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APPENDIX A — “KNOWN TRANSACTIONAL ISSUES” SPIDERGRAM
APPENDIX B — “POST OFFICE IDENTIFIES A POTENTIAL ISSUE” FLOW DIAGRAM [To be finalised]
APPENDIX C— CURRENT POL PROSECUTION POLICY
APPENDIX D — NEW DRAFT PROSECUTING POLICY BEING DEVELOPED BY CARTWRIGHT KING & BRIAN
ALTMAN Qc.
APPENDIX E — THE BUSINESS IMPROVEMENT PROGRAMME OVERVIEW
APPENDIX F — THE MAIN PROS AND CONS OF EACH OPTION
APPENDIX G — DIFFERENCES BETWEEN CRIMINAL AND CIVIL COURT ROUTES
APPENDIX H — THE RISKS IF WE GET IT WRONG
APPENDIX A — “KNOWN TRANSACTIONAL ISSUES” SPIDERGRAM
Branch Issues - Business As Usual (BAU)
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TC’s
FSC calling to
prevent TC’s
(multi teams e.g.
ATM, lottery,
banking etc)
Field team
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rs
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- individual customer
complaints
- Client driven
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Process is
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Customer + Client Contract driven
+ Transaction Process
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Services
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All Network Field
teams
___ Customer Care
Security checks
(Scratch cards)
Suppliers direct calls
Wincor, Romec,
Ingenico, Cogent etc
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APPENDIX B — “POST OFFICE IDENTIFIES A POTENTIAL ISSUE” FLOW DIAGRAM [To be finalised]
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APPENDIX C— CURRENT POL PROSECUTION POLICY
content. pdf POL
PROS POLICY. pdf
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APPENDIX D — NEW DRAFT PROSECUTING POLICY BEING DEVELOPED BY CARTWRIGHT KING & BRIAN
ALTMAN QC.
[Draft] Post Office Prosecution
Policy
England and Wales
1. Introduction
2. Scope and Aims of this Policy
3. General Principles
4, The Decision to Prosecute
5. Charging Suspects
6. Disclosure
7. The Acceptance of Guilty Pleas
8. Recovery: Confiscation, Compensation & Costs
Effective from: 1** November 2013
Review: 1%‘ November 2014
Simon Clarke
Cartwright King Solicitors
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1. Introduction
1.1.
1.2.
1.3.
1.4.
The investigation and prosecution of crime in and against the Postal Service can be
traced back at least as far as the 1680's, when an Assistant Solicitor to the General
Post Office was tasked with the investigation and prosecution of those offending
against the mail; thus it is possible to trace a continuous and unbroken line of
investigative and prosecutorial activity by the Postal Service in its various guises for
over 350 years. Upon the separation of Post Office Ltd from Royal Mail Group on
the 1% April 2012 Post Office Ltd determined to retain that historic function.
In England and Wales both the investigative and the prosecuting functions are
conducted by Post Office Ltd.’ In Scotland, Post Office Ltd’s representative agents*
report alleged criminal activity to the Crown Office and Procurator Fiscal Service
(‘COPFS’)’; in Northern Ireland Post Office Ltd. Security Managers report to the
Public Prosecution Service following the same processes as do the police services
in those jurisdictions.
This Policy statement is intended to explain the way in which Post Office Ltd. will
deal with allegations of crime committed against our assets in England and Wales.
We will abide by the terms of this Policy in deciding whether to prosecute in any
particular case. In applying this Policy to the decision-making process we will act
fairly, openly and with a high degree of transparency; we will not discriminate
against, nor favour, any individual, group or organization; we will strive to act
objectively, impartially and with integrity; and we will consider any relevant material
brought to our attention by an interested party.
We use the following terms and meanings in this Policy: ‘suspect’ — a person who is
not the subject of formal criminal proceedings; ‘defendant’ — a person who has been
summonsed to appear in a criminal court or charged with a criminal offence;
‘offender’ — a person who has admitted guilt to a criminal court or who has been
found guilty by a criminal court; ‘prosecutor’ — a person or organization instructed or
retained by Post Office Ltd. to act as prosecutor on behalf of Post Office Ltd.
