Last week was a rollercoaster of a week. We began with the old men from the C-Suite. Their evidence showed, in essence, that they did not take much interest in legal and assumed it was all run swimmingly. One reason for this, if one accepts it is true is, I suspect, that legal was managed through the Company Secretary role rather than by, and having reporting lines to, the CEO and Chair, but that’s a (very important) point for another day, because right now I want to concentrate on Roderick Williams because we learnt a great deal indeed from his evidence.
To say it tees up the evidence of two GCs Susan Crichton and (Acting GC) Chris Aujard (tomorrow and the day after) nicely is the mildest of understatements.
What did we learn? Too much for more than a high-level summary, but here goes…
When the Post Office (re)discovered all the problems with Horizon in 2013 they continued to suspend subpostmasters even after they stopped prosecuting. Some 600+ were suspended.
Rodric Williams advised contract managers on such suspensions.
He “does not recall” taking the knowledge of bugs and errors he gleaned from 2013 onwards into account when giving such advice. He similarly did not recall stopping and thinking, as Beer put it, whether, “we’re carrying on suspending people, we may be relying on Horizon data in order to suspended people, should we be doing so?”
One of the biggest moments was an email where a solicitor in Womble Bond proposed to try and suppress disclosable evidence for as long as possible in an organised and deliberate way, a way designed to appear legitimate when it was not.
In effect, this email may show a conspiracy to conceal an earlier conspiracy to conceal Horizon flaws. It was a double whammy of awfulness.
Rodric Williams received it, didn’t reply to it (to stop it) but did “not recall reading it carefully.” Indeed, he did not, “recall it in any size, shape or colour.” Jason Beer puts to him, “Your actions are the more important thing rather than your present recollection?”
“That’s true,” says Williams, “mm-hm”.
We learnt too that one of the legal department responses, in anticipation of Second Sight’s second report, which they knew was going to be critical was to see if Post Office could allege defamation on the independent investigators. It is said that was part of the response requested by the then Chairman of Post Office Alice Perkins via Chris Aujard, Acting GC.
And there was loads about Post Office’s disclosure and the appropriateness of how that was handled. There were suggestions of routine/systematic attempts to label matters as legally privileged, including in circumstances where such information may not have been privileged. There is evidence that Royal Mail/Post Office had a long-standing practice of structuring documents in a way that may have suggested they were subject to privilege even when they were not. And to not write anything critical of Horizon down unless it was routed through lawyers.
The extent to which this might be normal practice within the legal profession was also debated. As well it might be.
More damagingly still, there were a number of instances of key information coming to light where the Post Office and its lawyers (if they were doing their job properly) ought (it was suggested) to have investigated or investigated more deeply. There were a number of examples.
One was, shouldn’t the Post Office have investigated when it really first became aware of bugs, or remote access? Post Office were behaving as if these matters were being revealed to them for the first time in 2013. Williams appears to concede that if one looked closer or thought about how those revelations were dealt with at the time it could be seen these things were not revelations. Some people knew about them already.
Post Office also did not include staff from Fujitsu on the working group considering how to sort out disclosure problems in the wake of the Clarke advice in 2013. This was accidental not deliberate said Mr Williams.
Similarly, and perhaps more centrally still, there does not appear, on the evidence so far, to have been any discussion of whether Gareth Jenkins, when his tainted evidence came to light, needed be referred to the police or, even more surprisingly, any investigation into how or why Mr Jenkins gave tainted evidence, and continued to do even so after he had told Second Sight of bugs. The mystery of why this did not happen will run and run.
Williams, a key conduit on such matters between the PO and various other lawyers involved, for example, does not know whether concerns about Jenkins were even discussed with Fujitsu.
The evidence suggests whether to discuss it with Fujitsu was clearly thought about.
Williams (and other lawyers) seems to have been aware Jenkins had not been properly instructed by PO, and he did not appear to do anything about it. The useless conduits. This may provide an explanation as to why they did not raise it with Fujitsu; they were conscious of PO’s hand already having been dipped in that particular blood.
