Post Office head lawyer considered halting Horizon prosecutions in 2013
The Post Office’s lead lawyer considered halting all prosecutions of sub-postmasters until a report into the Horizon IT system was published, the inquiry heard.
An email sent by the then head of criminal law, Jarnail Singh, to Martin Smith, a Cartwright King solicitor, in 2013, asked for Mr Smith’s view on “why POL [Post Office Ltd] cannot simply stay and hold fire in prosecutions where there has been alleged Horizon issues, yes or no”.
Mr Smith replied to the email advising that “it would be assumed by many that POL had found and was trying to resolve a problem with the Horizon system”.
He wrote: “If applications were made to adjourn all existing cases until after the report becomes available, this would result in a ‘nightmare’ situation.”
The Post Office continued wrongly prosecuting sub-postmasters until 2015, with many going to prison for false accounting and theft.
04:15 PM BST
Recap
Earlier today the inquiry heard Harry Bowyer, a former Cartwright King Solicitors barrister, who helped the Post Office prosecute sub-postmasters said claims there were issues with Horizon amounted to people jumping on the “bandwagon”.
However, Mr Bowyer told the inquiry his use of the term should not be seen as “pejorative”, adding: “You can join a bandwagon that is perfectly proper.”
The inquiry was also shown a document in which a barrister for the Post Office advised against prosecuting a sub-postmaster over fears it would expose weaknesses in the Horizon system.
Giving advice on the 2015 case, Martin Smith said his understanding was that the sub-postmaster was able to “exploit a known weakness in the Horizon system”.
Mr Smith went on to say there was a “substantial risk” that any reports generated by prosecuting this case would be “utilised by those who seek to argue that Horizon is defective or inadequate”.
03:55 PM BST
Smith says he didn’t read document he sent to Post Offic lawyers
Mr Smith has claimed he may not have read a response drafted by a colleague for the Criminal Cases Review Commission – despite sending it on to Post Office lawyers.
The document, written by Simon Calrke, was a response to correspondence sent by the Commission to then-CEO Paula Vennells.
It stated that solicitors who had defended sub-postmasters whose cases may be affected by the disclosure of the Second Sight Interim review, had been written to.
The paperwork did not mention any concerns about Gareth Jenkins, despite Mr Clarke advising the Post Office that his evidence may not be reliable days earlier.
It concluded with: “We take the view that it is incumbent upon POL as a major public institution to take every reasonable step to ensure that only the genuinely guilty are convicted and that those who are, or may have been convicted without good reason, have every opportunity of correcting such a miscarriage of justice.”
Mr Smith told the inquiry he “may not have read” the document before forwarding it to Post Office legal executive Susan Crichton.
He told the inquiry: “I don’t believe I gave that any thought at the time. It seems to me that I’ve simply forwarded documents.”
03:31 PM BST
Smith not aware of post conviction duty of disclosure
Asked about a statement in which Martin Smith said he was not aware of a post conviction duty of disclosure, Mr Smith confirmed this was the case.
The former Cartwright King solicitor told the inquiry: “Yes, I wasn’t aware of that. I became aware of the post conviction duty of disclosure upon discussing Mr Ishaq’s case with Mr Clarke.”
He added: “I pointed out that Mr Jenkins had said there had been no bugs in the branch and Mr Clarke’s views was that this was still disclosable because it would give Mr Ishaq the opportunity to argue that there were bugs [in the Horizon IT system] as yet unknown to Post Office, and therefore they should be disclosed.”
Khayyam Ishaq was sentenced to 54 weeks’ imprisonment after pleading guilty to theft.
03:10 PM BST
Postmaster’s lawyers given report told not to share
Lawyers for an imprisoned postmaster were given two reports on Horizon’s accuracy – but told not to share them further.
The inquiry was shown an email written by Cartwright King barrister Simon Clarke to solicitors representing Khayyam Ishaq.
The correspondence explained that had Cartwright King Solicitors been in possession of Second Sight’s interim report and the Helen Rose report – which also looked into cases related to Horizon issues – they should have been disclosed at the time of Mr Ishaq’s prosecution.
The newly published reports were attached to the 2013 email in case the sub-postmaster wished to consider appealing his conviction.
