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Witness Name: Kenneth William Donnelly
Statement No.: WITN10510300
Dated: 25 November 2024
POST OFFICE HORIZON IT INQUIRY
THIRD WITNESS STATEMENT OF KENNETH WILLIAM DONNELLY
1. 1, Kenneth William Donnelly will say as follows...
INTRODUCTION
2 I am the Deputy Crown Agent for Specialist Casework at the Crown Office and
Procurator Fiscal Service (“COPFS’).
3. This witness statement is made to assist the Post Office Horizon IT Inquiry (the
“Inquiry”) with the matters set out in the Rule 9 Request dated 21 October 2024 (the
“Request’).
PROFESSIONAL BACKGROUND
4. I have been asked to summarise my educational and professional qualifications.
5. I hold a Bachelor of Laws (LLB) with honours and a post-graduate Diploma in Legal
Practice, both from the University of Glasgow. I am a qualified solicitor in Scotland
having been admitted to the role of solicitors in 1989 following completion of the first
year of my legal traineeship and have been fully qualified since 1990.
6. I have been asked to summarise my career and any relevant roles I have held/continue
to hold at COPFS.
7. I joined COPFS in July 1992 as a Legal Assistant, and latterly Senior Legal Assistant, in
the Glasgow office, performing the full range of duties of Procurator Fiscal Depute.
8. In 1997, I was promoted to Principal Depute at Glasgow, and also temporarily at Paisley
between 1998 and 1999 and again performed a range of duties in a managerial position.
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10.
11.
12.
13.
14.
15.
16.
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Between 2000 and 2003 I was a Principal Depute in the Crown Office Appeals Unit,
followed by a further spell working in Glasgow. In 2004 I was promoted to the role of
District Procurator Fiscal, Kilmarnock and in 2005, I was further promoted to District
Procurator Fiscal, Falkirk. In 2010 I transferred to become District Procurator Fiscal,
Paisley.
In early 2013 I took on the role Procurator Fiscal, Initial Case Processing, West of
Scotland and later that year returned to Glasgow to lead the Sheriff & Jury business
there.
In 2015 I transferred to Edinburgh to the position of Procurator Fiscal, High Court, East
of Scotland before taking on the new role of Procurator Fiscal, High Court Sexual
Offences in 2016.
In 2018 I was promoted to the role of Procurator Fiscal, High Court, and remained in
that post until 2022 when I took on the role of Procurator Fiscal, Policy and Engagement.
In 2023, I was appointed to my current role as Deputy Crown Agent, Specialist
Casework. In that role I have strategic responsibility for ten specialist units within
COPFS.
Before providing a substantive response to each of the questions that I have been asked
by the Inquiry, it may be helpful for me to first explain the basis of COPFS’ current
understanding and corporate knowledge of these issues. This is to add context to the
responses that I have provided in this statement.
As I said in my first statement to the Inquiry (para 58 at WITN10510100), due to COPFS’
data retention policies, limited information now exists which can assist COPFS in
understanding the full circumstances by which these cases were handled in the years
2000 to 2015. That extends to COPFS’ present understanding of its own institutional
knowledge of these issues circa 2000 to 2015.
COPFS officials have carefully sought to identify and ingather contemporaneous case
material to better understand how events unfolded. This exercise has been conducted
so that COPFS not only has a better understanding of these matters for its own
purposes, but so that it is better placed to assist the High Court of Justiciary, the Scottish
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17.
18.
19.
20.
21.
22.
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Criminal Cases Review Commission (“SCCRC”); this Inquiry; and the Scottish
Government.
The identification of material has been continuous and has been assisted by the receipt
of material from Post Office Limited (“POL”) in 2023. Some of this material was provided
by POL on a voluntary basis but a significant portion was recovered following the service
of a Court order for the recovery of documents on POL by COPFS.
Although a better understanding of the timeline has been achieved, there regrettably
remain gaps in COPFS’ corporate memory and understanding of these issues. In
seeking to provide assistance to the Inquiry I have referenced original source documents
in my statement and have provided copies of these to the Inquiry.
It may also be helpful for me to set out COPFS's structure as an organisation as this is
relevant to the distribution of information throughout the organisation and its decision-
making processes.
COPFS is Scotland’s prosecution service and death investigation authority. The Lord
Advocate is the ministerial head of COPFS, leading the system of criminal prosecutions
and the investigation of deaths in Scotland. She is assisted in her work by the Solicitor
General for Scotland. Together, the Lord Advocate and Solicitor General are known as
the Law Officers. The Law Officers set the strategic priorities, objectives and prosecution
policy for COPFS.
The Lord Advocate is a Minister of the Scottish Government and is accountable to the
Scottish Parliament, but her role as head of the systems of prosecution of crime and
investigation of deaths in Scotland are functions exercised by her independently of other
Scottish Ministers and of any other person. The duty to act independently in these
matters long precedes but is expressly set out in statute (Scotland Act 1998 section
48(5)).
The Lord Advocate appoints Advocate Deputes, who are independent prosecutors that
may be drawn from the ranks of the Scottish Bar, or Solicitor Advocates, to assist her
where required in making decisions in criminal cases, prosecuting cases before the High
Court, and in the investigation of deaths. The Law Officers and Advocate Deputes are
collectively known as Crown Counsel.
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23.
24.
25.
26.
2t.
28.
29.
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The Crown Agent is the civil service head of COPFS and head of profession for
Procurators Fiscal. He is the principal legal advisor to the Lord Advocate on prosecution
matters and the Chief Executive of COPFS. The Crown Agent is accountable to the Law
Officers for the delivery of efficient and effective prosecution of crime and investigation
of deaths, in accordance with their priorities and prosecution polices. The Crown Agent
is the Accountable Officer for COPFS and, as such, answerable to the Scottish
Parliament for the regularity and propriety of COPFS’ finance and the stewardship of
public monies.
Procurators Fiscal (and Procurators Fiscal Deputes (“PFDs”) are professional lawyers
employed by COPFS. They prosecute in courts across Scotland, and work in specialist
units, having been granted a commission to do so by the Lord Advocate.
COPFS is divided into four distinct functions which recognises the different roles and
responsibilities of the organisation. These functions are High Court, Specialist
Casework, Local Court and Operational Support.
The roles of the Lord Advocate and Procurator Fiscal are hundreds of years old,
predating the establishment of a police force in Scotland. The responsibility of the
prosecutor to investigate crime; the power of the prosecutor to direct the police in the
investigation of crime; and this power being exclusive to the prosecutor; is enshrined in
the common law of Scotland.
I have already explained the role of specialist reporting agencies (“SRAs”) and their
relationship to COPFS in my first statement to the Inquiry (paras 13 to 32 at
WITN10510100).
That the two functions of the prosecutor and the police are quite distinct is also
recognised in the common law, with the investigating agency obliged to reveal to the
prosecutor all material that may be relevant to the investigation of a particular offence.
This is known as the duty of revelation. In recent years, these duties have been put on
a statutory footing and apply equally to SRAs.
In practice, most criminal investigations will start with the investigating agency (such as
Police Scotland or an SRA) who almost always act on their own initiative. Investigating
agencies have discretion as to whether to investigate an alleged crime. The resources
applied to any investigation are a matter for the investigating agency to consider. In
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general, where they consider there is sufficient evidence that a crime has been
committed by a particular person, it is their duty to report on their investigation to the
Procurator Fiscal by means of submitting a Standard Prosecution Report (“SPR”) and
to act upon the instructions or guidance of the Procurator Fiscal. In general, if the
investigating agency consider that there is insufficient evidence of a crime being
committed, they will not make a report to the Procurator Fiscal.
30. This structure recognises the expertise of an investigating agency in investigating crime
and the independence of prosecutorial decision making.
