REPORT TO THE POST OFFICE HORIZON IT INQUIRY
PHASE 4
INVESTIGATION, DISCLOSURE AND CRIMINAL PROSECUTION
IN ENGLAND AND WALES AND
INVESTIGATIONS AND PROSECUTIONS BY THE POST OFFICE 2000-2013
DUNCAN ATKINSON KC
VOLUME 2
(Revised)
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TABLE OF CONTENTS
1. Introduction
2. Overview of conclusions
3. The approach to audit shortages
4. Relevant offences
5. Lisa Brennan
a. Investigation and charging decision
b. Disclosure
c. Assessment
David Yates
a. Investigation
b. Charging decision and disclosure
c. Second Sight Review
d. Assessment
David Blakey
a. Investigation
a
Charging decision
c. Disclosure
d. Circumstances of plea
e. Assessment
Tahir Mahmood
a. Investigation
b. Charging decision
c. Proceedings
d. Disclosure
e. Assessment
Carl Page
a. Investigation
b. Charging decision
c. Horizon issues
d. Disclosure
e. Circumstances of plea
f. Assessment
§1
§10
§21
§25
§33
§37
§51
§53
§60
§63
§70
§73
§78
§84
§87
§95
§97
§98
§99
§105
§109
§116
§120
§124
§125
§129
§134
§142
§149
§153
§161
§166
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10. Oyeteju Adedayo §169
a. Investigation §172
b. Charging decision §177
c. Assessment §181
11. Hughie Thomas §183
a. Investigation §186
b. Charging decision §201
c. Disclosure §203
d. Second Sight Review §207
e. Circumstances of plea §210
f. Assessment §213
12. Suzanna Palmer §220
a. Investigation §223
b. Charging decision §228
c. Disclosure §230
d. Assessment §234
13. Josephine Hamilton §238
a. Investigation §242
b. Charging decision §256
c. Disclosure §261
d. Circumstances of plea §264
e. Second Sight Review §267
f. Assessment §274
14. Susan Rudkin §279
a. Investigation §282
b. Charging decision §292
c. Proceedings §299
d. Disclosure §302
e. Assessment §306
15. Peter Holmes §309
a. Investigation §312
b. Charging decision §321
c. Disclosure §329
d. Assessment §333
16. Seema Misra
a.
b.
c.
d.
Investigation
Charging decision
Disclosure
i. Initial disclosure
ii. Disclosure relating to expert evidence
ii. Pre-trial disclosure
iv. Post-conviction disclosure
Assessment
17. Lynette Hutchings
a.
b.
c.
d.
e.
Investigation
Charging decision
Proceedings
Disclosure
Assessment
18. Joan Bailey
a.
b.
c.
Investigation
Charging decision and disclosure
Assessment
19. Alison Hall
a.
b.
c.
d.
e.
Investigation
Charging decision
Disclosure
Circumstances of plea
Assessment
20. Allison Henderson
Investigation
Charging decision
Initiation of proceedings
Disclosure
Circumstances of plea
Assessment
§336
§340
§350
§356
§357
§363
§380
§395
§402
§415
§419
§425
§426
§429
§438
$441
444
§453
§457
§459
§463
§469
§471
§472
§476
§479
§483
§487
§494
§495
§504
§512
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21. Grant Allen
22. Angela Sefton and Anna Neild
a.
b.
c.
d.
Investigation
Charging decision
Horizon evidence
Instruction of counsel
Disclosure
Assessment
Investigation
Charging decision
Disclosure
Assessment
23. Khayyam Ishaq
e.
Investigation
Charging decision
Instruction of counsel
Disclosure
Assessment
24. Conclusions
$516
§518
9524
§527
§535
§536
§543
$546
§549
$555
§559
§576
§580
§585
$596
§599
§602
§616
§620
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INTRODUCTION
1. This is my second report prepared for phase 4 of the Post Office Horizon IT Inquiry, a
statutory inquiry under the Inquiries Act 2005, which focuses on “action against Sub-
Postmasters and others: policy making, audits and investigations, civil and criminal
proceedings, knowledge and responsibility for failures in investigations and
disclosure”. It is neither necessary nor helpful to set out the full factual background
here. In short, so far as is presently relevant, the Inquiry seeks to consider
investigations undertaken by and prosecutions brought by the Post Office against Sub-
Postmasters, managers and assistants where shortfalls and discrepancies in branch
accounts had been identified through the use of the Horizon computer system. That
system was originally designed and operated by International Computers Limited,
which was partially owned by, and later fully integrated with, Fujitsu.
2. The operation of that system, the issues of shortfalls and discrepancies to which it gave
rise and the action taken by the Post Office thereafter are addressed in detail in the
judgement (no.3) ‘Common Issues’! and judgement (no.6) ‘Horizon Issues” of the
Hon. Mr Justice Fraser, and the decision of the Court of Appeal in Josephine Hamilton v
Post Office.
3. I will throughout this report refer to the Post Office, so as to encapsulate a number of
legal entities that have existed in the period with which I am concerned. The materials
that have been provided to me for this purpose are addressed in appendix 3 to this
report. It follows on from the required declarations that are set out in appendix 1 and
details of my qualifications to write this report, which are set out in appendix 2. I
should make clear that I have been greatly assisted in the preparation of this report by
Catherine Brown and Sebastian Walker, whose qualifications are also set out in
appendix 2. They have played an invaluable role in managing, analysing and distilling
the voluminous materials that I have been asked to consider. The opinions set out in
this report are, however, my own.
1 [2019] EWHC 606 (QB)
2 [2019] EWHC 3408 (QB)
3 [2021] EWCA Crim 577
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4. In my first report, I considered the legal framework for investigation and prosecution,
both by the Post Office and more broadly, and the framework relating to
responsibilities of prosecuting authorities, investigations, charging decisions,
prosecutions and disclosure. In that report, I addressed applicable statutory
provisions, codes of practice issued under statute, guidelines and guidance, caselaw
and other material from a range of identified sources, and then consideration of such
policy documents and guidance issued by and to the Post Office as engage those
topics. I will allude to that material in this second report as is necessary, but will not
repeat the detail of that analysis. As is obvious, it forms the structure for my present
analysis.
5. That analysis in this second report relates to the actual application of the Post Office
policies I have seen, and more significantly the application of the wider framework for
investigation and prosecution with which the Post Office accepted that it was expected
to comply. I am asked to assess this actual application through a detailed analysis of
22 actual cases investigated and prosecuted by the Post Office in the period of the
Inquiry’s focus, namely between 2000 and 2013. In each of the cases provided, I have
considered, with the assistance of Catherine Brown and Sebastian Walker, the papers
that have been provided to us by the Inquiry relating to those cases, to identify, where
possible, the progress of and decisions taken in the course of the Post Office
investigations, the charging decisions, and prosecutorial decisions taken thereafter
and the process of disclosure.
6. I should say at once that the material available to us has varied considerably between
cases. In some cases, it has been extensive, whilst in others no material has been
provided in relation to certain of these topics at all. 1 have made this clear in my
analysis of the cases. In certain instances, there is particular material relating to the
instruction of and role of counsel, and this is addressed where pertinent. Similarly, as
the Inquiry is aware Second Sight undertook an independent investigation of issues
raised by sub postmasters in 2014. In some cases, material from that process and the
Post Office Mediation exercise is available, and, to the extent relevant, has been
considered. I have also, more recently, seen a document ‘Gareth Jenkins chronology’.
In have considered this, although I have not seen all of the material underlying it. I
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understand that the document is not being treated as a source of evidence by the
enquiry, and I have not sought to do so either.
7. I should add that because material in two of the 22 cases has only been provided to
Catherine Brown, Sebastian Walker and myself in the very recent past, I do not address
those two cases in this report. I will do so in an addendum.
8. In analysing the 20 individual cases addressed in this report I have had regard to the
approach adopted by the Post Office (referred to below as ‘POL’) in the proceedings
before the Court of Appeal in Josephine Hamilton v Post Office’. This was summarised
by Holroyde LJ as follows®:
“In its Respondent's Notice, POL accepted Fraser J's findings that there were about 30 bugs,
errors and defects in the Horizon system, which did not operate simultaneously and which
affected both Legacy Horizon and Horizon Online, and that there was a significant and material
risk on occasions of branch accounts being affected in the way alleged by the claimants by bugs,
errors and defects. It also accepted that POL failed to disclose to SPMs and to the courts the
full and accurate position in relation to the reliability of Horizon. In relation to its duties as a
private prosecutor, POL accepted that in cases where the reliability of the ARQ data was
essential to the prosecution case, it had a duty to assess that data; and that in view of the
limitations on the extent to which SPMs could investigate discrepancies in Horizon, POL had
a duty to investigate to ensure that the evidence was accurate and to pursue reasonable lines of
enquiry raised by the SPM. It was further accepted that Fujitsu had the ability to insert, inject,
edit or delete transaction data or data in branch accounts; had the ability to implement fixes in
Horizon that had the potential to affect transaction data or data in branch accounts; and had
the ability to rebuild branch data. All of this could be done by Fujitsu without the knowledge
or consent of the SPM.
POL therefore accepted that in cases where the reliability of Horizon data was essential to the
prosecution and conviction of the appellant, and where Fraser J’s findings showed that there
was inadequate investigation and/or that full and accurate disclosure was not made, the
conviction may be held by this court to be unsafe on grounds amounting to category 1 abuse.
In such cases, POL did not resist the appeal on Ground 1.
5 [2021] EWCA Crim 577
6 Josephine Hamilton o Post Office, §70-72
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POL did not however accept that the same failures of investigation and disclosure were
sufficient to justify a finding of category 2 abuse. In relation to the appeals which were not
opposed on Ground 1, that concession did not mean that the appellant should not have been
prosecuted, or that the prosecution was an affront to the public conscience or (to adopt another
phrase used in other cases) an affront to the conscience of the court.
9. J have also, where applicable, taken into account that which was accepted to have
occurred in such of the 20 cases as were considered by the Court of Appeal, and the
conclusions that they reached.
OVERVIEW OF CONCLUSIONS
10. At the beginning of my first report (paragraph 3), I set out in full the questions I was
asked to consider. Of those questions that I was asked to address, those that I can now
address by reference to these specific cases are:
1. In relation to investigations:
a. The duties of an investigator to pursue a reasonable line of enquiry
(generally, and also where a person positively asserts that they believed
the problems they had experienced (accounting shortfalls at their
Horizon terminals) might lie with the computer system).
2. In relation to prosecution: _
a. Charging decisions:
i.The test that the prosecutor applied - including an analysis of (i) any
general POL prosecutorial guidance/ policy (ii) any policy decisions
made in relation to prosecutions based on Horizon evidence;
ii. The evidence that the prosecutor reviewed when making a charging
decision (or ought to have reviewed);
iii. The extent to which the charging decisions appear to be thorough and
conscientious;
iv.The approach said to have been undertaken of charging theft and
false accounting as alternatives.
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b. How proceedings were commenced - an application for the issue of a
summons in the Magistrates’ Court (and the duty of candour when
applying for the issue of a summons - see e.g., R (Kay) v Leeds Magistrates’
Court [2018] EWHC 1233 (Admin)).
c. Disclosure:
i.Whether there was a “disclosure officer” (as would exist in a
prosecution conducted under the CPIA), or equivalent (and, if not,
any difficulties that this created);
ii.Whether the prosecutor reviewed the adequacy of disclosure;
iii. The extent of the duty of “cross-disclosure” - i.e. where an issue arises
in Case A, there is a duty to give disclosure of it in Cases B, C and D
etc.
d. Prosecutorial practice:
i.The practice said to have been undertaken of ‘plea bargaining’ (i.e.
offering no evidence on a count of theft in return for a plea on a count
of false accounting).
In summary, in the investigation process, discernible from the material I have seen,
the roles played by identifiable personnel did not reflect the division of roles identified
in the CPIA Code and Attorney General’s Guidelines on Disclosure. It appeared that
the same person undertook both investigative and disclosure roles, and it was not clear
who was supervising or directing them in either capacity. There were, consistently,
failures by the investigators to identify and to pursue reasonable lines of enquiry. This
remained the position even after the requirement to pursue all reasonable lines of
enquiry was made explicit in Post Office policies after 2010. There were lines of
enquiry common to these cases, which were of direct relevance to issues such as
dishonesty, and an intention to gain or cause loss, and which in turn were thus relevant
to the offences most commonly charged in these cases. These include financial
enquiries relating to the suspect, enquires relating to their training and their contact
with relevant helplines, and enquiries relating in particular to the operation, reliability
and accuracy of Horizon data.
10
12.
13.
14.
15.
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In some cases, reasonable lines of enquiry that had not been pursued hitherto were
identified by Post Office lawyers or independent counsel, who provided advice. This
was wholly appropriate, and consistent with the approach identified in the Attorney
General's Guidelines on Disclosure. But in the majority of cases, however, there was
an apparent failure of prosecutorial supervision as to the identification and pursuit of
reasonable lines of enquiry. Given that these included, in most cases, the testing of the
reliability of the core evidence relied on to prosecute, which was a factor specifically
identified in the Code for Crown Prosecutors for the reviewing lawyer to consider, this
is concerning.
The Code for Crown Prosecutors was also not applied with any degree of depth,
analysis or consistency by those advising as to (or potentially making) charging
decisions. The test was not always correctly applied, with additional and different tests
quoted in some cases, and in no case did I see any analysis of the factors identified in
the various iterations of the Code which were designed to assist the lawyer in reaching
a conclusion as to whether there was a realistic prospect of a conviction and whether
such a prosecution was in the public interest. In particular, the public interest test was
rarely mentioned at all. The charging advices that I have seen did not include any
analysis of the evidence, or address how the evidence satisfied the key ingredients of
the offences charged. The advices, therefore, were neither thorough nor conscientious
in their approach.
Decisions reached as to charging as between theft and false accounting lacked any
consistency of approach, and where both offences were charged, there was a lack of
explanation as to why. There was no reference to the approach of the Court of Appeal
in Eden. There were also a significant number of cases where theft was charged without
any certainty as to the fact of, or degree of loss, and where, without any change to the
evidential position, pleas were ultimately accepted to an alternative charge further
calling the decision to charge theft in the first place into question.
In a number of the cases, the circumstances in which such a plea occurred give rise to
very serious concern. In at least 3 cases, it was clear from the material that I reviewed
that the acceptance of pleas to an alternative offence to theft were made conditional on
the repayment of the monies alleged to have been stolen and an undertaking that no
criticism would be made of the Horizon System in mitigation. As the Court of Appeal
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rightly concluded in the case of Hamilton and others, such an approach was improper,
irrational and unjust.
16. The issues with the process of disclosure in these cases flowed from the failings in the
investigation process. Just as there had been failings to investigate such reasonable
lines of enquiry as the finances of the defendant, their training, their contact with
helplines and the reliability and accuracy of Horizon data, there were failures to make
disclosure in relation to these areas. The disclosure process was heavily defence
request led, rather than proactive, with delay and in some cases resistance to
disclosure that was properly sought, engaged by the issues and which ought to have
been identified as material undermining of the prosecution case or of assistance to the
defence case. In this context, there was also apparent failures to recognise the duty to
obtain and consider third party material, from financial institutions and Fujitsu. In
some cases, the ‘Gareth Jones chronology” suggests an informal approach to the
obtaining of such third party material. Whether or not this was the case falls to be
determined by consideration of the material referenced in the chronology, much of
which I have not seen.
17. In procedural terms, the disclosure officer, who was usually also the investigator,
usually did prepare schedules of unused material. These were often inadequate in
terms of their content and description, and there is little evidence that they were
reviewed, as the CPIA Code and Attorney General’s Guidelines on Disclosure
required, by the prosecutor. Decisions as to disclosure from the schedules were flawed
or overly restrictive. In some cases this position was improved by action from trial
counsel.
18. There was, in particular, failures of disclosure in relation to Horizon data. This
included the failure to disclose the underlying material to that relied on, including
ARQ data, either at all or to the extent necessary. The attitude that appears to have
informed disclosure was the belief that the defence should identify with clear focus
what the problems with the Horizon system had been before there would be disclosure
in relation to those problems. That was a flawed approach. It was not reasonable to
expect the defendant necessarily to know what the problems actually were, or what
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was causing them. Moreover, it was for the prosecution, who could test the reliability
of Horizon data they relied on, to provide the material that undermined that reliability.
19. There was, allied to these concerns, a failure of cross-disclosure between cases where
Horizon issues had been raised. From 2010 onwards, I have seen discussions of the
need to disclose issues raised in one case in others where similar issues had arisen, but
it is far from clear that this was routinely or adequately addressed.
20. These problems remained even where experts were instructed and expert evidence
was relied on by the prosecution. There were failures of disclosure to defence experts,
or very protracted and cumbersome disclosure, and a failure to disclose that relied on
by the prosecution expert or that was capable of undermining the prosecution expert's
opinion. Finally, the very limited evidence I have seen in relation to the instruction of
Mr Jenkins as an expert does not show that he was informed at any point about his
duties as an expert, and compliance with the disclosure duties of an expert.
Communication with him was much more informal, and focused on rebutting defence
cases. There were very real problems and failings in the resulting disclosure, so that
reports were served that did not identify material that Mr Jenkins had that
undermined the reliability of Horizon. As a result disclosure of and relating to expert
evidence was not undertaken correctly so as to ensure fairness or transparency.
THE APPROACH TO AUDIT SHORTAGES
21. Since the completion of my first report, I have had my attention drawn to a Post Office
guideline ‘Managing Shortages at Audit: Process and Policy Guidelines’’. This
identifies the stages of the process to be undertaken when “audit shortages have been
identified by field teams”. It should be noted that two more detailed documents, which
I have not seen, are embedded in the guideline I have seen. The stages are the
following:
8 POLOO118154
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(a) The field support adviser should report the audit shortage to the Contracts adviser.
There is specific embedded guidance, which I have not seen, as to what
information needs to be conveyed;
(b) The contract adviser will determine what action is to be taken. There is specific
embedded guidance, which I have not seen, to assist the decision making process.
It is clear from the terms of the guideline that one of these decisions will be as to
whether or not to suspend the agent (sub-postmaster) in question on a
precautionary basis. It also appears that they will determine if there is to be an
investigation, which may result in prosecution.
(c) The Contract adviser will contact the agent to discuss the next steps, which will
include the agent attending for interview, arrangements for the repayment of the
shortage and giving the agent the option of resigning to avoid termination. It is
clear that the Security Team will be notified of a precautionary suspension so they
may “decide to investigate this case”.
(d) The Contact adviser will review the evidence to determine whether the agent can
be reinstated or summarily terminated.
The Guideline also identifies factors that should be taken into account during the
course of the investigation by the contract adviser. They are written in terms of the
commission of an offence, and would therefore appear to have relevance to others
making investigative decisions in this context (although this is not explicit). These
include:
(a) Whether the agent has sought to cover up the offence, through manipulation of the
branch accounts;
(b) Any previous suspension of the agent, and their record of general performance
and rule compliance;
(c) Whether the agent sought help to resolve or report problems, for example through
contact with the National Business Support Centre (NBSC);
(d) Whether the agent admits and accepts personality responsibility for the offence
from the outset, and whether they exhibit genuine remorse;
(e) Whether the agent was acting under duress or threat, or alternatively whether they
were on medication or suffering from a disorder that would have affected their
judgement.
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23. The Guideline then states: “The factors are recorded on the ‘record of decision case
document...and will be categorised under key points in the case as presented by the Agent -
positive and negative and key points in the case as presented by POL - positive and negative
in relation to the charges against the Agent. The Contract adviser will provide a qualified
recommendation on the case based on the balance of probabilities. The document must clearly
indicate why the particular course of action has been recommended and why any other course
of action has been excluded. The document is reviewed by the Agents Contracts Deployment
Manager and the decision is either endorsed or changed If changed reasons are to be given for
the change and these details are recorded in the form...”
24. I confess a degree of concern about this paragraph. On one interpretation, it deals just
with a decision on the balance of probabilities as to suspension, termination or
reinstatement. However, on another interpretation, it relates to a decision to charge
and prosecute an agent on a basis other than a determination on legal advice of the
code for crown prosecutors, which is a more nuanced and detailed test than the
balance of probabilities. I have had this concern in mind in reviewing the 20 cases
which this report considers, to determine the basis on which charging decisions were
in fact reached. In any event, this guideline provides a useful template for the
assessment of the initial stages of the investigation process.
RELEVANT OFFENCES
25. In each of the twenty cases considered in this report, the offences charged were a
combination of theft, false accounting and fraud. It may assist if I identify at the outset
the elements of those offences, so that my analysis of whether those offences were
properly charged has that structure in mind. In fact that structure was helpfully set
out for those investigating those offences by the Royal Mail Group Security Procedures
& Standards document ‘Criminal Offences Points to Prove’, a second version of which
was issued in December 2008.
26. The points to prove for the offence of theft, contrary to section 1, Theft Act 1968, are
correctly identified in the 2008 document as:
° POL00104823
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(i) Dishonesty,
(ii) Appropriates,
(iii) Property,
(iv) Belonging to another,
(v) With the intention to permanently deprive.
27. To develop each of these slightly (and to a greater extent than the 2008 document
does), but without getting into irrelevant qualifications and contingencies:
(i) Dishonesty, during the period of the Inquiry’s focus, was defined by reference
to the test laid down by the Court of Appeal in Ghosh”. In short, in determining
whether a defendant had acted dishonestly, a jury had first of all to decide
whether, according to the ordinary standards of reasonable and honest people,
what was done was dishonest; if it was not dishonest by those standards, that
would be the end of the matter and the prosecution would fail (the objective
test). If it was dishonest by those standards, then the jury had to consider
whether the defendant himself had to have realised that what he was doing
was by those standards dishonest (the subjective test).
(ii) “Appropriates” is defined by section 3, Theft Act 1968 as “any assumption of the
rights of an owner”. It is clear from decisions of the House of Lords in, for
example, Gomez", that the assumption of any right (as opposed to all rights) of
the owner is sufficient, and that the physical taking or obtaining of the property
is not required. Lord Browne-Wilkinson in that case!? observed that
appropriation is an “objective description of the act done irrespective of the mental
state of either the owner or the accused” .
(iii) “Property” is defined by section 4(1), Theft Act 1968 as including “money and
all other property, real or personal, including things in action and other intangible
property”. A credit balance in an account provides the holder with a thing in
action. Accordingly, if someone transfers monies from a Post Office account,
10 [1982] QB 1053. This test was partially rejected by the Supreme Court in Ivery v Genting Casinos (UK)
Ltd [2017] UKSC 67, but that change is not relevant for present purposes.
11 [1993] AC 442
12 Gomez [1993] AC 442, at 495
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and satisfied the other ingredients of the offence are made out, they will have
committed theft.
(iv) “Belonging to another” is defined by section 5(1), Theft Act 1968 as belonging
to “any person having possession or control of it, or having in it any proprietary right
or interest...”. Section 5(3) adds “where a person receives property from or on
account of another, and is under an obligation to the other to retain and deal with that
property or its proceeds in a particular way, the property or proceeds shall be regards
(as against him) as belonging to the other’. In short, therefore, if someone
transferred monies from a Post Office account, they will have been dealing
with property belonging to another.
(v) “With the intention to permanently deprive” is partly defined by section 6,
Theft Act 1968, which at section 6(1) states: “A person appropriating property
belonging to another without meaning the other permanently to lose the thing itself is
nevertheless to be regarded as having the intention of permanently depriving the other
of it if his intention is to treat the thing as his own to dispose of regardless of the other's
rights; and a borrowing or lending of it may amount to so treating it if, but only if, the
borrowing or lending is for a period and in circumstances making it equivalent to an
outright taking or disposal.” In Velumyl's, the Court of Appeal rejected an
argument that an employee who “borrowed” money from his employer
expecting to return an equivalent sum had no intention permanently to deprive
his employer of that sum. It would only be if the employee returned the very
same notes that this would be the case.
28. The 2008 points to prove document correctly identifies that the points to prove for the
offence of false accounting, contrary to section 17, Theft Act 1968, depend on which
subsection of section 17(1) is relied on. As identified in the document:
(a) Under section 17(1)(a), the points to prove are:
(i) Dishonesty,
(ii) I With a view to gain for himself or another,
(iii) Or intent to cause loss to another,
(iv) Destroy, deface, conceals or falsifies,
13 [1989] Crim LR 299
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(v) I Any account or any record or document,
(vi) I Made or required for accounting purposes.
(b) Under section 17(1)(b), the points to prove are:
(i) In furnishing information for any purpose
(ii) Produces or makes use of any account,
(iii) Or any such record or document.
(iv) Which to his knowledge is or may be misleading, false or deceptive in
a material particular.
29. To develop each of these slightly (and to a greater extent than the 2008 document
does), but without getting into irrelevant qualifications and contingencies:
(0) Dishonesty, in the relevant period, was governed by the same test as for the
offence of theft;
(ii) “Gain” and “loss” are to be interpreted in accordance with section 34(2)(a),
Theft Act 1968 which states: “...’gain’ and ‘loss’ are to be construed as extending
only to gain or loss in money or other property, but as extending to any such gain or
loss whether temporary or permanent; and— (i) “gain” includes a gain by keeping
what one has, as well as a gain by getting what one has not; and (ii) “loss” includes a
loss by not getting what one might get, as well as a loss by parting with what one has”.
In Eden! it was made clear that ‘Gain’ incudes “temporary gains of many types.
Such a gain could be constituted by putting off the evil day of having to sort out the
muddle and pay up what may been in error kept within the sub-post office when it
ought to have been sent to head office.”
(iii) I The meaning of falsification is extended by section 17(2), Theft Act 1978 so that
it embraces the creation of a false account as well as the falsification of an
existing one!>. Moreover, section 17(2) makes clear that the omission of material
information from a document can have the effect of falsifying it.
(iv) I Whether the “account or any record or document” is “made or required for
accounting purposes” is a question of facts.
14 (1971) 55 Cr. App. R. 193, at p.197
15 This was made clear in Scot-Simmonds [1994] Crim LR 933
16 See for example O [2010] EWCA Crim 2233
18
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(v) For the purposes of section 17(1)(b), it is not enough that information is
furnished or included in an account, record or document is false, it must also
be false “in a material respect”. In Mallett!’, the Court of Appeal rejected the
contention that falsity was material only if directly connected to the accuracy
of the accounting process. If the false information was material to the financial
decision of the company, and the information was contained in a document
required for accounting purposes, this was sufficient.
30. The points to prove for the offence of fraud, contrary to section 1 of the Fraud Act 2006,
are correctly identified in the 2008 document by reference to the different forms of
fraud addressed by different sections of the Act, namely fraud by false representation
(section 2), fraud by failing to disclose information (section 3) and fraud by abuse of
position (section 4). Of these, it is fraud by false representation that is immediately
relevant. The 2008 document identifies the points to prove of that section 2 offence as
follows:
(i) Dishonesty,
(ii) Making of a ‘false’ representation,
(iii) Intention to make a gain for himself or another
(iv) Or Intention to cause loss to another,
(v) Or Intention to expose another to a risk of loss,
(vi) The representation is false if it is untrue or misleading
(vii) I AND the person making it knows that it is or might be untrue or misleading.
31. To develop each of these slightly (and to a greater extent than the 2008 document
does), but without getting into irrelevant qualifications and contingencies:
(i) Dishonesty has a broadly similar meaning to that applicable to the Theft Act
1968, and thus in the relevant period the Ghosh!8 test had application.
Dishonesty applies not just to the method employed, the making of a false
representation, but the ulterior motive for it, the making of a gain or the
occasioning of a loss.
17 [1978] 3 All ER 10
48 [1982] QB 1053
19
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(ii) Making of a ‘false’ representation involves the making of a representation
either to a person or (pursuant to section 2(5)), to a “system or device”. The
making of a representation is the necessary conduct element. As was observed
by Gross LJ in Varley!®: “the actus reus, the conduct element of the offence, the making
ofan objectively untrue or misleading representation. The mens rea, or mental element,
is made up of the requisite knowledge, dishonesty and intention.”
(iii) I The terms “gain” and “loss” are informed by section 5, Fraud Act 2006 which
makes clear that they “extend to gain or loss in money or other property” (section
5(2)(a)), that “gain includes a gain by keeping what one has, as well as a gain by
getting what one does not have” (section 5(3)) and “loss includes a loss by not getting
what one might get, as well as a loss by parting with what one has” (section 5(4)).
(iv) ‘Representation’, pursuant to section 2(3) “means any representation of fact or law,
including a representation as to the state of mind of (a) the person making the
representation, or (b) any other person”. It may be an express or implied
representation (section 2(4)).
32. I have had the elements of these offences in mind in my assessment of the charging
decisions reached in the 20 cases with which this report is concerned. I repeat that I
have not reached my own charging decisions, or tested those reached by reference to
whether I would have reached the same conclusion. Rather, I have considered whether
the decision reached was one reasonably open to the decision maker on the evidence
then available, by reference to the version of the Code for Crown Prosecutors then in
force.
LISA BRENNAN
33. Lisa Brennan worked as a counter clerk in the Huyton post office in Merseyside. She
had started this employment when she was 16 years old. Her prosecution related to
events in 2001, and thus close in time to the rollout of Horizon.
34. On 4th September 2003, in the Crown Court at Liverpool before His Honour Judge
Phipps and a jury, Ms Brennan was convicted on 27 counts of theft, representing a
19 [2019] EWCA Crim 1074, at para.108
20
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shortfall of £3,482.40. She was acquitted on five further counts. On 6" September 2003,
she was sentenced to six months’ imprisonment suspended for two years. On 11! May
2004, her appeal against conviction (on the basis of inconsistent verdicts) was
dismissed”. As a result of the proceedings against her, she was forced to file for
bankruptcy.
35. In summary, the prosecution case was that when she paid out cash for allowance and
benefit vouchers, she removed more cash than was permitted by the voucher and kept
the difference herself. The evidence of theft depended on the difference between the
amount Horizon showed had been entered onto the system and the lesser amount of
the voucher. When interviewed, Ms Brennan admitted the discrepancies. She said that
they were errors on her part because of problems at home and pressures of work. She
denied theft and said she did not know what had happened to the money.
36. In the proceeding before the Court of Appeal in Josephine Hamilton v Post Office?!, Ms
Brennan was one of those in category B, “in respect of whom POL accepted that this court
may properly find that the prosecutions were an abuse of process within category 1, but resisted
the appeals insofar as they are based on category 2 abuse.”
Investigation and charging decision
37. There is a dearth of papers in this case. In others of the cases that I have reviewed, for
example, there is an investigation summary, prepared for the investigator and
intended for the contract manager and others, which provided some help as to the
lines of enquiry that were pursued. The paperwork here does not identify specifically
who performed the roles of senior investigator, investigator or disclosure officer for
the purposes of the CPIA. It is therefore difficult to assess the performance of these
roles by reference to the person who was actually expected to undertake them, and to
identify whether the need for someone to do so was properly appreciated.
20 R v Brennan [2004] EWCA Crim 1329
21 [2021] EWCA Crim 577, at §75
21
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38. A memorandum” to the Retail Line Manager from Stephen Bradshaw, who can be
identified through other cases as a Financial Investigator, dated June 2002, records that
a “mainstream check” had revealed discrepancies to the value of £1055.24, and that an
enquiry was raised on “Huyton DMB”. Each of these appears to be a reference to
checks on Horizon. A local check of the Huyton branch pouches showed discrepancies
and further checks were made against Horizon which revealed more. The common
factor was that the date stamp used related to Ms Brennan. Her stock was checked,
and she was interviewed. The stock check revealed no discrepancies of cash or stock,
but one relating to a group 5 voucher.
39. Ms Brennan was interviewed on 13 June 2002. Mr Bradshaw, the investigator,
undertook the interview with a colleague, and Ms Brennan was accompanied by a Post
Office Friend, who was a union representative. This is a recognised Post Office
procedure, which is a right of any sub-postmaster to be interviewed in addition to
rather than instead of a solicitor*‘. Here, there was no solicitor present in interview. At
the start of the first interviews, Ms Brennan was informed of rights to be represented
in addition but declined. She was cautioned and the caution was correctly explained.
40. She was provided with a form described on the transcript as a CS001*. I have not seen
the form completed here, but I have seen others that set out the interviewed persons
rights, in the context of a voluntary interview, including their right to a solicitor. The
form, as the Interviewing policy?? makes clear, “the form CS001 is not an
acknowledgement form that the interview has been told of his rights but a form to record the
interviewee’s decision”. The transcript confirms that similar procedures were gone
through and thus the interview was PACE-compliant. In terms of duration, Ms
Brennan was interviewed for a total of 56 minutes. By reference to the Post Office
policy ‘Interviews under PACE’s, dating from January 2001 (at para.3.3), the
interviewers covered the areas identified as to be addressed.
22 POL00047324
% POL00047317, POL00047318, POL00047322. The last of these transcripts is a different version, with
sections summarised, of the first interview. A version of the interview with dates, times and persons
present has also recently been provided POL00047320
24 As is made clear in the Post Office Interviewing policy, January 2001, para.3.5 - POLO0104758
25 POL00047318
2 Other cases refer to a GS001, and I assume that this is the same document.
27 POL00104758, para.3.2
28 POLO0104745
EXPG000004R
EXPG000004R
41, Ms Brennan explained that she had worked as a counter clerk for 13 years, and had
worked at two other branches before starting at Huyton 7 years earlier. She explained
how she would pay a pension voucher. She was asked about her understanding of
how to correct a mistake on the Horizon system through a reversal, and she appeared
unsure. She said she might not have noticed keying in the wrong amount because of
the pace of the work. She maintained that she has not been taking money. She said that
the errors identified may be down to mistakes but was not able to explain the
discrepancies. She said that she had thought she had been doing her job correctly, but
accepted that she could not have been to make these mistakes, and attributed them to
problems she was having at home.
42. The interviewers asserted that money had been taken, and that someone must have
benefited from her errors. This culminated in one of the interviewers saying “I think
it’s a question of not whether you've done it but why have you done it...I think you've done it
deliberately....no one else is making mistakes like you”. This approach was echoed in the
memorandum from Mr Bradshaw to the retail line manager”, which concluded:
“...Ms Brennan made no admissions to taking any money. Ms Brennan could offer no
explanation to how these discrepancies had occurred and that they were mistakes. She did admit
that they are [sic] bore her date stamp...She also said that no other clerk knew her password
and therefore could not access her system”.
43. There is no actual charging decision included in the papers for this case. But some
insight can be gained both into that decision, and the nature of the investigation that
led to that charging decision, from the exchange that occurred after the case had been
reviewed for a charging decision by Teresa Berridge, a senior lawyer in the Post Office
Criminal Law Division. She sent Mr Bradshaw, the investigator, an internal
memorandum® asking for further enquiries to be made prior to a charging decision.
The fact and content of this memo shows some engagement with the identification and
pursuit of reasonable lines of enquiry.
44, Ms Berridge identified the need for checks to be made in relation to other pension and
allowance claims. She also asked why it was that the investigator had rejected the
discrepancies being the result of mistakes, and what her “accounting record” was like,
29 POL00047324
30 POL00047331
23
45.
46.
EXPG000004R
EXPG000004R
in comparison to her colleagues. She asked how it could be shown that the losses had
to have been caused by Ms Brennan. She enquired after financial enquiries in relation
to Ms Brennan. Most importantly, she asked: “do you have any evidence to show whether
the above-named was stealing Post Office money or covering up shortages? Is there any further
evidence to prove that the above named was acting ‘dishonestly’ rather than ‘incompetently’?”
That this was the central question is underlined by the fact that the trial Judge
identified it as “the questions” when he summed the case ups!
Stephen Bradshaw replied 2 weeks later*. His answer to the questions raised showed
that he had made enquires as to whether there were error notices attributable to Ms
Brennan that might show mistakes. None had been identified, and she was considered
to be a good and capable employee. This appears to have worked against her, in that
it provided the basis for it being concluded that she had not made mistakes, rather
than in her favour, that such an employee would not suddenly act dishonestly. Mr
Bradshaw’s response also showed that he had considered the possibility of others in
the post office having been responsible, and he set out logical reasons for his
conclusion that they could not.
It does not appear that any further financial checks were made for any evidence of any
financial benefit to Ms Brennan. At trial’, it appears that Mr Bradshaw explained this
on the basis that Ms Brennan had in interview denied any financial problems and he
had accepted this. It has to be said both that there were more reasons to look at her
finances than to see if she was short of money, and that Mr Bradshaw had certainly
not taken other things said by Ms Brennan at face value. The pertinence of this
omission is that the trial had to be delayed because the defence were seeking just such
material. It is right to note that the defence were having to do this because the
prosecution had not, and so the defence needed to show a lack of financial benefit
which ought to have informed the charging decision. The defence, rather than the
prosecution, adduced such financial evidence at the trial*4. There is also no evidence
that any enquiries were made as to whether the Horizon system, on which the case
depended, was operating correctly, even though it had not long been installed. The
3 POL00066713, p.2
52 POL00047335
88 Summing up POL00066713, p.7
34 POL00066713, p.9
24
47.
48.
49.
EXPG000004R
EXPG000004R
summing up does not indicate that any question about the operation of the Horizon
system arose at the trial.
Thave seen no further correspondence, and it follows that the charging decision must
have been taken on the basis that the discrepancies were there in records relating to
Ms Brennan which she could not explain and therefore she must have stolen from the
Post Office. That accords with how the case was summed up at trial. It also accords
with the approach adopted by the jury, which acquitted the defendant where the
discrepancy was small or could otherwise be explained as a mistake (as the Court of
Appeal observed* when dismissing Ms Brennan’s appeal on the basis that the verdicts
were inconsistent).
This is borne out by the evidence actually compiled. This was summarised in a
memorandum” from Mr Bradshaw to John Gibson, who was a lawyer instructed to
prosecute at least one of the cases I have considered*, In short:
(a) A statement was obtained from Kate Rosenthal the branch manager to explain the
pension and allowance payment system, the recording processes on Horizon and
to confirm that the stamp entries related to Ms Brennan*;
(b) A statement was provided by Mr Bradshaw addressing the interviews, and
producing the Horizon transaction logs relied on.
(c) The “papers that were used in the post office discipline procedure” are referred to, but I
have not seen those.
(d) He indicates as the only line of further enquiry that he was “putting together the
group vouchers where the amount has been overstated” .
There was no evidence as to the operation of the Horizon system, beyond a very basic
description from Ms Rosenthal. The limitations of the investigation in this regard are
35 POL00066713, p.2
36 POL.00066602, §8-15
7 POLO0047515
38 POL.00089065
% The statements in this file are in an eccentric and disjointed order. Ms Rosenthal’s statement appears
at POL00047501 (page 1) and POL00047500 (page 2). Ms Rosenthal deals with the stamp ID in a second
statement, POL00047514
40 POL00047506 (page 1), POL00047507 (page 2). Page 3 is missing.
25
EXPG000004R
EXPG000004R
highlighted by a questionnaire provided by Ms Brennan in the context of the civil
proceedings against the Post Office*!. In particular:
(a) She had received no training in the use of Horizon;
(b) She could not recall making any call to the Horizon helpline but would be assisted
by access to helpline records. Similarly, such records would show if her manager
had called the helpline, which was more likely to have occurred;
(c) Shortfalls had been identified at earlier audits in 2002, as a result of mistakes on
some dockets.
50. Ms Brennan in the civil action questionnaire’? said “I have seen no evidence of any
adequate investigation” . The shortcomings of both the very limited investigation and the
decision to charge on the basis of that perfunctory enquiry were well expressed by
Holroyde LJ in the Court of Appeal, as follows: “POL accepts that this was an
unexplained shortfall case and that evidence from Horizon was essential to Ms Brennan’s case.
Her explanation was that she must have made keystroke errors when entering voucher amounts
onto Horizon. The prosecution did not consider whether a bug, error or defect could have
affected this process. There is nothing to indicate that any ARQ data was obtained at the time
of the criminal proceedings. There was no evidence to corroborate the Horizon evidence. The
issue at trial was dishonesty but there was insufficient proof of an appropriation.”
Disclosure
51. In contrast to certain other of the case files, in this instance I have had sight of some
disclosure schedules produced in purported compliance with the CPIA Code.
Unfortunately, this does not include a schedule of non-sensitive unused material (the
equivalent of the MG6C)*# which would have assisted as to what was disclosed, and
further assisted with what lines of enquiry were undertaken, if those were recorded
through entries in the schedule There is a schedule of sensitive unused material
(equivalent to an MG6D)*, which is very short, and limited to correspondence with
41 POL00066583
#2 POL00066583, p.4
#8 [2021] EWCA Crim 577, §289
44 POL00057751
45 POL00047492
26
EXPG000004R
EXPG000004R
the legal services that are described as privileged. A Disclosure officer's report was
prepared (equivaled to an MG6E)*. It states, as is the fact, “no item(sic) are listed on the
schedules”. It, like the MG6D, is dated March 2003
52. The limitations to disclosure in this case go hand in hand with the limitations to the
investigation. No disclosure was made in relation to Ms Brennan’s financial position,
or the operation of the Horizon system not because a thinking decision was taken but
because no such material was obtained during the investigation.
Assessment
53. The limitation to the paperwork in this case limits my ability to provide a full
assessment. However, my review of the material does highlight a number of areas of
concern.
54. First, there were limitations to the scope of the investigation. The attitude of the
investigators appears to have been that expressed by Mr Bradshaw in interview, “it’s
a question of not whether you've done it but why have you done it...I think you've done it
deliberately....no one else is making mistakes like you”. In other words, mistake was
rejected as an explanation at a very early stage and deliberate theft accepted instead.
However, that judgement was reached without an analysis of Ms Brennan’s finances
to identify whether she was in financial difficulties, and thus had reason to steal, and
to identify where the money it was alleged that she had taken had gone. That this was
a reasonable line of enquiry is underlined by the fact that the Post Office lawyer, Teresa
Berridge, raised it. As she perceptively put it “is there any further evidence to prove that
[she] was acting ‘dishonestly’ rather than ‘incompetently’?”. An analysis of calls to the
helpline, and consideration of the earlier 2002 audit would also have been relevant to
these issues, but such enquiries do not appear to have been made.
55. In fairness, some consideration was given to this question, as Mr Bradshaw’s reply to
Ms Berridge showed, but it is not clear whether, and if so, to what extent the lack of
error notices in fact rebutted mistake as an explanation. It is also not clear that even
this limited enquiry had been pursued before a charging had been sought or made,
and the checks undertaken did not involve any analysis of the Horizon data or its
46 POL00047491
27
EXPG000004R
EXPG000004R
reliability. It appears from the approach of the Post Office to Ms Brennan’s appeal that
it was conceded that analysis of, and disclosure of the data was necessary. In short,
therefore, the investigation did not fully identify or explore whether there had in fact
been any actual taking of monies, as opposed to a computer record of loss, and
whether there was an explanation for this other than in dishonest conduct by Ms
Brennan.
56. In terms of a charging decision, because no actual advice or decision is within the
material that I have seen I am in difficulties in reaching a view. It is not clear who took
the decision, and whether that person was legally qualified. It is also not clear what
test was actually applied, and what consideration, if any, was given to the public
interest in prosecuting. As I highlighted in my first report#”, the Code for Crown
Prosecutors was not identified as the test to be applied in Post Office charging
decisions until 2007.
57. There are reasons for concern as to how thorough that decision was, however, on the
material available. Assuming that the Code for Crown Prosecutors was applied, the
first question was whether there was a realistic prospect of conviction for theft on the
evidence. That, first, involved a question of whether there was sufficient reliable
evidence that money had been taken, and secondly that it had been taken dishonestly.
The enquiries raised post-charge by Teresa Berridge support the argument that, at the
time of charge, there was not. It is right to observe that Ms Berridge’s memorandum
represents a proper identification by a prosecutor, in their review of the case, of
reasonable lines of enquiry to be pursued. Such an approach accorded with the
guidance in the CPIA Code and the Code for Crown Prosecutors.
58. Even with that further guidance there were clearly limitations to the lines of enquiry
pursued. No enquiry had been made as to whether the only source of evidence of loss,
the computer record, was reliable. In that context it is right to note that this case was
early in the period, and the appreciation of issues with Horizon was no doubt very
different in 2002 to 2012, for example. No financial enquiry had been made as to
whether Ms Brennan had reason to steal or had in fact stolen. I have taken account of
the fact that the case proceeded to trial and was left to a jury. It follows, therefore, that
47 First report, para.155(a)
28
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it was either accepted by defence counsel or by the trial judge was that was a case to
answer. However, it is not clear to me how that determination was, or could have been,
reached at the stage of the proceedings at which it appears to have been.
59. I cannot really address the adequacy of disclosure because the material as to the
disclosure process here is so limited. However, as I have observed the disclosure
approach goes hand in hand with the investigative one. The defence had to make their
own financial enquiries both because they had not been undertaken earlier and, as a
result, no disclosure had been made in this regard. No disclosure was made in relation
to the reliability of Horizon because that was not identified as a reasonable line of
enquiry. I have not seen any indication as to what information was shared when the
summons to initiate proceedings was obtained, but the lack of investigation of
important areas would be consistent with those limitations not being identified when
the summons was sought.
DAVID YATES
60. David Yates started as a Post Office counter clerk in 1979 and became a Sub Post
Master in 1993, working at the Walton-on-Thames post office.
61. On 12% September 2003, in the Crown Court at Guildford before HHJ Addison, he
pleaded guilty to one count of theft. The alleged shortfall was £356,541.35. On 31
October 2003, he was sentenced to three years’ imprisonment.
62. In the proceeding before the Court of Appeal in Josephine Hamilton v Post Offices, Mr
Yates was one of those in category B, “in respect of whom POL accepted that this court may
properly find that the prosecutions were an abuse of process within category 1, but resisted the
appeals insofar as they are based on category 2 abuse.”
48 [2021] EWCA Crim 577, at §75
29
EXPG000004R
EXPG000004R
Investigation
63. There is, again, a dearth of papers in this case. I have seen the Cartwright King case
file for Mr Yates*, and this includes a document from the investigator, Mr Posnett®,
which I have taken to be the investigation summary here. Other than the Cartwright
King case file, the paperwork is very limited, and even the file paperwork here does
not identify specifically who performed the roles of senior investigator, investigator or
disclosure officer for the purposes of the CPIA. Again, it is therefore difficult to assess
whether those roles were properly identified or undertaken.
64. A memorandum* sent from Paul Bosson®™, Security and Audit, to Dave Posnett,
Internal Crime Manager, dated 4tt September 2014, records that an audit was
undertaken at the Walton-on-Thames post office on 6 March 20035 as a result of
discrepancies that were highlighted in “post office audit checks relating to rems” in
November 2002. Mr Posnett attended himself to further this audit on 7 March. Mr
Yates was asked to, and did, print off an office snapshot from Horizon recording cash
holdings of £410354.67 and the previous night's ONCH declaration, which indicated
total holdings of £43566. Asked why there was a significant difference Mr Yates said
that “he had sent a rem the previous day but had not booked it out on the Horizon system”.
When asked for the paperwork for this, he admitted that he had not sent any rems the
day before and that the audit would show a £350,000 shortfall. In fact, the audit
showed a total shortfall of £356,541.35. It was indicated in the interview that Mr
Boson had provided a note of these comments to Mr Yates, which he had signed. This
appears to have been in compliance with the Post Office Interviewing policy.>>
4° POL00066601
50 POL00066601, p.6
51 POL00066457 - the date is not explained
52 POL00066598,
53 The 6t* March audit was undertaken by Michael Dadra, and he involved Mr Bosson on 7» -
POL00066597
54 POL00047494, p.3
55 POL00104758, para.3.2
30
EXPG000004R
EXPG000004R
65. Mr Yates was interviewed® by investigators Dave Posnett” and Rob Fitzgerald®* on
7* March 2003. He was taken through the form CS001, which explained his rights. He
was not accompanied by either a solicitor or a Post Office Friend. He was cautioned
and the caution was correctly explained. There appears to have been compliance with
the relevant 2001 Post Office interview policies®.
66. During the interview, he admitted to inflating his cash figures over three to five years
in order to conceal an ever-increasing shortage, due to his expenditure exceeding his
income. This had included the period before Horizon was installed at his branch on 11
July 2000, although he also said he could not explain some dramatic shortfalls that had
happened at that time. Mr Yates claimed that the cash was used to pay for (among
other things) personal bills and loan repayments. He said that the business was not
doing as well as it should have been and so he had taken some money to pay staff and
bills. However, of relevance to the consideration of the Horizon system, he said that
none of this would explain the shortfall of £350,000. He said that this shortfall had
begun when some “really large error notices came back” that he could not explain. He
estimated these to have been around £5,000 to 6,000. He said he had brought these to
the attention of Savings Bank but not the Post Office. He was asked if he had
challenged these error notices and said “sometimes, if I didn’t think they were right, but at
the end of the day if they keep coming back and saying they are right what else could I do apart
from put them through”.
67. In terms of investigative steps taken thereafter, the statement from one investigator®
refers to a search being undertaken at the post office and at Mr Yates’ home address.
The investigation report in the Cartwright King case file®! indicates that a number of
documents were seized, but does not give any indication what they were, or further
refer to them, save for Mr Yates’ passport. This was identified as providing a picture
of when he was and was not at the branch which was said to be inconsistent with his
account. The limitations to these searches are suggested by the fact that further
56 POL00047494
57 POL00066595
58 POL00061676
59 POL00104745, POL00104758
© Robert Fitzgerald POL00061676
POL00066601, p.8
31
EXPG000004R
EXPG000004R
Horizon print outs were found when the premises were being tidied later’. The
investigation report in the Cartwright King case file indicates that the financial
records recovered at Mr Yates’ home were considered, and it was noted that there was
no evidence of funds deposited in the accounts or evidence of Mr Yates living beyond
his means. The report says that requests were to be made for financial records from
relevant institutions, but it is clear that the investigator recommended prosecution
when no such had been obtained.
68. The statement of the other investigator, Mr Posnett, sets out his examination in
relation to the cash accounts for the branch. He also refers to the fact that he obtained
a list of “error notices”. He indicates, however, that on analysis they related to
identified discrepancies e.g. where Girobank reconciled customer deposit slips against
transactions details from the Post Office, as opposed to error notices indicating there
are issues with the system itself. The investigation report in the Cartwright King case
file®> identifies evidence of Mr Yates benefiting from earlier error notices. It is clear
from the statement that records of earlier audits at the Walton-on-Thames post office
were obtained and considered. The investigation report in the Cartwright King case
file’ records that analysis. Evidence of Mr Yates’ remuneration as a sub postmaster
was also obtained.”
69. There is no evidence of enquiries being made back in 2003 in relation to contact with
the helpline or the National Business Support line (/NSBC’). The Post Office referred
to records of such calls in its response to Mr Yates’ Second Sight questionnaire in
2014°8, and yet checks could have been made back in 2003 if such records existed. In
the Second Sight review, there is reference to “numerous calls” to NSBC, and yet
there is no reference to any logs of, or enquiries in relation to such calls in 2003. There
is no evidence that any checks were made on the Horizon system for evidence of faults
or other errors that might have impinged on the records that Mr Yates described in
2 POL00066596
POL00066601, p.17
4 POL00066595
6 POL00066601, p.9
POL00066601, p.9
67 POL00066600
8 POL00066497
© POL00062362
32
EXPG000004R
EXPG000004R
interview or otherwise. Again, in its 2014 response to Mr Yates’ questionnaire”, the
Post Office referred to Horizon records, which are not addressed in the 2003
investigation material that I have seen, although the Second Sight Review itself?! says
that Horizon records were not available for the period from 2000 when Mr Yates said
issues arose.
Charging decision and disclosure
70. T have not had sight of a charging decision in this case, leading to the prosecution of
Mr Yates for one count of theft. I have however had sight of the Cartwright King case
file”? which I have taken to include the material that was available at the time that a
charging decision was taken. I have assumed that the decision was taken by the Post
Office Criminal Law Division rather than Cartwright King given the timing of this
case.
71. In short, in terms of an analysis of a realistic prospect of a conviction there was the
interview of Mr Yates and his admission to inflating his cash figures over three to five
years in order to conceal an ever-increasing shortage, due to his expenditure exceeding
his income. However, there was also no evidence that Mr Yates had actually taken the
money that was identified as being missing on the Horizon records. The lack of
financial enquires underpinned that absence. It is right to note that Mr Yates did not
describe issues with Horizon in his interview in the way that he did in his interaction
with Second Sight, which is considered below. However, he did describe unexplained
shortfalls, and yet it appears that the charging decision was reached without any
consideration of why those shortfalls had occurred and what they might mean.
