POL00023832
POL00023832
Second Sight continues to comment on matters of criminal law notwithstanding that the topic is
both outside of their remit and outside of their area of expertise and in this respect we have
identified numerous occasions where SS has offered an opinion which is wrong in law and in some
instances bordering on the negligent.
amples include:
* The suggestion that the offence of false accounting is a less serious offence to that of theft.
This suggestion has appeared in a number of contexts, most commonly where an Applicant
has pleaded guilty to the former offence so as to avoid “the more serious” charge of theft, or
has pleaded guilty to “the lesser offence” of false accounting.
In fact, both offences are equal in law: both are offences of dishonesty and both
carry the same maximum sentence (7 years imprisonment).
° The suggestion that Post Office has “forced” a defendant into pleading guilty in order to
avoid prison or to achieve a lesser sentence. Such a suggestion discloses a fundamental
misunderstanding of the criminal law process.
Post Office has no role in advising a defendant: every person charged with a criminal
offence is entitled to representation by independent solicitors (and in the Crown
Court, a barrister}.
Legal Aid is available to any defendant where the offence carries a risk of
imprisonment {as do all of the charges levelled by Post Office}.
The decision to plead guilty is always one for the defendant only, having taken
advice from their own lawyers.
When deciding to plead guilty, the defendant will have been advised by their own
lawyer that a guilty plea represents a complete admission to having comitted the
offence and, where the offence is one of dishonesty (theft; false accounting; fraud),
to that dishonest act. This is advice a defence lawyer must give, for not to do so
would amount to negligence.
e The suggestion that, in any case where a guilty plea to false accounting rather than theft was
accepted by Post Office, this was accepted because “....there was no evidence of theft.”
Again this comment indicates a complete absence of knowledge.
Where an audit discloses a loss in circumstances where there is evidence of false
accounting, the fact of the loss together with the false entries is certainly sufficient
evidence upon which to base a charge of theft. Simply put, if money is missing and
the defendant has fiddled the figures, that is sufficient evidence (in accordance with
the Code for Crown Prosecutors} to found a theft charge.
Post Office has always been prepared to accept a guilty plea to false accounting
where theft is charged not feast because POL has a duty to protect public (and POL)
funds and, given that both charges are equal in the eyes of the law, the added
expenditure involved in going to trial where a guilty plea to an offence of dishonesty
is offered would often (but not always) jeopardise that duty.
in any event the initial suggestion that a defendant pleads guilty will come from the
defendant's lawyers, usually motivated by the defendant's instructions that they are
guilty of that offence.
Finally on this point, it is the duty of the defence lawyers to identify to the court
where there is insufficient evidence to sustain a charge. if the court agrees then the
Judge must dismiss that charge. Thus a charge upon which there is no evidence will
inevitable fail.
POL00023832
POL00023832
¢ The suggestion that the Crown Prosecution Service would have acted differently to POL as a
prosecutor, perhaps by not prosecuting at ail, or by accepting a different outcome. Again
this suggestion is indicative of a complete absence of knowledge of the process.
~ Both POL and the CPS are bound by the Code for Crown Prosecutors; both are
overseen by the courts and both must act in accordance with the principles of
fairness.
~ POL prosecutors are all experienced criminal lawyers, many of whom have a wide
experience of prosecuting both for Post Office and the CPS. These lawyers advise
Past Office in full before a prosecution is commenced and continued,
- Further, the CPS does not have a monopoly on prosecutions: many organisations
conduct prosecutions within their own sphere of interest.
Neither does the CPS ‘oversee’ or otherwise regulate non-CPS prosecutions: that
function is reserved to the courts. Thus the CPS has no role to play in any Post Office
{or other independent} prosecution and it is wrong to suggest, as SS has done, that
Post Office has somehow avoided CPS input.
e The suggestion that Post Office has somehow breached or abused their position as a Crown
prosecutor.
~ This is perhaps the most distasteful and ill-informed suggestion thus far. Post Office
has always taken its duty to act fairly, proportionately and with the public interest in
mind extremely seriously, indeed not te have done so would have invited the
scrutiny of the very courts in which Post Office conducts such cases. Further, the
suggestion amounts to an outright allegation of deliberate misconduct on the part of
Post Office bordering on the libellous.
These are but a few examples of Second Sight’s ill-advised entry into areas that do not concern
them. Other instances include numerous examples where they have demonstrated a complete lack
of knowledge of the elements of offences of fraud, theft and false accounting. Such fundamental
error does the Applicant no service at all,
What is most concerning of all is the fact that none of the Applicants and few of their advisors are
lawyers ~ none are criminal lawyers. They are therefore most unlikely to recognise the errors
committed by SS and, should they act on the misinformation advanced by SS, they may well become
unrealistic in their expectations, acquiring a distorted understanding of the reality of their position
and therefore become deeply disappointed when reality intervenes. No good service is dane to any
Applicant and much harm may flow.
On a final note, we are also concerned at the repeated, and perhaps inadvertent, waiving of an
Applicant’s Legal Professional Privilege by Second Sight. We say inadvertent because no lawyer
would commit so fundamental an error; for such a mistake may well be actionable against SS in the
event that an Applicant suffers as a consequence. Perhaps SS should look to their own Professional
Indemnity insurance, if they have it, although given that they are not lawyer it is unlikely that their
insurance would cover such negligence.
Simon Clarke 16" February 2015