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POL00176632
POL00176632
British Broadcagting.Carnatatlan-TYCA..1" Floor, Grodcasting House, Ormeau Avenue, Belfast, BT2 BHO
Teaphane GRO 3
BIGGS Northern Ireland
contributors except Mr Roll, which we believe was appropriate in the circumstances I have described.
Not providing his name did not affect Post Office’s ability to respond to what Mr Roll had told us. We
described the whistleblower’s job and the title of the team he worked for at Fujitsu.”
Even if guideline 6.4.1 were to apply to Post Office, we wouldn’t have broken this guideline by failing
to provide Mr Roll’s identity. A more detailed account of our reasoning for this is laid out below
under the subheading “no valid justification for withholding whistleblower’s identity”.
You also complained that you have received no satisfactory response to explain why your client was
not provided with more detail on the allegations to be made. We have repeatedly explained, not
only in our previous letter but in much of the correspondence with the Post Office itself why the
information we provided about the allegations and the programme was sufficient.
To spell out that process again for ease of reference, the evidence that supports our allegations is for
us to evaluate as part of our investigation; it does not require review by Post Office. We provide
details of those allegations we consider sufficiently robust to broadcast to the Post Office, so that
the Post Office can offer a response to the facts of the allegation. Whether the evidence supporting
the allegation is robust is a matter for us. Whether the allegations are true, or not, is a matter for
the Post Office, as they relate to its conduct.
1 notice that you mention the “hiatus” in correspondence in your letter. I wanted to point out again
that the “hiatus” does not negate the fact that throughout the full 12 weeks, Post Office was in
possession of information about the programme that was sufficient for them to consider their
position and contribute to our editorial process.
You also complained that “providing Information on the broad question areas for an interview does
not constitute describing the allegations in sufficient detail to enable an informed response”.
When bidding for an interview we must balance the requirement to carry out an appropriately
robust interview with the important principle of BBC journalism that a recorded interview is not pre-
prepared but constitutes an accurate reflection of a real series of questions and answers. The
amount of information that should be supplied to potential contributors when bidding for an
interview is a careful judgement for that reason. For example, the email that was sent in error by
Matt Bardo to Mark Davies on 17 June 2015 was a snapshot of the editorial consultation involved in
this process, He was attempting to ensure that we gave the potential interviewee sufficient
information to be able to respond, without giving so much away as to break this principle of BBC
journalism. It was not, as you suggest, an inappropriate attempt to withhold requested information
from Post Office; it was an entirely appropriate discussion about what level of detail should be
provided to Post Office.)
Itis at this stage of the process, while bidding for an interview, when broad question areas for an
interview are relevant. Further information may then follow during preparation for the interview, in
the course of the interview filming process, or as part of the right of reply process where that
interview is refused. Detalls of precisely what information to provide can only be finalised once the
identity of an interviewee is confirmed. Clearly, a chief executive can appropriately be asked about
an organisation’s policies, but may have less grasp on the details of implementation. A mid-level
manager will be in the opposite situation. Nonetheless, these broad question areas were sufficient
for the Post Office to make initial enquiries about the subject matter and begin the process of
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POL00176632
POL00176632
British Brow
Telephone
Fax
FARIS Northern Ireland
2" Floor, Brodcasting House, Ormeau Avenue, Belfast, BT2 8HQ.
“We would have needed the opportunity to check and verify the information provided in order to
ensure “due accuracy” and that would have involved discussion of the material with other sources,
which we would not have been able to do [under the terms that the information was offered].
Secondly there was a concern that the arrangement could compromise the BBC's editorial integrity
(see Editorial Guidelines 1.2.4 and 14.1) because we were being asked to give up our ability and duty
to verify it, nor would we be able to refer to it or attribute it in the broadcast.”
You say that you object to this because it is contrary to the principles of good journalism. You
believe that it effectively says that the BBC should avoid a line of enquiry that may disprove a story.
