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RE: POST OFFICE LTD AND THE ROYAL MAIL GROUP LTD
THE CARTWRIGHT KING REVIEW
OBSERVATIONS AND ANALYSIS OF THE CARTWRIGHT KING
PROSECUTION REVIEW PROCESS
Relating to duties of disclosure in Criminal Prosecutions
The Second Sight Interim Report
1. Following a sustained campaign by disgruntled present and former
postmasters, sub-postmasters and Post Office employees Second Sight
Support Services Ltd were appointed to carry out a review into alleged
problems with the Horizon accounting system.
2. Second Sight Support Services Ltd issued their interim report on the 8"
July 2013.
3. Until the publication of the Second Sight Interim Review the Prosecutors
for Post Office Ltd had adopted a firm approach to requests for disclosure
in relation to the Horizon system which was treated as being robust and
reliable.
4. The Second Sight Interim Report revealed that there had been two known
defects in the Horizon system since the rolling out of the Horizon on Line
System from January 2010. These defects impacted on 76 branches and
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created both positive and negative discrepancies. (There had been a
previous defect before the roll out of the Horizon on Line System known as
the “Falkirk defect” which had been fixed by Fujitsu before 2010. This was
considered in a conference call on 4"* October 2013 by Brian Altman QC to
be fact specific as there had been a network wide fix included in a software
upgrade. With the caveat that it may be relevant in cases that fell within
the same parameters with the same issues he did not feel that the Falkirk
Defect was relevant to this review.)
5. As a result of the Second Sight Interim Report it became apparent that
some of the matters raised in the Report might have been disclosable in
Criminal Prosecutions mounted by Royal Mail Group Ltd and Post Office
Ltd, had these been known about by those considering disclosure in such
cases.
6. Statements had been produced to the effect that the Horizon on Line
system was robust in Criminal Trials and an Expert, Gareth Jenkins, from
Fujitsu, the manufacturer of the Horizon System was deployed in some
cases where the defendant attacked the system. It became apparent, that
whilst his statements asserted that the system was robust, he,
unbeknownst to Post Office Ltd or Royal Mail Group Ltd, knew of these
defects.
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7. Upon publication of the Second Sight Interim Review Messrs Cartwright
King were asked to commence this review of all Post Office Ltd and RMG
Ltd cases since January 2010 to ascertain whether their disclosure
obligations had been met.
8. This Review was completed on the 26" of November 2013 subject to
Counsel finalising a couple of advices and the reconciliation exercise.
Scope of Review
9. The decision was taken to Review all cases prosecuted since January 2010
from which date the Horizon on Line system was rolled out. This was
confirmed on advice from Brian Altman QC. He also made it clear that pre
2010 cases might come within the scope of the review but that decision
could be made on a case by case basis. We have been careful to err on the
side of caution in this regard.
10. The Review process covered England and Wales. Senior lawyers from
Cartwright King went to Scotland in order to help lawyers from BTO
Solicitors review Post Office Ltd prosecutions in Scotland. Contact was also
made with the Procurator Fiscal’s Office in relation to a case going through
the Courts at the time.
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11. The Post Office prosecutions in Northern Ireland have not been reviewed
as the files are prosecuted by the Northern Ireland Public Prosecution
Service and those held by Post Office Limited are insufficient for the
purposes of our Review. We have not reviewed files prosecuted in
England and Wales by the Crown Prosecution Service for the same reason
but have spoken to the Crown Prosecution Service about some of their
cases.
Sources of Files Reviewed
12. The split between the businesses of Post Office Ltd and Royal Mail Group
Ltd meant that there are now two prosecuting authorities rather than one
as previously. The Royal Mail Group cases when they arrived were larger
in number than we had been led to expect but a proportion of them were
non-Horizon related as they involved postmen stealing or delaying postal
packets and the evidence did not touch the Horizon system.
The Review System
13. The Review took place in three stages; Initial Sift; Second Sift and Full
Review.
14. Initial Sift Reviews were conducted only by qualified solicitors and
counsel with experience of prosecution and defence disclosure. Prior to
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15.
16.
17.
18.
SOLICITORS
conducting Sift Reviews reviewers were appraised of the circumstances
giving rise to the task. They had read the Second Sight Interim report and
the “Helen Rose Report,” of 12" June 2013, in full and all had attended an
induction meeting during which the terms of the written Sift Protocol were
set out in full.
