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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 practice and make recommendations as to
its future approach to the conduct of prosecutions.
2. Terms of Reference received from Bond Dickinson LLP (“BD”), solicitors
advising POL, invited from me the following:
Instructions & Output
A. Written Reports.
1 To review, and, if appropriate, to recommend changes to the existing
investigations and conduct of future prosecutions by POL, including, if
appropriate, the investigative/prosecutorial role being undertaken by
another authority (to be a available for publication).
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.
2 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 asked to conduct my review,
and by reference to each point in the list abovesin point order:
Point 1: on 19 September 2013, I attended Guildford Classroom Training
Office, where I received a day’s training onthe Horizon system. Chris
Gilding (Network Support Team, Leader) trained me Andy Holt (Business
Relationship Manager) was on hand to assist.and answer questions.
Point 2: on 9 September 2013, I met with POL senior management, Susan
Crichton and Rodric Williams, Cartwright King (“CK”) representatives,
Simon Clarke, Harry Bowyer and Martin Smith, and BD representatives,
Gayin Matthews and Andy Parsons, in my chambers at 2 Bedford Row,
London, WC1.
On 4 October,/2013, I participated in a telephone conference with Rodric
Williams and Jarnail Singh of POL, Martin Smith and Simon Clarke of CK,
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 more full reviews, and on 9
October 2013 I received one more by email; Mhave therefore reviewed 31
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.
(i)
(ii)
(iii)
(iv)
(v)
(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 required.
Post Office Ltd has a unique commercial, relationship with Fujitsu
Services Ltd with whom it has contracted for the supply and
maintenance of the Horizon system. I have.found no evidence that
any commercial conflict of interest has.caused or contributed to the
current problems.
The Horizon data integrity issuewas an exceptional instance of Post
Office Ltd prosecutorial failure of serial non-disclosure in breach of
Post Office Ltd’s disclosure obligations. Although the relevant
information about the Horizon Online integrity issues was not
revealed to.Post Office Ltd or to Cartwright King when it should
have»been, as)prosecutor Post Office Ltd is accountable for this
prosecutorial failure, and must (and does) accept ultimate
responsibility for it.
Post Office Ltd has taken appropriate steps to address the failure by
establishing 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
concluded that there is no good reason to adyise Post Office Ltd that
it should abrogate its prosecution role to,another public prosecution
authority, and there are many good reasons why it should retain its
role.
However, there is scope for improvement. Therefore, I make the
following recommendations:
a) Post Office Ltd)should urgently regularise and rationalise
its prosecution policy documents, and, once this is
achieved, the Board should be asked to approve them as
reflecting Post Office Ltd prosecution policy.
b) It is essential 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.
c) Once 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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3)
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 between it and any third
party supplier of its IT system, (presently, Fujitsu Services
Ltd), setting out the duties and.obligations Post Office Ltd
has as a prosecutor, and the nature and scope of the data
that Post Office Ltd necessarily relies upon for the
prosecution of its cases, and)seeking the third party’s
understanding and agreement to revealing any and all
material or information that.might undermine the integrity
of the system, and to the requirement for the disclosure of
such material or information in the course of criminal
proceedings.
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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
Shareholder Executive (“ShEx”), have no involvement/in POL’s day-to-day
F 2
operations.”
6. Prior to POL’s separation from RMG, RMG conducted the prosecution of
criminal offences allegedly committed bysub-postmasters and/or staff in
their employ. Following the separation out of POL’s business from RMG,
POL has assumed and retained»the prosecution funetion hitherto enjoyed by
RMG prior to separation, although RMG retains a residual prosecution role.
7. In England and Wales; POL’s prosecutorial role is exercised by POL’s in-
house legal;department and through the instruction of Cartwright King
(“CK”), its in-house/advocates as well as by external counsel and agents. It
is supported by the security department, which is responsible for conducting
investigations. The security department is accountable to the Corporate
Services Director.
8. Prosecutions are conducted both in the Magistrates’ Courts and the Crown
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
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 role
I have in my possession two documents, one an updated version of the other,
entitled A Brief History of Investigations, Prosecutions and Security in
Royal Mail that have provided invaluable insight into the long and colourful
history of the prosecution by the Post Office and Royal Mail of offences
generally affecting the mail. This historical account helps explain the
rationale behind POL’s prosecution role.
