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POST OFFICE LTD
REVIEW OF POST OFFICE LTD PROSECUTION ROLE
A. INTRODUCTION
1. In light of criticisms of past prosecutions, the Post Office Ltd (“POL”) has
commissioned me to review past pract recommendations as to
its future approach to the conduct of prosecuti
2. Terms of Reference received from B
inson LLP (“BD”), solicitors
advising POL, invited from me tl
B. Meeting/Reporting to the Post Office Audit Committee / Board
1 On or by 31 October 2013 to give your recommendations for any changes
to the current investigation, process and conduct of future prosecutions by
POL including, if appropriate, the investigative/prosecutorial role being
undertaken by another authority set out in A(1) above.!
' The date for submission of this report was altered, by mutual consent, to 21 October 2013
Process
1 To fully understand the Horizon system — reviewing training and
materials.
i
To meet and interview as a fact-finding exercise anyone else you or POL
consider relevant to the process of the investigation and commencement of
prosecutions.
3 To review a statistically significant number of past prosecutions in which
Horizon was an issue.
As regards the process by which I have been a: -onduct my review,
ford Classroom Training
the Horizon system. Chris
id Martin Smith, and BD representatives,
dy Parsons, in my chambers at 2 Bedford Row,
and Gavin Matthews of BD in order to discuss issues surrounding the scope
of CK’s review.
On 17 October 2013, I participated in a telephone conference with Rob King
and Andy Hayward together with Gavin Matthews of BD in order to discuss
issues regarding POL’s investigation structure and function.
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Further to these conferences, I have not identified (or had identified to me by
POL) anyone else I should meet or speak to as relevant to the issues I am
asked to review. I have however received written answers to a variety of
questions I have asked or issues I have raised by email in the course of my
review.
Point 3: on 6 September 2013, I received a number of files from BD
containing material in advance of the meeting on 9 September 2013. Among
them there was a file containing 24 full case reviews performed by counsel
employed by CK of cases passing the initial sift process, which I shall return
to below. On 30 September 2013, I received 6
October 2013 I received one more by emai
case reviews in total.
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EXECUTIVE SUMMARY
The following is a summary of the main findings and recommendations in
the body of this review.
@
(ii)
(iii)
(iv) ©
(vy)
(vi)
I have seen no evidence to suggest that Post Office Ltd exercises its
investigations and prosecution function in anything other than a
well-organised, structured and efficient manner, through an expert
and dedicated team of in-house investigators and lawyers, supported
by Cartwright King solicitors and their in-house counsel, as well as
external counsel and agents where requir
any commercial conflict of interest
current problems.
The Horizon data inte;
Office Ltd or to Cartwright King when it should
rosecutor Post Office Ltd is accountable for this
responsibility for it.
st Office Ltd has taken appropriate steps to address the failure by
blishing a thorough and complete review of the question of
disclosure in affected past and present cases.
Post Office Ltd’s prosecution role is perhaps anachronistic, but Post
Office Ltd has undoubted expertise in investigating and prosecuting
the nature and volume of cases it handles annually, which provides
it with a unique specialism, inevitably leading to good and efficient
use of resources, as well as efficacy.
Moreover, Post Office Ltd has the distinct advantage of
understanding intimately its products, its customers, its operations,
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(vii)
(viii)
and the business of those who it employs and contracts with as
agents, and, in general terms, it understands its data systems and its
functions. Moreover, Post Office Ltd inevitably benefits from
central oversight of cases arising nationwide; divestment of its
investigative and/or prosecutorial role to police and/or another
public prosecuting authority would result in little or no central
oversight, thus a risk of inconsistency of approach and would
ultimately be detrimental to the organisation.
It is against the background of all these considerations that I have
Post Office Ltd that
concluded that there is no good reason to ad:
tole.
However, there is scope fot i
following recommendations:
rewritten by Cartwright King on its behalf,
include criteria that accurately reflect POL
rosecution policy and its guiding principles.
nce Post Office Ltd’s policy documents are in final form,
Post Office Ltd should consider publishing them on its
intranet, as well as otherwise ensuring that its employed
and agency staff are made aware of Post Office Ltd policies
in this area, in order to achieve a greater measure of
transparency.
d) For the same reasons, Post Office Ltd should consider
publishing its policy documents, or a summary of its
prosecution policies, on its website.
e) Each and every prosecution policy document should be
provided with an annual review date, and reviewed on or
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8)
before the annual review date, or following any material
changes, whichever be the sooner, and the Board should
approve any such material changes.
Consideration should be given to including within its
prosecution policy criteria detailing the range of factual or
legal circumstances in which Post Office Ltd may decide to
hand over cases to the police and/Crown Prosecution
Service.