2 Post Office Ltd. is a recognized private prosecutor by the Ministry of Justice; currently Post Office Ltd.
delegates the prosecuting function to Messrs. Cartwright King Solicitors.
2 Presently Messrs. bto Solicitors, Edinburgh.
3? COPFS recognizes Post Office Ltd. as a Special Reporting Agencies (SRA).
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2. Scope and Aims of this Policy
2.1.Post Office Ltd. is a public body providing a wide range of essential public
and commercial services to all those who rely upon us to deliver those
services. We are answerable to Parliament, government, our commercial
partners and the general public, all of whom place a very high degree of trust
in the integrity of our operations. We carry a heavy responsibility for the
guardianship of public and private assets*. We employ or are contracted to
many thousands of trusted employees and small businesses who conduct
millions of transactions daily across the United Kingdom. By reason of these
matters it is incumbent upon us to ensure that the integrity and reputation of
Post Office Ltd. and all with whom we work is protected against those who
would breach the trust placed in us. The aim of this Policy is to achieve that
end.
2.2.Post Office Ltd. also recognises the importance of the integrity of the mail
service and the trust placed therein.
2.3. Accordingly Post Office Ltd will, subject to the terms of this Policy, prosecute
under the criminal law all those who are alleged to have committed criminal
offences against Post Office Ltd. and those alleged to have interfered with
postal packets.°
2.4.This Policy applies equally to all employees of Post Office Ltd. without
exception; and to non-employees, whether they are contractors, customers
or those with no formal relationship with Post Office Ltd.
2.5. The aims® of this policy are:
“We include in this description all those who work with and for us, including those who are contracted to
provide our services on our behalf.
* Postal Services Act 2000, s.83
® In no particular order of precedence.
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I. To ensure that those who steal, defraud or otherwise offend against
Post Office Ltd. are brought to justice;
Il. To deter those would offend against Post Office Ltd. from doing so;
To protect the physical and financial assets of Post Office Ltd.
IV. To recover those assets, losses and shortages arising out of
criminal conduct committed against us;
V. To maintain and reinforce the trust placed in Post Office Ltd. by
those for whom we provide public and commercial services and
those who rely upon us to deliver those services;
Vv
. To ensure consistency, in so far as possible, in the way in which we
deal with those alleged to have stolen from, defrauded or otherwise
offended against Post Office Ltd.
3. General Principles
3.1.Post Office Ltd. will ensure that prosecutors always apply the Code for Crown
Prosecutors issued by the Director of Public Prosecutions.’ In addition Post
Office Ltd will apply those further considerations set out in this Policy.
3.2. The decision as to whether to prosecute in any particular case, or to continue
with any prosecution, will always be taken by Post Office Ltd. In arriving at such
a decision Post Office Ltd. will always apply the terms of this Policy. Post Office
Ltd. will never institute criminal proceedings against any person until competent
legal advice has been provided by a properly qualified lawyer that such a course
meets the terms of this Policy and the Code for Crown Prosecutors.
3.3. The decision-taker will be
77 Edition, issued January 2013. Go to www.cps.gov.uk
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i. A qualified lawyer
ii. Independent of any Post Office Ltd. department having a direct
financial or other interest in prosecution.®
3.4. Subject to the terms of this Policy, each case will be considered solely on its
own facts and on its own merits.
3.5. Prosecutors will ensure that the law is fairly and properly applied; that all disclosure
obligations are fully met; that all Criminal Procedure Rules, Practice Directions and
authorities are followed and that any Guidelines issued by the Attorney-General are
followed. Prosecutors will apply the principles of the European Convention on
Human Rights and the Human Rights Act 1998.
3.6. Post Office Ltd. will ensure that the decision whether to prosecute in any individual
case will be taken in a timely manner, so as to avoid unnecessary stress and
uncertainty in those subject to such a decision.
