POL00006358
POL00006358
POST OFFICE LTD
REVIEW OF POST OFFICE LTD PROSECUTION ROLE
INTRODUCTION
In light of criticisms of past prosecutions, the Post Office Ltd (“POL”) has
commissioned me to review past practice and make*recommendations as to
its future approach to the conduct of prosecutions,
Terms of Reference received from Bond Dickinson LLP (“BD”), solicitors
advising POL, invited from me the following:
Instructions & Output
A. Written Reports
1 To review, and, if appropriate, to recommend changes to the existing
investigations and conduct of future prosecutions by POL, including, if
appropriate, the investigative/prosecutorial role being undertaken by
another authority (to be a available for publication).
B. Meeting/Reporting to the Post Office Audit Committee / Board
1 On or by 31 October 2013 to give your recommendations for any changes
to the current investigation, process and conduct of future prosecutions by
POL including, if appropriate, the investigative/prosecutorial role being
undertaken by another authority set out in A(1) above.
Process
1 To fully understand the Horizon system — reviewing training and
materials.
N
To meet and interview as a fact-finding exercise anyone else you or POL
consider relevant to the process of the investigation and commencement of
prosecutions.
3 To review a statistically significant number of past prosecutions in which
Horizon was an issue.
As regards the process by which I have been asked to conduct my review,
and by reference to each point in the list above, in point order:
Point 1: on 19 September 2013, I attended Guildford Classroom Training
Office, where I received a day’s training on the Horizon system. Chris
Gilding (Network Support Team Leader) trained me. Andy Holt (Business
Relationship Manager) was on hand to assist and,answer questions.
Point 2: on 9 September 2013, 1 met with,POL, senior management, Susan
Crichton and Rodric Williams, Cartwright King (“CK”) representatives,
Simon Clarke, Harry Bowyer and Martin Smith, and BD representatives,
Gavin Matthews and Andy Parsons, in my chambers at 2 Bedford Row,
London, WC1.
On 4 October 2013, I participated in a telephone conference with Rodric
Williams and Jarnail Singh of POL, Martin Smith and Simon Clarke of CK,
and Gavin Matthews of BD in order to discuss issues surrounding the scope
of CK’s review.
On 17 October 2013, I participated in a telephone conference with Rob King
and Andy Hayward together with Gavin Matthews of BD in order to discuss
issues regarding POL’s investigation structure and function.
Further to these conferences, I have not identified (or had identified to me by
POL) anyone else I should meet or speak to as relevant to the issues I am
asked to review. I have however received written answers to a variety of
POL00006358
POL00006358
questions I have asked or issues I have raised by email in the course of my
review.
Point 3: on 6 September 2013, I received a number of files from BD
containing material in advance of the meeting on 9 September 2013. Among
them there was a file containing 24 full case reviews performed by counsel
employed by CK of cases passing an initial sift process. On 30 September
2013, I received 6 more full reviews, and on 9 October 2013 I received one
more by email. I have therefore reviewed 31 case reviews intotal.
POL00006358
POL00006358
EXECUTIVE SUMMARY
This review is a legal review only. Accordingly, I must emphasise that it is
no part of this review or my function to make recommendations about
commercial, reputational or other non-legal strategic factors in favour of, or
militating against, the retention of POL’s investigative or prosecutorial role.
The following is a summary of the main findings and recommendations in
the body of this review.
0)
(ii)
(iii)
(iv)
I have seen no evidence to suggest that Post Office Ltd exercises its
investigations and prosecution function in anything other than a
well-organised, structured and efficient manner, through an expert
and dedicated team of in-house investigators and lawyers, supported
by Cartwright King solicitors and their in-house counsel, as well as
external counsel and agents where required.
Post Office Ltd has a unique commercial relationship with Fujitsu
Services Ltd with whom it has contracted for the supply and
maintenance of the Horizon, Online system. I have found no
evidence that any commercial conflict of interest has caused or
contributed to the current problems.
The Horizon data. integrity issue was an exceptional instance of Post
Office Ltd prosecutorial failure of serial non-disclosure in breach of
Post Office Ltd’s disclosure obligations as prosecutor. Although the
teleyant information about the Horizon Online integrity issues was
allegedly not revealed to Post Office Ltd or to Cartwright King
when it ought to have been, Post Office Ltd is and remains
accountable for prosecutorial failure, and must (and does) accept
ultimate responsibility for this failure.
Post Office Ltd has taken appropriate steps to ensure that past and
current criminal cases potentially affected by Horizon Online are
properly addressed by establishing a thorough, complete and
continuing review of the question of disclosure to include issues of
Horizon Online integrity, training and support.
POL00006358
POL00006358
(v)
(vi)
(vii)
(viii)
(ix)
Post Office Ltd’s prosecution role is perhaps anachronistic, but Post
Office Ltd has undoubted expertise in investigating and prosecuting
the nature and volume of cases it handles annually, which provides
it with a unique specialism, inevitably leading to good and efficient
use of resources, as well as efficacy.
Moreover, Post Office Ltd has the distinct advantage of
understanding intimately its products, its customers, its operations,
and the business of those it employs and contracts with as agents,
and, in general terms, it understands its data systems and its
functions. Furthermore, Post Office Ltd inevitably benefits from
central oversight of cases arising nationwide. Divestment of its
investigative and/or prosecutorial role. to police and/or another
public prosecuting authority would result in little or no central
oversight, thus risking an inconsistency of approach, which would
ultimately be detrimental to the organisation.
It is against the background of all these considerations, and I re-
emphasise within the narrow contextof the issues I have been asked
to consider, that I have concluded -that there is no good reason to
recommend that Post Office Ltd should discontinue its prosecution
role, and seek to assign it/to another public prosecution authority;
indeed, there are many good reasons to retain it.
For identical reasons, I see no advantage, and only disadvantage, to
a hybrid regime, whereby POL reserves its investigative function,
while divesting itself of its prosecutorial role.
However, there is scope for improvement, and I, therefore, make the
following recommendations:
a) From everything I have heard and read, I am quite satisfied
that Post Office Ltd’s general approach to investigation and
prosecutorial decision-making in past and current
prosecutions has been appropriate and robust. Nonetheless,
it remains important that if Post Office Ltd is to reserve its
prosecution role it should review the entirety of its
historical investigations and prosecution _ policy
documentation in order to ensure that the documentation
POL00006358
POL00006358
b)
c)
d)
e)
8)
being produced by or on behalf of its Security and
Compliance and Legal Departments completely and
accurately reflects Post Office Ltd’s policy going forward.
Once this has been achieved, the documentation should be
submitted to the Board for approval as reflecting Post
Office Ltd investigation and prosecution policy.
Following Board approval, Post Office Ltd should consider
publishing its policy documentation on its intranet, as well
as otherwise ensuring that its employed and agency staff
are made aware of Post Office Ltd policies in this area in
order to achieve a greater measure of transparency.
For the same reasons, Post Office Ltd should consider
publishing its policy documents, or a summary of its
prosecution policies, on its website.
Each and every prosecution policy document should be
provided with an,annual review date, and reviewed on or
before the annual review datey or following any material
changes, whichever be the sooner, and the Board should
approve any such material changes.
Consideration should be given to including, within its
prosecution policy, criteria detailing the range of factual or
legal circumstances in which Post Office Ltd may decide to
hand/over cases to the police and/Crown Prosecution
Service.
