Agenda
Thursday 05 August 2021 15:00 — 16:30 hrs Microsoft Teams
Meeting/ Finsbury Dials
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Post Office Board Agenda (CCRC meeting)
Tim Parker ‘* Ken McCall (SID) I ¢ Ben Foat (General Counsel) * Richard Taylor (Group Corporate
(Chairman) Affairs, Brand and
Communications Director)
Tom Cooper (NED) I ¢ CarlaStent(NED) I Rodric Williams (Head of Legal - I ¢ Veronica Branton (Company
Historical Matters) Secretary)
« Zarin Patel (NED) ‘Lisa Harrington Alan Watts (Herbert Smith * Lucie Lambert (General Counsel -
(NED) Freehills) UKG!)
© ElliotJacobs (NED) I ¢ Saflsmail (NED) I ¢ Hannah Laming (Peters & * Brian Altman QC (2 Bedford Row)
Peters Solicitors LLP)
* Alisdair Cameron ‘* Ben Tidswell (NED) I Simon Baker QC (2 Bedford * Jac Carey (2 Bedford Row)
(CFO) Row)
Apologies: Nick Read (CEO)
Join Microsoft Teams Meeting
United Kingdom, London (Toll)
320 102 417#
Welcome and Conflicts of Interest Noting Chairman
2. Minutes and Matters arising Approval Chairman
Minutes from 15" and 22" July 2021
3. Criminal Cases Decision & Noting Hannah Laming,
Simon Baker QC,
a. New appeals going to the Court of Appeal Criminal Jac Carey
Division (CACD) — for decision
b. Update - for noting
4. Overturned Convictions Noting & Decision Alan Watts
a. Overview of interim payment process - for noting
b. Interim payment decision: Susan Rudkin
5. Historical Shortfalls Scheme Noting & Approval Alan Watts
a. Summary of Panel's interim views on 29 shortfall only
test cases — for noting
b. Draft Case Assessment Principles for shortfall issues —
for approval to provide to Panel
6. Any Other Business Noting All
STRICTLY CONFIDENTIAL
CCRC Meeting - 05 August 2021-05/08/21
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POST OFFICE LIMITED BOARD MEETING 2.1
Strictly Confidential and Subject to Legal Privilege - DO NOT FORWARD
MINUTES OF A CCRC MEETING OF THE BOARD OF DIRECTORS OF POST OFFICE LIMITED HELD ON THURSDAY 15
JULY 2021 AT 20 FINSBURY STREET, LONDON EC2Y 9AQ BY CONFERENCE CALL AT 15.00 HRS?
Present:
Tim Parker Chairman (TP)
Tom Cooper Non-Executive Director (TC)
Carla Stent Non-Executive Director (CS)
Saf Ismail Non-Executive Director (SI)
Alisdair Cameron Group Chief Finance Officer (AC)
Nick Read Group Chief Executive (NR)
In attendance:
Veronica Branton Company Secretary (VB)
Ben Foat Group General Counsel (BF)
Richard Taylor Group Corporate Affairs, Brand and Communications Director (RT)
Declan Salter Historical Matters Director (DS)
Lucie Lambert General Counsel — UKGI (LL)
Alan Watts Herbert Smith Freehills (AW)
Nick Vamos Peters & Peters Solicitors LLP (NV)
Hannah Laming Peters & Peters Solicitors LLP (HL)
Apologies: Ken McCall (SID), Zarin Patel (NED), Elliot Jacobs (NED), Lisa Harrington (NED)
Agenda Item Action
1. Welcome and Conflicts of Interest
A quorum being present, the Chairman opened the meeting. The Directors declared that
they had no conflicts of interest in the matters to be considered at the meeting in
accordance with the requirements of section 177 of the Companies Act 2006 and the
Company’s Articles of Association.
2. Minutes and Matters Arising
The Board APPROVED the minutes of the Board meeting to discuss the CCRC cases held on
08" July 2021.
The Board NOTED the action log.
3. Criminal convictions
3.1 Court of Appeal Criminal Division (CACD) cases of Manjra, Price and Snow
The Board considered the cases and RESOLVED that:
the appeals for Mr Manjra and Ms Price’s cases should not be opposed
* the appeal for Mr Snow’s case should be opposed noting that the offences had
occurred prior to the installation of Horizon in the branch and Mr Snow had pleaded
uilty to the offences.
Update on Thanabalasinghan
+ Participation in the meeting was entirely via Microsoft Teams from participants’ personal addresses. In such circumstances
the Company's Articles of Association (Article 64) require that the location of the meeting be deemed as the chairman's
location. However, it was not deemed appropriate to record personal addresses on the Company record. As such, the
Registered Office is recorded as the meeting location.
