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POST OFFICE LTD
ADVICE
1. Tamasked to advise on:
i. the differentiation between a caution, a guilty plea and a full trial verdict [of
guilty];
ii. “Appeal rights exhausted”
iii. I Whether there is an impact on the risk level to Post Office
2. Lam also asked to provide some brief speaking-notes on these issues.
1. Cautions, guilty pleas and jury convictions
3. A suspect alleged to have committed a criminal offence may either be charged with the
commission of that offence, in which case the matter proceeds to court, or they may be
the subject of a Formal Caution
Formal Caution
4. A Formal Caution is a non-court criminal disposal designed to deal with minor
offending by diverting such offenders away from the courts whilst nevertheless
recognising the criminality of the misconduct involved. According to the Home
Office, the aims of the formal caution are:
i. to offer a proportionate response to low level offending where the
offender has admitted the offence;
ii. to deliver swift, simple and effective justice that carries a deterrent
effect;
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iii,
iv.
to record an individual’s criminal conduct for possible reference in
future criminal proceedings or in criminal record or other similar
checks;
to reduce the likelihood of re-offending;
to increase efficiency whilst simultaneously reducing the burden on the
courts.
5. The following conditions must be met before a caution can be administered.
i,
iii.
there must be evidence of guilt sufficient to give a realistic prospect of
conviction in the event the matter went for trial;
the suspect must admit the offence, that is, there must be a clear and
reliable admission of the offence. Note that, where an offence contains an
element of dishonesty, that dishonest conduct MUST be admitted by the
person before a caution can be administered;
the offender must understand the significance of a caution and give
informed consent to being cautioned.
6. Where the available evidence does not meet the standard normally required to bring a
prosecution, i.e. The test in the Code for Crown Prosecutors, a caution cannot be
administered.
7. Although a caution is not a conviction, it forms a part of a person's criminal record and
will remain on that record permanently. The caution can be used as evidence of bad
character if a person is later convicted of a further offence. A caution might also
provide the recipient with difficulties in obtaining visa’s to visit certain countries,
including the United States.
8. The acceptance of a caution by the defendant carries certain compelling advantages,
for instance: they will not be prosecuted through the courts; they will suffer no further
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punishment; the case will not be publicised; in many cases they need not declare the
fact of the caution in applications efc.
Guilty plea
A guilty plea entails the complete admission to the commission of an offence,
although such a plea may be qualified in terms of the extent of the alleged
wrongdoing. Such a qualification must be set out in writing in a formal ‘Basis of Plea’
document. Most commonly, a Basis of Plea will admit the commission of a fraud or
false accounting but assert that no money was taken by the offender. Such a Basis does
not amount to a defence to the charge but in effect means “Guilty — but only to this
extent...” The prosecution may accept or reject a Basis of Plea. Where the Basis of
Plea is accepted, the defendant is sentenced in accordance with the wrong-doing set
out in the Basis of Plea.
. A guilty plea is a formal admission of guilt to the court and as such attracts “credit”
which goes to reduce the sentence otherwise imposed had the defendant pleaded not
guilty and taken the matter to trial. Credit is intended to reflect the defendant’s
admission of wrong-doing, remorse, the spearing of witness attendance and the saving
of court time and resources. The amount of credit is determined by timing of the plea:
the earlier a plea (e.g. by admissions in interview or an early court hearing) the greater
the credit obtained.
Guilty verdict following trial
. The defendant has asserted his or her innocence at trial but the jury have convicted.
The only substantive difference between a guilty verdict and a guilty plea lies in the
sentence imposed.
Summary
. Both the Formal Caution and the Guilty Plea represent formal admissions of guilt, that
is, admissions to having committed a criminal offence. A Guilty Verdict is a finding of
guilt in the face of a denial. In that sense:
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i. all three amount to the same thing: that is, all three represent the commission of
criminal mis-conduct by the defendant (including, where such is an element of
the offence, dishonesty).
ii. All three are recorded on a person’s PNC, or criminal record.
iii, All three are taken into consideration when sentenced for further offences.
13. Accordingly as a matter of criminal law both the recipient of a Formal Caution and a
defendant who pleads guilty to an offence may not be distinguished, as both have
admitted the commission of criminal offences and thus in that sense are no different
from each other. The only distinction to be drawn between them is that of process and
disposal. Similarly, a defendant found guilty following a trial is different in the sense
only that they have continued to deny their wrong-doing. Thus both Applicants Coates
(M076) and Banks (M057) stand in the same position — both are regarded in law as
being guilty of criminal misconduct.
2&3. “Appeal rights exhausted” and Risk Impact to POL
14. In his email containing these instructions Andrew Parsons of Bond Dickinson sought
to clarify this phrase thus:
“T think by “appeal rights exhausted" David is querying whether it would make a
difference to the risk of mediating a case if the SPMR has, off the back of the
Scheme, already appealed and lost.”