You also say that it Is an illogical explanation because the BBC would have had to review these
materials in order to know whether further verification was necessary and that such review might
have led to further lines of enquiry that could have been investigated without breaking the pre-
agreed confidence. I am concerned at the way you have characterised our decision and the careful
editorial process that surrounded it, I will deal with each of these elements of your complaint in turn.
Most importantly and straightforwardly, we were satisfied that our source material for raising our
questions about Jo Hamilton’s prosecution was sufficiently strong to be confident that it wasn’t
taken out of context. It was not necessary to review the information that was offered by Post Office
in order to know whether further verification of our source material was required.
On the question of whether a review of these materials might have led to further lines of enquiry
that could have been investigated with third parties, I would point out that if Post Office were in
possession of important lines of enquiry that were not bound by confidentiality requirements, they
were at liberty to make these clear to us at any stage during the 12 weeks that we were in contact.
However, if the content of the relevant material was only shared confidentially and on an
unattributable basis then we would have been unable to verify, discuss or interrogate it with any
third party. These are indeed the terms that were described to us in the email on 13 August that
made the offer to share documents:
“we can only allow you to inspect these documents on the basis that the BBC only use them for this
specific purpose and that you confirm to us that you accept disclosure on that basis. For the
avoidance of doubt, this means that you could not share the information (our emphasis) with any
third party, and that you be in breach of confidence if you did so.”
For this reason, accepting sight of these documents on these terms would have meant being forced
to take them at face value
You make the point that the BBC regularly receives information from those who might be considered
to be partisan. That is correct. But where we do so, we are always at pains not to put ourselves ina
position where such information cannot be subjected to verification or sufficient additional sourcing.
We would have been prevented from even referring to the information in the programme.
You further claim that inspecting the confidential documents would not have broken guideline 14.1,
which says:
“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.”
POL00176632
POL00176632
TCA, 1 Floor, Brodcasting House, Ormeau Avenue, Belfast, BT2 8HQ.
EXE Northern Ireland
I can only reiterate what I have said previously.
More broadly, the Post Office asked the BBC to enter into an agreement on terms the BBC could not
accept. We have explained why we could not accept. It seems to me that any any comparable
organisation put in that position would do as we did.
“Failure to include elements of Post Office’s statement relating to the CCRC and misrepresenting
the involvement of the CCRC”
You complain that our reporting about the involvement of the Criminal Cases Review Commission
(CCRC) assumes a level of understanding from the viewer that they could not be expected to hold.
You say this Is because the statement that the “sense of injustice is growing” is reported close to the
reference to the CCRC’s investigation, and that therefore these viewers would believe that the CCRC
investigation represents evidence of injustice having actually taken place. You say that means that
your client’s statement that any convicted criminal in the UK can apply for review should have been
included next to this in order to rebut this potential misunderstanding. The relevant lines of
commentary are:
“The Criminal Cases Review Commission is now investigating the convictions of 20 postmasters to see
whether miscarriages of justice have occurred.
Among them Noel, Seema and Jo.
The sense of injustice is growing.”
Immediately after this, the programme goes on to hear from Seema and Jo about their sense of
injustice. I think in this context it is clear that the “sense of injustice” concerns the views related by
Seema and Jo and not to the potential injustice being investigated by the CCRC.
You are also concerned that a viewer could become confused by our presentation of the facts and
not realise that, as you rightly say, any convicted individual can apply to the CCRC for a case review.
However, that is different from having their case investigated by the CCRC. To the extent that an
allegation in need of a response is made here, it is that the CCRC appear to believe there is sufficient
concern in 20 cases to warrant investigation. In this context, Post Office’s statement about the right
of anyone to apply to the CCRC for review is not the relevant aspect of the statement. The relevant
part of the statement Is the part that we have made clear repeatedly by the time we reach this stage
of the programme - that Post Office denies that convicted postmasters have been wrongfully
prosecuted,
You also say that we should have included Post Office’s statement that it was providing the CCRC
with any assistance it requires. ! am afraid I don’t agree that reporting the fact of this investigation
implies that the Post Office have failed to co-operate with it. The fact of the CCRC’s investigation
only implies the potential that the CCRC may ultimately find that the Post Office have wrongfully
prosecuted postmasters. As I explained above, we made clear repeatedly that the Post Office do not
accept this.