Shredding, similarly, and extraordinarily, Williams did nothing to investigate, drafting a letter for GC Susan Crichton about it, which appears to demur on whether it had actually happened. He accepts it adopts a corporate line rather than an informed position.
He thinks at some point the allegedly shredded minutes were found, but he cannot recall any further investigation of it or discussion of reporting it to the Police.
As regards remote access, there are major questions about who knew and understood what when. PO is seen to be briefing Second Sight and journalists inaccurately in the light of information emerging from a review by Deloittes. And one chain of press office lines to take appears to be designed to conceal and mislead on matters. Neither Williams, who has opportunities to, nor anyone else appears, on what we know so far, to stop it or correct it.
Williams did receive the information necessary for him to understand remote access and he tries initially to say he didn’t pick up the point in the report that Deloitte’s wrote on the matter. Under pressure, he then suggests an alternative explanation: perhaps, he speculates, he thought at the time that the remote access problems, as identified Deloittes, were relatively insignificant.
When he did realise the significance of the problems, a significant time later, there is no apparent attempt to correct the error
Q. To your recollection, was it really only until Jonathan Swift in 2016 identified the importance of the Deloitte conclusion that the Post Office, so far as you were aware, woke up to the importance of the Deloitte report?
A. The report on the audit store access?
Q. Yes.
A. That’s my evidence. That’s what I recall now, so yes, it is, and I regret it, I promise.
Moreover, his evidence suggested some of the key problems he, and others in Post Office, were aware of may not have reached Second Sight, Brian Altman KC, (Sir Anthony Hooper’s) Mediation Working Group, the CCRC, or the Post Office Board.
Oops.
Information about the Rose report to the Board was deliberately minimised at Williams suggestion for reasons Williams struggles to explain.
We also learned that Mr Williams looked for ways of putting pressure on the CCRC to end their interest when they made some perspicacious requests for evidence. And he was apparently deliberately vague in response to queries about suspense accounts from Second Sight.
To shift to another matter. Mr Williams also sought to deny that PO’s litigation steering group documents showing the PO to be “targeting the pockets of the funder, the insurer, and the lawyers” by for instance, “stretching out the process to increase costs” to force abandonment and settlement of the claim was not really the strategy they deployed in Bates (even though Mr Justice Fraser’s judgment weighs heavily against his view). It wasn’t the strategy, but if it was the strategy it was suggested by Bond Dickinson, appeared to be his line.
We learn too that the scope of the Brian Altman’s General Review (a review that advised the Post Office that Cartwright King’s review was “fundamentally sound”), along with was limited in scope in ways Mr. Altman had concerns about. These were the two reviews which probably formed the basis of Paula Vennells’ statements to the Business Select Committee in 2015 about how keen they were to surface evidence of miscarriages of justice.
If I had more time, I would stand back and look in detail at how Mr Williams saw his role. To be brief, he was almost the exact opposite of how one might expect him to be described on a CV or LinkedIn profile. He didn’t generally advise much, or take the lead; he sought to ensure things were joined up, if he was told too; and by that he means, he passed on the advice the PO got; he precis-ed information, he summarised. He was a conduit. And he claimed naivety on strategy: for instance, he supported the media strategy without, he said, knowing what it was.
Perhaps the most explosive bit of the evidence, competing with the apparently alleged conspiracy to suppress the disclosure of evidence above, centred on the decision not to call Gareth Jenkins at the Bates trial.
The decision to do this is taken at a conference involving a KC, another barrister, one solicitor from Womble Bond Dickinson, and two Cartwright King and Rodric Williams. This list of names will become more prominent in the coming weeks.
No one seems to have kept a note of this conference. No one held the pen.
We know though that Williams wanted to call Jenkins as a witness of fact at the Bates trial because only Jenkins could attest to certain facts; he was, if you like, the molten core of the PO case.
