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MS Cameron McKenna LLP
. Cannon Place
BBC Programme Legal Advice 78 Cannon Street
British Broadcasting Corporation London
Room WC 2251 EGAN GAP
White City DX 135316 LONDON CANNON PLACE
London
W127TS
www.cms-cmek.com
and
BBC Complaints
PO Box 1922
Darlington
DL3 OUR
{ ] August 2015
By Fax and Post
Our ref SCB/THRE/MIT/111850.00038
Dear Sirs
NOT FOR BROADCAST
Panorama - Post Office Limited
We write in connection with the Panorama programme, “Trouble at the Post Office”, broadcast at 7:30pm
on 17 August 2015 (the “Programme”). As stated in previous correspondence, we act for Post Office
Limited (“our client” or “Post Office”).
Background
Prior to the broadcast of the Programme, there were extensive communications between our client and the
BBC (both at editorial and legal level). As stated in our letter to BBC Programme Legal Advice on 10
August 2015, our client had significant concerns regarding the manner in which the Programme had been
prepared, the content of the proposed programme and its purpose. Indeed, our client was extremely
concerned that you were likely to be broadcasting highly damaging allegations about Post Office that
would not be adequately supported by any evidence and without our client’s right of reply being fairly
reflected in the Programme. Having now seen the Programme, it would appear that our client’s concerns
were well founded.
The Programme presented a very one-sided view of this issue and crucially featured a number of untrue
allegations that are likely to cause our client significant financial damage.
We do not repeat all of the points raised in our letter of 10 August but incorporate them in this complaint
by reference. As clearly set out in that letter, in producing the Programme, the BBC has not only
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broadcast untrue and damaging allegations regarding Post Office but has failed on several occasions to
comply with the BBC Editorial Guidelines. In particular, and despite repeated requests, our client was
never provided with sufficient information about the allegations to be made against it, nor was it provided
with relevant details of the evidence upon which the BBC was basing such allegations. This meant that
our client was not provided with an adequate opportunity (or ability) to respond to the allegations raised
in the Programme, resulting in a broad containing some very serious and highly damaging allegations
that did not fairly reflect our client’s position or provide a duly balanced view of the issues raised.
Moreover, in a number of respects, Post Office’s response to allegations which were provided was not
fairly and accurately included in the Programme.
Allegations made
The Programme states on more than one occasion that Post Office pursued theft charges against
postmasters where there was “no direct evidence of theft” or “no evidence of theft’. The allegation is
further made that our client included theft charges, despite a lack of evidence, to put pressure on
postmasters to plead guilty to false accounting and to assist with financial recovery. These allegations are
untrue, highly damaging and are likely to cause our client serious financial harm. Our client has.
repeatedly stated that no charge was or would be brought unless Post Office had been advised, following
independent legal advice, that there was sufficient evidence to give rise to a realistic prospect of
conviction in respect of any charge. Furthermore, no charges were brought for the purposes of Post
Office’s own financial recovery.
The Programme further states by reference to statements made by Richard Rolls who had worked at
Fujitsu, that financial records were sometimes changed remotely without the postmaster knowing. Mr
Sweeney goes on to state that “Post Office has always said that simply can’t happen” and invites the
conclusion that what Post Office has said in relation to remote access is “untrue”, a particularly damaging
allegation. This is not an accurate or fair reporting of Post Office’s formal statement to Panorama. As
made clear in the statement, Post Office can correct errors in and/or update a branches accounts by
inputting a new transaction (not editing or removing any previous transactions). It is also possible to
update the software remotely. Although Mr Sweeney included Post Office’s statement that it is not
possible to edit the transactions as recorded by branches, in the context of the other statements made, Post
Office’s response was not fairly represented in the Programme. Had Post Office’s response been fairly
represented, this would have provided appropriate context for the comments made by Mr Sweeney and
Mr Rolls.
Contributions
The Programme includes contributions from various purported experts, whose opinions and contributions
were misleading and unfairly portrayed as providing informed criticism with regard to the approach
adopted by Post Office.
By way of example, Charles McLachan was asked the following questions by Mr Sweeney: “So when
you've got a computer system this complicated and this big, is it possible that things can go wrong?”. The
response, “Any computer system can go wrong. What’s important is the way that you deal with things
when they do go wrong”, suggests that Post Office has failed to investigate the Horizon system or to deal
with problems as they arise in the system. This is incorrect. Not only, as stated in our letter of 10 August
2015, has Post Office conducted detailed investigations and an independent review to assess whether
computer errors have caused cash to go missing in this small number of branches, but such investigations
have demonstrated that the system operates and operated as it should and Post Office has seen nothing to
suggest that any branch has been held responsible for a loss that was caused by a fault in the Horizon
system.
Post Office has never claimed that Horizon is perfect. However, there is a considerable difference
between minor bugs which have been rectified and alleged major faults which would result in a
miscarriage of justice. Implying theft a major fault of that nature is probable simply because of the
existence of other minor faults is neither logical nor fair to our client. Your Programme presents no
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evidence to support the allegation that a fault in the Horizon system was responsible for a loss for which
any postmaster has been prosecuted.
