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POST OFFICE LTD — CASE REVIEW
R. v. DAMIAN PETER OWEN
Mold Crown Court
Offence
1.
On the 7" December 2011 this defendant was convicted after trial of an indictment
containing one count of theft. That charge alleged that between the 19" April 2009 and
the 10" August 2010 he had stolen the sum of £24,867.99 from Post Office Ltd. On the
23" December 2011 Mr Owen was sentenced to a term of 8-months immediate
imprisonment. Under the regulations applicable to this sentence, Mr Owen would have
been required to serve one half of the term in custody and the remainder in the
community but subject to a conditional licence. It is possible that, under the Prisoner
Early Release Scheme then (and now) in force, Mr Owen may have been released
earlier than at the half-way point, for both offence and offender would likely have fitted
the relevant criteria for that scheme. In any event the term will by now have been
completed.
Case history
2.
The defendant first appeared before the Caernarfon Magistrates Court on 24"
November 2010. He gave no indication of his plea and the Magistrates adjourned the
matter. On the 17" February 2011 the defendant was Committed for trial to the Mold
Crown Court, to appear on the 18" March 2011.
The matter next came before the court for a Pleas and Case Management Hearing at
Mold Crown Court on the 29" March 201, when the defendant entered a not guilty
plea. The matter was listed for trial to commence on the 5“ December 2011.
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4. Trial commenced on the 5" December 2011 and on the 7" December the jury convicted
Mr Owen of the single charge of theft. Sentence was adjourned to the 23" December
2011, upon which date Mr Owen received 8-months immediate imprisonment.
5. There has been no indication of any application to the Court of Appeal to challenge the
conviction or sentence.
Prosecution case
6. The defendant Damian Peter OWEN was during the relevant period the Officer-in-
Charge at the Glanadda sub-Post Office, Bangor, Wales, Branch Code 163 604. He
was 28 years of age and his service with POL had commenced in 2008. The largely-
absent sub-Postmaster of the office was Nicholas Pritchard, who had informally
transferred the operation of the office to Mr Owen. This arrangement had not been
authorised by POL and indeed was unknown to them. The Glanadda sub-Post Office is
a small two-counter branch situated in a general convenience store, itself situated on a
main road out of Bangor and within an area of terraced residential houses.
7. On Thursday 22™ July 2010 a member of the Field Support Team (the “Agent”)
telephoned the Glanadda Post Office and spoke to the defendant Mr Owen. The agent
informed Mr Owen that he would attend at the office on the following day at 2.00pm
so as to migrate the system onto HOL.
8. On Friday the 23" July 2011 the Agent attended the office as arranged, arriving at
2.00pm. A check was made of the cash holding; this caused the Agent a degree of
concern as he noted there to be unusually large quantity of £1 coin and very few
Sterling notes. Although this of itself did not raise any serious disquiet, the Agent also
noticed that the snapshot indicated an excessive amount of valued stock. The migration
was completed and the Agent left, saying nothing to Mr Owen. As the result of the
migration Agent’s suspicions, an audit was conducted at the office on Sunday the 9"
August 2010.
9. The audit of the 9" August revealed a deficit in the accounts of £24,633.99. This deficit
was made up of: cash, £24,633.03; stock, £254.72; and postage, £80.24.
10.
14.
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At the conclusion of the audit Mr Owen was asked to contact the SPMR, Mr Pritchard.
Mr Owen responded that he had been trying to do so but that the telephone number
was ‘not recognised’. He also told the auditor that he did not know where Mr Pritchard
lived — the number he had tried was his only means of contacting him.
. The auditor asked Mr Owen if he knew of any reason why the branch accounts were
short: Mr Owen replied that he did not, for as far as he was concerned it should have
balanced; all of the cash was present on the preceding Wednesday and when the branch
was migrated to HOL (23 July).