And Williams it is who tells us, “a firm view was taken at the conference that the Post Office should not rely on Mr Jenkins because of “his previous involvement as a witness in the post office prosecutions”.”
Jenkins’s evidence is, however, used. This description, put to him by Beer, is agreed by Williams: Jenkins would nonetheless be used “to provide technical evidence to Fujitsu witnesses to enable them to give their evidence” behind the scenes. This was done but not always transparently or reliably according to the judgment in the Bates case.
He is taken through the reasons given for saying Jenkins was not called in the litigation by Mr Jacobs, counsel for one of the groups of subpostmasters.
These reasons were given to the High Court by leading counsel in closing the case. It is suggested to Williams that the reasons given are not accurate. Williams tries, perhaps fairly, we will see, to shift the responsibility for that to leading counsel: and then says this:
A. Well, the reason was given — was sorted out as with the Legal Team on instructions, with the benefit of the discussions around Jenkins. So, as far as I’m concerned, the excuse given was done with an understanding of the position.
If you are not convinced by that, he also said that the legal team had not misled the court because they would not have wanted to do that.
At around this point in the day, Sir Wyn made one of his rare interventions…
SIR WYN WILLIAMS: Hang on, Mr Williams. We know why you didn’t call Mr Jenkins, or at least there is a document which explains that before the litigation, which was that you thought his credibility was shot and that’s why you didn’t call him, isn’t it?
A. It is —
SIR WYN WILLIAMS: Why you chose to use him to provide information is a different issue, but the reason why he was not called is what transpired at the conference that we went through this morning
A. Yes, it is, sir, and where I think I’m going on that is that was all connected to his engagement in the criminal — in criminal proceedings, as opposed to the ones we were here before.
SIR WYN WILLIAMS: Sure. But the reason he was not called was because the view was taken that his credibility had been irretrievably lost.
A. Tainted, correct, sir, yes.
SIR WYN WILLIAMS: Thank you. Right, any more, Mr Jacobs?
Reader, there was not any more from Mr Jacobs.
The point of the two days evidence can be perhaps most fairly summarised in this moment at the end of Ed Henry KC’s examination of Mr Williams. Three quarters of an hour studded with silent staring and palpable anger.
SIR WYN WILLIAMS: Thank you, Mr Henry. I think the point, Mr Williams, is that at a moment in time, namely 2014, when, on any sensible reading of Mr Clarke’s advice of July 2013, there was a problem about Mr Jenkins’ evidence, the Post Office and you personally appeared still to be asserting to the world that the conviction was safe, amongst other things, because expert evidence had been called and the jury, by inference, must have accepted it; and those two things don’t sit very easily together, do they?
A. No, they don’t, sir. No, they don’t.
How badly they don’t sit together we will hear more of in coming weeks.
What we had in essence, during these two days, is the Inquiry’s Counsel seeking to, and so far succeeding in, showing that the Post Office approach was consistent with minimising and turning a blind eye to the seriousness of the implications of the 2013 events, rather than understanding and acting on the problems they faced. The evidence suggests they minimised or failed to recognise problems, covered them – sometimes dubiously- in legal privilege, and alongside that developed ‘defensible’ (and sometimes indefensible) lines to take if they were forced to confront them by the press, those apparently investigating matters for them, or their opponents. The flat earth case was built on this. Sadly but importantly, and one hopes in a more restrained form, they are probably not unusual tactics.
One last point.
Apologies and the witnesses approach to them have become something of a fascination for me.
Mr Williams was asked if he did anything wrong and whether he apologised for anything he had done. Jason Beer KC deconstructs his witness statement for him:
You offer deep regret at harm caused by events, rather than harm being caused to subpostmasters by people or harm being caused to subpostmasters by people in the Post Office, or even harm being caused to them by the Post Office. You offer regret that events caused people harm, don’t you, not people caused them harm
Williams says:
I will go so far as to as say, if I have caused somebody harm, I’m deeply sorry.
If.
