POST OFFICE LTD
ADVICE ON SUGGESTED APPROACH TO
CRIMINAL CASE MEDIATION
Appeal proposal
On 31% July 2014, I held a conference call with Rodric Williams of POL and
Gavin Matthews of Bond Dickinson on the approach suggested by Sir
Anthony Hooper (“AH”) to criminal cases falling within the mediation
scheme.
As I understood it, AH had suggested that where an applicant in the
mediation scheme had admitted a criminal offence (whether by way of a
plea of guilty or as a pre-condition to a caution) POL should take one of
three possible approaches to the issue of criminal appeal:
1) POL should support an appeal
2) POL should not oppose an appeal
3) POL should oppose an appeal
In the course of the conference call I pointed out that by paragraph 5.14.1
to 5.14.3 of POL’s “Settlement Policy” document (v.1.3, dated November
2013) POL’s “standard approach” where, following investigation, grounds
of appeal are identified is: (1) to suspend the mediation process (2) to
disclose the information giving rise to the grounds for appeal and (3) to
consider whether POL “will support or oppose any appeal”. I have not
been made aware of AH’s reasoning for suggesting his approach but
POL00130651
POLO00130651
wondered whether it might have been based on these provisions of the
Settlement Policy document.
I am told that the Settlement Policy document has not been (and will not
be) formally adopted by POL, and is confidential to POL, albeit POL has
dealt with criminal cases in line with that process, so that if material is
identified that affects the safety of the conviction, the process is
suspended, the material is disclosed, and the applicant considers his
position as regards any appeal. If the process that POL has been adopting
within the mediation scheme is limited in this way then I see no problem
with it. The problem arises with the notion that POL should consider its
position on any future appeal.
The focus of our discussions on 31* July was around the practical utility
of such an approach. The view I expressed was that I could not see any
advantage to POL in adopting, far less being held to, a position on any
criminal appeal during the mediation scheme. In fact, adopting such a
course would be to court an unacceptable level of risk for the following
reasons: -
a) As I see it, the fact that a criminal case is entered into the scheme
implies that there is or are, in broad terms, identifiable Horizon-
related issues, which require investigation. Entry into the scheme
does not necessarily imply that investigation has revealed any
arguable grounds of appeal. Indeed, even if investigation identifies
material that might give rise to grounds of appeal because it might
impact on the safety of the conviction, and the material is
disclosed, that does not mean that POL is then bound to adopt a
position in advance of any such appeal, as appears to be suggested
by the draftsman of paragraph 5.14.3 of the Settlement Policy
document. In my opinion this provision (albeit it has not been
officially adopted) unrealistically seeks to bind POL at far too early
a stage in proceedings, and AH’s proposal seeks to do the same.
POL00130651
POLO00130651
b)
d)
The only “new” information any applicant is likely to receive in the
course of the process is POL’s investigation report and Second
Sight’s report, both of which are narrowly based and not directed
at any criminal appeal process. Thus, by way of example, there
might have been undisclosed failings in Horizon at the time of the
trial, from which evidence was obtained in support of the
conviction, but the conviction is nevertheless “safe” because the
applicant fully confessed his guilt or there is other evidence
pointing to his guilt. It is therefore important to recognise that the
information gathered for the purposes of the scheme is incomplete
and does not address the real issue that the Court of Appeal
(Criminal Division) would have to consider on an application for
permission to appeal from the Crown Court, namely, the safety of
the conviction looking at the whole of the evidence.
This leads me to another issue. If only those cases in which the
applicant had admitted the offence (e.g. by a plea of guilty) have
been admitted to the mediation scheme then the scope for
successfully challenging the conviction on appeal is even less sure.
The applicant’s argument would have to be that had the new
material been made available before he entered his plea of guilty
then he would not have been advised to plead guilty and/or would
not have done so. The appeal would therefore have to be based on
the “fresh evidence” represented by the new material. But
mounting a successful appeal based on fresh evidence following an
unequivocal plea of guilty, albeit not impossible, is far from easy.
The mediation scheme is expressly not designed to be an appeal
process. The mediation pack makes clear that POL has no power to
reverse or overturn a criminal conviction but if new information
comes to light that affects the safety of the conviction, then POL has
a duty to inform the applicant, which he may then use to advance
POL00130651
POLO00130651
an appeal. The applicant however does not lose or abandon his
rights because, armed with the investigation reports, he may
consider with his advisers whether or not he has any application to
seek to appeal his conviction out of time, and if so advised, may
consider his grounds and later perfect them.
It is for these reasons POL should only ever consider its position once an
applicant has considered the new material and has in fact launched a
criminal appeal. There is in my judgment an unacceptable risk to POL in
providing or being held to a position on criminal appeal at the early stage
of mediation. An indication by POL at such an early stage based on limited
information risks inviting an appeal. Also, at this stage the applicant will
almost certainly not have even considered whether the new information
gives rise to grounds of appeal let alone whether there are any grounds
that are reasonably arguable.
