POL00214820
POL00214820
From: Rodric Williams[/o=MMS/ou=Exchange Administrative Group
(FYDIBOHF23SPDLT)/cn=Recipients/cn=Rodric Williamse9c1 14f4-b03f-4595-b082-
ce89be5c79d47b]
Sent: Sun 14/12/2014 12:10:05 AM (UTC)
To: Melanie Corfieldf,
Subject: RE: Urgent - Nick Wallis and One Show. SUBJECT TO LEGAL PRIVILEGE - DO NOT
FORWARD
And you!
Rodric Williams I Litigation Lawyer
@ 148 Old Street, LONDON, EC1V 9HQ
© GRO
@ Post Office stories
From: Melanie Corfield
Sent: 14 December 2014 00:09
To: Rodric Williams
Subject: Re: Urgent - Nick Wallis and One Show. SUBJECT TO LEGAL PRIVILEGE - DO NOT FORWARD
Thanks Rod. Get some sleep. :))
Mel Corfield
Communications Team
From: Rodric Williams
Sent: Saturday, December 13, 2014 11:58 PM
To: Melanie Corfield; Jarnail Singh; Angela Van-Den-Bogerd
Cc: Belinda Crowe; Mark R Davies; Chris Aujard; Ruth X Barker; Tom Wechsler; Patrick Bourke; Parsons, Andrew
‘0
Subject: FW: Urgent - Nick Wallis and One Show. SUBJECT TO LEGAL PRIVILEGE - DO NOT FORWARD
Mel — my comments are embedded in red. Apologies that you may have to wade through them.
Jarnail — as per my text message, can you please respond on my criminal law comments as a matter of urgency.
Angela —I have a couple of comments called out for you too.
POL00214820
POL00214820
Let me know if you need anything more,
Rod
Rodric Williams I Litigation Lawyer
CD) 148 Old Street, LONDON, EC1V 9HQ
® Post Office stories
From: Melanie Corfield
Sent: 12 December 2014 12:02
To: Belinda Crowe; Mark R Davies; Patrick Bourke; Rodric Williams; Ruth X Barker; Tom Wechsler
Cc: Angela Van-Den-Bogerd
Subject: Urgent - Nick Wallis and One Show.
Hello all
To see below. Can I suggest we have a meeting/ call to discuss please.
Copying Angela to see if we can get any knowledge about Steven Phillips — looks as though he is serving
subpostmaster. The other allegations and accusations are all themes we have robust lines about and also of course
that we are preparing for Jo S.
But I think we need to be extremely robust about opinion from specialists who have not been involved in this and are
commenting from the sidelines.
Let me know what suits today.
Thanks
Mel
To: Melanie Corfield
Subject: Interview request
Dear Melanie,
1) Thank you for your help with The One Show item transmitted on Tuesday 9thDecember. We are now preparing a
second film which is due to go out on The One Show on BBC1 at around the same time next week. We would be most
grateful if the Post Office would be prepared to offer an interview expressing its point of view in the continuing dispute
with some Subpostmasters over Horizon and associated issues. This would need to be recorded by noon on Monday
but we would be able to meet you at your location of choice and we can do it over the weekend if that is the only
option.
No comment.
POL00214820
POL00214820
2) The film we are broadcasting once again refers to concerns over Horizon. This time it features the story of Steve
Phillips from Nelson in South Wales who is having problems with the system, as well as interviews from a group of
former subpostmasters including Noel Thomas, Jo Hamilton, Julian Wilson, who say they felt under pressure to sign
off incorrect accounts even though they did not understand how sums could be missing.
I understand we’re still not discussing individual cases, but if that changes we can pull together the legal files which
often have a record of what happened at the time.
Either way, no one is “under pressure” to falsify their accounts. That is their choice, but even if true, falsifying
accounts at our direction would be a defence, which should be raised in defence to a charge of false accounting —
JARNAIL, PLEASE CONFIRM.
Mr Phillips says he and other Subpostmasters live in fear of being told to pay back losses neither you or they can
explain, and he adds that he and other Subpostmasters do not trust Horizon. This latter point of trust in Horizon by
Subpostmasters is one which has come up many times with other former Subpostmasters we have spoken to.
Horizon is the POS accounting system which Post Office provides and requires our agents to use. If agents don’t like
it, they can choose not to provide services for us. The vast majority of our agents work with it just fine, and we’re not
required to bespoke our POS accounting system to the whims of each individual agent.
3) In our film former Postmasters say it is difficult to investigate the causes of shortfalls for which they are held liable,
because of the way Horizon and associated POL processes and policy function. They say in order to open for business
the day after the close of a trading period they had to agree to pay back alleged shortfalls (either by settling to cash or
settling centrally, which implies payment later). They say this put them in a very difficult position.
Same comment as above re: it’s the system we require our agents to use, and the vast majority of our agents work
with it just fine.
Settling Centrally does not “imply payment later”. It means the shortfall is being disputed, and POL is asked to
investigate how the loss arose and who should be held responsible. I think we have data on how much is settled
centrally, but not all of it is recovered from branches. ANGELA — IS THAT RIGHT?
It is often the case that only the branch can determine what happened in a transaction, as they physically serve the
customer. It is right that they are accountable — they are our agent on the ground, and are responsible to us for what
they do (it’s not possible for us to monitor every transaction at every branch — that defeats the purpose of an agency
network).
A postmaster can choose to open their branch, and they also always have the choice of accurately reporting the
branch’s financial position, in particular how much cash they are holding. ANGELA — IS THAT RIGHT?
4) We ask one former Subpostmaster why she pleaded guilty to false accounting in court when she believed herself to
be innocent. She tell us she felt she couldn’t defend herself because she didn’t have proper records, that the Post
Office had taken some potentially useful items and paperwork away during their investigation and she felt she would
be prosecuted for theft as well as false accounting if she had not pleaded guilty to the latter.
An accused will be legally advised on his/her defence — JARNAIL, PLEASE CONFIRM.
The defence should seek all information relevant to a defence (especially if they know it exists), and the prosecution
has a duty to disclose all material which helps the defence or hurts the prosecution. If she wanted records that hadn’t
been supplied by the prosecution, she should have asked for them —JARNAIL, PLEASE CONFIRM.
It is up to an individual defendant, informed by the professional advice s/he receives, to choose whether to accept or
contest a criminal charge - JARNAIL, PLEASE CONFIRM.
5) We understand from the Subpostmaster contract and from speaking to former Subpostmasters who have been
through the process that Subpostmasters are not allowed a legal representative when they are interviewed under
caution by Post Office investigators. Instead they are allowed one companion who must be a Post Office employee,
POL00214820
POL00214820
who is not allowed to speak. Does this still happen? If so, why does the Post Office think it is fair? Also, we are aware
that Post Office conducts PACE interviews at which Subpostmasters are allowed legal representation. Could you
explain in what circumstances you think it appropriate to interview someone under caution but with legal
representation, and why this is not available to Subpostmasters in the interviews which usually precede them?
The statement “Subpostmasters are not allowed a legal representative when they are interviewed under caution by
Post Office investigators” is NOT correct.
It’s a contradiction in terms — by definition, persons being interviewed under caution have a right to consult privately
with a solicitor. JARNAIL, PLEASE CONFIRM.
A distinction needs to be drawn between interviews concerning the contract, and those which concern criminal
conduct.
The standard Postmaster contract (section 18) provides that POL will meet with a Postmaster to discuss non-
compliance with the contract, unless contemplated court proceedings (civil or criminal) mean this would be pointless.
We have these “contract” meetings to explore whether the POL contract advisor’s decision (e.g. to terminate a
contract) should be different.
If not, the decision stands, and any issue a Postmaster has with it can then be pursued by (civil) lawyers, e.g. sue for
breach of contract.
The contract, which the Postmaster signs up to, sets out who can attend these meetings (over 18, not involved in the
enquiry, is a Subpostmaster, Sub-Post Office Assistant, Royal Mail Group employee, or NFSP Rep).
As far as I am aware, there is no reason why this “friend” cannot speak - ANGELA, DO YOU KNOW?
In contrast, interviews in connection with criminal conduct are conducted under caution in accordance with PACE.
This requires the interviewed person to be advised of the right to consult a solicitor. S/he will then sign a statement
confirming that and (where relevant) that they agreed to proceed without a lawyer — JARNAIL, PLEASE CONFIRM.
Evidence obtained which is not compliant with PACE can be excluded as having been unfairly obtained, i.e. we can’t
circumvent PACE by trying to obtain information through a “contract” interview not held under caution - JARNAIL,
PLEASE CONFIRM.
In short — if it’s criminal, interviews will be conducted in accordance with PACE, with a right to consult a solicitor.
6) We would also like to put to you some opinion about the Post Office’s approach to investigating and prosecuting
subpostmasters. We are in possession of expert opinion from a professor in criminal justice which implies the Post
Office’s dual function as investigator and prosecutor, and its 300 year cultural history of using it against its agents is
unique. That's not to say he thinks you are the only organisation with prosecuting powers, but that you have a unique
culture of prosecuting your agents. He implies this approach lacks the checks and balances of a typical prosecution by
the CPS. In his opinion this creates a situation where miscarriages of justice are more likely to occur.
We should ask for this opinion — the privilege over it could have been waived.
The “expert” cannot comment on what our “culture” is, at least not without speaking to us first.
Nevertheless, if this “expert” believes miscarriage of justice are likely to occur, he should set out for us the how and
why so that we can be sure they don’t. Justice demands that.
We have consulted former First Senior Treasury Counsel Brian Altman QC in connection with our prosecution
practices. Brian’s advice is privileged, and we CANNOT do anything which might waive that privilege. Please
therefore do NOT do anything referencing Brian without clearing it with Legal first.
