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Post Office Enforcement and Prosecution Policy for England
and Wales
Comments on BAQC draft Policy.
GENERAL OVERVIEW
1. Any enforcement and prosecution policy may be subject to critical analysis by those
to whom it is intended to apply. Such analysis may include the Judicial Review of a
policy, or of a decision made following the application of that policy. Resort may
also be had to the Abuse of Process jurisdiction’ by those charged with offences
following the application of a policy, for one aspect of that jurisdiction lies in the
complaint that a policy has not been properly applied.
2. It is not only those who are the subject of such a decision who may seek the
intervention of the court: others include such interested parties as the victim(s) of a
crime; those with a legitimate interest in the proper administration of POL; and,
given that POL is a publicly owned organisation”, those members of the public who
may consider that such a policy does not meet either the policy’s aims, or does not
meet the aims or standards to which a publicly-owned organisation should aspire.
Aims
3. Thus any policy should, in this context, seek to satisfy two objectives: a) to provide
clarity, method and transparency in the application of a policy and any decision-
making process engaged thereunder, and b) the elimination, or at least minimisation
of, any ‘hostages-to-fortune’ which might otherwise appear.
4. On a separate point, as long-standing prosecutors to a number of national
organisations we are acutely aware of the need to provide decision-makers with both
general criteria and more detailed guidance with which to assist in the decision-
making process, for ultimately an enforcement and prosecution policy must provide
the necessary ‘tool kit’ with which to accomplish implementation and decision-
making.
5. In considering the formulation of this policy, we observe that, whilst the principles
to be applied are clear and concise, much of the policy is couched in terms of
generality” so that a decision-maker is here granted a wide discretion in interpreting
and applying those principles.
6. Such a wide discretion, whilst advantageous in some respects, may in fact provide
unhelpful consequences, for any decision is open to review and the wider the
discretion granted to decision-makers the more amenable to review the decision will
be. We recognise that the intention here is to provide more detailed guidance to
decision-makers in separate form outside of this policy document. Such an approach
I A Criminal Court jurisdiction under which the court may ‘stay’ or stop, a prosecution as being unfair.
* Judicial Review stands against the decision of a public body or a private body exercising a public function.
~see e.g. paragraphs 3.1, 3.1.2 and 3.1.3 of the Policy.
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has the potential to raise difficulties however, for guidance or other material taken
into consideration in the decision-making process but outside of the policy itself
would be neither visible nor transparent and accordingly would defeat the aims of
clarity and transparency and could become the subject of challenge.
Civil/Criminal overlap
7. A further issue is that of the degree of interplay between the Civil Enforcement
option and the criminal process. Here the risk arises where the benefits provided by
the operation of a largely civil enforcement-based policy, as may be the case here,
conflict with the procedural and evidential demands of a properly formulated
criminal investigation process. Such benefits as are imported by the largely civil
enforcement-based policy will of course include the use of informal discussions and
problem-resolution; speed of determination; and effective recovery of losses. The
problem in this context lies with the need for the early identification of loss-causing
factors and individual responsibility and the consequent informality of such
processes.
8. Such necessary informality* conflicts with the need for properly regulated evidence-
gathering in the criminal process. An example of this tension may be found where
the loss is caused by some deliberate and dishonest act on the part of the suspect and
recovery via the Civil process is both possible and desirable, but which subsequently
proves unattainable®. The difficulty arises in this scenario when the decision has been
taken to engage the criminal process: the very informality upon which the Civil
Enforcement process is founded (and which is so attractive to problem-solving)
prejudices the criminal process. The obtaining of admission or confession evidence
through the use of, e.g. “Reasons to Urge why the Contract should not be Terminated
Interviews” and the proposed “Informal Discussions” °. fall outside of the protections
provide by the PACE Act requirements and accordingly may well be inadmissible as
evidence in criminal proceedings. This is not mere alarmism, for we have seen many
a suspect provide qualified or complete admissions to wrong-doing in such informal
environments, only to have that somewhat compelling evidence ruled as inadmissible
in criminal proceedings by reason of the absence of the PACE protections.
9. We therefore consider it important that this Enforcement and Prosecution Policy
provides a mechanism for the early identification of potential criminal cases and their
consequent withdrawal from this policy’s Civil Enforcement process. Allied to this
should be a rigidly-applied information-recording policy.’
Review
10. We suggest that there should appear a brief reference to a policy of continuous
review. A suggested formulation appears referenced paragraph 7.5 an the Annex
below.
