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Post Office Mediation Scheme
DRAFT
Second Sight - Case Review Report
Case Reference: M103
Applicant: Timothy John BURGESS
Advisor: Bill Cleghorn (Aver)
8 February 2015
This draft report and accompanying documents are confidential and are not to be disclosed
to any person other than a person involved in the processing of the Applicant’s claims
through the Scheme.
1. Introduction
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1.1. This report has been prepared by Second Sight, which is the trading name of Second Sight
Support Services Limited, the company appointed to conduct an independent investigation of a
number of matters raised by Subpostmasters, or former Subpostmasters.
1.2. This report should be read in conjunction with the following:
a) the documents submitted by the Applicant and his Professional Advisor;
b) Post Office's Investigation Report (‘POIR’) including attachments;
c) Second Sight's Briefing Report - Part One; and
d) Second Sight's Briefing Report - Part Two.
1.3. The Terms of Reference for Second Sight as set by the Mediation Working Group for this work
are as follows:
a) To investigate the specific complaints raised by each Subpostmaster who has been
accepted into the Scheme with the aim of providing:
vi.
an assessment of points of common ground between Post Office and that
Subpostmaster;
an assessment of points of disagreement between Post Office and that
Subpostmaster;
where there is disagreement, a logical and fully evidenced opinion on the merits of
that Subpostmaster's complaint where it is possible to do so;
a summary of any points on which it is not possible to offer a fully evidenced
opinion due to a lack of evidence/information;
a view on whether a case is suitable for mediation; and
assisting with any reasonable requests made by the Working Group and/or Post
Office.
1.4. Second Sight has been provided with the following documents:
a) _ the Initial Application to the mediation scheme submitted by the Applicant;
b) _ the Case Questionnaire Response ('CQR') submitted by the Applicant's Professional
Advisor; and
c) Post Office's Investigation Report (’POIR’), prepared in response to the above
mentioned documents.
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1.5. The following are the issues raised by the Applicant:
a) responsibility for direct losses that total £7,525.65;
b) anomalies associated with:
I. Transactions seemingly not entered by the Subpostmaster or his staff
I Power failures
Ill. Motor Vehicle Licences (MVLs)
IV. Bank/GIROs/Cheques, including Automated Payment (‘AP’) transactions
c) adequacy of training and support, including Helpline and Audit;
d) limitations in the Audit Trail available to Subpostmasters;
e) process issues at the end of each Trading Period;
f) abuse of Criminal Prosecutions processes; and
g) other consequential losses, not dealt with in this report, but which may be raised if the
case progresses to mediation.
1.6. This report focuses on the net loss of £7,525.65. Other issues, not all of which are dealt with in
detail in this report because we could not find a causative link to the financial loss, may
however be relevant to the mediation process.
1.7. The Applicant was in post as Subpostmaster of the Catterick Village branch between July 2006
and his suspension in June 2010. A cash count, carried out as part of the branch’s migration to
Horizon Online, discovered a shortfall of £7,525.65 which was confirmed by an Audit on 2 July
2010. The Applicant’s contract was terminated on 1 September 2010.
2. Points of common ground between the Applicant and Post Office
2.1. It is common ground that the shortfall was made good in full. It is also common ground that the
Applicant, having originally been summonsed for theft, pleaded guilty to False Accounting in
September 2011. He was sentenced to a 12 months’ Community Order, and required to carry
out 150 hours of unpaid work.
3. Points of disagreement between Post Office and the Subpostmaster
3.1. In his CQR, the Applicant says that, in his opinion, “the Horizon system contains errors, which
create anomalies causing differences in the cash reconciliations and Trading Period closures” .
He says that his attempts to trace the cause of the differences were unsuccessful, and that he
does not know what caused them. The Applicant says that he experienced difficulty in
balancing from the end of his first Trading Period, but that he was not too concerned as it
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3.2.
3.3.
3.4.
3.5.
3.6.
3.7.
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“fluctuated between losses and gains”. He says that it was only after he experienced the first
major difference, in November 2008, that matters “seemed to become worse and the difference
was increasing”.