72. I have not seen any material relating to the disclosure process, for example schedules
on unused material or correspondence with the defence before Mr Yates pleaded
guilty. I cannot, therefore, speak to the adequacy or otherwise of disclosure save that
the limitations to the investigation in terms of contact with helplines, interrogation of
Horizon for faults and irregularities and the lack of investigation into Mr Yates’
finances for evidence of any benefit from the losses to the Post Office would carry with
70 POL00066497
71 POL00062362
72 POL00066601
33
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EXPG000004R
them a failure to disclose material that might have undermined the prosecution case.
It was clear from Mr Yates’ interview that there was a very significant difference
between the limited theft he admitted and the very large shortfall that had been
identified. There was no investigation of, and therefore no disclosure relating to, that
shortfall and the potential reasons for it.
Second Sight Review
73. Second Sight undertook an independent investigation of issues raised by sub
postmasters in 2014, and prepared a report in Mr Yates’ case dated 15‘ December
2014”. As part of this process, Mr Yates completed an application form”, in which he
said that losses only arose after installation of the Horizon system, and “kept growing
alarmingly each week”. He added that he had worked for the Post Office since 1979, but
had no problems with balancing until Horizon was installed. This covers a 24 year
period until his suspension.
74. A more detailed case questionnaire was then completed in April 2014”. In relation to
Horizon, Mr Yates said that “unexplained discrepancies” started to appear 6-7 weeks
after Horizon was installed, in relation to cash rather than stock. That he had initially
contacted the helpline, but they could not help, and he had sought to make good the
differences, but they rapidly exceeded his ability to do so. He complained of the “lack
of competent and adequate support” from the helpline, and the limited options on the
Horizon system when an issue arose.
75. The Post Office responded to this questionnaire in December 20147. Beyond pointing
to the defendant's guilty plea as conclusive evidence of his guilt, the Post Office
asserted that “at no stage during any of the audits carried out at the branch, or in any recorded
calls to NBSC or in the criminal proceedings did the Applicant claim that Horizon was to
blame.” They also pointed to the fact that that Horizon was installed in 2000 at that
branch and yet that shortfalls appear to have begun building from 1998 onwards.
73 POL00062362
74 POL00060942
75 POL00066494
76 POL00066497, and also in an undated document POL00040313
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76. The Second Sight report” refers to Mr Yates’ contentions that the issues only arose
after installation of the Horizon system. They observe, by reference to the Post Office
response, that Horizon was installed in 2000 at that branch and yet that shortfalls
appear to have begun building from 1998 onwards. The report also says that the Post
Office said that there was no Horizon data available for the period from 2000 referred
to by Mr Yates, which is somewhat at odds with their positive case about the period
before 2000. Second Sight concluded that the case was not suitable for mediation given
that Mr Yates made an unequivocal admission to theft. The report states, “We conclude
that the Applicant admitted to stealing in order to pay staff wages and general living expenses
over the three to five year period. Had the Applicant alerted the Post Office to the shortfall at
an earlier stage, or at the earlier audit, the loss may not have reached the level it did’.
77. The Court of Appeal in 2021% took a very different view, armed with much wider
information about the operation of Horizon and the Post Office’s knowledge of that
than was even hinted at in the Post Office’s responses to Second Sight in 2014. Its
conclusion, as expressed by Holroyde LJ was that “POL accepts that this was an
unexplained shortfall case and that evidence from Horizon was essential to Mr Yates’ case.
Although Mr Yates admitted theft during his interview, this was against a background of
unexplained shortfalls. Importantly, POL accepts that the vast majority of the ‘loss’ represented
an accumulated shortfall rather than any theft. POL further accepts that the investigation was
poor. There was no examination of the unexplained shortfall. Although the amount of any theft
is not a material averment on an indictment, POL accepts that it is very unclear how much Mr
Yates admitted to taking from POL monies as opposed to from other available revenue. The
evidence suggests that he had paid out money to make good error notices prior to any
appropriation by him. There is nothing to indicate that any ARQ data was obtained at the time
of the criminal proceedings.”
Assessment
78. As with the case of Ms Brennan, the dearth of papers in Mr Yates’ case makes the
assessment of the Inquiry’s questions difficult. As a starting point, and in contrast to
Ms Brennan’s case where she denied any theft at all, Mr Yates did in interview admit
77 POL00062362
78 [2021] EWCA Crim 577, §330-331
35
79.
80.
81.
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that he had stolen from the Post Office. He had used money to pay personal bills, loan
repayments and to pay staff. However, he was equally clear in interview that his
appropriation did not remotely amount to the substantial shortfall alleged. That much
larger shortfall he attributed to problems that had accrued since Horizon was installed,
which he had sought to address by paying out money to make good error notices. The
essential question for both the investigation and for the charging decision, therefore,
was how much Mr Yates had actually stolen, and why.
It does appear that the investigation did examine Mr Yates’ own finances, and
identified a lack of evidence of personal benefit to Mr Yates from the amount of the
shortfall. However, such enquiries were limited and were particularly limited before
the charging decision was undertaken. Enquiries were made in relation to Mr Yates’
account, given that error notices were obtained and analysed, and earlier audits were
reviewed. However, those enquiries were again limited. Given that Mr Yates talked of
recurring error notices and issues with Horizon, reasonable lines of enquiry would, in
my view, have included checks as to calls to relevant helplines, which do not appear
to have been done, and in particular enquiries of the Horizon system and elsewhere to
identify the source and cause of the shortfall. By the time of the Second Sight review
such records were not available, and it was accepted by the Post Office when Mr Yates
appealed that the shortfall was in large part unexplained and that necessary enquires
as to the unexplained shortfall had not been undertaken.
Whilst this was an investigation early in the rlelevant period, and information about
faults in the Horizon system’s operation were therefore limited, the need to check
whether the system was at fault was clearly raised by Mr Yates’ account. Instead, in
short, the investigation proceeded on the basis that Mr Yates had stolen £356,541.35
when nothing like that sum was accepted by him, and nothing like that sum could be
traced.
That unsatisfactory state of affairs underpins the charging decision. I have not seen the
actual decision, or the legal advice that led to it, and cannot therefore speak as to who
made the decision, or what test they applied. The decision was made on the basis of
evidence that did not identify with any clarity how much Mr Yates accepted stealing,
on the one hand, or explain how it was said that he had stolen the total figure charged,
36
EXPG000004R
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or where that money had gone, on the other. In other words, there was an evidential
basis for concluding that an offence of theft had been committed, but not an offence of
theft of £350,000 as was charged. The scale of the provable loss was relevant to the
determination of the public interest in prosecuting, although I recognise that the
prosecution of a theft by an employee in breach of trust is likely to pass that test, unless
there are considerations to the contrary.
82. T have not seen evidence that the lack of investigation as to the loss, Mr Yates’ finances,
the operation of the system or whether Mr Yates’ complaints about its operation had
foundation were raised by the charging decision maker at all. Given that the decision
was made without them, they were clearly not identified as obstacles to that decision
being taken. By reference to Mr Yates’ admissions, a decision to prosecute him for theft
was a reasonable one. However, it was incumbent on the decision maker to look
beyond those admissions, and to take proper account of what they amounted to. I have
concerns about the figure included in the charge and the lack of hesitation in charging,
and the lack of direction of further investigation about the reasons for the shortfall,
that ought to have preceded it actually being taken.
83. Whilst information as to disclosure is very limited in this case, it once again went hand
in hand with the limitations to the investigation. Material which, if reasonable lines of
enquiry had been pursued ought to have been obtained, would also have fallen to be
disclosed. A number of such lines were not pursued, and thus disclosure fell short in
those areas. I have not seen any indication as to what information was shared when
the summons to initiate proceedings was obtained, but the lack of investigation of
important areas would be consistent with those limitations not being identified when
the summons was sought.
DAVID BLAKEY
84. Mr Blakey was 50 years old when he was investigated and the sub-postmaster assistant
at Riby Square post office in Grimsby. His wife having been the sub-postmaster at their
branch from September 1996 until her contract of services was terminated in 2004. This
followed an audit at the branch in May 2004 which showed a cash shortage of £64,000.
37
EXPG000004R
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85. On 17% December 2004, in the Crown Court at Great Grimsby before Recorder Kelly,
David Blakey pleaded guilty to six counts of false accounting. One count of theft was
ordered to lie on the file. The alleged shortfall was £65,366.46. On 25'n February 2005,
Recorder Gibson sentenced him to nine months’ imprisonment suspended for two
years. He was ordered to pay £1,000 towards the costs of the prosecution. Mr Blakey
and his wife were declared bankrupt in February 2006.
86. In the proceeding before the Court of Appeal in Josephine Hamilton v Post Office”, Mr
Blakey was one of those in category B, “in respect of whom POL accepted that this court
may properly find that the prosecutions were an abuse of process within category 1, but resisted
the appeals insofar as they are based on category 2 abuse.”
The investigation
87. There is once again a dearth of papers in this case. The paperwork does not identify
specifically who performed the roles of senior investigator, investigator or disclosure
officer for the purposes of the CPIA. Again, this makes it more difficult to confirm that
the roles were recognised and properly undertaken. The Investigation Case
Summary* was prepared by Paul Whittaker, the investigation manager who attended
the branch during the audit process, and interviewed Mr Blakey. It is not clear whether
and if so who was overseeing the investigator.
88. In summary, on 13 May 2004, auditors arrived at the branch because of
disproportionately large cash on hand. Mr Blakey spoke to the audit team, admitting
that there would be a significant shortage of cash, which he said had gone missing
from the office “over the last few months”. He co-operated with the auditors in providing
a signed statement to that effect.
89. Mr Blakey was interviewed, with no solicitor or friend present. He was informed of
his rights to be represented and to have a friend in attendance, but he declined. He
was cautioned, and the caution was explained. The interview was therefore PACE-
compliant, and followed the procedure set out in relevant Post Office interview
policies. Mr Blakey said that he had noticed discrepancies but denied any dishonesty.
79 [2021] EWCA Crim 577, at §75
80 POL00044818
38
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He said that he had no idea where the money had gone. He said that he trusted his
staff “100%” and that he had not informed his wife as she had been ill, and he did not
wish to cause her to worry. He said that he intended to get a £50,000 bank loan to repay
the majority of the money and then his intention was to inform the Post Office if future
discrepancies arose. He referred to transactions being processed wrongly and causing
an error, but nothing was said beyond that to challenge the Horizon system. He
accepts inputting inaccurate cash on hand figures to conceal the shortfall for
approximately one year.
90. I should note in passing the approach adopted by Mr Whittaker, the investigator,
during the interview. He repeatedly asserted that the money had not just disappeared,
and that Mr Blakey must know where it was. He repeatedly told Mr Blakey that he did
not believe him when he denied taking the money. For example, in the second
interview*! he said “can you hear how ridiculous it sounds ...because I still don’t believe
you”. He also said, “I don’t know where the money has gone”. This, arguably, is not
consistent with the Post Office Interviewing Policy® that “investigators must necessarily
be allowed discretion in the conduct of an interview but should ensure that fair methods of
questioning are used”. This apparent lack of open-mindedness is of concern in an
investigator.
91. Mrs Blakey was also interviewed. I have not seen a transcript of this but have seen the
summary in the investigation report®, and a separate interview summary*!. She
confirmed that her husband dealt with the accounting aspects of the business. She had
not been aware of the shortages before the investigation. She said that she had not
noticed any improvement in their lifestyle, as she would have expected if her husband
had stolen the money,
92. In terms of further investigative steps, those who worked at the Post Office were
spoken to, including the defendant's mother*. The need to obtain such statements was
touched on by the reviewing lawyer‘ to eliminate other candidates for theft. At the
81 POL00044831, at 19.50
82 POL00104758, para.3.1
83 POL00044818
54 POL00044829
85 Statements from Natasha Beck, POL00044826, Patricia Bown POL00044827, Samantha Callaghan,
POL00044828
86 POL00044820
39
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time that Mr Whitaker reported*’, he was in the process of making financial enquiries
in relation to Mr Blakey. These included enquires as to whether he had sought the loan
he referred to in interview and whether he had received a redundancy payment from
his previous employer to which, again, he had referred. Aspects of Mr Blakey's
interview account were therefore, quite properly, checked. It does not appear that the
decision to prosecute was delayed to allow these checks to be made, or that evidence
in this regard was ultimately obtained. It follows that reasonable lines of enquiry were
not fully pursued, and that the need for their resolution was not identified at the
charge stage. This arguably did not accord with the guidance in the 2004 version of the
Code for Crown Prosecutors** that the prosecutor “should provide guidance and advice to
investigators.. this may include lines of inquiry, evidential requirements...”
93. When he completed a questionnaire for the civil litigation in 2017, Mr Blakey
observed that “to his knowledge” the Post Office had not undertaken the financial
checks. He added “At a subsequent court hearing Post Office's legal representative asked the
judge for permission to access my financial information. I explained to the judge that I had
already consented to this. Post Office could not explain to the judge why they had not already
looked at this before bringing charges against me”. This was an important omission. On Mr
Blakey’s account in 2017 he had used his own money to meet earlier shortfalls, and
this would have been revealed by his accounts. So too would the lack of any financial
gain to him in relation to the alleged theft.
94, In his interview, Mr Blakey had denied telling anyone of the issues he was having. It
was arguably reasonable therefore not to check for calls to the helplines on the basis
that he had not described making any. However, that said, Mr Blakey was also
reporting in interview problems with Horizon that others would have encountered
and might have reported. It was a check therefore that could have been, but was not
undertaken, to see, for example, if anyone had reported problems with the operation
of Horizon at the branch. More significantly, despite Mr Blakey’s account of issues
with its operation, there were no enquires made of Horizon data, or the operation of
&7 POL00044818
88 Para.2.4
8 POL00066256, p.5
8 See also Mr Blakey’s 2017 questionnaire, POL00066256, where at p.3 he repeats that he made no calls
to the helpline.
40
EXPG000004R
EXPG000004R
the Horizon system, to see if this could explain the issues that Mr Blakey described.
This significant limitation to the investigation was well identified by the Court of
Appeal®!: “POL accepts that this was an unexplained shortfall case and that evidence from
Horizon was essential to Mr Blakey’s case. There is nothing to indicate that any ARQ data was
obtained at the time of the criminal proceedings. There was no evidence to corroborate the
Horizon evidence. There was no investigation into the matters raised by Mr Blakey during his
interview, nor was there any investigation into Horizon reliability. There was no proof of an
actual loss as opposed to a Horizon-generated shortfall.”
Charging decision
95. The closest to a “charging decision” that I have identified is a Memo dated 23" June
2005 from Jarnail Singh, Senior Lawyer in the Post Office criminal law division®. It is
very brief and simply addresses realistic prospect of success for both theft and false
accounting, without any analysis of the evidence. He qualifies his conclusion as to the
prospects of a conviction in a rather unusual way, and certainly not one that reflected
the terms of the Full Code test in the Code for Crown Prosecutors. He said that there
was a low prospect of success predicted for theft but a high prospect of success for
false accounting. It is difficult to understand how there can be a realistic prospect of a
conviction and yet a low chance of a conviction, and it is thus difficult to see how the
decision to charge theft was reached if that was the lawyer's assessment. This is
especially as there had been only limited financial enquiries into the suspect and no
checks on the system which provided the only evidence of loss. Mr Singh addressed
the importance of elimination of other members of staff as strengthening the case on
theft, but not as a necessary precursor to a decision to prosecute for that offence. There
is no reference to a consideration of public interest.
96. By reference to the Code for Crown Prosecutors, therefore, whilst recognising that the
Code was not specifically identified as the test to be applied by the Post Office until
2007%, Mr Singh’s advice provided limited guidance as to lines of inquiry or additional
evidential requirements (by reference to para.2.4, 2004 edition of the Code). He did not
%1 [2021] EWCA Crim 577, at $351
2 POL00044820
8 POL00104812
41
EXPG000004R
EXPG000004R
raise as a necessary consideration the reliability of the evidence, and thus the reliability
of the Horizon data that was the core evidence, although he would have been aware
from the Investigation Summary that Mr Blakey had raised concerns in that regard.
He did not address what evidence established dishonesty, or any concern about the
lack of financial enquiries. The 2004 Code identified 17 public interest factors
favouring prosecution, and 9 to the contrary. Mr Singh did not address these factors
at all. The test he applied did not accurately reflect that in the Code.
Disclosure
97. A schedule of non-sensitive unused material (MG6C) was completed. It is undated
and lacks a name or signature for both the disclosure office and the reviewing lawyer.
Indeed, there is no evidence of a review by a lawyer. As there is a dearth of papers
for this case it is difficult to assess whether there are any missing items from the
schedule. There is no material listed to suggest any financial enquiries, beyond those
touched on in the investigation report, no reference to enquiries with helplines or any
enquiries as to the operation of Horizon. There is, on the material I have seen, no
evidence that the disclosure officer drew the prosecutor’ attention to any material the
disclosure of which was uncertain’>, or that the prosecutor had inspected the
material”.
Circumstances of the plea
98. When he completed a questionnaire for the civil litigation in 2017”, Mr Blakey referred
to the judge at a preliminary hearing telling the Post Office that there was no evidence
of theft, and the judge gave further time for evidence to be produced. It was after this,
and when no such evidence was forthcoming, that Mr Blakey said that guilty pleas
were accepted to false accounting and that the theft charge was left to lie on the file.
There is very limited information on the conduct of proceedings in this case file beyond
this account from Mr Blakey.
%4 POL00044817
%5 As required by para.7.1, CPIA Code
% By reference to pra.7.4, CPIA Code and par.24, AG’s Guidelines 2000, or para.35, AG’s Guidelines
2005, which would only just have come into effect
7 POL.00066256, p.5
42
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Assessment
99. Again, the limitations to the material now available limits the observations that 1 can
make about this case.
100. I However, there were limitations to the scope of the investigation, and reasonable lines
of enquiry were missed. In particular, no exploration was made of the operation of the
Horizon system or the reliability of its data, despite the concerns with this that Mr
Blakey raised in interview. The financial investigation was limited, although it did at
least identify avenues based on Mr Blakey’s account to be explored. There is a concern
that the investigative approach may have been coloured by the view of the
investigator, as expressed to Mr Blakey in interview that his denial of theft was
“ridiculous”. In fact, such an emphatic rejection should only have followed an enquiry
that had demonstrated, by reference to his financial information and the reliability of
the data, that what Mr Blakey was saying was incorrect. Neither line was pursued, and
his account rejected without such necessary checks.
101. The charging decision, if that is what Mr Singh’s memorandum represents, was flawed
and inadequate. He applied a test of the prospects of success in addition to the realistic
prospects of a conviction, and appears to have advised in favour of a charge of theft
where he considered the prospects of success to be low. Whist the Code for Crown
Prosecutors was not specifically identified as the test to be applied by the Post Office
until 2007, such an approach would be wholly inconsistent with its application. By
reference to the questions posed by the Inquiry, there was no evidential analysis and
the decision was neither thorough nor considered.
102. In fact, it is difficult to understand the evidential basis for the charge of theft that was
initially brought. lam supported in that view by the questions apparently raised about
this charge by the Crown Court Judge. Mr Blakey had admitted to altering records in
relation to cash in hand to conceal shortfalls for which he was not responsible. He
denied any appropriation of monies from the Post Office, and other than the Horizon
data there was no evidence that he had. There was no evidence of financial benefit to
him, and his account of using his own monies to meet earlier shortfalls was not
98 POL00104812
43,
EXPG000004R
EXPG000004R
checked. It follows that there were limitations to the evidence to demonstrate
dishonesty by Mr Blakey (beyond the covering of shortfalls), or evidence of
appropriation in the sense of monies going to him. Neither issue was addressed in the
advice. Indeed, the evidential basis for dishonesty for either charge was not addressed
at all. The public interest was not addressed at all.
103. The charging of both theft and false accounting was not justified by the advice either
by reference to the decision of the Court of Appeal in Eden’ or the available evidence.
The fact that the plea to false accounting was taken on Mr Blakey’s account to the
Second Sight review, only after the Crown Court judge had raised concerns about the
evidential basis for the theft charge, suggests a lack of rigorous thought about what
charges were appropriate. It does not appear that the theft charge was used as a means
to encourage a plea to false accounting, again on Mr Blakey’s account to the Second
Sight Review. That it may have had that effect, when the theft charge was not justified,
is a separate matter.
104. [have not seen any indication as to what information was shared when the summons
to initiate proceedings was obtained. But the lack of investigation of important areas
would be consistent with those limitations not being recognised or identified when the
summons was sought. The disclosure schedule in the majority of cases, consistent with
the limitations of the investigation, demonstrates that material that could have
undermined the prosecution case was not sought, and thus not disclosed. The lack of
evidence of any review of the schedule by the prosecutor is also concerning. It does
not suggest that disclosure was being conducted in a “thinking manner” and was
consistent with disclosure as “a box-ticking exercise” 10
TAHIR MAHMOOD
105. Tahir Mahmood was a Sub-Postmaster in Selly Oak, Birmingham. He was 30 years old
at the time that the decision was made to prosecute him.
% (1971) 55 Cr.App.R. 193
100 Adopting the language of the Court of Appeal in Olu [2010] EWCA Crim 2975
EXPG000004R
EXPG000004R
106. Tahir Mahmood was charged with six counts of false accounting, contrary to section
17(1), Theft Act 1968. The charges all related to individual dates where the cash in hand
at the close of business was not the same as recorded on Horizon (namely on 13 and
18t August 2004, 24th November 2004, 19% January 2005 and 13¢ and 26 April 2005).
On 17 November 2005, in the Crown Court at Birmingham before HH] Griffith-Jones,
Tahir Mahmood pleaded guilty to six counts of false accounting and asked for 84
similar offences to be taken into consideration. The alleged shortfall was £33,437.39.
On 21st December 2005, Recorder Stevens sentenced him to nine months’
imprisonment.
107. In the proceeding before the Court of Appeal in Josephine Hamilton v Post Office!!, Mr
Mahmood was one of those in category B, “in respect of whom POL accepted that this
court may properly find that the prosecutions were an abuse of process within category 1, but
resisted the appeals insofar as they are based on category 2 abuse.”
108. In brief summary, the facts were that Mr Mahmood had been the Sub-Postmaster for
6 years. On 30 April 2005, Post Office auditors had made a visit to Mr Mahmood’s
branch. They were accompanied by Post Office investigators led by Colin Price,
Investigation Manager. Mr Mahmood informed them that the branch was about
£25,000 short. The audit was completed and a shortage of £33,437.39 was identified. In
interview under caution on 4 May 2005, he said that he had been incurring large losses
since a previous audit in March 2003. The first loss had been shortly after that audit
and was in the region of £400 to £500. He had been falsely inflating the cash account
balance every week since then. He had done this in order to hide the losses which he
could not afford to pay, believing that his contract would be terminated if Post Office
managers discovered the truth of the situation. Mr Mahmood denied taking any of the
money for himself, and said he believed the losses had been caused by giving cash to
customers by mistake.
101 [2021] EWCA Crim 577, at §75
45
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EXPG000004R
Investigation
109. There is a dearth of papers in this case (only 88 items in the case file). The paperwork
does not identify specifically who performed the roles of senior investigator,
investigator or disclosure officer for the purposes of the CPIA. Again, therefore, it is
not easy to identify whether those roles were undertaken and if so by who.
110. The Investigation Case Summary" was prepared by Colin Price, the Investigation
Manager, who also authorised the suspension of Mr Mahmood’s contract on 30 April
2005. He was present when investigators attended Mr Mahmood’s post office, it was
he that cautioned him and he that interviewed Mr Mahmood. The Summary was
addressed to Sue Mudderman, who is identified in the report both as Contracts
Manager and Discipline Manager. This approach would accord with the ‘Managing
shortages at audit’ policy'®, which required the field support advisor to report audit
shortages to the contract advisor. It is not clear what role Ms Mudderman played
thereafter in the process by which Mr Mahmood came to be prosecuted.
111. The Investigation Summary shows that the investigators and auditors were already
on the premises, and the audit had started, when Mr Mahmood arrived on the
premises. He made admissions, to the effect that “there were some differences”, when
asked if there was any more cash in hand and that “ the post office would be about £25,000
short” at a stage when he had not yet been cautioned. When the auditors identified a
shortfall of £33,437.39 he was then cautioned. Mr Price refers to completing a record
in his notebook, but that is not included in the papers that I have seen.
112. The interviews! on 4 May 2005 that were undertaken appear to have been PACE
compliant. Mr Mahmood was accompanied by a Federation representative, but not a
solicitor. A form CS001 was provided that set out Mr Mahmood’s rights, and he
confirmed that he did not require a solicitor. What is significant, as a context for the
investigative and prosecutorial decisions that followed is the following:
102 POL00041329
103 POLO0118154
104 POL 00052898, POL00052899
46
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(a) In the first interview!°, Mr Mahmood said he had been coming up with shortages
of like a thousand to two thousand a week and then panicked and added the
figures in. It was put to him that checking daily vouchers and giros against the
Horizon records was “a fail proof system”, and he agreed. The “fail proof” nature
of the system was repeated during the interview. He explained that he checked the
figures matched, he did not check the cash and stock that underlaid those figures.
He agreed this was dishonest and manipulation of accounts because he could not
make good the losses Horizon was showing. He was asked about the lack of error
notices he was receiving, and the interviewer stated he was contradicting himself.
(b) In his second interview’, Mr Mahmood specifically raises that the issues begun
when the Horizon system was first installed in the office. He stated he had never
taken money for his own use, and he was panicking and did not know how to pay
the money back. During the interview it was put to him that he had taken the
lump sum(s) for his own benefit, which he denied. He accepted falsifying accounts
to fix the issue. Throughout the interview he denied taking money from the post
office and stated it might have happened by giving it to customers by mistake. He
said that he could not otherwise account for the losses.
113. In terms of investigative steps, the material I have seen is very limited. The Casework
Management Initial Tick List!” records that the case file was logged, and compliance
checks undertaken on 17* May 2005, and that the discipline report (which I take to be
the investigation summary) were forwarded to the Conduct Manager and Head of
Operations on the same day. The case materials I have seen show that there were
applications for production orders of bank statements as would be expected. I have
not seen evidence of analysis of any financial information gained as a result. This
should have identified any financial gain to Mr Mahmood, or evidence of any attempts
by him to use his own money to make good shortfalls. It was therefore a reasonable
line of enquiry.
105 POL00052898
106 POL00052899
107 POL00052874
47
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114. There is no evidence of any awareness of issues with Horizon in the investigation. The
investigation proceeded on the basis that Horizon could not have been in error. This
mindset is illustrated throughout the interviews of Mr Mahmood. No data was sought,
or checks undertaken. No exploration was made of whether Mr Mahmood, or anyone
else at his branch, had contacted relevant helplines. As was observed in the appeal
proceedings": “There is nothing to indicate that any ARQ data was obtained at the time of
the criminal proceedings. There was no investigation into the matters raised by Mr Mahmood
during his interview - even though he had volunteered a time period in which the problems had
begun. There was no evidence to corroborate the Horizon evidence. There was no proof of an
actual loss as opposed to a Horizon-generated shortfall.”
115. _ It follows, by reference to the CPIA Code applicable at the time that these reasonable
lines of enquiry were not identified or pursued. That was a failing both on the part of
the investigator and the prosecutor concerned.
The charging decision
116. IThe Casework Management Initial Tick List! records that the case file was sent for
prosecuting advice on 17 May 2005, and thus less than 2 weeks after Mr Mahmood
was interviewed, and that a reply was received on 27 May. That reply appears to
have been the charging memo!®, of that date prepared by J. McFarlane, Principal
Lawyer in the Criminal Law Division of the Post Office.
117. The charging memo was brief. It concluded that the evidence was sufficient to afford
a realistic prospect of conviction for false accounting. The author explained that the
decision to charge false accounting instead of theft was on the basis of the various
people who had access to the office who could thus have taken the monies (and the
possibility that Mr Mahmood’s father could have done so). In other words, the
charging was based on the number of other suspects who could have committed theft,
thereby reducing the probability of a conviction of Mr Mahmood for that offence,
rather than, for example, an analysis of his financial information showing that he had
not benefited financially. The false accounting charges were principally justified on
108 [2021] EWCA Crim 577, at §322
109 POL00052874
110 POL00052884
48
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the basis of the defendant's own confessions to having covered shortfalls to keep his
job. In relation to the consideration of the public interest, the memo stated that the test
was met “in view of the serious and systematic nature of the alleged offences and the large
amount of money involved” .
118. There was no reference to issues with the Horizon system and it appears it was
assumed that the false accounting offences therefore related to large amounts of
money that was in fact missing. Moreover, the charging decision was seemingly based
solely on the description of matters contained in the equivalent of the investigation
summary. No statements had yet been prepared (as is shown from the list of such
statements requested in the charging memo). There was no evidence of consideration
of the defendant's financial statements which did not seem to show any deposits or
profits, albeit given the choice of charge being predicated on the basis it was to keep
his job this was perhaps understandable. No enquiries were suggested in the charging
memo in this regard. There is no evidence of any awareness of issues with Horizon in
the prosecution, and the charging memo did not request any enquiries to be made in
this regard. The prosecution proceeds on the basis that Horizon could not have been
in error.
119. By reference to the Code for Crown Prosecutors, the prosecutor in this case did
address, to a limited extent, both limbs of the test. She did not undertake any detailed
analysis of the evidence, or potential defence case. There is, for example, no assessment
of whether dishonesty could be proved. She did not identify further lines of enquiry,
but she did identify evidential requirements. Whilst the analysis of the public interest
was limited, there was a recognition of the need to consider it.
Proceedings
120. The Casework Management Initial Tick List!!! records that the case file was sent for
process, in relation to the obtaining of a summons against Mr Mahmood by the
Investigation Manager, on 1st June 2005. I have not seen the application made for the
summons.
111 POL00052874
49
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121. The charging memo! indicates that Mr John Dove, Solicitor Advocate was to be
instructed to prosecute the case. I have not seen his instructions. However, it is clear
that Counsel was instructed to provide an advice on evidence, because such an advice
was supplied by Richard Cole of 33 Park Place, Cardiff, on 8°" November 2005". It is
apparent counsel had access to case papers not provided to the Inquiry, including
statements and a schedule of unused material.
122. Counsel's advice shows an awareness of the application of the Court of Appeal
decision in Eden'!, He advised that on the evidence, which in effect meant Mr
Mahmood’s account in interview, it was appropriate to charge false accounting rather
than theft because there was no evidence of Mr Mahmood taking monies, and the gain
to him through his accepted falsification of the accounts was “ putting off the evil day of
having to sort out the muddle and pay up” (quoting Eden). Counsel's advice also shows
an awareness of the relevance of the Horizon data. He inquired as to whether the
Horizon system could be interrogated to provide the actual balances for those weeks
to which the false accounting charges related. Counsel also asked about the relevance
of the lack of error notices and potential explanations. He also asked whether Mr
Mahmood’s bank account had been interrogated for any financial gains.
123. I have not seen any response by the Post Office to Counsel’s advice, or whether further
enquiries were made on the basis of that advice. The conclusion of the Court of Appeal
quoted above would suggest not. Counsel’s advice shows a recognition of the correct
approach, identifying lines of enquiry and further evidence that was required, but
there is less evidence that the advice was acted on, or chased. It may be that Mr
Mahmood pleaded guilty before the advice could be taken further.
Disclosure
124. In the charging memo!'5 there was a specific request for disclosure schedules to be
compiled but these were evidently not compiled and reviewed before a charging
decision was made. There is no schedule of non-sensitive unused (equivalent to an
12 POL00052884
113 POL00052888
114 (1971) 55 Cr. App. R. 198
115 POL00052884
50
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MG6C) or schedule of sensitive unused (MG6D) in the papers provided. Once the case
was committed it appears a schedule of unused material was submitted, and the legal
team at Royal Mail asked whether there would be any material that was disclosable'’.
It is not clear whether this is to interpreted as a request for an investigator's report
(MG6E) rather than a delegation of responsibility for disclosure in its entirety. I have
seen no evidence of actual disclosure being undertaken, beyond this. The failure to
have pursued reasonable lines of enquiry relating to Mr Mahmood’s finances and the
reliability of the Horizon data means that there were consequential limitations to the
disclosure that ought to have been made of material that ought to have been obtained
in these areas. There is no evidence that any consideration was given to whether the
issues Mr Blakey had reported in relation to Horizon should have involved any
disclosure to Mr Mahmood.
Assessment
125. Asastarting point, Mr Mahmood did tell those interviewing him that he had altered
accounting material to conceal shortfalls, and that he had done to in order to keep his
job. There is no evidence beyond those admissions of what he did, or why. Those
admissions were acted on by both investigator and prosecutor without more.
126. The investigation, as a result, failed to pursue reasonable lines of enquiry as to Mr
Mahmood’s finances, and whether he had obtained any financial benefit, and as to
whether the shortfall was a genuine one by reference to the reliability of the Horizon
data. There does not appear to have been any identification of these shortcomings by
the prosecutor, although they were raised by counsel instructed (albeit at a stage
where Mr Mahmood’s guilty pleas intervened).
127. The prosecutor applied the correct test, in terms of the application of the two limbs of
the test in the Code for Crown Prosecutors. There was no analysis of the evidence
identified to explain how the decision was reached, and this in particular means that
the prosecutors did not set out the basis on which she concluded that dishonesty could
be demonstrated. She did not raise any question about the reliability of the evidence,
116 POL00439364
51
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which the Code for Crown Prosecutors, had she been applying it correctly, would have
enjoined her to do. It was a brief charging advice, and therefore cannot properly be
described as thorough.
128. There is evidence that the requirements for schedules of unused material, and a review
of those schedules, were appreciated. There is less evidence that these requirements
were actually met, or that any sufficient disclosure was undertaken before Mr
Mahmood pleaded guilty.
CARL PAGE
129. Carl Page was the sub-postmaster at Rugeley, and had been so since 1997. He initially
operated the post office in conjunction with his wife, but they divorced in 2001. From
1998 they had operated a Bureau-de-Change at the branch.
130. The history of Mr Page’s case is not straightforward, and although there is voluminous
material, there is limited material in relation to the matters that I have considered in
relation to each case, namely the investigation, charging decision, disclosure and the
acceptance of a guilty plea on a basis. In the proceeding before the Court of Appeal in
Josephine Hamilton v Post Office!’, Mr Page was one of those in category B, “in respect of
whom POL accepted that this court may properly find that the prosecutions were an abuse of
process within category 1, but resisted the appeals insofar as they are based on category 2
abuse.”
131. By reference to facts as summarised in the Court of Appeal'!8 the following chronology
is clear. In December 2003, Mr Page and a co-defendant, John Whitehouse, were jointly
charged with conspiracy to defraud and theft. The prosecution case at the first trial
was that Mr Page had colluded to steal money with Mr Whitehouse, who was a
customer in relation to the purchase of foreign currency. The theft charge was founded
ona Horizon snapshot which identified £282,000 in foreign currency to be missing. At
a trial at the Crown Court at Wolverhampton before His Honour Judge Wood QC in
117 [2021] EWCA Crim 577, at §75
18 [2021] EWCA Crim 577, at §277. I have also taken the chronology from Mr Page’s Mediation
submission in 2014, POL00061506
52
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July 2005, the jury acquitted both of conspiracy to defraud but was unable to reach a
verdict on theft. Mr Page was retried on his own for theft. At the second trial, it was
alleged that Mr Page had physically stolen £282,000 from the branch and hidden the
losses on the foreign exchange system. The theft was alleged to have taken place
between 1 March 2002 and 14 July 2003.
132. Two separate defence expert reports were served, one in relation to each trial. Both
noted that the prosecution case was almost exclusively based on the missing money in
Horizon but the prosecution argued that it was also based on data from the Forde
Moneychanger (which is separate from Horizon). In his defence statement for the
second trial, Mr Page denied that he had been dishonest, saying that the Post Office
could not prove how much money ought to have been in the accounts at the beginning
or end of the indicted period, or when or how money was taken.
133. On 15t November 2006, in the Crown Court at Stafford before His Honor Judge
Mitchell, Carl Page pleaded guilty to theft. The indicted shortfall was £282,000, but
amount of the theft was reduced to £94,000 following an accepted basis of plea, which
asserted: “The Defendant stole £94,000 from the Post Office having begun to do so on return
from holiday in August 2002. The remaining deficit of £188,000 may have been the result of
incompetent accounting or possibly theft by other person(s)’. On 19' January 2007, he was
sentenced to two years’ imprisonment.
Investigation
134. Initially, it appears that the investigation involved not only the Post Office but HM
Customs and Excise and Staffordshire Police. By reference to the case summary!!?
ultimately prepared for the conspiracy to defraud prosecution, the chronology appears
to be as follows:
(a) In December 2002, a Post Office Foreign Currency Manager, Laurence
Hutchins!” had noted large volumes of currency were going to the Rugeley
post office and was told by Mr Page that he had a client who required such
sums;
119 POL00065034
120 Witness statement served in the conspiracy to defraud trial, POL00062370, p.25
53
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(b) In January 2003, Customs officers!?! undertook surveillance which identified
Mr Whitehouse as that customer. At that time, HM Customs was undertaking
an investigation of possible money laundering by Whitehouse. He was
arrested and interviewed by Customs before being released, and rearrested by
Staffordshire Police;
(c) Following Whitehouse’s arrest on 13‘ January 2003, Manish Patel'??, a Post
Office Investigator who had been notified of the Customs money laundering
investigation, determined to undertake searches at the Rugeley post office and
Mr Page’s home. On 14' January, an audit was undertaken at the post office
which identified a shortfall of £645,345.18, including £282,000 in foreign
currency", It was later confirmed! that no written record had been made of
the searches relating to Mr Page. This was a contravention of the Post Office
Investigation Policy!”, which provided a form CS005 that was to be completed.
135. Mr Page and his co-accused John Whitehouse were arrested by Staffordshire Police on
13 January 2003. The involvement of the police accorded with the Post Office Arrest
Procedure!®, which recognised the limitations to the Post Office’s own powers in this
regard. According to a letter from that force in May 200317, it was then decided that
the Post Office would lead the investigation into a conspiracy to defraud, with a view
to establishing the extent of financial loss. The police focus was on phone analysis and
examination of the accused's financial affairs. The police investigation did not uncover
any suspicious calls, and found “no evidence of any transactions between the two men’s
bank accounts and neither party appeared to be living beyond their known legitimate means” .
In the absence of such evidence, the police decided not to pursue any charge against
either. It was, therefore, the Post Office that pursued the investigation to prosecution.
121 Surveillance statements were served in the conspiracy prosecution, POL00062370, from p.35
12 Witness statement served in the conspiracy prosecution, POLO0066551, p.157
12 Witness statements from the auditors service in the conspiracy prosecution, POL00062371: Orgill
p.64, Edwards p.67, Burrows p.72
128 POL00067072
125 POL00104752, at para.3.7
126 POL00104760
127 POL00045921
EXPG000004R
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136. Both Messrs. Page and Whitehouse were interviewed. In the case of Mr Whitehouse,
this interview at 17.02 on 13 January was undertaken by Customs Officers!?8. In the
case of Mr Page, that interview took place at Stafford Police Station at 21.34 on 13%
January’”, and was undertaken by police officers. Mr Page declined the assistance of
a solicitor. He accepted this dealings with Mr Whitehouse, and agreed that he gave Mr
Whitehouse better exchange rates than the Post Office rates.
137. Mr Page was interviewed again after the audit on 14‘ January". This time he was
interviewed by Manish Patel, the Post Office investigator as well as by a police officer,
and this time he was accompanied by his solicitor. He was asked further questions
about the Bureau-de-Change transactions. He said that he had told his area managers,
who he named, that he was doing this, and had been doing it without objection from
the Post Office for 5 years. The procedure adopted for this interview accorded with the
Post Office interviewing policy.!3!
138. This account was investigated, and statements were taken from two relevant
managers, namely Steve Geraty and James Coney", although it was accepted when
he was interviewed that he had not been told that he could not change the exchange
rate!33, In this regard, the Second Sight review initially" considered the statements
from Mr Geraty as “unhelpful” in that it did not contain a definite response to Mr Page’s
assertion that Mr Geraty had permitted his dealings with Mr Whitehouse, and a
flexible approach to exchange rates. It observed that there was no denial of this. The
Post Office in its response to the draft review disputed this analysis. However, it
remained the Second Sight Review's conclusion! that this issue had not been
addressed properly by Mr Geraty. Indeed, the Second Sight Review concluded that it
was more likely than not that Mr Geraty had authorised Mr Page’s conduct.
128 Exhibit bundle from conspiracy prosecution, POL00062573, p.1
2 Exhibit bundle from conspiracy prosecution, POL00066537 p.114. It should be noted that the
transcript is incomplete.
130 Statement of the investigator Mr Patel, POL00066551, p.164; Transcript POIL00066734. It should be
noted that again the transcript is incomplete.
131 POL00104758
182 Statements served in the conspiracy prosecution, POL00066551 pp.112 and 115
188 Transcript of 14/1/03 interview POL00066734, p.17
134 POL00065032
135 POL.00046978
55
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139. In terms of other investigation of Mr Page’s interview account, statements were also
taken from the staff at the Rugeley Post Office in relation to their roles, and lack of
accounting record-related activities!%*, and evidence was obtained in relation the
previous audit at the branch in 2002". It was not until February 2006 that an error
made at that audit was identified and communicated to the defence!8, There was some
investigation in relation to Mr Page’s finances, to the extent at least of establishing his
earnings from the Post Office°. There were also bank statements relating to Mr Page
in the unused material schedule™. It is also right to note, as was made clear in a letter
from Staffordshire Police in May 2003"! that they, rather than the Post Office, had
undertaken the investigation into the suspects’ finances and therefore material in that
regard was more likely to, and did"? appear, on the schedule of non-sensitive unused
material produced by the police. Correspondence"? confirms its disclosure.
140. The documentation seized from the branch was examined and the investigator Mr
Patel put this into schedules that were relied on at trial'#4. The material derived from
the Forde Moneychanger, the programme used in relation to the Bureau-de-Change,
and a comparison of these records with those on the Horizon system. It was the
prosecution case, certainly by the time of the retrial", that Mr Page had routinely
inflated the foreign currency figures on Horizon.
141. Mr Page was interviewed again on 23"4 April 2003"°. He was offered the assistance of
a solicitor, who was present, and a Federation representative, which he initially
declined. The focus of the interviews was again the transactions with Mr Whitehouse.
In relation to the £282,000 shortfall, Mr Page said that this was attributable to certain
186 Statements served in the conspiracy prosecution, POL00062371: Pearce p.77, Batey p.89 and
POL00062372, Cary p.213, Graham p.215, Rogerson p.217
157 POL00062372, Davies p.219
138 POL00066545
139 POL00062372, statement of Roberts p.223
149 POL00062577
+4 POL00045921
142 POL00067170
+48 POL00067072
M44 Statement of the investigator Mr Patel, POL00066551, p.164 and opening note from retrial,
POL00066717
445 Retrial opening note POL00066717, at §35
146 Tape 1, POL00066733; tape 2, POL00066732; tape 3, POL00066731; tape 4, POL00066730, tape 5,
POL00066729
56
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EXPG000004R
cheques from Mr Whitehouse. He denied that he had been inflating figures on
Horizon, and he said that this would have been shown by earlier audits.
Charging decision
142. I have not seen any form of charging decision in this case, and can only make limited
comment in this regard in its absence. There are grounds to query that decision in
relation to a prosecution of Mr Page for theft, and the basis for that prosecution, which
makes the lack of a charging decision regrettable. I am unable to address the extent to
which the test in the Code for Crown Prosecutors was applied, by whom, on what
analysis of the evidence, and whether the reliability of evidence or the weighing of
factors relevant to the public interest were features of that decision making process.
143. The material generated in this case does attribute a degree of uncertainty to the
prosecution as to how it put its case on theft. In his mediation application notes!47, Mr
Page refers to the prosecution admitting in the course of the proceedings that they “did
not know what was missing from the post office, either it was money, stamps., stock or others,
but only knew that an amount in monetary value was missing”. The Second Sight Review
agreed with this assessment (see below).
144. In relation to the theft charge, on 23“ February 2006"* the prosecution responded to a
defence query as to the period of the indictment. They stated that they could not show
when Mr Page started to steal money from the Post Office, and added that the
prosecution case was not that inflation of foreign currency figures on Horizon
represented the only way in which theft had been concealed. In then addressing an
error made in relation to the June 2002 audit, the letter observed “the fact that the
significance of the cheques was initially missed by the prosecution reflects the difficulties in
assessing the true position of the cash/stock held when manipulated accounts are presented.”
145. This stance was examined, and criticised, by the Second Sight Review into Mr Page’s
case“, It noted that the prosecution had originally concluded that the balance
snapshot referred to £282,000 of foreign currency that could not be located because it
47 POL00045866
148 POL00066545
449 POL00046978
57
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EXPG000004R
had been stolen. They had presumed that one of the cheques recovered during the
search of the branch was payment for the missing currency, but then accepted that it
was in fact presented to cover three previous checks that had bounced. It was then
their conclusion that there must be a real shortfall. However, as the Second Sight
Review observed “while we have seen evidence that supports the auditors conclusion that
there was a real shortfall, we have as yet seen no evidence that convinced us that all of that
shortfall was the result of theft... Post Office was unable to attest , during the 2 trials, to
anything more than that the branch Audit had established that foreign currency to the value of
£282,000 that was meant to be in the branch was simply mot there. That does not, in our view,
constitute evidence that that amount of currency was stolen at all, let alone by the Applicant.
Indeed, in the second trial, £188,000 of that shortfall was attributed to other causes than theft
by the Applicant”.
146. At the first trial, when Mr Page was cross-examined", he said that he did not know
whether money was missing or there was an accounting problem, it was put to him
by prosecution counsel that he knew there was no accounting problem, and that he
was a thief. This was in accordance with the stance adopted by the prosecution during
the trial, but was not their stance at re-trial. The Court of Appeal!®! observed in relation
to this: “We ... regard it as unsatisfactory (to say the least) that Mr Page was subjected to
cross-examination in the first trial on a basis which POL felt unable to sustain thereafter” .
147. This accords with the observations of the Second Sight Review! that the two
prosecutions related to 2 entirely different losses. And says “at the first trial the Crown
had been unsuccessful in persuading a jury that the applicant and his customer had conspired
to deprive it of profits that it asserted that it would, but for those beneficial exchange rates, have
made. It had also failed in convicting the applicant of stealing foreign currency to the value of
£282,000. In the second trial, it had again brought the charge of theft, asserting that the
applicant had stolen £282,000 in an unspecified way...”
148. There is no rule that prevents a prosecutor from changing the way in which they put
their case as the evidence develops and reveals that the original approach was in error.
150 As summarised on Mr Page’s behalf to the Court of Appeal, [2021] EWCA Crim 577, at §105,
Transcript, POL00062575
151 [2021] EWCA Crim 577, at §284
152 POL00046978, at §5.2
58
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What is concerning here is that the acquittal at the first trial does not appear to have
led to a more thorough reassessment by the prosecution of its case, or the reliability of
the evidence and especially the data on which it was based. The change of stance has
the appearance of the prosecution adapting how it put its case so that it could continue
to prosecute despite the outcome of the first trial, rather than a detailed reassessment
of the evidence.
Horizon issues
149. The issues with the Horizon data in Mr Page's case arose from the analysis of experts
instructed on his behalf.
150. In preparation for the conspiracy trial, the defence served, it appears, two reports from
David Liddell, an accountant at PKF(UK) LLP. I have only seen his supplemental
report, dated June 2005'53. In relation to the auditing methods employed at Rugeley
Post Office, he opined that “I have serious reservations that the work carried out did not
constitute an audit in the sense that data was not verified back to source documentation nor
critically examined before conclusions were drawn”, He said that the audit was more akin
to a stock take and therefore the balanced identified may not be correct. The Second
Sight Review! considered Mr Liddell’s analysis and concluded that the “only clear
explanation” of Post Office foreign currency accounting came from him.
151. In preparation for the retrial, the defence served a report from Timothy Taylor of
KPMG" to consider the accountancy evidence relied on by the prosecution. He
explained that the alleged inflation of foreign currency on Horizon was in fact the
difference between the Forde Moneychanger printouts and the actual cash on hand.
He agreed that there was inflation in this sense. He said that he found no evidence that
theft was concealed through cash on hand figures. The alleged £282,000 deficiency
“could in practice be the result of other unidentified errors or differences in Horizon”. He
observed that the prosecution case depended on Horizon “ working correctly throughout
153 POL00045868
154 POL00046978, at §4.26-29
155 POL00045790
59
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the indictment period”, but aspects of this had not been checked at the time, and could
not be checked now.
152. Observations of Second Sight Review! were made on both expert reports: “both
experts’ reports raised the question as to whether the ‘audits’ actually constituted a proper audit
in the sense that data was not verified back to source documentation nor critically examined
before conclusions were drawn. Both experts concluded that they were more akin to a stock take
at a particular time and that it was dangerous to draw the conclusions the post office had drawn
from them”. They observed that the Post Office characterisation of the audit as “the
current trading position of a branch at the moment the audit was undertaken” “does sound
very much like a stock take, rather than what is normally understood to be an audit’.
Disclosure
153. I have seen a schedule of non-sensitive unused material (MG6C), which is undated
and unsigned by the disclosure officer and not annotated in any way by the reviewing
lawyer. It does appear, however, that the schedule was disclosed in the conspiracy
proceedings. It includes warrants, custody and interview-related material, drafts of
schedules and interviews undertaken with Mr Page following the June 2002 audit. In
short, the items listed on the schedule are all items that are correctly there identified.
The schedule does not include, and thus there is no suggestion of disclosure of the
underlying material from Horizon that underpinned the prosecution case.
154. There is also no reference to records of contact with relevant helplines. By the time of
the Second Sight review!”, records of contact with the Horizon helpdesk were no
longer available, but those relating to the NBSC were, and included evidence of calls
relating to the use of Horizon. The Post Office mediation investigation report!
observed that one call suggested a system fault “but these do not correlate with the
discrepancies reported”. The calls are set out in the preliminary investigation report,
showing 231 calls between 2000 and 2003. It is not clear whether any of this material
was disclosed at the time of Mr Page’s prosecution, when he was asserting that he was
156 POL00046978
157 POL00045996
158 POL00045996, p.2
60
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EXPG000004R
not a very competent post master and made mistakes, and also raising the question of
problems with the operation of Horizon at his branch.
155. This was a prosecution that followed investigation by Customs and the police as well
as the Post Office. Given that other investigative authorities were involved, it was
necessary to consider material generated by their investigations for disclosure as well
as the Post Office’s own. It is clear that the Post Office recognised this, although it also
appears that the defence had chased such disclosure before it arrived.!”. There was
correspondence! in advance of the first trial that recorded that Post Office lawyers
had inspected and reviewed the Customs material, and disclosure was made from this.
It is also clear that the correct test under the CPIA was applied in this regard!*!. The
defence in correspondence! observed that “this is no more than any prosecutor is duty
bound to do” . That is a correct observation, but it is clear that in this area the prosecution
had recognised that duty. This included, as was rightly observed in correspondence,
that the prosecution had to consider the test for disclosure, rather than simply hand
over material because it had been requested.
156. Similarly, a police schedule of non-sensitive unused was provided and appears to have
been disclosed. This schedule’ was detailed in terms of its contents and the
description of each item. There is no indication on the face of the document that its
content had been reviewed by a lawyer. It is also right to note, however, that the
financial investigations undertaken by the police, as detailed in the schedule, did form
part of the disclosure made by the Post Office, and that this had been undertaken
through the disclosure of the police schedules before such disclosure was requested
by the defence’.
157. I have not had sight of the defence statements from the first trial. However,
correspondence! with the defence in advance of the first conspiracy trial does show
the prosecution responding appropriately to a range of requests for disclosure. It is
159 POL00067081
160 POL00667072, POL00067074, POL00067075, POL00067077
161 PO000067075, POL00067077, POL00067084
162 POL00067081
163 POL00067084
164 POL00067170
165 POL00067072
166 POL00067072, POL00067074
61
EXPG000004R
EXPG000004R
right to note that topics this covered such as training records, records and procedures
relating to the Bureau-de-Change, were matters that were specifically addressed by
Mr Page in interview, and it would have been reasonable for material relating to them
to have formed part of primary disclosure. However, disclosure was made. It is also
clear that there was, correctly, cross-disclosure of the defence statements.
