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INITIAL SIFT PROTOCOL
I. Was or might HORIZON reasonably have been more than just
the information provider?
Identify POL case against defendant(s):
i. Case Summary/Opening Note/Statement of Facts
ii. POL Investigators “Investigation: Legal” form;
iii. Charge sheet/Indictment
iv. Audit statement;
v. Disclosure bundle;
vi. Questions asked in Interview.
II. Irrespective of the plea, did the defence raise at any stage:
a) ALLEGED OR IMPLIED Horizon failings however
expressed, general, nebulous or ill-defined; or
b) ALLEGED OR IMPLIED lack or adequacy of training by
POL; or
c) ALLEGED OR IMPLIED lack or adequacy of Horizon
customer support (i.e. sub-postmaster) by POL:
Identify defence case:
i. Defence Statement
ii. Interview responses;
iii. Defence correspondence.
IF ANSWER TO QUESTIONS LOR Il ARE OR MAY BE “YES” THEN
FULL REVIEW.
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ASKING THE QUESTIONS.
Question I.
a). Here we are looking for cases where the primary or main evidence against the
defendant is Horizon-based. The following are examples of cases which WOULD
go forward for Full Review:
- Where the ONLY evidence against the defendant consists of Horizon
data, e.g. unexplained transaction reversals; unexplained balance
shortages; unexplained accrued losses; repeat or second POCA
withdrawals etc.
- Where the main evidence is Horizon-based but there is some other
supportive evidence, e.g. as above but supported by: limited
admissions in interview; transfers into personal/non POL business
accounts; personal cheques; demonstrable lies in interview;
inconsistent responses in interview and/or Defence Statements; (but
see b). below)
- Any case in which we have served a statement by Gareth Jenkins or
any other Horizon expert witness.
NOTE THAT THIS LIST IS NOT DEFINITIVE
b). If there is a preponderance of other evidence against the defendant and the
Horizon evidence is merely the starting point for the investigation then the case
should NOT go forward for Full Review. Examples include:
- Admissions in interview to the misconduct charged;
- The withholding or delaying of cheques to Clearing;
- Pleas of guilty to alternative charges, e.g. False Accounting to cover
unexplained shortages/losses efc.
Question IT.
a) Has the defendant raised Horizon failings as part or all of the defence? Obvious
examples go forward for Full Review. But what of implied failings? e.g.
- The evidence is of double-transactions from a Post Office Card
Account; the defendant says she only did what she was asked to do;
the account-holders say they did not make two withdrawals on the one
visit, the implied defence is that Horizon is responsible.
- The defendant DOES NOT criticise Horizon but cannot explain the
shortage/loss.
Such cases WOULD go forward for Full Review.
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b) This is a separate issue raised by Second Sight. If the defendant alleged or implied
(usually in interview, but check Defence Statement and correspondence) that he/she
received either no Horizon training or had received some training but that it was
insufficient, not detailed enough or not topical then the case goes forward for Full
Review.
c) Similarly, where a defendant alleges a lack of adequacy or sufficiency of Horizon
customer support then Full Review. Examples include:
- Telephoned the Help-line/Chesterfield but received
insufficient/inadequate/no help;
— No Help-line available;
— Line manager/supervisor inadequate/of no assistance;
- Such assistance as was received failed to address/remedy the problem.
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APPENDIX 1
SIFT REVIEWS
1.
GUILTY PLEAS. The fact that a defendant has pleaded guilty to an offence is not, for
the purposes of this Sift, determinative. The circumstances of the plea must be
examined with some care. This is because defendants have been known to enter guilty
pleas for reasons other than guilt, e.g. because they have been advised that the case
against them is overwhelming and that they should cut their losses; because a guilty
plea attracts a lesser sentence; because often a guilty plea can mean the difference
between immediate imprisonment and a suspended or community-based sentence;
because a Judge has indicated that such a plea may keep them out of prison.