POL00176632
POLO0176632_
British Droadca
Telephone
Fox
FIG Northern Ireland
\, 1" Floor, Brodcasting House, Ormeau Avenue, Belfast, BT2 BHO.
I should also point out that Post Office’s statement was three pages long. We could not include all of
it in the programme. The response about the CCRC was not included in the main statement, but was
part of the section entitled “Specific Allegations”. We had not made a specific allegation about Post
Office’s reaction to the CCRC and we did not therefore Include Post Office’s response.
“Failure to include key elements of Post Office’s statement relating to the manner in which Post
Office conducts private prosecutions”
You also say that because the programme stated that Post Office does not have to go through the
Police or the CPS and because we reported Professor Button’s comment that this creates potential
risks of miscarriages of justice, we should have reported Post Office’s statement that it follows the
Code of Crown Prosecutors. The Code of Crown Prosecutors Is not something that we referred to in
the programme because it requires a level of technical knowledge that we would not expect most of
our viewers to possess.
However, the Code covers principles that can be clearly understood and which were referred to in
the broadcast. Therefore, without explicitly referring to the Code, we included Post Office’s
insistence that it complies with the Code by including the statement that “it complies with all legal
requirements”, “has a duty to protect public money” and “only prosecutes where there’s a realistic
prospect of conviction and never for making innocent mistakes”. These points cover the same
ground as the key principles of the Code and it is fundamental to the Code that prosecutions should
be in the public interest and that they should only be brought where there is a reasonable prospect
of conviction. We did not specifically make the allegation that the Code was broken by Post Office so
we did not include Post Office's rejection of this unmade allegation.
“Failure to make clear that Mr Roll was not employed at the relevant time” and concern over Mr
Roll in Right of Reply process
The dates of Mr Roll’s employment were shown on the screen because this was thought to be
relevant context. I do not agree that viewers will not have read this and I do not agree that we
misleadingly characterised the dates of his employment either. However, I also reject the idea that
the relationship between the dates of Mr Roll’s employment and that of our three case studies is as
important as you suggest.
The three case studies are examples that we made clear in our broadcast are part of a wider group
(from a wider timeframe). The primary importance of Mr Roll’s testimony and its applicability to all
these cases is that it suggests that Post Office may not have been transparent and open about the
possibility of remote access in the Horizon system or the number of loss-causing errors that have
had to be fixed within it. This importance was made clear in the programme. As you may know, Post
Office’s lack of transparency over remote access and the possibility of problems with the system is
something about which Post Office’s own investigators, Second Sight, have also raised concerns,
You also expressed concern about our more detailed explanation of Richard Roll’s evidence, which
was not broadcast in the film but formed a part of the basis of the broadcast. The unbroadcast
evidence from Richard Roll that we sent to you as part of a response to your first letter of complaint
was shared because Post Office had alleged that such evidence did not exist and we wanted to
demonstrate the falsity of that allegation. However, we did not have to put this evidence to Post
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_POL00176632
British Broadcasting Corporation TVCA, 1" Floor, Brodcasting House, Ormeau Avenue, Belfast, BT28HQ
Telephone
Fax
EXENS Northern Ireland
Office before broadcast because we did not intend to broadcast it. We do not agree that such
evidence should have been submitted to Post Office for comment.
You say that Mr Roll’s allegation that “he and his colleagues [in Bracknell] could make changes under
the postmaster’s log in” and that “this process left no record that anybody else had been on the
system” represents a “fundamentally different” allegation from the one that was put to Post Office
in Mr Bardo’s email of 17 June. The allegation that was put to Post Office on 17 June was that: “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”. Subsequent correspondence made clear the allegation that this access could take place
“without the postmaster’s knowledge”. I do not agree that these two allegations are fundamentally
different.