4. The Decision to Prosecute
4.1.Prosecutors review every case before the decision is taken to prosecute, and advise
Post Office Ltd. on the decision to prosecute. Before advising as to whether a
prosecution ought to be commenced, prosecutors will identify any evidential
weaknesses in a case and advise Post Office Ltd. as to rectification. A prosecution
will only commence when the case has passed both stages of the Full Code Test in
the Code for Crown Prosecutors and accords with the provisions of this Policy.
4.2.In accordance with paragraph 3.2 of this Policy, the decision whether to
prosecute, or to continue a prosecution, rests solely with Post Office Ltd.
When taking that decision Post Office Ltd. will only apply this Policy and will
consider and take into account all factors relevant to the particular case and
® This practice mirrors the approach of the Crown Prosecution Service, and is designed to ensure that the
decision to prosecute is taken by someone who is independent of the victim/loser and of the investigation.
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contained within this Policy. Post Office Ltd. will not take into consideration
any matter not contained within this Policy, or not identified as relevant by
reason of any factor contained within this Policy
4.3. Once the decision to prosecute is taken, prosecutors will keep the case under a
process of continuous review. Where at any time it appears to the prosecutor that a
case will not meet the Evidential Stage of the Full Code Test in the Code for Crown
Prosecutors, or concludes that a prosecution is not, or is no longer in the Public
Interest, the prosecutor will advise Post Office Ltd. to discontinue the prosecution
without undue delay.
4.4.When applying the Evidential Stage of the Full Code Test the prosecutor will
have regard both to the matters set out in the Evidential Stage of the Full
Code Test and, additionally, to the following factors:
i. The reliability and credibility of witnesses and their evidence.
Consideration will be given to issues of disclosure from an early
stage in the decision-making process.
ii. Particular emphasis will be given to the reliability, credibility and
integrity of electronic and data-based evidence.
4.5.In applying the provisions of the Public Interest Stage of the Full Code Test
the prosecutor will have regard both to the matters set out in the Public
Interest Stage of the Full Code Test and, additionally, to the following factors:
i. The quantum of any loss or shortage arising out of the alleged
criminal conduct. Post Office Ltd. regard this as an important
factor and accordingly consideration will be given to the
following matters:
(a) The value in monetary terms of the loss or
shortage. Whilst a lesser value? may militate
* In general and subject to the other matters set out in this paragraph, a loss of shortage of less than £5,000
might indicate that we will not prosecute. This does not mean that we will always prosecute where the loss or
shortage is greater than that sum, or that we will never prosecute where the loss or shortage is less than that
sum, the value of the loss or shortage being but one factor to be considered. In appropriate cases we will
prosecute where a loss or shortage is well-below that figure.
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against prosecution it does not follow that any
particular value will be determinative. A substantial
or significant loss or shortage will usually result in
prosecution even where other factors tend to
militate against that outcome.
(b) I Whether or not some or all of the loss or shortage
has been repaid to Post Office Ltd. Again
repayment may militate against prosecution but it
does not follow that in all cases of repayment we
will not prosecute.
. The degree of sophistication employed to commit the offence(s).
The higher the degree of sophistication employed in preparing,
conducting or hiding any wrong-doing, or to escape detection,
the more likely it will be that prosecution will follow.
In cases of fraud or false accounting, the quantity or number of
any multiple transactions or incidents. Again the greater the
number of individual false transactions the more likely it will be
that prosecution will follow.
. The period over which the offending conduct has been
committed. Generally, the longer the period over which the
misconduct was committed, the more likely it will be that
prosecution will follow. In appropriate cases a single incident of
misconduct may be prosecuted.
Implicating innocent parties. Attempts by a suspect to deflect
guilt towards others, or to implicate others in their misconduct, or
to accuse others of misconduct committed by the suspect, will
usually be met with prosecution.
