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Wednesday, November 28, 2018

The Common Issues

What are the Common Issues in the Common Issues trial? Good question. You can find a working link to the pdf version on bailli.org here, the online version on bailli.org here, and just for good measure, I have uploaded the pdf version to Scribd here, so I can embed it below, here:

Bates v Post Office: Andrew Carpenter witness statement

Andrew Carpenter was one of three witnesses to give evidence on Day 11 of the trial - the last day of cross-examination of Post Office witnesses. You can read it here or embedded below.

For a write-up of the day, please have a read here.

Bates v Post Office: Brian Trotter Witness Statement

The last person to give evidence for the Post Office at the Common Issues trial was Brian Trotter from the Post Office. You can read his witness statement here, or below.

You can read the write up of the last day of Post Office evidence in court here.

Bates v Post Office: Michael Haworth Witness Statement

Witness statement from Michael Haworth, who gave evidence on the last day of cross-examination of Post Office witnesses in the Common Issues trial. You can read his witness statement here, or below.

You can read the write up of the last day of Post Office evidence in court here.

Tuesday, November 27, 2018

A former Subpostmaster writes: "I hate them."

As this trial has progressed, I have received quite a bit of correspondence. I have heard from Subpostmasters who are seriously worried about the outcome of this trial. They have viable Post Offices and they are worried that a win for the claimants would kill the value of their business. I have asked one of those Subposmasters to write a post on this blog.

I received the following email the other day from a former Subpostmaster. She had problems with Horizon. I have removed any identifying information and posted the email with permission:
"Nick, 
I too have been a victim of Horizon although mine was only (!) four figures. I was swooped upon by the auditors on a Thursday morning (pension day) in my little village post office early more than 15 years ago, and it was one of the worst times in my life. 
I had asked for help so so many times from the non helpline. One time trying to balance from 12.30pm until 10pm. I had my area manager come and shadow me on cash account day only for the discrepancy double before his eyes and he had no solution either.
I took a breakdown of my phone bills to show at interview how much I had rung the helpline. 
I was suspended for 3 months. 
I went to a solicitor who told me the Post Office was the last bastion of the British Empire as we could not get any info from the PO to help me. 
I paid the money and was reinstated but never got over the dread of cash account day. paid any discrepancies on time and even now 18 years later (I’m a manager of a charity shop), I am anxious when cashing the till up. 
It was such a relief when I sold up but I’m sorry to say the new lady had the same problems after I had gone with the debt doubling at rollover.
She has become a friend, and to my shame, I’ve never told her of my suspension or my Horizon problems as until the Second Sight programme (2013?) I thought I was useless with the system. 
I want the Post Office held to account. I hate them. I hate how they made me feel and I’m by no means as badly off as a lot of people. 
I know you’re a very busy man and I don’t expect a reply, I just needed to offload. I’m in tears just re-living this."
I'd like to thank my anonymous correspondent for getting in touch and telling her story. It is heartbreaking.

But it also has a twist.

How many former Subpostmasters have kept quiet about discrepancy problems at their Post Office, in order to sell them on and get out? Do the Post Office tell incoming Subpostmasters about previous balancing problems at a branch? Maybe not, because the Post Office position tends to be the faults are the faults of the Subpostmaster, so by that logic, the Subpostmaster leaves and the fault clears up.

What if the fault is down to an existing member of staff in the branch (eg as yet undetected theft or mis-keying)? Can the incoming Subpostmaster be obliged to take all existing branch staff on under TUPE rules? Or can the new Subpostmaster sack the existing staff all and install a new regime without breaking employment law?

If a working Subpostmaster or someone from the Post Office wants to write a response - anonymously if you would prefer - I'd like to hear it. Even if it is something along the lines of: "you were making mistakes, so tough cheese".

Please get in touch.

Application to make an unofficial sound recording of proceedings

I was getting a little frustrated with the lack of progress on my repeated requests for court transcripts during this trial. I had been assured that both the claimants and defendants had agreed in principle I should receive them, but I still wasn't getting them.

In court I could either bosh out blow-by-blow live tweets of proceedings (as parahphrases and notes), or stay alert for a newsworthy couple of quotes/exchanges and make sure I had them 100% accurate before sending them on to contacts in the media for possible publication. I didn't feel able to do both.

I went down the live tweets route, but it made for a very difficult daily post-proceedings write-up. I was not getting the transcripts, so I could not corroborate my recollections and notes against the verbatim write up.

On Friday I wrote to the judge and circulated a letter to the claimants and defence teams. It is an application to make an unofficial sound recording of proceedings. I wasn't expecting much.

When I sent the letter to the judge's clerk via email I got her out of office reply, which said she wasn't back until Tuesday. I realised I was going to have to get the letter to the judge by hand on Monday morning before court started.

I wrote a cover note and printed it out, along with several copies of the letter, in case the email I sent on Friday hadn't reached the claimants or the defence. I arrived early at the Rolls building and made sure the claimants and defence team were given the hard copies.

Thankfully both parties confirmed they had already seen it. I went into court 26 about an hour before proceedings were due to begin and waited for an usher to come in.

A brisk gentleman soon appeared and started putting out jugs of water around the court. I asked if he would be kind enough to hand my letter and covering note to the judge. He viewed it with suspicion. The usher said he was prepared to hand it to the judge at the beginning of proceedings, but not before.

I told him both parties in the trial had confirmed to me they had sight of my letter already. He stood his ground. Then he asked me which trial I was covering.

"Bates v Post Office" I said.
"This isn't the court for Bates v Post Office" he said.
"Really? But it's been the court for the last two weeks."
The usher eyeballed me. "This is a private hearing..."
Then he looked at my note.
"Who is the judge?" he asked.
"Mr Justice Fraser." I said. He looked again at my note again.
"Oh s***!" he started "I'm in the wrong court!"
"Ah" I said, as he ran away.
"Tell the next usher the water is fresh!" he said gesturing to the jugs, before racing out of court.
"Will do." I said, cheerily. "Can I have my letter back?"
He had put it down on the usher's desk, thankfully.

I waited. The transcribers came in. They were nice but not chatty. Eventually another usher came in and said something to the transcribers about the water. This was my in.

"Hello!" I said. "I'm a journalist. The last usher who came in told me to tell you that the water in the juges is fresh. He got the wrong court."
The new usher narrowed his eyes.
"Anyway" I said, flourishing my letter, I would be most grateful if you could give this to the judge."

The new usher, like the old usher, told me he would hand it to the judge when the judge was about to walk into the court. In something of a garbled rush, I explained that I was not big on springing things on judges, and that I'd be really grateful if he could give it to the judge in chambers, rather than just as he was about to start cracking on with quite an important trial and the other usher I spoke to before he realised he was in the wrong court was happy to do this and I had ensured that both the claimants and the defence had already seen the letter and I had tried to get my letter to his lordship on Friday but his clerk was away until tomorrow and if he could possibly see his way to getting the letter to Mr Justice Fraser before court actually started I would be most grateful.

The clerk gave me the once over.
"I could give it to him when he comes down. How long is it?"
I showed him my two page letter.
"Okay" he said. "I'll give it to him when he comes down."

And he did. Read the letter and then have a look at the transcript of what happened (below).

As I said at the time to his lordship - I am very grateful.