Post Office Ltd should consider drawing up a protocol or a
memorandum of understanding b n it and any third
that Post Office Lt
ily relies upon for the
prosecution of its cases, an eking the third party’s
understandin agreement
material or inform: might undermine the integrity
of the system, ‘o the requirement for the disclosure of
formation in the course of criminal
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Cc. HISTORICAL BACKGROUND
Introduction
5. On I April 2012, the shares in POL were transferred from the Royal Mail
Group Ltd (“RMG”) to Royal Mail Holdings ple (“RMH”), since which
time POL has had an existence independent of RMG. Now, POL is a wholly
owned subsidiary of RMH. The Secretary of State for Business, Innovation
and Skills (“BIS”) holds a special share in POL. RMH and BIS, through the
POL’s day-to-day
Shareholder Executive (“ShEx”), have no involvement
operations.”
6.
7.
and through the instruction of Cartwright King
as well as by external counsel and agents. It
ity department, which is responsible for conducting
ry department is accountable to the Corporate
8.
Courts, and appeals are prosecuted in the Court of Appeal. In Northern
Ireland the Public Prosecution Service (“PPS”) prosecutes POL cases albeit
with input and assistance from POL investigators. In Scotland it is the
Procurator Fiscal who prosecutes POL cases.
9. Representatives of CK had been in Scotland the week before our conference
on 9 September 2013 in order to discuss with the Procurator Fiscal’s office
> Annual Reports and Financial Statements 2012-2013, page 42
13.
the recent interim findings by Second Sight Support Services Ltd (“SS”).
Currently, cases stand adjourned in Scotland, where, as I understand it, POL
has been granted special agency status.
I understood in the meeting that CK had not yet spoken to the PPS in
Northern Ireland. CK acknowledged the need for them to visit the PPS.
However, to date there had been only two prosecutions in Northern Ireland,
neither of which involved allegations surrounding Horizon.
History of Royal Mail and Post Office prosecution ro,
the long and colourful
and Royal Mail of offences
unt helps explain the
( jan Baxter, former Head of Corporate Security, Post Office
Security & Investigation Services, and the late Peter Jeffers, former
Investigation Officer, Post Office Investigation Department, and later a
senior manager at BT, for their research and correction of previous errors.
The copyright notice attributes the document copyright to “Royal Mail
and/or Alan Baxter.”
For the sake of completeness, I should add that I have also been provided
with a PowerPoint presentational document that is entitled Investigations &
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17.
Prosecutions — A Brief History, which by its content suggests that it was
created after POL’s separation from RMG in April 2012, but in fact adds
nothing to the Baxter document.
Baxter’s updated version sets out in some detail the history of RMG’s
investigative and prosecutorial role, which can be traced back as far as 1683,
when the then Attorney General was appointed Solicitor to the General Post
Office, which he served for 30 years and in respect of which he had “care of
managing of all Law proceedings wherein the Office hi en concerned.”
sponsible for conducting
criminal investigations and providing speciali ice and services to each
in 1999 that saw the number of Post
an equal number of smaller security
ose business units. Simultaneously, the
POL.
m investigation teams to complement their security
‘Royal Mail Letters, Parcelforce Worldwide
they’drew on Security & Investigation Services staff to
minal investigations. Leadership and standards however
Group Security Director.
Further restructurings and a name change to RMG saw the number of
businesses reduce to four including POL, Royal Mail Letters, Parcelforce
Worldwide and General Logistics Services, Royal Mail’s international parcel
operation. However, within Royal Mail’s Group Centre, Group Security was
to continue to provide strategic direction, governance and performance
* Letters, Counters and Parcels
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20.
21.
22.
23.
supervision, and maintained formal links with the Home Office and the
Ministry of Justice, as well as Police and Law Enforcement Agencies and
other Governmental departments. POL, Royal Mail Letters and Parcelforce
Worldwide maintained their operational security and investigation teams led
by heads of security and staffed by professional investigators and security
managers.
Royal Mail investigators were trained to rigorous standards and operated in
inal Evidence Act
100, and the Postal
ake to mean the
accordance with legislation including the Police and Cri
1984, the Regulation of Investigatory Powers Act
Services Act (which, given the apparent date of
Postal Services Act 2000 rather than the Act
Security managers normally had expe ide range of operational
and commercial areas, and developed technical competence in fields such as
crime risk management and n physical and electronic surveillance,
and behavioural security. In 20 total of 287 investigators and
security managers
y law enforcement officers was usually sought.
Royal Mail Legal Services, which was the successor to the Post Office
Solicitor’s Office, was recognised by the Ministry of Justice as a private
prosecutor and would prosecute on RMG’s behalf in England and Wales.
