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IN THE MATTER OF
THE POST OFFICE LIMITED COMPLAINT REVIEW AND MEDIATION SCHEME
INSTRUCTIONS TO BRIAN ALTMAN QC.
Introduction
1. Since at least 2010, Post Office Limited (“POL”) has been responding to complaints that
the “Horizon” point of sale IT system used in every Post Office branch has been
responsible for unexplained shortages in Post Office branch accounts.
2. Ina letter dated 10 September 2015, Parliamentary Under Secretary of State Baroness
Neville-Rolfe (acting on behalf of the Government as POL’s sole shareholder) asked POL’s
incoming Chairman Tim Parker to determine whether “any further action is necessary” by
POL in order to respond to the Horizon complaints.
3. In October 2015, the Chairman instructed Jonathan Swift QC and Christopher Knight from
11 King’s Bench Walk (“Counsel”) to help him respond to the Baroness’s letter. Counsel
then reviewed substantial documentation, including legal advice provided to POL by
(among others) Brian Altman QC (“BAQC”), and held face to face meetings with POL
employees and external parties whom Counsel considered might assist their
understanding of the issues.
4, On 11 January 2016, Counsel delivered their report to the Chairman, a copy of which is
provided with these instructions (the “Report”).
The Report
5. The Report focussed on two principal questions:
5.1 what action had already been taken in the 2010-2015 period; and
5.2 if there were gaps in the work done, whether further action can reasonably now
be taken?
6. Those questions were then applied to four discrete areas:
6.1 criminal prosecutions;
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6.2 the Horizon computer system;
6.3 the support provided to SPMRs; and
6.4 the investigations undertaken into the specific cases where a complaint had
been raised.
Counsel ultimately made eight recommendations, three of which concerned seeking
specialist legal advice in connection with criminal law matters (two in connection with
criminal prosecutions, and one on the Horizon system).
BAQC is therefore instructed to assist POL respond to those three, criminal law-related
recommendations.
c inal Prosecutions
9.
10.
11.
Counsel considered there to be three “broad areas of concern” connected to criminal
prosecutions:
9.1 “whether convictions were consequent on flaws in the Horizon system and/or
because of a failure properly to disclose such flaws during the criminal
proceedings, and for such reasons are not safe” (“Safety of Convictions and
Disclosure of Information”);
9.2 “whether POL acted appropriately in cases where it pursued charges both of
false accounting and of theft (or whether POL pursued theft charges in cases
where there was no proper basis in evidence to do so simply to encourage a
guilty plea to the false accounting charge)” (“Sufficiency of Evidence”); and
9.3 “whether it is appropriate for POL to conduct private investigations and
prosecutions (rather than leaving matters to the police and the CPS)” (“POL as
Prosecutor”).
Save that POL should continue to co-operate with the Criminal Cases Review
Commission’s current investigations into certain individual prosecutions (which POL is),
Counsel did not recommend any further action in connection with the “Safety of
Convictions and Disclosure of Information” or “POL as Prosecutor” areas.
However, Counsel made the following recommendations with respect to “Sufficiency of
Evidence”:
11.1 “Legal advice be sought from counsel as to whether the decision to charge an
SPMR with theft and false accounting could undermine the safety of any
conviction for false accounting where (a) the conviction was on the basis of a
guilty plea, following which and/or in return for which the theft charge was
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dropped, and (b) there had not been a sufficient evidential basis to bring the
theft charge.”
11.2 “If such a conviction could be undermined in those circumstances, that counsel
review the prosecution file in such cases to establish whether, applying the
facts and law applicable at the relevant time, there was a sufficient evidential
basis to conclude that a conviction for theft was a realistic prospect such that
the charge was properly brought.”
12. BAQC is therefore instructed to advise POL as to whether the safety of a conviction for
false accounting could be undermined in the circumstances described in paragraph 11.1
above. Once POL has that advice, it can consider the steps (if any) it should take with
respect to the prosecution file review referred to in paragraph 11.2 above.