158. The prosecution in October 2004167 gave detail of the detailed work that was being
undertaken to meet substantial disclosure requests on behalf of the defence, and to
remind the defence that if they considered this to be deficient, they could and should
make application pursuant to section 8, CPIA. Such an approach arguably accorded
with the Attorney General’s 2000 Guidelines (para.14) to the extent that the prosecutor
should seek further particulars from the defence where their request or its relevance
was unclear. It is not clear that the defence did make any such application. In this
correspondence, the prosecution also indicated that they had made arrangements for
the inspection of the Forde Moneychanger till rolls. Given the scale of these, this was
a reasonable way to afford access, and compliant with the CPIA. However, later
correspondence shows that this material was in fact provide to the defence in hard
copy.'® That correspondence also shows the limitations to the material that was
available for disclosure to the defence expert.
159. A defence statement was submitted on behalf of the defendant, dated 26 April 2006',
in relation to the retrial. In so far as is relevant, this pointed out that the prosecution
could not say when or how the money was stolen, and relied on Mr Taylor, their
expert’s analysis. It was therefore asserted that there was no evidence that Mr Page
had received a penny of the loss alleged.
160. IThe Court of Appeal!” conclusion was that: “Despite the fact that Horizon’s reliability
was plainly raised by the defence, there is no evidence of any investigation into the root cause
of the shortfall. There is nothing in POL’s case papers to indicate that any ARQ data was
obtained at the time of the criminal proceedings. There was no evidence to corroborate the
167 POL00067075
168 POL00067099
169 POL 00066716
170 [2021] EWCA Crim 577, at §284
62
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Horizon evidence. There was no proof of an actual loss as opposed to a Horizon-generated
shortage.”
Circumstances of the plea
161. Mr Page addressed his change of plea in relation to theft in his Submission to the
Second Sight Review!”!. He said that prosecution counsel had offered to reduce the
level of the theft count to £94,000, and that this should keep any sentence under two
years. He was advised that he would serve half of such a sentence and would be a
good candidate for an open prison and release on a tag. He added “ by making such an
offer, the prosecution make a mockery of the entire justice system” . Such an approach would
appear unusual in my experience. It would be wholly consistent with a prosecutor's
role as a minister of justice to alter the level of theft where it became clear that this was
consistent with the evidence. It would not be similarly consistent where it did not
reflect the evidence, but was a matter of convenience, with a view to encouraging a
plea. Indeed, paragraph 10.1 of the 2004 edition of the Code for Crown Prosecutors
would tend to underline that point. The Code makes clear that prosecution counsel
should assist the court with its powers of sentencing, but that is not, in my view, the
same as a discussion of the nature of the prison to which a defendant might be sent
with his counsel.
162. In April 2014172, the team leader dealing with the Second Sight Review into Mr Page’s
case raised the question with Martin Smith at Cartwright King as to the circumstances
in which Mr Page came to plead on the basis that he did. Simon Clarke responded on
behalf of Cartwright King!” to say that such a sequence of events was plausible, and
not uncommon. He said it was more normal for the approach to come from the
defence, and suggested that it was likely that this had happened here. He said that
such an approach would occur where the case was evidentially weak, or the
prosecution wished to avoid the cost of a trial. He said that the prosecution would not
have been involved in a discussion of sentence or the type of prison.
171 POL00061506, at §32-33
172 POL00045780
173 POL00045781
63
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163. The suggestion that the plea originated with the defence not the prosecution accords
with the assessment in the Post Office preliminary investigation report in the
mediation process'”4. It is there asserted that the figure for the theft was reduced to
£94,000 “following an approach by the Applicant's defence team”, on the basis that part of
the period originally relied on was a period during which Mr Page had been on
holiday.
164. I However, the Second Sight Review!® included Mr Page’s “professional Adviser” as
saying that during the lead up to the re-trial, the prosecution had indicated that they
proposed to add a charge of perjury to the indictment to reflect a “white lie”, as it is
characterised by the Review, in his evidence at trial one. It was then that the
prosecution also proposed the alternative of a plea to a lesser sum, which the
prosecution contended would result in a lower sentence. As Mr Page’s lawyer put it
“the figure of £94,000 was not selected by him. It was proposed by those prosecuting to entice
a plea knowing the penalty for theft of less than £100,000 would be less than for theft of
£282,000".
165. It is right to note that the Court of Appeal did not address the circumstances of Mr
Page’s plea as they did in the case of some others. It follows that whilst Mr Page’s
account as to the circumstances of his plea is a cause for real concern, it is difficult to
come to a settled position as to what the circumstances actually were. What is of
concern, because it echoes the position in Yates, is that the prosecution should exhibit
such uncertainty as to the scale of loss that it could be altered to such a significant
degree at such a late stage, and yet that uncertainty did not appear to have caused any
hesitation in the decision being made to prosecute and to prosecute for an offence
alleging financial loss.
Assessment
166. The central concern in the case of Mr Page was that the basis for the prosecution’s case
underwent a number of seismic changes during its progress through the criminal
justice system. The case started as an allegation of conspiring with a customer coupled
with an allegation of the theft of foreign currency. The position then moved to an
174 POL00045996
175 POL00046978, at §4.21
EXPG000004R
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allegation of the theft of monies and concealed the loss through foreign currency
records. Ultimately, the prosecution accepted that the amount stolen was a fraction of
that which it had maintained for a number of years. The reason why this is a concern
is because, by reference to the material I have seen, these changes are the product of
the limitations to the investigation, and prosecution decision making reached without
those limitations being an obstacle.
167. In terms of that investigation, it is right to say that there appears to have been
appropriate interaction with the other prosecuting agencies that were initially
involved, and a greater appreciation of the need to investigate Mr Page’s finances than
had been shown in some of the other cases dealt with above. However, despite
significant reliance on Horizon data, and the advancing of a positive case as to what it
was alleged Mr Page had done in relation to that data, that positive case was not tested
by an analysis of the underlying data or any testing of its reliability. The multi-agency
investigation resulted in significant material for disclosure. Schedules of that material
were prepared. There is a lack of evidence that those schedules were reviewed, and
evidence that on a number of occasions, and in relation to a variety of material that
obviously fell to be disclosed, it was repeated defence requests than resulted in its
disclosure rather than a properly conducted disclosure exercise by the prosecution.
168. Although I have not seen the original charging decision, the significant and repeated
changes to how the prosecution put its case do call into question how conscientious
and thorough that decision had been, and the extent of evidential analysis that
underpinned it. In both the investigation and the charging decision there was a failure
to assess the implications of Mr Page’s account as to the problems he encountered with
the Horizon system, and its consequences. This remained the case as a series of expert
reports were served on Mr Page’s behalf, and yet there is no evidence that this led to
a fundamental review of the prosecution’s case, or the disclosure the raw material
(namely the Horizon data) on which that case was based. As was observed by the
Court of Appeal, the root causes of the shortfall were not investigated. This culminated
in the taking of a plea to theft by reference to a much reduced loss figure. I have already
addressed by concerns in relation to that sequence of events.
65
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OYETEJU ADEDAYO
169. Oyeteju Adedayo was 41 years old when she was investigated. She was the sub-
postmaster at Rainham Road post office in Kent.
170. I She was charged with false accounting, contrary to section 17, Theft Act 1968, on the
basis that an audit at her branch had identified a shortfall of £52,864.08. At the Crown
Court at Maidstone!”’, she pleaded guilty to three charges of false accounting, and
received 50 weeks’ imprisonment suspended for 24 months with 200 hours of unpaid
work. It appears that other offences were taken into consideration at the sentencing
hearing!”’.
171. The paperwork relating to this case is very limited, and my ability to address aspects
such as disclosure and aspects of the investigation therefore constrained. Mrs
Adedayo’s case was referred by the Criminal Cases Review Commission (‘CCRC’) to
the Crown Court at Southwark. Mrs Adedayo sought to challenge her conviction on
appeal on the basis that her admissions to the auditor, which preceded both her
admissions in interview and plea of guilty, had been unreliable. That submission,
whilst advanced by the CCRC, was opposed by the Post Office. However, the Post
Office opposed neither the application to vacate Mrs Adedayo’s plea nor her appeal,
by reference to the public interest test for prosecution.
The investigation
172. The paperwork does not identify specifically who performed the roles of senior
investigator, investigator or disclosure officer for the purposes of the CPIA. The
Investigation Summary was prepared by Natasha Bernard, investigation manager
who attended the Rainham Road post office following an audit that had identified a
shortage, and interviewed Mrs Adedayo. It appears in two versions, each of which is
dated 8' September 2005, although the second version’ is fuller than the first!”.
176 POL00044362, POL00030561
177 10 offences of False Accounting appear in a list of charges attached to the summons (POL00044358)
178 POL00044366
179 POL00044360
66
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173. On 5 September 2005, a routine cash and stock verification audit was undertaken at
the Rainham Road post office and a shortage of £52,864.08 was identified. Mrs
Adedayo was present and told the auditor, before the audit was undertaken, that there
would be a shortage of approximately £50,000. The CCRC'* considered that there was
“a real possibility” that Mrs Adedayo’s admissions to the auditor would have been
excluded, pursuant to section 76, PACE 1984, as unreliable. The prosecution position
was that Mrs Adedayo had drafted a note which she handed to the auditor. On appeal
she contested that, and the CCRC considered the circumstances unclear, not least
because the auditor was not asked to make a statement during the course of the
investigation.
174. I Mrs Adedayo agreed to a voluntary interview at the premises'*!, which was recorded.
She did not have a friend or solicitor in interview, but she was advised that she is
entitled. During the interview:
(a) She explained that she had purchased the post office six years earlier, but only
herself worked there when a manager called Joan was not available, and in order
to complete the balancing on a Wednesday.
(b) She made admissions that she had used Post Office money to repay creditors who
had lent her £50,000 for a deposit on a property. She would not give details of her
creditors, but said that they were exerting pressure on her. The total amount that
she admits to “borrowing” is similar to the amount of loss caused. On appeal, Mrs
Adedayo contested the truth of this account. The CCRC!* did not conclude that
the account in interview was false.
(c) Mrs Adedayo accepted that she could have used the proceeds of the sale of a
property in Berkshire to repay the amount, but had instead used it to purchase
accommodation for her family, as that above the post office was not suitable.
(d) She admitted inflating the cash figures declared on the cash accounts. She said she
had not intended to defraud the Post Office, as her intention had always been to
repay the monies. She explained that the letter T against entries in handwritten
cash declarations represented amounts that had been taken, but said that other
annotations related to monies held at the branch.
'8° RLITO000185, para.24
181 POL00044368 and POL00052920, repeated at POL00066742 and POL00066745
‘© RLITO000185, para.22
67
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(e) She said that she would repay the shortage once her remortgage was finalised. It
was noted in the investigation summary in September 2005 that “this has not been
received”. It is right to note that Mrs Adedayo did not raise any issues with regards
to the Horizon system in her interview.
175. In terms of investigative steps identified in the investigation summary, Mrs Adedayo
gave permission for her finances to be investigated and enquires were made of the
Business Support Centre in Chesterfield to obtain cash accounts for the post office. The
assessment of the investigator, Ms Bernard!83, at a time when these enquiries she
identified in her investigation summary had not been undertaken was “the explanation
that Mrs Adedayo has given for the shortage is not entirely believable. She was unwilling to
provide the names and details of her creditors; she had no proof of a loan and did not obtain any
receipts for the £50K she repaid.” There is no evidence on the papers that I have seen of
any enquiries being made in relation to the creditors, for example a consideration of
the source of the money that permitted Mrs Adedayo to purchase the business, and
evidence of her financial position through the relevant period. In relation to the
handwritten cash declarations records, these were further examined by Ms Bernard
who noted that “there seems little point to identifying amounts that include the cash
declarations contained within the weekly documents and the letters that are used are always
the same, which indicates that they must represent something”.
176. It was not unreasonable for an investigator to express scepticism about these aspects
of Mrs Adedayo’s account for the reasons that Ms Bernard gives. That does not equate
to there being no requirement to test the evidence, and that account, through further
enquiries. Those further enquiries here appear to have been limited, in relation to Mrs
Adedayo’s finances. The CCRC'* noted that Mrs Adedayo referred in her application
for her case to be reconsidered to the making of regular calls to the helpline. The CCRC
noted that there was no evidence to support the making of such calls. Given that the
‘Managing Shortages at audit’ guideline'®> specifically identifies the extent to which
they sought help as relevant factors in such cases, it is at least arguable that this should
have been a routine lines of enquiry even when not raised specifically by the suspect.
183 POL00044366
'84 RLITOO00185, para.22
185 POL00118154
68
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Charging decision
177. At a time when the further enquiries into Mrs Adedayo’s finances and the records
from Chesterfield were outstanding, Ms Bernard recommended '!* that Mrs Adedayo
be charged with false accounting. The case was then considered by Debbie Helszajn'*”
at Corporate Security. Her specific role is redacted. It is a very short charging decision
which records that Ms Helszajn considered that “the evidence is sufficient to afford a
realistic prospect of conviction” on three charges'® of false accounting, contrary to section
17, Theft Act 1968. No indication is given of what evidence had been considered in
order to come to decision. It was anticipated that the defence would be a lack of
dishonesty, but there was no analysis of what evidence there was to establish this
important ingredient of the offence. Ms Helszajn advised that a TIC schedule be
prepared to address the other identified weekly cash account records where there was
evidence of falsification beyond the three that were the subject of the charges. This was
subsequently done.!*?
178. No reference was made to the public interest test, or how that was satisfied. In terms
of next steps, there was a request for any material that would fulfil the disclosure test
under CPIA. No further enquiries were identified as being required, and no question
was asked about those enquiries that the investigation summary had identified as
being outstanding.
179. _ Lhave seen no schedules of unused material, and no evidence of any disclosure being
undertaken. I stress that because I have not seen material relating to disclosure, I
cannot therefore opine on its sufficiency or otherwise. Given the admissions made by
Mrs Adedayo in interview, it was accepted that there was a shortage and that it had
been caused by her. It follows that this was not a case where the reliability of otherwise
of the Horizon system was an obviously relevant issue either as a line of enquiry or as
an area for disclosure, unless there was material available to the investigating or
prosecuting that they considered met either test. By this, I mean that if the prosecution
was aware of material undermining the reliability of the data that underpinned its
186 POL00044366
187 POL00044361
188 POL00044367
189 POL00044358, POL00044358
69
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case, it still needed to consider whether that was material capable of undermining its
case even where the defendant had made admissions. That accords with the view
taken by the CCRC!™.
180. A financial investigation policy log!*!, dated March 2006 (very shortly after Mrs
Adedayo’s pleas), noted that she had not repaid the shortfall, and therefore that
confiscation proceedings were appropriate. I have seen material! relating to those
proceedings.
Assessment
181. This case differs from the others that I have considered in the important respect that.
on the face of the material at the time, Mrs Adedayo admitted when interviewed that
she had inflated cash figures in the accounts to conceal her “borrowing” of Post Office
monies for her own purposes. This was, therefore, not a case where accounting records
had been altered to address shortfalls that were appearing on Horizon, and for which
the reliability of Horizon was therefore a central consideration. In Mrs Adedayo’s case,
that reliability was not an issue, and non-disclosure relating to the operation of
Horizon potentially less of an issue as a result.
182. That said, the consequence of the admissions made by Mrs Adedayo appears to have
been that the steps taken during the investigation to test Mrs Adedayo’s account, and
to determine whether there was evidence that she had behaved dishonestly and with
a view to gain for herself or to cause the Post Office loss, were very limited. Each of
these was an important element of the offence of false accounting charged. I have
similarly not seen any analysis of the evidence in relation to these aspects of the offence
ina charging decision, or subsequent advice about or review of the prosecution case.
The charging decision recognised that dishonesty was likely to be an issue, but there
was no analysis let alone a thorough analysis, of how dishonesty was to be proved.
Because of Mrs Adedayo’s pleas it appears that there was no real disclosure process to
speak of. In short, the whole process proceeded on the basis of what Mrs Adedayo had
admitted without consideration of the reliability of the evidence or that account.
1° RLITOO00185, paras. 14-16
191 POL00030561
192 POL00044370
70
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HUGHIE THOMAS
183. I Hughie Thomas had worked for the Post Office for a considerable period, first as a
postman between 1965 and 1992, and then as a sub-postmaster from 1994 at the
Gaerwen Post Office on Anglesey, North Wales. He was nearly 59 years old when he
was investigated.
184. On 29' September 2006, in the Crown Court at Caernarfon, he pleaded guilty to one
count of false accounting. It appears that he had originally also faced a charge of theft,
relating to an alleged shortfall of £48,450.87, but this was dropped. This was the first
case in which Gareth Jenkins provided an expert witness statement’. Mr Thomas’
written basis of plea stated that no blame was attached to Horizon and that he accepted
there was a shortage which he was contractually obliged to make good, but he did not
know how it had come about. On 6 November 2006, he was sentenced to nine months’
imprisonment.
185. In the proceeding before the Court of Appeal in Josephine Hamilton v Post Office!4,in
Mr Thomas was one of those in category A, in which the Post Office “... accepted that
in cases where the reliability of Horizon data was essential to the prosecution and conviction of
the appellant, and where Fraser J's findings showed that there was inadequate investigation
and/or that full and accurate disclosure was not made, the conviction may be held by this court
to be unsafe on grounds amounting to category 1 abuse.” In particular, in his case the Post
Office conceded!®:
i)There was no justification for POL imposing such a condition before accepting Mr Thomas’s
plea.
ii)POL had dropped the theft charge and so could no longer advance any case that he had stolen
the money. That should have left the way open to Mr Thomas to suggest that there was no
actual loss and he had only covered up a shortfall Horizon had created.
iii)An attendance note suggests that he was pressured into accepting a positive position on
Horizon as a condition of POL dropping the theft charge and accepting a plea to false
accounting.
5 POL00165905, para.3
194 [2021] EWCA Crim 577, at §71
195 [2021] EWCA Crim 577, at §115
71
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iv)It is arguable that this exerted undue pressure on the appellant to accept that Horizon was
“working perfectly” before POL would be prepared to drop theft which had the effect of
imposing this agreement on him as a prior condition to dropping theft and taking the plea to
the alternative charge.”
The investigation
186. The paperwork does not identify specifically who performed the roles of senior
investigator, investigator or disclosure officer for the purposes of the CPIA. As in
earlier cases, that means I cannot speak to whether those roles were undertaken, and
if so to what standard or by whom. The Investigation Summary! was prepared by
Diane Matthews, an investigation manager, who attended the post office when a
concern had been raised as to the operation of Mr Thomas’ sub-post office, and she
interviewed him. It is not clear whether she was being supervised by an officer in
charge and if so what they did or who they were.
187. On 13th October 20051”, an audit at the Gaerwen post office identified a shortfall, the
majority of which was in the “cash element of the balance. No loss or gain had been declared
in the previous night’s cash account for week 29”. The shortfall was £48,157.79. Mr Thomas
told the auditor Deborah Edwards! that he was glad to see her because they had been
encountering problems for a year or so with the computer. He said that he “ thought the
problem was with online banking transactions and that he had been paying out customers an
amount of money but the Horizon system was showing 0.00”. He also said that he balanced
each week by adding the amount of the shortage to the cash on hand. The auditor
checked with the Horizon helpdesk and obtained a report each hour to check
transactions. The one nil transaction that was recorded was attributable to a customer
not completing the transaction.
188. The investigators asked Mr Thomas to attend a voluntary interview. He agreed to do
so but asked for the interview to be delayed to allow his solicitor, who was not
available, to attend. Ms Matthews decided that the interview could not wait, and after
liaison with the police, they arrested Mr Thomas'. It is arguable that this was not
196 POL00046218 (redacted), POL00044862 (unredacted)
17 Summary POL00044885, investigation summary POL00044862
198 POL00047942
199 POL00044862
72
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compliant with the Post Office Arrest Procedure then in operation”. That identified
circumstances in which a suspect might be arrested as including where they refuse to
attend a voluntary interview or seek to leave before it is completed. That is not what
Mr Thomas did here. Under section 58, Police and Criminal Evidence Act 1984, he had
the right to a solicitor in interview, and the circumstances in which that right could be
delayed were circumscribed. Not wanting a delay in itself is not sufficient, and it is not
clear here why such a delay was an issue.
189. Mr Thomas was booked into Holyhead Police Station and interviewed there on tape.
The transcript”! shows that Mr Thomas was accompanied by a solicitor. It follows that
the failure to follow the policy and PACE ultimately do not appear to have been an
issue. It also records that he had asked for his Federation representative to attend, but
as this person was temporarily running the Gaerwen Post Office, this was not
considered appropriate. The Post Office Interviewing policy did recognise that the
interviewer could determine that a nominated friend was not appropriate. In general
terms, the interview was PACE compliant, and compliant with Post Office policy.
190. At the outset of the interview’, Mr Thomas expressed difficulties in remembering
past events without recourse to contemporaneous records. He again stated that he was
having problems with Horizon, which had been installed in 2001. In particular his
online banking reports showed several transactions with a nil amount. These were
occasions when he had paid money to a customer, but the system did not record the
value of that transaction. This led to losses and so he altered the cash on hand figures
in order to balance the accounts. He made clear he was responsible for the cash
accounts. Mr Thomas said that he had tried to make good the losses, but that had not
included the £498,000 shortfall identified at the audit. The alleged loss was due to
mistakes on Horizon and that he did not understand the system. He had made 13 calls
to the Horizon Helpdesk. There were questions during the interview to which Mr
Thomas answered “no comment”, but he generally then answered questions when
they were repeated.
200 POL00104760
201 POL00044864
202 POL00104758
203 POL00044864
73
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191. Both during the interview”, and in the Investigation report”, the investigators
advanced a number of explanations for the nil entries on Horizon to which Mr Thomas
had referred. Mr Bradshaw, the investigator, during the interview observed that it
could be the result of entering the PIN incorrectly or seeking to use the card to
withdraw more than was in the account. He observed in this regard “we will check that
out with the people at Horizon. Get the equipment in the office checked” . He added “it is my
opinion, and that’s what I believe what the zeros are. I do not believe the zeroes contribute to
the loss of the £48,000, however we will check that out to ensure what I am saying is correct”.
192. Ms Matthews repeated these (and further) possibilities in her report, and added “If
Mr Thomas has paid out funds in respect of the above transactions and a loss occurred then
this down to incompetence and not the failings of the Horizon system”. In keeping with Mr
Bradshaw’s approach in the interview, Ms Matthews does indicate that she was
“currently awaiting the results of the tests by Fujitsu on the Horizon system”. The summary
prepared when Mr Thomas was charged””, records “Fujitsu had no concerns regarding
the integrity of the data received from Gaerwen Post Office. Further the Horizon system had
not been alerted to any hardware problems...no problems were highlighted with regards to the
integrity of the data or the system. All nil on-line banking transactions examined have valid
reasons for the transaction having no value thatched to them”. It does therefore appear that
the investigators did pursue the question of the system operation at that stage, at least
by reference to the explanation that Mr Thomas had advanced in interview.
193. I An audit record query was issued by Graham Ward on 24th October 2005°8, and thus
not long after Mr Thomas was interviewed, requesting “a thorough examination of the
system in general with a view to refuting the Postmaster’s allegation that there is a fault with
the ‘nil’ transactions on car account/online banking transactions”. This appears to have
been addressed by Gareth Jenkins from Fujitsu”. The ‘Gareth Jenkins chronology’?!”
asserts that it was not until 10! March 2006 that Mr Ward requested ARQ data for a
number of cases where “PO Ltd are being challenged about the accuracy of the Horizon
204 POL00044864
205 POL00044862
206 Also her witness statement, UKGI00012481
207 POL00044885
208 POL00047740, and repeated in a further query in November 2005, POL00047749
209 POL00047895,
2! POL00165905, para.5
74
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system”. This included Mr Thomas’s case. This resulted in a draft statement from Mr
Jenkins on 22"4 March. His statement focuses on specific nil entries, but includes no
wider analysis of the operation of the Horizon system, although his statements in other
cases show him to have been able to do so, if the necessary data was provided. It
appears from emails quoted in the ‘Gareth Jenkins chronology’! that this was because
he was only asked for this limited approach, but whether or not this was the case will
depend on an assessment of the referenced material. An email dated December 2005?!2
suggests that the investigator had removed parts of the kit from the post office and
taken them to be stored by Fujitsu, “in case it is needed as evidence”.
194. In regard to checks by Fujitsu, it is of note that in an email in May 20142", in the context
of the Second Sight review, Martin Smith of Cartwright King requested that references
to Ms Matthew’s request of Horizon checks by Fujitsu be redacted from her
investigation summary before it was disclosed to Mr Thomas “if those test results cannot
be found. Such a sentence may well invite a request for disclosure of the test results. There may
also be a risk that the Applicant will suggest that the investigation was inadequate or
incomplete”. This suggests that the test results had not been disclosed at the time of Mr
Thomas’ prosecution, which is a topic to which I shall return.
195. The investigation report?!4 also shows that checks were made with the Horizon help
desk for calls from Mr Thomas, because it records that here had been no calls “in respect
of this issue”. An audit record query was issued by Graham Ward on 24! October
2005215, and thus not long after Mr Thomas was interviewed, requesting an analysis of
help desk calls, with a view to a statement being taken. A statement was taken from
Andy Dunks of Fujitsu2!* in this regard, which produced records of 13 calls from
Gaerwen post office to the help desk. Ms Matthews had obtained a record of the calls
that he had made, and had spoken to the service and contact manager, to whom Mr
Thomas had made no representations about the zero entries or other concerns.
21! POL00165905, paras.6-9
212 POL00068342
213 POL00046219
214 POL00044862
215 POL00047740
216 POL00046194
75
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196. In the context of the Mediation in 2013, the review also noted?!” limitations to the
information about contact between Mr Thomas and the helplines in relation to
hardware issues that appear to have occurred from the time of the installation of
Horizon onward. The fact that in 2013 the need for additional information in this
regard speaks to the degree of investigation of this issue in 2005. The Post Office
investigation report in 2014718 indicated that such helpline records as existed had been
reviewed, and the number of calls was set out.
197. Ms Matthews’ witness statement?!, prepared for the criminal proceedings in March
2006 also shows an analysis of the system for error notices and zero transactions, in
relation to the losses. These further enquiries were summarised in an addendum
report in December 20052. On the basis of these, she concluded that “no problems
highlighted with the integrity of the system. All nil online banking transactions examined have
valid reasons...”. This addendum appears to have followed advice from J. MacFarlane,
principal lawyer in the Post Office criminal law division, encouraging the making of
the checks with Horizon and asking that they be undertaken for a year, explaining “ if
it is to be the prosecution case that the offender stole the money it will be necessary to disprove
any claims that the loss could have been attributed to the nil transactions.”
198. In the context of the Mediation process in 2013, it was noted! that the review of the
nil value transactions undertaken during the Post Office investigation had been
limited to eight days, which it was observed was “a very small sample. Further analysis
on the rest of the period from 2000 to 2005 would assist in assessing if this is representative of
the online banking withdrawals”. In this context in 2014, in relation to the nil value
transactions, the Post Office report?” indicated that in 2005 there had been a review of
three periods of Horizon data over a 12 month period, in which 70 nil value
transactions were identified and assessed. The same explanations for nil value
transactions were advanced in 2014 as had been by the investigators in 2005. It
indicated that the transactional data for the time was no longer available. The ‘Gareth
217 POL00060995, para.3.32-34
218 POL00065188
219 UKGI00012481
220 POL00044867
221 POL00060995, para.3.25
222 POL00065188, p.2
76
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Jenkins chronology’? suggests that a positive decision was taken to confine the
enquiry to these limited periods. It also appears from the Chronology that a reference
in Mr Jenkins’ draft report to “there has been some sort of system failure” should be deleted
as this “seems to accept that failures in the system are normal and therefore may well support
the postmasters claim that the system is to blame for the losses!!!!". This is another area
where consideration of the referenced material is necessary.
199. No where in the material that I have seen was a need to investigate Mr Thomas’
finances identified. This was potentially relevant both to show the occasions when he
had, as he claimed in interview, made good losses that he had identified and to identify
whether there was any evidence of the losses actually going to his account. There was
also no evidence of any checks with the BSBC call line, as opposed to the Horizon
helpline.
200. The limitations to the investigation were well set out by the Court of Appeal when
they considered Mr Thomas’ case?*4. Holroyde LJ said: “Although some ARQ data was
obtained, it was a dip sample and it was only checked for evidence of zero transactions. The data
was not checked for bugs, errors or defects or for evidence of theft. The prosecution produced a
witness statement from Mr Jenkins explaining the Horizon system and producing some ARQ
data. Mr Jenkins produced three schedules from this data to explain that the zero transactions
were normal occurrences. Andrew Dunks of Fujitsu made a statement in which he said that
between 1 November 2004 and 30 November 2005, Mr Thomas made 13 calls to the Horizon
Helpdesk but that - in Mr Dunks’ opinion - none of the calls related to faults which would
affect the integrity of Horizon. Other material from Horizon was collated and put into schedules
but it appears there was no evidence to corroborate the Horizon evidence. There was no proof
of an actual loss as opposed to a Horizon-generated shortage.”
Charging decision
201. The charging decision appears to have been contained in a memo from J. MacFarlane,
the principal lawyer, dated 6 January 2006225 and based on the two reports from
Diane Matthews. Although the schedule of charges is not attached to the memo, it
23 POL00165905
224 [2021] EWCA Crim 577, at §151
225 POL00047780
77
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appears that the decision was to charge Mr Thomas with theft and false accounting.
The memo states that there was a realistic prospect of a conviction, but added “it is
considered that there is a medium prospect of success as the defendant appears to claim that the
losses was due to irregularities with the Horizon system. Records obtained to date would tend
to refute this.” It is not clear how this “Medium prospect” is reconciled to the evidential
test in the Code for Crown Prosecutors. There is also no reference to what evidence
was considered, beyond Ms Matthews’ summary, and there is no reference to the
public interest test at all.
202. In the context of the Mediation in 2013, the review of Mr Thomas’s complaint noted226
“the legal process pursued by the Post Office was commenced very quickly after the Audit in
October 2005. It is unclear what investigations took place to establish how the differences built
up and what the underlying cause of those differences may have been”. An insight,
potentially, into the approach of the Post Office in charging Mr Thomas is provided
by the Post Office response to mediation in 2014. In its response to the draft Second
Sight report” it observed that “the false accounting in this case means that it was not
possible at the time of these events, and it remains impossible now, to precisely identify all the
errors in branch which have caused a shortfall” . lt also observed that contractually, the post
master was liable for the shortfall however it was caused. This was also the view
expressed in the investigation report of the complaint?”8: “...the fact that the errors,
whether inadvertent or deliberate, have arisen in branch means that they, and any
consequential shortfalls, are the responsibility of the Applicant. This conclusion applies even if
the Applicant had not stolen the missing cash and stock”.
Disclosure
203. 1 have not seen any schedules of non-sensitive or sensitive unused material, and
therefore it is not clear what material was either disclosed or identified as fulfilling the
requirements of unused material in this case. Some insight is, however, provided by
the responses by the Post Office, which I have seen, to letters from those acting for the
defendant, which I have not seen.
226 POL00060995, para.3.75
227 POL00061771
228 POL00065188
78
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204. In February 2006”, after Mr Thomas was first charged, the Post Office provided the
defence with the spreadsheets prepared by the investigator in relation to error reports
and balancing figures and nil reports. They also provided the help desk call records.
The defendant then appeared for PTPH on 2"4 June 20062”, and the Judge ordered
immediate disclosure of the computer data to defence expert. This shows that this
underlying material had not been disclosed as part of the original disclosure, even
though the February letter makes clear that the defence were anxious as to the accuracy
of the Horizon records.
205. In July 2006, it appears that the Post Office afforded a defence expert access to “some
working Horizon kit” and documentation. This may have included that which was
disclosed at that time, namely cash accounts from October 2004-2005, the error notice
team records, previous audit reports and communications between Mr Thomas and
the contract manager.
206. In August 20067, the defence had requested disclosure of the daily record sheets
prepared by the defendant. These appear to be the written records that he had
indicated in interview were the best contemporaneous records of his actions. It is of
note, therefore, that these records had not been disclosed as part of initial disclosure,
but were being sought by the defence solicitors a month before the trial. During the
Mediation process in 201373, it was observed that “the Post Office removed all
documentation from the post office ...this made it impossible for Mr Thomas to establish what
had gone wrong”. In relation to this issue, the Post Office response to the draft Second
Sight report? did not agree that such documents had been reviewed, but added “there
is no documentation available relating to items taken by Post Office personnel during the
branch audit”.
229 POL00044888
230 POL00048011
231 POL00044886
232 POL00048156
233 POL00060995
234 POL00061771
79
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Second Sight Review
207. Mr Thomas completed a questionnaire for the Post Office Mediation Schemes in
which he complained about limitations to his training, the sufficiency of backup
through help lines and Horizon. In relation to Horizon he said “the system was
unforgiving and did not enable errors to be connected. I cannot explain how the deficits arose” .
This was supplemented by a more detailed questionnaire and response from Aver
Accountants who worked with him in the mediation process in December 2013.
208. The internal response to the Post Office from Cartwright King was to the effect that
the defendant had pleaded guilty and thus admitted that he had dishonestly falsified
accounting records. It was asserted that this “is overwhelmingly in support of the
contention that the loss was brought about by the Applicant's dishonesty’. The author of the
note observed that no concessions should be made in the mediation process as this
might undermine Mr Thomas's conviction (and potentially that of others). Email
discussion?” made clear that the concessions included that the Post Office would have
“done things differently” if Mr Thomas had been investigated in 2014. This is reflected
in the Post Office investigation report for the Mediation28, which maintained “that
Horizon and the design of its trading and accounting practices allow for transactions to be
accurately recorded and do not cause errors in a branch's account’ . It attributed the shortfall
to “the cumulative product of operational errors in the branch by the Applicant”. It is also
reflected in the Post Office response to the Second Sight draft report, in which it was
asserted that Mr Thomas’ voluntary guilty plea was “good evidence that he submitted
false accounts”.
209. The draft Second Sight report dated August 2014” noted that because of the lack of
contemporaneous documentation from 2005 it was not possible to say whether Mr
Thomas’ concerns about the operation of Horizon were valid. It was the conclusion
there and in its revised version in April 201574! that, despite his guilty plea, Mr
Thomas’ case was suitable for mediation.
235 POL00046193
236 POL00046215
237 POL00046213, POL00046214
238 POL00065188.
239 POL00061771
240 POL00061681
241 POL00046997
80
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The circumstances of the guilty plea
210. On 29' September 2006, Mr Thomas pleaded guilty to false accounting and the theft
charge was not pursued. A memo recording this hearing”? noted “ this was pursuant to
a basis of plea which makes it clear that no blame was attributed to the Horizon Computer
System. The defendant accepted that there was a shortage but he could not explain how it came
about. He accepted that as a Sub postmaster he is contractually obliged to make good the
shortage”. This plea and this basis appears to have followed from a discussion between
the principal Post Office lawyer, J. MacFarlane and their agents in the prosecution on
25th September 2006, which was as follows: “We discussed whether he would plead to false
accounting, I mentioned instructions that we would proceed with false accounting providing
the Defendant accepts that the Horizon system was working perfectly... Further instructions
are that the money should be repaid. Ann could inform Jack that some agreement should be
reached taking into account the above instructions.”
211. In the context of the Mediation in 2013, the review of Mr Thomas’s complaint noted”43
that “Mr Thomas considers that the approach taken in relation to the prosecution was both
aggressive and inappropriate, particularly regarding the option of them dropping one charge if
he agreed to plead to the other. Out of fear Mr Thomas agreed.” The Post Office investigation
in this context in 2014 observed’# that there was no reference in available
documentation to when or why the theft charge was dropped. In an email exchange
relating to a press statement about a documentary about Mr Thomas’ case in 20135,
the wording to answer the reasons for accepting a plea to false accounting was “cases
are considered on a case by case basis and held under constant review. In some instances charges
may change as new evidence is presented or as a result of representations by the defence. Any
decision is made having taken full account of the Code for Crown Prosecutors”. As the Post
Office observed in 2014, there is no evidence of any such review in relation to Mr
Thomas, and it is not clear what “new evidence” or “representations” underpinned
this change. What is clear is that there was a concern to prevent criticism of Horizon.
242 POL00048201
243 POL00060995, para.5.3
244 POL00065188, p.9
245 POL00066822
81
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212. — Inits consideration of Mr Thomas’ case“, the Court of Appeal observed of the memo
of 25% September 2006: “As POL accepts, there was no justification for imposing such a
condition before accepting Mr Thomas’ plea. POL had dropped the theft charge and so could no
longer advance any case that he had stolen the money. As POL accepts, that should have left
the way open to Mr Thomas to suggest that there was no actual loss and that he had only
covered up a shortfall that Horizon had created. As POL accepts, the attendance note suggests
that Mr Thomas was pressured into accepting a positive position on Horizon as a condition of
POL dropping the theft charge and accepting a plea to false accounting.”
Assessment
213. In terms of the investigation, therefore, it is right to note that Mr Thomas’s concerns
about the operation of Horizon were looked into, but it is also clear that there were
important limitations to that investigation which undermined its effectiveness. The
decision was taken to focus on the specific issue Mr Thomas raised of nil transactions,
rather than any wider consideration of the operation and reliability of Horizon. This
deliberate approach was adopted despite the fact that Mr Thomas made clear that he
was unclear as to what the problem actually was. The investigator, quite properly, had
recourse to Fujitsu, and received reassurance from them, but that again appears to
have focused on nil returns. Mr Jenkins of Fujitsu does not appear to have been asked
to review the underlying data more generally, but does appear to have provided
reassurance as to the integrity of the system despite that underlying data not being
analysed. In the same way, the snapshot of data that was examined was a very
restricted one, which was unlikely to provide a comprehensive or accurate
identification or understanding of the issues. That which was undertaken does not
appear to have been disclosed, and so its limitations were unlikely to have been
appreciated by the defence.
214. In the same way, the investigator quite properly made enquires as to contact between
the Gaerwen post office and relevant helplines. However, the information provided
was limited, and this was accepted rather than further enquiries for wider material
being made. The lack of enquiries into Mr Thomas’ finances is also a cause for concern,
as being,a reasonable line of enquiry that was not pursued.
246 [2021] EWCA crim 577, at §153-154
82
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215. The charging decision was in January 2006, and thus before the first explicit reference
to the Code for Crown Prosecutors being the test to be applied?4”. The test that was
actually applied does not appear to have been that contained in the Code. Whilst the
prosecutor stated there was a realistic prospect of conviction, she then identified there
being a “medium prospect of success”. This, therefore, appears to be same test as had
been applied by Mr Singh in the case of David Blakey. As in that case, it is difficult to
understand how a medium prospect of success and a realistic prospect of conviction
are to be equated, such that a decision was reached to prosecute. The charging decision
does not contain an analysis of the evidence relied on for that decision, and is silent as
to how, on the evidence, it was determined that dishonesty and appropriation were
established for the purposes of the offence of theft, and dishonesty and a view to gain
were made out for the offence of false accounting.
216. The limitations of that analysis are further illuminated by the approach of the Post
Office to the Second Sight review. It was considered that the post master was liable
however the loss had been occasioned, “whether inadvertent or deliberate”. It would
follow from this analysis that an inadvertent accounting error would be considered
sufficient to found a prosecution for false accounting where there was no deliberate
act and no dishonesty. That is not the law. The lack of detail in the charging decision
does not permit that interpretation of the decision-making process to be ruled out.
217. It is difficult to reconstruct the disclosure process from the material that I have seen.
However, it is clear that the underlying data was not initially disclosed, and that orders
had to be made in relation to this. The need for defence requests to jog along the
process thereafter is evident from the correspondence, and calls into question the
degree to which a properly conducted and reviewed exercise was being undertaken.
The facts that the express purpose of obtaining material from Fujitsu was to rebut the
defence assertion that there were issues of Fujitsu, and that references to a potential
system failure were removed from Mr Jenkins’ draft statement are not steps consistent
with the disclosure of material capable of undermining the prosecution case or
assisting the expressed defence of concern about the accuracy of Horizon.
247 POLO0104812
83
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218. The circumstances in which Mr Thomas pleaded were, as the Court of Appeal
recognised, deeply concerning, for the reasons that they gave. It is not clear why, other
than with a view to obtaining a plea, the theft charge was not pursued in September
2006 when it had been identified that there was sufficient evidence to support it in
January 2006 and the evidence had not changed in the interim. It remains my view that
in fact the evidence was not sufficient, but the correspondence does not acknowledge
that. Rather, despite accepting a plea to an offence where there was no actual loss, the
loss identified by the Horizon data was pursued, and repayment identified as a
precondition of the plea being accepted.
219. I Even more concerning is the other precondition of acceptance by Mr Thomas that there
was nothing wrong with Horizon. As the Post Office accepted at Mr Thomas's appeal
” ...the attendance note suggests that Mr Thomas was pressured into accepting a positive
position on Horizon as a condition of POL dropping the theft charge and accepting a plea to
false accounting.” It is difficult to see what proper basis there was for such an approach.
It does not reflect the Attorney General’s guideline for the acceptance of pleas or the
applicable version of the Code for Crown Prosecutors. It also did not reflect a detailed
analysis of the relevant Horizon data to establish that there was in fact no issue with
Horizon. In other words, it was requiring Mr Thomas to accept a position that might
not have been true, which he had not been placed in a position that he could test, and
which the Post Office itself had not tested.
SUZANNE PALMER
220. Suzanne Palmer was 46 years old when she was investigated, and had been the sub-
postmistress at the Grange post office in Rayleigh in Essex for a little over a year.
221. As with many of the other cases I am considering in this report, a shortfall was
identified when an audit was undertaken at Mrs Palmer's branch, in her case of
£14,712.11. She was charged with false accounting, contrary to section 17, Theft Act
1968, in relation to three weekly cash account records. Unusually in the series of cases
EXPG000004R
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that I am considering in this report, Mrs Palmer was acquitted on all three counts
following a trial at the Crown Court at Southend on 31st January 2007248.
222. Despite the fact that the case went to trial, there is very little material available that
would be relevant to the assessment of the investigation, the charging decision or the
undertaking of disclosure in Mrs Palmer's case.
The investigation
223. The investigation report? was prepared by Lisa Allen, investigation manager, in
February 2006. The material I have seen would tend to identify Ms Allen as both the
investigator and the disclosure officer, though I have seen nothing that asserts that.
No officer in charge is identified, or evident. Ms Allen was called to Mrs Palmer's post
office after an audit om 34 February 2006 identified a cash on hand discrepancy. They
then identified a further substantial discrepancy in relation to National Lottery scratch
cards. The total shortfall was £14,712.11. Mrs Palmer was spoken to by the investigator
and said she had recently installed an ATM at the branch and that the discrepancy was
explained by cash that had been used to stock this, and by scratch card sales that had
not been put through Horizon. It appears that Mrs Palmer was cautioned after this
exchange.
224. She was interviewed under caution on tape on 6‘ February 20062. Mrs Palmer
declined the assistance of a solicitor. It is not clear if she was offered the presence of a
friend, although a proper application of the Post Office Interviewing Policy?! required
that she should have been. She was asked about each of the two areas she had
mentioned when spoken to at the branch, namely the ATM machine and the scratch
cards. She said that she had used Post Office money to replenish the ATM. She said
that she had made a £2500 entry as cash on hand on the daily record sheets because
she had received a number of error notices relating to scratch cards. She had requested,
but not received, assistance from the Post Office about this, and had used the cash on
hand as she did not have sufficient money to meet the error notices and to address the
cash put in the ATM.
248 POL00052982
249 POL00054007
250 POL00053009
251 POL00194758
85
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225. The Investigation report®? noted “at the present time it is not known when the error notices
were processed so I am unable to identify the date at which Mrs Palmer inflated her cash on
hand figure by £2500. Again, she did not have the funds to cover this and continually accounted
from this in the cash hoping for a compensating error notice. However, she admitted that error
notices were usually received within 8 weeks and she had been holding this amount for many
months”. Ms Allen noted that Mrs Palmer had paid the money back, and that she
appeared not to have received training or an audit before February 2006, adding “she
has not received help when she requested it, and appears to have muddled through’. However,
the investigation report did not suggest any lines of enquiry as to Mrs Palmer's
finances, her contact with helplines or any investigation as to when she had received
error notices, why or whether they were connected to the scratch card issues she had
described.
226. When the case was reviewed by the Post Office criminal law department®, no further
evidence was requested. Once counsel was instructed, advice was provided as to
further enquires that were needed. These addressed some of the matters just
identified, such as the question of who Mrs Palmer had reported scratch card issues to
and when, when the error notices were issued, and what training Mrs Palmer had
received.
227. These were all reasonable lines of enquiry which should have been identified and
pursued following Ms Palmer's interview, at which her account was clear. They were
recognised as relevant by Ms Allen in her investigation report, and yet the fact that
they were raised again by counsel later underlines that they were not pursued. This is
significant because a number of them, such as financial enquiries and helpline checks
might well have led away from Ms Palmer as a suspect of crime. The fact that they
were not raised by the prosecutor is also of concern, given their duty (both by reference
to the CPIA Code and the Code for Crown Prosecutors) to advise as to lines of enquiry.
252 POL00053007
253 POL00052990
254 POL00053008
86
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Charging decision
228. — Jarnail Singh, Senior Lawyer in the Post Office criminal law division sent a memo on
10 March 20065 which appears to be a charging decision. Like other such memos, it
is a very brief document which opens with the conclusion that there is “sufficient
evidence to afford a realistic prosect of conviction of Miss Palmer for the offences of false
accounting”. There is no review of the evidence, or the factors that have led to the
conclusion. He does not request any financial, helpline, error notice or Horizon-related
enquiries, despite the content of the interview, to which he makes no reference. Indeed,
Mr Singh says “no further statements need be obtained at this stage’. There is neither
reference to nor analysis of the public interest in relation to the prosecution of a woman
of good character for false accounting where she had denied dishonesty and made
good the shortfall.
229. Counsel, Stephen John, was instructed” in July 2006. He provided an advice*’ shortly
after he was instructed which raised a number of lines of investigation, which had not
been pursued by the investigator. These are addressed under the investigation
heading. However, he did not raise any issue as to the charges, other than the details
of the particulars. This meant that another opportunity to review whether there was a
proper evidential basis to assert dishonesty was lost.
Disclosure
230. I have not had sight of any schedule of sensitive or non-sensitive unused material
(MG6D and MG6C). The investigator, Ms Allen, was asked to ensure that she prepared
one when the case was sent for trial. She was asked to send any outstanding unused
to the criminal law division, and to ensure that the schedules were available by the
time a defence statement was served. It is clear from the correspondence?’ that a
defence statement was served in November 2006. I have not seen the document itself.
This was forwarded from the criminal law division to the investigator, with a request
that the further disclosure sought be provided. This action was consistent with the
requirements of the 2005 Attorney General’s Guidelines (para.36), however that
255 POL00052990
256 POL00053003
257 POL00053008
258 POL00052989
87
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guideline also envisaged guidance from the prosecutor as to what further disclosure
was required.
231. In January 20072, which was the month when the case was due to be tried, the defence
sought further disclosure relating to the accounting records showing Mrs Palmer's
repayment of scratch card related monies. This is an area of enquiry that ought to have
been pursued at an early stage. It appears that prosecution counsel had accepted that
the records should be disclosed, but it is not clear whether they were held, and thus
whether disclosure was possible.
232. The defence also sought disclosure relaying to TRM. In relation to TRM, the defence
had sought disclosure of the details of the machine installed and details of its operation
and maintenance. Given the link drawn by Mrs Palmer in interview of her accounting
to the operation of the TRM, this was again a line of enquiry that ought to have been
pursued at an early stage. This correspondence does not suggest that this had
occurred, and it is thus not clear whether proper disclosure was possible in this regard.
233. In relation to cross-disclosure between cases, I have noted that in the context of the
case of Alison Hall in 2010, Dave Posnett, a Financial Investigator who was a fraud
risk manager until May 2010 said “ the scratch card process worked but some SPMRs had
trouble getting to grips and understanding it. The volume of TCs across the network were...a
concern”. It is important to note that Ms Palmer was investigated in 2006 and Mrs Hall
in 2010, and that Mr Posnett’s comments were in an email exchange in 2013, which
appears to have related to a review of cases, however it does raise the question as to
whether issues with scratch cards had been raised and yet no disclosure in relation
this issue was undertaken. This may have been because the issue only emerged later,
but I raise it as something that ought to be susceptible to clarification.
Assessment
234. Given the limited material available in this case, it is difficult to be categorical about
all of the areas that the Inquiry has asked me to consider. It is clear that a number of
259 POL00052997
260 POL00053000
88
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very important lines of enquiry, which had a particular tendency to exonerate rather
than to implicate Ms Palmer, were not pursued. She had described in interview issues
with error notices relating to scratch cards about which she had called the helpline,
and yet neither the error notices not the calls appear to have been checked, even
though the investigator recognised the relevance of doing so. Ms Palmer had denied
receiving money, and yet her finances were not investigated. None of these areas was
identified by the reviewing lawyer, who in fact advised that no further evidence was
required, even though they were flagged not only by the interview but by the
investigation summary which must, in the absence of evidence, have formed the basis
for the charging decision.
235. That decision, by reference to the brief advice that I have seen, concluded that there
was a realistic prospect of conviction for false accounting, but did not say why. It was
not a thorough or conscientious review. There was no review of the evidence, and no
identification of the evidential basis to establish dishonesty or conduct with a view to
a gain for Ms Palmer. There was no reference to, or assessment of, the public interest.
It is disappointing to see that when counsel was instructed, whilst they identified the
lines of enquiry that should have been undertaken they did not raise any concern as
to evidence to prove these important elements of the offence. In saying that, I note that
it appears that there was either no submission of no case to answer at the close of the
prosecution case, or any such submission was rejected by the trial judge.
236. In relation to disclosure, there is no evidence in the material I have seen of the actions
of a disclosure officer. I have not seen any schedules of unused material. When the
defence statement was received further disclosure was sought that the lawyer advised
should be provided (an appropriate action by reference to the Attorney General’s
Guidelines, para.36). Whilst the position is not clear, this does raise questions as to the
adequacy of the disclosure process to that point. The matters that were still
outstanding shortly before trial were matters that ought to have been investigated and
been the subject of disclosure at a much earlier stage. This raises further questions as
to whether disclosure was properly reviewed and conscientiously undertaken.
237. There is no evidence of cross-disclosure. It may be that the scratch card issue raised
here was not yet identified as a wider concern, as it was to be by 2010 when it arose
89
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again in the case of Allison Hall. I also note that Jarnail Singh was the reviewing lawyer
in this case as he had been in the case of Blakey where issues with the Horizon data
had also been raised, but that may well have been insufficient to occasion cross-
disclosure.
JOSEPHINE HAMILTON
238. Josephine Hamilton was 48 years old when she was investigated, and she had been
the Sub-Postmaster at South Warnborough since 2003.
239. On 19% November 2007, in the Crown Court at Winchester before HHJ Barnett,
Josephine Hamilton pleaded guilty to 14 counts of false accounting. The prosecution
case was that she had made false entries on Horizon, making claims about the presence
of cash on hand which were untrue. The prosecution agreed not to proceed with a
charge of theft (which was ordered to lie on the file) on the basis that the outstanding
shortage of £36,644.89 was to be paid by the time of sentence. On 4 February 2008,
Mrs Hamilton received a community sentence order for 12 months with a 12-month
supervision requirement. She was ordered to pay £1,000 towards the prosecution
costs.
240. Mrs Hamilton’s case was that she had not stolen any money or acted dishonestly. In a
prepared statement to the criminal investigation, she described a number of
inadequacies in Horizon which she had encountered. Between 23" October 2003 and
9t June 2006, she had made 26 calls to the Horizon Helpdesk. Between 3™ December
2003 and 5* January 2006, she had made numerous calls to POL’s National Business
Support Centre Helpline.
241. In the proceeding before the Court of Appeal in Josephine Hamilton v Post Office?*1,in
which hers was the lead case, Mrs Hamilton was one of those in category A, in which
the Post Office “... accepted that in cases where the reliability of Horizon data was essential
to the prosecution and conviction of the appellant, and where Fraser J's findings showed that
there was inadequate investigation and/or that full and accurate disclosure was not made, the
261 [2021] EWCA Crim 577, at §71
90
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conviction may be held by this court to be unsafe on grounds amounting to category 1 abuse.”
In particular, in her case the Post Office conceded?®:
i)It was unacceptable to hold open the threat of the theft charge on this basis.
ii) The investigator had reported there was no evidence of theft.
iii) It was irrational to require Mrs Hamilton to recognise that she had “had the money short
of theft” when theft was not to be pursued if the pleas to false accounting were acceptable.
iv)The arrangement lends itself not only to the allegation that the condition of repayment in
return for the dropping of theft placed undue pressure on Mrs Hamilton, but also more widely
that POL was using the prosecution process to enforce repayment.
v) Moreover, in circumstances where theft was not directly provable and the shortfall may not
have been a real loss, seeking to prevent Mrs Hamilton from making any criticism of Horizon
as part of her mitigation to the charges she was to plead guilty to was improper.