Outside England and Wales, pre-separation Royal Mail Security teams
reported alleged criminal activity to the Procurator Fiscal in Scotland and to
the PPS in Northern Ireland, following the same processes as the police
services in those two countries.
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24.
25.
26.
27.
As indicated above, to this day, RMG retains a residual prosecution function
covering its own areas of business, such as theft by postmen.
Private prosecutions
While it is true that POL is a private prosecutor, POL is a public authority for
other purposes, and so it enjoys a curious hybrid existence.‘ But it is quite
unlike the private prosecutor of an isolated case given the volume of cases it
handles annually, it has a security department, a compliance and legal team
in-house, and it instructs on a regular and retained b; nationwide firm of
solicitors to prosecute for it in England and Wales, who instruct external
counsel and agents.
POL is thus the only commercial organis: albeit Government owned) I
have been able to identify (apart from R) at retains a prosecution
boxes, that was likely to have been an isolated instance of the company
exercising the right to prosecute those offenders.
Like those other organisations, however, POL may and does work in
partnership with police and other enforcement agencies. But other than cases
involving violence or the threat of violence, I remain unclear when and in
what circumstances POL will consider a case should be handed over to the
‘See Part VI of Schedule 1 to the Freedom of Information Act 2000
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29.
30.
31.
32.
police and/or CPS. Nothing I have read provides any real guidance or criteria
to be followed for such an eventuality; thus any such decision appears to be
one made arbitrarily on a case-by-case basis.
The right to bring a private prosecution is preserved by section 6(1) of the
Prosecution of Offences Act 1985. POL is under no duty to inform the CPS
that a private prosecution has commenced. However, POL may notify the
CPS, particularly if in due course POL considers that the CPS should
prosecute the matter.
it might be the case that the CPS is invites ecute the matter. The CPS
can take over a private prosecution in certai umstances, but the CPS
would need to be satisfied that evidential ficiency stage of the full
Code test is met; (2) that the public interes stage of the full Code test is met;
and (3) that there is a particular need for the CPS as a public authority to take
over the prosecution.
signed to cover the position where the
with whom the CPS usually deals, such as the
to resolve, or the prosecution requires the disclosure of highly sensitive
material, but it is unclear when POL will invite the CPS to intervene. °
The CPS may even take over a private prosecution only to stop it, even
where the full Code test is met, for instance where the prosecution may
damage the interests of justice such as by interfering with the investigation or
> Section 6(2) of the Prosecution of Offences Act 1985
© CPS website http://www.cps.gov.uk/legal/p_to_t/private_prosecutions/#an05
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prosecution of another criminal offence or charge, or where the defendant
has been promised that no prosecution will follow.”
33. I have no statistics to inform me how many POL prosecutions, if any, have
been taken over by the CPS, and, if so, on what grounds.
POL investigation and prosecution process, procedure and rationale
34. I have recently received a document entitled Co:
uct of Criminal
Investigation Policy,® from which I have extract ind in some places
paraphrased) the following passages, which explai L’s perspective,
the rationale underlying its investigation and prosecution
broad terms the type of considerations apply, the variety of cases that
may be raised, as well as the applica stigation and prosecution
structure and regime. Those passages state:
(a) Properly conducted it
in protecting assets and reducing loss. If poorly managed, an
reased risk of future loss and significant
POL Security is almost unique in that unlike other commercial
organisations it is a non-police prosecuting agency, and is therefore
subjected to the Codes of Practice and statutory requirements of the
Police and Criminal Evidence Act.
(c) Moreover, there is another anomaly that sets POL aside from other
commercial investigators. Of its 11,800 branches, only 370 of them
7 CPS website http:/Awww.cps.gov.uk/legal/p_to_t/private_prosecutions/#an06
* See paragraph 64 below
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(@)
()
(6)
(g)
are staffed by employees of POL. In the majority of cases, branches
are either franchisees or agents who receive remuneration. As
neither is deemed to be in the employ of POL, the usual practices
and procedures of an employer/employee investigation do not apply.
In cases where fraud is uncovered and good evidence of criminality
exists, a criminal investigation will invariably commence. At the
same time POL Contract Advisors have the responsibility of
ensuring that any contractual breaches are investigated and any
impact on the business is minimised. a result, close
communication needs to be maintai the Security
investigation the Security Manager will
ie seriousness of the allegation
e level of criminality
Any contractual, compliance or regulatory concerns
The potential to damage the reputation of POL
. The expectations of key stakeholders.
