Expert accused of disclosure failures
Post Office inquiry told computer engineer knew about bugs in the system
A witness at the public inquiry into the Post Office Horizon scandal has heavily criticised the computer engineer responsible for an accounting system that led to hundreds of wrongful convictions.
Gareth Jenkins, the former chief IT architect at Fujitsu, had given evidence defending the robustness of Horizon during the trials of subpostmasters accused of theft and false accounting.
Yesterday, the inquiry took oral evidence from Duncan Atkinson KC, a leading independent criminal prosecutor. Atkinson also provided a 243-page expert report.
In it, he concluded:
I have concerns as to the manner of instruction of Mr Jenkins as an expert and very significant concerns as to the extent to which either he, as an expert under a duty to do so, or the prosecution under their duties, carried out effective disclosure of… expert evidence…
He provided reports in a number of cases, and gave evidence in a limited number of them… about the operation of Horizon that was inconsistent with the information to which he was privy about bugs in the system and issues with its operation.
The inquiry will be better placed than I am to assess Mr Jenkins’s position as an expert and a witness by reference to what was known at the time of his reports and evidence. However, on the basis of what I have seen, there were failures on his part to disclose material that undermined his opinion which it was his duty to have disclosed.
There was also material that undermined the prosecution case, as advanced through Mr Jenkins, that clearly fell to be disclosed and, in the hands of a third party, to be obtained for review.
Atkinson first gave evidence to the public inquiry in October. Since then, he has looked in detail at 22 cases prosecuted by the Post Office between 2000 and 2013. In his written statement, he summarised themes that emerged from the first 20 cases he had examined.
Investigation
Atkinson could not find out which individuals in the Post Office were responsible for investigating the specific cases and who was responsible for disclosing any exculpatory evidence to defence lawyers under the Criminal Procedure and Investigations Act 1996. But what he found did not reflect the division of roles recommended in two sets of guidelines:
It appeared that the same person undertook both investigative and disclosure roles, and it was not clear who was supervising or directing them in either capacity.
In oral evidence, he explained that “the person who had interviewed the suspect, who had acquired the evidence that they considered necessary to prosecute the suspect, was then the person who was deciding whether there was material that undermined the case that they had built”. There was “no one to stand back and ask those very important questions”.
Atkinson had previously expressed concern that Post Office investigators had not been told to pursue all reasonable lines of enquiry — whether these led towards or away from the suspect:
In my review of these 20 cases there were, consistently, failures by the investigators to identify and to pursue a number of reasonable lines of enquiry. That remained the position, without any obvious or significant change, after the 2010 amendment to the Post office disclosure policy document…
In some cases, failings in the investigation in terms of reasonable lines of enquiry were picked up by the prosecutor who reviewed the case… However, in many of those cases where the prosecutor did identify further investigative steps to be taken, the prosecutor nevertheless did not wait for those further enquires to be made before advising that a suspect be prosecuted.
Reasonable lines of inquiry, Atkinson agreed in oral evidence, would include consideration of whether accounting shortfalls at Horizon terminals might be caused by the computer system itself.
Charging decisions
The advice on charging suspects given by Post Office in-house lawyers gave rise to “real concerns”, Atkinson reported.
Advice documents
were almost invariably lacking any real analysis of the evidence, and appeared to take as read the evidential position as set out in the investigator’s summary.
This is of concern because the offences under consideration, in particular theft and false accounting, involved a number of elements for which it was necessary to consider the evidential sufficiency to reach an effective charging decision. In particular, this involved consideration of the evidential basis to establish dishonesty, evidence to show where money had gone and whether the evidence was reliable…
Even more concerning is the evidence in a number of the cases that I reviewed that the test of a realistic prospects of a conviction, as defined in the code [for crown prosecutors], was not the test, or the only test, being applied…
In disturbingly few of the charging advices that I have reviewed was there any reference to, let alone analysis of, the public interest. The 2004 code for crown prosecutors identified 17 public interest factors favouring prosecution and nine to the contrary. The 2010 code identified 19 public interest factors favouring prosecution and 11 to the contrary.
There was no analysis of these features in the charging advices that I have seen, and in only a very few cases were any factors properly characterised as public interest concerns referred to.