However, the email contained no apology and Mr Simon concluded it by saying: “We would also remind you of your duty not to disclose this material to any third party other than your client in particular the Helen Rose report is not in the public domain.”
Addressing Mr Smith, Mr Blake said: “No sharing allowed in relation to the Helen Rose report? Is that again a concern about the publicity that might raise?”
Mr Smith said: “I didn’t consider that point. This is the letter as Mr Clarke prepared it.”
03:00 PM BST
Smith warned Post Office disclosing rough draft of report could lead to bad publicity
Martin Smith advised Post Office lawyers not to disclose a rough draft of the first half of Second Sight’s interim report, warning that it would “give rise to adverse publicity and speculation”.
An email sent by Mr Smith in July 2013 in response to the doucment read: “Our advice overall with regard to disclosure has not changed. The disclosure of a partial report would not meet with our duties or help the current situation.”
It added: “I think the disclosure of a partial report would provide partial information and give rise to adverse publicity and speculation.”
When asked about this, Mr Smith said the comments followed a meeting at Post Office’s headquarters in London in which he said those in the organisation had expressed concern about adverse publictiy.
He said: “So I think our approach to this would have been that it would be better to await the full report and then make deicisons rather than start to disclose bits of the report.”
Solicitor Martin Smith who acted for the Post Office is giving evidenc
02:50 PM BST
Smith: ‘Fujitsu expert told me there was no bug at postmaster’s branch’
Martin Smith has said Gareth Jenkins told him personally that a sub-postmasters branch had not been impacted by bugs – before telling he and a colleague months later that the Horizon system as a whole had been affected by at least two bugs.
Khayyam Ishaq was sentenced to 54 weeks’ imprisonment after pleading guilty to theft.
However, in one of his defence statements he suggested that his losses were attributed to a freezing screen.
Mr Smith told the inquiry: “I thought if anything there was more to that and I specifically asked Mr Jenkins at court whether or not there had been a bug affecting Mr Ishaq’s branch and he had said there was not.”
It was later revealed Mr Jenkins had not disclosed the existence of bugs when giving evidence in Mr Ishaq’s case and others.
He also acknowledged there were bugs in a phone call with Mr Smith and a colleague in a phone call months after Mr Ishaq was sentenced.
Mr Smith told the inquiry: “I was actually quite upset about the position.
“I remember actually feeling quite angry about that, because a man had gone to prison and quite frankly those bugs should have been closed.”
He added: “I asked Simon [Clarke] to review the case as a matter of urgency and I believe that he did.”
02:29 PM BST
Post Office chief considered halting prosecutions until Horizon report published
A former Post Office head of criminal law considered halting all prosecutions of sub-postmaster until a report into Horizon was published, the inquiry heard.
An email sent by Jarnail Singh to Martin Smith, then a Cartwright King solicitor, asked for Mr Smith’s view on “Why POL [Post Office Ltd] cannot simply stay and hold fire in prosecutions where there has been alleged Horizon issues, yes or no.”
Mr Singh added: “Can we stay some or is it all or nothing?”
Mr Smith replied to the email advising that “it would be assumed by many that POL had found and was trying to resolve a problem with the Horizon system”.
He wrote: “If applications were made to adjourn all existing cases until after the report becomes available, this would result in a ‘nightmare’ situation.”
Mr Smith, who described the advice that he had been given as the view of Cartwright King, suggested that Mr Singh was potentially deliberately being “less than clear” in his communications.
He told the inquiry: “I thought at the time it was language used, but obviously as this has rolled on, I think that he perhaps knew a lot more than he was letting on.”
02:09 PM BST
Saying postmaster’s defence team were ‘grumbling about disclosure’ was inappropriate
Martin Smith has acknowledged it was “inappropriate” to describe a sub-postmaster’s defence team as “grumbling about disclosure”.
In an internal email sent by Mr Smith to another employee at Cartwright King Solicitors in 2013, Mr Smith said: “There is a chance it [a trial] could go off, however, as the defendant’s solicitors are grumbling about disclosure and the lack of information on the disc prepared for them by Stebe B [Bradshaw].
“They have asked the court to list the case for an ‘intervention hearing’ and the provisional data for that is the 5th feb 2013.”