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POST OFFICE LIMITED BOARD MEETING
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3.3 Update on CPS stance in cases in which it is the Respondent
Solicitors Regulation Authority (SRA) Investigation
ction: HL
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POST OFFICE LIMITED BOARD MEETING
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3. The Board APPROVED the following:
* POL should continue to cooperate with the SRA, including the provision of
material on the basis set out in the slides presented to the Board on 15" July
2021;
* Decisions relating to the exact material to be provided and the mechanism for
its provision should be made by Sarah Gray, Legal Director, on behalf of Post
Office Limited (in consultation with Ben Foat, as the recipient of the Notice and
General Counsel), having regard to the risks/benefits identified in the slides
presented to the Board on 15" July 2021. These risks/benefits would be
different according to the nature of the data sought, and therefore different
mechanisms would be appropriate;
° Should new issues arise, for example if it became advisable to challenge the
lawfulness or proportionality of a Notice, or if the SRA sought the provision of
legally professionally privileged material not previously disclosed in the
PCDE/pursuant to other third party requests, this will be raised with the Board
so that they could consider any revised approach.
Overturned Convictions
The approval of funding support by Government to enable Interim payments to be made
to those individuals prosecuted by POL whose convictions had been overturned was
discussed. The final approval rested with HM Treasury but we hoped there would be an
announcement in Parliament next week in advance of the summer recess.
was keen to make the process for approving interim payments as simple as possible
and for payments to be made within 28 days of receipt of applications. Batches of
approvals could be considered by the Board or the Board Committee each week and would
then be recommended to BEIS for approval.
Historical Shortfalls Scheme
Independent Advisory Panel's interim views on first shortfall only test cases
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6.2 Remuneration Losses
To do: AW
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Tab 2.1 Minutes from 15th July 2021
POST OFFICE LIMITED BOARD MEETING
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6.3 _ Tranche 6 of Test Cases for Panel (Consequential Losses)
The Board APPROVED the submission of the test cases to the Independent Advisory Panel
to the Historical Shortfalls Scheme.
7. Any Other Business
The Board ADOPTED the formal record provided by Peters & Peters of the Board’s decisions
in the 25 further appeal cases considered.
There being no further business the Chairman declared the meeting closed at 15:50 hrs.
Chairman Date
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POST OFFICE LIMITED BOARD MEETING 2.2
Strictly Confidential and Subject to Legal Privilege - DO NOT FORWARD
MINUTES OF A CCRC MEETING OF THE BOARD OF DIRECTORS OF POST OFFICE LIMITED HELD ON THURSDAY 22
JULY 2021 AT 20 FINSBURY STREET, LONDON EC2Y 9AQ BY CONFERENCE CALL AT 15.00 HRS?
Present:
Tim Parker Chairman (TP)
Ken McCall Senior Independent Director (KM)
Tom Cooper Non-Executive Director (TC)
Zarin Patel Non-Executive Director (ZP)
Elliot Jacobs Non-Executive Director (EI)
Alisdair Cameron Group Chief Finance Officer (AC)
Nick Read Group Chief Executive (NR)
In attendance:
Veronica Branton Company Secretary (VB)
Ben Foat Group General Counsel (BF)
Richard Taylor Group Corporate Affairs, Brand and Communications Director (RT)
Declan Salter Historical Matters Director (DS)
Lucie Lambert General Counsel ~ UKGI (LL)
Alan Watts Herbert Smith Freehills (AW)
Hannah Laming Peters & Peters Solicitors LLP (HL)
Dan Zinner Group Chief Operating Officer (DZ) (Item 2.)
Jacki Adams HM Operations Director (JA) (Item 2.)
Apologies: Carla Stent (NED), Lisa Harrington (NED), Saf Ismail (NED).
Agenda Item Action
1. Welcome and Conflicts of Interest”
A quorum being present, the Chairman opened the meeting.
Elliot Jacobs declared a potential conflict of interest in relation to the Postmaster detriment
paper. The Board members present? AUTHORISED the conflict of interest as permitted
under Article 54. of the Articles of Association, such that Elliot Jacobs (and Saf Ismail where
present for these discussions) could receive the papers and associated materials and
participate in the discussions but would recuse themselves from any decisions sought on
Postmaster detriment. There being no other conflicts of interest in relation to the matters
to be considered at the meeting in accordance with the requirements of section 177 of the
Companies Act 2006 and the Company's Articles of Association, the Chairman declared the
meeting open.
2. Postmaster Detriment
1 Participation in the meeting was entirely via Microsoft Teams from participants’ personal addresses. In such circumstances
the Company's Articles of Association (Article 64) require that the location of the meeting be deemed as the chairman's
location. However, it was not deemed appropriate to record personal addresses on the Company record. As such, the
Registered Office is recorded as the meeting location.
