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CMS Cameron McKenna LLP
Cannon Place
BBC Programme Legal Advice 78 Cannon Street
British Broadcasting Corporation London
Room WC 2251 ECAN GA
White City DX 135316 LONDON CANNON PLACE,
London +
W127TS I
and
BBC Complaints
PO Box 1922
Darlington
DL3 OUR
15 September 2015
By Fax and Post
Our ref SCB/THRE/MIT/111850.00038
Dear Sirs
NOT FOR BROADCAST
Panorama - Post Office Limited
We write in connection with the Panorama programme, “Trouble at the Post Office”, broadcast at 7:30pm
on 17 August 2015 (the “Programme”). As stated in previous correspondence, we act for Post Office
Limited (“our client” or “Post Office”).
Background
Prior to the broadcast of the Programme, there were extensive communications between our client and the
BBC (both at editorial and legal level), including a detailed on-the-record briefing meeting between Post
Office and the BBC. As stated in our letter to BBC Programme Legal Advice on 10 August 2015 (copy
attached), our client had significant concerns regarding the manner in which the Programme had been
prepared, the content of the proposed programme and its purpose. Indeed, our client was extremely
concerned that you were likely to be broadcasting highly damaging allegations about Post Office that
would not be adequately supported by any evidence and without our client’s right of reply being fairly
reflected in the Programme. Having now seen the Programme, it would appear that our client’s concerns
were well founded.
The Programme presented a very one-sided view of this issue and crucially featured a number of untrue
allegations that are likely to cause our client significant financial damage.
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CMS Cameron McKenna LLP is a limited liability partnership registered in England and Wales with registration number 0C310335. It is a body corporate which uses the word
“partner” to refer to a member, or an employee or consultant with equivalent standing and qualifications. It is authorised and regulated by the Solicitors Regulation Authority of
England and Wales with SRA number 423370 and by the Law Society of Scotland with registered number 47313. A list of members and their professional qualifications is open to
inspection atthe registered office, Mitre House, 160 Aldersgate Steet, London ECLA 4DD. Members are either solicitors or registered foreign lawyers. VAT registration number:
{974 899 925. Further information about the firm can be found at www.cms-cmek.com
CMS Cameron McKenna LLP is a member of CMS Legal Services EEIG (CMS EEIG), a European Economic Interest Grouping that coordinates an organisation of independent
law firms. CMS EEIG provides no client services. Such services are solely provided by CMS EEIG’s member firms in their respective jurisdictions. CMS EEIG and each of its
member firms are separate and legally distinct entities, and no such entity has any authority to bind any other. CMS EEIG and each member firm ar liable only for their own acts
‘or omissions and not those of each other. The brand name "CMS" and the term "firm" are used to refer to some or all of the member firms or their offices, Further information can
be found at www.cmslegal.com
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We do not repeat all of the points raised in our letter of 10 August but incorporate them in this complaint
by reference. As clearly set out in that letter, in producing the Programme, the BBC has not only
broadcast untrue and damaging allegations regarding Post Office but has failed on several occasions to
comply with the BBC Editorial Guidelines. In particular, and despite repeated requests, our client was
never provided with sufficient information about the allegations to be made against it, nor was it provided
with relevant details of the evidence upon which the BBC was basing such allegations. This runs contrary
to paragraph 6.4.1 of the BBC Editorial Guidelines. Furthermore, this meant that, contrary to paragraph
6.4.25 of the BBC Editorial Guidelines, our client was not provided with an adequate opportunity (or
ability) to respond to the allegations raised in the Programme, resulting in a broadcast containing some
very serious and highly damaging allegations that did not fairly reflect our client’s position nor provide a
duly balanced view of the issues raised. Moreover, in a number of significant respects, Post Office’s
response to those allegations which were provided was not fairly and accurately included in the
Programme.
We note from the broadcast that the journalist Nick Wallis is listed as the producer of the Programme and
Matt Bardo as producer and director, although the website simply identifies Matt Bardo as the producer.
We are also somewhat surprised that, as the producer, Nick Wallis was not included in any of the emails,
nor the lengthy on-the-record briefing meeting between Post Office and the BBC. Mr Wallis’ views on
these matters are clear, not only from previous broadcasts, but from his blog, Facebook page and Twitter
account. Our client has had cause to challenge previous comments made by Mr Wallis in his personal
blog and our client has significant concerns that his journalism has, at times, strayed beyond impartial
reporting. The BBC’s failure to disclose his involvement suggests a lack of transparency on the part of the
BBC and, furthermore, Mr Wallis’ declared views may have had an impact on the BBC’s impartiality in
relation to the Programme.
