POST OFFICE LTD
ADVICE ON SUGGESTED APPROACH TO
CRIMINAL CASE MEDIATION
Appeal proposal
On 31° July 2014, I held a conference call with Rodric Williams of POL and
Gavin Matthews of Bond Dickinson on the approach suggested by Sir
Anthony Hooper (“AH”) to criminal cases falling within the mediation
scheme.
As I understood it, AH had suggested that where an applicant in the mediation
scheme had admitted a criminal offence (by a plea of guilty) POL should take
one of three possible approaches to the issue of criminal appeal:
1) POL should support an appeal
2) POL should not oppose an appeal
3) POL should oppose an appeal
In the course of the conference call I pointed out that by paragraph 5.14.1 to
5.14.3 of POL’s “Settlement Policy” document (v.1.3, dated November 2013)
POL’s “standard approach” where, following investigation, grounds of appeal
are identified is: (1) to suspend the mediation process (2) to disclose the
information giving rise to the grounds for appeal and (3) to consider whether
POL “will support or oppose any appeal”. I have not been made aware of
AH’s reasoning for suggesting his approach but wondered whether it might
have been based on these provisions of the Settlement Policy document.
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I am told that the Settlement Policy document has not been (and will not be)
formally adopted by POL, and is confidential to POL, albeit POL has dealt
with criminal cases in line with that process, so that if material is identified
that affects the safety of the conviction, the process is suspended, the material
is disclosed, and the applicant considers his position as regards any appeal. If
the process that POL has been adopting within the mediation scheme is
limited in this way then I see no problem with it. The problem arises with the
notion that POL should consider its position on any future appeal.
The focus of our discussions on 31" July was around the practical utility of
such an approach. The view I expressed was that I could not see any
advantage to POL in adopting, far less being held to, a position on any
criminal appeal during the mediation scheme. In fact, adopting such a course
would be to court an unacceptable level of risk for the following reasons: -
a) As I see it, the fact that a criminal case is entered into the scheme
implies that there is or are, in broad terms, identifiable Horizon-related
issues, which require investigation. Entry into the scheme does not
necessarily imply that investigation has revealed any arguable grounds
of appeal. Indeed, even if investigation identifies material that might
give rise to grounds of appeal because it might impact on the safety of
the conviction, and the material is disclosed, that does not mean that
POL is then bound to adopt a position in advance of any such appeal,
as appears to be suggested by the draftsman of paragraph 5.14.3 of the
Settlement Policy document. In my opinion this provision (albeit it has
not been officially adopted) unrealistically seeks to bind POL at far too
early a stage in proceedings, and AH’s proposal seeks to do the same.
b) The only “new” information any applicant is likely to receive in the
course of the process is POL’s investigation report and Second Sight’s
report, both of which are narrowly based and not directed at any
criminal appeal process. Thus, by way of example, there might have
been undisclosed failings in Horizon at the time of the trial, from
which evidence was obtained in support of the conviction, but the
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c)
d)
conviction is nevertheless “safe” because the applicant fully confessed
his guilt or there is other evidence pointing to his guilt. It is therefore
important to recognise that the information gathered for the purposes of
the scheme is incomplete and does not address the real issue that the
Court of Appeal (Criminal Division) would have to consider on an
application for permission to appeal from the Crown Court, namely,
the safety of the conviction looking at the whole of the evidence.
This leads me to another issue. If only those cases in which the
applicant had admitted the offence (e.g. by a plea of guilty) have been
admitted to the mediation scheme then the scope for successfully
challenging the conviction on appeal is even less sure. The applicant’s
argument would have to be that had the new material been made
available before he entered his plea of guilty then he would not have
been advised to plead guilty and/or would not have done so. The
appeal would therefore have to be based on the “fresh evidence”
represented by the new material. But mounting a successful appeal
based on fresh evidence following an unequivocal plea of guilty, albeit
not impossible, is far from easy.
The mediation scheme is expressly not designed to be an appeal
process. The mediation pack makes clear that POL has no power to
reverse or overturn a criminal conviction but if new information comes
to light that affects the safety of the conviction, then POL has a duty to
inform the applicant, which he may then use to advance an appeal. The
applicant however does not lose or abandon his rights because, armed
with the investigation reports, he may consider with his advisers
whether or not he has any application to seek to appeal his conviction
out of time, and if so advised, may consider his grounds and later
perfect them.
It is for these reasons POL should only ever consider its position once an
applicant has considered the new material and has in fact launched a criminal
appeal. There is in my judgment an unacceptable risk to POL in providing or
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10.
being held to a position on criminal appeal at the early stage of mediation. An
indication by POL at such an early stage based on limited information risks
inviting an appeal. Also, at this stage the applicant will almost certainly not
have even considered whether the new information gives rise to grounds of
appeal let alone whether there are any grounds that are reasonably arguable.
