POL00206241
POL00206241
BRIEFING NOTE
MEDIATION OF WENDY BUFFREY
Factual Background
1. The applicant had been the sub post mistress of Up Hatherley sub post
office since 25"" March 1999,
2. The audit of 11"* December 2008 revealed a total loss of £26,256.63 made up
as follows:
© £26,979.36 - Deficit in cash
¢ £161.23 - Deficit in stock
e £883.93 surplus in foreign currency figures
3. In interview she said that she and her husband had bee:
had not been concentrating on her role in the post office. There had been a
catalogue of errors which resulted in losses. She accepted that she had
been putting in incorrect figures onto the trading statements and she had
been inflating the cash figures to cover losses. She denied that she had
taken any money herself.
Progress of case
4, At the PCMH, on 8" October 2010 she served a defence statement
admitting £5,000 of the loss. This loss accrued when a cash remittance bag,
which should have contained £22,000, was found to contain £17,000. She
was not able to meet this and adjusted the cash on hand figures
accordingly.
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POL00206241
5. The Judge insisted that a count 2 of Fraud should be added to account for
this figure and the defendant pleaded guilty on the basis that she was not
responsible for the loss, but its covering up, and the matter then went off
for trial on the remaining £21,000 . This, she contended, was a paper rather
than an actual loss.
6. The defendant pleaded guilty to the remainder on the morning of the trial,
20" September 2008, on the same basis and following a meeting between
her expert and the Officer in the case, Mr Brander.
7. She was sentenced on 18" October 2010 to a Community order with 150
hours unpaid work and the defendant made good the loss of £26,256.63.
Mediation
8. This defendant has applied for mediation (M041) and I have seen the POL
proposed response which causes me concern.
9. The conclusion as stated in the response is, “Based on the evidence
examined as part of the Mediation Scheme investigation, Post Office's
firm conclusion is that the losses revealed by the audit on 10 December
2008 were caused by simple human error on the part of the Applicant.
There is also no evidence that points to any error in Horizon or Post
Office's processes.”
10. We are concerned as to both the nature and substance of this rather
surprising concession given that POL has prosecuted this defendant to
conviction.
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POL00206241
11. In order to make such a definitive concession, we would need to establish:
i. Whether or not the £26,256.63 was an actual loss or a paper
shortfall, as the defendant has contended throughout (which is
doubtful). If it is a paper loss then a number of unfortunate
consequences arise (not least being the requirement that POL repay
to the applicant her £26,256.63), for POL could not be seen to have
profited from her ‘error’. However, a £26,256.63 ‘loss’ being the
result of mis-keying or some other human error input, then that is a
substantial sum to lose and it is for this reason that we doubt the
defendant's account.
ii. If the loss was in fact a real loss, the making of such a concession,
that it is the Post Office’s firm conclusion that the loss was the result
of simple human error, would in any event be both inappropriate
and would undermine the very foundation upon which the original
charge was mounted.
Count 2 - the £5,000 loss.
12. This aspect of the case causes more concern. The applicant pleaded guilty
to Fraud on the basis that the money had been lost but that she had not
taken it.
POL00206241
POL00206241
13. According to POL records the applicant remitted £22,000 to Midway
House Cash Centre on 24" September 2008. This was checked by the centre
on 26" September 2008 and found to contain only £17,000 - it was short by
£5,000 in £10 notes.
14. The branch trading statement for the period ending 8" October 2008 shows
that stock unit 3 had made a £4,413.57 gain which should have virtually
balanced out the £5,000 loss when the transaction correction came in for it
on the 17" October 2008. This could not have caused the loss at the branch
to rise to £25,000, as asserted by the applicant.
15. The figures seem to suggest that the £5,000 underpayment was an error
and stock unit 3 had the funds to meet the transaction correction, which
leaves the questions as to why this did not happen, what happened to the
£5,000 and why the defendant admit her guilt to dishonesty by pleading
guilty to count 2 on the indictment. Unless she or someone else had taken
the £4,413,57 in stock unit 3.
Conclusion.
16. We would advise that there is some considerable danger in inserting the
‘concession’ paragraph into this response, for the following reasons.
“Paper loss”
17. If we accept that this is a “paper loss” then the applicant was convicted on
two counts of Fraud where POL suffered no actual loss. As a law student's
POL00206241
POL00206241
exercise, if there was no loss but she believed there was and cooked the
books in order to avoid her contractual liability to pay it and to keep her
business going, then she is guilty of what she has pleaded to.
18. However, as a practical exercise she has pleaded guilty to charges which
POL would have been unlikely to have brought had they suffered no
actual loss. She could have run, and in my opinion successfully run, a
defence based on lack of dishonesty, acting as she did in the face of a huge
loss, the potential accusations of theft and a draconian contract that would
have economically destroyed both her and her sick husband.
19. If this concession were to be made, we condiser it likely that, if well-
advised, this Applicant would have recourse to the Court of Appeal and it
is my opinion that the Court of Appeal would quash her conviction. Again
POL will be obliged to return her £26,256.63 with interest.
20. A further, and potentially more far-reaching consequence of a successful
appeal lies with disclosure, for POL would be obliged to disclose to every
defendant who had advanced a similar, ‘inefficient operation’ defence.
21. In the final analysis, to make the proposed concession may, in our view,
lead to a flood of appeals to the Court of Appeal and the consequent return
of many thousands of pounds of money paid by defendants in
compensation/confiscation for losses that never actually occurred.
“Actual Loss”
POL00206241
POL00206241
22. If we contend that the branch suffered an actual loss of £26,256.63 then it
begs the question why it is our “firm view” that this arose from “simple
human error on behalf of the applicant.” If the losses arose through a
course of appalling negligence rather than theft and the Applicant entered
false figures to conceal the losses caused by her mismanagement, then the
response should be phrased so as to say that; she was properly prosecuted
and sentenced and held accountable for the money that she had cost POL.
Actions
23. This case should be investigated by an experienced officer who should
ascertain:
i. Whether the loss was “actual” or “paper.
ii. How the losses were caused. The POL response to mediation refers
to a “catalogue of human errors evidenced in the call records,
evidence that the branch was being run without due care and
attention.” These should be explained.
iii. The paper trail of the lost £5000 - the subject of Count 2. What
happened to the transaction correction of the 17" October 2008?
Harry Bowyer 2" July 2014
Senior counsel
Cartwright King Solicitors