Cases may be raised from various sources. In each instance the
information is passed to the relevant operational Team Leader who
will evaluate the allegation and decide whether or not a case should
be raised. Cases may be raised by a shortage at audit, or Post Office
Card Account holder complaints of fraud, or from any one of its
client bases: DVLA, Royal Mail, DWP etc.
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(h) The course of action decided upon must be proportionate and
necessary. Consideration may be given to other action that that will
not necessarily lead to a criminal investigation, such as pursuing a
civil enquiry for breach of contract or civil debt recovery.
(i) If the decision is to proceed with the prosecution case, the file is
forwarded to CK, for advice on charges. However, in some
instances Post Office Legal and Compliance Team (“POLCT”) will
decide on charges.
@
contact the Security Manage: az g in the Team Leader
and send an Advice detailing the er enquiries. The Advice
along with charges an ack to casework.
tains a summons. The Security Manager makes contact with the
relevant Magistrates’ Court to set a date for the suspect’s first
appearance at court. Summonses are also applied for. Upon receipt
of the summonses the Security Manager will serve the summonses
by way of posting them to the person concerned.
35. Although POL may handle a variety of cases, the cases that have been the
subject of CK’s review typically involve the prosecution of sub-postmasters
or those working for or under them in sub-post offices. I do not believe of the
case reviews or files sent to me I have seen a single prosecution case
involving a Crown Post Office employee or an agent in the sense of an
employee of a Co-op or a WH Smith for instance. The typical offence with
which individuals are charged is theft and/or false accounting, though fraud
by false representation often features.
36. Jarnail Singh, POL’s in-house criminal lawyer, informs me that in 2012/2013
239 cases were raised, of which 48 were prosecuted.’ In that year,
compensation or confiscation sums amounted to in excess-of £1.5 million,
while the cost of prosecuting those cases was runnin;
37. It is important to understand that POL’s prose
e, like RMG its pr
is, when POL prosecutes it
any statutory power, and, as observed cessor, its
investigators are accorded no special pow
prosecutes purely as a private prosecutor.
38. An email from Charles Colquhoun, t { d.of Corporate Finance, details
network cash (by which I
OL should continue to conduct such
secution function provides a clear signal to the whole
at offences of dishonesty will be taken seriously both by
the courts. The publicity such cases receives means that the
etwork would quickly realise if there were a change in policy, i.e. if
POL divested itself of its prosecution role that might increase the
temptation for some agents
ii. Retention of its prosecution role assists POL with its relationship
with its insurers in that POL has one of the largest crime policies on
the London market, which is underwritten by over 20 insurers. POL
° Tam however unclear what the breakdown is as regards nature of case and offence charged
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39.
40.
4l.
has an excess of £1m so most branch cash is self-insured, but POL’s
insurers are impressed by how seriously POL takes any leakage in
network cash, so a change in its prosecution policy might worsen its
relationship with its insurers.
iti. POL’s current policy reassures its employees (from the Board to its
front-line security teams) that securing company assets is taken
seriously. Changing this policy would put some employees in a
difficult position. If, for example, POL chose not to prosecute agents,
it would be interesting to see how it w deal with Crown
employees responsible for cash leakage.
I would of course be happy to receive and consider any further
on the issue from senior management.
POL prosecution policy docui
eparation, that POL’s prosecution policy
prosecution policy documents, that its
policy
draft, and has not been submitted to the Board for
Investigation Policy - has recently been finalised; it is detailed and complete
but focuses on the POL investigations regime.
The documents I have received are:
1) Investigation Procedures — Version 2.0 - May 2002
2) Royal Mail Group Ltd - Criminal Investigation and Prosecution
Policy — December 2007
3) Royal Mail Group Prosecution Policy - Version 3.0 - April 2011
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4) Royal Mail Group Policy Crime and Investigation (S2) — Version
3.0 — April 2011
5) Royal Mail Group Policy Prosecution (S3) — Version 3.0 — April
2011'°
6) Post Office Ltd — Security Policy [Theft and Fraud by Sub Office
Assistants] — Version 1.0 — February 2002
7) Post Office Ltd — Security & Audit Policy [Enquiries at Sub-Post
Offices owned by Multiple Partners] — Version 1.0 — undated
nil 2012
8) Post Office Prosecution Policy — Version 1.0
inal Investigation and
9) Post Office Ltd - Internal Protocol - Cri
Enforcement — undated
10) Post Office Ltd - Criminal Enforcement and Prosecution Policy —
unsigned, undated and not shown
11) POL Criminal Enforcement
approved
rosecution Policy and
Appendix I Flowchart!!
12) Post Office Ltd - C
August 2013."
42.
43.
date and appears to me superseded by more recent documents. The document
at 4) appears to be derivative, and an updated version, of the document at 3),
and so I deliberately disregard that document also.
