11.15am: Clarke is much more willing to admit to his mistakes than other witnesses have been. The inquiry sees copies of the draft and final letters sent to a sub-postmaster in Merthyr Dyfan – the latter seems to water down information about how many other branches are affected by the bug. Clarke had also advised that the existence of the Second Sight did not need to be disclosed in every case.
Blake asks: ‘What part of a criminal prosecutor’s duty do you see as being concerned with adverse publicity?’
Clarke: ‘None’.
Blake: ‘So the advice that you gave to the Post Office in respect of this was appropriate or inappropriate?’
Clarke: ‘It was ill-judged and inappropriate.’
11.05am: We return by picking up the theme about Clarke’s advice on the Post Office stance regarding disclosure of knowledge about bugs.
In an email to Rodric Williams, Clarke queries sending letters disclosing Horizon problems to a select number of sub-postmasters, again mentioning the issue of ‘adverse speculation’. Clarke accepts he was worried about speculation at this time but stresses he had limited knowledge about what was happening and wanted to preserve the position until more was known.
10.55am: This really has been a morning session full of interesting submissions and candid responses from Clarke.
Before we go to a break, Blake brings up that Clarke told Post Office solicitor Rodric Williams that Jenkins’ evidence was unreliable and he had not disclosed the presence of bugs.
Clarke said he expected shock and horror from Williams, but he appeared to take the information in his stride and start planning for what to do next.
‘All I can say is I didn’t see [from Williams] the surprise and astonishment I expected,’ says Clarke.
10.50am: While parliamentary privilege concerns were cited by Clarke as the main factor behind trying to avoid disclosure of the Second Sight report, attendance notes from the time suggested it was not the only reason.
Clarke wrote in 2013 that the Post Office was concerned at the adverse publicity that the report would have generated and that ‘to permit this information to enter the public domain at such an early stage would have been to encourage extremely unhealthy and likely virulent speculation as to the content of any report’.
Blake asks Clarke if he accepts whether Avoiding adverse publicity was a reason for seeking the court order. Clarke responds: ‘I do.’
Was he gloating in this attendance note, Blake asks. ‘I hate the word gloating but I think you are probably right.’
10.45am: Clarke reveals that HHJ Chambers was ‘quite upset’ about the PII application, even though it was granted.
‘Effectively we were wasting the court’s time by aborting a trial that was due to start that day. The prosecution had plainly not done that which they ought to have done in time for the trial.’
Asked by Blake if the application was appropriate, looking back now, Clarke says: ‘I would go as far as to say if I were in the same situation now with the same information I had I would make that application again.’
10.40am: Clarke explains there was nothing improper about the application and his attendance note (see below) states that it was made because Cartwright King was concerned that disclosing the Second Sight report might have been a breach of parliamentary privilege, as it was due to be shown to MPs that week. He also denies that defense solicitors would not have been told about the meeting with the judge in his chambers.
‘It is common practice among counsel that if a PII application is to be made the defending counsel will be informed informally at court by prosecuting counsel and that is what I did.
‘The proposition I could just go and see the judge without telling defense counsel would at the very least have prompted defense counsel to say “what is going on”. Defense counsel would have had to be informed and he was.’
10.35am: The inquiry is going through Clarke’s attendance note in relation to the prosecution of Balvinder Samra at Birmingham Crown Court. This trial was adjourned for eight weeks by His Honor Judge Chambers after Clarke and Smith made a successful application for public interest immunity, preventing the prosecution from being told about the existence of the Second Sight draft report. This was covered in detail at Martin’s Smith inquiry evidence session.
10.25am: Inquiry sees an excerpt from Clarke’s witness statement (below), where he says Post Office’s attitude to disclosing details of Horizon problems amounted to an ‘article of faith’ and an ‘almost religious panic’.
10.20am: The inquiry sees a transcript of a telephone conversation with Gareth Jenkins, secretly recorded by Clarke and Smith. Clarke says it came as a ‘bombshell’ to find out that Jenkins had admitted the presence of bugs in Horizon and that he had not disclosed this in criminal trials.
‘I thought it was hugely important we knew who told Second Sight of the bugs,’ he says. ‘If it had been Fujitsu or Gareth Jenkins then frankly Gareth Jenkins was in trouble.’
10.15am: Clarke says that finding out there were bugs in Horizon, as was about to be reported by Second Sight, should have been a decisive moment, describing it as a ‘process stopping mechanism’.’You can’t go anywhere from that other than to say who? how? why? who told them?,’ he says. ‘Because your duties as a prosecutor are so absolute in those circumstances that any competent barrister is going to say “well stop, we have to see what is going on”.’
10.05am: Clarke is asked whether part of the problem with Post Office was that people worked in silos. ‘One of the reasons why these two Horizon bugs detected by [forensic accountants] Second Sight escaped people’s attention was because nobody was talking to each other. As simple as that… I was encountering it in June, July, August of 2013. I put it down to office politics. People were working within their own comfort zones and never the twain shall meet.’
9.55am: Clarke’s former colleague at Cartwright King, Martin Smith, said last week that he deferred to him. Clarke denies that was the case. The barrister also says he was ‘surprised’ to see in Smith’s evidence session that he would liaise with Post Office off his own back. Smith had also said he had shortcomings in his knowledge, which Clarke appears to deny.
The dynamic is interesting partly because Clarke and Smith left Cartwright King together and set up their own firm.
9.50am: Clarke confirms he joined Cartwright King in 2010 and advised the Post Office on prosecutions but was not responsible for the decision on whether to prosecute.
Asked by inquiry counsel Julian Blake whether he had autonomy, he says he occasionally saw something that concerned him and advised the Post Office of this. Sometimes the Post Office was resistant to advice, sometimes they accepted it.
Tags: Post Office Horizon Inquiry live Key barrister faces inquiry questions
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