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POST OFFICE LTD —- CASE REVIEW
R. v. KIM ELIZABETH WYLIE
Newcastle Crown Court
Offence
1. Kim Elizabeth WYLIE faces two charges of theft, the first alleging that between
the 7 January 2004 and the 28' July 2010 she stole £33,142.96; the second
alleging that between 10th September 2010 she stole £5,434.93; both offences
relating to the from the Winlaton sub-Post Office, Bladon on Tyne.
Case history
2. The defendant appeared before the Newcastle Magistrates Court on 12" June 2012.
She indicated that she would contest the allegations and the Magistrates deemed
the case unsuitable for summary trial. The case was adjourned for the preparation
of committal papers and the committal hearing took place on 7” August 2012.
3. The matter next came before the court for a Pleas and Case Management Hearing
at Nottingham Crown Court on the 19 September 201, when the defendant
entered not guilty pleas to all charges. The matter was listed for trial to commence
on the 17" December 2012.
4. By reason of repeated and detailed defence requests for disclosure of details of the
Second Sight timetable the defence sought and were granted a delay in the trial
date. The trial was re-listed for the 4" March 2013.
5. On the 27"" December the defence made an application to the Court for disclosure
of Horizon data. Rather surprisingly outside counsel gave an undertaking to the
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court that we would serve the raw data on the defence. Unsurprisingly we have
since received correspondence to the effect that defence solicitors cannot read the
data!!
Later again and due to the judge wishing to see the Second Sight report when
published, outside counsel agreed to a further delay in the trial, now listed to
commence on the 7" October 2013.
Consequently the case is next to return to court on the 7"" October 2013.
Prosecution case
8.
Kim Elizabeth WYLIE was sub-postmaster of the Winlaton Post Office from the
8" February 2003 to the date she was suspended, the 10" September 2010.
At the end of June 2010 Ms Wylie received a letter from POL informing her that
the office would be migrating to Horizon On Line (HOL). On the 9" July 2010, a
date prior to migration, Ms. Wylie reported a £33,142.96 shortage in trading period
4. She could not explain how the shortage had occurred.
. On the appointed date of migration the HOL Advisor, Brian Cordery attended to
confirm the cash on hand figure with the previous evening’s balance. He reported
that, whilst he was physically counting the cash Ms. Wylie reintroduced cash he
had already counted.
. On 10" September 2010 an audit was carried out at the Winlaton sub-post office.
That audit revealed a further deficit in the sum of £5434.93 Of that figure,
£2,630.00 represented the discrepancy in the ATM stock unit. Ms. Wylie was
asked if she could explain this shortage: she responded that she “....must have
declared the wrong figures.”
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12. Ms. Wylie was interviewed about these matters, the interviews being conducted
under the provisions of the Police and Criminal Evidence Act 1984 and the
relevant Codes of Practice. The defendant said:
10'" September shortage - £5434.93
She had not done anything incorrectly; she had always followed the proper
accounting processes and come up with end of day balances.
She could give no explanation for the shortage of the 10" September. She
thought that shortage could be in the £1 coins because she had received a
lot of these. As she had to go out the evening of the shortage she decided to
declare what she thought was there and, because she thought she knew
where the problem was, she would come in early the next morning to
double check it. That was on the 9"" September, the day before the audit.
And because the auditors had arrived at 8.15am on the morning of the 10"
September she hadn’t had time to double check.
As for the ATM stock unit shortage, she was short of notes in the office and
had taken notes from the ATM to use across the counter until an expected
cash-delivery arrived.
TP4 shortage - £33,142.96
Similarly, she was unable to explain the £33,000 shortage. She had found
the shortage at the very start of July.
She had at no point reintroduced cash during the HOL migration process.
The losses were “something to do with the Horizon system...”
Her own research over the internet, through Justice for Sub-postmasters has
shown that there are major problems with Horizon. She had also contacted
her MP.
Prior to TP4 she had “maxed-out” her credit cards. She had £15,000 on
one card; her partner occasionally helps out with money to support the
business; her parents had given her £4,000 in two £2,000 instalments and
she purchased stock from the wholesalers for the shop using another credit
card and a business charge-card.
She is still making a profit but “...it was an awful lot of work for very little
money.”
She was making a profit of about £100 per month. All in all her income
was approximately £3,300 per year as against outgoings of approximately
£4,877.
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— She had never paid any of her bills or money in to her bank account
through the Post Office without putting the cash in.
— She checks her staff’s daily dockets and had never had reason to speak to
them.
13. During the course of her interview Ms. Wylie was asked to provide details of all of
her bank accounts and to permit investigators access thereto. Subsequent inquiries
revealed that she did not identify ALL of her accounts to the interviewing officer.
14. A perusal of the NSBC logs going back as far as 2011 and dealing with calls from
the Winlaton Post Office reveals that calls relating to Horizon defects only appear
after receipt of the Horizon migration letter. Thereafter such calls become
increasingly common
Defence case
15. At As set out in her interview: she had taken no money from POL; she could not
explain the shortages; she had not covered any shortages up having reported the
£33,000 loss when discovered and would have looked for the £5,300 on the
morning of the audit. Accordingly the fault must lie with Horizon.
16. In a Defence Statement dated the 20" August 2012 the defendant said:
— She had never been dishonest;
— She had always properly declared shortages;
— There are faults with the Horizon system;
— She had experience problems with Horizon, including: a phantom log (a
copy of which she attached to her Defence Statement) and missing user
information;
— The system is not “robust” as always described by POL;
— Horizon can be remotely accessed and the figures changed;
— The missing money is “....down to Horizon....and there is in fact no
missing money from the Post office...”