The investigation
242. The paperwork does not identify specifically who performed the roles of senior
investigator, investigator or disclosure officer for the purposes of the CPIA. The
Investigation Summary?* was prepared by Graham Brander, an investigation
manager, who attended the post office when a concern had been raised as to the
operation of Mrs Hamilton’s sub-post office, and interviewed Mrs Hamilton. He also
drew up the schedule of non-sensitive unused material and therefore appears to have
acted as both investigator and disclosure officer. No officer in charge is identified.
243. The circumstances, as he recorded them?, were that a concern had been raised about
the levels of cash holdings at the branch. This prompted Mrs Hamilton to report that
there were some problems at the branch to her Federation of Sub Postmasters
representative, who in turn reported this to the Rural Support Manager, who in their
turn reported this to the Area Office. As a result, on 9 March 2006 an audit was
undertaken at which Mr Brander was present. By this time, Mrs Hamilton had been
signed off work by her doctor. The cash on hand at the branch was found to be
262 [2021] EWCA Crim 577, at §113
263 POL00044389, POL00044389
264 Investigation report, POL00044389, POL00044389 and Summary of facts, POL00044485
91
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significantly less than recorded on Horizon, with a deficit on stock and cash of
£35,583.12.
244. I Mr Brander obtained Horizon printouts, including Branch Trading Statements. He
examined these, and noted in his report “having analysed the Horizon printouts and
accounting documentation I was unable to find any evidence of theft or that the cash figures
had been deliberately inflated.” He obtained additional hard copy and electronic
accounting materials and his further analysis did not deviate from this conclusion. As
part of the investigation, statements were obtained from the Inventory Support that
had identified the cash on hand level issue”, the Rural Support Manager who
received the call from the Federation representative“ and the auditor26’, Mr Brander?
himself made a statement dealing with his attendance, search and analysis of data
from the branch.
245. There was a delay before Mrs Hamilton was interviewed as she was unwell. Before
that interview actually took place, her solicitor contacted Mr Brander to say that Mrs
Hamilton would provide a prepared statement rather than answering questions. The
interview nevertheless took place on 5 May 20067”, with the prepared statement
handed over in advance”, Thereafter, during the interviews Mrs Hamilton made no
comment to all questions asked. During the first interview2”!, Mr Brander said that if
Mrs Hamilton would not explain the shortfall, he would have to speak to the others
who worked at her sub-post office. To that end, a statement was taken from a sales
assistant?” who made clear that they were not involved in balancing the accounts, and
had no training.
265 Rebecca Portch, POL00044483. She made two further statements, POLO0048507 and POL00048845,
which were obtained as a result of requests from the lawyers involved.
266Colin Woodbridge, UKGI00014787
267 Alan Stuart, POL00045426. This statement was in line with his earlier memo to the criminal law
division, POL00047874
268 POL00044484
269 POL00044390, POL00045409
270 POL00044495, POL00045406
271 POL00044390
272 June Partridge, POL00048049
92
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246. During the second interview”, Mrs Hamilton did confirm that she was content to pass
on her details of bank accounts. The Investigation report?” indicates that further
questions were asked about Mrs Hamilton’s financial position after the interview.
Prosecuting counsel?” did ask for Mr Brander to document this off-tape exchange with
Mrs Hamilton?”, but did not raise any question about the lack of such financial
information, and thus the absence of evidence of gain to Mrs Hamilton from any theft
from the Post Office.
247. In this regard, it is of note that those acting for Mrs Hamilton wrote in May 200727
indicating that they had obtained financial information from their client which ought
to have been collected by the investigators at the time of their investigation. The
material amounted to 14 lever arch files, and included personal banking, cash on hand
and Horizon records. This is disputed by the investigator?’, on the basis that Horizon
material was all electronically stored and hard copies were not necessary. This does
not address any personal financial material relating to Mrs Hamilton. The additional
material was viewed at prosecution counsel’s chambers by the investigator. He formed
the view that it did not provide an explanation for the shortfall”.
248. The prepared statement itself?8° said that Mrs Hamilton had received inadequate
training. In particular, in this regard she referred to the fact that “since taking over we
have moved to card accounts, electronic banking and all sorts of systems have been introduced.
It has turned a very small sub-post office into a bank for which I have received no training.”
Although she did not specify Horizon in this context, it is clear that this is what she
was referring to when she said “all transactions are now done on a screen. But the screen
would not let me question any errors”. She reported that after she had taken over there
had been two shortfalls identified on the system which she could not explain but
which she was required to repay. Neither triggered an audit. She also referred to
issues with Post Office procedures, which she described as “shambolic” but again not
to Horizon specifically.
273 POL00045409
274 POL00044389, POL00044389
275 POL00048827
276 Mr Brander provided a further statement to this end, POL00048846
277 POL00048665
278 POL00048710
279 POL00048913
280 POL00044495
93
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249. In terms of investigation of the issues raised in the prepared statement, a statement
was taken from Nigel Allen2!, the Contract and Service Advisor who appointed Mrs
Hamilton, and completed a training requirements?* form that indicated that she did
not need any training’. He otherwise dealt with the contractual requirements of sub-
post masters to make good losses. Similarly, Martin Drake, the Business Change
Manager, identified the changes to the Horizon system brought in during 2005 and the
training provided in relation to them. He also addressed the fact that there had been
no calls by Mrs Hamilton to the NSBC helpline in relation to branch trading. This is at
odds, to a degree, with the Investigation report?*° which records numerous calls,
including a number relating to reported losses.
250. The Horizon help desk was also addressed by Andrew Dunks of Fujitsu”. He
itemised and described the content and resolution of 26 calls to the helpline from Mrs
Hamilton’s sub-post office between January 2003 and March 2006. These included a
number of calls when the system was not polling.
251. In relation to Horizon, a statement was obtained from Penelope Thomas” of Fujitsu
to explain the operation of the system in relation to its use at a sub-post office. This
included the statement “the integrity of audit data is guaranteed at all times from its
origination, storage and retrieval to subsequent despatch to the requester. Controls have been
established that provide assurances to Post Office Internal Audit that this integrity is
maintained”. Having explained the audit process, she added “there is no reason to believe
that the information is inaccurate because of the improper use of the computer. To the best of
my knowledge and belief at all material times the computer was operating properly, or if not,
any respect in which it as not operating properly, or was out of operation, was not such as to
effect the information held on it.”
281 POL00044479. He made a further statement producing the form, POL00048844
282 POL00046833
283 I have also seen a further document relating to the training of those who take over a branch,
POL00045450, but I am not clear what its purpose originally was.
284 POL00044480
285 He produced documentation in this regard in a further statement, UKGI00014728
286 POL00044389, POL00044389
287 POL00044482
288 POL00044481
EXPG000004R
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252. In this case, the principal lawyer at the Post Office, Juliet McFarlane, requested further
enquiries. I have not seen her memorandum in June 2006, but have seen the
Investigator’s response in August 20067°. This shows that the manner in which
Horizon record cash on hand and a post office holding too much cash were explored.
Questions were also raised about Mrs Hamilton’s training. At the time of the
response2”, Mr Brander reported that he had not yet received bank statements for Mrs
Hamilton. I should note in passing that it was entirely appropriate for Ms McFarlane
to review the state of the investigation and identify lines of enquiry and evidential
requirements as she did.
253. I Once counsel was instructed, he did seek the obtaining of further evidence relating to
Mrs Hamilton’s training and any report by Mrs Hamilton of earlier shortfalls of the
kind she addressed in her prepared statement””!. This led to the Post Office lawyer
asking for further enquiries in May 20072, with an annotated version of the
memorandum in response, Again, it was entirely appropriate for counsel to have
done this.
254. In relation to the investigation, the Court of Appeal? observed: “POL accepts that this
was an unexplained shortfall case and that evidence from Horizon was essential to Mrs
Hamilton’s case. The ARQ data had been collected on a disc but the exhibits list shows it was
“not copied”, so that it is not clear whether the ARQ data was served. There was no
examination of that data for bugs, errors or defects and no examination for evidence of theft.
The unfiltered ARQ data is no longer available but it appears that there was no evidence to
corroborate the Horizon evidence. There was no proof of an actual loss as opposed to a Horizon-
generated shortage.”
255. It follows that where the investigation fell short was in the lack of enquiries that were
made as to the accuracy and reliability of the Horizon data that was at the heart of the
case. The data was not examined as it should have been, and it was unclear the extent
to which it was disclosed. Issues with Mrs Hamilton’s training appear to have been
289 POL00053084, POLO0048154
2% POL00053084 POL00048154
291 POL00048750
22 POL00048761
283 POL00059367
294 [2021] EWCA Crim 577, at §144
95
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addressed at a fairly superficial level (although this may have been as a result of the
answers to enquiries to Nigel Allen, rather than because no enquiry was made).
Similarly, financial investigations appear to have been limited, as the correspondence
from those acting for Mrs Hamilton in relation to hard copy financial material
illustrates.
Charging decision
256. I have not seen a charging decision in this case. This is concerning because experience
gained from the review of other cases shows that such decisions were often reached
on the basis of Investigation reports. That report in this case? stated “having analysed
the Horizon printouts and accounting documentation I was unable to find any evidence of theft
or that the cash figures had been deliberately inflated.” However, it went on to say “I am
unable to state what would appear to be the period of offending mainly due to the fact that Mrs
Hamtilton responded no comment to my questions. You may wish to consider a charge of theft
for the audit deficit... The only evidence appears to be the fact that the audit identified the money
as missing”. That report was written in May 2006. The lack of Mrs Hamilton’s bank
statements remained an issue in later exchanges between the lawyer and investigator
in August 20067.
257. This investigation report was provided to prosecution counsel, Richard Jory of 9-12
Bell Yard when they were instructed in advance of the Plea and Case Management
hearing in March 2007”. This led to the drafting by counsel of an indictment which
included a charge of theft. The email providing that indictment did not raise any
question as to the evidential basis for that charge, or refer to the Investigator’s
observations as to the lack of such evidence. Indeed, when he drafted an opening note
for trial, it asserted that “the truth is that the defendant had been inflating the cash on hand
figure at the post office over a period of several months prior to the audit on 9" March 2006.
She had done this in order to disguise her thefts of cash. She was the only one with responsibility
for cash accounting oat the premises”.
28 Investigation report, POL00044389, POL00044389
2% POL00053084
287 POL00048488
298 POL00048841
96
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258. The instructions provided to counsel”? also record that Mrs Hamilton had been
summonsed to attend court. I have not seen the summons application, and I cannot
therefore speak to whether the lack of evidence of theft, or any concerns relating to the
operation of Horizon were included. Counsel did seek the obtaining of further
evidence relating to Mrs Hamilton’s training and any report by Mrs Hamilton of
earlier shortfalls of the kind she addressed in her prepared statement. I have not
seen any communication from counsel indicating any awareness of any issue with the
reliability of Horizon, or any request by counsel to this to be investigated. Indeed,
again, when he drafted an opening note for trial*"!, it asserted that “there is no doubt the
money has been taken that the Post Office have therefore lost over £36,000. There is no
explanation as to why she falsified the accounts to represent that the case was in fact held at the
post office.”
259. The uncertainty as to the basis for theft as a charge highlighted by the Investigation
Report is echoed in the Initial Complaint Review and Mediation Scheme report?
prepared in the context of the Second Sight independent investigation of issues raised
by sub postmasters in 2014. Reviewing Mrs Hamilton’s prepared statement, this
observed™3 “without evidence of system error, this appears to be a case where the losses were
generated by user error or potential theft as there was a lack of management and Horizon access
controls in the branch”.
260. It follows that, like Second Sight, I have real concerns as to the basis on which she was
prosecuted for theft where the investigation had, correctly, concluded that there was
no evidence of theft in her case. In other cases, the charging decision was reached by
reference to the investigation summary and yet in this case it was decided to charge
theft where that summary recorded that there was no evidence of it. Moreover, that
summary was provided to counsel when instructed and this did not appear to have
resulted in a question from counsel as to whether theft was a proper charge.
299 POL00048488
300 POL 00048750.
301 POL00048841
302 POL00034551
303 POL00034551, p.2
97
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Disclosure
261. A schedule of non-sensitive unused material (equivalent to an MG6C) was prepared
by Mr Brander, the investigator, on 19% February 2007.3 It is a very short document,
although it appears that it may only be the first page of a longer schedule that has not
been copied. That which I have seen does touch on material generated by the interview
process, correspondence with Mrs Hamilton, logs relating to NBSC and financial
enquiries. It does not include any reference to Horizon operational checks. The
schedule was provided to the defence on 23"! February 2007 by the principal Post
Office lawyer, Ms McFarlane*®, and she recorded that there was nothing to disclose.
In fact, there is no annotation on the schedule itself relating to any such review.
262. After the plea and case management hearing, where the issue was raised about the
material the defence had obtained from their client which had not been obtained by
the investigation®, clarification was sought and obtained that this material would be
reviewed for disclosure purposes*”. Trial counsel, Richard Jory, advised that this
should be done.
263. In September 2010, a memorandum from Jarnail Singh, the Post Office senior lawyer,
to Mandy Talbot, the principal lawyer at Royal Mail Group*® identified a request for
disclosure in a case at Bradford Crown Court for disclosure relating to other cases
where Horizon issues had been raised. This included Mrs Hamilton’s case, but also
those of Seema Misra, Hughie Noel Thomas and others. Mr Singh asked whether there
were others. Ms Talbot replied saying that relevant material was in storage, and
commented “there are ongoing cases every month which raise the issue of Horizon so it’s a
movable feast. I am endeavouring to pull together a list of those cases currently with us where
allegations have been made in respect of Horizon. Most of these have ben on hold awaiting the
decision on Misra”. It is clear, therefore, that there was an awareness of a proliferation
of cases where Horizon’s accuracy was in issue, but the memoranda do not suggest a
sufficiently joined up approach to disclosure relating to them. It appears, therefore,
304 POL00048517
305 UKGI00014724
306 Referred to in the defence letter, POLPOL00048665, and the investigator's response, POL00048710
307 POL00048736
308 POL00055212.
309 POL00055894
98
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that cross-disclosure between cases where Horizon issues had arisen was not being
undertaken.
The circumstances of the plea
264. On 24 October 20075", Richard Jory, prosecution counsel, reported that defence
counsel had offered pleas to false accounting. His advice was “ there is evidence she has
taken the money, and that there is sufficient evidence to support theft, but Royal Mail may be
content with guilty pleas to dishonesty matters if she undertook to repay the amount of the
shortage at audit”. I have not seen an identified response from the Post Office lawyer.
However, I have seen an anonymous and undated “Fact Summary”*!! which states
“the charge of theft not to be dropped until full amount is paid by JH and if need be to recovery
losses prosecution will proceed by confiscation...JH guilty plea accepted on JH recognition that
JH had the money (short of theft) and plea on the basis that loss was due to computer not
working properly will not be accepted”. The summary also makes clear that payment had
been received from Mrs Hamilton before her pleas were in fact accepted.
265. Ina BBC Radio 4 interview in September 2014? Mrs Hamilton said “they said if I repaid
and pleaded guilty to 14 counts of false accounting they would drop the theft, so the decision
was made that I was less likely to go to prison for false accounting than I was for theft and
that’s what I did. If I didn’t plead guilty they would have charged with me theft, and I couldn’t
prove that I didn’t take anything. They couldn’t prove I did and at the time they told me I was
the only person that had ever had problems with Horizon, nobody else had...” It follows that
Mrs Hamilton’s understanding was that the prosecution had initiated the discussion
about pleas. This could be her misunderstanding, or it could be that her counsel and
prosecution counsel had discussed the matter between them, generated by either. That
would not be an unusual position.
266. What is unusual is the terms on which her plea was accepted. The Court of Appeal*!4
observed of these terms: “POL concedes that it was unacceptable to hold open the threat of
the theft charge unless Mrs Hamilton agreed to forego any criticism of Horizon. We regard this
as even more alarming in circumstances in which POL’s own investigator had reported there
310 POL 00049069
311 POL00057661
312 POL00101750
313 [2021] EWCA Crim 577, at §147
99
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was no evidence of theft. It was irrational and unjust to require Mrs Hamilton to recognise that
she had “had the money short of theft” when theft was not to be pursued if the pleas to false
accounting were acceptable. POL’s conduct gives a firm impression that the condition of
repayment in return for POL dropping the theft charge placed undue pressure on Mrs
Hamilton. It gives the impression that POL was using the prosecution process to enforce
repayment.”
Second Sight Review
267. Second Sight undertook an independent investigation of issues raised by sub
postmasters in 2014, and prepared a report in Mrs Hamilton’s case dated 19%
September 201434. As part of this process, Mrs Hamilton would have completed an
application form and a more detailed questionnaire. I have not seen those, but have
seen the Post Office response and the Second Sight Report. These show that Mrs
Hamilton highlighted, in relation to Horizon, issues as to transactions or adjustments
that were not entered by her, process issues at the end of each Trading period and
limitations to the audit trail. She also expressed concern about an issue with missing
cheques. In other areas, she complained about the inadequacy of her training, and
issues with the Helpline.
268. The Initial Complaint Review and Mediation Scheme report*5 prepared by the Post
Office considered each of Mrs Hamilton’s complaints and, in the main, indicated that
the issues had occurred too long ago for there still to be necessary records in place to
check them, as they were “outside of Post Office retention period” . It concluded that “the
evidence provides no support for the Applicant's claim that the Horizon System caused the
shortfall in the branch. Give that no systemic error has been identified in Horizon, the more
likely reason for the shortfall is user error or fraud which could be due to the lack of poor controls
in place...”. It observed that there was a lack of records of contact by Mrs Hamilton
with the helpline (although the report did then go on to itemise such calls), and
referred to these issues being compounded by her false accounting which “hid the
extent of the losses”.
314 POL00034836
315 POL00034551
100
EXPG000004R
EXPG000004R
269. The Second Sight report*"* concluded that the evidence did show Mrs Hamilton and
her staff to be inadequately trained. This contrasts with the stance taken by the Post
Office both in response to Second Sight!” and when it prosecuted Mrs Hamilton. In
other respects, it took the same approach as the Post Office, namely to conclude that
very few documents remained from 2003-6 and thus it was not possible to come to a
conclusion about Mrs Hamilton’s complaints. The Post Office response to the draft
Second Sight report*!8 maintained that the failure of Mrs Hamilton to report issues at
the time to the Helpline, and her false accounting to conceal losses, meant that the Post
Office could not address any issues at the time, and that she had not identified any
“systemic issues” with Horizon.
270. The issue with lost cheques received particular attention’. The Second Sight report?”
found this issue to be verified through the customers involved. In relation to this issue,
an email had been sent within the Post Office in January 2013%2!, which said that it was
“critically important that POL can prove that any failure (to reclaim funds from customers) is
due to errors and omissions by the SPMs rather than by POL”.
271. The difficulty with the Post Office stance in 2014 is that the issues raised by Mrs
Hamilton to Second Sight overlapped to a significant extent with the issues that she
had raised in her prepared statement in 2006. The tenor of the Post Office response is
that these things could have been checked back then but it is too long ago now. It
follows, if that be right, that these were reasonable lines of enquiry in 2006, and lines
that could have been pursued, for example to understand if there was an issue with
cheques that was not Mrs Hamilton’s fault but added to the apparent loss, and
whether there were issues with her training and/or the operation of the Horizon
system that could have been explored by reference to records then available.
316 POL00034836
317 POL00046851
318 POL00046851
319 Response document POL00040882, POL internal emails POL00059567, POL00059472, Spot Reviews
POL00002263, POL00060363, POL00029604, POL00060608
320 POL00034836
321 POL00059472
101
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272. Inthe Hamilton case file is a briefing note*”, dated March 2012, from Post Office Legal
Services, relating to Horizon claims that had by then been made by 5 former sub-post
masters that they had been dismissed for faults actually attributable to the system. It
noted that “there are no reported cases where data stored on Horizon system has been found
to be an inaccurate record of actions taken in branch... POL has rigorously tested the Horizon
stem, using independently assured processes and it has been found to be robust. Horizon has
been in successful operation for in excess of 10 years across the Post Office network (upgraded
in 2010) and during that time in excess of 20,000 sub postmasters have use it to successfully
perform millions of financial reconciliations”. Reference was made in this memorandum
to James Arbuthnot MP, as he then was, and there are records relating to a meeting
that he and fellow MP, Oliver Letwin, had with the Post Office about cases including
that of Mrs Hamilton*?3 in May 2012.
273. This briefing note is in contrast to an undated memorandum which records that
Second Sight have given “a strong indication that there are glitches in the Horizon
system” and that “Jo Hamilton may have a case”. The memo refers to the meeting with
MPs, which may be that in May 2012 with Messrs Arbuthnot and Letwin.
Assessment
274. Mrs Hamilton raised in her prepared statement when first questioned that there had
been issues with the Horizon system, of which she had complained at the time and
which were the explanation for the shortfall identified at audit. The investigation at
the time identified no evidence of theft or the deliberate inflation of figures. Despite
this, she was initially charged with theft and ultimately allowed to plead to false
accounting. This outcome is a matter of concern given that context.
275. The investigation did not follow the reasonable lines of enquiry raised by Mrs
Hamilton’s prepared statement fully to explore the adequacy of her training or her
contact with helplines, although each was investigated to an extent. Her financial
position was not fully investigated, which was of relevance to any theft allegation. In
particular, the reliability and accuracy of Horizon, and whether there were problems
322 POL00057503
323 POL00057656
324 POL00060219
102
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in its operation, was not investigated. The Second Sight Review and the Post Office
response to it highlights the shortcomings of the investigation at the time. In 2014 the
Post Office said that it was no longer possible to check aspects of Mrs Hamilton's
assertions relating to Horizon. This underlines, given that she raised them at the time,
that they could and should have been investigated then.
276. Despite the conclusion of the investigator that there was no evidence of theft or
deliberate false accounting, the decision was reached to prosecute Mrs Hamilton for
both offences. The actual decision is not available, but it is difficult to understand how
conclusions were reached to determine that there was evidence of dishonesty,
appropriation, or alteration of records with a view to gain in order to conclude that
there was a realistic prospect of a conviction for either theft or false accounting. The
prosecution proceeded on then basis that there was a loss to the Post Office, but that
belief does not appear to have been tested, or substantiated beyond the bare Horizon
data. No issue was raised as to whether the money could be traced to Mrs Hamilton,
or whether her explanation might be correct.
277. The disclosure process appears to have been rather cumbersome, with defence
requests being needed to generate disclosure. That said, as in other cases, the problem
was in large part that issues relating to the reliability of Horizon data and the operation
of the system were not investigated or appreciated, and thus disclosure did not follow.
In this case, the lawyers involved had been involved in earlier cases where Horizon
issues had arisen, including a number addressed earlier in this report. Moreover, a
question of the relevance of other cases specifically arose. Despite this, there is no
evidence either of cross-disclosure between those cases or that experience in those
other cases generated an investigation of or disclosure relating to Horizon here.
278. Especially when the experience of Hughie Thomas in 2006 is taken into account, the
circumstances in which Mrs Hamilton ultimately pleaded guilty to false accounting in
2007 are a cause for concern. On her account, she considered that this was a means to
avoid the risk of a conviction for theft, which offence was hanging over her even
though it was arguably unsustainable. She was also required to reimburse the monies
recorded by the Horizon system as lost even though the offence to which she was
pleading did not involve an acceptance of causing that loss, as opposed to covering it
up. In short, and as the Court of Appeal found, the process was geared to the recovery
103
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of funds by the Post Office, and the use of prosecution and the threat of prosecution to
secure that recovery. As in the case of Mr Thomas, the steps taken to prevent criticism
of Horizon in this context are concerning, not least because if it was believed that such
criticism was unfounded such measures would appear unnecessary, and if there was
a belief that they might be sustainable then disclosure relating to them, rather than
steps to supress comment, was required.
SUSAN RUDKIN
279. Susan Rudkin was the wife and assistant to Michael Rudkin, a Sub-Postmaster in
Tbstock, Leicester. She was 53 years old at the time that the decision was made to
prosecute her.
280. Susan Rudkin was charged with a single charge of theft, contrary to section 1, Theft
Act 1968, which alleged a theft, between January 2007 and 20 August 2008, of
£43,894.15. The charge related to an audit which found cash shortages to that amount.
Ms Rudkin made admissions to taking cash out of the Post Office into her bank account
and not paying them all back. According to the summary of facts’, she took the
auditor to one side and said that the safe would be around £40,000 short. The audit
identified a cash shortfall of £43,761.17.
281. She pleaded guilty on 23 March 2009 in the Burton-on-Trent Magistrates’ Court to
theft. She was sentenced at the Crown Court at Stafford to 12 months’ imprisonment
suspended for two years (with 300 hours of unpaid work and an electronically
monitored curfew). Mrs Rudkin’s conviction was overturned on appeal to the Crown
Court at Southwark (Her Honour Judge Taylor and 2 justices) on 11 December 2020,
after an unopposed application to vacate her plea. The Post Office did not contest her
appeal.
Investigation
282. The paperwork does not identify specifically who performed the roles of senior
investigator, investigator or disclosure officer for the purposes of the CPIA Code. Once
325 POL00044623
104
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again, therefore, it is difficult to identify the extent to which the roles were undertaken.
The Investigation Summary**6 was prepared by Mike Wilcox, a Fraud advisor who
attended the post office when the audit had identified the shortfall, and interviewed
Mrs Rudkin. Michael Rudkin, who was in fact the sub-postmaster, was Chair of the
Negotiating committee for the National Federation of Sub Postmasters*”.
283. When the issue was identified, Colin Price, Fraud Advisor3?8, contacted Mr Rudkin
and, according to the Investigation Summary, agreed with him that Mrs Rudkin would
be interviewed on the premises without a solicitor. This interview occurred on 20%
August 2008, and was tape recorded*”. It happened at her home and the transcript
states “no legal representation required”. A form CS001 was provided that set out Mrs
Rudkin’s rights, and she confirmed that she did not require a solicitor. Mrs Rudkin’s
son was exceptionally invited to be present at the interview as “moral support” or as
a “friend”, The Interviewing policy™ indicates that a friend will normally be a Post
Office employee or union representative, and that they must not have involvement in
the investigation. Given that both of his parents were potentially under investigation
it is not clear how that applied to Mrs Rudkin’s son.
284. What is significant, as a context for the investigative and prosecutorial decisions that
followed is the following:
(a) Investigating officers took the equivalent of a pocket notebook of a significant
comment at the scene (the admission of missing money) and had the suspect sign
it to confirm its accuracy. Such an approach would accord with good practice.
(b) Mrs Rudkin indicated that she had been running the post office since her
husband's Federation responsibility had reduced his ability to do so, and she had
been struggling to do so. In particular, since a robbery of the post office two years
earlier she had been frightened and let go of the reins. There had been losses, and
326 POL00046485
327 In his Federation Capacity, Mr Rudkin assisted Stanley Fell, one of the appellants in the Hamilton
appeals [2021] EWCA Crim 577, at §391, 395
328 Colin Price was the Investigation Manager for the case of Tahir Mahmood - see POL00067404.
329 POL00065295
330 POL00104758
105
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she had diverted money to make those losses up, inflating cash to match the
trading statement. She said the problems had started with the shortages. She said
that she had then also taken money to cover business bills.
285. This wasa case, therefore, where in interview Susan Rudkin accepted false accounting,
and that she would inflate the cash. She also accepted borrowing money from the Post
Office to put into her business account and then not paying those back. She said the
largest amount she had taken at a time was £1000. She said she would enter fake
figures onto the system for the cash to match what Horizon thought was there.
286. In terms of other investigative steps, there was a search of the property, which the
Investigation summary indicates was undertaken with the consent of Mr and Mrs
Rudkin*!,_ A search record was compiled%%, as was required by the Post Office
searching policy%*. Bank statements were obtained in this search, and financial
information obtained using financial details also obtained in the search. The deposits
into Mrs Rudkin’s bank account were obtained but she was not re-interviewed about
them. The Lloyds TSB account did confirm cash paid in of £14,929.91 between 10 June
2008 and 9 July 2008 alone.*¥ The bank records did show attempts at points to repay
the monies*>.
287. At least in respect of the financial investigation there has been kept a financial
investigation policy log recording major decisions**. The financial investigation
showed:
(a) Financial checks into Mr and Mrs Rudkin, their accounts and their assets.
(b) Restraint orders were obtained in relation to Mr and Mrs Rudkin’s accounts in
September 2008, before she was charged*”.
331 POL00046485
332 POL00049974
533 POL00104752, revised POL00104828, POL00104849
334 POL00045266
335 POL00046485
336 POL00056762
337 POL00056762
106
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288. Following receipt of the financial statements, Mrs Rudkin was invited for a further
voluntary interview**, but it appears this never occurred because Ms Rudkin declined
on mental health grounds. Moreover, the invitation occurred on 21 January 2009 only
after a charging decision had already been made on 3 October 2008. In this regard, the
Casework Management Initial Tick List*° records that the investigation file was
submitted for a charging decision on 15% September. It follows that the charging
decision was sought and made without the completion of the financial investigation.
289. Following the authorisation of the allegation of theft, a reinvestigation occurred into
the robbery which took place in January 2006. The prosecuting authority was notified
of this, and that Mrs Rudkin had failed to attend the further interview. The police were
invited to reconsider the robbery allegations but having reviewed the matter
considered there was no evidence to support the suggestion she fabricated the offence
to steal monies and declined themselves to re-interview Mrs Rudkin™°.
290. In terms of consideration of the Horizon system, the paperwork I have seen shows a
number of earlier records relating to accounting/record irregularities, of at least some
of which the investigators appear to have been unaware, in that there is no reference
to them in the investigation material that I have seen. In particular:
(a) There was also an incident report from 2004 about the operation of Giro
Withdrawal’s at this Post Office*¥!. There is no indication the investigation team
were aware of these at the time.
(b) There had been a concern raised about a shortage in a suspense account and
phantom transactions in January 2005*?.
(c) There is also evidence of a complaint by Michael Rudkin to Paul Hemley, RLM in
2005 as to issues with Horizon balancing*%, but again there is no evidence the
investigation team were aware of it.
338 POL00046502
389 POL00051409
40 POL 00046522
341 POL00093806
342 POL00046470
343 POL00060416
107
EXPG000004R
EXPG000004R
(d) There was a previous financial audit in 2006™4, which had identified the potential
for fraudulent use of the Horizon system but did not identify issues with the
system itself.
(e) There is contained within the papers a Horizon Spot review*5 in which Michael
Rudkin (Susan Rudkins’ husband) asserted he had observed on 18 August 2008
someone alter a branch's foreign currency cash balance on Horizon without
logging on. In a Spot Review Summary for a number of cases™®, it is noted that
there is no evidence to support this, and that it may have referred to test data rather
than live data.
291. I have indicated that the investigators appear to have been unaware of at least the
majority of these issues relating to Horizon, because there is no reference to them in
the investigation material that I have seen. However, the relevant records were all
provided by the Post Office, and must therefore have been in records available to the
Post Office. This calls into question the degree to which if a review was undertaken in
relation to the operation of Horizon at Mrs Rudkin’s post office whether such a review
would have highlighted a history of concerns. Similarly, it was conceded in December
2020 when Mrs Rudkin appealed that she had made “a number of calls to the helpdesk
relating to Horizon and balancing issues”, which similarly do not appear to have been
investigated at the time. It was recognised on appeal that “the reliability of Horizon in
her case was therefore essential”, but again this does not appear to have been recognised
at the time.
Charging decision
292. The Casework Management Initial Tick List*” records that management consent to
prosecution and legal advice in relation to prosecution were sought on 15" September
2008, and that advice was received on 7 October.
$44 POL00060449
345 POL00031333. The review is dated 2012.
346 POL00029604
347 POL00051409
108
EXPG000004R
EXPG000004R
293. Ihave had sight of a charging decision™8, dated 34 October from Jarnail Singh, Senior
Lawyer in the Post Office Criminal Law Division. It is very sparse, simply stating that
the evidence is sufficient to afford a charge of theft, and that false accounting charges
may be considered later. There is no analysis for either of these conclusions. In terms
of an analysis of theft, the central question would have been whether Mrs Rudkin had
in fact appropriated property of the Post Office and/or whether she had acted
dishonestly, rather than alternatively sought in panic to conceal accounting issues
without acquiring any property.
294. Despite this, the advice did not explicitly consider in any detail the financial
documents provided by Ms Rudkin, or the possibility that some but not all of the loss
was the result of theft. This analysis was essential if it were properly to be determined
that there had been theft and if so what the actual loss by theft was. Additionally,
whilst the prosecution is not required to accept the account given by the suspect, it
would have been expected that a charging advice would have considered its effect on
their case. It is clear that the charging decision was made without reference to any
unused material or statements, given that there is reference to the need for both in the
advice. There is no indication of awareness of issues with Horizon in the papers
relating to the charging, although Mr Singh had by this time dealt with a number of
cases in which the reliability of Horizon had been called into question¥’, and no
reference to any concern about the earlier robbery in 2006.
295. There is limited consideration to the public interest, beyond a reference to the serious
nature of the offending. There is no reference to the offers to pay differences back. In
that regard, it should be noted that the Investigation summary*® records “I am
concerned that Mr Rudkin has given an indication that there will be no prosecution when the
money is repaid”. It does not appear that this was considered in the decision to charge
as a factor relevant to the assessment of the public interest, and as to whether an
application relating to abuse of process could arise if a promise not to prosecute was
being reneged upon.
348 POL00046488
4° He was involved, for example, in Blakey and wrote a memorandum about other cases, including
Hamilton.
350 POL00046485
109
EXPG000004R
EXPG000004R
296. There was also no reference, in the context of the public interest, to Mrs Rudkin’s
mental health. This was a live factor at the time that she declined to be re-interviewed
in January 2009 but does not appear to have been identified earlier. Representations
were made in February 2009 as to the suspect’s mental health. These were responded
to by the Post Office on the basis that the public interest was reviewed but given the
seriousness of the offences a positive decision was taken to proceed. There is a note
dated 6 February 2009 by the lawyer, Jarnail Singh, to the effect that the case should
proceed in view of Mrs Rudkin’s admissions. This appears to have arisen from a report
from the investigator, Mike Wilcox. It appears that the legal team advised that matters
proceed without reference to the further enquiries to the robbery in order to avoid
delay.
297. In April 2009351, Michael Rudkin wrote to George Thompson, General Secretary of the
Federation, about the private prosecution of Susan Rudkin, complaining about the
approach that appeared to have been afforded to the public interest test given that
Michael Rudkin had agreed to repay the funds. This appears to have occurred after a
guilty plea was entered but before sentence. Again, the considerations that he raises
were not explicitly addressed in the consideration of the public interest.
298. The charging memo*? indicates that Mr John Dove, Solicitor Advocate was to be
instructed to prosecute the case. I have seen his instructions, none of which refer to
issues with Horizon, or issues relating to disclosure. I have not had sight of any advice
from counsel before Mrs Rudkin entered her guilty plea.
Proceedings
299. The Casework Management Initial Tick List*3 records that the case file was sent for
process, in relation to the obtaining of a summons against Mrs Rudkin by the
Investigation Manager, on 8'» October 2008. I have not seen the application made for
the summons.
351 POL00060421
352 POL00046488
353 POL00051409
110
EXPG000004R
EXPG000004R
300. Mrs Rudkin pleaded guilty on 23 March 2009 in the Burton-on-Trent Magistrates’
Court. Her case had been transferred there from the Coalville Magistrates’ Court
because of her husband’s connection to the latter as a magistrate. There is
insufficient detail in the papers available to say more about the proceedings, save for
the confiscation proceedings, pursuant to the Proceeds of Crime Act 2002. In that
regard, Henrietta Paget of 9-12 Bell Yard was instructed for the confiscation
proceedings*®. The brief to counsel asserted that a cash deficiency of £43894.15 had
been discovered on audit, and that the theft related to this sum.
301. It appears that during the confiscation proceedings the Prosecution sought to suggest
that the gross turnover of the business was the benefit figure for the purposes of
confiscation**”. This was contrary to the prosecution’s position at the time of sentence.
It is apparent that the Prosecution did ultimately resile from this, but it did so with
some reluctance. The investigating team** continued to pursue the full figure,
seemingly without considering the fairness of this approach, and dismissing as
irrelevant the fact that Mr Rudkin had already started to repay the loss. This continued
until advice was received from original prosecuting counsel*®? that he had given what
arguably amounted to an assurance as to the amount being sought (namely the loss
figure). Counsel for the confiscation proceedings*® advised appropriately on this, and
a confiscation order**! was subsequently made by agreement. The prosecution took an
entirely neutral position at the confiscation enforcement stage*.
Disclosure
302. IT have had no sight of an unused material schedule which is reflective of the fact that
the plea was entered in the magistrates’ court. There was no evidence in the charging
354 POL00052094
355 POL00052077
356 POL00052094
357 POL00052095
358 POL00052228
359 POL00052226
360 POL00052292
361 POL00052343
362 POL00055844
1m
EXPG000004R
EXPG000004R
decision of any consideration of the position in relation to disclosure except a generic
paragraph to say that schedules should be obtained?.
303. During the course of their investigation, it appears that the investigating team
proceeded on the basis that some of the matters were losses and others were thefts that
was cash paid into the bank account. Although there was a plea at an early stage it is
not apparent the evidence underpinning this approach was disclosed or that any
attempt was made to amend the charge to reflect that. I have had sight of various call
logs between the sub post office and the Post Office, including relating to issues with
Horizon transactions (but in relation to user error or confusion). It does not appear this
material was ever disclosed. Such material was arguably relevant at least to how much
of the money lost was actually stolen. It is not clear if the full audit figures or
underlying business figures were served prior to sentence. The underlying business
records seem to only have been served in confiscation proceedings. Again, these were
potentially relevant to how much of the money the Crown could say was stolen rather
than losses that were mis-accounted for.
304. The brief to counsel** for the confiscation proceedings asserted that a cash deficiency
of £43894.15 had been discovered on audit, and that the theft related to this sum. There
is no mention to issues with, or suggestions of issues with the workings of the Horizon
system or disclosure in these. There was no reference to, or evidence of any provision
of disclosure, albeit that is not unusual at the confiscation stage.
305. In the subsequent 2014 review by Cartwright King®®, the Post Office retained the view
that there was no evidence that Horizon failings contributed to the loss, and was
clearly aware of potential issues with cross-disclosure to other cases. That advice took
a concerning approach to post-conviction disclosure focusing on the consequences of
disclosure rather than whether it was required. The Post Office clearly altered its view
in this regard by the time that Mrs Rudkin appealed in December 2020. It was
recognised that material relating to the reliability of Horizon, and material showing
that Mrs Rudkin had raised those concerns, was central to proper disclosure.
363 POL00046488
364 POL00052094
365 POL00046579
112
EXPG000004R
EXPG000004R
Assessment
306. This case differs from others that I have considered both because Mrs Rudkin made
admissions that she had diverted monies to cover losses, inflating cash figures to cover
this, and that she had also taken money to pay bills. She did, therefore, accept a degree
of theft, and certainly made admissions to false accounting. However, she was also
denied that she had appropriated anything like the total loss identified. The
investigation appears to have accepted this, and identified a case based on a
combination of some monies taken and others not. The alternative reasons for the
losses, and evidence of those losses were not identified as a line of enquiry, and the
possibility of errors in the system not explored. This was despite the fact that records
now available do show incident reports and complaints relating to the operation of the
system, and contemporaneous concerns about its reliability.
307. The investigation’s interpretation of the evidence does not appear to have been
reflected in the decision just to charge theft. That decision was reached without any
recorded analysis of whether that charge, and the key elements of that offence, were
made out on the evidence. It was also reached without any recognition that there were
lines of enquiry relating to the system, and financial records, that had not yet been
resolved. Also of very real concern here, there was no recorded assessment at all of
whether prosecution was in the public interest. On the one hand, theft or false
accounting by an employee, representing a breach of trust, would often be in the public
interest. However, here the fact that the monies were being repaid and the very real
concerns for Mrs Rudkin’s mental health (both factors identified in the Code for Crown
Prosecutors as tending against prosecution being in the public interest), were not
addressed at all.
308. In terms of disclosure, the early stage at which Mrs Rudkin pleaded guilty provided
little time for any significant disclosure process to be undertaken. Nevertheless, the
material I have seen shows that there was scope for material to be disclosed relating
to what the underlying material did or did not show in relation to losses, the reliability
of those records, the contact made with helplines and Mrs Rudkin’s finances. She was
certainly allowed to plead without disclosure in these regards, which is an issue both
for those who represented her and those who prosecuted her.
113
EXPG000004R
EXPG000004R
PETER HOLMES
309. I Mr Holmes was employed for over 13 years as the post office manager at Jesmond Sub
Post Office near Newcastle. He was 67 years old when he was investigated after a
shortfall of £46,049.16 was identified at an audit in September 2008. The Sub-
Postmaster Sunil Khanna was not prosecuted, but on their later account to the
Complaint Review and Mediation Scheme* came close to being so.
310. On 224 December 2009, in the Crown Court at Newcastle upon Tyne, Mr Holmes
pleaded guilty to four counts of false accounting, asking for nine similar offences to be
taken into consideration. He had originally been charged with theft, but was acquitted
of theft by direction of the judge. On 29t January 2010, he received a community
sentence order with a three-month curfew.
311. In the proceeding before the Court of Appeal in Josephine Hamilton v Post Office*’, Mr
Holmes was one of those in category B, “in respect of whom POL accepted that this court
may properly find that the prosecutions were an abuse of process within category 1, but resisted
the appeals insofar as they are based on category 2 abuse.”
The investigation
312. The paperwork does not identify specifically who performed the roles of senior
investigator, investigator or disclosure officer for the purposes of the CPIA. The
Investigation Summary*8 was prepared by Robert Daily, a fraud adviser who
attended the Jesmond post office following an audit which found cash shortages of
£46,0049.16. Mr Daily in fact prepared two such reports. The first, dated October
2008%° was a shortform, and I have primarily relied on the second, dated January
2009%7°. He also prepared the schedule of non-sensitive unused material, and therefore
appears to have been acting as investigator and disclosure officer. No officer in charge
is identified.
366 POL00061839
367 [2021] EWCA Crim 577, at §75
368 POL00050832
369 POL00050334
379 POL00050832
114
EXPG000004R
EXPG000004R
313. The investigation reports indicate that the shortfall had been identified the shortfall on
18 July 2008. Mr Daily had attended the branch the next day and spoken to Sunil
Khanna, the sub-postmaster. Mr Khanna said that he employed Mr Holmes to run the
post office, in which Mr Khanna said he played no real role. He did not have a Horizon
User ID. He said that he had not been shown a branch trading statement since Augst
2007, and had been unaware of the shortfall. It does not appear that this interview with
Mr Khanna was recorded, and certainly I have not seen a transcript. Mr Khanna was
further questioned later, which interview was recorded.
314. I Mr Holmes was himself then spoken to by Mr Daily and his fellow investigator, Chris
Knight. He was cautioned and offered the services of a solicitor or a Post Office friend,
and declined (by reference to forms CS0001-3, which I have not seen). This approach
was consistent with the Post Office Interviewing Policy*”!. It does not appear that this
initial interview was recorded. The policy does allow this to occur where recording is
impractical”, It is not clear why this would have been the case here. Mr Holmes
agreed to his car and home being searched, and a number of items were seized at this
home, including his personal bank records, a Horizon transaction log and three
Horizon receipts. The recovery of these items was documented, which was in
accordance with the Post Office Searching policy”, and that record later disclosed3’4.
As part of the investigation%”, credit checks and land registry checks were conducted
as were checks of bank accounts. No luxury items were identified.
315. Mr Holmes was then interviewed on 19t September 2008%76 at the home of Sunil
Khanna, which was also his office. He again declined the assistance of a solicitor or a
friend, and this was again documented. Mr Holmes agreed that Mr Khanna was sub-
postmaster in name only and had no involvement with the operation of the Horizon
system. The interview explored fairly fully the possibility of the shortfall being the
result of theft by others. He was asked about how end of month balances were
completed and named a colleague who assisted. By reference to the PTPH form37,, in
371 POL00104758
372 POL00104758, para.3.2
373 POL00104752
374 POL00051527
375 POL00050832
3% Transcript of first interview, POL00066743, and second interview, POL00066738
377 POL00051952
115
EXPG000004R
EXPG000004R
which she is listed as a witness to be called, a statement was obtained from her as part
of the investigation.
316. Mr Holmes was asked about the shortfall. He said he had no idea what had happened,
or where the missing cash had gone but he did then assert that shortages could be an
issue with Horizon or with malfunctioning equipment. He accepted making the two
false cash declarations that were the subject of the charges, but believed that the
shortfall on each occasion was something that the computer had done, or failed to do.
He admitted this behaviour for a period of six to seven months. He also raised
specifically issues with the Horizon system for three months about nine months
previously. He said he had not told the sub-postmaster of the issues because he did
not want to cause problems, and did not get on with Mr Khanna’s brother, Anil. He
denied, emphatically, stealing the money, and said that he had hoped an error notice
would come back in relation to it. He was asked about the bank statements that had
been recovered from his home and accounted for the deposits there recorded. Mr
Holmes consented to further personal financial material being obtained.
317. It appears*78 that Mr Holmes was also then subject to an interview undertaken by Sunil
Khanna, the sub-postmaster and his brother Anil Khanna. This interview was
undertaken on 22 September 2008, and thus prior to either of those persons themselves
being interviewed by the Post Office investigation in October 2008. Mr Holmes
declined to sign the note made by Mr Khanna of this interview. According to that note,
he agreed that the shortfall was recorded, but said “I can only think it’s the computer” .
He said that they had been having problems with Horizon, but he had not informed
Mr Khanna or the Post Office about this. According to this note, in contrast to his
interview with the investigators, Mr Holmes said he had not shown Mr Khanna any
monthly balance sheets because they would have revealed the “substantial deficits” . It
appears irregular that Mr Holmes was interviewed by the sub-postmaster in this way,
and that Mr Khanna went into his own interview with the advantage of having done
so. That irregular conduct was independent of the Post Office investigation.
378 POL00066624
116
EXPG000004R
EXPG000004R
318. Sunil Khanna was interviewed under caution but a full transcript has not been
provided. I have seen an interview note®”, the status of which is not clear. He was
accompanied by Anil Khanna, his brother, as “interview friend”. It appears from the
note that Anil Khanna was also answering questions. It seems unsatisfactory that a
potential witness, named by Mr Holmes (Anil Khanna), was permitted to play a part
in the interview of an alternative suspect to Mr Holmes. Indeed, the Interviewing
policy? specifically identifies that the friend should be independent of the
investigation and not a potential witness which the brother of the suspect was.
319. I Mr Holmes having raised the operation of Horizon, it is clear that some enquiries were
made. The Horizon Support Desk call logs were obtained as were Horizon transaction
logs. The reason for doing so, as stated by the investigator**!, was “to ascertain when Mr
Holmes started producing false cash declarations and subsequently false accounts”, rather
than to test the working of the system. Whilst Horizon data and Business Trading
Summaries relating to cash on hand were obtained, it is clear from their report**? that
the view of the investigative team was that no one would have allowed such
significant shortfalls to arise over an extensive period without reporting them. This
was described as “incredulous”.
320. In that regard, the investigator also said “Mr Holmes made allegations the Horizon
equipment was faulty over a period of time in early 2008. A request has been made to ascertain
if this was the case”. By the time of the updated report in January 2009* it was asserted
“this has been checked and the allegations are unfounded” . No detail is provided as to what
checks and what results in the report and there is no reference to unused material in
this regard in the schedule that produced**. This lack of reference includes a lack of
reference to any Error Notices or Transaction Corrections where the system identifies
accounting errors. The Mediation Scheme report relating to Mr Khanna* alludes to
there being 31 such notices which highlighted “poor in branch accounting procedures” .
379 POL00050356, POL00066624
380 POL00104758, para.3.5
381 POL00050334
382 POL00050832
383 POL00050832
384 POL00051527
385 POL00066637, p.7
117
EXPG000004R
EXPG000004R
Charging decision
321. I have seen a short charging decision**. It concluded there was a realistic prospect of
conviction but did not include a detailed evidential analysis. Having reached a
conclusion that reflected the terminology of the Code for Crown Prosecutors, it went
on to state that there were medium prospects of success. It is not clear how that is
squared with the proper test to be applied, and which the Post Office had by this time
expressly adopted. There was no explicit consideration of public interest
considerations. It did not set out why a charge of theft was appropriate or on what
basis it was said theft could be proven rather than false accounting. It did not address
how dishonesty was to be established. The public interest is not mentioned.
322. There does not appear to have been any consideration of unused material prior to the
charging decision, and it appears to have been made on the investigation case
summary. It appears**” the case may have initially been put on the basis that Mr
Holmes had taken the money and deposited it into his wife’s cake making business,
but a defence forensic accountant refuted this suggestion. It is of concern that a defence
expert was required to refute this, rather than it being addressed by the Post Office’s
own investigation into Mr Holmes’ financial position, and thus an investigation as to
whether he had in fact obtained financial benefit.
323. That expert report came from Peter Smith**, an accountant instructed for the defence.
The purpose of the report was to investigate whether Mr Holmes had been correct in
interview to explain that £48,000 that had passed through his bank account related to
his wife’s business rather than the Post Office shortfall. He concluded that Mr Holmes
had been correct. He itemised financial material made available by Mr Holmes that
demonstrated this. Mr Holmes had, of course, consented to the Post Office
investigation having access to just such material.
324. The defence solicitors sent the report to the Post Office on 24h August 200958 and
invited them to review their theft allegation which was the sole count on the
386 POL00050912
387 By reference to the Mediation Scheme report for Sunil Khanna, POL00066637, p.5
388 POL00052103
389 POL00052389
118
EXPG000004R
EXPG000004R
indictment at that stage*”. They asserted “it is clear from the accountant’s report that no
monies amounting to £46,049.16 have passed through our client's bank account and that the
monies you initially questioned are form our client's wife’s small business.” They proposed
that the prosecution offer no evidence on the theft charge and add a count of false
accounting to which Mr Holmes could plead guilty.
325. The report was clearly provided to the investigator, Robert Daily*", who observed: “I
cannot ascertain how much from the business has been deposited without a full list of daily
takings for the period. I have only received extracts” . It follows, I would observe, that such
a detailed financial review had not been undertaken, or requested, before the defence
report was received and that the theft charge had been formulated without such a
review. Mr Daily added “whereas the expert report views the amounts in to the Barclays
account is the takings from the business my view is that the manner in which the deposits was
made suggests differently”, It is not clear what this means.
326. The Principal Lawyer in the Post Office Criminal Law Division, J. McFarlane?
forwarded this to counsel instructed, Paul Caulfield of Trinity Chambers in Newcastle.
She stated “instructing solicitor’s view is that a charge of theft is quite proper in this case.
Should the defence maintain their stance then it may be that the financial investigator would
be in a position to obtain further financial information regarding the defendant's account.” She
raised both the need to instruct an accountant and a possible charge under the Fraud
Act. In keeping with this stance, on 8't September 2009 she informed the defence that
“the plea on the basis suggested is unacceptable”. As with the investigator, the prosecutor
at this stage was seeking to maintain a charge on the basis of work that had not been
identified as necessary before the charging decision was taken.
327. It appears from a response to it in December 200%% that counsel did raise questions
about the sufficiency of the evidence on a theft allegation, although I have not seen
their advice. The response quoted the investigator and the results of his checks on the
defence report. This indicated that “I could find no sufficient evidence to bring any part of
the expert report into question”. This appears to be at odds with Mr Daily’s immediate
399 POL00052105
391 UKGI00014638
382 POL00066162
393 POL00053679
119
EXPG000004R
EXPG000004R
response to the report in August 2009, and calls into question the rejection of a plea to
false accounting by J. McFarlane at a time when the defence report had not been
checked, or the underlying material considered.
328. It is not clear what changed so as to lead to the plea being accepted on 22°¢ December
200994. The memorandum just quoted may provide an explanation in that it appears
that the investigator, despite his earlier scepticism, had concluded that there was no
way to prove theft. My concern with this is that it had never been clear how this was
to be proved, and that obvious line of enquiry had not been pursued with any rigour.