We have let Brian know we may want to name check him, and this was contemplated when he was instructed. For
internal use only at this time, he included this in his review summary (caveated to the instructions he received): / have
seen no evidence to suggest that Post Office Ltd exercises its investigations and prosecution function in anything
other than a well-organised, structured and efficient manner, through an expert and dedicated team of in-house
investigators and lawyers, supported by Cartwright King solicitors and their in-house counsel, as well as external
POL00214820
POL00214820
counsel and agents where required.
The Post Office has assured us in a Freedom of Information Act request that it uses the Crown Code for Prosecutors.
Can you please explain how this code was applied in the following cases: Jackie McDonald, Damian Owen and Tom
Brown. In these cases the Post Office pursued its own prosecution despite no prosecution having been brought by the
CPS after police investigations. If you are unable to unable to comment on individual cases, please comment on cases
like this in general.
We will not comment on individual cases (the BBC can of course contact the legal representatives for the named
individuals).
Prosecutions do not have to brought by the CPS, nor do they require a police investigation. POL uses the statutory
right to bring a private prosecution which is open to everyone (section 6 of the Prosecution of Offences Act 1985) —
JARNAIL, PLEASE CONFIRM.
7) There is also a point raised by Geoffrey Sturgess, a business contract expert. He believes Subpostmasters should be
told about the history of known problems with Horizon (such as the Calender Square issue and others raised in Second
Sight’s Interim Report) which have led to shortfalls in Subpostmaster accounts and the history of other allegations
against Horizon before they are allowed to sign the Subpostmaster contract.
Again, we should ask for whatever Mr Sturgess has provided.
Generally though, there is no positive proactive obligation of disclosure when negotiating the entry into a commercial
contract.
We do have to respond appropriately to any direct question asked of us during contract negotiations, and we could be
liable for misrepresentation if we don’t.
Given the media coverage of Horizon, you’d expect any new agent to raise the issue with us as part of their due
diligence if they thought it important.
It’s not right to say POL “allows” Postmasters to sign the contract - POL offers to appoint the Postmaster as our agent
under the terms of the contract, and the Postmaster chooses to accept those terms.
Any “business contract expert” would know this.
Let me know if you need background on the “Calender [sic] Square issue” (also known as the “Falkirk Anomlay”). We
looked into this in July 2013 when the SS Interim Report was published. In short, it was raised in Court in Misra
(criminal jury trial conviction) and Castleton (High Court judgment which found with respect to Mr Castleton’s account
that “no flaw can be found on this account in the Horizon system” and “the conclusion is inescapable that the Horizon
system was working properly in all material respects, and that the shortfall of £22,963.34 is real, not illusory”).
8) We will also include opinion from Sandip Patel QC who specialises in areas including business fraud and cyber
crime. He will say he believes that innocent people might have been wrongly convicted. He will also say there may be
grounds for arguing that the Horizon system (incorporating the business processes around it) is not as reliable as the
Post Office believed it to be. He goes on to say that if the PO had failed to carry out a proper inquiry in circumstances
when they should have, then some of the convictions of some of the Postmasters in the mediation scheme might be
unsafe.
Again, we should ask for this opinion — the privilege over it could have been waived.
Again, if this barrister believes miscarriages of justice have occurred occur, he should set out for us the how and why
so that we can be sure they haven’t. Again, justice demands that, which Mr Patel should know as an officer of the
court.
9) With more than a hundred MPs now saying they have no confidence in the mediation scheme we would like to ask
the Post Office what it thinks is the correct way to move forward and find an equitable resolution to the concerns of
POL00214820
POL00214820
subPostmasters up and down the country.
BBC should name the MPs (and not by default).
We set up the Scheme so that Postmasters could articulate and ideally resolve their (legitimate) concerns. It’s an ADR
scheme i.e. alternative dispute resolution to that provided by the courts.
If it doesn’t work for Postmasters, they can pursue remedies through the courts (as JFSA and Edwin Coe have has
intimated they will do).
10) In summary, we have found a number of experts in their field who have concerns about the Horizon system, the
PO’s investigations and prosecutions function and the fairness of the Subpostmaster contract. It suggests there is the
possibility that the way the Post Office goes about its business or did go about its business needs some proper
explanation. One MP described the nature of the relationship between the Post Office and SPMRs as “feudal”, yet you
call them your “life blood”.
Any further comment here will just be repetition!
The content of the proposed programme is not set in stone. This is an opportuninty for the Post Office to respond to
the widespread criticism it is currently facing. I am seeking a senior member of staff from the Post Office who can
explain everything from the Post Office's perspective so that we can get to the bottom of what has happened to these
people. If you will not appear on camera then we ask that you provide a substantive response to the issues raised
above by noon this coming Monday 15 Dec.
Thank you
Nick Wallis