Acceptance of Guilty Pleas
(0 the Civil Enforcement proces:
not an uncommon scenario. Suspects may not have the wherewithal to repay losses; or may be disinclined to do
so; or may simply be obstructive.
& We have advised on this topic separately ~ see Advice “MATERIAL BREACH OF CONTRACT APPROACH” dated
2" June 2014.
7 See Annex, paragraph 8.
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11. In the context of POL prosecutions it is not unusual for a defendant to seek POL’s
agreement that they admit guilt to a charge on a basis other than that advanced by
POL. Most frequently this occurs where a SPMR admits false accounting but
denies having taken money perhaps in the belief that his counter-staff or others
have stolen.
12. There appears to be no reference in the policy to POL’s approach to the acceptance
or rejection of a defendant’s guilty plea(s) offer.
13. We suggest that some reference be made to the principles to be applied where a
defendant indicates that he or she will admit a charge on a qualified basis or will
plead guilty to an alternative offence. A suggested formulation appears referenced
paragraph 7.6 in the Annex below.
14. We also suggest several amendments, which appear below.
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ANNEX
PROPOSED AMENDMENTS AND ADDITIONS
Paragraph 4 —~ ENFORCEMENT OPTIONS
We would suggest that the title of this section be re-titled to more accurately
represent its import for in reality criminal proceedings are also an enforcement
tool. We identify this otherwise minor detail only because, later in the Policy, a
distinction is made between civil enforcement and criminal enforcement
proceedings e.g. Section 5 Heading; and paragraph 7.1.1. We suggest:
‘Non-Criminal Enforcement Options’
“Civil Enforcement Options’
Such a title will then lead more easily into Section 5: ENFORCEMENT ACTION
OTHER THAN CRIMINAL ENFORCEMENT.
Paragraph 4.3
The first bullet point makes reference to “The seriousness of any offence...” but it
is not clear how such a criterion is to be measured.
An alternative construction which meets the objective of rendering the measure
more-readily defined and thus permitting those charged with the implementation of
the Policy and those against whom it is to be tested to be in no doubt as to the
parameters to be applied should be formulated. We would suggest that the
paragraph be amended so as to identify those features in the latter part of the first
bullet point and those appearing in the subsequent points as being the criteria
against which ‘seriousness’ is to be measured, i.e.:
“4.3 In particular, POL will consider the seriousness of the offence and
in doing so will have regard to the following matters;
. The culpability of the offender;
e The extent of the harm caused;
. The extent of any shortage or losses to POL;
. EtC. ccc eee ceeceeeeees ”
By amending paragraph 4.3 in the manner suggested, clarity is added to the use of
the word ‘serious’ in other paragraphs e.g. 4.4; 5.2; 6.6 etc.
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Paragraph 5.4.
“Civil Action will be considered where.....POL...... does not consider formal
action is required.....to punish for criminal misconduct.”
The antitheses of this formulation is problematic, for the suggestion here is that
prosecution will follow where POL considers that a suspect is worthy of
punishment. Such an approach may be fraught with danger, for punishment is a
matter entirely for the court, and a prosecutor must act impartially and without
seeking any particular outcome other than one which is just. Thus a defendant who
is subsequently acquitted of any wrong-doing by the court may well seek to
suggest that POL had pre-determined the defendant’s guilt and need for
punishment and accordingly had not acted in accordance with a fair policy.
Accordingly we suggest that any reference to punishment be removed from this
policy.
Paragraph 7.
Paragraph 7.1.1 does not sit comfortably with paragraph 5.5, as the latter posits a
scenario where criminal enforcement action may be taken in parallel with civil
proceedings whereas the former appears to exclude such a scenario. We suggest
substituting the word “inadequate” for the presently-used word “inappropriate”.
Paragraph 7.
We suggest the following be inserted:
“7.5 Once the decision to prosecute is taken, we will keep the case under a process of
continuous review. Where at any time it appears to us 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, we will
discontinue the prosecution without undue delay.”
“7.6 In appropriate cases we will consider whether any offer of plea(s) to
particular charge(s) meets with the aims of this Policy. In cases where a
defendant seeks to admit guilt on a basis other than that advanced by POL,
we will only consider an offer of plea(s) where the offer is expressed in
writing and in the form of a recognised ‘Basis of Pleas’ document signed
by the parties. 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.
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Paragraph 8.
DECISION MAKING
We suggest the following be inserted:
“8.5 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.
Simon Clarke