The risk to POL is obvious: in general terms, once a criminal appeal is fully
developed (as opposed to complaint in the mediation scheme) the
circumstances may change. So POL may find itself prematurely supporting an
appeal when upon mature reflection the written grounds of appeal show it
ought not to have done so or it may oppose an appeal when events prove it
was ill judged to have done so. The middle course of not opposing any appeal
(while not supporting it) is a subtle halfway measure of not making
concessions to an applicant for appeal and adds little.
A further important consideration is that each case is different and therefore a
case-specific approach is of necessity wise, but by taking a position too early
on individual cases with too little information POL risks inconsistency among
like cases and accordingly may attract criticism.
False accounting proposal
Additionally, I am asked to consider a further recent proposal that AH has
made (set out in Andy Parsons’ email of 29" August): that POL could mediate
a case where there has been a conviction for false accounting in order to
determine liability for an underlying loss. The suggestion appears to be that
POL and the applicant could discuss the root cause of, and responsibility for, a
loss leading in some cases to a negotiated settlement of that issue without
upsetting the safety of the conviction.
During a conference call of 16" July 2014, I was asked to consider two written
Advices from Cartwright King dated 9" and 15" July 2014 on the topic of
meditating criminal cases: I did not disagree with Cartwright King’s advice in
which they continued to maintain a wholesale objection to the admission of all
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ll.
12.
13.
criminal cases to the scheme; indeed I had expressed the opinion some months
previously that it was a high-risk strategy to admit any criminal case to the
mediation scheme. However, I understood that time had moved on and a
practical solution had to be found to deal with those criminal cases that were
now within the mediation scheme.
On 16" July, I considered therefore that there was less risk in admitting to the
mediation scheme cases, in which the applicant had admitted his guilt by
pleading guilty or as a pre-condition to being cautioned, which, as I recall
discovering, embraced the vast majority of the current cases within the
scheme. Misra and Banks are conviction cases, which have also been accepted
into the scheme.
Given there are only two conviction cases within the scheme, I expect that the
practical effect of AH’s proposal is that mediation will in reality be restricted
to those cases of false accounting where the applicant had admitted his guilt.
If so, then consistent with my advice on 16" July, there would be less risk in
telative terms to mediating such cases than in the case of conviction cases (not
least because the applicant has admitted guilt when he could have contested it)
but inevitably there is always some risk in having a free discussion between an
applicant and POL around facts that gave rise to the applicant pleading guilty.
However, I question what is to be gained by determining liability for the
underlying loss when the applicant has admitted his guilt.
Moreover, I should emphasise that the advice I gave around finding a practical
solution to the problem POL was now faced with was provided without
drawing any distinction between the precise nature of the offence. Clearly, AH
sees a substantive difference between cases of false accounting as against
fraud or theft. But as is observed in Andy Parsons’ email, false accounting
may be committed to conceal a loss but an offence of false accounting may be
committed without any provable loss. Does this mean that an offence of false
accounting without loss would not fall within the new proposal because there
was no liability to determine and consequently nothing to mediate? I am
unclear.
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15.
16.
Indeed, there may be certain types of fraud that are committed and charged
without actual loss (e.g. fraud by false representation, where the only intention
required to be proved is that the offender intends to make a gain for oneself or
to cause another loss or to expose another to the risk of loss); there may be
certain types of theft committed and charged without proof of any actual loss
or the precise amount of loss (e.g. theft of cheques which are “choses in
action” or theft of property the precise value of which is incapable of exact
quantification).
I query whether the proposal is just a new means of achieving a negotiated
settlement between POL and applicants by a new and different route, and,
more importantly, whether, once accepted, it would be suggested as a logical
extension of it that the scheme ought also to embrace certain cases of theft and
fraud in order to “determine liability for an underlying loss” where it was
appropriate to do so.
There are other foreseeably difficult issues. First, if POL were to accept the
proposal, it would bear the burden of scrutinising with care whether each and
every case of false accounting was amenable to determining who was liable
for the underlying loss. AH’s proposal would require POL to determine
whether there had been a determinable loss. Second, such a course would
necessarily involve a re-examination of POL’s case at court, and any
mitigation that was advanced on the applicant’s behalf (assuming the proposal
is limited to cases where responsibility was admitted), as well as the sentence.
This will involve consideration and re-examination of whether in each such
case POL successfully made a confiscation application under POCA, or
sought compensation or other financial ancillary orders against the applicant.
If it did then surely the liability for the loss has been determined. How
meddling with such a case in the course of mediation would not potentially
upset the conviction as well as the sentence and any orders arising from it, I
am also unclear.
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17. Discussion about liability for underlying loss is, in my view, fraught with
potential problems. I do not see the point of it, and what it can achieve, other
than to provide an applicant with a false sense of hope or expectation that POL
might accept whole or part liability for the loss, and settle. If nothing else, it
would give the applicant an opportunity to seek to undermine and find flaws
with POL’s original case, the monetary applications it made on sentence, as
well as in the court’s orders, in an uncontrolled environment, which in my
opinion, is not something POL should engage with.
Brian Altman QC
2 Bedford Row
London WC1R 4BU
5" September 2014