POST OFFICE LTD
MEETING REPORT = 4 September 2013 — bto Solicitors,
Edinburgh
- 5'" September — Procurator Fiscal,
Edinburgh
4" September — 9.30am — bto offices, Edinburgh.
Simon Clarke — CK
Martin Smith —- CK
Laura Irvine — bto
Lindsay MacNeill — bto.
1. The Scottish prosecutorial system. Unlike in England & Wales there are no
private prosecutors; all such work is undertaken by the Procurator Fiscal’s (PF)
office. The police provide case papers to the PF’s office and the decision to
prosecute or otherwise is taken there — that decision is entirely reserved to the PF
and those complaining of crime have no say in the matter. We are informed that
this decision-making process extends to circumstances where the PF may
determine to prosecute or continue a prosecution in circumstances where the
complainant does not support a prosecution or no longer supports a prosecution.
2. Special Reporting Agencies (SRA’s) may report crimes to the Procurator Fiscal’s
office. There are over 200 SRA’s, in the main being government or quasi-
government agencies such as the Benefits Agency; the Environment Dept; e/c.
POL fits into this framework and is regarded by the PF a SRA. The role of an
SRA is that of a special-interest complainant. The SRA investigators collate
evidence and forward a completed file to the PF for a decision as to prosecution —
the PF makes his own decision based on the material provided by the SRA, his
own policy and the Scottish rules of evidence. Many SRA’s have their own legal
and investigatory departments who act as agent to the SRA, liaising with the PF
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and in many instances assisting with the investigation, collation and drafting
processes.
Thus bto’s role is dissimilar to that of CK in England & Wales. Within the
Scottish prosecutorial system bto does not presently act as prosecutor nor are they
presently POL’s SRA agent: rather they advise POL on the evidential and
procedural requirements of individual cases and on prosecution decisions.
Following our meeting with the PF (for which see below) it was determined that bto’s
role would have to be expanded to that of POL’s SRA agent (again, see below).
Case reviews — open cases. Cases presently under prosecution were reviewed. All
of these cases fell within our Type-A case class, i.e. they were all cases in which
HOL had provided the information as to wrongdoing but was not the provider of
primary evidence. In almost all of the cases the sub-postmaster/mistress had
admitted to the taking of monies belonging to POL for their own unauthorised
purposes (loans to others; supporting associated businesses e7c.). A number of cases were
to go to trial; all were again Type-A cases. Accordingly we do not conclude that
these prosecutions are directly affected by the present difficulties (but sce below,
para. ).
Case reviews — concluded cases. In all cases defendants had admitted wrong-
doing and had entered guilty pleas. Again all were Type-A cases. Again we
concluded that these cases remain unaffected by present difficulties, not least
because of the nature and detail of admissions advanced by defendants.
Work conducted by bto to date. We considered the nature, extent and quality of
the work undertaken by bto to date. We unhesitatingly conclude that they have
accomplished everything required of them and to a high standard. The bto
personal allocated to POL work are highly competent and well-qualified. Both
are former PF deputes (i.e. prosecutors) and are well-experienced in the work of the
PF’s office. We conclude that their experience of prosecuting adds much to their
POL brief and provides a valuable resource to POL, as do their undoubted
contacts still working within the PF’s office.
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5" September — 9.30am — Office of the Procurator Fiscal, Edinburgh
Simon Clarke — CK. Ne
Martin Smith — CK. MS
Laura Irvine — bto. LI
Lindsay MacNeill — bto. LMcN
Jamail Singh — POL. JS
Paul Miele — PF depute (policy). PM
Paul Beaton — PF depute. PB
(Procurator Fiscal — not present) PF
8.
PM informed the meeting that his role was to formulate a policy recommendation
and to forward that to the Procurator Fiscal for his decision as to how POL cases
were to be dealt with by the PF’s office.
