of emails across an organization and you can find out things that you don’t know and find out things that are incorrect as well and I didn’t think from a criminal litigation point of view that that would be helpful either so I could see that um he was advising from a civil litigation point of view but by the time we’ got to the third conference call and there was a suggestion that actually we’re going to change the way we’re doing this and I can’t remember uh that call but there was definitely a suggestion of a change in the way that it was going to be approached and I felt that that was um effectively the the influence of the the civil lawyers if we scroll up we can see the response from Mr Parsons in relation to the question who is retaining this information he says minutes have been taken of each meeting along with action points these have now been collated into the attached weekly report if we scroll down C what has been the precise problem in each case and he says as follows to the extent that details about a problem are known these have been captured in the minutes however this will always be challenging because the discussions at the meetings can be quite fluid do you think that that was a full and accurate picture that’s being painted there of recording problems do you think the fluidity of the meetings hampered the minting of those problems um I don’t think the meetings were actually that fluid um I think the meetings were actually quite structured at times there were issues hearing people because of dogs barking in the background or other noise um but certainly that I didn’t jump out of the page jump off the page at me at the time is’s anything to be concerned about but looking at this now does it look to you to be a fair and accurate picture that’s being painted there of well look looking back at this now um I I don’t think the minutes were that accurate I don’t think I realized that at the time well I didn’t realize that at the time um because generally when minutes were circulated I simply filed them with a view to taking the view that’s the central record and we’ll be instructing an expert in due course who can have access to those minutes not accurate in the sense that there were typographical issues or not accurate in the sense that they underplayed certain issues uh not accurate in that they underplayed certain issues and I I came to that conclusion when I was drafting my second witness statement because although I don’t have the notes from those um individual meetings which I was taking myself on I and as I said I took quite detailed notes um I was able to compare the information that Mr I think it was Mr Boer had repeated in certain documents and compare that against the that had been provided and I had more information than the minutes in in certain circumstances can we please look at poll 00 323 676 this is an email from yourself to Susan kryon on the 19th of September 2013 and it also relates to um the weekly calls and you say as follows Susan many thanks for your email I’ve been considering the position today and I remain extremely nervous about having fujitsu’s lawyers on the Friday conference call at the present time only post office lawyers and lawyers instructed by the post office are on the call if Fujitsu lawyers are on the call they will have a duty to report the entire contents of the call back to their client whilst there may be Merit in us meeting with Fujitsu lawyers if for example they are able to assist with disclosure Etc I think that such meetings should be on an ad hoc basis and with very clear and limited agendas with a conference call there is in my opinion a greater risk that the fij Jitsu lawyers may try to raise issues which we/ you would prefer not to be discussed in front of them in reality was this a concern on your part that in fact Fujitsu lawyers would raise things at those meetings that you were concerned about being raised at those meetings no I was actually concerned that um that fujitsu’s lawyers might try and um first of all um push the conversation in in in directions which were um fitting their agenda rather than post offices um and quite frankly I didn’t I didn’t trust them were you not concerned that they might bring up issues such as the reliability of Gareth Jenkins within those meetings um I have no doubt that that would have been probably brought up by post office limited but I didn’t think that it was appropriate for post office limited to discuss that with um fujitsu’s lawyers at that stage one of the concerns that I had was that I I I have a I have a I think I think I have an impression that um in the case of jishan Patel which is a case we touched on yesterday that I was told that that witness statement was coming to cartright King via the internal lawyers via Fijit su’s lawyers and of course we know that that um witness statement or I seem to remember that that witness statement only made reference to a single bug at cender Square in faler and of course that is only one very small piece of the jigsaw puzzle of course a lot more has come out since but I I was concerned about the um involvement of Fujitsu lawyers at that stage thank you Mr Smith are we to understand from your evidence yesterday um and your evidence this morning that you were in favor of things being recorded uh that you were in favor of transparency and that you um in your work for the Post Office were were not concerned about keeping things off the Record the I think generally the approach changed over time because post office were concerned about things unnecessarily going into the public domain and so whilst um we set out with the idea of making that was being properly recorded in terms of transparency um I do realize that as the um as time went on post office um had if you like a preference to avoid things going into the public domain unnecessarily and that was pretty much driven by I believe the civil lawyers and rodri Williams who would say well this is a mediation case or this is a a um group litigation case um let’s not make any unnecessary correspondence about this um I took the view that well they’re the experts in civil litigation um I wasn’t going to get involved with that my concern was that there was a central record do you think that over time you ultimately played a part in that um lack of recording of issues to do with Horizon I can’t think of uh playing a part of a lack of recording of issues let’s look at some documents from 2016 can we please turn to poll 001 39681 this is a meeting from the 23rd of March 2016 um we see regular meetings in 2016 are these now litigation meetings rather than the original weekly meetings no they are they are the when what if the 23rd of March 2016 was a Wednesday that would have been one of the Wednesday conference calls they were initially on a weekly basis then they became bi-weekly at some point um but inevitably there there were references on some of these calls to the the the civil litigation that post office was being involved in and I can recall post office um wanting to um be careful about again generating email traffic I know I think at the time I think you’re you’re anticipating the questions that I’m going to be asking um so this was the weekly meeting yes well whether it was weekly or bi-weekly at that time I I don’t know I’m afraid but it was Wednesday what was originally called the weekly meeting yes um if we could have a look at page two please we have an entry um if we scroll down from Andrew win and refers to an issue in Wimbledon Wimbledon 11901 I think is that a branch number possibly um it says unpaid checks stock line on Horizon Branch challenged why a value showing uh £25,000 loss when removed fought to be created on NBC kit to be corrected in the same way uh to see what effect this has this theme May date back to 2005 aw so Andy win to ask Wendy Mahoney to progress in his absence and then it says this Ms that’s I think yourself asked for Assurance that there would have been no prosecution based on this type of incident so it there’s an incident relating to um a discrepancy in a Wimbledon branch and you’re asking if um for Assurance that there wouldn’t have been a prosecution based on that type of incident yes yes could we turn to poll 00144 30th of March uh this is the same issue um The Wimbledon transaction correction issue and it’s an email from yourself to Andrew win um Andrew win was one of our phase three Witnesses he was in the product and Branch accounting team is that correct I couldn’t tell you I’m afraid this is a long time ago do you recall why you were um contacting him specifically I think that that the issue having been um raised on that call I wanted to know more information um because ultimately what I’m still trying to do here is is is make sure that we have visibility of what’s happening and a central record and you say as follows during the bi-weekly conference call on the 23rd of March 2016 you made reference to a branch at Wimbledon and explained that transaction Corrections had been issued which should not have been issued and that they were accordingly being had they had accordingly been undone uh you went on to explain that there was a risk that transaction corrections may have similarly been issued to other branches which may have caused losses possibly going back as far as 2005 and then you set him a number of different questions uh an explanation on the precise reason that the transaction Corrections have been issued the value the effect Etc seven and eight you you ask whether this is an isolated incident or uh this is an issue which has or may have affected other branches and eight if this issue has affected other branches the period of time over which transaction corrections may have been wrongly issued and the names of the branches affected so it’s an issue that may go back to 2005 we’re now in 2016 can we please look at an initial response which was at poll 0015 3939 5th of April 2016 it’s an response from Wendy Mahoney case review team leader and she says as follows she says I’m covering for Andy at the moment please find responses to the first six questions uh questions seven and eight will take slightly longer as I will have to obtain information from different departments within the post office if we scroll over the page please to page two we can see her initial responses if we scroll down question number three where you requested the effect of those transaction Corrections on Branch accounting the response was it doubled up the discrepancy from 2400 to £4,800 so quite significant information there about a bug uh that is doubling the discrepancy in the Wimbleton Branch yes and we see there seven and eight at that point had not yet been answered we then then go to the further response from uh Wendy Mahoney that’s at poll 00241 095 26th of April 2016 she says hi Martin FSC have now provided an update on questions seven and eight please see narrative and table below if you require any further information please let me know um now it may be that you’re not able to assist us with exactly what this all means because it does look quite complicated but the first paragraph says I’ve looked into the unpaid check GL for all items uh that have been posted since 2010 the uh this resulted in 15,000 plus items um she says that they were looked at but then she goes on to say however system archiving at 13 months meant that a large number were unavailable to inv investigate so there seemed to be some sort of time limitation on that investigation do you recall that at all I’m afraid I don’t recall it’s no um she then says I then moved on to the actual transaction Corrections that have had been issued and read individually the text detailing the cause of the transaction correction from this I managed to pull out the details for the archived items results as below for all transaction Corrections issues 2010 to current date and then there’s a table underneath and it says transaction Corrections issued not compensated that feature the same issue as The Wimbledon Wimbledon list below and there is a list of various branches that had been affected by this issue do you remember being concerned about this no and I think I think this fell during a period just after I had left cartright king um if we can go back up to the top of the page you’ll see that the email that sorry the um 26th of April the one I sent initially was at the end of March and I believe that I left cartri King at the end of March um which is I think one of the reasons why I copied in um Simon Clark and Harry Boer who were remaining at cartright King for a period of time um and then at some later Point um we commenced or we we we certainly commenced working for cartri King on a on an agency basis um so I think this perhaps fell into a a gap just after I’d left So when you say you left you set up a company with Mr Bo and Mr CL we we did um and I remember that I left cart right king of month before they did or I believe that I left cart right king of month before they did I think I left cartri King at the end of March okay well we’ll have a look and see what capacity you may have been in in attending various meetings um but are you saying that you don’t recall receiving this information uh I I I I don’t I I don’t recall this information um I’m not saying that I haven’t seen it at some points but I I I don’t recall that information and it and it and it may be that it may that may down be down to the the fact that I I left um well let’s look at the various meetings that you are present at throughout May and we can try and work out in in what capacity it um can we please look at poll 00120 311 this is a meeting of the 4th of May and it has you down there as Martin Smith of cartright King yes were you still at cartright King on the 4th of May so I wasn’t an employee of cartright King on the 4th of May but we were working on an agency basis for cart rights King were you still acting for the post off office C right King was still acting for the Post Office yes were you still acting for the Post Office well I was certainly attending these meetings uh I don’t know whether I had access to my emails at this point in time were you still acting for the Post Office well yes um rodri Williams is down under legal as well we see somebody called sha Shirley hailstones under Support Services if we have a look down thank you very much um can we look on page two please under wimbl do you recall Shirley hailstones at all I I recognize the name um seeking clarification of the figures Ms which is yourself saying that there was limited information available as data only presents for the last year and a half see that seems to be a um recognition of some of the information that previous email that referred to data only being held for 30 months do you recall being in possession of information about limited data being available well I I I must have seen some information but how it came to me I don’t know the recent data suggests false balance issues and therefore it will be useful to look into older data as well sh asking who should make the decision about looking into older data Ms that’s yourself saying that RW I think that’s rodri Williams should uh could give the go-ahead you will liaz directly with Mr Williams outside of the meeting then says Mr Williams is happy with this but also emphasizing that this matter is subject to the group action and data could be disclosable rodri Williams asking for no email traffic on this matter do you recall Mr Williams saying no email traffic on this matter no I don’t do you think that that was a proper request to make if his concern was to avoid um emailing uh various different people and an incorrect speculation then I could understand why he would want that in but I was concerned that there was a central record as far as I was concerned this was now on the radar and it would be open to an expert instructor to look into this and the concern there is that data could be disclosable therefore no email traffic do you think that that is proper um again that’s civil litigation and um I took the view that that was um rodri Williams domain and nothing for me to comment on why were you at the meeting well this was a Wednesday meeting so it was collecting information relating to the Horizon system did you not have any views on whether or not there should be email traffic on a bug in the Wimbledon Branch that’s affected a number of different branches the in the the issue had been flagged up and there was information there can we look at poll 0000 43435 meeting of the 18th of May you’re still present there still referred to as cartright king although as you say you may have been acting in uh uh in your firm with um the other two previous cartright King lawyers if we scroll down please to the bottom of page two um new issues identified Ms that’s your initials cartright King issues observations comments at Wimbledon can be taken off this agenda Martin and rodrik catching up offline it looks very much like you followed um rodri’s request not to correspond it may be that it does look like that yes um but again as far as I was concerned this issue had been flagged up and it was now in the central record um if if if rodri Williams did not want additional material um preparing from a civil litigation perspective that that was his call not mine Mr Smith after all you’ve been through after all that we discussed yesterday um finding out about unreliability of Gareth Jenkins finding out about bugs errors and defects that hadn’t been disclosed in criminal proceedings proceedings that you were involved in proceedings that led to the imprisonment of a sub postmaster finding out about a request from Mr Scott to shred documents or destroy documents um surely you couldn’t have thought at this point in time that catching up offline about an issue relating to a bug was an appropriate action to take when it says offline it’s not it’s not offline completely it’s just simply not within this call is that really your evidence well you that