Allegations made
The Programme states on more than one occasion that Post Office pursued theft charges against
postmasters where there was “no direct evidence of theft” or “no evidence of theft”. The allegation is
further made that our client included theft charges, despite a lack of evidence, to put pressure on
postmasters to plead guilty to false accounting and to assist with financial recovery. These allegations are
untrue, highly damaging and are likely to cause our client serious financial harm. Our client has
repeatedly made clear that it follows the Code for Crown Prosecutors issued by the Director of Public
Prosecutions, such that charges would only be brought where it had received legal advice that there is
sufficient evidence to give rise to a realistic prospect of conviction in respect of any charge. Furthermore,
the internal documents relied upon, in particular in relation to the allegation as to the issue of Post
Office’s financial recovery, have been taken out of context; it is simply untrue that the charges were
brought for the purposes of Post Office’s own financial recovery.
The Programme further states by reference to statements made by Richard Roll who had worked at
Fujitsu, that financial records were sometimes changed remotely without the postmaster knowing. Mr
Sweeney goes on to state that “Post Office has always said that simply can’t happen’ and invites the
conclusion that what Post Office has said in relation to remote access is “untrue”, a particularly damaging
allegation. This is not an accurate or fair reporting of Post Office’s formal statement to Panorama. As
made clear in the statement, Post Office can correct errors in and/or update a branch’s accounts by
inputting a new transaction (not editing or removing any previous transactions). It is also possible to
update the software remotely. However, any such changes would be shown transparently in branch
transaction records. Although Mr Sweeney included Post Office’s statement that it is not possible to edit
the transactions as recorded by branches, in the context of the other statements made and, in particular,
the conclusion that what Post Office was saying in this respect was “untrue”, Post Office’s response was
not fairly represented in the Programme. Had Post Office’s response been fairly represented, this would
have provided appropriate context for the comments made by Mr Sweeney and Mr Roll.
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Contributions
The Programme includes contributions from various purported experts, whose opinions and contributions
were misleading and unfairly portrayed as providing informed criticism with regard to the approach
adopted by Post Office.
By way of example, Charles McLachan was asked the following questions by Mr Sweeney: “So when
you've got a computer system this complicated and this big, is it possible that things can go wrong?”. The
response, “Any computer system can go wrong. What's important is the way that you deal with things
when they do go wrong”, suggests that Post Office has failed to investigate the Horizon system or to deal
with problems as they arise in the system. This is incorrect. Not only, as stated in our letter of 10 August
2015, has Post Office conducted detailed investigations and an independent review to assess whether
computer errors have caused cash to go missing in this small number of branches, but such investigations
have demonstrated that the system operates and operated as it should and Post Office has seen nothing to
suggest that any branch has been held responsible for a loss that was caused by a fault in the Horizon
system.
Post Office does not claim that Horizon is perfect. However, there is a considerable difference between
minor bugs which have been rectified and alleged major faults which would result in a postmaster
wrongly being held responsible for a loss. Implying that a major fault of that nature is probable simply
because of the existence of other minor faults is neither logical nor fair to our client. Your Programme
presents no evidence to support the allegation that a fault in the Horizon system was responsible for a loss
for which any postmaster has been prosecuted.
Similarly, the allegation is made by Mr Ian Henderson that there has been a “failure to investigate
properly and in detail cases where [IT] problems occurred. It is almost like institutional blindness.” It is
untrue that there was a failure to investigate the individual cases properly and in detail. Indeed, the first
task for the Post Office investigators is to establish what happened in the branch. However, where there
has been deliberate falsification of the accounts, the investigators will not able to identify the transactions
which may have caused discrepancies and losses. Furthermore, the presentation of Mr Henderson’s
contribution, followed by the references to the investigations and private prosecutions, clearly suggested
that Mr Henderson was in a position to comment on the adequacy of the investigation and evidence for
the prosecutions. Mr Henderson does not have sufficient knowledge of the individual criminal cases to
make such a broad and serious accusation. Despite this, this allegation is presented, in essence, as fact,
suggesting that Mr Henderson has the requisite knowledge to be capable of making such an assessment.
In the context of claims of “institutional blindness”, it is also remarkable that no detail was provided in
the Programme to the Complaint Review and Mediation Scheme set up and funded by Post Office, the
work of the Scheme’s working group more generally and the involvement of the Centre for Effective
Dispute Resolution. All of these matters were discussed in detail during the on the record briefing
provided to the BBC by Post Office.