? The Minutes from the CCRC Meeting held on 15" July 2021 and action log will be carried over to the next scheduled CCRC
Meeting.
3 Excluding Elliot Jacobs.
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Horizon process detriments
Dan Zinner set out the proposals for remediating potential detriment that had occurred
under HNG-A. The recommendation was that this should be reactive and run in a similar
way to the HSS.
A number of points were raised and addressed:
© Tim Parker asked whether we would require evidence to support a claim. Jacki Adams
explained that the claim would be met if there was evidence of detriment. Postmasters
should have this information in their accounts, noting whether they had paid the
balance by cash or settled centrally and where they thought there had been an issue.
This was potentially small amounts of money. Elliot Jacobs noted that Postmasters
might know they had made a payment to make good but might not have evidence that
it had been a matter that the Postmaster would have disputed had they been able to,
by way of illustration you would not keep a parking ticket once it had been paid
* TP asked what the estimated maximum liability was. JA reported that the figures in the
paper represented the full financial exposure based on the information we had but we
did not have all the data available to us. TP noted that it was hard to gauge whether
this was a reasonable estimate of what this might cost us
* TP reported that Carla Stent supported the reactive approach proposed and he shared
this view
* TC.commented on the multiples not being included and asked why they would be
treated differently. JA explained that we were still establishing the potential detriment
for the multiples for whom there were a number of different contracts and there were
different ways of managing balances. We did not yet know what the quantum (if any)
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POST OFFICE LIMITED BOARD MEETING
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was. Dan Zinner noted that the treatment of detriment would be different with the
multiples because the sums could be a matter for negotiation. Ken McCall noted that
we had been looking at our partners over the last few years and it had not been
apparent that they had ever had to settle centrally. AC confirmed that it did not work
in the same way for the multiples and they were focussed on protecting their
commercial interests. KM asked therefore why there should be any potential liability
from the multiples
* J raised the issue of fake sterling; there would be detriment to account for in relation
to this but that was not covered in the potential risks set out in the paper. JA explained
that POL had accepted liabilities for fake sterling pre-2006 but there had been a
different process after this and cases had been considered on an individual basis while
earlier this year POL had reverted back to accepting all liabilities. We would need to
get advice on this issue. EJ noted that he was not convinced that the process described
reflected operational practice. TC noted that this underpinned the need to capture all
potential detriment. DZ agreed and noted that we needed to have a BAU process to
deal with all elements of potential detriment.
TP noted that the Board was nervous about the potential for further issues with significant
liabilities emerging. There should be no targeted communications to Postmasters until we
had a clearer picture of the overall situation. If we were going to invite people to apply
through a BAU process that did not need to be communicated separately. The Board could
take decisions on those areas of detriment for which small liabilities had been identified
but it hard to agree a policy position overall without knowing the overarching liability,
which would also need to be discussed with the Shareholder.
The Board’ APPROVED Initiating a new BAU process to redress current and former
postmasters impacted by ATM, Forex, and ME Limits, and Pouch detriment during the
period of HNG-A. Claims would be met where we were able to identify the detriment
caused from the data held.
Further work was required on Settle Centrally or Repaid Balances detriment since
transitioning to HNG-A before any recommendation could be approved.
3. Criminal convictions
An email would be sent setting out the timetable over the summer.
* Excluding Elliot Jacobs who has recused himself from the decision because of the potential conflict of interest.
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Historical Shortfalls Scheme: Test case materials
Any Other Business
Historical Shortfalls Scheme Late Applications
The Board was asked to consider exceptions for HSS applications received after the closure
of the Scheme. Tom Cooper reminded the Board that BEIS’s view on this matter was that
these could be valid claims which should be addressed but not by re-opening the Scheme.
In these instances, there should be a settlement from the company rather than through
the HSS. Zarin Patel asked whether these applications would be reviewed by the IAP or
not. TC thought that once the principles for the treatment of different types of claims had
been established it should be possible to deal with these cases along similar lines to the
HSS without them being part of the HSS process.
The Board APPROVED reviewing claims submitted to the HSS after the closure date for the
Scheme as claims to be considered for settlement by the company.
The Board RATIFIED the decision sought and obtained by correspondence on 21% July 2021
to approve the funding commitment letter from BEIS to enable interim payments to be
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Tab 2.2 Minutes from 22nd July 2021
POST OFFICE LIMITED BOARD MEETING 2.2
Strictly Confidential and Subject to Legal Privilege - DO NOT FORWARD
made to individuals prosecuted by POL whose cases have been overturned by the Court of
Appeal Criminal Division.
There being no further business the Chairman declared the meeting closed at 16:00 hrs.