there was a meeting the previous meeting where Mr Williams asked for no email traffic yes well that at the end of the day he is the client he is saying I do not want any email traffic um this has been flagged up it is now in our database it’s now in the central record and you’re having private meetings that uh no electronic record is being kept off I well it wouldn’t it wouldn’t be in in an email but I would have had notes in my notebook so you were keeping a fully disclosable note of this issue I I was purp of disclosure keeping I was keeping notes and were you providing that to the central Hub uh no they were my my my personal notes um I left the the the notes that I made at cartright King were remained at cartright King now this is after I left cartright King but I was still keeping notes so what’s the purpose of the central Hub if you’re keeping notes that are kept in your office that aren’t in the central Hub well the central corresponding offline the central Hub is to uh be able to provide information um to anyone who needs it um my notes were in Aid Memoir so I could quickly look at things you were discussing a bug in Horizon that was affecting branches and causing discrepancies but it’s been flagged up in the hub it’s been flagged up but the discussion about it discussion about how long it’s been going on for whether it affects prosecutions none of that’s in the hub is it uh not on the basis of this record no the answer to the questions you were asking earlier does it affect prosecutions it’s being dealt with offline I don’t believe that I thought of it in that way at the time because the um the F review process had been completed disclosure had been made to those who senior Council had advised it be made to and we had been informed that we did not need to go looking for cases prior to the 1st of October 2010 um so this was something that had been flagged up um it was something that an expert could opine on in due course can we please please look at poll 00120 321 this is a meeting of the 1st of June 2016 if we scroll over the page to page two now it says MC and RW agreeing this matter can be closed um on the minutes MC seems to be Melanie corfield who is in the communications team do you think that might be a tyon at might be your name or do you think she in fact agreed with Mr Williams that the matter could be closed I I really don’t know whether that’s a typo or not would it be odd if somebody from the communications team agreed that an issue relating to a bug could be closed I don’t know if uh Mr Williams had involved um that lady in that discussion um can we please now turn back to a document that we saw at the very beginning of yesterday and that’s poll 004 11347 and that’s the advice that you gave in the ongoing criminal matter of Zen Elvin and could we please turn to page three this isn’t 2016 this is 2015 but it’s similarly late in the picture yes and this is paragraph nine so if we scroll up where you advised that whilst this is not a horizon issue to the extent that the system permitted the sequences of transactions in accordance with its programming it does not of course make the position any less embarrassing for post office limited but there is in my opinion a substantial risk that any report generated by a prosecution in this case may be utilized by those who seek to argue Horizon is defective or otherwise inadequate by this stage so 2015 going into 2016 and those meetings that you we’ve been looking at were you concerned about embarrassing embarrassment being caused to your client the post office I felt that it was our duty as as instructed lawyers by them to flag it up did you think perhaps that by 2016 when you were setting up a new firm uh that it was important to keep the post office on side and to follow orders not to discuss things online I took the view that the civil lawyers would be making decisions um in relation to civil litigation and I didn’t question their decisions thank you that can come down I’m going to move on to a few miscellaneous topics before handing over to core participants uh the first is remote access I think we can take this relatively quickly because a number of witnesses have recently been looking at the same documents that we will be looking at but can we start with poll 00141 1471 and we’re going back in time now to November 2012 and could we start on page four please at the bottom of page four we have an email from Rachel Panter uh to Gareth Jenkins and she is seeking um his report Mr jenkins’s report in the case of Kim Wy and it’s urgent because the case has been listed if we scroll up there’s a response for Mr Jenkins paragraph three he says uh reading through the defense statement I see it does make some specific points which my statement doesn’t currently address specifically the challenges regarding robustness and remote access to the system do you want me to try and address the specifics um if we can go to page three Miss Panter responds copying you in and she says if you feel that you’re able to deal with the issues of robustness and remote access fairly swiftly then I would like you address these points that have been raised so that we can deal with every area that they have criticized um can you assist us with why you’re copied in were you supervising Rachel Panter or working with her on the case of Wy I don’t believe I was working with her on the case of Wally I think that was one that Mr Bo was dealing with Mr Mr Cash of course was the um at that point the the uh partner in charge of the Derby office and the Really the uh partner in charge of um the post office Department if we scroll up to page two Please Mr Jenkins responds and and he says Rachel what I propose adding is the following uh I’ve been asked to provide a statement in the case of Kim Wy I understand that the Integrity of the system has been questioned and that this report provides some general information regarding the Integrity of horizon there’s then a paragraph that addresses the integrity and I want to look at the paragraph that addresses remote access it says I note a comment made about it being possible to remotely access the system it is true that such access is possible however in an analysis of data audited by the system it is possible to identify any data that has not been input directly by staff at Branch any such change in data is very rare and would be authorized by the post office as I have not had an opportunity to examine data related to this Branch I cannot categorically say that this has not happened in this case but would suggest it highly unlikely you I think have said in your witness statement that it’s in a small font and you don’t believe that you read the email I didn’t read that inall at the time no and first of all it wasn’t a case that I was dealing with uh and secondly it was in a very small font and I I think um it was also dealt with by Mr Bo very quickly when you say it was dealt with very quick I mean it that ultimately ended up in the witness statement it it did it did but I think the response to Mr Jenkins was um uh very timely let’s move on to the Deo report that’s poll 0000 28062 24th of May 2014 page 31 please I don’t know if you were watching um Mr oard this morning but this is a section I think that he was taken to I I I saw part of it from the waiting room thank you so it’s the bottom of page 31 and there’s various references there to the ability to insert what’s called balancing transactions uh a method for posting balancing transactions was observed technical documentation which allows for posting of additional transactions centrally uh without the requirement for these transactions to be accepted by sub postmasters and there are various concerns raised there about the controls that are in place to monitor that um we then have an advice written by Mr Clark that’s poll 0000 21774 and this is an advice that has Mr Clark’s name at the end 27th of March 2015 and he refers if we scroll down we can see there at paragraph two the reference there to parts of the deoe report you you’ve said that you don’t recall uh this advice but were you part were you in any way assisting with the drafting of this advice it wasn’t uncommon for Mr Clark to run an advice past either myself or one of my colleagues to talk through it to explain his uh methodology his thought process um I have seen it I don’t recall often in his advice writes we have seen or we have done this or that is that a because he has discussed it internally I’ve never really given that any thought it may just be his house style if we turn to page two there’s a reference to a telephone call with rodri Williams and Andrew Parsons um we were informed that the deit report was correct where it identifies a method of posting of balancing transactions were you part of that telephone conference I I have I have no recollection of that I couldn’t say if we move on please to poll 0000 29867 15th of July 2015 there’s an email from Andrew Parsons now it’s to yourself and Simon Clark and it relates to balancing transactions so that is uh the ability to inject transaction data by support staff and he says Martin Simon before rodri went on holiday he asked me to push forward the disclosure piece around balancing transactions I understand that during the conference with Brian Alman there was a discussion about doing some further investigations into when post office had used uh BTS balancing transactions on Old Horizon so that’s what we know is Legacy Horizon as part of these investigations we asked Fujitsu to explain how balancing transactions would work on Old Horizon and essentially it is possible uh to do the equivalent on Legacy Horizon he then says it has subsequently been confirmed by Fujitsu that searching for balancing transactions would in fact be an enormous task taking several months of work and he ends that paragraph by saying on this basis the post office is not prepared to commission this exercise unless it is considered absolutely vital and there is no credible alternative um now given that you can’t recall whether you’re part of that earlier conference that you can’t recall the email from Gareth Jenkins that relates to um his evidence on balancing transactions um why do you think it is that Andrew Parsons names you as the primary recipient the first named individual on this email in relation to the issue of balancing transactions well I I may very well have been involved in the call I just cannot remember it might you have thought at the time that the ability to inject data by support staff was something quite significant I was under the impression that Mr Clark was reviewing this and Advising post office in relation to it and I was letting him take the lead why do you think Mr Parsons is saying there Martin Simon what why would he have the impression that you were at least jointly involved if not uh the principal person to contact I I I was often the point of contact act at um at cartri King whether I dealt with something or not and it wasn’t uncommon for me to receive something and then pass it through to either Simon Clark or Harry boa for their attention and it may be that I was involved um I cannot recall by 2015 you you were very experienced it’s not like you had to follow Mr Clark in in what he did by by 2015 um um this had been going on for quite some time um it was virtually impossible to remember everything that had happened beforehand because this was a whirlwind um I certainly couldn’t recall the um the issue with Mr Jenkins talking about uh remote access um arising at that earlier stage that wasn’t something that was was springing to the front of my mind it just simply wasn’t on my radar is there anything you recall about the post office’s approach to remote access during this period I recall Mr Clark advising that in order to determine whether or not it was going to be disclosable uh further questions ought to be asked um did it cause you any concerns about all those cases that you have been Prosecuting over the years well I don’t think it did when I first became aware of the issue because I didn’t think that anything Sinister would would be would be happening feel all you know this is the post office this is Fujitsu um why on Earth would you think that things that were Sinister would be would be happening I’m going to move on to the issue of Gareth Jenkins and expert evidence you’ve addressed it in your um statements yes were you aware throughout the period that we have discussed of the various requirements that uh are legally in place with regard to the instruction of expert Witnesses uh I have to accept that I wasn’t like I said yesterday we had essentially been a defense firm of solicitors we had um presented cases in report on a uh on an agency basis and as I pointed out yesterday there is a world of difference between doing that and actually progressing prosecution files um quite why C right King thought it was appropriate to take on this prosecution work I I I I really with hindsight have no idea because we certainly didn’t have the training for it and I was unaware of the uh duties on a on a prosecutor in relation to the instruction of an expert witness by 2012 you had been qualified for 16 years yes do you think it is unusual that you weren’t aware of those kinds of I duties I um was simply just not aware of the duties on a prosecutor to actually make sure that an expert witness was fully informed of their duties Etc um it was clear um from when Mr Clark um wrote his advice that um we had been seeking reports from Mr Jenkins in a way which um perhaps was not uh well undoubtedly was not compliant did you ever see formal written written instructions to Mr Jenkins by formal in terms of a letter setting out all of that no um our approach had been that Mr Jenkins had clearly been used as an expert witness in the past by the post office um Mr Boer advised about the content of a generic expert report if you should if you like that should be used as a as a baseline um and we then went from that point onwards um and no no F no formal letters of instruction were provided did you consider whether his witness statements complied with various legal requirements no I don’t believe I did I I I took the view that we’ been advised to obtain a section n statement and that’s what we prepared and um we sought to update it in cases in which there was a a a not- guilty plea um I don’t believe I gave it any more thought than that at one point you became involved in discussions relating to the instruction of a new expert or experts Professor Kramer and Dr doule yes can we please look at a few documents in relation to that matter they can be found at poll 00148 714 if we could start on page three how did you become involved in seeking out a new experts I think that probably came out of one of the very early conferences at Hall Street with with with Susan kryon and others from the legal department after the after we’ become aware of the second site interim report making reference to bugs I don’t think we at that stage we necessarily knew about all of the information relating to those bugs um but Mr Clark’s view was that as they had not been mentioned by Mr Jenkins um it could no longer be um post office could no longer rely on on his uh evidence and a new expert would be required and I think um from memory um I think it was Susan kryon asked us to see if we could find a new expert and I think one of my colleagues actually prepared a short list of potential experts looking at various organizations around the country but then um ICL I think became the the favorite can we please scroll down to the bottom of this page it’s an email from yourself to Andy Parsons the 9th of July 2014 and you say as follows I would not advise that the EXP exp erts be instructed to look at the old Horizon system if the experts were to consider the old system depending on their findings disclosure issues could arise in historic cases in any event cases now being investigated and considered for prosecution will involve Horizon online which was rolled out during 2010 can you please assist us with the first part of that response uh with regards to disclosure issues what what did you mean there well I think at that time we were being informed that the the old hor Legacy Horizon was no longer available in any way shape or form to be tested and important information relating to its design and functionality was no longer available um I couldn’t see how any expert could actually then say well we’ve looked at the system and the system was fine any report that they would produce use would have to be caveated incredibly um and then if if there is a report that tells post office I’m sorry we cannot say anything about the Legacy Horizon system what sort of position does that put that post office in um I was also aware that um Simon Clark had advised that the experts should only consider um Horizon online and I believe that Mr ultman King’s counsil and advis similarly Mr Smith surely that second sentence relates to potential issues for cases that had been prosecuted if the experts were to find problems with old Horizon surely that’s the only interpretation you can have of that second sentence I can see how it looks but no I was concerned that the experts would not be able to look at the system properly and I could see there could become all sorts of issues arising if they provided a report that basically said they could not for for reasons um beyond their control um provide any certainty with regard to the old Horizon system disclosure issues so if there was a report that was provided by Imperial College London which said that we cannot confirm that the old system was and I’ll use the phrase robust then that potentially um would have implications in relation to every single prosecution if they didn’t have enough information to say whether or not the system was robust because they didn’t have access to the information because it was historic you think that that could lead to problems with historic cases well yes were