The Secrets Peril

Locking information away as privileged is a temptation to mislead. Is that what happened here? The Gareth Jenkins question puts yet another lawyer under pressure.

A crucial, critical, case-damaging question is posed during a case that the lawyers feel they should answer. The lawyer can provide an answer that is candid and hurts the client or they can provide a partial answer that puts their client’s case in the best light possible. The damaging information is (probably/maybe) privileged. What should the lawyer do? Should they get permission and disclose or should they finesse an answer, avoid or make partial disclosure, and present the client in a favourable light?

That’s the central dilemma of a very tense set of exchanges at the end of Jason Beer KC’s examination of Anthony de Garr Robinson KC.

There is one ironclad rule here: whatever you do, do not mislead the court (or others). Difficult secrets, privilege, and the desire to finesse (and win cases) makes this a trickier balance for lawyers than perhaps it ought to be. It is the secrets peril.

Inevitably, this part of the story turns on Gareth Jenkins. A man who, unbeknownst to him I suspect, has become like kryptonite for the serried ranks of Post Office’s lawyers.

The story on this occasion starts like this…

About five years after it was written and more than two years after he was instructed, Anthony de Garr Robinson appears to have received the Clarke Advice on Gareth Jenkins.

Jason Beer asks, did he, “feel any surprise that you were only being provided with it at that stage?”

I would have thought that this question is a little like, Did anything happen on the night of the theatre, Mrs Lincoln? But Anthony Robinson replies, “I can’t say that I remember.”

He does know that,

“this was being presented to me 17 days before the client was due to serve complete witness statements in relation to the Horizon issues. It occurs to me now, and I suspect it occurred to me then, that it was very late to be engaging on these questions. One would have expected these questions to have been considered and decided long before that stage.”

I usually admire understatement and, up to a point, I am admiring it now. To be fair to his lack of surprise, it may reflect the period, one more of a series of calamities in the case and the firefighting it involved, “I mean, it was awful. I do remember finding the process just exquisitely painful and it made it very difficult to do our job properly.”

I confess to being disappointed that Mr Beer did not interject here, It's okay mate, I don’t think anyone noticed. But I digress.

Interestingly, the lack of surprise may also be explained by Robinson thinking he might have been told earlier and informally about the Jenkins problem in chats with Parsons. He acknowledges he would have found the advice concerning. And at the conference with two lawyers from Cartwright King, Simon Clarke and Martin Smith, they discuss whether they should call Jenkins. We are told it was emphasised that Jenkins had given misleading evidence. Smith and Clarke “suggested in no uncertain terms  that I should be very cautious about calling him as a witness.”

They decided not to call Jenkins.

The reasons for not doing so are not precisely and contemporaneously documented. Robinson accepts under Beer’s examination that it was problems with things Jenkins had and had not said in his criminal evidence that gave them a problem; that he had given misleading evidence; and, that he had breached his duty to the court. A document signed off by Womble Bond Dickinson after the Horizon Issues Trial (HIT) refers to Jenkins failures in 2010 potentially being criminal (and of course that is in the Clarke advice).

That post-HIT document also noted the way the Lepton (Rose) report had been dealt with in the HIT focused on

“the accuracy of another system called Credence, rather than it [showing] Mr Jenkins’s state of knowledge. As far as we are aware, nobody outside of Post Office has alighted on the significance of this document in relation to Mr Jenkins’ historic evidence.”

This shows, I think, that the Post Office legal team recognised that the claimants’ legal team had not fully appreciated, if at all, the real significance of Jenkins' absence.

There is also early in this section of the evidence an odd denial:

In the course of this meeting of 10 September 2018, at which allegations were made to you about the expert evidence that Gareth Jenkins had given, did any of the lawyers discuss the extent to which Mr Jenkins had been properly instructed as an expert.

Anthony Robinson: No. Absolutely not.

I found myself wondering how he remembered so clearly that something was not brought up, but that is perhaps a side-show.