Professor Mark Button is presented in the Programme as a relevant legal expert. However, Professor
Button does not have, and has not had, any involvement in or knowledge of the three cases presented in
the Programme. Indeed, this has been acknowledged by him in an email to Post Office dated 18 August
2015. Nonetheless, his contribution was presented in a manner which suggested that he had some
knowledge of the specific cases. This is a concern that was raised in our letter of 10 August but which has
clearly been ignored. Professor Button stated during the Programme that private prosecutions “create
potential risks of miscarriages of justice”. This statement is entirely meaningless when robbed of the
context of the specific cases. The manner in which this contribution is presented suggests that this
supports the argument that there have been miscarriages of justice in the three cases featured in the
Programme. This is not the case, it is simply a general remark.
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In the context of a section of the Programme considering Seema Misra’s case, Professor Button further
opines that “there have been lots of cases in the past where inadequate disclosure by the prosecution has
led to the collapse of prosecutions...”. Again, in the absence of any knowledge of Ms Misra’s case, this
general statement by Professor Button is wholly irrelevant. By inserting this comment at this point of the
Programme, the viewer is left with the misleading impression that Professor Button is speaking expressly
in the context of Ms Misra’s case. This is a false impression which is highly damaging to our client.
Although Post Office had explained that it was unable to make any comment on individual cases in light
of confidentiality assurances given to those involved and while any criminal case review is ongoing,
much of the relevant material in relation to Ms Misra’s case (and others) is in the public domain. The
BBC could easily, and should have, carried out research so as to check and verify the facts so as to
achieve due accuracy and to corroborate the evidence of Ms Misra, in accordance with paragraph 3.4.2 of
the BBC Editorial Guidelines. This would have shown that the scope and extent of disclosure given in Ms
Misra’s case was in fact overseen and sanctioned by the court.
It is also notable that the Programme contains a contribution from Richard Roll as an alleged
“whistleblower”. Despite repeated requests to be told the identity of the various contributors, our client
was not notified of Mr Roll’s identity, simply that there was a former Fujitsu employee who was a
“whistleblower” who had worked with Fujitsu “prior to 2010”. It was therefore surprising that no attempt
was made in the Programme to conceal Mr Roll’s identity or appearance. Evidently his identity was not a
secret, There is therefore no justification for the BBC to refuse to disclose his identity, contrary to
paragraph 6.4.1 of the BBC Editorial Guidelines.
If Post Office had been provided with details of Mr Roll’s identity, it would have been position to
comment on the role actually performed by Mr Roll while at Fujitsu and his capacity to provide
meaningful evidence on these matters. Indeed, it is notable that Mr Roll left Fujitsu’s employment and,
indeed, ceased working in IT in 2004, well before 2010 and before many of the reported losses were
recorded by the postmasters featured in the Programme. It is difficult to understand how he can therefore
opine on the operational status of the Horizon system at a time when he was no longer employed by
Fujitsu, nor even working in the IT sector. No reference was made in the Programme to these limitations
with regard to Mr Roll’s experience of the Horizon system. To the contrary, his contribution was
presented in such a way as to suggest that it was contemporaneous with the events being addressed in the
Programme.
Moreover, the Panorama team themselves declined the offer by Post Office of a demonstration of the
Horizon system on the basis that the manner in which the system operated today is irrelevant to the issue
of how it operated at the time of the purported losses. It is difficult to understand therefore why the BBC
considers that evidence of how the system operated prior to the purported losses is relevant either. To
present Mr Roll’s contribution in such a manner that suggested that he had first-hand experience of the
Horizon system at the relevant time is therefore highly misleading for viewers and unfair on Post Office.
Mr Sweeney further asks Mr Roll the highly leading question: “Jt is possible that suffering could have
been caused because there are problems in the Horizon system?”. Mr Roll states that this is possible.
However, again, no evidence is presented by Mr Roll or during the Programme to suggest that any
problem with the Horizon system has resulted in a loss for which any postmaster was prosecuted.
Nonetheless, the manner in which Mr Roll’s contribution is presented is intended to mislead viewers into
believing that he has a greater degree of knowledge of individual cases than is accurate. This is a
contravention of paragraph 3.2.3 of the BBC Editorial Guidelines.
Not only did the Programme include these misleading contributions from purported experts, but the BBC
failed to include any contribution from, or reference to the views of, for example, the National Federation
of SubPostmasters (NFSP), the independent membership body which supports and represents some 5,000
postmasters across the UK. NFSP is an independent membership organisation. It is telling that the
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Programme omitted any reference to the NFSP on this issue, as a neutral body, which would have helped
put the criticisms of the three postmasters featured in the Programme in a proper context.
Reflection of right to reply
Our client provided the BBC with a detailed statement to be used on the Programme. In light of the fact
that our client was provided with very limited information regarding the allegations being levelled against
it and the evidence upon which such allegations were founded, it was extremely difficult for our client to
provide a suitably comprehensive statement.