you not more worried about the fact that they could investigate the old Horizon system and find a lot more bugs errors and defects well I didn’t think they could investigate the old Horizon system because it wasn’t there to be investigated it wasn’t didn’t exist any longer and the information which related to it I understand a lot of that key architecture information had gone and I also understood that a lot of information related to Historic prosecutions had had had gone through data retention policies if you thought that they couldn’t um investigate the system because the material wasn’t available it’s a very odd way to start by saying if the experts were to consider the old system isn’t it well I think I think I would have read that as if the experts were asked to consider the old system well come come on now you’re a lawyer writing to uh a number of other lawyers and I think I can reasonably infer that you would write reasonably precisely in these circumstances so why are you beginning this sentence on the premise that there could be a consideration of the old system well there could be a consideration to some limited degree but it would be very limited because adding words Mr Smith those words don’t appear at all in this email why should I assume or decide that um you wrote an email which had more or less a completely different meaning from the one which is obvious reading this well I I don’t think it is different um I mean there there would be disclosure issues which could arise but in any event um we were now looking at the new system and Council had advised that we did not need to go looking for cases prior to 2010 right that was that was that was Mr Alman Casey’s C advice that post office did not need to go looking for cases prior to the 1st of January 2010 and in those circumstances I could not see any Merit in asking an expert at considerable expense contrary to the advice of Simon Clark which was to focus simply on uh Horizon online why we why we would ask the experts to look at a a a partial amount of documentation relating to its design and no ability to actually test the system I could not see that that that sort of report would be helpful at all and could see that that would be a a nightmare situation okay I’ll move on to the issue of disclosure post conviction um we’ve heard a lot of evidence from you about we spent a lot of time on the disclosure during for example Mr eek’s trial and and during the trial process but I want to move on to disclosure post conviction can we please look at poll 000000 6581 and the issue is disclosure during the mediation scheme and to Second site and this document that I’m taking you to is the timman general review it’s the 15th of October 2013 can we have a look please at page 42 uh Mr Orman records as follows in his advice he says during the telephone conference of the 4th of October 2013 the main topic of discussion was the extent to which cartright king should be involved in exercising a supervisory function over the criminal cases going to mediation such as Mrs misra’s case there is understandable concern that offenders might use the mediation scheme to gain information as a platform from which to launch a fresh or new appeal and so cartright King wished to exercise a measure of control over the dissemination of information and material during the process were you part of that telephone conference on the 4th of October 2013 I I cannot recall it I I I may have been that during this period of time there were numerous um telephone calls on different days and there seems to be a concern from cartright King uh as to cases that they had been Prosecuting and potential disclosure to those who they had been prosecuted do you recall conversations of that nature I I don’t I don’t agree um with the way that that’s phrased if I may say um I can recall that when the mediation scheme was started it was not ourselves that were raising concern um it was post office that was initially raising concern that um concessions could be made or throwaway comments could be made which might um provide a mediation scheme applicant with some form of ammunition to argue that the for example the case being presented by post office at that stage was different to the basis upon which they had been prosecuted whether that had been by cartri King or indeed by the the Royal male group sometime previously so I think it was initially post office that were concerned about the uh the convicted applicant in the mediation scheme and the information provided to them I think that that’s where the that that is wrong there if it is to be read as suggesting that cartright King were concerned about people that they had prosecuted launching a fresh or new appeal I don’t think it’s a case of kri King being concerned about the people that they had prosecuted as I say the concern was initially by post office in relation to blanket convicted applicants to the mediation scheme irrespective of whom they had been prosecuted by and I understood that uh Mr Bo and Mr Clark um were were were able to understand that concern and um and in fact I think Mr Clark get advised in relation to it why Mr B and Mr Clark I mean we not a three we were a three but the general way that we dealt with this was to have um advice being provided by senior councel you post office throughout your evidence have been referring to um Mr Clark as being senior or more experienced than you um all of the emails that we’ve seen there there isn’t a single one there that seems to distinguish in your seniority or abilities no um that we were I was generally the main point of contact but I have seen in the papers that have been provided and and I’m sure you will have seen them there are um there are there is evidence of me forwarding things to Mr boa to look at there’s evidence for me be forwarding things to Mr Clark to look at I was the point of contact and indeed in relation to the mediation scheme I think it was agreed that uh there should be one point of contact at cartright King for all of the traffic to go through uh and one point of contact at um I don’t know if it was Bond Dickinson or wble Bon Dickinson at that time but one point of contact there so that way it would keep lines of communication clear rather than uh different emails being sent to different people and that one one point of contact was yourself and the one point of contact was myself at cartright King for virtually everything irrespective of of of what it was so in that case it’s highly likely that the telephone conference that took place on the 4th of October involved yourself it may well have done I can’t remember it can we please turn to poll 00168 949 and can we start at page two please um this is the case of NL Thomas that’s being looked at uh we’ve heard from Mr Thomas he was sentenced to n9ine months imprisonment um his case is being looked at in May 2014 you were sent post office investigation reports which in turn would be sent to um second site and there’s an email here from yourself to Andrew Parsons and you say as follows whilst we have advised that as a matter of principle investigation and offender type reports should not be disclosed I understand that there will be circumstances in which it is felt that there is no alternative other than to disclose these in such circumstances they should be appropriately redacted if you would like me to deal with that please let me know so was it your view as at May 2014 that um the investigation or offender reports into those who had been convicted like Mr Thomas shouldn’t be disclosed as a matter of principle that was the advice that I received within cartright King yes when you say that was the advice you received within cartright King uh Mr Smith you are a lawyer from cartright King uh you are communicating with the client Andrew Parson’s uh that is surely your advice um it is also my advice but that was the that was the um strong views of Mr Boer and Mr Clark and I accepted that Mr Smith you weren’t on work experience with Mr CL no I wasn’t but I was um I was aware that they had a substantial amount of experience of prosecution cases far more than I did um and I was um content to follow their lead if we turn over to page one please um Mr Parson says at the bottom of page one thanks if you could mark on the docs any bits that you would prefer to be redacted that would be great and you respond on the top email you say as follows Andy please find a attached the investigation reports on which I have highlighted in Black the parts which I would advise be redacted consequently I have also further amended the draft report in light of the redactions I uh I’m just noting here it’s several eyes so that there’s no we no it’s not we it’s it’s I yes I would prefer not to let the applicant see the sentence in Diane Matthews report of 25th of October 2005 which notes that she was currently awaiting the results of the tests by Fujitsu on the horizon system if those test test results cannot be found such a sentence May well invite a request for disclosure of the test results there may also be a risk that the applicant will suggest that the investigation was inadequate or incomplete similar issues could arise out of the comment on page seven of the draft report however it appears that the kit was taken by Fujitsu to allow the equipment testing to be undertaken no documentation is available in relation to this um on what possible basis could those redactions be justified um I really don’t know looking at this with hindsight I I I don’t know I don’t think you need hindsight to reflect on this perhaps on reflection on reflection I was of the view that information which might put into the public Arena the sorts of Investigation work carried out by post office or sensitive methods or opinions um should not be should not be disclosed what’s sensitive here what you’re saying here is that they shouldn’t uh they should be redacted because they may lead to disclosure requests what’s wrong with disclosure requests being made by those who were convicted of criminal offenses some of whom were sent to prison yes I I I clearly got that wrong it’s I mean I was as a as a firm we we took the view that anything which contained the opinion of for example an investigating officer about a witness or something about a method of Investigation or something sensitive should be um redacted but I cannot see here with on reflection um anything which sensibly should have been reducted wasn’t part of a culture of withholding information from applicants not intentionally no can we please look at poll 00325 867 it’s the bottom email from Mr Parsons to Chris Oar rodri will Williams a team at post office copy to Simon Clark and yourself he says as follows I’ve just spoken with cartright King about the new that’s a questionnaire from Howen Co that references the Helen Rose report so this these are questionnaires that are filled out by applicants to the mediation scheme right you will recall that the Helen Rose report was retrospectively disclosed in a number of prosecution cases Es as it drew into question some of the statements made by the post office’s expert witness Gareth Jenkins a copy of the Helen Rose report has made its way to how who are now referencing It generally in their questionnaires for example the questionnaire in M60 refers to the Helen Rose report however the Helen Rose report was not sent to this applicant the point of concern is that the M MO 60 questionnaire is starting to make the link between one the fact that the Helen Rose report makes clear that Gareth Jenkins knew of issues with Horizon and two the fact that Gareth Jenkins never mentioned these issues in his prosecution evidence see parah 53 in the attached this line of inquiry draws into question The credibility of Gareth jenkins’s evidence and that’s precisely the concern that was raised in Mr Clark’s advice a year before that isn’t it it is it then says the sharing of the Helen Rose report between applicants is potentially a breach of solicor ethic contempt of court however cartright King and I don’t believe attacking the solicitors on this point would be of benefit if anything it may draw more attention to the Helen Rose report instead our pref preferred approach is to try and downplay the importance of the Helen Rose report in any post office investigation reports we recommend minimizing or ignoring entirely the Helen Rose report when responding to questionnaires if the investigation team need guidance on how to address any Helen Rose report related questions I suggest they or the lawyer here at Bon Dickinson addresses these directly with cartright King on a caseby case basis please let me know if you’re happy with this proposed approach Martin Simon and I are available if you have any questions do you consider that to be an appropriate approach to the mediation the lawyers at Bon Dickinson were advising post office in relation to the mediation um how they wish to deal with individual mediation applicants was a was a matter for them why is your name on this email it’s been sent through to us um why does it say Martin Simon and I are available people Mr Parson’s entirely wrong this is a bon Dickinson Affair not involving yourself no um we looked at um proposed responses to mediation applicants uh that was cartright King’s role and as it points out here um the Helen Rose report started to become mentioned by other applicants um post office clearly didn’t wish to explore that um with a number of applicants but that was their decision um we were not uh advising post office how to conduct the mediation process and that was in my understanding was a matter for um Bon Dickinson Mr Smith you had been advising the post office for years we saw yesterday the uh proposed response to the CCRC who were interested in matters after the second site report we’ve seen in various places that crucial link uh between the Helen Rose report Gareth jenkins’s evidence the fact that Gareth Jenkins didn’t mention certain things in his prosecution evidence that crucial link has not been mentioned by the post office and here there is discussion involving you as a key contact UM seeking to downplay the importance of the Helen Rose report recommending minimizing or ignoring entirely uh the Helen Rose report when responding to questionnaires do you think that that was appropriate I’m not aware that cartright King were involved in downplaying that did you respond to this email saying that is grossly inappropriate we want nothing to do with it I don’t believe I did I don’t I don’t recall this email did you respond to this email noting that your name had been mentioned in that final paragraph As a key contact and saying that I nothing to do with this no you don’t remember receiving this email um do you remember the issue being discussed if we not this specific issue no if we scroll up you’re one of the copy recipients he says I’ve just spoken to cartright King not you I I I don’t recall this I’m sorry it’s it’s a long time ago I just simply did not recall this so I think that might be an appropriate time to break I’m glad to report that I only have about 15 minutes left after lunch and then we can move on to the core participants who have all been given allocated times jolly good then um what time should we start can we start at 5: to 2 please yeah by all means thank you very much e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e good afternoon sir can you see and hear me yes I can thank you thank you very much um Mr Smith I’m going to now take you to advice that was written by Simon Clark can we please actually sorry before I get to that um you mentioned before lunch the um your move from cartright King to your own firm yes um we have email correspondence from yourself in 2019 from a cartright king address yes are we right in understanding that you continue to be able to use the cartright king email address that that that’s correct um I believe that I left again I can’t be specific but I believe that I left cartright King at the end of March of 2016 I believe Simon Clark and Harry boa remained on for a little while um and at some point after I believe after they left um we then had access to the case management system used by cartri King in order that we could continue to um work on an agency basis for them and so we had um email accounts c ring email accounts that we could use thank you um can we look at poll 001 48720 and this is an advice on criminal applicants to the mediation scheme the 15th of July 2014 it’s again it’s another one of those advices that is written has Simon Clark’s name at the end 15th of July but throughout the advice um if we scroll down to paragraph two for example it says it is our considered View and we see often throughout references to we um did you have any involvement in this advice I’m afraid my my answer has to be the same as the earlier ones I may have um seen it I may have commented on it I may have been asked to proofread it um thank you I cannot State specifically that I had um positive input into it and paragraph two says it is our considered view that no applicant guilty of a criminal offense committed against the post office should be allowed into the scheme for to mediate such applications will B to leave the post office open to a number of alarming consequences those consequences include but are not limited to the following the fact of entry into the scheme of itself indicates that the post office is at least prepared to concede that they may have heard in Prosecuting uh the applicant similarly the fact that one such applicant has been allowed to enter into a scheme set an unfortunate precedent um it then goes on par um sub paragraph three about the threat of an appeal same paragraph 4 setting a precedent any competent a lawyer would advise um a substantial concession by the post office and then paragraph three um goes on to address other risks it says for example whilst the issue is strictly outside of our criminal purview we feel bad to point out that the potential