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NOTE
We have been provided with a copy of Bond Dickinson’s helpful note entitled “Civil claims
by SPMRs” (“Bond Dickinson’s Note”), which sets out the potential civil actions that a
SPMR could try to bring against POL in certain circumstances. This note is intended to
respond to, or clarify, some of the issues raised by the Bond Dickinson Note. It should be
understood however that we only touch upon matters within our own criminal law remit.
Preamble
1. The preamble to Bond Dickinson’s Note identifies the circumstances to which it refers
as being where “....because of errors found in the Horizon system, (1) an on-going
criminal prosecution against an SPMR was abandoned or (2) an SPMR's conviction
was overturned”. We deal with these matters here:
Cases terminated
a. To clarify, whilst a number of criminal prosecutions against SPMR’s and clerks
have been terminated since the publication of the Second Sight Interim report,
none was stopped because of errors found in the Horizon system. In all cases the
prosecution was stopped because it was considered that the continued
prosecution of a particular SPMR/clerk no longer remained in the Public
Interest. In concluding that a particular prosecution should or should not be
continued, the test set out in the Code for Crown Prosecutors and, latterly, the
additional guidance provided in the draft POL Prosecution Policy, was applied
and the advice to continue or terminate was determined under those provisions.
In each case POL was provided with a written advice on the matter, in which the
test was identified and applied in a clear and transparent manner. This last point
is important because, iri the event of a complaint being made, POL’s response
would undoubtedly be to the effect that all decisions were made in a clear, fair
and transparent manner, in writing and in accordance with the national standard
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test established and used by both the Director of Public Prosecutions and all
other prosecutors.
b. Where cases have been discontinued, the Judge and defendant were told, in
court and on the record, of the reason for terminating the case. No judge or
defendant has been told that a case has been terminated for want of evidence —
all were informed that the reason was unconnected to matters of evidence or
Horizon defects but was to be found in the Public Interest stage of the Code for
Crown Prosecutors.
Overturned convictions
c. We have considered 308 prosecutions, fully reviewed in detail 53 of those
prosecutions and advised that material be disclosed in 26. Whilst such an
eventually cannot be entirely ruled-out, in none of those cases do we consider
that the defendant has a reasonable prospect of overturning their conviction,
save in one case in which we expressed concern about the defence approach and
not the prosecution case. It is to be noted that, as of the date of writing, no
convicted defendant appears to havé sought the leave of the Court of Appeal to
appeal against their conviction.
Malicious Prosecution
2. It is instructive to set out, in general terms at least, the process adopted by POL to
prosecute SPMR’s and clerks:
a. Before a prosecution is initiated a thorough investigation is conducted by POL
investigators. Once POL Security considers that a case may merit prosecution
the file is sent to independent criminal specialist solicitors for advice. Upon
receipt, solicitors provide a comprehensive advice detailing and considering the
facts of the case; any potential defences; whether any further evidence is
required; issues of disclosure; the personal circumstances of the suspect;
evidence and public interest issues; the merits of prosecution; and, where
prosecution is advised, the most appropriate charge(s). All of these matters fall
within the scope of the Code for Crown Prosecutors issued by the Director of
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Public Prosecutions and that Code is applied by prosecuting solicitors when
advising POL.
b. Because the decision whether to charge or not is one for POL and not
prosecution solicitors, both the advice and file is returned to POL Security for a
charging decision to be made. Where POL Security determines that a
prosecution should commence, the summons is issued and the file returned to
prosecuting solicitors for the matter to proceed.
c. Once a prosecution is commenced, public policy, in the shape of the Code for
Crown Prosecutors, requires that prosecuting solicitors keep the matter under
continuous review and, where the circumstances require, advise that the matter
be discontinued.
d. It has invariably been POL’s policy to follow the advice provided by their
independent solicitors.
. For those reasons we consider it extremely unlikely that any SPMR could even begin to
make out a case for Malicious Prosecution. Whilst the decision to prosecute is made by
POL, they do so only upon the considered advice of independent solicitors following
the appropriate public policy and where matters of law and evidence have been
deliberated upon by lawyers outside of the POL organisation. We consider it safe to say
that, in the extremely unlikely event that POL, or an individual at POL, were to
determine that a SPMR should be wrongly prosecuted, the process followed by POL
would identify such a situation and prevent it from going forward.
. The result of this process therefore is three-fold:
i. POL is protected from Malicious Prosecution claims by the very process
used to initiate and pursue prosecutions;
ii, Should a legitimate claim for Malicious Prosecution emerge, that claim
would properly stand against prosecuting solicitors and not POL;
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iii, That protection would not be available to an organisation which
conducted its prosecutions ‘in-house’, that is, in POL’s case, using
lawyers employed directly by POL.
Malicious Falsehood
5. Staying firmly within the criminal arena, we do not consider that a claim for Malicious
Falsehood could properly be founded upon a legitimate prosecution and subsequent
acquittal of a SPMR, for the following reasons:
“Prosecution”
a. Where the prosecution is initiated and pursued under the process described in
the preceding paragraphs, any prosecution would be properly brought and
accordingly could not be described as ‘malicious’. Similarly if, by reason of the
continuous review duty outlined in paragraph 2c above, a properly brought
prosecution were discontinued, again such a prosecution could not be described
as malicious.
“Innocent”
b. In the courts of England and Wales no defendant is ever found to be “innocent”.
Rather, defendants are found to be “not guilty” of the offence charged. This
distinction arises because the test to be applied, in both the Magistrates’ Court
and by juries in the Crown Court, is the same: defendants are guilty only if the
tribunal is “satisfied so that they are sure” of guilt. This of course means that
many defendants are acquitted not because he or she is “innocent” but rather
because the tribunal is not sure of guilt. The distinction between the two
concepts is important here because “not guilty’ does not and cannot mean
“innocent”; it means “not proved”, a very different proposition from “innocent”.
c. It is to be noted that distinction between the two concepts of “innocent” and “not
guilty” is regularly made by Crown Court judges in answer to costs applications
made by acquitted defendants.
d. Finally on this point, the distinction to be drawn between “innocent” and “not
guilty” means that, in a properly brought prosecution based on independent legal
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advice and where there was sufficient evidence to raise a charge but where the
defendant was acquitted, it could never be said that the allegations made by the
prosecutor were “false”.
Protection from Harassment Act 1997
6. Whilst we agree with the comments made in the Bond Dickinson Note we would add
the following:
a. Importantly for our purposes, the High Court has held that “...the conduct of
oppressive litigation could not amount to harassment...” within the 1997 Act.
b. Within the criminal arena, the protection provided by the process adopted by
POL to prosecute, and set out at paragraph 2 above, similarly protects POL
under this heading.
c, It remains the case that there is no fixed definition of “harassment” in the 1997
Act. However the higher courts have held, variously, that: the Act is concerned
with conduct targeted at an individual which was calculated to produce alarm or
distress and which was oppressive and unreasonable; that such behaviour sought
to be controlled under the Act was conduct such as stalking, antisocial behaviour
by neighbours and racial harassment and hatred.
7. Accordingly it is out view that POL is not susceptible to proceeding under the
Protection from Harassment Act 1997,
Simon Clarke 12" September 2013
Senior counsel
Cartwright King Solicitors
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