13. BAQC will note that the Report refers at paragraph 103 to the advice he gave to POL on
8 March 2015 concerning the (so-called) “equality” of offences of theft and false
accounting, and also to “POL’s position” at paragraphs 105 and 108. BAQC should note
that Counsel derived “POL’s position” from an email from POL solicitor Rodric Williams to
Counsel on 24 December 2015 which (among other things) sought to make clear that
Leading Counsel had not provided advice to POL on the specific “Sufficiency of Evidence”
issue. A copy of that email (with attachments) is provided with these instructions.
The Horizon System
14. Counsel also made the following criminal law-related recommendation in connection with
the Horizon system:
14.1 “POL seek specialist legal advice from external lawyers as to whether the
Deloitte reports, or the information within them concerning Balancing
Transactions and Fujitsu's ability to delete and amend data in the audit store,
should be disclosed to defendants of criminal prosecutions brought by POL. This
advice should also address whether disclosure should be made, if it has not
been, to the CCRC.”
15. In Spring 2014, POL instructed Deloitte LLP to carry out a desktop review of Horizon’s
control environment, which culminated in the production of a detailed report in May 2014
and a more succinct briefing note for the POL Board in June 2014 (collectively, the
“Deloitte Reports”).
16. The Deloitte Reports were subsequently provided to POL’s external criminal law solicitors
Cartwright King to review and advise POL as to whether they engaged POL’s duties of
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disclosure in criminal prosecutions. From their review, Cartwright King identified material
relating to “Balancing Transactions” as being potentially disclosable, but required further
information before they could provide definitive advice as to whether disclosure was
necessary, and if so, of what material and in what form.
17. A time line (with supporting documents) of the steps POL then took through its external
civil law solicitors Bond Dickinson LLP to obtain the further information sought by
Cartwright King is provided with these instructions. Those steps culminated in an email
from BAQC on 28 August 2015, responding to an email from Bond Dickinson sent on 27
August 2015, confirming that Bond Dickinson’s email “reflects, as I recall it, the effect of
our discussions” held on 21 July 2015 about Balancing Transactions.
18. Counsel was not aware that these steps had been taken when they prepared the Report,
as it had not been the subject of any specific discussion between them and POL during
the course of their review. POL has therefore now provided to Counsel the time line (with
supporting documents) referred to in para. 17 above.
19. POL is also conscious that BAQC’s advice was provided in the particular circumstances in
which it was sought in 2015, and without BAQC having had the benefit of reviewing (or
even having sight of) the Deloitte Reports.
20. POL therefore considers it now prudent to instruct BAQC to provide to POL the advice
referred to in the first sentence of paragraph 14.1 above. The Deloitte Reports are
provided with these instructions for that purpose. BAQC should note that the Deloitte
Reports can only be used for the purpose of providing his advice, that the Deloitte Reports
cannot be disclosed other than to POL directors and officers for any purpose except as
required by a court order or by applicable law or regulation, and that Deloitte will require
POL to hold it harmless in relation to any reliance BAQC may put on the Deloitte Reports
in the context of his advice.
21. POL does not require BAQC to provide to POL the advice referred to in the second
sentence of paragraph 14.1 above, i.e. as to whether the Deloitte Reports should be
disclosed to the CCRC. POL had independently taken the decision to notify the CCRC of
the Deloitte Reports and did so on 13 January 2015, and will be supplying them to the
CCRC in accordance with the provisions of the Criminal Appeal Act 1995.
Instructions
22. BAQC is asked to provide to POL the advice referred to above.
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23. POL asks that once BAQC has considered these instructions and supporting material, a
conference (either telephone or in person) be arranged to discuss any questions he may
have about the instructions and agree the process for delivering his advice.
24. BAQC is also invited to contact POL’s Rodric Williams at any time should he require further
material or wish to discuss any issue arising from these instructions generally.
Rodric Williams, Solicitor
Post Office Limited
Finsbury Dials
20 Finsbury Street
London EC2Y 9AQ
18 February 2016
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IN THE MATTER OF
THE POST OFFICE LIMITED COMPLAINT
REVIEW AND MEDIATION SCHEME
INSTRUCTIONS TO BRIAN ALTMAN
ac
The General Counsel
Post Office Limited
Finsbury Dials
20 Finsbury Street
London
EC2Y 9AQ
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