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From: Reid, Tom
Sent: Fri 19/06/2015 2:14:58 PM (UTC)
To: Mark R Davies! “GRO
Ce: 4 Rodric
lanie Corfield:
Subject: RE: BBC Panorama interview [CMCK-UK.FID8673510]
Attachment: Letter to BBC Legal - 19 June 2015(207397780_1).PDF
All,
Further to Patrick’s green light, please find attached a copy of the letter as sent to the BBC's legal
team.
Kind regards,
Tom
Tom Reid
CM's’
Law. Tax
CMS Cameron McKenna LLP I Mitre House, 160 Aldersgate Street I London EC1A 4DD I United Kingdom
www.cms-cmek.com
From 1 July we are moving to Cannon Place, 78 Cannon Street, London EC4N 6AF.
Sent: 19 June 2015 14:16
To: BARTY, Susan
Cc: Patrick Bourke; Rodric Williams; Melanie Corfield; Reid, Tom
Subject: Re: BBC Panorama interview [CMCK-UK.FID8673510]
Has this letter gone to BBC?
It is, I think, important and separate to the wider legal letter.
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Mark
Mark Davies
Communications and Corporate Affairs Director
Post Office Ltd
Mobile:
On 18 Jun 2015, at 13:47, BARTY, Susai i
Dear all
I attach a draft letter to Second Sight. Although Patrick mentioned that the “legal letter”
should make the confidentiality position clear, if Second Sight are going to be interviewed
in the next 2 days, we should be putting the BBC on notice before the interview. We have
therefore drafted the letter as a stand-alone letter on that basis. Please let us have any
comments.
Is it also possible to get back to Second Sight and to suggest to them (again) that they
should be asking the BBC first what contribution they are being expected to make and, in
particular, what the areas of questioning are going to be.
In relation to the additional comments made by the BBC below there are clearly a number
of issues that we will need to address, including to understand the full context of the
extracts from the prosecution files and investigator’s report. I am sure you have that
already very much in hand. However, they refer to “a computer expert” and “a forensic
accountant”, but without giving any further details. Under the BBC Guidelines they are, of
course, required to tell “contributors” in advance “about the range of views being
represented in the specific content to which they are contributing and, wherever possible,
the names of other likely contributors”. I would therefore suggest that BBC should be
asked for their names (and, if they refuse, why it is not possible to give their names), as
well as what they are saying and what is their expertise.
Kind regards
Susan
Susan Barty
Partner
<image001.jpg>
CMS Cameron McKenna LLP I Mitre House, 160 Aldersgate Street I London EC1A 4DD I United Kingdom
www.cms-cmck.com
From 1 July we are moving to Cannon Place, 78 Cannon Street, London EC4N 6AF.
From: BARTY, Susan
Sent: 18 June 2015 12:08
To: 'Mark R Davies'; Patrick Bourke; Rodric Williams
Cc: Melanie Corfield; Reid, Tom
Subject: RE: BBC Panorama interview [CMCK-UK.FID8673510]
Thanks for this, Mark.
We will send over a draft legal letter for Second Sight shortly, and will take the email
below into account in our draft for the main legal letter, which we hope to let you have
later today.
Best wishes
Susan
Susan Barty
Partner
<image001.jpa>
CMS Cameron McKenna LLP I Mitre House, 160 Aldersgate Street I London EC1A 4DD I United Kingdom
Sent: 17 June 2015 20:13
To: Patrick Bourke; Rodric Williams; BARTY, Susan
Cc: Melanie Corfield
Subject: Fwd: BBC Panorama interview
To see. Can we get an update on legal letter please?
Sent from my iPad
Begin forwarded message:
From: Matthew Bardo
Date: 17 June 2015 1!
, Conor Spackman
Subject: RE: BBC Panorama interview
Hi Mark
Thank you for getting back to me.
I am afraid I do not agree that there is nothing new in the story that we are covering. In
the past few months there have been a number of significant developments. Among them
are the release of Second Sight’s final report that includes criticism of the Post Office by its
own investigators, the acceptance of twenty cases for consideration by the Criminal Cases
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Review Commission and the information obtained as a result of our investigation. I think
we are scrutinising new evidence that raises important questions about the way the Post
Office has behaved.
The purpose of the briefing that you kindly arranged was for you to brief us on the
background to our key lines of enquiry. It was made clear beforehand that we would not be
briefing you about our research. The briefing has informed the allegations that we emailed
to you on Friday and it will help us to report your position fairly and accurately on the areas
that will be covered by the programme. It is now the purpose of the interview for us to put
our questions and allegations to the Post Office in order to obtain a filmed response for
broadcast.
As a former BBC journalist, you may remember that we do not tell people in advance what
questions will be asked in an interview. This helps maintain our editorial independence.
