Swift IV: The Gareth Jenkins Problem
This post moves from the general to the particular. It will concentate on a central figure in the Post Office Scandal and how the PO team instructing Swift and the Swift team themselves dealt with evidence from him.
It may be recalled that Gareth Jenkins was a Fujitsu employee giving evidence as an expert in various criminal proceedings up to, it seems, 2013. As an employee he lacked the requisite independence to give expert evidence, and the importance of that was realised and magnified in 2013 when the PO were advised by Simon Clarke, a barrister working at Cartwright King, that Mr Jenkins was a witness who may have given misleading evidence and who should not be relied on in criminal proceedings. Clarke said the discovery was profoundly important for PO prosecutions past and future. In the Bates litigation, when the 2013 advice on Jenkins’ unreliability was unknown, suspicions were raised about Post Office’s decision not to call him. This was partly because he of his apparent importance as a source of information to those that did give evidence. In effect, he gave evidence by proxy; he provided a good deal of information to witnesses who then gave evidence for the Post Office in Bates. The High Court judge concerned about the accuracy of the evidence he had hear referred matters to the DPP in 2019, and the Metropolitan Police now appear to be investigating.
It is very interesting, against that background, that Mr Jenkins is identified as one of the people the Swift team met when meeting Fujitsu. On the face of it he appears to be a source of evidence for the review itself inspite of Clarke’s warning as to his reliability. This of course underlines in the strongest terms questions about its evidence base.
A singularly important question is whether the Swift Review was aware of concerns expressed by Simon Clarke in his advices in 2013 by the time they completed their report? If the Review was aware of the Clarke advices, what was the purpose in meeting him and what impact did it have on their report?
There are reasons to think the Swift Review should have had some awareness. They had, according to their report, read “advice” from Mr Brian Altman QC and they separately list four advices given from him. We might assume, although it is not made clear, that all four were read and so we might infer from this that they read the Altman General Review. Altman’s “General Review” dated 15 October 2013, is described in a disclosure note put before the Court of Appeal in the Hamilton case in 2020 as having, “extensively referred to the Clarke Advice and its contents and conclusions”. If Swift read the General Review they ought to have been aware of the Clarke advice and the problems with Jenkins evidence, if that was set out as described.
Conversely, no mention is made in the Swift Review of the Clarke advice nor or the problems with Gareth Jenkin’s reliability as identified there. Interestingly though when Swift and Knight consider the evidence that remote access into Horizon is possible, which I discuss more fully below (Section 1.9, p.13), they make a reference to Gareth Jenkin’s evidence It is worth quoting the passage in full which discusses evidence that secret remote access to Horizon was possible (even though PO and Fujitsu had been denying it) (para. 147):
Second, the Deloitte reports, or at least the information contained within them, may be disclosable under POL's on-going duties as a criminal prosecutor. We suspect that it is likely that such functionality would have been something an SPMR's defence team would have considered relevant to their case, even if the likelihood of remote Fujitsu interference is very limited. We do not know whether this information has been provided to the CCRC. But given that POL used a Balancing Transaction in 2010, it cannot say that the functionality was not known to it, and we have seen no reference to such capabilities in the witness evidence given by Gareth Jenkins of Fujitsu. These are matters on which specialist legal advice from external counsel, perhaps Brian Altman etc, should be sought and we so recommend.
This is an important paragraph for a variety of reasons, but for now let us dwell on the significance of the sentence about Jenkins. That sentence bring two matters together: Swift’s view that PO must have known that remote access was possible and the omission of reference to “such facilities” (remote access functionality) in Gareth Jenkins’ witness evidence.
The question is, why link these two points? With hindsight the possibility that presents itself is they have apprehended but do not say that Jenkins may have misled the court; if so, the second lawyers to spot this after Clarke. If they have spotted this, why not say so clearly? And if they were also aware of the Clarke advice and/or the doubts expressed about Jenkins in that why not emphasise the point as reinforcing a concern already known about? They were, after all, aware that Parker was a new Chairman coming into the organisation for the first time. It is a vital piece of information to leave out. If they have not spotted the problem, it is difficult to see why they have they linked the two things. Perhaps they spotted something, but did not have the inclination or time to dig further.
