Clarke I: His first coincidental error

What did we learn from Simon Clarke's evidence? Post I

This first of, I hope, two posts on Simon Clarke.

Clarke, assisted by Brian Altman KC’s “assurance”, is the principal architect of the Post Office legal response to the Gareth Jenkins proble: his being revealed as aware of bugs that were not disclosed them when giving evidence in prior cases, including Seema Misra’s.

We will almost certainly add Bond Dickinson’s Andy Parson to that list when he gives evidence to the Inquiry on the 13^th and 14^th June.

Clarke and Altman’s roles are slightly different, but their evidence is similar.

In particular, Clarke’s involvement was a little earlier and more at the coal face than Altman’s. His work extended well beyond the initial handling of the Jenkins problem. He advised on alleged shredding; the future of prosecution; allowing convicted sub-postmasters into the mediation; and, he reviewed many more already prosecuted cases in the CK sift for disclosure purposes.

I am going to concentrate on the bigger ‘Gareth Jenkins questions’ in this post.

Clarke was a barrister in the solicitors’ firm Cartwright King (CK). CK prosecuted all of Post Office’s work from April 2012 onwards. Prior to that, CK – but not Clarke -had acted as an agent for them on cases. Clarke was only substantially involved in prosecuting one case at first instance. Thi was in 2013 (Samra).

He tried to present the firm’s, and his own, role as being to advise the Post Office, who were responsible for taking decisions as the prosecuting authority. The reality he acknowledged was, at times - often perhaps but not always, Cartwright King took decisions on cases. The implication I would say was they were often de facto the prosecutor, at least when first prosecuting the cases.

As with many witnesses, he sought to get what distance he could between his role and the Post Office. He said Martin Smith was the primary contact between Post Office and the firm and that he himself may have been unsighted on some of the things that happened, including matters dealt with by Singh and Andy Parsons (of Bond Dickinson). He said, Jarnail Singh would phone Smith up regularly and Smith was speaking to Jarnail Singh and giving Jarnail Singh ad hoc advice on an almost daily basis. He is unflattering about what Smith admitted he did not know about criminal litigation.

He is more concertedly unflattering about the Post Office. They tended to work in silos, he said, a tendency which he says got worse over time. Interestingly, he also noted that when he first raised the issues relating to expert witnesses with the Post Office, he thought they became very defensive in a general sense.

To that disjointed and defensive mood music, we should add this assessment:

“Looking back, I now see what appears to have been three strands of thought within [the Post Office] on the topic of disclosure. The first strand amounted to an article of faith: ‘Horizon is both robust and reliable – there is nothing wrong with it and if Horizon says money is missing then it is missing’.

The second strand considered that the cost of providing disclosure was prohibitive and should always be discouraged.

The third strand, I felt, arose out of an almost religious panic: ‘Horizon must not be seen to have been impugned’.”

He mainly dealt with Jarnail Singh and Rodric Williams, but GCs Crichton and Aujard were occasionally at meetings and usually copied on correspondence. The enigmatic Hugh Flemington was an enigma to him too.

Perhaps the key point about Clarke’s initial response to the big issues posed by the Jenkins problem is he seems to have made almost identical mistakes to Mr Altman.

If we are tempted to assume he is following Altman’s lead, it is worth noting that Clarke appears to have made them first.

If this is a coincidence, and I am not suggesting a conspiracy here, it is a rather interesting one.

He was first told about bugs, or the potential for them, on 27 June 2013, when Martin Smith came relay concerns he had heard from Singh or Williams. CK had been told to expect that Second Sight would give Horizon a clean bill of health but now would be revealing two bugs in their report.

Clarke’s initial, instinctive reaction is, “We need to find out who told Second Sight about those bugs” and, “Who told them?” The reason he sees this as so important, he explains, was because if it were the expert that they were relying on to give evidence, then his evidence had not been entirely complete, in the early cases.

Mr Blake: Was that an immediate thought, as early as 27 June?

Simon Clarke: Oh, yes. Oh, yes. To be told that there were – that the report was going to tell us that there were bugs in the system is a process-stopping mechanism. You can’t go anywhere from that other than to say “Well, how? Why? Who told them?”, because your duties as a prosecutor are so absolute in those circumstances that any competent barrister is going to say, “Well, stop. We have to see what’s going on here”.

Note two questions there: how and why.