When asked if he felt “grumbling” was a fair term to use, Mr Smith said: “No I don’t.”
He added later: “Grumbling is perhaps an inappropriate term.”
02:04 PM BST
Inquiry resumes
The inquiry has resumed following a break for lunch.
01:00 PM BST
Inquiry breaks for lunch
The inquiry morning session has ended. The afternoon session will begin at 2pm following a lunch break.
12:55 PM BST
Smith ‘quite horrified’ when reviewing document ahead of inquiry
Martin Smith has said he was “quite horrified” when he reviewed a spreadsheet in preparation for the inquiry.
The former Cartwright King solicitor was sent a spreadsheet which he told the inquiry he believed were a list of cases where “unsubstantiated challenges” against Horizon had been made.
In reality, they were a list of cases being compiled, following Mr Bowyer’s advice on documenting cases where Horizon integrity had been challenged.
However, he told the inquiry he did not open the spreadsheet at the time because “no issues had been raised about it” internally and he therefore “did not see the need to”.
When asked if the spreadsheet was “precisely” the kind of information one sub-postmasters defence team were requesting, Mr Smith said: “Well it was – the short answers is yes, when I opened the spreadsheet, when I was as preparing for this public inquiry, I was actually quite horrified that I had read on it.”
He said he had believed it was a list of “unsuccessful challenges” but added, “the more appropriate title would be list of unsuccessful challenges the Post Office dare not prosecute”.
When asked if it was a personal failing that he did not open the spreadsheet, Mr Smith said: “Well, with hindsight, I wish I had.”
12:17 PM BST
Post Office’s Head of Criminal Law and an investigator claimed Horizon was ‘robust’
Martin Smith said he was told Horizon was “robust” by the Post Office’s Head of Criminal Law and an investigator.
The inquiry was shown an email sent by Mr Smith in 2012 in which he described one request for documents from defence lawyers as a “fishing expedition”.
Julian Blake said: “Is it fair to say that irrespective of how you feel now, the picture we see is one of pushing back against disclosure requests relating to the integrity of the Horizon system?
Mr Smith: “The picture at the time was that Post Office was saying that the system was robust. They were clear that the system was robust.”
When asked who from the Post Office told him this, Mr Smith said: “Jarnail Singh, Head of Criminal Law, was telling us the system was robust. “Stephen Bradshaw, an investigator, was saying the system was robust.”
He added: “The message Cartwright King was receiving was that the message was robust.”
12:08 PM BST
Pictured: Former Cartwright King solicitor Martin Smith
Martin Smith, a former Cartwright King solicitor, is giving evidence at the Post Office inquiry today.
Former Cartwright King solicitor Martin Smith
12:02 PM BST
Smith advised against prosecuting sub-postmaster over fears it would expose Horizon weaknesses
Martin Smith advised against prosecuting a sub-postmaster over fears it would expose weaknesses in the Horizon system.
The inquiry was shown charging advice over a sub-postmaster who admitted to discovering that it was possible to sell a postal order, reverse the transaction and cash it out for their own gain.
Giving advice on the 2015 case, Mr Smith said his understanding was that the sub-postmaster was able to “exploit a known weakness in the Horizon system”, adding: “Whilst this is not an 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 the Post Office.”
He went on to say there was a “substantial risk” that any reports generated by a prosecution of this case would be “utilised by those who seek to argue that Horizon is defective or inadequate”.
Mr Smith also expressed concerns that the case would encourage others replicate the act for their own personal gain.
Concluding his advice later in the document he wrote: “Whilst the public interest in this case is clearly met, for the reasons set out above I do not regard a prosecution as being in the public interest.”
11:48 AM BST
Solicitor says he didn’t ‘know what Post Office prosecution policy was’
A solicitor who acted and advised in sub-postmaster prosecution cases said he and colleagues initially didn’t “didn’t know what Post Office’s prosecution policy was”.
Martin Smith told the inquiry that until the publication of the interim Second Sight Review in 2013, Cartwright King Solicitors were “working without policies”.
Mr Smith said he initially was acting as an agent in sub-postmaster prosecutions – presenting cases in court on instructions and then reporting back.