for adverse publicity generated by the mediating of criminal applications and particularly where some concession agreement or payment is made by the post office is inestimable um refers to the knock on effect there’s every likelihood that we would uh be required to disclose the fact and detail to others in a similar position similarly a successful appeal would give rise to a considerable assessment and disclosure exercise all conducted in the full view of the media over the page please paragraph 5 we can identify no proper reason for the inclusion of criminal applicants into the scheme were those All Views that you shared at the time I think I accepted that as being a sensible approach can we please turn to poll 0011 2928 page 78 so the that advice we’ve just seen was July we’re now in November 2014 and it’s an email from yourself to Mr Parsons you say Andy from a criminal perspective we would advise as a general rule against the disclosure of any documents from a criminal file which have not previously been disclosed to the defendant during the course of the original proceedings to do otherwise May well enable the defendant or Second Sight to attempt to criticize the way in which the prosecution was conducted or how the prosecution policy was applied clearly such arguments in a public Arena would be uncomfortable for the post office we remain concerned that second SES are pushing for the disclosure of files and advice that a and advise that a robust stance be taken by the post office in relation to all such requests um so you’re you were concerned there about defendants being given documents that weren’t relied upon in their criminal prosecution we are advising as a general rule against the disclosure of documents which have not previously been disclosed and is that because you were concerned about your own decisions coming under scrutiny no no if you had made the right decisions regarding disclosure in the original trial why would you be concerned about access to those files and disclosure from those files I don’t think that it occurred to us that any incorrect disclosure decisions had been made at the time so why would you be concerned about disclosing documents from the criminal file if you had made the right decisions no so the the the the the approach that c right King was taking here was that if something was on a sensitive material schedule then um it ought not to be disclosed unless it was something that had been disclosed during the original proceedings yes and is that because you were concerned about the disclosure decisions that had been made in those original proceedings no no we looked at the case of yesterday and I think I suggested that you were perhaps taking too robust a stance on um disclosure to Mr eshach we see here another reference to a robust stance to be taken in respect of disclosure decisions and were you now repeating the same errors that occurred during the criminal trials that you were taking too robust a stance uh on disclosure to the those who had been affected I didn’t see it that way at the time why do you think it was that after all that we’ve been discussing and I won’t repeat the various various stages Gareth Jenkins uh new information Etc why do you think then you were still calling for a robust stance to be taken in respect of disclosure to those who had been prosecuted of course this is in the mediation scheme and the view that the firm was taking was that only material which would have been disclosed during the initial proceedings should be disclosed I didn’t disagree with that approach yes that’s really repeating the same point that you’ve already been made but that that that’s my point that that’s the point I can make I didn’t I didn’t see it any other way and it isn’t your evidence that you’re concerned that in in some way that would help somebody appeal no I didn’t think of that can we please look at poll 00150 342 the bottom of the first page rodri Williams um confirms there that Mr ultman uh Brian’s advice is that we shouldn’t engage with either of Tony that’s Sir Anthony Hooper’s proposals given the inherent risks in having a free discussion about the facts which give rise to a conviction um do you recall Sir Anthony Hooper um being in favor of including those who had been convicted and cartright King and Mr rman forming the view that they shouldn’t be I I can recall Mr Hooper taking the view that um it should include everyone and Brian Alman having a strong view about that yes if we scroll up to the middle email there’s an email from rodri Williams to yourself he says Martin can you please give Chris Oar a call as soon as possible he wants to discuss how to approach Tony Hooper about mediating criminal cases specifically those involving false accounting Tony is not currently sympathetic to our position so we need to work out how else we can land the points and there is a response above from Chris oard who says thanks Rod we’ve now spoken and the work that we discussed has been commissioned cheers Chris if we please could turn to poll 00150 390 there is the advice um which contains a draft letter to Sir Anthony Hooper is that the work that had been commissioned or was the work that had been commissioned something else I don’t recall but I can see that the advice starts here that we are asked to suggest the text of a letter to Sir Anthony Hooper yes um so it it may very well be that that advice is is in response to the request that has been received from the then General council do you recall having a conversation with Chris Oar about this issue I’m afraid I don’t did you were you involved in the drafting of this advice it’s possible that I may have seen it been asked to look at it might have discussed it I don’t recall what do you think made the team at cartright King including yourself think that you knew better than Sir Anthony Hooper on matters relating to uh convicted uh those who are convicted of criminal offenses I don’t recall um thinking about whether or not we knew better than Sir Anthony Hooper at all um that wasn’t my thought process and I think you’ve said that your thought process didn’t involve uh any consideration um to the effect that you wanted to prevent people from appealing to the court of appeal no the the way that I had seen this was um how it had initially been put by post office that they were concerned for example that um a throwaway comment or something like that or some attempt to um reach settlement might somehow give a a a convicted applicant a ticket to the court of appeal um just inadvertently through making some form of minor concession or presenting something in a different way so I I didn’t see this as um trying to prevent people from appealing um I saw this as effectively um trying to help post office protect their position Mr Smith you use the word the word ticket to the court of appeal is that because you have in mind the next document that I’m going to take you to which is poll 00006 66872 and this is a file note um from your file May 2015 relating to SEMA misra’s case yes ticket to the court of appeal was a phrase which we used internally on a number of occasions can you assist us with this note it says there’s a summary Andy Parsons MJS that’s yourself explaining position issue redisclosure um detail telephone call Andy Parsons MJS explaining position issues redisclosure clearly unhelpful if the post office proceeds with draft crr responses those are I think case review report yes responses uh without regard to disclosure issues may damage the post office’s Integrity disclosure may give Miser tickets to the court of appeal need meeting possibly of Thursday uh any chance can keep moving with uh the reports being watered down uh you would not advise that the problem will arise if you need to make disclosure and did not set the record straight when had the opportunity to also so there is the criminal cases review Commission in the background were you and Mr Parsons in May 2015 concerned about disclosure to SEMA misra because it may give her a ticket to the court of appeal no the the the I can’t quite remember the timeline but when we started the F review process Mrs mis’s case was one of those which we reviewed but we were only able to review it from a very limited amount of information I don’t think um the legal department could find the file at that point at some point the file did become available now I don’t know how that fits into this time scale but at this point um Bon Dickinson were wanting to push ahead with responses in the mediation scheme I assume that there was um some sort of time frame within which they were trying to work some sort of agreed time frame they were wanting to draft responses um and I took the view that it’s unhelpful to draft those responses without having regard to um any potential disclosure issues because if those responses are inappropriate either because something needed to be disclosed which wasn’t or alternatively some um some sort of comment was made which was um by way of concession but an inappropriate concession either way that could that could be damaging to Paul’s post office has limited uh Integrity um I was very aware that whatever was said in their CR response could give any applicant the opportunity to um approach the court of appeal you’ll see from the second paragraph here the question I am being asked by Mr Parson is is there any chance we can keep moving on these crrs with them watered down in other words rather than wait for perhaps Simon Clark or Harry Bo to have finished a review of the case or some information can they just proceed with that response watered down I was against that because I took the view that if they did so um and disclosure was appropriate and it hadn’t been included then that would be damaging um you know if if disclosure should have been provided and wasn’t there would be adverse consequences for that if the record was not set straight when post office limited had the opportunity to do so and I was also telling them look the the CCRC are watching you they are in the background watching what you do here so I was very aware that the response to the crra um was something which had to be got right and I wasn’t prepared to allow Bon Dickinson to water this down um I I was very aware that if disclosure needed to be provided then it should be provided when there was the opportunity to do so um otherwise I could see there being all manner of repercussions for post office limited it might be suggested that the reference in that first paragraph to disclosure giving sea Mis ticket to the court of appeal is that you were concerned um together with Mr Parsons about Mrs misra being able to successfully appeal in the court of appeal if someone could appeal then so be it was there a concern at cartright King and a concern held by you and others that there may be successful appeals to the court of appeal uh in cases that you prosecuted no I wasn’t concerned that there would be successful appeals at all to the court of appeal that wasn’t something that concerned me um my concern was that post office and embarking upon this mediation scheme should not be uh making um small concessions which appear trivial but could actually be presented in a very different way um which could actually then give someone the opportunity to um to to pursue an appeal what we were seeing during some of these mediations were that some convicted applicants were actually putting forwards very different facts to the actual information that they’ve relied on for example by way of mitigation following a guilty ple so we were alive to some of these points but no in relation to Mrs misra’s case as it says in my second paragraph here I would not advise proceeding with a crra watered down um a problem would arise if disclosure needs to be made and we did not set the record straight when we had the opportunity to do so it was important that it was it was correct given everything that you had learned over all of those years that we’ve been discussing in your evidence all of those various developments year after year after year by 2015 didn’t you think that you should do everything you possibly could for somebody like SEMA misra in relation to a potential appeal to the court of appeal well at this point in time her her file I believe at this point in time her file had been reviewed I think the the initial review was on the basis of I think just the judges summing up to the jury but the the file subsequently became available and that was reviewed I Believe by Mr cler and I I’m unable to recall actually whether disclosure was sent through to her of the um second site report and the Haren Rose report I’m afraid I can’t remember that issues with Gareth Jenkins there was no reference to that in the letters which were were sent out various additional bugs errors and defects um again there was no consideration of of um disclosing that um the second site interim report made reference to two bugs and we had the Helen Rose report we were then really looking forwards and gathering information ready for the instructure and expert thank you sir those are all of my questions for Mr Smith um we have a number of questions questions from core participants the first on the list is Miss Watt on behalf of the nfsp who will be principally asking questions relating to the Scottish cases and and as I understand it um Miss Waters um have a has a 15minute allocation is that correct yes that’s correct fine thank you over to you Miss God uh Miss what sorry thank you sir uh good good afternoon Mr Smith I think I’m just behind Mr Ste I can just about see you yes thank you you can see me uh I want to ask you some questions about the period in 2013 when you’re dealing with uh what’s happening in the Scottish prosecutions and uh I’m not going to take you to witness statement but at paragraphs 132 to 134 of your witness statement you refer to two meetings in Scotland in September and October 2013 which you attend with Simon Clark and Jarell Singh together with the post office’s Scottish solicitors where you say you met the procurator fiscal and you say those meetings arose because there was a concern that there was to be a termination of Scottish criminal cases on the basis that Horizon was allegedly unreliable yes okay now by this time in 2013 it’s correct to say isn’t it that you knew Gareth Jenkins had been been discredited as an expert witness yes not least because your colleague Simon Clark had written advice for the post office about the issues with and the use of Mr Jenkins as an expert witness isn’t that right that’s right and at that time you also knew of at least two bugs in the Horizon system didn’t you from the Simon Clark advice and the second site interim report yes and while your interpretation of the second site inter report is not much to see here you would agree that in fact it did raise questions about Horizon and a lack of disclosure to sub postmasters in their defense at criminal prosecutions yes you also knew what was in the Helen Rose report didn’t you yes I believe that’s right at that time and you knew by the time of the meeting in September 2013 by uh with the procurator fiscal that prosecutions in England had been paused by Susan kryon because of all of these concerns didn’t you new prosecutions had been stopped and in existing prosecutions were being um looked at on a Case by casee basis by Mr Clark I believe but nonetheless you went to Scotland with your colleagues Simon Clark and jar Nel Singh from the post office to try to prevent the crown office in procurator fiscal service from terminating Criminal prosecutions on the basis that the crme office was questioning the reliability of horizon evidence for Scottish prosecutions didn’t you well we were asked to go um I believe by Susan kryon and the the there was a suggestion that the procurator fiscal was considering terminating all of the prosecutions um the suggestion that I believe Mr Clark made was that they be adjourned pending a new expert and the procurator fiscals office was actually content to adjourn the case adjourn those cases um to await a new expert um it was actually quite surprising because in England and Wales it’s unlikely a a court would have entertained an adjournment of several months to get a new expert so the position in Scotland I understand was quite was quite different well I think it was explained to you why that was I’m going to take you to some documents at that might help with that uh first of all can we go to uh Paul 0013 992 that’s a telephone note from the 12th of July 2013 and you’re on a call with a representative of the crown office yes and this is you um uh sorry I’m just uh go to the correct one for me 29th July 2013 and this is you on a conference call um uh with a representative of the crown office uh and along with one other from cartright king would that be Simon Clark it could be um you explained that your law firm uh carried out prosecutions on behalf of the Post Office South of the Border uh that you had been told the Horizon uh that you have been told hor system was foolproof but a report has been prepared by a body called second site which has revealed some bugs in the system this a second report uh which they the post office are calling the Helen Rose report um it’s an internal report and it’s critical of the system there are times when the system does not differentiate between computer generated entries and manual entries if we go on uh to at the paragraph Martin explained that second site was based basically a committee set up in response to complaints by some sub postmasters the post office contracted with second site to produce this report following complaints at made at by Sub sub postmasters to various MPS uh we would you accept calling it a a committee set up in response to complaints by some sub postmasters actually a minimization of uh what second site was and what you already knew it was on covering I don’t recall using those words which is a minimization isn’t it well second site is