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From: Belinda Crowe[IMCEAEX-
_O=MMS_OU=EXCHANGE+20ADMINISTRATIVE+20GROUP+20+28FY DIBOHF23SPDLT+29
_CN=RECIPIENTS_CN=BELINDA+20CROWE79B93F 1 1-569F-4526-A078-
F5B4958A8917220@C72A47 ingest.local]
Sent: Mon 15/09/2014 11 6 AM (UTC)
To: (-
Subject: FW: Legal Advice on Approach to Mediating Scheme Applications - DO NOT FORWARD -
SUBJECT TO PRIVILEGE
Attachment: ADVICE ON SUGGESTED APPROACH TO CRIMINAL CASE MEDIATION.PDF
Attachment: RE: Escalation points for WG [BD-4A.F1D20472253]
For this pm’s meeting.
Belinda Crowe
148 Old Street, LONDON, EC1V 9HQ,
From: Rodric Williams
Sent: 15 September 2014 12:52
To: Belinda Crowe; Chris Aujard; Parsons, Andrew; David Oliver1; Angela Van-Den-Bogerd
Subject: Legal Advice on Approach to Mediating Scheme Applications - DO NOT FORWARD - SUBJECT TO PRIVILEGE
All,
l attach:
- Brian Altman QC’s advice on Sir Anthony Hooper’s proposals for mediating criminal cases; and
- Stephen Hocking from DACBeachcroft’s advice on the Judicial Review risk in communicating an approach
which could exclude a significant number of cases from mediation.
In short:
- Brian’s advice is that we should not engage with either of Tony’s proposals, given the inherent risk in having a
free discussion about the facts which gave rise to a conviction; and
- Stephen has “no difficulty in [POL] declining mediation in both the conviction and the consequential loss
cases.”
CRIMINAL CASES
Brian’s advice addresses Sir Anthony Hooper’s proposals for mediating criminal cases to determine:
1. whether POL will support, not oppose or oppose an appeal against a conviction (“Appeal Proposal”); and/or
2. liability for the loss where the Applicant was convicted for false accounting (“False Accounting Proposal”).
1. Appeal Proposal
Adopting a position on a criminal appeal as part of the Scheme “would be to court an unacceptable level of risk”:
- the Scheme is expressly not an appeal process, and entry into it was not predicated on having arguable
grounds for appeal;
- the Scheme focuses only on Horizon-related issues, whereas an appeal is concerned with all of the evidence
(incl. confessions or any other evidence pointing to guilt);
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- POLshould only consider its position on a criminal appeal once the Applicant has considered the material
generated in connection with the Scheme, and actually launched an appeal; and
- POL’s position may change as an appeal develops, opening it up to criticism of acting inconsistently on
individual cases and across similar cases.
2. False Accounting Proposal
- Brian does not see a substantive difference between false accounting and fraud or theft - each can be
prosecuted with or without provable loss;
- Thus all cases could be mediated to “determine liability for a provable loss”;
- The proposal would require POL to review POL’s case at court, as well as whether liability for the loss can now
be determined;
- Adiscussion around liability for the loss enables the applicant to try to undermine — in an uncontrolled
environment - the original case and any subsequent Court orders (e.g. under POCA);
- Mediating may only give an applicant false hope that POL might accept some responsibility and settle.
JUDICIAL REVIEW
- We should not refer to POL being “government owned” or to using “tax payer money” as this could imply we
are governed by public law. The point about rational use of money holds equally true for POL as a private
company.
- ACourt claim cannot be brought which denies the state of affairs established by another Court’s judgment or
the grounds on which that judgment is based (e.g. as set out in the indictment).
- On the criminal cases, this point of law enables us rationally:
o to have an absolute rule refusing to mediate criminal conviction cases where no new evidence comes
to light; and
© to adopt a policy (to be applied in all but the most exceptional cases) to defer to court processes where
new evidence challenges a judgment or the grounds on which it is based.
- Onthe consequential loss claims:
o POL should make its position on consequential loss clear to the applicant;
o POLcan then fairly refuse to mediate because “mediation cannot hope to be successful with an absurd
number on the table”;
o i.e. POLis taking a rational, preliminary step to mediation, rather than baldly refusing to mediate.
Please let me know if you require anything further.
Kind regards, Rod
Rodric Williams I Litigation Lawyer
(=) Post Office stories
CO) @postofficenews
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