The sorry tale of Warwick Tatford

A key question for the Post Office Inquiry is the fairness of private prosecutions conducted by the Post Office and the independent Bar on its behalf. Hear why one lawyer had to apologise twice.

Apologies have been an occasional, if sometimes inadequate or glaringly absent, feature of lawyers giving evidence the Post office Inquiry to date, but Warwick Tatford, Prosecuting Counsel in the trial of Seema Misra, apologised twice and with what felt like (to me) a degree of real conviction.

He began his evidence by saying he was, “extremely sorry that I played an unwitting role in Seema Misra and Carl Page having unfair trials.” He was, “particularly conscious that in Mrs Misra's case,

“I was Prosecution Counsel at the head of a difficult disclosure exercise that failed.” He had, he said, “Over the years… …thought repeatedly about whether there was something different I could have done, whether  I should have asked more or different questions, whether I should have insisted on an independent expert.”

And,

“It's not actually about me but I am -- I do feel ashamed about what had happened -- what's happened and -- but the best I can do is try and help the Inquiry and try and learn a bit myself….”

And learn he did; more, interestingly, than he seemed to have bargained for and in ways which inched him away from his rather responsibility-lite apology. And he did so because, for a while, it was nearly all about him and, as might be discerned from a second apology given later in his evidence, it was all about him in ways he had not appreciated.

But before we come to that, what did the evidence show? Six words sum it up. It showed a litany of failure.

He knew Misra was an important case, if not a test case.

It became important because Mr Tatford advised that they proceed with theft charges against Mrs Misra in spite of her pleas to false accounting charges.  The PO lawyers seemed willing to accept pleas to the lesser charges, but Tatford put his foot down.

That decision was critical in a number of ways. A contested trial meant the importance of the case was elevated for the Post Office. It became important to demonstrate that there were no real problems with Horizon. But Tatford was plainly aware too of a broader public interest; Horizon was an important part of the Post Offices infrastructure nationally.

What Mr Tatford saw as a public interest in bringing the case to trial was also accompanied by what he described as, “very wide ranging and potentially, to an extent, irrelevant disclosure requests.” (8:7-10)  This, he claims, rather than the importance of the case to his client and the public interest contributed, he said, to, “a feeling of a lot of pressure throughout the case”.

Counsel to the Inquiry picks away generally at the weaknesses in case handling. If Mr Tatford advised on the strength of the evidence, he must have done this only implicitly whilst drafting the indictment. “An analysis of evidential strengths and weaknesses” would have been desirable, Tatford says but, “I'm afraid there is simply not enough time to do that in every case.” Prosecutors up and down the land are probably nodding away if they listened to that.

Disclosure comes back repeatedly. Key records (called ARQ data which showed the details of contested transactions) were requested for the entirety of the indictment period by Mrs Misra’s expert. Mr Tatford’s response had been to such a request had been, “if one requested and received every piece of paper for West Byfleet, we would probably fill this room.”

The request was resisted on cost and volume grounds predominantly.

He accepted in his witness statement and the hearing that, on reflection, this was very much the wrong approach.  As was put to him the data was, “primary evidence upon which the Crown relied in order to prove that the property belonging to another had been appropriated by the defendant.” It had to be disclosed as part of his case and it was not. By implication, it seems to me, this suggests that the review of evidence at indictment stage was inadequate.

Whilst Mr Tatford suggests the decision on proceeding with the theft charge was motivated solely by the evidence and the public interest; written evidence suggests discussion of this seems to have been partly framed by the possibility of getting a confiscation order for the theft money should Mrs Misra be convicted.

In the Inquiry hearing, Mr Tatford says he was not influenced by that himself. His correspondence at the time says, “The case for theft is strong and we should not accept the pleas. Confiscation would also be a non-starter if we did.” He says he only addresses confiscation because it was raised by those instructing him.

The most critical, I would say devastating, part of his evidence deals with the appointment and handling of Mr Jenkins as an expert witness for the prosecution in the Misra case.

Counsel to the Inquiry goes through various things the prosecutor is supposed to do as regards an expert witness. All of these are essential to ensuring the independence and quality of the expert’s evidence. The prosecutor must satisfy themselves as to the expert's relevant qualifications and expertise; they must provide a detailed letter of instruction setting out various matters designed to ensure the expert is properly instructed; they must set out the material on which s/he is instructed; and they must inform (or remind if they are experienced) the expert of his or her relevant duties as part of their obligation to satisfy themselves that the expert has understood and then complies with their relevant duties to the court (to be unbiased, independent, to disclose material facts undermining the expert's opinion and so on).