To the extent this is not already in hand, (which I
understand may be the case), Post Office Ltd should
consider drawing up a protocol or a memorandum of
understanding between it and any third party supplier of its
IT system, (presently Fujitsu Services Ltd), setting out the
duties and obligations Post Office Ltd has as a prosecutor,
and the nature and scope of the data that Post Office Ltd
necessarily relies upon for the prosecution of its cases, and
seeking the third party’s understanding and agreement to
revealing any and all material or information that might
POL00006358
POL00006358
undermine the integrity of the system, and to the
requirement for the disclosure of such material or
information in the course of criminal proceedings, as may
be required.
POL00006358
POL00006358
HISTORICAL BACKGROUND
10.
Introduction
On 1 April 2012, the shares in POL were transferred from the Royal Mail
Group Ltd (“RMG”) to Royal Mail Holdings ple (“RMH™”), since which
time POL has had an existence independent of RMG. Now, POL is a wholly
owned subsidiary of RMH. The Secretary of State for Business, Innovation
and Skills (“BIS”) holds a special share in POL. RMH and BIS, through the
Shareholder Executive (“ShEx”), have no involvementin POL’s day-to-day
operations."
Prior to POL’s separation from RMG, RMG conducted the prosecution of
criminal offences allegedly committed by,sub-postmasters and/or staff in
their employ. Following the separation out of POL’s business from RMG,
POL has assumed and retained»the prosecution function hitherto enjoyed by
RMG prior to separation, although RMGietains a residual prosecution role.
In England and Wales) POL’s prosecutorial role is exercised by POL’s in-
house legal department and through the instruction of CK solicitors, its in-
house advocates aswell as by external counsel and agents. It is supported by
the security department, which is responsible for conducting investigations.
The security department is accountable to the Corporate Services Director.
Prosecutions are conducted both in the Magistrates’ Courts and the Crown
Courts, and appeals are prosecuted in the Court of Appeal. In Northern
Ireland the Public Prosecution Service (“PPS”) prosecutes POL cases albeit
with input and assistance from POL investigators. In Scotland it is the
Procurator Fiscal who prosecutes POL cases.
Representatives of CK had been in Scotland the week before our conference
on 9 September 2013 in order to discuss with the Procurator Fiscal’s office
the recent interim findings by Second Sight Support Services Ltd (“SS”).
Annual Reports and Financial Statements 2012-2013, page 42
POL00006358
POL00006358
12.
135
14.
Currently, cases stand adjourned in Scotland, where, as I understand it, POL
has been granted special agency status.
I understood in the conference of 9 September 2013 that CK had not yet
spoken to the PPS in Northern Ireland. CK acknowledged the need for them
to visit the PPS. However, there had been only two prosecutions in Northern
Ireland, neither of which involved allegations surrounding Horizon.
History of Royal Mail and Post Office prosecution role
I have in my possession two documents, one an updated version of the other,
entitled A Brief History of Investigations, Prosecutions and, Security in
Royal Mail, that have provided invaluable insightinto the long and colourful
history of the prosecution by the Post Office and Royal Mail of offences
generally affecting the mail. This historical account helps explain the
rationale behind POL’s prosecution,role.
One of the versions of the paper Iysourced from the internet; the other was
provided to meyby POL, The version that was forwarded to me by POL was
copyrighted by»RMG in 2010; the internet version purports to be “an
amended, corrected and updated version of an earlier draft” (I have assumed
of the one sent to me by POL).
In terms of authorship, the copyright notice in the internet version gives
thanks to. Alan Baxter, former Head of Corporate Security, Post Office
Security & Investigation Services, and the late Peter Jeffers, former
Investigation Officer, Post Office Investigation Department, and later a
senior manager at BT, for their research and correction of previous errors.
The copyright notice attributes the document copyright to “Royal Mail
and/or Alan Baxter.”
For the sake of completeness, I should add that I have also been provided
with a PowerPoint presentational document that is entitled Investigations &
Prosecutions — A Brief History, which by its content suggests that it was
POL00006358
POL00006358
16.
17.
18.
19.
created after POL’s separation from RMG in April 2012, but in fact adds
nothing to the Baxter document.
Baxter’s updated version sets out in some detail the history of RMG’s
investigative and prosecutorial role, which can be traced back as far as 1683,
when the Attorney Richard Swift was appointed Solicitor to the General Post
Office, which he served for 30 years and in respect of which he had “care of
managing of all Law proceedings wherein the Office has been concerned.”
The narrative thereafter is quite literally of historical interestonly.
With the creation of separate businesses under the Post Office banner, and
following a review in 1996, and restructure, ‘the Post Office, Security &
Investigation Services Department became responsible for conducting
criminal investigations and providing specialist/advice and services to each
of the Post Office businesses.”
There was a further reorganisation in 1999 that saw the number of Post
Office business units increase, and an equal number of smaller security
teams formed in order to support those business units. Simultaneously, the
three main“ businesses: POL, Royal Mail Letters, Parcelforce Worldwide
began developing their own investigation teams to complement their security
teams, for which they drew on Security & Investigation Services staff to
tesource their criminal investigations. Leadership and standards however
were directed by the central Corporate Security Group, which was led by the
Group Security Director.
Further restructurings and a name change to RMG saw the number of
businesses reduce to four including POL, Royal Mail Letters, Parcelforce
Worldwide and General Logistics Services, Royal Mail’s international parcel
operation. However, within Royal Mail’s Group Centre, Group Security was
to continue to provide strategic direction, governance and performance
supervision, and maintained formal links with the Home Office and the
? Letters, Counters and Parcels
POL00006358
POL00006358
20.
21.
22.
23.
24.
25.
Ministry of Justice, as well as Police and Law Enforcement Agencies and
other Governmental departments. POL, Royal Mail Letters and Parcelforce
Worldwide maintained their operational security and investigation teams led
by heads of security and staffed by professional investigators and security
managers.
Royal Mail investigators were trained to rigorous standards and operated in
accordance with legislation including the Police and Criminal Evidence Act
1984, the Regulation of Investigatory Powers Act 2000),and the Postal
Services Act (which, given the apparent date of the paper, I take to mean the
Postal Services Act 2000 rather than the Act of 2011).
Security managers normally had experience in a.wide range of operational
and commercial areas, and developed technical competence in fields such as
crime risk management and modelling, physicaljand electronic surveillance,
and behavioural security. In 2010)there were a total of 287 investigators and
security managers employed within RMG.
However, although RMG investigators would enjoy access to police facilities
and to criminal)records and communication networks, they had no special
powers. Suspects would be interviewed and searched on a voluntary basis,
and, where artests were,required, the support of police officers or other
statutory law enforcement officers was usually sought.
Royal Mail Legal Services, which was the successor to the Post Office
Solicitor’s Office, would prosecute on RMG’s behalf in England and Wales.
Outside England and Wales, pre-separation Royal Mail Security teams
reported alleged criminal activity to the Procurator Fiscal in Scotland and to
the PPS in Northern Ireland, following the same processes as the police
services in those two countries.
As indicated above, to this day, RMG retains a residual prosecution function
covering its own areas of business, such as theft by postmen.
POL00006358
POL00006358
26.
27.
28.
29.
Private prosecutions
While it is true that POL is a private prosecutor, POL is a public authority for
other purposes, and so it enjoys a curious hybrid existence.’ But it is quite
unlike the private prosecutor of an isolated case given the volume of cases it
handles annually. It has a security department, a compliance and legal team
in-house, and it instructs on a regular and retained basis a nationwide firm of
solicitors to prosecute for it in England and Wales, who also,instruct external
counsel and agents.
