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Mr Frazer Stuart
Criminal Cases Review Commission
5 St Philip's Place
Birmingham
B3 2PW
Date: 11 February 2015
Dear Mr Stuart
Criminal Cases Review Commission (“Commission”)
Horizon Computer System - Requirement to Produce Materials
I write in response to your letter dated 14 January 2015, acknowledged by our
letter dated 20 January 2015, and your subsequent telephone call to us on 27
January 2015. I have now had the opportunity to consider more fully your
letter and notice issued under Section 17 of the Criminal Appeal Act 1995
(CAA).
In your letter you state that “the Commission ... is now considering the
situation regarding the Horizon system, and the associated criminal
proceedings” and that it “requires Post Office to identify all documents relating
to this matter and produce them". Your letter and notice then specifically
request "a copy of Brian Altman QC’s report; either an updated summary of
the decisions and actions taken by the Post Office as a result of Brian Altman
QC’s report or copies of the documents recording those decisions and actions;
[and] the preservation of any materials associated with affected cases.”
Background
We trust you will appreciate that the request you make is (with respect) wide
and in the most general of terms, notwithstanding the specific request for
Brian Altman QC’s report. I have therefore reviewed the previous
correspondence Post Office Limited (POL) has exchanged with the
Commission’s Director of Casework Operations, Mrs Sally Berlin, in order to
try to better understand the scope of your request. I summarise that
correspondence as follows:
- The Commission wrote to POL on 12 July 2013 following media
coverage on the Horizon computer system generated by a report
published on 8 July 2013 by Second Sight Support Services Limited
(Second Sight Report);
- The Commission sought information from POL about criminal
convictions that might be “impacted by the [Horizon] issue” and the
actions POL would be taking;
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- The Commission noted that its role was “/ikely to relate to anyone who
is convicted of a criminal offence (in England, Wales or Northern
Ireland), where evidence from the computer system is relevant, where
(i) they have already tried to appeal against that conviction or (ii) they
were convicted at Magistrate’s Court following a guilty plea.”
- POL responded on 26 July 2013 saying that we had instructed Brian
Altman QC to advise POL on its “strategy and processes for reviewing
past/current prosecutions", and also instructed external specialist
criminal solicitors to review individual cases.
- On 30 July 2013, Mrs Berlin acknowledged the steps POL was taking,
adding that the Commission had “not identified any cases (past or
present) in [its] system that might be affected by any issue with the
Horizon system", although “that could change once [it knows] more
about the issue.”
- Mrs Berlin sought an update in an email dated 16 May 2014, to which
POL replied on 5 June 2014 summarising the review process undertaken
and consequential actions, and noted that it had not received any
application for permission to appeal to the Court of Appeal since the
publication of the Second Sight Report.
We are of course also aware that the scheme set up by POL to investigate
individual complaints about Horizon was the subject of media and political
activity shortly before your most recent letter, and indeed continues to be the
subject of public debate. That scheme was set up as a separate and distinct
response to the Second Sight Report, and even though some of the scheme
applicants have criminal convictions, it operates independently of Mr Altman
QC’s review of POL’s strategy and process for reviewing criminal prosecutions.
POL's Position
Having considered the position more fully against this background, I am
unfortunately currently unable to see how the request you make fits within the
guidance contained in paragraphs 4-6 (inclusive) of the Commission's "Formal
Memorandum - the Commission's power to obtain material from public bodies
under S17 of the Criminal Appeal Act 1995" (enclosed),
This is especially so given that Mr Altman QC’s report does not address
individual cases, but rather POL’s strategy and process for reviewing past and
current prosecutions generally. For the sake of completeness, POL continues
to assert that legal professional privilege attaches to Mr Altman QC’s report,
while remaining aware of its duty to comply with the Commission’s exercise of
its powers under S. 17 CAA.