COPFS INSTITUTIONAL AND INDIVIDUAL KNOWLEDGE OF HORIZON ISSUES
31. I have been asked whether COPFS was aware as an organisation of any bugs, errors
or defects in the Horizon IT system with the potential to affect transaction data or to
create balancing problems (not just those that ‘significantly impacted the reliability of
evidence’) between 2000 to 2013.
32. I understand this question to refer to the period 2000 up to 14 May 2013 which is the
date records show that Scottish solicitor firm, BTO Solicitors, first contacted a PFD in
COPFS Policy on behalf of POL regarding concerns with the Horizon system
(COPF0000212).
33. I can confirm that there is no evidence to suggest that COPFS was aware as an
organisation of any bugs, errors or defects in this period before 14 May 2013. No record
is held which suggests that POL provided details of any issues with the Horizon system
to COPFS prior to May 2013.
34. As I have explained in my first statement to the Inquiry, records held by COPFS suggest
that it was in the months May 2013 to September 2013 that lawyers and representatives
of POL first made COPFS aware of concerns regarding the Horizon system as identified
by Second Sight (para 43 to 53 at WITN10510100).
35. I have been asked if I am aware of aware of any circumstances between 2000 and 2013
where individual COPFS employees, such as Procurator Fiscals or other staff members,
became aware of Horizon system bugs, errors and defects, or other issues with the
Horizon system.
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36. I am aware of only one example in which an individual COPFS employee appears to
have been aware or had concerns with the Horizon system in this period.
37. This example is the comments made by a PFD during a prosecution in 2011/12. This
case was the prosecution of Ms Alied Kloosterhuis (Procurator Fiscal Reference
M11000422) at Campbeltown Sheriff Court. Records still held by COPFS show that
the PFD dealing with the case had some concerns regarding the accuracy of the system.
38. This is evidenced by letter correspondence between the Ms Kloosterhuis’ solicitor and
the PFD (COPF0000095, COPF00000986), in which the terms of an offer to plead guilty
to a lesser charge were discussed, and in comments by the PFD in his section 76 report
to Crown Counsel (COPF0000105). By way of explanation, a section 76 report is a report
by a PFD to Crown Counsel seeking instruction on whether an offer of a guilty plea ina
solemn case (a case prosecuted on indictment before a jury), usually to a lesser charge,
should be accepted by the Crown.
39. In his response to the accused's solicitor and in his report to Crown Counsel, the PFD
appears to confirm that he has some concerns regarding the accuracy of the system.
40. He does not expressly state what the basis for these concerns are in his correspondence
to the solicitor, simply stating, “/ have had dealings with the Post Office accounting
procedures in relation to other cases and do accept that some exceptional
circumstances can arise in relation to the way the amounts are calculated.”
41. In his section 76 report the Procurator Fiscal Depute advises, “Having dealt with similar
cases in the past I have found the Horizon system wanting. For example, mistakes could
have been made by the employee, Jennifer Brown or the accused as only one code for
entering details has been used.”
42. This case is one which was referred to the High Court of Justiciary by the SCCRC in
October 2022 following review of the conviction. To understand the meaning behind the
above comments, COPFS officials met with the now retired PFD in December 2023. I
am aware that a copy of the report from this meeting has already been provided by
COPFS to the Inquiry (COPF0000098). For completeness, I am aware that the PFD
explained that what he meant by these comments were that he was aware that operator
error, such as incorrect inputs by staff into the Horizon system, could result in inaccurate
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43.
45.
46.
47.
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figures being produced. He confirmed that he was not referring to, nor aware of, bugs,
errors and defects in the system itself.
As far as I am aware, these concerns regarding user input errors were not
communicated by the PFD to COPFS senior management or COPFS Policy. As
explained, the concerns related to the risk of operator error, not with system bugs or
errors. I would observe that the possibility of operator error is live in any case involving
evidence deriving from a computer system and these concerns are therefore not unique
to POL reported cases. The risk of operator error occurring is not one that would require
specialist knowledge. Consideration to this risk was clearly given by the PFD to this
possibility when the plea offer was made by Ms Kloosterhuis.
I am not aware of any other occasion whereby a member of COPFS was aware of or
had a concern in regard to bugs, errors or defects in the Horizon system prior to 2013.
In answering this question, I have been asked to take into account an email from Robert
Daily, POL investigator, to Denise Reid, POL Security team member, dated 9 October
2014 which I understand is a ‘Case Closure Report’ for a POL reported case to COPFS
against a Ms Rosemary Stewart and Ms Jaqueline El Kasaby (Procurator Fiscal
Reference GG13010308) (COPF0000218). This was a POL reported case to COPFS
and the Case Closure Report noted the offence being investigated by POL was from 3
December 2012 and involved a cash loss of £34,179.54.
I assume that I have been referred to this document in answering this question because
the ‘final outcome’ section of the report states, “PF has decided not to proceed”, and
goes on to state that, “procedural and organisation failings” are said to have been
“discussed with the primary stakeholder, on 29 January 2013’, with the comment, “PF
has cited issues with Horizon for not proceedings with the case”(my emphasis).
COPFS has carried out an investigation into this document as the date that the Case
Closure Report purports the discussion with the “PF” took place, does not correspond
with COPFS’ understanding of the procedural history and decision making timeline. Nor
does it correspond with the timeline of COPFS’ knowledge of issues with Horizon that I
understand them to be; namely that concerns regarding issues with the Horizon system
were not raised by POL prior to May 2013.
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48.
49.
50.
51.
52.
53.
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The case against Rosemary Stewart and Jacqueline El Kasaby was reported to COPFS
by POL on 21 May 2013. The submission of this case to COPFS was therefore four
months after the closure of the case was reportedly discussed between POL and the
PFD handling the case according to the Case Closure Report. It is highly unlikely, if not
impossible, that POL and COPFS officials would have discussed the closure of this case
prior to its initial submission to COPFS in the form of a SPR. COPFS could not close a
case that has not been reported to it.
The first record of any communication in this case between POL and COPFS is a copy
of an email sent to the POL Reporting Officer, Robert Daily, on 17 June 2013 by the
PFD who was marking the case (COPF0000219). “Marking the case” in this context
simply means deciding what prosecutorial action, if any, to take.
A response was received from Robert Daily on 21 June 2013 (COPF0000220). This
correspondence relates to the submission of the transcripts of the interview of the
accused. Issues with the Horizon system were not discussed.
On 23 July 2013, Robert Daily emailed the marking PFD to advise that, “following
Second Sight’s review on the Horizon system used by Post Office Ltd our Solicitors are
reviewing all cases submitted for a decision on prosecution. Therefore, as discussed
can we postpone the submission of the requested statements and productions in this
case for the present. I will be in contact once our Solicitors have concluded their review
of the case.” (COPF0000221).
The review referred to by Robert Daily in this email is understood to be the case review
that was discussed between COPFS Policy Officials and representatives of POL, BTO
Solicitors and Cartwright King solicitors in July 2013 which is referred to in my first
witness statement to Inquiry (para 44 at WITN10510100).
On 10 October 2013, the marking PFD left a note in the case stating, “chased Robert
Dailly at Post office re their review of the Horizon system” (COPF0000089).
On 12 December 2013, the marking PFD left a note in the case stating, “meeting with
Robert Daily and Susan Winters of Post Office and Laura Irvine of Brechin Tindal Oatts
Sols (advising PO). Got copy of interview transcript for Stewart. They think that there is
not enough evidence against El Kasaby and we should now change her to a witness.
She has not given a statement, and her interview did not record properly so she may not
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55.
56.
57.
58.
59.
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be much use, but RD has some notes of interview so we can have some idea of what
she may say. There are some discrepancies in the audit figures, but we could potentially
proceed on the admissions and the audit figures are reliable enough to support
admissions. They think that it should be a fraud rather than embezzlement.”
(COPF0000223).