More importantly, like many lawyers before him when faced with the Jenkins question, he did not, it appears, speak to anyone at Fujitsu or suggest that his solicitors speak to anyone at Fujitsu about the concerns as to Jenkins’ reliability, or consider whether such discussions had taken place.

He is shown documents suggesting that Fujitsu had been told PO did not want to mix civil and criminal evidence as the reason for not calling him. He agrees this suggests a desire on the Post Office’s part to keep the reasons for not calling Jenkins from them. He has to be pushed a little to accept that the approach (which is PO’s approach, not his) is more than ambiguous.

And on 30th January 2019, Freeths (the solicitors for the claimants) wrote asking why Jenkins was not being called. The Post Office responded on the 12th February 2019 to say it was because he was, “an expert witness in relation to a number of prosecutions that are being reviewed by the CCRC and it was therefore not appropriate to call him.” Beer asks him if this was false. It was not his letter. He said:

“Economical with the truth, yes, in effect.”

“Q. And therefore false?

“Yes, I think, yes.”

As the case is being prepared to go to trial, shortly after he is told of the Gareth Jenkins problem, Mr Robinson notices Gareth Jenkins has been called upon by Fujitsu to help with the analysis of the Known Error Logs. A controversial document which is dragged out of the Post Office in disclosure. He raises it with one of the solicitors at Womble Bond Dickinson. Jason Beer quotes from Robinson’s words at the time:

“…I see that Gareth Jenkins is part of the team doing the analysis. We all know the reasons why we have decided not to have Jenkins as a witness.”

….

“They are also reasons for not having him as a source of evidence – ie as a source of information for our witnesses and/or as a person providing analyses on which our witnesses will rely. Where he is acting as a source the claimants will know this and they will waste no time in arguing (1) the fact that we have not called such a natural witness demonstrates that he not a reliable witness, (2) we recognise this fact and want to protect him from any cross-examination, and (3) if he is not a reliable witness, he can’t be a reliable source of evidence, either and (4) as the claimants are being prevented from cross-examining him the information he proves to other witnesses is even less reliable than a witness statement from him would be. The argument will undermine the evidential value of any witness statements that are based on information that Jenkins has provided.”

You were essentially saying here that the three reasons that we’ve isolated for not calling Gareth Jenkins apply with equal force for not relying on Mr Jenkins behind the scenes as a provider of information or evidence?

Anthony Robinson: Yes.

Mr Beer: Is that because, if he is an unreliable witness but not called, he may, nonetheless, be providing unreliable information to people who are being called?

Anthony Robinson: It may be argued that he – what I’m reciting is what the – the claimants will waste no time in arguing.

Rather than tell his solicitors Jenkins cannot be used, he takes a less robust approach:

Anthony Robinson: “It follows that we should limit Jenkins’ involvement as a source of evidence as much as possible, essentially to those areas where there’s no alternative source of information.

“… We should limit [his] involvement … as much as possible … However, the man seems to be popping up on [every] technical question – as a source of information for Torstein Godeseth and now as a member of the team providing analysis for Steve Parker. I appreciate his unique position and there may be some areas where we have no alternative but to use him as a source of information. But are we sure that we are limiting his involvement as much as possible? I entirely recognise the need to be realistic about the sort of evidence we can get from Fujitsu in the time available. But I need to make clear the risk we could be running of adducing evidence which could turn out not to be very useful to us. “

Mr Beer: So you are here, in the words of your witness statement, expressing dissatisfaction at the fact that Mr Jenkins keeps popping up in the evidence.

Anthony Robinson: Yes.

The position seems to be it is a risk, it is just something their opponents might use to argue against them. The concern is not expressed that it is not appropriate, or that the potential for the court to be misled by such an approach is significant. It may be this thought which motivates Jason Beer’s next question:

Mr Beer: You were willing, would you agree, to accept Mr Jenkins’ involvement and assistance where there was no one else who was able or willing to provide it?

Anthony Robinson: Yes. If there was evidence that needed to be adduced and the relevant evidence was, in part, based upon information that could only come from Jenkins, then we would have to rely on that information, but I wanted to make it clear that it should be kept to a minimum and we shouldn’t be doing it if we could avoid doing it.

