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THIS DOCUMENT IS SUBJECT TO LEGAL PROFESSIONAL PRIVILEGE AND MUST NOT BE DISCLOSED TO ANY
PERSON WITHOUT THE EXPRESS AUTHORITY OF POST OFFICE LTD GENERAL COUNSEL OR CARTWRIGHT
KING SOLICITORS
BRIEFING NOTE
POST OFFICE LTD GENERAL COUNSEL
Briefing Note
Tab
Counsels General Advice, 3s” July 2013 1
Draft reply to Criminal Cases Review Commission 2
Counsel’s Advice re Expert Evidence (Dr. Gareth Jenkins) 3
Compensation for Miscarriages of Justice advice 4
Counsels Advice — “Disclosure - The Duty to Record and Retain Material” 5
Review Protocol for the Initial Sift and Full Review Process 6
Protocol for the Identification, Recording and Retention of Material which may be 7
subject to Duties of Disclosure
Sample Full Review — R. v. Khayyam Ishaq 8
Meeting Report — Scotland 9
Prosecution Policy 10
Simon Clarke 16” October 2013
Senior counsel
Cartwright King Solicitors
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History
1. Historically the Post Office was a division of the Royal Mail Group (RMG), however
Post Office Ltd. (POL) was separated out of the RMG on the 1" April of 2012 and
each became separate and unrelated organisations. Prior to separation it was RMG
who conducted the prosecution of criminal offences committed by POL employees',
sub-Postmasters” (SPMR’s) or clerks,’ however post-separation POL assumed the role
of prosecutor.
2. In general only three distinct offences are prosecuted by POL: Theft; False
Accounting; and Fraud. Theft usually involves the direct appropriation of (usually)
monies by those handling POL money. False Accounting; and Fraud may be viewed as
different types of the same species; the falsification of records so as to hide lost or
stolen funds. In these cases SPMR’s will assert that the Horizon Online (HOL) system
has thrown up unexplained losses or shortages and, in fear of repayment or loss of
contract,’ they have falsified their accounts so as to hide the fact from POL.
3. The detection and successful prosecution of such offences is almost always dependent
upon a proper analysis of HOL data and its effective presentation both to defence
representatives and to the court. Accordingly it is imperative that the integrity and
operation of HOL is demonstrably robust. To this end prosecutors have relied upon the
statements of both POL Investigators and, where expert evidence is required, that of
Fujitsu Services Ltd. In each case a formal statement (and testimony, if required)
explaining HOL and those functions of HOL relevant to the particular prosecution is
provided by the Lead Investigator. Where it is necessary to provide evidence and
testimony dealing with the integrity of HOL and/or to explain technical aspects of the
system and data, we have relied upon Dr. Gareth Jenkins, an expert witness provided
by Fujitsu.
4. Defendants are entitled to challenge any and all prosecution evidence, including expert
evidence, and in so doing they are entitled to see any material in the possession of the
' Those working in Crown Offices are employed by POL.
? Contracted to POL to provide Post Office services.
3 Employed by SPMRs and often family-members of SPMRs.
“The contract requires the SPMR to repay any losses, howsoever incurred or by whom.
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prosecutor? which might assist them in that task. This is the foundation for the duty of
disclosure placed upon the prosecution. In complying with the duty a prosecutor must
consider whether he (POL) is in possession of, or has access to, any material which
“\..might reasonably be considered capable of undermining the case for the
prosecution ...or of assisting the case for the accused....”° The duty extends to
examining any information of which the prosecutor becomes aware (and for these
purposes this includes information which Post Office Ltd becomes aware of) so as to
determine whether or not that test is met. The prosecutor must, at all times before the
conclusion of the case, keep under review the question whether there is any
information which must be provided to the defence.’ This duty is on-going even after
conviction and sentence.
