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From: Mark R Davies GRO i
Sent: Tue 23/06/2015 10:51:27 AM (UTC)
To: Rodric William:
Cec: BARTY, Susanf,
J
atrick
Melanie Corfield GRO
i; Reid, Tom GRO i
Jane MacLeod, GRO
Subject: Re: BBC Panorama interview [CMCK-UK.FID8673510] o
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Hi
Emails have gone to Panorama as earlier. We've just spoken again to Panorama editor. He has agreed to go back
and question his team further. We agreed to speak again later today. Will hold on wider activity.
He has agreed in principle that deadline of today for any interview or statement is not likely to be practical.
Best wishes
Mark
Mark Davies
Communications and Corporate Affairs Director
Post Office Ltd
On 23 Jun 2015, at 11:38, Rodric Williams < GRO + wrote:
I think we should ask —I don’t see how we can be confident of addressing their points without it.
From: BARTY, Susan { GRO ]
Sent: 23 June 2015 11:21
To: Rodric Williams; Mark R Davies; Patrick Bourke; Melanie Corfield; Mark Underwood1; Reid, Tom
Cc: Jane MacLeod
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Subject: RE: BBC Panorama interview [CMCK-UK.FID8673510]
Dear all
I think we need to press them on when the programme is due to be broadcast.
Also, do we see any value in seeing their “long series of questions about the details of
each case”? If so, we could say in an email to Matt that, although on individual cases for
reasons of confidentiality we are indeed not able to comment on the individual cases, and
note that they propose to ask us about any points that arise from the case studies that
raise more general concerns about the Post Office's behaviour, but please would they send
us the questions about each of the cases as this will help to ensure that our contribution
addresses the issues which they are raising.
Best wishes
Susan
Susan Barty
Partner
<image002.jpg>
CMS Cameron McKenna LLP I Mitre House, 160 Aldersgate Street I London EC1A 4DD I United Kingdom
www.cms-cmck.com
www.cms-lawnow.com
From 1 July we are moving to Cannon Place, 78 Cannon Street, London EC4N 6AF.
From: Rodric Williams! GRO :
Sent: 23 June 2015 11:12
To: Mark R Davies; BARTY, Susan; Patrick Bourke; Melanie Corfield; Mark Underwood1; Reid, Tom
Cc: Jane MacLeod
Subject: RE: BBC Panorama interview
Thanks Mark - the antagonistic tone leaps off the screen.
In our responses, can we please try to make it clear that we are not responding on the individual cases
because they are being reviewed by the CCRC, the independent public body set up by Parliament to
investigate possible miscarriages of justice in England, Wales and Northern Ireland.
I think this is a stronger point than confidentiality - it’s not appropriate to usurp the CCRC’s process,
which looks at the entirety of the cases, by seeking to litigate them in the media.
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From: Mark R Davies
Sent: 23 June 2015 11:01
To: Susan Barty; Patrick Bourke; Melanie Corfield; Mark Underwood1; Rodric Williams; Tom Reid
Cc: Jane MacLeod
Subject: Fwd: BBC Panorama interview
All
Given below, not least tone, I propose to now speed up planned escalation as follows:
- note to Ceri Thomas to go pre lunch (and to demand name of programme)
- note to BBC execs to follow, copying him, this afternoon
- note and statement to Matt Bardo declining interview - main statement needs immediate
clearance please by 1pm
- legal letter potentially today
They clearly have no interest in the truth or the actual evidence. But if anyone thinks otherwise
please let me know.
Mark
Mark Davies
Communications and Corporate Affairs Director
Post Office Ltd
Begin forwarded message:
From: Matthew Bardo L
Date: 23 June 2015 10:1
To: 'Mark R Davies' 4
+, Conor Spackman
"Ceri Thomas-Radio
Subject: RE: BBC Panorama interview
Hi Mark
I understand from your meeting with Ceri and Karen that you had some concerns
about how we might deal with the individual cases in an interview. As part of our
right to reply process, we have a duty to put to you all of the matters that may be
raised about the Post Office in our programme. It is up to you how you choose to
respond.
If your position is that you cannot comment on individual cases for reasons of
confidentiality, then I see little point in asking a long series of questions about the
details of each case. We can take it as read that your position is that you cannot
comment for reasons of confidentiality. We will, however, ask you about the specific
points raised in my email of 17th June and any points that arise from the case studies
that raise more general concerns about the Post Office's behaviour.