He told the inquiry: “It wasn’t clear who was ultimately making decisions and I assumed that it would be going back to the [Post Office’s] Head of the Legal Department to make decisions.
“We didn’t for example know what Post Office’s prosecution policy was at that point.”
11:34 AM BST
Inquiry resumes
Former Cartwright King solicitor Martin Smith has just been sworn in.
He will be questioned by counsel to the inquiry Julian Blake.
11:27 AM BST
Post Office key statistics
11:19 AM BST
Bowyer finishes giving evidence
Mr Bowyer has now finished giving evidence.
The inquiry will break, before hearing from former Cartwright King Solicitor Martin Smith.
Harry Bowyer a former Cartwright King Solicitors barrister
11:18 AM BST
Bowyer describes one conviction as ‘extremely worrying’
Harry Bowyer described one conviction as an “extremely worrying case” and said that disclosed material would have caused the Post Office a “great deal of embarrassment”.
Gillian Howard pleaded guilty to one count of fraud over a £45,850 shortfall and received a six-month community sentence order with a six-month supervision requirement.
However, evidence that a son of one of her employees had been committing thefts from the secure area was not disclosed.
Advice Mr Bowyer gave while reviewing the case read: “This is an extremely worrying case. It is only through good fortune, sensible prosecution counsel and a sympathetic Judge that we are not going to have to disclose material which could cause POL, a great deal of embarrassment.”
In his witness statement Mr Bowyer admitted he “should have advised disclosure of the subsequent thefts”.
He told the inquiry: “As I said in my statement, I think I got this advice wrong.”
11:02 AM BST
Bowyer defends non-disclosure of documents
Harry Bowyer defended non-disclosure of certain documents by claiming that the Post Office would “not want a route map” on how to attack lawyers working for it.
Advice written by Mr Bowyer in 2014 and shown to the inquiry in relation to one case, read: “The views of the prosecuting lawyers, at an early stage of the proceedings on strengths/weakness of our case being exposed to defendants and their defence teams. This could create problems should we recommence prosecutions.”
Mr Bowyer went on to say: “In extreme instances we could become witnesses in our own cases. An obvious example is the case of Choudry (Wasim Abbass) in which neither the PO investigators not the POL systems cover themselves in glory – I am sure that our mutual client POL, does not want a document in the public domain that provides a route map to how to attack us where we are most sensitive.”
When asked why he had written the final sentence, Mr Bowyer said: “Because as far as that’s concerned it should be considered in the context of each case.”
10:45 AM BST
Importance of Post Office as client impacted advice by law firm
The importance of the Post Office as a client to Cartwright King impacted the firm’s ability to give impartial and independent advice, the inquiry heard.
Harry Bowyer was asked if the size of the Post Office as a client to Cartwright King influenced “consciously or subconsciously” the way it approached giving advice “impartially and independently”.
He said: “Yes. I think it must have.”
Mr Bowyer added: “When we actually pulled the plug on the prosecutions, it was worrying as to how our bosses would take it.
“And it was a big moment telling the Post Office that they could not rely on their experts and that they should stop prosecuting.”
10:29 AM BST
Barrister: There are ‘perfectly proper bandwagons’.
Harry Bowyer has defended using the term “bandwagon” to describe challenges to Horizon and has told the inquiry he doesn’t see it as a “pejorative term”.
Yesterday the inquiry saw an email in which Mr Bowyer used the term in August 2012 to describe how more challenges would come to Horizon as the “bandwagon picks up speed”.
When asked why he used this term, Mr Bowyer said: “I think the inquiry is attaching pejorative terms to it.”
He added: “There have been bandwagons that I’ve joined when I’ve seen that a defence seems to be working. I will leap upon it.”
When challenged as to whether he should have been wary of using the term, which he used twice when advising the Post Office, Mr Bowyer said: “I don’t think so.
“No, because you can join a bandwagon that is perfectly proper.
“There are occasions when the reason people are all heading in the same direction is that they’ve got a valid cause. As I said, I don’t find the term ‘bandwagon’ pejorative.”
10:28 AM BST
Bowyer discussed Scottish Horizon cases without relevant legal training
Harry Bowyer was not trained in Scottish law but despite this discussed investigations into Scottish Horizon investigations, the inquiry heard.