We normally provide interviewees with question areas and sufficient information to
enable them to understand any allegations that might be put to them. In this case, I believe
we have done that.
We do not normally share the evidence that supports our allegations. However, I accept
that in this case there are a lot of detailed and complex points. We want the interviewee
to have a full and fair opportunity to answer questions that relate to decision-making at
the highest level of the organisation.
Therefore, we are willing to share the following key pieces of evidence so that you are ina
better position to respond:
We have read extracts of minutes of a joint Fujitsu/Post Office meeting at which a bug was
discussed. We obtained these extracts from the Second Sight final report and we
understand that this meeting took place in autumn 2010. The minutes of the meeting state
that this bug could impact “ongoing legal cases where branches are disputing the integrity
of Horizon Data.”
We have interviewed a former employee at Fujitsu, who worked in “third line support” for
the Horizon system. He says it was possible to remotely access data held on branch
terminals and to amend that data. He also alleges that system errors were more
widespread than has previously been reported.
We have also obtained extracts from Jo Hamilton’s prosecution files. One extract includes
comments made on 16th November 2007 by the Principal Lawyer of the Criminal Law
Division of Royal Mail working on Jo Hamilton’s case. The lawyer wrote that when it comes
to asset recovery, “the theft charge makes life so much easier”. Another extract is from
the Post Office investigator’s report into Ms Hamilton’s case. On 17 May 2006 the Post
Office Investigator reported “I was unable to find any evidence of theft or that the cash
figures had been deliberately inflated”.
We can also tell you that in the programme we currently expect to include interviews with
Jo Hamilton, Seema Misra, Noel Thomas, James Arbuthnot, a computer expert, a forensic
accountant and a former Fujitsu employee.
I am keen to confirm a date on which we can film the interview. You have mentioned that
diary pressures mean that next week is now the earliest that this could be done. If we
could make it early in the week, that will help us to consider the points raised and ensure
that they are reflected fairly throughout the programme. We have to finish the edit by next
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Friday in order to have the programme ready for broadcast.
Please do also send over the information that you said you would provide to Tim and me
when we attended the briefing.
Thanks for your help.
Matt
From: Mark R Davies [mailto.
Sent: 16 June 2015 10:34
To: Matthew Bardo; Conor Spackman
Cc: Melanie Corfield
Subject: RE: BBC Panorama interview
Dear Conor and Matt
Many thanks for your email of late Friday afternoon and for the further detail it provides in
terms of the ground you appear to wish to cover in your programme, and for Matt’s follow
up. My apologies for getting back to you slightly later than I had planned.
As you know, I remain puzzled and concerned that the BBC did not see fit to raise the
majority of these issues and the very serious allegations within them with us when we met
your colleagues at our offices last Tuesday.
In your email, you say that you have evidence for the propositions you advance but, to
date, no-one engaged in the making of the programme (nor, indeed, of other BBC
programmes featuring this issue) has actually provided that evidence to us. Accordingly,
and once again, I would ask that you provide us with any evidence you have to support the
allegations you make, the list of contributors, what they are saying and what they have
been asked to comment on, so that we might be in a position to respond to it appropriately
as we are entitled to do.
The general thrust of what you say is not new. Claims of a similar nature have been
levelled at us before but no one has ever been able to provide us with any actual evidence
to support them. For the avoidance of doubt, the Post Office has been guided in all that it
has done in relation to the cases you cite, and indeed all complaints made of a similar
nature, by the individual circumstances which each presents and the actual evidence of
what, in fact, took place. You will understand that it would be entirely inappropriate for the
Post Office, or indeed any other organisation, to be guided in its actions by anything which
does not carry this essential quality of substantiation, particularly when the allegations
being raised with us are so serious.
What you have so far presented us with is, in essence, a repetition of various assertions
and allegations made to us in the course of this process, each of which has been thoroughly
re-investigated by both ourselves and Second Sight and repeatedly addressed over a
period now stretching back some 3 years. As you are aware, the Criminal Cases Review
Commission (CCRC) is also examining a number of cases (they having been referred to
them) and the Post Office is co-operating fully with the Commission in that process. In the
circumstances, the Post Office believes that where there has been any critical finding such
an investigation by the CCRC is the appropriate route to determine many of the issues
raised.
As we made clear in the lengthy session we had with your colleagues last Tuesday, we are
not prepared to engage in a public debate about individual cases. We gave each applicant
to the scheme an assurance that we would afford them absolute confidentiality in the
handling of their complaint. This was also the agreement reached with the Justice for
Subpostmasters Alliance, Second Sight and others involved in the establishment of the
scheme, and was appropriate given that the cases often raise matters of a highly sensitive
personal nature for Applicants; and we have responded to each of the points raised in full:
we have done so directly with each individual with a case in the scheme and with Second
Sight.
It follows that I will not be addressing each and every point raised in your email. However, I
am happy to respond more thematically as follows:
Prosecutions
© The Post Office does not prosecute subpostmasters for making mistakes — on the
contrary, it has on occasion done so when there is sufficient evidence for a realistic
prospect of conviction and where it is in the public interest to take that prosecution
forward
© Post Office complies with the Prosecutors’ Code of Practice which sets out this
requirement
¢ Decisions as to how to plead to a charge are taken by those individuals and their
independent legal advisers only, informed by their own independent legal advisers
e It is a matter of public record that none of the individuals whose cases you have
chosen to highlight with us has appealed their conviction — an option which
remains open to them
e The Post Office as prosecutor has a continuing duty to disclose any information
which may assist the defence even if it undermines the prosecution case; the Post
Office has complied and continues to comply with that duty
Horizon
© Over the last 3 years, and across all the complaints we have received and
comprehensively re-investigated, there is no evidence to show that Horizon was
responsible for the losses incurred in the relevant branches
© Post Office cannot edit, amend or otherwise alter branch data remotely; it can add
a transaction to a branch account - this is, naturally, subject to rigorous
authorisation protocols and carries a unique identifier code rendering it
immediately distinguishable from any other transaction
e Post Office volunteered this information to Second Sight in 2013 and again made it
clear in its response to Second Sight’s final report in April of this year
e This process has only been used in this way on one single occasion since the
introduction of Horizon OnLine, during pilot testing work and this was done with
the full knowledge and indeed co-operation with the relevant subpostmaster
Second Sight
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© We have provided Second Sight (which has acknowledged it is not expert in
matters of criminal law or procedure) with a very significant amount of
information over the course of the last 3 years including all non-legally privileged
materials relating to prosecutions. It is a basic tenet of our justice system that
discussions between a client and his or her lawyer are privileged from disclosure,
even to a Court, and this applies equally to the advice a defendant receives, e.g. as
to how to plead guilty to a charge and with what consequence
¢ Anumber of applications to the CCRC have been made by individuals with cases in
the scheme (note these should not be confused with appeals) and the CCRC will
review all the relevant material including all legally privileged material
e This provides an absolute assurance to those individuals that all aspects of their
prosecution and conviction will be looked at by an independent body
As I hope to have made clear, whatever theories have been advanced in relation to the
Horizon system, no one has shown it to be responsible for any of the losses incurred in the
relevant branches. Even Second Sight acknowledged that human actions are the most
common explanation. I would again stress the importance we attach to seeing the
evidence which supports any allegations that you are proposing to make and I look forward
to receiving your reply in this regard. I also look forward to receiving the list of
contributors, what they are saying and what they have been asked to comment on.
We will of course continue to engage with you on any subject or question. I am concerned,
however, at the direction the programme appears to be taking [outlined very clearly in
Conor’s email]. Given the BBC’s previous coverage of this issue and the apparent direction
of the Panorama programme [which does not appear to be taking the issue forward] I
wanted to inform you that I will be making representations more widely within the BBC.
In relation to the timing of an interview, any interview would need to take place next week
because of diary pressures and the rescheduling of your broadcast to 29 June. In the
meantime, I am sending Matt Bardo and Tim Robinson the information which we did not
have immediately to hand when they came to see us last week.
Best wishes
Mark
From: Matthew Bardo [mailto
Sent: 12 June 2015 20:06
To: Mark R Davies; Conor Spackman
Cc: Melanie Corfield
Subject: RE: BBC Panorama interview
Hi Mark
Thanks for coming back to us so swiftly.
On the issue of theft charges being used to pressure sub-postmasters to plead guilty, you
will be aware that this allegation is repeatedly raised in Second Sight’s reports and our
evidence is drawn from their written investigative findings.
We made clear ahead of the briefing that its purpose was for the Post Office to brief us and
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not for us to brief the Post Office about our research. The contents of the briefing
were very helpful and will help us to represent fairly and accurately the Post Office’s
position on the things we discussed.
On the subject of the date of the interview, we are very keen to record it next week as that
will give us sufficient time to consider the points raised and to ensure that they are
reflected fairly throughout the programme. Would it help if we were to move the
interview to Thursday or Friday of next week instead?
All the best
Matt
From: Mark R Davies [mailto:
Sent: 12 June 2015 17:25
To: Conor Spackman
Cc: Matthew Bardo; Melanie Corfield
Subject: Re: BBC Panorama interview
Dear Conor
Many thanks for this.
We will of course come back to you in more detail next week but for the time being I make
the following points:
- you make below some extremely serious allegations about the Post Office. I am gravely
concerned that you make these three days after we sat with your team for two hours. I am
at a loss to understand why these very specific and serious allegations could not have been
raised at the briefing.
- you informed us earlier in the week that your programme schedule has changed and you
plan to broadcast on June 29. Given that, diary pressures and the scale and seriousness of
the allegations you are making, we will look to arrange the proposed interview in the week
of the 22nd. This remains in line with your proposed schedule had your programme been
due to broadcast on June 22.
- you quote evidence to suggest the Post Office may have unfairly used theft charges to put
pressure on SubPostmasters. Please as a matter of urgency provide some evidence for that
very serious allegation.
Best wishes
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Mark
Mark Davies
Communications and Corporate Affairs Director
On 12 Jun 2015, at 16:56, Conor SpackmanI wrote:
Dear Mark,
Firstly, I would like to thank you for the time you and your colleagues spent
with Matthew Bardo and Tim Robinson on Tuesday. It was very helpful to be
able to discuss this subject in detail with the relevant people.
Since we last wrote to the Post Office, our research has continued and I am
now able to give you more information about the points that are likely to be
raised in the programme.
Our evidence suggests that the Post Office may have unfairly used theft
charges to put pressure on sub-postmasters to plead guilty to false
accounting and/or repay apparent losses identified by the Horizon computer
system. The evidence also suggests that the Post Office failed to consider or
investigate the possibility that Horizon could be the cause of some of the
losses. As you know, it has been suggested that these failings may have led to
miscarriages of justice in some cases.
Having read reports written by Second Sight and Post Office responses to
them, we wish to address the following question areas in an interview. They
are broken down below under the subject matter to which they relate:
Jo Hamilton
- the decision to charge Jo Hamilton with theft
- why Ms Hamilton’s office was £2000 down on the Horizon system
and why this doubled to £4000 when she followed the instructions
from the help desk
- — her claim that she sought help and the Post Office failed to provide it
- her explanation that she subsequently felt trapped and did not know
what to do other than sign off inaccurate accounts
Noel Thomas
- Mr Thomas’s claim that that he told the helpline about his problems
with the system and about the missing money
- the suggestion that it is no longer possible to know the results of
important tests carried out on Mr Thomas’ system because those
records have now been lost or destroyed
- the suggestion that Mr Thomas was poorly treated after 42 years of
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loyal service
- that the Post Office now believes that the cause of the shortfall in Mr
Thomas’ branch is likely to have been mistakes by him or his staff
Seema Misra
- Ms Misra’s claim that she and her staff were not provided with
adequate help despite making more than 900 calls to the helpline
- the suggestion that the Post Office failed to disclose crucial
information during Ms Misra’s trial including technical information
about Horizon to the defence’s expert witness
- that the Post Office and Fujitsu had identified bugs in Horizon prior
to Ms Misra’s trial that were not disclosed to the defence
- the suggestion that this information could have helped Seema and
other sub-postmasters stay out of prison
Post Office investigations and prosecutions
- the suggestion that the Post Office has a financial interest in
prosecuting sub-postmasters because it helps with the recovery of
missing money
- particularly in that context, the suggestion that miscarriages of
justice are more likely because the Post Office exercises both the
power of investigation and prosecution
- the suggestion that the Post Office has unfairly pursued theft charges
to pressure people into paying up
- the claim by numerous sub-postmasters that they were told by Post
Office investigators they were the only ones having problems with
the Horizon system
Horizon system
- the suggestion that the complexity of the Horizon system adds to the
likelihood of errors
- the suggestion that the lack of an automatic paper record from the
Horizon system adds to the likelihood of errors
- the suggestion that Post Office prosecutions relied on the belief that
the computer system was robust, when in fact computer errors may
call this into question
- the suggestion that bugs in Horizon were more widespread than
Second Sight have found
- the suggestion that there were around 30 people working in “third
line support” at Fujitsu and that they fixed dozens of system errors
- the suggestion that errors were fixed by a team who could access
transaction data, add transactions or make changes to transactions
that would affect the balance in branch, without the sub-postmasters
knowledge
Second Sight investigation and select committee in parliament
- Second Sight’s claim that their work has been hampered by an
increasing lack of co-operation
- Second Sight’s understanding that this is the result of legal advice
- Second Sight’s claim that the Post Office has failed to provide full
access to legal and prosecution files
- The apparent failure of the Post Office to provide Second Sight with
emails relating to the eyewitness account of an incident in Bracknell
in 2008
- Second Sight’s evidence that remote access to branch data is possible
in spite of Post Office denials
Please could you let us know the time that you have scheduled on
Wednesday 17 June for the interview? I would be grateful if we could arrive
about an hour before the interview begins in order to set up. It usually takes
about half an hour to pack the kit away again after we have finished filming.
Thanks for your help.
Conor
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