                                       Monday, 26 November 2018
   (10.30 am)
   MR JUSTICE FRASER:  I have had an application from the
       press.  I don't know if you both ...
   MR CAVENDER:  My Lord, I have a copy of the letter, yes.
   MR JUSTICE FRASER:  From Mr Wallis.  I would ordinarily say
       we would deal with it after we have dealt with today's
       evidence, but on the basis it relates to what we do
       today I think I ought to deal with it first.
           I will hear from Mr Wallis first, then I'll ask you
       for any observations and then I'll decide what to do.
           Mr Wallis, I am not going to rigorously interrogate
       you so you don't need to worry.  You want to record the
       proceedings, is that right?
   MR WALLIS:  I would like to, yes, if I may.
   MR JUSTICE FRASER:  Would you like to explain the basis for
       that.
   MR WALLIS:  Yes.  I am live-tweeting notes of the
       proceedings to give quite a committed audience
       a blow-by-blow account of what is happening.  There are
       an awful lot of claimants who obviously can't be in
       court and some of them say they are relying on my notes
       of what is happening to get a gist of what is going on.
       However, I'm not always confident that I  can send out
       direct quotes unless I have heard them perfectly.
   MR JUSTICE FRASER:  Understood.
   MR WALLIS:  So at the end of the day I would like to review
       my notes so that I am able to send out direct quotes
       against an audio recording of what has transpired in
       court, particularly the most newsworthy ones.  So that's
       why I've made the application, because I'm not in
       a position to do both.
   MR JUSTICE FRASER:  I understand.  And as you can see, it
       actually takes two or three people properly to record it
       anyway.
           So is it therefore the case that it is effectively
       to give you an accurate recording at the end of the day
       of what has happened during the day so you can make sure
       any quotes you use are accurate, is that a fair summary?
   MR WALLIS:  Yes.  I also have a number of people who are
       following this in the media and they require
       100 per cent accurate quotes which I am not always able
       to send them because I have been busy taking notes, if
       that makes sense.
   MR JUSTICE FRASER:  Understood.  I am going to counsel for
       any observations, but before I do that, is it right,
       therefore, to summarise what you are asking for: it is
       not going to give anything that the official transcript
       of the day wouldn't give you, it is just for you to
       basically record it yourself, is that right?
   MR WALLIS:  It would allow contemporaneous --
   MR JUSTICE FRASER:  The daily transcript actually is
       finalised usually by about 5.30 in the evening.
   MR WALLIS:  I have made repeated requests for daily
       transcripts and haven't received any so far.
   MR JUSTICE FRASER:  I didn't know that.
           Mr Green, any observations?
   MR GREEN:  My Lord, just on that last point, we have no
       objection at all to Mr Wallis having the daily
       transcripts, but the process as your Lordship knows is
       that Opus does the recheck and then sends out to all of
       us, and then we then submit our corrections, any
       corrections that they haven't picked up, and we pass
       those across to the defendants and they then go on to
       Opus.  Just so your Lordship has a feel for the timeline
       on that, Day 1 I think has now been sent by the
       defendant and approved to Opus.
           So although we had agreed to Mr Wallis having the
       transcripts --
   MR JUSTICE FRASER:  It is quite an unusual way of doing it,
       though isn't it?  We use Opus almost routinely in this
       court.  So you are saying it is taking a number of days
       if not weeks for the finalised version of Day 5 actually
       to be finalised, is that right?
   MR GREEN:  My Lord, yes.  I'm not approving it or -- I am
       just saying --
   MR JUSTICE FRASER:  I'd just like to summarise exactly what
       you are telling me.
   MR GREEN:  To be fair to Mr Wallis, he has not had the
       transcripts that we agreed he could have because --
   MR JUSTICE FRASER:  Did he know you had agreed he could have
       them?
   MR GREEN:  I understand he did know we'd agreed.  But he has
       not been able to have them because the actual finalised
       version -- as I understand it, consent was based on him,
       the consent of the two parties was based on it being the
       very final version, and the very final version, as
       matters have played out, hasn't come to him --
   MR JUSTICE FRASER:  Is today Day 11 of this trial?
   MR GREEN:  My Lord, yes.  So it's not ideal for him that he
       hasn't been able to see those.
   MR JUSTICE FRASER:  That is a process point rather than any
       sort of principled point about him not having the
       transcripts.  It is a process and timing point.
   MR GREEN:  My Lord, indeed.
   MR JUSTICE FRASER:  That is the last point.  What about the
       first point?
   MR GREEN:  We would have no objection at all to what is
       essentially a recording being made anyway also being
       made by Mr Wallis.
   MR JUSTICE FRASER:  Okay, but then -- well, if the aim of
       all of this is transparent and public justice it seems
       rather foolish to have two recordings that might say two
       different things of what has happened.
   MR GREEN:  Yes, my Lord, it might be possible for --
   MR JUSTICE FRASER:  Mr Cavender.
   MR CAVENDER:  My Lord, I don't object to it, I am concerned
       in a number of respects.  Firstly, the point is it
       necessary that your Lordship has alighted on and it all
       seems rather unsatisfactory.
   MR JUSTICE FRASER:  This is the recording point?
   MR CAVENDER:  Exactly.  And whether he needs the final final
       version.  Perhaps he does if he is going to quote from
       it.  But he seems to be saying he wants it at the end of
       the day to do an almost contemporaneous sort of blogging
       type thing.
   MR JUSTICE FRASER:  As I understand it from Mr Wallis's
       written application, he actually tweets during the day,
       which as a member of the press he is allowed to do, but
       obviously while he is tweeting things are happening.
       And I understand the point about accuracy of quotations.
       And it is also group litigation, there are 500-odd
       claimants.
   MR CAVENDER:  Indeed, so I am not objecting to it.  But if
       your Lordship is minded to do it, there are a couple of
       things in my submission you ought to consider.  One is
       making any onward disclosure by him subject to an order
       of the court, because he could be made the subject of an
       access request and have to provide it.  And point two,
       I don't know what equipment he has, but it would be
       rather unfortunate if he picked up other conversations
       in the courtroom, potentially privileged conversations.
   MR JUSTICE FRASER:  That is as to his doing his own -- you
       are currently still focused on him doing his own
       recording?
   MR CAVENDER:  Yes.  If you were minded to do that and go
       down that road, one, I think you'd have to make it
       subject that the onward disclosure not be permitted
       subject to order of the court.  But secondly, be
       absolutely clear what device he has, what is the
       capability of the microphone and where he is going to
       place that in the court, because otherwise he could pick
       up privileged conversations.
           Subject to those points I have no further
       observations.
   MR JUSTICE FRASER:  That is on the recording point.  What
       about him having the -- well, it cannot be perfected on
       the basis that the perfected transcript seems to be
       taking about two and a half weeks to get perfected.  But
       what about him having a copy of the transcript at the
       end of the day?  Because it seems to me that is as
       likely to be accurate, if not more accurate, than
       anything he might record.
   MR CAVENDER:  The words he will record would be more
       accurate because the transcript, although very good,
       does, as you will have seen from the first draft,
       inevitably in parts of the conversation with heavy
       traffic there are bits missing --
   MR JUSTICE FRASER:  This is on the LiveNote one.  But they
       are not there when it comes out in the perfected version
       which I am usually getting about 5.30/6 o'clock.
   MR CAVENDER:  My Lord, yes, it is certainly obviously one
       better than that, but there are still points that,
       subject to concern, are corrected in fact.  The question
       is whether the risk of him reporting that from
       a transcript where there are inaccuracies, whether that
       is a good idea, and then when the perfected one comes
       out it is different.  That is not --
   MR JUSTICE FRASER:  But whatever that risk is, Mr Cavender,
       and I understand that there is a possibility of slight
       differences in wording, that risk is probably less based
       on the Opus recording than it would be based on his own,
       isn't it, because that risk is there anyway?
   MR CAVENDER:  My Lord, that is right.  So I'm not --
   MR JUSTICE FRASER:  All right.
   MR CAVENDER:  I am not making any massive point.
   MR JUSTICE FRASER:  I am not approaching your submissions as
       if you are in any way being either unhelpful or --
   MR CAVENDER:  Or objecting.
   MR JUSTICE FRASER:  It is just a question of mechanics
       really, isn't it?
   MR CAVENDER:  Indeed.
   MR JUSTICE FRASER:  Right, Mr Wallis, I am going to tell you
       what my intention is and then we will just have a quick
       exploration of how that is best achieved.  I'm not going
       to allow you to record using your own equipment but I am
       going to order that each day you be given the transcript
       of that day's proceedings, and the correct phraseology
       for the order which would just occur to me is the
       perfected transcript but it seems there might be a more
       accurate way of describing it.
           But just so you know, the realtime transcript which
       comes out during the day is then processed, it's subject
       during the day and immediately at the end of the day to
       some sort of a polishing exercise and a polished version
       is produced usually at about 5.30 pm, that comes out on
       email, both PDF and Word, and I am going to order that
       that be sent to you then.
           It is not, however, as you have heard, the precisely
       100 per cent approved by all the parties final in every
       respect version, but in my judgment it is going to be
       better than anything you might have off your own
       recording equipment, so that is why I am going to order
       you to have it.
   MR WALLIS:  I am very grateful, my Lord.
   MR JUSTICE FRASER:  How that is distilled in words in any
       order I would like you to try and agree between
       yourselves and we can maybe revert to it at the end of
       the day.
   MR GREEN:  My Lord, it might be we can just say the daily
       revised versions, and then I think the perfected one is
       literally --
   MR JUSTICE FRASER:  Yes.  It is obvious that Mr Wallis
       should also have the perfected one if he is getting the
       daily revised one, but I think the daily revised one
       needs to be sent to him.
           What you do with it and how you treat it, based on
       your knowledge that it isn't 100 per cent perfected, as
       far as I am concerned, is not a matter for me at the
       moment because these proceedings are open to the public,
       but the aim of this order is to allow you to have as
       complete and accurate a record as possible each day for
       the purpose of the press.
   MR WALLIS:    I am very grateful, my Lord.  Thank you.
   MR JUSTICE FRASER:  Does that make sense?  Right.
           There are a number of other things that we will end
       up dealing with at the end of the day but I think we
       will get on with the last three witnesses.
           Mr Cavender.