Similarly, the allegation is made by Mr Ian Henderson that there has been a “failure to investigate proper
and in detail cases where [IT] problems occurred”. This is wholly untrue and Mr Henderson does not
have sufficient knowledge of the individual cases to make such broad and serious accusation. Despite
this, this allegation is presented, in essence, as fact, suggesting that Mr Henderson has the requisite
knowledge to be capable of making such an assessment.
Professor Mark Button is presented in the Programme as a relevant legal expert. However, it is evident
that Professor Button does not have, and has not had, any involvement in or knowledge of the three cases
presented in the Programme. Indeed, this has been acknowledged by this in an email to Post Office dated
18 August 2015. Nonetheless, his contribution was presented in a manner which suggested that he had
some knowledge of the specific cases. This is a concern that was raised in our letter of 10 August but
which has clearly been ignored. Prof. Button stated during the Programme that private prosecutions
“create potential risks of miscarriages of justice”. This statement is entirely meaningless when robbed of
the context of the specific cases. The manner in which this contribution is presented suggests that this
supports the argument that there have been miscarriages of justice in the three cases featured in the
Programme. This is not the case, it is simply a general remark.
In the context of a section of the Programme considering Seema Misra’s case, Prof. Button further opines
that “there have been lots of cases in the past where inadequate disclosure by the prosecution has led to
the collapse of prosecutions...”. Again, in the absence of any knowledge of Ms Misra’s case, this general
statement by Prof. Button is wholly irrelevant. However, by inserting this comment at this point of the
Programme, the viewer is left with the misleading impression that Prof. Button is speaking expressly in
the context of Ms Misra’s case. This is a false impression which is highly damaging to our client.
It is also notable that the Programme contains a contribution from Richard Rolls as an alleged
“whistleblower”. Despite repeated requests to be told the identity of the various contributors, our client
was not notified of Mr Rolls’ identity, simply that there was a former Fujitsu employee who was a
“whistleblower” who had worked with Fujitsu “prior to 20/0”. It was therefore surprising that no attempt
was made in the Programme to conceal Mr Rolls’ identity or appearance. Evidently his identity was not a
secret. There is therefore no justification for the BBC to refuse to disclose his identity, contrary to
paragraph 6.4.1 of the BBC Editorial Guidelines.
If Post Office had been provided with details of Mr Rolls’ identity, it would have been position to
comment on Mr Rolls’ capability to provide evidence on these matters. Indeed, it is notable that Mr Rolls.
left Fujitsu’s employment and, indeed, ceased working in IT in 2004, before [any/many] of the reported.
losses were recorded by the postmasters featured in the Programme. It is difficult to understand how he
can therefore opine on the operational status of the Horizon system at a time when he was no longer
employed by Fujitsu, nor even working in the IT sector. No reference was made in the Programme to
these limitations with regard to Mr Rolls’ experience of the Horizon system. To the contrary, his.
contribution was presented in such a way as to suggest that it was contemporaneous with the events being
addressed in the Programme. Moreover, the Panorama team themselves declined the offer by Post Office
of a demonstration of the Horizon system on the basis that the manner in which the system operated today
is irrelevant to the issue of how it operated at the time of the purported losses. It is difficult to understand.
therefore why the BBC considers that evidence of how the system operated prior to the purported I is
relevant either. To present Mr Rolls’ contribution in such a manner that suggested that he had first-hand
experience of the Horizon system at the relevant time is therefore highly misleading for viewers and
unfair on Post Office.
Mr Sweeney further asks Mr Rolls the highly leading question: “/t is possible that suffering could have
been caused because there are problems in the Horizon system?’. Mr Rolls states that this is possible.
However, again, no evidence is presented by Mr Rolls or during the Programme to suggest that any
problem with the Horizon system has resulted in a loss for which any postmaster was prosecuted.
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Nonetheless, the manner in which Mr Rolls’ contribution is presented is intended to mislead viewers into
believing that he has a greater degree of knowledge of individual cases than is accurate.
Reflection of right to reply
Our client provided the BBC with a detailed statement to be used on the Programme. In light of the fact
that our client was provided with very limited information regarding the allegations being levelled against
it and the evidence upon which such allegations were founded, it was extremely difficult for our client to
provide a suitably comprehensive statement.
Nonetheless, and despite the provision of a detailed statement, the BBC saw fit, during the Programme, to
‘cherry pick’ from our client’s statement preferring to use short sound bites rather than to reflect our
client’s statement in full. This inevitably meant that the force of much of what was being said by Post
Office was lost and was not fully, fairly or accurately represented in the Programme. Furthermore,
significant elements of the statement were omitted altogether. For example:
¢ The Programme includes reference to the involvement of the Criminal Cases Review
Commission (“CCRC”). However, no mention is made of the fact that Post Office is voluntarily
providing the CCRC with any assistance it requires. Nor is it made clear, that the CCRC will have
details of all of the relevant documents including privileged and confidential materials, meaning
that the CCRC will be far better equipped to reach a conclusion regarding any potential
miscarriage of justice than the BBC [(or Second Sight)] would be.