© Although the front page of the document states that the policy is effective from April 2011, was last
updated in April 2011, and the next review was to be in April 2012, confusingly, the next review is
given in paragraph 7 as April 2013. Curiously, the document listed at 4) above does exactly the same at
paragraph 9
’ Referred to in document as “Annex 1”
” There are two versions: one I have been told was drafted for Board purposes and the other as a
working guide to investigators. They are to all intents and purposes identical
Paragraph 3.2
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44,
45.
46.
47.
The documents listed at 4) and 5) above, Royal Mail Group Policy Crime
and Investigation (S2) and Royal Mail Group Policy Prosecution (S3), are
high level policy documents, respectively setting out the principal perceived
criminal risks to RMG and its investigation response, and RMG’s policy to
prosecute those who have been investigated and who are believed to have
committed a criminal offence against RMG.
That leaves seven POL documents that I have been supplie«
6), Post Office Ltd — Security Policy [Theft and
with. Document
‘aud by Sub Office
to be investigation policy documents.
policy documents, but Post Office Ltd — Security Policy [Theft and Fraud
by Sub Office Assistants] is
‘ion, and I have not been
provided with any updated versions o! and therefore can only assume
they have fallen into disuse.
4
Legal and HR “as appropriate and relevant”.’” I observe that the
term “as appropriate and relevant” renders the hierarchy of prosecutorial
decision-making completely uncertain, fails to define roles clearly, and fails
to make clear where and at what level exactly the discretion or judgment lies
from whom to take advice “as appropriate and relevant”.
POL’s document provides also that in the event of any issue or disagreement
arising in relation to any investigations or prosecutions, the matter is to be
' Paragraph 4.1
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48.
49.
50.
referred to the Director of HR & Corporate Services to provide guidance and
advice to ensure that POL maintains a consistent prosecution policy.'* I note
that the Royal Mail policy document has the identical provision,'® but
RMG’s provision, from which POL’s is derived, is expressly based on the
fact that, “It is a requirement of the Royal Mail Group Conduct Code, fully
outlined in paragraph 8.4 of the Royal Mail Group Crime and Investigation
Policy that in reaching decisions on conduct code actions the Human
Resources Director or his or her representative must liaise with those
handling any criminal investigation or prosecution.””
The same provision of the RMG policy document then with what is to
happen in the event of “any disagreement about prosecution advice in
ich case the Head of the
tion Team will consider
the case and provide guidar
maintains a consistent prosecut
Whether or n
Code as RMC¢
that the identical POL provision avoids
duct Code rather suggests that it may not, and, if
It is important that POL’s prosecution policy documentation, which is being
rewritten by Cartwright King on its behalf, should include criteria that
accurately reflect POL prosecution policy and its guiding principles.
'S Paragraph 4.4
'6 Paragraph 4.5
"7 Assuming this document exists, I do not have it. I note its title is similar to the title of the document I
have listed at 2) above but it is not the same. That document is not only expressed to be effective from
December 2007, but also it has no paragraph 8.4 that makes that provision
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51.
53.
54.
The POL document, mirroring the RMG document, appropriately applies
“the full Code test” in the Crown Prosecution Service (“CPS’) Code for
Crown Prosecutors to any decisions made to prosecute.’*
The Internal Protocol for Criminal Investigation and Enforcement
(document 9)) “describes how POL ensures that all enforcement decisions
arising from criminal investigations are taken in accordance with POL’s
Enforcement and Prosecutions Procedure.” It is designed “to specify the role
of POL’s Enforcement and Prosecutions Procedure (“EPP”) in the making of
enforcement decisions by POL.” “Enforcement” r “all dealings with
staff, sub-postmasters or other members of the public re: in prosecution
and/or commencement of confiscation proceedings.” T! document is,
Post Office Ltd - Criminal
(document 10)) is a far lengthiei ument,; and is more detailed, and is at
e. the EPP referred to in the Internal
Under the “Introduction” section, the document sets out the underlying
policy, namely, that POL’s role is to provide affordable and reliable services
to the public through its retail operation. It continues, “POL is mindful that
criminal acts against its business (in particular theft, fraud and false
accounting) result in increased costs to the taxpayer, impact on its customers
and challenges the viability of services.”
'S That is to say the two-stage test involving the evidential and public interest stages
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55.
57.
58.
59.
It sets out how it intends reducing criminal acts against its business: by
advice and education, fully investigating reported concerns, taking action
(criminal or civil enforcement and disciplinary action) in appropriate cases,
and in other instances (which are not specified) handing over investigations
to the police to consider enforcement action.