. The evidence of Andrew Keighley and Paul Whitaker deals with the increase in coin
held at the office and may be usefully tabularised:
Date Coin on hand
20/4/2009 £2,684
22/7/2010 £25,810
23/7/2010 £6,810
24/7/2010 £7,258
26/7/2010 £26,240
9/8/2010 £26,240
The evidence also informs us that on a number of dates no coin details were recorded,
because of an apparent branch-communication failure. Further difficulties also arose by
reason of a repeated failure to complete the cash declaration process correctly; and on
the 1* November 2009 there was a total system failure. It is to be noted that only the
returns of the 24" and 26" July and the 8" August 2010 represent post-migration dates.
None of the branch-communication failures relate to this post-migration period.
This increase in coin holdings is said to be unusual; generally it would be expected that
such large holdings would be remitted from the office promptly.
1S.
17
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Similarly, the branch appeared to be holding unusually large quantities of unusable
notes and £50 notes, the same amount being declared for long periods. Again such
monies would usually be remitted out promptly.
. A number of stock adjustments over the relevant period were noted to be unusual.
There was “...a flurry of activity...” on the 23" July 2010. Between 12.35pm and
1.31pm that day a number of stock adjust-positive transactions were performed. The
effect of these transactions was to increase the value of stock within the branch and to
produce a corresponding decrease in the branch cash on hand figure. The total increase
in value (and consequent decrease in cash) amounted to £27,685.28. On Monday the
26" July, the day after migration had been successfully completed, further stock
adjustment transactions were effected, the resulting in the re-inflation of the cash on
hand figure and a diminution of the stock value, to approximately those values prior to
the previous day’s transactions. Thus the earlier adjustments were reversed.
On the 7" September 2010 Mr Owen was arrested and interviewed under the
provisions of the Police and Criminal Evidence Act 1984 and the relevant Codes of
Practice. I summarise below the relevant passages of the interview transcripts adduced
at the trial:
— The deficit was a surprise, particularly as [the migration] had been completed
two weeks ago and nothing was amiss.
— His arrangement with the SPMR Nicholas Pritchard had been going for about 2
years. He operated the small shop under the same arrangement. Nicholas
Pritchard very rarely attended at the office. His last attendance was in June/July.
When Nicholas Pritchard did attend at the office he would go behind the
counter but would never serve.
— He, Damian Owen, knew Nicholas Pritchard’s HOL Log-in and password; on a
few occasions he would serve customers using Nicholas Pritchard details. Thus
any transactions under Nicholas Pritchard’s details would not be his; they would
be Mr Owen’s.
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— He first heard about the HOL migration on the day before — he was aware that
the process involved his cash being checked. On the day everything was fine.
— He could not explain the rise in coin; it had been checked on migration and he
had done nothing to increase the value to £27,000. When asked if the migration
agent had found that amount of coin in his check Mr Owen responded “/ would
have thought so.” When he was told that it had not, he answered “No”. He was
then asked what happened to the coin: Mr Owen responded “/’m not sure.
— Mr Owen was asked about the increase in coin which had occurred prior to and
following the migration process. He responded “hat should have stayed the
way it was.” Asked if there was any reason why the figures didn’t stay as they
were, he answered “Nothing we ‘ve done here.”
— He said: “Well, I think I would have noticed the odd £20,000 here and there.”
and repeated that he did not know why the coin had gone up; he wasn’t aware
of any massive jump in coin; and would have known if someone had come in
with £21,000 of coin.
— Mr Owen reiterated that he had not made any adjustment in coin to the value of
£20,000 and did not know why the figure had gone up.
— He denied making the stock adjustments of the 23" and 26" July.
— Throughout the interview Mr Owen denied taking any money from POL.
Admissions at trial
18. During the course of Mr Owen’s trial his representatives agreed on a number of facts
and provided those agreed matters to the jury by way of s.10 Admissions. Relevant to
this review are the following agreed facts (I adopt the numbering provided in the trial
document):
2. eee throughout [the relevant period] the defendant had sole responsibility
for the conduct of business at the... . office.