Mr Beer: Would you agree that that prospective use of him made it all the more important to ensure that Mr Jenkins was aware of the position that he was being put in, ie although he was being regarded by Post Office as an unreliable witness, nonetheless, his assistance would be sought and relied upon where it was important for the Post Office for that to happen?

Anthony Robinson: That’s not something that I considered for a second at the relevant time. I had no idea what Dr Jenkins was or was not aware of.

It was once Robinson saw the witness statements that he realised how much reliance there had been on Jenkins. Beer takes him to the problems identified in the Bates judgment, with Jenkins being an unidentified source of evidence in Professor Worden’s expert evidence and Fraser J saying his involvement was simply hidden.

Anthony Robinson: I’m cross that it happened.

He sets out a series of steps he instructed Womble Bond Dicksinson to take to ensure there was a full record of the information provided to Dr Worden by Mr Jenkins. He was , “astonished and cross that that didn’t happen.” And appears to blame Womble Bond Dickinson. Asked if this makes the reliance on Jenkins worse he says:

I think it’s really unfortunate that he wasn’t specifically identified on all occasions and there were at least couple of occasions where I think I fell short in – because I was in a hurry, because I had other things to worry about – where I didn’t, you know, I didn’t intervene in the process, so as to ensure that it was done at all times and I think that’s something for which I can be justifiably criticised.

But it is not this criticism that really interests Mr Beer, I suspect, it is what comes next: whether the written, closing submissions that Robinson contributed to, reviewed, and was responsible for, to the High Court as the Post Office’s leading counsel were misleading or not.

By now the session had become very tense indeed and it is worth quoting from extensively rather than have me edit and analyse.

Beer quotes from the relevant passages of the submissions:

“Post Office wanted to provide a simple and uncontroversial overview of Horizon and its relevant features. It recognised that it was not possible for one person to have had a complete understanding of all of the corners of the Horizon system but, on the basis that there would not be room in the timetable for multiple witnesses, it took the view that this overview should be provided by one person. Two possible candidates were Torstein Godeseth and Gareth Jenkins. Taking into account the involvement that Mr Jenkins had in a number of criminal prosecutions that are currently being looked at by the [CCRC] (eg the Misra case), Post Office asked Mr Godeseth to do so.”

So that’s passage 1. Then if we can go forwards, please, to page 66, at paragraph 14:

“As was made clear in the statement, in certain respects Mr Godeseth’s evidence was based on information provided by others. His account of the Misra trial was based on information provided by [Womble Bond Dickinson] and Mr Jenkins; his accounts of the Callendar Square, receipts and payments mismatch, local suspense and Dalmellington bugs were based online the contemporaneous documents and discussion with Mr Jenkins and on one point of information provided by Matthew Lenton, [the documents manager]; his accounts of the documents held by Post Office was based on information provided by Steve Bansal, Fujitsu’s Senior Service Delivery Manager.”

Then the third passage is 144:

“[The claimants] understandably complain that Mr Jenkins and the other source of Mr Godeseth’s information could have given some of this evidence firsthand …

“Taking into account that Professor McLachlan’s evidence specifically addressed things said or done by Mr Jenkins in relation to the Misra trial, Post Office was concerned that the Horizon Issues trial could become an investigation of his own in this and other … cases.

“2. Moreover, Post Office was conscious that if it only adduced firsthand evidence in the trial, it would end up having to call more witnesses than could be accommodate within the trial timetable.

“3. Furthermore, so far as the Post Office was aware, the relevant parts of Godeseth 2 were most unlikely to be controversial. For example, the Misra trial was a matter of public record, the four bugs were covered by contemporaneous documentation and Post Office had no reason to doubt Fujitsu’s account of the documents it held.”

In the three passages I have taken you to, do you accept that the explanation provided to the court did not reflect the true reasons as to why Mr Jenkins was not being called as a witness?

Anthony Robinson: No.

Mr Beer: They did reveal the true position, did they?

