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From: Patrick Bourkef,
Sent: Tue 05/04/2016
To: Mark Underwood;
; Rodi
Jane MacLeod
Subject: RE: Sparrow Update - CCRC and Brian Altman QC
Likewise. I shan't be at Thursday's meeting but, as discussed, it's also my hunch we should proactively disclose the Swift
report to the CCRC, rather than have it requested of us further down the line.
Best wishes.
Patrick
Sent from my Windows Phone
Sent: 05/04/2016 21:33
To: Rodric Williams; Jane MacLeod; Patrick Bourke
Subject: RE: Sparrow Update - CCRC and Brian Altman QC
Hi Rod,
I agree with the approaches you have set out below.
I will add discussing whether or not to disclose Jonathan’s report to the CCRC to the Agenda for our meeting with Jane
on Thursday @3pm
Mark
From: Rodric Williams
Sent: 05 April 2016 19:07
To: Jane MacLeod; Patrick Bourke; Mark Underwood}
Subject: Sparrow Update - CCRC and Brian Altman QC
All —1I thought I’d set out an update on where I had got to with Brian Altman’s instructions and the CCRC. Apologies
for the length, but I wanted to get it down in case we miss for some reason our next meeting...
Brian Altman QC
Brian has provided his initial thoughts on his instructions (see attached), which I summarise below along with where
we think this takes us. This has grown out of how Brian responded to his instructions, so apologies if I have got ahead
of myself rather than waiting for a con with him as originally intended.
1. Charging Theft / Sufficiency of Evidence
We will need to do a file review in order to satisfy Jonathan’s Recommendation 1. This is because it would
never be appropriate to bring a charge without a proper evidential foundation, and if (as alleged) we did so as
part of a deliberate practice, this could amount to an abuse of process sufficiently serious to undermine the
safety of convictions.
Brian sees the review as responding to Jonathan’s report rather than any other duty, so if Jonathan agrees it
could be scoped by reference to that report, i.e. a review to Scheme cases which have the specific scenario he
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identified (charged with more than one offence; guilty plea to one offence with no conviction on the other).
Based on the “Scheme Data” spreadsheet, this would mean a review of 19 cases, 11 of which are with the
CCRC. The majority of the cases are theft/false accounting, but also include some fraud charges which Brian
thought would help show discretion being applied to individual cases rather than a slavish following of
precedent. This strikes me as a good sample, and we can always expand the review if anything came to light
which warranted further investigation or action.
Brian currently has good availability, so could get on with this in short order. We are keeping open the
prospect of him using a junior.
NEXT STEPS:
If you agree, I will email Jonathan to get his buy in to the above approach. Brian can then draft an advice note
outlining the scope of the review and why we’re doing it. I can then coordinate the delivery of the documents
to Brian, which I hope will be relatively easy given the collation of criminal files already done for various other
purposes.
2. Balancing Transactions / Sealed Baskets
Brian cannot advise on balancing transaction and sealed basket disclosure unless and until we know we have
“areal problem”. This is consistent with the position he took on balancing transactions in August 2015, and to
do otherwise could lead to unjustifiable, new claims being made of third party tampering.
I have told Brian that Deloitte is looking further into the balancing transaction and “sealed basket” issues in
order to address Jonathan’s Recommendations 4 and 5. It therefore seemed sensible to us to park this issue
until Deloitte’s work is further progressed, bearing in mind that we cannot in the meantime be accused of
concealment because voluntary disclosure has been made to the CCRC.
NEXT STEPS:
If you agree, I will send Brian a short email confirming this part of his instructions is on hold pending Deloitte’s
work. I can also update Jonathan of this as a footnote to the email setting out the proposed approach for the
criminal case review.
CCRC
After an extended game of phone tag, I spoke to the CCRC’s Horizon cases team leader Amanda Pearce just before
Easter. We covered quite a few admin points (on which I think you can be spared the detail), along with two more
strategic points:
1. Second Sight
It has been suggested to the CCRC (they didn’t say by whom) that they speak to SS, and would like to do so in
order to demonstrate they had undertaken a thorough investigation. SS have told the CCRC they would like
to speak to them (surprise surprise), but need our approval to do so.
I told the CCRC we wouldn’t look to stand in the way of their work, but given our concerns about how SS
strayed outside of their remit — particularly into criminal law matters - getting approval would be much easier
if we had a clue as to how CCRC would approach any meeting, e.g. would we get the chance to respond to
anything SS said, particularly if it was something not previously raised with us?
Amanda recognised that SS’s reports contain a lot of bold statements without evidential support. They also
said they would not simply rely on what SS said just because they said it, but rather would listen to try to
understand what it is they looked at and found as forensic accountants, then take a view on what more they
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may require. Amanda added the CCRC was very familiar with experts who stray outside their areas of
expertise.
I appreciate we will be sailing into unchartered waters by letting SS speak directly to the CCRC, but I think it
very difficult to say no. If we wanted/needed to, we could try to get a better idea of what they might say if we
asked Jonathan or Christopher for a summary of what SS said in their meeting with them.
NEXT STEPS:
I need to get back to the CCRC with our position. Jane — can you make the call on whether we let the CCRC
speak to SS, or does it need to go wider?
2. Status of Investigations / Disclosure of Swift Report
Amanda said they were approaching the stage of deciding whether there was anything left to be done (her
words), noting that these were the sorts of investigations that could just keep on going. She also said they
were starting to think about whether they needed any expert assistance to show they had followed all
appropriate lines of enquiry.
This to me raised the question of whether, and if so when, we might want to disclose Jonathan’s report to the
CCRC. Providing the report to the CCRC sooner than later would demonstrate the serious and transparent (to
them) efforts we are making to run down the various issues. It might also avoid the CCRC embarking ona
course of action which could confuse and delay substantially the conclusion of their investigations. The risk
of course is that we would need to provide to the CCRC the outcome of the further work being done on
Jonathan’s recommendations in circumstances where we don’t yet know all of the outcomes.
My gut feeling is that we should disclose the report to the CCRC relatively soon. The CCRC are likely to hear
about it through the Arbuthnot connection, and it fits within their informal request for any Board level reports
(lam confident we would get a s.17 Notice for it if the CCRC knew of its existence). I’m reasonably
comfortable about where we might get to with Brian’s “sufficiency of evidence” review, but substantially less
so with the Deloitte work, which in turn would feed Brian’s advice on whether any disclosure is required (it
would however demonstrate to the CCRC that we are thinking about that!).
NEXT STEPS:
Mark - at our next face-to-face meeting, could we please put disclosing Jonathan’s report to the CCRC as an
agenda item?
Again, apologies for the length of this note - it might at least make for a shorter meeting!
Rod
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