The Second Sift Reviews and Full Reviews were only carried out by Senior
Counsel with substantial prosecuting experience. Care was taken that
neither Second Sift Reviews nor the Full Reviews were conducted by
Counsel who had significant dealings with the case save in cases where
Senior Counsel knew by virtue of his dealings with the case that disclosure
would be required.
The Second Sift Review involved a case-by-case review of those cases that
had not been recommended for full review, so as to ensure uniformity of
approach and to ensure the correctness of the original Reviewer's decision.
Full Reviews required a full reading of all of the case papers. The only
question to be considered was: would the Second Sight and other material
have been disclosable during the currency of the prosecution?
When the review process started it was not considered necessary to
consider whether or not a conviction may be said to be ‘safe’ - that was a
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decision for the Court of Appeal, if the case got there. As the process got
underway however, most of the advices do in fact deal with Counsel’s
view of the correct response should disclosure generate grounds of appeal.
19, Each Full Case Review contains:
Offence description
Case history
- A full analysis of the prosecution case
A full analysis of the defence case
Details of any prosecution response to the defence case
- A discussion of any issues relation to Horizon, training and
Customer Support.
A conclusion, to contain advice on disclosure.
20.In determining the issue of disclosure and the advice to be provided to
POL, the reviewer had directly in mind:
- The Criminal Procedure and Investigations Act 1996, ss.1-12;
- Code of Practice enacted under the CPIA 1996;
- The Protocol for the Control and Management of Unused Material
in the Crown Court;
- The Attorney-General’s Guidelines on Disclosure;
- The opinion of the House of Lords in R. v. H; R. v. C; [2004] 2 AC
134; [2004] 2 Cr. App. R. 10.
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Statistics
21. The statistics below reflect the results of the Cartwright King Review.
SOLICITORS
Initial Sifts Second Sifts I Full Reviews I Disclosure
Advised
England and _ I 289 229" 53 26
Wales
Scotland 19 oe N/A® N/A*
TOTAL 308° 229 53 26
General Caveats
22. The Review conducted by Messrs Cartwright King is complete subject to a
number of limited qualifications as set out below.
i) Files not seen
23. We have become aware through other Post Office Ltd work that there are
files in existence that have not been through the Review process.
' Cases pre charge have usually been dealt with by way of charging advice. Those cases advised for Full
Review in the Initial Sift were not resifted
? Scottish cases were reviewed by Cartwright King lawyers in conjunction with lawyers from BTO
solicitors on 4'" September 2013.
* This process is reserved to the Procurator Fiscal.
* See above.
* Some defendants involved in multi-handed cases were sift reviewed individually and others by the case.
We have consolidated these figures into reviews by case rather than review by defendant.
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24. Whilst the Review process was ongoing Post Office Ltd were separately
complying with Data Subject Access Requests. As part of that Data Subject
Access Request process Post Office Limited asked Cartwright King for two
prosecution files, Sarah Burgess Boyd and Gillian Howard. Those files had
not been prosecuted by Cartwright King but by Royal Mail Group
themselves and they should have been contained within the batch of 30
archive boxes forwarded by Royal Mail Group to Cartwright King for
review. Unfortunately the files were not contained in those boxes - indeed
we have identified that the files were contained in box numbers 68737933
and 685994004. Cartwright King did not receive these two boxes and
accordingly cannot say how many other files may be missing from these
boxes, in addition to those two already mentioned.
25. During the currency of the Data Subject Access Requests it became clear to
Cartwright King lawyers advising on Data Subject Access Request
Applications that a number of those applying for personal data had been
prosecuted but their files had not been submitted to Cartwright King for
review. It is not clear why we have not received these files; we do know
that they were prosecuted by RMG directly and that the files should have
been included in the 30 archive boxes forwarded to us by RMG. Those
cases include David Hedges (sentenced 4/2/2011 at Lincoln Crown Court)
and Peter Holmes (sentenced 29" January 2010).
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26. The Mediation Scheme contains a number of applicants who refer to
having been the subject of Criminal Process. Those files have not been
received by Cartwright King and should properly form part of the Review
process. Examples include Alison Henderson (sentenced 15/12/2010) and
Jacqueline McDonald (sentenced 20/1/2011). We note in particular that
these two named files were prosecuted by Royal Mail Group and agents.
