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Peters & Peters Solicitors LLP
15 Fetter Lane, London EC4A 1BW.
DX 407 London Chancery Lane
STRICTLY PRIVATE & CONFIDENTIAL ouret NPV/HKL/CKT/PO6388.1
TO BE OPENED BY ADDRESSEE ONLY
Your Ref
FAO: Ms Karen Kneller
Criminal Cases Review Commission
5 St Philip’s Place
Birmingham
B3 2PW
Date 3 August 2021
Email
Direct Line {7
Dear Ms Kneller
RE: COMPLIANCE
oO
1. We write further to the following correspondence regarding POL’s historical
compliance with notices issued by the CCRC pursuant to s17 of the Criminal Appeal
Act 1995 (“‘s17 Notices”), including:
a. Our letter dated 26 February 2021 in which we sought to address the CCRC’s
criticisms of POL’s responses to s17 Notices;
b. The CCRC’s response to that letter dated 12 March 2021; and
c. The exchange of correspondence between you and POL’s CEO, Nick Read in
which Mr Read indicated that POL would conduct a detailed review and
analysis of historic compliance with s17 Notices to understand whether there
have been any failings.'
2. We are grateful for the indication in the CCRC’s letter of 12 March that, although
you raised some concerns about POL’s past compliance, your primary focus is on
future compliance with s17 Notices to ensure that the CCRC is properly equipped
with material from POL to discharge its duties in respect of current and future
applicants.
' The referenced correspondence is enclosed for ease of reference.
Partners
AC Bradshaw MC Cronin SL Gabriel HK Laming HUMcDowell JK Nakhwal
MOKane KE Olver NT Swift JTickner NP Vamos JJ Woodland
Peters & Peters Solicitors LLP is a limited labilty partnership registered in England and Wales under registered number ©C352134. Its registered office is at
15 Fetter Lane, London, EC4A 1BW. Authorised and regulated by the Solicitors Regulation Authority (SRA number 25192). We use the word "partner" to refer to a member
Of the LLP or an employee or consultant who is a lawyer with equivalent standing and qualifications,
* non-member of the LLP.
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3. Mr Read instructed Peters & Peters to conduct an in-depth review of compliance with
all s17 Notices issued since 2015 in accordance with his letter to the CCRC on 1
March 2021. To enable the CCRC to be assured as to the depth of our instruction, our
review has involved the examination of over 6 years’ worth of correspondence
between POL and the CCRC and an analysis of the disclosure of over 50,000
documents to the CCRC in the same period. You will perhaps appreciate that the task
has therefore taken some time to complete (alongside the competing demands that are
being made of POL in the context of the ongoing appeals, future appeals, the inquiry
and related activities), and we are grateful for your patience in awaiting the outcome
of this work and apologise for any perceived delay.
4. We have now completed our review and present summary of our findings in this
letter. Our findings essentially build upon the points that we identified to the CCRC
in our letter of 26 February 2021, and therefore that letter should be read in
conjunction with this letter.
5. We have grouped our findings under the following headings:
A. Parameters and processes
B. Further repositories and the Post-Conviction Disclosure Exercise (‘PCDE’)
A. Parameters and processes
6. POL acknowledges that it has a duty to ensure that all material responsive to any s17
notice is provided to the CCRC and that this duty is not discharged by complying
with parameters and processes agreed with the CCRC if those parameters and
processes do not identify every responsive document. However, the extent of the
interaction and engagement between POL and the CCRC on appropriate parameters
in response to the s17 notices bears emphasis.
7. Given the volume of material requested in the first wave of s17 notices in 2015, it
was agreed between POL and the CCRC in meetings and correspondence starting in
May 2015 that parameters for the provision of hard copy and electronic documents
were necessary. Those parameters and accompanying processes (including defining
the categories of material to be provided and agreeing search terms) were
subsequently agreed, monitored and updated by POL and the CCRC regularly and
throughout the following years. POL ensured that the CCRC was aware of and had
the opportunity to input into and challenge the search and collation exercise POL was
conducting. In addition, the CCRC was aware that POL needed to request documents
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from multiple parts of its business and from third parties before being in a position to
respond to many s17 Notices.