Nonetheless, and despite the provision of a detailed statement, the BBC saw fit, during the Programme, to
‘cherry pick’ from our client’s statement preferring to use short sound bites rather than to reflect our
client’s statement in full. This inevitably meant that the force of much of what was being said by Post
Office was lost and was not fully, fairly or accurately represented in the Programme (contrary to
paragraph 6.4.26 of the BBC Editorial Guidelines). Many comments which were included, were then
followed by reporting which was designed to negate the impact of the Post Office’s comments and
therefore meant that Post Office’s statement was not reflected fairly in the Programme. Furthermore,
significant elements of the statement were omitted altogether. For example:
e The Programme includes reference to the involvement of the Criminal Cases Review
Commission (“CCRC”). However, no mention is made of the fact that, in addition to complying
with its statutory obligations, Post Office is voluntarily providing the CCRC with any assistance
it requires. Nor is it made clear, that the CCRC will have details of all of the relevant documents
which are available, including privileged and confidential materials, meaning that the CCRC will
be far better equipped to reach a conclusion regarding any potential miscarriage of justice than
the BBC (or, indeed, anyone else) would be.
e Despite being set out in our client’s statement, the limited role for which Second Sight was
appointed and, furthermore, its lack of expertise in respect of criminal law and procedure is not
made clear in the Programme. This is highly relevant and frames the weight that should be given
to any contribution provided by Second Sight.
« As stated above, Post Office’s statement regarding remote access to the Horizon system was not
accurately reflected in the Programme. In particular, it is notable that Mr Roll is asked whether
“what the Post Office is saying is untrue” and yet at no point is it made clear what statement has
actually been put before Mr Roll. If it is the statement that changes to the system made remotely
“simply can’t happen”, then this is an inaccurate reflection of Post Office’s position and results in
a highly misleading and damaging sound bite, essentially alleging that Post Office is lying. This
is completely untrue and such a statement, implied or otherwise, is likely to cause serious
financial harm to our client.
« The Programme states that Post Office “doesn't have to go through the police or the Crown
Prosecution Service”. The inference from this section of the Programme is that the Post Office is
operating outside of the restrictions of the usual legal process. No mention is made of the fact that
Post Office follows the Code for Crown Prosecutors issued by the Director of Public
Prosecutions. Nor is any mention made in the Programme of the fact, as stated in our client’s
statement, that “every person charged with a criminal offence is entitled to their own independent
legal advice and representation, and reaches their own decision on how to plead based on that
advice”. We would also point out that Post Office does not conduct private prosecutions in
Northern Ireland or in Scotland.
e The Programme states that “some are now calling for Paula Vennells to resign”. The inference
being made in this statement is that Ms Vennells is in some way personally implicated in any
alleged miscarriage of justice, and that there is a call for her to resign. In fact, as your reporters
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will have been well aware, Ms Vennells was not CEO at the time the decision was made to bring
these prosecutions. Your Programme also failed to include reference to the fact that Ms Vennells
initiated the independent inquiry and committed to a series of actions, including providing
funding to help people obtain professional advice to bring forward complaints against the
company.
Taken together, these omissions and misrepresentations mean that, in contravention of paragraphs 3.2.1
and 6.4.26 of the BBC Editorial Guidelines, the BBC has failed to ensure that the response relevant to the
allegations broadcast has been reflected fairly and accurately.
Offer to meet
The key allegations in the Programme are founded on documents which purportedly show that Post
Office brought a charge of theft against Ms Hamilton, and also against Mr Thomas, in the absence of any
supporting evidence and further that Post Office used such a charge to put pressure on Ms Hamilton and
Mr Thomas to plead guilty to false accounting. The documents upon which the BBC seeks to rely, and
which purportedly evidence the allegation made, have been taken entirely out of context.
On 12 August 2015, following extensive communications between Post Office and the BBC, our client
provided the BBC with an opportunity to review documents that would place these documents in context
and which would answer the allegations being levelled against Post Office. In particular, Post Office
invited the BBC to discuss a suitable arrangement whereby the confidentiality of such documents could
be maintained while also enabling the BBC to verify the information it was proposing to broadcast and to
check the highly damaging allegations being made about Post Office by a number of individuals who
could fairly be described as having an axe to grind with our client. Despite this entirely reasonable offer,
and despite the fact that paragraph 3.4.2 of the BBC Editorial Guidelines states that the BBC must “check
and verify information, facts and documents, where required to achieve due accuracy”, this offer was
refused by the BBC.
It is notable that if Post Office had been allowed to demonstrate to the Panorama team that these
allegations were false, then the BBC would inevitably have removed such allegations and, as a
consequence, would have been left with little material to broadcast. In this respect, it is perhaps
unsurprising that the Panorama team preferred to decline Post Office’s offer, preferring instead to ‘bury
its head in the sand’ and deny the inconvenient truth that Post Office has evidence to demonstrate that the
allegations being broadcast were untrue.