The four guiding “Principles of Enforcement” are said to be proportionality;
a fair and consistent approach; transparency; and enforcement to be focused
where it is needed most. Each is then developed sepa
The document then sets out POL’s “Enforcement Options”. The application
the community, risks to
itude of the offender, the
consequences of non-complia
enforcement options.” In partic:
Other social factors
Any delays in an enforcement decision being reached.
The document then outlines the actions, which are available outside the
criminal process, which includes informal action, disciplinary proceedings,
and civil proceedings.
Under the heading “Criminal Enforcement”, the document states:
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Prosecution will be brought where the circumstances warrant it and where the
alternative enforcement options are considered to be inappropriate. Any decision
to prosecute will take account of the criteria set out in the Code for Crown
Prosecutors.
There must be:
* Evidence of guilt sufficient to give a realistic prospect of success in criminal
proceedings, and
* A prosecution must be deemed in the public interest.
Where there is a realistic prospect of conviction and formal action is in the
public interest, circumstances, which warrant a prosecution may include:
* Where the alleged offence has resulted in si
POL and the public
law
¢ Where there is a history of similar
* Where the offender has refused to acc
evidence to the contrary
* Where the offender has fe
wrongdoing
appeals and complaints, adherence with the policy (said to be mandatory and
advises that any departure must be exceptional and capable of justification).
The document requires periodic review. However, although there is a box at
the foot of the last page of the copy sent to me allowing for insertion of the
date of implementation of the policy, the date for its review, and the date of
its formal approval, each space is left blank.
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61. I am left totally unclear of the current status or origin of the Internal
Protocol for Criminal Investigation and Enforcement (document 9)) and
the more impressive and detailed Criminal Enforcement and Prosecution
Policy (document 10).
62. The document, clearly in draft, entitled POL - Criminal Enforcement and
Prosecution Policy (document 11)) which annexes as Appendix 1 a
Flowchart, describes itself as “intended to be the new public facing policy
under which Post Office will conduct all future investigations of alleged
criminal activity against the Post Office”. It states that it follows a review of
current policy, which was largely based on previous RMG policy.’
63. How, if at all, it is designed to sit with the far fuller and detailed namesake
Criminal Enforcement and Prose
have made extensive reference above, I kno
out in short form and in bas:
64.
impressive of all the POL documents I have read. I understood from my
telephone conference of 17 October 2013 with Rob King and Andy Hayward
that the document was only finalised this year. Its focus is clearly criminal
investigation and not criminal prosecution. I note that, in addition to the
passages I have extracted above,”” the document makes reference to the SS
Interim Report and Horizon issues as they affect current investigations.”
° Paragraph 1.2
°° See paragraphs 34(a)-(1) above
?! Paragraphs 6.7, 12.6, 12.7, 12.8, 24.1 (using the working guide version numbering)
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65.
66.
The current state of affairs is quite unsatisfactory. POL separated from RMG
in April 2012, yet, with the exception of the Conduct of Criminal
Investigation Policy document (document 12)), which emanates from POL’s
Security Department, the position in late 2013 is that there exist several
enforcement and prosecution policy documents, whose precise status, origin
and currency are uncertain.
I have made recommendations about this above, ich include the
regularisation and rationalisation of these docum Moreover, in the
policies on its intranet and on its website. There is no reason POL should not
do the same.
» Criminal Enforcement and Prosecution Policy (document 10)), page 1, first paragraph, second
and third bullet points
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DISCUSSION OF THE CASE FOR AND AGAINST THE
67.
68.
69.
RETENTION BY POL OF ITS PROSECUTION ROLE
The arguments
The principal arguments for the retention by POL of its
investigative/prosecutorial role are visibility and the effect of deterrence, “a
clear signal” that POL will not tolerate dishonesty across its network. Thus,
to abrogate an important function, for example, to the CPS, would be to send
out the wrong message.
I would remain confident that if POL were todivest itself of it
function, any such change would be managed in a way tha
knew that this was not a change of pi POL was relaxing its
oach, so that POL’s network
view on dishonesty, but rather a change of aj
of staff and agents would re
it is to prosecute such criminal offences. All should be aware of POL’s
expectations through training, contractual documents and operation manuals,
if POL’s Criminal Enforcement and Prosecution Policy (document 10)),
is accurate.** Therefore, with respect, I do not agree that a change of
prosecuting function, properly handled, would unavoidably send out the
message Mr Colquhoun fears.
% See page 2
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70.
71.
72.
73.
The second point Mr Colquhoun makes is a good one, but it goes to one
aspect of the business case for retention. My review is not to consider the
business case for retention. That is another matter entirely, and beyond my
remit. Mine is to look at POL’s prosecution role from a purely functional
perspective to see if there is a better case for POL’s prosecution arm being
subsumed into the prosecutorial function of an existing public prosecuting
authority such as the CPS.
