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CartwrightKing
POST OFFICE LTD
POLICY REVIEW - 2018
1. In conducting this review of Post Office Ltd (POL) policies we have
considered the following documents, all of which require a degree of
amendment so as to align the policies into a single coherent and
complimentary canon, to correct minor errors and to update the
Criminal Investigation and Prosecution policies to comply with current
law and process:
— Prosecution Policy for England & Wales - v.1, 22 January 2016
~ Conduct of Criminal Investigation Policy - no v. number, undated
— Policy Document - Contract Breach - Final version, 7 April 2014
2. It should be noted that one of the more important considerations in
conducting this review was that of the possibility of the forced disclosure
of policies to interested third-parties. We are concerned here that a
failure to follow a given policy may give rise to claims in Judicial Review
and, in the criminal arena, the staying of a prosecution.
Prosecution Policy for England & Wales
3. We note that we were asked to review the draft Prosecution Policy some time
ago and did so, in September 2015. In so doing we made a number of
recommendations? which we note were adopted and now appear in the present
iteration of the Prosecution Policy.
1£,g. defendants to criminal prosecutions, civil litigants etc.
? Such actions are not uncommon: the author has both prosecuted and defended such claims, both in Judicial review and
in the criminal courts.
3 Attached hereto.
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4.
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Nevertheless, we have again reviewed the Prosecution Policy, considering
whether it remains reasonable, transparent, fair and proportionate and is as
immune from Judicial Review or other challenge? as any policy can be.
. We have concluded that the Prosecution Policy requires no meaningful
alteration save in one area, on the basis that with the single exception
identified, the Policy continues to meet those criteria set out at paragraph 4
above.
. We have also sought to update those references to other source-material as
have themselves been updated since we last reviewed the policy.
. The single area of concern we have with the present iteration of this Policy
concerns the list of additional public interest factors set out in Policy paragraph
6.3. Whilst the factors themselves are clear, there is no guidance as to how
each factor is to be measured or to what extent a factor may affect a decision
to charge. Accordingly, we have provided a degree of guidance which we
consider may assist a decision-maker in this crucial policy area.
Civil/Criminal overlap
8.
We have given some consideration to the potential for friction between the
Contract Breach policy and the criminal process. The benefits provided by the
operation of a civil enforcement-based policy are clear; we do however see
some potential for conflict between those aims and with the procedural and
evidential demands of a properly formulated criminal investigation process.>
Whilst the Contract Breach policy will of course include the use of informal
discussions and problem-resolution processes, speed of determination and
efficient loss-recovery processes, those very advantages may play against the
proper and lawful gathering of evidence in a criminal investigation.
A useful example of the difficulties which may arise in this context is that of
admitted misconduct in Reasons to Urge interviews and Informal Discussions.
4 Eg. An application to stay criminal proceedings as an Abuse of Process, or as being oppressive or unfair by reason of a
failure to follow a policy.
5 ..and with the law as it applies to evidence-gathering, admissibility etc.
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Such interviews and discussions fall outside of the PACE Act requirements and
accordingly may well be inadmissible as evidence in criminal proceedings; as
prosecutors we have experienced situations where a suspect has provided
qualified or complete admissions to wrong-doing in such _ informal
environments, only to see those admissions ruled as inadmissible in criminal
proceedings because they were obtained outside of the PACE Act procedures.
10.We therefore consider it important that the Contract Breach policy provides a
mechanism for the early identification of potential criminal cases and their
consequent withdrawal from, or suspension of, that policy’s process. In that
context please refer to our comments at paragraph 14 below.
Conduct of Criminal Investigation Policy
11.Although we have not been asked to review this policy previously, we note
that it is well-written and comprehensive - we also consider that it meets the
aims set out in paragraph 1.1 of the Policy. We would however recommend
several small changes,® the detail of which is set out in the following
paragraphs.
12.General Changes:
12.1. The word “fraud” is used throughout the policy to denote criminal
conduct. Whilst the term is there used in the generic and is intended to
indicate a number of criminal offences, to the lawyer the term defines
offences involving a deception by false representation/omission,
committed in order to achieve a gain for the offender or to cause a loss
to another. Thus, to the lawyer, the term excludes offences not requiring
a false representation but of which POL may nevertheless have been the
victim.” Accordingly we have replaced the word “fraud” with a more
complete description of the criminal conduct to which the Policy applies
- see paragraph 1.3 of the Policy for an example.
© again we have corrected a small number of typographic errors and updated references to source material.
7 E.g. Theft, robbery, burglary etc.
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13.Specific changes. We have adopted the relevant policy paragraph numbering
for ease of reference:
2.2. Two of the criteria to be considered by the Security Operations Manager,
“The seriousness of the allegation" and “The level of criminality” seem
to us to be a little nebulous. We are concerned that these formulations
provide too much scope for challenge, on the basis that they permit too
great a subjective determination: what is serious to one may not be so
to another. We would advise the formulations set out in the ‘Track
Changes’ document as providing for a more objective determination of
the relevant criterion and thus more easily applied and less open to
challenge.
4.1. Event Log. It is vitally important that all entries into the Event Log be
times and dated - in our experience an identifiably contemporaneous
entry into a document or log can provide compelling and often
determinative evidence of a sequence of actions or events.