One of the versions of the paper I sourced from the internet; the other was
provided tome by POL. The version that was forwarded to me by POL was
copyrighted by RMG in 2010; the internet version purports to be “an
amended, corrected and updated version of an earlier draft” (I have assumed
of the one sent to me by POL).
In terms of authorship, the copyright notice in the internet version gives
thanks to Alan 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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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.
15. 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 hasbeen concerned.”
The narrative thereafter is quite literally of historical interest only.
16. With the creation of separate businesses under'the Post Office banner, and
following a review in 1996, and restructure, the Post Office Security &
Investigation Services department became responsible for conducting
criminal investigations and providing specialist advice and services to each
of the Post Office businesses.”
17. There was a further reorganisation in 1999 that saw the number of Post
Office business units increase, and an equal number of smaller security
teams formed in, order to support those business units. Simultaneously, the
three main businesses: POL, Royal Mail Letters, Parcelforce Worldwide
began developing their own’investigation teams to complement their security
teams, for which they/drew on Security & Investigation Services staff to
resource their criminal investigations. Leadership and standards however
were directed by the central Corporate Security Group, which was led by the
Group Security Director.
18. 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
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
accordance with legislation including the Police and Criminal Evidence Act
1984, the Regulation of Investigatory Powers Act,2000, and the Postal
Services Act (which, given the apparent date of the paper Itake to mean the
Postal Services Act 2000 rather than the Act of 2011).
Security managers normally had experiencein.a wide range of operational
and commercial areas, and developed technical competence in fields such as
crime risk management and modelling, physical and electronic surveillance,
and behavioural security. In 2010 there werea.total of 287 investigators and
security managers employed within RMG.
However, although RMG investigators would enjoy access to police facilities
and to criminal records and communication networks, they had no special
powers. Suspects would)be interviewed and searched on a voluntary basis,
and, where arrests were required, the support of police officers or other
statutory 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.
28.
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 basis.a nationwide firm of
solicitors to prosecute for it in England and Wales, who also instruct external
counsel and agents.
POL is thus the only commercial organisation (albeit Government owned) I
have been able to identify (apart from RMG»that retains a prosecution
function) that has a commercially,based, sophisticated private prosecution
role, supported by experienced and dedicated,teams of investigators and
lawyers. To that extent it is exceptional if not unique
By way ofuseful contrast, POL is,also unlike organisations such as FACT
(the Federation against Copyright Theft), which is a trade organisation
protecting its members’ intellectual property through private prosecution or
the RSPCA, a charitable organisation, protecting the welfare of animals by
private prosecution, and although Virgin Media successfully launched a
private prosecution in or about 2011 for commercial fraud involving set-top
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 is open to the CPS to take over any private prosecution in certain
circumstances. Although POL does not have to inform the CPS that a private
prosecution has commenced, it is open to'POL to notify the CPS especially if
it might be the case that the CPS is invited to prosecute the matter. The CPS
can take over a private prosecution in certain circumstances, but the CPS
would need to be satisfied that: (1)the evidential sufficiency stage of the full
Code test is met; (2) that the public interest stagevof 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.
The last consideration is designed to cover the position where the
inyestigative authorities, with whom the CPS usually deals, such as the
police, have not brought the case to CPS attention, and yet it is a case that
merits the prosecution being conducted by a public prosecuting authority
rather than by a private prosecutor. The CPS might consider taking over a
case where the offence is serious, where there are detailed disclosure issues
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
5 Section 6(2) of the Prosecution of Offences Act 1985
° CPS website http://www.cps.gov.uk/legal/p_to_r/private_prosecutions/#an05
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33.
34,
prosecution of another criminal offence or charge, or where the defendant
has been promised that no prosecution will follow.”
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
I have recently received a document entitled Conduct of Criminal
Investigation Policy,® from which I have extracted/(and in some places
paraphrased) the following passages, which explain, from POL’s perspective,
the rationale underlying its investigation and prosecution roleyand in very
broad terms the type of considerations that apply, the variety of cases that
may be raised, as well as the applicable) investigation and prosecution
structure and regime. Those passages state:
(a) Properly conducted investigations formva key part in POL strategy
in protecting assets andyreducing loss. If poorly managed, an
investigation can lead to inereased risk of future loss and significant
damage.to the corporate brand. In commencing any investigation
POL needs to consider the impact in terms of the protection of
business assets and’limiting potential liabilities weighing against the
reputation of the organisation or damage to the brand should the
investigation fail.