8. Our assessment is that POL was broadly compliant with the s17 Notices within these
agreed parameters and processes, subject to the following specific points to note:
a. There were five instances in which there was a notable delay in providing the
Green Security File, by virtue of the eDiscovery provider not having
transferred these files to the CCRC’s dataroom, despite POL’s instructions to
do so. As a result, these documents were only provided in February 2020. The
CCRC was on notice that the files were missing as POL had indicated on its
tracker that these files had been transferred. The files were eventually
transferred prior to referrals being made in those cases. POL/Peters & Peters
and the eDiscovery provider now have a protocol in place to ensure that if
transfers to the CCRC dataroom are requested, these are confirmed as actioned
in writing via email.
b. In 15 instances, POL did not identify physical CDs/tapes of interviews which
were not disclosed until after referrals/provisional decisions were made by the
CCRC. These items were only discovered following a wholesale collection of
the relevant Security Team archive under the PCDE. Following a lengthy
digitalisation and transcription process, they only became available around
July/August 2020, and were disclosed to the CCRC shortly thereafter.? Peters
& Peters has now digitalised all cases which relate to potential future
appellants (“PFAs”), these digitised versions are disclosed to the CCRC upon
receipt of a s17 Notice and are transcribed as soon as those individuals seek
to appeal/make an application to the CCRC, and the transcript is disclosed
upon receipt.
c. In three instances, POL did not identify RMG Buff Files, which were only
discovered following a wholesale collection of the relevant archive in the
PCDE. However, in one of those cases, the review of the RMG Buff File
identified only two disclosable documents and in another, the file was
eventually provided to the CCRC (as it relates to a case which is still being
considered) but there was a delay in its provision. There has now been a
wholesale collection of the archive which holds prosecution and investigation
? The CCRC was on notice that these transcripts were awaited in relation to all outstanding s17 Notices — see
12 May 2020 email to the CCRC from Rod Williams at 23:55.
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papers, therefore there should not be any future delay or failure to identify
such papers when complying with s17 Notices in the future.
d. In one case, POL did not identify a bundle of loose documents in its archive,
which it was later discovered were investigation/prosecution documents. This
was an unforeseen event and it would not have been possible for POL to
identify the documents as relevant prior to the collection, scanning and review
of the entire archive in the PCDE.
e. In six instances the Green Security File was not identified until after the
wholesale collection and review of the relevant archive in the PCDE. In four
of those instances, the documents were largely duplicative of material already
provided to the CCRC and only resulted in a few additional documents being
disclosed. In the remaining two instances, the File (or parts of the File) was
only identified in boxes of documents that were marked as to be destroyed in
accordance with standard file retention procedures (prior to litigation holds
being put in place for the purpose of the group litigation). These files had to
be searched for and reconstituted page by page, and it was therefore
unforeseen by POL that these files would be found in such boxes.
f. Some documents were not initially identified because of the unforeseen issue
outlined in the appendix to our letter dated 26 February 2021, where the date
detailed in the metadata of a document was different to the actual date of the
document (which meant that search terms with specific date parameters did
not pick up certain documents). * On review, most of the documents that were
affected by this issue were duplicative of other documents that had already
been disclosed to the CCRC. In particular, the CCRC was concerned at the
apparent non-disclosure of the two ROTIs in the case of Adedayo but our
review identified that these were disclosed to the CCRC in 2016 (DocIDs
108124391 and 108124392), albeit they were not in the eponymous file in the
dataroom as they should have been.
g. Whilst most of the s17 Notices had deadlines of either 20 working days or 28
days, in relation to the s17 Notice that was provided to POL by hand on 29
January 2021 for 21 individuals, there was no deadline to respond to this
notice, and the requirement was only to preserve materials. However, on 28
February 2021, the CCRC indicated that it required the provision of
> It appears that a number of documents were moved across to the POL Security shared drive in October 2009
which resulted in those documents being dated as October 2009 rather than the date on which they were
originally created.