POL is thus the only commercial organisation (albeit Government owned) I
have been able to identify (apart from’ RMG «that retains a prosecution
function) that has a commercially based, sophisticated private prosecution
role, supported by experienced and dedicated teams of investigators and
lawyers. To that extent it is exceptional if not unique
By way of useful contrast, POL is/unlike organisations such as FACT (the
Federation against Copyright Theft), which is a trade organisation protecting
its members’ intellectual property through private prosecution, or the
RSPCA, a charitable organisation, protecting the welfare of animals by
private prosecution. Although Virgin Media successfully launched a private
prosecution in or about 2011 for commercial fraud involving set-top boxes,
that was likely to have been an isolated and exceptional instance of the
company exercising the private right to prosecute.
Like those other organisations, however, POL may and does work in
partnership with police and other enforcement agencies. But other than cases
in which there are concerns about violence or belligerence or the threat of
violence to POL personnel by the suspect or others,’ I remain unclear when
and in what circumstances POL will consider a case should be handed over
to the police and/or the Crown Prosecution Service (“CPS”). Nothing I have
* See Part VI of Schedule I to the Freedom of Information Act 2000
* See Flowchart appended to draft POL Criminal Enforcement and Prosecution Policy as Annex 1
12
POL00006358
POL00006358
30.
31.
32.
5 The two stages of the “full Code test” in the C
read provides any real guidance or criteria to be followed for such an
eventuality; thus any such decision appears to be one made arbitrarily on a
case-by-case basis.
The right to bring a private prosecution is preserved by section 6(1) of the
Prosecution of Offences Act 1985. POL is under no duty to inform the CPS
that a private prosecution has commenced. However, POL may notify the
CPS, particularly if in due course POL considers that the CPS should
prosecute the matter.
It is open to the CPS to take over any private prosecution in certain
circumstances. Although POL does not have to inform the CPS that a private
prosecution has commenced, it is open toPOL to notify the CPS especially if
it might be the case that the CPS is invited to prosecute the matter. The CPS
can take over a private prosecution in certain circumstances, but the CPS
would need to be satisfied that: (1) the evidential sufficiency stage of the
“full Code test” is met;* (2) that the publicpinterest stage of the “full Code
test” is met; and (3) that there is a particular need for the CPS as a public
authority to takeover the prosecution.°
The last consideration is designed to cover the position where the
inyestigative authoritieswith whom the CPS usually deals, such as the
police, have not brought the case to CPS attention, and yet it is a case that
merits, the prosecution being conducted by a public prosecuting authority
rather than by a private prosecutor. The CPS might consider taking over a
case where the offence is serious, where there are detailed disclosure issues
to resolve, or the prosecution requires the disclosure of highly sensitive
material.’
3 Code for Crown Prosecutors are (1) whether the
evidence provides a realistic prospect of conviction, and (2) whether it is in the public interest to
prosecute
® Section 6(2) of the Prosecution of Offences Act 1985
” See CPS website http://www.cps.gov.uk/legal/p_to_t/private_prosecutions/#an05
POL00006358
POL00006358
33.
34.
35.
The CPS may even take over a private prosecution only to stop it, even
where the full Code test is met, for instance where the prosecution may
damage the interests of justice such as by interfering with the investigation or
prosecution of another criminal offence or charge, or where the defendant
has been promised that no prosecution will follow.®
As I have commented above, it is unclear when POL will invite the CPS to
intervene, and I have no statistics to inform me how many POL prosecutions,
if any, have been taken over by the CPS, and, if so, on what grounds.
POL investigation and prosecution process, procedure and rationale
I have recently received a document entitled Conduct of Criminal
Investigation Policy,’ from which I have \extracted (and in some places
paraphrased) the following passages, which explain, from POL’s perspective,
the rationale underlying its investigation and prosecution role, and in very
broad terms the type of considerations thatyapply, the variety of cases that
may be raised, as well as the applicable investigation and prosecution
structure and regime. Those passages state:
(a) Properly conducted investigations form a key part in POL strategy
in protecting assets and reducing loss. If poorly managed, an
investigation can lead to increased risk of future loss and significant
damage to the corporate brand. In commencing any investigation
POL needs to consider the impact in terms of the protection of
business assets and limiting potential liabilities weighing against the
reputation of the organisation or damage to the brand should the
investigation fail.
(b) POL Security is almost unique in that unlike other commercial
organisations it is a non-police prosecuting agency, and is therefore
* See CPS website http://www.cps.gov.uk/legal/p_to_r/private_prosecutions/#an06
° See also paragraph 72 below
POL00006358
POL00006358
(c)
(d)
(e)
@)
subjected to the Codes of Practice and statutory requirements of the
Police and Criminal Evidence Act.
Moreover, there is another anomaly that sets POL aside from other
commercial investigators. Of its 11,800 branches, only 370 of them
are staffed by employees of POL. In the majority of cases, branches
are either franchisees or agents who receive remuneration. As
neither is deemed to be in the employ of POL, the usual practices
and procedures of an employer/employee investigation do not apply.
In cases where fraud is uncovered and good evidence of criminality
exists, a criminal investigation will’ invariably commence. At the
same time POL Contract Advisors have the responsibility of
ensuring that any contractual breaches are investigated and any
impact on the business is minimised. As a result, close
communication needs tobe maintained between the Security
Manager investigating the criminalpinyestigation and the Contract
Advisor who needs to maintain POL services.
The department must be seen, internally, as well as externally, to be
acting fairly, appropriately and within the law. The investigation
needs to be properly conducted to establish evidence that will
support a successful criminal prosecution.
Prioryto commencing an investigation the Security Manager will
have to consider:
. The seriousness of the allegation
. The level of criminality
. Any contractual, compliance or regulatory concerns
. The potential to damage the reputation of POL
. The expectations of key stakeholders.
POL00006358
POL00006358
(g)
(hy
@
@
(k)
@
Cases may be raised from various sources. In each instance the
information is passed to the relevant operational Team Leader who
will evaluate the allegation and decide whether or not a case should
be raised. Cases may be raised by a shortage at audit, or Post Office
Card Account holder complaints of fraud, or from any one of its
client bases: DVLA, Royal Mail, DWP etc.
The course of action decided upon must be proportionate and
necessary. Consideration may be given to other action that that will
not necessarily lead to a criminal investigation, such as pursuing a
civil enquiry for breach of contract or civil debt recovery.
If the decision is to proceed with the prosecution case, the file is
forwarded to CK, for advice om, charges. However, in some
instances Post Office Legal and Compliance Team (“POLCT”) will
decide on charges.
CK will prepare advice and charges for the case (or advise no
further action if appropriate). If further enquiries are required they
contact)the Security Manager direct, copying in the Team Leader
and send an Advice detailing the further enquiries. The Advice
along with chargesand case file is then sent back to casework.
The file is then forwarded to the designated prosecution authority
(“DPA”) for authority to proceed, who will review the case file and
decide whether to proceed with the advice from POLCT and CK, or
whether to take a different course of action.
If advice from CK or POLCT is to prosecute and the Head of
Security has given authority to proceed, then the Security Manager
obtains a summons. The Security Manager makes contact with the
relevant Magistrates’ Court to set a date for the suspect’s first
appearance at court. Summonses are also applied for. Upon receipt
POL00006358
POL00006358
36.
37.
38.
39.
of the summonses the Security Manager will serve the summonses
by way of posting them to the person concerned.
Although POL may handle a variety of cases, the cases that have been the
subject of CK’s review typically involve the prosecution of sub-postmasters
or those working for or under them in sub-post offices. I do not believe of the
case reviews or files sent to me I have seen a single prosecution case
involving a Crown Post Office employee or an agent in the sense of an
employee of a Co-op or a WH Smith for instance. The typical offence with
which individuals are charged is theft and/or false accounting, though fraud
by false representation often features.
Jarnail Singh, POL’s in-house criminal lawyer, informs me that in 2012/2013
239 cases were raised, of which 48 were “prosécuted.'° In that year,
compensation or confiscation sums amounted to,in excess of £1.5 million,
while the cost of prosecuting thosé)cases was running at £217,000.