The Applicant says that there were a number of upgrades to the Horizon system, both in terms
of hardware and software, and questions “whether these upgrades may have been responsible
for the differences which arose”. He considers that those upgrades, which were carried out
remotely, required the system to be shut down and rebooted, and says he is “unaware if some
of the differences may have arisen when these upgrades were taking place, and the counter
terminals shut down”.
The Applicant says that he had “four or five power cuts” during his tenure, and that he was
concerned that after such an occurrence, data may have been compromised. He says that after
a power failure, it was “necessary to log on to Horizon in the way which was required at the
commencement of each trading day”.
In his CQR the Applicant refers to an incident when a customer settled her monthly rent of £300
by Debit card. He says that he “put the transaction through in the normal way, but when he
carried out the balance at the end of the day, he had a shortage of £300". He says that the
customer returned when she found that the charge had not been taken from her account, and
that “it was thought that the customer had not entered her pin code either at all or correctly’.
The customer gave the Applicant £300 cash, and he was then able to eliminate the difference.
The Applicant also says that he suffered a loss through four fraudulent cheques of £250 each
that had been cashed over a period of four weeks. In his CQR the Applicant says that he was
“certain that he had been presented with genuine bank cards, but this was not the case”. He
says that he subsequently received four Transaction Corrections (TCs) and had to repay £1,000
from his salary. He says that he received “no follow up or assistance with training in how to
recognise a fraudulent bank card”.
The Applicant says that his training was inadequate, and that it “concentrated more on selling
the Post Office’s products rather than being relevant to the branch in which he was to be
operating”. He also says that when he had problems balancing, which necessitated calling the
Helpline, there were “numerous times when they could not assist in resolving his problem”. He
says that, if more frequent audits had been carried out at the branch, it would, in his view,
“have been possible that assistance might have been provided, and the events following the July
2010 Audit would not have taken place”. In terms of support afforded to him by Post Office, the
Applicant says that on “rare occasions” he would receive a visit from his Area Manager, but that
the Manager was “more interested in sales of the Post Office products and not in the running of
the branch or any issue which [the Applicant] was encountering”.
The Applicant says that he experienced his “first large difference” in around November 2008,
which he thought may have been related to motor vehicle licences. However, he says that
there was an insufficient audit trail to allow him to carry out an effective investigation.
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3.8. The Applicant says that none of the reported issues were ever resolved, and that, after a short
period of time, he was dismissed and prosecuted “even though he had paid back almost all of
the losses”. He says that “in fact the Judge at Crown Court said the case shouldn’t have been
brought before him and could have been resolved in the Magistrates Court”.
3.9. Post Office says that there is no evidence to support the Applicant’s allegations that Horizon
was the cause of the branch’s shortfall. It concludes that the most likely cause of the loss was
human error within the branch.
4. Where there is disagreement, a logical and fully evidenced opinion on the merits of that
Subpostmaster's complaint where it is possible to do so
4.1. Post Office says that the Applicant’s initial training included sessions on cheque and debit card
acceptance as well as Financial Services Act (FSA) compliance, and adds that it does not hold
Subpostmasters liable for fraud "where the correct procedure has been followed". \n its POIR,
Post Office says that, in accepting the four cheques for £250, the Applicant did not follow the
correct procedure and therefore was liable to make good the loss caused by the fraud. It adds
that the Applicant admitted, during the post-Audit investigative interview under caution, that
he had not completed a full check of what he had taken to be a cheque guarantee card in
support of each of those cheques, and that he accepted that it was his own fault. It says that,
as a result, the Applicant was liable for the loss.
4.2. Post Office has responded to the Applicant's reference to having suffered a £300 shortfall, after
a customer had paid her monthly rent by debit card, by saying that the most likely explanation
is that the Applicant settled the transaction to cash instead of recording the Method of
Payment (MOP) as having been a debit card payment. It also says that this version of events is
supported by the Applicant's later interview with the Investigating Officer, when he stated that
the customer went to pay on her debit card but he had settled the transaction to cash.
4.3. We consider that both of the matters raised by the Applicant in relation to the cheques and
debit card payments are answered by the POIR, and in fact had already been adequately
explained by the Applicant himself in his interview under caution. In relation to the debit card
payment, the customer returned to the branch to query the transaction, which had been
caused by the Applicant’s error, and consequently no loss was ultimately suffered by the
branch. Post Office says that the error would have meant that no prompt was given by Horizon
for the customer to insert her debit card into the PINpad, and (if the Applicant really had settled
the transaction to cash) then the double accounting system, that Horizon employs, would have
been satisfied. It says that the initial payment would have been processed (i.e. the customer's
rent would have been paid over to her landlord), and Horizon would have accepted that it had
been settled to cash even though it had not been.