(b) 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://www.cps.gov.uk/legal/p_to_r/private_prosecutions/#an06
® See paragraph 64 below
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(d)
(e)
(f)
(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 inyestigated and any
impact on the business is minimised., As a result, close
communication needs to be maintained between the Security
Manager investigating the criminal,investigation andthe Contract
Advisor who needs to maintain POL services.
The department must be seen, internally,as well as externally, to be
acting fairly, appropriately. and within the law. The investigation
needs to be properly conducted to..establish evidence that will
support a successful criminal prosecution.
Prior to. commencing an investigation the Security Manager will
have to consider:
. The seriousness of the allegation
. The level of criminality
. Any contractual, compliance or regulatory concerns
J 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)
(i)
@)
(k)
O)
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.
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.
CK will prepare advice and charges ‘for the case (or advise no
further action if appropriate). If/further ‘enquiries are required they
contact the Security Manager direct, copying in the Team Leader
and send an Advice detailing the further enquiries. The Advice
along with charges and case file is then sent back to casework.
The file is then forwarded to the designated prosecution authority
for authority to proceed, who will review the case file and decide
whether to proceed withthe advice from POLCT and CK, or
whether to take a different course of action.
If advice from CK or POLCT is to prosecute and the Head of
Security has given authority to proceed, then the Security Manager
obtains 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
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36.
37.
38.
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.
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 running at £217,000.
It is important to understand that POL’s prosecuting role is not founded in
any statutory power, and, as observed above, like RMG its predecessor, its
investigators are accorded no special powers. Thus, when POL prosecutes it
prosecutes purely as a private prosecutor.
An email from Charles Colquhoun, the Head.of Corporate Finance, details
the value of prosecuting in safeguarding network cash (by which I
understand him to be arguing why POL should continue to conduct such
prosecutions rather than abrogate itto any outside agency). He sets out three
principal arguments for retaining its prosecution function:
i. POL’s prosecution function provides a clear signal to the whole
network that offences of dishonesty will be taken seriously both by
POL and the courts. The publicity such cases receives means that the
network 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.
41.
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.
ii. 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 would deal with Crown
employees responsible for cash leakage.
I would of course be happy to receive and consider any further observations
on the issue from senior management.
POL prosecution policy documentation
I have enquired after any POL prosecution policy documentation and,
although I wasysent documents purporting to be policy documents, I was
surprised to learn, over a year after separation, that POL’s prosecution policy
is based on RMG prosecution policy documents, that its policy
documentation remains in.draft, and has not been submitted to the Board for
ratification. I am however informed that CK is in the throes of substantially
revising or rewriting the documentation for POL. In contradistinction, the
document, I have already referred to above - Conduct of Criminal
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
8) Post Office Prosecution Policy — Version 1.0 — April 2012
9) Post Office Ltd - Internal Protocol - Criminal Investigation and
Enforcement — undated
10) Post Office Ltd - Criminal Enforcement and Prosecution Policy —
unsigned, undated and not shown as approved
11) POL Criminal Enforcement and, Prosecution Policy and
Appendix I Flowchart!!
12) Post Office Ltd - Conduct of Criminal Investigation Policy —
August 2013.”
42. Investigation Procedures (listed at 1) above) is not expressed to be an
RMG/POL document, although the “Post Office” is referred to in the body of
the document.'* The document is effective from May 2002, and was
therefore current 10 years,before separation, and is directed at “Consignia
Security Managers undertaking investigations”. I have not been supplied
with any updated version. Accordingly, I disregard it as irrelevant.
43. Also, I ignore‘the document listed at 2) above, as this is several years out of
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
'S 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 supplied.with. Document
6), Post Office Ltd — Security Policy [Theft and Fraud by Sub Office
Assistants] is dated February 2002, and document 7), Post Office Ltd —
Security & Audit Policy [Enquiries at Sub-Post Offices. owned by
Multiple Partners], is not dated. In so far as I am able to judge they appear
to be investigation policy documents. Both are expressed to be POL security
policy documents, but Post Office Ltd — Security Policy [Theft and Fraud
by Sub Office Assistants] is of course pre-separation, and I have not been
provided with any updated versions of either; and therefore can only assume
they have fallen into disuse.