Monday, November 26, 2018

Day 11 - live tweets

Here are today's 144 tweets from Day 11 of Bates and others v Post Office at the High Court adjusted for legibility and formatting. Please remember they paraphrase what was said. Nothing is a direct quote unless it is in direct quotes. You can read today's tweets at Thread Reader or the originals here. Or just scroll down...



A lot of info has gone up on postofficetrial.com over the weekend. Enjoy. #postofficetrial

Live tweets start at 10.30am from court 26 of the Rolls Building.

Nine minutes to go before Day 11 of #postofficetrial gets underway. Very few members of the public in court today, none of the regular claimants (except Alan Bates). A full complement of claimants lawyers but no one at all from the Post Office - visitors or lawyers.

I have seen them, they are here, but not in court yet.
ah - they are filing in now...

I think there are at least three Post Office witnesses due to be cross-examined today. We’re also going to get a closer indication of when the third trial in this action will take place (possibly October 2019).

The first 13 minutes of today’s proceedings have just been taken up with an application I made to the judge. I just had to address him in open court. He has made an order allowing me to receive daily transcripts of the trial….

… which will make my reporting of proceedings going forward much easier as I will be able to provide you with direct quotes from the day on the day as well as live-tweeting my notes.

Michael Haworth is in the witness box. He has been sworn in. He is a Network Engagement Manager for the Post Office. He is being asked what happened during his interview with Mohammad Sabir (lead claimant) when Mr Sabir was applying to become a Subpostmaster in July 2006.

We are focusing on a checklist which PO interviewers say they used to tick off all the issues they needed to cover with Subpostmaster applicants.
Patrick Green QC for the claimants is putting the questions.

QC is testing MH's claims that he has seen interview checklists which are the same as his colleagues Elaine Ridge and Brian Trotter.
QC establishes that this claim is based on MH's imagination.
QC now testing his claim that he would discuss 3 month notice terms with applicant SPMRs
QC would it surprise you that Mrs Ridge told us she didn’t cover the 3 month notice period?
MH I would assume she did
QC so your knowledge of the checklist she used is based...

… on your imagination. And what you think she would say in interview is based on your assumption?
MH seems to accept this
QC during interview, would you have mentioned suspension?
MH no - I would have mentioned notice period and termination
MH now being shown an ACC - an accounting communique

QC so if there’s anything significant that everyone should follow, an ACC would be sent round?
MH yes
QC shows the ACC using voice recording equipment
MH that would have been after the time I interviewed Mr Sabir.
QC I understand

QC there is no ACC telling PO interviewers about a checklist, or that they could be held liable or potential SPMRs about accepting TCs they disagree with or a whole litany of other things they might need to know [I paraphrase]

MH accepts he didn’t do this, and that he wouldn't expect or imagine other PO interviewers to go through these elements.
Judge questions final point - asks if MH would tell applicants they would have to accept a debt (by settling centrally) before rolling over.
MH says he was not aware of this.

We are back to the summary of terms and conditions which applicant SPMs are asked to sign which contains S12:12 of the contract, but which also tells applicants that the summary cannot be relied on for any purpose.
[This was discussed at length with witnesses last week]

QC do you know why it says this?
MH cos it’s just a summary
QC what is your understanding of the losses situation
MH I would tell them any losses (and I gave examples of what could cause them in my statement) would result in a discrepancy and they would be expected to make them good.

QC Mr Sabir says he can’t remember any contractual matters being discussed of the sort you say you would have gone through. Either you didn’t discuss them with him? Is that possible?
MH No I did this in every interview
QC the second possibility that the emphasis you gave it...

… in interview is much less than the business plan.
MH does not accept this. He says he would have given it equal emphasis.
QC Mr Sabir was very clear he was not advised to take independent legal advice. You says you always tell SPMs get independent legal advice. are you sure you did with mr Sabir?

MH yes absolutely sure because I always do it
QC would you tick this off on your checklist?
QC was legal advice a separate item on your checklist
MH no but I would have covered it off.
QC and there’s nothing in those pages that you had in your file about the need to take legal advice
MH no

QC so you’d have to remember that in every interview
MH yes
QC were you the only contracts advisor discussing legal advice
MH I wouldn’t have thought so
QC would you expect other CA’s to talk about getting legal advice
MH I would yes

We have gone to one of Second Sight’s reports from 2014 which says it has not seen any evidence that applicant are advised to get legal advice. Then QC goes to PO rebuttal which says PO is not under any obligation to suggest getting legal advice.

QC why would PO not know that
its own, Contract Advisors, you, were advising applicant SPMs to get legal advice.
MH doesn’t know but reiterates that’s what he did do.

We move on.

Now onto a document Michael Howarth co-wrote containing an operational level agreement about a dispute over Transaction Acknowledgements. It is last marked as reviewed in 2012, but MH does not know if it has been updated since.

QC says MH lays out in the document the meanings of things like settling centrally. Which means a discrepancy is accepted as a debt, subject to them disputing it by calling the helpline.
MH agrees

[QC says this is the same process described Mrs van den Bogerd last week]

QC now onto other document which is called Balancing Horizon and asking MH about what the balancing process
MH does not know about this side of things.
Back to MH authored document in which he says PO acknowledges the stress of a large discrepancy appearing in branch balances.

QC what’s that based on
MH anecdotal experience
QC notes he says his document notes that there HAS to be an effective dispute process. Does he still...

… think that?
MH does, but says he doesn’t know what the current situation is, with his change of role.
QC yes but you would agree that the dispute process has to be comprehensive and satisfactory
MH very much would.