It is important to understand that POL’s prosecuting role is not founded in
any statutory power, and, as observed above, like RMG its predecessor, its
investigators areé,accorded no special powers. Thus, when POL prosecutes it
prosecutes purely as a private prosecutor.
An email from Charles Colquhoun, the Head of Corporate Finance, details
the value of prosecuting in safeguarding network cash (by which I
understand him to be arguing why POL should continue to conduct such
prosecutions rather than assign it to any outside agency). He sets out three
principal arguments for retaining its prosecution function:
i. POL’s prosecution function provides a clear signal to the whole
network that offences of dishonesty will be taken seriously both by
POL and the courts. Given the publicity such cases receives, the
Tam however unclear what the breakdown is as regards the nature of case and offence charged
POL00006358
POL00006358
40.
41.
network would quickly realise if there were a change in policy, which
might increase the temptation for some agents.
ii. Retention of its prosecution role assists POL with its relationship
with its insurers in that POL has one of the largest crime policies on
the London market, which is underwritten by over 20 insurers. POL
has an excess of £1m so most branch cash is self-insured, but POL’s
insurers are impressed by how seriously POL takes any leakage in
network cash, so a change in its prosecution policy might worsen its
relationship with its insurers.
iii. POL’s current policy reassures its employees (from the Board to its
front-line security teams) that securing\company assets is taken
seriously. Changing this policy would; put*some employees in a
difficult position. If, for example, POL chose not to prosecute agents,
it would be interesting to.see how it would deal with Crown
employees responsible for cash leakage.
I return to these arguments below, and welcome any further observations on
these issues from POL.
POL investigation and prosecution policy documentation
In the course of this review, I enquired after any POL prosecution policy
documentation and, although I was sent documents purporting to be policy
documents, I was surprised to learn that, a year after separation, POL’s
prosecution policy was based on RMG prosecution policy documents, and
that its policy documentation remained in draft, and had not been submitted
to the Board for ratification. However, I was encouraged to hear that CK has
been in the throes of substantially rewriting the prosecution policy
documentation for POL, and I have received their very recently drafted
document entitled Post Office Prosecution Policy - England and Wales,
which is expected to form the basis of POL’s prosecution policy. Similarly,
the document I have already referred to above - Conduct of Criminal
18
POL00006358
POL00006358
42.
43.
Investigation Policy - has recently been finalised; it is detailed and complete
but focuses on the POL investigations regime only.
The documents I have received are:
@
(ii)
(iii)
(iv)
(vy)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
Investigation Procedures — Version 2.0 — May 2002
Royal Mail Group Ltd - Criminal Investigation and Prosecution
Policy — December 2007
Royal Mail Group Prosecution Policy - Version 3.0.- April 2011
Royal Mail Group Policy Crime and Investigation (S2) — Version
3.0 — April 2011
Royal Mail Group Policy Prosecution.(S3) — Version 3.0 — April
2011
Post Office Ltd — Security Policy [Theft and Fraud by Sub Office
Assistants] — Version 1.0 — February 2002.
Post Office Ltd — Security,& Audit Policy [Enquiries at Sub-Post
Offices owned by Multiple Partners}— Version 1.0 — undated
Post Office Prosecution Policy — Version 1.0 — April 2012
Post Office Ltd - Internal Protocol - Criminal Investigation and
Enforcement — undated
Post Office Ltd - Criminal Enforcement and Prosecution Policy —
undated
POL Criminal Enforcement and Prosecution Policy and Appendix
1 flowchart — undated"
Post Office Prosecution Policy — England and Wales — November
2013
Post Office Ltd - Conduct of Criminal Investigation Policy —
August 2013.”
Investigation Procedures (listed at (i)) above) is not expressed to be an
RMG/POL document, although the “Post Office” is referred to in the body of
" Referred to in the document as “Annex 1”
” There are two versions: one I have been told was drafted for Board purposes and the other as a
working guide to investigators. They are to all intents and purposes identical
POL00006358
POL00006358
44.
4S.
46.
47.
the document.'* The document is effective from May 2002, and was
therefore current 10 years before separation, and is directed at “Consignia
Security Managers undertaking investigations”. I have not been supplied
with any updated version. Accordingly, I disregard it as irrelevant.
Also, I ignore the document listed at (ii) above, as this is several years out of
date and appears to me superseded by more recent documents. The document
at (iv) appears to be derivative, and an updated version, of the document at
(iii), and so I deliberately disregard document (iii) also.
The documents listed at (iv) and (v) above, Royal Mail Group Policy
Crime and Investigation (S2) and Royal MailGroup Policy Prosecution
(S3), are high level policy documents, respectively setting out the principal
perceived criminal risks to RMG and its investigation response, and RMG’s
policy to prosecute those who have been investigated and who are believed
to have committed a criminal offence against RMG.
Document (vi), Post Office Ltd ~ Security Policy [Theft and Fraud by
Sub Office Assistants] is dated February 2002, and document (vii), Post
Office Ltd’ — Security_.& Audit Policy [Enquiries at Sub-Post Offices
owned by Multiple Partners], is not dated. In so far as I am able to judge
they appear to be investigation policy documents. Both are expressed to be
POL security policy documents, but Post Office Ltd — Security Policy
[Theft and Fraud by Sub Office Assistants] is of course pre-separation,
and I have not been provided with any updated versions of either, and
therefore can only assume they have fallen into disuse.
The Post Office Prosecution Policy document (document (viii)) is
derivative of the Royal Mail Group Prosecution Policy document
(document (v)) but it has clearly been adapted to suit POL’s needs and field
of business. It deals with the decision-making process and it provides that in
England and Wales decisions to prosecute will be made by POL Head of
'S Paragraph 3.2
20
POL00006358
POL00006358
48.
49.
Security taking advice from POL Legal and HR “as appropriate and
relevant”, which I fail to understand as the decision to prosecute should
surely be a legal one, not a security department one.'* I observe that the term
“as appropriate and relevant” renders the hierarchy of prosecutorial decision-
making completely uncertain, fails to define roles clearly, and fails to make
clear where and at what level exactly the discretion or judgment lies from
whom to take advice “as appropriate and relevant”.
POL’s document provides also that in the event of any issue,or disagreement
arising in relation to any investigations or prosecutions, the matter is to be
referred to the Director of HR & Corporate Services to provide guidance and
advice to ensure that POL maintains a consistent. prosecution policy.'* I note
that the Royal Mail policy documenthas the, identical provision, '® but
RMG’s provision, from which POL’s is derived, is expressly based on the
fact that, “It is a requirement of the Royal Mail Group Conduct Code, fully
outlined in paragraph 8.4 of the Royal Mail Group Crime and Investigation
Policy that in reaching decisions on conduct’ code actions the Human
Resources Director or his or her representative must liaise with those
handling any criminal inyestigation or prosecution.”"”
The same provision of the RMG policy document then deals with what is to
happen in theyevent of.“any disagreement about prosecution advice in
England and Wales, or inconsistency between prosecution and conduct
decisions anywhere in the United Kingdom”, in which case the Head of the
Criminal Law Team and the Head of the Investigation Team will consider
the case and provide guidance and advice to ensure that Royal Mail
maintains a consistent prosecution policy.
Whether or not POL has the same decision-making hierarchy and Conduct
Code as RMG, to which express reference is made in RMG’s policy
\ Paragraph 4.1; I assume (possibly incorrectly) that Head of Security is a non-legal but investigative
role; and see footnote 19
'S Paragraph 4.4
'6 Paragraph 4.5
'’T have not seen RMG’s Crime and Investigation Policy document, nor RMG’s Conduct Code
21
POL00006358
POL00006358
51.