Disclosure
329. A schedule of non-sensitive unused material (equivalent to an MG6C) was compiled
by the investigator, Mr Daily, in May 20095. It appears to include relevant material
that would have been held, and which was not served evidence. However, it does
betray a series of areas where the investigation was limited, or the resulting disclosure
of unused material was limited in consequence. For example, a comparison of the list
of financial material reviewed by the defence accountant®® to this schedule shows that
either the prosecution had not undertaken necessary detailed analysis of Mr Holmes’
position or, if it had the material, had not disclosed that which was relevant to the
issues in the case in that regard.
330. Similarly, the Mediation Scheme report relating to Mr Khanna*” refers to an earlier
issue with the balancing of accounts for the branch, which resulted in correspondence
with Mr Khanna and remedial action being taken. There is no suggestion that Mr
Holmes was involved in this. There is no reference that I have seen to any disclosure
of material relating to a potential alternative suspect for accounting issues being
considered. That said, on Mr Holmes’ own account Mr Khanna had no role relating to
Horizon during the period when the shortfall arose, and so the value of any such
disclosure would have been limited, and a decision not to disclose it would have been
justifiable.
394 POL00054149
395 POL00051527
3% POL00052103
397 POL00066637, p.6
120
EXPG000004R
EXPG000004R
331. At times the descriptions in the unused schedule** appear too short to allow for a clear
understanding of what is held. For example, item 12 reads “notebook entry”. This
contrasts with the requirements of para.6.9 of the CPIA Code that the description
should make it clear the nature of the item and whether it needs to be inspected. On
the face of the document that I have seen this was not picked up on as an issue when
the schedule was reviewed, as it should have been, by reviewing lawyer. That said, it
does not appear that any such review occurred given that the schedule does not appear
to have in fact been endorsed by a reviewing lawyer. Despite this, it appears from the
covering letter by which the schedule was sent to the defence that the decision was
taken that everything on that MG6C was not disclosable*”. This all embracing position
seems surprising. It appears that at least the snapshot (item 6) and branch trading
statements (item 7) would have been disclosable.
332. The defence statement was served on 16" July 20094, a few weeks after the plea and
case management hearing!, at which it was made clear that the defendant would
plead to false accounting. The defence statement similarly made that clear, but also
explicitly raised issues with Horizon as to the source of the loss of money. I have seen
no correspondence, or actual disclosure that was generated by the defence statement.
That position appears to be supported by a post-conviction disclosure review* which
concluded that no further disclosure was required. This appears to have been on the
basis that the lenient sentence indicated that the defendant was sentenced of falsifying
the account to cover discrepancies that he had not caused.
Assessment
333. As in other cases, the suspect in interview raised issues with the operation of the
Horizon system as part of his explanation, and additionally in this case the actual sub
postmaster alluded to earlier incidents. Despite this, this reasonable line of enquiry
was not pursued. The investigator asserted in his second report that Mr Holmes’
allegations had been shown to be unfounded, but no material was served or disclosed
398 POL00051527
399 POL 00066232
400 POL00052178
401 POL00051952
402 POL00066586
121
EXPG000004R
EXPG000004R
to show what checks had been undertaken or in what way they had refuted those
concerns. This was an important issue where, as was at that the stage the case, it was
being alleged that Mr Holmes had stolen the money, rather than sought to cover up
losses recorded on the system for which he was not responsible and which he could
not explain. It is not clear on the material that I have seen how the former position was
ever thought to have been reached by reference to the enquiries that were actually
made.
334. Similarly, this calls the charging decision into question. The decision itself, which was
brief and barren of analysis either factual or legal, does not begin to assist as to the
answer to that question. It is of concern that advice as to further enquiries, such as
financial enquiries, only emerged when then the charging decision was called into
question by the defence expert report. The questions so belatedly raised should have
been asked by the prosecutor of the investigator before a theft charge was brought.
The reluctance to concede that a plea to false accounting was sufficient is also, in these
circumstances, concerning.
335. The disclosure schedule was either incomplete or betrayed an incomplete
investigation, or a combination of both. A number of the disclosure decision reached
by reference to that schedule appear to me to have been in error. I have also not seen
evidence of disclosure being made, as it clearly should have been, in response to the
defence statement. There is also no evidence of evidence of cross-disclosure of other
cases where complaints about Horizon, even though the reviewing lawyers had
personal knowledge of a number, at least by reference to those cases I have considered
above.
SEEMA MISRA
336. Seema Misra was 32 years old when she came under investigation, and the Sub-
Postmaster at West Byfleet.
337. On 21s October 2010, following a trial in the Crown Court at Guildford before His
Honour Judge Stewart and a jury, Seema Misra was convicted of the theft of £74,609.84.
She had previously pleaded guilty at a plea and case management hearing on 20
122
EXPG000004R
EXPG000004R
March 2009 to six counts of false accounting. The operation and reliability of Horizon
was central to the issues at trial, with extensive expert evidence adduced on both sides.
This was the “case in which Mr Jenkins had the most extensive involvement and the only case
in which he was called to give live evidence at trial.”* It is right to say that the material
relating to this case is much more extensive than for most others, and its analysis is
therefore rather fuller.
338. On 11%" November 2010, she was sentenced to 15 months’ imprisonment for the theft
and six months’ imprisonment concurrently on each count of false accounting. On 8
July 2011, a confiscation order was made in the sum of £40,000. She was ordered to
pay compensation of £40,000 to POL, to be paid out of the amount recovered by the
confiscation order.
339. In the proceeding before the Court of Appeal in Josephine Hamilton v Post Office, Mrs
Misra was one of those in category B, “in respect of whom POL accepted that this court
may properly find that the prosecutions were an abuse of process within category 1, but resisted
the appeals insofar as they are based on category 2 abuse.”
The investigation
340. The paperwork does not identify specifically who performed the roles of senior
investigator, investigator or disclosure officer for the purposes of the CPIA. The
Investigation Summary*® was prepared by Adrian Morris, investigation manager who
attended the post office after an audit at the West Byfleet branch on 14* January 2008
led to the accusation that she was responsible for a shortfall of £74,609.84. He also
interviewed Mrs Misra and was involved in the investigation thereafter. It appears
that much of the later investigative work, and the role of disclosure officer, were
performed by a colleague of Mr Morris, Mr Longman.
341. By reference to auditor's reports“, the audit appears to have been a routine one, and
the shortfall was identified in particular in relation to cash figures and cash in pouches,
but also in other areas. Mrs Misra was not initially present during the audit, which
4°5 POL00165905, para.12
404 [2021] EWCA Crim 577, at §75
405 POL00044589, POL00044537
406 POL00045005, POL00058550
123
EXPG000004R
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involved the auditors obtaining a Horizon snapshot. By the time she had arrived, the
shortfall had been identified by reference to this snapshot. She told the auditor that the
account would be “between 50K and 60K short”. She said that former staff members had
taken £89,000 but she had not reported this as she feared the branch would be closed.
Instead, she had made good some losses and “confirmed all balances had been adjusted to
show a clear trading position at the end of each period”. There were two cash pouches
recovered which contained remittance advices but not cash, and Mrs Misra said she
had been hoping to obtain cash from her family to address these.
342. The investigators spoke to Mrs Misra at the branch, and completed the CS001
documentation in relation to her attending a voluntary interview and declining the
assistance of a solicitor. She was cautioned and a note taken of comments she made
about needing to count the shop takings (there being a shop as well as a post office on
site), and her agreement to use such takings to repay the post office where she could.
There was, therefore, compliance with the requirements of the Post Office
Interviewing Policy“
343. A search was undertaken at the premises, which was documented. The Post Office
Searches policy*’ was, on the face of it, therefore complied with.
344. Mrs Misra was interviewed on tape and under caution at the premises. In interview,
she said there were losses of £89,000-£90,000 due to staff thefts. She said that these
were staff who they had inherited from the previous owners and that she had reported
a theft of £1000 to the police. She had carried the loss since 2008, and had been paying
the loss back. She admitted that she had falsified the figures for cash on hand and
falsely declared cash in pouches and currency awaiting collection in the branch trading
statements for two branch trading periods. She added that she was afraid she would
lose her job if she revealed the true figures. She did not expressly raise the operation
of Horizon as a factor in the shortfall, but did say that aspects of the shortfall were
unexplained. The Post Office placed great store on the fact that Mrs Misra had not
made specific allegations against Horizon at this stage in their approach thereafter.
4°7 POL00104758, or its successor POL00104867
408 POL00104752, or its successor POLO0104849
409 1st interview POL00044543; 24 interview POL00044544
124
EXPG000004R
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345. Mrs Misra gave consent for her finances to be investigated and banking records
obtained‘. The schedule of non-sensitive material (akin to a MG6C)""! does not reveal
any evidence of enquiries being made in this regard. Where the allegation was that
Mrs Misra had taken money from the Post Office an examination of her bank accounts
for evidence of that money would seem a reasonable line of enquiry.
346. Initially, the investigator identified that it was only the audit staff and investigators
who attended that needed to make witness statements‘, Such statements were indeed
obtained*!’, The initial case summary*" also lists as relevant documents the interviews
and related documentation, the audit report and related material, and the trading
statements obtained from Horizon for the audit. There was also a statement taken from.
Elaine Ridge*!, the contracts manager who had been identified as the discipline
manager in the investigation report#!*, She addressed the operation of the Horizon
system in very basic terms to provide context for the auditors’ findings, and
addressing the terms of Mrs Misra’s contract as sub-postmaster.
347. In terms of other investigative steps, a number of matters raised by Mrs Misra’s
interview appear only to have been investigated after Mrs Misra’s case was in
preparation for trial. For example, it was at the plea and case management hearing that
the prosecution sought particulars as to which members of staff Mrs Misra suspects of
theft”, and such enquires were then made shortly before Mrs Misra’s original trial
date*!8s, Mr Longman, the investigator, made a statement in May 2009 to record the
enquires that had been in relation to two of these suspects. It involved enquires at their
addresses and in relation to their addresses with the council. On 20'* May 2009419, Mr
Longman made an application to the Surrey Police for information about the report of
theft that Mrs Misra had said in interview that she had made. A second defence
#© POL.00044589, POL00044537
411 POL00050750
422 POL00044589, POL00044537
413 Noverre (auditor) POL00044609; Allen (security advisor) POL00050566, POL00044611, Longman
(security adviser) POL00045495, Morris (the investigator) POL00044612
414 POL00044613
415 POL.00050646
416 POL00044589, POL00044537
47 UKGI00014857
418 POL00051342
#9 POL00051508
125
EXPG000004R
EXPG000004R
statement in January 2010"? again raised the need for disclosure of this information
from Surrey Police, which suggests deficiencies in the pursuit of this line of enquiry.
348. The investigation of the operation of Horizon appears only to have occurred after the
issue had been raised by the defence when Mrs Misra’s case was first listed for trial in
June 200%!. This in turn appears!” to have followed the publication of an article in
Computer Weekly in May 2009, ‘Bankruptcy, prosecution and disrupted livelihoods -
Postmaster fell their story’, which raised “a potential IT problem”. This is further
addressed in the context of disclosure below. However, it is of note that in February
2010, over 9 months after the Horizon issues were raised by Mrs Misra, David Jones of
Fujitsu’ commented “one concern is that POL have not apparently requested transaction
data for West Byfleet for the period and transactions in question. This would normally be
provided in previous cases and would include Fujitsu extracting of files from the system to
enable us to provide details of transactions.”
349. I Gareth Jenkins also addressed this issue in March 2010!%, when he commented “! do
appreciate that it is up to the prosecution to prove Horizon is reliable rather than the defence to
prove it isn’t, but it is always difficult to prove there are no errors - particularly over such a
long period of time. Surely it is down to the Post Office investigators to get to the bottom of
exactly where there is anything in dispute. At that point I might be able to assist with some
technical knowledge to help interpret the various logs to support such areas of dispute”.
Charging decision
350. The investigator, Mr Morris, recommended?* that Mrs Misra be prosecuted given that
she had admitted falsifying the branch trading statements and was the only person
who completed them. He also asserted that she had benefited from doing so, but did
not specify how. There had been no financial investigation relating to Mrs Misra at
that point, and so this would appear to be an identification that the concealment of a
420 POL00054237
421 See attendance note, POL00051773
422 POL00165905
43 FUJ00122713
424 POL00054252
425 POL00044589, POL00043034
126
EXPG000004R
EXPG000004R
shortfall had allowed Mrs Misra to keep her job. In short, this was an unspecified
recommendation of charging false accounting.
351. On 1s April 200846, Jarnail Singh, senior lawyer in the Post Office Criminal Law
Division completed a brief charging decision, which confirmed that “ the evidence is
sufficient to afford a realistic prospect of conviction” on the charges in the schedule”. In
short, this involved a theft charge covering the whole shortfall of £74,609.84 over a
period from 15 November 2006 to 14* January 2008 and false accounting charges for
the branch trading statements through that period. Mr Singh observed “if Mrs Misra
pleaded guilty to the false accounting then it is recommended that the prosecution in respect of
the theft is not proceeded with”.
352. This was arguably a concession to the absence of actual evidence of theft and consistent
with an approach whereby theft was charged to encourage pleas to false accounting.
That also accords with the fact that the charging decision includes no analysis of the
evidence, and does not suggest any evidence be obtained that was not identified in the
investigation report. In particular, there is no discussion of, or request for the obtaining
of evidence relating to, where the money, if stolen, had gone. There is also no reference
to the public interest test at all.
353. This decision was communicated back to the investigator on 28 April 20088, with a
request that he obtain the summons to initiate criminal proceedings. The approach to
the false accounting charges as an acceptable basis for a plea is also reflected in the
instructions to counsel after Mrs Misra was sent for trial4°, which indicated that “a
guilty plea is anticipated” .
354. Counsel instructed, Warwick Tatford of 9-12 Bell Yard, was asked“ to draft an
indictment. The indictment that I have seen‘! reflects the schedule of charges
approved by the lawyer#, and thus includes a theft charge as well as false accounting
charges. I have not seen any advice from counsel at that stage which addresses this.
426 POL00049658
427 POL00045010
428 POL00053364
#29 POL00044585
430 POL00044585
431 POL00044538
482 POL00045010
127
EXPG000004R
EXPG000004R
The instructions to counsel suggest that he had the investigator’s report and initial case
summary at that stage, neither of which evidenced the loss beyond the Horizon
records.
355. Ultimately, it appears that pleas to false accounting were not sufficient and that a
conviction for theft was sought in addition.
Disclosure
356. The Court of Appeal*3 used material from the case of Mrs Misra to illustrate “ ...other
indications of the approach to Horizon issues taken by at least some POL personnel involved
in the conduct of these and similar prosecutions.” The disclosure process in relation to this
case was protracted and complicated. It can properly be divided into (a) an initial
stage, including initial prosecution disclosure and the defence statements, (b)
disclosure in the context of the service of expert evidence, (c) disclosure in the run-up
to the trial and (d) post-conviction disclosure.
(a) _ Initial disclosure
357. A schedule of non-sensitive material (akin to a MG6C)*4 was prepared by Jon
Longman, who was one of the security advisers present with the investigator Mr
Morris on 14* January 200845. It is not clear, beyond the terms of this schedule, if he
was the disclosure officer. The schedule is dated 23" January 2009, a month after Mrs
Misra’s first appearance at the Magistrates Court on 19» December 2008%. The
schedule lists various items of paperwork connected with the investigators’
attendance on 14* January and their interaction with Mrs Misra. It does not include
any reference to any material generated by financial enquires in relation to Mrs Misra,
any investigation of the theft she reported to the police, or any investigation of the
operation of the Horizon system in relation to the charge period.
483 [2021] EWCA Crim 577, at §91
434 POL00050750
485 His witness statement in that regard is POL00045495
486 Date given in the brief to counsel, POL00044585
128
EXPG000004R
EXPG000004R
358. An updated version of the schedule, dated 8 September 2010*” (and thus shortly
before the trial), also included material relating to checks on witnesses, the earlier theft
report, transaction corrections, helpline calls and training records. These limited
additional entries reflect aspects of ongoing disclosure reacting to repeated defence
requests, which are detailed below. They were mainly items that should have been on
the schedule from the outset. An insight in relation to the disclosure of training records
comes from a discussion in January 201448 at which Simon Clarke of Cartwright King
observed “if someone says bad training and bad backup - wrong- not disclosable” .
359. Mr Longman also completed a schedule of sensitive material (MG6D)#° and a
disclosure officer’s report (MG6E)#° on the same date. Each is blank. There is no
annotation on any of the schedules to indicate that they had been reviewed by a
lawyer. However, when disclosure was provided to the defence on 17** February
200941, following Mrs Misra being sent for trial on 13 February*2, Mr Singh, the
senior lawyer, recorded that “at this stage there no prosecution material which meets” the
disclosure test.
360. A defence statement was served, dated 20‘ March 2009. It denied theft and asserted
staff thefts had been responsible for the losses. Mrs Misra indicated she was guilty of
false accounting. She again made no assertion as to the operation of the Horizon
system. At the plea and case management on the same date, the defence were directed
to provided better particulars of which members of staff were suspected of theft. On
9t April 20094 such particulars were provided, naming three people. An attendance
note from the senior lawyer Mr Singh, dated 21st April 2009, indicated that he had
asked the investigator, Mr Longman, to take witness statements from each. He
subsequently made a statement setting out the enquiries that had been made.
437 POL00055217
438 POL00066893
489 POL00050752
440 POL00050751
441 POL00050942
422 Date given in the brief to counsel, POL00044585
443 POL00051331
44 UKGI00014857
445 POL00051342
446 POL00062550
129
EXPG000004R
EXPG000004R
361. Mrs Misra’s case was first listed for trial in June 2009 before Recorder Bailey. An
attendance note“? from the lawyer Mr Singh records that the trial for theft was aborted
at the start, when Mrs Misra raised issues of Horizon reliability and suggested that
errors in the system accounted for some of the losses, albeit she continued to assert
there had been staff thefts. The basis for the defence position was recorded as internet
material “which has history of the Post Office cases which has resulted in criminal prosecution
where there has been doubts about the Horizon systent”. The note records that prosecution
counsel suggested that it would be unfair if the defendant made allegations about the
Horizon system in evidence because there would not be material before the jury to
evaluate them.
362. Evidence was obtained by the Post Office in relation to Horizon’s operation shortly
after this, in the form of a statement from Andrew Dunks of Fujitsu, dated 24 June
20098, which identified the number of calls to the Horizon helpline from West Byfleet
since June 2005. He observed that the calls were routine and of average frequency. He
did not produce the records of the calls, and there were repeated defence requests
before he finally did so in March 2010”. It appears, however, that even then the disc
containing the records was found to be blank*°. A statement was also taken from a
sub-postmaster from Teddington to say that he had no reason to doubt the reliability
of Horizon. It has to be said that a technical review of the Horizon data for evidence
of error would have greater value that his estimation.
(b) Disclosure relating to expert evidence
363. I Numerous disclosure requests followed including about Horizon. These started with
an application, pursuant to section 8, CPIA, dated 30'» September 200945!, which served
the first report from Professor Charles McLachlan‘? regarding Horizon. He observed
that he was wholly reliant on data provided from Fujitsu to assess Horizon’s operation
and observed “the Post Office provided no opportunity for independent investigation of the
operation of the Horizon system under test conditions or using video observation in a live
447 POL00051773
448 POL00051960.
449 POL00054518
450 POL.00054680
451 POL00052462
452 POL00045518, POL00055315
130
EXPG000004R
EXPG000004R
environment...the Post Office provided no opportunity to understand and review the systems
and processes in the Post Office Ltd operation environment outside Horizon that could give
rise to transactions in Horizon.” Despite this, he identified a number of potential issues
with the system. As the Court of Appeal*3 summarised the position, “Professor
McLachlan advanced a series of hypotheses including whether the user interface gave rise to
incorrect data entry, and whether the system failed to process transactions properly.” A further
issue raised was whether a Horizon problem that had afflicted the Callendar Square
branch in Falkirk could have been the cause of the losses at Mrs Misra’s West Byfleet
branch.
364. The prosecution served evidence in response from Gareth Jenkins of Fujitsu. The first
response appears to be dated 2-4 October 200944, which was largely generic and
addressing issues with equipment failure which “will always be visible to Fujitsu”. At
that stage, he did not address Callendar Square, but in later reports in March 201045
he ruled out the Callendar Square bug as being the cause of the losses. It appears he
had only just become aware of the issue**. He addressed and rejected most of
Professor McLachlan’s hypotheses in a second report in February 20107. He did
concede that he could not exclude the possibility of errors in the system, although he
said that any such errors could not be the cause of the volume of the losses in question.
There is also a draft statement** from a security manager, David King, in response to
a second report from Professor McLachlan from the same period, which appears to
have morphed into a statement from Andrew Bayfield? by the time it was signed.
The ‘Gareth Jenkins chronology’* asserts that Mr Jenkins’ February 2010 response
followed internal communication. Emails quoted suggest that he considered that
Professor McLachlan had raised “a number of questions” requiring “detailed analysis of
various transactions”, and observed “wwe really don’t want to be seen to be undermining a
POL prosecution!”
453 [2021] EWCA Crim 577, at §202
454 FUJO0080526
455 POL.00054345, POL00001643
456 POL00165905, para.15
457 POL00053942
458 POL00053951
459 POL00001576
46° POL00165905, para.14
131
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EXPG000004R
365. Six reports were served from Professor McLachlan in total‘*!. These developed his
concerns in relation to the various hypotheses he had set out, and the limitations, as a
result of disclosure, to his ability to test them. I have not seen all of these reports. Where
T have and where they are relevant to the disclosure process, I shall identify those, and
prosecution responses to them, below. I have also taken notice of communications
contained only in the ‘Gareth Jenkins chronology’, but have in relation to these also
take notice of the fact that the Chronology is not being treated as evidence, and have
therefore approached such communications with a degree of caution, and have not
relied on them to reach definite conclusions. With those caveats in mind, it appears
that in February 2010, there were email discussions between Mr Jenkins and both the
lawyer and investigator at the Post Office dealing with the case that identified that
transaction logs for the West Byfleet Post Office had not been obtained or checked. The
communications suggest that Jarnail Singh asked Mr Jenkins if he could “examine the
Horizon system to investigate mistakes...we are keen that the defence are given suggestions as
to how they can effectively test their theories against the Horizon data..” Mr Jenkins indicated
that response to the defence expert required “getting the various detailed logs” .
366. In relation to disclosure to the expert correspondence*® within the Post Office does
show that arrangements were made for Professor McLachlan to see the Horizon
equipment at West Byfleet. A statement was obtained from Ian Venables** of Fujitsu
in relation to the Horizon equipment that was installed at West Byfleet. Prosecution
counsel also requested#®> details of other cases that were identified in “that set of papers
from the defence dealing with other cases to do with Horizon” where there had been guilty
pleas/ verdicts. This resulted in 3 civil case files being provided to prosecution counsel
in November 200% so he could “get a flavour of what happens with the Horizon system”.
367. _ By reference to its fax date, on 13k November a further disclosure request was made
seeking disclosure in relation to Mrs Misra’s Horizon training, “any business testing”
of the Horizon system and wider data for the operation of the system at West Byfleet.
461 1st report POLO0045518 in part and POL00055315 in full; 3 report POLO0053992, 4'* report
POL000541265t report POL00055196,
462 POL00165905
463 POL00054418, POL00053426, POL00053454
464 POL00054528
465 POL00053454
466 POL00053481
132
368.
369.
EXPG000004R
EXPG000004R
Disclosure was also sought of “how many past and current prosecutions for theft and/or
false accounting of sub-postmasters...have led to the defence raising issues with the Horizon
system.” A legal executive in the criminal law division forwarded this to Mr Longman
the investigator’, and in the meantime replied observing that “some of the items appear
to have already been dealt with or appear to be outside the ambit of the Post Office’s
prosecution...”
Advice was sought from prosecution counsel in relation to the various defence
disclosure requests, which was provided by Warwick Tatford in January 2010.4 He
advised a response pointing out that there would be disclosure in accordance with the
CPIA, but that there was no defence statement raising issues with Horizon. He also
advised that the response indicate that the defendant would have “a good knowledge”
of any errors in the operation of the system, and adding that “we are handicapped in
fulfilling our disclosure obligations by the absence of an adequate defence statement”. A
response in these terms was sent on 11 January 2010. The defence responded with
a chronology of correspondence and observing “nearly 9 months have passed since you
were first made aware of our client's issues with the Horizon system since which time not a
single page of disclosure has been provided...” .
Counsel's advice indicated that he had now reviewed the case files in the papers from
the defence to consider the question “is there material that is capable of casting an objective
doubt on the reliability of Horizon” and advised as to limited disclosure against that test.
This was a test that he had agreed with defence counsel, and appeared a sensible one
to pose. He also identified further enquires to be made of Fujitsu in relation to the case
studies and the Callender Square issues raised by Professor McLachlan4”. He also
reviewed a defence disclosure request, which had been annotated by Mr Longman the
disclosure officer!”!. He broadly agreed with Mr Longman’s approach, which was to
seek clarification of broad requests, to obtain further statements and/or provide
documents where appropriate and to make further enquiries of Fujitsu in a number of
respects.
467 POL00053520,
468 POL00044557
469 POL00053746
470 The Callender Square issues were raised by Gareth Jenkins in February 2010, POL00054017
471 This appears to be POLPOL00044603
133
EXPG000004R
EXPG000004R
370. This was a robust approach to disclosure, but one that was consistent with the CPIA
and the defence case as then particularised. It was interpreted by the reviewing
lawyer? as “we should disclose everything we can disclose at this stage so the defence will
know where we are coming from. We should be seen to be willing”. That is arguably a wider
disclosure approach than the CPIA required, if it were acted on. In at least one respect
there was hesitation in doing so, in that Principal Post Office Lawyer J. McFarlane
queries “how it assists the defence to know that the prosecution has another undecided case
where the reliability of Horizon is in issue”.
371. The defence response to the 11 January letter also included a second defence
statement*”. This stated: “The general defence is ... there have been unquantifiable thefts by
former employees causing loss, but this has been compounded by operational faults in the
Horizon computer system”. The defence statement identified a number of disclosure
issues that showed lines of enquiry highlighted in interview had still not been
pursued. These have already been addressed. On 27t January‘4, the Post Office
responded to the defence disclosure requests in accordance with the approach in
counsel's advice.
372. According to the Court of Appeal!® on 15% January 2010 a schedule of sensitive
material (MG6D) was prepared, which I have not seen. As described by Holroyde LJ:
“The Disclosure Officer who signed it stated that she believed the single item listed on the
schedule was sensitive. The item was described as “Article relating to integrity of Horizon
system, supplied with accompanying letter by defendant”. The reason for sensitivity was said
to be “Could be used as mitigation, i.e. to blame Horizon system for loss”. Given that the item
appears to have been a document supplied by the defence, the appellant was not in fact deprived
of material she should have seen; but the important point for present purposes is that a POL
employee acting as Disclosure Officer felt it appropriate to treat a document as sensitive, and
withhold it from disclosure, because it could be used to assist the defence. Such an approach to
disclosure is plainly wrong, but it does not appear that any action was taken by anyone on
behalf of POL to correct the officer's serious error.”
472 POL00053849,
# POL00054237
474 POL00044553
475 [2021] EWCA Crim 577, at $91 (ii)
134
373.
374.
375.
EXPG000004R
EXPG000004R
Also in January, the defence had served a statement from Eleanor Nixon*’, a retired
sub-postmaster which spoke of issues she had encountered with Horizon. This was
characterized by Mandy Taylor, Dispute Resolution in the Post Office Legal Services
as “support of the contention that Horizon is the cause of all evil and that they were perfect
postmasters”. A review was undertaken, it appears, to identify her, any material that
related to her account and/or material that undermined her account. Her statement
was also referred to Gareth Jenkins of Fujitsu for comment*”. A statement was later
served from Andrew Winn from the Post Office*” refuting Ms Nixon’s scenarios.
On 1s February 20104”? there was a mention at Court to address disclosure which set
out a timetable for further evidence to be served re Horizon by the prosecution and
then any further disclosure requests or submission as to abuse of process in response
by the defence. Evidence was served from Mr Jenkins of Fujitsu#°, Penelope Thomas
of Fujitsu! and Andrew Bayfield of the Post Office48? the next day. Jarnail Singh also
responded to a series of emails from the defence making disclosure requests on the
same day‘.
On 34 February**4, the defence submitted a further disclosure request!*> and a third
report from Professor McLachlan**, In significant respects the disclosure request
updated and repeated those that had already been made, for example in relation to
training, helpline calls and other cases where Horizon issues had arisen. Professor
McLachlan also identified the respects in which a lack of Post Office data records and
access to system data files for Horizon prevented the testing of his hypothesis. Jarnail
Singh, the Senior Post Office lawyer sought a further report from Mr Jenkins in relation
to this‘*’, and a response was provided by a statement dated 8' February“ in the main
476 POL00053643
477 POL00054017
478 POL00054175
479 UKGI00014903
480 POL00053942
481 POL00001598.
482 POL00001576
483 POL00053979
484 UKGI00014895
485 POL00054008
486 POL00053992
487 POL00054019
488 POL00001569
135
EXPG000004R
EXPG000004R
seeking clarification from the Professor of what was being requested. Mr Singh in turn
responded asking instead for a response to Professor McLachlan‘.
376. There was clearly, quite appropriately, direct contact and discussion between the
experts, Mr Jenkins and Professor McLachlan. For example, on 25th February#”” Mr
Jenkins reported that “I also explained to him some of how Horizon works and why this
means that some of his hypotheses were invalid. I also pointed out that in order to identify
exactly what was happening then it would be necessary to go through the detailed logs of the
relevant time...”. This was a necessity that Mr Jenkins had already identified to the Post
Office. He further observed that he did not think any request had yet been made for
those logs. The ‘Gareth Jenkins chronology’4 suggests that such direct contact
between the experts had been encouraged by Jarnail Singh, the Post Office lawyer. He
had also mooted, on 12'» February 2010, “may the simplest and practical way of dealing
with this whole question is to find a shortest span of logs, analyse it, disprove or rebut what the
defence expert is saying...” It will be necessary to consider the underlying and referenced
material as to whether there was such encouragement, and if so its timing and extent.
377. Mr Singh also drafted a response to the third defence disclosure request which was
circulated within the prosecution team on 224 February* and sent to the defence on
24th February. It addressed training issues. In relation to Horizon it stated: “our duty
of disclosure is whether material which undermines the prosecution case and supports your
client's defence. We hope if the expert looked at a short span of information i.e. the period where
your client falsified her records as set out in the previous letter. We hope it will not be necessary
to examine records for 5 years. Your client was inflating figures over a long period. If this were
as a result of mistakes over an extend period we think analysis over shorter period of falsifying
accounting offences by your client did not appear to remedy large loss. There appears to be a
long standing pattern of discrepancies which would appear in a short period as it would be on
the long extended period. If mistakes are found in a short span of data the crown will obviously
review its position as to the acceptability of your client's plea.”
489 POL00054062,
499 POL 00054198.
4! POL00165905, para.18
42 POL00165905, para.22
43 POL00054162
494 POL00054185
136
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378. There are two concerns as to this. First, it raises cost as a reason not to undertake
disclosure, and to suggest that a shorter period of review will be sufficient on this
basis. This was an issue the Court of Appeal expressed concern about in relation to
later correspondence in August 2010, but it also applies here. Secondly, it appears to
approach evidence of Horizon-related errors as relevant to whether guilty pleas
should be accepted, rather than whether the prosecution remained tenable.
379. Another issue with this disclosure response is that it identifies that “prosecution counsel
has reviewed the case of Hosi. There is no material that requires disclosure.” This was one of
the case files that Warwick Tatford had considered, and in his advice in January 20104%
had advised disclosure of the defence preliminary expert report re Horizon and other
case papers necessary to render it comprehensible needed to be disclosed. The Post
Office lawyer in Hosi, J. McFarlane had queried this advice, on the basis “I do not
understand the thinking behind disclosure of prosecution papers in respect of a case that has
not been brought to trial”. Beyond this query, I have not seen the basis for a volte face
by prosecution counsel such that he then advised against disclosure, as this response
suggests. It appears various further witness statements were also served at this time
relating to training”, and the operation of Horizon**.
(c) Pre-trial disclosure
380. There was an application to stay the indictment for abuse of process on grounds of
non-disclosure in March 2010, but it failed. The application’ asserted that “the
defendant is seriously prejudiced in preparing and presenting her defence case” as a result of
the limitations to disclosure relating to Horizon. It appears that Professor McLachlan’s
fifth report, which reviewed progress that had been made as of 25 February 2010
in relation to his hypotheses. Mr Jenkins provided a response to this report on 4!
March®!. He had now reviewed the transaction logs from December 2006-2007 and set
out an analysis of these to refute relevant hypotheses. The prosecution response to the
495 POL00044557, at §23
4% POL00053954
497 POL00054100
498 POL00054041, POL00054174
499 UKGI100015007
500 POL00055196
501 POL00054299
137
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application® by arguing that it had responded to “an avalanche of disclosure requests”,
and argued that the root of the problems had been that the defence requests had not
been focused, as Mrs Misra’s familiarity with the system should have permitted. It also
identified as “One of the main sticking points...the cost of obtaining Horizon data”, and the
failure of the defence to focus the period over which such data was needed.
381. Despite this response in early March 2010%3, the Post Officer lawyer advised that
transaction logs be obtained for the whole period of the theft allegation, and provided
to Mr Jenkins to review and then to discuss with the defence expert. Such data was
provided on 5 March™. It was recognised®® that this was work that would not be
achieved by a March trial date. This recognition was repeated in exchanges between
Jon Longman, the investigator, and Jarnail Singh, senior lawyer in April 2010°°°. This
also addressed the digital rather than hard copy disclosure of material because of its
scale5°”, Disclosure other than by hard copy is recognised as permissible under the
CPIA, and it was not inappropriate for this to be undertaken in relation to voluminous
data that was to be examined primarily by an expert, despite repeated defence
requests*8, What was not recognised was that this was work that had been required
in response to that expert, Professor McLachlan’s reports for some time (as the
responses of Mr Jenkins made clear).
382. The application for a stay was refused on 10 March 2010? by Recorder Bruce on the
basis that the trial process could address any unfairness. It necessitated the further
delay of the trial, but this did not cause undue prejudice to the defendant.
383. On 4 May 2010, Professor McLachlan! set out progress in relation to the
investigation of the Horizon transactions from West Byfleet. He reported that he had
“failed to identify any indicators of problems in the Horizon transactions at this preliminary
stage”. He recorded that he and Gareth Jenkins of Fujitsu agreed that examination of
502 POL00054346
503 POL00054282
504 POL00054310
505 POL00054253
506 POL00054557
507 Addressed in correspondence to the defence, 7" April 2010, POL00054566
508 POL00054680
509 UKG100014858
510 POL00054712
138
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the transactions would not determine whether the discrepancies were operator or
system driven, that it was necessary to consider data held by the Post Office Business
Support Centre in Chesterfield. He added that “the systems operated at the Business
Support Centre...were only brought to my attention for the first time at the time of our
[McLachlan and Jenkins] conversation on 12 February 2010”. This delay in this imparting
of this important information to an expert where that information was of clear and, to
Mr Jenkins obvious, relevance is of concern. That Mr Jenkins was capable of
communicating information direct to the Professor is illustrated by an email on 7%
May>"! when he did so in relation to transaction corrections.
384. I Gareth Jenkins provided a further report in July 201052 in which he addressed TMS
journal records for all outlet and counter transactions at a branch. As in earlier reports,
he stated that “there is no reason to believe that the information in this statement is inaccurate
because of the improper use of the computer. To the best of my knowledge and belief at all
material times the computer was operating properly, or if not, any respect in which it was not
operating properly or was out of operation was not such as to effect the information held on it’.
In August 20105!3, he provided observations on a defence report in a case relating to
Rinkfield post office from Professor McLachlan which was in identical terms to his 2-4
report for West Byfleet. It is not clear if these observations were disclosed in Mrs Misra’
case or to the Professor.
385. On 15% July 20105", Jarnail Singh, the senior Post Office lawyer, recorded contact with
John Longman, one of the investigators, about the need to resolve a financial obstacle
to a further meeting, directed by the Court, between Gareth Jenkins and Professor
McLachlan. The issue appears to have been as to payment to Fujitsu in this regard,
which appears to have been resolved at that stage by the threat of Fujitsu having to
justify its position to the Judge. This led to a meeting of the experts, which in turn, as
per Professor McLachlan’s May note*!5, led to a disclosure request®!* for considerable
511 FUJ00125442
512 POL00001759
513 POL00054667
514 POL00054999
515 POL00054712
516 POL00055074
139
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further data, including that held by the Business Support Centre in Chesterfield. These
requests were forwarded by the lawyer to counsel and the investigator®!”.
386. The investigator, Mr Longman, clearly forwarded them in turn to Gareth Jenkins
because he quoted him in his response®!’, which sought clarification from the defence
as to what was sought. Jarnail Singh, the lawyer’s view>!? was that the data from
Chesterfield and elsewhere was not disclosable and that the defence should be
required to make an application under section 8, CPIA. Discussions about the hard
copy disclosure of data, and its production at trial also continued to be a source of
concern and exchange between the parties, and within the prosecution team at the end
of July and early August 20105. The requirement that the defence justify the further
data disclosure through a section 8 application continued*2!. This approach appears to
have been supported by Gareth Jenkins who, emails quoted in the ‘Gareth Jenkins
chronology’ suggest, did not think that the ambit of Professor McLachlan’s enquiries
“would help” 2. It appears that limited further disclosure relating to Chesterfield was
effected by a statement from the investigator, John Longman, on 12 October, the
day after the start of the trial.
387. This exchange of internal memoranda in July-August 2010, shows that a defence
request for disclosure of Horizon data was met with objections based upon the cost of
obtaining such information from Fujitsu. The basis of the objection was that the Post
Office’s contract with Fujitsu placed limitations upon the number of requests for ARQ
data which could be made each year. In short, consideration of the data for disclosure
to the defence appears to have been resisted, not on the grounds that it was not
required by law, but on the grounds that contractual arrangements with Fujitsu made
it costly and inconvenient to comply with its legal obligations as a prosecutor.
Ultimately, in September 2010, the decision was taken by the Post Office not to make
disclosure of the Chesterfield data. The reasons for the decision were not included in
the correspondence™4,
517 POL00055077
518 POL00055073
519 POL00055113
520 POL00055132
521 POL00055155, POL00055199
2 POL00165905, para.28
523 POL00055530
524 POL00055225, POL00093841
140
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388. The issues to which this stance gave raise were highlighted in September 2010°, when
Professor McLachlan provided a further report. It appears to have been an update of
earlier versions. In this he observed that he was wholly reliant on Gareth Jenkins and
the material he provided “for my understanding of the Horizon system and the manner in
which it integrated into the full Post Office Ltd environment”. He added that Mr Jenkins
had provided “every possible assistance subject, however, at all times to the instructions of
his employers and Post Office Ltd.” The Professor identified no action by the Post Office
to investigate discrepancies at West Byfleet as they unfolded. He said that he and Mr
Jenkins had not excluded discrepancies arising from screen calibration problems and
the use of the fast cash button, and that Mr Jenkins accepted that there had been
problems in the past with Horizon, as shown at Callender Square. He complained that
“the Post Office has not provided us with the opportunity to independently assess the possible
impact on West Byfleet nor have they provided a list of known defects in Horizon...” He also
noted that Mr Jenkins considered other elements of the Post Office operating
environment, of which there had not been disclosure, could be relevant to the
understanding of discrepancies. Mr Jenkins replied to this defence report in a
statement dated 6‘ October 2010%, to which I shall return.
389. Also in September 2010, a memorandum from Jarnail Singh, the senior lawyer, to
Mandy Talbot, the principal lawyer at Royal Mail Group®? identified a request for
disclosure in a case at Bradford Crown Court for disclosure relating to other cases
where Horizon issues had been raised. This included Mrs Misra’s case, but also those
of Jo Hamilton, Noel Thomas and others. Mr Singh asked whether there were others.
Ms Talbot replied>*8 saying that relevant material was in storage, and commented
“there are ongoing cases every month which raise the issue of Horizon so it’s a movable feast. I
am endeavouring to pull together a list of those cases currently with us where allegations have
been made in respect of Horizon. Most of these have been on hold awaiting the decision on
Misra”. It is clear, therefore, that there was an awareness of a proliferation of cases
where Horizon’s accuracy was in issue, but the memoranda do not suggest a
sufficiently joined up approach to disclosure relating to them.
525 POL00055315
526 POL00055367
527 POL00055212.
528 POL00055894
141
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390. Before Mrs Misra’s trial, representatives of the Post Office and Fujitsu had met to
discuss the RPM bug in Horizon Online5”. Gareth Jenkins was one of those at the
meeting, which appears to have occurred before he signed off his 6» October report.
In terms of the impact of the bug it noted a “potential impact upon ongoing legal cases
where branches are disputing the integrity of Horizon data...it could provide branches with
ammunition to blame Horizon for future discrepancies”. Although it was only a matter of
days before her trial that discussions about the issue had taken place, which were
shared with the Post Office legal department™, and a report by Mr Jenkins proposing
a fix had been written on 29% September 2010", there is no information to suggest that
the RPM bug was considered for disclosure, and it was not disclosed to the defence. It
was also not addressed by Mr Jenkins in his 6* October report®?.
391. This is of particular concern because this report, it is clear, was produced following
consultation with trial counsel and those instructing him, That report had been
provided to the Post Office lawyer and counsel in draft, and amended in various
respects at their request. There is no evidence of discussion between them about the
bug*4. That this is a correct analysis of the position is underlined by a CCRC Case
Briefing Note®5 which observed of Mr Jenkins “this witness creates difficulties for POL as
he knew of the issues with the Horizon system as identified in the second sight interim report
and failed to declare them, falling short of the standards expected of an expert witness. The
‘Falkirk bug’ was known to the defence and was the subject of cross-examination” .
392. In this regard, Holroyde LJ**° observed “The bug only appeared in Horizon Online in 2010
and did not have an impact on Legacy Horizon, which was the version of the system in issue in
Mrs Misra’s trial. Nevertheless, POL has properly conceded that it ought to have been
considered for disclosure - and indeed disclosed - in Mrs Misra’s trial where issues of Horizon
reliability were involved.” It appears, by reference to email correspondence with trial
counsel®”, that the approach adopted was to require greater particularisation from the
529 POL00117662
530 POL00055410
531 POL00001733
532 POL00055367
533 POL00055413
54 POL00165905, para.29
535 POL00066933
536 [2021] EWCA Crim 577, at para.206
587 POL00055421
142
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defence as to the data sought. It is also clear that this stance, which in abstract terms
as an approach to disclosure of digital material was a reasonable one, was also
supported by the trial Judge.
393. Mrs Misra’s trial finally commenced on 11' October 2010°°8. At the outset, the defence
made a further application to stay the proceedings for abuse of process on grounds of
non-disclosure, particularly as regards the Callendar Square bug issue. The
application was refused, and the trial continued. The application to stay was renewed
at the close of the prosecution case but was again refused. Mr Jenkins and Professor
McLachlan gave evidence to the jury*. As summarised in a post-trial note by Jarnail
Singh™°, Mr Jenkins “was able to explain to Professor McLachlan how many of his theories
were not valid and based on a misunderstanding of Horizon”. Having examined the
transaction logs “neither [expert] could find evidence of any computer error whatsoever that
could have contributed to the deficiency”. During her own evidence, Mrs Misra
maintained there had been staff thefts but also that there had been unexplained losses
that had continued after the staff in question had been dismissed, which she had
reported to the Helpline. She stated that she had borrowed money from friends and
family to put into Post Office’s funds. Mrs Misra’s sister-in-law gave evidence that she
had lent her £22,000 for that purpose.
394. I Mrs Misra was convicted on 10 November 2010*! and in due course a confiscation
order was made against her*2. The correspondence makes clear that this order was
pursued without any consideration of the Horizon issues that had been the focus of
the trial, and that it presented acute hardship to Mrs Misra. She made application to
vary the order in April 2012, which was not opposed™8.
(d) Post-conviction disclosure
395. A memorandum dated 22 October 2010* by a senior lawyer in POL’s Criminal Law
Division reported the successful prosecution of Seema Misra. The memorandum
588 Report of the trial by Jarnail Singh, POL00031352, POL00044356 and case review in 2014,
POL00108223
5° There is an analysis of the evidence at trial in the ‘Gareth Jenkins chronology’, POL00165905, from para.30
549 POL00031352
541 POL00044994, POL00055759
542 POL00056687, POL00058530, POL00044989
543 POL00057442, POL00057625
544 POL00055590
143
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complained that the case had involved “an unprecedented attack on the Horizon system”
which, the author said, the prosecution team had been able to “destroy”. He ended the
memorandum, which was copied to the Press Office, by expressing the hope that “the
case will set a marker to dissuade other defendants from jumping on the Horizon bashing
bandwagon”. In a similar vein, on 8 November*> the Mandy Talbot, the principal
lawyer, sought the Court’s permission for transcripts of evidence from Mrs Misra’s
trial to be obtained which were needed “in other cases where Fujitsu and the Horizon
system are challenged on similar facts” .
396. In 2014, Jarnail Singh, the senior who had conduct of the case for the Post Office,
provided a review for the Second Sight process*®, He observed that “Horizon is a
complex computer system, about which even eminent experts can make mistakes”. He
commented that Professor McLachlan had been repeatedly put right by Gareth
Jenkins, adding that “both sides in Misra were completely beholden to Gareth Jenkins and his
deep knowledge of Horizon”. He observed “although the technical aspects of Horizon may be
complex, its practical use by an SPM is not”. He said that the sub postmaster would be
best placed to spell out the problems they had encountered, because unlike an expert
“they had the stock in front of them not just the computer data”. He added “one would think
that if losses were being incurred through no fault of their own, they would want to investigate
it or look for solutions as it was in their best interest” .
397. Inrrelation to Mrs Misra’s trial, he commented “it is very easy for a dishonest SPM, as Mrs
Misra was proved to be, to make vague accusations against Horizon where other lines of defence
are closed. It is not difficult to attract sympathy for such false claims. An SPM is likely to be
viewed as a hard-working person of good character. Most SPMs who steal do so because they
are in financial difficulties, often stealing simply to prop up their failing shop business. In such
circumstances, there will be no evidence of luxurious living.” Against that background, he
observed it was difficult to disprove such vague allegations of computer errors, and
pointed to the fact that Professor McLachlan had adopted a “ purely theoretical approach”
which was “worthless/pointless” .
545 POL00055721
546 POL00066859
144
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398. In relation to the analysis of transaction logs, he described this as “ time-consuming and
expensive though it may be the only way to investigate the concerns raised by these former
SPMs”. He also commented “it is important in any case not only to examine the computer
evidence but also to look at the other evidence, in particular the behaviour of the SPM. Mrs
Misa’s failure to mention any computer problem until her case was first listed for trial severely
undermined her claims.” He pointed to the lack of calls made by her to the helpline in
this regard, and asserted that the jury was entitled to reject her evidence about her lack
of training.
399. Simon Clarke of Cartwright King>7 undertook a review of the case in 2014 to advise
as to whether the Helen Rose or Second Sight reports needed to be disclosed. He
concluded that they did not. He referred to “Mrs Misra’s failure to raise Horizon as a
defence until so late in the day; her inability or unwillingness to offer anything more than a
generalised and incoherent indictment of Horizon; the approach taken by Professor McLachlan;
and the duties relating to disclosure placed on the shoulders of any prosecutor”. He
characterised the approach of Professor McLachlan as having “merely proffered a
number of unhelpful hypothesis and invited RMG to disprove them”. He concluded that “no
meaningful criticism can be made of the disclosure process taken by RMG during the pre-trial
and ongoing disclosure phases of this prosecution”. An email in May 2015*8, headed POL-
Mediation File, commented that disclosure “May give Misra ticket to C of A”. It is not
clear is this is linked to Mr Clarke’s earlier analysis of this question, but in December
2015%9, during a CCRC review of Mrs Misra’s case he advised disclosure to the CCRC.
400. In May 2015, in the context of a Panorama Programme about Horizon issues and the
disclosure of evidence to defence experts in such cases, Melanie Corfield of the Post
4
Office commented® “they will interview an expert witness who might claim he was not
allowed to see the system properly or similar/that we did not disclose information about alleged
‘bugs’.” She identified the case of Mrs Misra as relevant in that context and added that
they needed “a very straightforward line that simply demonstrates proper process” . It is not
clear what she meant by that, and whether or not it was accepted that such complaints
in relation to disclosure were warranted.
547 POL00108223.
548 POL00066872
549 POL00066959
550 POL00066869
145
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401. Ultimately, the Court if Appeal concluded®": “POL accepts that this was an unexplained
shortfall case and that evidence from Horizon was essential to Mrs Misra’s case. It is conceded
that the fact that Mr Jenkins gave evidence means that POL did not disclose the ‘full and
accurate position regarding the reliability of Horizon.’ The ARQ data was disclosed to the
defence but it was not the unfiltered ARQ data and did not cover the whole of the indictment
period. There was no examination of that data for bugs, errors or defects or for evidence of theft.
It appears there was no evidence to corroborate the Horizon evidence. There was no proof of an
actual loss as opposed to a Horizon-generated shortage.”
Assessment
402. Mrs Misra’s case raises in microcosm many of the issues that I have identified in the
20 cases with which this report is concerned. It is able to do so because it went all the
way to trial, and the operation and reliability of Horizon was the core issue at that trial.
It is clear that this was not the core focus, or indeed any focus of the investigation that
led to Mrs Misra being prosecuted. Rather, that investigation, like others I have
reviewed, took the Horizon data at face value, proceeded from the position that there
was a loss and that Mrs Misra needed to account for it. It was an assumption that
needed to be tested, and yet reasonable lines of enquiry necessary to undertake that
test were not pursued. In particular, financial enquires were not undertaken to test
whether Mrs Misra had in fact benefited from taking money from the Post Office, even
though the prosecution case was predicated on the allegation that she had done so.
403. In many respects the investigation, like the disclosure process that flowed from it, was
reactive to the defence case and defence requests rather than representing a robust
examination of the evidence and the lines of enquiry to which it gave rise. For example,
Mrs Misra referred in interview to an earlier report of theft, and incidents of theft by
employees and yet it appears that these were only investigated after Mrs Misra had
been charged, with requests for details from her once her case was before the Crown
Court. No enquiries appear to have been made to check whether Mrs Misra was
reporting issues with Horizon until her lawyers started to ask for them, and disclosure
of actual calls took a considerable period to materialise.
551 [2021] EWCA Crim 577, at para.207
146
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EXPG000004R
404. It is clear from the protracted process of requests and counter-requests relating to
experts over a substantial period of time, that an analysis of various types of raw
Horizon data was necessary for there to be a realistic assessment of whether it was
reliable, and whether bugs or other issues with its operation might have affected the
data relied on to demonstrate loss. It is also clear that such data was not obtained as
part of the investigation before charge, or for a very long time thereafter. Discussions
at later stages of the pre-trial disclosure process appear to have raised as objections to
doing so firstly the contention that the sub postmaster was the person best placed to
identify with a degree of specificity what the problems with Horizon were, and
secondly that obtaining such data from Fujitsu would be costly. It is difficult to sustain
either objection. Whilst the sub postmaster would be able to say that there were
problems, and losses appearing that did not make sense, they would not have the
technical skill, or the data themselves available to say more. It was for the prosecution,
using both that skill and that data, to do that. Secondly, issues of cost were issues for
the prosecution that had chosen to bring the prosecution, not a reason to refuse to
undertake a reasonable line of enquiry. It is of note in relation to the issue of cost as
between Fujitsu and the Post Office that in December 20125, in the context of the case
of Grant Allen, a lawyer at Cartwright King acting for the Post Office recounted that
Mr Jenkins had said that it was “possible for him to retrieve the actual data from this time
to see what actually occurred at this branch and that the retrieval of the data is free to
POL” (emphasis added). This raises at least a question as to the relevance of cost.
405. The charging decision, or at least the lawyer's advice relating to that decision, was
again far from thorough. It contained no analysis of how it was contended, without
any investigation of other suspects or Mrs Misra’s financial position, theft was made
out. This was notable in particular in relation to the elements of dishonesty and
appropriation, which were not addressed in the advice at all. These defects were also
not addressed post-charge when advice was received from counsel. There was no
identification of outstanding evidence or lines of enquiry, even though the evolution
of the case makes clear that there were a number of such lines yet to be pursued.
