ISSUE 53 Expert Witness Journal - Journal - Page 14
Post Office Inquiry Reveals 'Expert' Prepared
a Report to Conceal Flawed IT System
The ongoing Post Office Horizon IT Inquiry has recently revealed how a senior Post Office
lawyer told an engineer working on their defective IT system to provide a court with evidence
that would help with ‘’preserving’’ it. This led to the jailing of a wrongly convicted and
pregnant subpostmaster, Mrs Misra, in 2010.
Warwick Tatford, the prosecuting barrister in the
2010 case told the Inquiry that the advice sent by the
Post Office lawyer was ‘’disastrous’’. He added, ‘’As far
as I’m concerned, I was prosecution counsel in the
case… and I have obviously failed to ensure that
there’s an atmosphere where an expert can be
properly instructed.’’
3. Satisfy themselves that the expert was provided
within their instructions, what it is that his or her opinion is sought on and set out issues or questions that he
or she is expected to answer.
4. Provide guidance as to what the expert is being
asked to do and what material they are being asked to
consider.
Whilst the Inquiry deals with many issues relating to
the failings of this IT system, this article will focus
purely on the instruction of the engineer as an expert
witness in the case – specifically what is deemed necessary by the courts as a proper instruction of an
independent expert witness.
5. Set out the material upon which reliance has been
placed in the prosecution and which may be relevant
to the questions which the expert is expected to
answer.
6. Must inform the expert witness as to his or her
relevant duties and ensure that the expert understands and has complied with those duties.
The ‘instruction’
While giving evidence in the Inquiry, Mr Tatford was
shown the email from the Mr Singh, the Post Office
lawyer to Mr Jenkins, the ‘expert’, which read:
Then, the Inquiry led Mr Tatford through the details
of Mr Jenkin’s instruction, highlighting the following
failures:
“As you are our Horizon expert you need to
telephone Charles McLachlan [the defence expert]
…to arrange a meeting where you can discuss all his
reports and his concerns about the Horizon so you
can deal with it and rebut it.”
1. There was no documentary record confirming that
Mr Jenkins understood the relevant expert duties and
no documentary record which confirms that any prosecutor was satisfied that Mr Jenkins understood the
relevant expert duties.
The email continued: “… and then write a detailed
report which would go to some way of progressing
and concluding this matter and importantly preserving the Horizon system…Maybe the simplest and
practical way of dealing with this whole question is to
find a shortest span of logs, analyse it, disprove or
rebut what the defence expert is saying in his reports.”
2. That Mr Jenkin’s expert report did not comply with
the relevant provisions in the Criminal Procedural
Rules.
3. That there was no appreciation of risk, bearing in
mind that the expert’s day job was not expert witness
and in fact an engineer working on the Post Office IT
system – and therefore that they might have ‘’skin in
the game’’. As confirmed by Mr Tatford, ‘’he went
from one day, as I understood it, to the person who
was helping with disclosure enquiries, to becoming
our expert.’’
“Just a reminder you are an expert for Fujitsu, you
will be giving evidence in court, the judge and jury
will be listening to you very carefully and a lot will
hang on the evidence.”
The Inquiry
The Inquiry considered the details of Mr Jenkins’
instruction as an expert witness.
Summary
Expert witnesses are independent parties who owe a
duty to the court and not the party who instructed
them.
Initially, they confirmed the duty of a prosecutor in
relation to an expert witness, that a prosecutor intending to rely on expert witness in criminal
proceedings must:
This Inquiry highlights how important it is for an
expert witness to be independent from any of the parties in a case, and the dangerous consequences of an
improper instruction. As emphasised above, the onus
isn’t just on experts to ensure that they are aware of
their legal duties, but also on the legal teams as well.
Giving evidence in the Inquiry, Mr Tatford, the prosecuting barrister in the 2010 case, held back tears, saying he was ‘’ashamed that I was part of this’’, before
apologising to Mrs Misra who sat in the public gallery.
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1. Satisfy themselves as to the expert’s relevant
qualifications and expertise.
2. Satisfy themselves that the expert had been
appropriately instructed, including by the provision
of a written and detailed letter of instruction or an
email of instruction, all being provided with written
terms of reference.
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