The risk to POL is obvious: in general terms, once a criminal appeal is
fully developed (as opposed to complaint in the mediation scheme) the
circumstances may change. So POL may find itself prematurely
supporting an appeal when upon mature reflection the written grounds of
appeal show it ought not to have done so or it may oppose an appeal
when events prove it was ill judged to have done so. The middle course of
not opposing any appeal (while not supporting it) is a subtle halfway
measure of not making concessions to an applicant for appeal and adds
little.
A further important consideration is that each case is different and
therefore a case-specific approach is of necessity wise, but by taking a
position too early on individual cases with too little information POL risks
inconsistency among like cases and accordingly may attract criticism.
POL00130651
POLO00130651
False accounting proposal
Additionally, I am asked to consider a further recent proposal that AH has
made (set out in Andy Parsons’ email of 29tt August): that POL could
mediate a case where there has been a conviction for false accounting in
order to determine liability for an underlying loss. The suggestion
appears to be that POL and the applicant could discuss the root cause of,
and responsibility for, a loss leading in some cases to a negotiated
settlement of that issue without upsetting the safety of the conviction.
During a conference call of 16 July 2014, I was asked to consider two
written Advices from Cartwright King dated 9 and 15" July 2014 on the
topic of meditating criminal cases: I did not disagree with Cartwright
King’s advice in which they continued to maintain a wholesale objection
to the admission of all criminal cases to the scheme; indeed I had
expressed the opinion some months previously that it was a high-risk
strategy to admit any criminal case to the mediation scheme. However, I
understood that time had moved on and a practical solution had to be
found to deal with those criminal cases that were now within the
mediation scheme.
On 16" July, I considered therefore that there was less risk in admitting to
the mediation scheme cases, in which the applicant had admitted his guilt
by pleading guilty or as a pre-condition to being cautioned, which, as I
recall discovering, embraced all the current cases within the scheme;
Meera, a conviction case, had properly been excluded.
Given there are no conviction cases within the scheme, I expect that the
practical effect of AH’s proposal is that mediation would be restricted to
those cases of false accounting where the applicant had admitted his guilt.
If so, then consistent with my advice on 16" July, there would be less risk
in relative terms to mediating such cases than in the case of conviction
POL00130651
POLO00130651
cases (not least because the applicant has admitted guilt when he could
have contested it) but inevitably there is always some risk in having a free
discussion between an applicant and POL around facts that gave rise to
the applicant pleading guilty. However, I question what is to be gained by
determining liability for the underlying loss when the applicant has
admitted his guilt.
Moreover, I should emphasise that the advice I gave around finding a
practical solution to the problem POL was now faced with was provided
without drawing any distinction between the precise nature of the
offence. Clearly, AH sees a substantive difference between cases of false
accounting as against fraud or theft. But as is observed in Andy Parsons’
email, false accounting may be committed to conceal a loss but an offence
of false accounting may be committed without any provable loss. Does
this mean that an offence of false accounting without loss would not fall
within the new proposal because there was no liability to determine and
consequently nothing to mediate? I am unclear.
Indeed, there may be certain types of fraud that are committed and
charged without actual loss (e.g. fraud by false representation, where the
only intention required to be proved is that the offender intends to make
a gain for oneself or to cause another loss or to expose another to the risk
of loss); there may be certain types of theft committed and charged
without proof of any actual loss or the precise amount of loss (e.g. theft of
cheques which are “choses in action” or theft of property the precise
value of which is incapable of exact quantification).
I query whether the proposal is just a new means of achieving a
negotiated settlement between POL and applicants by a new and different
route, and, more importantly, whether, once accepted, it would be
suggested as a logical extension of it that the scheme ought also to
embrace certain cases of theft and fraud in order to “determine liability
for an underlying loss” where it was appropriate to do so.
POL00130651
POLO00130651
POL00130651
POLO00130651
16. I There are other foreseeably difficult issues. First, if POL were to accept
the proposal, it would bear the burden of scrutinising with care whether
each and every case of false accounting was amenable to determining
who was liable for the underlying loss. AH’s proposal would require POL
to determine whether there had been a determinable loss. Second, such a
course would necessarily involve a re-examination of POL’s case at court,
and any mitigation that was advanced on the applicant’s behalf (assuming
the proposal is limited to cases where responsibility was admitted), as
well as the sentence. This will involve consideration and re-examination
of whether in each such case POL successfully made a confiscation
application under POCA, or sought compensation or other financial
ancillary orders against the applicant. If it did then surely the liability for
the loss has been determined. How meddling with such a case in the
course of mediation would not potentially upset the conviction as well as
the sentence and any orders arising from it, I am also unclear.
17. Discussion about liability for underlying loss is, in my view, fraught with
potential problems. I do not see the point of it, and what it can achieve,
other than to provide an applicant with a false sense of hope or
expectation that POL might accept whole or part liability for the loss, and
settle. If nothing else, it would give the applicant an opportunity to seek to
undermine and find flaws with POL’s original case, the monetary
applications it made on sentence, as well as in the court’s orders, in an
uncontrolled environment, which in my opinion, is not something POL
should engage with.
Brian Altman QC
2 Bedford Row
London WC1R 4BU
5 September 2014