The Post Office Prosecution Policy document (document 8)) is derivative
of the Royal Mail Group Prosecution Policy document (document 5)) but it
has clearly been adapted,to’suit POL’s needs and field of business. It deals
with the decision-making process and it provides that in England and Wales
decisions to prosecute will be made by POL Head of Security taking advice
from POL 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
'S 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 deals with what is to
happen in the event of “any disagreement about prosecution advice in
England and Wales, or inconsistency ,between, prosecution and conduct
decisions anywhere in the United Kingdom”, in'which case the Head of the
Criminal Law Team and the Head of the Investigation Team will consider
the case and provide guidancéyand advice to ensure that Royal Mail
maintains a consistent prosecution policy.
Whether or notyPOL has the same decision-making hierarchy and Conduct
Code as RMG) to which express reference is made in RMG’s policy
document, is unclear. The fact that the identical POL provision avoids
reference to any POL Conduct Code rather suggests that it may not, and, if
not, highlights the problems of adapting RMG’s policy provisions without
consideration of POL’s structure.
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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Sl.
52.
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” means “all dealings with
staff, sub-postmasters or other members of the public resulting in prosecution
and/or commencement of confiscation proceedings.” The document is,
however, a single page document, it is undated, ‘and I am unconvinced it is
complete. It purports to annex to it (as Appendix A) a flowchart, which, if it
exists, is missing from the documentation sent to me.
Post Office Ltd - Criminal Enforcement, and Prosecution Policy
(document 10)) is a far lengthier document; and is more detailed, and is at
first blush complete. I take this to be the EPP referred to in the Internal
Protocol (to which that document occasionally refers). It aims “to ensure a
fair and consistent approach to criminal enforcement decisions by POL
nationally, provide POL security managers and legal advisers with guidelines
enabling them to reach enforcement decisions in line with government
guidance/standards, and inform the public and businesses of principles
applied by POL, which guide enforcement decisions.”
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.
56.
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 separately.
The document then sets out POL’s “Enforcement Options”. The application
of the options available to POL is said to “depend on the impact on the
integrity of POL and the services it provides,to the community, risks to
people or to the environment, the past history andaattitude of the offender, the
consequences of non-compliance»and the likely effectiveness of various
enforcement options.” In particular, POL wilhconsider:
. The seriousness of any offence and extent of harm
. Duration of the offence
o The suspect's age, physical and mental condition
° Any voluntary disclosure or confession made by the suspect
° Previous convictions or evidence of offending
. Any breach of trust
-) 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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60.
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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 significant losses or impact on
POL and the public
¢ Where the alleged offence involved aflagrant or intentional)breach of the
law
* Where there is a history of similar offences
* Where the offender has refused to accept wrongdoing despite significant
evidence to the contrary
* Where the offender has failed.to repay or make amends for any significant
wrongdoing
POL will consider the following circumstances when deciding whether or not to
prosecute in addition to, those above:
* The seriousness andeffect of the offence
* The deterrent effect of a prosecution on the offender and others
* Any mitigating factors,
The decision to proceed with a prosecution will be taken by the Head of Security
of POL, upon legal advice.
The document goes on to deal with such matters as confiscation proceedings,
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.
23
61.
62.
63.
64.
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).
The document, clearly in draft, entitled POL - Criminal Enforcement and
Prosecution Policy (document 11)) which annexes as Appendix I 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.'”
How, if at all, it is designed to sit with the far fuller and detailed namesake
Criminal Enforcement and Prosecution Policy (document 10) to which I
have made extensive reference above, I know not. The draft document sets
out in short form and in basic terms over a mere two pages some of the
policy ideas found elsewhere. I do not know its origin but it has the
hallmarks of being very much a work in progress.
