Fundamentally... proper disclosure?

The third post, based on excerpts from Martin Smith's evidence, takes us to what was influencing disclosure advice. Julian Blake is joined by Sir Wyn Williams...

There are a great many questions about the Cartwright King Sift as it is known; the process of reviewing old prosecutions once Gareth Jenkins’ tainted evidence and the Helen Rose reports came to light. I am not going to rehearse them all now.

The Inquiry will be treat us this week to a very detailed consideration of the parameters and soundness of that review.

The case against Cartwright King, in particular, and Post Office’s other lawyers, is that they put the Post Office’s interests, their reputation, ahead of their professional obligation to let the people they were prosecuting or had prosecuted receive information that they were entitled to. Information that might assist them in their defence or call into question the safety of their convictions.

This point reaches its height in a public interest immunity application, made in secret, for reasons which to my eye look extraordinary (but I am no expert at all on PII applications), but for now let me turn to Julian Blake again as he reads out part of an email from Mr Smith.

Here Martin Smith is advising the Post Office against looking at cases pre-2010, old Horizon, or as the Inquiry calls it, legacy Horizon.

Julian Blake: …“I would not advise that the experts 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 result out during 2010.”

Can you please assist us with the first part of that response, with regards to disclosure issues. What did you mean there?

Martin Smith: Well, I think at that time we were being informed that the old – 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. 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 would have to be caveatted incredibly and then, 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 Post Office in?

I was also aware that Simon Clarke had advised that the experts should only consider Horizon Online and I believe that Mr Altman, King’s Counsel, gave an advice similarly.

Mr Blake: 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?

Martin Smith: 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 that there could become all sorts of issues arising if they’ve provided a report that basically said that they could not, for reasons beyond their control, provide any certainty with regard to the old Horizon system.

Mr Blake: Disclosure issues?

Martin Smith: So if there was a report that was provided by Imperial College London, which said that “We cannot confirm that old system was” – and I’ll use the phrase “robust” – then that potentially would have implications in relation to every single prosecution –

Mr Blake: Because 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?

Martin Smith: Well, yes.

Mr Blake: 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?

Martin Smith: Well, I didn’t think they could investigate the old Horizon system because it wasn’t there to be investigated. It 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 gone through data retention policies.

Sir Wyn Williams: If you thought that they couldn’t 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?

Martin Smith: Well, I think I would have read that as if the experts were asked to consider the old system.

Sir Wyn Williams: Well, come on, now. You’re a lawyer writing to 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?

Martin Smith: Well, there could be a consideration to some limited degree but it would be very limited because –

Sir Wyn Williams: You’re adding words, Mr Smith. Those words don’t appear at all in this email.

Martin Smith: Sorry?

Sir Wyn Williams: Why should I assume or decide that you wrote an email which had, more or less, a completely different meaning from the one which is obvious, reading this?

Martin Smith: Well, I don’t think it is different. I mean, there would be disclosure issues which could arise but, in any event, we were now looking at the new system, and counsel had advised that we did not need to go looking for cases prior to 2010.

Sir Wyn Williams: All right.

Martin Smith: That was Mr Altman KC’s clear advice that Post Office did not need to go looking for cases prior to 1 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 Clarke, which was to focus simply on Horizon Online, why we would ask the experts to look at a partial amount of documentation relating to its design, and no ability to actually test the system. I could not see that that sort of report would be helpful at all and could see that that would be a nightmare situation.

Whether Williams view has been changed by Smith’s explanation we will have to wait and see. A second point is that even when disclosure was sometimes given information was redacted and thus gives us greater insight into what was influencing thinking at the time.

Students of the Scandal will know redaction was a feature of criminal and civil litigation, notably the Bates case. We are taken to an example Mr Smith was involved in on the criminal side. Again he is taken to an email he wrote:

Mr Blake: “I would prefer not to let the applicant see the sentence in Diane Matthews’ report of 25 October 2005 which noted that she was ‘… currently awaiting the results of the tests by Fujitsu on the Horizon system’ if those test results cannot be found. Such a sentence may well invite a request for disclosure of the test results. There may also be risk that the applicant will suggest that the investigation was inadequate or incomplete. Similar issues could arise out of the comment on page 7 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’.”

On what possible basis could those redactions be justified?

Martin Smith: I really don’t. Looking at this with hindsight, I don’t know.

Mr Blake: I don’t think you need hindsight to reflect on this. Perhaps, on reflection –

Martin Smith: 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 should not be disclosed.

Mr Blake: What’s sensitive here? What you’re saying here is that they shouldn’t – 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 offences, some of whom were sent to prison?

Martin Smith: Yes. I clearly got that wrong.

Mr Blake: It’s –

Martin Smith: I mean, I was – as a firm, 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 redacted but I cannot see here, on reflection, anything which sensibly should have been redacted.

Mr Blake: Wasn’t it part of a culture of withholding information from applicants?

Martin Smith: Not intentionally, no.

As a firm, but not intentionally. Alright?

This week we hear from Mr Smith’s colleague, Simon Clarke, the author of much of the intentional action in Cartwright King, including the Jenkins and Shredding advice, a PII application, and perhaps the advice not to disclose information to Seema Misra which should have been disclosed, a unique case that seemed to cause them some difficulty at the time and continues to do now.

And we will hear Mr Brian Altman KC, a pillar of the criminal bar, who provided assurance that their processes were fundamentally sound before representing the Post Office in the Hamilton appeals. We have heard it said he stiffened their resolve on disclosure and apologies during the mediations, supported the 2010 cut-off that meant Legacy Horizon did not need investigating, and said it was okay for Cartwright King to mark their own homework.

We all know that was wrong now I think, but that’s not the point. The question is, should he have known it then? Or that’s one of the questions.

We need to wait and see what they both have to say about that. And one other thing in particular. One word. Phew! This was apparently Mr. Clarke’s reaction to not having to disclose information on a case. A case for which we should substitute a name: Seema Misra.

Tell us all about her please, gentlemen.