not a committee second site was a limited company um and and it wasn’t a committee set up in response to complaints um second site was engaged to look into issues that had Arisen so I think that’s that that part of the uh note of the conversation is incorrect you go on at the paragraph that starts a number of defendants have had inexplicable losses that paragraph Martin explained in some cases the post office at they’ve lodged expert evidence which said there was nothing wrong with The Horizon system this expert was a man named Gareth Jenkins one of the architects of the system from Fujitsu it’s clear from the report that Gareth Jenkins employed by Fujitsu was aware of bugs in the system one in particular has created false information but this was not mentioned in his reports would you agree that taking account of the Simon Clark advice and all that was known by that time in relation to Mr Jenkins that that is a minimization to the crown Office of the position no I don’t I think that sets out the position um Mr GTH Jenkins one of the architects of the system um oh it’s just mooded on my screen he said effectively there was nothing wrong with the system I think that that explains the position with Mr Jenkins can we now go to poll 00 13996 that’s a telephone note of the 14th of August with you and the Scottish solicitors and if we H scroll down five paragraphs down Martin mentioned Susan kryon who is head of law at the post office she has now agreed to stop issuing summonses in relation to post office cases because of the mess that they are in and you go on to say uh in at the paragraph Martin explained the lines of communication have not been very effective even legal will not aw the Helen Rose report initially only aware of the second site report and this there’s then a discussion about the central Hub that you been discussing with Mr Blake if we can scroll down to the second page uh you’re going on to discuss at Brian Alman then QC now KC dealing with the review cases uh which include pending cases and you go on to say Martin explained they were hoping to meet with that’ be Brian Alman during the week of 27th August uh and the likely outcome would be that post office would agree to obtain an expert report you didn’t know at that point if the post office would in fact obtain an expert report this was just your thinking wasn’t it in the second paragraph there the likely outcome would be that the post office would agree to obtain an expert report so it was expected that the post office would um this is also mid August when I think in the July meetings um Mr Clark had advised that post office would need to obtain a new expert and I and I understand that it was around this time or probably just before this time that inquiries were being made with regard to potential experts so that was very much the intention okay a final document to go to uh for just now can we go to Paul 0013 9879 uh this is the meeting note where you go to meet the officials at the crown office and procurator fiscal Service uh first meeting your solicitors on the 4th of September and then the crown office the following day you Simon Clark and Jarell Singh so quite a bit of effort uh being put in there wouldn’t you agree to go uh all of you to Scotland to do this well um I think Mr Singh flew up from London and myself and uh Mr Clark went on the train from Derby if we go to uh that doc I think I gave the number yes there we are um so if we go to the second page we’re at the fifth of uh sorry I think uh third page I think it is sorry we’re there paragraph nine it was very plain from uh the pf’s current position on Paul that all such cases should be terminated so that that was that was the main concern for post office wasn’t it that they were going to terminate the cases yes it was um and I and I can recall that um in London when myself and Simon discussed it the legal department were quite concerned that um a uh there could be some form of announcement with regard to the Integrity of the Horizon system which um could have implications for post office yes well if we just scroll down to page four whilst under the English this is the uh Crown office representative disclosure is to a large extent Guided by the defense response and a likely plea in the Scottish system disclosure rules dictate that even where the accused has made unequivalent admissions to Auditors or interview uh disclosure in relating to a corroboration fact occurs AB Ino that’s from the start this situation arises because in many cases the PF does not know what the defense is going to be and it continues on if uh the question uh uh is if one piece may be unreliable that’s of the evidence then it does not qualify as independent reliable corroboration okay so that’s what you were being told if we scroll down at to at paragraph 13 uh Simon Clark then outlined the proposed instruction of independent expert Witnesses and at paragraph 14 a new understanding on the part of uh those who were there from the crown office this amounted to a departure from his starting point the all Paul prosecutions were to be terminated indeed matters went much further for discussion and then focused on how the present prosecutions were to be Advanced this recommendation amounts to a complete reversal of the pf’s original position I just want to ask you some questions um about that did you understand if we take all that’s been discussed about what you knew regarding Simon Clark’s advice the second site interim report the Helen Rose report decisions regarding English prosecutions which aren’t mentioned anywhere there uh that what you were uh being told about the disclosure and evidential requirements were actually a higher bar in Scotland compared to what you were used to doing um in at the courts in England in your private prosecutions I don’t think I thought of it in terms of a higher bar um I just considered that it was a different legal system and that it would be helpful for a an expert report to be obtained to assist because at this point in time whilst you mention Helen Rose the second site report the number of issues at that point in time were actually on the face of it relatively small I mean clearly a lot more has come out since but at that point in time the the issues appear to be relatively narrow and so the approach that we had in mind was to get an expert report so you’re very pleased to note at the end of that meeting you’ve achieved your objective um that is what the uh note says yes and taking all of that together I’m suggesting to you that you were at the very least disingenuous in the way you sought to persuade a crown office uh officer a representative of Scotland’s most senior law officer the Lord Advocate uh not determinate all such prosecutions no I don’t agree I’m sorry and that what you were doing was to seek to get the entirety of Scotland’s Criminal Justice System onto the side of the post office and not terminate the prosecutions of sub poost Masters in Scotland no well I don’t think at this point in time we actually knew what the pipeline of cases was there this isn’t a case of just close every prosecution down some of the uh cases being investigated were not actually may not actually have been of sub poost Masters or post Mistresses they could have been of counter staff and the victims may have been the sub poost Masters or post Mistresses so the the approach that we were taking was that um it would be appropriate to get an expert report to actually deal with completely deal with the issue of the integrity of the Horizon system so that these these issues could be considered um sir I see I’ve gone just over my time I’ve got another couple of questions just to finish off if I could be allowed it only be maybe another one to two minutes well one two minutes and then I’ll use my gavel so to speak okay this this really this meeting is equivalent H to going to for instance a meeting with the director of public prosecutions trying to persuade the DPP Ed continue with prosecutions when you knew Horizon and the expert witness H were unreliable do you understand how serious it is to have done that I I I I’m sorry I don’t agree um we went to um meet with the procurator fiscals office at the request of post office with the Scottish lawyers there to explain what post office was proposing to do are you aware of the fact that six Paul criminal cases in Scotland have this week been quashed by the high court of justiciary in Edinburgh and uh at least uh two of these uh cases are ones where pleas and uh cases took place in the courts in 2012 and 2013 before your meeting but not far before your meeting uh what are your Reflections on uh the quashing of those cases my Reflections on the quashing of those cases are exactly the same as the reflections I have on the quashing of any other cases this has turned out to be an absolutely horrendous situation for all those victims and I’m pleased that they have been quashed there we are than you sir yes that’s me thank you can I I’m just making sure I’ve got these dates right um these meetings in Scotland um took place in September 2015 that’s right yeah 203 2013 13 um right then that’s why confused that’s fine 2013 so we’re going to be hearing um from Mr Maloney next but perhaps could I just spend five more minutes on on that particular document um we do have time I I went under time everybody is very persuasive today about getting more time out of me five minutes Mr Blake thank you very much so can we just bring that document back onto screen it seems as though there there was a pre- meeting on the 4th of September um amongst yourselves and lawyers from BTO yes correct and then if we turn to page three there is the meeting with representatives from the procurator fiscal office on the 5th of September that’s correct yes and amongst those representing the procurator fiscal are um somebody called Paul Mele who is the PF Deputy correct the the depute yes um and it begins there paragraph 8 um that he informed the meeting that his role was to formulate a policy recommendation and to put forward uh put it forward to the procurator fiscal and then we see a paragraph nine it was very plain from the outset that the procurator fiscal’s current position on post office prosecutions was that all such cases should be terminated so you went into that meeting aware that the procurator fiscal wanted to terminate post office prosecutions yes yes if we turn over the page to paragraph 12 it says and this is the this is the first meeting with the representatives from the procurator fiscals office the previous meetings we’ve seen are um only with solicitors from BTO um paragraph 12 says this brief overview of the Scottish system provided the for um the foundation for the discussion which followed SC that’s Simon Clark provided the meeting with a broad overview of the I think that’s Horizon online difficulties in bracket absent any direct or indirect reference to the role of Gareth Jenkins or Fujitsu just pausing there why did Simon Clark provide the meeting with an overview uh first of all of horizon online rather than uh generally Horizon issues and secondly why was it absent any direct or indirect reference to the role of Jenkins and Fujitsu I don’t know and is it therefore following that conversation a brief overview uh which gave a a broad overview and excluded quite relevant matters relating to Gareth Jenkins and Fujitsu that the procurator fiscal’s decision uh was a reversal of the their original position that’s paragraph 14 as a result of this new understanding on the part of Mr melee and his colleague uh Mr M agreed that his recommendation would be that each case be reviewed separately and a DEC and a decision taken on the facts of the individual case and the final sentence there this recommendation amounts to a complete reversal of their original position yes so it seems as though that reversal took place after what is described in paragraph 12 as essentially a very limited reference to the issues with Horizon is that your recollection of what happened at that particular meeting the second meeting the 5th of September meeting that involved representatives from the procurator fiscal I struggle to recall the entirety of the meeting I was there taking notes um and if Mr Clark has put there that he didn’t mention Mr Jenkins then that would have been correct paragraph 12 it was this note drafted by Mr Clark do you believe um I believe he was typing it on the train on the way back from Scotland but he would have had access to my handwritten notes whilst he was preparing it and are you able to assist us with why the words in brackets maybe in a smaller font or appear to be in a smaller font might they have been typed later I don’t know I don’t know I’m afraid thank you very much sir right Mr Maloney it is by my um Reckoning 1438 so you can have 22 minutes and then we’ll have a break at 3:00 thank you sir I’ll try and be less than 22 minutes but I agree it is 1438 so so Mr Smith you described going to see the judge in private in birming Birmingham Crown Court in the case of Samra on the 1st of July 2013 um I I can’t confirm that’s the date but I do recall going and seeing the the judge in private with Mr Clark it was listed for trial that day wasn’t it it doesn’t matter if you can’t remember I I don’t think it was listed for trial that day right well we can establish that with Mr Clark later anyway but but but essentially you went to see the judge because you wished to apply to withhold from the defense what you’d heard from Gareth Jenkins about the likely contents of the second site ining report after what he had told them I I think that’s that’s not quite right um it wasn’t what we’ heard from Mr Jenkins right I think it was what we had heard from post office limited about there being a report y that that made reference to bugs Y and we I don’t believe at that point we had a copy of that we only knew what we had been told and Mr Clark and and I as you know had spoken to Mr Jenkins by telephone who gave an explanation that there had been two bugs so the Mr Clark decided that he at that stage was not in a position to properly comply with his duties of disclosure because whilst we knew some information there was clearly more information that we’d want to know there was clearly a report here that we um did not have a copy of yeah which um he thought ought to be considered for disclosure and he was not prepared as I understand it to go through a trial or to commence a trial without disclosure having been properly dealt with and it was in those Circ irst ances that the application was made I don’t know whether it was actually on the day of trial or a day or two before the day of trial doesn’t matter but essentially you wanted to withhold um from the defense at this stage um is what you’d been told about what the second site interim report was likely to say about things um I didn’t see it that way I saw it as Mr Clark saying that he could not comply with his duties of disclosure he was prosecuting counsel in that case and that was his view so so okay well let’s try let’s just try let’s just try and develop that please Mr Smith you went to see the judge in private to make an application uh I I went along with Mr Clarks who was making the application it’s an expart application it means the other part is not there doesn’t it that’s correct yes and um your application was a public interest immunity application wasn’t it did you understand that um I don’t think I did at the time I just knew that Mr Clark was making an application and I was making notes of it right so so when you say you didn’t understand that at the time do you understand that that’s what it was do you understand now that that’s what it was um I believe that that’s what it was um I I I don’t recall it well enough except to say that Mr Clark was explaining to the judge that could not disclose the the the the correct material at that particular point in time not that it would not be disclosed it was just that he wasn’t in a position to discharge his disclosure duties at that time I’m sorry to interrupt but that’s telling the judge what he can’t do what exactly was he asking the judge to do I’m afraid so I can’t recall well I mean I mean was he saying look I’ve got this problem but we should proceed with the trial anyway was he asking for the trial to be adjourned what was he doing no I I don’t believe that he um was going to proceed with a trial um he was asking the judge what to adjourn the trial or to enter a not guilty plea against the defendant what the judge must have been asked to do something specific uh so I’m afraid I can’t remember right I I I I really can’t remember I remember I’ll try and help you with your recollection I remember turning up and taking notes okay I’m sorry to the stenographer for talking over for us talking over each other there I’ll try and assist you with your recollection okay because what actually did happen was that a public interest immunity application was made on behalf of the prosecution post office limited okay okay and you know that now anyway don’t you yes yeah and you know you’ve said that of course you practiced in defense for a number of years but you were relatively new to prosecution so you took Mr Clark’s advice and were Guided by him as to the making of this application well it wasn’t the case that I was Guided by him in the making of the application he made the application and I was there taking notes but you was instructing sist up to all intents and purposes Mr Smith weren you a very experienced list you were there with Council who you worked with handing glove it seems from all the correspondents that we’ve seen you were a three in this and on this occasion you were a two you work together um I I was working with him on that day yes entirely and so did he not tell you what he was doing I I cannot recall enough about the day I’m afraid right okay well I again I’ll try and assist a public interest immunity application as a defense Lister of some experience is