4.4. We consider this to be an example of a situation where a customer may gain from a
Subpostmaster’s error, if it is not identified by the Subpostmaster himself, or queried
subsequently by an honest customer. Indeed, in his interview the Applicant said “...so / don’t
know how many times that happened and how many times that happened with people not
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45.
4.6.
47.
4.8.
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coming back in and saying that you know there’s been an error...". Had the customer not
returned, the Applicant would have had to make good the loss caused by his error.
On balance, we consider that neither the Applicant's acceptance of the four fraudulent
cheques, nor his error is settling the Debit card payment to cash were caused by what could be
fairly described as "Horizon system faults". However, in its POIR, Post Office accepts that
settling a transaction to cash, instead of selecting ‘Debit Card’ as the MOP, is “a common error’.
Having been so identified, we consider that this error should have been addressed by a process
change to reduce its frequency of occurrence, and, until the system's error repellency was
improved, Post Office could have shown more sympathy towards the Applicant.
In relation to the Applicant’s complaint within his CQR that, following his acceptance of the
fraudulent cheques he had received, there had been “no follow up or assistance with training in
how to recognise a fraudulent bank card”, we consider that statement to be at odds with the
explanation he gave during his interview under caution. In his interview he explained: “It
started not long after I moved in. I got 4 cheques cashed by some Lithuanian lads, £250 each,
my own fault I should have checked it, didn’t, I think they must have caught me at a busy period
whatever, each one was for £250 they obviously bounced it wasn’t a cheque guarantee card
that they were using, I didn’t do a full check and it just went on from there really”. \n light of the
Applicant’s acceptance that he had not carried out sufficient fraud prevention controls at the
time, we consider that he must bear the full responsibility for the loss that ensued, as indeed he
did.
In answer to the Applicant’s complaints regarding his training, Post Office says it does not
accept that his initial training was overly sales-focussed, or that it was inadequate. It says that
its training records show that, following 10 days’ classroom training, and six days’ on-site
support, it was not suggested that any further training was required on balancing, processing of
cheques, or in respect of debit card payments. Post Office adds that “there is only one instance
where further training was requested. This would suggest that the Applicant felt he was
competent with the Horizon processes”.
Post Office’s records show that, on 1 August 2006, the Applicant telephoned the National
Business Support Centre (NBSC) Helpline, to request “further trainer attendance to assist with
balancing”. Post Office says that this request was forwarded to the relevant section, but it does
not say whether the request was actioned, and whether further training was in fact provided.
Further, Post Office’s records show that on 19 July 2006, a trainer had attended the branch to
assist with a follow-up balance. However, there is no report confirming that this visit took place
nor whether any necessary actions steps were identified by it, nor was there any evidence to
suggest whether the Applicant carried out the balancing competently, although we note that
the date of 19 July 2006 would not be at the end of a Trading Period, so presumably no practical
End of Trading Period balancing could have taken place on that day. Ifit did not, that may
explain why the Applicant felt it necessary to telephone the Helpline, twelve days later on 1
August, to request further training in balancing. We have seen no specific references, in any of
the documents supplied to us, confirming that the Applicant received any training in End of
Trading Period balancing.
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4.9. The records provided by Post Office show that, during his first six months in post, the Applicant
made 172 calls to the Helpline. Post Office says that 51 of those calls related to balancing and
other operational issues, and that the “vast majority of these calls required assistance to rectify
errors made in branch, particularly with regard to cheque acceptance and processing”. It adds
that advice was generally provided by the NBSC with reference to the Knowledge Base (KB), and
that there is “nothing within these call logs to suggest that the query raised by [the] branch was
not resolved, nor that they were not satisfied with the advice and service they received”.