Anthony Robinson: What – if you look at paragraph 144.1, what’s being said is that – what’s being flagged to the court is that there were criticisms, there were likely to be criticisms, of things said or done by Mr Jenkins in the Misra trial and other criminal cases.

Mr Beer: Just stopping there, where does it say that there could be criticisms made of Mr Jenkins in the criminal cases?

Anthony Robinson: “Taking into account that Professor McLachlan’s evidence specifically addressed things said or done by Mr Jenkins in relation to the Misra trial, Post Office was concerned that the Horizon Issues trial could become an investigation of his role in this and other criminal cases.”

Now, what that was doing was signalling to the judge – like any other judge, the judge was an experienced litigator – it was signalling to the judge that there were things that Mr Jenkins had said and done that would be the subject of criticism. Anyone reading paragraph 144.1, in the context of these proceedings, would have realised that was the case. That was being – in my view, that was being clearly signalled to the judge.

Mr Beer: That was being open and candid, was it, with the court as to the reasons why your client had decided not to call Gareth Jenkins?

Anthony Robinson: The judge was being told that there were – it was being made clear, in my view, to the judge that there were issues in relation to what Mr Jenkins had said or not said in criminal cases which would have become the focus of attention. Now, I asked this question rhetorically: why is it even relevant to say that? Why would that point even be made? It would only be made because there were previous inconsistent statements that would have been put to Mr Jenkins had he been called. Indeed the judge, in his judgment, says that in one of the paragraphs.

In my view, that was a fair – that gave a fair indication to the judge of the concern that Post Office had, which led to Mr Jenkins not being called as a witness. I don’t accept that was misleading at all. It’s true that I didn’t refer – that counsel, the four of us, didn’t refer to Mr Clarke’s note. We wouldn’t have been entitled to refer to the note because that was privileged. It’s true that we didn’t say he would have been a terrible witness. But, in circumstances where the judge is being told there are things that he did in relation to criminal cases that would have been the subject of investigation, ie would have been the subject of cross-examination during the trial, in my view, that is sufficient. That is a sufficient indication of the sort of concern that Post Office had that led to Mr Jenkins not being called as a witness. So I don’t accept your question.

Mr Beer: The real reasons, we established, I think, three times this morning, that Mr Jenkins was not called, was that, firstly, he was said by the criminal solicitors to be an unreliable witness; secondly, he had been treated by the Post Office as a witness upon whom reliance could not be placed; and, thirdly, he was said to have given false evidence in criminal proceedings. You agree that none of those reasons, the true reasons, were given?

Anthony Robinson: I don’t agree that they are three separate reasons. The reasons were that, during the criminal trials, he had said things that were misleading and/or had not said things that he should have said. That – the inevitable result of that was to the give the claimants material to suggest that he was an unreliable witness. That was the reason why he was not called.

In my view, paragraph 144.1 signals that to the judge. It doesn’t do so with the emphasis that you would probably suggest is required but I do not accept that that was misleading. I believe that, in the eyes of an experienced litigator, that would have signalled quite clearly what the real concern was, what the underlying concern was.

Mr Beer: Really? You think that signals quite clearly?

Anthony Robinson: Yes, I do.

Mr Beer: Is that really what you’re saying?

Anthony Robinson: It would not have been relevant. The point being made in 144.1 would not have been relevant, unless there was material which could have been put to Mr Jenkins about what he’d said or not said during the criminal trials. It would have been an irrelevant point to make. Why is it there? Because things clearly were said or not said which would have been the subject of cross-examination.

Mr Beer: At most, this is saying, “It become a distraction to your trial, judge. That’s why we haven’t called Mr Jenkins”.

Anthony Robinson: Well, I’m – that is not my view as to what is being signalled by paragraph 144.1. Not at all.

He is also asked what he thinks the judge’s reaction would have been to the three real reasons he had been called. He declines to answer on the basis he does not accept the underlying hypothesis. But, it is suggested, there were a different set of reasons lurking beneath the explanation you gave to the court, to which Robinson replies, “you are entitled to say that we could have been more emphatic.”

