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(MS Cameron McKenna LLP
. Cannon Place
BBC Complaints 78 Cannon Street
PO Box 1922 London
Darlington CAN GAF
DL3 OUR DX 135316 LONDON CANNON PLACE,
and
wawyi.ems-cmek.com
andrew. head
Direct
E susan BaMAc:
16 November 2015
Your ref CAS-3485119-74B6PG By Post and Email
Our ref SCB/THRE/MIT/111850.00038
Dear Sirs
NOT FOR BROADCAST
Panorama - Post Office Limited
We write further to the letter from Andrew Head, Executive Producer for BBC Panorama, dated 19
October 2015, in response to our complaint of 15 September 2015.
Our client is not satisficd with the response that it has received, for the reasons sct out in more detail
below, and therefore wishes to invoke your Stage 1b complaints procedure.
For ease of reference, we enclose copies of: (i) Mr Hend’s letter of 19 October 2015; (ii) our letter of 15
September 2015; and (iii) our letter of 10 August 2015.
Level of response
Key issues
© No response to letter of 10 August 2015
Our letter of 15 September included reference to our pre-broadcast letter of 10 August 2015. The points
raised in our letter of 10 August were to be incorporated in our letter of 15 September, as was clearly set
out in the letter. This was intended to avoid the need to repeat points already made in correspondence
with the BBC.
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Mr Head's letter states that the reason for not addressing points made in this letter was because the BBC
has already provided a response to the letter of 10 August. In fact, our client has reccived no substantive
response to its letter of 10 August and, therefore, the response to our client’s complaint is deficient in this
manner.
Our clicnt’s Ictter of 10 August relates to the BBC’s conduct prior to the broadcast of the programme, It is
important to recognise that our client’s complaint extends to the BBC's conduct in making the
programme and in secking our clicnt’s contribution. The complaint is not limited to the presentation and
contents of the programme itself, which Mr Head’s letter largely focuses on.
Right of Reply
Key issues
© No valid justification for failing to provide adequate information to Post Office
¢ No valid justification for withholding “whistleblower’s’ identity
« Failure to make clear that My Roll was not employed at the relevant time
Under the heading “Right to Reply” in his letter, Mr Head responds to a number of points raised in our
letter of 15 September. However, in doing so he appears to be basing many of his conclusions on a
particular interpretation of the BBC Editorial Guidelines (the “Guidelines”) which we cannot accept.
Mr Head's letter states “(Paragraph 6.4.1] of the [Guidelines] refers to the informed consent of
contributors who take part in the programme. Since Post Office declined an interview this does not
apply...". This statement is relied upon at various points in the letter, including as a justification for
refusing to disclose the details of your ‘whistleblower’. However, this interpretation of the Guidelines
does not make any logical sense.
No valid distinction can be drawn between a party that provides a recorded interview and a party that
provides a statement for broadcast. Both must constitute “contributors” to the programme. Furthermore,
our client provided a detailed on-the-record briefing to the Panorama team. This alone should be
sufficient to make our client a “contributor” to the programme,
More fundamentally, paragraph 6.4.1 of the Guidelines states that “contributors should be in possession
of the knowledge that is necessary for a reasoned decision to take part in our content” and further that
“Before they participate, contributors should normally know..." This Guideline clearly applies before
parties asked to contribute have reached a decision about whether and‘or how to participate in the
programme,
Nevertheless, if the definition of a “contributor” is limited to parties that provide an interview for
broadeast, it must be incumbent upon the BBC to comply fully with paragraph 6.4.1, in regard to all
parties that it asks to contribute, up until the point where the decision over whether to grant an interview
is given. We fail lo understand how it can legitimately be argued that the BBC cun retrospectively justify
a failure to comply with this Guideline based on a decision taken by our client after the date of the breach.
Indeed, our client's decision not to put someone forward for interview was, in large part, reached because
of concems over the lack of information that the BBC was providing regarding the allegations to be raised
and the evidence relied upon to support them. If the BBC had comphed fully with paragraph 6.4.1 of the
Guidelines, there is a strong likelihood that our client would have provided an interviewee.
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In this context, your suggestion that our client's decision to decline an interview justified the decision to
withhold Mr Roll's details is illogical. Our client's repeated requests for the names of the contributors
sigmificantly predated its decision regarding an interview.