Chairman Date
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Post Office Limited Board CCRC Actions as at 26.07.2021
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REFERENCE
8. Potential claims against Fujitsu
ACTION OWNER
DUE DATE
Board (CCRC) Meeting 18 March 2021
ability update
Board (CCRC) Meeting 29 April 2021
5. Potential Future Appellants (PFAs):
update on 40 new appeals and
Hecision on extension for service of
Respondent's Notices
Board (CCRC) Meeting 06 May 2021
OPEN/CLOSED
Alan Watts (Will come back to Board in 2-3 weeks' time.] Open and
Ongoing
Ben Foat July Board meeting Open
8. Improvement Delivery Group (IDG)
Update and preparation for the
Inquiry
jeff Smyth July Board meeting
Strictly Confidential Page 1 of 4
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Post Office Limited Board CCRC Actions as at 26.07.2021
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REFERENCE
8.1 Historical Shortfall Scheme:
Decision-making
8.1 Historical Shortfall Scheme:
Decision-making
pb)
B.1 Historical Shortfall Scheme:
Decision-making
4)
m Michael Penney
8.6 Asif Latif
a)
Board (CCRC) Meeting 24 June 2021
Declan Salter/ Alan
Watts
Declan Salter
hich level of investigation was carried out. DS
ould provide more information and analysis
jor the Board on the “L123” proposals and
noted that this was not a one-off decision for
he Board.
ACTION OWNER
DUE DATE
July
ith the Panel to provide feedback as to
hat size/circumstance they might like to
make a D&i offer.
JA paper is being drafted for the Board to
eview the approach to investigation
procedures.
STATUS OPEN/CLOSED
Open
Alan Watts
Open
17.1 Historical Shortfall Scheme OptionsI
Paper
/e needed to be comfortable that the approachDeclan Salter
e followed was not disadvantaging certain
kategories of claimants. We needed to see the
Open
Strictly Confidential
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LZ/80/S0-1Z0z IsnBny go - BujeeW OYOO
2@Z3OSL
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-
ca
Post Office Limited Board CCRC Actions as at 26.07.2021 S
>
2
3
a) imetable for settling claims set properly and &
ith the assumptions that underpinned it so we
{could test the logic of the decisions we were
being asked to take.
17.1 Historical Shortfall Scheme OptionsIIP requested that the Board be provided with Declan Salter Open
Paper he evidence that would support recommending
by 10 the IAP investigating up to L1 & 2 in the
Inajority of cases
17.1 Historical Shortfall Scheme OptionsIIP requested that more specific calculations Declan Salter Open
Paper ere provided to support the increased figure
Ly lproposed for de minimis claims and added that
his was a decision the Board needed to take
fonce it knew what the principles around
investigation levels would be and what
lapproach the IAP was going to take. There
lheeded to be an analytic approach to this
Imatter including consideration of how the de
Ininimis approach would affect the unquantified
klaims.
Board (CCRC) Meeting 01 July 2021
3.1 Admission of Liability Open
Board (CCRC) Meeting 08 July 2021
B. Historical Shortfalls Scheme: Test Open
ase materials
J. Solicitors Regulation Authority (SRAI annah Laming
Strictly Confidential Page 3 of 4
nN
w
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OPEN/CLOSED
REFERENCE
Investigation
22. Postmaster Detriment
ACTION
ACTION OWNER
DUE DATE
STATUS
n Foat/ Dan Zinner/
icki Adams
Strictly Confidential
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Post Office Limited Board CCRC Actions as at 05.08.2021
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REFERENCE
8. Potential claims against Fujitsu
Board (CCRC) Meeting 18 March 2021
Board (CCRC) Meeting 29 April 2021
5. Potential Future Appellants (PFAs):
update on 40 new appeals and
Hecision on extension for service of
Respondent's Notices
ACTION OWNER — I DUE DATE
Alan Watts
OPEN/CLOSED
August/September]
Board (CCRC) Meeting 06 May 2021
8. Improvement Delivery Group (IDG)
Update and preparation for the
Inquiry
Alan Watts (Will come back to Board in 2-3 weeks' time.] Open and
Ongoing
Ben Foat July Board meeting Open
Strictly Confidential
July Board meeting
Page 1 of 4
To close
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Post Office Limited Board CCRC Actions as at 05.08.2021
REFERENCE ACTION ACTION OWNER =I DUE DATE STATUS OPEN/CLOSED
{Tom Cooper.
8.1 Historical Shortfall Scheme: Declan Salter/ Alan
Decision-making
Watts
)
8.1 Historical Shortfall Scheme: ‘C asked how we demonstrated the financial Declan Salter A paper is being drafted for the Board to.
Decision-making Klifference in settlement offers depending on Feview the approach to investigation
hich level of investigation was carried out. DS procedures.
ould provide more information and analysis
jor the Board on the “L123” proposals and
noted that this was not a one-off decision for
‘he Board.
