RESPONSE TO THE INTERIM REVIEW OF CARTWRIGHT KING’ S
CURRENT PROCESS BY BRIAN ALTMAN QC
Introduction
This response is intended to address the issues highlighted by Brian
Altman QC (BAQC), clarify Cartwright King’s (CK’ s) approach to
the review and to provide the further information requested by
BAQC. The paragraphs in this response should be read as the
response to the same numbered paragraph in BAQC’s Interim
Report.
Areas of concern
ii)
iii)
There is a real area of concern since this review began which was
addressed by the advice of Simon Clarke dated 2.4 August 2013
(attached).
As a result of a conference on the 3" July 2013 POL established a
weekly conference call to act as a central hub to act as the primary
repository for all Horizon related issues. Participants were
informed that they should bring all Horizon related issues that they
had encountered - minutes were to be taken, centrally retained and
disseminated to those who required the information - this list to
include POL’ sHorizon expert witness.
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iv)
v)
vi)
I understand that as of Friday 9" August 2013 POL has yet to
identify such a witness.
The minutes have not been circulated as far as CK are concerned
and the advice of Simon Clarke deals with some worrying
suggestions that the minutes should be destroyed.
There have been four telephone conferences thus far which were
attended by a solicitor from Cartwright King. These meetings have
produced certain suggestions including inter alia:
Concerns that Post Office Card Account transactions have been
“lost in flight”. (Meeting of 24/7/13 - Prestbury’ s)
Mention of undefined bugs at Hordern - Not sure if they are
being investigated. (Meeting of 24/7/13)
Possible case of Horizon receipt printing incorrectly - 4 instead
of a1 (Meeting of 24/7/13)
Issue where if the cashier presses buyback when selling Euros
the loss won’ tbe found. Will not generate transaction correction.
It will be a hard loss that the SPMR will not be able to explain
when audited. (Meeting of 31/7/13)
Errors in the Bureau de Change when remmed in as a quantity
nota value. (Meeting of 31/7/13)
The issue of ATM theft by an engineer was raised at the meeting
of 31/7/13. This was raised again at the meeting of 7 August
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2013 - List of this engineers activity requested - may be
problems as to how far records will go.
vii) I Whilst this system is still in its infancy there are issues that should
be dealt with as soon as possible:
(a) An expert to replace Gareth Jenkins must be identified
and instructed without delay. As almost all of our cases
depend on the integrity of Horizon - even if only to the
quantum of the thefts - we need to have an expert to
say that the system is sound and, whilst there are and
have been glitches, the system and its product are
sound. Time is of the essence as there are cases in the
system that will be compromised without such
evidence. This is old ground so I will not go over it
again.
(b) The product of the hub meetings should be collated and
assessed. Much of it is raw rumour but it needs to be
investigated so that we can dismiss it as that. Other
material may well point to genuine flaws in either the
Horizon system or the use of it by Post Office staff and
needs to be addressed both to fix the flaws and be
assessed as to its potential disclosability. At the moment
we are in a twilight world of knowing that there are
hares to be chased yet not knowing if anyone is doing
the chasing.
(c) Eventually the system envisages that the Expert will be
copied in on the minutes of the meetings so that he can
address them but until he is in place someone needs to
keep an eye on whether any of these meetings raise
matters that should be considered as disclosure.
Comments on BAQC’ sInterim Review
1.
It would be useful for BAQC to be given, in addition to the
documents that he already has, the Review Protocol which set out
the parameters given to the initial sifters in the CK review.
The Ishaq file was not subject of an initial shift. 5 of the initial 27 file
reviews to date have gone straight to full review as the lawyers
concerned knew that the requirements of the initial sift Review
Protocol would be met by these cases.
The lawyers conducting the initial sifts include two of the regular in
house prosecuting solicitors, Martin Smith (MS2) and Andrew Bolc
(AB2). These two lawyers have sifted some of their own cases. As
there has not been any allegation of any misconduct by CK lawyers
or CK, it is submitted that it is perfectly proper for a reviewing
lawyer to ask himself the question, “Had I known at the time of
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disclosure what I know now would I have disclosed the material
that has now come to light?” - If BAQC is of the view that this
approach is flawed then those cases that were not put forward for
full review can be resifted by lawyers independent of the cases to
see if a full review is justified.
The barristers conducting the full reviews have, on occasion,
conducted proceedings in the Crown Court and have had dealings
with some of the cases by way of providing initial advices
involving charging or evidence gathering. The vast majority of
cases at the Crown Court were prosecuted by members of the
independent Bar. Again should BAQC consider that reviewing
counsel should be completely clean of the case that he is reviewing
then those cases can be rereviewed by fresh counsel. This will only
affect a very small proportion of the cases currently reviewed.
BAQC states that he is proceeding “on the basis that the sole focus
of possible complaint is the Horizon system.” We have been
operating on a slightly wider remit in that the Second Sight Interim
Report expresses concerns about training issues regarding the
Horizon system and the possibly ineffective support that sub
postmasters (GPMRs) may have received. The initial sifters were
alive to theses issues as well when considering whether a full
review was necessary. The product of the Wednesday “hub”
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11
meetings has not been part of the sift process as it post dates most
of the sifts.
The assumptions made by BAQC in this paragraph are not entirely
correct. CK has used independent counsel and agents to prosecute
in the Magistrates’ Court and in the Crown Court and an in house
POL lawyer, Jarnail Singh, has prosecuted cases in the Magistrates’
Court. In Northern Ireland the CPS prosecute the cases and in
Scotland the Procurator Fiscal’ s office prosecutes.
(b) CK have been reviewing cases which have begun since 1*
January 2010.
(b) CK’ s current progress is: 155 initial sifts and 27 fully reviewed
cases.
(d) In the footnote to this subparagraph BAQC refers to the
possibility that there are two Helen Rose reports. This seems to
have arisen from a typographical error in Simon Clarke’ s review of
R v Ishak where he gives the wrong date for the Helen Rose Report.
The actual date is 12" June 2013.
(e) 4 English cases have been terminated. We have also liaised with
CPS in two cases in England and Wales and in Scotland we have
liaised with the Procurator Fiscal and BTO solicitors with results as
yet unknown.
As above issues of training and support are already included in
remit but BAQC may agree that should there be substance in some
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14
15
16
17
of the “Wednesday Hub Conference” suggestions that the net
should be cast wider we would be happy to comply and rereview
the cases already reviewed.
The post-conviction post-review letter sent in the Ishaq case was
the only one sent to his solicitors as a result of this review. We took
the view that the Second Sight Interim Report and the Helen Rose
Report were self explanatory but should BAQC feel that a summary
of the issues should be included in such letters then we will, of
course, comply. The only material that we have thus far served on
potential applicants is the Second Sight Interim Report and the
Helen Rose Report (Redacted).
(a) The Horizon system extends to Scotland and Northern Ireland.
(b) We have taken the starting point of 1‘ January 2010 as this is the
year that Horizon on line was rolled out.
Dr Jenkins has not given evidence whilst CK has been acting. He
has attended court in one case only which subsequently pleaded
out namely Ishaq. Plainly should he behave in the manner
suggested by BAQC then there is potential for conflict.
We will identify the cases in which Dr Jenkins gave a statement for
the Crown and whether he had direct contact (phone, email or face
to face with prosecution counsel) and if so about the scope and
content. There have been two cases where in house counsel has
prosecuted and reviewed the case. In one, Ishaq, the review led to
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19.
21
23
24
disclosure of the reports and in the other we intend to discontinue
(the latter did not involve Dr. Jenkins).
The same sift criteria applies to guilty pleas as to other cases. Cases
are identified as suitable for review where the defendant raises any
of the specified issues in any way e.g. interview, comments to
auditors or representations made by his representatives either in
writing or at court. We have been alive to such issues being raised
inferentially.
There have been no abuse of process hearings where Dr Jenkins has
given evidence. There has only been one PII application in any of
our cases which was in order to adjourn a case until such a time
that the Second Sight Interim Report could be disclosed.
E.g. Ishaq which went immediately to Full Review with no initial
sift.
(a) As discussed above we have also been considering issues such
as training and support when they have been raised in any way. We
are alive to the prospect that cases already sift reviewed may need
to be rereviewed in the light of the “Wednesday Hub Conference”
material.
(b) We are alive to this - see para 17 above.
(c) There are, at the moment, two reviewers - Simon Clarke and
myself, Harry Bowyer. I have only had peripheral involvement in
the Post Office cases having settled a number of early advices and
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draft charges. I have only appeared in the Crown Court on one
occasion for a sentencing hearing. I have not reviewed any case in
which I have had any substantial involvement.
(d) The initial sifters have been instructed to err on the side of
caution, however we too agree that the sift criteria may potentially
be too narrow given the information derived from the “Wednesday
Hub Conferences”.
(e) The guilty pleas have always been within the remit of the
review.
(f) No such cases have arisen.
(g) No such cases have arisen
(h) Such cases have been prioritised.
(i) We have a spreadsheet with much of this information on - we
can add the details sought by BAQC.
(j) BAQC has the sample letter. We have only served the Second
Sight Interim Report and the Helen Rose Report.
Conclusion
It would be highly desirable for the senior reviewing lawyers from CK to
have a conference with BAQC in order that the review process can be as
watertight as we can make it. Some of his concerns had already been
addressed and others we are now addressing. Others - I am thinking of the
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potential conflict point - do not require addressing immediately but could
usefully be canvassed.
It would be helpful if Brian Altman QC could see this response and be
furnished with my contact details in order that he can address any further
concerns that he has directly to CK as if there are fixes required it would be as
well that they are fixed quickly.
13 August 2013
Harry Bowyer
Barrister
Cartwright King
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