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vi. Vulnerable victims. Post Office Ltd. provides essential services
to a number of particularly vulnerable sections of the general
public, including the elderly; those who are infirm or physically
disabled; those who have mental health issues or who are less
competent; and those who rely upon the state benefits system
for their income. Where misconduct is targeted at a particularly
vulnerable section of the general public, prosecution is likely to
follow.
vii
. The position and status of the suspect. Sub-postmasters hold a
unique position of trust both in the eyes of Post Office Ltd. and
the general public. Abuse of that trust is a serious matter and will
usually attract prosecution.
viii. The circumstances of the suspect. Post Office Ltd. and
prosecutors will always consider any material provided by the
suspect or her representatives when determining the decision to
prosecute. Such material may include, but is not limited to:
bereavement; personal of family issues; and matters pertaining
to the health or well-being of the suspect or someone close to
them, including any mental health issues. Such material may
make prosecution less likely but will not be determinative.
ix. Cost. Prosecution is an expensive process, both to Post Office
Ltd. and to the public purse.’° Post Office Ltd. and prosecutors
will weigh the cost of prosecuting a case against factors such as
the likely penalty on conviction; the recovery or likelihood of
recovery of any loss or shortage; and the wider Public Interest in
prosecuting those who commit crime.
4.6.In applying the Full Code Test, no single factor will determine the decision
whether or not to commence proceedings against any person alleged to have
1° Eg. where a suspect qualifies for Legal Aid.
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committed an offence. Each factor will be considered in the light of the other
factors falling for consideration and an overall view will be taken by the
prosecutor. Consequently this Policy vests a wide degree of discretion in
both the prosecutor and in Post Office Ltd; accordingly the decision to
prosecute will be taken in an open and transparent manner and should be
readily-justifiable on both the facts of a case and in terms of those matters set
out in this Policy. Best practice dictates that the decision itself and the
reasons behind it are recorded in writing and retained on the file until the
conclusion of a period ending 6-years after the end of the case.
4.7.No prosecution will be commenced or continued in circumstances where it is, or it
becomes likely, that the courts would regard the prosecution as oppressive, unfair or
an abuse of the process of the court.
5. Charging Suspects
5.1.Whilst the commonest offences committed against Post Office Ltd. are those
of theft, fraud and false accounting, prosecutors acting on behalf of Post
Office Ltd. are not limited to those charges and will consider and bring the
most appropriate charge(s) which meets the circumstances of the individual
case.
5.2.In addition to those matters set out on the Code for Crown Prosecutors, Post
Office Ltd. will apply the following considerations:
I. Alternative charges. Where a suspect is charged with offences of
theft and false accounting arising out of the same basic facts, those
charges will always be alternative charges." This approach is not to
be regarded as an invitation to plead guilty to any particular
charge(s).
Il. Where more than one suspect is to be charged, separate
consideration will be given to each suspect’s case as to the most
appropriate charge(s) in his case.
* This is consistent with the decision of Sachs, LI., in R. v. Eden 55 Cr. App. R. 193, CA
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6. Disclosure
6.1.Post Office Ltd. will be bound by all of the relevant Acts, Codes, Protocols
and Guidance set out below:
— The Criminal Procedure and Investigations Act 1996
— The Protocol for the Control and Management of Unused Material in
the Crown Court
— The Code of Practice issued under Part II of the Criminal Procedure
and Investigations Act 1996
— The Attorney-General’s Guidelines on Disclosure
6.2. Post Office Ltd. will take all reasonable steps to identify and record material
which may meet the test for disclosure,"? and will retain any such material for
a period of not less than 6 years. In so doing, Post Office Ltd. will operate a
continuous process designed to identify any material, whether the subject of
a criminal investigation or not, which may relate to the integrity and reliability
of Post Office Ltd.’s I.T and data systems. Any such material as is identified
will be recorded and retained for a period of not less than 6 years.
7. The Acceptance of Guilty Pleas
7.1.In appropriate cases prosecutors will consider whether any offer of plea(s) to
particular charge(s) meets with the Scope and Aims of this Policy.
7.2. The decision whether to accept any offer of plea(s) rests with Post Office Ltd.
only, acting on the advice of the prosecutor.
7.3.In cases where a defendant seeks to admit guilt on a basis other than that
advanced by the prosecutor, Post Office Ltd. will only consider an offer of
2 Material which “...might reasonably be considered capable of undermining the case for the prosecution ...or
of assisting the case for the accused....” CPIA 1996, ss.3&7
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plea(s) where the offer is expressed in writing and in the form of a recognised
‘Basis of Pleas’ document signed by the parties.'? Post Office Ltd. is not
bound to accept any such offer of plea(s).