It is also worth noting that the Review reports, in an earlier portion of the report, that the documentary evidence included Second Sight reports, advice from Brian Altman QC, witness statements from Gareth Jenkins and various other Post Office and Fujitsu documentation. Why identify Jenkins specifically in the list? Was he the only witness statements they reviewed and if so, why was that? Or if not was his presence in the evidence base being emphasised for other reasons? One possibility is they were aware of doubts about him, and mention that in a somewhat oblique or coded way, the other is that the Post Office legal team sent them his witness statements as a dominant part of the explanation of their case as to how Horizon ran. They had done so in spite of Clarke’s warnings in 2013 not to rely on Jenkins.
If the Post Office legal team chose to include Jenkins, possibly as the main evidence source, the extent to which Clarke’s advice about Jenkins was known by them is particularly important. The advice on Jenkins was delivered in July 2013 and the Review began in October 2015. Two years is not much time for memories to have faded. Moreover it was apparently referred to as noted above in Altman’s General Review, which we might assume familiarity with (or it being re-read as part of instructing the Review team). They ought to or would have been aware of the problem.
Interestingly, PO through their legal team indicated they had responded to the Clarke advice by ceasing to use Jenkins as an expert witness before the Court of Appeal. The impression given is that they had accepted Clarke’s advice but we know Jenkins was important to the evidence given in Bates in 2019 and it appears in evidence given to Swift in 2016. This is arguably misleading and in a significant way. The Post Office were trying to resist the second ground of the appeal criticising their general handling of prosecutions. A failure to respond promptly to Clarke would likely have counted against them.
I emphasise the point that Swift appears to refer to problems with Jenkins’ evidence too obliquely because independent reviewers are, it fair to say I think, well aware of the risks that review findings can be brushed under the carpet. Allowing a freshly identified apparent problem in Jenkins’ evidence to be mentioned so obliquely would risk being missed or ignored by the client. It might be that they noticed something incongruous and did not consider its seriousness, perhaps because they were not criminal practitioners, although at the risk of repeating ourselves the Altman General Review (if read and as described) should have put them on notice of it.
For that reason it seems unlikely that the Swift Review was fully appraised of the contents of the Clarke advices, but there is a strong argument that either way the Swift Review has soft pedalled a serious problem with PO prosecutions (relying on potentially misleading evidence) in addition to the problem of non-disclosure of remote access functionality (which they do emphasise the seriousness of, as we will see in a later post).
It is important to get to the bottom of this if at all possible. If they were soft-pedalling, they were presumably persuaded that the omission was not as significant as it would appear to be given Clarke’s advice. The critical question would then be on the basis of what evidence or representations did they downplay the significance of the Jenkins omission (if that is what happened)? If they were not soft-pedalling and had remained ignorant of Clarke, had they not read the relevant Altman advice (as implied by the report) or is the Altman advice not as clear as it was suggested to be in the Court of Appeal (which opens up the question was the Court of Appeal misled about the Altman Review)?
 Hamilton and Others v Post-Office  EWCA Crim 577; Moorhead, Nokes and Helm (n 4).
 Altman et al, ‘Regina v Hamilton & Others, Disclosure Note in Relation to the Context for “the Clarke Advice”’.
 This may mean transcripts or more likely witness statements.
 Altman et al, ‘R v Hamilton & Others: Submissions on Behalf of the Respondent in Relation to the Application by Nick Wallis for Access to Papers in the Proceedings’ (2020) para 11.1.
 A separate document, the Disclosure Note in Relation to the OCntext for the Clarke Advice is more specific. It indicates Jenkins evidence was not relied on in any further POL prosecution.