On 27 January 2014, the marking PFD received the following email from Laura Irvine of
BTO solicitors, “/ hope you are well and thank you for meeting with Robert, Suzanne
and I before Christmas in relation to the above case. I am afraid that I do not have the
PF reference but I hope you know which one I am talking about. I was just wondering if
you had informed the potential accused Mrs El Kasaby that the case would not be
proceeding against her? Or indeed if that decision had been taken? I know that this was
the intention following our discussions. The Post Office has a mediation scheme running
at the moment which is to deal with complaints made by sub-postmasters about the
Horizon system and they need to know if Mrs El Kasaby is going to be prosecuted, or
not, so that they can deal with her case. Are you able to tell me?
This email was responded to the following day (28 January 2014) by the marking PFD
who stated, “Laura, While I have not yet informed El Kasaby that the case is not
proceeding against her, I am content that we came to the right decision about trying to
use her as a witness rather than trying to prosecute her. She can take part in mediation
if the Post Office want her to. The reference is GG13010308.” (COPF0000224).
On 23 April 2014, intimation of the decision not to prosecute Ms El Kasaby was given
by letter (attached at COPF0000225).
On 23 July 2014 the case against Ms Stewart was transferred to the COPFS Economic
Crime Team (“ECT”) and allocated to a different PFD.
On 4 September 2014, the ECT PFD left the following note in the case, “/ have had a
meeting with the RO. He has confirmed that Documentation showing the paper trail for
the fraud is unavailable. He has also confirmed that they do not have the results of the
audit in 2009. We cannot prove that there was a clear balance sheet at this time so how
can we show that the accused embezzled any money. The RO and solicitor have also
confirmed that they could not defend the Horizon accounting system. In these
circumstances there is not a reasonable prospect of a prosecution.” (COPF0000093).
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60.
61.
62.
63.
65.
66.
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A second note was left by the ECT PFD in the case on 30 September 2014 stating, “RO
has confirmed that Horizon system still has problems and he would be unable to defend
it's accuracy in court. Other documentation missing including the original audit figures.
So it can never be proved that the cash went missing after the 2009 audit.”
(COPF0000094)
Based on the information detailed above, the evidence identified and recovered by
COPFS Officials strongly suggests that any discussions relating to the reliability of the
Horizon system and the impact this would have on proceedings against both accused
must have taken place between COPFS and POL at a date later than 29 January 2013.
It certainly does not appear that the ECT PFD (named in the Case Closure Report) had
any involvement in the case prior to 2014. The evidence is in fact suggestive that the
discussions relating to the impact of the unreliability of Horizon evidence took place on
12 December 2013 (in relation to the accused El Kasaby) and 4 September 2014 (in
relation to the accused Stewart).
I have been asked to explain the nature of the Horizon evidence that was relied upon by
COPFS in carrying out prosecutions of subpostmasters between 2000 and 2013.
As I have explained above, where an investigating agency considers that is has
identified sufficient evidence of a crime it will submit a report to COPFS in the form of an
SPR. COPFS will then decide whether to raise proceedings.
The SPR is a standardised report used by all investigating agencies. It allows the author
of the report (known as the Reporting Officer) to provide information in a standardised
and uniform manner to COPFS. SPRs follow the same format for all investigating
agencies (including the Police). The SPR will provide a detailed outline of the evidence
in the case. In addition, information such as the accused’s antecedent details, any
responses given by them at interview, an analysis of the available evidence and any
additional information that the Reporting Officer considers relevant for the COPFS PFD
who will mark the case is provided.
Most cases reported to COPFS that are prosecuted at summary level (in the Justice of
the Peace or Sheriff Courts) are marked on the basis of the information contained in the
SPR alone, however, if further information is required it will be requested by the
prosecutor. Complex and serious cases often require the submission of additional
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67.
68.
69.
70.
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information, such as copies of any productions that were ingathered during the
investigation, before a decision on proceedings will be made by COPFS.
It goes without saying that all information contained within an SPR must be accurate
and true. For the process to work properly the prosecutor requires to be provided with
all relevant information in the SPR. This requirement of full disclosure and candour is
codified in the Criminal Justice and Licensing (Scotland) Act 2010. I have explained the
relationship between COPFS and POL and the duty of full and accurate disclosure in
my first witness statement to the Inquiry (paras 33 to 42 at WITN10510100). COPFS is
now aware that POL was not accurate in its SPRs. I would draw the Inquiry’s attention
to the comments of the High Court of Justiciary in the decision William Quarm et al v
HM Advocate [2024] HCJAC 15 at para 31 (RLIT0000200) in which it was observed
that the POL Reporting Officer had submitted “incorrect and misleading’ information to
COPFS when reporting Alied Kloosterhuis for prosecution.
For many summary level cases it is not necessary for the prosecutor marking the case
to read and examine all the witness statements and/or productions. A decision on
proceedings can often be made on the basis of the information contained in the SPR. In
these situations, it will only be during the course of further procedure, where the accused
has pled not guilty at first calling, that all case material will be provided to COPFS by the
Reporting Officer. Therefore, if an accused person pleads guilty at the first calling of a
summary case, then it is likely that witness statements and productions will not have
been submitted to COPFS and the plea was tendered to a prosecution raised on the
basis of the information contained in the SPR. A summary of evidence is always
disclosed to the accused before first calling of the case.
Where a case is assessed to merit solemn level proceedings the accused will first
appear in Court on petition, often on the basis of the information contained in the SPR.
Following petition appearance all evidence ingathered by the Reporting Officer will be
submitted to COPFS and disclosed to the accused.
In answer to this question, a summary of the evidence obtained from the Horizon system
would first be provided to COPFS within the SPR provided by POL. As I understand the
Horizon system required a degree of specialist knowledge to understand the information
it provided in its raw form, the POL Reporting Officer would provide a simplified
explanation in the SPR as to what the Horizon evidence was and how this supported the
evidence against the accused.
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71.
72.
73.
74.
75.
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It is not known how many cases were reported by POL to COPFS in which Horizon
evidence in its raw format was provided to COPFS. If an accused person pled not guilty
or if the case was being prepared for proceedings on indictment, then it is more likely
that the Reporting Officer would have submitted Horizon evidence to COPFS.
Of the cases identified by COPFS in its recent review of cases in which a conviction may
have been impacted by Horizon unreliability (approximately 60 cases), only one case
went to trial. A large proportion of these identified cases resolved by way of a guilty plea
at an early stage in the procedure. Most were summary prosecutions. Accordingly, raw
Horizon data was unlikely to have been submitted to COPFS.
I have been asked to explain the extent to which COPFS relied on Horizon evidence.
Before a decision to prosecute is made, the prosecutor requires to be satisfied that there
is sufficient evidence in law to raise proceedings and that it is in the public interest to do
so. For a sufficiency of evidence in Scots law, there requires to be corroborated evidence
of the facta probanda (essential elements) of a crime. One piece of evidence is not
enough to raise proceedings or prove a charge. It is therefore not possible for an
accused person in Scotland to have been convicted based on Horizon evidence alone.
As explained, records suggest that save for one case, every subpostmaster prosecution
in Scotland relying on Horizon evidence concluded in a guilty plea. In a significant
proportion of these cases the accused subpostmaster had admitted the offence during
an interview with POL investigators at the initial investigation stage.
An admission of guilt is strong evidence against an accused. However, unless very
specific conditions are met (such as a ‘special knowledge’ admission), the requirement
for corroboration still stands. Horizon evidence in POL reported cases against
subpostmasters was therefore often used in prosecutions to corroborate the admission
that had been given by the accused. Where a case consisted of an admission of guilt
which was corroborated by evidence from the Horizon system, it is likely that it would
not have been considered necessary for the prosecutor to seek further evidence from
other sources to prove the offence. It was likely considered by prosecutors that the
Horizon evidence had provided an independent cross-check of the admission given by
the accused and that the corroboration requirement was met. This assessment would
have been made without knowledge that the Horizon system could have produced
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76.