We have therefore requested a full list of mediation applications in order
to reconcile that list against the Review Process, so as to identify any other
similar missing files.
ii) Files damaged, destroyed or incomplete
27. A number of the Files received from Royal Mail Group Ltd archives were
incomplete. In several cases crucial documents were missing and in others
there were almost no papers. In the majority of cases this was sufficient for
an Initial Sifter to establish that the case fell outwith the ambit of the
Review either by date or subject (e.g. a postman delaying mail) but in a
small number we were deprived of the papers dealing with the Crown
Court proceedings and the relevant correspondence and pleadings such as
to enable a proper Review e.g. William Giles (appeared at Southampton
Crown Court 8'* October 2010 but no prior history on file), Sunday
Kisangara (Only a section 16 statement on file - Sentenced 8th February
2012 following a trial).
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iii) Scotland
28. Senior Lawyers from Cartwright King reviewed Post Office investigation
files with lawyers from BTO Solicitors on 4'* September 2013, before
meeting lawyers from The Procurator Fiscal’s Office on the 5" September
2013. Post Office Ltd have been sent a Meeting Report prepared by Simon
Clarke dealing with the issues arising and outcomes of those meetings.
29. We are not content that we have seen all of the Scotland cases. We believe
there to be a small number of cases that were prosecuted by The
Procurator Fiscal’s Office since 2010 which have not been seen by BTO
solicitors or Cartwright King. This does not mean that the Procurator
Fiscal’s Office has not themselves reviewed these cases, particularly given
that senior Cartwright King Lawyers visited the Procurator Fiscal’s Office
in 2013 to ensure that the Procurator Fiscal’s Office was fully appraised of
the situation and to protect Post Office Ltd’s prosecuting function. We have
asked for sight of these files and await their arrival.
iv) Northern Ireland
30. There are very few cases prosecuted in Northern Ireland, where cases are
prosecuted by the Northern Ireland Public Prosecution Service.
Accordingly duties of disclosure touching upon Post Office Ltd
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31.
32.
33.
SOLICITORS
prosecutions lie with the Northern Ireland Public Prosecution Service and
for this reason we have not been given access to these files.
v) CPS England and Wales Files
There are a number of cases which have been prosecuted by the Crown
Prosecution Service. It is understood that these generally arise out of
complaints to the police by commercial organisations running Post Office
Branches.
We have liaised with a number of Crown Prosecution Service branches in
relation to a number of their cases. Again as the prosecuting authority all
disclosure decisions lie with them, however we have ensured that the
Crown prosecution Service Branches are aware of the issues with which
the review process is concerned and have disclosed to them copies of the
Second Sight Interim Report and the Helen Rose Report.
vi) Miscellaneous cases (Misra)
In the case of Misra the issues predate January 2010 but the Trial took place
in October 2010. We have received no file in relation to this case but we
have received the transcripts of the trial. It would seem that this is the only
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35.
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case in which the Fujitsu Services Ltd Expert, Gareth Jenkins, appeared in
court and gave evidence on oath. It is our view that this case clearly passes
the disclosure threshold and we will be disclosing the Second Sight
Interim Report and the “Helen Rose” report to Misra’s lawyers. It should
be said, however, that the defence were aware of the “Falkirk defect” in
this case and it was discussed in the trial. This is the only pre-Horizon On
Line bug of which we are aware.
vii) Wednesday morning conference calls.
. This has proved a useful tool in identifying issues and material that might
have a bearing on disclosure. Thus far no disclosure has arisen as a result
of this process, however a useful example of the effectiveness of the
process can be found in the case of a rogue ATM Cash Point engineer
gluing up Cash Points to remove cash. A prosecution in Liverpool Crown
Court was adjourned in order to permit checks to be made whether this
man had attended the subpostoffice in that case. He had not and we were
able to conclude the case with our disclosure duties properly and
demonstrably complied with. (R v Ajmer Singh)
In future this material will be made available to the Horizon Expert, who
has yet to be instructed, so that he can confidently state that he is abreast of
the current state of the Horizon System.
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Conclusion
36. This has been a thorough in-depth Review of over three hundred cases.
Some of these cases have been reviewed by three separate solicitors and
barristers. Of the cases that have been recommended for disclosure we
have yet to hear of any application made to the Court of Appeal.
Cartwright King.
5'* December 2013