4.10. We have reviewed the record of calls made by the Applicant to the NBSC, and note that the
resolution to the majority of calls is recorded as ‘KB’. Accordingly, there is insufficient detail
given to allow us to assess whether the advice given was appropriate, or whether the Applicant
or his staff were satisfied with the advice and the service that they had received. Post Office
says that there is nothing within the call logs to suggest that the queries raised by the branch
were not resolved, nor that they were not satisfied with the advice and service they received.
Equally, we would suggest that there is nothing to suggest that they were. We also note that
Post Office has referred to holding "transcripts" of all Helpline calls whereas no transcripts of
the complete dialogue are actually prepared, merely such notes as the Helpline operator sees
fit to key in during the course of the call.
4.11. Inrelation to the Applicant’s complaints of a lack of on-going support, Post Office says there
are no records of any visits having been made to the branch by Post Office personnel by either a
Retail Line Manager (RLM) or Business Development Manager (BDM). However, Post Office
says that such visits would not necessarily be documented, and that it is not therefore possible
to verify the Applicant's claim that he received no business contact during long periods of his
tenure.
4.12. In that the Applicant’s branch was a relatively small and uncomplicated one, we consider
that his training should have been adequate. However, it is a commonly made complaint that
Post Office’s initial training was overly sales-focussed, and did not prepare Subpostmasters for
the reality of balancing a branch. Against this must be tempered the Applicant’s comments,
made in his interview under caution, where he acknowledges that he was trying to run two
‘and the Post Office branch, and that “a lot of errors and
‘Occurred as a result. He said that he was also at fault “probably for not
training my assistants up better in the first place or spending more time with them”. He also
accepted that he had “kept shuffling money about just to try and not raise any suspicion”.
Whilst we have not been provided with a full transcript of the interview, the summary also
suggests that the Applicant said he had not contacted the Helpline for assistance, due to
“embarrassment at what he had done”.
businesses, af
mismanagemeni
4.13. In our view, this is not a case where the Subpostmaster’s initia! training was inadequate
although it does not seem to have been very effective in regard to handling incoming cheques,
card payments and End of Trading Period balancing processes. We have, however, concluded
that Post Office’s practice of relying on its Subpostmasters to themselves recognise that they, or
their staff, have been making mistakes, and that they therefore need to call for additional
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training, is seriously flawed. It seems to us that, where errors are being systematically
repeated, then the individuals who are making those errors will not be aware of that (or they
would stop making those mistakes) so they are unlikely to realise that they need further
training.
4.14. We have also concluded that thorough investigation, sufficient to identify the underlying
root causes of branch shortfalls, would also identify the need for additional training and
guidance. We have not seen, in this case, any evidence that adequate investigative work was
carried out to identify either the true cause of the branch’s shortfall or the need for additional
training.
4.15. The Applicant also suggested in his CQR that, had he been audited at an earlier stage, the
events leading to his prosecution may not have subsequently occurred. Whilst this may be
true, the Applicant had a contract to supply services to Post Office, which he accepts he had
read, and as such we consider that the onus was not on Post Office to ‘discover’ the Applicant’s
mismanagement of the branch, nor to discover that earlier than it did.
4.16. Inrelation to the Applicant’s ability to access the Audit trail in order to identify the cause of
discrepancies, Post Office disputes assertions that Horizon does not provide sufficient
information to identify and correct "in branch errors" that may have occurred. It says that prior
to the implementation of Horizon Online, branches could review transactional and event data in
branch for a period of 42 days. It adds however, that the historical Horizon data would only
reflect the values and volumes keyed into it, and that if the error was a manual mis-key, it
would not be apparent unless the user remembered the correct transaction value when they
were reviewing the data or unless a customer drew attention to the mistake (as in paragraphs
4.3. and 4.4. above).
4.17. We have reviewed the record of TCs issued to the branch and note that, whilst the Applicant
was able to review data in-branch for up to 42 days, some TCs were being issued anywhere up
to 10 months after the date of the original error. This meant that the branch staff would then
need to find underlying documents, that should generally be held in the branch for two years, in
the hope that these would provide enough detail to help them challenge any TC that they did
not understand. Also, in some instances, a Subpostmaster could challenge a TC, but would be
reliant on Post Office to provide the data that he or she needed to do so. On balance therefore,
the Applicant would appear to be correct in his assertion that, in relation to at least some of the
errors - in particular those for which TCs were issued many months after the transaction that
was being corrected - the normally-available transactional data provided an inadequate audit
trail. We have been told that, if data was requested from Post Office outside of that 42 day
period, such requests were often rejected on the grounds of cost.