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— Post Office do not want to accept that there are problems with Horizon due
to the cost of the system.
17. On the 28" January 2013 the defence commissioned an expert, a Mr. TURNER, to
consider and report on the Horizon issues raised by the defendant. A copy of Mr.
Turner’s report did not reach us until the 14" February 2013. In essence Mr.
Turner’s report consisted of a lengthy request for the disclosure of a long list of
material relating to the operation and reliability of Horizon, together with material
specific to the Winlaton sub-Post Office. That request has yet to be responded to.
18. In addition the defence has made repeated disclosure requests and we are awaiting
the listing of a further application before the court.
Prosecution response to defence
19.On the 27" November 2012 Gareth JENKINS provided an expert witness
statement in response to the Defence Statement. That statement dealt with the
matters raised by the defence in a single paragraph, the relevant parts of which I
set out here:
“T have been asked to provide a statement in the case of Kim Wylie.....1 am
not aware of the specific allegations regarding missing user information or
phantom logs, and so cannot comment on those. However, I would say that
Horizon has been designed such that it does not break down easily and is
not affected by a singly application failure. Also, Horizon........does hold
up well under exceptional circumstances and is not wholly affected by a
bug in one aspect of it. ....in those cases where there is a failure....amounts
are normally insignificant compared to amounts identified in shortfalls of
cash as found during an audit of a branch.”(GJ emphasis)
20. Thereafter Dr. Jennings’ statement reverted to his usual format, dealing with what
he described as “...further background information” on the Horizon system. The
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statement dealt with the operations capability and function of Horizon; operating
architecture; and the checks and balances built into and conducted by the system.
He concluded that it was his belief that Horizon “...will accurately record all data
that is submitted to it and correctly account for it.”
Discussion
21. In other cases under review it has been said that, in those matters which have not
yet reached the trial stage, the purpose of the review was not to determine the
merits or otherwise of the defence case, particularly in the absence of a Defence
Statement. In this case the situation is different, because the only primary evidence
against the defendant is Horizon-derived. To this extent the Second Sight Interim
report and the Helen Rose report are disclosable to the defence.
22. That primary evidence in support of the prosecution case here is evidence of two
shortages: one reported by the defendant herself and the other revealed by audit.
The prosecution case therefore relies almost entirely on the reliability and accuracy
of the Horizon system. I say “almost entirely” because there is some other
evidence to support the prosecution case, albeit somewhat less cogent than the fact
of the shortages themselves. That additional evidence is:
— Ms. Wylie’s reintroduction of cash into the migration count;
— The coincidence of Ms. Wylie’s report to the helpline after she had
received the migration notice before the migration date;
— Similarly, the suggestion by her that she was aware of the second shortage
on or just before the 9"" September 2012 and had intended to trace it the
following day, and would have done so but for the unexpected attendance
of the auditors on the 10" September 2012.
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— Her apparent failure to identify ALL of her bank accounts when asked to
do so in interview;
— The remarkable appearance of calls to NSBD only after receipt of the
Horizon migration notice.
23. On the basis of this evidence I have concluded that there is still a case to answer
for the defendant. That however is not enough, for we are also required to consider
what the defence case may be, and how it is likely to affect the prospects of
conviction. The finding that there is a realistic prospect of conviction is based on
an objective assessment of the evidence, including the impact of any defence and
any other information upon which Ms. Wylie might rely. In this respect we should
consider whether there are any reasons to question the reliability of the evidence,
including its accuracy or integrity.
24. Here the defence has already questioned the reliability, accuracy or integrity of the
Horizon data, in interview, correspondence, Defence Statement, expert report and
several court applications for disclosure. Upon receipt of this further disclosure, it
is inevitable that the defence expert will ask for more time to consider his final
report. Given the conclusions in the Second Sight Interim report and the Helen
Rose report it is equally inevitable that Mr. Turner will suggest that the Horizon
data relating to the shortages at Winlaton is at best unreliable. He may even
suggest that we cannot rule out the possibility that the fugures are the result of
corrupted data or a big in Horizon. In answer to this we would point to those
matters set out in paragraph 21 above as evidence at least of the proposition that
Ms. Wylie has sought to cover-up unexplained losses.
25. The real difficulty we have however is the absence of any reliable Horizon expert
witness who is able to tell the jury that the Horizon data in this case is in fact
reliable. And that is the weakness in our case, and we cannot overcome that
weakness within the existing timescale, for the court would be most unlikely to
move the trial date third time and into 2014.
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Conclusion
26.
27.
28.
Upon a close and detailed consideration of all of the factors, for and against, in this
case, I find myself driven towards the conclusion that the likelihood of conviction
is substantially diminished by the material contained within the Second Sight
Interim report and the Helen Rose report and the inescapable fact that we are
bound to disclose that material in this case.
That is not to suggest that the defendant is plainly innocent; that would be a
decision for a jury only. However, many guilty people escape conviction because
the prosecution is unable to properly rebut what may in fact be an unmeritorious
defence. And based upon my extensive prosecution and defence experience, I have
formed the view, however unsatisfactory that may be, that in this case we are now
unlikely to secure a conviction.
The decision to continue or terminate this prosecution lies with POL: the
considered opinion of prosecuting solicitors lies with terminating the prosecution.
We arrive at this view primarily because of the decreasing likelihood of conviction,
coupled with the increasing risk further Horizon issues appearing in the public
arena.
Simon Clarke 23° July 2013
Barrister
Cartwright King Solicitors
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