It should also be noted that the fact that such documents could only be shown to the BBC on a
confidential basis, is not a valid reason for declining to take the necessary steps to verify or debunk the
allegations being put forward by third parties. There was no valid reason for declining our client’s offer.
Furthermore, the decision to decline the offer to have sight of these documents will not provide the BBC
with any potential defence to a claim for defamation.
In this respect, we note that the BBC did agree to meet with Post Office, but only after broadcast of the
Programme. At this meeting we are instructed that the BBC stated that the appropriate course of action, in
the light of Post Office’s concerns with regard to its treatment in the Programme, would be to bring a
complaint.
Next Steps
We request that this complaint be dealt under the BBC’s formal complaints procedure.
In the meantime, we are discussing with our client its options in respect of more formal action, including
a potential complaint to Ofcom and an action against the BBC for defamation. The manner in which this
complaint is handled and responded to is likely to have a bearing on the further actions that Post Office
may take in respect of the Programme and on our client’s decision over what steps to take against the
BBC.
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For the avoidance of doubt, if the BBC chooses to ignore this complaint or to deny that there is any valid
basis upon which to found such a complaint, then we will be recommending to our client that it takes
more formal steps with regard to this matter.
In the circumstances, and to reduce the likely damage being caused to Post Office by the continuing
broadcast of the programme during the complaints process, we would request that the programme be
removed from BBC iPlayer. Please also correct the damaging summary included on the web page, which
repeats the most damaging claim that Post Office charged some postmasters with theft when “the
evidence didn’t stack up”. This is, as we have made clear, incorrect and cannot be substantiated.
In the meantime, all our client’s rights are reserved.
Yours faithfully
CMS Cameron McKenna LLP
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BBC Programme Legal Advice
British Broadcasting Corporation
Room WC 2251
c’/m’s!
MS Cameron McKenna LLP
Cannon Place
78 Cannon Street
London
ECAN GAF
White City DX 135316 LONDON CANNON PLACE
London
W127TS
10 August 2015
By Fax and Post
Our ref SCB/THRE/MIT/111850.00038
Dear Sirs
NOT FOR BROADCAST
Panorama - Post Office Limited
We write in connection with the programme that we understand BBC Panorama is intending to broadcast
on 17 August 2015 in relation to our client, Post Office Limited (“Post Office”).
Summary
As has been repeatedly highlighted to the BBC Panorama team in direct correspondence, our client has
serious concerns regarding the manner in which this programme has been prepared, the content of the
proposed programme and its purpose. These are set out in more detail below but, in brief, it is evident that
the BBC is proposing to make a number of very serious and potentially significantly damaging allegations
about Post Office and, in particular, its conduct in relation the prosecution of a number of postmasters.
Despite this, Post Office has not been provided with sufficient detail of these allegations, nor has it been
provided with sufficient information as to the evidence upon which such allegations are based to enable
an informed response.
With all this in mind, it cannot be said that Post Office has been given a fair opportunity to respond, nor is
it likely that Post Office’s position will be fairly and accurately presented in the programme.
There is therefore a significant risk that that the programme will contain material which is
unsubstantiated, untrue and likely to cause serious financial harm to our client.
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Allegations being made
Onur client is entitled to be given a fair opportunity to respond to any allegations of wrongdoing, iniquity
or incompetence, or any strong or damaging critique.
By email of 12 June 2015, Matthew Bardo provided some limited information regarding the allegations
that the Panorama programme is planning on making.
The email of 12 June 2015 stated:
“Our evidence suggests that the Post Office may have unfairly used theft charges to put
pressure on sub-postmasters to plead guilty to false accounting and/or repay apparent losses
identified by the Horizon computer system. The evidence also suggests that the Post Office
failed to consider or investigate the possibility that Horizon could be the cause of some of the
losses. As you know, it has been suggested that these failings may have led to miscarriages of
justice in some cases.”
Such allegations clearly form a key element of your programme, as evidenced by the text provided to TV
listings providers, such as Radio Times, which states:
“Reporter John Sweeney meets a whistle-blower who says there were problems with the
computer system. And he investigates claims that the Post Office charged some postmasters
with theft even when the evidence didn't stack up.”
These serious and potentially damaging allegations are strongly denied by Post Office and our client
maintains that there is no basis for making such claims in any broadcast or otherwise.
Without the provision of any further supporting evidence or information as to the basis for the claims
which would allow Post Office to provide a proper response, the list of allegations against Post Office
was further expanded in a letter from Matthew Bardo dated 22 July. This letter included the additional,
particularly damaging (and baseless) claims that Paula Vennells (our client’s CEO) was personally
“implicated in miscarriages of justice and should resign” and that Post Office is “a bullying organisation
that has abused its power”. These particular allegations are discussed in more detail below.