Th.
78.
79.
80.
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inaccurate evidence and that the accused may have felt pressurised into admitting the
offence.
I have been asked to explain the extent to which COPFS interrogated the evidence that
POL supplied in support of recommended prosecution.
The role of an investigating agency in Scotland is to investigate crime and submit a
report to COPFS where it is considered that there is sufficient evidence to prove its
commission by the accused. It is then for COPFS to decide what action, if any, to take.
Investigating agencies do not make recommendations on what action to take.
As I have explained, where it is established from the SPR that there is sufficient evidence
to raise proceedings, a case may be prosecuted without further interrogation of the
evidence against the accused. In many summary cases, the witness statements and
productions ingathered by the investigating agency will only be submitted after
proceedings have been raised and a ‘not guilty’ plea has been tendered by the accused.
In these situations, COPFS will not further interrogate the evidence obtained by the
investigating agency. This process assists in the effective and efficient disposal of cases
reported to COPFS which are prosecuted at summary level. As I have expressed, it is
therefore essential that investigating agencies provide accurate and comprehensive
information in the SPR.
In the years 2000 to 2013 evidence provided by POL would have been interrogated by
COPFS prosecutors to varying degrees depending on the particular circumstances of a
case. If a case was assessed to merit prosecution on summary complaint, and the
accused pled guilty at the first calling of the case, then it is possible that proceedings
were raised, and concluded, on the basis of the information in the SPR alone. In these
situations, it is unlikely there would have been any interrogation of the source material
ingathered by the POL investigator.
In more serious and complicated cases, or summary cases where an accused pled not
guilty, the evidence against the accused will have been provided to COPFS by the POL
Reporting Officer. Solemn level cases, such as the Kloosterhuis case referred to above,
underwent more detailed interrogation and precognition prior to indictment proceedings
being initiated.
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81.
82.
83.
85.
86.
87.
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If a prosecutor concluded that assistance to interpret and understand the evidence
submitted by POL was required, then they may have asked the POL investigator to meet
with them and to explain the evidence. I am aware that both PFDs referred to above at
paras 37 and 58 met with POL investigators for such meetings. I am not able to say how
many other COPFS prosecutors conducted similar meetings or what these meetings
were specifically about.
I have been asked to explain whether all of the evidence was examined in circumstances
where the subpostmaster had plead guilty.
It is likely that many POL reported cases which were prosecuted at summary level and
resulted in a guilty plea did not involve an examination of all of the evidence ingathered
by POL by COPFS. By that I mean that all the productions (such as raw Horizon data)
would likely not have been examined. Proceedings would not, however, have been
raised without full and careful consideration of the SPR. In complicated and serious
cases, it is more likely that witness statements and productions were examined.
Certainly, in solemn cases all the evidence would have been examined.
It is important to note that for the vast majority, if not all, of these cases the accused
subpostmaster was pleading guilty with legal representation and advice. It is not
acceptable in Scots law to tender a plea of convenience. Guilt must be admitted by the
accused for a guilty plea to be tendered. Absent any information from POL or elsewhere
that the evidence POL was submitting was potentially flawed and faced with an
admission of guilt and an intention by the accused to plead guilty, it would not be
considered necessary by the prosecutor to review raw Horizon data.
I have been asked whether COPFS was made aware of the advices of Simon Clarke
dated 15 July 2013 and 2 August 2013.
Although I have now seen the advices of Simon Clark dated 15 July 2013
(COPF0000229) and 2 August 2013 (COPF0000230), there is no evidence to suggest
that COPFS was made aware of, or provided copies of these, in 2013. Copies of these
advices were first made available by POL to COPFS in redacted form in 2023.
I have been asked if Dr Gareth Jenkins gave expert evidence in Scottish prosecutions.
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88.
89.
90.
91.
92.
93.
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I do not believe that there was any Scottish prosecution in which Dr Gareth Jenkins gave
expert evidence.
Records held by COPFS suggest that POL did not make COPFS aware of the view held
internally by POL as of July 2013 that POL’s expert witness, Dr Gareth Jenkins, had
been discredited as a witness by failing to comply with his duties to the Court as an
expert.
I note that the Dr Jenkins is mentioned in a telephone note of 29 July 2013 between
COPFS Policy and representatives from POL, but I would observe that only limited
information about Dr Jenkin’s involvement in Horizon prosecutions in England appears
to have been mentioned in these minutes (COPF0000231). I cannot say what was
discussed on the call.
I further note that in his report regarding the meeting between POL and COPFS on 5
September 2013, Martin Smith of Cartwright King states, “SC provided the meeting with
a broad overview of the HOL difficulties (absent any direct or indirect reference to the
role of GJ or Fujitsu)’. The use of brackets and smaller type font in this sentence
suggests to me that the comment “absent any direct or indirect reference to the role of
GJ or Fujitsu” in brackets was information withheld from COPFS (COPF0000232).
There are no records to suggest that COPFS was aware that POL officials were
shredding documents or that it was not recording information relating to issues with
Horizon contrary to its duty to reveal all material information to the prosecutor. This
directly impacted the prosecutor's duty to record and disclose all relevant information to
an accused.
I have been asked whether COPFS instructed any experts to provide
evidence/testimony relating to the Horizon IT system or the reliability of information
extracted from it in relation to COPFS prosecutions of Post Office cases relying upon
Horizon evidence.
There are no records to suggest that COPFS instructed its own expert witnesses to
provide evidence and testimony relating to the Horizon system. As explained above, I
am aware of only one prosecution of a subpostmaster in Scotland which went to trial.
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95. To provide context to this position, in the years that POL reported subpostmasters to
COPFS for prosecution, COPFS was reliant on POL, as the SRA, to make COPFS
aware of any issues which could impact the credibility and reliability of the evidence POL
submitted for the purposes of prosecution. We now know POL failed to do this in the
years 2000 to 2013.
96. In July 2013, POL made COPFS aware of the Second Sight and Helen Rose reports
and in September 2013, a meeting was held between representatives of POL and
COPFS to discuss these reports. These representatives included a POL in-house
solicitor, a senior solicitor from the firm Cartwright King and a Senior Barrister. It was at
this time when POL first properly disclosed to COPFS their concerns regarding the
accuracy of the Horizon system.
97. The purpose of the meeting in September 2013 was to establish to what extent, if any,
the defects in the Horizon system that had been identified in these two reports were
present in any live or pending prosecutions in Scotland. A minute of this meeting was
taken by COPFS Policy PFD (COPF0000233).
98. There is no evidence to suggest that POL disclosed any further concerns regarding the
integrity of the Horizon system to COPFS. The extent of the bugs present in the Horizon
system that was disclosed to COPFS were those identified in the Second Sight and
Helen Rose reports.
99. Records suggest that POL did not make COPFS aware of any reliability issues with the
‘Legacy Horizon’ version of the system. The Inquiry has provided me with a copy of an
undated memo from BTO Solicitors to POL Solicitor, Jarnail Singh, in which it is stated
that, “COPFS do not know about any additional Horizon issues which may have arisen
recently.” (POL00139899). COPFS has not seen this document previously although I
would observe that this is a document that ought to have been produced to COPFS
under an order for the recovery of documents against POL granted by the High Court of
Justiciary in 2023.
100. According to the minutes of that meeting, POL advised COPFS that it had carried out a
review of all live Scottish cases and considered that the system defects identified in the
Second Sight and Helen Rose reports did not play a part in any live Scottish cases. POL
did not disclose any concerns regarding closed and historic Scottish cases. POL
accepted that a much more detailed forensic analysis of the Horizon system was
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required to establish the full extent of any system defects and bugs. It was considered
that it may later be discovered that system defects in the Horizon system played a part
in some of the shortfalls identified in current live Scottish cases. According to POL it was
not possible to determine this at that point in time and it would be necessary to conduct
a further independent forensic examination of the system which POL was in the process
of commissioning.