I have been informed that the Conduct of Criminal Investigation Policy
document (document 12)) was prepared as a working guide for POL
inyestigators and another,similar version was prepared for POL’s Board. I
understand the document to have been prepared in-house by Rob King and
others, but was considered or contributed to by Hugh Flemington, Jarnail
Singh as wellas Martin Smith of CK. This document is the most detailed and
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, which include the
regularisation and rationalisation of these documents. Moreover, in the
interests of complete transparency, such policy, documentation should be
widely promulgated within the organisation. on POL’s intranet, and
consideration should be given to their publication on POL’s website. After
all, if POL’s enforcement and prosecution policy is to “Provide POL security
managers and legal advisers with guidelines, enabling them to reach
enforcement decisions in line with government guidance/standards”, and
“Inform the public and businesses of principles.applied by POL, which guide
enforcement decisions”** then there is every reason to publish those
guidelines within the organisation and externally so that the public can be
fully informed about them. The same may be said of the draft POL -
Criminal Enforcement and Prosecution Policy document, which, if it
really is to become “theynew public facing policy under which Post Office
will conduct all future investigations of alleged criminal activity against the
Post Office”, then it should be promulgated not only internally but also to the
wider public As a public prosecuting authority, the CPS publishes its
policies on its intranet and on its website. There is no reason POL should not
do the same.
22 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 to/divest itself of its prosecutorial
function, any such change would be managed in a way that the network
knew that this was not a change of policy signifying POL was relaxing its
view on dishonesty, but rather a change of approach, so that POL’s network
of staff and agents would realise that dishonesty would continue to be
viewed extremely seriously and would, in appropriate cases, be reported to
police.
Indeed, I suspect it is hardly likely that those working for POL (whether
employees or agents) would suddenly regard a change of policy as a
temptation to offend when’ previously they would not. A change of POL
policy in this regard would not mean a change in the criminal law, and all
staff and agents must surely know that theft and false accounting are contrary
to the criminal law, and will be reported and prosecuted whoever’s function
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.
3 See page 2
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70.
71.
72.
B.
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 company assets, in that regard
POL is no different to banks and other financial and business organisations,
who have no prosecution function, and who rely on the police and other
enforcement agencies to investigate and prosecute criminal and indeed
regulatory offending against them, such as the CPS, the Serious Fraud
Office, or, by way of example, the Financial Conduct Authority.
It may indeed be anomalous that of POL’s 11,800 branches only some 370 of
them are staffed by employees of POL, but that does not mean that agents are
any more likely to offend than Crown employees or others. The real
distinction,if one is to be made, is that agents such as sub-postmasters are
likelier to be working in smaller concerns, often as an adjunct to a self-
owned business, with lessor no on-site supervision, but I do not accept that
the mere change of policy would affect the behaviour of otherwise law-
abiding agents and staff.
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 terms ofthe protection of
business assets and limiting potential liabilities weighing against the
reputation of the organisation or damage to the brand should the
investigation fail.
What has potentially damaged POL’s brand is the Horizon Online issue,
which has shone a spotlight on POL, and its prosecuting function, as never
before. The adverse publicity aboutit is also detrimental to public confidence
in the criminal justice system in general and)POL’s prosecution capability in
particular.
It is an irony that the Horizon issue was not something POL could have
reasonably foreseen. The justifiable criticism that there have been possible
miscarriages of justice in/prosecutions based on Horizon Online data is
directed at the integrity of the data system underpinning those cases, for
which POL as the prosecutor is and remains accountable.
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.
*4 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,
and, in the context of the prosecution process and POL’s, obligations, the
proper disclosure of material that might ‘reasonably undermine the
prosecution case or assist the case for the defence. It is that, which is the
focus of CK’s review that is underway.
In light of the SS interim report of 8 July 2013, POL and CK are presently
engaged in an on-going rigorous and robust)proeess of sift and review of all
affected past and present cases. The focus is‘on the alleged non-disclosure of
relevant material by the Fujitsu Services Ltd (“FSL”) expert customarily
relied upon’ by POL to support the integrity of Horizon Online data, which
underpins its prosecutions.
In cases, which are subject to the disclosure regime under the Criminal
Procedure and Investigations Act 1996 (“CPIA”), CK is applying the test for
disclosure as provided in section 3 of the CPIA to the material it now has in
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 fragmented approach, with little
chance of central control or close oversight of these cases, or the issues
affecting Horizon.
The claimed problems with Horizon Online would not disappear, but in my
opinion decentralisation of the investigation and)prosecution of these cases
could only operate to exacerbate the difficulty, and would inevitably lead to
an inconsistent approach and barely reconcilable decisions being taken.