B.1 Historical Shortfall Scheme:
Decision-making
4)
m Michael Penney Alan Watts
Strictly Confidential Page 2 of 4
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REFERENCE ACTION OWNER I DUE DATE STATUS OPEN/CLOSED
8.6 Asif Latif Alan Watts Open
Board (CCRC) Meeting 24 June 2021
/7.1 Historical Shortfall Scheme OptionsIWe needed to be comfortable that the approachDeclan Salter Open
Paper e followed was not disadvantaging certain
by kategories of claimants. We needed to see the
imetable for settling claims set properly and
ith the assumptions that underpinned it so we
{could test the logic of the decisions we were
lbeing asked to take.
17.1 Historical Shortfall Scheme OptionsIIP requested that the Board be provided with Declan Salter Open
Paper he evidence that would support recommending
by) © the IAP investigating up to L1 & 2 in the
majority of cases
[7.1 Historical Shortfall Scheme OptionsIIP requested that more specific calculations Declan Salter Open
Paper ere provided to support the increased figure
ky lproposed for de minimis claims and added that
his was a decision the Board needed to take
lonce it knew what the principles around
investigation levels would be and what
lapproach the IAP was going to take. There
heeded to be an analytic approach to this
Imatter including consideration of how the de
Iminimis approach would affect the unquantified
Klaims.
Board (CCRC) Meeting 01 July 2021
8.1 Admission of Liability Alan Watts Open
Strictly Confidential Page 3 of 4
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REFERENCE
ACTION
ACTION OWNER I DUE DATE
STATUS
OPEN/CLOSED
Board (CCRC) Meeting 08 July 2021
8. Historical Shortfalls Scheme: Test.
case materials
JA. Solicitors Regulation Authority (SR.
Investigation
2. Postmaster Detriment
iannah Laming
n Foat/ Dan Zinner/
icki Adams
Strictly Confidential
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PInB GOWO Le GEL
°
2
3
8
°
CACD guidance on cases with limited
information — advice and options
Board meeting 5 August 2021
Ct»)
ed
Legally privileged and confidential
XN
°
N
nv
&
»
=
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POL-BSFF-WITN-017-0040594_020:
IN THE SOUTHWARK CROWN COURT
IN THE MATTER OF REFERRALS FROM THE CCRC
BETWEEN:
1.
REGINA
Respondent
-v-
KAMRAN ASHRAF
JASWINDER BARANG
JULIE CLEIFE
VIPINCHANDRA PATEL
SUSAN RUDKIN
CHRISTOPHER TROUSDALE
Appellants
RESPONDENT'S NOTE FOR HEARING
11™ DECEMBER 2020
This note is intended to assist the Court in relation to the conduct of the appeals of
the six Appellants referred to the Crown Court by the Criminal Cases Review
Commission (“CCRC”) on 13 July 2020 (the six Appellants”). As the Court is
aware, none of these six appeals is opposed.
The Court will be aware that the Court of Appeal Criminal Division (“CACD”) is
currently considering a total 41 further convictions upon the CCRC’s referral.
Those appeals are listed to be heard in March 2021. Given concerns in relation to
an ongoing Metropolitan Police investigation into two employees of Fujitsu, (who
built and maintained the Horizon system), the CACD has been careful to regulate
what information is stated in open Court. In light of the CACD’s concerns, this
note is confined to case-specific matters directly relevant to the Respondent's
position in the appeals of the six Appellants, and does not propose to address
matters that are presently under consideration within the appeals before the
CACD".
‘In the interests of open justice, at the hearing on 18 November 2020 the Court of Appeal invited the
Respondent to read paragraphs 6, 7 and 8 of the composite CCRC Statement of Reasons (as appended
to each of the referrals to the Crown Court) and deemed the entirety of the Statement of Reasons to
have been read into the record so that it could be reported
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BACKGROUND
3. Each of the six Appellants were convicted upon their pleas of guilty in the
Magistrates’ Court following prosecution by the Post Office (which, at the time of
most of these prosecutions, was a wholly owned subsidiary of Royal Mail Group).