As regards Mr Colquhoun’s third point, while I accept that POL has assets to
protect, and that POL takes seriously securing comp: ssets, in that regard
I have struggled also to understand the point, in the context of the review I
am conducting, that changing POL policy would put some employees in a
difficult position. If the recommendation were that POL should abrogate its
role of prosecuting POL agents only, then I might understand, but that is not
what is at stake. I am not asked to consider splitting one part of POL’s
prosecution role while retaining another, and thereby recommending that
POL adopt a differential approach towards employees as distinct from
agents. If I were to recommend that POL should lose its prosecution function
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74,
75.
76.
77.
that would have to apply across the board — not just to the prosecution of
agents.
The Conduct of Criminal Investigation Policy document, which is directed
at POL investigations, argues” that properly conducted investigations form a
key part in POL strategy in protecting assets and reducing loss, and that if it
is poorly managed, an investigation can lead to increased risk of future loss
and significant damage to the corporate brand, and in commencing any
investigation POL needs to consider the impact in term: the protection of
business assets and limiting potential liabilities ighing against the
reputation of the organisation or damage to the id should the
investigation fail.
What has potentially damaged POL’s the Horizon Online issue,
which has shone a spotlight on POL, and its prosecuting function, as never
before. The adverse publicity al i
in the criminal justice system
particular.
In my judgment, POL has taken appropriate steps to ensure that both past
and current criminal cases, which have been potentially affected, or remain
potentially affected by Horizon Online issues, are being thoroughly
considered and reviewed by CK. Horizon training and support are also
included as issues in the CK review, for which POL assumes direct
responsibility.
> Paragraph 1.1 (working guide version)
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78.
79.
80.
81.
82.
In considering my recommendations I think it important to observe that no
fault has been alleged as regards POL’s prosecutorial role generally or the
way in which it carries out its function. While there may be disagreement
about decisions it reaches on individual cases, I have seen no widespread
criticism of POL’s investigation department or its in-house compliance and
legal teams, or indeed of the quality or adequacy of POL’s external advisers.
The difficulty that presents itself to POL now is that a number of
convictions, as well as current and pending cases, are and have been reliant
on the correctness of Horizon Online data and the integrity of the system,
cus is-on the alleged non-disclosure of
rvices Ltd (“FSL”) expert customarily
its possession. In past cases, CK is asking itself the question whether had
POL been in possession of the material at the time of the prosecution it
would have disclosed it in compliance with its disclosure duties, recognising
its obligation post-conviction to disclose any information that might cast
doubt on the safety of it.
Against that background, I have to determine whether there would be real
advantage in these cases for POL to divest itself wholesale of its prosecution
function. Focusing on the current issue, which brings about this review, in
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83.
84.
85.
my view, were POL’s investigative/prosecutorial operation to be handed
over to the CPS, for example, as being the only viable public prosecuting
authority able to prosecute them, the CPS would find itself in a
comparatively disadvantageous position from which to advise on charge and
to prosecute POL cases. It would be in a disadvantageous position, because
there would inevitably not be the centralised oversight nationwide that POL
enjoys, or none as efficient as POL’s. It would involve CPS branch or
regional offices local to the commission of the offence (possibly supported
by the local police force) deciding on charge and, if charged, prosecuting the
cases. Realistically, this would mean a fragmente proach, with little
chance of central control or close oversight of ‘thes: ses, or the issues
affecting Horizon.
The claimed problems with Horizon ¢ t disappear, but in my
opinion decentralisation of the investigation rosecution of these cases
could only operate to exacerba difficulty, a1 ould inevitably lead to
becoming totally diluted or lost if its function were abrogated to a public
prosecuting authority such as the CPS, is POL’s undoubted expertise at
investigating and prosecuting the very nature and volume of cases it handles
annually, which provides it with a unique specialism inevitably leading to
good and efficient use of its resources, as well as efficacy. That is not just of
real benefit to POL but in my judgment it is also of real benefit to the general
public and the communities POL serves.
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86.
87.
88.
89.
Moreover, POL has the distinct advantage of understanding intimately its
products, its customers, its operations, and the business of those who it
employs and contracts with as agents; it understands its data systems and its
functions, although, as recent events have proved, POL was unaware of, and
left exposed by, allegedly relevant integrity issues with Horizon Online, and
was unable therefore to meet its disclosure obligations towards those it was
prosecuting where the Horizon Online system was or became an issue in the
case.
