Monday 26 November 2018

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
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
 ... 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
 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

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.