Further, the position on individual cases remains that in respect of the cases
which it has prosecuted, POL has not been made aware, since the publication
of the Second Sight Report, of any applications having been made for leave to
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appeal against conviction or sentence in the Crown Court, or of any application
to appeal to the Crown Court any Magistrates’ Court conviction or sentence.’
That said, I wish to emphasise that POL wants to and will work with you in this
matter, and will comply with any statutory requirement with which it has a
legal obligation to comply. Accordingly, so that we can progress responding to
the requests in the notice, we would be grateful if you could please clarify for
us:
(i) the precise function or functions which the Commission is seeking to
exercise pursuant to S.17(1) CAA; and
(ii) how and why the Commission considers it is “reasonable” to require POL to
produce the documents or material requested in exercise of that function or
functions pursuant to S.17(2) CAA.
Preservation of Materials
In these circumstances, while I can confirm that POL will continue to preserve
all materials reviewed by the external specialist criminal law solicitors as part
of the prosecution case review considered by Mr Altman QC, and also all
material considered as part of the scheme set up by POL to investigate
individual complaints about Horizon, I hope you understand that until we have
certainty as to what is meant by “the affected cases” we are unable to give a
more specific formal confirmation in the terms sought in your letter and
notice.
Next Steps
I hope that it is clear from the above that Post Office will work with the
Commission on this matter, and that it has a legitimate need to understand
the powers the Commission is seeking to exercise before it responds further.
It is for these reasons that we invite your response to the questions we have
asked above, and would be happy to discuss with you the best way to
progress matters. In the meantime, all POL's legal rights in this matter
remain reserved.
-Yoursisincerelv....
GRO
General Co!
jane.macleode.
Enc. 1. Formal Memorandum - S.17 Criminal Appeal Act 1995
1 For absolute transparency, on 9 May 2013, two months before the Second Sight
Report was published, POL received notification of appeal against sentence in the
matter of R v Khayyam Ishaq. Mr Ishaq’s application for Permission to Appeal was
refused by the Single Judge on the 20 June 2013, and he did not renew his application
before the full court at an oral hearing.
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CCRC
‘Criminal « Cases « Reviews Commission
FORMAL MEMORANDUM
The Commission’s power to obtain material from public bodies under
S.17 of the Criminal Appeal Act 1995
Table of Contents:
The Commission's power to obtain mate:
The meaning of “public body”
“Reasonable to do so’”........
“Possession or control’ and “the appropriate person
Form of notice under section 17.0.0...
The duties imposed on a public body by section 17
Are there any limitations on the section 17 power?
What happens to material when it is provided to the Commission?
Will the Commission give the material to someone else?...........
What happens when the Commission's review has been completed?
I from a public body.
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The Commission’s power to obtain material from a public body
1. Section 17 of the Criminal Appeal Act 1995 applies where the Commission
believes that a person serving in a public body has possession or control of a
document or other material which may assist the Commission in the exercise of
any of its functions.! When requested to do so, a public body is under a duty to
make such material available to the Commission, providing such a request is
reasonable.
The meaning of “public body” I
2. A public body is defined in section 22 of the Criminal Appeal Act 1995. It
includes
(i) any body constituted for the purposes of public service, local government,
or the administration of justice; or
' Section 33(2) Criminal Appeal Act 1995: the Commission's powers under section 17 extend only to
England, Wales and Northern Ireland.
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(i) whose members are appointed by the Queen, by any Minister or any
government department; or
(iii) whose revenues consist wholly or mainly of money provided by Parliament I
3. “Public body” therefore includes police forces, the Crown Prosecution Service,
the Armed Forces, the Security Services, government departments, Local
Authorities (including Social Services departments), Courts, HM Prisons and
the Probation Service.”
“Reasonable to do so”
4. The Commission’s power under section 17 can only be exercised when it is
reasonable to do so. As a matter of broad principle no documents or material
will be requested from a public body unless it appears that they may assist the
Commission in determining whether or not a case should be referred to an
appellate court.