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3. During [the relevant period] the defendant was solely responsible for the
transactions that took place at the post office and the data that was entered
and recorded on the Horizon computer system.....
6. Throughout the period the defendant entered information on the Horizon
computer system using his own user identity and the user identity of
Nicholas Pritchard.
7. The defendant was responsible for the stock adjustments entered on the
Horizon computer system on 23" July 2010 and entered on the Horizon
system on 26" July 2010.
19. No Horizon or HOL expert witness provided a statement in this case or was called to
give evidence at the trial.
Defence case
20. As per interview — a denial of having stolen monies coupled with an inability to account
for the coin figures or the stock adjustments. Also a vague and ill-defined suggestion
that the problem may lie with HOL, although this is implicit rather than express.
21.In a Defence Statement dated the 29" March 2011 the defendant denied any false
accounting or theft and made the following assertions (adopting that document’s
paragraph numbering):
3. The defendant does not know whether the accounting procedures adopted to
produce [the migration and audit] information are accurate, nor whether there
is a shortfall as alleged. Further, it is Mr Owen’s understanding that the
accounting systems operated by the Post Office are notorious for producing
imbalance anomalies.
22.In his request for disclosure contained within his Defence Statement the defendant
sought disclosure of, amongst other items, the following:
i. SPMR Personnel file of Nicholas Pritchard;
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ii.Horizon audit printouts & Branch Trading Statements;
iii. I Migration checklist & cash/Cheque checklist;
iv. PNC check for Nicholas Pritchard.
23. An “Amended Defence Statement” (undated in my papers) repeated the assertions
noted in paragraph 19 above and said this (again adopting that document’s paragraph
numbering):
7. To the extent that it is being suggested there were significant alterations input
into the computer system on the 23 July 2010 affecting cash and stock
levels, the defendant does not necessarily accept that it was he who
performed those operations and the Crown is put to strict proof thereof...
8. The only other person who might have been able to access the system was
Nicholas Pritchard
9. The defendant now accepts that it might have been Nicholas Pritchard who
“it might have
happened when the defendant was at lunch.
input the data P —
10. The defendant accepts inputting the correctional data on the 26" July 2010.
He did so on telephone instruction from the Post Office.
Discussion
24. Initially Mr Owen’s stance, at interview at least, was that he could not explain the rises
in coin and unusable notes and he had not conducted the stock adjustments of the 23"
and 26" July. This position developed, through his Defence Statement, into one of a
general attack on both Horizon (pre-migration) and HOL, although he did not specify
in what way Horizon/HOL had failed him. Then, in his “Amended Defence Statement”
Mr Owen appeared to have accepted the reality of the Horizon/HOL stock adjustments
on the 23 and 26" July 2010, suggesting that Mr Pritchard was to blame for those of
the 23" July, whilst explaining those of the 26" July by saying that he had entered
‘correctional data’. Finally, the position moves once again at trial, when in the s.10
Admissions he accepted that:
25.
26.
27.
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— He was solely responsible for the transactions. ...... and the data...... entered and
recorded on the Horizon system;
— He had used his own user identity and that of Nicholas Pritchard; and that
— he was responsible for the stock adjustments of the 23“ and 26" July.
This last change represented a complete reversal of his original position and was
tantamount to an admission of the offence; it is in my view unsurprising that the jury
convicted him of the offence, not least because (I expect) he would have been required
under cross-examination to explain his changes of position.
My initial view of this case was that this was a typical “unexplained Horizon failings”
case. However the more I go into the detail of the trial the more I am forced to the
conclusion that this was not a Horizon case at all, at least not in the sense that we see it
for the purpose of the review process. The case is really about whether Mr Owen had
made entries into the system which were designed to deceive POL. I find support for
this proposition by the fact that the vague and generalised attack on Horizon/HOL was
not, it seems, pursued and that that issue was resolved by Mr Owen’s s.10 Admissions
that he had indeed created the stock adjustments central to the prosecution case.