QC could I ask you to contrast the pre-2005 dispute process to the one in place since then
MH can’t remember it
QC let’s remind you
QC goes to Mrs Stubbs situation in 2010 when she was told she could take her “debts” of the balance sheet whilst they were being investigated.

MH can’t remember much about this process.
QC did you ever get calls about problems from SPMRs
MH not really
QC so usually the only time you hear about a discrepancy is from an auditor, when there’s a problem
MH normally yes.

QC going back to Pam Stubbs witness statement in which she is told by the helpline to put the money in to make up the balance in the expectation a TC would come to them down the line. Do you remember this sort of thing happening?
MH no specific recollection
QC could it happen?
MH possibly

QC would the helpline ever report back to you if a branch was calling about shortfalls
MH no. can’t remember that ever happening
[QC still discussing Pam Stubbs - lead claimant - problem in branch. She found a £9K loss in her branch in 2009/2010]

QC did you ever consult the helpline logs to see what the SPM was saying to the helpline before an auditor’s report

MH no I would have access to them
QC did you ever request them?
MH can’t remember
QC would it have been exceptional to do it
MH if the SPM pointed it out [that they’d been calling the helpline] I’d certinaly have a look
QC did you ever show an SPM their helpline calls log on request
MH can’t remember

[we go back to the Pam Stubbs discrepancies and how she wasn’t aware of the process for raising a dispute]

QC from your knowledge when considering suspensions and terminations. Did you understand there to be any magic words an SPM should utter to initiate...

… a dispute?
MH not that I am aware of.
J if someone phoned up and said they were “querying” a loss, how would you expect them to deal with it
MH I would expect that to go though to the next level
J as a query, as a dispute or what?
MH I don’t know.

QC you have given evidence you didn’t understand about settling centrall
MH I understand the principle of settling centrally, but…
QC okay let’s go back. you didn’t understand that branch trading forces the acceptance of the TC on to the SPM in order for it to roll over
MH no I didn’t
QC so you saw settling centrally as debts the SPM had chosen to accept
...
MH the accounts reflect the position in the branch
QC which SPM had voluntarily accepted?

MH not sure

QC have you had Horizon training
MH some
QC how much
MH can’t remember. I was involved in the rollout of H
QC to help them understand how it worked?
MH to advise…
QC to help them understand how it worked?

MH yes.

correction - I previously called a PO OLA an operational level agreement. it is an organisational level agreement.
Please note none of the tweets in this thread about matters in court reflect direct quotes unless they are in direct quotes. They are notes and paraphrases...

We are looking at a PO internal document about improving error reporting, information flow and cutting losses and recommendation all data should be kept for 24 months rather than the 61 days in branch.

This document notes that the Post Office has spent £324,000 on 720 ARQ data requests from Fujitsu re Horison at £450 a pop. QC asks if there is therefore some resistance to asking for these to assist an investigation because of the cost.
MH does not remember a single instance

… of that being the case.

QC when considerin a suspension or termination would you get a report from FSC (PO financial services centre) which has details of what has been going on in branch
MH yes
QC when would you get it?
[gives example of a big loss]
QC would you

… rely on the auditor or speak to the SPM
MH rely on the auditor, would n’t speak to SPM, probably ask FSC for info
QC and when would you get that?
MH not sure
We are taking a 10 minute break.

I am going outside.

Not sure why you needed to know that.
We’re back #postofficetrial.

Going through a PO FSC document which describes the process of writing off losses and which part of the PO takes the hit depending on what sort of loss it is.
QC did you made a decision as a CA to write off a discrepancy?
MH can’t remember if he did

QC have you ever reinstated someone?
MH yes
QC who makes the decision to write off any unexplained discrepancy?
MH don’t know. above my level.

JFSA QC has finished. PO QC David Cavender on his feet for a re-examination.
PO QC asks about some evidence by Elaine Ridge - picks up from the transcript on Day 10. It was said to you that EL couldn’t remember 3 months notice. Now you see what she actually said.

QC does that help?
MH yes. as far as I remember it was covered in all interviews.

Sorry - that was with specific regard to PO interviewers advising applicant SPMRs to get legal advice before signing. MH is saying this would have been covered in every interview.

Judge asking about MH’s witness statement. He says he understands he can’t remember Mr Sabir
J what do you understand by your phrase “something untoward”
MH a major breach of their contractual obligation
J would you explain that to them?
MH yes.
J have you ever been asked what “something untoward” means?

MH can’t say I remember
J asks about MH’s example of double keying a zero. 
MH explains that I customer might give you £90 and you key in £900 and give the customer a receipt for £900. But only £90 has gone into the till. You are liable for remaining £810.
[ouch]

Judge understands. Moves on to next point. You say you always explained that SPMC was long and detailed and it was important to take independent legal advice. Would the SPMs have that document at that time?
MH No
J would you have it with you?
MH I would keep a copy of it

MH but I would only ever refer to the size of it. I would go through the summary of terms in detail
J when did they get it then?
MH my understanding is that it would be sent to them when application was succesful.
Michael Haworth is done in the Witness Box.

Next witness has been sworn in. Andrew Carpenter Agents Contract advisor.

QC asked how many interviews he does a year. 
AC says he did 8 last year and that’s about average
QC asks about Ms Stockdale’s interview
AC says it happened in Leeds
QC notes it doesn’t say that in his witness statement
AC agrees
QC when did you notice this?
AC possibly last week
QC why did you not think to change it
AC don’t know

QC did you ever think it would take place in her branch?
AC no
QC so why does it say it did in your signed witness statement?
AC does not know
QC goes to part of witness statement where AC talks about what he would have done in interview - going through a checklist
QC do you still use a checklist?
AC yes
QC do you have your own checklist?
AC no. I use the official one
QC you use the one currently online
AC yes
QC you don’t have any old checklists any more.
AC no

[goes on to ask questions about personal services]

QC establishing the process for explaining the need for a minimum of 18 hours behind the counter (not with all contracts) to qualify for holiday and sick pay.
MH explains how this works.
QC asserts that any agreement to work a certain number of hours would be notified to the Post Office, but would not form part of the agreement with the SPMC.
MH agrees

[now on to TUPE - former assistants can be TUPEd over into the employ of the new...

… SPMR and QC asking about how much advice an incoming SPMR would get from MH on TUPE - not a great deal, as MH says]

QC now going through MH’s internal report on Liz Stockdale’s interview. It is talking about her staff plan, training plan and very positive about...

… her business plan, her character, her enthusiasm, but notes it is High Risk, but adds there is a low start up cost and has parents willing to help financially. Why flagged as high risk?
MH did not have 3 years accounts from previous SPM - automatic red flag
QC would you go through your checklist after the biz plan (BP) discussion?
MH yes

QC formed the view it was a sound application then by this stage
MH yes already had the BP beforehand and then the presentation gives you a good idea
QC so what could throw a spanner in the works…?

MH interview is centred around the presentation and BP. Once all that area is concluded that’s when I’d move on to the checklist.
QC it says you would discuss the contract carefully with Liz Stockdale
MH yes

QC would she have it with her?
MH no. well, maybe. I wouldn’t know she may have been sent it
QC would it have been useful to go through the contract in detail
MH she could have raised it

QC goes back to witness statement and how AC would raise the 12:12 issues - you would have explained errors by your or your staff made SPMs liable.
AC yes
QC because they wouldn’t be liable for a PO mistake?
AC no
Judge would you discuss PO errors in an interview?
AC no

QC are you aware of an Accept Now button on Horizon
AC isn’t clear what he’s talking about.
QC shows him a document. Do you see the diagram. Processing Options [presumably for Horizon]. Seek evidence. If it’s not available it goes to Do You Want To Accept TC Now?