406. A further concern is that in his advice Mr Singh identified that a plea to false
accounting would be sufficient. This raises a number of questions. If such a plea was
552 POL00165905, para.217
147
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sufficient, why was the theft charge being pursued at a time when the evidential basis
for it was unclear? There is certainly an appearance, although not an explicit one, that
the theft charge was there to encourage a plea. Countering that, however, is the fact
that when Mrs Misra made clear though her defence statement that she was willing to
plead to false accounting and when, as I understand it, she then did so, that plea was
not considered to be sufficient. I have not seen an explanation for this change in the
prosecution’s stance.
407. The disclosure process in this case was a complicated one. It did not start well. The
initial disclosure schedules were inadequate in a variety of respects which had to be
cured by a revised version being produced, and by the prosecution’s response to what
it characterised at one stage as “an avalanche of disclosure requests”. This was in one sense
and accurate characterisation, as there were many and repeated requests, but it also
fails to recognise that many of those requests were for material, relating to other
suspects, the financial position, contact with helplines, training sufficiency and the
reliability of Horizon data that also represented reasonable lines of enquiry for the
prosecution, and should thus have formed part of the disclosure from the prosecution
from an early stage. It is also clear that there was insufficient review by the prosecutor
of disclosure from the outset.
408. The position did improve once counsel was instructed, and it was entirely appropriate
to involve counsel in the process. The position adopted was robust, in that it required
the defence to specify the relevance of Horizon data in a defence statement before it
was disclosed, but that was not a position contrary to the CPIA or guidance
thereunder. There are a number of areas of the process thereafter which could not be
similarly described.
409. This was a case where cross-disclosure from other cases was very much in issue. The
defence had requested it, and it was directly relevant to the work being undertaken by
the experts, for example in relation to the Falkirk bug. This relevance was clearly
understood, because counsel was asked to advice on disclosure from other cases and
did so. I am concerned that either he then changed his position following push back
from internal lawyers at the Post Office, or his advice was not followed after that push
back. It certainly appears that such disclosure was more limited than it should have
been, and certainly took much longer than it should.
148
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EXPG000004R
410. The process of disclosure to the defence expert was also protracted and in important
respects glacial. Professor McLachlan identified at the outset a number of hypotheses
for how errors could have been made. Whilst this was characterised after the event by
Mr Singh, the reviewing lawyer, as vague and theoretical it is difficult to see what else
a defence expert could do without access to the operation of Horizon and the data
relevant to its assessment. That access and that data took a very long time, and a
multitude of requests and interim expert reports. Such an approach was not consistent
with a properly undertaken and supervised disclosure process, by reference to the
CPIA Code and in particular the Attorney General’s disclosure guidelines.
411. A particular feature of the process is that Mr Jenkins of Fujitsu was involved
throughout the majority of the time that Professor McLachlan was engaged and
requesting disclosure. It is clear that there was a good deal of entirely appropriate
liaison between the experts. However, it is also clear that Mr Jenkins was able to
provide reports refuting aspects of the Professor’s work without there at the same time
being disclosure of the material underlying it. This was material available to Fujitsu,
which could and should have been sought by the prosecution from them had it not
already been in the prosecution’s possession. It is difficult to see how factors other than
cost prevented this, and difficult to understand why that should have been. This is not
least because the duties on an expert included the disclosure of the material that
underpinned the conclusions reached, and that here meant the material that Mr
Jenkins used to refute Professor McLachlan, which was the material that the Professor
had in any event been seeking.
412. The other very real concern in relation to disclosure and Mr Jenkins is of course the
fact that he provided reports and gave evidence about the operation of Horizon that
was inconsistent with the information to which he was privy about bugs in the system,
and issues with its operation. The Inquiry will be better placed than I am to assess Mr
Jenkins’ position as an expert and a witness by reference to what was known at the
time of his reports and evidence. However, on the basis of what I have seen there were
failures on his part to disclose material that undermined his opinion, which it was his
duty to have disclosed. There was also material that undermined the prosecution case,
as advanced through Mr Jenkins, that clearly fell to be disclosed and, in the hands of
a third party, to be obtained for review.
149
EXPG000004R
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413. I should add that I have not seen in the material in this case any letter of instruction,
or comparable communication, by the Post Office to Mr Jenkins. Communication with
him in writing appears to have been informal and brief, and at no point made any
reference to the duties of either Mr Jenkins as expert or the Post Office as prosecutor
in relation to material underlying or undermining his opinions. In the context of what
appears to have transpired here, that is concerning.
414, The reality appears to be, as the memorandum of 22'4 October 2010°° all too clearly
illustrates, that the prosecution of Mrs Misra had become a battle for the reputation of
the Horizon system, with the prosecution determined to “destroy” the attacks on the
system. When cast in that light, the approach to continued investigation and the
process of disclosure can be seen as a war of attrition, marked by a reluctance to obtain
or disclose material that could be used to undermine Horizon, or provide fuel for the
“Horizon bashing bandwagon”, that was the cause of such concern.
LYNETTE HUTCHINGS
415. Lynette Hutchings was the sub-postmaster at Rowlands Castle in Hampshire.
416. Insummary, following an audit which was instigated on the basis that the Post Office
appeared to be holding too much cash, Ms Hutchings was charged with a single charge
of fraud by false representation, contrary to section 1, Fraud Act 2006, namely
representing to the Post Office that she had more cash than she had to conceal losses
at the post office between 13 January 2010 and 30 March 2011. By the time that she
entered a plea to it, she was also charged with false accounting, contrary to section 17,
Theft Act 1968, on the basis she had concealed shortages of £10,868.0854. As was
observed in her appeals: “Between 1 June 2010 and 5 April 2011, Ms Hutchings had made
33 calls to the National Business Support Centre, two of which related to losses or gains. Dip
samples covering 13 January 2010 and 30 March 2011 showed that she had made four calls to
the Horizon Helpdesk for advice.”
553 POL00055590
554 POL00046095
555 [2021] EWCA Crim 577, at §268
150
EXPG000004R
EXPG000004R
417. On 30* July 2012, in the Crown Court at Portsmouth, Lynette Hutchings pleaded
guilty to one count of false accounting. The Post Office offered no evidence against her
on one count of fraud and a “not guilty” verdict was entered. On 24th August 2012,
Recorder Watson QC imposed a community sentence order with an unpaid work
requirement of 120 hours.
418. In the proceeding before the Court of Appeal in Josephine Hamilton v Post Office>>*, Ms
Hutchings was one of those in category B, “in respect of whom POL accepted that this
court may properly find that the prosecutions were an abuse of process within category 1, but
resisted the appeals insofar as they are based on category 2 abuse.
The investigation
419. The paperwork again does not identify specifically who performed the roles of senior
investigator, investigator or disclosure officer for the purposes of the CPIA. The
Investigation Summary*” was prepared by Graham Bander, Security Manager. This
indicated that the investigation was initially instigated on the basis that the Post Office
appeared to be holding too much cash**. This led to an interrogation of the Horizon
system in relation to payment information, closing cash totals, broken down by cash
denominations, overnight cash holdings and cash returned to and from the branch.
This showed that the amount held in £50 notes was inflated on the dates of branch
trading statements on the Horizon system.
420. Ms Hutchings was invited to a conduct interview by the contract adviser, Nigel Allen,
on 13 April 2011 but had failed to attend. Mr Allen therefore terminated Ms
Hutchings contract of employment. She was then invited to and did attend a PACE
compliant interview by Graham Bander®? on 20' April 2011. She was accompanied by
her solicitor and when that interview occurred her rights were explained to her and
the same recorded. The relevant Post Office policies were therefore complied with.
556 [2021] EWCA Crim 577, at §75
557 POL00061244
558 POL00046055
559 POL00056532
151
EXPG000004R
EXPG000004R
421. In interview Lynette Hutchings gave a prepared statement, explicitly saying that
ever since her sub-post office had migrated to Horizon the balances had been wrong,
although she had not been aware of making any mistakes. She said that she had altered
the cash on the basis that she genuinely did not think there was a loss and that the
balances would be corrected in the fulness of time. She did so only to enable her to
operate the Post Office. She made no comment in the remainder of that interview or
during 2 further interviews that day*1,
422. There was some evidence of irregularities in the system, given that both the
Investigation Summary*? and the statement of Graham Brander, in which he
exhibited trading statements etc, acknowledged there appear to be two errors relating
to cheque remittances. However, despite this, and the clear identification of the
operation of the Horizon as central to Ms Hutchings’ account, there is only limited
evidence of awareness of Horizon issues in the investigation and it does not appear
that the investigation actively investigated them beyond the following:
(a) The trading statements were all retrieved and compiled, as were incident logs; calls
to the Post Office; and office copies of declared cash reports. The investigating
officer checked whether calls related to issues with the Horizon system*+,
(b) Requests for Horizon data were made for most of the relevant period. Requests
were also made for all call desk calls and those analysed.
(c) It appears enquiries were made with Hutching’s solicitor as to whether she would
voluntarily provide her bank statements*®.
423. On 17% June 20115, Jarnail Singh, Senior Lawyer in the Criminal Law Division
advised that it was likely that the defence would assert that Horizon was not working
properly, and therefore “it would be more prudent for the officer to complete his enquiries
and further investigations and produce the evidence” which was then listed in the advice.
This included: “evidence rebutting the allegations and criticisms made in the pre-prepared
560 see POL00056532, p.2
561 POL00044505, POL00046625
562 POL00061244
563 POL00044531
564 POL00061244
565 POL0052945
566 POL0063539
152
EXPG000004R
EXPG000004R
statement” and “statements dealing with the integrity of the Horizon and call logs to the
Horizon support desk” . It is of note that the identified approach was to rebut the defence
assertions in relation to the operation of the Horizon system, not to investigate
whether or not those assertions might be true.
424. In terms of other lines of enquiry, an understandable decision was made to not conduct
a search given the small amounts of money taken®*. For similar reasons a full financial
investigation was not considered justified. However, whilst there was reference to
asking Ms Hutchings to produce her bank statements there is no evidence that
financial enquiries were undertaken to see if there was any evidence of financial
benefit to Ms Hutchings in relation to any of the financial irregularities complained of.
Charging decision
425. This appears to be a case in which solicitors from Cartwright King were instructed
from an early pre-charge stage, with the result that Martin Smith, a solicitor from the
firm, produced a charging advice on 4 January 201258, The advice summarises the
prosecution case in accordance with the earlier, and more detailed Investigation
summary. There is no explicit application of the Full Code Test and no reference
explicitly to the public interest test in this pre-charge advice. There is equally no
reference in the charging advice to any awareness of issues with Horizon. Horizon is
relied upon explicitly as being a strong source of evidence. Ms Hutchin’s prepared
statement was simply dismissed, and the issues she raised with Horizon said not to be
relevant. It does not appear a thorough or thinking approach was applied. There is no
reference to disclosure or any reasonable lines of enquiry to be pursued.
Proceedings
426. If, as I assume was the case, Ms Hutchings was summonsed to appear before the
Magistrates’ Court, I have not seen any application for that summon. Certainly, she
appeared before the Portsmouth Magistrates’ Court on 19‘ April 2012 on the false
representation charge. She gave no indication as to plea and was sent to the Crown
567 POL0053003
568 POLO053840
153,
EXPG000004R
EXPG000004R
Court. The Post Office was represented at that hearing by Robert Booker of Just
Advocates*, He indicated that he would send a written report, which I take to be an
attendance note rather than an advice on evidence or disclosure.
427. Ms Hutchins appeared at the Crown Court at Portsmouth for a plea and case
management hearing before HH Judge Pearson on 30 July 2012. The case was
prosecuted by William Martin, counsel from 9-12 Bell Yard5”. Following discussion
between counsel and between prosecuting counsel and those instructing him, a count
of false accounting was added to the indictment. Ms Hutchings pleaded to this. A basis
of plea*7! was entered to false accounting which accepted that she had made the books
balance in order to “Put off the evil day of having to sort out the muddle” and not on the
basis she took or intended to take any money. The wording of the basis plea was an
express reference to the approach to false accounting in Eden*”>,
428. Although there is no explicit recognition of the Horizon issues, it was recorded in the
result sheet®”’ that the prosecution opened on the basis it could not be sure what had
happened to the money and if it was stolen or mismanaged. This is reflected in the
attendance note*”4, albeit it is made clear that it was in response to the basis of plea
(which was not accepted but could not be gainsaid). If this was the prosecution’s
position, it calls further into question the decision to charge theft.
Disclosure
429. I have had sight of disclosure schedules produced in purported compliance with the
CPIA Code. The schedule of non-sensitive unused material (the equivalent of the
MG6C)°*% is quite short, and mainly includes correspondence and documentation
relating to the interview process. It does not have any reference to the underlying raw
accounts data (to the extent that this was not included in the served evidence), and
there is no reference to any previous complaints or discussions.
56° POL0054025
57 POL0054611
571 POL0042575
572 (1971) 55 Cr. App. R. 198
573 POL0042571
574 POL0054611
575 POL00057751
154
EXPG000004R
EXPG000004R
430. There is nothing listed in relation to Horizon, enquiries made in relation to the
operation of the system or to the result of any enquires as to that operation. Even if the
enquiries requested pre-charge by Jarnail Singh®”* were to rebut suggestions of
problems with Horizon any proper investigation in that regard conducted in and after
June 2011 ought to have generated material that would properly be expected to appear
on an unused schedule. Its absence speaks either of those proper enquiries not being
made, or a proper unused schedule not being produced. Moreover, in a review of the
case in 201357, Simon Clarke, acting on behalf of Cartwright King, observed that no
enquiries appear to have been made as to the operation of the Horizon helpline,
although complaint about this had been made by Ms Hutchings in her prepared
statement.
431. This deficiency is not explained by the sensitivity of any material relating to it. The
Schedule of sensitive material (the equivalent of an MG6D)°*”8 was prepared prior to
the committal hearing on 11'* May 2012, by reference to its date. That schedule
contained only one entry relating to correspondence between investigation manager
and legal services which material was said to be covered by legal professional
privilege. However, the material was not particularised or broken down as it should
have been to enable a reviewing lawyer/counsel to properly consider it, and there is
no evidence on the face of the schedule that any such review was undertaken.
432. No items were marked as disclosable on the disclosure officer’s report (the equivalent
to the MG6E)*”.
433. It is of note that this case followed the updating of the Post Office disclosure of unused
material policy in July 2010.%° That policy, at para.3.9, specifically enjoined
consideration of the defendant’s interview and defence statement, potential lines of
cross-examination and applications to exclude as reasons to disclose. That is not
reflected in the approach adopted here.
576 POL0063539
577 POL00060715, at §13
578 POL00057727
579 POL00057753
580 POL00104848
155
EXPG000004R
EXPG000004R
434. Following the publication of the Second Sight and Helen Rose Report in July 2013, in
October 2013 Cartwright King undertook post-conviction disclosure in relation to Ms
Hutchings*!, Their letter referred to a further review of a defence statement and
addendum defence statement which I have not seen in my review of the files provided.
The question to which this gives rise is one of timing, and as to whether the July 2013
report was the necessary catalyst for disclosure in relation to Horizon. In particular:
(a) There was reference, when it was received, to a basis of plea like this being
familiar. This suggests that those reviewing the basis of plea were familiar with
complaints being made of accounting irregularities arising from the Horizon
system’.
(b) In an email dated 12% June 2012583, and thus prior to pleas being entered on 30%
July 2012, Cartwright King observed that defence solicitors had previously raised
issues with Horizon that could not be rebutted and considered relying upon a
generic expert report. Although this was not attached it is likely that this was the
report of Gareth Jenkins that was in use at the time.
(c
It is apparent that there was knowledge of the issues post-conviction whilst civil
asset recovery was ongoing™. However, there was no disclosure in relation to the
operation of the Horizon system and its role in generating the loss that was being
recovered at that stage.
435. Post-conviction, this case was subject to a specific advice on the disclosure of Horizon
issues*>, The review was undertaken by Simon Clarke, a barrister on behalf of
Cartwright King, to determine whether disclosure of the Second Sight and Helen Rose
Report would have undermined the safety of the conviction. He concluded this
material did not fall to be disclosed in this case on the basis of the guilty plea and the
basis of plea and admissions made. He argued that the lack of enquiries into the
Horizon system was mitigated by the lack of a defence statement, and the unequivocal
581 POL00060945
582 POL00058136
583 POL00058016
584 POL00060373
585 POL00060715
156
EXPG000004R
EXPG000004R
guilty pleas where it was clear that Ms Hutchins had falsified the records to conceal
losses.
436. In my view this advice fundamentally misunderstands the disclosure test. First, it
ignores the fact that this material would clearly have been disclosable before the guilty
plea was ever entered. This was a reasonable line of enquiry on the basis of the
prepared statement, and therefore to rely on the eventual guilty plea as meaning there
was no need to disclose it is erroneous. Secondly, it does not identify the fact that
disclosure of this material would have strengthened Ms Hutchings’ basis of plea, in
providing a more legitimate excuse for how these issues arose. Thirdly, it ignores the
fact that the prepared statement meant dishonesty and issues with Horizon recording
were central issues from an early stage of the case.
437. _ However, the material I have seen does suggest that disclosure did in fact occur of
these reports on 8 October 2013°%. Simon Clarke, the author of the advice to the
contrary, now disclosed them as “information which may affect the safety of a conviction” .
It appears this was after advice from Brian Altman QC, who was concerned about
Hutchings®*”. Those concerns were shared by the Court of Appeal®®. Holroyde LJ
summarised the position as follows: “POL accepts that this was an unexplained shortfall
case and that evidence from Horizon was essential to Ms Hutchings’ case. ARQ data was
requested but it is not known if it was obtained. It appears there was no evidence to corroborate
the Horizon evidence. There was no investigation into the integrity of the Horizon figures. The
investigation concentrated on proving how the accounts were falsified, which was admitted,
rather than examining the root cause of the shortfall. There was no investigation of Ms
Hutchings’ complaints as set out in her prepared statement. There was no proof of an actual
loss as opposed to a Horizon-generated shortfall.”
Assessment
438. Inher prepared statement at interview, Ms Hutchings squarely raised the issue of the
operation of the Horizon system. It is clear that a degree of investigation was
undertaken into the data from that system relevant to the period under investigation
586 POL00060945
587 POL00066835
588 [2021] EWCA Crim 577, at §271
157
EXPG000004R
EXPG000004R
and the loss with which it was concerned. However, it is equally clear that there was
no wider investigation of the reliability of the system or the accuracy of that data. It is
of concern that advice provided by Mr Singh in that regard was focused on rebutting
the defence, rather than testing the prosecution case or the reliability of the evidence
on which it was founded. It is also of concern to note that this case was investigated
and prosecuted after issues with Horizon had been discussed between Fujitsu and the
Post Office in about October 2010. As was observed by the Court of Appeal, the “root
cause of the shortfall”, which should have been central to the investigation was not
investigated.
439. Other lines of enquiry pursued were limited. In part that may have been because of
the limited nature of the loss involved, but a lack of enquiries into contact with
helplines and as to Ms Hutchings finances is still concerning. The limitations to the
investigation inevitably led to comparable limitations to the disclosure process. In
particular, underlying data from the system was not obtained, reviewed or disclosed
even though the reliability of the system was raised as an issue.
440. More concerning is the nature of the charging decision. The advice I have seen is
limited and engages with neither the full extent of the two limbs of the Code for Crown
Prosecutors, the elements of the offences under consideration or the evidence then
available. Those limitations are called into sharp focus by what transpired at court.
The prosecution accepted a plea to false accounting on the basis that the accounts had
been altered to put off the evil day when a muddle would be discovered rather than
because there had been any money taken. If that was what the evidence showed, and
the evidence does not appear to have changed since the charging decision was taken,
it is difficult to understand how it was concluded that there was a realistic prospect of
a conviction for the fraud offence. As in other cases, if the evidence at its height
demonstrated false accounting, that was the correct offence to charge.
58° POL00055410, POL00001733
158
EXPG000004R
EXPG000004R
JOAN BAILEY
441. Joan Bailey was 50 years old when she was investigated. She was the assistant to her
husband the sub-postmaster for Howey, near Llandrindod Wells in Wales.
442. Unlike the other cases analysed in this report, this is a case in which the defendant was
cautioned for the offence fraud by false representation, contrary to section 2, Fraud
Act 2006, in relation to the sum of £13,044.32. It follows from this that there are aspects
of the Inquiry’s topics of interest, that do not arise in this case.
443. The brief facts appear to be that following an audit on 5‘ January 2011, a cash deficit
was found to that amount. The defendant conducted all the cash counts for the branch.
The auditor identified a cash shortfall, and Mrs Bailey made admissions at the scene,
which she repeated in interview, to inflating the figures to cover up discrepancies with
the Horizon system when trying to balance the accounts, because they could not afford
to pay them.
The investigation
444, The Investigation summary®® was prepared by Stephen Bradshaw, the fraud
investigator. Neither it nor other documents that I have seen identify the CPIA roles
or senior investigator or disclosure officer. It is not clear if each of these roles was
undertaken, or whether an investigator took on aspects of each. The summary records
that a cash shortfall was identified during an audit on 5‘ January 2011. This appears
to have been a routine audit, rather than one resulting from concerns.
445. Although Lawrence Bailey, the sub postmaster had been present during the audit
process, he called his wife, Joan Bailey down when the cash and stock was identified
as being short. This was because she had undertaken the cash check the night before.
Mrs Bailey admitted that the cash was short, and explained that she had found
discrepancies when balancing that she could not make good and so had inflated the
cash, and had done so over a period of months. A written record was made of these
599 POL00057198
591 POL00055918
159
EXPG000004R
EXPG000004R
comments, which Mrs Bailey signed as correct. As she was to explain in interview,
Mrs Bailey was in bed with flu at the time of the audit, and therefore unwell when
spoken to. A full audit was undertaken and a total shortage of £13,044.23 identified.
The contact manager, Colin Burston, suspended Mrs Bailey. The involvement of Mr
Burston in this way would accord with the ‘Managing shortages at audit’ guideline.
446. The fraud investigator, Stephen Bradshaw, made arrangements for Mrs Bailey to
attend for interview with her solicitor. As she explained in the PACE interview™ she
had already been interviewed by the contract manager, Mr Burston. She had told him
that there had been losses since 2010, and that she had been putting money in to cover
these losses but when she could not afford to continue doing so had inflated the cash.
447. There was a PACE compliant interview undertaken on 9 March 20115. Mrs Bailey
was accompanied by her solicitor, and the reasons for the interview had been
explained in advance. It was a voluntary interview, and her rights were correctly
explained to her. She confirmed she felt well enough to be interviewed. Her solicitor
also alluded to the fact that Mrs Bailey was suffering with “a serious short term memory
problem”. The solicitor also counselled Mrs Bailey not to guess at a number of points in
the interview. It is right to note that the solicitor did not object to the interview
continuing.
448. In interview>®, Joan Bailey explicitly raised that the issues with the balancing of the
accounts began after transition to Horizon next generation. She explicitly denied theft.
She had not reported the problem because she did not want to tell her husband. She
had borrowed £9,000 from her daughter to ensure that the cash balanced when the
next generation team had come to check the cash. She maintained it was a system issue.
She said that she had made good a cheque for £59, but it did not show up on the
system, and she was told that it was glitch in the system in relation to accepting
cheques. Mr Bradshaw, the investigator, responded “well I can assure you that whatever
glitches if there is any at the beginning with Horizon next generation has been solved right”.
592 POL00056387
58POL00118154
594 POL00056387
595 ]st interview at 12.32, POL00056387 and 2"4 interview at 13.14, POL00056388
596 POL00056387
160
EXPG000004R
EXPG000004R
449. In her second interview”, Mrs Bailey explained the health problems both she and
their family had suffered, which provided the explanation for why she had not told
her husband about the discrepancies. He did not deal well with stress. She had not
rung the help desk as a result. She repeated that she believed that the Horizon system
was at fault and that it had caused the discrepancies, but the investigators asserted
that the fault lay with the operator, through “carelessness or incompetence” rather
than the system.
450. In terms of other investigative steps, the Investigation summary** records that a
decision was taken not to undertake a search at Mrs Bailey’s address because of the
costs involved given its remote location. Mrs Bailey consented to the obtaining and
examination of her bank records. It does not appear that this was done, and therefore
evidence that Mrs Bailey had indeed not made any profit from the losses, but rather
had been seeking to make them good from her own resources was not obtained. There
is no evidence that consideration was given to speaking to Mrs Bailey’s daughter about
the money borrowed from her. Transaction correction statements were sought after
these were raised in interview™®. There is no reference to an analysis of these.
451. In terms of investigation of Mrs Bailey’s assertions that the discrepancies were the
result of a fault with Horizon, there was no proposal in the investigation report™ that
enquiries be made in this regard. This is rather in keeping with the investigator, Mr
Bradshaw, asserting that there was no such fault in the interview. The limitations of
the investigation are also readily explained by the fact that Mrs Bailey had contacted
the investigator on 14» March 2011 with proposals to repay the loss through the sale
of her home.
452. The material I have seen does include a reference by the auditor to the fact that the
branch operated an outreach service using a “luggable” Horizon system!. She
recorded that this was not operational on the day of the audit but that she returned to
597 POL00056388
598 POL00057198.
59° POL00056138
600 POL00057198
601 POL00062294
161
EXPG000004R
EXPG000004R
check it. It does not appear that this was a relevant issue, but that does appear to be
the only Horizon check made.
The charging decision and Disclosure
453. Jarnail Singh, Senior Lawyer in the Post Office Criminal Law Division considered
whether or not to charge Mrs Bailey on 34 May 2011°°. He noted, by reference to the
investigation report, that the defendant had significant issues with her short term
memory and had recounted a long list of medical issues in interview. The account she
gave indicated a significant amount of stress. This presented the grounds for issuing a
formal caution for the offence of making a false representation, contrary to section 1,
Fraud Act 2006, rather than prosecuting her for that offence.
454, The caution was explicitly made dependent on there being an undertaking from the
conveyancing solicitor that the Post Office would recoup the identified loss from the
proceeds of the sale of Mrs Bailey’s home. The Post Office “summons and cautioning”
policy® identified factors relevant to the decision to caution as including the
sufficiency of evidence of guilt, nature of admissions made and the consent of the
suspect. The type of financial pre-condition here set out was not identified as relevant.
There is similarly no reference to such a pre-condition in the 2010 iteration of the Code
for Crown Prosecutors®4, which again focuses on considerations of sufficiency of
evidence, and whether such a course is in the public interest.
455. There is no indication in the advice provided of any consideration of issues with
Horizon. This is despite the clear references to that system and potential faults with
that system in Mrs Bailey’s interviews, which were accurately summarised in the
investigation report that represented the basis for the charging decision. The lawyer
did not ask for any checks to be made, and made no query in this regard. This is
pertinent, by reference to both the Code and the cautioning policy, because it would
have been appropriate to consider whether there was sufficient evidence to prove the
602 POL00056477
603 POL00104763
604 Para.7
162
EXPG000004R
EXPG000004R
offence and whether it was in the public interest even to caution Mrs Bailey, as
opposed to taking no criminal action against her at all.
456. There was no disclosure process as the case was resolved with a caution.
Assessment
457. Asis clear from the above analysis, the two primary concerns in this case are, first, that
there was no investigation of the reliability or accuracy of the Horizon data relied on
despite that issue being clearly raised by Mrs Bailey in interview, and the decision
being made to caution. As to the first, the stance of the investigator was to assert in
interview that there was no fault in the system, without any checks being made as to
whether or not that was the case, or whether any issue had been reported in the past.
This stance is concerning when it is remembered that it post-dated the discussions
between Fujitsu and the Post Office in October 20105. There was a lack of financial
enquiry to determine whether in fact Mrs Bailey had not only not gained from her
conduct, but had occasioned loss through paying back shortfalls that had arisen.
458. The decision to caution was a compassionate one, by reference to the factors
considered, but both the Code for Crown Prosecutors and the Post Office cautioning
policy required consideration of the sufficiency of evidence. Such consideration was
very limited in the advice, and did not include any consideration, or request for
enquiry into the operation of the Horizon system. I am also very concerned by the
inclusion of a repayment pre-condition to the administration of the caution. lam aware
that in cases investigated by the police, where the suspect had made admissions and
has agreed to pay matters back that agreement would be likely to be a factor relevant
to the public interest in issuing a caution rather than a prosecution. Such agreement
can properly be taken as being a clear potential expression of genuine remorse.
However, in my view there is an important distinction between issuing a caution in
light of a voluntary repayment that has been made, and making such a resolution
conditional upon repayment
It makes, and here made explicit a connection between the use of a criminal sanction
and financial recovery that was inappropriate.
695 POL00055410, POL00001733
163
EXPG000004R
EXPG000004R
ALISON HALL
459. Alison Hall was 42 years old when she was investigated. She was the postmaster at
Hightown sub-post office, near Liversedge.
460. On 30 June 2011, in the Crown Court at Leeds, Alison Hall pleaded guilty to one count
of fraud by false representation in relation to the covering up of a shortfall of £14,842.37
by falsely inflating the cash on hand. A further count of theft of that shortfall amount
was ordered to lie on the file®*. On the same day, she received a community sentence
order with 120 hours of unpaid work. A confiscation order under the Proceeds of
Crime Act 2002 was made in the sum of £14,842.37.
461. The prosecution was based ona shortfall of £14,842.37 following a branch audit. In her
interview under caution, Mrs Hall said that she wanted matters investigated “ because
the Horizon system is not 100%”. She stated it was due to Lottery accounting problems
on Horizon and she had been making manual adjustments as a result. She said “she
[had] also been out before, has taken money out then put it back in”.
462. In the proceeding before the Court of Appeal in Josephine Hamilton v Post Office’, Mrs
Hall was one of those in category A, in which the Post Office “... accepted that in cases
where the reliability of Horizon data was essential to the prosecution and conviction of the
appellant, and where Fraser J’s findings showed that there was inadequate investigation and/or
that full and accurate disclosure was not made, the conviction may be held by this court to be
unsafe on grounds amounting to category 1 abuse.” In particular, in her case, the Post
Office conceded®®: “i)It was improper to make the acceptability of her plea conditional on not
making any explicit criticism of Horizon; ii) In circumstances where theft could not directly be
proved, and the shortfall may not have been a real loss, it was wrong to try to prevent her from
making any criticism of Horizon as part of her mitigation to the charge she admitted.”
606 Indictment POL00091014
sa? [2021] EWCA Crim 577, at §71
608 [2021] EWCA Crim 577, at §117
164
EXPG000004R
EXPG000004R
The investigation
463. The Investigation Report® was completed by Christopher Knight, fraud investigator.
He appeared to be acting as both investigator and disclosure officer. He recorded that
the shortfall had been identified when a Migration Support Officer had attended the
Hightown post office to migrate to Horizon Online and had checked the cash on hand
against the Horizon Cash Declaration. There is a handwritten note made by the
adviser‘! that Mrs Hall had explained “she was having a problem with her lottery when
the case was counted”, and she had reported the matter to the National Business
Support. The identified shortfall led to a full audit, and the closure of the branch. The
investigator invited Mrs Hall to attend for an interview.
464. There was a PACE compliant interview*!!, at which Mrs Hall was represented by her
solicitor, with whom the investigator had made contact in advance. The CS001 form
setting out her rights had been completed with Mrs Hall in advance.*!? In interview,
Mrs Hall repeated that which she had said at the time the shortfall was identified,
namely that she had been encountering problems with scratch cards. There was a
shortfall each time she had a transaction correction with the lottery, and the stock
amounts were “never right”. She gave specific examples. She stated that she had
reported the issues to the lottery and Horizon helplines. As the shortfalls grew, she
accepted that she had falsified the accounts to make them balance. She denied that she
had taken any money from the Post Office, she thought it was a discrepancy with the
lottery.
465. In terms of investigative steps*!3, enquiries were made about calls to the Network
Business Support Centre help desk. The initial inquiry into Network Business Support
Centre logs was relatively time limited to just the period within the indictment,
January-September 2010. The enquiry thus did not also cover the period from 2005
during which Mrs Hall had run the Hightown sub post office, even though previous
contact could have been relevant and disclosable at least potentially. There is no
609 POL00091037
610 POL00091065
11 POL00091065, p.27 and p.38
612 POL00091065, p.25
613 As identified in the Investigation report, POL00091037, replicated in part in POL00090855 and in full
at POL00091037
165
EXPG000004R
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reference to any enquiries being made of the Horizon helpdesk. In the papers I have
seen is a record®!4 of an area intervention manager visit to Hightown in 2006. Such
records do not appear to have been sought, let alone obtained, in the investigation. It
is clear that the prosecution did become aware of issues with conflicting accounts for
helpline reports, because in December 20105 J. MacFarlane asked that inquiries were
made when a “report recently forwarded” contradicted the assertion in the investigation
report that there were calls to the helpline. It is not clear what, if anything, was done.
466. _ Enquiries were made of Mrs Hall’s two work colleagues. Kimberley Large, the counter
clerk, said that she had only become aware of the lottery issue recently, and that Mrs
Hall would tell her to add figures to the cash declaration at the end of the day.
Although the Investigation summary refers to contact being made with the other clerk,
Marjorie Higgins, the account from her is very limited, and, unlike Ms Large her
statement was not included in the committal bundle®'’. Notes in relation to contact
with each appeared on the unused schedule®!’,
467. Enquiries were also made as to the operation of the Lottery scratch card system®!8,
Analysis of the records relating to these, and Transaction correction data, which was
also obtained, led Mr Knight the investigator to conclude “both TCs and stock alterations
do not total anywhere near the £15K loss”. There is no indication the prosecution or
investigation team were aware of the issues with recording Scratch Cards on Horizon.
However, it is evident that Post Office internally did know these were an issue at the
time that Mrs Hall was investigated. In an email exchange in 2013, which appears to
have related to a review of cases, Dave Posnett, a Financial Investigator who was a
fraud risk manager until May 2010 said “the scratch card process worked but some SPMRs
had trouble getting to grips and understanding it. The volume of TCs across the network
were...a concern”. He indicated that Hightown had been identified in this context help
provided. The lack of any reference to these issues in the investigator's report,
14 POL00091355
®15 POL00021351
616 POLO0091149
617 POL00020482
618 Investigation report, POL00091037, replicated in part in POLO0090855 and in full at POL00091037
166
EXPG000004R
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especially if Hightown had been identified as needing support in the context of scratch
cards and their impact of accounting records, is a real concern®!,
468. In considering Mrs Hall’s case, the Court of Appeal observed’ that “POL accepts that
this was an unexplained shortfall case and that evidence from Horizon was essential to Mrs
Hall's case.... It appears as if some ARQ data was obtained but it is not clear whether it was
ever disclosed. It appears there was no evidence to corroborate the Horizon evidence. There was
no investigation into Horizon integrity. There was no proof of an actual loss as opposed to a
Horizon-generated shortage.” It follows that the Post Office accept that this was an
inadequate investigation.
The charging decision
469. There is a very short charging decision by a Post Office lawyer, J.MacFarlane, dated
34 February 2011%!, It was drafted in response to, and relied on, the Investigation
Summary*” in which the Investigator, Mr Knight, had observed “a charge of false
accounting between January and Septentber 2010 would seem appropriate at this time. But an
additional charge of theft should be considered as covering up a loss of this amount must have
been done for a reason and that reason was because she was aware of it and had some
involvement in the loss”. This assertion, at a time when no enquiries had been made into
Mrs Hall’s finances, or the operation of the Horizon system, is concerning. As is the
fact that it was not queried at all in the charging decision.
470. In that charging decision, it appears that the initial decision was to charge theft alone
(although I have not seen the “attached Schedule” that would make this clear). There
is no analysis of the evidence, and in particular any evidence relating to benefit to Mrs
Hall from any loss or evidence of dishonesty. There is also no consideration of public
interest within it. Although it concludes there is a realistic prospect of conviction it
does not appear to consider the issues with proving the defendant has in fact taken the
9 In a Spot Review summary, POL00029604 relating to various cases it suggests that the problem
results from sub postmasters not “remming in” cards. I am unclear as to how this sits with the memo
from Mr Posnett.
620 [2021] EWCA Crim 577, at §165-166
621 POL00091258
622 POL00091037
167
EXPG000004R
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money (as opposed to having lost it accidentally). It identifies a number of further
statements to be obtained. There is no evidence of a review of unused material.
Disclosure
471. Given that this case did concludes at a comparatively early stage, the time period for
disclosure was necessarily circumscribed. However, the schedule of non-sensitive
unused material (the MG6C)3 was produced by the investigator, Mr Knight, on 234
May 2011 and it was signed by the reviewing lawyer on 27 May. However, though
signed it is not endorsed with decisions about disclosure. A number of items relating
to cash declarations and nots of contact with others working at Hightown post office
would appear to have been disclosable. The schedule also does not provide any
reference to, or indications of, contact with the lottery, the help desk in relation to
Horizon. A previous area intervention management log® should have been disclosed
and yet does not appear on the schedule. This case post-dated the discussions between
Fujitsu and the Post Office about the operation of the system in October 2010, and
yet that does not appear to have generated any disclosure.
Circumstances of plea
472. An additional aspect of the case of Mrs Hall that needs to be considered is the
circumstances of her plea. Although the charging decision appears to have resulted in
a theft charge, the prosecution added a charge of fraud by false representation by the
time of the Plea and Case Management Hearing. At that hearing, the prosecution
accepted a plea to that new charge, and the theft allegation was ordered to lie on the
files”,
473. The note of the hearing records that this plea was reached “after negotiations between
counsel”. An email from counsel®s, Adrian Chaplin of 9-12 Bell Yard records that the
623 POL00020482
624 POL00091355
5 POL00055410, POL00001733
626 POL00091014
27 POL00021327
628 POL00021329
168
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defendant was to be sentenced on an accepted basis of plea as per her interview, that
the benefit to her had been that she retained her job and got time to repay the shortfall
by concealing the loss, and noted that she maintained that she had not taken any
money. The basis of plea itself is not included with the papers.
474. _ However, the circumstances of the plea were the subject of comment in the Court of
Appeal”. The Post Office conceded that her basis was accepted after it had been
made”... clear to her that POL would not accept any criticism or blame concerning Horizon.
Inher case it is conceded that: i) It was improper to make the acceptability of her plea conditional
on not making any explicit criticism of Horizon; ii) In circumstances where theft could not
directly be proved, and the shortfall may not have been a real loss, it was wrong to try to prevent
her from making any criticism of Horizon as part of her mitigation to the charge she admitted.”
475. Holroyde LJ observed** “On 30 June 2011, POL’s external solicitor wrote to Rob Wilson
recording what had taken place in court that day, including the basis on which Mrs Hall had
pleaded guilty to fraud as an alternative to theft. Despite the fact that Mrs Hall had not sought
to make any express criticism of Horizon in her defence, the attendance note records the fact it
was made clear that: “the Prosecution would not accept any criticism or blame concerning the
Horizon System.” POL accepts that it was improper to make the acceptability of Mrs Hall’s
basis of plea to fraud conditional on not making any criticism of the Horizon system.
168.In our judgment, such conduct on the part of a prosecutor is bound to bring the justice
system into disrepute.”
Assessment
476. This is a case where the material is limited but some of the same themes emerge here
as in other cases I have already considered. Mrs Hall, when interviewed, raised issues
with the accuracy of the Horizon system and issues with scratch cards. A similar issue
had arisen in the case of Suzanne Palmer in 2006, and yet that does not appear to have
been appreciated, or addressed either as an investigative matter or a disclosure issue.
This is particularly concerning because the email exchange involving Dave Posnett in
201363! he was anecdotally recounting issues with scratch cards and errors arising from
629 [2021] EWCA Crim 577, at §117
630 [2021] EWCA Crim 577, §167-168
631 POL00029604
169
EXPG000004R
EXPG000004R
them in the period when he was a fraud risk manager until 2010 (and thus the relevant
period here), and yet this was not acknowledged or investigated in relation to Mrs
Hall’s case and no disclosure was undertaken.
477. Again, the limitations to the investigation and to disclosure went hand in hand. The
enquiries relating to Horizon and helpline calls were given a very narrow focus. Given
Mrs Hall’s account of problems, such a narrow focus was inappropriate both to test
that account, and to ensure that material relevant to the charges and disclosure was
obtained. Indeed, by reference to the observations of the Court of Appeal, it is unclear
as to whether there was disclosure even of that which was obtained.
478. The charging decision, by reference to the advice seen, was neither thorough nor
conscientious. No analysis of the elements of theft, or the evidence to support them, is
revealed by the advice. Those shortcomings are underlined by the plea process, which
involved an acceptance that it was not possible to prove that any money had been
taken, and that anything more had been done that adjust records to conceal a shortfall
that she had not caused. If that was the position, that should have been reflected by
the charge. It is not clear what purpose it was considered the theft charge had, other
than to encourage a plea to the charge actually made out on the evidence. The
connection of the plea being accepted to a lack of criticism of Horizon, which mirrors
the approach in the cases of Hughie Thomas and Josephine Hamilton, is a matter of
concern for the reasons already rehearsed in those cases and set out so clearly by the
Court of Appeal.
ALLISON HENDERSON
479. Allison Henderson was 50 years old at the time of the investigation and was the sub
postmistress at Worstead in Norfolk.
480. On 15tk December 2010, in the Crown Court at Norwich, Allison Henderson pleaded
guilty to one count of false accounting. No evidence was offered on a count of theft to
which a “not guilty” verdict was recorded. On the same day, she received a
community sentence order with 200 hours of unpaid work. She was ordered to pay
£1,400 towards the prosecution costs. In terms of the charges, the gist of that offending
170
EXPG000004R
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was an allegation that multiple false cash declarations were being made before
balancing statements were produced,
481. Ms Henderson had originally been charged only with theft of £11,957.58 between “2
July 1997 and 11 February 2010”. That date range was subsequently expanded to 1
January 1997 to 11 February 2010 and a charge of false accounting between the same
dates was added, relating to entering false cash figures, following advice from
counsel, She had initially pleaded not guilty. The circumstances of her change of
plea are considered further below.
482. In the proceeding before the Court of Appeal in Josephine Hamilton v Post Office, Mrs
Hall was one of those in category A, in which the Post Office “... accepted that in cases
where the reliability of Horizon data was essential to the prosecution and conviction of the
appellant, and where Fraser J’s findings showed that there was inadequate investigation and/or
that full and accurate disclosure was not made, the conviction may be held by this court to be
unsafe on grounds amounting to category 1 abuse.” In particular, in her case®* the Post
Office conceded: “i) It was improper to make the acceptability of her basis of plea conditional
on her making no issue of Horizon; ii) Since the theft charge had been dropped, POL could no
longer advance a case that she had stolen any money, and it should have been open to her to
suggest that there was no actual loss and she had only covered up a shortfall created by
Horizon.”
The investigation
483. I have not seen an investigation summary, setting out the decisions that were taken,
or any document identifying who performed which roles under the CPIA Code. The
case summary’ indicates that an audit was undertaken at the post office on 10
February and a shortage of £11,957.78 was identified. Arrangements were made for
Ms Henderson to be interviewed.
632 POL00047572
633 POL00054917
4 POL00055541
635 [2021] EWCA Crim 577, at §71
636 [2021] EWCA Crim 577, at §116
637 POL00047572
171
EXPG000004R
EXPG000004R
484. The interview took place on 11'* March 20106. The defendant was accompanied by
the branch secretary as a Friend, in accordance with the form CS003, which I have not
seen. There was, therefore, compliance with those aspects of the Post Office
interviewing policy®. She did not have a solicitor. The transcript does not indicate
whether, and if so why, she declined one, but the CS001 form, which I have not seen,
may have made this clear. In his later statement“, Mr Knight asserted that she had
declined a solicitor. She immediately said that she had no previous knowledge of the
shortages at all and that to the best of her knowledge everything was fine at her branch.
She was asked about the bank trading statement completed by the auditor, and could
not explain the discrepancies. She asked why they had allowed the losses to build
before auditing her, if the system had revealed an issue. She confirmed she counted
the cash each month, and made cash declarations on the system. Horizon was not
raised, except to say that she had only had one day of training on the system.
485. The interview was, however, combative and was indicative of a disciplinary approach
as opposed to an investigative. Ms Henderson observed at one stage“! “you've done the
figures you've drawn your conclusions”, which was a fair description of the investigators’
approach. Given that the primary interviewer, Christopher Knight, was also the
investigator and responsible for disclosure the strength of his conviction that Ms
Henderson was guilty is of concern.
486. In terms of other investigative steps, bank statements were obtained from the
defendant. It is not clear the extent to which these were analysed. A decision was taken
not to search the home address. It is not clear whether there were enquiries as to calls
to the Horizon helpdesk or the NBSC as would be a standard line of enquiry in these
cases. There was no evidence of awareness of Horizon issues in the course of the
investigation, and there does not appear to be any checks on the accuracy of the
Horizon information relied on, or checks as to whether there had been any faults. This
is despite the fact that it was apparent from an early stage that the prosecution thought
there could be a challenge to Horizon, as Mr Wilson, the head of criminal law division
638 POL00054407
9 POL00104758.
40 POL00055452
41 POL00054407, timer 22.00
642 Mr Knight completed the disclosure schedule, POL00055503
172
EXPG000004R
EXPG000004R
identified when the case was sent to the Crown Court, not least because there was a
discrepancy on the Horizon event log identified by the time of the charging decision.
But there is no evidence of knowledge of particular issues with Horizon, and no
specific enquiries identified as being required in relation to it. Although there was later
a suggestion the prosecution would obtain a statement from Gareth Jenkins™® it seems
timelines did not allow for it, and I have seen no correspondence suggesting that ever
did happen.
487. When the case was listed before the Norwich Magistrates’ Court on 12'» August 2010,
Hugh Cauthery, solicitor advocate, appeared. He noted that it would be important
to understand why the audit had been undertaken, and whether the branch trading
statement in January 2010, pre-audit, should have alerted Mrs Henderson to any
discrepancy. If it should, it would be necessary to consider what if any contact she
made with the helpline. I have not seen evidence of such enquiries being made as a
result of this advice.
488. This approach to Horizon as a line of investigative enquiry, as disclosed by the
material I have seen, accords with the observations of the Court of Appeal in this
defendant's case“: “POL accepts that there is nothing to suggest that any ARQ data was
obtained. There was no evidence to corroborate the Horizon evidence. There was no
investigation of the substance of the amended defence statement to the effect that Mrs
Henderson did not accept the loss. There was no proof of an actual loss as opposed to a Horizon
generated shortage.”
The charging decision
489. There were two documents’ produced by Rob Wilson, head of the criminal law
division at the Post Office, dated 25 March and 21st May 2010. The first represents an
advice for further enquires and the latter the result of those. Even taken together, they
643 POL00055305
44 POL00047159
45 POL00055190
©46 POL00055162
647 [2021] EWCA Crim 577, §158
48 POL00047155, POL00047159
173
EXPG000004R
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represent a short charging decision. The advice? raised the question of why it was
contended that Ms Henderson would have been aware of the loss from the last branch
trading statement undertaken before the audit, and asked for a “full accounting pattern”
to be obtained from Horizon for the branch, to show “how much money was paid out,
how much was received in remittances and therefore how much should have been present in the
account”. He also raised the question of when the loss had occurred. These were all
sensible questions to raise. It is not clear that Mr Wilson had received answers to them
before proceeding to charge, and a chaser in August by Mr Wilson®® suggests the
contrary.
490. The charging decision®! concluded that there was a realistic prospect of conviction for
theft. There was no analysis of the evidence. It is clear from the terms of the decision
that it was reached despite it not being clear as to when the thefts started, which
suggests a slight lack of clarity as to how the case was to be put. There was no
explanation of where the money had gone, nor evidence that Ms Henderson had in
fact taken it, rather than lost it beyond the volume of the money involved. The advice
proceeded on the assumption that as she was the only person who had access she must
have stolen the missing money. Whilst the inability to prove where the money went is
not necessarily fatal given the amounts involved, by reference to the Code for Crown
Prosecutors it was necessary to consider this before charging theft, and in particular
whether it could be proved this was not accidental loss, or theft by another.
491. The charging decision decided not to charge false accounting either instead of or as
well as the theft charge, on the basis the lawyer was of the view that charge could not
be proved given the explanations given by the defendant. This is odd, given that the
theft allegation inherently depended on steps being taken by the defendant to conceal
theft through manipulation of the accounts. That was certainly a matter explored with
her in interview. The public interest assessment was limited to concluding it was not
appropriate to give a caution. Even after the case was sent for trial, Mr Wilson was still
49 POL00047155
650 POL00055190
651 POL00047159
174
EXPG000004R
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asking when the last audit took place, with a view to finalising the period over which
theft had occurred®2,
492. When the case was listed before the Norwich Magistrates’ Court on 12*» August 2010,
Hugh Cauthery, solicitor advocate, appeared. He noted®* that the charge had not
included a start date, and added the date in which Ms Henderson had started to work
at the post office, and period of 13 years.
493. Despite this charging decision, it is apparent that a false accounting charge was also
added to the indictment* by the time the case reached the Crown Court. It appears
this was a result of the advice of counsel, Dianne Chan of 9-12 Bell Yard, following
sending®>. It is right to note that Ms Chan does not address the rationale for adding
the charge, and does not consider the implications of the decision in Eden®* for doing
so. She asked for enquiries to be made in relation to the cash in hand figures and
frequency of checks, and it is clear that the period over which it was said that the theft
had occurred, and the means by which it was affected and/or concealed were
uncertain. If the purpose of adding such a charge was to allow the defendant to plead
to it, it is clear that there were limitations on the circumstances in which this was to be
permitted. In November 20107, shortly before trial, Mr Wilson made clear that the
prosecution was not willing to accept a basis of plea alleging issues with Horizon. I
shall return to this email and the circumstances of Ms Henderson’s ultimate guilty plea
below.
Initiation of proceedings
494. Ms. Henderson was summonsed to appear at the Norwich Magistrates’ Court on 12
August 2010. I have seen the summons in this case, unusually for those I have
reviewed®’, It records that it was issued on the basis of an information laid on 21st
652 POL00055305
63 POLO0055162
654 POL00055541
655 POL00055542
656 (1971) 55 Cr. App. R. 183
657 POL00055783
68 POLO0054917
175
EXPG000004R
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June 2010 by Christopher Knight, the investigator who had adopted such a combative
approach in interview. I have not seen that information.
Disclosure
495. A very short schedule of non-sensitive unused material (MG6C)*? was prepared by
the investigator, Christopher Knight, on 24th September 2010. It was signed by a
lawyer, Mr Wilson, but no specific decisions endorsed on it. It included Ms
Henderson’s bank statements, the audit report and the trading statement about which,
if I understand correctly, Ms Henderson had been asked questions in interview. It is
right to note in relation to the last of these that in September 2010%° Mr Knight did
produce trading statements as his exhibits. It is, however, apparent from memoranda
provided when the schedule was served! and again after the first defence
statement? that it was endorsed and signed on the basis everything was clearly not
disclosable (‘CND’). In my view, such an assessment was in error. It can properly be
argued that items 3 to 6 on the schedule (the audit, trading statement (to the extent not
served as exhibits) and bank statement) would in fact have been disclosable as being
capable of assisting the case for the accused, particularly on a theft charge.
496. It is of note that this case followed the updating of the Post Office disclosure of unused
material policy in July 2010.% That policy, at para.3.9, specifically enjoined
consideration of the defendant's interview and defence statement, potential lines of
cross-examination and applications to exclude as reasons to disclose. That is not
reflected in the approach adopted at the outset here.
497. A schedule of sensitive unused (MG6D)** was also prepared by Mr Knight. There is
no evidence that its content, identified as “case papers” which were said to be
privileged, were reviewed by a lawyer. A disclosure officers report (MG6E)%> was
blank.
659 POL00055503
660 POL00055452
661 POL00055305
662 POL00055814
663 POL00104848
64 POL00055291
665 POL00055505
176
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498. Even before any defence statement was submitted, it was recognised by the reviewing
lawyer that Horizon-related disclosure might be necessary. In his memo to the
investigator, Mr Knight, on 29'k September 20106 Mr Wilson said, enquiring about
Horizon documentation, saying: “The current charge covers a period from 1 January 1997
to 10 February 2010. Is there any indication from the Horizon documentation, the defendant's
bank statements or any other material when this money first went missing? Can you confirm
when the last audit took place so that if necessary that date can actually appear in the
indictment? At the moment I suspect that this will be a case where Horizon itself is challenged
and, as such, the Prosecution will be under pressure to disclose a huge amount of Horizon data.
It would therefore be extremely useful if we could identify something that assists the
prosecution in the pursuit of this criminal allegation.” In fact, he had expressed a similar
view in relation to likely Horizon issues even earlier in August.