101. POL advised COPFS that it considered that a full examination of Horizon would detail
the extent of any system defects and that the author(s) of the further examination would
also thereafter be able to provide expert evidence in individual cases as to whether the
shortages identified by Horizon were attributable to system errors.
102. As a result, while this further investigation was being carried out, prosecutors were
expected to carefully consider any POL reported case on its specific facts and
circumstances. When concerns regarding Horizon arose, prosecutors were advised to
suspend prosecutions and await further expert evidence (COPF0000235).
103. I am aware that in one Scottish prosecution, the accused, William Quarm, having initially
pled not guilty to a charge on summary complaint, instructed a forensic accounting report
in preparation for his defence. The author of that report opined that the Horizon system
was considered “watertight’ (COPF0000236). I am not aware of any other expert reports
in relation to Scottish prosecutions.
104. I have been asked to provide a copy of the meeting minutes taken during the meeting
of 6 October 2015 between COPFS, POL officials and their legal representatives.
105. These minutes are provided in submission with this statement to the Inquiry
(COPF0000237).
106. I have been asked to explain why COPFS did not consider it important to instruct its own
experts to provide evidence/testimony relating to the Horizon IT system or the reliability
of information extracted from it in relation to COPFS prosecutions of Post Office cases
relying upon Horizon evidence.
107. It would be inaccurate to suggest that COPFS did not consider it important that expert
evidence was obtained to provide assurance that the Horizon system was reliable for
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use as evidence in criminal prosecutions once the concerns regarding its accuracy had
been disclosed to COPFS by POL via the Second Sight and Helen Rose reports.
108. As explained above, at the meeting of 5 September 2013, representatives from POL
provided reassurance to COPFS that, in light of the concerns they had shared, POL was
seeking to identify a subject expert who could speak to the accuracy of the system and
was awaiting the results of a further report by the firm ‘Second Sight’ which would then
be produced to the Crown.
109. Given POL was carrying out the work to identify an expert and provide further vouching
in support of the system, COPFS would not have considered it necessary to instruct its
own expert.
110. It was not known by COPFS at this point in time that POL had attended COPFS with the
motivations of providing reassurance that the system was robust, nor that they were
aware of the extent that Dr Jenkins had been providing inaccurate expert evidence in
Courts in England.
111. I am now aware that these were concerns that were held by POL and that they are
referenced in internal POL documents, namely a note by POL Solicitor Jarnail Singh
(COPF0000238) and in Simon Clarke’s meeting report to POL dated 16 October 2013
(COPF00002339) in which he stated that a decision by COFPS to “terminate” all Scottish
POL reported cases “would have raised a considerable public relations storm for POL”.
COPFS CONDUCT OF PROSECUTIONS AND DISCLOSURE OBLIGATIONS
112. I have been asked whether the Second Sight and Helen Rose reports were ever
disclosed by COPFS to an accused subpostmaster or the Court in any of its open or
closed subpostmaster prosecution cases which relied on Horizon evidence.
113. There is no evidence to suggest that the Second Sight and Helen Rose reports were
disclosed by COPFS to an accused or to the Courts in any Scottish open or closed
subpostmaster prosecution which relied on Horizon evidence.
114. Copies of these reports were disclosed to the appellants in the eight cases referred by
the SCCRC to the High Court of Justiciary in 2022/23.
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115. In Scotland, the prosecutor is under a duty to disclose all information which meets the
materiality test as set out at section 121 of the Criminal Justice and Licensing (Scotland)
Act 2010 (“the 2010 Act”). Prior to the enactment of the 2010 Act these rules were
enshrined in the Scottish Common Law. Information will meet the materiality test if it: a)
would materially weaken or undermine the evidence that is likely to be led by the
prosecutor in the proceedings against the accused; (b) would materially strengthen the
accused's case, or (Cc) is likely to form part of the evidence to be led by the prosecutor
in the proceedings against the accused.
116. Records suggest that during the various meetings between POL representatives and
COPFS Policy officials in 2013, reassurance was provided by POL that the bugs and
defects identified in the Second Sight and Helen Rose reports had not impacted any
concluded or live Scottish cases. On that basis, the view was that this information did
not meet the materiality test.
117. The one case identified as a ‘Type B’ case (HM13003852) was not prosecuted and it
was discontinued once it became apparent that POL could not provide the further
evidence it promised to support the integrity of the Horizon system.
118. It should be noted that no concerns were raised by POL to COPFS in respect of the
‘Legacy Horizon’ version of the Horizon system in operation between 2000 to 2010.
COPFS’ understanding in 2013 was that it was only the bugs identified by the Second
Sight and Helen Rose reports impacting Horizon Online which were of concern.
119. On this point I would draw the Inquiry’s attention to correspondence between the COPFS
Director of Serious Casework (“DSC”) and POL in March 2014 (COPF0000240). With
reference to a historic POL reported case, the DSC advised POL, “Our concern is
whether or not we took up a case on the basis of potentially flawed evidence. I am aware
of the second site (sic) report into the Horizon System which when it was published in
July 2013 had not found evidence of systemic problems with Horizon software but was
aware of two incidents where defects or "bugs" in the Horizon System gave rise to
certain branches being affected by incorrect balances or transactions. Was the Horizon
System in 2004 the same system that was in place when the second site (sic) review
was done? In order to be able to assess the accuracy of the Horizon evidence it is
essential to know how the System worked and whether it was accurate.”
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120. In reply to that email POL provided COPFS a report prepared by Barrister Harry Bowyer
(COPF0000241) which concluded that it would seem “vanishingly remote” that issues
had developed with the Horizon system at the branch under examination that had then
cured itself. The report also noted that POL was not aware of any other bugs impacting
the ‘Legacy Horizon’ system.
121. I have been asked if COPFS at any point carried out its own wholescale review of all
Scottish cases (closed and live) relying upon Horizon evidence after being made aware
of these two reports, and in light of BTO carrying out its own review of Scottish cases.
122. COPFS did not carry out its own wholescale review of all Scottish cases (closed or live)
relying on Horizon evidence after being made aware of these two reports in 2013.
123. Following the meetings between POL and COPFS in 2013, COPFS understood that a
careful and comprehensive review had been carried out by Cartwright King and BTO
solicitors in relation to any cases which could have been impacted by the issues
identified in the two reports.
124. As I have explained previously, as the SRA who had reported these cases to COPFS
and the subject expert in relation to Horizon evidence, it was incumbent on POL to
provide COPFS with full disclosure of all issues of reliability which could impact Scottish
cases. At this point in time (2013), given the assurances provided by POL and indeed
by the Second Sight report which found no systemic issue with Horizon, COPFS was
content for POL to instruct this review and report back any concerns to COPFS. COPFS
did not have the technical expertise or understanding of Horizon to conduct this review
itself. As an SRA, POL had an absolute duty of candour and COPFS had no reason not
to trust the information that it was being provided by POL at that time. Had COPFS
known then what it knows now then that would clearly not have been the case but at
that time COPFS was entitled to assume honesty and integrity from an SRA.
125. I have been asked whether Procurator Fiscals dealing with ongoing POL reported cases
were made aware of the issues regarding Horizon Online that were disclosed to COPFS
in 2013 and whether they were given any direction in relation to how they should
approach such cases.
126. In July 2013, BTO Solicitors (on behalf of POL) made COPFS Policy aware of cases
against four accused which COPFS understood were being reviewed by POL.
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127. The COPFS function leads dealing with these four cases were contacted by COPFS
Policy via email on 9 August 2013 (COPF0000235). These cases held Procurator Fiscal
references KC13003720, KW13000211 and GG13010308 (this case featured two
accused).