an important procedure isn’t it it essentially withholding material from the defense which would be helpful to the defense and would ordinarily need to be disclosed that’s what it’s about isn’t it that that is a pi application yes and and you were aware were you of the important House of Lords case of hnc and and the conditions it laid down for when a public interest immunity application should be made um I can’t say that I could recall that right okay but as as a solicor would you um would you know that really um that it should only be made where prosecutors identified material that should be disclosed but disclosure of it would create a real risk of serious Prejudice to an important public interest and the prosecutor believes that the public interest in withholding the material outweighs the public interest in disclosing it to the defense with that Accord with your general appreciation of the rules in relation to public interest immunity applications I I can’t say that I previously come across a pi application right okay so that that that’s that’s new to me but you not remembering much about this did Mr clarkk say give you any reason as to why he was making the application to withhold the second site report you previously mentioned yesterday something about parliamentary privilege Mr Smith I I can recall a conversation that I had with Mr Clark um I’m afraid it’s all a little hazy because it’s such a long time ago but we were very much aware that the second site report was going to be released to members of parliament before it was going to be published generally and I think at this particular point in time we did not have the report and we only knew Snippets of what it was likely to contain right did Mr Clark say to you that one aspect of the public interest that he was asserting to the judge in his application would be the prevention of a widespread loss of confidence in post office I don’t recall that being said did he say that another aspect would be the loss of trust in a system operated by post office I’m sorry I I I I just don’t recall the conversation finally just ask you just for the sake of it would did he say that another aspect would be the prevention of journalistic speculation as to the efficacy of systems almost universally relied on by the public I I I I don’t recall that either I’m afraid and then finally did he say to you that essentially post office limits were rightly in my opinion very concerned at the potential adverse publicity which would inevitably have been generated by the revelation of the existence of a draft second site report into Horizon to permit this information to enter the public domain at such an early stage would have been to encourage extremely unhealthy and likely virulent speculation as to the content of any report most probably in the national press such speculation would have seriously damaged the reputation of post office limited and would have greatly undermine public confidence in both post office limited and post office limited systems our objective was to avoid such consequences that objective we achieved with the public interest immunity application I I don’t recall that I’m afraid either if Mr Clark had set all of those things out that I’ve just asked you if you remember him saying in a not of the day hearing would you have seen it a note sent to Paul an attendance note I don’t recall seeing an attendance note no would you ordinarily have seen such an attendance note Mr Smith sometimes I was asked to look at things um proof read them and sometimes Mr Clark would go through things and um other times um I wouldn’t I’m afraid it doesn’t ring any bells with me I I don’t obviously you know you can probably see that I’m I am actually saying that Mr Clark did set that out in I’m gathering from the way you’re asking the question is that you’re reading from an attendants note written by Mr Clark but I’m afraid it doesn’t ring any bells with me at all were the defense Mrs samra’s lawyers put on notice that you were going to make a pii application I have no idea I have no idea this was your very first pii application Mr Smith either defense or prosecution was it um in all your years of experience I have I’m afraid I have I have absolutely no idea about this I know that Mr Clark was Prosecuting Council um and I don’t know um did you have any role in notifying Mrs samra’s solicitors that there was going to be a pi application made on the 1st of July 2013 I I’m not aware that I did so you can’t help whether or not any notice was given I I’m afraid I’ve got absolutely no idea were you aware that if the prosecutor makes an application to the court without notice to the defense because the only circumstance in which it can be done is because it would have the effect of disclosing that which the prosecutor contends should not in the public interest be disclosed and that that is a highly exceptional situation I’m sorry what what was the question were you aware that when a prosecutor makes an application to the court and this is under the criminal procedure rules without notice to the defense because to do so would have the effect of disclosing what the prosecutor contends should not be in the public interest be disclosed they that’s the only circumstance in which an application can be made without notice to the defense you’re aware of that I wasn’t aware of that no no but an application was made by um Mr Clark with you in attendance making notes as a solicitor of some post-qualification experience and you went into the judge’s Chambers with Mr Clark and the the judge himself was was a judge Chambers wasn’t he do you remember that I’m afraid I don’t know and what happened was you were to as a pii certificate was granted did you were you aware of that I don’t recall right and you were to inform the defense that a report had been commissioned but you could withhold the existence of the interim report and it was to be presented to MPS that day and then the matter was Jed for eight weeks you’re well Ware of that I don’t recall that I’m afraid thank you very much Mr Smith um so that’s only 18 minutes I think very good uh Mr Malone um Mr Ste can I press you in the sense that I think you were next and you wanted 15 minutes and if that is accurate then we could probably slip that in before our break so I think it is accurate I’ll be 15 minutes uh but uh I’d hope to be slightly less right will even more reason for you to carry on if you will please in in that case Mr Smith let’s proceed with the questions I have for you at the time whereby you working for cartright King were engaged on the prosecution of matters for the Post Office do you agree that you were following the code of practice for uh prosecution Advocates that was issued by the CPS I wouldn’t agree that no you would what um code of practice in relation to your prosecution work do you think you were following um I’m not confident that we had the necessary skills and expertise to be able to follow um codes um I’m afraid as I said earlier um we’re essentially a defense former solicitors and it’s beyond me as to why the firm decided to take on prosecution work knowing that um we hadn’t been specifically trained in prosecution work and so whilst there may invariably be codes of practice um and and other requirements um I think it’s difficult to follow them if you’re not aware of them understood Mr Smith but uh uh it’s you taking on the work you are um an advocate by this point an advocate of some experience you had qualified as a higher rights advocate well before 2010 do you agree that’s correct and it is you that is subject to the regular responsibilities issued by the bar Standards Board do you agree do you agree I’m sorry could you just repeat you are sorry you are a solicitor aren’t you so you are subject to the regulatory responsibilities of the issued by the S the solicitors regulation yes do you agree with that and you agree that you should work within your own field of competence you also accept that yes so when you started to take on prosecution work on beh on behalf of the post office did you consider the question of what ethical standards should apply to your work as a prosecutor I didn’t consider that I it was not that it didn’t occur to me that I did not have the requisite skills and expertise for this role did you look them up uh no I didn’t now in oldfashioned terms the way that uh um the uh standards applied to prosecutors used to be called a a Minister of Justice did you consider even in the loosest possible way that you as a prosecutor needed to act as a Minister of Justice I considered that I needed to do things properly in accordance with um the law and that is what I attempt to do have you heard the term Min of Justice being applied to prosecutors I I have yes now right let me ask the question again did you consider that that which should be the way that you should act when Prosecuting um that is certainly what we we try to do yes did you consider did you think about it Mr Smith that I must when Prosecuting these cases act in a way that is bringing the highest ethical standards to apply to prosecution cases did that cross your mind or not I don’t think I gave it a huge amount of thought so the answer is no I didn’t um no all right let’s turn to then the call that you had with Mr Jenkins and that was prior to then the issue of what we all call The Clark Jenkins advice yes okay right that call now that call was recorded yes yes by the time therefore that the call with Mr Jenkins was recorded do you agree that you and Mr Clark were at the very least suspicious that there was a problem with Mr Jenkins suspicious yes yes otherwise why record the call yeah yes so this wasn’t an example of uh Mr Jenkins being told um by the way we’re going to record this call because we think there’s a few things that might that are a real concern you didn’t warn him that you’re about to call him we didn’t warn him no and we we were obviously concerned that um reports that had been provided did not make reference to the bugs why was it recorded so we could have a transcript of it for our own files right so the transcript was there and the call was there so that you would have evidence in relation to what was going on with Mr Jenkins is that right yes okay so you and Mr Clark were conducting uh essentially a mini investigation at that stage into Mr Jenkins is that correct um I suppose putting it like that yes yes okay so it then led to the Clark advice that deals with Mr Jenkins I’m going to ask for that to go up on the screen please and that is p o l 4’s 6357 and can we have paragraph 38 of page 13 the bottom half page 13 paragraph 38 please okay now this says at paragraph 38 the reasons as to why Dr Jenkins failed to comply with this Duty are beyond the scope of this review the effects of that failure however must be considered I advise the following to be the position Dr Jenkins failed to disclose material known to him but which undermines his expert opinion so that is basically saying that Mr Jenkins Dr Jenkins as it says here deliberately failed to disclose material that he was aware of do you agree yes right the this failure is a plain breach of his duty as an expert witness and then it goes on to say accordingly Dr Jenkins credibility as an expert witness is fatally undermined that’s what it says do you agree yes right okay now at this stage therefore you’re considering the question of someone who has knowingly misled the courts do you agree um yes right what criminal offenses has been committed if those facts are correct well um perjury potentially right anything else um prefer in the course of Justice right so let’s go with perjury and birthing court of justice let’s ask the basic question why didn’t you call the police I don’t know nowhere in the Clark advice dealing with Mr Jenkins does anybody suggest that maybe we should just call the police and bring them in to conduct an independent investigation do you accept that it’s not in that advice I do accept it’s not do you accept that it’s not in any other advice that relates to Mr Jenkins that maybe it might not be a good idea to call an independent investigation I.E the police no I just don’t think that’s anything we thought of right and at the time after having conducted the investigation involving Mr Jenkins including the taped um call did you not consider yourselves then to be Witnesses in relation to what had happened regarding Mr Jenkins I I didn’t think of that no no do you accept that you are witnesses in relation to what happened to Mr Jenkins and those calls and that investigation I I do yes yes no putting it that way I do yes well putting it that way is all fairly obvious Mr Smith when considering your position as a witness do you think it was appropriate to continue acting on behalf of the post office in relation to these matters I didn’t think of it in that way what do you think about it now I can very much understand your your your point do you agree with it I’m not sure I do okay why not because the fact that we’ve become aware of this information we’ve mentioned it to our client and we are then assisting our client to move on in terms of um looking at cases reviewing files and looking for a new expert but not calling the police what did you tell Fujitsu hit I don’t believe we said anything to fitsu Mr Jenkins is employed by who fitsu yes and you come to the conclusion that Mr Jenkins has misled the courts dishonestly what did you not consider it might not be a bad idea to tell Fujitsu about their employee um I didn’t give it that any thoughts I perhaps I thought that post office might do that given that they are the ones with a contractual relationship with Fujitsu it didn’t cross your mind on Mr Clark’s mind as far as you’re aware to perhaps tell the post office that it ought to tell Fujitsu that they’re on your view that their expert has been dishonest with the courts no I don’t no myself and Mr Clark did not discuss that we didn’t discuss the fact that we were potential Witnesses we did not discuss the possibility of informing the police or Fujitsu right now let’s deal with the shredding advice also that penned by Mr Clark now the shredding advice came about because what had happened was that you had learned from John L Singh in a conversation again you recorded that um Mr Scott head of security at uh post office um was suggesting that uh minutes should not be kept otherwise they might be disclosed do you agree um I don’t agree fully with what you’ve said it wasn’t an entirety of the phone call that was recorded it was just the letter Port that was recorded but that was a thread of what was in the um shredding advice it was it was the the the shredding if we’re going to call it the shredding advice contained information relating to that call and also as a as a byproduct of some of the Wednesday morning calls yes the shredding advice does not record that there was also a um a comment made to Mr Singh and reported to you that what was going to happen was that cartright King were going to be uh blamed for destroying documents I read from your statement paragraph 45 page 12 my recollection at the present time is that Mr Sing alleged that John Scott had indicated an intention to shred the minutes and to explain if asked that they had been destroyed on the advice of cight king and you repeat that in relation to the same conversation at paragraph 52 page 14 now the shredding advice does not record the fact that essentially Mr Scott was apparently willing to blame cartright King for shredding of evidential material why does it not record that I don’t know is it not a serious accusation it is yes and a serious suggestion to be made in relation to a firm of solicitors yes did you tell the partners of the firm of cartright king um I would have reported it to Mr Cash undoubtedly who was the partner in charge of the Derby office I can’t recall precisely whether I spoke to the other partners well what what was Mr Cash’s reaction was he delighted I don’t think anyone was particularly delighted about that suggestion by this point in July of 2013 do you agree that you and the firm of kri King were hopelessly conflicted in your relation to your dealings with post office I don’t think that crossed our minds did you take any advice on that uh I just simply reported what had happened to Mr Clark and that was it really were these advices privileged Mr Smith what do you mean by that you understand what privilege is it’s the duty of confidental Charity that exists between lawyers and clients yes and allows for a lawyer to advise in private a client were the contents of these advices in other words you discovering via a mini investigation Mr Jenkins that he apparently on what you know has misled courts is that privileged material Mr Smith I’m really not quite sure and what about the shredding side of things the fact that John Scott head of security at pole was both threatening cartright King and suggesting that minutes should evidential minutes should be destroyed is that privileged Mr Smith no that’s not no no further question thank you Mr Ste we’ll now have our break um Mr Blake can you ask the transcriber whether she requires 15 minutes or whether 10 minutes is enough I’m I’m comfortable BL with either uh she she would like 15 minutes fine so we’ll start again at 20 3 yes thank you very much F thank you e e e e e e e e e e e e e e e e e e e e e e e e e e e e e thank you sir um we’re now going to turn to Mr Henry Mr Henry I think um you’ve asked for five extra minutes so 20 to 4 thank you sir yeah fine thank you very much sir could we go to P 001 39866 and these are notes that you took of a meeting with Mr Brian Alman correct they are a typed version of the notes that I took I wasn’t tying during but you accept the notes um yes I I I these thank you you’ll remember of course that this was the conference where Mr Alman advised that there was no positive duty to seek out individuals pre the 1st of January 2010 correct yes that’s correct uh could we go to page