499, Ms Henderson provided two defence statements between her PCMH and the date
fixed at that hearing for her trial. The initial defence®® statement did not raise issues
with Horizon. It was served on 5 November, two days after PCMH. The second™, a
signed defence statement, did raise such issues in generic terms, and was served on
16'k November 2010 for a trial in the warned list of 29's November 2010.
500. In terms of the content of the defence statements, in the first unsigned defence
statement, served on 5 November 201067, Mrs Henderson stated that she could not
offer an explanation for any discrepancy. She denied theft but accepted that she was
contractually obliged to make good any discrepancies and was making efforts to do
so. In the amended, signed defence statement, served on 16 November 201071, Mrs.
Henderson said that it was her belief that any discrepancy: “was as a result of a
malfunction of the Horizon computerised accounting system ... any discrepancy could have
been discovered by the Post Office auditor, particularly as he initially alleged £18,000 was
missing, this was reduced to the alleged sum in a matter of minutes. Further investigation by
the auditor would have discovered the whereabouts of the alleged missing sum.”
666 POL00055305
667 POL00055190
68 POL00047195,
66° POL00044503
670 POL00047195,
671 POL00044503
177
EXPG000004R
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501. No disclosure followed service of the defence statement®. Mr Wilson®® observed that
the second defence statement alleged that the discrepancy was the result of the
Horizon system, which was not something he was prepared to accept. The email does
not suggest any further enquiries, perhaps because it was otherwise responding to a
suggestion that the defendant might plead to false accounting. This is not consistent
with the proactive response to a defence statement expected of a prosecutor by the
Attorney General’s Guidelines (for example paras.36-37). The lack of Horizon related
disclosure in a case where the expectation of such disclosure was recognised at an early
stage is striking.
502. This was also the conclusion of Harry Bowyer of Cartwright King%4 when he reviewed
the case in 2014 in relation to the post-conviction disclosure of the Second Sight report.
He wrote: “This case differs from the run of the mill case of this type where the defendant
admits false accounting but denies theft. At no stage in interview or in the defence statement
did the defendant concede false accounting by her or, indeed, any dishonesty at all.” He
considered that “had we been in possession of the Second Sight Interim Report we would have
disclosed the matters raised within it when we were in possession of the defence statement”.
503. The Court of Appeal®’5, in relation to Horizon-related disclosure, observed: “POL
accepts that there is nothing to suggest that any ARQ data was obtained. There was no evidence
to corroborate the Horizon evidence. There was no investigation of the substance of the amended
defence statement to the effect that Mrs Henderson did not accept the loss. There was no proof
of an actual loss as opposed toa Horizon generated shortage.”
The circumstances of the plea
504. I The defendant pleaded guilty to false accounting only at a hearing following the
PCMH. The history of the proceedings is relevant to this. She had denied theft and
false accounting in interview, and had originally been charged just with theft. False
accounting had been added to the indictment by the time of the PCMH, which was on
672 POL00055814
673 POL00055783
674 POL00061747
675 [2021] EWCA Crim 577, §158
178
EXPG000004R
EXPG000004R
34 November 2010. At that stage, she had entered not guilty pleas to both offences and
a trial date had been set for the week of 2% November 2010. The attendance note”
records that no prosecution witnesses were required, noting “defence accept there is a
discrepancy which she cannot explain.”
505. It is worth noting in passing that prosecution counsel was delayed reaching court and
so another lawyer covered the hearing at the last minute, but that does not appear to
have been the reason that there was no discussion of pleas at that stage. Rather, it
appears that Ms Henderson was contesting the allegations. That is supported by the
fact that she had then, during November 2010, served two defence statements which
contested her guilt and, in the second defence statement, blamed Horizon for
accounting errors.
506. On 16' November®77, the day on which it appears that the second defence statement
was served*’s, Dianne Chan, prosecution counsel reported “have spoken to defence
solicitor who indicated that the defendant may be willing to plea to false accounting and pay
money back. Taken instructions from Chris who has confirmed that he would be happy to
proceed on this basis”. This appears to be a reference to Christopher Knight, the
investigator. Harry Bowyer’s 2014 review” also recorded that the defence had told
the investigator by phone that the defendant might plead to false accounting. The
immediate response to Ms Chan’s email from Rob Wilson, the head of the Post Office
Criminal Law Division®° was “Clearly if there were to be a plea to false accounting but on
the basis that the Horizon system was at fault then that would not be an acceptable basis of plea
for the prosecution.”
507. In the meantime, the acceptability of such a plea was first floated formally by the
defence by letter on 18 November 2010*!. This plea was accepted on 25" November®*
on the basis that the monies would be repaid, and expressly on the basis that there was
no issue relating to Horizon. In other words, in accordance with Mr Wilson's email,
67 POL00055687
677 POL00055783
68 POL00061747, §5
6 POL00061747
680 POL00055783
681 UKGI00014696
682 POL.00055839
179
EXPG000004R
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the acceptability of the plea was conditional on there be no criticism of Horizon. This
approach was also communicated by the Criminal Law Division to those they
instructed in the case,
508. On 1st December, the case was listed for “plea and Goodyear indication” before His
Honour Judge Binning in the Crown Court at Norwich. The attendance note records
that no such Goodyear indication was given, and that the judge declined to sentence
until compensation was paid because it was a key plank of the basis of plea being
submitted. The case was adjourned until 15% December. In accordance with the
approach laid out in Goodyear, the defence provided a basis of plea® in which it stated
“her guilty plea to false accounting would be accepted on the basis that she became aware of a
discrepancy in the accounts, but dishonestly covered it up by entering false figures in the sub-
Post Office accounts, thereby causing loss to Post Office Ltd, who were kept unaware of the
discrepancy”. Nothing was said about the reasons for the discrepancy. She expressed a
willingness to repay the money. I have seen no written response to this basis.
509. At the following hearing®*, after compensation was paid, a Goodyear indication was
sought and given that there would be a non-custodial sentence. The defendant then
entered her guilty plea and was sentenced. I have seen no papers explaining why the
Post Office took the view that this plea was acceptable. In addition, it is interesting to
note that the Post Office offered no evidence on that charge rather than asking it lie on
file.
510. This chronology was analysed by Harry Bowyer of Cartwright King®?” when he
reviewed the case in 2014 in relation to the post-conviction disclosure of the Second
Sight report. He wrote: “This case differs from the run of the mill case of this type where the
defendant admits false accounting but denies theft. At no stage in interview or in the defence
statement did the defendant concede false accounting by her or, indeed, any dishonesty at all.
The plea, when it eventually came, was only after a Goodyear indication where the Judge
indicated that on a guilty plea there would be no custodial sentence. In a case such as this it
683 POL00055837
684 POL00055863
685 POL00046148
686 POL00055885
687 POL00061747
180
EXPG000004R
EXPG000004R
would be difficult to rule out a pragmatic decision to avoid an immediate custodial sentence as
opposed to an admission of guilt when the defendant entered her guilty plea.”
511. I When the Court of Appeal considered this chronology®**, Holroyde LJ observed: “POL
concedes that it was improper to make the acceptability of Mrs Henderson’s basis of plea to false
accounting conditional on making no issue of the Horizon system. In our judgment, such
conduct on the part of a prosecutor is improper. POL had dropped the theft charge and so could
no longer advance any case that she had stolen the money. POL concedes that that should have
left the way open to Mrs Henderson to suggest that there was no actual loss and she had only
covered up a shortfall Horizon had created.”
Assessment
512. At the outset of the investigation in this case, Mrs Henderson had made clear that she
denied responsibility for the shortfall, but could not explain it. Whilst she did not at
that stage positively assert that the fault lay with Horizon, as she was to do in her
second statement, she did assert that it was caused by someone or something other
than her. In my view, that should have been the catalyst for enquiries as to what te
potential explanations might have been. These included involvement of Mrs
Henderson, by reviewing her finances, considering others working at the premises,
and considering the operation and reliability of the system, both by reference to
helpline calls and analysis of the data. That such lines of enquiry were reasonable here
is underlined by the fact that they were raised by Mr Wilson, the head of the criminal
department. Those lines of enquiry were not, on the face of it, pursued. It appears, as
his approach in interview illustrates, that the investigator had made his mind up
without recourse to any such investigation.
513. I Whilst Mr Wilson is to be congratulated for recognising and advising on these lines of
enquiry, it is disappointing that he did not await, or chase, the results before reaching
a charging decision. Instead, a theft charge was preferred without, on his own analysis,
evidence of the critical elements of that offence. The advice lacks analysis of the
elements of the offence or the evidence. It also appeared to recognise limitations to the
evidence that Mrs Henderson had falsified accounting records, and had thus acted
688 [2021] EWCA Crim 577, §162
181
EXPG000004R
EXPG000004R
dishonestly. Despite this, and without any further documented analysis of the
position, a false accounting charge was added on the advice of counsel which itself
lacked any real or rigorous analysis of the elements of the offences charged or the
sufficiency of the evidence to prove them.
514. The disclosure process in this case was flawed from the outset. The schedule of non-
sensitive unused material was incomplete, was not properly reviewed and a number
of the disclosure decisions reached were in error. There was a failure to reconsider
disclosure in the light of defence statements, and failure to make disclosure as a result.
As was later recognised by Harry Bowyer in 2014, Horizon-related disclosure was
essential, and should have been made before Mrs Henderson was allowed to plead.
The fact that this case post-dated the October 20109 discussions about bugs in the
system underlines that fact.
515. The circumstances in which she did so bear unsettling comparison with the cases of
Hughie Thomas, Josephine Hamilton and Alison Hall. As in those cases, Mrs
Henderson's plea should not have been tethered to the repayment of money which,
on that which was accepted, she had not taken, or to criticism of the Horizon system,
in relation to the operation of which there had been material non-disclosure. The
internal correspondence makes the desire to protect Horizon explicit, and thus all the
more concerning. The absence of loss was a material piece of mitigation that she was
denied by that desire to protect the system.
GRANT ALLEN
516. Grant Allen was Sub-postmaster at Winsford in Cheshire. He was 44 years old at the
time he was investigated. He faced a single charge of fraud by false representation,
contrary to section 1, Fraud Act 2006, committed between 1 April 2010 and 7 February
2012. It was particularised™ as representing that the Post Office had more cash on the
premises than was actually the case resulting in a shortage of £11,705.
689 POL00055410, POL00001733
690 POL00089369
182
EXPG000004R
EXPG000004R
517. The facts are set out in the statement of the Security Manager concerned, Stephen
Bradshaw“. As with all other reviewed cases, this case started with an accounting
discrepancy which led to an audit that found cash shortages. Mr Allen told the auditor
that he had inflated the cash on hand sheets, and that the accounts were short by over
£10,000. The evidence derived from Horizon records. The defendant pleaded guilty
and was sentenced to a 12 month community order with 200 hours of unpaid work.
The investigation
518. The paperwork does not identify specifically who performed the roles of senior
investigator, investigator or disclosure officer for the purposes of the CPIA. Mr
Bradshaw®, the Security Manager, initiated the investigation following the
identification of the £17,811.49 shortfall in an audit on 2"4 February 2012. Mr Bradshaw
was assigned on 23 February 2012, by then the contact manager had already
suspended Mr Allen®. I have seen an email exchange between a Remuneration and
Contract adviser and an Agents Contract Deployment Manager about Mr Allen’s
financial difficulties in January 2012, which appears to have led to the audit. It is not
clear the extent to which this communication, and the information underlying it, was
shared with the investigation at the time. Mr Bradshaw also appears to have acted as
the disclosure officer. It is not clear to what extent his actions were supervised or
directed by an officer in charge.
519. A PACE compliant interview was held on 19 April 20125. The interview was
delayed to allow Mr Allen time to speak to his civil solicitor as well as his criminal
one®’, Mr Bradshaw was one of the interviewers. The transcript records that Mr Allen
declined the assistance of either a solicitor or a “Post Office Friend”. There was a
process to be undertaken in this regard®*®. I have no reason to think it was not
undertaken here. At the beginning of the second interview there was discussion as to
6 POL00089069
682 POL00089096
© the Investigation Case Summary, POL00089426
64 POL00089426
695 POL00089626
6 POL00089670, POLO0089457
697 POL00089426
8 Post Office interviewing policy, POLO0104758
183,
EXPG000004R
EXPG000004R
whether Mr Allen ought to have a solicitor present. He did not want the solicitor
dealing with his claim against his landlord to know about the criminal allegation. A
decision was taken by the Senior Security Manager to continue with Mr Allen
unrepresented™. The applicable PACE Code of Practice” underlines the limited
circumstances in which such a course is appropriate. It is not clear from the material I
have seen that this was appreciated.
520. In interview Mr Allen stated any shortages were as a result initially of a move in March
2010 where the wiring was down for four weeks. He said this resulted in £3,000 loss
and that there would then be loss in the region of £500 that could not be explained. He
explained some of these losses appeared to be other error correction notices. He said
the issues started just after their transition to Horizon online in March 2010. He had
inflated the cash on hand to achieve balance, putting the approximate amount of the
shortage ono the unusable notes line. He did this between April 2010 and February
2012. He denied thefts or knowing that falsifying the accounts could be an offence. He
also said that he had been contacting the Post Office regularly to tell them of the issues.
An alleged significant comment was put to Mr Allen to sign’!. This related to his
admission to the auditor that he had inflated the cash on hand.
521. This was, therefore, from the beginning a Horizon case. Although Mr Allen gave
consent for his bank statements to be obtained”, and Branch trading statements and
Horizon reports were obtained”, it is not apparent that there was detailed
investigation into the transition or issues with training, albeit this was a case where
the charge was put on the basis of fraud. Such material would have still been a
reasonable line of enquiry and met the disclosure test in relation to potentially
dishonesty. Moreover, the underlying issues with Horizon directly tied to the reasons
for the inflating of cash in hand. Mr Bradshaw in the Investigation Summary™ stated:
“during the course of this investigation I have not identified any failings in any security
procedures other than the fact that for whatever reason Mr Alen admits to altering his cash
declarations”.
699 POL00089426, p.5
700 Code C, para.6.6
701 POL00089069
702 POL00089426
703 Bradshaw statement, POL00089069
704 POL00089426, at p.6
184
EXPG000004R
EXPG000004R
522. It is not clear to what extent there was an investigation into the calls to the Horizon
helpdesks and to the National Business Support Centre. Such a line of enquiry was
warranted by Mr Allen’s assertions in interview that he had contacted both. The
investigation summary”® does suggest that the investigation team did obtain a non-
polled report for Horizon after the relocation, detailing some of the issues with the
change of location, and that calls were made to the Business Support enter, and to the
Branch Conformation Team which had no record of calls. It is not clear to me whether
this provided a complete answer to this issue. It was however asserted by Mr
Bradshaw that there were no further enquiries to be made.
523. On 14th May 2014, Mr Allen completed a Second Sight Case Questionnaire”. In this,
he describes experiencing substantial losses from the outset of his use of the Horizon
system. He again complained about inadequate support from the Horizon helpdesk.
There is also reference to issues with the set up of the new branch and an engineer's
report. He observed “the Post Office appeared to show no interest in properly investigating
the matter, but instead felt that they could simply prosecute and reclaim any differences
regardless of whether they were real or not”.
Charging decision
524. I The charging decision followed undated advice from Cartwright King””. It considered
the audit evidence and Mr Allen’s interview. It does not appear that any other
evidence was available. It thus relied heavily on Mr Allen’s admissions in interview.
It did consider briefly the complaint history, or, by reference to the Investigation
summary, the lack thereof, as well as the relevance of the defence case.
525. It correctly identified that the key issue would be dishonesty but, beyond asserting
that ignorance of the law was not a defence, it did not address Mr Allen’s own belief
as to whether this behaviour was dishonest. This is arguably surprising bearing in
mind that until the re-consideration of the test for dishonesty in 20177, the test in
705 POL00089426
706 POL00089642
707 POL.00086286
708 Ivey v Genting Casions (UK) Ltd [2017] UKSC 67; [2018] AC 391 and Barton [2020] EWCA Crim 575,
[2021] QB 685
185
EXPG000004R
EXPG000004R
Ghosh” was good law and thus it was necessary to consider both whether Mr Allen’s
conduct was objectively dishonest and whether he must have realised that it was, by
those standards, dishonest. There was, in this context (albeit not expressly)
consideration of the implications of the lack of evidence of calls to the Branch
Conformation Team as to whether Mr Allen believed there was a genuine data error,
but no question was raised as to whether such an error had occurred by reference to
consideration of the Horizon system.
526. The charging advice did not expressly consider the public interest test at all, beyond
noting the level of loss, although it did consider the suitability of non-conviction
disposals.
Horizon evidence
527. This case directly involved concerns about Horizon integrity. It arose after the
discussions between Fujitsu and the Post Office in October 20107! and it was also
ongoing in 2012 when the Second Sight investigation began7"!. The Post Office were
aware of the existence of the independent review and confirmed to the defence that
that process was beginning. It is unclear from the context whether they disclosed this
independently or if the defence raised it. The fact that it was ongoing would itself have
been disclosable.
528. This is a case in which a statement from Gareth Jenkins, dated 17 December 20127!2,
on Horizon integrity was served. The statement purports both to provide some general
information regarding the integrity of the Horizon system, and to address Mr Allen’s
assertion of a £3000 discrepancy resulting from Horizon non-polling. It confirms that
there were communication issues between Horizon and the Data Centre at the time
that Mr Allen claimed there was a discrepancy (March 2010) but was of the view that
it should not have impacted on data recorded locally. The statement does, however,
accept a network failure followed by a terminal failure could lose transactions.
However, the statement goes on to say that he has run through hypothetical issues
708 [2981] QB 1053
71© POL.00055410, POLO0001733
71 POL00089376
72 POL00089077
186
EXPG000004R
EXPG000004R
with integrity and concluded there was no evidence of any issues. Two exhibits
(G/178 and GIJ/27!4) were served relating to integrity. The issues Mr Jenkins had
addressed in September 201075 report relating to bugs in the system were not
addressed, and no disclosure of them was made by him.
529. I There was email contact between Cartwright King, acting for the Post Office, and Mr
Jenkins in November 20127¢ informing him of their intention to serve a generic
statement from him in relation to Horizon in a range of cases where complaint was
made about the system’s operation. It was observed by Rachel Panter of Cartwright
King in that context “it should be noted that to date most, if not all cases raising the Horizon
system as an issue have been unable/not willing to particularise what specific issues that they
may have with the system and how that shapes the nature of their defence”.
530. It is worthy of note that this email is as near as I have identified to a letter of instruction
to Mr Jenkins for an expert report. The same email is also relevant to the cases of
Angela Sefton and Anne Nield, and of Khayyam Ishaq7!’. Each of those cases is
considered in detail below. It is to be read alongside the email to Mr Jenkins from
Andrew Bolc of Cartwright King, dated 4 December 2012, asking him to comment on
the scenario “ that an initial loss of £3000 is attributable to lost data which has not reached
head office because of installation problems”. The email goes on “ultimately we would need
to discredit this as an explanation that holds any water” . It appears from the ‘Gareth Jenkins
chronology’7'§ that there had been limited contact with him in relation to Mr Allen’s
case before this. The underlying and referenced material will need to be checked to
establish the extent to which this is correct.
531. By reference to the analysis of the instruction of experts in my Volume 1A, the
correspondence to Mr Jenkins falls short of any full and effective instruction of an
expert as to his duties and responsibilities. Neither the material I have seen, nor for
that matter does the ‘Gareth Jenkins chronology’ suggest that the relevant/asserted
correspondence reminded him of his duty to disclose anything that would undermine
713 FUJO0080526
714 POL00089115,
715 POL00001733
716 POL00089393
717 POL00059404
7!8§ POL00165905, para.214
187
EXPG000004R
EXPG000004R
his opinion. Given his September 2010 report7!’, this would have been a very pertinent
reminder.
532. Mr Jenkins statement made clear that he had not examined the detailed logs to see if
there were any issues or any justification in the claim this resulted in system losses of
£3,000. This is an unfortunate failure in the evidence, given that he was aware of the
specific issue raised by Mr Allen, and did not follow through in the investigation of it.
It appears that this was a Post Office decision, however”. There was discussion about
this between Andrew Bolc from Cartwright King, Mr Bradshaw, the Security Manager
investigating Mr Allen, and Mr Jenkins in December 20127!. Mr Bolc recounted that
Mr Jenkins had said that it was “possible for him to retrieve the actual data from this time
to see what actually occurred at this branch and that the retrieval of the data is free to POL”.
Mr Jenkins, having been informed of Mr Allen’s account by Cartwright King and
asked to comment on it, had offered, on 5!" December, to examine the data in addition
to making a general statement. On the same day he was told to make the general
statement, and it was considered that the statement ultimately served was sufficient.
This appears to have been decided between the investigator and prosecutor”.
533. In January 2013, Mr Jenkins was informed by Rachael Panter” that Mr Allen’s case
was concluded. He replied asking about the status of Mr Allen’s case, because “I was
particularly concerned about his allegations regarding the problems cause due to the
refurbishment and comms issues being the reasons for some of his losses. Was anything said
publicly about any of that? We were quite concerned that this might set a precedent”. lassume
that the “we” in that context was Fujitsu. It should be noted that his concern for his
employer's reputation, if so, is not consistent with the required independence of an
expert.
534. The other issue, in the context of the charging decision and the continued duty of
disclosure, to which these email exchanges give rise is that Cartwright King, acting for
the Post Office and with a continuing duty of review of prosecutorial decisions, did
not appear to have identified in late 2012, for example, that there were, as Rachel
719 POL00001733
720 POL00165905, para.214
721 POL00089380 and POL00165905, para.217
722 POL00165905, para.218
723 POL00089380.
188
EXPG000004R
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Panter put it, a number of cases where issues as the reliability of Horizon had arisen
and yet no steps appear to have been taken to step back and to consider what the
implications of that might be, and what steps were needed to investigate, as opposed
to rebut, such issues. There was neither discussion of necessary disclosure arising from
this, nor actual disclosure.
Instruction of counsel
535. It seems from a note of the plea and case management hearing that John Gibson was
instructed for the prosecution at that stage”4. This records that prosecuting counsel
was not entirely happy with the basis of plea put forward, which was to the effect that
“he cannot account for the loss but admits covering it up” . This basis was identified as being
acceptable to the Post Office. It is unclear what counsel’s concerns were or what
discussion was had. The judge, His Honour Judge David Hale, is recorded as being
content to sentence on the basis advanced given that the defendant was not charged
with theft.
Disclosure
536. A schedule of non-sensitive unused material (equivaled to an MG6C) was created in
April 2012. The copy I have seen”> was only signed by Stephen Bradshaw as the
investigator, on 19k September 2012, and it is not clear if it was reviewed by the
Reviewing Lawyer and in fact disclosed to the defence. In that regard it is right to note
that Mr Bradshaw provided this schedule to Andrew Bole of Cartwright King on 24%
September 2012 as part of the committal bundle. It appears that a schedule of sensitive
unused and a disclosure officer’s report (equivalent to an MG6D and MG6E) were also
created but I have not seen them.
537. The non-sensitive unused schedule seems comprehensive in terms of correspondence
with the defendant and interview-related material, although the descriptions of the
letters to the complainant do not seem sufficiently particularised to allow a decision to
be made on disclosure. Again, this falls short of the requirements of CPIA Code
724 POL00089065
725 POL00089348
189
EXPG000004R
EXPG000004R
para.6.9, in the need to make clear the nature of the item and whether it needs to be
reviewed. However, there is nothing in the schedule relating to any investigation into
Mr Allen’s finances (and for example the material relating to Post Office internal
communications about his financial difficulties in January 20127), the transition or
issues with training, albeit this was a case where the charge was put on the basis of
fraud, and at some point a chronology of the relocation’”” was obtained. There is also
no reference to any material generated by an investigation into the calls to the Horizon
helpdesks, the Branch Confirmation Team and/or the National Business Support
Centre.
538. It is of note that this case followed the updating of the Post Office disclosure of unused
material policy in July 2010.78 That policy, at para.3.9, specifically enjoined
consideration of the defendant's interview and defence statement, potential lines of
cross-examination and applications to exclude as reasons to disclose. The Attorney
General Guidelines similarly expect the defence statement to be a springboard for a
re-review of both lines of enquiry and disclosure, with the prosecutor as a proactive
force in that regard (see for example paras.36-37). They also are required to consider
the need for contact with third parties relevant to disclosure (see for example para.54).
That is not reflected in the approach adopted here.
539. This case also post-dated Mr Jenkins’ September 2010 report” re bug fixes and was
also ongoing in 2012 when the Second Sight investigation begun”. The Post Office
were aware of the existence of the independent review and confirmed to the defence
that that process was beginning. This was in relation to a defence request”. The fact
that it was ongoing would have been disclosable but this would not have featured on
an unused schedule that I have seen.
540. Of particular concern there is no evidence of disclosure relating to the Jenkins report.
Instead, there is email correspondence between Cartwright King and Gareth Jenkins
in relation to the initial losses in which Gareth Jenkins raises the possibility of analysis
726 POL00089393
727 POL00089626
728 POL00104848
729 POL00001733
730 POL00089348
731 POL00089376 - this is also referred to at POL00089674 §11
190
EXPG000004R
EXPG000004R
of further raw data’*?. Whilst the cost of that data analysis may have justified not
conducting that work (or awaiting generic evidence), clearly that data should have
been retrieved and disclosed to the defence. Instead, the data was viewed as
potentially only relevant to the prosecution case and so the data was not requested
and provided to the defence, who could have sought to instruct their own expert.
Moreover, the issue was further discussed in email correspondence involving Mr
Jenkins” in terms of the precedent that might be set by Mr Allen’s claims, rather than
disclosure of any material that might assist such an expert in reviewing them.
541. _ Those concerned were raised by Simon Clarke, a barrister on behalf of Cartwright King
who undertook a review to determine whether disclosure of the Second Sight and
Helen Rose Report would have undermined the safety of the conviction “4. He
observed: “I am concerned by the defendant's assertion that the original £3000 loss was the
result of an non-polling incident, particularly because Dr Jenkins confirms that such an
incident took place. More worrying is Dr Jenkins’ failure to properly respond to that assertion
~ he should have looked into the data to determine whether or not the non-polling incident has
been the cause of the otherwise unexplained loss. In this regard I cannot escape the proposition
that had the Second Sight Interim report been available to use during the currency of this
prosecution it would undoubtedly have met the test for disclosure to the defence , touching as
it does upon Horizon defects”. Simon Clarke also considered that the Second Sight
Report should have been disclosed, had it been available, because of tis criticism of the
Post Office in relation to problems of support for sub postmasters of the kind of which
Mr Allen had “vociferously” complained.
542. In accordance with that conclusion, the reports were disclosed to Mr Allen’s solicitors
in July 2013.75
Assessment
543. There are a number of areas of very real concern in this case. It was clear from the
outset that critical issues were whether Mr Allen had caused a loss, or whether there
732 POL00089378, POL00089380
733 POL00089380
734 POL00089674
735 POLO0089682
191
EXPG000004R
EXPG000004R
had been failings in the system, and whether he had acted dishonestly. The proper
assessment of the Horizon data, and proper disclosure in relation to anything that
might undermine assertions as to its reliability, were critical to the proceedings being
fair. There were failures both in investigative and disclosure terms in relation to
financial enquires relating to Mr Allen, contact with helplines, and, critically, the
operation of the Horizon system. This case arose quite some time after bugs in the
system were discussed in September-October 2010, and yet that does not appear to
have resulted in any thought to, or fact of disclosure.
544. I The charging decision correctly identified that dishonesty was a key issue in terms of
establishing the prosecution case, and yet the charging decision was reached without
any real analysis of how it was to be proved. The public interest was similarly not
analysed in any meaningful way.
545. The greatest concern in this case is the instruction of and reliance on expert evidence
from Mr Jenkins to rebut any question as to the integrity and reliability of Horizon.
First this is because his offer to examine the data relating to Mr Allen’s branch and his
complaints was rejected in favour of a generic statement. This was clearly a missed
opportunity for which little justification was advanced. Secondly, given that his
generic statement was relied on, it is of note that Mr Jenkins was in possession of
material directly relevant to that question, which is no where referred to. His duty of
disclosure ought to have at least required consideration of this, and I have seen no
communication to suggest this. A generic report was served, which was flawed both
in relation to this issue and also in relation to the limitations of the analysis of actual
data that would have confirmed whether the Horizon system was operating correctly
or not. Whilst there was discussion of this with Mr Jenkins, there does not appear to
have been any disclosure of these important limitations. These represented very real
disclosure failings in relation to expert evidence that the prosecution was relying on.
ANGELA SEFTON AND ANNE NIELD
546. Angela Sefton and Anne Nield were both employed as clerks (sub office assistants)
under, rather than themselves being sub postmasters. They worked at the post office
192
EXPG000004R
EXPG000004R
in Fazakerley. The sub postmaster did not run the post office on a daily basis, and that
role fell to Ms Nield with the assistance of Ms Sefton. They were jointly charged with
a single count of false accounting between 1 January 2006 and 6 January 2012 relating
to falsifying giro deposit entries by omitting material particulars relating to deposits
of £34,115.50 from Animals in Need. In short, the allegation was that their false
accounting was designed to cover up cash shortfalls by delaying the paying in of
cheques from Animals in Need, a charity which banked at that Post office.
547. As with other reviewed cases this case started with an audit that found cash shortages.
A shortfall of £4000 had been identified in 2009, which the sub postmaster took
responsibility for, but then recovered from Nield and Sefton’s holiday pay.
Interestingly the audit occurred after Ms Nield phoned Stephen Bradshaw the security
manager who was to act as the investigator in this case to ask to speak to him about
work issues. This call seemed to be the result of the two defendants finally not being
able to keep covering shortfalls. However, inquiries were already being made after a
complaint by Animals in Need of cash flow issues resulting from the late crediting of
giro deposits”6,
548. Both defendants entered pleas following a Goodyear indication’*” and received
sentences as follows:
(a) Anne Nield was sentenced to five months’ imprisonment suspended for 12 months
(with a supervision order for 12 month and a programme requirement for 20 days);
and
(b) Angela Sefton was sentenced to six months’ imprisonment suspended for 12
months (with the same requirements).
The investigation
549. The paperwork does not identify specifically who performed the roles of senior
investigator, investigator or disclosure officer for the purposes of the CPIA. It appears
736 Opening note by John Gibson, POL00044050
77 The process for the obtaining of a indication as to sentence, following the case of Goodyear [2005] 1
WLR 2532, is addressed in my first report at para.171
193,
EXPG000004R
EXPG000004R
from the material I have seen that Stephen Bradshaw was both investigator and
disclosure officer. Again, no officer in charge is identified.
550. The investigation’°* appears to have started in part because of Animals in Need raising
issues with the delayed crediting of funds to them, and in part an issue identified with
missing deposits™’. It was about the same time that Ms Neild contacted the
investigator, Stephen Bradshaw. She did so because she could no longer cope with the
shortfall issues. This led to the audit on 6 January 2012 which revealed withheld
deposits that had been held back to cover shortfalls in the accounting system.
551. At the time of the audit, both defendants provided a joint witness statement”!
detailing that the initial shortfall of £4000 occurred during a change of computer
systems in 2005, but that they could not explain how the other issues arose. They said
that the Post Office had left this shortfall in abeyance for six months and then the sub
postmaster had required them to make it good. They had sought to do so from their
own finances, for example by not taking any time off, and had started to delay
payments when their own funds were exhausted.
552. Each was interviewed in a PACE-complaint fashion on 20' January 201272, in the
presence of the same solicitor. In these interviews, each was adamant that they had not
taken any money from the Post Office. Possible explanations for the accounting issues
were suggested by the defendants included transposed figures or error notices.
553. Statements were obtained from Animals in Need (and exhibits of when cash was
credited versus payments made at the Post Office) as well as from the sub postmaster
at the Fazakerley branch (as to the initial shortage and conversations had). These
statements, and indeed only these statements, had been identified as necessary in the
charging advice”.
738 By reference to the opening note, POL00044050
73° POL00044050
749 POL00057389
7 POLO0043958
742 Sefton, POL00044010 and Nield, POL00057389
748 POLO0057495
194
EXPG000004R
EXPG000004R
554. In terms of investigative steps that were taken searches of the defendants’ houses were
conducted. Bank authority forms obtained from both. Schedule of payments were
obtained as were the National Business Support Centre call logs. Horizon prints and
Branch trading systems were obtained, although the extent of these is not clear. In draft
instructions to counsel” Andrew Bolc of Cartwright King referred to the intention to
instruct Mr Jenkins, but there does not appear to have been any consideration as tot eh
obtaining of the underlying data either before that or for that purpose. Stephen
Bradshaw made a further statement in December 20127 in which he addressed
enquiries made about calls to the National Business Support Centre, and he produced
records relating to one that had been identified.
Charging decision
555. The only charging decision I have seen takes the form of a short letter prepared by
Cartwright King, dated March 20127°. There is no detailed analysis of the evidence,
before the conclusion that there was a realistic prospect of a conviction for false
accounting was reached. There was, in this regard, no consideration at all of the
explanation advanced by the defendants of needing to cover shortfalls that had started
when the computer system was changed in 2005. There was also no consideration of
whether or not there was subjective dishonesty on the part of either defendant, or
evidence of any financial benefit (for example from bank records).
556. The charging advice did consider charges of theft but concluded there was insufficient
evidence to prove it. It observed: “whilst there remains a suspicion that both Sefton and
Neild were involved in theft of the losses concerned given their prolonged attempt to cover these
up, they could blame each other, making individual responsibility difficult if not impossible to
ascertain, and at present there is insufficient evidence surrounding the handling of cash at the
branch to rule out the possibility of a third party being responsible”. The advice did not
suggest any enquiries into the financial position of the defendants, for example to
assess the extent of their payments of shortfalls from their own finances (as their joint
statement said), to consider the evidence of their benefit, or to investigate the operation
™ POL00165905, para.229
745 POL00044047
746 POL00057495
195
EXPG000004R
EXPG000004R
of Horizon at the branch in 2005 and thereafter. In short, no consideration was given
to the case theory of how these shortages actually were caused, nor to the relevance of
their account in relation to the same to the evidential test.
557. Although nominally at least the first limb of the Code for Crown Prosecutor's test, as
to evidential sufficiency, was addressed there was no explicit consideration of the
public interest test at all, except to note that in the view of the charging lawyer a
caution was not suitable).
558. I have not seen any advice from counsel instructed seeking to engage with any of these
issues as to evidence thereafter. It is of note that as late as the prosecution opening note
for trial”47, it was being suggested that money had been dishonestly removed from the
Post Office by the defendants rather than just delaying the Animals in Need payments
to cover accounting irregularities.
Disclosure
559. A schedule of non-sensitive unused material (equivaled to an MG6C) was created in
May 20127. The copy I have seen”? was signed by Stephen Bradshaw as the
investigator, on 28th May 2012, and it was reviewed by the Reviewing Lawyer, Jarnail
Singh, on 19* June 2012. All the material listed was marked “CND”, meaning clearly
not disclosable. It included documentation in relation to the interviews and financial
evaluation sheets. At least item 1 in the schedule (the underlying print outs) and items
14 and 16 (the defendants’ antecedents) would clearly have been disclosable. This
appears to be indicative of a non-thinking approach to disclosure. It is also very
limited in its reference to financial investigation in relation to the defendants, and there
is no reference to any material generated by an investigation into the calls to the
Horizon helpdesks, the Branch Conformation Team and/or the National Business
Support Centre.
747 POL00044050
748 POL00057949
749 POL00089348
196
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560. It is right to note that Stephen Bradshaw made a further statement in December 2012,
in which he addressed enquiries made about calls to the National Business Support
Centre, producing records relating to one that had been identified. It is concerning on
the face of this statement that only a selection was disclosed, rather than the totality of
the calls, and that no disclosure was made of other material generated in response to
the calls. These limitations are highlighted by the fact that those acting for Ms Sefton
sought further disclosure™! of that which should have been disclosed in the first place,
and which is not addressed as being material held by the prosecution in the unused
schedules.
561. It is also concerning, as the correspondence from the defence in March 2013 shows,
that Mr Bradshaw’s statement dealing with matters raised in Ms Sefton’s interview in
January 2012 was not served until February 2013. It is also of note that those acting for
Ms Sefton made a further request for disclosure of the “unmodified, unedited call logs in
original format of all calls to the Business Support Centre and the Fujitsu help desk” in April
2013. It is clear, therefore, that proper disclosure of contact by Ms Sefton and Ms Nield
with those bodies in the period since 2005 when there were potential problems with
the system had still not been made.
562. A further schedule of non-sensitive unused material (MG6C) 7°? was issued on 18'*
February 2013, again signed by Mr Bradshaw. This sheet was reviewed by the lawyer
Jarnail Singh, and appears to have had a more thinking method applied, in that each
entry has a separate endorsement, identifying where an item listed had in fact been
served, and did include disclosure of the PNC for the sub-postmaster, who was a
prosecution witness. In itself, there are no obvious issues with it, but the same
comment applies as to the original schedule in May, that it does not show investigation
or disclosure relating to the financial investigation or enquiries relating to Horizon.
563. The absence of any evidence in the schedule of any enquiry relating to Horizon by the
time of this further schedule is concerning because by then it was very clear that, as
the case progressed, it became explicitly a Horizon case. Ms. Sefton raised knowledge
750 POL00044047
751 POL00044219
752 POL00059750
197
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of issues with Horizon in her defence statement, served in July 2012. In particular,
she said that “significant shortages/losses had been a com on experience in the past. Losses
started to occur from 2005” and added “ the defendant also prays in aid of her defence the fact
that the Post Office computer system known as Horizon installed sometime in 2005 has been
the subject of criticism in the press...at the heart of their complaint is the fact that the Horizon
computer system is to blame for these apparent losses due to some form of technical
malfunction”. She sought disclosure, amongst other things, of “details of any
complaints made to the Post Office regarding the operation of the Horizon computer
system from 2005 onwards”, and disclosure of details of MPs who had raised concerns
on behalf of affected constituents.
564. Ms Neild raised similar concerns in her defence statement, which in the copy I have
was faxed on 14tt September 2012. She asserted that she “believes that such losses may
gave shown as a result of failures in the Horizon computer system”, and sought disclosure
of “details of complaints and investigations into the Horizon computer system”.
565. A statement from Gareth Jenkins was obtained, dated December 2012”. It appears it
was served on 6'* December”, It refers in terms to Ms Sefton’s defence statement and
what it said about Horizon. However, the statement dealt only with Horizon
generically. He asserted that in 2005 “there has been no indication of there being any issues
regarding this change”. It concluded “I fully believe that Horizon will accurately record all
data that is submitted to it and correctly account for it. However, it cannot compensate for any
data that is incorrectly input into it as a result of human error, lack of training or fraud (and
nor can any other system”. There is no reference by Mr Jenkins in his statement to his
own September 2010 report addressing a fix for an identified bug”’, or any suggestion
of any issue with the operation or reliability of Horizon. This raises issues both as to
the accuracy of the report, and as to failures of disclosure of material relevant to an
expert's opinion.
753 POL00044036
754 POL00044042
755 POL00059424
756 POL00165905, para.231
787 POL00001733
198
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566. This statement, in its generic content, mirrors that served in the case of Grant Aller,
in which Mr Jenkins’s statement reviewed data specific to that defendant and said that
he had also run through hypothetical issues with integrity and concluded there was
no evidence of any issues. There is no comparable review of any Horizon data for the
Fazakerley sub-post office, and no reference to such “hypothetical issues”. In the
context of Grant Allen’s case, Mr Jenkins had offered to retrieve the data to check
exactly what happened”, and the decision had been made by those instructing him
not to do so. I have not seen comparable emails in relation to the preparation of the
statement served in the case of Ms Sefton and Ms Nield, save that there was email
contact between Cartwright King, acting for the Post Office, and Mr Jenkins in
November 20127, informing him of their intention to serve a generic statement from
him in relation to Horizon in a range of cases where complaint was made about the
system’s operation, including that of Ms Sefton and Ms Nield. It was observed by
Rachel Panter of Cartwright King in that context “it should be noted that to date most, if
not all cases raising the Horizon system as an issue have been unable/not willing to
particularise what specific issues that they may have with the system and how that shapes the
nature of their defence”.
567. It isalso clear that at the time of Ms Sefton’s defence statement Post Office investigators
and Cartwright King, acting for the Post Office in criminal litigation, were aware of
other alleged issues with Horizon. In an email exchange in July 2012, Jarnail Singh, a
Post Office lawyer in their criminal team, said that Second Sight were to undertake a
review of the Horizon system “after a number of meetings between Post Office Management
and Members of Parliament” . In this context, a disclosure form of words, described as a
“story” was prepared addressing this issue. It is concerning that the email thread
suggests that this form of disclosure was partially prepared by the Head of PR and
Media at the Post Office. This form of words”! disclosed that a number of complaints
had been made about Horizon, and that a detailed review was to be carried out. It then
explicitly stated that “ this is in no way an acknowledgement by the Post Office that there is
an issue with Horizon. Over the past ten years, many millions of branch reconciliations have
been carried out with transactions and balanced accurately recorded by more than 25,000
758 POL00089077
759 POL00089378
760 POL00089393
761 POLO0058306
199
EXPG000004R
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different sub postmasters and the Horizon system continues to work properly in post offices
across the length and breadth of the UK. When the system has been challenged in criminal
courts it has been successfully defended.”
568. At the time of these emails, Andy Cash from Cartwright King’ told Jarnail Singh (and
others) that Horizon issues had arisen both in this case and in a case at Peterborough
and that there was a desire for counsel to speak to each other for consistency. This
would be a sensible measure but it is not clear the extent to which that happened. It is
also not clear the extent to which disclosure was made to counsel by those instructing
them, or the extent to which, if disclosure was made, there was advice as to the extent
of disclosure to be made to those defending in those cases or other Post Office
prosecutions.
569. There were significant limitations to the disclosure form of words. It did not
particularise the complaints raised, their nature or number, the issues they raised or
the time period over which they had been made. It also does not address actual bugs
that had been identified. Whilst it is right to say that a complaint in and of itself could
arguably be categorised as hearsay, and that there might have been limitations in itself
to the degree of support that a complaint or number of complaints might make to the
defence of Ms Sefton and Ms Nield, if any had resulted in disclosure of issues with
Horizon that could have supported the issues in this case then that underlying
material should have been disclosed. It also would have provided a basis for the
instruction of an expert on their behalf, or for more focused disclosure requests by
them.
570. In the same way, previous statements of Gareth Jenkins in other cases may have been
disclosable even if they were only addressing “hypothetical issues”. The provision of
that information would have allowed the defence to test Gareth Jenkins views on the
veracity of the system. The same applied to that which Mr Jenkins had addressed in
September 2010. It is a very significant concern that a report was served asserting the
integrity of the system at a time, and without reference to issues that had been
identified and addressed by that same expert two years earlier.
762 POLO0058110
200
EXPG000004R
EXPG000004R
571. It does not appear that the form of words promulgated in July 2012 had been disclosed
to those acting for Ms Sefton and Ms Nield by September 2012 because on 12%
September there was an application for further disclosure made pursuant to section 8,
CPIA’, which made no reference to it. It is inconceivable that the application would
have referred, as it did, to press reports of concerns about Horizon and an
understanding that MPs had been involved if disclosure had been made that
confirmed both of those facts. The application identified two reasons why “ material
which suggests that the Horizon system has accounting faults” was disclosable. First, it was
relevant to the subjective element of the test then applicable for dishonesty”, and
secondly to the question of whether Ms Sefton intended to make a gain for herself or
to cause a loss to another, for the purposes of section 17, Theft Act 1968. It is pertinent
to note that these reasons ought to have been identified by lawyers involved in the
disclosure process at the Post Office, and considered at the time of the charging
decision. I have not seen evidence that they did consider them at either stage.
572. Cartwright King responded to the section 8 application on 18 September 201276. It
appears that the disclosure form of words’ was provided at this stage, and the offer
was made to permit a defence expert to review the relevant data. It does not appear
that any further disclosure was made at this stage. This response on 18 September
was preceded by email discussion between Andrew Bolc of Cartwright King and
Jarnail Singh on 14th September’’”. There was reference to an overview document
having been created as to challenges, and it appears to be acknowledged that the
prosecution may well have been in possession of information from other cases that
could have fallen to be disclosed which was not. Rather, reference was made to the
future disclosure of a report from Fujitsu, presumably Mr Jenkins’ December 2012
statement, and the Second Sight review. Prosecution counsel were informed of this
future disclosure, but their instructions did not refer to earlier cases, earlier
investigations or any earlier report from Fujitsu.
763 POL00044041
764 Pursuant to Ghosh [1982] 75 Cr. App. R. 154
765 POL00058306
766 POL00058383
767 POL00058298
201
EXPG000004R
EXPG000004R
573. The limitations to Horizon-related disclosure are highlighted by the further requests
made for such disclosure on behalf of Ms Nield, in February 20137, when a request
was made for a copy of the Audit in 2005 that was said to follow the switch to Horizon,
and on behalf of Ms Sefton in April 20137”, when further requests were also made for
the emails referred to in the portion of the call log which had been served and
transaction records relating to Horizon. Given the issues raised on the defendants’
behalf in interview, and through their defence statements, this was material the
disclosure of which had to be considered by the prosecution, and where appropriate
made by the prosecution without the need for such chaser requests.
574. This case came very close to trial. There were, for example, draft agreed facts
prepared”, and an opening note drafted”. It is clear that even shortly prior to trial in
April 2013 there were outstanding disclosure issues. These were acknowledged in a
certificate of trial readiness in April”. That certificate, and internal correspondence
make clear that despite outstanding disclosure requests, such as that from Ms Sefton
in April’, the Post Office did not apply to adjourn because disclosure was still
outstanding at trial. It is right to note that the trial was not reached, but there had been
no indication that I have seen of the Post Office either proposing an adjournment or
recognising the need for one.
575. The trial was due on 15 April 2013. However, following a hearing on 11* April 2013
the defendants entered pleas. It appears that at this hearing there was a Goodyear
indication given. This means that following the procedure set out in Goodyear”, the
court indicated the type of sentence to be expected, and the defendants decided to
plead rather than risk a trial. As is obvious, they made that decision on the basis of
that which had by then been disclosed to them as to the operation of the Horizon
system. The limitations to that are highlighted by the fact that, post-conviction, there
was disclosure of the Second Sight and Helen Rose reports’, which it was accepted
by Simon Clarke for Cartwright King “lad the prosecution been possessed of the material
768 POL00044023
769 POL00044218
7 POL00043964
771 POL00044050
772 POL00044221
773 POL00044218
774 [2005] 1 WLR 2532
775 POL00066798
202
EXPG000004R
EXPG000004R
contained within the two reports during the currency of the prosecution of your client we
should and would have disclosed the material to you”.
Assessment
576. This is a very troubling case from the perspective in particular of disclosure of material
undermining of the prosecution case and material undermining of the opinion of an
expert relied on by the prosecution. Each of the defendants had made clear when
interviewed that they had been confronted by repeated and unexplained shortfalls.
Whilst various accounting issues and routes to error were suggested in interview, the
investigation does not appear to have taken any real steps to identify the root cause of
the shortfalls, to examine calls that were made to report them, or to obtain and analyse
the relevant Horizon data. This continued to be the case even after defence statements
were served focusing attention on the operation of the system, and even when Mr
Jenkins was instructed as an expert, who could have undertaken that analysis.
577. The charging advice similarly did not raise this issue, or for that matter really address
the explanation advanced in interview for the shortfalls. In effect, it was identified that
there was a shortfall, that Ms Sefton and Ms Neild had sought to conceal it and that
false accounting was the charge. Dishonesty was not addressed, and neither was
evidence that the alteration had been with a view to gain. Whilst rejecting theft as a
charge, largely because of the risk that the defendants could blame each other, the
advice did not suggest financial enquiries be undertaken to track the money. Despite
this, it was later asserted by the prosecution that the defendants had taken the money.
The public interest was not addressed.
578. The disclosure process started with a less than comprehensive schedule of non-
sensitive unused which does appear to have been reviewed, but with incorrect
disclosure decisions having been taken. A second unused schedule was better
reviewed and addressed. The schedule underlines the limitations to the investigation
in terms of enquiries relating to Horizon data and operation, contact with helplines,
and financial enquiries. The process thereafter appears to have been driven largely by
defence requests, but in the main these were requests for material that should already
have been disclosed.
203
EXPG000004R
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579. My greatest concern, however, is in relation to Horizon-related disclosure. There was,
by 2012, an appreciation that Horizon issued had arisen in a number of cases, and yet
cross-disclosure from those cases was slow, and driven more by requests from the
defence than any expedition to proactive disclosure by the prosecution. The form of
words that was eventually disclosed was insufficient to address the prosecution’s
disclosure responsibilities. By 2012, issues with the system had also been identified
and addressed not least by Gareth Jenkins, and yet disclosure in this regard does not
appear to have been made, and a report was served which arguably gave a misleading
view of the integrity and reliability of the system, without the necessary disclosure of
material to undermine that view. In consequence, these defendants were allowed to
plead at a stage by which they should have received comprehensive disclosure of the
limitations and issues of the Horizon system, which they could have deployed at trial.
KHAYYAM ISHAQ
580. I Khayyam Ishaq was sub-postmaster at Birkenshaw. He was charged with a single
count of theft alleged to have been committed between 14'* September 2010 and 9'
February 2011 amounting to £21,168.64. The theft charge was brought on the basis of
cash shortages and connected stamped reversals said to have been used to hide the
shortages. The allegation was that the shortages were the result of theft.
581. The charges resulted from an audit of the post office on 8" February 2011. A shortage
of £536 in cash was identified, along with a shortage of £2569.19 on a Horizon system
balance snapshot. A full audit then revealed the total shortage figure that was
ultimately charged as theft.
582. On 7% March 2013, in the Crown Court at Bradford before His Honor Judge Potter,
Khayyam Ishaq changed his plea to guilty to the theft of £17,863. On 22™4 April 2013,
he was sentenced to 54 weeks’ imprisonment.
583. Before the case reached that point, a trial had commenced on an allegation of the theft
of £21,168.64 in which the jury was discharged after the second day because of the
illness of defence counsel. At that first trial, which started on 26 February 2013, the
204
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defendant was blaming Horizon and a co-worker for the losses. That co-worker, Mr
Liaquat, had given evidence by the time that the jury had to be discharged on 27
February 201377. The defendant subsequently was re-arraigned during a second trial,
which started on 6 March 2013, and pleaded guilty to theft of a lesser amount,
£17,863.82 on the second day of that re-trial””. It appears the plea followed the calling
of evidence from Mr Liaquat”’, and that Dr Jenkins the prosecution expert as to the
operation of the Horizon system was at court to be called on 7 March when the
defendant was rearraigned in front of the jury”.
584. In the proceeding before the Court of Appeal in Josephine Hamilton v Post Office’®°, Mr
Ishaq was one of those in category B, “in respect of whom POL accepted that this court may
properly find that the prosecutions were an abuse of process within category 1, but resisted the
appeals insofar as they are based on category 2 abuse.”
The Investigation
585. The paperwork does not identify specifically who performed the roles of senior
investigator, investigator or disclosure officer for the purposes of the CPIA. It appears
that the investigator and disclosure officer were the same person. There is no evidence
of an officer in charge supervising them in either role.
586. A memorandum dated 11 February 20117! from Dennis Watson, the lead auditor, to
Paul Williams, contract adviser, records that on 8' February a cash check had been
undertaken at the Birkenshaw post office. This revealed a £536 shortfall. The defendant
was present and said that this was different to what he had declared the previous day.
The balance snapshot, using the Horizon system, then revealed a £2100 discrepancy.
A full audit was then undertaken, and a £21181.54 shortage was identified, involving
“major discrepancies in the stock of the large books” of stamps. The defendant said he had
no idea why this had occurred, and enquires with the remittance team at Chesterfield
776 POL.00059940
777 POL00060220
778 POL00060112
779 POL00060195
780 [2021] EWCA Crim 577, at §75
781 POL00056076
205
EXPG000004R
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reported “quite a number of sales reversals of large books”. The defendant said he did not
know why this should be, and mentioned that a relief postmaster had worked at the
office and might be responsible. The defendant was suspended that day.
587. PACE compliant interviews were conducted on 7 April 20117*, with a solicitor
present. These were voluntary interviews. Initially, Mr Ishaq did not raise issues with
Horizon explicitly in his interview, instead suggesting it may have been human
mistakes or that others may have stolen the stamps. He denied using the stamps to
cover up shortages, and denied inflating cash. However, in his first interview he did
state that he did not have much training in the use of Horizon and his balances always
showed a loss. He also said that his colleague Mr Liaquat was still training. He did not
produce snapshots from the Horizon system. The losses he did identify appear to have
been interpreted as human error rather than Horizon issues. Mr Ishaq said that he had
not phoned the helpline, but he had contacted Chesterfield whenever he “ got a loss”
In his second interview”, Mr Ishaq raised problems with his memory, and also
identified a number of losses that he attributed to counting errors by Mr Liaquat. He
also suggested that he or Mr Liaquat might have made errors in counting the stamps
and other figures.
