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INTERIM REVIEW OF CARTWRIGHT KING’S
URRENT PROCESS
Introduction
I am asked to provide an interim review of Cartwright King’s (‘CK’) current
process. I have been provided with:
(1) A document headed “Draft Paragraphs for Insertion into Reply to
CCRC”, which was a document designed by CK to assist POL in
replying substantively to a letter of 12 July 2013 from the CCRC; and
(2) An Advice dated 15 July 2013 by Simon Clarke, a CK in-house
advocate, who has advised about the future use of expert evidence
relating to the integrity of the Fujitsu Services Ltd. Horizon system.
The first document is informative of the processes that CK is currently
adopting to identify cases for review. The second document focuses on the
problems of disclosure associated with the evidence of Dr Gareth Jenkins in
past POL prosecutions and the approach to be adopted towards them and
pending prosecutions.
I accept that given the intended nature of the first document, the detail of the
review process CK is embarking on may be incomplete, and so any views and
recommendations I express below should not be taken as anything more than
constructive suggestions in light of the information currently available to me.
I have also been provided with two copy prosecution files (Hutchings and
Ishaq), which have been reviewed by Simon Clarke. They have helped me
understand the review process. Simon Clarke has reviewed both cases and his
opinions are set out in formal case review documents. (Any views I have
about those reviews, and the opinions expressed in them, I consider to be
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outwith the ambit of the instant document, but will have to be the subject of
my own review.)
5. The Hutchings file contains a document headed ‘Initial Sift Result Sheet’
which is absent in the Ishaq file. The Hutchings Initial Sift Result Sheet shows
the initial sift was conducted by ‘AB2’. This appears to be a code for a lawyer
at CK, I suspect, other than Simon Clarke.
6. CK’s “Draft Paragraphs for Insertion into Reply to CCRC” document
confirms, in the round, that “Once such a case is identified, Senior Prosecuting
Counsel will fully review the case”.' Each of the two cases I have seen was
prosecuted, so far as I can tell, by members of the independent Bar, so that the
initial sift and the final review are conducted by two different people who did
not prosecute, and are independent of, the case at court at first instance, thus,
at first blush, the important elements of independence and objectivity are built
into the review process.
7. I am proceeding on the basis that the sole focus of possible complaint is the
Horizon system, which is manufactured, maintained and supported by Fujitsu
Services Ltd., and the single expert witness, Dr Gareth Jenkins, who provides
opinion evidence in POL prosecutions where shortfalls and other irregularities
are, in broad terms, alleged to be caused by deficiencies in the Horizon
system.
8. I have assumed also that all POL prosecution work in England and Wales is
outsourced to CK, and that no prosecutions either at Magistrates’ Court or
Crown Court level are prosecuted by POL in-house, or by any other firm of
solicitors. I am however unsure of the position in Northern Ireland, and indeed
Scotland.
' Page 2 “Draft Paragraphs for Insertion into Reply to CCRC”
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CK’s process
In summary:
a) CK have identified the sole issue as one of non-disclosure, which is
the question that is said expressly to have defined their approach.
b) CK are in the process of identifying every criminal case prosecuted
by POL (and RMG prior to their separation), and in any event over
the past three years, so as to determine, in each case, whether POL’s
duties of disclosure have been met.
c) Following the identification of such a case, they ask their in-house
counsel to review the case in full so as to determine the proper
approach.
d) CK state that the threshold for answering the question has been set
at a very low level.
e) CK has set deliberately inexact criteria to identify cases, which
come within the scope of its review.
f) The scoping includes those who have pleaded guilty as well as those
who pleaded not guilty but were convicted.
g) All cases identified in this way are subjected to a full written case
review conducted by counsel.
h) The scoping includes both Crown Court and Magistrates’ Court
convictions.
CK’s review results
In summary:
a)
b)
CK’s review process began on Monday 8 July (the date of Second
Sight’s interim report).
CK has so far examined approximately 90 cases, of which some 20
have been allocated to counsel for full review.
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c)
d)
e)
8)
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Of those cases identified for full review, approximately 10 have
been fully reviewed by counsel.
In two cases counsel has advised that there may be grounds for an
appeal.”
Counsel is also reviewing current cases, which has resulted in
advice to terminate two prosecutions.
Where counsel has “advised the possibility of grounds of appeal”,
letters have been written to defence solicitors, informing them of the
issues and providing copies of the Second Sight interim report and
such other material as they ought to have received during the
currency of the prosecution, had CK been possessed of it at that
time.
It is then for the defendant and his lawyers to determine whether or
not they wish to launch an application for leave to appeal out of
time, which application CK will support.
CK say that so far the review has identified no case where the
defendant has sought the permission of the Court of Appeal to
appeal against conviction.
One case has been identified where the defendant sought, and was
refused, permission to appeal against his sentence. That case was
one of the two identified by counsel as being susceptible to appeal
against conviction.