Having considered the issues carefully, I can see no advantage to POL
shedding itselfof its private prosecution function, and in fact only
disadvantage. If POL’s policy is to operate a prosecuting policy that is fair,
open and consistent then, IJ’cannot see that anything other than retention of
this role by POL will achieve that.
The real benefit to POL retaining its function, which in my opinion risks
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.
In my opinion, there is no other organisation better placed than POL to
perform this important function. Even if the police and the CPS had been
carrying out the investigation and prosecution*of those cases»,which have
become the subject of the current review, I do not see that they would have
been in any better position than POL ‘to appreciate the integrity issues, if, as
is said to have happened, they were not revealed.to POL by the FSL expert
they instructed to report upon Horizon’s integrity. Thus, had that been the
scenario the CPS would be in no better position to disclose the alleged
Horizon Online defects or “bugs” than POL has been.
Although this is.not a point that I have weighed in the balance in reaching
my conclusions, nonetheless I think I should make the observation that if
POL were to decide thatit,wished to free itself of its prosecution role to the
CPS, in these times of budgetary restraint and depleted resources, from
which the CPS has been far from immune, I think it unrealistic for POL to
expect the CPS to welcome it.
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 and obligations POL has
as a prosecutor.
There are bound to be quite understandable commercial sensitivities to FSL’s
systems, which I am confident it would ordinarily be loath to divulge to its
competitors, as would any company in its position. FSL is in a contractual
relationship with POL, and the expert relied upon to speak to the integrity of
the system is himself employed by FSL, and he.was one of its architects.
If commercial sensitivity about the integrity of a system were to lead to the
non-revelation of adverse issues with the very system used to underpin POL
criminal prosecutions, then that would be inimical to POL’s prosecutorial
duty to act fairly and to.disclose relevant material. It would, if it existed,
create an intolerable conflict of interest. The two positions would be entirely
incompatible. I make perfectly clear that I have seen no evidence, and I have
heard no)suggestion, that what is said to have happened here was due to
commercial sensitivity or any real or perceived conflict of interest between
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 prosecutions, which rely on the
integrity of Horizon Online data, he has only ever once given evidence
before a court, and that was in October 2010, but.in relationto a case dealing
with events that took place between 2005 and.2008, and so unlike some
experts who appear before courts regularly; he is far from being
characterised as a professional witness.
The question remains whether the fact of the commercial relationship that
must exist between POL and its IT provideryin,the circumstances obtaining
here, ought to make any or any substantial difference to POL’s prosecutorial
role? While in the type of situation here there is always the potentiality of a
conflict of interest between POL’s obligations as prosecutor and the
commercial sensitivity of any third party IT provider upon whose data POL
must rely for the prosecution and ultimate success of its cases, if the parties
were to provide for POL’s prosecutorial duties and obligations, by a protocol
or memorandum of understanding between them, a situation like the present
might be)preyvented from occurring in the future. I make recommendations
about this above.
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95.
96.
97.
98.
2 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 proper context. T he serial
non-disclosure of relevant material occurred in circumstances in which POL
and its advisers were wholly unaware that there might be disclosable material
or information, and so, whatever the reasons were not placed in a position
whereby they knew of its existence and could deal.with it appropriately.
Because the only source of knowledge and information about Horizon and
possible Horizon defects or “bugs” was exclusive to FSL and those who
were knowledgeable about it, such as the expert (whose special knowledge
inevitably led him to cross over from the commercial world to that of expert
witness in criminal proceedings), POL was, inevitably, in a position where it
was wholly dependent on FSL and/or the expert to reveal material so that
POL could perform its prosecution duties, which in the event it was unable to
dos SS has now reported,its preliminary conclusions and POL has acted
rapidly to put in place a full review of all impacted cases.
Therefore, POL, with its unique commercial arrangement with its IT
supplier, 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 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 POL and to the public
generally, which would be otherwise diluted or lost. That is not to say that
those within POL may not wish to consider the business case for.retention, as
well as any reputational issues that flow/from it)as to which I expect there
may be interesting argument. But they are not matters for this review.
Brian Altman QC
2 Bedford Row
London WCIR 4BU
baltman’ On
21 October 2013
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