Our client has repeatedly requested that the BBC provide details of the evidence upon which it seeks to
rely to substantiate these, or indeed any other, allegations. We refer to Mark Davies’ emails of 12 June,
16 June, 19 June and 23 June 2015. The matter then rested with Panorama for some time until further
correspondence was sent by the Panorama team on 22 July. Mark Davies’ requests for evidence were
repeated in a letter dated 24 July 2015.
By response dated 27 July, Karen Wightman of the BBC stated that “the BBC does not normally share the
evidence upon which allegations are based...I am confident that you have been given sufficient detail in
order to respond”. It is therefore evident that the BBC does not intend to provide our client with any
further detail beyond the vague list of bald assertions contained in Mr Bardo’s letter of 22 July 2015.
It is difficult to understand how our client is supposed to respond to such serious allegations when there is
no supporting evidence for them, nor, in many cases, any indication as to the basis upon which those
allegations are being made. Our client is, in effect, being asked to defend itself from a position for which
there is no support and to prove its ‘innocence’ in respect of allegations raised by individuals who clearly
have an axe to grind with our client.
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Matthew Bardo’s email of 17 June refers to “information obtained as a result of [the BBC's]
investigation” and the letter of 22 July 2015 suggests that the new allegations have arisen out of continued
analysis of “information and material”. However, in many cases, no further information has been
provided to our client, nor any indication as to what the evidence supporting some of these allegations
might be. Unless our client is provided with proper details of the evidence upon which all of the
allegations are based, then our client cannot be said to have been granted a fair opportunity to respond.
Karen Wightman’s email of 27 July 2015 suggests that some of these allegations are statements made by
contributors and do not necessarily represent the view of the BBC. This, however, offers little comfort to
our client. By airing such damaging comments, the BBC would clearly be adding its own authority to
such a view and giving it credence, The absence of evidence may not be appreciated by the viewing
public who are likely to assume, as stated in paragraphs 3.4.1 and 3.4.2 of the BBC Editorial Guidelines,
that the BBC has taken some steps to corroborate such evidence and that the BBC has taken steps to
“check and verify information, facts and documents, where required to achieve due accuracy”. We would
remind you that contributors who express contentious and challenged views should be rigorously tested.
Broadcasting any such statements will mislead the public.
Furthermore, to broadcast individual allegations in the absence of supporting evidence, and in the face of
the wealth of evidence and information provided to the BBC by our client, including at an on-the-record
briefing, is to give undue weight to a minority view contrary to paragraph 4.4.2 of the BBC Editorial
Guidelines. We would remind the BBC that, in this particular case, many of the contributors cannot be
described as impartial.
Allegation against Ms Vennells and the allegation that Post Office is a “bullying organisation”
These two new allegations are particularly concerning and, furthermore, are highly defamatory.
We note that these allegations are apparently statements made by an individual (or individuals). We
would repeat the comments made above in respect to these statements being made by individuals who are
not being impartial. We would also wish to make clear that these allegations are entirely without any
basis and the BBC has provided no supporting evidence. Our client strongly denies these allegations.
Post Office’s reputation with its postmasters, its customers and the businesses with which it has a
commercial relationship is of the utmost importance to the business and has an immeasurable financial
value, The broadcast of any such baseless allegations would damage this reputation and cause serious
financial harm to our client.
Similarly, Ms Vennells’ professional reputation is likely to be damaged by the broadcast of any allegation
which personally accuses her of wrongdoing. In the event of the broadcast of such a statement, we will be
advising Ms Vennells to seek advice regarding a defamation claim against the BBC.
Horizon
The list of allegations provided by Matthew Bardo on 22 July includes various allegations regarding our
client’s Horizon system, including allegations that the Horizon system has or had technical issues which
are likely to have led to errors in the accounting at various branches. The Panorama team, despite our
client’s requests, have not provided any evidence to support such an allegation nor have they accepted our
client’s offer of a demonstration of the system. The allegation is untrue and without basis. The Horizon
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system is used to process six million transactions every day and, over its lifetime, has had some 500,000
users, The number of users alleging faults is miniscule in this context. Nonetheless, Post Office has
conducted detailed investigations and an independent review to assess whether computer errors have
caused cash to go missing in a small number of branches. Such investigations have demonstrated that the
system operates and operated as it should and Post Office has seen nothing to suggest that any branch has
been held responsible for a loss that was caused by a fault in the Horizon system.