5. This duty of disclosure also extends to any expert instructed by the prosecution to
provide expert statement and/or testimony. That duty is set out thus:
“....an expert witness possessed of material which casts doubt upon his
opinion is under a duty to disclose the fact to the solicitor instructing him,
who in turn has a duty to disclose that material to the defence. The duty
extends to anything which might arguably assist the defence. Moreover, it
is a positive duty.”*
6. In the vast majority of cases prosecuted by RMG and latterly POL, HOL data
represented the starting point for the investigation and provided the primary evidence
against offenders. Very often in these cases a defendant would assert that losses were
due to unexplained and false figures, transactions and balances in HOL and that
accordingly they were innocent of any crime. In other cases defendants would say that,
whilst they had taken no money from POL, they had falsified accounting records so as
to hide or disguise otherwise inexplicable HOL data.
5 Or reasonably available to him
° CPIA 1996, 55.387
"Ibid, 5.7
* Rv. Ward, supra. and see paras.6-9 above.
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Second Sight
7. As the result of increasing concerns? raised by SPMR’s and others and relating to the
reliability and functionality of HOL, including allegations that the system had
malfunctioned or had produced unexplained false balances and other shortages, in
2012'° POL commissioned Second Sight Support Services Ltd. (“Second Sight”) to
enquire into the alleged problems. Second Sight’s interim report was published on the
14" July 2013. They concluded that there were no system-wide problems with the
HOL software but went on thus:!!
6.4 In the course of our extensive discussions with POL over the last 12
months, POL” has disclosed to Second Sight that, in 2011 and 2012, it
had discovered “defects” in Horizon online that had impacted 76
branches.
6.5 The first defect....impacted 62 branches. It was discovered in September
2010.
6.6 The second defect.......... affected 14 branches....and generated
discrepancies. ..including a ....shortfall...and a surplus......
6.7 POL was unaware of this defect until, a year later after its first occurrence
in 2011, it re-occurred.....
6.8 POL’s initial investigations in 2012 failed to reveal the system defect and,
because the cause could not be identified, the amount was written off.
° Often by those alleged to have stolen or defrauded Post Office Ltd. of monies.
*° Prior to the commissioning of the Second Sight Report a number of complainants had prevailed upon their Members
of Parliament to raise the issue of HOL’s integrity in the House.
™ Second Sight’s interim report published 8/7/2013, paras. indicated.
* In fact this disclosure was made by Dr. Gareth Jenkins of Fujitsu Services Ltd.
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The Helen Rose, or Lepton P.O. Report
8. Shortly after the publication a further report, now referred to as the Helen Rose, or
Lepton P.O. Report, came to light. This report was based upon a series of email
passing between Helen Rose, a POL Security Fraud Analyst and Dr. Gareth Jenkins a
member of the Fujitsu team. The emails appear to have been sent/received over the
period 30” January 2013 to 13" February 2013. The essence of the contact is a
‘question-and-answer’ process between Helen Rose and Dr. Jenkins in circumstances
where Helen Rose was enquiring into an apparent HOL issue at the Lepton SPSO.
That issue was resolved: the importance of the report however was this: it was rather
suggestive of the proposition that Dr. Jenkins then knew of other Horizon issues
related to events which occurred in January and February of 2013. The effect (if not
the substance) of the report was to cast a further shadow over both HOL and those who
had asserted its reliability in court documents and in court.
Consequences of Second Sight and Helen Rose
9. Notwithstanding the fact that Dr. Jenkins was, both in his expert witness statements
and to the court, attesting to the integrity of HOL, he knew at the time that HOL had
defects affecting the accounting function. In particular Dr. Jenkins had been aware that
one such defect might remain unresolved until a systems change planned for October
2013.
10. Dr. Jenkins failure to mention the HOL defects in his expert witness statements or to
POL and POL prosecutors rendered his written statements inaccurate and misleading.
That failure amounted to a breach of Dr. Jenkins’ duty to inform the defence and the
court (and POL) of those matters — see paragraph 6 above. This was an important and
far-reaching failure the consequences of which are only now beginning to crystallise.
Of primary importance was the fact that, had POL been possessed of this material
during the currency of any particular prosecution, it would have undoubtedly been
disclosable to the defence pursuant to POL’s duty of disclosure.
