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REGINA
-v-
SEEMA MISRA
RESPONSE TO DEFENCE ABUSE SKELETON
1. The Crown opposes the application. The Crown has been presented with an
avalanche of disclosure requests in this case. Responding to those requests has
been a considerable task but the Crown has responded.
2. Every transaction in a sub-post office goes through the Horizon system. The
system is designed to be easy to use. Each terminal has large, coloured buttons
and at every stage of a transaction simple instructions appear on the screen to
guide the operator through the process. Seema Misra was an experienced sub-
postmistress. She had run her own office for just over 2% years; she simply
could not have done this without being proficient in Horizon. She would have
been responsible for training her staff in the operation of the system. If, as the
Defence allege, there was a continuing problem with the Horizon system at
West Byfleet, Mrs Misra should have been keenly aware of it at the time it was
occurring. As she was personally liable for any deficiency, she would have a
considerable motive to get to the bottom of any problem she encountered. She
would have been helped by the various printouts that the system can produce
to check cash and stock. There was also the Horizon System Helpdesk, a
helpline for her to contact which would allow her to speak to staff with varied
expertise. Vipinprakash Varsani (statement bundle p.17) took over from Mrs
Misra when she was suspended. He states that since he took over he has had
no problem with the Horizon equipment he inherited and has no reason to
doubt its reliability or accuracy.
3. The Crown sets out these basic details from the case because they should
have provided a useful starting point from which to make focused disclosure
requests, which were informed by the Defendant’s instructions. Even if Mrs
Misra was suffering a technical difficulty she couldn’t solve, she would
presumably still be in a strong position now to tell her lawyers and expert what
the problem was not, because she had had an incentive to try everything she
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could to solve the problem. The Defence in cases of this kind should always
have a considerable advantage: their client is an expert in Horizon and is the
person who was operating the system.
4. The root cause of the disclosure problems in this case has been a failure by
the Defence to make focused requests. This is not meant as a derogatory
criticism. The Defence can only act on their instructions. But the case has been
transformed, from a straightforward, general deficiency trial into a boundless
enquiry into the whole Horizon system. The Crown has made strenuous efforts
to comply with the vast scope of disclosure requests and we respectfully submit
we have fulfilled our duty. Nevertheless, the task has been close to
overwhelming. As a result the Crown has failed to comply with the time limits
set by the Court and has failed to respond to the Defence as expeditiously as it
would have wished. The Crown has, however, responded to all disclosure
requests. The suggestion in paragraph 11 of the Defence skeleton that the
Crown has not responded to the request dated 3/2/10 is incorrect.
5. Asan indication of the kind of disclosure requests made in this case I attach
to this skeleton the Defence’s Further Request for Disclosure served on
30/11/09. The requests at paragraphs 2, 8, and 19 are submitted to be
unreasonable.
6. The Crown accepts that its expert, Gareth Jenkins, was instructed at a
regrettably late stage. His instruction was a belated recognition that the only
way fully to comply with our disclosure obligations was to instruct an expert at
Fujitsu. Mr Jenkins has held detailed discussions with Professor McLachlan and
explained why some of the Professor’s theories don’t work. The first statement
produced by Mr Jenkins was very limited. A fuller statement will be served this
week. We do not anticipate that it will contain material that Mr Jenkins has not
already discussed with Professor McLachlan.
7. One of the main sticking points in the disclosure process has been the cost
of obtaining Horizon data. Transaction logs can be obtained from Fujitsu that
show the details of every single transaction at a post office. The Defence’s
request has been for logs from 6 months prior to the Defendant’s tenure to the
present day. This request is far too wide and the cost of obtaining that data
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would frankly be astronomical (see below at para 8 for the cost of providing
limited data). The Crown has explained on numerous occasions how expensive
it is to obtain this material. The expense simply results from Royal Mail’s
contractual obligations to Fujitsu. We have asked the Defence repeatedly to
consider a narrow time span for their request or a narrow field of types of
transactions. The reason for this suggestion was that the Defendant’s false
inflations increased consistently over a long period of time. They indicate some
kind of continuing problem, rather than a few one-off events. If there really
was an innocent reason for the Defendant's false figures it could be searched
for rather more easily in a short, representative cross-section of data than ina
mountain of information covering more than 5 years. The Crown has made it
clear that if significant problems/errors were found in an analysis of a narrow
span of data it would review its case on count 1.
8. The Defence has made no proposal as to an appropriate span of data, even
though it has the potential advantage of the Defendant's insider knowledge.