POL by the FSL expert
they instructed to report upon izon’s ii Thus, had that been the
scenario the CPS would be
Horizon Online defects or “bugs” tha
I recognise that I have to a large extent focused on Horizon issues that have
given rise to the current review. I recognise also that the question whether
POL should retain its prosecution role is a wider question for POL, which
includes considerations of reputation, and the business case for retention that
includes, but is not necessarily limited to, the current problems, which have
understandably triggered this review. I do make clear that, although the
current review has been a direct response to the criticism of prosecutions
based on Horizon, the view I have arrived at is one based on a general view
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90.
91.
92.
93.
of POL’s role and is not limited to how it has dealt with Horizon cases. So
these considerations apply equally to the ordinary investigation and
prosecution of POL cases, even where no Horizon issues are involved.
The potential for a conflict of interest
One other issue, which I have necessarily considered with some care, is
whether FSL’s commercial relationship with POL, and the expert witness’s
employment with FSL, did create, or was capable of creating, a conflict of
interest, incompatible with the prosecutorial duties
as a prosecutor.
There are bound to be quite understandable commercial sensitiv: to FSL’s
systems, which I am confident it woul ly be loath to divulge to its
competitors, as would any company in its position. FSL is in a contractual
relationship with POL, and the relied upon to speak to the integrity of
the system is himself employed by FS e was one of its architects.
If commercial sensi about the integrity of a system were to lead to the
non-revelatior the very system used to underpin POL
then that would be inimical to POL’s prosecutorial
criminal prosecut
disclose relevant material. It would, if it existed,
le conflict of interest. The two positions would be entirely
ike perfectly clear that I have seen no evidence, and I have
‘stion, that what is said to have happened here was due to
ity or any real or perceived conflict of interest between
commercial sensiti
POL and FSL, or on the part of the expert, and I would reject any such
suggestion if made. On the contrary, I am told that FSL has cooperated with
the current review process, and I am informed that it was in fact the expert
who brought to SS’s attention the two defects or “bugs” they mention in their
report at sections 6 and 8.
Although the duties to the court of an expert are plain and have been well
rehearsed by the Court of Appeal, the Horizon expert relied upon by POL
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94.
found himself called upon to give expert evidence about Horizon Online for
no other reason than he was (and is) if not the, then a, leading expert on the
operation and integrity of Horizon Online. Thus, his depth of knowledge
about the Horizon system of which he was an architect is and was unrivalled,
and POL was justified in seeking his expert assistance in dealing with
integrity issues affecting Horizon Online for court proceedings. Moreover, I
note also that, although the Horizon expert who POL has customarily relied
upon to speak to the integrity of the Horizon Online system has made several
witness statements for a number of POL prosecution: ich rely on the
integrity of Horizon Online data, he has only ev ce given evidence
characterised as a professional witness.
The question remains whether fact of the commercial relationship that
must exist between POL and its IT pri inthe circumstances obtaining
here, ought to make any or any substantial difference to POL’s prosecutorial
role? While in, th f situation here there is always the potentiality of a
.’s obligations as prosecutor and the
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95.
96.
97.
98.
E.___ CONCLUSIONS
It may be thought that POL’s prosecution role is anachronistic, and highly
problematic in light of recent events. Its prosecution role today is certainly
based on the historical protection afforded to the mail, which I assume was
itself founded upon the historical importance of protecting an important
means of communication and commerce.
However, the recent events have to be seen in their propercontext. The serial
possible Horizon defects or 4
were knowledgeable about it,
_ also became somewhat hostage to it. I pass no judgment on what
happened here and why; there is no evidence that permits me to do so, and it
is beyond my remit. At all events I have not heard from FSL or the expert
and so anything I did say would be unfair speculation. While the commercial
relationship between POL as prosecutor and FSL as IT supplier may be
unique, and potentially troublesome, it is by no means exceptional for there
to be allegations of non-disclosure in criminal cases of every nature in all
types of situations. The Court of Appeal Criminal Division frequently hears
appeals on conviction based on allegations of non-disclosure. In the event of
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99.
there being any appeals to the Court of Appeal arising from Horizon Online
integrity issues, it will be a matter for the court to determine whether any of
those convictions have been unsafe.
I have concluded that the non-disclosure of material alleged here should not
result in POL abrogating its investigation or prosecution role to police and/or
another public —s prosecuting — authority, — given that POL’s
investigative/prosecutorial function is well-organised and efficient, and, by
the nature and volume of cases that it deals with annually, provides specialist
knowledge, expertise as well as real benefit to and to the public
generally, which would be otherwise diluted or not to say that
may be interesting argument. But they ‘or this review.
Brian Altman QC
2 Bedford Row
London WC1R 4BU
baltmant.
21 October 2013
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