* In the two case files I have seen (which may not be the two CK had in mind), on review, counsel
advised in the case of Hutchings that no disclosure should be made, but in the case of Ishaq advised
there should be disclosure of the Second Sight report and a report by Helen Rose (there are two Rose
reports which I have seen reference to, but do not have, dated 6 June 2013 and 12 June 2013). In
neither case however did counsel advise, “there may be grounds for an appeal.” In fact, reviewing
counsel disclaimed the notion that the safety of convictions was the purpose of his review or of the
process overall: see Footnote 3 to my Observations on the Terms of Reference. I wonder if CK is
merely describing the same process in a different way by equating the advice that disclosure needs to
be made with advice that there may be grounds of appeal. The one may not necessarily follow for the
other. It may in fact prove to be a distinction without difference
} This is the case of Ishaq
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12.
13,
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General issues
First, I wonder whether non-disclosure by Dr Jenkins of aspects of the
Horizon system is the only potential issue that arises in these cases, or whether
there may be other issues, which need to fall within the remit of the review.
I question whether the sole issue of non-disclosure is too restrictive an
approach to take to the review. I have considered the list of issues, which were
reported to Second Sight in the course of their review by multiple SPMRs as
being of particular concern. One such concern was “POL investigation and
audit teams that have asset-recovery or prosecution bias and fail to seek the
root cause of reported problems.” *
I have also considered Spot Review SR22,° in which, according to the SPMR,
the issue was the lack of synchronisation between POL and Camelot records
for ‘remmed-in’ scratch cards. The shortfall alleged by POL was £14,842,
which, following a plea of guilty to false accounting in the alternative to theft,
the SPMR repaid. This case example does not appear to me necessarily to be
an issue of non-disclosure but one that may be argued to relate solely to the
proper functioning of the system. The Spot Review leaves the reader with the
sense that there remains a dispute between the SPMR and POL regarding this
case. Has this case, and others like it, fallen within CK’s review?
Moreover, it is imperative to know what it is CK is representing to those
defendants in writing where possible appeals have been identified. I have seen
the post-conviction post-review disclosure letter that was sent out in the Ishaq
case, but I have not discovered any other letter in the file that informs him of
the issues (if indeed this is different to the post-conviction post-review
disclosure letter). I am interested to discover also what material, in addition to
Second Sight’s report, and any Helen Rose report, CK is sending to potential
applicants.
* Appendix 4 to the report
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I can conclude on the available information that the approach of CK and
counsel appears to be fundamentally sound, but the following issues need
addressing by POL and/or CK:
a) The geographical limit of the review: is CK the only provider of
prosecution services to POL? If not, then the approach may leave
POL exposed. Does the Horizon issue affect only England and
Wales, or does it extend to Northern Ireland and Scotland? If so,
what approach is being adopted to any such cases, and by whom? A
differential approach would be unhelpful.
b) The temporal limit of the review: does three years suffice; is the
reason for the cut-off date supportable?
Conflict of interest: I can foresee circumstances where a conflict of interest
might arise where Horizon and/or Dr Jenkins are the focus of complaint. A
hypothetical example may suffice: in a given case it may be alleged that Dr
Jenkins did not properly fulfil his role as an expert witness because he failed
to disclose something that Second Sight’s interim report has now revealed. If
Dr Jenkins were to claim, when confronted by such an allegation, that he had
in fact informed counsel and/or a representative of CK of the very thing he is
now said not to have disclosed, that would give rise a clear conflict, and, if
there were a conflict of recollection about it, then that might lead to real
difficulty in CK’s further involvement in reviewing the case.
CK may argue, possibly with complete justification, that there is little or no
scope for such a conflict. I am unclear whether CK always instructs the
independent Bar or whether occasionally in-house counsel prosecutes these
cases also. Either way there is the potential for conflict between them and Dr
Jenkins, especially where conferences take place. In my view CK and its
review team should be alive to the possibility of conflict arising in any case,
and they must seek to identify any case in which potential conflict might arise.
CK should consider devising a process whereby they seek full information
from prosecuting counsel about the scope and content of any conference with
Dr Jenkins especially where unattended by a CK solicitor. Moreover, if it is
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thought that a conflict could arise, CK must ensure that counsel who
prosecuted the case originally is not the initial sifter or the reviewer.
There is, I believe, benefit in CK and its internal counsel identifying and
engaging in the review of impacted cases, as they are familiar with their case
files and intimate with the process. But it seems to me it will be wise for me
to dip-sample some of their work in due course, and I may have to devise
criteria of my own for those cases I feel I should review personally.