4.18. _ Late-delivered, high-value, TCs pose serious difficulties for branches. If the incoming TC is a
Debit (i.e. a TC Invoice), that means that the branch ought to have been maintaining a surplus
from the time that the error occurred until the time that the TC is accepted. In that
Subpostmasters are contractually entitled to withdraw and retain surpluses, this can mean that
they might do that, only later to find that they should not have done so. More seriously, if the
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branch has not shown an overall surplus, that is likely to be because there exists an offsetting
shortfall that has been masked by an, at that time undetected, error. If the incoming TC is a
Credit, that means that the branch ought to have been carrying a shortfall from the time that
the error (that the TC is intended to correct) occurred until the time that the TC is accepted.
This means that the Subpostmaster will have had to ‘fund! that shortfall during the intervening
period. In instances where Subpostmasters have been unable to make good such transient
(though sometimes very lengthy and large) shortfalls, it is possible that there could be a
temptation to falsify the branch's accounts.
4.19. Inrelation to his prosecution and subsequent conviction, the POIR says that the Applicant
“was initially charged with theft but this was subsequently withdrawn”. The Applicant was
summonsed to appear at Northallerton Magistrates Court on 11 April 2011, to answer an
allegation that, between the first day of January 2008 and the first day of July 2010, he stole a
sum of money belonging to Post Office Limited. The Disclosure as to how Post Office made out
its case in relation to this theft had been provided to the Applicant by his solicitors in a letter
dated 22 March 2011. At a subsequent hearing, (whilst theft was still the only ‘live’ matter), the
Magistrates declined jurisdiction (meaning that the case was to be heard in the Crown Court).
The letter to the Applicant from his solicitors notes that they (the Magistrates) did so as they
had come to the conclusion that, if he were to be convicted, “their maximum sentencing powers
available of 6 months imprisonment would not be sufficient punishment for the offence”. The
letter continues: “From speaking to the representative for the Post Office who was prosecuting,
the Prosecution’s case is quite simply that you have taken the said money from the Post office
and then altered the accounts to cover your tracks”.
4.20. When the Applicant appeared at Teesside Crown Court, on 12 August 2011, Post Office
confirmed, in answer to a request from the Applicant’s solicitors, that a plea to false accounting
was acceptable to the Crown, which it was representing, and that the Crown would not proceed
on the charge of theft. Accordingly, the Applicant pleaded not guilty to theft and guilty to false
accounting, and no evidence was offered by the prosecution in relation to the theft charge. We
consider therefore that it is not correct to say that the theft matter was “withdrawn”.
4.21. Inhis interview under caution, the Applicant denied having stolen any monies from Post
Office, but made a full admission to having committed the offence of false accounting. In his
CQR, the Applicant attaches Post Office’s ‘Summary of facts’ provided as Disclosure to his
solicitors (see Applicant's submitted evidence at M103_CQR_Final_tab_5). The Disclosure
asserts that “This case concerns the theft of monies facilitated by falsifying Post Office
accounts”. There is however, in our opinion, nothing within this Disclosure which points to the
existence of any evidence, in the possession of Post Office at that time, which would suggest
that the Applicant was guilty of theft, and we have seen no evidence, provided by Post Office
subsequently, which would suggest otherwise. We are drawn to the conclusion that this was
possibly an abuse of Post Office’s authority to represent the Crown in carrying out this
prosecution. Had the matter been reviewed at an earlier stage, for example by the Crown
Prosecution Service (which, in the cases that we have examined in connection with the
mediation scheme, we have never seen to have been involved in any of the prosecutions
initiated by Post Office) and the Evidential Test consequently applied, we consider it probable
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that the charge of theft would have then been discontinued before the case came to the
Magistrates Court and, as a result, that Court may well have accepted jurisdiction and the case
would never have reached the Crown Court. This was a point that the sentencing Judge noted.
4.22. We have seen a number of cases where Applicants have, like this one, been charged with
5.
5.1,
5.2.
5.3.