By not submitting the above evidence to Post Office, we did not in any way limit Post Office’s ability
to deny the allegations or to submit Information to us that might have further informed our
journalism. I would add that where we did submit more detail about the potential for Horizon to
misidentify and misdirect transactions, but Post Office declined to comment upon it or issue any
denial at all.
You also complain that the “only detail that the BBC provided regarding Mr Roll was that he was
employed prior to 2010”. This is simply untrue. We described his Job at Fujitsu in a team of “around
30”. The reason for providing the period prior to 2010 rather than no date at all, was that we
believed the introduction of Horizon Online in that year might have had technical implications that
could have affected the work of the team at Fujitsu and therefore Post Office’s response. (In the
event it did not affect Post Office’s position at all - their statement was a re-statement of their
existing position).
We chose not to narrow down the dates of Mr Roll’s employment too precisely because we did not
think that very many people would have left this team of Fujitsu employees in this timeframe. Had
we given Mr Roll’s dates of employment, we Judged that Mr Roll would have been identifiable as the
only employee to have left that team in 2004. For the reasons explained above and In my previous
letter, we wanted to prevent Mr Roll from being identified personally.
Finally on this point, the small size of the team he worked for was one reason why we did not
believe Post Office’s ability to respond would be hampered by our decision not to identify Mr Roll
personally. The information provided to Post Office had identified the type of work and the small
group of people at Fujitsu who were reportedly handling these errors and who had the technical
capability of remotely accessing branch terminals. On the basis of this information, inquiries could
have been made and a fuller response provided, had Post Office wished to do so.
“Misleading viewers into believing that Mr Roll had personal knowledge of the featured cases”
You complain that guideline 3.2.3 requires the BBC to “not knowingly and materially mislead its
audience [and to] not distort known facts” and that this should in fact be applicable to your
allegation that Mr Roll was presented as If he had knowledge of specific cases. You objected to our
application of 3.4.12 on the basis that two guldelines can apply to the same issue. This is to
fundamentally misunderstand our Guidelines, Each Editorial Guideline consists of 4 parts: an
introduction, a set of principles, a list of mandatory referrals and a set of practices. 3.2.3 sets out a
POL00176632
POL00176632
TVCA, 1" Floor, Brodcasting House, Ormeau Avenue, Belfast, BT2 8HQ,
FENG Northern Ireland
principle. 3.4.12 is one of eleven practices, grouped under the generic heading “Avoiding Misleading
Audiences”, all of which set out various ways in which audiences might be misled and would
therefore lead to a breach of the principle. So, necessarily, what you appear to regard as two
separate guidelines can — indeed, frequently do - apply to the same issue. In short, that’s because
3.4.12 (a “practice”) Is an amplification of the “principle” in 3.2.3. Itis more applicable here
because It deals directly with the issue at hand. That issue is the presentation of Richard Roll as a
source of information and significant contributor. You appear to agree that we may have complied
with paragraph 3.4.12 but disagree that this serves to defend our position on 3.2.3, The fundamental
point is that our role is to make clear the context in which a contributor makes their comments and
to report those comments accurately. As long as we do this we also satisfy the general principle not
to mislead the audience. That is why I believe that we satisfied both of these guidelines.
You also complain that Mr Roll’s job title on screen would have suggested that he was directly
qualified to comment on the three cases featured in the programme. He was described as “Fujitsu
computer technician 2001-2004”. I do not agree that this gave a misleading impression.
“Leading question asked to Mr Roll”
You also allege that a “leading question” asked of Mr Roll may have led audiences to believe that he
had a more thorough knowledge of individual postmaster cases than he did in fact have. Given that
we presented him accurately and gave details of the context in which he was making his comments, I
do not agree with your allegation that a “leading question” inappropriately added to his credibility. I
would urge you to note the context in which his comments are made. They come in a section of the
programme that is devoted to dealing with Mr Roll’s testimony and his comments are not adjacent
to our three case studies, Mr Roll appears after we have explained the context about the computer
system being run by Fujitsu. We also summarise Mr Roll’s position before we hear from him in the
programme by saying “He says errors with Horizon were far more widespread than have ever been
reported.” The interview exchange then follows (reporter, John Sweeney in bold):
“The office was located In Bracknell. We were on the 6th floor. It was pretty secure, By the time you
got in there it was like Fort Knox.