7.4.In cases where the charges are expressed in the alternative and the
defendant accepts the prosecution case without qualification, Post Office Ltd.
will consider whether to accept pleas of guilty to particular charges by
reference to those matters set out in paragraphs 2.5 and 4 of this Policy.
7.5.In cases where the charges are expressed in the alternative and the
defendant seeks to admit guilt to particular charges on a basis other than that
advanced by the prosecutor, paragraph 7.3 of this Policy will apply.
7.6.In any case where a defendant seeks to enter guilty pleas on a basis not
agreed by Post Office Ltd., we will invite the court to hear evidence to
determine the facts upon which the defendant is to be sentenced.
8. Recovery: Confiscation, Compensation & Costs
8.1. Subject to paragraph 8.3, Post Office Ltd. will in every case seek to recover
from offenders any losses, shortages and costs arising out of any criminal
conduct committed by the offender.
8.2. Post Office Ltd. will in appropriate cases seek to obtain:
i. Restraining Orders against assets owned or controlled by
suspects;
ii. Confiscation Orders against offenders under the provisions of
the Proceeds of Crime Act 2002;
iii. Compensation Orders;
iv. Costs Orders against an offender, in the full amount of our
investigation and prosecution costs;
% ....and which accords with the decision in R. v. Underwood, [2005] 1 Cr. App. R. 13 CA
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Vv. Any combination of these orders
8.3.Post Office Ltd. will only instigate and continue any recovery proceedings
mentioned in paragraph 8.2 where it is fair and proportionate to do so. In
assessing issues of fairness and proportionality Post Office Ltd. will consider
the following factors:
i. Those matter set out in paragraphs 2, 3, 4.1, 4.5.i, 4.5.viii and
4.7 of this Policy.
ii. The availability to the offender of realisable assets. In this
respect it should be noted that many of those who commit
offences against Post Office Ltd. own their own business and
which continues to trade.
iii. The Cost to Post Office Ltd. Of pursuing such proceedings
APPENDIX E — THE BUSINESS IMPROVEMENT PROGRAMME OVERVIEW
1. Business Improvement Programme
To ensure proper focus on both the Scheme and the Business Improvement programme the
Business Improvement programme has been separated into an individual programme under
separate governance reporting to Kevin Gilliland.
Purpose & scope
The purpose of the Business Improvement Programme (BIP) is to improve the effectiveness
and efficiency of the support we provide to our subpostmasters in the running of their Post
Offices from an operational and engagement perspective by:
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Reviewing the life cycle of the subpostmaster and all touch points with the business.
Taking input from owners, users and recipients of Post Office policies and
processes.
Designing policies and processes that deliver improved ways of working with our
subpostmaster network in a cost effective and engaging way.
Reviewing all our interactions with Subpostmasters and making recommendations
on structure design for the network and admin support function touch points.
Developing an implementation plan to move from existing to future state.
Quick Wins
In the process of mapping the “As is” and “To be” processes. Quick wins have already been
implemented with more planned for implementation in Q4. The key areas of change are the
training offered for new Subpostmasters and our approach to Subpostmaster contract
breaches.
Precautionary Suspension approach — we have reviewed our approach in how we
respond to material contract breaches by Subpostmasters and made the following
improvements:
- Our default position is to keep the Subpostmaster in post and the branch
operational, unless in the usually low number of cases where not to
precautionary suspend the Subpostmaster would carry a high risk of damage to
POL's reputation and / or a high risk to POL’s assets, or where a customer has
been directly involved in a potential fraud by the Subpostmaster.
- We are introducing in Q4 a new category of action in dealing with material
breaches of contract i.e. Suspended termination. This is where the
Subpostmaster has materially breached the contract and would have previously
had their contract terminated. The new Suspended Termination category is
where mitigating circumstances are such that the decision is to award a
suspended termination is made; the Subpostmaster remains in post on the
condition that if a further breach of contract occurs in an agreed period (set by
the nature of the first breach and typically a year) then the contract termination is
triggered.