As stated in an email from Mark Davies of Post Office to Karen Wightman on 4 August 2015, the
Horizon system is independently audited and meets or exceeds industry accreditations. In particular: Emst
& Young produce an annual ISAE3402 service auditor report over the Horizon processing environment;
each year Bureau Veritas perform ISO27001 certification; and Information Risk Management (IRM)
accredit Horizon to Payment Card Industry Data Security Standards on an annual basis.
Furthermore, there is some suggestion in Mr Bardo’s letter that an allegation will be made that it is
possible to access the Horizon system remotely and that data may have been altered causing branch
losses. This is an extremely serious allegation, effectively alleging some form of fraud offence, and it is
strongly denied. It is not possible for Post Office or Fujitsu to remotely edit transactions as they were
recorded by branches. Horizon is and has been subject to extensive independent audits, checks and
balances. There is no evidence that branch data has been inappropriately accessed or edited remotely. Any
allegation to this effect is untrue and highly damaging.
We note that an employee of Fujitsu is due to contribute to the programme. However, our client has not
been provided with any information regarding this individual or of the nature of this contribution. We
repeat that Post Office has seen nothing to suggest that any branch has been held responsible for a loss
that was caused by a fault in the Horizon system.
Contributors
In his letter of 22 July 2015, Matthew Bardo has provided a list of contributors.
As you will be aware, paragraph 6.4.1 of the BBC Editorial Guidelines (the “Guidelines”) states that
“contributors should normally know: ...the context of the content [and] the nature of their involvement”,
Furthermore, the BBC “should tell [contributors] in advance about the range of views being represented
in the specific content to which they are contributing and, wherever possible, the names of the other likely
contributors”. Similar provisions are, of course, also contained in the Ofcom Broadcasting Code.
While our client has been provided with the names of the other contributors, the nature of their
contribution has not been made clear.
In the case of the “legal expert”, Professor Mark Button, our client has not been provided with any
information as to his proposed contribution and no detail of Professor Button’s expertise nor the basis
upon which he is qualified to speak about these individual cases. Indeed, Professor Button does not
appear to be a qualified lawyer, nor does he appear to have practical experience of criminal law and
procedure, let alone experience of the individual cases featured in our programme. We have written to
you previously regarding a piece broadcast during the One Show where a barrister, Mr Patel QC, was
asked to contribute on similar issues. In that particular instance, the contribution provided by Mr Patel QC
was heavily caveated and it was evident that Mr Patel QC was speaking with little background
knowledge. Nevertheless, the manner in which such a contribution was made implied that Mr Patel QC
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has some genuine insight into the legal cases. We are concerned that similarly damaging remarks will be
given by Professor Button and broadcast in respect of the Panorama programme. Viewers will inevitably
assume that such an “expert” has an in-depth knowledge of each of the individual cases referred to. This
does not appear to be true in respect of Professor Button. It should be noted that although Post Office
wrote to Mr Patel QC after the broadcast of the One Show requesting the disclosure of any evidence
relied upon to assist Post Office in complying with its disclosure duties, no response was ever received. A
similar letter has been sent to Professor Button. Again, our client has received no response.
We also note that the BBC is intending to include a contribution from Ian Henderson of Second Sight
Support Services Limited. We would refer you to our letter of 19 June 2015 and remind you that Second
Sight is under certain duties of confidence. Equally, our client has made you aware that certain materials
provided to the BBC by third parties are confidential (including those protected by our client’s legal
privilege). The BBC is under a similar duty of confidence in respect of confidential material it has
received from third parties. The BBC should be aware of these duties of confidence and similarly be
aware of the risk that the broadcast of confidential material may constitute a breach of confidence.
It would also appear that much of your investigation is based upon information contained in Second
Sight’s report. As our client has made you aware, Second Sight’s review was not a criminal case review.
It is important to recognise that Second Sight are accountants, not experts in criminal law or procedure,
This should be made clear in your programme. To do otherwise would potentially be misleading to
viewers and, of course, damaging to Post Office.
Constraints on our client / Individual cases
As you are aware, legal investigations are currently ongoing in relation to individual postmasters’ cases
by the CCRC. In addition, as the BBC has previously been advised, each applicant to the case review and
mediation scheme was given an assurance that they would be afforded absolute confidentiality. A similar
agreement was reached with the Justice for Subpostmasters Alliance, Second Sight Support Services
Limited and others involved in the establishment of the scheme. Our client intends to honour that promise
and is therefore unable to provide any comment for broadcast on individual cases. Our client's position in
this respect should be accurately reflected in any programme and not portrayed in any way as a “refusal”
to comment. No adverse inference should be drawn in relation to our client’s inability to comment in the
broadcast programme. To do so would mislead viewers and be unfair and seriously damaging to our
client.