4. The convictions of the six Appellants, in chronological order, are as follows:
4.1 Kamran Ashraf pleaded guilty to an offence of theft on 8 January 2004 before
the South Western Magistrates’ Court. He was committed for sentence to the
Kingston Crown Court where he was sentenced to 9 months imprisonment
and made subject to a compensation order in the sum of £25,000 to Royal
Mail;
4.2 Christopher Trousdale pleaded guilty to 3 charges of false accounting on 8
March 2004 before the Scarborough Magistrates’ Court, and was sentenced
to a Community Punishment Order with a probation order and a fine;
4.3 Susan Rudkin pleaded guilty to an offence of theft on 23 March 2009 before
the Burton-On-Trent Magistrates’ Court. She was committed for sentence to
the Stafford Crown Court where she was sentenced to 12 months
imprisonment suspended for 2 years with conditions of 300 hours of unpaid
work and an electronically-monitored curfew for 6 months. Additionally, in her
case a confiscation order was made in the sum of £43,894.15, payable within
6 months and with a default term of 15 months’ imprisonment;
4.4 Julie Cleife pleaded guilty to an offence of fraud on 26 October 2010 before
the Basingstoke Magistrates’ Court. She was committed for sentence to the
Winchester Crown Court where she was sentenced to 100 hours of community
service;
4.5 Vipinchandra Patel pleaded guilty to an offence of fraud? on 6 June 2011
before the Oxford Magistrates’ Court, and was sentenced to 18 weeks
imprisonment suspended for 12 months with a condition of 2 months curfew;
and
2 The offence identified in the table on page 2 of the Statement of Reasons for Mr Patel identifies the
offence as false accounting, but paragraph 9 of the Statement of Reasons identifies the offence to which
Mr Patel pleaded guilty as being one of fraud. The Respondent's records indicate that Mr Patel pleaded
guilty to an offence of fraud.
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4.6 Jaswinder Barang pleaded guilty to an offence of fraud on 3 September 2012
before the Luton Magistrates’ Court, and was sentenced to 4 weeks
imprisonment suspended for 12 months, with a Supervision Order as an
attached condition.
5. Between March 2015 and March 2020, the CCRC received applications from 61
individuals, including these six Appellants, who were formerly sub-postmasters (or
other members of staff) of Post Office branches. The applicants had all been either
convicted of, or had pleaded guilty to, theft, fraud or false accounting in respect of
Post Office monies. The applicants submitted that there was new evidence
concerning failings in the Post Office’s Horizon computer system such that faults
with Horizon could have caused shortfalls in branch accounts for which the
individual was then prosecuted.
6. Separately, in March 2017, a Group Litigation Order was made arising out of civil
claims for damages brought by 589 former sub-postmasters and others. The High
Court litigation involved issues over the sub-postmasters’ contracts and alleged
deficiencies with Horizon. In 2019, the High Court gave two judgments: in March
2019, the “Common Issues” judgment? and in December 2019 the “Horizon Issues”
judgment.’ Within the Horizon Issues Judgment, Mr Justice Fraser made findings
that there were a number of bugs, errors or defects which had the potential to
cause discrepancies and unexplained shortfalls in branch accounts.
7. In June® and July 20208, the CCRC referred 41 Appellants to the CACD. In its
Respondent's Notices, Post Office Ltd (“POL”) indicated that it did not oppose the
appeals in 38 of the 41 referrals. At a Directions Hearing on 18 November 2020,
the CACD directed that the substantive appeals will be heard in the week of 22
March 2021. The CCRC has referred an additional case to the CACD in the last
week.
3 Alan Bates & Others v Post Office Ltd (Judgment (No 3) “Common Issues” [2019] EWHC 606 (QB).
4 Alan Bates & Others v Post Office Ltd (Judgment (No 6) “Horizon Issues” [2019] EWHC 606 (QB).
53 June 2020 in respect of 34 appellants
® 30 July 2020 in respect of 7 appellants.
POL-BSFF-WITN-017-0040594_0206
8. On 13 July 2020, the CCRC referred each of the six Appellants to the Southwark
Crown Court under s.11 of the Criminal Appeal Act 1995. The Statements of
Reasons for each Appellant identified that, in view of the findings of Mr Justice
Fraser in the High Court group litigation, there is a real possibility that the Crown
Court will set aside their pleas of guilty and will stay any further proceedings against
them as an abuse of process.
LEGAL FRAMEWORK
9. The law relating to CCRC referrals of appeals to the Crown Court is set out in
Blackstones 2021 at D29.4 and Archbold 2021 at 2-107.
10.Section 11 of the Criminal Appeal Act 1995 states:
(1) Where a person has been convicted of an offence by a magistrates’ court
in England and Wales, the Commission —
(a) may at any time refer the conviction to the Crown Court, and
(b) (whether or not they refer the conviction) may at any time refer to the
Crown Court any sentence imposed on, or in subsequent proceedings
relating to, the conviction.
(2) A reference under subsection (1) of a person's conviction shall be treated
for all purposes as an appeal by the person under section 108(1) of the
Magistrates’ Courts Act 1980 against the conviction (whether or not he
pleaded guilty).
(3) A reference under subsection (1) of a sentence imposed on, or in
subsequent proceedings relating to, a person’s conviction shall be treated
for all purposes as an appeal by the person under section 108(1) of the
Magistrates’ Courts Act 1980 against—
(a) the sentence, and
(b) any other sentence imposed on, or in subsequent proceedings relating
to, the conviction or any related conviction.
