Monday, July 1, 2019

Horizon trial day 21: Finding Wally

Patrick Green QC
Today was the penultimate day of the Horizon trial in which we were treated to a five hour scoot through the claimants' case by Patrick Green QC.

The full written closing can be found here. It is an immensely readable document, and once you've  shimmied your way through that you should avail yourself of today's transcript. After that you will be fully up to speed on what the claimants are hoping to get out of the Horizon trial.

Or you could just read my report of today's proceedings, which starts here:

Whither Gareth, again...

There are a lot of elephants populating court 26, which, being one of the Rolls Buildings' Megacourts, poses no issue. There are rolling plains where herds of chairs roam free and the farthest corners of the room are not visible to the naked eye, which makes the acoustics a struggle at the best of times.

Several big beasts (metaphorically speaking, of course) were present, not least claimant former Subpostmasters Jo Hamilton and Mark Kelly, lead claimant Alan Bates and his wife Suzanne Bates, Second Sight Managing Director Ron Warmington, former Subpostmaster Helen Baker, blogger and former Subpostmaster Tim McCormack, Post Office director Angela van den Bogerd, Post Office independent IT expert Dr Robert Worden, barrister and electronic evidence specialist Stephen Mason and the limping, stoic Karl Flinders from Computer Weekly, who couldn't stay away.

Those present heard Patrick Green plod through the claimants' closing, raising some familiar arguments and positing a couple of new ones.

Disclosure was the morning's big moan. Mr Green said the Post Office's "less than forthcoming" attitude to disclosure had significantly harmed the claimants' case. He pointed out that back in 2016 the Post Office's lawyers were questioning the existence, denying the relevance and certainly refusing to hand over Horizon's Known Errors Log, yet in 2019 the Known Error Logs or KELs were central to both independent IT experts' investigations.

One particular beef of Mr Green's was the Post Office witnesses' reliance in their statements on things other people had told them. A name that kept coming up was Gareth Jenkins, the Post Office's IT expert in the Seema Misra trial and the golden elephant in the room.

Mr Jenkins was relied on by witnesses for advice, he appeared as a name in a lot of source documents and he was working at Fujitsu top level support on Horizon for many years. He was Horizon Chief Architect before the hapless Torstein Godeseth and yet he took no formal part in what could be described as the trial of his life's work.

Where's Wally?

The claimants were extremely peeved about this. They wanted a witness statement from Mr Jenkins and the chance to cross-examine him. Or as Mr Green memorably said:
"There has been six weeks of almost Where's Wally in relation to Mr Gareth Jenkins who persistently pops up in the source material for Post Office's evidence and yet has not been called. We respectfully say that the explanation for that is
 unsatisfactory."
Mr Green drew the judge's attention to a letter from the Post Office solicitors which suggested the availability of Mr Jenkins was privileged information. The claimants took that to mean he was working on a shadow technical team at the Post Office.

This so-called shadow team, allegedly advising the Post Office legal team on what documents could and should be disclosed to the court was brought into the light by Mr de Garr Robinson on Day 1 of the Horizon trial thus:
"My Lord, all I would say about shadow experts is two things. First of all, dark inferences are drawn as if having an advisor advising you before you have actually appointed an expert is something that is somehow untoward or inappropriate. My Lord, in cases of this scale it is commonplace in my experience.... There appears to be if not a suggestion then an implication sought to be achieved that the technical advisor has in some way been used in order to shield the experts and the parties from adverse documents. My Lord, if that is the suggestion being made, it is wrong."
Mr Green pointedly said that because of the assertion that Mr Jenkins availability and whereabouts during the trial was privileged, the claimants thought he must have been advising this shadow team. The Post Office said no - they didn't call him as a witness because they already had Torstein Godeseth lined up and given some of the trials Mr Jenkins had been involved with were now subject of reviews by the Criminal Cases Review Commission, it wasn't appropriate to call him. The claimants call this a weak excuse and want the judge to know it.

The judge was interested in how he should view the claimants' peevishness, noting:
"there's some law on how the court approaches matters if it is being invited to draw an adverse inference from someone's absence. I'm proceeding on the basis I'm not invited to draw an adverse inference because none of the law relating to it is in the agreed authorities bundle."
Mr Green just wanted to make a point that it was a poor show.

Mr Jenkins has now retired. I suspect we will never hear him speak in public again. This is a shame as he likely knows where all Fujitsu's bodies are buried.

Expert wars and appendicitis

Post-lunch proceedings were partly taken up with a defence of the claimants' independent IT expert Jason Coyne and an attack on the Post Office expert Dr Robert Worden. Mr Coyne apparently comes in for a sustained battering in the Post Office's written closing, and it will be interesting to see what the Post Office has to say about him. Apparently they take him to task over ten pages for his reading of the Helen Rose report. The Helen Rose report itself is only five pages long.