6.9. New sub-paragraph inserted. The Policy is silent on the issue of
Schedules of Unused Material. The compilation of these schedules is an
essential step in the conduct of any investigation, without which there
will be a real risk that any subsequent prosecution will fail, regardless of
the quality of any evidence obtained. We have provided an appropriate
formulation to deal with this omission. Two schedules should be
compiled:
- a Schedule of Non-sensitive Unused Material, upon which is recorded
investigation material which would, were the test for disclosure to be
met,® be disclosed to a defendant; and
- a Schedule of Sensitive Unused Material, upon which is recorded
material which is not to be disclosed to the defendant, regardless of
whether it meets the test for disclosure, without an order of the
Court. This schedule would contain such material as e.g. requests for
8 Material which “might reasonably be considered capable of undermining the case for the prosecution against the
accused or of assisting the case for the accused.” See s.7A(2)(a) Criminal Procedure and Investigations Act 1996.
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PNC Reports, information relating to investigative methods employed
in the investigation, financial enquiry tools used etc. being material
which would, if disclosed, reveal sensitive investigation techniques
and tools the publication of which would be likely to undermine future
investigations by reason of their public knowledge.
6.10.Previously para.6.9 and unchanged save for paragraph numbering.
8.1.
9.1.
9.2.
9.3.
9.4,
12.
Not all investigative documents need to be disclosed to a defendant, but
all must be recorded on one of the Schedules of Unused Material.
Evidence bags should always be sealed.
Auditors should always record any significant comment made by during
the course of an investigation. Such comments often provide good
evidence of wrongdoing, either as later-revealed lies or as admissions to
misconduct.
We have redrafted this paragraph so as to provide further guidance as
to what may be asked of a subject by an auditor seeking to verify
financial assets.
Again we have provided further guidance on how auditors may approach
this topic.
Pace Interview
We note that there are two paragraphs 12.1 in the Policy. We have
renumbered these paragraphs and below refer to the renumbered
paragraphs.
12.1.We have inserted a sentence to reflect the requirements of PACE Code
C paragraphs C11 and C12. We have also appended those paragraphs
to this Policy. We have done so because too often, important evidence
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is lost to the prosecution because of a failure to comply with these
provisions.
12.2.Reference to para.2.9 of Code G corrected to para.2.4 of Code G.
17.4.The existence of these notes should also be recorded on the Schedule of
Non-sensitive Unused Material.
Policy Document - Contract Breach
14. This policy is primarily directed towards what may loosely be
described as civil law breaches of contract between Subpostmasters and
POL - see para.2 therein. However, in line with the aim set out in
paragraph 2 above, we consider it important that any potential for
conflict between policies be reduced to a minimum. With that aim in
mind we suggest the following amendments, set out in the
accompanying ‘Track Changes’ document and explained here:
14.1. Section 6.4 — Consequences of an Escalation Event
14.1.1. The document is silent of matters of suspected criminal
misconduct save for a few passing and somewhat oblique
references. We consider it important that the Contract Breach
policy makes specific allowance for the engagement of the
Criminal Investigation and Prosecution policies in appropriate
cases. Such reference would, it seems to us, protect POL
against any allegation that the initiation of a criminal
investigation/prosecution was of itself a breach of this
Contract Breach policy, presently silent on the point.
14.1.2. A further consideration here is that of the need to formally
interview a person suspected of criminal misconduct, in
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accordance with the provisions of the PACE Codes of Practice.
It is not uncommon for suspected persons to make partial or
full admissions to misconduct when questioned. Such
admissions, when made in circumstances where the Code was
not complied with, may and often are rejected by the criminal
courts as inadmissible because the Code has not been
complied with; such admissions, valuable evidence as they
are, will be lost to the prosecutor.?°
14.2. Section 7 - Suspension
14.2.1.We have added a third, freestanding, criterion to the two
criteria upon which a precautionary suspension may be
imposed. We take the view that, regardless of any strictly civil
contractual position, any potential breach which gives rise to a
criminal investigation should in almost all circumstances (but
see para.14.2.2 below) result in a precautionary suspension in
order to aid the identification, collection, preservation and
recording of evidence. In this context, evidence means any
material which has the potential to either support OR
undermine a prosecution. The failure to suspend risks the
possibility of as yet unidentified evidence being compromised
or lost, either through deliberate misconduct on the part of the
person(s) under investigation or, indeed, inadvertently. The
risk identified here is a significant one in two respects:
i) POL as investigator/prosecutor has a statutory
duty to preserve any material which may meet the
test for disclosure in a criminal prosecution; and
9 Police and Criminal Evidence Act 1984 and PACE Code C: The Code of Practice for the Detention, Treatment and
Questioning of Persons by Police Officers. The Code applies to all those charged with the conduct of a criminal
investigation, including POL Investigators.
29 {tis quite common for a suspect to resile from admissions made in interview, particularly where their lawyer has
advised that the admissions were made in circumstances where Code C was not complied with
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ii) the contamination or loss of evidence can render
what was a strong prosecution case an ineffective
one.
14.2.2.Having said all of that, we recognised that even where a
criminal investigation is initiated, any precautionary
suspension should only apply where the person suspected of
criminal conduct is the Operator or Subpostmaster. If the risk
lies rather with an Assistant and the suspected misconduct has
or is likely to have been committed without the Operator or
Subpostmaster’s knowledge, then in those circumstances
precautionary suspension may not be indicated. The draft
criterion at 7(iii) makes allowance for this possibility.
14.3. Section 7.2 - Discussions
14.3.1.For the reasons given at 14.1.2 above, we have inserted a
further sentence to indicate that, where there is suspected
criminal conduct on the part of the Operator or Subpostmaster,
there should be no Reasons to Urge interview or Informal
Discussion. To engage in such processes would be to negate
any evidence of admitted wrong-doing otherwise supportive of
a prosecution.
Simon Clarke 24 August 2018
Cartwright King Solicitors
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