Mr Head further justifies the decision to not reveal the name of Mr Roll, in contravention of paragraph
6.4.1 of the Guidelines, on the basis that the BBC was “keen to ensure that his testimony was not unduly
affected by external pressure”. This statement also is not borne out by the facts. The involvement of the
leblower was revealed in Mr Bardo’s email of 17 June 2015. By an email of 23 June 2015, Mr
Bardo explamed that “sre wish to protect [the whistleblower’s] identity
wi
However, it was not until 23 July 2015 that our client wrote to Professor Button. To suggest that our
client’s letter to Professor Button was part of the circumstances that justified the BBC's decision to
withhold Mr Roll’s identity is clearly untrue, Thus appears (o be an attempt, once again, to use a
circumstance arising afler a decision has been reached by the BBC to justify that decision retrospectively.
Furthermore, our chent’s letter 10 Professor Button simply sought disclosure of any evidence that he may
have had in his possession which suggested that there had been any miscarriage of justice. This request
was made to ensure that our client complied with its ongoing legal obligation of disclosure and not, as
suggested, to place “external pressure” on him,
While our client acknowledges that it corresponded with Mr Jan Henderson in advance of his interview
with the BBC, this correspondence was initiated by Mr Henderson who notified our client of the BBC’s
request for an interview. Our client did not exert any undue external pressure on Mr Henderson.
Furthermore, our client has a direct contractual relationship with Second Sight including obligations of
confidentiality imposed on Second Sight that our client was entitled to discuss with Mr Henderson.
In any event, after your interview with Mr Roll was recorded, there would have been no reason to
continue to withhold his identity. Revealing this information would have allowed our client the
opportunity to comment on Mr Roll’s capacity to provide meaningful evidence. It would have further
allowed our client the opportunity to provide comment on the status of the Horizon system at the time of
his employment and to highlight to the BBC (and potentially the viewers) that Mr Roll's knowledge and
experience pertained only to a ume period that was irrelevant for the three cases featured in the
programme. Indeed, providing our client with the opportunity to make such comment would have assisted
the BIC to achieve the “due accuracy” to which it is required to aspire.
The only detail that the BBC provided regarding Mr Roll was that he was employed prior to 2010. In fact,
Mr Roll left Fujitsu's employment in 2004, We fail to see why the BBC chose misleadingly to
characterise the timing of his employment which suggested that it was contemporancous with the featured
cases,
Furthermore, Mr Llead’s letter states that "ve dares of [Mr Roll's] employment at Fujitsu were written on
the screen during his interview so this information was made available to viewers anyway” and that
“Kach postmaster also had the years of their tenure clearly presented in on-screen text. The extent of the
overlap was therefore clear’. With the greatest respect for the viewing public, this line of argument
assumes too high a level of attention to detail for the average viewer. It is unreasonable to suggest and
highly unlikely that the vast majority of viewers would have paid much attention to the dates of the
posimasters’ tenures, much less remembered them and then compared them to the dates of Mr Roll’s
employment. Viewers would rightly assume, in the absence of any express statement to the contrary, that
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the individual being presented as a whistleblower would have been providing directly relevant
information and, indeed, that he would have knowledge of the computer system as it was at the time of I
the specific incidents being featured in the programme. If our client had been provided with details of the
Fujitsu employee that was contributing to the programme, then it could have made suitable comment to
provide viewers with the necessary context to avoid them being misled.
Our client disagrees strongly with the suggestion that the Panorama team complied with paragraph 6.4.25
of the Guidelines. Providing information on the “broad question areas for an interview" does not
constitute describing the allegations “in sufficient detail to enable an informed response”. Our arguments
on this point have been repeatedly rehearsed in correspondence. To date, we have received no satisfactory
response to adequately explain why our client was not provided with more detail on the allegations to be
made and provided with next to no details of the evidence upon which such allegations were lo be based.
As previously stated, it was essential that our client was provided with this evidence to ensure that it had
the necessary information to enable an informed response.
As an aside, we note that Mr Head's letter states thal the BBC was “repeateddy in contact” over a period
of 12 weeks from 19 May 2015. This omits to mention that there was a four week ‘hiatus’ between the
end of June and 22 July 2015 during which no further substantive correspondence was received from the
BBC,
Proposed Meeting
Key issues
« No valid justification for declining offer to review further evidence
At paragraph 3 under the heading “The Right of Reply Process”, Mr Head refers to our client's offer of a
meeting to share confidential documents with the BBC that would have disproved (he allegation that our
clicnt brought charges of theft in the absence of supporting evidence and that theft charges were used to
put pressure to plead guilty (o false accounting. This offer of a meeting was declined,
In justifying this decision to decline our client's offer, Mr Head ciles two “fimdamental editorial
reasons”,
Mr Head's first argument is that the fact that our client required any disclosed documents to be kept
confidential would have “/prevented the BBC] from verifying its accuracy” and hence put it in breach of
paragraph 3.4.2 of the Guidelines.