52.
53.
54.
document, is unclear. The fact that the identical POL provision avoids
reference to any POL Conduct Code rather suggests that it may not, and, if
not, highlights the problems of adapting RMG’s policy provisions without
consideration of POL’s structure.
The POL document, mirroring the RMG document, appropriately applies
“the full Code test” in the CPS Code for Crown Prosecutors to any decisions
made to prosecute.'*
The Internal Protocol for Criminal Investigation. and Enforcement
(document (ix)) “describes how POL ensures that all enforcement decisions
arising from criminal investigations are takensin accordance) with POL’s
Enforcement and Prosecutions Procedure,” It is designed “to specify the role
of POL’s Enforcement and Prosecutions Procedure (“EPP”) in the making of
enforcement decisions by POL.” “Enforcement” means “all dealings with
staff, sub-postmasters or other members of the public resulting in prosecution
and/or commencement of confiscation proceedings.” The document is,
however, a single page document, it is undated, and I am unconvinced it is
complete. It purports to annex to it (as Appendix A) a flowchart, which, if it
exists, is missing from the documentation sent to me.
Post Office Ltd - Criminal Enforcement and Prosecution Policy
(document (x)) is an important document. I take this to be the EPP referred to
in the Internal Protocol (to which that document occasionally refers). It aims
“to ensure a fair and consistent approach to criminal enforcement decisions
by POL nationally, provide POL security managers and legal advisers with
guidelines enabling them to reach enforcement decisions in line with
government guidance/standards, and inform the public and businesses of
principles applied by POL, which guide enforcement decisions.”
Under the “Introduction” section, the document sets out the underlying
policy, namely, that POL’s role is to provide affordable and reliable services
® That is to say the two-stage test involving the evidential and public interest stages
22
POL00006358
POL00006358
55.
56.
57.
58.
to the public through its retail operation. It continues, “POL is mindful that
criminal acts against its business (in particular theft, fraud and false
accounting) result in increased costs to the taxpayer, impact on its customers
and challenges the viability of services.”
It sets out how it intends reducing criminal acts against its business: by
advice and education, fully investigating reported concerns, taking action
(criminal or civil enforcement and disciplinary action) in appropriate cases,
and in other instances (which are not specified) handing over investigations
to the police to consider enforcement action.
The four guiding “Principles of Enforcement” are said to be proportionality;
a fair and consistent approach; transparency; andyenforcement to be focused
where it is needed most. Each is then developed separately.
The document thereafter sets out_POL’s “Enforcement Options”. The
application of the options available to POL is,said to “depend on the impact
on the integrity of POL and the services it provides to the community, risks
to people or tothe environment, the past history and attitude of the offender,
the consequences of non-compliance and the likely effectiveness of various
enforcement options.” In particular, POL will consider:
g The seriousness of any offence and extent of harm
. Duration of the offence
. The suspect's age, physical and mental condition
. Any voluntary disclosure or confession made by the suspect
. Previous convictions or evidence of offending
. Any breach of trust
* Other social factors
. Any delays in an enforcement decision being reached.
The document also outlines the actions, which are available outside the
criminal process, which includes informal action, disciplinary proceedings,
and civil proceedings.
23
POL00006358
POL00006358
59.
60.
Under the heading “Criminal Enforcement”, the document states:
Prosecution will be brought where the circumstances warrant it and where the
alternative enforcement options are considered to be inappropriate. Any decision
to prosecute will take account of the criteria set out in the Code for Crown
Prosecutors.
There must be:
* Evidence of guilt sufficient to give a realistic prospect of success in criminal
proceedings, and
¢ A prosecution must be deemed in the public interest.
Where there is a realistic prospect of conviction and formal action is in the
public interest, circumstances, which warrant a prosecution may include?
* Where the alleged offence has resulted)in significant losses or impact on
POL and the public
* Where the alleged offence involved a flagrantor intentional breach of the
law
* Where there is a history of similar offences
* Where the offender has refused/to accept wrongdoing despite significant
evidence to the.contrary
* Where the offender has failed to repay or make amends for any significant
wrongdoing
POL will consider the following circumstances when deciding whether or not to
prosecute injaddition to,those above:
* The seriousness and effect of the offence
*) The deterrent effect of a prosecution on the offender and others
° Any mitigating factors
The deeision to proceed with a prosecution will be taken by the Head of Security
of POL, upon legal advice.”
The document goes on to deal with such matters as confiscation proceedings,
appeals and complaints, adherence with the policy (said to be mandatory, and
advising that any departure must be exceptional and capable of justification).
This reflects the hierarchy about which I have commented above as regards document (viii).
Provision for the Head of Security (DPA) to authorise prosecutions is found in document (xiii) at
paragraph 20.9 and in the introductory flowchart at page 4 of document (xiii) (see also paragraph 35(k)
above)
24
POL00006358
POL00006358
61.
62.
63.
64.
The document requires periodic review. Although there is at the foot of the
last page of the copy document sent to me a box allowing for insertion of the
date of implementation of the policy, the date for its review, and the date of
its formal approval, each is blank.
I am left totally unclear of the current status or origin of the Internal
Protocol for Criminal Investigation and Enforcement (document (ix)) and
the more impressive and detailed Criminal Enforcement and Prosecution
Policy (document (x)) and how they, particularly document\(x), are intended
to fit within the new policy regime.
The document, clearly in draft, and undated; and entitled POL, - Criminal
Enforcement and Prosecution Policy (document (xi)) which annexes as
Appendix 1 a flowchart, describes itself as “intended to be the new public
facing policy under which Post Office will conduct all future investigations
of alleged criminal activity againstthe Post Office”. It states that it follows a
review of current policy, which was latgely’ based on previous RMG
policy.”
How, if atvall, itis, or was, designed to sit with the far fuller and detailed
namesake Criminal Enforcement and Prosecution Policy (document (x)),
towhich T have made extensive reference above, I know not. The draft
document sets out in short form and in basic terms over a mere two pages
someof the policy ideas found elsewhere.
It is probable that that draft has been superseded by the document entitled
Post Office Prosecution Policy — England and Wales (document (xii)),
which by its projected effective date (November 2013, with a review date in
November 2014) is clearly the most recent prosecution policy document I
have read. Simon Clarke of CK has authored it. It sets out POL’s policy in
eight sections, and appears to me to have been modelled in some respects on
the CPS Code for Crown Prosecutors. All its terms will require some very
2° Paragraph 1.2
25
POL00006358
POL00006358
65.
66.
67.
>! Page 7
careful consideration before it becomes final policy. It is important that
POL’s prosecution policy documentation includes criteria that accurately
reflect POL prosecution policy and its guiding principles.
While it is not the principal function of this review to critique a draft
document that may in time be submitted to the Board for approval as
reflecting POL prosecution policy, nonetheless, I do have some preliminary
comments to make about it.
Paragraph 1.3 in the “Introduction” section states, “This Policy statement is
intended to explain the way in which Post Office Ltd will deal with
allegations of crime committed against,our assets in England and Wales”.
Footnote 1 makes the bold claim, “Post Office Ltd isa recognised prosecutor
by the Ministry of Justice; currently Post Office Ltd delegates the
prosecuting function to Messrs Gartwright King Solicitors.” An identical
claim was made for RMG in the document A Brief History of
Investigations, Prosecutions and Security in Royal Mail.”! 1 am
unconvinced that this is or has ever been an accurate statement. The right to
prosecute privately is conferred by section 6(1) of the Prosecution of
Offences Act 1985, and I would be surprised if POL or RMG has ever been
“recognised” by. the Ministry of Justice to prosecute privately in any official
sense.