128. In that email, the COPFS Policy PFD stated, “/ have clarified with BTO that we need to
be provided with an additional statement in relation to each of the cases to deal with
whether the issues identified in their computer systems affect the available evidence. I
have been told that it may be that the investigator himself is unable to say whether there
has been any such effect and have asked BTO to provide a statement from someone
who can speak to the accuracy or otherwise of the system in relation to each of these
cases. It would appear that at the moment, neither the solicitors in England, nor BTO,
nor the investigator himself may be able to say whether the system faults played a
specific role in a specific case. The approach in England appears to be to disclose the
Second Sight report and see what the defence want to make of it. My position at the
moment is that we should receive specific information on each case before deciding
whether there is any impact. As some of the cases are ongoing, I wanted to make sure
you were aware of the issue at this stage. I will let you know as soon as I receive
anything, in the meantime, I would be grateful if you could pass this to those involved in
the preparation of any such cases and include the information, such as it is, in the
consideration of how to proceed.”
129. On 2 August 2013, BTO Solicitors made COPFS aware of two additional cases that had
been identified as pending and necessitating review by them (COPF0000242). These
were cases with PF reference KC13001814 and HM13003852. There is no record of
communication from COPFS Policy to the PFDs responsible for these cases, but it is
possible this is simply due to the passage of time and loss of records.
130. I have been asked how COPFS identified POL reported cases in order to communicate
this information to the Procurator Fiscals with carriage of the case.
131. POL, through its solicitors, made COPFS aware of POL reported cases which were
relevant to the issues identified by the Second Sight and Helen Rose reports. It appears
that this was primarily via correspondence to the COPFS Policy unit.
132. I have been asked what information was communicated to Procurator Fiscals.
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133. As I have explained above, the information communicated was to a targeted group of
PFDs dealing with cases that had been identified by BTO. A copy of the email sent to
the function leads responsible for the marking of these cases is included with this
statement.
134. I have been asked how this was communicated to them.
135. A record of this information being communicated by email is held but it is possible that
further communication took place by telephone internally within COPFS.
136. I have been asked whether I am aware what steps may have been taken by COPFS,
some, or any, Procurator Fiscal in response to this information.
137. I refer to the contact between COPFS and POL in 2013. Following the disclosure by
POL of the issues identified in the Second Sight and Helen Rose reports, and the
agreement that further interrogation of Horizon was required, it was agreed that POL
would provide COPFS with a second, Second Sight, report and with a subject expert
who could speak to the reliability of the system. In the interim period, COPFS
prosecutors aware of these issues and dealing with relevant cases were expected to
take a careful approach in relation to POL reported cases.
138. 11 cases have been identified by COPFS in which prosecutors decided to suspend
consideration of proceedings and thereafter take no further action.
139. I am aware that in some of these cases, the PFD dealing with the case sought
confirmation from POL that the Horizon system could be defended in Court should its
accuracy be challenged. Cases with PF references GG13010308, GG14024535
(COPF0000243) and GG14010600 (COPF0000244) are examples of this approach and
show that when POL confirmed that this evidence could not be provided then
proceedings were discontinued.
140. I have been asked why COPFS Policy division officials provisionally concluded that all
POL prosecutions in Scotland should be terminated.
141. These were views held by COPFS officials dealing with this matter at the time. No
contemporaneous records are held which explain in full why this view was held. I have
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been asked to refer to a meeting report prepared by Simon Clark in September 2013
which I believe assists in understanding why this view was held.
142. According to that meeting report, the Policy PFD’s concerns had centred on the notion
that if Horizon Online (that being the version of Horizon introduced in 2010) was
unreliable then any evidence derived from the system would also be unreliable as
evidence in Court. Given the requirement for corroboration in Scotland, it could be
therefore be the case that one essential pillar of evidence against the accused could not
be used and thus there would be an insufficiency of evidence.
143. I have been asked what the ‘revelation’ was that is referred to at paragraph 48 of my
first statement (WITN10510100) and why it was considered significant enough to
reverse the initial decision to termination POL prosecutions. I have been asked on basis
this decision was made.
144. This is an incorrect reading of my statement. The “revelations” that I referred to in my
first statement were that POL had disclosed to COPFS that two reports had identified
bugs in Horizon Online which could impact the reliability of evidence derived from the
Horizon system. This was a revelation because POL had not disclosed these concerns
to COPFS previously.
145. Rather than discontinue all POL reported cases, the records available show that COPFS
decided to treat each case carefully on its own facts and circumstances. It appears that
this decision was made in light of the assurances provided by POL (and the independent
Second Sight report) that the issues with the system were not systemic and did not
impact any live or concluded cases. I would draw the Inquiry’s attention to paragraph 21
of Simon Clark’s briefing to POL dated September 2013 which outlined the support POL
and BTO solicitors agreed to provide COPFS.
146. The independence of the Second Sight report, which considered there to be no systemic
issues, and the assistance that was being offered by BTO on POL’s behalf was a major
factor in COPFS’ response to these issues when they were first disclosed.
147. I have been asked if COPFS terminated any cases as a result of the Helen Rose and
Second Sight reports. I have been asked if so, what cases these were and whether
reports were filed with the Court and disclosed to the accused subpostmaster/s in these
cases, and, if not, why not.
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148. As I have mentioned above, COPFS has identified 11 cases that it appears were
ultimately discontinued as a result of the Second Sight and Helen Rose reports.
149. These cases were:
¢ Sheila Ballantine: DN20000475,
e Rauf Bashir: GG14024535
e Margaret Boyd: KM18006186
¢ Christine Gourlay: HM13003852
¢ Tiffany Holt: IN15004777
¢ Khalid Hussain: GG14010600
« Kumaljit Kaur: KM17002086
e Anaum Ullah Khan: ED15013115
e Taina Mccready: GE16003263
e Rasul Murtaza:GE13008494
« Rosemary Stewart: GG13010308
150. The Second Sight and Helen Rose reports were not disclosed nor produced to the Court
because proceedings were either not taken or were discontinued against the accused
in light of COPFS’ concerns regarding Horizon and the failure of POL to produce the
further evidence promised.
151. I have been asked how COPFS was kept updated about Horizon issues after the interim
Second Sight report.
152. Records suggest that COPFS was kept updated via BTO solicitors.
153. I have been asked if COPFS'’ investigation and prosecution processes changed in any
way following the result of Second Sight’s findings in relation to Post Office cases where
Horizon was concerned.
154. As I have explained above, after POL disclosed Second Sight’s findings to COPFS, it
advised COPFS that it considered a full examination of Horizon would detail the extent
of any system defects and that the authors of the further examination would also
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thereafter be able to provide expert evidence in individual cases as to whether shortages
identified by Horizon were attributable to system errors.
155. As a result, while this further investigation was being carried out, prosecutors were
expected to carefully consider any POL reported case on its specific facts and
circumstances. When concerns regarding Horizon arose, prosecutors were advised to
suspend prosecutions and await further expert evidence.
156. In cases which were reliant on Horizon evidence for corroboration, records show that
PFDs suspended consideration of the case while this further information from POL was
awaited.
157. In 2015, a further meeting with POL officials was held. The minutes of this meeting have
been provided to the Inquiry and I have explained what was discussed at that meeting
in my first witness statement (paras 51 to 52 at WITN10510100). Following that meeting,
because of POL’s failure to provide further evidence to support the system, cases that
relied on evidence from the Horizon system were reported to Crown Counsel with a
recommendation that proceedings be discontinued or not taken. I have provided an
example report to the Inquiry (COPF0000245).
158. I have been asked to explain whether I maintain the position I gave in my second witness
statement at paragraphs 2 to 5 where I said, “The single case identified by BTO had
been determined to be a ‘Type B’ case. It is not the position system defects identified in
the in the ‘Second Sight’ and ‘Helen Rose’ reports impacted this case”.
