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From: Chris Aujard[IMCEAEX-
_O=MMS_OU=EXCHANGE+20ADMINISTRATIVE+20GROUP+20+28FY DIBOHF23SPDLT+29
_CN=RECIPIENTS_CN=CHRISTOPHER+20AA0452485-80B7-40D2-ADE7-
6FEFEAE19CC3F88@C72A47. ingest.local]
Sent: Mon 02/03/2015 AM (UTC)
To: Jane MacLeod:
Rodric
Williams,
Jessica Madron;
Subject: Re: Sparrow - independent Horizon assessment
Attachment: image001.png
Hi Jane - the only points that I would add to Rod and Belinda's (very good) comments are that:
1) the board approved a prosecution policy that was predicated on at least some prosecutions being brought each
year (for their deterrent value, to discourage wrongdoing); and
2) we have been told by CK (and there is no reason to think otherwise) that the likelihood of bringing many if
any successful prosecutions remains low until such time as we have this expert's report.
Hope that helps. Am stuck on an immobile train at Ebbsflect at the moment, so am not sure what time I will be
in!
Cheers
Chris
Chris Aujard
General Counsel
Post Office Ltd
Sent from my iPhone
On I Mar 2015, at 5:23 pm, Rodric Williams
Jane,
The short answer is ICL’s report could have uses beyond supporting BAU prosecutions, but right now I
can’t tell how much. I have set out below a longer answer, which I’m conscious will probably raise more
questions than it answers.....
Background
ICL’s report would primarily support BAU criminal prosecutions:
- Most prosecutions use Horizon in some respect (Cartwright King inform me that it’s every
prosecution, but I think we recently secured a conviction without reference to Horizon).
- Given the publicity Horizon has received, CK anticipate defendants will raise Horizon integrity as
a positive defence in new prosecutions.
- Historically, Gareth Jenkins at Fujitsu provided rebuttal evidence. That is no longer considered
appropriate, hence the need for someone independent of Horizon’s supplier.
- Until we have the rebuttal evidence, we can’t prosecute.
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I don’t have sight of ICL’s work plan, so don’t know whether the £65k-£80k report would give the
definitive “answer”, or identify further actions (e.g. testing, review of source code etc). I'll try to clarify
this with Jarnail/CK before you meet with Jessica.
ICL’s work will however overlap with a desk top review Deloitte did for us last spring. Deloitte’s work
will be provided to ICL, but I imagine ICL will have to overcome the main challenge Deloitte faced,
namely the lack of material still available from Horizon’s initial implementation, if they are to give a
sufficiently robust opinion on Horizon for use in Court.
Application in Civil Litigation
Assuming this challenge is addressed, CK note that ICL’s report would only look at the Horizon system as
it is now, and that further reports would be necessary to apply the findings to specific cases, i.e. ICL will
provide a “base” report to be supplemented in individual cases. This limitation would apply equally to
any civil litigation in which we might want to use the ICL report:
- Ina direct challenge to Horizon (e.g. a Scheme-related group action), the parties will need the
Court’s permission to use expert evidence. This would almost certainly be given, but the extent
of the evidence would be determined by the pleadings in the case, which may not fit with the
work ICL has done. The Court also has the power to order that expert evidence is given by a
single expert, jointly instructed by the parties, which could preclude ICL (or Deloitte) from giving
evidence. The Court is slow to order this where the expert evidence is contentious or goes to
the heart of the claim, but I would think about asking for it if I was acting for SPMRs given the
inequality of the parties’ resources.
- In BAU debt collection matters, the use of expert evidence is likely to be restricted further for
“proportionality” (i.e. cost/benefit). ICL’s report may be less important in this context, given
that we may be able to use agency law principles to hold the SPM liable to us for the accounts
s/he signs off (e.g. as in the Castleton case).
- In either case, we would want to think closely about using a “base” ICL report in new litigation
given the Civil Procedure Rules’ requirement for the expert’s report to state the substance of all
facts and instructions material to the opinions expressed. This requirement could require the
expert to reach back from the case in issue to state the instructions currently being given.
Criminal Proceedings
ICL’s report could also have implications for past convictions:
- We’re proceeding on the assumption that the findings will be favourable to POL. However, any
adverse findings may need to be disclosed in past prosecutions if they would undermine the
case for a prosecution or assist the case for the defence.
- The CCRC could ask for information about ICL’s work - Brain Altman QC’s report refers to the
need to find a new expert - and its powers would trump the privilege in instructions, drafts etc.
A favourable report could however go a long way to demonstrating to the CCRC the robustness
of Horizon, and hence the safety of any conviction obtained on Horizon data.
Non-Legal Uses
I defer to those with more experience on how much value a POL-commissioned report would have in a
non-legal context, but note that we have been challenged that whatever we produce is meaningless
because of course we’d say our system is fine.
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Please let me know if you need anything further. I’d be happy to sit in on your meeting with Jessica if
either of you thought it helpful.
Kind regards, Rod
From: Belinda Crowe
Sent: 28 February 2015 09:14
To: Jane MacLeod
Cc: Chris Aujard; Patrick Bourke; Rodric Williams; Jessica Madron
Subject: Re: Sparrow - independent Horizon assessment
Jane, I probably have less to add than other recipients as I have not been fully involved in this. Chris and
Rod will have a better view and also be better placed to explain the history. However, my
understanding is that this was commissioned in relation to BAU court proceedings and it is still necessary
for that purpose.
It was hoped that it could also be used in relation to rebutting allegations about the integrity of the
Horizon system but, in terms of timing, that usefulness may have diminished for the moment as Scheme
investigations have been completed. However, I think, as you suggest in your final paragraph below,
that there would be value in having this to deploy (albeit retrospectively) as defensive ammunition.
Additionally, in the event of increased legal activity arising from cases not resolved as part of the
Scheme this work could not only be useful but vital.
I do believe, however, that if we are going to proceed we should do so as quickly as possible to enable us
to get maximum value.
Hope that is useful.
Best wishes
Belinda
Belinda Crowe
148 Old Street, LONDON, EC1V 9HQ
Postline:' GRO
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On 28 Feb 2015, at 01:04, Jane MacLeod I
} wrote:
All
I have a meeting with Jessica Madron on Monday to discuss whether we should proceed
with the independent report on Horizon that was discussed some time ago with Imperial
College (see attached email chain). My understanding is that the cost of this report would
be c£65k (I think) and would take (as set out in the attached) about 8-10 weeks to produce.
At the moment, I am unsighted as to whether/how will actually be of use to us, although I
can imagine circumstances where it would be valuable (eg potential court proceedings).
I would be grateful for your views on this. While £65k is not an insignificant amount, if we
thought that it would (albeit retrospectively) provide us with defensive ammunition
against some of the allegations, then this would be helpful.
Your collective thoughts would be invaluable!
Thanks
Jane
<image001.png> Jane MacLeod
General Counsel
5* Floor, Bunhill Wing
148 Old Street,
London EC1V 9HQ
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