- Where a potential breach of contract has occurred our approach is to work with
the Subpostmaster to establish the facts and then to take the appropriate action.
Any investigation is carried out in a totally objective way treating the
Subpostmaster at all times with dignity and respect regardless of whether there
is evidence to suggest any wrong doing.
Training - we have improved the training approach by:
- _ introducing an introductory call to the new Subpostmaster two weeks before they
take up post.
- having earlier contact with the Subpostmaster following their initial training and
replacing the month 1 telephone call with a branch visit.
- reviewing the effectiveness of the balancing work-aid to help Subpostmasters
identify and hopefully resolve balancing problems earlier.
Longer Term Changes
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The Business Improvement Programme has 9 work streams that capture all the touch points
the Subpostmaster has with Post Office in running their branch. These are: pre-appointment
process; operational support; physical support; performance management; training;
communication; IT; early warning/intervention approach; leavers process.
The milestone plan for each of the workstreams is currently being scoped and will be
completed by the end of February 2014. Some of the workstreams will have longer
timelines than others due in part to the interdependency on other workstreams to complete
or other business considerations — the IT workstream is a good example of where delivery
will depend on the requirements of the other programme workstreams.
Review Mechanism
The proposed ways of working for each workstream will include an ongoing review
mechanism that ensures that continuous improvement is embedded into business as usual.
Measuring Success
The Programme has two main key performance indicators (KPIs) - Agent Engagement and
Operational Cost Reduction.
« Agent Engagement - the formal measure is the Subpostmaster annual engagement
and in particular the support category of the survey. This will be supplemented with
Pulse surveys undertaken by Comms at quarterly intervals throughout the year.
Reviewing the life cycle of the subpostmaster and all touch points with the business
* Operational Cost Reduction - the cost of support to the network will be baselined
as part of this Programme. Headline numbers suggest that 40% of the current
support to the network is spent on recovery support ie correcting things that haven't
been done right first time
Each of the nine workstreams will have performance measurements that feed into the two
main KPIs.
Branch User Forum
The purpose of the Branch User Forum is to provide a way for Subpostmasters and others
to raise issues and insights around business processes, training and support directly
feeding into the organisation’s thinking at the highest level. The forum is a forward looking
mechanism to ensure the business processes and approaches are fit for purpose for users
and are in keeping with Post Office behaviours and values. The Forum consists of 6
Subpostmasters, 2 Crown members and 4 PO Senior Managers. The second meeting took
place on 16 January and covered the communication approach that the forum would take
and a review of the initial inputs to the forum.
APPENDIX F — THE MAIN PROS AND CONS OF EACH OPTION
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OPTION
PROS
CONS
COMMENTS
All POL - Prosecute all
cases ourselves (using
external lawyers).
What we do now.
AILCPS - Send all cases
to a public prosecuting
authority, e.g. the
Police or CPS.
Would allow us to
distance ourselves
from all prosecutions.
Removes all risk of a
complaint that we
wrongfully prosecuted
someone.
Police and CPS may not
be interested and it
soon becomes
common currency that
POL prosecutions
won’t go anywhere
(undermining the
deterrence effect).
POL loses direct
control over the
process.
POL would still be
involved in the
investigations.
Some CPS/Some POL -
Prosecute some cases
ourselves (using
external lawyers) and
send others to a public
prosecuting authority.
Would allow us to pass
more “controversial”
cases to Police and
CPS.
Police and CPS may not
co-operate, leaving us
seen as bringing
prosecutions for lesser
cases when the Police /
CPS won’t prosecute
the more serious ones.
Fewer cases -
Prosecute some cases
ourselves (using
external lawyers) by
reference to new,
more stringent criteria
Would allow us to
ditch lesser cases and
focus resources on
more serious crimes.
We would be seen to
be taking our duty to
protect public money
seriously.
We would combine it
with civil recovery
proceedings.
We would need to be
very clear as to the
criteria and the
application of them.
Otherwise we would
run the risk of claims
against us for e.g
Malicious Prosecution.
We would need to
make sure we were
still seen to be
protecting public
money (as we are still
partly funded by
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Government).