In section 2,,the scope and aims of the policy document are set out; it
explains that POL is a public body catering for a wide range of essential
public and commercial services; that POL carries a heavy responsibility for
the guardianship of public and private assets, and emphasises the
incumbency on POL to ensure its integrity and reputation is protected. **
Accordingly, the document states POL will, subject to the terms of the policy
? Paragraph 2.1
26
POL00006358
POL00006358
68.
69.
70.
document, prosecute those alleged to have committed criminal offences
against it, whether employee, non-employee, contractor or customer.”*
In the section headed “General Principles”, the test to be applied to the
decision to prosecute is appropriately expressed to be the two-stage test
within the Code for Crown Prosecutors (“the full Code test”),”* in addition to
which POL will apply the further considerations set out in the policy
document.
The decision-taker is to be a qualified lawyer independent of any POL
department having a direct financial or other interest in prosecution.” This is
said to mirror CPS practice. I have however detected two difficulties: (1) this
provision seems to me to be in conflict with the identification of the Head of
Security as the ultimate decision-taker (the DPA) as revealed in other policy
documents including the very recently drafted Conduct of Criminal
Investigation Policy document)(document (xiii));?” and (2) in logic, this
provision might exclude any POL in-house lawyer or the Director of HR &
Corporate Services (if the hierarchical dispute resolution envisaged in Post
Office Prosecution Policy (document (viii)) is, or is to be, written into POL
policy) and’such.a provision might even exclude CK and its lawyers, as they
are arguably excluded by the terms of paragraph 3.3.ii. The decision-making
hierarchy and this provision therefore needs reconsideration.
The section headed “The Decision to Prosecute” then sets out factors, which
it is said\POL will apply, in addition to the full Code test. But the list of
factors are not expressed to be non-exhaustive, which, in my judgment,
might also require reconsideration. “Disclosure” is confronted in section 6,
and the “Acceptance of Guilty Pleas” in section 7, albeit no reference is
made to the Attorney General’s Guidelines on the Acceptance of Pleas,
> Paragraph 2.3
** Section 3
* The test is however never set out in terms in the document
6 Paragraph 3.3
” See paragraph 47 above and footnote 19
27
POL00006358
POL00006358
71.
72.
73.
which does have some application, in particular, “Section C. The Basis of
Plea”.
Moreover, the comment I have made about document (xi) above applies with
equal if not more force to document (xii), namely, the lack of reference in the
newly drafted document to POL’s draft EPP as set out in the Criminal
Enforcement and Prosecution Policy document (document (x)), the status
of which is entirely obscure but ought reasonably to form a basis of policy.
Furthermore, while the draft document (document (xi)) ‘annexed to it a
flowchart, the new document is silent about it.
I have been informed that the Conduct of Criminal Investigation Policy
document (document (xiii)) was prepared as a working guide for POL
investigators and another similar version was prepared for POL’s Board. I
understand the document to have been prepared)in-house by Rob King and
others, but was considered, or contributed to, by Hugh Flemington, Jarnail
Singh as well as Martin Smith of CK. Iyunderstood from my telephone
conference of 17 October 2013 with Rob King and Andy Hayward that the
document wasy only finalised this year. Its focus is clearly criminal
investigation and not criminal prosecution. I note that, in addition to the
passages I have exttacted above,”* the document makes reference to the SS
Interim Reportand Horizon‘issues as they affect current investigations.”
The current state of affairs is unsatisfactory. POL separated from RMG in
April 2012, yet, despite the recently CK draft policy document Post Office
Prosecution Policy — England and Wales (document (xii)), and the
Conduct of Criminal Investigation Policy document (document (xiii)),
emanating from POL’s Security Department, the position in late 2013 is that
there exist several enforcement and prosecution policy documents, whose
precise status, origin and currency are uncertain, and there is none still that is
official POL policy.
° See paragraphs 35(a)-(1) above
» Paragraphs 6.7, 12.6, 12.7, 12.8, 24.1 (using the working guide version numbering)
28
POL00006358
POL00006358
74,
I have made recommendations about this above, which include a complete
review of all historic draft POL policy documentation to ensure that the
recent draft policy documentation, (which I also recommend be submitted to
the Board for ratification), completely and accurately reflects POL policy in
this area. Moreover, in the interests of complete transparency, such policy
documentation should be widely promulgated within the organisation on
POL’s intranet, and consideration should be given to their publication on
POL’s website. After all, if POL’s enforcement and prosecution policy is to
“Provide POL security managers and legal advisers with guidelines enabling
them to reach enforcement decisions in line. with government
guidance/standards”, and “Inform the public and businesses of principles
applied by POL, which guide enforcement decisions”
then there is every
reason to publish those guidelines within the, organisation as well as
externally so that the wider public may be fully informed about them. As a
public prosecuting authority, the CPS publishes,its policies on its intranet
and on its website. There is no reason POL should not do the same.
* Criminal Enforcement and Prosecution Policy (document (x)), page 1, first paragraph, second and
third bullet points
29
POL00006358
POL00006358
DISCUSSION OF THE CASE FOR AND AGAINST THE
75.
76.
77.
RETENTION BY POL OF ITS PROSECUTION ROLE
The arguments
The principal arguments for the retention by POL of its
investigative/prosecutorial role are visibility and the effect of deterrence, “a
clear signal” that POL will not tolerate dishonesty across its network. Thus,
to assign an important function, for example, to the CPSy would be to send
out the wrong message.
I would remain confident that if POL were todivest itself of its prosecutorial
function, any such change would be managed in a way that the network
knew that this was not a change of policy signifying POL was relaxing its
view on dishonesty, but rather a change of approach, so that POL’s network
of staff and agents would realise.that dishonesty would continue to be
viewed extremely seriously and would, in appropriate cases, be reported to
police.
Indeed, I suspect it is hardly likely that those working for POL (whether
employees or agents) would suddenly regard a change of policy as a
temptation to offend when’ previously they would not. A change of POL
policy in this regard would not mean a change in the criminal law, and all
staffand agents must surely know that theft and false accounting are contrary
to the criminal law, and will be reported and prosecuted, whoever’s function
it is to prosecute such criminal offences. All should be aware of POL’s
expectations through training, contractual documents and operation manuals,
if POL’s Criminal Enforcement and Prosecution Policy is (or is to be) an
accurate statement of policy.*' Therefore, with respect, I do not agree that a
change of prosecuting function, properly handled, would unavoidably send
out the message Mr Colquhoun fears.
*! See page 2
30
POL00006358
POL00006358
78.
79.
80.
81.
The second point Mr Colquhoun makes goes to one aspect of the business
case for retention, about which I am in no position to comment. My review is
not to consider the business or reputational case for retention, which is
another matter entirely, and beyond my remit; mine is to look at POL’s
prosecution role purely from a functional perspective to see if there is a
better case for POL’s prosecution arm being subsumed into the prosecutorial
function of an existing public prosecuting authority such as the CPS.
As regards Mr Colquhoun’s third point, while I accept that POL has assets to
protect, and that POL takes seriously securing company assets, in that regard
POL is no different to banks and other financial and business organisations,
who have no prosecution function, and who rely on the police and other
enforcement agencies and prosecuting authorities, such as the CPS or the
Serious Fraud Office, to investigate and prosecute criminal offending against
them.
It may indeed be anomalous that of POL’s 1,800 branches only some 370 of
them are staffed by employees of POL, but that does not mean that agents are
any more likely to offend than Crown employees or others. The real
distinctionyif one is to be made, is that agents such as sub-postmasters are
likelier to be working in smaller concerns, often as an adjunct to a self-
owned business, with less.or no on-site supervision, but I do not accept that
the mere change of policy would affect the behaviour of otherwise law-
abiding agents and staff.