1
. Because a defendant is entitled to challenge any prosecution material, where (s)he
asserts HOL failings as the source of any loss or shortage, (s)he would have been
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entitled to the disclosure of the material known to Dr. Jenkins. Thus in any case where
a prosecution relied upon HOL data as a primary source of evidence and the defendant
‘was convicted!?, the non-disclosure of this material has the potential to render a
conviction unsafe.
Chronology: post second Sight Interim Report.
12. Cartwright King first became aware of the issue of bugs within HOL on 27" June 2013
and just prior to the commencement of the trial of R. v. Balvinder Samra, a SPMR
alleged to have removed money from PO Card Accounts operated by elderly and
vulnerable customers. We were instructed that a report commissioned from Second
Sight by Post Office Ltd. and as yet unpublished, indicated that HOL may not be ‘bug’
free, and that at least one of the ‘bugs’ produced false-balance figures. Given that all
of the data supporting this prosecution originated from HOL and other HOL-interfaced
systems, we postponed the Samra trial.
13. Following the postponement of the Samra trial POL instructed prosecuting solicitors to
commence a review of all POL prosecutions back to 1% January 2010 so as to
determine whether or not any particular defendant’s conviction might have been
rendered unsafe by the non-disclosure of material revealed by Second Sight and Helen
Rose but not disclosed by Dr. Jenkins. Much thought was given to the selection of the
start-date, including such factors as proportionality; resourcing; transparency; and POL
reputation. The view was taken that all of these considerations militated in favour of a
date close to the initial HOL migration date of 2010.
The Review process
14, The purpose of the Review process was defined as being to identify those cases where,
had we been possessed of the Second Sight and Helen Rose reports during the
currency of the prosecution, would we have then been required to disclose some or all
of that material to the defence. We deliberately set a very low threshold for applying
this test: if the material might have been disclosable then we would provide the
Reports to the defendant so that he could consider whether or not to appeal against his
* Either by trial or by guilty plea.
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conviction. This test, and indeed the entire process, was directed towards the duty of
any prosecutor to provide to a defendant any disclosable material.
15. The process adopted was thus: all of the cases were subjected to a ‘sift? review in
which those identified as being ‘risk’ cases were separated out and subjected to a ‘Full
Review’ The sift review was conducted by a qualified criminal solicitor and entailed
the reviewer reading the case papers, identifying the issues and considering whether or
not HOL was an issue. Sift Reviewers were required to have relevant criminal
experience; in addition they received training in both POL prosecution practice and
disclosure prior to commencing work on the Sift process.
16. Full Reviews were (and are) conducted by senior counsel experienced in prosecuting
and defending criminal cases and disclosure issues. In each ‘Full Review’ case a full
and detailed report was undertaken, considering every aspect of the case and reaching
conclusions about POL’s exposure. Where it was determined, again by a very low
threshold test, that disclosure ought now to be made, the reports were disclosed to the
defendant’s representatives.
17. To date, 301 cases have been subject to a ‘sift? review. The breakdown is as follow:
Statistics as I Initial I Second Fully Disclosure Disclosure
at 16.10.13 Sifts Sifts Reviewed Advised Provided
To date 301" 58 35 1s'° 10°
"4 19 cases subject to the ‘sift’ review process are Scotland and Northern ireland cases. Out of those 19 cases, 7 were
identified as requiring a ‘full review’ (all Scottish cases). These cases have been discussed directly with the Procurator
Fiscal.
* Disclosure was advised in the case of Thomas Brown but not made as the case was discontinued
*® Disclosure has been advised in Hutchings and Robinson but not yet made as the disclosure letter is with BAQC for
approval. Disclosure will be required in the cases of King & Jewson and Williams (Persis) if these defendants are
charged.
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18. Where the Full Review required that we do so, we have disclosed the Second Sight
Interim Report and the Helen Rose Report to a small number of convicted defendants.
We do not consider that all who have received this disclosure will launch an appeal —
the cases against them were in any event strong and, whilst the material was properly
disclosable, it remains only one factor amongst many. Thus far no convicted defendant
has sought the leave of the Court of Appeal to challenge his conviction, however this
may change.