¢ Despite being set out in our client’s statement, the limited role for which Second Sight was
appointed and, furthermore, its lack of expertise in respect of criminal law and procedure is not
made clear in the Programme. This is highly relevant and frames the weight that should be given
to any contribution provided by Second Sight.
e As stated above, Post Office’s statement regarding remote access to the Horizon system was not
accurately reflected in the Programme. In particular, it is notable the Mr Rolls is asked whether
“what the Post Office is saying is untrue” and yet at no point is it made clear what statement has
actually been put before Mr Rolls. If it is the statement that changes to the system made remotely
“simply can’t happen”, then this is an inaccurate reflection of Post Office’s position and results in
a highly misleading and damaging sound bite, essentially alleging that Post Office is lying. This
is completely untrue and such a statement, implied or otherwise, is likely to cause serious
financial harm to our client.
e The Programme states that Post Office “doesn't have to go through the police or the Crown
Prosecution Service”. The inference from this section of the Programme is that the Post Office is
operating outside of the restrictions of the usual legal process. No mention is made of the fact that
Post Office follows the Code for Crown Prosecutors issued by the Director of Public
Prosecutions. Nor is any mention made in the Programme of the fact, as stated in our client’s
statement, that “every person charged with a criminal offence is entitled to their own independent
legal advice and representation, and reaches their own decision on how to plead based on that
advice”.
¢ The Programme states that “some are now calling for Paula Vennells to resign”. The inference
being made in this statement is that Ms Vennells is in some way personally implicated in any
alleged miscarriage of justice [(and that there is a general call for her to resign)]. Your
Programme has failed to include reference to the fact that Ms Vennells initiated the independent
inquiry and is committed to a series of actions, including providing funding to help people obtain
professional advice to bring forward complaints against the company.
Taken together, these omissions and misrepresentations mean that, in contravention of paragraph 6.4.26
of the BBC Editorial Guidelines, the BBC has failed to ensure that the response relevant to the allegations
broadcast has been reflected fairly and accurately.
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Offer to meet
The key allegations in the Programme are founded on documents which purportedly show that Post
Office brought a charge of theft against Ms Hamilton, and also against Mr Thomas, in the absence of any
supporting evidence and further that Post Office used such a charge to put pressure on Ms Hamilton and
Mr Thomas to plead guilty to false accounting. The documents upon which the BBC seeks to rely, and
which purportedly evidence the allegation made, have been taken entirely out of context.
On 12 August 2015, following extensive communications between Post Office and the BBC, our client
provided the BBC with an opportunity to review documents that would place these documents in context
and which would answer the allegations being levelled against Post Office. In particular, Post Office
invited the BBC to discuss a suitable arrangement whereby the confidentiality of such documents could
be maintained while also enabling the BBC to verify the information it was proposing to broadcast and to
check the highly damaging allegations being made about Post Office by a number of individuals who
could fairly be described as having an axe to grind with our client. Despite this entirely reasonable offer,
and despite the fact that paragraph 3.4.2 of the BBC Editorial Guidelines states that the BBC must “check
and verify information, facts and documents, where required to achieve due accuracy’, this offer was
refused by the BBC.
It is notable that if Post Office had been allowed to demonstrate to the Panorama team that these
allegations were false, then the BBC would inevitably have removed such allegations and, as a
consequence, would have been left with little material to broadcast. In this respect, it is perhaps
unsurprising that the Panorama team preferred to decline Post Office’s offer, preferring instead to ‘bury
its head in the sand’ and deny the inconvenient truth that Post Office has evidence to demonstrate that the
allegations being broadcast were untrue.
It should also be noted that the fact that such documents could only be shown to the BBC on a
confidential basis, is not a valid reason for declining to take the necessary steps to verify or debunk the
allegations being put forward by third parties. There was no valid reason for declining our client’s offer.
Furthermore, the decision to decline the offer to have sight of these documents will not provide the BBC
with any potential defence to a claim for defamation.
Next Steps
We request that this complaint be dealt under the BBC’s formal complaints procedure.
In the meantime, we are discussing with our client its options in respect of more formal action, including
a potential complaint to Ofcom and an action against the BBC for defamation. The manner in which this
complaint is handled and responded to is likely to have a bearing on the further actions that Post Office
may take in respect of the Programme and on our client’s decision over what steps to take against the
BBC.
For the avoidance of doubt, if the BBC chooses to ignore this complaint or to deny that there is any valid
basis upon which to found such a complaint, then we will be recommending to our client that it takes
more formal steps with regard to this matter.
In the meantime, all our client’s rights are reserved.
Yours faithfully
CMS Cameron McKenna LLP
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