(4) On a reference under subsection (1) of a person’s conviction the
Commission may give notice to the Crown Court that any related conviction
which is specified in the notice is to be treated as referred to the Crown
Court under subsection (1).
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(5) For the purposes of this section convictions are related if they are
convictions of the same person by the same court on the same day.
(6) On a reference under this section the Crown Court may not award any
punishment more severe than that awarded by the court whose decision is
referred.
(7) The Crown Court may grant bail to a person whose conviction or sentence
has been referred under this section; and any time during which he is
released on bail shall not count as part of any term of imprisonment or
detention under his sentence.
11.The effect of sections 11(2) and (4) is that the CCRC’s referral means that an
appeal is treated “for all purposes” as an appeal against conviction to the Crown
Court under s.108(1) of the Magistrates Court Act 1980 (i.e. an appeal against
conviction where the plea had not been guilty) irrespective of the fact of the guilty
plea.
12.The CCRC’s Statement of Reasons suggests that the Crown Court must decide
whether to set aside the pleas of guilty as a preliminary question. In e-mail
correspondence with the Respondent, the CCRC Case Review Manager indicated
as follows:
Our understanding is that the Crown Court will firstly need to address the issue
of the plea before going on to any retrial / abuse of process submissions. As
you know, our referrals to the Crown Court reasoned along the following lines:
“The CCRC has... considered whether there is a real possibility (i) that the
Crown Court would set aside her plea of guilty and if so (ii) that, if her case were
to be re-tried before the Crown Court on appeal, a defence application for the
proceedings to be stayed as an abuse of process would be successful.”
However, we do not think that the applicant / appellant formally has to apply to
have the guilty plea set aside, in view of the terms of our referral, which were
explicitly on the basis that there was a real possibility that the Crown Court
would vacate the plea and allow any subsequent appeal. We have also
discussed here what has tended to happen in practice in the Crown Court
proceedings, after our referral. There are two important caveats to note on this
though:
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1. As you know, the CCRC isn’t a party to the appeal, and so isn't necessarily
looped into everything which happens in the run up to the CC appeal;
2. The way that Crown Courts approach CCRC referrals has tended to vary
somewhat over the years and from region to region. There is perhaps not
the same consistency of approach that you would expect at the Court of
Appeal. That is understandable, given that a CCRC referral will be a rarity
for any individual Crown Court.
Anyway, with those caveats in mind, our experience is that the Crown Court will
list a preliminary hearing to gauge the prosecution’s response to the referral.
Generally if the prosecution say they will not oppose, that ‘listing’ hearing
becomes the vacation of plea hearing and consequently the end of the case. If
the prosecution do decide to oppose (and that hasn’t happened very often) a
hearing for vacation of plea and retrial is usually listed. In that sense, it does
make a difference whether or not the prosecution opposes.
13.The CCRC subsequently indicated that their understanding arises from the
decision in R v F (11 October 2002) (unreported). The case involved a CCRC
referral of F's guilty plea, entered in the Juvenile Court, to the Crown Court. HHJ
Openshaw QC (as he then was) stated that the plea should be set aside before
any appeal was heard. He stated:
“The mere fact of the referring of the case by the Commission does not alter
the important constitutional principle that it is for the Court and not for the
Commission to set aside convictions, including those convictions based on a
guilty plea.”
However, the CCRC went on to observe:
It might also be worth noting that, as decisions in Crown Court are not binding
on subsequent Crown Court appeals, that also may go some way to explaining
the differences in approach which we have witnessed over the years.
14.In enacting the 1995 Act, Parliament did not exclude or amend s.79(3) of the Senior
Courts Act 19817, which provides:
7 The Supreme Court Act 1981 was renamed the Senior Courts Act 1981 by the Constitutional Reform
Act 2005.
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The customary practice and procedure with respect to appeals to the Crown
Court, and in particular any practice as to the extent to which an appeal is by way
of rehearing of the case, shall continue to be observed.
Accordingly, Parliament intended that the practice of dealing with appeals to the
Crown Court from the Magistrates’ Court by way of rehearing should apply to all
appeals under s.108(1). Since s.11(2) provides that the Court should treat CCRC
referrals as being appeals under s.108(1) “for all purposes”, it would suggest that
Parliament intended that a referred appeal should be by way of rehearing “whether
or not he pleaded guilty”, and so does not require any consideration of vacating
plea.
15.However, should the Court wish to adopt the approach suggested by the CCRC,
the Respondent would submit that in the circumstances it would be appropriate for
the pleas to be vacated and for the appeals to proceed in the ordinary course for
an appeal against conviction in the Crown Court.