AC was not aware of this button 
J not a level of detail you get into
AC no

[there is a problem with the live transcription and the document viewer. Judge decides to break for lunch whilst it is being fixed]

Everything is fixed and we’re back after lunch. Andrew Carpenter, Post Office Contract Advisor (AC) is in the witness stand. Patrick Green QC is asking questions for the JFSA.

QC asking what documents AC has seen to refresh his memory of interviewing Liz Stockdale (lead claimant) - (his witness statement says he’s seen a number of documents). asks who he was shown them by.
AC now saying he isn’t sure what documents he’s seen.

QC showing him some documents to see if they might be the documents he was shown.
AC they are looking at it. it is a checklist of his interview with LS.
QC why he didn’t think to exhibit this to the court
AC says it is the same as a previous document but in...

…. in computer language.
QC wants to go through this denser document, I think (remember I can’t see any of the documents they are discussing) and asks about things he has checked off.
AC confirms he would have checked off what he discussed with LS

QC says in your WS you says you would have discussed fraud - would you have spent much time on it?
AC well, the Business Plan takes up most of the time
QC would you have not discussed it all?
AC no we...

… definitely would have discussed it.
QC and that was everyone’s standard practice
AC don’t know
QC but it was yours
AC yes

[we are having a discussion about the agent/PO relationship]
QC how does the PO office process transactions as far as you understand it? Would you have said anything about it to LS?
AC not quite understanding the questions. QC breaking it down
QC when LS sells a book of stamps...

…. and enters into Horizon. it doesn’t just stop there does it?
AC no
QC there’s a whole bunch of other processes which go on which the Post Office handle
AC yes
QC would you discuss that with LS?
AC no it would be too much detail.

Now onto post-suspension exchange of communication between Andrew Carpenter and Liz Stockdale. She was suspended. She emailed asking about her rights to appeal. He sent her a standard letter confirming her suspension.

She emailed a month later having heard nothing.
She emailed another 4 days letter. She wants to know why she hasn’t been contacted.

AC is saying it is in the hands of her lawyers so he left it in the hands of the Post Office’s
QC you could have told her this, couldn’t you?
AC I was being advised by the PO lawyers.
QC and I won’t ask you what that advice is
[legal advice is privileged]

[There is a very long exchange about AC’s communication with LS - how much she was told about what was going on and by whom and when and what is going on behind the scenes.]

[I will request these documents and look at the transcripts to knit this together. There is a pretty intense grilling going on here about what LS was told and what AC was actually doing in terms of investigating her discrepancies]

QC notes she was being asked to hand over any information that LS might have to support her investigation into her losses. But she was not being given any information at all about what was going on during her suspension.
AC explaining that when LS did provide info they...

…. did investigate.

[okay we’ve got to the point of this. LS was already paying back discrepancies and LS said in an email she’d been told that whilst doing this she could NOT settle centrally...

… she was later audited, and with a £7K discrepancy suspended, investigated and terminated….

… QC wanted to know if it was right that LS couldn’t settle centrally. AC said she could. QC wanted to know what AC had done to investigate LS’s understanding that she couldn’t...

… settle centrally. AC says he was investigating the whole case. QC points out that in his letter of termination AC does not refer to LS’s understanding she could not settle centrally. AC says that she could have done. QC asks again what he did to investigated that (possibly)...

… erroneous understanding (which LS claims she had been told by another PO employee). AC I think we limp to a conclusion that he may not have done anything specific on that.
JFSA QC has no further questions

PO QC on his feet. He asks AC to explain the amount of information that would have been available to LS whilst the discrepancies built up.
AC does this very clearly and says there would have been a lot.

Judge now has questions
Judge wants to know about total debt on day LS was suspended. What did AC understand on LS’s ability to settle centrally.

AC no block on her settling centrally. She would have had the options that she always had. My understanding is that she wouldn’t be able to request..

… a repayment plan. But she could still settle centrally.
J so if she gets a £5K discrepancy whilst she’s on a repayment plan and she settles centrally what happens.
AC she gets an invoice and if she can’t pay the invoice we investigate
J were you part of the suspension of LS?
AC yes. I would have recommended it to my line manager

J were you aware she was already a claimant when you recommended her suspension?
AC no. But I found out pretty quickly the same day.

PO QC back on his feet asking about settling centrally. If LS had a £5K discrepancy, but couldn’t request a repayment because she was already on repayment. What happens? Could she dispute it?
AC yes - through me.

PO QC what about the role of the helpline in this?
AC the helpline would allocate this dispute to whoever would be the most relevant.

J is asking if the PO still sells postal orders
AC yes
J if someone buys a postal order and its cashed elsewhere in another Post Office - that does not involve any external clients.
AC correct
J stamps?

AC no that’s a Royal Mail product
J anything else that is just a PO product
AC I’m on the spot. I can’t think of one now, but I might think of several later.
J don’t worry it’s fine. It was just for personal interest.
J I can’t imagine there are any further questions, but it seems there are

[JFSA QC is on is feet]
QC it’s not a question more an observation
[judge is not interested in observations whilst a witness is on the stand. QC pushes back saying its relevant to a document witness...

… hasn’t seen. Judge says it’s not for now. JFSA QC can put it in his closing submissions if he wants, which J is sure he will. JFSA QC sits down]

Judge rises. 10 minute break.
#postofficetrial

Brian Trotter, last PO witness in this trial has been sworn in. He is a Contracts Advisor. The PO QC is taking him through the transcript of an interview by he undertook with Louise Dar (lead claimant) when she was planning to become an SPMR.

PO QC asks BT why he didn’t deal with the third part of the inteview dealing with contractual matters.
BT there was no point as her business plan didn’t stack up and I told her that.
JFSA QC asks if he was aware there was a transcript of his iv with Louise Dar
BT yes

QC were you provided with it?
BT no
QC did you ask for it
BT no
QC now asking about his witness statement in which he says he finds it hard to recall what happened in Louise Dar’s interview

QC moves on to what he says in his WS about the Business Plan not being approved by the finance team. Why have an interview if the BP had not been assessed as financially viable?
BT it was approved for interview.
QC so your witness statement is wrong?
BT yes

QC when did you notice this?
BT probably just now.
QC is it because you need a reason to explain why you didn’t go through the checklist of contract with Louise Dar?

[a long discussion ensues about whether her business or her business plan was considered viable by the post office]

QC why are you being evasive Mr Trotter?
BT I’m not
QC is it because you need an explanation

… for you saying in your witness statement that you covered the checklist in LD’s interview and yet the transcript of the interview you didn’t.
BT I covered the checklist in the 2nd interview
QC that’s not how this reads.
QC your WS says you always follow a structure, and we are given a checklist. And we have this document - which shows interview notes and a checklist. With contractual status. With a tick there. This is the file which relates to the first interview.
BT I’m not sure.
BT it’s undated I’m not sure.

QC But this is something you exhibited before the transcript of your interview was disclosed. and with the date on the front being 9 Dec, it looks like it referred to the same date.
QC says handwritten ticks on a document dated 9 Dec are your ticks and they relate to the date of the first interview
BT I don’t believe they do
QC and yet the transcript of this document makes it clear you didn’t discuss these. 
BT I knew about the tape
QC but you didn’t believe
QC it was going to be disclosed

[JFSA QC is pulling apart BT’s assertion that his interview checklist refers to the second interview he did with LD as he has now drawn his attention to a second checklist for a second interview]
BT is getting a bit don’t remember-y here.

QC the bottom line is you didn’t got through the checklist with LD at the first interview
BT no
QC and you didn’t go through it at the second interview, did you
BT I did
QC it was more an informal chat
BT yes it was more informal
QC you didn’t intent to make a full...