Stop - Cease We would reduce our
prosecuting all cases. costs.
We would still have
civil recovery as a
means of deterrence.
We would lose the
deterrence effect
which criminal brings.
Query whether we
would be able to
recover as much
money under the civil
route as we have been
able to under the
criminal route.
Query whether civil
recovery only is
enough to protect
public money.
APPENDIX G — DIFFERENCES BETWEEN CRIMINAL AND CIVIL COURT ROUTES
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Criminal Route
Civil Route
High standard of proof required — allegations
must be proved “beyond reasonable doubt”.
Lower standard of proof required — allegations
must be proved “on balance of probabilities”.
Defendant is usually formally convicted of a
crime, which can affect their ability to find
employment, obtain finance, travel, and may
result in them going to jail.
Defendant is ordered to pay money, and we can
try to take their assets (e.g. sell their house) or
make them bankrupt if they don’t.
We have to explain in open court why we want
to stop a prosecution.
We can stop a civil claim at any time by cutting a
deal or unilaterally discontinuing the case.
An “all or nothing” outcome - Defendant is either
guilty or not guilty.
Can be resolved by compromise at any time,
with or without admission of liability.
Relatively easy to restrain (i.e. freeze) “at risk”
assets under the Proceeds of Crime Act
procedures.
High thresholds need to be satisfied (at
significant legal cost) to freeze assets under an
injunction.
Financial recoveries obtained or ordered by the
Court in 2012-2013 were approx. £1.5million
Financial recoveries obtained or ordered by
Court in 2012- 2013 were approx. £1.1 ic
APPENDIX H - THE RISKS IF WE GET IT WRONG
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Potential civil actions that a SPMR could try to bring if (1) an on-going criminal prosecution against an SPMR was abandoned or (2) an SPMR's conviction was
overturned are:
Claim Type
Applicable i
Consequences if proved (1)
Directors’ Liability? (2)
Malicious Prosecution
POL prosecuted a SPM without reasonable
or probable cause, and without proper
motive.
Monetary Compensation payable
by POL to SPM.
Highly Unlikely — directors do not have direct and
personal involvement in individual prosecutions.
Wrongful Imprisonment
ASPM's conviction is reversed because new
facts show there has been a miscarriage of
justice.
Monetary Compensation payable
by the Government (not POL) to
SPM.
No — liability rests with the Government.
Malicious
Falsehood/Defamation
POL (or someone from POL) said or printed
false words about a SPMR being a criminal.
Monetary Compensation payable
to SPM by whoever said or
printed the words.
Possible if an individual Director personally says or
prints the words about an individual SPM.
Breach of SPM Contract
POL terminated a SPM’s contract because of
alleged (but unfounded) dishonesty.
Monetary Compensation payable
to SPM by POL.
Highly Unlikely — liability should rest with POL as
the contracting party.
Data Protection Act
It is established that POL used inaccurate
Horizon data to make a decision to
prosecute a SPM.
Monetary Compensation payable
to SPM by POL as the data
controller.
Regulatory sanctions are also
possible.
No — liability rests with POL as the data controller.
Protection from
Harassment Act
POL’s prosecution or debt recovery actions
amounted to grave and repeated
harassment of a SPM.
Monetary Compensation payable
to SPM by POL.
Highly Unlikely — directors do not have direct and
personal involvement in individual prosecutions or
debt recovery action.
POL00123144
POL00123144
Breach of Director’s Duty I A Director failed to comply with his/her
to POL duties under the Companies Act 2006 (e.g.
to act with reasonable skill and care).
Director liable for any loss caused
to POL by the director’s failure.
Highly Unlikely — claim needs to be brought by POL
or (in rare circumstances) by BIS. Further, directors
should avoid liability if they acted
(1) There are no personal consequences for a director under criminal law if POL has failed to make adequate disclosure in any criminal proceedings as no director has
directly and personally led the disclosure process.
(2) Insurance cover may be available to directors under POL’s Directors & Officers Liability Insurance if they are sued (even erroneously) as a result of a wrongful act
resulting from something that they are alleged to have done while acting as a director of POL.