5.4.
theft and false accounting, when no evidence was subsequently offered in relation to theft
when a plea of guilty was made to false accounting. This practice seems to have been
frequently employed by Post Office to encourage defendants, in the absence of evidence of
theft, to plead guilty to the ‘lesser’ charge of false accounting, in the hope of avoiding a
custodial sentence.
Asummary of any points on whit
lack of evidence/information
it is not possible to offer a fully evidenced opinion due toa
In relation to Horizon upgrades, and the Applicant’s suggestion that differences may have arisen
whilst the upgrades were taking place, Post Office says that software upgrades are undertaken
remotely, with the required information sent electronically to the branch, and that, after such
upgrades, each terminal would automatically shut down and re-boot. Post Office does not
accept that the process of deploying system upgrades could have caused any of the
discrepancies that occurred in this branch. In the absence of any evidential material that
supports the Applicant's assertion, we are unable to offer an evidenced opinion on this point.
Post Office adds that Fujitsu can, at the request of Post Office, access (but not amend) the
transaction records sent by branches when they are stored on the ‘audit server’. We refer to
this matter, which is still under investigation in our Briefing Report Part Two.
In answer to the Applicant’s complaint that branch data might have been lost, or compromised,
as the result of power failures, Post Office says that there are comprehensive instructions in the
Horizon Operations Manual detailing the action that needs to be taken in the event of Horizon
failing as a result of a power failures or other issues, and that, provided the Applicant followed
the correct recovery procedures, the branch would not have suffered a loss. It adds that, if the
procedures were not followed and a loss occurred as a result, this would be due to an in-branch
error and the Applicant would be liable for the loss.
Contrary to Post Office’s assertion that there is “no evidence in the NBSC call log that the branch
either suffered Horizon failure due to power outages or that the Applicant sought advice on the
recovery procedure”, we note that on 8 April 2008 the branch made two calls to the Helpline
regarding a power cut. The first informed the Helpline that the power had been cut by the
Electricity Board. The second call was noted as “Horizon system problems”, and referred to an
“AP recovery message” regarding a cash withdrawal where the money was “given to customer"
The 'AP' referred to here is Post Office's ‘Automated Payment! process. The resolution was
recorded simply as 'KB'. Due to the lack of detail as to how the matter really was resolved, we
are unable to ascertain whether or not the branch suffered a loss. The Applicant does not
provide any further evidence in support of his assertion that a loss of power may have been the
cause of discrepancies, so we are unable to usefully comment further.
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5.5.
5.6.
6.
6.1.
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In relation to MVLs, the Applicant suggests, in his CQR, that the difference he experienced in
November 2008, “may be something to do with Car Tax, as there had been a considerable
number of transactions of this nature in the period prior to balancing”. We note, from the POIR,
that the Applicant had previously made errors in relation to MVLs which had subsequently been
corrected by TCs, so it is possible that he had been making similar errors in November 2008.
However, had he done so, it is reasonable to assume that TCs would later have been issued to
correct those errors, but it does not appear that they were. In the absence of any supporting
evidence provided by the Applicant on this issue, we are once again unable to reach a fully
evidenced conclusion on this aspect of the Applicant’s complaint.
In the absence of evidence of any other specific transactions that may have generated this
branch's losses, and that would allow us to reach a firm opinion as to the real underlying root
cause(s) of the losses in this branch, we can only refer here to the possibility that errors in
balancing, and operational errors made at the counter, such as those outlined in our Briefing
Report - Part Two, could have generated some of this branch's shortfalls. To the extent that
such operational errors were to blame for the branch's shortfalls, it is likely that customers
benefitted from them, just as, in the example described in paragraphs 4.3. and 4.4. above, the
customer would have had she not been honest enough to return to the branch.
Is this case suitable for mediation?
In our opinion this case is a weak candidate for mediation, primarily due to the Applicant’s
admission of having falsified the branch's books. There are however, other matters that may
benefit from mediation, such as whether inadequate training, or inadequate system error
repellency, played any part in the errors made by the Applicant and his staff. Also, the conduct
of the prosecution leading to his conviction, and the consequences that ensued from that,
should be tabled for discussion. Overall, we consider that this case is suitable for mediation
and that the following issue should also be considered:
a) whether Post Office should bear any responsibility for the errors that appear to have
generated this branch's shortfall, made good by the Applicant, of £7,525.65.
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