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POST OFFICE LIMITED
GENERAL ADVICE
1. Alternative Fujitsu expert.
i. I suggest Fujitsu be told something in the following terms:
Gareth Jennings has provided expert evidence in a number of POL
prosecutions. In addition he was involved at least in part with the Second
Sight process, by forwarding details of B63 and B14 to SS.
Counsel has advised POL that there ought now to be at least one degree of
separation between any expert witness called in support of a POL
prosecution and the SS process. Accordingly POL should instruct an
alternative expert with the appropriate knowledge of Horizon to provide
such evidence. Such an expert should deal both with any new case in
addition to those cases presently under prosecution and where Gareth
Jenkins has provided a report.
2. Royal Mail
i, It is plain from our discussions that cases prosecuted by RMG prior to the
POL/RMG separation will also fall within the scope of the Second Sight
Interim report. Accordingly RMG ought to be informed of the fact.
ii. I would advise that RMG be told of the following matters:
i. Second Sight Interim report is to be published at 6.00pm this evening.
ii. The report highlights a number of areas of concern relating to the
operation of Horizon, Horizon and SPMR training and Horizon
customer support functions.
iti.
vi.
vii.
viii.
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Those areas have implications for the conduct of prosecutions both past
and present, in particular relating to prosecution duties of disclosure.
These implications apply both to current cases and to those which have
now been resolved, whether by conviction after trial or by guilty plea.
At issue is the reliability (or, in Ct of Appeal language, the “safety”) of
any conviction.
Not all cases are susceptible to Court of Appeal interference; indeed it
is unlikely that more than a handful of cases will be the subject of
reconsideration.
Regardless of v. above, prosecutors have a continuing duty to ensure
that they have at all times acted properly within the prosecutorial
function.
Where the prosecutor (POL or RMG) becomes aware of fresh
circumstances (unknown at the time of conviction/plea) which suggest
that a conviction may not be safe, the duty in vi. above extends to
reviewing both past and present cases so as to ensure that, in the light of
the fresh circumstances, any conviction could be said to be safe. That
review process consists of considering the cases advanced by POL and
the defence; ascertaining whether the fresh circumstances, had they
then been known to POL, “...might reasonably be considered capable
of undermining the case for the prosecution ...or of assisting the case
for the accused...”
By reason of the matters dealt with in the Second Sight Interim report,
the report falls squarely within vii. above.
Accordingly POL has instructed CK to conduct a review of all cases
prosecuted by POL so as to ensure compliance with their duties as
prosecutor. Where it is determined that the Second Sight Interim report
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and contents fits within the scope of the CPIA 1996 as disclosable to
the defence, defence solicitors will be so informed. Thereafter it is a
matter for those defendants as to what course they take, POL’s duty
being satisfied by the conduct of a review process and the informing of
those whom ought to have been informed had the matters contained
within the Second Sight Interim report been available when prosecuted.
As for cases presently under prosecution but yet to reach trial or plea
stage, these cases too are being reviewed so as to ensure that, where
relevant, the Second Sight Interim report is appropriately considered.
3. Start Date for Review Process
i.
iii.
A number of start-dates are suggested: 12-months back from today: the
date of separation of POL from RMG; the initial HOL migration date;
others.
Considerations as to the selection of the start-date include
proportionality; resourcing; transparency; and POL reputation. I have
come to the view that all of these considerations militate in favour of a
date close to the initial HOL migration date of 2010, perhaps using the
1* January of that year.
I arrive at this view not least because any SPMR prosecuted prior to
that date would have been prosecuted using original Horizon data; any
sentence of imprisonment, Unpaid Work or fine would by now have
been completed; and the publicity which is bound to arise once SS has
published will place ‘older’ defendants on notice.
Simon Clarke
Barrister
8" July 2013
Cartwright King Solicitors