This argument is illogical. The fact that the BBC could not have disclosed the materials to any third party
is not a justification for refusing to review them. First, in applying this logic, the BBC is making the
assumption that the BBC would need to take further steps to verily the accuracy of the information, facts
and documents being presented to it or that to do so would require their disclosure to third parties. It is
perfectly possible that the review could have led to independent lines of enquiry without the need to
disclose such materials. Indeed, situations akin to this must arise in a large number of BBC investigations
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and therefore BBC staff should be perfectly capable of handling such confidentiality. Secondly, it is
illogical, and contrary to the principles of good journalism, to suggest that the BBC should avoid an open
and important line of enquiry simply due to the concern that it may open up other lines of enquiry.
As stated previously, if the BBC had taken our client up on its offer (o review documents that would have
demonstrated that the allegations being made were false, then it would have been left with little material
to broadcast. Mr Head's reference to the BBC's inability to reler to or attribute it in the broadcast would
be irrelevant in the context of an allegation proved to be false and, hence, not broadcast at all.
As stated in our initial letter of 15 September, it would appear that the BBC would prefer to *bury its head
in the sand’ and deny the inconvenient truth that Post Office has evidence to demonstrate that the
allegations being broadcast were untrue, rather than check and verify the information and facts presented
to the BBC by individuals with an axe (o grind.
The second argument made by Mr Head in this respect is that the arrangement proposed by our client
would have “/eompromised] the BBC's editorial integrity (see Editavial Guidelines 1.2.4 and 14.1)”.
Paragraph 1.2.4 of the Guidelines states “The BBC iv independent of outside interests and arrangements
that could undermine our editorial integrity. Our audiences should be confident that our decisions are
not influenced by outside inwrests, political or conmmercial pressures, or any personal interests”.
Paragraph 14.1 of the Guidelines similarly states that “Our audiences must be able to trust the BBC and
be confident that our editorial decisions are not influenced by outside interests, political or commercial
pressures, or any personal interests”, Reviewing our client’s evidence would not have constituted
“outside interests, political or commercial pressures, or any personal interests”. We do not accept Mr
Head’s argument here. The BBC regularly receives information, including from those who might be
considered to be partisan and is perfectly capable of reviewing this information without undermining its
“editorial integrity”. At the very least, this information would have simply been more information for the
BBC to consider when producing the programme. Iliding behind the nebulous defence of maintaining
“editorial integrity” does not justify the decision to ignore valid concerns about the truth of the allegations
to be broadcast.
Reflection of Statement
issues
e Failure to include elements of Post Office’s statement relating to the CCRC
© Misrepresenting the involvement of the CCRC
¢ Failure to include Key elements of Post Office’s statement relating to the manner in which
Post Office conducts private prosecutions
Despite the points raised by Mr Head, our clients maintain that the BBC failed fairly and accurately to
reflect its response.
Without contradiction to the generality of the statement above, we would make the following points:
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«© Mr Head's Ictter justifies the cxclusion of our clicnt's statements regarding the Criminal Cases
Review Commission (“CCRC”) on the basis that the programme “did not suggest that Post Office
was failing to co-operate [with the CCRC]" and furthermore that that programme did not
expressly state that the CCRC would not have access to all of the relevant materials in respect of
the cases referred to it. This justification assumes a level of knowledge on the part of the average
viewer regarding the work of the CCRC which is clearly unrealistic. Presenting the reference to
the CCRC alongside the statement “he sense of injustice is growing” suggests to the unmformed
viewer that in accepting a reference the CCRC is presuming some level of injustice when, in fact,
applying to the CCRC is a right open to any person convicted of an offence in England, Wales or
Northern Ireland, It would have been fair for these aspects of our client's response to be presented
alongside this statement.