RESPONDENT’S STANCE IN RELATION TO THE APPEALS
16.On 2 October 2020, POL wrote to Southwark Crown Court and the six Appellants
to indicate that it would not contest the appeal in each of their respective cases.
POL stated that, having considered each individual's case, POL considered that
the Full Code Test in the Code for Crown Prosecutors (‘the Code’) was not met.
17.On the same date, the Respondent wrote to each of the six Appellants confirming
that their appeal would not be opposed and providing an explanation for that
decision. In those letters, the Respondent stated that, as a consequence of the
High Court judgments, it considered that in general terms the High Court findings
established that POL did not routinely investigate or disclose the possibility that
evidence from the Horizon system may have been unreliable.
18.In order to assist the Court, the Respondent's reasons for not opposing the appeals
in respect of each of the six Appellants, as communicated directly to them in the
letters mentioned above, is set out below:
POL-BSFF-WITN-017-0040594_0210
18.1. Kamran Ashraf:
In interview, Mr Ashraf admitted that he took money to pay staff wages
and bills and thereafter pleaded guilty. In the group litigation Mr Ashraf
gave a different account, namely that he had taken monies to repay the
retail side of his business which had been lending money to the Post
Office account to cover unexplained shortfalls.
In order fairly to resolve any appeal, including consideration of whether
any of the abuse of process issues raised by the CCRC might apply in
his case, it would be necessary to determine which of the two
explanations was correct. However, given the passage of time and data
retention policies of both POL and Fujitsu, POL no longer has access to
all of the relevant evidence in the case and is unable to access the
Horizon transaction data to check whether there was in fact any Horizon-
generated shortfall or not. Accordingly, POL has come to the view that
there is not a realistic prospect of conviction in his particular case.
18.2 Jasvinder Barang:
In interview in May 2012, Mrs Barang stated that she had accepted
transaction corrections which had resulted in cash shortages and that
she had taken money to cover unexplained losses in her branch. She
made reference to problems with Horizon and accepted inflating the
cash figures to balance the branch account. The reliability of Horizon
therefore was essential to her criminal case.
18.3 Julie Cleife:
At the time of the audit in June 2010, and in her subsequent interview,
Mrs Cleife stated that there had been discrepancies in the branch
accounts such that she had inflated the cash on hand figures in order to
balance those accounts. During mitigation at her sentencing hearing,
the Court was told that the problems with the accounts had worsened
after Horizon had been installed. During the group litigation, Mrs Cleife
explained that she was unaware that there could be another explanation
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for the alleged shortfalls. The reliability of Horizon therefore was
essential to her criminal case.
18.4 Vipinchandra Patel:
e In 2010 and 2011, Mr Patel accepted falsifying branch trading
statements to cover up for the fact that he had used POL money to pay
bills and keep his business afloat. At that stage, he did not appear to
suggest that problems with Horizon were the reason for his conduct.
However, the CCRC’s Statement of Reasons makes reference to Mr
Patel encountering more pronounced shortages from 2008 such that the
reliability of Horizon is likely to be in issue.
e In Mr Patel’s case, POL has paid particular attention to the parts of the
Code which enables the prosecution, in certain circumstances, to
consider whether the public interest requires there to be a prosecution
(paragraphs 4.4, 4.5 and 4.14 (a) to (g)). Having considered those public
interest factors in relation to the particular facts of his case, POL has
determined that the public interest test is not met.
18.5 Susan Rudkin:
e In interview, Mrs Rudkin stated that the branch had been experiencing
losses which she had initially tried to ‘make good’ with her own money
but this left her unable to pay her business and household bills. She
explained that she then used Post Office money to pay those bills
intending to repay the sums taken and accepted inflating the cash figures
in the branch accounts in order to conceal those losses. A number of
calls from her branch to the helpdesk related to Horizon balancing
issues. The reliability of Horizon therefore was essential to her criminal
case.
18.6 Christopher Trousdale:
e In interview, Mr Trousdale stated that he had been experiencing
unexplained shortages of cash and so had falsified the branch accounts
to cover up those shortages. He told the interviewers that he had
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received a large number of error notices which he found confusing as he
thought he had been following the proper procedures. The reliability of
Horizon therefore was essential to his criminal case.
19.Subject to the procedural matters at paragraphs 11 to 15 above and for the reasons
outlined above, the Respondent therefore intends to offer no evidence in relation
to each of the six Appellants.
SIMON BAKER
JACQUELINE CAREY
2 Bedford Row
10 December 2020
10
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HERBERT
SMITH Confidential and Privileged
FREEHILLS HSF: 2 August 2021
POST OFFICE
HISTORICAL SHORTFALL SCHEME
PANEL RECOMMENDATIONS — SHORTFALL ONLY TEST CASES
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