… formal assessment here, did you?
Quotes BT saying in a memo he doesn’t intend to file a full assessment.
BT that means a full full assessment
QC when did you first become aware that the recording of your interiew did not

… record you going through the checklist
BT couple of months ago
QC did you not want to change your witness statement that made it clear you always went through a checklist
BT no
QC did anyone ask you to?
BT no

[goes to other parts of BT’s evidence as opposed to the LD interview transcript]
[QC reads out part of the transcript in which LD seems to have some concerns]
QC is it fair to say LD expressed some concerns about taking on the branch, or not
BT not
[BT arguing that overall LD was very keen]

QC notes LD expresses some concerns her accountant passed on
BT but overall impression she was keen

QC she expresses some concerns about training?
BT that’s not how it felt
QC asks about her query on 7 days or 10 days training
BT I don’t see that
QC top box
BT yep

QC she was concerned about staff training
BT at that point I would clarify about the various modules as you can see I did.
QC earlier you were not prepared to accept you suggested she give it a go
BT we had an open and frank conversation

QC quotes from interview transcript
“I’m looking for comfort here…. we’re looking for comfort. It’s me who is making the decision…” see that?
[QC keeps pointing out from parts of the transcript that there does seem to be some suggestion from BT that LD should go for it]

QC quotes BT from transcript: “And I’m just trying to advise you, because you’re the type of person we want."
QC also quotes BT saying “I’m just trying to advise you.” and LD saying “You know best."

QC suggesting the Post Office wanted a Post Office branch in Lenzie.
BT I told her she was a very strong applicant.
QC do you accept you advised her
BT yes

QC and in the light of that you encouraged her to apply?
BT [pause, and then in a slight yelp] Yes!

QC LD says you encouraged her to apply and she also said in her witness statement (before she heard the transcript) that you discussed legal advice and she got the impression that she could trust BT.

BT don’t think we discussed legal advice at all
QC so you didn’t recommend
… she take any legal advice?
BT she was taking a lot of advice from her father. I remember that.

QC so when we look at par 8 of your witness statement about always going through the checklist why didn’t you make it clear

… that in this instance you didn’t go through the checklist.
BT I don’t recall going through the checklist.
QC then why didn’t you make that crystal clear in your witness statement?
BT I don’t know.
JFSA has no further questions
PO QC on his feet to clarify a point.

Judge asks about a document which the JFSA QC can’t find so he won’t ask Brian Trotter any questions.
Judge asks to be sent a document and wants to be told about a document which he wouldn’t allow JFSA QC to

… raise wrt to previous witness.

We have finished Post Office witnesses. We are now discussing closing submissions.
Judge orders QCs to get them to him by Friday noon.

Judge also wants an agreed list of common issues which doesn’t refer to specific pleadings. It has to be a stand alone document without any specific pleadings. “I’ve got pleading references coming out of my ears."

Judge now asking about interview with Liz Stockdale which the Post Office recorded, encrypted and now can’t get into. Judge wants to know the extent to which any effort has been applied to unecrypting it.

Judge points out that it might not have much wider relevance to the common issues but it may have a bearing on Liz Stockdale’s individual case.

Judge is minded to make an order requiring further steps to be taken to progress this
PO QC what steps?
Judge that’s what I’m inviting you to have a discussion with me about.

Judge my experience is that when it comes to disclosure at the first look someone says something is encrypted and can’t be unencrypted and then when specific focus is brought to bear, ways are found.
PO QC couldn’t possibly comment

Judge I am going to draft an order for the Post Office to get an IT specialist to unencrypt that file and I am going to go away and write that myself, on a reasonably tight timeframe. And if that doesn’t happen I will require a...

… witness statement in some detail as to why it was not possible, unless there is anything you are about to tell me as to why I shouldn’t.
PO QC my lord we are in your hands.

JFSA QC now pointing out that something appears to have changed on the NFSP website since Mr Beal from the Post Office was cross-examined on the NFSP on 15 Nov.

JFSA QC notes that the About Us page on the NFSP website has been changed to add a link to the Grant Funding Agreement which the JFSA QC has suggested was not that obvious when he cross-examined Mr Beal.

Judge has ordered disclosure of any emails to, from or which have been copied to Mr Beal between the Post Office and the NFSP which in any way concern a change to the NFSP website re the Grant Agreement, by noon Wednesday next week.

Judge says there are three orders made today - the one concerning Mr Wallis, the one about Mr Beal and the one about getting Ms Stockdale’s interview recording unencrypted so it can be transcribed and we can find out what’s in it.

The latter two have just been discussed. The former was an application I made this morning, which has resulted in the judge ordering I be given the daily amended transcript as soon as it is made available to both claimants and defence at the end of the working day.

Judge recognised both need for accuracy in reporting and open justice principle. But soon I’ll be able to tell you what he said word for word rather than paraphrase, as I will have the Day 11 transcript...

… and all previous 10 days, on his order. As I said in court “I am grateful, my Lord.”

That’s it for today’s live tweets AND for this week, but I will be posting up interesting documents as the week goes on.

If you have enjoyed any of this...

… of have found it useful, please chuck a couple of quid in the tip jar at postofficetrial.com which is where new documents and contextual articles will be published.
I’ll get you a write up of today by 9.30pm.

And PLEASE REMEMBER nothing in this thread is a direct quote unless in direct quotes.

Cheers.

Day 11 write-up: the joy of text

I did not expect to be addressing the court myself this morning, but at the invitation of the judge I was asked to explain why I had asked to make an unofficial audio recording of court proceedings for note-taking purposes.

The judge asked why I didn't have the daily transcripts. I replied I had made repeated requests and so far had not been given them.

After some discussion the judge refused my application to make audio recordings of the court proceedings, but made an order that I be forwarded the amended daily transcripts of the trial as soon as they are circulated. As he said "the aim of
 all of this is transparent and public justice".

As I said (and I know this for sure, because I now have the transcript):

"I am very grateful, my Lord."

I will post up the full exchange in due course, as it may be useful for journalists applying to the courts for a contemporaneous record of proceedings.

Mr Haworth

Once that had all got out of the way we had the first of three Post Office witnesses, starting with Michael Haworth, a Network Engagement Manager who has been with the Post Office for 39 years.

Most of today was focused on what Post Office interviewers would say to Subpostmasters when they were being interviewed as against what they did say. Particularly what the conversations they had with some of the six lead claimants.

There is some considerable disagreement between the claimants and the Post Office about whether or not they received their contracts before they started their jobs (many claimed to receive and sign summary terms rather than the full contract) and whether the full extent of their potential liabilities with regard to Horizon discrepancies were ever fully explained.

Since 2006 it has been Post Office policy to record applicant interviews. Before that a checklist was relied on.

Because a lot of interviews took place a long time ago (notes are lost, memories fade) and because many Post Office interviewers conduct such a huge number of interviews during the course of their duties, their witness statements often contain no direct recollection of what happened with specific regard to the experiences of the lead claimants in this trial.

As a result their statements tend to be filled with assertions about what would have happened rather than what did happen. On Thursday last week an exchange between Kathleen Donnelly (KD), one of the claimants' barristers, and Michael Webb (MW), a long-serving Post Office Training and Audit Advisor, highlighted the limitations of this making assertions:

"KD: In your witness statement at paragraph 15 you say:
"I was not often asked any questions about these documents on the day of a transfer audit. Having done several hundred audits, including transfer audits, by September 2006, I was very familiar with the documents that needed to be signed and believe I would have been able to answer most, if not all, questions myself ."
MW: Yes.

KD: ... If asked what are postal instructions, what would you have said?
MW: I would have had to refer that back to either our HR department or the contract advisor.

[...]