In these circumstances I cannot see that he will be assisted by the Second Sight Interim
Report. That view however is reached with a degree of hindsight and we do not know
why Mr Owen changed his position so completely. Looking at the case on a stage by
stage basis, as would have been the case during the currency of the proceedings, one is
forced to a different view. From what Mr Owen said in his interview, this was then in
fact a typical “unexplained Horizon failings” case, and as such disclosure of the Second
Sight Interim Report would then have been required had we then been possessed of it.
Similarly, despite it’s vague and generalised nature, the assertion in the Defence
Statement that “....the accounting systems operated by the Post Office are notorious for
producing imbalance anomalies” would have required disclosure of the Interim Report.
Thus by the time we get to trial, Mr Owen would have received the Second Sight
28,
29.
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Interim Report and we do not know what impact that might have had on his defence or
later change of heart.
Thus on the basis that, at two points in the proceedings our disclosure duties would
have required service of the Second Sight Interim Report, I advise that we should now
disclose the document. It matters not that, in the end Mr Owen resiled from his attack
on Horizon/HOL and admitted authorship of the entries in question: he may not have
done so (as was his right) had he been possessed of the Interim Report. Accordingly
our duty requires disclosure now.
On the basis that no expert evidence relating to Horizon/HOL was served and no
expert gave evidence, I advise that the Helen Rose Report should not be disclosed — the
matters contained within that document could not have met the test for disclosure
during these proceedings. Had POL relied upon expert evidence then of course the
position would be different.
Safety of Conviction
. It is not the purpose of this review, nor of the review process overall, to determine
whether or not any particular conviction is unsafe: that decision is reserved to the Court
of Appeal only. The purpose of this process is to identify those cases where the material
contained within the Second Sight Interim report would have met the test for disclosure
as provided in the Criminal Procedure and Investigations Act 1996, the Code of
Practice enacted thereunder and the Attorney-General’s Guidelines on Disclosure, had
that material been known to Post Office Ltd. during the currency of the prosecution
and accordingly would or ought to have been disclosed to the defence.
. In this case I have no doubt that, had we known of those matters identified in the
Second Sight Interim report, that material should and would have been disclosed to the
defence in accordance with our disclosure duties as prosecutors. For that reason alone
we must inform those who represented the defendant and disclose to him both the
Second Sight Interim report.
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32. I consider it quite likely that, upon receipt of this material, the defendant will seek the
leave of the Court of Appeal to appeal his conviction. Where a defendant seeks leave
the Court of Appeal will, often before the grant of any leave, invite the prosecution to
comment upon the application.
33.1 advise that, should we be so invited and/or should the defendant be granted the
requisite leave, we oppose his the grant of leave and any substantive appeal, on the
basis that the conviction may properly be regarded as safe for, amongst other reasons,
the following matters:
i. The evidence against the defendant was compelling;:
ii. His changes of heart throughout the proceedings are indicative of a
desire deflect suspicion from himself and are plain evidence of lies;
iii. His s.10 Admissions to having conducted the stock adjustments of the
23" and 26" July, and the timings of those adjustments, provide
compelling evidence of his desire to hide what he must have known, i.e.
that he was £25,000 out of hand.
Conclusion
34. This is a case in which, had we been possessed of the material at the relevant time, we
should and would have disclosed to the defence the matters identified in the Second
Sight Interim report.
35. Accordingly our duty is now to place the defence on notice of this fact and to serve on
them those documents. I advise that we comply with that duty in this case.
36. Should the defendant be granted leave to appeal against his conviction, we should
oppose the appeal.
37.1 will draft a letter to the defence for Post Office Ltd’s approval and, in accordance
with your instructions to us, serve that letter and the reports on defence solicitors.
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Simon Clarke 19" November 2013
Barrister
Cartwright King Solicitors