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documents for these 21 individuals before 24 March 2020.4 Whilst a
significant amount of material was provided in response to this updated
position by the CCRC, POL did not have sufficient time to collate all of the
preserved material in the short time afforded to it by the CCRC, which resulted
in the CCRC referring a number of cases where disclosure to the CCRC had
not been completed.
h. There were a few other instances of non-compliance with the CCRC’s agreed
parameters, but these totalled under 35 documents.°
9. Whilst POL was broadly in compliance within the parameters agreed between POL
and the CCRC outlined above, our review has identified some categories and
repositories of material that, arguably, could have been included within these agreed
parameters but were not, and were only searched after the commencement of the
PCDE in January 2020, namely:
a. The email accounts of some key custodians. Whilst many emails were
already present in the investigation and prosecution files already disclosed
to the CCRC, and others were caught by agreed search terms being applied
to a central server, the specific email accounts of key individuals in the
investigation and legal teams were only separately identified and searched
within the PCDE.
b. Searches of local drives and laptops. Most documents in these repositories
were replicated on the central servers to which search terms were applied
and disclosure made to the CCRC under the agreed parameters. However, a
more comprehensive search of local drives and individual laptops was
undertaken in the PCDE.
c. Some NBSC and HSD call logs. These were originally collected for
applicants to the mediation scheme, and so were available for disclosure to
the CCRC. However, it is clear that call logs ought to have been collected
* See email dated 28 February 2020 at 17:50.
5 Failure to disclose some electronic documents despite instructions by POL/its legal representatives to do so;
failure to disclose some mediation scheme documents that were appended to the mediation scheme
investigation report, albeit the content of these appendices was contained in that investigation report and the
appendices were listed in the same, and therefore any missing appendices would be readily apparent to the
CCRC; failure to disclose some electronic data provided by Cartwright King; one instance of a CK Sift
Review not being provided.
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for all individuals subject to s17 Notices, which was not done prior to the
PCDE.
d. Some mediation scheme documents. Only some of the documents deriving
from the mediation scheme, primarily the results of the reviews, were
provided to the CCRC within the agreed parameters. However, documents
and correspondence that were connected to the eventual outcome of the
mediation scheme reviews were not provided prior to the PCDE.
10. In our view the material summarised above could have been included within the
agreed parameters between POL and the CCRC and should not have waited for the
PCDE before being identified, reviewed and disclosed. The CCRC should have been
given the opportunity to comment as to whether the CCRC was content for these
repositories to have been excluded from POL’s response to the s17 Notices.
11. We do note, however, that whilst we have identified the above issues, all of these
have been rectified and had no detrimental effect on any individual, as disclosable
documents were provided to those individuals to enable them to prepare their appeals.
B. Further repositories and the PCDE
12. As you are aware, POL commenced a post-conviction disclosure exercise in January
2020 following the High Court’s findings in the Horizon Issues judgment. We set
out the reasons why an exercise of the scope of the PCDE was not commenced prior
to that date at paragraphs 6-8 of our letter of 26 February 2021.
13. The scope of the PCDE was governed by POL’s disclosure duties under Nun’ in the
context of the High Court’s findings in the Common Issues and Horizon Issues
judgments’. In particular, the PCDE looked not just for case-specific material of the
kind covered by the CCRC’s s17 Notices, but for generic material capable of
supporting an abuse of process argument based on POL’s use of Horizon data in
prosecutions generally.
14. In addition, the PCDE looked at documents relating to confiscation proceedings, all
of which were outside the date parameters agreed with the CCRC for those cases (as
these took place after the date of conviction), and documents that did not contain the
surname of the individual but, for example, only referenced the individual’s branch.
© R (on the application of Nunn) v Chief Constable of Suffolk Constabulary and Another [2014] UKSC 37.
7 Bates & Ors v Post Office Ltd (No.3: Common Issues) [2019] EWHC 606; Bates & Ors v the Post Office Lid
(No 6: Horizon Issues) [2019] EWHC 3408
6
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Some of these documents were only picked up following a wider application of search
terms by Peters & Peters* and after an even wider application of search terms without
date parameters once the metadata defect was identified in July 2020. This issue was
unforeseen by both POL, Peters & Peters and the CCRC, and at all times POL was
transparent to the CCRC regarding the approach that was being taken.
15. Accordingly, the PCDE identified and examined material in categories and
repositories beyond the scope of the parameters previously agreed with the CCRC in
response to the s17 Notices. However, although POL disclosed the results of the
PCDE with the CCRC in good time, inevitably this was after the majority of referrals
had been made in March 2020.