KD: Are you aware that as at 2006 the way the contract itself, the Subpostmaster contract, was presented, it had on the front about 40−odd pages of variations on the front?
MW: No, I am not aware of that at all.

KD: So nobody ever asked you to explain how those variations −−
MW: No, no. It wasn’t part of our job at all .

KD: If they had, would you have been able to answer?
MW: If anybody had seriously... and I honestly don’t think anybody has asked me any questions about the transfer papers at all, I would have had to refer it back to the people who were involved in the contract, the contracts advisor.

KD: ... Had you ever read the contract?
MW: No. It is really not part of our job."

And it was much the same today. This time it was Patrick Green QC, cross-examining for the claimants. He put the following to Mr Haworth:

"QC: If you look at paragraph 10 of your witness statement, you say:
          
"The standard order of the interviews I conducted
 was:
          
10.1 Asking the applicant questions on the various
 competencies ...
          
10.2 Running through the 'brief summary of certain
 sections of the subpostmaster's contract (which
 I detail further below in paragraph 13), together
 with other areas in the interview checklist"
           
You then say:
        
 "This checklist is referenced in more detail in the
 witness statements of Elaine Ridge and Brian Trotter."

MH: Yes

[...]

QC: Elaine Ridge said she had
 her own personal one.  How do you know what was in hers?
  
MH: I don't know exactly what was in hers.
  
QC: So how can you tell the court that it was the same as
 yours?
 ... I think you were suggesting to the
       court a moment ago that everyone would have been working
 from checklists that had the same items in them.

MH: No, we were talking about the competency questions.
  
MR JUSTICE FRASER:  Let me just clarify this because I think this might take up a vast amount of time longer than it
 merits.
 You said a few minutes ago that your interview checklist contained the same key points as the
 checklists used by the others.
MH: That is correct, my Lord.
  
MR JUSTICE FRASER:  Mr Green asked you if you had seen the checklists used by the others and I am a bit confused as to whether your answer to that is yes, you have seen them, or no, you haven't.
   MH: No, I haven't seen all the checklists used by all the
 other contract managers at that time.
  
[...]
QC: Have you ever seen Mrs Ridge's personal checklist
 that she used?

MH: I haven't seen her personal checklist, no.
QC: So you are not able to say that you were using the same checklist as Mrs Ridge, are you?

MH: I can't say definitely I was using the same list but I would imagine it would contain the same key points.

QC: So it is based on what you imagine?
MH: That is [..........] because I have never seen Elaine's Ridge's
 checklist, no.
"

We then got on to the discussion Mr Haworth had with Mohammad Sabir (a lead claimant) about contractual issues, during his application interview. Mr Haworth was absolutely insistent he would have suggested Mr Sabir get legal advice:

"I would have covered
 that off when I covered off the brief sections of the Subpostmasters contract
... I would have to remember to say it and I always said it"

Mr Green asked: "Was it something you would expect all the other contract
 advisors would have done?"

to which Mr Howarth said "I would expect that, yes.
"

Mr Green drew Mr Howarth's attention to a Post Office rebuttal document produced in 2014, used to oppose the conclusions of Second Sight, the independent investigators it commission to investigate Horizon.

Second Sight had said: "We have not seen any evidence that Post Office either advises or requires subpostmasters to seek independent legal advice before taking up their posts."

The Post Office had responded "There
 is no obligation on Post Office to make this
       recommendation.  It is however open to any subpostmaster
 to take legal advice on the contract at any time."

Mr Green asked: "If it is right, as you have suggested, that contract
 advisors were typically encouraging people to take legal
 advice, why would Post Office not know that in 2014?"

Mr Howarth did not know.

Mr Carpenter

Next up was Andrew Carpenter. Another long time Post Office employee. Mr Carpenter's evidence did not start well. Like Mr Haworth, he interviews applicants for the Subpostmasters role and Mr Green QC wanted to ask him about his witness statement.

Mr Carpenter could not remember interviewing Liz Stockdale (a lead claimant), but it did say in his witness statement that he interviewed her in her prospective branch in Sandsacre, East Yorkshire.

QC: Can you even picture yourself
  having the interview at Sandsacre branch, or not really?
AC: The interview wasn't at the branch, it was in Leeds.
 [...]

QC: When did you first notice that your witness statement
 was wrong?

AC: Probably very, very recently, actually, having read
 through it before coming in.  I hadn't realised...

QC: Was it last week or today or...?
AC: I don't know, in all honesty.
QC: Do you know why you didn't ask to correct that?
AC: No.  No.

QC: Because when you wrote this you couldn't even remember where it was, could you?
AC: I think that is fair comment but I do remember that it
 was in Leeds.  We don't do the application interviews in
 branch.

QC: So you would never have thought it was in branch?
AC: No.
QC: Ever?
AC: No.
QC: Do you know why in your witness statement, signed by
 you, it says that it was, or appears to?

He didn't.

Mr Trotter

The close reading of the witness statements continued with Mr Brian Trotter, another long-serving Post Office employee who interviewed Louise Dar (a lead claimant) about her job.

This was a bit tricky because just before Mr Trotter was cross-examined by the claimants QC Patrick Green, the Post Office's QC, David Cavender, got to his feet and asked Mr Trotter about his interview with Mrs Dar, particularly the proposed "third part" of the interview in which he was due to discuss her contractual obligations:

DC QC: I observe we don't seem
 to get to the third bit.
BT: That's correct.
QC: Can you tell me why that is?
BT: The reason I didn't cover the third bit during the interview was that when we... when I reviewed Mrs Dar's
 business plan I found it unviable and unsustainable, and I told her that during -- or at the end of the
 interview. That was the reason why I decided not to
 cover the contractual reference during the interview.

This was news to the claimants' QC, Patrick Green, who piled in:

PG QC: Mr Trotter, when you wrote this witness statement
 were you aware that there was a recording of your
 interview that was still available?
BT: I was aware there was a recording.
QC: Were you provided with a transcript of it before you made your witness statement?
BT: No.
QC: Did you ask for it?
BT: No.

In his witness statement recollection of interviewing Louise Dar, Mr Trotter seems to assert that he had gone through everything on the checklist in his interview with Mrs Dar.

But then the transcript of the interview came to light, and he clearly hadn't.

Mr Green wanted to know how he explained this. Mr Trotter had difficulty and the exchanges got quite snappy, leading to this:

QC: Why are you being evasive, Mr Trotter?
BT: I am not being evasive. [...]
QC:  Is it because you feel awkward that your witness statement gave the impression that you would have followed a structured format for all interviews and then
  the tape shows that you didn't? Is that what you feel anxious about?

BT: No.


Mr Trotter then asserted the checklist he produced for his witness statement, recording subjects covered in the non-existent third part of his interview, was actually referring to a second interview that he held with Mrs Dar.

Mr Green then produced evidence of two checklists. One which supposedly referred to the first interview and a second referring to the second.

As I say, tricky.

In general quite a few Post Office witnesses have given evidence around the subject of what should be done and what therefore would have been done.

Mr Green has made a fine art of pulling many of those assertions apart to at least expose the possibility (and at most, factually demonstrate through disclosed evidence) that what actually happened must have been wildly different from those assertions.

This is a tricky enough prospect at the best of times because quite a few of the specific cases we are talking about happened a long time ago (2001 - 2003 being the earliest), but if the claimants are going to be successful in this litigation, they have to show that on the balance of probabilities, that at least one of the 23 issues that have been addressed in court over the last three weeks are relevant to every claimant. That is a tough ask, and one the Post Office's QC David Cavender has already indicated is going to be highly difficult.

The Post Office believes this legal action "lacks merit", and is vigourously defending the claim.

The trial continues on Monday 3 December with four full days of closing submissions. I'll be there. 