15. As matters presently stand, within the scope of the review process, no SPMR or clerk
convicted of an offence prosecuted by POL has sought to lodge an appeal with the
Court of Appeal. Thus so far, there can be no such risk as is alluded to. That does not
mean however that any SPMR is precluded form lodging an appeal later, and off the
back of the Scheme. It is this risk to which I therefor apply myself.
17.
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. The fact that no convicted offender has sought to appeal his conviction is instructive,
for those who genuinely believed themselves to be innocent of wrongdoing would, to
retain any degree of credibility, be bound to seek permission to appeal. None have
done so. All would have been advised by lawyers as to both the possibility of an
appeal and likely chances of success — we know this because it is the duty of any
criminal lawyer to provide such advice. In this respect a number (not many) of
Applicants have sought as one outcome of the Mediation Scheme, a requirement that
_ GRO
Post Office to overturn his conviction. ...and to have his criminal record expunged.”)
POL assist them in overturning their appeal (see e.g. ‘Assistance from
Given that no Applicant has thus far sought to obtain permission to appeal from the
Court of Appeal, it may properly be inferred that none will do so save in the event that
some new circumstances arises which alters the position. The request by some
Applicants that POL assists in that process is an example of where, if POL were to
accede to such a request, such a change could result in an appeal.
. Of more concern in the context of appeals launched off the back of the Mediation
Scheme, is the potential for inadvertently placing a different gloss or interpretation on
facts, or otherwise saying anything which may be said to be inconsistent with the way
in which the case was originally prosecuted. There, the risk to POL is substantial — a
concession for instance that a Horizon shortage was or may have been the result of
human error, could fatally undermine the original basis for the prosecution and
conviction. Such a concession might well lead to an appeal.
. Thus in the context of the risk of mediating a case if the SPMR has a caution or
conviction, the risk to POL is twofold:
i. Whilst no SPMR or clerk convicted of an offence prosecuted by POL has
sought to lodge an appeal with the Court of Appeal thus far, in mediating a
case if the SPMR has, off the back of the Scheme, already appealed and lost, a
SPMR may receive material upon which he might base a further appeal;
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ii. An Applicant SPMR who has not sought to appeal against his conviction may
nevertheless do so in circumstances where he receives material upon which he
could found proper grounds of appeal.
20. We judge the risk to POL of the former as being minimal, if not non-existent. We
judge the risk to POL of the latter occurring as being substantial, and only mitigated
by a very careful consideration of POL Mediation Responses prior to publication to
the Working Group or the Applicant.
21. Within the scope of this heading, we also suggest that the very acceptance of a
cautioned or convicted Applicant into the Mediation Scheme raises the risk that he
may seek to appeal. This is because an Applicant, and potentially the Court of Appeal,
might view acceptance into the Scheme as a concession that POL may have erred in
prosecuting the Applicant originally.
‘A Line in the Sand’
22. It has always been our view, expressed as far back as September 2013 in conference
with Brian Altman QC and echoed by him, that no Applicant who is, in law, guilty of
a criminal offence committed against POL, should be allowed into the Mediation
Scheme, for the reasons stated then and repeated here. Accordingly we would draw the
‘Line’ at excluding all those with a Caution (Coates - M076) or conviction whether
obtained by guilty plea or conviction by jury following a trial (Banks — M057).
Speaking Notes
23. Please refer to Annex 1.
Simon Clarke 9" July 2014
Senior counsel
Cartwright King
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ANNEX 1
Speaking Notes
24. Cautions, Guilty Pleas and Guilty Verdicts:
i. A CAUTION is a non-court criminal disposal
¢ can only be administered where there is:
— Evidence of the commission of an offence; and
— A full and reliable admission to the complete offence; and
— An acceptance by the offender of the caution.
¢ is recorded on a person’s Criminal Record.
ii, A GUILTY PLEA is a formal admission of guilt to the court
e Is a conviction by the court;
May be qualified by a Basis of Plea;
Attracts a lesser sentence;
¢ is recorded on a person’s Criminal Record.
iii A GUILTY VERDICT FOLLOWING TRIAL is a formal finding of guilt
by a jury:
Attracts a higher sentence than does a guilty plea;
Is a conviction imposed by the court;
is recorded on a person’s Criminal Record.
iv. In terms of criminal offences,
e A Caution represents the admission to having committed a criminal
offence;
e A Guilty Plea represents the admission to having committed a criminal
offence;
eA Guilty Verdict represents a finding by the court of the defendant
having committed a criminal offence.
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25. Appeal rights exhausted” and Risk Impact to POL.
i. There is a substantial risk to POL that a convicted or cautioned SPMR,
admitted to the Mediation Scheme, might obtain sufficient material upon which
to base an appeal, unless POL responses thereto are very carefully monitored.
ii. There is in our view also a lesser, but nevertheless real, risk that a cautioned or
convicted Applicant might regard acceptance into the Scheme as a concession
by POL that there may be some foundation to their complaint.