¢ Similarly, Mr Head states that our client’s statement that Post Office follows the Code for Crown
Prosecutors was not included because the programme did not expressly state otherwise, However,
the programme did clearly state that “{Post Office] doesn't have to go through the police or the
Crown Prosecution Service” and then went on to inmediately feature statements from Professor
Button to suggest that this “creates potential risks of miscarriages of justice”. In this context, our
client’s statement that it follows the Code for Crown Prosecutors was entirely relevant and it was
only fair that this be accurately reflected in the programme to avoid viewers being misled into
believing that our client conducts ils prosccutions in a manner contrary to that which is adopted
by the Police and the CPS,
Mr Head's letter further states that Mr Roll told the Panorama team that “he and his colleagues could
make changes under the postmaster’s log in” and that “this process left no record that anybody else had
heen on the system”, This allegation is likely to have coloured the 33C's decision to run its programme
and yet this allegation was not put to our client, Mr Bardo’s email of 17 June 2015 at 19:41 stated that “a
former emplovee at Fujitsu...savs it was possible to remotely access data held on branch terminals and to
amend that data”. Post Office provided a response to this allegation. However, this is a fundamentally
different allegation to the allegation that changes could be made “under the postmaster's log in” and that
this “/eft no record’, For the record, this allegation is stongly denied. If Post Office had been informed
about allegations such as this in advance of the programme being broadcast, then it could have provided a
technical response explaining what could, and, more importantly, what could not, be done with the
Horizon system remotely.
Presentation of facts
Key issues
* Leading question asked to Mr Roll
© Misleading view
cases
's into believing that Mr Roll had personal knowledge of the featured
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¢ Failure to include elements of Post Office’s statement relating to allegations raised against
Ms Vennells
Our letter of 15 September raised concerns that a highly leading question was asked by Mr Sweeney to
Mr Roll (“ft is possible that suffering could have been caused because there are problems in the Horizon
svstem?”). Such question was asked to Mr Roll despite him having no knowledge of the individual cases
presented in the programme, Mr [ead states that, contrary to our complaint, this does not constitute a
breach of paragraph 3.2.3 of the Guidelines which requires the BBC to “not knowingly and materially
mislead its audiences [and tof not distort known facts” because, according to Mr Head, “the relevant
guideline in this case ts 3.4 12", Paragraph 3.4.12 of the Guidelines state that “(the BBC] should normally
identify on-air and online sources of information and significant comvibutors, and provide their
credemials, so that [its] audiences can judge their status”.
‘There is no reason why two guidelines cannot apply to the same issue. Mr Head offers no explanation for
this argument, Indeed, he himself cites two paragraphs (1.2.4 and 14.1) in respect of a single issue earlier
in his letter.
Paragraph 3.2.3 remains relevant to this point. No evidence is presented by Mr Roll or during the
programme to suggest that any problem with the Horizon system has resulted in a loss for which any
postmaster was prosccuted, However, the manner in which this question is asked is likely to have misled
viewers into believing that Mr Roll had this level of knowledge, This is a clear breach of paragraph 3.2.3
of the Guidelines,
The fact that Mr Roll’s job title was revealed on-screen does not mean that viewers would be aware of the
fact that he lacked any personal knowledge of the featured cases or of the fact that he had not been
provided with details of the individual cases to review in advance of his contribution. Indeed, to the
contrary, his job title would have suggested that he was directly qualified to comment on the three cases
featured in the programme. We fail to see how compliance with paragraph 3.4.12 serves to defend a
breach of paragraph 3.2.3 of the Guidelines.
Mr Head's letter includes reference to the statement made by Mr Arbuthnot that “some people are now
calling for Paula Vennells to resign”. While the BBC’s response denies that there is any inference that
Ms Vennells is personally implicated in any alleged miscarriage of justice, it does not adequately explain
why the actions taken by Ms Vennells, such as imtiating the independent inquiry, as mentioned in our
client’s statement, were not reflected in the programme, This information was entirely relevant and its
inclusion would have afforded our client some, albeit limited, form of “fair opportunity to respond” to
this very serious allegation, as required by paragraph 6.4.25 of the Guidelines,
Under paragraph 5 of the section headed “Presentation of facts in the programme” in Mr Head’s letter, he
states that what was reported “was...an accurate account of the facts”, We would repeat that this was
only an account of the facts as purportedly held by the BBC. If, as mentioned previously, the BBC had
taken up our client's offer to review relevant documents, subject to a duty of confidence, then the BBC
would have noted that the internal documents being relied upon by the BBC had been taken out of context
so as Lo present an inaccurate reflection of the facts.
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Tow experts were presented in the film
Key issues
* Misleading viewers into believing that Mr MeLachan was questioning the sufficiency of
Post Office’s investigations
¢ Misleading viewers into believing that Sccond Sight were experts on the sufficiency of Rost
Office’s criminal investiga!