Matthew Bardo’s letter of 22 July 2015 suggests that the BBC is intending to refer to the individual cases
of Seema Misra, Jo Hamilton and Noel Thomas and contains various allegations purportedly arising from
investigation of these cases. Notwithstanding the point raised above regarding individual cases, our client
maintains that the appropriate procedures were followed in all of these cases. None of these individuals
has chosen to appeal their convictions, an option that remains open to them. These cases have been
referred to the CCRC. Post Office maintains that this is the appropriate forum in which to deal with any
allegations of a miscarriage of justice.
We do not consider that there is any useful or legitimate purpose in subjecting these cases to trial by
television, particularly in circumstances in which our client is not being provided with full information as
to the allegations being made and/or the basis of the allegations, in circumstances where our client is
unable to provide comment and where the BBC clearly is not in possession of all the necessary
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information (in contrast to the CCRC). In the circumstances of your proposed broadcast, there is also
clearly no urgency in broadcasting these allegations. None of the featured postmasters is serving a
custodial sentence and there is no reason for this programme to not to await the CCRC’s conclusions.
Indeed, there is every reason that the BBC should await its outcome.
Our client’s contribution
As you will be aware, our client has declined to put forward a representative for interview. While our
client was initially willing to provide an interviewee, in light of the manner that Panorama has conducted
itself to date, our client had deep concerns regarding the manner in which any such interview is likely to
be conducted.
By way of example, on 9 June 2015, as mentioned above, our client provided Panorama with a detailed
on the record briefing aimed at providing further information and putting forward Post Office’s position
on the allegations/concerns that the BBC wished to raise. Despite having this opportunity, it is now
evident, having read the BBC’s email of 12 June and letter of 22 July 2015, that the programme is
intending to make other serious allegations against Post Office which were not raised at the briefing. One
can only assume that, rather than seeking to present a balanced assessment of this matter, the BBC is
seeking to delay allegations until an interview in the hope that this will provide it with a more sensational
story. This is clearly demonstrated by Matt Bardo’s email of 17 June 2015 at 12:05pm which was
apparently sent to Mark Davies of Post Office in error. This states “The central point for discussion is
how much information it is appropriate to give in advance of an interview in this case”. The only real
inference that can be drawn from this email is that the Panorama team wish to withhold certain requested
information from Post Office prior to the interview,
To be clear, in declining the interview, our client is not waiving its right to comment on the allegations
being raised against it, nor is Post Office saying that it will not agree to an interview in the future. In fact,
to the contrary, it is vital that our client’s position on each allegation is fairly and accurately reported in
the BBC’s programme as required by paragraph 6.4.26 of the Editorial Guidelines.
Our client has already provided some detailed comments on the allegations that it has been made aware
of, including detailed comments provided at the on the record briefing on 9 June 2015. It is important that
the points put forward during that briefing are accurately and fairly reflected in any programme, In
addition, our client has provided a detailed statement which reflects its position and which should be fully
referenced in your programme. As stated above, the correspondence to date suggests that the BBC
proposes to make some serious allegations of wrongdoing, iniquity or incompetence against Post Office.
Our client must therefore be given a fair opportunity to respond.
Previous correspondence with the BBC
We would additionally note that the subject of the Panorama programme is a topic which has been
covered on a number of occasions by the BBC. We refer by way of example to the One Show broadcast
on 17 December 2014 and the coverage on a number of BBC outlets on 20 April 2015. It would appear,
based on the limited information that our client has been provided, that the issues and allegations being
raised in the current programme are neither new, nor, despite suggestion to the contrary, does it appear
that the BBC is presenting any new evidence to support such allegations.
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The fact that the BBC repeatedly makes these allegations without any actual evidence to substantiate
them and, on many occasions, without accurately reflecting Post Office’s position is extremely damaging
to our client. As you will appreciate, the more serious the allegation, the more the public will be
misinformed and the more the subject of the allegations will be harmed, if the allegation is not true.
The allegations which we understand are to be raised are extremely serious and are untrue and are
therefore likely to cause serious harm to the reputation of our client.
As the BBC should be aware from previous correspondence, some six million different transactions are
conducted through the Horizon system every day, by some 78,000 users without major incident.
Furthermore, Post Office delivers products and services for a wide variety of third party organisations
using the Horizon system and has major franchise partnerships with several big retailers which use the
Horizon system.
Any programme broadcasting the serious allegations that to date the BBC Panorama team have made
would be highly damaging to Post Office’s business and would be likely to cause our client serious
financial loss.
We would request that you notify our client immediately in the event of any changes to the programme or
its broadcast,
In the meantime, all our client’s rights are reserved.
Yours faithful
CMS Cameron McKenna LLP
cc: BBC Panorama, Zone D, 4th Floor, BBC Broadcasting House, Portland Place, London, UK, W1A
1AA.
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