I am pleased to tell you that we have now interviewed Ian Henderson from Second
Sight and we expect his contribution to be included in the programme. I can also tell
you that our legal expert is Professor Mark Button and our computer expert is
Charles Mclachlan. I am afraid I cannot tell you the name of the former Fujitsu
employee. The points that we expect these interviewees to be making in the
programme have all been covered in the earlier correspondence.
We have now been talking about this interview for five weeks. It was originally
planned for 17th June and we agreed to postpone it until today to give you more time
to consider the issues. We currently have our reporter and a camera crew waiting in
the London area to film the interview. We now need to know whether you are going
to go ahead as promised. If you decide against giving an interview, then we would
expect to receive your written statement by the end of the day.
Best wishes
Matt
oa Original Message-
From: Mark R Davies
Sent: 19 June 2015 20:31
To: Matthew Bardo; Conor Spackman
Cc: Melanie Corfield
Subject: RE: BBC Panorama interview
Hi Matt
I can confirm we will get back to you in line with your deadline and I will be in touch
on Monday. I disagree by the way that we are not entitled to question your editorial
decisions, as you seem to suggest. And as you know, all these issues have been
covered in some detail by other BBC journalists.
Please in the meantime could you answer the questions in my email below, and at the
same time provide some actual evidence to support the allegations you plan to
broadcast? Specifically, for fairness and balance:
- who is taking part or contributing in your programme?
- what is their expertise?
- what are the opinions or views they are providing?
- in particular, who is the "computer expert" to whom you refer?
- what is his/her experience of the Horizon system?
- what is the substance of the opinion he/she is providing?
- who is the "forensic accountant" to whom you refer?
- what is his/her area of expertise?
- what is the substance of his/her contribution?
- who are the other interviewees to whom you refer?
T don't wish to repeat myself at length, but insofar as the CCRC is concerned, your
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email suggests the fact that cases have been referred to the CCRC constitutes "new
evidence" of wrongdoing on the Post Office's part. Anyone who has been convicted
of a criminal offence in England, Wales or Northern Ireland can apply to the CCRC,
so such applications are not actually evidence of any wrongdoing or of any
miscarriage of justice. Similarly, any criticism of POL by Second Sight does not
constitute actual evidence of wrongdoing unless, of course, such criticism is
substantiated.
As we said in our response to Second Sight's "Part Two" report, provided by us to
the BBC in April, we will properly engage with the appropriate independent bodies in
the review of any alleged miscarriage of justice. It is however clearly inappropriate
for us to comment on those cases being reviewed by the CCRC until those reviews
have been completed.
I would also reiterate, for the record: you are selectively quoting from a partial
record of a prosecution file over which Post Office continues to assert legal
professional privilege. You will appreciate that it can be seriously misleading to take
a quote out of context. Further, you should be aware that Ms Hamilton has asked
the CCRC to review her case, and it is therefore clearly inappropriate for us to
comment on those cases being reviewed by the CCRC until that review has been
completed.
Best wishes
Mark
From: Matthew Bard
Sent: 19 June 2015 17:28
To: Mark R Davies; Conor Spackman
Ce: Melanie Corfield
Subject: RE: BBC Panorama interview
Dear Mark
Thanks for getting back to me and for sending over some of the facts and figures that
you offered to provide to us when we met for the briefing. Thank you also for the
response to my request for information under the Freedom of Information Act.
Since our initial email of 19 May we have exchanged numerous emails and have
taken the opportunity to meet you for a briefing and to read all the reports that you
have drawn to our attention that lay out the Post Office's position.
We feel we have provided plenty of information to give the Post Office the
opportunity to respond in an interview and indeed have taken the unusual step of
sending over quotations from documentary evidence that support our allegations. We
believe it is clear that you have been afforded a very fair and reasonable opportunity
to respond. We now need to receive your final response by the close of play on
Tuesday 23 June. We hope this will be in the form of the promised interview, but if
that is not possible then please provide a written statement so that we can consider it
for inclusion in the programme.
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The list of interviewees that we have given you is correct. They are the people that
we have interviewed and expect to include in the programme. We are still talking to
other potential interviewees and we will let you know in due course if they are to be
included. I do not think you need to know the identity of our legal expert, our
computer expert or the former Fujitsu employee in order to respond to the matters
we have raised.
I disagree with your suggestion that we have not brought anything new to the story
and I would point out that editorial decisions about the novelty and importance of
information are ours to make and not yours. Nonetheless, I am happy to explain in a
bit more detail why we disagree with your points.