We are not quite done because Beer takes Mr Robinson to a meeting with Herbert Smith Freehills, who take over negotiations for the Post Office after the HIT debacle, is recorded in an attendance note 4 October 2019:

“At trial, did the claimants advance a case that Post Office suppressed evidence regarding the existence of bugs? If so, can you point me to the relevant parts of the closings/the trial transcripts? I want to have read up on this issue if it is something you think might get raised in the judgment.”

So this is by the time Herbert Smith Freehills are being involved as solicitors for the Post Office, yes?

Anthony Robinson: Yes.

Mr Beer: Can we see what the answer to that question 4 is. It’s page 9, please. Can you see there is a box which says, “The answer to your question is yes”, under question 4, they did, that’s the claimants, suggest it in a number of ways.

Then under one heading, “Gareth Jenkins”:

“First of all, they made huge complaints that we didn’t call Gareth Jenkins, who is a god but an unreliable god. They say the fact that we didn’t call Gareth Jenkins is suppression.

“And you know what, that might be right.”

Why did you think that what the Post Office had done may be the suppression of evidence from Gareth Jenkins?

Anthony Robinson: I think you’re reading too much into that. I am given sometimes to explaining things in a very colourful way. There was no suppression of evidence. What there was was a decision not to call someone to give evidence on relatively uncontroversial questions because it was felt that what would then happen is that he would get dragged into a cross-examination of – in relation to his evidence in criminal prosecutions, that would – that would simply result in a finding that he was an unreliable witness.

Mr Beer: Suppression in this context, the suppression of evidence, means to silence, to cover-up, to conceal, doesn’t it?

Anthony Robinson: As I say, I think you’re reading far too much into that.

Mr Beer: I’m just reading back the words that are recorded in this Herbert Smith Freehills attendance note on you.

Anthony Robinson: Yes, but do remember that this is an informal conversation between litigators and I am speaking – as I say, I’m trying to do it in an easy to understand, and rather dramatic way, so that Alex Lerner can understand where we stand. If you’re going to put to me that there was actually suppression of evidence because Gareth Jenkins was not called, I would refute that suggestion.

The question is not whether Mr Robison would refute the suggestion, or even if (ahem) he rebutted it, but whether Mr Beer has established that the statements were knowingly or recklessly misleading. Or it might be whether they are statements made that lack integrity. You can read the words above and judge for yourself. We know the PO Lawyers thought the claimant lawyers had missed the significance of Jenkins absence. We know that Robinson thinks the letter to Freeths was false. We know that the submission to the court is not the full picture. But we could also say Fraser J smelt a big enough rat to call in the Met Police, so in a way he was not actually misled.

The leading case of Wingate and Evans v SRA [2018] EWCA Civ 366 sets out the test for integrity in such circumstances in these terms:

Integrity connotes adherence to the ethical standards of one’s own profession. That involves more than mere honesty. To take one example, a solicitor conducting negotiations or a barrister making submissions to a judge or arbitrator will take particular care not to mislead. Such a professional person is expected to be even more scrupulous about accuracy than a member of the general public in daily discourse.

One final point is worth noting on this. Sir Wyn Williams asks him why the submission was made.

It was just – the intention, I think, probably would have been to mitigate the point rather than to sort of explain it away.

Sir Wyn Williams: That was really my last question: what was the purpose of it?

Anthony Robinson: I’m not – to be honest, I’m not really clear. That must make me seem rather foolish but I look at paragraph 144 and I ask myself what good was it actually going to do at the end of the day? And the answer is I can’t actually think of any practical good it was going to do. It wasn’t going to affect the judge – you know, cause the judge to change his mind on any relevant issue. So I do find myself scratching my head as to why we even bothered, why counsel even bothered including it in the closing submissions. But I appreciate that’s – must sound rather odd to you.

It sometimes happens when you’re drafting things in a big rush. You end up including things that, with the benefit of a cold reflection, perhaps you would have left out.

There it is again. Understatement.