When shown an email chain of Mr Bowyer discussing a Scottish case, he was asked if it was common for him to look at similar investigations.
He replied: “Not terribly because I am not qualified in Scottish law.”
Mr Bowyer was asked if he felt able to advise on the Scottish case being discussed on the email chain, to which he replied: “I do not recall the case.”
10:12 AM BST
Cartwright King ‘marking its own homework’, says Bowyer
Harry Bowyer has said he had concerns that Cartwright King was “marking its own homework” when the firm was reviewing historic postmaster prosecutions and considering disclosure issues.
The firm carried out a review of cases following revelations that evidence given by Gareth Jenkins – an expert witness used in several cases – may not be reliable.
Emma Price: “At the time did you recognise the risks inherent in Cartwright King and this phrase has been used a number of times ‘marking its own homework’?”
Mr Bowyer: “Well, yes because that was addressed at a very early point, especially we had a conference with Briam Altmann in his chambers in September, I think 2013 and that point was addressed there and then.”
He added: “But I think it was felt that the Cartwright King barristers actually hadn’t prosecuted the cases themselves and this was the fastest way of getting the job done.”
10:10 AM BST
Postmistress should have been told expert who helped convict her was unreliable
Postmistress should have been told the expert witness who helped convict her while pregnant could not be relied upon, Harry Bowyer has said.
Yesterday the inquiry heard of how ex-Fujitsu engineer Gareth Jenkins was branded unreliable by Cartwright King Solicitors – after it was discovered he had failed to disclose bugs in the system when giving evidence used to prosecute sub-postmasters.
Seema Misra was eight weeks pregnant when she was handed a 15 month sentence for false accounting and theft in 2010.
Asking Mr Bowyer about reviews of historic cases which were carried out after concerns about Mr Jenkins’ reliability were raised in 2012, Ms Price said: “It was your view at the time that Mr Jenkins’ evidence could not be relied upon once the interim Second Sight Review came out and following that?”
Mr Bowyer: “Yes.”
Ms Price: “Did you give any consideration to whether Seema Misra should be told in clear terms that the expert witness in her trial was in your view discreed?”
Mr Bowyer: “Well, I didn’t review Seema Misra’s case, but I think my view would have been that it should have been disclosed.”
10:04 AM BST
Post Office Inquiry hears from Harry Bowyer
Harry Bowyer, a former Cartwright King Solicitors barrister, giving evidence at the inquiry today.
Post Office Inquiry will hears from Harry Bowyer
09:55 AM BST
Recap: Former Post Office legal boss ‘can’t recall’ reading crucial document
A former Post Office legal boss told the Horizon IT inquiry he could not recall opening a crucial document as he did not like reading them on his mobile, writes Fiona Parker.
Emails shown to the inquiry on Tuesday revealed how Hugh Flemington and the Post Office’s then general counsel Susan Crichton were sent a file containing vital legal advice.
The document, written by senior Cartwright King barrister Simon Clarke, expressed concerns about Fujitsu employee Gareth Jenkins – who had been used by the Post Office as an expert witness in sub-postmaster trials.
Yet Mr Flemington told the inquiry he “could not recall” reading the advice – sent to him in July 2013 – because he was on sabbatical and “did not tend” to open attachments on his Blackberry device.
Read the full story here.
09:52 AM BST
Cartwright King Solicitors barrister returns
Harry Bowyer, a former Cartwright King Solicitors barrister, has returned to continue giving evidence.
Mr Bowyer, a former employee at the legal firm which was previously instructed by the Post Office, gave evidence yesterday.
He will be questioned by counsel to the inquiry Emma Price.
Martin Smith, another former employee of Cartwright King solicitors, is also due to give evidence today.
Mr Smith had previously been due to take the stand in December last year.
However, inquiry chair Sir Wyn Williams postponed his appearance after a last minute disclosure of documents relevant to his evidence.
Mr Smith’s session will follow the conclusion of his former colleague’s evidence, Harry Bowyer.
09:45 AM BST
Good morning and welcome
Good morning and welcome to The Telegraph’s live coverage of the Post Office Horizon IT Inquiry.
Martin Smith, a solicitor who helped the Post Office prosecute sub-postmasters, is to give evidence today.
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