The Criminal Cases Review Commission has accepted applications from twenty
subpostmasters and is investigating them. Six of those cases involve subpostmasters
who have been jailed. This information is a few months old and while it does not, of
course, equate to proof of a miscarriage of justice, it is a development that warrants
further investigation. Since it often takes several months to make a Panorama
programme, that is a recent development that falls well within the normal time-frame
of a current affairs investigation.
This is the first time that a team of BBC investigative journalists have scrutinised
Second Sight's final report in detail. The questions that we are raising about its
contents have not been covered before. So, for example, while you are correct to say
that the information about the extracts of the minuted meeting between Fujitsu and
Post Office were contained in the Second Sight report, it is not information that has
been reported in the context of the Seema Misra trial. That context raises important
issues about a potential miscarriage of justice that are in the public interest for us to
investigate.
The evidence that we have provided about Jo Hamilton's case is entirely new. We
note that to date you have failed to address the substance of what is contained in the
quoted extracts of Jo Hamilton's prosecution files.
These are, as you recognise, serious allegations about the actions of a publicly owned
company and how it has conducted itself at the highest levels. That is why we would
prefer an interview with the Chief Executive because she is the person with clear
responsibility for all of the areas that we wish to discuss. While you have suggested
that we interview another senior figure, you have not ruled out an interview with
Paula Vennells and we now need to know how you will provide your final response.
If that will be by way of interview, I would be grateful if you would confirm who the
interviewee will be.
Please let us know today about Tuesday so that we can make the necessary
arrangements.
All the best
Matt
-Original Message-:
From: Mark R Davies I
Sent: 18 June 2015 19:35
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To: Matthew Bardo; Conor Spackman
Cc: Melanie Corfield
Subject: RE: BBC Panorama interview
Dear Matt
Thanks for your email.
On your first point, you say:
"I am afraid I do not agree that there is nothing new in the story that we are
covering. In the past few months there have been a number of significant
developments. Among them are the release of Second Sight's final report that
includes criticism of the Post Office by its own investigators, the acceptance of
twenty cases for consideration by the Criminal Cases Review Commission and the
information obtained as a result of our investigation. I think we are scrutinising new
evidence that raises important questions about the way the Post Office has behaved."
Most of the points raised above have been covered by the BBC, most recently on the
Today programme and BBC Breakfast, but also at length by your colleagues at
Inside Out and the One Show. The CCRC point has also been covered by other
media.
Insofar as the CCRC is concerned, your email suggests the fact that cases have been
referred to the CCRC constitutes "new evidence" of wrongdoing on the Post Office's
part. Anyone who has been convicted of a criminal offence in England, Wales or
Northern Ireland can apply to the CCRC, so such applications are not actually
evidence of any wrongdoing or of any miscarriage of justice. Similarly, any criticism
of POL by Second Sight does not constitute actual evidence of wrongdoing unless,
of course, such criticism is substantiated.
As we said in our response to Second Sight's "Part Two" report, provided by us to
the BBC in April, we will properly engage with the appropriate independent bodies in
the review of any alleged miscarriage of justice. It is however clearly inappropriate
for us to comment on those cases being reviewed by the CCRC until those reviews
have been completed.
In respect of your suggestion that the "new evidence" also comprises "information
obtained as a result of our investigation", we would again request that you provide us
with details of such evidence so that we may be given a fair and reasonable
opportunity to consider and respond to the evidence which is being used in support
of some very serious allegations.
Turning to your other three substantive points, I quote below your comments and
our response.
1. 'We have read extracts of minutes of a joint Fujitsu/Post Office meeting at which a
bug was discussed. We obtained these extracts from the Second Sight final report
and we understand that this meeting took place in autumn 2010. The minutes of the
meeting state that this bug could impact "ongoing legal cases where branches are
disputing the integrity of Horizon Data."
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As you say, this is in the Second Sight report which we shared with media who had
shown an interest in the story. This is not a new point, nor does it constitute "new
evidence". Indeed, it is exactly this point which we disclosed ourselves to Second
Sight, which was considered in their 2013 report and which has been covered in
detail by the BBC in the past. We would refer you to the following link:
http://www. bbe.co.uk/news/uk-23233573 As you acknowledged yourself, no
computer system is infallible. This issue does not change the underlying position:
Horizon works as it should to record branch transactions accurately and no-one,
including Second Sight, has provided any actual evidence that suggests it did not in
the cases examined.
2. 'We have interviewed a former employee at Fujitsu, who worked in "third line
support" for the Horizon system. He says it was possible to remotely access data held
on branch terminals and to amend that data. He also alleges that system errors were
more widespread than has previously been reported."