It was very plain from the outset that the PF’s current position on POL
prosecutions was that all such cases should be terminated. The concerns of the
PF’s office centred upon the notion that, where we were unable to prove that HOL
was wholly reliable, any and all evidence derived therefrom would itself be
unreliable and thus incapable of supporting the guilt of an accused person. In
short, the PF was saying that he was not prepared to prosecute any case in which,
were a POL witness to be asked in court “/s this system reliable?” his/her answer
was anything other than an unqualified “Yes” And in present circumstances such
an answer could not be advanced.
I. The PF’s approach was seemingly dictated by a number of factors unique to the
Scottish jurisdiction, the most important of which include: (i) the requirement that,
save in certain circumstances (for which see below), a case may go forward only
where there are at least two independent pieces of evidence in support of guilt (so-
called corroboration); (ii) the absolute and inalienable right to silence, which
unlike in English law may not be commented upon at trial; (iii) the absence of any
requirement to provide the court and prosecution with a defence statement which,
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ll.
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in concert with the right to silence, permits the defence to ‘ambush’ the
prosecution at trial (an approach long-since abolished in English law). The effect of these
provisions is to produce a fundamentally different approach to disclosure in the
Scottish system. Whilst under the English system disclosure is to a large extent
guided by the defence response to allegations and likely plea (e.g. where there are
admissions in i/v e/c), in the Scottish system disclosure rules dictate that, even
where the accused has made unequivocal admissions to auditors or in interview,
disclosure relating to a corroborating fact occurs ab initio. This situation arises
because in many cases the PF does not know what the defence is to be, so that
where, as is often the case with POL prosecutions, the evidence against an
accused is restricted to no more than a HOL-based indicator together with
admissions, i.e. two pieces of independent evidence (sce para.8(i) above), if one piece
may be unreliable then it does not qualify as independent reliable corroboration
and accordingly you will not meet the minimum requirement for at least two
pieces of independent evidence.
Such a situation may however be ameliorated by the so-called Special Knowledge
tule. This rule provides that, where an accused makes an admission to the auditor
or in interview, if that admission contains some piece of information unique to the
facts of the case and such as can only be known by the perpetrator of the crime,
then this Special Knowledge evidence may remove the need to comply with the
two pieces of independent evidence rule, or, if not removing the need for two
pieces of evidence, the Special Knowledge meets the test as being one such piece
of evidence.
This brief overview of the Scottish system provided the foundation for the
discussion which followed. SC provided the meeting with a broad overview of the
HOL difficulties (absent any direct or indirect reference to the role of GJ or Fujitsu).
Importantly both PM and PB appreciated the distinction between the Type-A and
Type-B cases and understood that each required a different decision-making
process. They also accepted that there had not been, and was presently no Scottish
case in which POL had relied upon expert-witness evidence in support of the
integrity of HOL, indeed no accused person had sought to rely upon any suggested
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14.
HOL issue. PF and PM also accepted that all cases presently under prosecution
were Type-A cases.
. SC then outlined the proposed instruction of independent expert witnesses and the
scope and depth of those expert’s roles. PM indicated surprise at the seriousness
and depth to which POL was prepared to go in dealing with the HOL issues and
were clearly appreciative of the approach being taken. He suggested that the
matters outlined went a long way towards meeting the PF’s concems as to both
present and future prosecutions.
As a result of this new understanding on the part of PM and PB, PM agreed that
his recommendation would be that each case be reviewed separately and a
decision taken on the facts of individual cases. This amounted to a departure from
his starting point that all POL prosecutions were to be terminated. Indeed matters
went much further, for discussion then focussed on how the present prosecutions
were to be advanced. Here PM and PB agreed to recommend to the PF that he
seeks to adjourn all cases currently under prosecution for a period of between 6 to
8-months in order to permit POL to obtain the expert evidence in support of HOL
and to use that evidence in those prosecutions. This recommendation amounts to a
complete reversal of the PF’s original position.
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