three of these notes please and do you see the word Susan that stands for Susan kryon yes better to keep Fujitsu on OS outside given not resolved GJ Gareth Jenkins situation yes and then the QC says tactical point of view keep them as third party yes so in other words keep them at a distance correct yes I’m not quite sure um in what context that that is but yes that’s that’s the the reading of it well I mean you must surely have reflected upon this when did you realize you were going to become a witness in this inquiry now what I mean by that is I’m not sure whether that is in relation to the um provision of information from fij jitsu it was better to keep Fujitsu on the outside given not resolved the go Jenkins situation I’m not going to waste my 20 minutes by waiting for an answer should we move on to page six please and do you see just at the bottom of the screen QC misra concerned preh Horizon online case issues were as detailed as I’ve seen she went to prison Jenkins gave evidence training and Horizon issues Professor mclarin much of it hypothesis that is a case slipping through the net yes you realize of course that I’m sitting next to Mrs SEMA misra today I I didn’t realize that and you would agree that she’s owed the truth yes absolutely all right so I’m going to ask you some questions Miss kryon says she comments that she has applied for mediation and then the QC says how are we going to deal if she comes forward and says similar you see that yes so she’s got to come forward no one’s going to tell her that was the gist wasn’t it how are we going to deal if she comes forwards and says similar it’s obvious she’s got to come forward the impetus is on her no one is going to tell her well it leads into the next sentence doesn’t it either review all pre 2010 cases or we do nothing and wait for them to come forward exactly and that’s precisely what occurred yes I think I think what occurred was that there was a decision to review um cases which commenced after the 1st of January 2010 that being the earliest date upon which Horizon online could have been uh in place but I think we changed that so was any case with a hearing after after the 1st of January 2010 which of course then included Mrs misra’s case well we’ll come to how you deal with it but I note your apparent justification for the decisions taken at this conference and subsequently but it seems at this stage no one wanted to provide Mrs misra with a ticket to use your expression to the court of appeal do nothing adopt a passive approach correct I would certainly agree that um the post office um did not want at that stage to be actively encouraging people to go to the court of appeal no and you know why that was don’t you I take it they going to enlighten me oh come on must we play games Mr Smith I’m sitting next to a lady who was the foundation stone for the prosecution policy her case was a test case which was used to deter civil claims and criminal defenses the conviction obtained against her was absolutely seminal in the whole prosecution policy you must have realized that I was aware that um Mrs misra had been prosecuted um I think at the point at the time of this conference I don’t think we had seen her file we were I think we were being told that her file was not available it couldn’t be found and I think the the first time her case was reviewed was um I think by Mr Clark having to read the judges um summing up to the jury and I think um that was also provided to Mr ultman King’s Council and I think he commented that a particular page was missing it wasn’t until quite some time later that the case File relating to Mrs misra was discovered and provided can I just ask you please to keep your answers short because they’re eating into my time and I’ve got quite a lot of things to put I do apologize right um that I’m going to go ask you this question in view of the answers you given to Mr Steen King’s Council um and in view of what you already knew by this time uh namely the 28th of June recorded conversation the 15th of July advice why wasn’t Mrs misra immediately being told I don’t know well I suggest the reason is obvious and it is going to be clear from the evidence that you’ve already given to Mr Blake it is because of the fact that if disclosure had been made to her promptly it would have as it were set off the domino effect wouldn’t it I don’t think that I gave any thoughts to that whatsoever well you have spoken haven’t you about how you were concerned how uh the civil lawyers rodri Williams Mr Parsons etc etc the civil lawyers appeared to be exerting pressure talk of talk of suppressing disclosure talk of not putting things in writing etc etc etc in civil litigation yeah but of course if Mrs misra’s appeal was promptly notified to her an irresistible appeal You’ surely don’t desent from that judgment no I think the plan of action was that cases all cases should be reviewed um and they should go through the Civ process then Senior Council would conduct a full review to determine whether disclosure should be provided and that is precisely what happened in relation to Mrs mis’s case I’m afraid I I I I don’t recall having any particular involvement with Mrs mis’s case well we’ll we’ll come to that it seems you agree at that stage that you didn’t want to provide Mrs misra with a ticket to the court of appeal um and then these these words um that there may be misas other misas we can’t avoid this is the QC provisional view sensible date to adopt in other words the 1st of January 2010 but can’t avoid possibility misas May crawl out of woodwork deal with on a caseby casee basis unless someone States cut off is unreasonable in other words do nothing pre 2010 but some applicants May yet emerge deal with a mad Hawk unless someone challenges the 2010 cut off as being unreasonable you agree with that that was that was mrman King’s council’s advice yes right let’s go to Mr Matthews page seven please before you get go there Mr Henry and I’ll give you an extra minute cuz I’m interfering what does misra unique mean uh so far as you concerned uh Mr Smith you see just a couple of lines down from where the point Mr Henry Henry took you I’m afraid I have no idea sir I I’ve got no idea let me jog your memory it’s because it’s the only case in which Mr Jenkins gave oral evidence against a defendant although he had given written evidence that’s why she was unique that may be the case right go to um page uh seven if we may and Mr Matthew says misra apologize and the QC is reported to have said I wouldn’t you wouldn’t have written that down if that wasn’t accurate would you Mr Smith no I wouldn’t no no because of course an apology would let the cat out of the bag it would let the Jenkins cat out of the bag so therefore there was an approach of do nothing masterly in activity correct um I don’t believe that Mr Jenkins was was discussed in relation to this um well what would you be apologizing for what would the apology for Mrs misra be for if it weren’t to be in connection with the fact oh I’m sorry we secured your conviction on the basis of an expert who did not know his duties to the court and who may on the information that we have on tape um suppressed Vital Information about bugs errors and defects you know even Mr Mathews thought that maybe that deserved an apology didn’t he I think this may have been discussing the the way in which her mediation application may have been dealt with and well I can deal with that in very short order because Mr Alman said don’t mediate with her didn’t he well he he he was against mediating with anyone who had a conviction he was very clear in his advice in relation to that he as we can see on page see mediation for anyone who is outside scope of uh criminal scheme I think storing up problems storing up problems is a a phrase I underline is she considering out of time appeal that must be a reference to Mrs misra you agree I do agree yes page eight of 11 no problem with mediation however do have a problem with someone going convicted to to the scheme my view is storing up problems with misra so his clear and unambiguous advice was don’t mediate with her um yes that’s correct foot of page eight please and do you see um fo foot foot of page eight please yes we got it um five lines up from the bottom at the moment on the right Lines Just control it that’s again Mr Alman speaking isn’t it I believe so yes yeah and of course that Echoes it’s Echoes the Alman General review at paragraph 129 that Mr Blake took you to this morning where Mr Ortman writes cartright King wish to exercise a measure of control over the dissemination of information and material during the process so this is where I suppose um Mr Alman is basically saying yes keep a vice likee grip on disclosure correct he he was advising to be very careful what was disclosed yes keep a vice likee grip on disclosure keep it tight I don’t recall the words Vice like grip being mentioned well don’t he didn’t want anything to be loose did he I I think his view uh well as I understand his view he was very much of the view that a casual uh comment or a throwaway comment or even an apology um could actually have um substantial ramifications for post office right now I want to understand now in the remaining minutes that I have how a decision was taken taken on the 5th of December 2013 when the firm said and it was the firm that Mrs misra should have disclosure because on the 5th of December 2013 p001 98595 and it’s a matter of record it’s paragraph 33 of that document it is our view that this case clearly passes the disclosure threshold and we will be disclosing the second site interim report and the Helen Rose report to misra’s lawyers it should be said however that the defense were aware of the fuler defect in this case and it was discussed in the trial this is the only preh Horizon online bug of which we are aware so two questions arising out of that paragraph who wrote that paragraph what’s the name at the bottom of the document cartri King cartri King well it certainly wasn’t me who wrote that paragraph you were involved in the preparation of this document you say so in your statement yes C can you not I tell sir win the chairman of this inquiry to the best of your recollection who wrote that paragraph um if there is if it just simply says C’s right King at the bottom of the document I would guess that that was written by Mr Boer because Simon Clark would generally sign off his paragraphs sign off his documents Simon Clark I see and so um I now ask you this question why was Mr Boer taken off this matter because on the 22nd of January 2014 Mr Clark sent you an email which had the full review of the SEMA Miser case draft document and he said one word in that email to you when he sent it to you it was few triple exclamation mark who took Harry Boer off the case and put Simon Clark on it I’m not aware that anyone took uh hurry B off the case well why didn’t Mr Boer if he wrote paragraph 33 have continuing control of the matter why was it that on the 22nd of January 2014 Mr Clark sends you an email with the word few attaching a document which says that Mrs misra shouldn’t have any disclosure I don’t recall that and you responded to it as one complex matter ends another starts you were in on the you were in on this weren’t you tell us the truth why did the firm do a complete backflip somersault on whether Mrs misra’s team should get disclosure no I didn’t I don’t I don’t recall appreciating that there was a complete some assault um you are you being serious Mr Smith I am being serious with you yes I’m being deadly serious with you um I remember that the the initial review of Mrs M case was a partial review based on the judge’s summing up and then Mr Clark looked at that um and it would appear from what you’re saying that he then reached that that decision um I I’m afraid I can’t add anything more to that can can we can we go back to First principles uh 28th of June 15th of July expert witness credibility facely undermined if Mr Jenkins had given evidence either orally on right or in writing against any defendant the material that you had from the 28th of June and the 15th of July was material that would cast doubt upon the safety of any conviction associated with his evidence wouldn’t it um I agree with that now yes you should have agreed with it then and you did agree with it then because of the 5th of December 2013 document that went out in your name saying that she ought to have been given disclosure what happened between the 5th of December 2013 and the 24th of January 2014 tell the truth I have got no idea as far as I was aware um Mrs mis’s case was being looked at in in accordance with the the the the the the protocol um I I’m speculating but it may be that by the time Mr Clark um had um looked at it again we perhaps had more information you you were in daily contact you told Mr Blake with JN Al sing almost a again I put it to you that if Mrs misra’s lawyers had been given prompt disclosure the whole prosecutorial facade of horizon reliability and infallibility would have collapsed wouldn’t it um her case was assessed by Mr Clark who as you’ve said um concluded that no disclosure was necessary um we know made the reason why he said that I suggest is because somebody obviously put pressure on him because of the ramifications Mrs misra’s inevitable appeal would have had for both civil and criminal litigation well that’s with respect that’s nonsense and and it certainly wasn’t why is it nonsense well I’ve not put any pressure on Mr Clark um none at all and you can offer no explanation at all for Mr Boya not continuing with Carriage of the matter and that fundamental shift between the 5th of December 2013 and the 24th of January 2014 or forgive me the 22nd of January 2014 you can offer no explanation no all I can think of is by that time it may be that we had more information because to start with as I’ve already said there was very little information available and then more I think the file was then discovered and and and sent through now how how that fits into the time scale I’m I’m not sure but um I’m afraid that your assumptions here are incorrect uh as would be clear if you had read the 22nd of January uh advice I I I I ask you for the final time and my time is up what is the truth about the firm’s shift between Mrs misra should get disclosure in December 2013 to Mrs misra ought not to get disclosure under Endy under any circumstances on the 22nd of January 2014 I cannot give you any information in relation to that all I can suggest is that you ask Mr Clark as to how he came to his conclusion thank you Mr Henry uh right um I think the final um series of questions comes from Miss Oliver thank you sir uh Mr Smith I ask questions on behalf of Gareth Jenkins hope you can just about see me and for the avoidance of doubt your time limit is 54 Miss Oliver I’m grateful thank you sir um I have three topics that I want to cover with you this afternoon firstly the question of expert duties secondly the call that you conducted with Mr Jenkins in relation to the case of Samra and thirdly a Reet element of your treatment of Mr Jenkins in the case of ishak all right so to turn to the first of those then um you have very candidly accepted that at the time you were Prosecuting these cases you were not aware of your duties in instructing and deploying expert evidence is that right that’s correct yes and following what you said that it’s difficult to follow something of which you are not aware yes you also can ly acknowledged that cartright King never instructed Mr Jenkins in a compliant Manner and never told him about the expert duties to which he was subject that’s also correct yes thank you um the way you deal with that in your second witness statement I don’t think we need to go to it it’s paragraph 21 of that statement is that you state Mr Jenkins should have been given detailed written instructions in relation to each individual case which incloses a full set of papers asked specific questions and set out the duties of an expert instructed by the prosecution Mr Jenkins had not been so instructed is that correct yes that’s right in that paragraph 21 you don’t specify between cartright King and post office in terms of their instructions did you come to the same conclusions as to the non-compliant instruction of Mr Jenkins in relation to post office’s use of him in the prosecutions they conducted before cartright king became involved I’m I’m sorry I’m struggling to see you I know I’m going to come this way um hope that will be easier oh no I’ll go back that way thank you that’s very kind of you thank you I took the view that um it was it became it became apparent to me following the provision of Mr Clark’s advice that we had not been compliant in terms of instructing Mr Jenkins um Mr Sing who had followed Mr boer’s advice had not been compliant in instructing Mr Jenkins and of course Mr Singh was head of criminal law at post office and in the circumstances I was quickly coming to the view that actually when the post office was part of the royal male group um it was highly unlikely that he had ever been advised of his duties then either otherwise even though there was a requirement to advise him on each occasion which I was unaware of it occurred to me that he’ probably ever been advised at all thank you um so the answer to my question then is that it did relate both to cartright King’s instruction and to post offices yes thank you do you agree that that was a serious failing on the part of cartright King and post office in the manner in which they conducted these past prosecutions um it was a serious failing in terms of how they obtained expert advice thank you and do you agree that it’s particularly important because it goes to the very failing that Mr Clark identified in his advice of the 15th of July 2013 by which I mean the failure to disclose material in accordance with those expert duties uh it does go to that yes thank you um I think you said in answer to my learned friend