We explained in detail the circumstances whereby a balancing transaction can be
added. It has happened once since Horizon OnLine, during its pilot, and with the full
knowledge of the postmaster. In relation to system errors, as stated before, no system
is infallible. However, you have not provided any actual evidence to demonstrate that
any system error has resulted in a miscarriage of justice. To the extent that you
believe that you have any actual evidence to substantiate this serious allegation, we
would ask that you disclose it. If you are proposing to make this allegation, please
consider that some 70,000 people have continued to use this system every day
throughout the period of Second Sight's investigation without major incident,
processing six million transactions everyday: if there were systemic problems with
branch accounting, it is reasonable to expect them to have been more widely
experienced across the Post Office network than the 136 individual complaints
considered by Second Sight, which arose over a more than 10 year period during
which there were some 500,000 Horizon users (i.e. the complaints come from
0.0003% of users). However, if you have actual evidence of the Horizon system
causing losses, it is very important that you produce it: the system is relied upon by
millions of customers and thousands of small businesses. Any unsubstantiated
allegation that the system is deficient is a serious allegation that would be extremely
harmful to our business.
3. "We have also obtained extracts from Jo Hamilton's prosecution files. One extract
includes comments made on 16th November 2007 by the Principal Lawyer of the
Criminal Law Division of Royal Mail working on Jo Hamilton's case. The lawyer
wrote that when it comes to asset recovery, "the theft charge makes life so much
easier". Another extract is from the Post Office investigator's report into Ms
Hamilton's case. On 17 May 2006 the Post Office Investigator reported "I was unable
to find any evidence of theft or that the cash figures had been deliberately inflated"."
You are selectively quoting from a partial record of a prosecution file over which
Post Office continues to assert legal professional privilege. You will appreciate that it
can be seriously misleading to take a quote out of context. Further, you should be
aware that Ms Hamilton has asked the CCRC to review her case, and it is therefore
clearly inappropriate for us to comment on those cases being reviewed by the CCRC
until that review has been completed.
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IT would also like to cover with you the information that you asked for in the briefing
last week that we did not have immediately to hand.
Number of criminal cases: There were 150 applications to the scheme, of which 37
involve the conviction of a postmaster. As we stressed, each and every one of such
cases is considered on all the available facts and circumstances before a decision is
taken regarding whether or not it should be put forward to mediation (which, it must
be remembered, cannot reverse or overturn any criminal conviction - only the
Criminal Courts have that power).
Evidence required to bring false accounting and/ or theft charges:
Whether there is sufficient evidence to bring a charge is, naturally, determined by the
particular facts in issue in each specific case. In deciding whether a specific case is
suitable for prosecution, the Post Office considers (among other factors) whether it
meets the tests set out in the Code for Crown Prosecutors. The Code requires
prosecutors to be satisfied that there is sufficient evidence for a realistic prospect of
conviction and that the prosecution is in the public interest. The Code is issued by the
Director of Public Prosecutions and followed by Crown Prosecutors. Like the Crown
Prosecution Service (CPS), the Post Office keeps cases under continuous review all
the way up to and during any trial.
A charge will not therefore be brought if the prosecutor does not believe there is
sufficient evidence for a realistic prospect of conviction on that charge. In cases
where an audit discloses a loss in circumstances where there is evidence of false
accounting, the fact of the loss together with the false entries will often be regarded
as sufficient evidence on which to base a charge of theft.
The sufficiency of the evidence to support a charge is also scrutinised by the
defendant's lawyers.
Once a decision has been made to prosecute - i.e. the Post Office is satisfied as a
prosecutor that there is sufficient evidence for a realistic prospect of conviction on
each charge and that the prosecution is in the public interest - and a defendant is
charged, he or she is entitled to receive private and confidential legal advice. Should
the defendant wish to dispute the charges, the Post Office has a duty to disclose to
the defendant and his or her lawyers, any material that could assist the defence or
undermine the prosecution. The defendant's lawyers can also ask the Post Office to
produce any material which they believe the Post Office may hold which could assist
the defence or undermine the prosecution
The Post Office is duty bound to communicate with a defendant's lawyers, and any
decision by a defendant to plead guilty is made after he or she has had the
opportunity to consider the evidence and take private and confidential legal advice
from lawyers.
Every person charged with a criminal offence is entitled to independent legal advice
and representation. Further, Legal Aid may be available to any defendant where the
offence carries a risk of imprisonment (as do the charges typically levelled by the
Post Office):
- Any decision to plead guilty is always one for the defendant only, having taken
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advice from his or her own lawyer.
- When deciding to plead guilty, the defendant will have been advised by his or her
own lawyer that a guilty plea represents a complete admission to having committed
the offence (which the defendant can qualify by a written 'basis of plea’) and, where
the offence is one of dishonesty (theft, false accounting, fraud), to that dishonest act.
This is advice a defence lawyer is duty bound to give.
- The initial suggestion that a defendant pleads guilty will come from the defendant's
lawyers, usually motivated by the defendant's instructions that they are guilty of that
offence.
Finally, it is the duty of a defence lawyer to identify to the Court where there is
insufficient evidence to sustain a charge, or to seek further information from the Post
Office which might assist a defendant's case.
Review of criminal cases:
The Post Office takes seriously its continuing duty of disclosure in criminal law
proceedings. Accordingly, material generated by Second Sight and through the
Mediation Scheme has been (and continues to be) provided to an external firm of
specialist criminal law solicitors to review to enable the Post Office to continue to
comply with that duty.
‘Issues’ log:
As you would expect for any large computer system, there are logs for Horizon that
monitor, track and capture issues for the entire system. These are part of many ways
of ensuring the robustness of the Horizon system and that it meets or exceeds the
standards necessary for industry accreditations and independent audits.
The Horizon system, and the Core Audit Process in particular, is designed to capture
transaction data and store it in a secure audit database, with a unique reference
identifier, so that it provides a master record of what transactions occurred. It is this
master record that is used to definitively determine whether an issue with the system
has arisen. It is these processes, alongside the Issues logs, that are used to closely
monitor and record any issues with the system. This all then ensures that Horizon
works as it should to accurately record all branch transactions, as it has been found to
do in the cases examined through the mediation scheme.
Mediation numbers and outcomes: I understand that Mel has sent you the letter from
CEDR that we published as part of our March 2015 report. As we explained, we
cannot discuss outcomes because these are subject to confidentiality, which is a core
principle common to all mediations.
I would again make the point that the allegations you are putting to us have been
repeatedly made previously and, where we have been able to do so without breaching
the confidentiality of people, we have answered them extensively. We have also,
throughout, offered individual meetings, in confidence, with any person in the
mediation scheme and their MP to discuss their cases with them. This has not been
widely taken up, whilst unsubstantiated claims continue to be made to the media.
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You have referred in your email to other contributors to the programme but without
giving further details which, for fairness and balance, I would expect you to do so
that we understand the views that will be represented in a programme to which we
are significantly contributing. I would therefore ask that you let me know precisely
who is taking part or contributing, what their expertise is and the opinions or views
they are providing. In particular, who is the "computer expert" to whom you refer,
what is his/her experience of the Horizon system and what is the substance of the
opinion he/she is providing? Similarly, who is the "forensic accountant" to whom you
refer, what is his/her area of expertise and what is the substance of his/her
contribution?
T hope this helps.
Best wishes
Mark
Sent: 17 June 2015 19:41
To: Mark R Davies; Conor Spackman
Cc: Melanie Corfield
Subject: RE: BBC Panorama interview
Hi Mark
Thank you for getting back to me.
Tam afraid I do not agree that there is nothing new in the story that we are covering.
In the past few months there have been a number of significant developments.
Among them are the release of Second Sight's final report that includes criticism of
the Post Office by its own investigators, the acceptance of twenty cases for
consideration by the Criminal Cases Review Commission and the information
obtained as a result of our investigation. I think we are scrutinising new evidence
that raises important questions about the way the Post Office has behaved.
The purpose of the briefing that you kindly arranged was for you to brief us on the
background to our key lines of enquiry. It was made clear beforehand that we would
not be briefing you about our research. The briefing has informed the allegations that
we emailed to you on Friday and it will help us to report your position fairly and
accurately on the areas that will be covered by the programme. It is now the purpose
of the interview for us to put our questions and allegations to the Post Office in order
to obtain a filmed response for broadcast.
As a former BBC journalist, you may remember that we do not tell people in advance
what questions will be asked in an interview. This helps maintain our editorial
independence. We normally provide interviewees with question areas and sufficient
information to enable them to understand any allegations that might be put to them.
In this case, I believe we have done that.
We do not normally share the evidence that supports our allegations. However, I
accept that in this case there are a lot of detailed and complex points. We want the
interviewee to have a full and fair opportunity to answer questions that relate to
decision-making at the highest level of the organisation.
Therefore, we are willing to share the following key pieces of evidence so that you
are in a better position to respond:
We have read extracts of minutes of a joint Fujitsu/Post Office meeting at which a
bug was discussed. We obtained these extracts from the Second Sight final report
and we understand that this meeting took place in autumn 2010. The minutes of the
meeting state that this bug could impact "ongoing legal cases where branches are
disputing the integrity of Horizon Data."
We have interviewed a former employee at Fujitsu, who worked in "third line
support" for the Horizon system. He says it was possible to remotely access data held
on branch terminals and to amend that data. He also alleges that system errors were
more widespread than has previously been reported.
We have also obtained extracts from Jo Hamilton's prosecution files. One extract
includes comments made on 16th November 2007 by the Principal Lawyer of the
Criminal Law Division of Royal Mail working on Jo Hamilton's case. The lawyer
wrote that when it comes to asset recovery, "the theft charge makes life so much
easier". Another extract is from the Post Office investigator's report into Ms
Hamilton's case. On 17 May 2006 the Post Office Investigator reported "I was unable
to find any evidence of theft or that the cash figures had been deliberately inflated".
We can also tell you that in the programme we currently expect to include interviews
with Jo Hamilton, Seema Misra, Noel Thomas, James Arbuthnot, a computer expert,
a forensic accountant and a former Fujitsu employee.
Tam keen to confirm a date on which we can film the interview. You have mentioned
that diary pressures mean that next week is now the earliest that this could be done.
If we could make it early in the week, that will help us to consider the points raised
and ensure that they are reflected fairly throughout the programme. We have to finish
the edit by next Friday in order to have the programme ready for broadcast.
Please do also send over the information that you said you would provide to Tim and
me when we attended the briefing.
Thanks for your help.
Matt
Sent: 16 June 2015 10:34
To: Matthew Bardo; Conor Spackman
Ce: Melanie Corfield
Subject: RE: BBC Panorama interview
Dear Conor and Matt
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Many thanks for your email of late Friday afternoon and for the further detail it
provides in terms of the ground you appear to wish to cover in your programme, and
for Matt's follow up. My apologies for getting back to you slightly later than I had
planned.
As you know, I remain puzzled and concerned that the BBC did not see fit to raise
the majority of these issues and the very serious allegations within them with us when
we met your colleagues at our offices last Tuesday.
In your email, you say that you have evidence for the propositions you advance but,
to date, no-one engaged in the making of the programme (nor, indeed, of other BBC
programmes featuring this issue) has actually provided that evidence to us.
Accordingly, and once again, I would ask that you provide us with any evidence you
have to support the allegations you make, the list of contributors, what they are
saying and what they have been asked to comment on, so that we might be in a
position to respond to it appropriately as we are entitled to do.
The general thrust of what you say is not new. Claims of a similar nature have been
levelled at us before but no one has ever been able to provide us with any actual
evidence to support them. For the avoidance of doubt, the Post Office has been
guided in all that it has done in relation to the cases you cite, and indeed all
complaints made of a similar nature, by the individual circumstances which each
presents and the actual evidence of what, in fact, took place. You will understand
that it would be entirely inappropriate for the Post Office, or indeed any other
organisation, to be guided in its actions by anything which does not carry this
essential quality of substantiation, particularly when the allegations being raised with
us are so serious.
What you have so far presented us with is, in essence, a repetition of various
assertions and allegations made to us in the course of this process, each of which has
been thoroughly re-investigated by both ourselves and Second Sight and repeatedly
addressed over a period now stretching back some 3 years. As you are aware, the
Criminal Cases Review Commission (CCRC) is also examining a number of cases
(they having been referred to them) and the Post Office is co-operating fully with the
Commission in that process. In the circumstances, the Post Office believes that where
there has been any critical finding such an investigation by the CCRC is the
appropriate route to determine many of the issues raised.
As we made clear in the lengthy session we had with your colleagues last Tuesday,
we are not prepared to engage in a public debate about individual cases. We gave
each applicant to the scheme an assurance that we would afford them absolute
confidentiality in the handling of their complaint. This was also the agreement
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reached with the Justice for Subpostmasters Alliance, Second Sight and others
involved in the establishment of the scheme, and was appropriate given that the cases
often raise matters of a highly sensitive personal nature for Applicants; and we have
responded to each of the points raised in full: we have done so directly with each
individual with a case in the scheme and with Second Sight.
It follows that I will not be addressing each and every point raised in your email.
However, I am happy to respond more thematically as follows:
Prosecutions
* The Post Office does not prosecute subpostmasters for making mistakes - on
the contrary, it has on occasion done so when there is sufficient evidence for a
realistic prospect of conviction and where it is in the public interest to take that
prosecution forward
* Post Office complies with the Prosecutors' Code of Practice which sets out
this requirement
* Decisions as to how to plead to a charge are taken by those individuals and
their independent legal advisers only, informed by their own independent legal
advisers
* It is a matter of public record that none of the individuals whose cases you
have chosen to highlight with us has appealed their conviction - an option which
remains open to them
* The Post Office as prosecutor has a continuing duty to disclose any
information which may assist the defence even if it undermines the prosecution case;
the Post Office has complied and continues to comply with that duty
Horizon
* Over the last 3 years, and across all the complaints we have received and
comprehensively re-investigated, there is no evidence to show that Horizon was
responsible for the losses incurred in the relevant branches
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* Post Office cannot edit, amend or otherwise alter branch data remotely; it can
add a transaction to a branch account - this is, naturally, subject to rigorous
authorisation protocols and carries a unique identifier code rendering it immediately
distinguishable from any other transaction
* Post Office volunteered this information to Second Sight in 2013 and again
made it clear in its response to Second Sight's final report in April of this year
* This process has only been used in this way on one single occasion since the
introduction of Horizon OnLine, during pilot testing work and this was done with the
full knowledge and indeed co-operation with the relevant subpostmaster
Second Sight
* We have provided Second Sight (which has acknowledged it is not expert in
matters of criminal law or procedure) with a very significant amount of information
over the course of the last 3 years including all non-legally privileged materials
relating to prosecutions. It is a basic tenet of our justice system that discussions
between a client and his or her lawyer are privileged from disclosure, even to a
Court, and this applies equally to the advice a defendant receives, e.g. as to how to
plead guilty to a charge and with what consequence
* A number of applications to the CCRC have been made by individuals with
cases in the scheme (note these should not be confused with appeals) and the CCRC
will review all the relevant material including all legally privileged material
* This provides an absolute assurance to those individuals that all aspects of
their prosecution and conviction will be looked at by an independent body
As I hope to have made clear, whatever theories have been advanced in relation to
the Horizon system, no one has shown it to be responsible for any of the losses
incurred in the relevant branches. Even Second Sight acknowledged that human
actions are the most common explanation. I would again stress the importance we
attach to seeing the evidence which supports any allegations that you are proposing
to make and I look forward to receiving your reply in this regard. I also look forward
to receiving the list of contributors, what they are saying and what they have been
asked to comment on.
We will of course continue to engage with you on any subject or question. I am
concerned, however, at the direction the programme appears to be taking [outlined
very clearly in Conor's email]. Given the BBC's previous coverage of this issue and
the apparent direction of the Panorama programme [which does not appear to be
taking the issue forward] I wanted to inform you that I will be making
representations more widely within the BBC.
In relation to the timing of an interview, any interview would need to take place next
week because of diary pressures and the rescheduling of your broadcast to 29 June.
In the meantime, I am sending Matt Bardo and Tim Robinson the information which
we did not have immediately to hand when they came to see us last week.
Best wishes
Mark
From: Matthew Bardo I
Sent: 12 June 2015 20:06
To: Mark R Davies; Conor Spackman
Cc: Melanie Corfield
Subject: RE: BBC Panorama interview
Hi Mark
Thanks for coming back to us so swiftly.
On the issue of theft charges being used to pressure sub-postmasters to plead guilty,
you will be aware that this allegation is repeatedly raised in Second Sight's reports
and our evidence is drawn from their written investigative findings.
We made clear ahead of the briefing that its purpose was for the Post Office to brief
us and not for us to brief the Post Office about our research. The contents of the
briefing were very helpful and will help us to represent fairly and accurately the Post
Office's position on the things we discussed.
On the subject of the date of the interview, we are very keen to record it next week
as that will give us sufficient time to consider the points raised and to ensure that they
are reflected fairly throughout the programme. Would it help if we were to move the
interview to Thursday or Friday of next week instead?
All the best
Matt
From: Mark R Davie
Sent: 12 June 2015 17:25
To: Conor Spackman
Cc: Matthew Bardo; Melanie Corfield
Subject: Re: BBC Panorama interview
Dear Conor
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Many thanks for this.
We will of course come back to you in more detail next week but for the time being I
make the following points:
- you make below some extremely serious allegations about the Post Office. I am
gravely concerned that you make these three days after we sat with your team for
two hours. I am at a loss to understand why these very specific and serious
allegations could not have been raised at the briefing.
- you informed us earlier in the week that your programme schedule has changed and
you plan to broadcast on June 29. Given that, diary pressures and the scale and
seriousness of the allegations you are making, we will look to arrange the proposed
interview in the week of the 22nd. This remains in line with your proposed schedule
had your programme been due to broadcast on June 22.
- you quote evidence to suggest the Post Office may have unfairly used theft charges
to put pressure on SubPostmasters. Please as a matter of urgency provide some
evidence for that very serious allegation.
Best wishes
Mark
Mark Davies
Communications and Corporate Affairs Director
, Conor Spackman
ear Mark,
Firstly, I would like to thank you for the time you and your colleagues spent with
Matthew Bardo and Tim Robinson on Tuesday. It was very helpful to be able to
discuss this subject in detail with the relevant people.
Since we last wrote to the Post Office, our research has continued and I am now able
to give you more information about the points that are likely to be raised in the
programme.
Our evidence suggests that the Post Office may have unfairly used theft charges to
put pressure on sub-postmasters to plead guilty to false accounting and/or repay
apparent losses identified by the Horizon computer system. The evidence also
suggests that the Post Office failed to consider or investigate the possibility that
Horizon could be the cause of some of the losses. As you know, it has been
suggested that these failings may have led to miscarriages of justice in some cases.
Having read reports written by Second Sight and Post Office responses to them, we
wish to address the following question areas in an interview. They are broken down
below under the subject matter to which they relate:
Jo Hamilton
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- the decision to charge Jo Hamilton with theft
- why Ms Hamilton's office was ?2000 down on the Horizon system and why
this doubled to 24000 when she followed the instructions from the help desk
- her claim that she sought help and the Post Office failed to provide it
- her explanation that she subsequently felt trapped and did not know what to
do other than sign off inaccurate accounts
Noel Thomas
- Mr Thomas's claim that that he told the helpline about his problems with the
system and about the missing money
- the suggestion that it is no longer possible to know the results of important
tests carried out on Mr Thomas' system because those records have now been lost or
destroyed
- the suggestion that Mr Thomas was poorly treated after 42 years of loyal
service
- that the Post Office now believes that the cause of the shortfall in Mr Thomas’
branch is likely to have been mistakes by him or his staff
Seema Misra
- Ms Misra's claim that she and her staff were not provided with adequate help
despite making more than 900 calls to the helpline
- the suggestion that the Post Office failed to disclose crucial information
during Ms Misra's trial including technical information about Horizon to the defence's
expert witness
- that the Post Office and Fujitsu had identified bugs in Horizon prior to Ms
Misra's trial that were not disclosed to the defence
- the suggestion that this information could have helped Seema and other sub-
postmasters stay out of prison
Post Office investigations and prosecutions
- the suggestion that the Post Office has a financial interest in prosecuting sub-
postmasters because it helps with the recovery of missing money
- particularly in that context, the suggestion that miscarriages of justice are
more likely because the Post Office exercises both the power of investigation and
prosecution
- the suggestion that the Post Office has unfairly pursued theft charges to
pressure people into paying up
- the claim by numerous sub-postmasters that they were told by Post Office
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investigators they were the only ones having problems with the Horizon system
Horizon system
- the suggestion that the complexity of the Horizon system adds to the
likelihood of errors
- the suggestion that the lack of an automatic paper record from the Horizon
system adds to the likelihood of errors
- the suggestion that Post Office prosecutions relied on the belief that the
computer system was robust, when in fact computer errors may call this into question
- the suggestion that bugs in Horizon were more widespread than Second Sight
have found
- the suggestion that there were around 30 people working in "third line
support" at Fujitsu and that they fixed dozens of system errors
- the suggestion that errors were fixed by a team who could access transaction
data, add transactions or make changes to transactions that would affect the balance
in branch, without the sub-postmasters knowledge
Second Sight investigation and select committee in parliament
- Second Sight's claim that their work has been hampered by an increasing lack
of co-operation
- Second Sight's understanding that this is the result of legal advice
- Second Sight's claim that the Post Office has failed to provide full access to
legal and prosecution files
- The apparent failure of the Post Office to provide Second Sight with emails
relating to the eyewitness account of an incident in Bracknell in 2008
- Second Sight's evidence that remote access to branch data is possible in spite
of Post Office denials
Please could you let us know the time that you have scheduled on Wednesday 17
June for the interview? I would be grateful if we could arrive about an hour before
the interview begins in order to set up. It usually takes about half an hour to pack
the kit away again after we have finished filming.
Thanks for your help.
Conor
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