There is a sense in which his own concern is not matched by others. In one of several swipes at his former colleague, he says he was not convinced Martin Smith, “appreciated the full import of the problem at that point.” And that when he talked about it with the Post Office lawyers they did not seem surprised by the discovery.

Unbeknownst to Clarke, the Post Office had been investigating who knew what and when already and knew that their colleagues and Jenkins had known about the existence of at least one of the bugs since 2010, so they would have known that looking backwards was not going to help the Post Office.

Smith and Clarke call Gareth Jenkins the next day apparently as a pretext, saying it is about the Samra case. They say that they have heard about the Second Sight report but have not seen it and are wondering about its relevance to the forthcoming trial.

Martin Smith’s transcript of the call (interestingly, Jenkins’ legal team are disputing its accuracy) reads like they are seeing if CK are still okay to proceed with the Samra case that Clarke is prosecuting. In response to their questions, Jenkins checks that Samra is a Horizon Online case and then tells them,

“there are two bugs that we have declared to Second Sight… We know exactly which branches are affected…. We are confident that the audit trail that you are using the prosecution has not been compromised by those bugs.”

He is asked if there is any reason he believes that Horizon can slip into error, and he says not that he is aware of. He is subsequently asked how they can be sure they have identified all the bugs that exist, and that Horizon is infallible? Jenkins says you can never say there are no more bugs in a system.

Clarke says he then checked previous statements where Jenkins had said in essence Horizon was infallible.

He tells the Inquiry that what he took from the conversations as being most important was that Jenkins knew about the bugs when he gave evidence in previous cases, had not disclosed them, and that he had informed Second Sight of them (Jenkins’ team look like they may be disputing something about the latter because it is not in the transcript: Clarke says he remembers the conversation more accurately than the transcript records it).

It seems like an unusual thing to do that begs an explanation. Smith, when he gave evidence, said they were suspicious of Jenkins before they called him and that was a reason for recording and then transcribing the call.

Clarke says, “It’s unusual but it’s not the first time.” He says he did it because, “it was hugely important that we knew who told Second Sight of the bugs because, if it had been Fujitsu or Gareth Jenkins, then, frankly, Gareth Jenkins was in trouble and I needed a record of what was said.”

It is not a record that was disclosed to Post Office defendants nor was the substance of it put to Mr Jenkins at any stage to see what he had to say about it.  

So by this stage we have Mr Clarke seeing immediately the need to speak to Jenkins, his identification of the need to find out what happened and why, and a recognition that the problem suggests grave difficulties with Jenkins’ evidence. But, like Brian Altman, he does not do is follow up on the why question.

On the 10th July, he engages by email with Rodric Williams about “breaking the news” to Fujitsu about Gareth Jenkins. Rodric Williams (PO lawyer) forwards the matter onto Andy Parsons (Bond Dickinson) for advice. It talks about Gareth Jenkins statements and evidence not containing “all that they should have done” and that,

“In particular there seems to have been a reluctance to deal with known Horizon issues in the statements/evidence.

"As a consequence it has been necessary to conduct a review of cases so as to determine whether or not any particular defendant has been prejudiced by the absence.”

Clarke does not accept that this is underplaying the issue. He said he hadn’t yet conducted his review and did not want to condemn the man before he had completed his report. He did not want to say Jenkins had misled the court until it was certain of his position.

This is all before his 15 July written advice. In that, he says Jenkins is unreliable and PO prosecutions may be profoundly flawed. He didn't speak to Jenkins as he anticipated prior to condemning him.

Sam Stein KC probes into the period.

His initial advice about what to tell Fujitsu, he notes, did not raise Jenkins reliability. Clarke said he had not reached a definitive conclusion on that, “I was still processing stuff”, although he had formed the view that he should not be a witness in the future. This was because of his non-disclosure but also because he was an employee of Fujitsu. By 15 July, he accepts, he is more trenchant.

Ms Oliver for Gareth Jenkins also focuses on this last point.

In his advice on the Samra case Clarke accepts that on 1 July he says said he required, “a face-to-face conference with Gareth Jenkins upon publication of the Second Site report,” and that never happened.

When asked why, he says he does not know.

He went from saying he needed a conference to two weeks later saying that why he might have failed in his duties to comply with disclosure was beyond the scope of any of his review.

He says he simply suspects by this time he decided to look forward not back. 

She takes him to the reasons why it was important for him to do so which he parries by saying it was a long time ago, he cannot remember, and at the time he thinks his priorities would have been different.