for Council to the inquiry that you knew of that failure certainly in relation to cartright king um at the time that Mr Clark was producing the advice of the 15th of July is that right it was it was that advice which really Drew my attention to it is it something that you discussed with Mr Clark at the time he was writing that advice I don’t recall discussing it with him uh are you aware of whether he was um aware of that lack of expert instruction at the time he was writing his advice I don’t know thank you can we please go to a document it’s p0155 thank you this is a handwritten note you can see the date in the top right hand corner it’s the 2nd of September 2013 we’ve heard evidence that this was a note authored by rodrik Williams of post office um it appears to refer to you at a number of points I’m just going to identify those for you about halfway down the page we can say see it seems to be the words tell to Ms do you see that yes and then if we scroll down a little bit further please we see on the left Martin Smith and then the word inference and then a few lines down M Smith um do you recall having a conversation around this time with Mr Williams no I’m sorry I don’t all right um if we go to some of the things he records that might jog your memory um on the right hand side of the page we have in front of us at the moment um in the Box it says what were we doing to instruct GJ uh and then in the left on the left of the page under the words M Smith are a number of Arrow bullet points the first of which is don’t think he’s ever been advised of his duties do you think that this note might be recording a conversation that you had with Mr Williams it’s quite possible yes a and do you recall whether during a conversation you had with Mr Williams you informed him of your view that you’ve informed us of this afternoon that you don’t think Mr Jenkins had ever been advised of his duties I can’t recall the conversation I’m afraid right it’s such a long time ago do you recall being party to any other discussion with anyone within post office as to the conclusion you’d reached that Mr Jenkins had never been properly instructed as an expert no I don’t and if um as this note appears to indicate you were having that sort of conversation with Mr Williams does that make it more likely that that’s a conversation you would have had with Mr Clark as well I may have had that conversation with Mr Clark but I I can’t say it makes it more likely I I just don’t know all right thank you um can we please turn to Paul [Music] 13986 um this is your typed note of of the notes that you took during a conference with Brian ultman QC on the 9th of September of 2013 um if we could go to page four please about halfway down uh and it’s the entry thank you um uh that starts Simon and then it says goes back to GJ either he not aware of info or FJ Ivory Tower not being taken seriously do you recall what that comment from presumably Simon Clark referred to yes I can recall that there was a discussion about uh Mr Jenkins um and I actually I think I actually wondered whether he’d actually become aware in a timely fashion of the of the various books himself um and according to this note uh Mr Clark’s view was either um he wasn’t aware of the information or alternatively that FJ meaning Fujitsu um was um in an ivory Tower not taking their obligation seriously as part of the discussion about Mr Jenkins that appears to have featured in this conference did you at any point tell Brian ultman QC of your conclusion that Mr Jenkins had never been instructed in a compliant Manner and had never been told about his expert duties no I don’t think that’s occurred to me all right um can we please turn to the Simon Clark advice it’s poll 6357 and can we go please to paragraphs 37 and 38 which I think are on page 13 thank you um so there we see at paragraph 37 the conclusion that I’ve already referred to um that Dr Jennings meaning Jenkins has not complied with his duties to the court the prosecution or the defense and it sets out that the dut the expert duty of disclosure um there and then at paragraph 38 the reasons as to why Dr Jenkins failed to comply with this Duty are beyond the scope of this review do you know why those reasons were considered beyond the scope of this review no I don’t is it because the reason it appeared you knew at that point at the very least may have been and by the reason I mean the reason for Mr Jenkins failure to comply with that um disclosure obligation may have been that he was never told about the very Duty he was accused in this advice of breaching I think uh Mr Clark was con concentrating on the effects of the failure not the method of instruction because we we knew at that stage that Mr Jenkins had been instructed obviously for quite some number of years years whereas cartri King had been involved um at that stage for approximately one year well all of the statements that Mr Clark refers to in this advice concern statements obtained by cartright King yes all right so that’s certainly the focus of his um I believe I handed them to him all right um but did you not think it relevant the manner in which Mr Jenkins had been instructed of the expert Duty that he would was accused in this advice of breaching uh no I didn’t uh give that thought I’m afraid on any view do you agree that what you discovered about the lack of instruction of Mr Jenkins was a hugely relevant Factor hugely relevant material to anyone who was looking at the conduct of past prosecutions whether that be post office or cartright King I can see that now but I didn’t think about that at the time do you agree that that conclusion that you had reached as to the lack of Mr Jenkins instruction ought to have been communicated to Mr ultman to post office to the CCRC uh I I’m afraid I didn’t think of it in in that level of depth is the reason why there was a lack of openness about that conclusion that you had reached because it would have been professionally damaging to cartright King to make that concession no I I just didn’t think of it in that in that way I mean we I was I was looking at it in fact you know this is where we are now we have these uh reports um they didn’t mention bugs um what are we going to do about it and had it become known Mr Smith that there had been that acknowledged failure on the part of post office and cartright King that would have led to an obvious Conflict for your firm continuing their involvement in reviewing those past prosecutions wouldn’t it I didn’t give that any thought I’m afraid all right I I just simply thought as a matter of fact well um I’m not you know we we certainly haven’t uh provided that level of um instruction which uh Mr Clark has uh referred to and I don’t think post office did either um or the Royal male group for that matter that that was simply my thought process and is the relevance of that failure to the conclusions of Mr Clark simp some simply something you didn’t recognize at the time I I just didn’t think of it all right let’s turn to my second topic then please I’m I’m wary of the time um if we can just look at the transcript of the call in relation to Samra um it’s poll 0142 2 [Music] 32 it’s right I think that on the 28th of June 2013 you and Mr Clark made a telephone call to Mr Jenkins yes is that right that’s right um how was that recorded I I don’t I don’t recall precisely how it was recorded um do you recall how this note was produced from that recording no do you recall who prepared it uh no I don’t do you recall when it was prepared no do you agree that Mr Jenkins was given no warning about this call I do yes um do you agree that he had no prior knowledge of the case of Samra um I don’t believe that he would have known about the case of Samra because I don’t believe any form of expert report had been sought in relation to that case so he wouldn’t have had any instructions whether defective or otherwise um and you acknowledged to my leared friend Mr Steen that you were at this stage suspicious in relation to Mr Jenkins is it right that this call was to test Mr Jenkins credibility as you and Mr Clark saw it by seeing if he would agree that he had provided information to Second site about the receipts and payments mismatch bug and the suspense account bug I’m not sure if the call was to test his credibility um I think Mr Clark just wanted to speak to him to try and get some information to determine how to proceed with the case against Mrs Samra and what information was he hoping to obtain I I I I don’t recall if the call was being recorded Mr Jenkins was not told that he wasn’t told that no and he was given no chance to check the note for accuracy or understanding as to what he had said no all right turning then to um the third and final topic that I want to address um you to a degree had conduct of the case of ishak is that right um to a degree yes yes um I think it got passed around quite a bit and towards the end it was very difficult to follow with a number of people who had involvement do you recall that at a certain stage in that case Mr Jenkins was invited to comment on the First Defense statement that Mr isach had produced I do yes um and if we can please go to paul11 9447 please we see here um an email from you on the 4th of February 2013 forwarding um Gareth Jenkins comments on isak’s DCS to Mark Ford and Steve Bradshaw do you recall reviewing those comments that Mr Jenkins have made on the defense statement um I I don’t recall reviewing them I’m afraid but I guess I must have done thank you and if we can go to the comments that he made please which is po0 59602 thank you very much um here under section one introduction um Mr Jenkin says I’ve been asked to comment on the defense case statement in the case of R and cam ishak um and then uh he States I’m not sure that the responses are of much use and I don’t think there is anything that can really be added to my statement as a result however if you feel any of this could be usefully added I’m happy to be convinced much of it relates to requir requiring further data for analysis and past experience indicates that help may be required in understanding it so he’s referring there to the fact that um there’s data that might be obtained that would assist in the preparation of the case do you agree um yes he’s talking about data that can be analyzed and um also talking about the fact that the defense may not necessarily understand it so he’s he’s saying that he could assist the defense thank you and then if we can please go to page two and under number seven um uh part of the nature of the defense is um set out in relation to post office Horizon software um Hardware system um malfunctioning um and he says if the defense um can specify some examples of this I am happy to investigate them however I would contend that the system doesn’t malfunction without leaving some trail to indicate what has happened without examining the logs it is difficult to be any more specific do you interpret that as another reference to the arq data that could be obtained in this case I think it I’m not sure if I understood it to be the arq data but I thought that data had been obtained in this case well data had been obtained in this case you may remember and provided to the defense but was never provided to Mr Jenkins do you agree do you do you remember that um no I I don’t recall that and I think we were potentially of the view that with Mr Jenkins being at fij Jitsu he could quite easily look at the data that Fujitsu held did you not understand that he was reliant on post office in order to obtain the arq data no I don’t think I was all right if we can go to page four please uh and subsection six this is the defense request for all Horizon system data for a particular period of time um and Mr Jenkins States I assume that this is the data returned in the arq by Fujitsu to post office limited I have not seen this but would be happy to examine it if required um when you saw these comments from Mr Jenkins and the repeated offer to look at the um arq data why was it that you did not ensure he was provided with that underlying data I was under the impression that he had the data well we know that in fact um he is never provided with the data and he tries to obtain it for himself on the eve of Eve of trial do you recall that no I’m afraid I don’t um do you agree that in these comments Mr Jen is indicating that system malfunctions are possible and could be looked for in the logs um yes and he he’s also inviting the um the defense to supply some examples which is indeed what I was trying to do as well and that he’s saying he cannot be more specific unless he has examined those logs um yes thank you those are my questions thank you Miss Oliver and thanks to all the legal representatives of core participants for their discipline in um keeping the time limit uh that’s it is it Mr BL there are no further questions that’s correct sir so thank you Mr Smith for providing two detailed witness statements to the inquiry and for answering questions over yesterday and today I’m grateful to you very well thank you and we’ll um resume at 9:45 tomorrow morning yes sir with Mr Singh yeah thank you e e e e e e e e e e e e e e e e e e e e e e
The Post Office’s former most senior in-house lawyer will face questions from legal representatives of sub-postmasters today.
Chris Aujard, the organisation’s former general counsel, previously told the inquiry that then-CEO Paula Vennells had dismissed recommendations to cease prosecutions against sub-postmasters in late 2013.
The legal professional also resigned as a director from several UK companies in the 48 hours before he gave evidence last Thursday, according to reports by freelance journalist Nick Wallis.
More than 800 sub-postmasters were wrongfully prosecuted between 1999 and 2015 due to faulty Fujitsu software reporting fictional shortfalls.
Former Cartwright King solicitor Martin Smith will also return to the Post Office Horizon IT inquiry to continue giving evidence.
#postoffice #inquiry #news
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21 comments
He had no knowledge of prosecutor conduct rules but took the job anyway – no knowledge of expert evidence rules – obstructed evidence disclosure or shredded it – failed to demand PO (or he) reports expert's perjury to police – denied folk their case be reviewed for redress if pre 2010 or convicted, (then they appeal their conviction & PO malpractice exposed) – colluded in cover up
Have a feeling this is one solicitor whose numerous serious malpractices will get him struck off
Another one for jail. Cant remember, dont recall , i think but not sure. His job is to investigate when evidence shows it's not right. Again not me governor
Apparently it is only 95% of solicitors, that give the rest such a bad name.
Spineless, totally spineless. Get all 3 from CK together and make them testify in front of each other.
Both Brian Altman and Simon Clarke next week. Let's see if their stories stack up.
Another melt
Jarnail Sing was the PO's senior criminal lawyer but was really only a paper-shuffling conveyancing lawyer, and also worked part time in his own business.
His first testimony was a hoot, a self inflated complete buffoon with no self awareness – cannot wait for his second visit tomorrow Friday YIPPEEE
He joined the PO cos he thought he was going to get a slot whereby he could get away with doing very little, even when the obvious was in front of him he decided to stay idle whilst assuming he was insulated against being found out, he was wrong, he is another foreigner who came to take the piss, look where it got him.
Yet more evasion of responsibility, retrospective spin on damning contemporary emails, selective amnesia, buck passing, verbal obfuscation. A long, elaborate exercise in arse-covering.
The legal system in the UK is a laughing stock.
All of these people are going to give such conflicting testimony that eventually nobody will believe them. And I wonder if any of these so-called legal experts are what their background says are true and they actually went to spin doctors school at second site University 😊❤.
I dont think any of these solicitors or post office managers and executives will get prosecuted on the grounds they would not get a fair trial. I hope I am wrong as they certainly do need to be held to account.
Fast forward to Mr Henry’s questioning ✊
Each one of these highly paid lawyers and senior bosses are only too willing to pass the buck and throw another person under the bus for their lack of work done on investigating anything. They were all on a serious cover up campaign, but now they recall nothing about what was happening. They all should be held accountable for systematically persecuting innocent victims of the Post office.
Liar Liar pants on fire.
The evidence beyond a reasonable doubt is that the miscarriage of justice was due to the failure of highly paid legal experts who knew nothing about IT systems. None of the prosecutions should have proceeded. But they wanted the money not justice.
They need to draw a picture of Jason Beer riding a horse with sword in one hand and a shield with the St George's Cross on it in the other as he is riding towards the Post Office Headquarters and yelling "CHARGE".
Timothy Castagne Fulham FC is the real tax evader here thief isn’t he that should be in court not these people 🎉 isn’t it ladies and gentlemen??
How can anyone contemplate using this firm of lawyers when they seemingly lack sufficient integrity to undertake the basic task and responsibility of getting disclosure correct. Any potential customer to these lawyers should have serious concerns of their apparent inability or unwillingness to accept responsibility and accountability for their mistakes or shoddy behavior and practice. Surely there is a strong argument to ban these lawyers from future practice.
At 6;47 the meeting shows Susan Crichton saying Fujitsu need to be kept ONside, not as Mr Henry says OUTside. My interpretation makes far more sense in the context.