This failure by the Defence has been rather frustrating but it may have been in
part because the Defence put its request on hold while it asked for justification
of the cost of obtaining this data. The Crown has chosen therefore, at a cost of
over £20,000, to obtain logs for the period December 2006-December 2007.
The logs consist of 431,490 separate transactions. The chosen time period
covers the full extent of the Defendant’s admitted false accounting. It also post-
dates the time when the Defendant claims to have put a stop to thefts by
employees. It should therefore be more than sufficient material for Professor
McLachlan to study to see if there is any support for his theories. With an
expert eye the material is not difficult to analyse. In a morning’s work the
Crown’s expert, Gareth Jenkins, was able to analyse all failed credit card
transactions and, to his mind at least, refute Professor McLachlan’s theories on
that score.
9. The logs should be in the possession of Professor McLachlan by Monday 8
March. Mr Jenkins will continue to provide Professor McLachlan with all the
assistance he needs to get to grips with the material. By the time of the abuse
hearing it is hoped that Professor McLachlan will have had a chance to review
the question of whether he will be ready by the trial date.
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10. Professor McLachlan has helpfully put in his 5" interim report a schedule of
the work he wishes to carry out. Mr Jenkins has added his comments on
Professor McLachlan’s theories. They are underlined and in a different colour. A
copy of that amended document is attached to this skeleton. Mr Jenkins has
discussed with Professor McLachlan the comments he makes in the document.
It is submitted that some of the Professor’s ideas of the work he would like to
carry out would be unlikely to elicit admissible evidence. Watching the training
of a Misra clone would hardly be a reliable indicator of the standard of Mrs
Misra’s work in her 2 % years as sub-postmistress. Filming another sub-
postmistress apparently having identifiable problems at another branch would
have no bearing on what Mrs Misra did, unless she claimed to have suffered the
same problems. Mrs Misra’s second defence statement suggests she has no
idea what her problems may have been.
11. The Crown has taken its disclosure obligations in this case very seriously.
The s.8 disclosure application dated 01/10/09 was served at the Crown’s
invitation. Prosecution Counsel then took the trouble to speak to the Defence
about the disclosure test he was going to follow. The Defence agreed with his
test. Prosecution Counsel then went on to review approximately 3000 pages of
papers in relation to sub-post offices where problems with Horizon had been
alleged. Those papers were not immediately available but had to be retrieved in
several tranches from distant storage. Prosecution Counsel has additionally
reviewed the papers in two ongoing criminal cases. The Defence has received
limited disclosure from this exercise simply because very little material fell to be
disclosed under the agreed test.
The Law
12. The Defence skeleton (at para 3ii) refers to the case of Eden (55 Cr.App.R.
193). It is unclear what relevance this has to the abuse argument. It is
respectfully submitted that Mrs Misra’s case is precisely the sort of case,
envisaged in Eden at p.198-9, where there is good reason for having both theft
and false accounting on the indictment. The two sets of offences do not stand
or fall together. Mrs Misra claims that she committed false accounting for a
temporary gain, namely hiding the debt she owed to the Post Office. The
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Crown’s case is that the false accounting was how she filled the hole in her
accounts that had been caused by her stealing.
13. The Crown submits that the issue for the abuse hearing is whether the
Defence can show that the Defendant will not receive a fair trial. This is not a
case where the Crown is guilty of serious fault to the extent that the case
should be stayed, irrespective of whether a fair trial is possible. There has been
no misuse or manipulation of the Court’s process. The disclosure process has
been fraught with difficulty, but that was perhaps inevitable where that process
had unparalleled demands. The picture in the Defence skeleton of the Defence
making all the running in the case while the Crown did nothing is not a fair one.
14. The Crown has acted properly throughout. The Crown could have objected
to Mrs Misra’s application to adjourn on the day of her trial. If that had
happened the trial may well have proceeded on that day. The Crown thought it
right that there should be a thorough examination of the Defendant’s concerns
about Horizon, even though those concerns had been raised at a remarkably
late stage.
15. The Crown still hopes that the Defence can be ready for trial. It is
anticipated that the involvement of Mr Jenkins and the service of the logs will
dramatically assist the Defence’s preparation. It would clearly be extremely
unfortunate for the case to be adjourned once more. However, as the Defence
skeleton correctly points out, a stay is an exceptional remedy of last resort. If an
adjournment would allow the Defendant to have a fair trial then that would be
an appropriate remedy.
WARWICK TATFORD
7 March 2010