There is no written evidence that this was done.

Tatford admits his compliance with these rules is “nowhere near” satisfactory; there is no such letter, but he says he made every effort to ensure the witness understood his obligations orally. This is a point to which we will return to as we have reason to know in more detail how Mr Tatford managed his witness’s independence.

His explanation for this failure seems to be that it only became apparent late on that Mr Jenkins evidence needed to be conceived as expert evidence, and so it was not properly formalised as such. The judge gave them seven days to prepare and serve expert evidence.

Having said that he had advised carefully and orally on such matters, when he begins to be pressed on the absence of documentation on this, he engages in some not-so-subtle buck-passing when it is pointed out that Jenkins’ witness statement also does not comply with the requirements for expert evidence:

That final statement should have complied properly with the Criminal Procedure Rules. It didn't, but that statement wasn't available until about two days before the trial and my recollection is I spoke with the defence to see if that was going to raise any problem with admissibility and I understood it wasn't going to be because their understanding was that the two experts were working well together, and that Professor McLachlan needed the assistance he was getting from Mr Jenkins

Q. Does the fact that none of the statements include the required content for an admissible expert report and there isn't a single document that records the explanation to Mr Jenkins of the existence of his duties instead show that the Post Office and its lawyers failed properly to consider what duties Mr Jenkins was subject to?

A. I think, as a whole, that may be right. I was trying and I thought it had been -- I assumed -- it was an assumption. I assumed that these obligations were being explained by my instructing solicitor as well.

The failures are excruciating and counsel to the Inquiry lays them on pretty thick, but in fact there is worse to come.

Mr Tatford is taken to task about the extent to which he explored potential defence lines of enquiry once he became aware of the possibility of bugs cause by a story in Computer Weekly.

This led him to the Callendar Square bug but he’s not sure, for instance, whether he was shown other records of complaints by subpostmasters about Horizon problems (although it is clear he did not regard mere complaints as evidence of Horizon problems). He says he does not think he was told about Known Error Logs although it becomes clear later in his evidence that the defence had actually requested them and Tatford ignores or overlooks those requests when advising on disclosure.

He also admits he did not advise the Post Office to conduct a disclosure exercise around Horizon problems (“I thought the enquiry should be made of Fujitsu. But you’re right, it’s a sensible enquiry. I didn’t think of that.”). Whilst he says his advice to Post Office was “very clear… that I needed to have disclosure of any problems relating to the reliability of the Horizon system” it becomes clear that this request (phrased in his advice as if it will likely be something of a wild goose chase) becomes watered down by those instructing him to asking the expert to provide a witness statement saying there are no errors.

His narrow and defensive approach to disclosure and the tenor of his advice it seems was influenced by the, “clear confidence from all I spoke to that there wasn’t a problem with Horizon.” He seems to make a point of saying he was given that impression by Mandy Talbot a civil litigation lawyer working in-house at the time and already questioned about her role in the Horizon scandal and her apparent failure to join the dots across a number of civil and other cases where Horizon errors was raised.

It’s when we come to the comments Warwick Tatford made on the draft witness statements of Gareth Jenkins that things become particularly interesting. Here we get the best insight into how independence was managed by Mr Tatford and also some insight into how disclosure obligations were considered at the time.

One of Gareth Jenkins’ early draft statements picks up on comments made by the defence’s expert and says that he can’t deal with those. The Post Office need to respond because they relate to Post Office procedures, and he is a Fujitsu employee. Tatford says this should be, “deleted from the statement. These areas will only lead to a flood of further disclosure requests and I’m afraid that [the Post Office] will never respond.” He did not give any advice as to disclosure requirements that might fall on the Post Office as a result of the problem Jenkins points towards. He concedes he should have done. So the problem is raised, the problem is removed from the evidence, and disclosure is not dealt with.

This may be the point to remind everyone that a prosecutor is supposed to behave fairly and also is supposed to disclose any evidence which tends to support or give rise to lines of enquiry that will assist the defence.

Gareth Jenkins also says in an email that responds to some of the defence experts’ points he needs to see the underlying transaction data to deal with it. As noted above, the defence had been requesting the same transaction data. Jenkins begins to express concerns about the importance of this; in essence, there may be errors causing transactions to be lost which they need to look for. Mr Tatford says he does not recall this even though he was sent information on it at the time. He suggests he may not have understood the significance of it.