There was a large team employed there. 30 or so of us and we were all full time, and we were all
pretty busy. So there were a lot of, a lot of errors, a lot of glitches coming through.
There errors with the system?
There were errors with the system.
Some people have been ruined financially, people have gone to prison. Is it possible that suffering
could have been caused because there are problems in the Horizon system?
Yes it is possible.”
We then summarise in commentary that Mr Roll has alleged that he and his team of computer
technicians were dealing with errors that could create false losses. The context contains no
reference to the three case studies in the programme. The context makes clear that this line of
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questioning Is about the reliability of the Horizon system and the possibility that people could have
been wrongly blamed for losses because of malfunctions in the Horizon system.
“Failure to include elements of Post Office’s statement relating to allegations raised against Ms
Vennells"
You complain that our previous response has not explained why the section of Post Office statement
that sald Ms Vennells had taken action in response to postmasters’ complaints, such as initiating an
independent inquiry, was not included. In fact, we did include the fact that Ms Vennells and Post
Office had Initiated an independent inquiry. After showing David Cameron's statement at PMQs that
“we must get to the bottom” of the Post Office issue, we report:
“The Post Office says it already has, It appointed a firm of independent experts called Second Sight to
investigate the complaints about Horizon”.
Later in the programme, when we report on Ms Vennells appearance at the 3 February Select
Committee, we say:
“the independent review by Second Sight was set up by the Chief Executive of the Post Office”.
We then quote Ms Vennells appearance at the Select Committee in which she explained her position
and the Post Office's in more detail:
“We are a business that does genuinely care about the people that work for us and if there had been
any miscarriages of justice, it would have been really important to me and the Post Office that we
actually surfaced those and as the investigators have gone through so far we've had no evidence of
that.”
Having explained Ms Vennells' position at length, we then point out that this has not pleased
everyone, among them Mr Arbuthnot. As explained in my previous letter, it was the alleged failure
of the Post Office to satisfactorily investigate wrongful convictions during the independent review
that led Mr Arbuthnot to call for Ms Vennells' resignation.
In summary, I do not agree that we failed to include a sufficient reflection of Post Office having set
up the independent review.
“Misleading viewers into believing that Mr Mclachlan was questioning the sufficiency of Post
Office’s investigations”
You complain that while Mr Mclachlan’s comment about the importance of taking the correct action
when computer systems go wrong matches Post Office’s own view, the context of a programme that
contalns allegations about Post Office’s handling of errors means that viewers will conclude that Mr
Mclachlan Is talking directly about the Post Office’s failure to respond to problems with the system.
But Mr Mclachlan does not make that allegation In his comment. What we take to be happening in
that interview exchange Is that a pertinent question is being asked of an expert and he gives a
response that happens to match Post Office's own view. When Mr Mclachlan says: “Any computer
system can go wrong. What's Important Is the way that you deal with things when they do go wrong,”
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he puts into context, early in the broadcast, a key question that is then followed up and explored
throughout the programme: how does Post Office respond when things do go wrong? In due course,
Post Office’s own answer to that question Is reflected when we report Post Office's statement that:
“Horizon Is ‘effective and robust’ and is ‘independently audited’. It’s been used by nearly 500,000
people and the ‘overwhelming majority’ haven't complained”.
Mr Mclachlan’s comments were Important because he is an expert on computers and a former
expert witness on Horizon. I am afraid I do not understand why you “fail to see why Mr Mclachian’s
comments in this regard were necessary".