159. I maintain my earlier statement given the information that is available to me. To explain,
between May 2013 to September 2013, POL officials explained to COPFS how BTO
and Cartwright King had made an assessment of POL cases that it had classified as
‘Type A’ and ‘Type B’ cases.
160. I understand that a ‘Type A’ case was a case in which it was assessed that Horizon had
provided the information as to wrongdoing but was not the provider of primary evidence,
and that in almost all of these cases the subpostmaster had admitted to the taking of
monies belonging to POL for their own unauthorised purposes.
161. I understand that a ‘Type B’ case was a case where Horizon or the training of its use
had been raised by the subpostmaster.
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162. BTO had identified one Scottish case that it considered to be a ‘Type B’ case, that being
a case in which either Horizon or the training of its use had been raised by the accused.
It was BTO’s view that in these ‘Type B’ cases, the Second Sight and Helen Rose reports
should be disclosed. This is because the reports contained information which was
relevant to the position adopted by the accused (that the system may have not worked
properly).
163. The classification of a case as a Type B case did not mean that it was a case that had
been identified as having been impacted by system defects. Rather, my understanding
is that it was a classification given because of the position of the accused.
164. I would draw the Inquiry’s attention to the following passage contained in the Policy
PFD’s Minute of September 2013, “Post Office Ltd have carried out a review of all live
Scottish cases and consider that the system defects identified in the “Second Sight” and
“Helen Rose” reports do not play a part in any live Scottish cases.”
165. I have been asked to explain in detail whether COPFS complied with its duty of
continuing disclosure in relation to Post Office cases affected by the Horizon system.
166. The decision not to disclose the Second Sight and Helen Rose reports in 2013 was, in
my view, justified having regard to the materiality test based on the knowledge that was
then held. However, in hindsight, my view is that the Second Sight and Helen Rose
reports should have been disclosed to accused subpostmasters in Scotland (in both live
and concluded cases) once the greater extent of the issues with the system came to
light years later. In that regard it could be said that COPFS did not comply with its duty
of disclosure. It is, however, only possible for me to say this because of the knowledge
that I now hold regarding the true depth and extent of the issues with Horizon. As has
been made clear, COPFS has only recently become aware of the true extent of the
issues and it is that new knowledge which informs my view here.
167. Had COPFS been made fully and properly aware of these issues then it is likely that
prosecutions involving evidence from the Horizon system would never have been raised
and, consequently, the issue of disclosure would have not arisen. That position is
evidenced by the action that was taken by COPFS in 2015 when its concerns regarding
potential defects in the system and POL’s inability to provide evidence that it was robust
crystalised.
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168. It is important to note that at the time the Second Sight and Helen Rose reports were
made available to COPFS, COPFS was assured that the bugs and defects identified in
the Horizon Online system did not impact live cases and were led to believe that there
were no issues with the Legacy version. I have explained how an assessment regarding
the materiality test was reached in those circumstances.
169. It is now universally known that the issues with Horizon ran much deeper than this.
Although a significant proportion of subpostmasters in Scotland gave admissions of guilt
to POL investigators and ultimately pled guilty, we can only now appreciate that many
did so under the false pretence given by POL that the Horizon system was infallible. In
that respect, the classification of cases as Type A and Type B was worthless. Just
because a subpostmaster admitted theft of monies from a Post Office did not mean that
the findings of Second Sight were not relevant. This is an issue that was regrettably not
fully appreciated by COPFS due to POL’s lack of candour. This ignorance of the position
may also have been fuelled by the high proportion of guilty pleas tendered by an accused
while represented by a solicitor.
170. I have been asked to explain in detail why COPFS did not undertake its own
retrospective review of closed cases where the accused pled guilty or was found to be
guilty in light of its duty of continuing disclosure and the knowledge it had following the
Helen Rose and Second Sight reports.
171. COPFS did not undertake its own retrospective review of closed cases in light of the
findings in the Second Sight report because it was of the understanding from information
provided by POL that these issues did not impact closed cases.
172. I have been asked to explain in detail the present status and/or outcome of COPFS’
review of potentially affected cases.
173. COPFS' internal review of cases reported to it by POL between the years 2000 to 2020
was undertaken with the objective of identifying cases which might, following a full
review of the facts and circumstances, be considered a miscarriage of justice; and to
identify those cases which might be referred by the SCCRC to the High Court of
Justiciary so that material necessary for review in response to an appeal could be
recovered by COPFS from POL.
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174. The COPFS review initially identified approximately 148 cases that had the potential to
be impacted by issues with the Horizon system. A wide net was cast in identifying these
cases to limit the possibility of an affected case being missed within the review. These
148 cases were triaged and sifted and the number of cases that were assessed as being
potentially impacted was reduced. Approximately 52 cases were identified by COPFS
which may be impacted. These 52 cases are in addition to the eight appeals in which
convictions were quashed by the High Court of Justiciary. A significant number of cases
were ruled out from the starting point of 148 cases following initial review of these on the
basis that it was possible to identify that at least one of the following circumstances
applies:
e Horizon evidence was not involved in the case at all;
e the charge was not one of embezzlement or involving a theft of money from POL;
* no proceedings were ultimately taken; or
e it was not an ‘unexplained shortfall case’.
175. The weeding process undertaken demonstrates the wide net cast in the initial
identification phase. Put another way, the initial review identified “false positives”.
176. In the remaining cases, it was not possible to determine with any degree of confidence
whether Horizon evidence played a role in the prosecution and, if it did, its import to the
particular case. Owing to, amongst other things but in particular, a lack of records, it was
not possible to form a concluded view on whether a miscarriage of justice has occurred.
177. It is believed that the position is markedly different in England and Wales. As POL was
investigator and prosecutor, it most likely has a clearer understanding of the
circumstances of the impacted cases in England and Wales. POL may already know
which cases would be classified as a miscarriage of justice.
178. Of the cases that were identified by COPFS as cases which may have potentially been
affected, it is understood (with the exception of four individuals who had not been traced)
that all the individuals concerned have been written to by the SCCRC and have been
invited to make an application to it for review of their conviction. COPFS understands
that in respect of some cases, letters have been sent to next of kin as the individual
concerned is now deceased. In conducting its contact exercise, the SCCRC has
employed the use of Sheriff Officers to trace these potentially impacted individuals.
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179. Due to the loss of records, the COPFS review is unable to make a final informed
assessment of a conviction. For that reason, applications by the SCCRC have been
critical to the review of convictions leading to an appeal to the High Court of Justiciary.
180. As explained above, the purpose of COPFS' review was to identify cases which may
have been impacted by the Horizon issues so efforts could be made to review the
conviction. These efforts have now been superseded by the enactment of the Post Office
(Horizon System) Offences (Scotland) Act 2024 which quashed convictions on the date
of its enactment. As a result of this legislation, all convictions which may have relied on
unreliable evidence from the Horizon system have been overturned. The Scottish
Government is currently conducting a notification exercise for those who's conviction
has been quashed. COPFS is providing essential assistance to the Scottish Government
via the data collected in its review.
181. I have been asked to explain why this review was not carried out sooner.
182. The full extent of the issues with the Horizon system and the possibility that these could
have impacted Scottish prosecutions was not fully appreciated until the conclusion of
the Bates v Post Office litigation in 2019 and the findings of the English Court of Appeal
in 2020/21.
183. Since these findings, work has been underway in Scotland to identify cases impacted
by these issues.
184. In September 2020, supported by COPFS, and with information provided by the Post
Office, the SCCRC wrote to 73 individuals who it was believed might have been
convicted in Scotland on the basis of unreliable evidence from the Horizon system, with
the purpose of inviting an application for their case to be reviewed.
185. I have been asked whether COPFS maintains that the decision not to terminate POL
prosecutions in Scotland back in 2013 was the correct decision.