The remainder of the post-lunch session was a credible partial demolition of a 137-page appendix the Post Office has attached to its written closing. It is a recently-drafted comprehensive take on the 29 identified "errors, bugs or defects" which are listed (though not all agreed upon) by the trial's independent IT experts.

Mr Green suggested this new information and its scale had rather taken the claimants aback. In order to give an insight into his side's issues with this work he would address bugs 11 - 15, as he had dealt with bugs 1 to 10 during his cross-examination of Dr Worden.

Mr Green did a good job of testing all of the assertions made by the Post Office in their appendix with regards to bugs 11 - 15. At the end of proceedings the judge said that he had found the appendix very useful, but he now needed to know if it was being contested exactly where it was being contested. Then he wanted the Post Office to be given the opportunity to explain why it was not submission but linked to actual evidence.

Mr Green sounded deflated by the amount of work this was going to generate, but in retrospect it's probably a good thing for the claimants he did cast doubt on the Post Office appendix and challenge the information in it, even if it has generated a load of post-trial endeavour.

Double Trouble

The final session of the day was an operatic flourish on the theme of Horizon discrepancies which inexplicably doubled at a stroke (the discrepancies, not the flourish). First Mr Green established that over two decades various bugs in the Horizon system had caused branch discrepancies to double - not just on the claimants' say-so but using documentary evidence from Post Office area managers, helpline operators and Fujitsu engineers.

Citing internal documents he pointed out that Post Office senior management was well aware of the capacity for Horizon to create doubling errors from as early as 2010, that their attention was drawn to it in 2012 in a briefing document given to them before a meeting with MPs and it was raised by Ron Warmington in one of Second Sight's independent reports in 2014.

Then he took us on a Horizon timeline safari listing just what he called a "slim selection" of the "double trouble" the IT system was capable of creating, with examples of discrepancies in from 2000 all the way up to the present day including a terrifying one less than two weeks ago (21 June 2019) which affected every single Post Office with a lottery terminal and swung the whole network out of whack to the tune of £2.5m! The error report ran thus:

"Transaction Acknowledgements for Lottery transactions taken on 20 June 2019 have been triplicated in branch causing discrepancies...  It is believed this is due to the introduction of new RPOS system into pilot... All Lottery branches are unable to reconcile their stock and cash. GL accounts in the Finance systems
 have triplicated data. If a technical fix is not in place then FSC [Financial Services Centre] will need to issue Transaction Corrections (TCs) to enable branches to balance. "If a technical fix is not in place and FSC do not issue TCs, then emergency suspense accounting will cause significant issues operationally for FSC to manage. Communication sent to branches for the issues and timeframe to resolve: ATOS/FUJITSU/ACCENTURE is engaged in finding the root cause and developing a fix. Conference call arranged to discuss and if a fix is not in place TCs will be issued from 25/06/19."

Mr Green notes this final problem has a comment attached which sounds intriguing: "Please note:
           "Materiality - the threshold would be anything with a financial impact of over £50,000 and/or a major
       adverse reputational or regulatory reaction; the 'Daily
 Mail test'. At this stage, it is more helpful to
       over-report than to miss the opportunity."

As everyone was chewing on what this might mean, Mr Green mentioned Jo Hamilton again, which was the last straw for Mr de Garr Robinson, QC for the Post Office. He rose and asked:
"My Lord, is my learned friend seeking to -- inviting your Lordship to make findings about a criminal case that's before the CCRC?... why does my learned friend keep talking about Jo Hamilton? I do find it striking that sometimes he appears to be addressing a jury rather than
 a judge.
"
He also suggested that Mr Green was improperly trying to suggest to the court that a single error had been responsible for these doublings over the course of two decades, which was just fanciful nonsense.

Mr Green said he wasn't and sat down.

The judge then wondered if Mr de Garr Robinson had any particular concerns about ongoing criminal processes or if he was making specific reference to the fact Jo's case was before the Criminal Cases Review Commission. Mr de Garr Robinson clarified it was the latter and after taking advice announced the Post Office wasn't currently prosecuting any live trials. As no juries would be involved in any CCRC-sponsored appeal of Jo Hamilton's case and as the Post Office was not taking anyone to criminal trial right now, the judge said he was happy for the discussion to be reported.

And that was that. Mr de Garr Robinson will spend five hours on his feet tomorrow making the Post Office's case and after that there will be some discussion about timetabling the rest of the year.

I'll be there at 10.30am tomorrow. I hope you can join me on the live tweets, which you can read here.

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