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MEETING WITH POST OFFICE LTD AND THEIR ADVISORS
Crown Office, 6 October 2015
Present: Dawn Lewington, Principal Depute, Policy
Mairi Boyle, Principal Depute, DSC’s Office
Laura Irvine, BTO (Scottish solicitors for Post Office)
Martin Smith, Cartwright King (Solicitors for Post Office)
Simon Clark, Cartwright King
Roderic William, solicitor, Post Office
MS explained that he and SC had met with Paul Miele 2 years ago to discuss
some issues with the Horizon system. At that time the Post Office had some
work to do to demonstrate the integrity of Horizon. MS and SC have since
reviewed all the English cases (Post Office cases as opposed to cases reported by
the police to the CPS). This included looking at cases where there had been
convictions. The purpose of today’s meeting was to update COPFS on what has
happened since and to allow us to “take a view”.
RW said that the CRCC were looking at 20 convictions in Post Office cases in
England. They have asked the Post Office for information and they are in the
process of complying. These are not cases where the convicted person has
exhausted their right of appeal: none of them have appealed and all but 2 cases
resolved with guilty pleas. They are not sure where the CRCC is with this - a
meeting is schedules for a few weeks’ time.
RW went on to explain the Horizon system. He said that, when allegations were
made about the integrity of the system they invited complaints and those with a
complaint were given grants to instruct a solicitor to articulate the complaint for
them (mediation process). There are 136 complaints all of which had been
thoroughly investigated by the Post Office (no Cartwright King involvement).
Most involved postmasters who had left the Post Office. 42 of the 136 cases
involved prosecutions (which included non-court disposals such as cautions). The
reviews were shared with the complainer and Second Sight.
Following this review process the Post Office was confident with Horizon. SC said
that Second Sight’s 2 reports indicated that Horizon was fine. Second Sight have
also said this on Panorama and to the Parliamentary Select Committee. (It was
clear that the Post Office have issues with the Panorama programme - they
have complained to the BBC about Post Office not having the opportunity to
comment on the identity of the whistle-blower and say the BBC were misleading
as to the recency of his involvement.) In any event Horizon is being replaced as
part of a scheduled IT upgrade in 2016. The Post Office are therefore getting to
the end of the line with Horizon.
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RW acknowledged there had been a difference of opinion between Post Office
and Second Sight. The Post Office complaint is that Second Sight went beyond
their remit, which was to look at Horizon, to consider issues such as training and
support and prosecution policy and practice. They did not have access to
prosecution files though they had access to disclosure bundles. MS said that
Second Sight had strayed into areas in which they were out of their depth.
The Post Office considered they required to instruct a “subject expert” in relation
to prosecution cases to demonstrate that Horizon is robust. The subject expert
was to conduct an independent, high-level review of the whole system. They
never did manage to engage a subject expert. Finding someone suitable to do
the work within timescales (6 months) and in a reasonable budget proved an
impossible task (estimate of costs had been in 6 figures). SC said that, as a
result, the Post Office have “stayed” all prosecutions in England and Wales on
the basis it would be unfair to proceed without an integrity report.
SC said there were 3 categories of case (after discussion it emerged there were
4 categories):
1. Case dependent on Horizon evidence
2. The defence have suggested the defendant made a mistake or was
confused
3. Case based on other evidence - Horizon does not figure (but could
possibly be “blamed” for circumstances?)
4. No possible Horizon involvement
We were told that what happened with these cases was that they were
continued for a while then dropped. Proceedings were effectively suspended until
it would have been oppressive to continue with them because of delay. The Post
Office took civil and commercial action against those people involved.
When asked by MB why they did not prosecute cases not dependent on Horizon
MS said that this was part of the application of the public interest test. He
suggested that someone prosecuted for a category 3 case might ask, “Why me
and not them?” of category 1 and 2 cases. Category 3 defendants were starting
to suggest that Horizon mistakes had relevance to their cases. Overall Post
Office considered there was an issue of the public perception about how they
were conducting themselves and they did not want the public to lose trust in the
organisation. They want to avoid public discussion of the questions around
Horizon. There was an inference that Post Office did not consider Category 3
cases worthwhile pursuing when civil recovery of funds was possible.
MS said there had been 2 exceptions - 2 cases that had been prosecuted. One of
these involved a husband and wife team who documented each penny they stole
and then made full admissions to stealing £100,000. In that case Post Office
considered there was no risk of the defendants claiming Horizon was an issue.
Towards the end of the meeting MS said that where a case does not involve
Horizon at all the Post Office will prosecute. It emerged there was a fourth
category of cases - those where there is no Horizon involvement and no possible
way of attributing the conduct to Horizon. They have just started looking at a
case from Blackpool. A customer paid over £3,000 which was to be placed in an
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ISA. The money was simply “pocketed” and the electronic system was not
involved at all.
There was a discussion about cases involving vulnerable complainers and the
assessment of the public interest in prosecuting. MS said that Post Office had
applied the Code for Crown Prosecutors but their cases were failing at the
evidential test and were not getting as far as the public interest test. They failed
at the evidential test because it was assessed that, with the “apparently”
unreliable Horizon evidence there was not a reasonable prospect of securing a
conviction.
Having begun the discussion by saying that Post Office had stayed all of their
prosecutions in England and Wales it emerged that there were a very small
number of exceptions and MS said that the Post Office would think long and hard
about whether to take proceedings in any new case that came to their attention
and that assessments were made on a case-by-case basis.
Post Office are pursuing their civil claims against postmasters. These are being
defended on the basis of the unreliability of the Horizon evidence but Post Office
feel they do not require to go into such a root and branch review of Horizon in
order to prove the cases to the civil standard.
RW said that Post Office have not said publicly that they will not prosecute.
There would be a risk involved in this in that dishonest employees might think
they could get away with dishonest behaviour at least while Horizon was still in
place.
Discussion turned to the cases sitting with COPFS and involving the Post Office.
MS said that if the Scottish cases were in England and Wales, Post Office would
close these down. If the Scottish cases depend on someone from the Post Office
(or Fujutsu who operate Horizon) to speak to the integrity of the system “then
that is not going to happen because there is no subject matter expert”.
MB asked whether it would be possible to isolate a particular transaction and
look at the integrity of that. RW said that would not be possible. The Post Office
had thought of that and considered it was not possible to isolate a single
transaction or a series of transactions. Questioned by DL SC said that you would
need an expert to support cases in which one part of the evidence was
dependent on Horizon, even where there was evidence of an_individual’s
password being used to access the system because that was not necessarily
conclusive.
There was a short discussion about the circumstances of the cases with COPFS
reported by the Post Office. BTO are aware that there are also cases reported by
the police that concern dishonesty by Post Office staff. They cannot say for
certain that these are the only cases in the pipeline with the police.
When asked as to whether the CPS were prosecuting cases reported to them by
the police in categories 1-3 SC said that they had had a meeting with the CPS
recently and advised them of the Horizon issue but that they had “no sway” and
the CPS may or may not take their advice.
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MS said that the Doran case had been reviewed as part of the process discussed
earlier. It was not however a case investigated or reported by the Post Office
and he had little so say about it.