© Misleading viewers into believing that Mr Head had personal knowledge of the featured
cases
© Misleading viewers by presenting contributions from a narrow subset of relevant parties
Under paragraph I of the section headed “How experts were presented in the film”, Mr Head states that
because the statement made by Mr McLachlan (namely “Ay computer system can go wrong. What's
important is the way that you deal with things when they do go wrong”) appears early in the programme it
would not be perceived us an allegation that Post Office failed to investigate the Horizon system or to
deal with problems as they arose in the system. We disagree with this conclusion. In the context of the
programme and where such comments follow allegations that there were “errors with the system”,
viewers will inevitably conclude that Mr McLachlan is opining directly on Post Office's response to
complaints about the system and any identified problems.
Our client would acknowledge that in a different context “Mr McLachlan’s view matches Post Office's
own view” but, in that context, we fail to see why Mr McLachlan’s comments in this regard were
necessary.
Regarding Second Sight, Mr Head’s letter states that “Second Sight were not presented as experts in
criminal lav. In the programme, Mr Henderson is presented as having been appointed to “investigate”
problems with Horizon. Following his remarks, Mr Sweeney then refers (o the Post Office having “its
own investigators” and bringing private prosecutions. It is perfectly possible, and indeed highly likely,
that viewers would not appreciate the distinction between an “investigator” of problems with the Horizon
i system and an “investigator” of the individual cases. We maintain that viewers would therefore have been
misled into believing that Mr Henderson was in a position to comment of the adequacy of the
investigation and evidence for the prosecutions, and that his reference to “institutional blindness” would
be taken to refer to the prosecutions themselves. As stated previously, in these circumstances it would
have been fair to have provided details in the programme of the Complaint Review and Mediation
I Scheme, the work of the Scheime's working group more generally and the involvement of the Centre for
Effective Dispute Resolution. No explanation for these omissions was provided in Mr Head's letter.
Regarding Professor Button’s contribution, Mr Hcad’s letter states that his comments were bome of the
fact that “fe believes the way private prosecutions are conducted at Post Office increases the risk of
potential miscarriages of justice when compared with prosecution [sic] emanating from the Police”. The
suggestion here is that the manner in which Post Office conducts its private prosecutions increases the
likelihood of a miscarriage of justice in comparison with private prosecutions brought by other
organisations, Please can you explain the basis for this statement. Our client takes its responsibilities as a
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private prosecutor very seriously and, at all times, acts in accordance with the Code for Crown
Prosecutors. As stated previously, Professor Butlon would not have the requisite knowledge of or
involvement in the three featured cases to make such a statement. If Mr Head’s statement is intended to
be a general comment that private prosecutions, regardless of who is bringing them, carry a greater risk of
a miscarriage of justice than prosecutions brought by the Police, then our suggestion that Professor
Button’s statement is “entirely meaningless” is wholly valid. We maintain that the comments made by
Professor Button were broadcast in a manner that would mislead viewers into believing that he was
speaking specifically about the three cases featured in the programme,
Our letter of 15 September 2015 also made reference to the fact that, in compiling the progranune, the
BBC appeared to have targeted contributions from a narrow subset of relevant parties. For example, the
BBC failed to include any contribution from the National Federation of Subpostmasters which supports
and represents some 5,000 postmasters across the UK. ‘This omission was not addressed in Mr Head’s
letter and Post Office maintains that, by including, a contribution from such a neutral body, the
programme would have been fairer, morc balanced and less likely to mislead viewers,
Next Steps
Our client is disappointed in the conclusions reached by the BBC in respect of its complaint. We strongly
dispute the suggestion that Post Office does not have grounds to complain about the programme.
Our client has valid concems that the Guidelines were breached both in the making of the programme and
in its broadcast; breaches that the BBC appears to be seeking to justify retrospectively. Furthermore, for
the reasons stated above, in many cases, the justifications given by Mr Head are illogical or simply do not
marry up with the facts regarding the correspondence between the parties and the manner in which the
programme was created,
Our client therefore wishes to escalate its complaint to Stage 1b. If no satisfactory response is received
our client reserves its right to further escalate its complaint to the Editorial Complaints Unit and the BBC
‘Trust,
Furthermore, as stated in our letter of 15 September, our client is considering its options in respect of
more formal action, including an action agamst the BBC for defamation. These options remain under
review by our client pending the conclusion of the BBC complaints procedure. The manner in which the
complaint is handled will have a bearing on our client's decision of what further actions to take against
the BBC.
We note that your response to our Stage 1a complaint took significantly longer than the 10 working day
target that the BBC aspires towards. We would request that your response lo this Stage 1b complaint be
provided within the 20 working day estimate or that you promptly provide us with an anticipated date for
your response.
Yours faithfully
CMS Comeor Mekame Lup
CMS Cameron McKenna LLP
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