The reasons they want to insinuate for his change of heart is that he, like Martin Smith and Rodric Williams, became aware that CK had not instructed Mr Jenkins properly as to its expert duties. He denies this.

As we know, the situation was rather worse than that, because the lawyers encouraged Jenkins to alter his evidence, but on its own, the problem would have provided a self-serving rationale for not asking Jenkins why he had given misleading evidence.

Clarke says he was not aware of problems with Jenkins’ instructions when he gave his 15th July advice and did not become aware of this until the Inquiry. He did not have suspicions about it, nor does he agree with Jenkins’ counsel, Ms Oliver, that this lack of suspicion is surprising.

She takes him to the fact that he reviewed Mr Jenkins’ witness statements. Whilst he criticised Martin Smith’s lack of knowledge about how to instruct experts, Mr Clarke did not when he read them, question why they did not have the usual expert declaration. Why?

He says he was only concerned with effect not cause: “whether he’d been instructed properly in the first place because that’s in the past”.

Oliver picks at this as a vulnerability. The witness statements did not set out Jenkins’ instructions; the questions which he was to answer; the written material he had been provided by the prosecutor; or the documents, statements or evidence he had taken into account; or an expert declaration. Clarke agrees all of those are necessary inclusions for an expert report. The implication is, if he did understand expert evidence requirements, as he claims, he would have spotted the problems immediately:

my interest was in curing the damage that he had done, not in the reasons as to why the damage had been done and so, no, I took no notice of any of that.

Although Mr Clarke would not necessarily be aware of it, when lawyers become entangled in their own previous negligence they tend to ignore the conflict on the basis they are putting things right for their clients. They try to look forward not back.

He is also taken to the fact that Jenkins’ statement(s) included a sentence which said he understood role was to assist the court: “that is what prompted me to dismiss any thought of looking backwards,” says Clarke. At the time he did not think it was an “obvious and important course” for him to check further.

He accepts that a check might have led to broader concerns about the basic competency of prosecutors within the Post Office and Cartwright King. He agrees it is a “proper contention” of Oliver’s that further issues might have arisen which he would have had to disclose (“At the time, we were looking in a different area.”). He accepts it would have been damaging to them professionally and would have resulted in an obvious conflict of interest. “Martin Smith knew about it. Perhaps he ought to have told me and Brian Altman but he didn’t.”

So we appear to travel from Mr Clarke thinking initially that they need to investigate the why of Jenkins failures, via a surreptitious phone call and a review of his witness statements, to thinking he needed a face-to-face conference with Jenkins to work out what has happened, to an advice that (it is suggested to him but he does not accept) downplays concerns about Jenkins, to his advice which – without further information being provided by Jenkins or anyone else - makes trenchant criticism of Mr Jenkins and the profound impact of his failures on post office prosecutions past, present, and future.

The similarities with Altman’s weaknesses are striking. Sam Stein has a go at seeing if there is any link. Clarke is asked if he spoke to Altman about the need to investigate, didn’t you say, he asks, “I’ve never seen anything like this. We’ve got this expert, he’s not, it seems, been candid with the courts in statements and his evidence, we don’t know why but, surely we should investigate this”?

Simon Clarke: He knew about it because he had seen my advices. Did I have a specific discussion with him about this subject? It seems unlikely that I wouldn’t have done.

Mr Stein: Quite.

Simon Clarke: But I don’t recall one. In terms of the other theme of your question, which goes, “Did you think it ought to be investigated”, it’s not my function. I did not see it then as my function to conduct an investigation into whether or not Gareth Jenkins was an honest or a dishonest witness. That was the role of Fujitsu and Post Office.

And then:

Mr Stein: But nobody seems to say that this man needs to be investigated.

Simon Clarke: I don’t think you can say that. I don’t know what was going on in Post Office. If your question is: did any of the external lawyers, you’ve named them – Smith, me, Altman – have that conversation, I don’t believe we did, and I don’t believe we did because we would – and I’m convinced that Mr Altman would have taken the same view – it is not counsel’s function to conduct an investigation into the propriety of a witness.

To summarise the problems, with this argument is that in the case of Samra, he opined that there did need to be an investigation, he needed to meet with Jenkins, and now cannot explain why not. Risks that this was caused in part by Cartwright King’s own failures are manifest on Mr Jenkins statements but not explored by him. Would he really have missed it, is the obvious question. He says he can only speculate on his omission as his being a desire by then to be forward-looking not backward-looking. And we do know that both his firm and the Post Office had concerning reasons for not wanting to look back.