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Ian Henderson & Ron Warmington
Second Sight Support Services Ltd
Tythe Farm
Maugersbury
Cheltenham
Gloucestershire
GL54 1HR
By post and e-mail to: rjw_
Date 24 February 2015
Dear Ian and Ron
Initial Complaint Review and Mediation Scheme (Scheme)
Case Ref: M103
As you know, I have now taken over from Chris Aujard as Post Office General Counsel
and I felt it necessary to write to you having read your draft report on this case.
Having reviewed the recent Second Sight reports, I am concerned that these include
statements regarding criminal law that could be construed by applicants as being the
expert opinion of Second Sight, and where we believe that Second Sight's statements
are in fact, incorrect.
I understand that you have expressly acknowledged that matters relating to criminal
law and procedure are outside Second Sight’s scope of expertise. I also understand
that Post Office has discussed with you in the past the fact that criminal law is a
specialist area, outside of Second Sight’s remit in relation to the Scheme, in which
neither Second Sight Directors, nor, to the best of my knowledge, any of the people
engaged by Second Sight to undertake work in relation to the Scheme, have either
qualifications or expertise. I am however concerned that your comments or opinions
on criminal law could be interpreted by applicants as factual statements on which they
are entitled to rely, which if they did so, could be to their detriment.
Examples from this report include:
. The suggestion that the offence of false accounting is a less serious offence to
that of theft is incorrect. Both offences are equal in law: both are offences of
dishonesty and both carry the same maximum sentence (7 years
imprisonment).
. The suggestion that Post Office has encouraged a defendant into pleading
guilty in order to avoid prison or to achieve a lesser sentence. This suggestion
is based on a misunderstanding of the criminal law process:
Post Office Limited is registered in England and Wales. Registered No. 2154540
Post Office Limited has its registered office address at 148 Old Street, London, EC1V 9HQ. After 22nd March
2015, Post Office Limited will have its registered office address at Finsbury Dials, 20 Finsbury Street, London, EC2Y 9AQ
Post Office and the Post Office logo are registered trade marks of Post Office Limited postoffice.co.u
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Post Office has no role in advising a defendant: every person charged with
a criminal offence is entitled to representation by independent solicitors
(and in the Crown Court, a barrister).
Legal Aid is available to any defendant where the offence carries a risk of
imprisonment (as do all of the charges levelled by Post Office).
The decision to plead guilty is always one for the defendant only, having
taken advice from their own lawyers.
When deciding to plead guilty, the defendant will have been advised by
their own lawyer that a guilty plea represents a complete admission to
having committed the offence and, where the offence is one of dishonesty
(theft; false accounting; fraud), to that dishonest act. This is advice a
defence lawyer must give.
The suggestion that a guilty plea to false accounting rather than theft was
accepted by Post Office because “....there was no evidence of theft” is based on
a lack of understanding of criminal law and the criminal law processes:
Where an audit discloses a loss in circumstances where there is evidence of
false accounting, the fact of the loss together with the false entries is
sufficient evidence upon which to base a charge of theft. Simply put, the
fact that money is missing and the defendant has adjusted the figures is
sufficient evidence (in accordance with the Code for Crown Prosecutors) to
found a theft charge.
Post Office has always been prepared to accept a guilty plea to false
accounting where theft is charged, not least because it has a duty to
protect public (and its own) funds and, given that both charges are equal in
the eyes of the law, the added expense of going to trial where a guilty plea
to an offence of dishonesty is offered would often (but not always)
jeopardise that duty.
In any event the initial suggestion that a defendant pleads guilty will come
from the defendant’s lawyers, usually motivated by the defendant's
instructions that they are guilty of that offence.
Finally, it is the duty of the defence lawyers to identify to the court where
there is insufficient evidence to sustain a charge. If the court agrees then
the Judge must dismiss that charge. Thus a charge upon which there is no
evidence will inevitably fail.
The suggestion that the Crown Prosecution Service (CPS) would have acted
differently to Post Office as a prosecutor, perhaps by not prosecuting at all, or
by accepting a different outcome, is misplaced:
Both Post Office and the CPS are bound by the Code for Crown
Prosecutors; both are overseen by the courts and both must act in
accordance with the principles of fairness.
Post Office is not unique in prosecuting its own cases; many organisations
conduct prosecutions within their own sphere of interest, including for
example the Driver and Vehicle Standards Agency, Transport for London,
the Environmental Agency, and many Local Authorities.
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- Post Office prosecutors are all experienced criminal lawyers, many of
whom have wide experience of prosecuting both for Post Office and the
CPS. These lawyers advise Post Office in full, including by reference to the
Code for Crown Prosecutors and its application in the courts, before a
prosecution is commenced and continued. The CPS does not have any role
in this process.
- Neither does the CPS ‘review’, ‘oversee’ or otherwise regulate non-CPS
prosecutions - that function is reserved to the courts.
- As such, any comment by Second Sight as to how the CPS may or may not
have acted is inexpert opinion based on speculation.
I reject the allegation that Post Office may somehow have breached or abused its
position as a Crown prosecutor. Post Office has always taken its duty to act fairly,
proportionately and with the public interest in mind extremely seriously; indeed not to
have done so would have invited the scrutiny of the very courts in which Post Office
conducts such cases. Such a statement is ill-informed and could be construed as an
allegation of deliberate misconduct on the part of Post Office. Post Office rejects any
such suggestion and considers such statements as potentially damaging to its
reputation both as a business and also a prosecutor.
Iam aware that Second Sight is preparing other reports and also a further mediation
briefing pack and request you to take account of these comments when doing so.
Post Office will respond to the Second Sight report in the usual way. However, I
believe the above points are sufficiently material that unless I receive your
confirmation within 3 working days that these comments will be removed from the
final version of your report, I will send a copy of this letter to the Working Group and
to the Applicant.
I would, of course, be happy to discuss in more detail if that would be helpful.
Yours sincerely
Jane MacLeod
General Couns:
@postofficenews
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