Sunday, November 25, 2018

Bates v Post Office: Ten memorable moments of the first ten days

In no particular order:

1) The Post Office's admission it has bet the farm on Horizon. On Day 1 of the trial (7 Nov) the Post Office says in paragraph 3 of its opening submission that this legal action by the JFSA represents an "existential threat" to its entire business. Let's just repeat that, this legal action by the JFSA threatens the existence of the Post Office. News editors take note.

2) The Post Office CEO's demand to her staff via email that she "needs" to tell MPs there is no remote access to Horizon. This arose on Day 9 (21 November) during Angela van den Bogerd's evidence and you can read about it here.

3) The apparent admission by Helen Dickinson, Security Team Leader at the Post Office (Day 9, Wed 21 November) that she believed some Subpostmasters had been prosecuted simply to get a Proceeds Of Crime Act order, which enables the Post Office to take a Subpostmaster's assets to the value of a Horizon discrepancy. You can read about that here.

4) The moment on Day 8 (20 November) when Angela van den Bogerd, Director of Development and the most senior Post Office witness, said she didn't feel able to comment further on a piece of evidence because she was "coming to it cold". This caused some consternation amongst the JFSA's legal team. They told Mrs van den Bogerd that they had only recently received her signed witness statement for the Horizon trial, and in it, she dealt with this specific piece of evidence. Mrs van den Bogerd then admitted her statement to the court about coming to the piece of evidence cold was "a mistake". Read about that in the Day 8 write-up here.

5) The repeated assertions in passing by Post Office witnesses that Subpostmasters are liable for ANY losses in their branch, and the repeated assertions in Post Office literature that Subpostmasters are liable for any losses in their branch despite, the JFSA's QC taking quite some considerable amount of time to demonstrate (and have other senior Post Office witnesses agree) that this was contractually inaccurate. Subpostmasters, as we now know, are only liable for any losses in a branch caused by their own or their assistants "carelessness, negligence or error". Read the live tweet notes on Day 6 (15 Nov), Day 7 (19 Nov), Day 8 (20 Nov), Day 9 (21 Nov) and Day 10 (22nd Nov).

6) Patrick Green (claimants' QC) comprehensive trashing of the National Federation Subpostmaster's supposed "independence". You can read about how that came up in court as the last point in my write up of Day 6's events here, the NFSP General Secretary's "signed in blood" email here, and my subsequent comment piece here.

7) The release of an internal Post Office document on Day 1 (7 Nov) of the trial called the Receipts Payments Mismatch Meeting Memo outlining a serious Horizon error which had been going on for 5 months, the fact no Subpostmasters had been informed, the number of branches involved, and the proposed methods for fixing it, one of which involved remotely accessing branch accounts. Read it here.

8) Elaine Ridge, the Post Office Contracts Advisor who suspended Lead Claimant and former Croydon Subpostmaster Naushad Abdulla telling the judge, the Hon Mr Justice Fraser, that a spreadsheet containing information about the source of some of Mr Abdulla's discrepancies would not have been of any use to her in deciding whether or not to recommend Mr Abdulla for termination. Read it in the Day 10 (22 Nov) live tweets.

9) The Post Office being unable to defend its rather quaint practice of not allowing a suspended Subpostmaster to have a lawyer present during a post-suspension interview (Elaine Ridge: "it's just the way it is"), despite agreeing that a) during that meeting Subpostmasters could be accused of the criminal offence of false accounting, and b) the taped interview could be used by Post Office as evidence to support a prosecution. Read it in the Day 10 (22 Nov) live tweets.

10) Evidence from Louise Dar, Lead Claimant, that she was told to: “get around” Horizon by altering stock figures to balance, something she said "was obviously not helping me to find the specific problem, and was just covering it up. They told me they ‘shouldn’t be doing this’ but that this was the only way around the problem I had. This felt wrong and it was concerning to me that there were little ’work arounds’ to dealing with the Horizon system, this really suggested that there was some kind of fault in the system." Read Mrs Dar's witness statement paragraph 118, and see my live tweets on her being challenged on this on Day 5 (14 Nov) of the trial by the Post Office's QC, Mr David Cavender.

Bates v Post Office: Did the Post Office prosecute Subpostmasters in order to seize their assets?

On Day 9 of the Common Issues trial (21 November 2018), there was an exchange between Patrick Green, the claimants QC, and Helen Dickinson, Security Team Leader at the Post Office.

In her witness statement Ms Dickinson neatly explained how Subpostmasters find themselves in a pickle with Horizon.

"In my experience, a large majority of Subpostmasters are honest. Those that do commit acts of dishonesty are not necessarily "bad" and often don't have histories of dishonesty.... when completing their accounts, the Subpostmaster might record that a shortfall has been made good, without actually putting in the missing cash. This may be for something like the simple reasons that they have been unable to go to the bank to draw out the cash...."

she goes on to say:

"... at the next accounting point, the shortfall has grown, now bing the accumulation of the unsettled shortfall from the previous month and anything accrued in the current month. The shortgall to be made good is now larger and nobody and Post Office has noticed the shortage in the cash so the Subpostmaster does the same again. Throughout they are rationalising to themselves that they will correct the inconsistency later. This sequence continues for many weeks or month until the shortfall is so large the Subpostmaster can no longer afford to pay it. Also the accounts are now in a muddle because to cover up unpaid shortfalls, the Subpostmaster has to make more and more false entries in the accounts, eg by inputting false cash declarations. By this point it may be very difficult to separate the false entries for the real ones or, more importantly, to separate a loss caused by a genuine error and one caused by a false entry."

We know a number of Subpostmasters have been criminally prosecuted by the Post Office for false accounting and chased for their discrepancies under the Proceeds of Crime Act. It is something that Helen Dickinson herself as done. Ms Dickinson seemed like quite a nice person, if not one of the brightest tools in the box (she is a business fraud investigator and had never heard of the Enron scandal, one of the biggest business frauds of all time), and surprisingly incurious about what might be causing losses (she claimed to know very little about Horizon or how to interrogate it). 

Her job was to help get a prosecution of a Subpostmaster, and then go after their assets. The problems they may have had with Horizon didn't seem to concern her.

At the end of Ms Dickinson's evidence, Mr Green asked the question:

"Were there cases referred to the investigation team so that you could trace their assets through POCA?"

to which Ms Dickinson replied

"In some cases, yes."

This quote has not been checked against the agreed, signed-off transcript, and even then, the meaning might be ambivalent, but one interpretation of this question and answer was that Ms Dickinson was admitting that the Post Office sought criminal conviction in order to take Subpostmasters assets.

If that is what Ms Dickinson meant, m'learned friends at the Criminal Cases Review Commission might have one or two things to say about the convictions of 30 Subpostmasters they are currently considering.

Saturday, November 24, 2018

Bates v Post Office: Internal Post Office email chain "she is questioning the integrity of Horizon"

Great email chain. Sample quotes:

"I think we need to... go and see what the ex-spmr is holding. I think this is going to be a very onerous task, but I can't see how we can let this one go considering she is questioning the integrity of Horizon."

"We are talking about £28k, a potential flag case, with MP's involved. The spmr is questioning the integrity of Horizon... it looks like there are numerous activities that have taken place, including somebody sending in an auditor who sat with the spmr for half a day which clearly made matters worse... I don't know why we were never approached to deal with this as a criminal investigation in the first instance, perhaps it was felt that it wasn't at the time. The auditor supposedly witness all transactions for half a day and witness Horizon being short, thereby corroborating her account and also now a potential witness for her... She has also joined the spmr's fight to question the integrity of Horizon. As it stands no investigation has taken place by us, various intervention has probably complicated this, yet because it is a question of Horizon integrity we can't simply ignore it, or drop it"  [my italics]

Read it below: