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From: Mark R Davies[/O=MMS/OU=EXCHANGE ADMINISTRATIVE GROUP
(FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=MARK R DAVIESA80D7269-659B-4 1 D0-9C80-
68D9DE4FA7C5D38]
Sent: Thur 18/06/2015 6:35:18 PM (UTC)
To: J; Conor Spackmali
Cc: Melanie Corfield
Subject: RE: BBC Panorama interview
Dear Matt
Thanks for your email.
On your first point, you say:
"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 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."
Most of the points raised above have been covered by the BBC, most recently on the Today programme and BBC.
Breakfast, but also at length by your colleagues at Inside Out and the One Show. The CCRC point has also been covered
by other media.
Insofar as the CCRC is concerned, your email suggests the fact that cases have been referred to the CCRC constitutes
“new evidence” of wrongdoing on the Post Office’s part. Anyone who has been convicted of a criminal offence in
England, Wales or Northern Ireland can apply to the CCRC, so such applications are not actually evidence of any
wrongdoing or of any miscarriage of justice. Similarly, any criticism of POL by Second Sight does not constitute actual
evidence of wrongdoing unless, of course, such criticism is substantiated.
As we said in our response to Second Sight's “Part Two” report, provided by us to the BBC in April, we will properly
engage with the appropriate independent bodies in the review of any alleged miscarriage of justice. It is however clearly
inappropriate for us to comment on those cases being reviewed by the CCRC until those reviews have been completed.
In respect of your suggestion that the “new evidence” also comprises “information obtained as a result of our
investigation”, we would again request that you provide us with details of such evidence so that we may be given a fair
and reasonable opportunity to consider and respond to the evidence which is being used in support of some very serious
allegations.
Turning to your other three substantive points, I quote below your comments and our response.
1. '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.”
As you say, this is in the Second Sight report which we shared with media who had shown an interest in the story. This is
not a new point, nor does it constitute “new evidence”. Indeed, it is exactly this point which we disclosed ourselves to
Second Sight, which was considered in their 2013 report and which has been covered in detail by the BBC in the past.
We would refer you to the following link: http://www.bbc.co.uk/news/uk-23233573 As you acknowledged yourself, no
computer system is infallible. This issue does not change the underlying position: Horizon works as it should to record
branch transactions accurately and no-one, including Second Sight, has provided any actual evidence that suggests it did
not in the cases examined.
2. '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 explained in detail the circumstances whereby a balancing transaction can be added. It has happened once since
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Horizon OnLine, during its pilot, and with the full knowledge of the postmaster. In relation to system errors, as stated
before, no system is infallible. However, you have not provided any actual evidence to demonstrate that any system error
has resulted in a miscarriage of justice. To the extent that you believe that you have any actual evidence to substantiate
this serious allegation, we would ask that you disclose it. If you are proposing to make this allegation, please consider
that some 70,000 people have continued to use this system every day throughout the period of Second Sight’s
investigation without major incident, processing six million transactions everyday: if there were systemic problems with
branch accounting, it is reasonable to expect them to have been more widely experienced across the Post Office network
than the 136 individual complaints considered by Second Sight, which arose over a more than 10 year period during
which there were some 500,000 Horizon users (i.e. the complaints come from 0.0003% of users). However, if you have
actual evidence of the Horizon system causing losses, it is very important that you produce it: the system is relied upon
by millions of customers and thousands of small businesses. Any unsubstantiated allegation that the system is deficient
is a serious allegation that would be extremely harmful to our business.
3. "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”."
You are selectively quoting from a partial record of a prosecution file over which Post Office continues to assert legal
professional privilege. You will appreciate that it can be seriously misleading to take a quote out of context. Further, you
should be aware that Ms Hamilton has asked the CCRC to review her case, and it is therefore clearly inappropriate for us
to comment on those cases being reviewed by the CCRC until that review has been completed.
I would also like to cover with you the information that you asked for in the briefing last week that we did not have
immediately to hand.
Number of criminal cases: There were 150 applications to the scheme, of which 37 involve the conviction of a
postmaster. As we stressed, each and every one of such cases is considered on all the available facts and
circumstances before a decision is taken regarding whether or not it should be put forward to mediation (which, it must be
remembered, cannot reverse or overturn any criminal conviction — only the Criminal Courts have that power).
Evidence required to bring false accounting and/ or theft charges:
Whether there is sufficient evidence to bring a charge is, naturally, determined by the particular facts in issue in each
specific case. In deciding whether a specific case is suitable for prosecution, the Post Office considers (among other
factors) whether it meets the tests set out in the Code for Crown Prosecutors. The Code requires prosecutors to be
satisfied that there is sufficient evidence for a realistic prospect of conviction and that the prosecution is in the public
interest. The Code is issued by the Director of Public Prosecutions and followed by Crown Prosecutors. Like the Crown
Prosecution Service (CPS), the Post Office keeps cases under continuous review all the way up to and during any trial.
