A barrister for the Post Office in a High Court battle said lawyers representing subpostmaster claimants would have “had a field day in court” if a tainted Fujitsu expert witness had been called to give evidence.
During the latest phase of the Post Office Horizon scandal public inquiry, Anthony de Garr Robinson KC also said if former Fujitsu IT chief architect Gareth Jenkins had been called, he would have been “killed at trial”.
De Garr Robinson was a barrister for the Post Office in the 2018/19 High Court Group Litigation Order (GLO), which was brought by hundreds of former subpostmasters who were blamed and punished for unexplained accounting shortfalls caused by the in-branch Horizon computer system.
Jenkins, Fujitsu’s former chief architect, was tainted as an unreliable witness after a barrister contracted by the Post Office advised that he had not given accurate evidence in subpostmaster trials. In 2013, Simon Clarke, a barrister at Cartwright King, told the Post Office that Jenkins had misled courts when giving evidence against subpostmasters accused of theft and false accounting by failing to mention software errors he was aware of. In what is known as The Clarke Advice, he wrote that Jenkins should not be used as an expert witness again.
• Read about Simon Clarke’s evidence to the public inquiry.
Jenkins gave evidence at the trial of subpostmaster Seema Misra in 2012. Misra had challenged the Horizon system as part of her defence, citing Computer Weekly’s 2009 investigation into Horizon errors, but Jenkins’ evidence convinced a jury of her guilt. She was convicted and jailed for 15 months. She eventually had her wrongful conviction overturned in 2021.
In 2018, the GLO in the High Court saw 555 former subpostmasters sue the Post Office after they were blamed and punished for unexplained accounting shortfalls, with many receiving criminal convictions. The subpostmaster claimants blamed errors in the Horizon computer system used in branches for the shortfalls.
Jenkins was the ideal choice to give evidence about Horizon for the Post Office, but despite his knowledge of the system, he was not called on by the Post Office to defend it.
In his witness statement to the public inquiry, De Garr Robinson described a conference with lawyers representing the Post Office in September 2018, in the final run-up to the High Court GLO. In it, he wrote: “The upshot [of the conference] was that I was told in emphatic terms that Mr Jenkins was not a reliable witness. [Cartwright King] said that Mr Jenkins had given misleading evidence. They suggested in no uncertain terms that I should be very cautious about calling him as a witness.”
Robinson admitted that the reason Jenkins was not called as a witness was because he had breached his duty as a witness and given misleading evidence in criminal prosecutions. “He had said things and not said things in criminal proceedings, which would have undermined his credibility as a witness [and given misleading evidence],” he told the public inquiry.
But the Post Office legal team still used Jenkins in the background to provide information to other witnesses, including its chosen expert witness Dr Robert Worden.
De Garr Robinson was questioned about an October 2019 briefing with lawyers from Herbert Smith Freehills (HSF), who had been instructed to work on the ongoing GLO. During the briefing, an HSF lawyer asked him: “At trial, did the claimants advance a case that the Post Office suppressed evidence regarding the existence of bugs?”
According to the minutes of the meeting, he replied: “First of all, they made huge complaints that we didn’t call Gareth Jenkins, who is a God, but an unreliable God. They say that the fact we didn’t call [him] is suppression, and you know what, that might be right, they would’ve killed him at trial.”
He added: “The judge will love it – he is likely to go large on it. By all accounts [Jenkins] would been disastrous. Anyone who has dealt with [him] would say that he would kill our case.”
During the public inquiry hearing, barrister Jason Beer KC asked De Garr Robinson why he thought what the Post Office had done was “maybe the suppression of evidence from Gareth Jenkins”.
De Garr Robinson suggested that Beer “was reading too much” into it. “I am given sometimes to explaining things in a very colourful way. There was no suppression of evidence,” he said. “What there was, was a decision not to call someone to give evidence on relatively uncontroversial questions because it was felt that what would then happen is that he would get dragged into a cross-examination in relation to his evidence in criminal prosecutions that would simply result in a finding that he was an unreliable witness.”
He said the conference with HSF was just an “informal discussion” between litigators which he was trying to do in “an easy-to-understand and rather dramatic way” to help them “understand where we stand”.
Former Fujitsu chief architect Jenkins has been under Metropolitan Police investigation since November 2020 for potential perjury concerning evidence given in the trials of subpostmasters accused of theft and false accounting based on evidence from the Horizon system. He will appear before the public inquiry later this month, over four days (25 to 28 June).
The Post Office scandal was first exposed by Computer Weekly in 2009, revealing the stories of seven subpostmasters and the problems they suffered due to the accounting software (see timeline of Computer Weekly articles about the scandal below).
• Also read: What you need to know about the Horizon scandal •
• Also watch: ITV’s documentary – Mr Bates vs The Post Office: The real story •