Guilty pleas: it is entirely appropriate for the review to embrace those who
pleaded guilty, but CK’s document does not make clear how they are
identifying suitable guilty plea cases for review. Hutchings pleaded guilty ona
written basis of plea, which was not agreed by the prosecution but the basis
could not be gainsaid. Although this case was undoubtedly suited to review,
having read through the file, I am not clear exactly how this case was
identified for review. There was no defence statement but claimed deficiencies
in the Horizon system and the Helpline were raised in the prepared statement
Hutchings provided POL investigators in interview, which inferentially has to
be the sole source of identification of this case file for review.
As the Hutchings case demonstrates, where the defendant has pleaded guilty
there will not necessarily be the type or breadth of information available as in
the case of contested trials. It is important that suitable cases for review do not
slip through the net, and so while some of the criteria CK identify may be
relevant to cases in which there has been a guilty plea, there may be other
criteria for identifying suitable cases, which may otherwise escape CK’s trawl.
CK needs to remain alive to this.
Abuse of process/Public Interest Immunity (‘PII’): 1 think it highly unlikely
but it would be important to know whether there have been any abuse of
process hearings at which Horizon has been in issue and/or at which Dr
Jenkins has been called to give evidence. Also highly unlikely, but also
important to have confirmed, is whether or not there have been any ‘PII’
applications made in any case to protect commercially sensitive or
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confidential aspects of the Horizon system and/or Dr Jenkins’ evidence on
such grounds.
If there have been such cases then it will be essential to know the nature of the
applications and the rulings.
Custody cases: individuals who come within the remit of the CK review who
are in custody, whether as a convicted defendant or a defendant awaiting trial,
must of course be prioritised.
Interim recommendations
On the basis of the information currently available to me, I make the following
interim recommendations:
a)
b)
c)
CK should consider the extent to which non-disclosure by Dr
Jenkins of aspects of the Horizon system is the only issue
potentially forming any grounds of appeal or whether their review
should be broader based to encompass other related issues or
potential grounds of appeal. If it is decided that the current review is
too narrow, CK should set criteria for the broadening of the review.
CK should be alive to, and therefore consider their approach to, the
potential for any conflict of interest between them and/or
prosecuting counsel and Dr Jenkins. If any such conflict does arise,
or may be thought to arise in any given case, counsel who
prosecuted the case originally should not review the case.
It is critical that the reasons for the decision, and the decision itself
in every case identified and reviewed as part of the process, is
properly and fully recorded. The two cases I have seen thus far
include full case reviews by Simon Clarke. I am unclear whether he
alone is reviewing case files or whether other internal or external
counsel is involved in the review. If there is more than one reviewer
then there must be a standardised non-differential approach to the
process of review.
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d)
e)
8)
h)
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One of the case files I examined (Ishaq) did not include an Initial
Sift Result Sheet. The Initial Sift Result Sheet I have seen in the
Hutchings file lists two questions, the second of which is subdivided
into three questions. Given the 90 cases, which CK has examined so
far, I cannot conceive that one person is performing the sifting
process. The composition of the sift sheet attempts standardisation
by focusing the sifter’s attention on a series of questions. My
concern is whether the questions may be too narrow. As the
reviewing process continues, experience may provide the answer.
However, if the questions do prove to be too narrowly drawn, and
require recasting, cases that have already passed through the sift will
need to be reconsidered.
In order that the sifting and review process does not overlook
suitable cases in which the offender has pleaded guilty, CK should
consider setting broader and more focused criteria to identify all
such cases, which should come within the review.
To identify cases, if any, in which there have been any abuse of
process hearings in which the Horizon system and/or Dr Jenkins has
been at issue. If there have been any such abuse of process hearings,
CK should provide the reasons for making any such application as
well as the detail of any rulings given.
To identify cases, if any, in which there have been claims to PII,
seeking, for instance, to protect commercially sensitive or
confidential aspects of the Horizon system and/or Dr Jenkins’
evidence on such grounds and the detail of any rulings given.
To ensure that any custody cases — convicted defendants and
defendants on remand — are prioritised, and to consider setting
criteria to ensure such cases are processed expeditiously.
In conjunction with POL, to create a spread sheet audit of all cases
under review by CK and counsel: sorted by case name, sub-post or
Crown office (if relevant), date of trial and/or plea, court centre
(Crown and Magistrates), judge (Crown Court only), prosecutor
(internal or external), defence solicitors and/or defence counsel;
initial sift result and review result, in all cases identifying in
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summary the issue/s which has/have been determinative of the
review. I envisage that the spread sheet will encompass on three
separate work sheets (1) past relevant POL conviction cases
(identify if RMG or POL); (2) pending trials; and (3) cases subject
to appeal (application for permission or permission granted) on
conviction and/or sentence or on sentence alone (and stage reached).
If the letter to which CK makes reference is different to the post-
conviction post-review disclosure letter, 1 would please like to see a
copy of a sample letter, together with an idea of the nature of any
material CK is sending to potential applicants in addition to Second
Sight’s report, and any Helen Rose report.
Brian Altman Q.C.
2 Bedford Row
London
2 August 2013
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