When they decide to rely on Gareth Jenkins as an expert, the solicitor for the Post Office, Jarnail Singh, is seen to be instructing Jenkins in ways which suggest the approach should be, “to find the shortest span of logs, analyse it, disprove or rebut what the defence expert is saying in his reports.” The Post Office prosecutorial cup of fairness overfloweth.

Mr Tatford, who appears not to have seen the letter of instruction at the time, concedes this is, “completely wrong”.

Counsel to the enquiry then describes, “the closest that we have come to a reminder of an expert’s duties is this passage written to Mr Jenkins: “just to remind you, you are an Expert for Fujitsu. You’ll be giving evidence in court. The judge and jury will be listening to you very carefully and a lot will hang on the evidence.”

Counsel to the enquiry asks if this is “risible”. Tatford describes it as “disastrous”.

Apologies to the squeamish though, it actually manages to get worse.

There’s a suggestion that Tatford may have had a hand in the strategy of examining a limited set of records, and he cross-examines Seema Misra on an important point in the trial which would have been resolved in her favour by proper disclosure. That disclosure was not made.

But the coup de grace is Mr Tatford;s comments on Jenkins’ main draft ‘expert’ statement.

He asks for stronger wording on supportive points. He asks for important concessions to be qualified or challenges them directly as unsubstantiated (Jenkins’ draft includes an acceptance of the existence or possibility of errors and says in terms that some evidence is not consistent with guilt that Mr Tatford plainly sees as potentially damaging).

Throughout these comments, I would say there are attempts to influence both the phrasing and substance of the evidence to be given by Jenkins.

Counsel to the enquiry asked him, “is what we see here prosecution counsel seeking to harden up his expert?” And Mr Tatford tries to justify himself as raising legitimate points, merely inviting further consideration and “merely clarifying details to make sure that Mr Jenkins really meant what he said.”

He then concedes he did ask questions in a very leading way and that the statement, annotated by him with his comments, should have been retained and recorded in a schedule of unused material (and so potentially disclosed to the defence). It was not. It is put to him that, as a result the defence were denied the opportunity to explore how his written evidence came to look as it did at trial. He concedes that it was unfair.

He also accepts that what he’s done is inconsistent with the picture he gave earlier that he strongly advised Jenkins of the need for independence.

It is a devastating section of Inquiry evidence and can be read at pages 159-172. It is, I think, what leads to Mr Tatford’s second apology when being questioned by one of Seema Misra’s counsel, Ed Henry KC. Here's the meat of that:

I’ve actually found – I’ve actually found the exercise – and it’s been quite a demanding exercise to do witness statement and go through matters – I have found that’s clarified my mind as to what happened and, when I said I felt ashamed, I do. I actually feel worse because it’s become quite clear in the way that the evidence is properly been put before me that there are many failings that I had ignored on my part and I perhaps created a rosier version in my memory that wasn’t really there.

I apologise unreservedly for what happened. I hope it can be remedied in some way. I hope that – I don’t know what happens with compensation in the future. That’s obviously something outside of my control but this Inquiry process has been highly informative, and it’s some good [sic], I hope, will come from it.

I have changed my view. It’s taken me a long time. I suspect I was in denial for a long time, perhaps in a self-justificatory way, and I apologise for that.

He’s not admitting responsibility, but unlike his first apology, he’s not seeking to shift it away. It’s a moving moment and a credit to him that he said it (even if one accepts the evidence probably dictated that he should). It is also worth strongly emphasising his recognition that his memory has interpreted events in terms of what he should have done (rosier version) rather than what he actually did.

That it would take such a thorough process and examination by counsel on documents Mr Tatford would have read very carefully prior to giving his evidence is important. He does not appear to have appreciated until during his oral evidence the full the extent to which his behaviour showed an apparent lack of proper care, competence, and prosecutorial fairness. It will be very interesting to see how the Bar Standards Board reacts. I would say, an investigation is a must and disciplinary proceedings likely.

There is also a question about their urgency. Whilst events took place over a decade ago, albeit as a fairly experienced criminal barrister; some of his failure to appreciate the wrongs of his conduct was current, it suggests there may be gaps in his present understanding of the role. Urgent action may be required.