A charge will not therefore be brought if the prosecutor does not believe there is sufficient evidence for a realistic
prospect of conviction on that charge. In cases where an audit discloses a loss in circumstances where there is evidence
of false accounting, the fact of the loss together with the false entries will often be regarded as sufficient evidence on
which to base a charge of theft.
The sufficiency of the evidence to support a charge is also scrutinised by the defendant's lawyers.
Once a decision has been made to prosecute — i.e. the Post Office is satisfied as a prosecutor that there is sufficient
evidence for a realistic prospect of conviction on each charge and that the prosecution is in the public interest - and a
defendant is charged, he or she is entitled to receive private and confidential legal advice. Should the defendant wish to
dispute the charges, the Post Office has a duty to disclose to the defendant and his or her lawyers, any material that
could assist the defence or undermine the prosecution. The defendant's lawyers can also ask the Post Office to produce
any material which they believe the Post Office may hold which could assist the defence or undermine the prosecution
The Post Office is duty bound to communicate with a defendant's lawyers, and any decision by a defendant to plead
guilty is made after he or she has had the opportunity to consider the evidence and take private and confidential legal
advice from lawyers.
Every person charged with a criminal offence is entitled to independent legal advice and representation. Further, Legal
Aid may be available to any defendant where the offence carries a risk of imprisonment (as do the charges typically
levelled by the Post Office):
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- Any decision to plead guilty is always one for the defendant only, having taken advice from his or her own lawyer.
- When deciding to plead guilty, the defendant will have been advised by his or her own lawyer that a guilty plea
represents a complete admission to having committed the offence (which the defendant can qualify by a written ‘basis of
plea’) and, where the offence is one of dishonesty (theft, false accounting, fraud), to that dishonest act. This is advice a
defence lawyer is duty bound to give.
- The initial suggestion that a defendant pleads guilty will come from the defendant’s lawyers, usually motivated by the
defendant's instructions that they are guilty of that offence.
Finally, it is the duty of a defence lawyer to identify to the Court where there is insufficient evidence to sustain a charge,
or to seek further information from the Post Office which might assist a defendant's case.
Review of criminal cases:
The Post Office takes seriously its continuing duty of disclosure in criminal law proceedings. Accordingly, material
generated by Second Sight and through the Mediation Scheme has been (and continues to be) provided to an external
firm of specialist criminal law solicitors to review to enable the Post Office to continue to comply with that duty.
‘Issues’ log:
As you would expect for any large computer system, there are logs for Horizon that monitor, track and capture issues for
the entire system. These are part of many ways of ensuring the robustness of the Horizon system and that it meets or
exceeds the standards necessary for industry accreditations and independent audits.
The Horizon system, and the Core Audit Process in particular, is designed to capture transaction data and store it in a
secure audit database, with a unique reference identifier, so that it provides a master record of what transactions
occurred. It is this master record that is used to definitively determine whether an issue with the system has arisen. It is
these processes, alongside the Issues logs, that are used to closely monitor and record any issues with the system. This
all then ensures that Horizon works as it should to accurately record all branch transactions, as it has been found to do in
the cases examined through the mediation scheme.
Mediation numbers and outcomes: I understand that Mel has sent you the letter from CEDR that we published as part of
our March 2015 report. As we explained, we cannot discuss outcomes because these are subject to confidentiality, which
is a core principle common to all mediations.
I would again make the point that the allegations you are putting to us have been repeatedly made previously and, where
we have been able to do so without breaching the confidentiality of people, we have answered them extensively. We
have also, throughout, offered individual meetings, in confidence, with any person in the mediation scheme and their MP
to discuss their cases with them. This has not been widely taken up, whilst unsubstantiated claims continue to be made to
the media.
You have referred in your email to other contributors to the programme but without giving further details which, for
fairness and balance, I would expect you to do so that we understand the views that will be represented in a programme
to which we are significantly contributing. I would therefore ask that you let me know precisely who is taking part or
contributing, what their expertise is and the opinions or views they are providing. In particular, who is the “computer
expert” to whom you refer, what is his/her experience of the Horizon system and what is the substance of the opinion
he/she is providing? Similarly, who is the “forensic accountant” to whom you refer, what is his/her area of expertise and
what is the substance of his/her contribution?
I hope this helps.
Best wishes
Mark
From: Matthew Bardo [
Sent: 17 June 2015 19:41
To: Mark R Davies; Conor Spackman
Cc: Melanie Corfield
Subject: RE: BBC Panorama interview
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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 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 in a 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.
lam 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
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
Sent: 16 June 2015 10:
To: Matthew Bardo; Conor Spackman
Cc: Melanie Corfield
Subject: RE: BBC Panorama interview
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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
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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
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
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
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
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
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
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A number 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
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
Sent: 12 June 2015 20:
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 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 [°
Sent: 12 June 2015 17:25
To: Conor Spackman
Cc: Matthew Bardo; Melanie Corfield
Subject: Re: BBC Panorama interview
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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
Mark
‘orporate Affairs Director
On 12 Jun 2015, at 16:56, Conor Spackman I
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
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- the suggestion that Mr Thomas was poorly treated after 42 years of 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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