5. The fact that material held by a public body relates directly or indirectly to a
case under review by the Commission, or to a case being investigated for the
Court of Appeal by the Commission, will generally satisfy the requirement of
reasonableness.
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6. The Commission may need to obtain material under section 17 from a public
body when investigating a matter on behalf of the Court of Appeal? or the Home
Secretary‘.
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“Possession or control” and “the appropriate person”
7. Material may be with an individual or department, it may have been passed on
elsewhere or it may have been archived. Therefore, material will be in the
“possession” of the person or office which has physical possession at the time I
the section 17 notice is received, but it may still be under the “control” of i
another person or office elsewhere. I
8. It is not always possible to identify which part of a public body is actually in
possession or control of material at the time a section 17 notice is issued. i
Consequently, the Commission will direct any formal notice issued under I
section 17 to “the appropriate person” at the public body. The appropriate i
person will be responsible for ensuring that the public body complies with its I
obligations.
9. Section 22(4) of the Criminal Appeal Act 1995 sets out who will be the
“appropriate person” at a public body: the head of the organisation or the
Minister in charge of a government department.
? This list is not exhaustive.
* See section 15 Criminal Appeal Act 1995
* See section 16 Criminal Appeal Act 1995
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10. In practice, the appropriate person will generally delegate the task of complying
with a notice under section 17 to a nominated representative within the public
body. Most public bodies dealing with the Commission on a regular basis have
appointed a specific member of staff to act in this capacity.
Form of notice under section 17
11. The Commission has a standard form of notice under section 17. This will be
accompanied by an explanation (Section 17 Duties) of the specific legal
obligations imposed on a public body by such a notice. i
The duties imposed on a public body by section 17
12. A public body receiving a notice under section 17 notice from the Commission I
is under a legal duty to comply with the request. The notice will specify exactly
what is being requested of the public body by the Commission. I
13. The Commission may require a public body i
(i) to produce material; i
(ii) to allow access to it; I
(iii) to allow the Commission to take it away,
(iv) _ to allow the Commission to make and take away a copy in an
appropriate form.
14. When a section 17 notice is received by a public body it is required not to
destroy, damage or alter the material until the notice has been withdrawn by the
Commission.
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Are there any limitations on the section 17 power?
15. Section 17(4) provides that the duty imposed on a public body is not affected I
“by any obligation of secrecy, or other limitation on disclosure (including any I
such obligation or limitation imposed by or by virtue of an enactment) which I
would otherwise prevent the production of the document or other material to the I
Commission or the giving of access to the Commission’. I
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46. In other words, the duty on a public body to comply with a notice under section
17 is not affected by matters such as the general sensitivity of the material, or
medical confidentiality, or the existence of a court order for public interest
immunity, or by legislation such as the Data Protection Acts or the Official
Secrets Acts.
What happens to material when it is provided to the Commission?
17. Ownership of the material remains with the public body throughout.
48. The Commission will handle and store all material provided by a public body in
accordance with its formal policy.
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Will the Commission give the material to someone else?
19. Section 25 of the Criminal Appeal Act 1995 specifies that a public body can
notify the Commission that no onward disclosure of material provided under
section 17 is to be made without prior consent, although such consent may not
be unreasonably withheld.
20. The Commission may decide that it is necessary to disclose information
provided by a public body under section 17. If so, disclosure can only be made
for one of the purposes specified in section 24 of the Criminal Appeal Act 1995.
21. A full explanation of the relevant statutory provisions and the Commission’s
general approach to disclosure of information is set out in its Formal I
Memorandum entitled Disclosure by the Commission . I
What happens when the Commission’s review has been completed? I
22. The Commission will return all original material provided by a public body at the I
conclusion of its review. At this point, the section 17 notice will be formally H
withdrawn and the public body will be notified in writing that its obligations under I
section 17 are at an end.
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