I have struggled also to understand the point, in the context of the review I
am conducting, that changing POL policy would put some employees in a
difficult position. If the recommendation were that POL should assign its
role of prosecuting POL agents only, then I might understand, but that is not
what is at stake. I am not asked to consider splitting one part of POL’s
prosecution role while retaining another, and thereby recommending that
POL adopt a differential approach towards employees as distinct from
agents. If I were to recommend that POL should lose its prosecution function
31
POL00006358
POL00006358
82.
83.
84.
85.
that would have to apply across the board — not just to the prosecution of
agents.
The Post Office Prosecution Policy — England and Wales document
(document (xii)) emphasises POL’s responsibility for, and guardianship of,
its public and private assets, and the protection of reputation and integrity as
important policy aims. The Conduct of Criminal Investigation Policy
document (document (xiii)) argues that properly conducted investigations
form a key part in POL strategy in protecting assets andfeducing loss, and
that, if it is poorly managed, an investigation can lead to increased risk of
future loss and significant damage to the Corporate) brand, and in
commencing any investigation POL needs to,consider the impact in terms of
the protection of business assets and limiting potential liabilities weighing
against the reputation of the organisation or damage to the brand should the
investigation fail.
What has potentially damaged POL’s brand.is’ the Horizon Online issue,
which has shone a spotlight on POL, and its prosecuting function, as never
before. The adyerse publicity about it is also detrimental to public confidence
in the criminal justice system in general and POL’s prosecution capability in
particular.
Tt.is an irony that the’Horizon issue was not something POL could have
reasonably foreseen. The justifiable criticism that there have been possible
miscarriages of justice in prosecutions based on Horizon Online data is
directed at the integrity of the data system underpinning those cases, for
which POL as the prosecutor is and remains accountable. The criticism also
embraces Horizon Online training and support.
POL has taken appropriate steps to ensure that past and current criminal
cases potentially affected by Horizon Online integrity, as well as training and
support issues, are being properly addressed by establishing through CK a
thorough and complete continuing review of the question of disclosure in
these cases. A mediation scheme has also been established.
32
POL00006358
POL00006358
86.
87.
88.
89.
The difficulty that presents itself to POL now is that a number of
convictions, as well as current and pending cases, are and have been reliant
on the correctness of Horizon Online data and the integrity of the system,
and, in the context of the prosecution process and POL’s obligations, the
proper disclosure of material that might reasonably undermine the
prosecution case or assist the case for the defence. It is that, which is the
focus of CK’s review that is underway.
In light of the SS interim report of 8 July 2013, POL and CK are presently
engaged in an on-going rigorous and robust process of siftiand review of all
affected past and present cases. The focus is on'the alleged non-revelation to
POL and CK of relevant material by the Fujitsu Services Ltd (“FSL”) expert
customarily relied upon by POL to support theyintegrity of Horizon Online
data, which underpins its prosecutions.
In cases, which are subject to the disclosure,regime under the Criminal
Procedure and Investigations Act 1996 (“CPIA”), CK is applying the test for
disclosure as provided in section 3 of the CPIA to the material it now has in
its possession. In past cases, CK is asking itself the question whether had
POL been in possession of the material at the time of the prosecution it
would have disclosed it in,compliance with its disclosure duties, recognising
its obligation post-conviction to disclose any information that might cast
doubt.on the safety of the conviction.
Against that background, I have to determine whether there would be real
advantage in these cases for POL to divest itself wholesale of its prosecution
function. Focusing on the current issue, which brings about this review, in
my judgment, were POL’s investigative/prosecutorial operation to be handed
over to the CPS, for example, as being the only viable public prosecuting
authority able to prosecute them, the CPS would find itself in a
comparatively disadvantageous position from which to advise on charge and
to prosecute POL cases. It would be in a disadvantageous position, because
there would inevitably not be the centralised oversight nationwide that POL
33
POL00006358
POL00006358
90.
91.
92.
93.
enjoys, or none as efficient as POL’s. It would involve CPS branch or
regional offices local to the commission of the offence (possibly also
supported by the local police force) deciding on charge and, if charged,
prosecuting the cases. Realistically, this would mean a fragmented approach,
with little chance of central control or close oversight of these cases, or the
issues affecting Horizon.
The claimed problems with Horizon Online would not disappear, but in my
opinion decentralisation of the investigation and prosecution of these cases
could only operate to exacerbate the difficulty, and would inevitably lead to
an inconsistent approach and barely reconcilable decisions being taken.
Having considered the issues carefullyy 1 can ‘see no advantage to POL
shedding itself of its private prosecution, function, and in fact only
disadvantage. If POL’s policy is to operate a prosecuting policy that is fair,
open and consistent, then I cannotsee that anything other than retention of
this role by POL will achieve that.
The real benefit to POL retaining its function, which in my opinion risks
becoming totally diluted or lost if its function were assigned to a public
prosecuting authority such as the CPS, is POL’s undoubted expertise at
inyestigating and prosecuting the very nature and volume of cases it handles
annually, which provides it with a unique specialism inevitably leading to
goodand efficient use of its resources, as well as efficacy. That is not just of
real benefit to/POL but in my judgment it is also of real benefit to the general
public and the communities POL serves.
Moreover, POL has the distinct advantage of understanding intimately its
products, its customers, its operations, and the business of those it employs
and contracts with as agents; it understands its data systems and its functions,
although, as recent events have proved, POL was unaware of, and left
exposed by, allegedly relevant integrity issues with Horizon Online, and was
unable therefore to meet its disclosure obligations towards those it was
34
POL00006358
POL00006358
94.
95.
96.
97.
prosecuting where the Horizon Online system was or became an issue in the
case.
In my opinion, there is no other organisation better placed than POL to
perform this important function. Even if the police and the CPS had been
carrying out the investigation and prosecution of those cases, which have
become the subject of the current review, I do not see that they would have
been in any better position than POL to appreciate the integrity issues, if, as
is said to have happened, they were not revealed to POL, by, the FSL expert
they instructed to report upon Horizon’s integrity. Had that been the
scenario, the CPS would have been in no better position to disclose the
alleged Horizon Online defects or “bugs” than POL has been.
Although this is not a point that I have weighed in the balance in reaching
my conclusions, nonetheless I think I should make the observation that if
POL were to decide that it wished»to free itself of its prosecution role to the
CPS, in these times of budgetary restraint)and depleted resources, from
which the CPS has been far from immune, J think it unrealistic for POL to
expect the CPSto welcome it, especially now.
The last_consideration brings me also to consider one other hybrid
possibility. Is there any..sensible and rational argument to split POL’s
prosecution function from its investigations function? What is envisaged here
is that while POL would continue to investigate the nature and number of
criminal offences now investigated by it, the decision to charge in those
cases, and the resultant prosecution of individuals so charged, would be in
the hands of another public prosecuting authority such as the CPS. The effect
would be to divorce the investigation of POL cases from the ultimate
prosecution of them.
From the CPS perspective, the position would be no different in principle to
the investigation of cases by the police in the ordinary run of criminal cases,
and the submission of files to the CPS for a decision as to charge. Such a
scheme would not be substantially different to those situations, which I
35
POL00006358
POL00006358
98.
99.
expect must obtain now, where POL decides it should involve the police and
CPS; POL investigators will retain involvement but the investigation itself is
in partnership with the police (rather than the involvement of police being
only for intelligence, arrest and/or search purposes), and, once complete, the
file will be submitted to the CPS for a charging decision. I can see that there
will be situations now where police involvement might be necessary, such as
cases where there are concems about the threat of violence or belligerence to
POL staff by the suspect or others, or where the suspected offence or
offender is such that the police and ultimately the CPS are considered better
placed to deal with the case. But these must be rare or exceptional cases
given the nature of the suspected offending POL typically investigates.