186. As I have explained, with hindsight and the knowledge that is now held, prosecutions of
subpostmasters which relied on evidence from the Horizon system should not have
taken place.
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187. In 2013, when the decision not to discontinue all cases was made, COPFS was led by
POL to understand that these issues were minor and could be addressed. The full extent
of the issues with the system were not disclosed.
188. Given the limited number of live cases said in August 2013 to necessitate a review (six),
coupled with the assurance by POL that Horizon evidence was reliable, it may have
been considered that a decision to immediately discontinue all Scottish cases would
have been an overreaction.
189. I have referenced the correspondence that was received by the COPFS DSC in July
2013 regarding a historic prosecution and the efforts taken to ensure that POL provided
a report into the possibility that Horizon issues had impacted the case. As is clear from
POL’s response in 2014, POL provided information to COPFS that gave no basis for
suspecting termination of all Scottish cases was necessary.
190. I would also observe that the information being provided by POL to COPFS was very
much the same information that was being provided across to the United Kingdom to
the UK Government, Ministers, the media and the public.
OTHER MATTERS
191. I have been asked to advise whether there are any other matters that I consider the
Chair of the Inquiry should be aware of.
192. On 14 May 2024, COPFS wrote to POL to advise that the Lord Advocate had decided
that POL will no longer hold the status of SRA and will now no longer be entitled to
investigate and report allegations of criminality that had previously fallen within its remit
of investigation in Scotland to COPFS (COPF0000246). This decision was made as a
direct result of the repeated failures of POL to disclose to COPFS the extent of the issues
in reliability with the Horizon system.
193. Work continues to be carefully undertaken to ensure that all remaining SRAs in Scotland
abide by the crucial requirement of full and honest disclosure to COPFS.
Statement of Truth
194. I believe the content of this statement to be true.
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KENNETH WILLIAM DONNELLY
DEPUTY CROWN AGENT, SPECIALIST CASEWORK
CROWN OFFICE AND PROCURATOR FISCAL SERVICE
Dated: 25 November 2024
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Index to Third Witness Statement of Kenneth William Donnelly
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URN
Document Description
Control
Number
COPF0000212
Email from Lindsay MacNeill to Laura Irvine Re:
Post Office Ltd - Voicemail
COPF0000212
COPF0000095
Letter from Christian Kane, C&D Mactaggart, to
COPFS re: HMA v Aleid Kloosterhuis
COPF0000095
COPF0000096
Letter from M.M. Macleod, COPFS, to C&D
Mactaggart re: HMA v Aleid Kloosterhuis
COPF0000096
COPF0000105
Section 76 Report to Crown Court for
Recommendation (Aleid Kloosterhuis)
COPF0000105
COPF0000098
DCA Office Report of Meeting with Malcolm
MacLeod re the Prosecution of Aleid
Kloosterhuis
COPF0000098
COPF0000218
Email from Robert Daily to Denise Reid, Brian
Trotter, John Breeden and others re: Case
Closure - POLTD/1213/0164 - Gorbals
COPF0000218
COPF0000219
Email from Andy Lazzarin to Mr Daily RE;
request for transcript of the interview of Stewart
COPF0000219
COPF0000220
Email from Andrew Lazzarin to Robert Daily re:
RE: C/a Stewart and Kasaby GG13010308
NSE2301640513
COPF0000220
COPF0000221
Report from Robert Daily to Andy re
postponement of submission of requested
statement in the prosecution case following
Second Sight review - FOS User: Andrew
Lazzarin - Workstation: AYRSHIREO57
COPF0000221
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10
COPF0000089
Andrew Lazzarin note RE contact with Robert
Daily
COPF0000089
1
COPF0000223
Notes by FOS user: Andrew Lazzarin Re:
meeting with PO on evidence against El Kasaby
and audit figures.
COPF0000223
12
COPF0000224
Email from Laura Irvine to Andrew Lazzarin re:
Global Post Office Case
COPF0000224
13
COPF0000225
Letter from Crown Office and Procurator Fiscal
Service to Jacqueline El Kasaby re Case
Against: Jacqueline El Kasaby
COPF0000225
14
COPF0000093
Email from Angus Crawford to Unknown RE;
Angus stating that evidence in relation to the
accusation of fraud on a post office branch is
unavailable, nor does post office have results
an audit referred to as ‘the audit in 2009" nor can
RO and _ 'solicitor ‘defend’ the Horizon
accounting system ' / Record of meeting
between Angus Crawford and RO
COPF0000093
15
COPF0000094
Angus Crawford note of communication with
RO
COPF0000094
16
RLITO000200
High Court of Justiciary decision in (1) WILLIAM
JOHN QUARM; (2) SUSAN SINCLAIR, (3)
COLIN STEWART SMITH, (4) JUDITH
ELIZABETH SMITH; (5) ROBERT THOMSON;
(6) ALEID KLOOSTERHUIS v HM ADVOCATE
RLIT0000200
17
COPF0000229
Prosecutions - Expert Evidence Re: Post Office
Ltd - Advice on the use of expert evidence
relating to the integrity of the Fujitsu Services
Ltd Horizon Ltd
COPF0000229
18
COPF0000230
Advice - Disclosure The Duty To Record and
Retain Material (POL)
COPF0000230
19
COPF0000231
Note of telephone call between Martin Smith,
Cartwright King, Lindsay McNeill and Paul
Beaton from Crown Office
COPF0000231
20
COPF0000232
POL Meeting Report for meetings held on 4th
September 2013 and 5th September 2013.
COPF0000232
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21
COPF0000233
Letter from Paul Miele to Stephen McGowan
RE: Correspondence from Mr William Doran
regarding POL and defects in the Horizon
Computer system
COPF0000233
22
POL00139899
Memo from BTO Solicitors to Jarnail Singh
(POL); Martin Smith & Cartwright King Solicitors
Re: COPFS Scotland disclosure obligation.
POL-0141075
23
COPF0000235
Email from Gary Dow to Geri Watt - Re: Post
Office Fraud
COPF0000235
24
COPF0000236
Forensic Accountancy Report of David W
Adamson CA, MEWI - HMA v William Quarm
COPF0000236
25
COPF0000237
Meeting With Post Office Ltd and Their Advisors
COPF0000237
26
COPF0000238
Second Sight Report Notes
COPF0000238
27
COPF0000239
Post Office Ltd General Counsel ( ( Cartwright
King Solicitors) Briefing Note.
COPF0000239
28
COPF0000240
Email from Stephen McGowan to Belinda
Crowe re: Horizon System in Scottish Criminal
Prosecution
COPF0000240
29
COPF0000241
Letter from BTO Solicitors to Stephen
McGownan re: Elaine Doran and enclosed
advice note prepared by counsel for the Post
Office in relation to the Doran case
COPF0000241
30
COPF0000242
Email chain including correspondence from
Paul Beaton to Lindsay MacNeil CC'd Laura
Irvine and others RE; request for statements in
relation to Sottish Post Office cases, email
contains statements information of 5 Scottish
cases relating to horizon related investigations.
COPF0000242
31
COPF0000243
Email from Anne Sweeney to Angus re: case
update
COPF0000243
32
COPF0000244
Report by Angus Crawford - Workstation:
GLASGOWWIN7025 - re providing an expert
witness to provide assurance for the accuracy
of Horizon system
COPF0000244
33
COPF0000245
Crown Counsel Instruction on case relating to
Christine Gourlay re: Embezzlement charges
COPF0000245
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34 COPF0000246 I Letter from the Office of the Deputy Crown I COPF0000246
Agent, Crown Office & Procurator Fiscal
Service to POL - RE: POL's Status as a
Specialist Reporting Agency
35 WITN10510100 I WITN10510100 - Kenneth William Donnelly - I WITN10510100
First Witness Statement
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