Guilty pleas
In some cases charged as theft, he continued, there was uncertainty about what the actual loss was — even by the end of the proceedings.
However, the greater concern in a number of the cases I have considered was that evidence that the theft charge was used as a means to pressure a defendant into pleading guilty to false accounting, with conditions attached to the acceptance of that plea which were wholly inappropriate…
Adopting the language of the Court of Appeal when it considered these cases, it was “improper” of the Post Office to have made their acceptance of a plea to a lesser alternative offence to theft conditional on the defendant in question not “making any explicit criticism of Horizon”. Moreover, “in circumstances where theft could not directly be proved, and the shortfall may not have been a real loss, it was wrong to try to prevent [the defendant] from making any criticism of Horizon as part of [their] mitigation to the charge... admitted.”
It would clearly have been a relevant, and likely a strong, mitigating factor following a plea that the falsification of records was to cover a shortfall for which the defendant was not responsible and may have been a computer error. To deny the defendant that mitigation was “wrong”...
Moreover, again adopting the language of the Court of Appeal, it was “irrational and unjust” for the Post Office to have required the defendant to accept that they “had the money short of theft” and/or to require the repayment of the money as a precondition to the acceptance of a plea where the plea being accepted did not involve acceptance of the causing or, or financial benefit from, the loss.
Disclosure
Atkinson added:
Clearly, the most concerning area of non-disclosure, and the one that was of particular concern to the Court of Appeal in those cases it considered, was the lack of disclosure relating to the operation and reliability of the Horizon system…
The pool of in-house lawyers and investigators who were involved in these cases appears to have been small, and thus they would have built up an awareness of Horizon issues being raised in these cases. Correspondence increasingly shows such an awareness…
As time passed, the number of cases where Horizon issues were being raised proliferated, and the need for cross-disclosure between them should have become all too obvious. It is far from obvious that this was carried out, however.
Atkinson will complete his oral evidence today.
Gareth Jenkins
The inquiry was reminded on 6 July that
Jenkins is under criminal investigation by the Metropolitan Police service for serious criminal offences relating to his role in the Horizon scandal. The evidence that he gives to this inquiry may be used in any criminal investigation, prosecutorial decision-making or in any criminal proceedings brought against him.
The computer engineer had originally been scheduled to give evidence in May. A few days earlier, though, he said he had decided not to rely on the privilege against self-incrimination and would therefore provide the inquiry with a witness statement and answer questions. As a result, his evidence had to be postponed until early July.
The night before he was due to give evidence, the Post Office disclosed 95 documents that related to Jenkins in some way. His evidence was postponed until 30 November. Again, though, it had to be rescheduled after the Post Office disclosed another 3,045 documents with just two weeks to go.
Williams, the former High Court judge conducting the statutory inquiry, said on 16 November:
Given the obvious importance of Mr Jenkins to my inquiry, that I have decided that there should be a substantial period of time which should now elapse before I try to reschedule Mr Jenkins. I cannot contemplate what has occurred so far recurring, namely that shortly before Mr Jenkins gives his evidence there is a flurry of activity which includes the late disclosure of documents.
Accordingly, I have decided that some months are likely to go by before I call Mr Jenkins to give evidence, because I want to be absolutely certain, or at least as certain as I can reasonably be, that every single relevant document relating to him has been disclosed to all relevant parties before his evidence begins.
His witness statement will not be published until he begins giving oral evidence and it is understood that Jenkins will be making no comment until then.
Thank you Joshua for giving space to this gross miscarriage of justice.
As a long time lawyer and an alumnus of the IT industry, I find it hard to believe that the Post Office management allowed this story to develop as it did. One can imagine that one or two post masters might be wrongly accused (though not to conviction), but when the number ran into hundred or thousands, the management must surely have realised that something was wrong. This reflects on the Post Office directors individually, the in-house lawyers, the IT staff as well of course on Fujitsu. Did none of them smell a rat? One wonders if any of them lost his job or were denied a bonus.
John
A less charitable interpretation might be that conclusions were jumped-to, those to be prosecuted were required to prove their innocence, and backs were to be covered at all costs.