Note that there will be cases where a guilty plea WILL BE determinative of the Sift,
e.g. where a defendant has pleaded guilty because, whilst he/she is unable to explain
the loss or has blamed Horizon failings, he/she admits (in interview; DS,
correspondence or written Basis of Plea(s)) to having hidden/covered-up the
shortage(s) by making false entries. In this situation the case SHOULD NOT go
forward for Full Review.
The purpose of the Sift is to identify those cases where, had we been possessed of the
material contained within the Second Sight Interim report during the currency of the
prosecution, we would have been required to disclose some or all of that material to the
defence. We have deliberately set a very low threshold for applying this test: if the
material MIGHT have been disclosable then the case MUST go forward for Full
Review.
Note that the threshold for moving cases from Sift to Full Review is deliberately set
very low. In any case where you are unsure whether to move a case to Full Review you
should err on the side of caution.
SC and MS will be available throughout the process to deal with queries and
uncertainties.
Occasionally a borderline case may be further Sift Reviewed so as to ensure that the
correct decision is arrived at
The reviewer MUST complete an Initial Sift Result Sheet (see Appendix 4) for each case
sift-reviewed. A copy of the Result Sheet should be attached to the front of the file.
At the conclusion of the Sift Review process, all cases where the Sift Reviewer has
advised no Full Review, Senior Counsel will themselves further Sift Review those
cases so as to ensure uniformity of approach and to ensure the correctness of the
original Reviewer’ s decision.
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APPENDIX 2
FULL REVIEWS
1.
Full Reviews will require a full reading of all of the case papers. The only question to
be considered is: would the Second Sight and Helen Rose material have been
disclosable during the currency of the prosecution?
It is not necessary to consider whether or not a conviction may be said to be ‘safe’ —
that is a decision for the Court of Appeal if the case gets there.
See paragraph I of Appendix I above re: Guilty Pleas.
A full “Case Review” document is to be drafted for forwarding to POL. The Case
Review will contain:
- Offence description
- Case history
— A full analysis of the prosecution case
- A full analysis of the defence case
— Details of any prosecution response to the defence case
- A discussion of any issues relation to Horizon, training and Customer
Support
- Aconclusion, to contain advice on disclosure.
In determining the issue of disclosure and the advice to be provided to POL, the
review should keep in mind the following provisions:
- Criminal Procedure and Investigations Act 1996, ss. 1-12;
— Code of Practice enacted under the CPIA 1996;
- The Protocol for the Control and Management of Unused Material in the
Crown Court;
— The Attorney-General’s Guidelines on Disclosure;
— The opinion of the House of Lords in R. v. H; R. v. C; [2004] 2 AC 134;
[2004] 2 Cr. App. R. 10.
The reviewer MUST place a copy of the full “Case Review” document on the
relevant file.
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APPENDIX 3
REVIEWER QUALIFICATION
1. Sift Reviews are to be conducted ONLY by qualified solicitors and counsel with
experience of prosecution and defence disclosure. Prior to conducting Sift Reviews
reviewers MUST:
a. be appraised of the circumstances giving rise to the task;
b. read the Second Sight Interim report in full;
c. attend an induction meeting during which the terms of this Protocol will be
set out in full.
2. Full Reviews are to be conducted ONLY by Senior Counsel with substantial
prosecuting experience. Those conducting Full Reviews MUST comply with the
requirements of paragraph I above prior to commencing the Review process.
MS/SC
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APPENDIX 4
INITIAL SIFT RESULT SHEET
Case Name:
CK File Number:
POL Reference:
PO Branch:
Initial Sift Conducted by:
Initial Sift Conducted on:
1) Was or might Horizon reasonably have been more than just the information provider?
Details:
2) Did the defence raise?
a) Alleged or Implied Horizon failing
b) Alleged or Implied lack of or adequacy of training
c) Alleged or Implied lack or adequacy of Horizon
Customer Support.
Details: