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POST OFFICE LTD
ADVICE
We are asked to suggest the text of a letter to Sir Anthony Hooper setting out why
POL feels unable to agree that convicted applicants, or those convicted of false
accounting, ought to be admitted into the mediation process.
So that it is clear, we see no difference at all between those convicted of false
accounting and those convicted of theft or fraud and we do not accept Sir Anthony
Hooper’s apparent distinction between offences of false accounting on the one hand,
and theft or fraud on the other. All are offences which entail the commission of specific
acts of dishonestly and all are (in this context) offences committed against POL and
POL’s assets. For Sir Anthony to suggest that, because an offence of false accounting
could have been founded upon a pre-existing but unidentified Horizon fault such that
the culpability of the offender is reduced because there may be no real loss, takes
matters no further and indeed misses the point. False accounting is charged where, by
reason of the false accounting trail created by the offence, it is impossible to quantify
the actual loss if indeed there be one. The same is true of fraud and the only difference
here between those two offences and theft is that, in those offences the real loss is
(usually) quantifiable and certainly provable.
Further, we draw no distinction between those convicted by guilty plea and after trial,
and those cautioned for an offence where the caution represents (as it must) an
admission to the misconduct complained of.
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4. We propose the following:
“It is POL’s considered view that no Applicant who has admitted, or been convicted of,
a criminal offence committed against POL, should be allowed to progress to a
mediation hearing. We are concerned that to admit such an Applicant to a hearing
would be to both send the wrong message to Applicants and others and to expose POL
to unacceptable risk.
We are already concerned that the very fact of entry into the Scheme may have been
taken as an indication that POL is at least prepared to concede that the prosecution may
have been misconceived. We are unable to make such a concession, not least because
we would not wish to engender in an Applicant any false hope or expectation that such
a concession is made, or that entry into the Scheme may yield some positive result
where none is possible. That expectation may extend beyond the Mediation process and
engender a false hope that a successful appeal against conviction might follow — I
would point out that in every case the available evidence has been considered and
nothing has been identified which could be said to render the conviction unsafe.
We are also concerned that, by permitting the hearing of one convicted Applicant’s
case, we may be setting a precedent which others would wish to follow, where
necessarily they could not. This is particularly true of those charged with fraud as
opposed to false accounting — in many cases the facts were similar, cash was being
declared as being on the premises when it was not.
We are further troubled by the possible implications which may arise once an Applicant
has had his or her hearing. We consider that there emerges a clear potential for the
launching of appeal proceedings in circumstances where there should be none. The
suggestion that the identification of some fault or root cause in the Horizon system in
order to determine liability for an underlying loss might permit a mediated settlement
with those convicted of false accounting outside of, or exclusive from, the criminal
legal process is in our view plainly misconceived. No proper distinction may be drawn
between those convicted of false accounting and other offences and no convicted
person may be properly prevented from applying to appeal against a conviction by any
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confidentiality or “without prejudice” clause in a mediation or arbitration scheme — the
sanctity of the criminal process is, at least in that sense, absolute.
The suggestion that a distinction may be drawn between offences of fraud, false
accounting and theft for these purposes is a wholly artificial distinction, for all are
offences of dishonesty, committed against POL and in circumstances where financial
probity and honesty are essential prerequisites. The only real difference lies in the
prosecutor’s ability or otherwise to prove an identifiable loss; in cases of fraud and false
accounting such a loss is often unidentifiable, usually by reason of the very false
accounting or fraud complained of, because those acts themselves make it impossible to
establish any meaningful audit trail.
In any event, in order to attempt an outcome whereby a mediated settlement, based
upon an assertion of some identified root cause within Horizon, POL would have to re-
examine in each Application POL’s case at court, any mitigation advanced on the
applicant’s behalf and the sentence imposed. Further, any ancillary orders (e.g.
compensation; confiscation) would also have to be subject to the same detailed
reconsideration. There exist a number of substantial constraints to this process, both by
reason of the ages of some cases and the consequent limited availability of information
and papers. Further complications arise because a number of applications contain, at
best, significant misrepresentations as to law and asserted fact, and in some cases,
manifest lies. Finally on this point, the logistics and expenditure required to complete
such an exercise would be not inconsiderable and clearly outweigh any possible benefit,
which we do not in any event consider there to be.
In terms of likely appeals arising out of a Mediation settlement, we are of the firm view
that such an exercise would be an exercise in futility, for as you will be aware, the
Court of Appeal are concerned only with whether, upon all the evidence presented, a
conviction may be safe. Evidence of a guilty plea, tendered by a defendant with the
benefit of legal advice and in full knowledge of the consequences, would be clear
evidence of guilt notwithstanding that there may have been an unidentified Horizon
fault.
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There are in our view further reason for not admitting criminal Applicants to progress
to mediation hearings, all of which weigh heavily upon POL. The potential for adverse
publicity, generated by the mediating of criminal Applications and particularly where
some concession, agreement or payment is made by POL, is inestimable. Similarly, a
settlement which granted some concession in one case might well give rise to a
substantial assessment and disclosure exercise in relation to other (mediation and non-
mediation) cases prosecuted by POL (and before them, the Royal Mail Group), for as
prosecutors, POL’s disclosure duties within the criminal law arena are manifest and
clear.
Returning for the moment to the apparent distinction between false accounting on the
one hand and fraud and theft on the other, given the nature of those offences and the
obvious similarities in factual basis’ of some cases, it would be difficult if not impossible
to justify the admission to hearing of only one type of offender to the exclusion of
others. [Query whether this might give rise to grounds for Judicial Review?] In any
event, the argument, false hope and adverse publicity likely to be generated by such an
approach, not least from JFSA, Parliament and the media cannot in our view justify this
false distinction.
Having considered these matters at some length we have come to the conclusion that
we should not permit any criminal applicants to go forward to mediation hearings. That
is not to say however that no alternative approach is available. We have considered
whether an alternative process may hold some benefit to all concerned and have
concluded that a process involving the holding of a face-to-face meeting with the
criminal applicant, so as to permit POL to explain their findings in circumstances where
it is made clear that no compromise is being offered, may well achieve a just resolution
Such a process involves no false expectation yet still gives the Applicant the
opportunity to air their grievances in a formal setting, to receive a considered response
to that grievance and thereby to achieve a degree of ‘closure’.
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We therefore commend the approach outlined immediately above as the best method of
achieving a just and equitable outcome for all concerned, without engendering any false
hope and the launching of misconceived appeals.”
sc. 19 December
2014