Current and Future Compliance
16. The PCDE has now been completed in accordance with the Disclosure Management
Document and Addendum which have been provided to the CCRC. POL has a
centralised repository for case related information and is now in a position to respond
to all s17 Notices promptly and within the deadlines set by the CCRC. Consequently,
POL is compliant with all s17 Notices that have been issued to date (or, in the case of
s17 Notices only recently issued, is on track to comply with those Notices within their
requisite time limits).
17. In light of the judgment of the Court of Appeal in Hamilton & Others v. Post Office
Limited’, POL considers that the provision to the CCRC of material that it has
collected to date in accordance with the Disclosure Management Document and
Addendum would comply with its duties in respect of s17 Notices in relation to any
potential future appellants.
18. However, given that the CCRC was not previously afforded the opportunity to
comment on document repositories that have been excluded from the PCDE (and
therefore have not been interrogated for the purpose of s17 Notice responses), we
would like to now draw the CCRC’s attention to the following repositories that do
not relate to the investigation/prosecution of any individual, but maybe relevant to an
individual’s branch:
a. Receipts: We have already notified the CCRC regarding receipts that have
been identified for a number of individuals who have extant s17 Notices. To
8 Notified to the CCRC on 11 March 2020 at 14:23.
° [2021] EWCA Crim 577
19.
20.
21.
22
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date the CCRC has not indicated that it requires this material. Receipts have
not generally been reviewed/collected for any potential future appellant;
b. Documents from the Financial Services Centre: We understand this
repository to include transaction corrections/branch accounts etc. and other
financial related documents;
c. Hard copy branch documents in two archives: We understand these contain
branch accounts and other day to day documents deriving from branches;
d. Documents from the contracts department.
Given the scale of the exercise that would be required to interrogate the above
repositories (which could potentially be as extensive as the PCDE that has already
been conducted in terms of resourcing, time and cost) and given the judgment in
Hamilton & Others, we do not think it necessary to interrogate the above repositories
to enable the CCRC to discharge its statutory duties. However, should the CCRC take
a different view or wish to discuss these repositories, please let us know.
Wealso wish to highlight the fact that in the context of the 2012/13 mediation scheme,
POL conducted extensive investigations into branches which generated a significant
number of documents which were designed to establish whether Horizon was the
cause of a particular shortfall. This material was therefore available for all of the
individuals who applied to the CCRC between 2015 and 2020 and who were
mediation scheme applicants, but this material is not available (as a similar exercise
has not been conducted) for PFAs who were not part of the mediation scheme.
In light of the judgment in Hamilton & Others, however, POL does not intend to
replicate the exercise it conducted for mediation scheme applicants for non-mediation
scheme PFAs. It is important that the CCRC notes this distinction, so that POL is
transparent as to why the composition/categories of documents being provided in
response to s17 Notices now is different to that which was provided for most historical
s17 Notices (as most of the individuals who applied to the CCRC between 2015 to
March 2020 had been mediation scheme applicants and participated in the Hamilton
& Others appeal, whereas very few that have applied since then participated in the
mediation scheme and/or the group litigation).
. Of course, should any other new repositories come to light that contain case related
information that should be disclosed to any potential future appellants, they will also
be disclosed to the CCRC if a s17 Notice is in existence for such documents.
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Conclusion
23. We hope that this assurance exercise and the findings outlined above have addressed
the concerns previously identified by the CCRC in respect of historical compliance
with s17 Notices by POL. This work seeks to underpin and reinforce the confidence
the CCRC now has in current and future compliance and ensures that both POL and
the CCRC can now move beyond these historical issues and continue the good level
of cooperation that the CCRC has received from POL to date, as noted in your letter
dated 23 February 2021.
24. As set out above, whilst the responsibility for compliance remains with POL, an
exercise of this complexity and scope inevitably relies on active and constructive
engagement with the CCRC to ensure POL provides it with all the material the CCRC
needs to discharge its statutory duties, and we are very grateful for the CCRC’s
ongoing assistance with the task of identifying the categories and parameters of
material it requires in response to current and future s17 Notices.
25. Should the CCRC wish to discuss anything raised in this letter, please do not hesitate
to contact either Nick Vamos, Charlotte Tregunna or William Green of this office,
using the details provided above.
Yours sincerely
Posen oPoben SCrchas WP
PETERS & PETERS SOLICITORS LLP
ce:
Nick Read
Miles Trent and Anona Bisping, CCRC