“Misleading viewers into believing that Second Sight were experts on the sufficiency of Post
Office’s criminal investigations”
Regarding Second Sight you raise concerns that a viewer could be confused by Mr Henderson's use
of the word “investigate” when he says:
“Horizon works reasonably well if not very well, most of the time. In any large IT system it is
inevitable problems will occur. What seems to have gone wrong within the Post Office, is a failure to
investigate properly and in detall, cases where those problems occurred. It’s almost like institutional
sort of blindness.”
You believe viewers could take it that Mr Henderson was referring to a criminal investigation and
also take him to be an expert on that. That could mean they understood him to be alleging
“institutional blindness” about the criminal investigation rather than investigations into problems
with the computer. To support this, you highlight that a nearby line of commentary refers to
“investigators” in connection with private prosecutions, which you say adds to the potential for
audiences to have been misled.
I disagree with this primarily because before Mr Henderson speaks, the nature of the “investigation”
under discussion Is made quite clear. in order to set Mr Henderson’s comments in the correct
context, we reported that:
“Ithe Post Office] appointed a firm of independent experts called Second Sight to investigate the
complaints about Horizon. But now in their first ever interview, even they say the Post Office’s
behaviour is troubling.”
This makes clear that the subsequent comments relate to complaints about Horizon. When Mr
Henderson refers to “institutional blindness” it clearly refers to cases where “those problems have
occurred”, that is reported problems with Horizon and not to the “prosecutions themselves” as you
suggest.
You also complain that in this context, we should have included details of the Working Group, the
Mediation Scheme and the involvement of The Centre for Dispute Resolution (CEDR). The processes
involving these bodies were part of the second stage of complaint review and mediation after
Second Sight’s “case report” was completed. However, our film was primarily examining convicted
postmasters who have not advanced to the next stage of mediation. The CEDR and Working Group
were therefore not relevant. We did make clear to viewers that an independent investigation was
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commissioned by the Post Office and that individual case reports were prepared by Second Sight in
response to postmasters’ complaints.
“Misleading viewers into believing that Mr Head [sic] had personal knowledge of the featured
cases”
You have requested further explanation about Professor Button’s position that “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.” I presume this part of your complaint
relates to the “key issue” in which you suggest that we misled viewers into believing that Professor
Button had personal knowledge of the featured cases.
Professor Button’s view is quite simple and clearly explained in the programme. He says:
“The police’s work is checked by an independent organisation, the CPS - in the Post Office situation
you have the prosecutors and investigators all working for the same organisation. It becomes much
more difficult to truly separate those functions and with the Post Office I think that creates potential
risks of miscarriages of justice”
To explain in more detail, perhaps it would help if I paraphrase Professor Button’s comments. He
believes there Is a risk that there is not complete separation of the three functions of investigation,
prosecution and commercial practice at the Post Office because they are all taking place in the same
organisation. In his view that makes it difficult to truly separate those functions from one another. In
Professor Button’s opinion, that creates potential risks of miscarriages of justice because of the
potential for conflicts between the interests of these three functions. Such conflicts do not occur
where the Police conduct the investigation and an independent organisation (the CPS) decides
whether to prosecute. Professor Button is an appropriately qualified expert, that is his view and we
are entitled to broadcast it. It is not “entirely meaningless” and nor does it imply he has knowledge
of the three cases featured In the programme, as you suggest.
“Misleading viewers by presenting contributions from a narrow subset of relevant parties”
You have concerns about the alleged “narrow subset of relevant people” who were interviewed for
the programme. You complain that we did not interview neutral observers such as the National
Federation for Subpostmasters (NFSP), Leaving aside the question of whether the NFSP is “neutral”,
we select interviewees for our programmes on the basis of whether they have useful information
that should be brought to viewers’ attention. It was our view that neither the NFSP nor other
organisations, such as the Justice for Subpostmasters Alliance (JFSA), had any such information.
In summary, I do not agree that the natural process of editorial selection led to a distorted subset of
relevant parties being interviewed.
1 hope that this response satisfies your client’s concerns.
Andrew Head
Executive Producer
BBC Panorama
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