However, it is not the rare or exceptional case that the hybrid scheme
envisages, but a wholesale divestment )of, the’ decision-making and
prosecution function over cases POL investigates. While it may be argued
there may be reputational or commercial advantage to POL in promoting
such a scheme, (which I emphasise is not aymatter for this review), first, it
suffers the identical disadvantages have highlighted above, and, second, the
practical reality, to which I have also already adverted, is that the CPS is
unlikely to’be receptive to a request to assume ownership of the volume of
cases raised and/or prosecuted by POL annually.
Trecognise that I have-to a large extent focused on Horizon issues that have
givemrise to the current review. I acknowledge also that the question whether
POL should retain its prosecution role is a much wider question for POL,
which includes strategic considerations of reputation, and the business case
for retention that includes, but is not necessarily limited to, the current
problems, which have understandably triggered this review. I do make clear
that, although the current review has been a direct response to the criticism
of prosecutions based on Horizon Online, the view I have arrived at is one
based on a general view of POL’s role and is not limited to how it has dealt
with Horizon Online cases. Consequently, these considerations apply equally
to the ordinary investigation and prosecution of POL cases, even where no
Horizon issues are involved.
36
POL00006358
POL00006358
100.
101.
102.
103.
The potential for a conflict of interest
One other issue, which I have necessarily considered with some care, is
whether FSL’s commercial relationship with POL, and the expert witness’s
employment with FSL, did create, or was capable of creating, a conflict of
interest, incompatible with the prosecutorial duties and obligations POL has
as a prosecutor.
There are bound to be quite understandable commercial sensitivities to FSL’s
systems, which I am confident it would ordinarily be loath to divulge to its
competitors, as would any company in ifs position. FSL is in a contractual
relationship with POL, and the expert relied upon to speak to the integrity of
the system is himself employed by FSL, and he was one of its architects.
If commercial sensitivity about the integrityyof.a system were to lead to the
non-revelation of adverse issues with the very system used to underpin POL
criminal prosecutions, then that would be inimical to POL’s prosecutorial
duty to act’fairly and. to disclose relevant material. It would, if it existed,
create an intolerable conflict of interest. The two positions would be entirely
incompatible. make perfectly clear that I have seen no evidence, and I have
heard no suggestion, that what is said to have happened here was due to
commercial sensitivity or any real or perceived conflict of interest between
POL and)FSL, or on the part of the expert, and I would reject any such
suggestion if made. On the contrary, I am told that FSL has cooperated with
the current review process, and I am informed that it was in fact the expert
who brought to SS’s attention the two defects or “bugs” they mention in their
report at sections 6 and 8.
Although the duties to the court of an expert are plain and have been well
rehearsed by the Court of Appeal, the Horizon expert relied upon by POL
found himself called upon to give expert evidence about Horizon Online for
no other reason than that he was (and is) if not the, then a, leading expert on
37
POL00006358
POL00006358
104.
the operation and integrity of Horizon Online. Thus, his depth of knowledge
about the Horizon system of which he was an architect is and was unrivalled,
and POL was justified in seeking his expert assistance in dealing with
integrity issues affecting Horizon Online for court proceedings. Moreover, I
note also that, although the Horizon expert who POL has customarily relied
upon to speak to the integrity of the Horizon Online system has made several
witness statements for a number of POL prosecutions, which rely on the
integrity of Horizon Online data, he has only ever once given evidence
before a court, and that was in October 2010, but in relationto a case dealing
with events that took place between 2005 and 2008, and so unlike some
experts who appear before courts regularly; he is far from being
characterised as a professional witness.
The question remains whether the fact of the commercial relationship that
must exist between POL and its IT provider, in the circumstances obtaining
here, ought to make any or any substantial difference to POL’s prosecutorial
role. While in the type of situation here there.isvalways the potentiality of a
conflict of interest between POL’s obligations as prosecutor and the
commercial sensitivity of any third party IT provider upon whose data POL
must rely for the prosecution and ultimate success of its cases, if the parties
were to provide for POL’s prosecutorial duties and obligations, by a protocol
ormemorandum of understanding between them, a situation like the present
might be prevented from occurring in the future. I make recommendations
aboutthis above, although I understand that this is already in hand.
38
POL00006358
POL00006358
105.
106.
107.
108.
E.___ CONCLUSIONS
It may be thought that POL’s prosecution role is anachronistic, and highly
problematic in light of recent events. Its prosecution role today is certainly
based on the historical protection afforded to the mail, which I assume was
itself founded upon the historical importance of protecting an important
means of communication and commerce. The role today is couched in terms
of guardianship, and the protection of assets, integrity and reputation.
However, the recent events have to be seen in their proper context. The serial
non-disclosure of relevant material occurred in circumstances in which POL
asserts that it and its advisers were wholly unaware that there might be
disclosable material or information, and’so, whatever the reason, were not
placed in a position whereby they knew of its existence and could deal with
it appropriately.
Because the only source of knowledge and.information about Horizon
Online and possible Horizon defects or “bugs” was exclusive to FSL and
those who were knowledgeable about it, such as the expert (whose special
knowledge“inevitably led him to cross over from the commercial world to
that of expert witness in criminal proceedings), POL was, inevitably, in a
position where\it was wholly dependent on FSL and/or the expert to reveal
material so that POL could perform its prosecution duties, which in the event
it was unable to do. SS has now reported its preliminary conclusions and
POL has acted rapidly to put in place a full review of all impacted cases.
Therefore, POL, with its unique commercial arrangement with its IT
supplier, also became somewhat hostage to it. I pass no judgment on what
happened here and why; there is no evidence that permits me to do so, and it
is beyond my remit. At all events I have not heard from FSL or the expert
and so anything I did say would be unfair speculation. While the commercial
relationship between POL as prosecutor and FSL as IT supplier may be
unique, and potentially troublesome, it is by no means exceptional for there
to be allegations of non-disclosure in criminal cases of every nature in all
39
POL00006358
POL00006358
109.
types of situations. The Court of Appeal Criminal Division frequently hears
appeals on conviction based on allegations of non-disclosure. In the event of
there being any appeals to the Court of Appeal arising from Horizon Online
integrity issues, it will be a matter for the court to determine whether any of
those convictions have been unsafe.
I have concluded that the non-disclosure of material alleged here should not
result in POL assigning its investigation or prosecution role to police and/or
another public prosecuting = authority, given’ that = POL’s
investigative/prosecutorial function is well-organised/and efficient, and, by
the nature and volume of cases that it deals with annually, provides specialist
knowledge, expertise as well as real benefit*to POL and to the public
generally, which would be otherwise diluted or lost. That is not to say that
those within POL may not wish to consider the business case for retention, as
well as any reputational issues that flow from it)as to which I expect there
may be interesting argument. Butpas I have indicated, they are not matters
for this review.
Brian Altman\Q.C.*”
2 Bedford Row
London WC1R 4BU
31 October 2013
*” Brian Altman is a practising barrister. He was appointed First Senior Treasury Counsel to the Crown
at the Central Criminal Court by the Attorney General in December 2010, and he remained in post until
the end of his tenure in June 2013. He was appointed Junior Treasury Counsel in 1997, and Senior
Treasury Counsel in 2002. He was appointed a Recorder of the Crown Court in 2003, Queen’s Counsel
in 2008, and he was made a Bencher of Middle Temple in 2010. For further details, go to
http://www. 2bedfordrow.co.uk/_member/25
40
POL00006358
POL00006358