19. We are also in the process of undertaking a ‘second sift’ review. This entails senior
counsel reviewing all ‘sift’ reviews to ensure uniformity of approach and correctness
of the original reviewer’s decision.
The Future
20. Systems are now either in place or being put into place so as to ensure that POL’s
duties as a prosecutor are fully complied with in all respects. In particular we have
drafted, and POL has adopted, a process for the Identification, Recording and
Retention of Material which may be subject to Duties of Disclosure.
2
. We were also instructed to, and have, drafted a Prosecution Policy. This document sets
out in detail the way in which POL will deal with those alleged to have committed
offences against POL. The Policy is consistent with those operated by other large
prosecutors.’’ This document, like all such documents, will be published so that all
may see what they can expect from POL in the future.
22. The benefits of these new systems include the demonstrable auditability and
transparency of POL’s revised criminal litigation function.
23. On the 8" July 2013 we advised POL that there ought in future to be at least one
degree of separation between any expert witness called in support of a POL
prosecution and POL/Fujitsu. Accordingly POL instructed Cartwright King to identify
"7 Eg. Crown Prosecution Service; HM Revenue & Customs; The Environment Agency; Department for Work &
Pensions; The Office of Fair Trading; The Serious Fraud Office etc.
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an alternative expert with the appropriate knowledge of HOL to provide such evidence
That new expert would deal both with those cases presently under prosecution and any
future HOL-reliant prosecutions. We have identified two; Professor Kramer and Dr.
Dulay, both in tenure at Imperial College, London, as the ideal candidates for this role.
Both have agreed to take on this work
Scotland
24. At the beginning of September, POL was informed that the Procurator Fiscal for
Scotland (PF) had determined all POL prosecutions in Scotland should be terminated.
He had arrive at this decision on the basis that, as POL were then unable to prove that
HOL was wholly reliable, he was not in a position to seek the conviction of any
defendant on potentially unreliable evidence. POL’s main concern here was that of the
intention to stop ALL cases and not just those which relied upon HOL-based evidence.
Such a step would have raised a considerable public relations storm for POL.
25. CK senior counsel Simon Clarke and senior Solicitor Martin Smith and were asked by
POL to attend upon the PF and to see if anything could be done to dissuade him from
his stated course. Jarnail Singh attended for POL. Having heard from CK and JS, the
PF agreed that, rather than discontinue every case, he would now review each case
separately and a decision taken on the facts of individual cases. This amounted to a
departure from his starting point that all POL prosecutions were to be terminated. In
addition the PF agreed to adjourn every case for 6-months to allow POL to instruct a
new, independent expert.
Discontinued Cases
26. Following review, a number of HOL-reliant cases were discontinued, not least because
we sought to limit POL’s exposure.
Present state of affairs
27. We believe that we are nearing the end of the Review process, certainly in relation to
HOL cases going back to January 2010. We are certainly more confident now that the
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number of potential wrongful convictions is in single figures and that the Court of
Appeal is likely to overturn only one or two of those convictions, if any.
Current & on-going prosecutions
28. Prosecutions are presently subject to moratorium pending the appointment of a
replacement expert.
Documents
29. We include in this Briefing the following documents:
i. Counsels General Advice, 8" July 2013
ii. Draft reply to Criminal Cases Review Commission
iii. I Counsel’s Advice re Expert Evidence (Dr. Gareth Jenkins)
iv. Compensation for Miscarriages of Justice advice
v. Counsels Advice — “Disclosure - The Duty to Record and Retain Material”
vi. Review Protocol for the Initial Sift and Full Review Process
vii. Protocol for the Identification, Recording and Retention of Material which may
be subject to Duties of Disclosure
viii. Sample Full review — R. v. Khayyam Ishaq
ix. Meeting Report — Scotland
x. Draft Scope for computer experts.
xi. Prosecution Policy.
‘Simon Clarke 16" October 2013
Senior counsel
Cartwright King Solicitors
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