588. In the light of this account, on 18* May 201175, Rob Wilson, head of the criminal law
division asked a member of the National Security Team to speak to Mr Liaquat. The
approach adopted by Mr Wilson was to set out what Mr Ishaq had said and to ask “are
we able to refute any of the above?” . Stephen Bradshaw, fraud investigator, reported back
on 30 June 2011%%, to the effect that Mr Liaquat only helped out with the balance “on
a few occasions”, counting cash and stock. He said that he did not know Mr Ishaq’s
password, and that Mr Ishaq completed the daily reports and cash declarations.
589. The defendant was interviewed again on 27 September 20117, after Mr Liaquat had
been spoken to. He was accepted that Mr Liaquat served customers and helped with
counting cash and inputting figures into Horizon. He denied that Mr Liaquat shared
782 POL00046349, POL00052012
783 POL00046349
784 POL00052012
785 POL00046228
786 POL00046229
787 POL00057985
206
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his Horizon password with him. He did say that there were occasions when Mr
Liaquat had told him that he had forgotten to include cash when entering the balance
on the system.
590. I Beyond speaking to Mr Liaquat, it appears that other investigative steps were limited.
It appears that there was no investigation initially of calls to helplines in the relevant
dates, as a request was made for such enquiries to be made by Rachel Panter of
Cartwright King in late 201278. This is a common line of enquiry in these cases, though
potentially explained by the fact that during interview Mr Ishaq denied ever
contacting them for help. The position in this regard changed when in August 2012 in
his defence statement’*? the defendant said that he had contacted the helpline about
Horizon malfunctions. These records were, however, clearly obtained at some point
during the case, perhaps as a result of Ms Panter’s advice, and showed that there had
been problems with the migration to Horizon in 2010.
591. It also appears to have been Ms Panter’s advice in late 20127! that prompted enquires
to be made as to the training received on Horizon. The defendant had said that he had
received little such training, and it was identified as “crucial” to “prove dishonesty” to
obtain evidence as to this. A statement was received”, dated December 2012 which
recorded that Mr Ishaq had been trained to the standard required in 2008.
592. Given that Mr Ishaq was charged with theft it is surprising that it does not appear
attempts were made to obtain Mr Ishaq’s bank statements, or to explore how he would
have benefitted from such theft. It is a classic investigative technique to follow the
money, but this was a technique not followed here.
593. There was at the start of the investigation no significant focus on or apparent
awareness of Horizon issues. Indeed, it appears that it was not until February 201273
that Stephen Bradshaw, the investigator, obtained and examined the Horizon data for
the period from December 2010 to January 2011, and it was to be November 2012 that
788 POL00045134. Ms Panter’s advice is undated, but post dates advice on 234 March 2012 to which it
refers. It also refers to the PCMH in September 2012 and thus clearly also post dates that.
789 POL00058244
799 POL00054951
791 POL00045134
792 POL00046267
793 POL00046236
207
EXPG000004R
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Mr Jenkins was first contacted in relation to the case”. Mr Bradshaw identified
evidence that “stock in hand has been manipulated” by reference to figures for stamps
sold and then the value of stamps “reversed out of the Horizon system”. He calculated the
total difference between the stamps sold and stamps reversed out of the system to be
£14,802.50. Mr Bradshaw also made enquiries with HR about whether Mr Ishaq had
needed substitutes when away or ill, and none was found.
594. In her advice after March 2012”, Rachel Panter of Cartwright King observed
“unsurprisingly the defence have made unspecified attacks on the integrity of the Horizon
system. Counsel Sarah Porter made it explicitly clear to the defence at the PCMH on 4%
September 2012 that the Post Office maintains its position that the Horizon system is robust
and that we would review disclosure if the defence were forthcoming with any specific issues
with the system”. To that end, a statement was obtained from Gareth Jenkins. It was
in fact the statement prepared for a case to be heard in Manchester ””, and therefore
was not geared to Mr Ishaq’s case at all. In other word, the statement is a generic one.
Ms Panter observed in November 2012” “it doesn’t matter that you have not mentioned a
specific case in your report, as there has not been any specific criticisms raised by any of the
defendants [including Mr Ishaq]”. It is evident that he was not asked to do anything
other than look at the case summary, to familiarise himself with the case in question,
before serving this statement™. The disclosure implications of this are addressed
further below.
595. During the course of the proceedings, Mr Ishaq served a defence statement which
expressly asserted that the Horizon system “had in the past on numerous occasions
malfunctioned causing difficulties with reconciling sakes, receipts and stock figures”. He
asserted that the identified reversals were to address these issues, and that he had not
appropriated any monies. He also said that he had reported these issues to the Post
Office helpline. In February 20138, Mr Jenkins made comments on this defence
™ POL00165905, para.185
795 POL00045134
796 POL00059474
797 The case of Nemesh Patel, as is clear from the unredacted POL000806355
798 POL00059404
79° POL00059404
800 POL00058244
801 POL00059602
208
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EXPG000004R
statement. He indicated that he was happy to investigate any specific examples of
malfunctions, observing that there would be a trail left by any malfunction. He
asserted that the system did not have a fault, and that either Mr Ishaq misunderstood
the system or had stolen from the Post Office. It is not clear whether he was asked to
undertake any specific analysis using the data that Mr Bradshaw had obtained in
February 2012. Mr Jenkins’ assertions as to the lack of fault in the system in 2012, are
in apparent contrast to his report relating to a bug in the system in September 2010.82
The charging decision
596. The initial charging advice appears to have come from Rob Wilson, head of the
criminal law team internally at the Post Office, in July 20118. As appeared to be
routine, it was very short, and involved little analysis of the evidence, beyond noting
that Mr Liaquat would be an important witness. It did, however, consider the
evidential test and involved some public interest considerations, but only so far as
whether a caution was otherwise suitable. It did request unused disclosure, but in a
formulaic way rather than as part of the charging decision-making process. It did not
appear to consider the difficulties in charging theft when there was no evidence that
the defendant had actually received the money, and where there was limited evidence
of dishonesty. A list of further evidence needed was set out, including evidence to
“refute the story that he proffered during interview in relation to the sheets of stamps” .
597. It is not clear from the face of his document what charge Mr Wilson approved. That
question was revisited in March 2012 in an advice from Martin Smith at Cartwright
King*. He did not expressly apply the evidential or public interest tests set out in the
Code for Crown Prosecutors. There is, in particular, no reference to any public interest
considerations or, in assessing the reliability of evidence, any potential evidential
issues with Horizon. More surprisingly the advice was to charge theft, as opposed to
false accounting (noting that by reference to the approach in Eden®® that false
accounting should not be charged as well as theft). He reached this conclusion despite
there being no specific evidence that the shortfalls had been caused by the defendant;
802 POL00001733
80 POL00056596
804 POL00057543
805 55 Cr.App.R 193
209
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and that the substance of the allegation was in effect false accounting. There was no
explicit consideration of the requirement to prove dishonesty. Instead, Mr Smith
asserted “there is strong evidence to suggest that he inflated the stock on hand to reduce the
amount of cash required to achieve a balance, thereby concealing a deficit in the accounts. He
must therefore have been aware of and responsible for the deficit”
598. A further advice was provided by Rachel Panter of Cartwright King after the PCMH
in September 20128, This advice, which the author described®” as her “first official
advice that I have produced outside of Bar School” did not revisit the charging decision, but
did raise the response necessary to issues the defence had by then raised with the
Horizon system. It was she that informed Mr Jenkins that his generic statement would
be used in the proceedings. These are discussed above in terms of the investigation
and again below in terms of disclosure.
Instruction of Counsel
599. Sarah Porter was instructed counsel in the Crown Court. The brief to counsel*® did
not explicitly deal with the issue of Horizon, save that it is recorded that Mr Ishaq’s
solicitor had said that “his client had told them that there must have been an error in the
accounting system and that the money would be in the accounts somewhere. Mr Ishaq’s
solicitors also comment that everyone had heard about the problems with the Horizon
system...”. This conversation happened at the committal proceedings®*™. Given the lack
of specific instruction in this regard it is of note that in her advice after the PCMH8",
Rachel Panter of Cartwright King recorded that “Counsel Sarah Porter made it explicitly
clear to the defence at the PCMH on 4*: September 2012 that the Post Office maintains its
position that the Horizon system is robust and that we would review disclosure if the defence
were forthcoming with any specific issues with the system”.
806 POL00045134
807 POL00059304
808 POL00058279
809 POL00058128
810 POL00045134
210
EXPG000004R
EXPG000004R
600. The line taken by Ms Porter is potentially explained by the email from Martin Smith
of Cartwright King confirming that Mr Ishtaq’s case had been sent to the Crown
Court8!!, Reporting the conversation with Mr Ishtaq’s solicitor quoted above, Mr Smith
addressed a colleague “I think we should draw up a separate list of cases in which we
anticipate Horizon arguments so that we can ensure that we have appropriate answers/material
and agreed tactics for the PCMHs the dates of which will undoubtedly arrive well before the
Post Office are likely to have obtained any reports” The reports in question would appear
to be those from Gareth Jenkins, which are addressed below.
601. Mark Ford was counsel at the second trial. It appears that by that time the defence
expert had met at court with Mr Jenkins and conclude that “there is nothing wrong with
the functioning of the Hz systent”8!2, This, and the fact that Mr Liaquat “came up to proof”
may have led to the change of plea. It is not clear what discussions there were as to the
amount that by his plea Mr Ishaq accepted stealing*'3, or the basis for that figure.
Simon Clarke of Cartwright King covered the sentence* and appears to have taken a
strong view that Horizon was not at fault, and that the defendant’s “attack [on
Horizon] was nothing more than opportunism”. Mr Clarke also submitted that the case
involved breach of a “high degree of trust”. These factors may have influenced the
sentencing judge to impose a sentence of immediate imprisonment.
Disclosure
602. Stephen Bradshaw, the investigator, produced a schedule of non-sensitive unused
material (MG6C)*!5, which he signed on 18" June 2012. Although signed by a lawyer,
Martin Smith of Cartwright King, on 10t July 2012, it did not in fact have any
endorsements on as to disclosure decisions. It appears to have been provided with the
committal papers on 12 Julys!®. In terms of its content, it appears to contain some of
the relevant information, including the call logs, but otherwise primarily to contain
correspondence with Mr Ishaq. It does not include interview tapes, which were later
811 POL00058128
812 POL00059940
513 POL00060220, POL00060195
514 POL00060316
815 POL00058025
816 POL00058096
211
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requested by the defence*"” and the disclosure of which was obvious. It does not reveal
evidence of contact with helpdesks, financial information relating to Mr Ishtaq, any
evidence of enquiries with Horizon or any material relevant to Mr Liaquat (such as a
check on his PNC). This lack of enquiry in relation to Mr Liaquat is highlighted by the
fact that just such a check was requested by the defence following disclosure of this
schedule®!8,
603. The approach to disclosure relating to Horizon was encapsulated in her advice after
the PCMH? by Rachel Panter of Cartwright King: “unsurprisingly the defence have made
unspecified attacks on the integrity of the Horizon system. Counsel Sarah Porter made it
explicitly clear to the defence at the PCMH on 4" September 2012 that the Post Office
maintains its position that the Horizon system is robust and that we would review disclosure
if the defence were forthcoming with any specific issues with the system”. She expressed the
same view in an email to Gareth Jenkins, the expert, in November 201287 when she
explained that she would be serving his generic statement in a number of cases
including that of Mr Ishtaq. She said “what I propose to do is serve your statement on each
defence solicitor so that the issue of Horizon is addressed. That will then place the onus on the
defence to specify what if anything is wrong with the Horizon system. I do not think they will
be able to do this, but they still have the opportunity if they want a trial to call you to give
evidence”.
604. I should note again in passing, as I did when this same email appeared in the case of
Grant Allen*!, that this email exchange is as near as I have seen to the formal
instruction of an expert in the Post Office cases. As such, as I have already identified,
it is inadequate and does not address Mr Jenkins’ duties as an expert and in particular
his disclosure obligations. It is of note in this context that the ‘Gareth Jenkins
chronology’*” suggests that in January 2013, Mr Jenkins observed “I am still not
receiving any instructions from the Post Office...” Again, the underlying and referenced
material will need to be checked in this regard.
817 UKGI00014869
518 UKG100014869
819 POL00045134
820 POL00059404
821 POL000886368
22 POL00165905, para.188
212
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605. Mr Jenkins replied to Ms Panter on 16" November 2012, asking if his existing report
from the case of Patel could not be used, and raising the question of whether contact
with him should be by the Post Office rather than their solicitors. Ms Panter
commented to a colleague at Cartwright King “I can clarify with Gareth that it doesn’t
matter that specific cases are not quoted in his report as not one of them has raised a specific
issue with the Horizon system itself, they have all been generic to date”.
606. As an approach to disclosure, the obvious difficulty with it is that it makes disclosure
dependent on a defendant understanding what had gone wrong, what issue with the
Horizon system had led to accounting imbalances, when a reason for the defendant
seeking to cover unexplained losses was that they did not understand why they were
happening. Rather, the prosecution was under a duty to disclose any evidence of any
fault or other technical issue with Horizon’s operation at that post office that might
provide an explanation for the issues, even if it was not one that the prosecution,
through its expert, accepted. Moreover, as his approach in the case of Gareth Allen
shows’, it was possible for Mr Jenkins to access the Horizon data for a particular post
office to check if there were any issues. The approach identified by Ms Panter here did
not facilitate such an approach, and yet it was that approach that was required.
607. The prosecution took the position that once the stock reversals were carried out, that
Horizon became irrelevant, seemingly not realising that it would continue to be
relevant to the issue of dishonesty and why those actions were carried out®®. In
keeping with the approach set out by Ms Panter in her exchange with Mr Jenkins, the
prosecution sought further clarification from the defence as to the issues that they
alleged with the Horizon system and the basis, therefore, for disclosure®*. This led to
discussion between the parties as to whether an addendum defence statement was
required’, with the defence arguing that the defence statement already served was
sufficient to activate a review of disclosure in this regard**8. In my view the defence
were correct on that assertion, for reasons just considered, but it appears that the
823 POL00059402
824 POL00086353
825 This is shown by the attendance note from the PCMH at POL-00058280 and letter sent therafter,
POL00058277
826 POL00059517
827 POL00059409
828 POL00059426
213
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defence did provide such an addendum which indicated® that “ Horizon would “freeze”
and would give inaccurate total figures at the end of trading/balance periods. He had called the
helpline some 10 or more times per month”.
608. Also, in keeping with Ms Panter’s approach, whilst the Post Office continued to take
the view that Horizon was robust, all Horizon data disks, and core data were
purported to be disclosed to the defence following the PCMH when the Horizon issue
was raised®°, It appears that underlying Horizon data was directed to be served by 5
October 2012 following the defence instruction of a forensic expert. But the material
appears to have been served late’*!. There did, however, appear to be good
engagement with the defence expert who was able to speak directly to the Post Office
investigator, Mr Bradshaw, about missing items, and he appears to have been
proactive with her®2, However, it does not appear that all material that should have
been provided in October was in fact provided, as it was chased in a defence letter in
January 2013,
609. The defence letter in January 2013 also set out in more detail what was sought by way
of disclosure in relation to the Horizon system and why. This included requests for
branch trading statements and underlying Horizon data. In relation to a request for
branch trading statements (which the Post Office presumably held), Cartwright King,
in reply, refused to disclose material on the basis the defendant should have that
material8*. Given that the defendant had been suspended at the time of the audit, it is
not clear the basis for this, and it remained material in the possession of the
prosecution that it was required to review for disclosure. I should add that I have not
seen correspondence to indicate that the addendum defence statement led to further
disclosure re contact with the helpline.
610. The defence in their correspondence had threatened to make an application for
disclosure, pursuant to section 8, CPIA®5. There appears to have been a disclosure
829 I have not seen the addendum defence statement and take this information from the briefing note
POL00066924
830 As was indicated in Rachel Panter’s advice, POL00045134
831 POL00059297
852 POL00059682POL00059734
833 UKGI00014869
834 POL00059517
835 POL00059426
214
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hearing on 5‘ February 2013, at which no further disclosure was ordered®**, It appears
that the defence also threatened in January 20138 to make a hearsay application to
adduce “matters already within the public domain regarding the problems with the Horizon
system”. In any event, this does not seem to have generated any cross-disclosure in this
regard.
611. In terms of the progress of disclosure and of expert evidence, the default statement
and exhibits of Gareth Jenkins were served in this case. As had been discussed before
its service, the statement is a generic one**. Gareth Jenkins also provided an internal
comment on the defence case statement repeating his assertion there was no issue with
Horizon*, A defence expert, Beverley Ibbotson was instructed and provided a
report*®, which, as was later observed*! “identified a number of minor audit and stock
discrepancies but did not seek to suggest that the underlying Horizon transactions were not
conducted by the defendant, under either his own Log-in IDs or that of Umair Liaquat”. It
appears that Mr Jenkins produced a second report, which I have not seen, which
responded to the addendum defence statement, which again I have not seen*?. There
subsequently was a joint expert report created*8, in which the experts agreed that
there had been a series of reversals which remained unexplained. It does not appear
that disclosure was made to Ms Ibbotson of Mr Jenkins report re bugs in September
2010, or any material relating to such issues.
612. A statement was provided by Sharon Jennings, a Fraud Investigator, providing a
summary of the beginning of the Second Sight review™4. It repeated the standard Post
Office assertion at the time that Horizon was robust, and did not disclose any concerns.
The statement is dated October 2012. It is not clear whether this was served and, if so,
when. There does not appear to be any reference to the Second Sight review in the
reports of/contributed to by Ms Ibbotson, and so it is not clear if she was aware of this
statement or what underpinned it.
836 POL00059644.
57 POL00165905, para.192
838 POL00059474
839 POL00059602
840 POL00059927
541 POL00066924
842 This information comes from the briefing POL00066824
843 POL00059927
84 UKGI00001550
215
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613. The briefing note“, which is dated June 2015, adds “this is a case where Gareth Jenkins
attended court and it was after his conference with the defence expert that the defence pleaded
guilty. Mr Jenkins is a tainted witness owing to his failure to disclose the matters referred to
in the Second Sight Interim report that were within his knowledge as shown by the Helen Rose
Report.” When the case was reviewed after these reports were available, Simon Clarke
of Cartwright King observed™®: “I am as concerned by the defendant's repeated assertions
as to his perceived failings of Horizon as I am about his very last-minute change of plea. I cannot
escape the proposition that, had the Second Sight Interim report been available to us during the
currency of this prosecution it would undoubtedly have met the test for disclosure to the
defence. Indeed the Defence Statement appears remarkably prescient on the topic”.
614. The Court of Appeal took a similar view. Holroyde LJ observed*?: “The defence
challenge to the Horizon system was clear from a very early stage in the proceedings. Mr Ishaq’s
solicitor had informed POL of the issue and of the defence intention to instruct an expert at an
earlier Magistrates’ Court hearing on 25 July 2012. A defence statement of 29 August 2012
repeated the defence challenge to Horizon and made a series of disclosure requests targeted at
the Horizon system. Mr Ishaq denied theft but admitted to altering items on Horizon out of
necessity in order to reconcile the accounts and due to the system malfunctioning. The defence
sought any information relating to the malfunctioning of the Horizon system generally (such
as the outcome of any enquiries or investigations or any internal memoranda recording
malfunctioning) and the data produced by Horizon. The defence repeatedly sought disclosure
in relation to Horizon and instructed an accountancy expert to analyse the accounts.”
615. Against that background, the Court of Appeal concluded*®: “POL accepts that this was
an unexplained shortfall case and that evidence from Horizon was essential to Mr Ishaq’s case.
ARQ data for the indictment period was provided to the defence on 26 October 2012. It is
unclear what, if any, analysis was performed with it. There was no examination of that data for
bugs, errors or defects or for evidence of theft. It appears there was no evidence to corroborate
the Horizon evidence. The fact that Mr Jenkins provided witness statements in itself suggests
that POL did not disclose the full and accurate position regarding the reliability of Horizon.
There was no proof of an actual loss as opposed to a Horizon-generated shortage.”
845 POL00066924
846 POL00066838
847 [2021] EWCA Crim 577, §215
848 §219
216
EXPG000004R
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Assessment
616. IThe defendant when interviewed reported issues with the Horizon system, a lack of
understanding of the shortfalls and made allegations against another employee. It
seems that the last of these distracted the investigation from the other issues. The
employee, Mr Liaquat was interviewed and ultimately called as a witness to rebut that
limb of Mr Ishaq’s defence, but the other more substantial limb was not similarly
investigated with a view to determining the root cause of the shortfall. Other
reasonable lines of enquiry relating to Mr Ishaq’s finances, training and call logs were
also neglected. In this case, the lawyers at Cartwright King were proactive in raising
further lines of enquiry in various other respects, but not this crucial one.
617. The charging decision was neither thorough nor analytical. It did not consider whether
there was evidence of dishonesty, whether there needed to be evidence of financial
benefit, and whether the issues raised by Mr Ishaq could be refuted or supported by
further lines of enquiry. In short, the prosecution was brought on the premise if he
inflated the stock on hand to conceal a shortfall he must have caused it, without any
consideration of whether there was any evidence to support this, or to explain how the
shortfall was actually caused. This approach was reviewed by a number of lawyers at
Cartwright King, and by counsel instructed, without any of them calling it into
question. Even when Horizon issues were raised, and disclosure relating to them
discussed, the lack of analysis of the cause of the shortfall was not.
618. The original schedule of unused material was limited, and its review similarly did not
identify areas of disclosure relating to Mr Liaquat, contact with helpdesks, financial
information or the operation of the system which were all engaged by Mr Ishaq’s
interviews. When Horizon was raised, the approach appears to have been one more of
damage limitation and providing the least material necessary, rather than thinking
through what material might undermine the prosecution case, whether that material
was already available or needed to be sought from Fujitsu, and what material was
necessary for a defence expert to review the position. The process appears to have been
driven by defence requests, rather than prosecution initiative, which failed to
recognise that the defence knowledge of what to ask for was far less than the
prosecution understanding of what was potentially relevant.
217
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619. I Although Mr Jenkins was engaged, he was not asked to analyse the underlying data,
and there were serious shortcomings to the disclosure of material within his
knowledge relevant to the operation and reliability of the system, and as to cross-
disclosure from or about other cases. This continued to be the position even after
focused defence requests and the instruction of a defence expert who, like other
experts before her, relied on the material and information provided by Mr Jenkins to
reach her conclusions.
CONCLUSIONS
620. I have set out my assessment of each case, by reference to the topics that the Inquiry’s
instructions have asked me to consider (see my first report, para.2). At this stage, I seek
to draw the strands of that analysis together by topic. I should emphasise, however,
that these broader conclusions are to be properly understood by reference to the case-
by-case analysis I have set out above. Each case is individual, in that each involved an
individual who gave an account to address an audit shortfall, and whose case was then
investigated and reviewed for prosecution at different times by different investigators
and lawyers and by reference to different evidence. That said, a number of themes
emerge clear and strong across those 20 cases. Indeed, in a number of respects it is
unsettling how the same issues were arising in the latter cases, such as Sefton and
Neild and Ishaq in 2012, as had raised their heads in early cases, such as Brennan and
Yates in 2003.
(a) _ Investigation
621. In no case did I see any document that identified what investigative and disclosure
roles were being played by which personnel. That in itself is not necessarily an issue,
if that were simply a recording issue. What is an issue, however, is that, in so far as the
investigation process is discernible from the material I have seen, the roles played by
identifiable personnel did not reflect the division of roles identified in the CPIA Code
and Attorney General’s Guidelines on disclosure. It appeared that the same person
undertook both investigative and disclosure roles, and it was not clear who was
supervising or directing them in either capacity.
218
EXPG000004R
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622. In my first report (para.108), I observed that there was a distinction between the CPIA
Code, which recognised that the same person could act both as investigator and
disclosure officer, and the Post Office position, which recognised that they normally
would be. That, I recognise, will often be the case in smaller scale investigations by the
police and others. My concern at that stage was that a check and balance in the system,
with 2 different viewpoints on investigative and disclosure steps, was routinely not
being incorporated into Post Office cases. That has been borne out by the materials in
the 20 cases I have considered, where the disclosure officer, if identified at all, will
have been one of the investigators who first attended after the audit and will have
interviewed the defendant.
623. In a number of cases, for example those of Lisa Brennan, David Blakey and Alison
Henderson, the interviewing officer demonstrated a very clear settled conclusion
adverse to the defendant at the time of interview. In the case of Ms Brennan she was
told that the officer believed she had done it, Mr Blakey was told his account was
“ridiculous” and Mrs Henderson believed that the investigator had already drawn his
own conclusions. It is a concern if that same settled conclusion informed the disclosure
process as it did the interview.
624. In my first report (from para.106), I expressed particular concern that the Post Office
policy documents failed for a significant period to reflect the CPIA Code and Attorney
General’s Guidelines on Disclosure in imposing on the investigation a duty to pursue
all reasonable lines of enquiry, whether they led towards or away from the suspect. In
my review of these 20 cases there were, consistently, failures by the investigators to
identify and to pursue a number of reasonable lines of enquiry. That remained the
position, without any obvious or significant change, after the 2010 amendment to the
Post office disclosure policy document*®. There were lines of enquiry common to these
cases, the relevance of which was repeatedly engaged by the explanations advanced
in interview by suspects and/or by the circumstances of the shortfall being
investigated, which were either not pursued at all, were only pursued in a limited or
superficial manner, or were only pursued as a result of requests either by reviewing
849 POL00104848
219
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EXPG000004R
lawyers or, much more commonly, by the defence. The following are examples of this
trend.
625. Financial enquiries: where a suspect denied in interview that he or she had taken the
money, and/or had sought to make good unexplained losses identified by the Horizon
System, it would be a reasonable line of enquiry to obtain their financial information
to see if there is evidence of unexplained monies appearing in bank accounts, or
payments out of those accounts to cover shortfalls. Such evidence is of direct relevance
to the question of whether they have appropriated Post Office money, for the purposes
of theft, and whether they have acted dishonestly for both theft and false accounting.
This is illustrated, by way of example, in the case of Lisa Brennan where the reviewing
lawyer enquired after financial enquiries in relation to Ms Brennan, and asked: “do you
have any evidence to show whether the above-named was stealing Post Office money or covering
up shortages?” In the case of Peter Holmes, a defence-instructed accountant had to
address the prosecution case theory that he had stolen Post Office monies to help his
wife’s business, rather than this theory being tested by the investigators themselves.
626. Training and calls to helplines: Where a suspect described issues with their operation
of the Horizon system, by reference to their training, and/or recounts their attempts
to get help at earlier stages, then it would be reasonable to make enquiries as to their
level of training, and to ascertain whether, how often and in what circumstances they
had contacted the relevant helplines. Indeed, given that the ‘Managing Shortages at
audit’ guideline® specifically identifies the previous record of the employee and the
extent to which they sought help as relevant factors in such cases, it is at least arguable
that these should have been routine lines of enquiry. In the case of Khayyam Ishaq the
reviewing lawyer identified evidence as to training as “crucial” to proving dishonesty,
because it would inform the question of whether accounting faults were deliberate or
not. However, a lack of enquires as to training were identified, for example, in the
cases of Carl Page, who raised his lack of training in interview, and similarly of
Josephine Hamilton, for whom further material relating to training was highlighted
by both the reviewing lawyer and counsel.
850 POLO0118154
220
EXPG000004R
EXPG000004R
627. Aninsight in relation to the disclosure of training records comes from a discussion in
January 201485! in the context of the case of Seema Misra, at which Simon Clarke of
Cartwright King observed “if someone says bad training and bad backup - wrong- not
disclosable” . In relation to contact with call centres, there appears to have been a lack of
enquiry even in cases such that of Suzanne Palmer where the investigator observed
that she had not received help when she asked for it. Moreover, it appears that where
enquires were made there was insufficient analysis as to what the records actually
amounted to. For example, in the case of Hughie Thomas the Court of Appeal noted
that “Andrew Dunks of Fujitsu made a statement in which he said that between 1 November
2004 and 30 November 2005, Mr Thomas made 13 calls to the Horizon Helpdesk but that - in
Mr Dunks’ opinion - none of the calls related to faults which would affect the integrity of
Horizon.”
628. Horizon: Where a suspect described issues with the Horizon system, unexplained
losses, recurrent error notices or simply asserted that they could not explain what had
happened when confronted by a Horizon record of a shortfall, then a reasonable line
of enquiry is to identify what the root cause of that shortfall is, or may be. This involves
firstly the obtaining of the underlying data, and its assessment for bugs, errors or
issues. The failure to undertake such enquires was almost routinely identified by the
Court of Appeal in Hamilton and others as a serious investigative deficiency, ranging
from early cases such as Brennan to late cases such as Hutchings. In these, and many
other cases, there was no enquiry for bugs or errors, and the ARQ data was not
obtained. It was recognised by the Court of Appeal that this included cases, such as
Blakey and Mahmood, where the issue had specifically been raised by the suspect in
interview, as well as those where it had not. It is not an answer to this, for reasons I
will develop below when I address Horizon-related disclosure, to assert that the
suspect has not given a detailed explanation of that the issues or error were. That is
unrealistic. Once they have identified an issue, or an unexplained shortfall, the burden
is on the prosecution to resolve the matter.
629. I Moreover, where some steps were taken to obtain Horizon data, the approach adopted
was too narrow. For example, in the case of Hughie Thomas the Court of Appeal
851 POL00066893
221
EXPG000004R
EXPG000004R
observed that “Although some ARQ data was obtained, it was a dip sample and it was only
checked for evidence of zero transactions. The data was not checked for bugs, errors or defects
or for evidence of theft.” Similarly, in the case of Mrs Misra the Court observed that the
period for which the data was obtained was inadequate. The Court of Appeal also
raised concerns as to whether any data that was obtained was properly shared. For
example, in the case of Mrs Henderson they observed “It appears as if some ARQ data
was obtained but it is not clear whether it was ever disclosed”, an observation they repeated
in the case of Mrs Hall, and in the case of Mrs Hamilton they observed “The ARQ data
had been collected on a disc but the exhibits list shows it was “not copied”, so that it is not clear
whether the ARQ data was served.”
In some cases, failings in the investigation in terms of reasonable lines of enquiry were
picked up by the prosecutor who reviewed the case. That is entirely as it should be.
The Attorney General’s guidelines and the Code for Crown Prosecutors in their
various iterations, each make clear that it is for a prosecutor to provide advice as to
lines of enquiry. This is an intrinsic part of the assessment of whether there is sufficient
evidence to establish a realistic prospect of a conviction. However, in many of those
cases where the prosecutor did identify further investigative steps to be taken, the
prosecutor nevertheless did not wait for those further enquires to be made before
advising that a suspect be prosecuted. For example:
(a) In the case of Lisa Brennan, the lawyer did advise as to further enquiries that were
necessary, but when Ms Brennan was then prosecuted those enquires remained
outstanding.
(b) In the case of Hughie Thomas, the investigator and the lawyer both identified a
number of explanations for the issues with Horizon that Mr Thomas described. It
was recognised that enquiries had been made of Fujitsu, and yet the charging
decision was made without enquiries into the operation of the system being
resolved.
(c) In the case of Josephine Hamilton, the lawyer identified the need for enquiries
relating to the manner in which Horizon recorded cash on hand, Mrs Hamilton’s
training and her financial information. However, the charging decision was
reached without the resolution of these properly identified lines of enquiry.
(d) In the case of Alison Henderson, the lawyer advised as to a range of further
enquiries, requesting a “full accounting pattern”, and resolution of how and when
222
EXPG000004R
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the loss occurred and how Mrs Henderson would have been aware of it. Again,
these were sensibly raised but their resolution did not delay charging.
631. However, in the majority of the cases I have considered, there was a failure of
prosecutorial supervision as to the existing of outstanding lines of enquiry and the
sufficiency of the investigation of such lines of enquiry. In cases where advice was
given that there was a realistic prospect of conviction for theft, no advice was given
that there needed to be any form of financial investigation to determine whether the
suspect could be shown to have benefited from the offence, and where a suspect had
made complaint, or attributed losses to the operation of the Horizon system, there was
no request for any checks to be made in relation to that operation. Indeed, in many
cases if there was any advice at all, it was to advise that aspects of the existing
investigation as set out in the investigation report be addressed in statements, rather
than to look beyond that report, or beneath the veneer of that investigation. The
approach, as stated on occasion, was to refute the defence case, or disprove defence
allegations, rather than to test them.
(b) Charging decisions
632. I have considered, where available, such evidence as I have seen as to the charging
decisions taken in these 20 cases. In my first report (para.55), I noted the wording of
various Post Office policy documents, which suggested that the decision to prosecute
would be taken by, or involve, personnel other than lawyers, and that decisions would
be taken by non-lawyers after they had received, but were not required to follow, legal
advice. I have not seen any document for any of these cases that makes clear who had
taken the actual decision to charge, and thus whether my concerns were groundless or
well founded.
223
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633. I However, the advices relating to charge that I have seen, produced in the main by
lawyers working for the Post Office Criminal Law Division**2, and which are the
nearest I have identified to charging decisions, do give rise to real concerns. They were
almost invariably lacking any real analysis of the evidence, and appeared to take as
read the evidential position as set out in the investigator’s summary. This is of concern
because the offences under consideration, in particular theft and false accounting,
involved a number of elements for which it was necessary to consider the evidential
sufficiency to reach an effective charging decision. In particular, this involved
consideration of the evidential basis to establish dishonesty, evidence to show where
money had gone, and whether the evidence was reliable. By way of example:
(a) In the case of Lisa Brennan, she was charged with theft even though the internal
memorandum sent by the lawyer to the investigators asked whether there was
evidence of stealing as opposed to the covering up of shortages, and whether there
was evidence that she was dishonest rather than incompetent;
(b) In the case of Oyeteju Adedayo, the lawyer correctly identified dishonesty as the
likely defence, but did not address what evidence there was to prove that element
of the false accounting offences that she advised should be prosecuted;
(c) In the case of Josephine Hamilton, she was charged with theft by reference to an
investigation report which had concludeds* “having analysed the Horizon printouts
and accounting documentation I was unable to find any evidence of theft or that the cash
figures had been deliberately inflated”. That uncertainty appears to be borne out by
the decision ultimately to take a plea to false accounting.
(d) The limitations of the analysis relating to dishonesty are further illuminated by the
approach of the Post Office to the Second Sight review in the case of Hughie
Thomas. It was considered that the postmaster was liable however the loss had
been occasioned, “whether inadvertent or deliberate”. It would follow from this
analysis that an inadvertent accounting error would be considered sufficient to
found a prosecution for false accounting where there was no deliberate act and no
dishonesty.
882 Advices were provided in particular by Jarnail Singh, a senior lawyer; J. MacFarlane, Principal
Lawyer
853 POL00047331
$54 POL00044389
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634. Asa result, to adopt the wording of the Inquiry’s question, they were neither thorough
nor conscientious. One particular consequence of such a lack of rigour in the analysis
of evidence was that it left the prosecution case open to change, and sometimes radical
change, as the case moved towards and through trial. I am well aware that change to
the way a prosecution puts its case can be necessary as new evidence comes to light,
and evidence that was at one stage considered reliable is proven by further analysis or
enquiry to be otherwise. However, the case of Carl Page illustrates the problem here.
The case against him was advanced first on the basis of a fraud with a customer
relating to foreign currency and then, following the first trial, was radically recast as
an allegation of theft concealed through foreign currency records. The exposition and
recasting, which represented a seismic change, did not appear to have involved at any
stage a detailed analysis of the evidence that I have seen, to justify either position, or
the propriety of moving from one to the other.
635. The test that was apparently applied by the lawyer in giving such advice varied. As I
identified in my first report, the Code for Crown Prosecutors was not acknowledged
as the basis for Post Office charging decisions until 20078, when it was said that the
sufficiency of evidence to prosecute and the public interest would be considered by
reference to the Code. I observed in my first report (from para.155), that there was little
assistance provided in the Post Office documents until 2013 as to how the Code was
to apply to the cases to be prosecuted by the Post Office, in relation to either limb of
the test. In fact, on my review of these 20 cases I confess to having not identified any
significant change in the way that charging decisions appear to have been approached
before 2007 and after, or as the Code for Crown Prosecutors developed with new
editions in 2004, and 2010.
636. In its 2004 version, the Code for Crown Prosecutors identified not only a test of
whether there was a realistic prospect of a conviction, but also (at para.5.4) a series of
factors that would assist a reviewing lawyer in determining whether that test was met.
These focused in particular on the reliability of the evidence. The factors relevant to
this limb of the test were further enlarged and developed in 2010. However, in the
charging advices I have seen, there is no analysis by reference to these factors at all. By
way of example, where a charge of theft was contemplated, this should, first, have
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involved a question of whether there was sufficient reliable evidence that money had
been taken, and secondly that it had been taken dishonestly. Whilst the prosecution
was not required to accept the account given by the suspect, it would have been
expected that a charging advice would have considered its effect on their case. Where
the basis for asserting loss was the Horizon record, its reliability should have been a
factor to be considered by the prosecutor. Such an analysis was lacking.
637. I Even more concerning is the evidence in a number of the cases that I reviewed that the
test of a realistic prospects of a conviction, as defined in the Code, was not the test, or
the only test, being applied. In particular:
(a) In the case of David Blakey in 2005, whilst the realistic prospects of success for
charges of theft and false accounting were asserted, they were accompanied by the
assessment that there as a low prospect of success for theft, but a high prospect of
success for false accounting.
(b) In the case of Hughie Thomas in 2006, a different lawyer considered there to be a
realistic prospects of success for charges of theft and false accounting, but this was
accompanied by the assessment that there as a medium prospect of success.
(c) In the case of Peter Holmes in 2008, the same medium prospects of success test was
added to the assessment of the realistic prospects of conviction.
638. I My concern in my first report was that the lack of assistance for prosecutors as to the
test to apply and what it meant would lead to a divergence of approach. These
examples would tend to show that concern to be well founded, and to suggest that the
decision making process in such cases was, or was at least at risk of being flawed. This
is arguably borne out by the fact that in the cases of each of these three sub-postmasters
they were originally charged with theft, but ultimately convicted of false accounting.
If the assessment by the prosecutor that there was less than a realistic prospect of
conviction, the theft charge should not have been brought initially.
639. In disturbingly few of the charging advices that I have reviewed was there any
reference to, let alone analysis of, the public interest. The 2004 Code for Crown
Prosecutors identified 17 public interest factors favouring prosecution, and 9 to the
contrary. The 2010 Code identified 19 public interest factors favouring prosecution,
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and 11 to the contrary. There was no analysis of these features in the charging advices
that I have seen, and in only a very few cases were any factors properly characterised
as public interest concerns referred to. I recognise that where a prosecutor was
satisfied that there was a realistic prospect of proving that there had been theft by an
employee in breach of trust, that would be a strong factor in favour of there being a
public interest in prosecution. However, the nuances to the test, by reference to the list
of factors for and against in the Code for Crown Prosecutors underline that such an
analysis may be over simplistic. Factors such as the previous record of the employee,
whether they have made reparation, whether the offence was the consequence of a
lack of training or help leading to errors leading to panic, were also all relevant, but
rarely addressed as such.
640. The approach to charging as between theft on the one hand and false accounting on
the other lacked consistency. In the majority of cases, where both offences were
charged, there was a lack of explanation as to why. In a number of cases there was also
a lack of confidence in the charging decision exhibited by the willingness to accept a
plea to false accounting instead. For example:
(a) In the case of Davud Blakey, the charging of both theft and false accounting was
not justified by the advice either by reference to the decision of the Court of Appeal
in Eden®** or the available evidence. The fact that the plea to false accounting was
taken, on Mr Blakey’s account to the Second Sight review, only after the Crown
Court judge had raised concerns about the evidential basis for the theft charge,
suggests a lack of rigorous thought about what charges were appropriate.
(b) The same could be said of the decision to take pleas to false accounting in cases
such as Josephine Hamilton, Peter Holmes, or Alison Henderson.
(c
In the case of Seema Misra it was said at the time of charge for theft that a plea to
false accounting would be accepted. In fact, such a plea was not accepted later, but
this was arguably a concession to the absence of actual evidence of theft and
consistent with an approach whereby theft was charged to encourage pleas to false
accounting. That also accords with the fact that the charging decision includes no
analysis of the evidence, and does not suggest any evidence be obtained that was
not identified in the investigation report.
856 (1971) 55 Cr.App.R. 193
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641. Ina number of cases where theft was charged, moreover, there was uncertainty as to
what the actual loss was, even by the close of proceedings. For example, in the case of
David Yates, as the Court of Appeal observed*”, “Although the amount of any theft is not
a material averment on an indictment, POL accepts that it is very unclear how much Mr Yates
admitted to taking from POL monies as opposed to from other available revenue.” Similarly,
in the case of Carl Page his ultimate plea followed the radical reduction by the
prosecution in the amount it was alleged that he had stolen. It is of note in the latter
case that, according to his ‘professional adviser’s account to the Second Site Review,
Mr Page pleaded guilty to that lower sum after it had been intimated that the
prosecution were contemplating a perjury charge in relation to an aspect of his
evidence at the first trial. The material does not allow for any conclusion as to the
actual sequence of events in that case, beyond the sudden reduction in the loss figure.
642. In my first report (from para.164), I considered the extent to which the Post Office
addressed and applied the observations of the Court of Appeal in Eden‘, If the core
message to be derived from those observations was that the prosecutor needed to
consider what false accounting added to theft, and whether they were proper
alternatives. As identified, there were cases where both were charged without an
analysis of why both offences were necessary. In that context, the decision in Eden was
not referenced. Indeed, the only occasions I have identified when it was related to cases
where a plea to false accounting was belatedly accepted by the prosecution. For
example:
(a) In the case of Tahir Mahmood, counsel advised that on the evidence, which in
effect meant Mr Mahmood’s account in interview, it was appropriate to charge
false accounting rather than theft because there was no evidence of Mr Mahmood
taking monies, and the gain to him through his accepted falsification of the
accounts was “putting off the evil day of having to sort out the muddle and pay up”
(quoting Eden);
857 [2021] EWCA Crim 577, pars.330-331
858 (1971) 55 Cr.App.R. 193.
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(b) In the case of Lyn Hutchings, a count of false accounting was added to the
indictment at trial, to which Ms Hutchings pleaded guilty. A basis of plea’? was
entered to false accounting which accepted that she had made the books balance
in order to “ Put off the evil day of having to sort out the muddle” and not on the basis
she took or intended to take any money. The wording of the basis plea was an
express reference to the approach to false accounting in Eden*°,
643. Those cases just mentioned are examples of a wider approach of charging both theft
and false accounting, and ultimately accepting a plea to the latter. In principle there is
nothing wrong with adopting such an approach, where the plea is properly assessed
to reflect the interests of justice and the public interest. As I have identified, it would
be of concern if it reflected an overcharging, or an unrealistic charging of an untenable
offence in the first place the reality of which was only accepted at a later stage.
(3) Circumstances of pleas
644. I However, the greater concern in a number of the cases I have considered was that
evidence that the theft charge was used as a means to pressure a defendant into
pleading guilty to false accounting, with conditions attached to the acceptance of that
plea which were wholly inappropriate. In this context, I have in mind the cases of
Hughie Thomas.
645. I Hughie Thomas pleaded guilty to false accounting in September 2006, and the theft
charge was not pursued. The memo recording this hearing**! noted “ this was pursuant
to a basis of plea which makes it clear that no blame was attributed to the Horizon Computer
System. The defendant accepted that there was a shortage but he could not explain how it came
about. He accepted that as a Sub postmaster he is contractually obliged to make good the
shortage”. In other words, the acceptance of this plea was made conditional on the
repayment of monies which, consistent with the plea, had not been shown to have
been taken, and to an undertaking not to criticise the Horizon system. From the
material I have seen, this appears to have followed from a discussion between the
85° POL.0042575
860 (1971) 55 Cr. App. R. 198
861 POL00048201
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principal Post Office lawyer, J. MacFarlane and the Post Office agents in the
prosecution in which the lawyer said8® that: “... we would proceed with false accounting
providing the Defendant accepts that the Horizon system was working perfectly... Further
instructions are that the money should be repaid.”
646. Mr Thomas himself reported to the Second Sight Review that the approach taken was
“aggressive and inappropriate” . It should not be forgotten that from the perspective of a
defendant there is a very significant difference of theft and false accounting as to the
potential outcome. Theft by an employee in breach of trust, in the period with which
the Inquiry is concerned, was recognised*® as an offence usually attracting an
immediate custodial sentence even ina case with strong personal mitigation. It follows
that a defendant, confronted by the evidence of loss deriving from the Horizon System
and a lack of possible questions as to its reliability, would understand that a plea to an
alternative offence would increase the chances of them retaining their liberty, and it is
reasonable to anticipate that they would receive legal advice to that effect.
647. The Post Office submitted in the context of the Second Sight Review in Mr Thomas’
case that the decision to accept the plea was reached in accordance with the Code for
Crown Prosecutors following a review of the case. However, as was acknowledged
then, there is no evidence of such a review of a decision which in the first instance, as
I have observed, did not follow the Code test. Rather than a review of the evidence,
the prospects of conviction or the public interest, the only matters raised in the material
I have seen, and that I have just quoted, are the recovery of money and the protection
of the reputation of the Horizon system.
648. The same factors were explicitly advanced as the basis for a plea to false accounting
being accepted in the case of Josephine Hamilton. In that case, advice had been
provided by trial counsel that there is sufficient evidence to support theft, but Royal Mail
may be content with guilty pleas to dishonesty matters if she undertook to repay the amount of
the shortage at audit” . There was no analysis of the evidential basis for theft in his advice,
in keeping with the lack of such analysis in the original charging decision, but by
862 POL
8 See for example the guidance from the Court of Appeal, before the Sentencing Council issued
guidelines, in Barrick (1985) 81 Cr.App.R.78 and Clark (1982) 4 Cr.App.R.(S.)137
864 POL.00049069
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reference to his draft opening note*®, this would appear to be based on reliance of the
Horizon records showing a shortfall. However, an anonymous factual summary on
the same topic’ is explicit as to the basis on which the plea would be acceptable: “the
charge of theft not to be dropped until full amount is paid by JH and if need be to recovery losses
prosecution will proceed by confiscation...JH guilty plea accepted on JH recognition that JH
had the money (short of theft) and plea on the basis that loss was due to computer not working
properly will not be accepted”.
649. In the case of Allison Hall, the Court of Appeal’ found that her plea to fraud by false
representation in the alternative to theft in June 2011 was accepted on the basis that
she would not criticise Horizon. This was despite the fact, as the Court observed, that
Mrs Hall had not sought to make any such criticism hitherto. That pre-condition as to
the lack of criticism of Horizon had also appeared in the case of Alison Henderson
when she pleaded to false accounting in the alternative to theft in December 2010. In
that case, it was made clear, first, that the money had to be paid back even though her
pela was advanced on the basis that she covered up a shortfall, rather than benefited
directly from one. Secondly, the Post Office lawyer made explicit%*: “Clearly if there
were to be a plea to false accounting but on the basis that the Horizon system was at fault then
that would not be an acceptable basis of plea for the prosecution.”
650. I Adopting the language of the Court of Appeal when it considered these cases*®, it was
“improper” of the Post Office to have made their acceptance of a plea to a lesser
alternative offence to theft conditional on the defendant in question not “making any
explicit criticism of Horizon” . Moreover, “in circumstances where theft could not directly be
proved, and the shortfall may not have been a real loss, it was wrong to try to prevent [the
defendant] from making any criticism of Horizon as part of [their] mitigation to the charge
... admitted.” Tt would clearly have been a relevant, and likely a strong mitigating factor
following a plea that the falsification of records was to cover a shortfall for which the
defendant was not responsible and may have been a computer error. To deny the
defendant that mitigation was “wrong”.
865 POL00048841
866 POL00057661
867 [2021] EWCA Crim 577, at para.117
868 POL00055783
869 [2021] EWCA Crim 577, paras.71, 113, 117
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651. Moreover, again adopting the language of the Court of Appeal®”, it was “irrational and
unjust” for the Post Office to have required the defendant to accept that they “had the
money short of theft” and/or to require the repayment of the money as a precondition
to the acceptance of a plea where the plea being accepted did not involve acceptance
of the causing or, or financial benefit from, the loss. As the Court of Appeal observed
“POL’s conduct gives a firm impression that the condition of repayment in return for POL
dropping the theft charge placed undue pressure on Mrs Hamilton, It gives the impression that
POL was using the prosecution process to enforce repayment.” That impression is supported
by the fact that in many of these cases repayment of the loss was pursued following
pleas to false accounting or, in the case of Joan Bailey, when she was cautioned instead
of prosecuted.
(d) Initiation of proceedings
652. In my first report (from para.184), I addressed the procedure for the initiation of a
prosecution by the obtaining of a summons, and the duty of candour that is required
when an information is laid to obtain one. I was asked to consider the extent to which
that duty was satisfied in informations laid by the Post office. In fact, I have not seen
any indication in any of the 20 cases I have reviewed as to what information was
shared when the summons to initiate proceedings was obtained. However, those
informations appear to have been laid by the investigators who prepared or were
involved with the steps reflected in the various investigation reports. The lack of
investigation of important areas, and especially the reliability of Horizon,
demonstrated by those reports, would be consistent with those limitations not being
recognised or identified when the summons was sought.
(e) Disclosure
653. The assessment of disclosure, the correctness of the approach adopted and the
sufficiency of its performance, is predicated on the availability of evidence of what was
done and why. In some cases, the material is limited and this is therefore difficult. In
others, the approach to disclosure is best illustrated by reference to defence
correspondence seeking disclosure, which thereby indicates what had not been
870 [2021] EWCA Crim 577, paras.113, 147
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disclosed, and the assessment of whether such disclosure should have occurred. In
some cases, additionally, schedules of unused material are included with the papers
that I have seen.
654. Such schedules, for example of non-sensitive unused material (equivalent to an
MG6C), were drawn up by the disclosure officer, who, where named, was also the
investigator. Such schedules were quite short, and mainly included correspondence
and documentation relating to the interview process. They lacked any reference to the
underlying raw accounts data (to the extent that this was not included in the served
evidence), and there was usually no reference to any previous complaints or
discussions by the defendants with managers or helplines. This applied in cases where
the defendant complained about the system, or referred to such complaints and
discussions as much as where they had not.
655. Both the CPIA Code and the Attorney General’s disclosure guideline in its various
iterations stress the importance, first, of suitably detailed descriptions of the items on
the schedules to allow for their review for disclosure and, secondly, of such review of
the schedules by the prosecutor. In a number of cases, the descriptions were
inadequate, for example in the case of Peter Holmes, but do not appear to have been
picked up on. Also by reference to the Code and Guideline, there is, on the material I
have seen, no evidence that the disclosure officer drew the prosecutor’ attention to any
material the disclosure of which was uncertain®’!, or that the prosecutor had inspected
the material*”,
656. In the main, the unused schedules I have seen did not show on their face any evidence
of a review by the prosecutor having occurred. This makes it difficult to be satisfied
that this important task was undertaken. I accept that this may, at least in some cases,
have been an omission of annotation rather than of review. For example, in the case of
Josephine Hamilton, the lawyer provided the unannotated schedule to the defence and
informed them that nothing from its content was disclosable.
871 As required by para.7.1, CPIA Code
872 By reference to pra.7.4, CPIA Code and par.24, AG’s Guidelines 2000, or para.35, AG’s Guidelines
2005, which would only just have come into effect
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657. That stance appears to have been adopted in a number of the other cases, whether
either the schedule itself, or more often accompanying correspondence indicated that
everything listed on the schedule was clearly not disclosable (‘CND’). In my view, such
an assessment was often in error, as there was material listed that would in fact have
been disclosable as being capable of assisting the case for the accused, particularly on
a theft charge. In that regard, the cases I have considered straddle the updating of the
Post Office disclosure of unused material policy in July 2010.87 That policy, at para.3.9,
specifically enjoined consideration of the defendant’s interview and defence
statement, potential lines of cross-examination and applications to exclude as reasons
to disclose. That is not reflected in the approach adopted in the cases I have reviewed,
nor was there evidence of a change in approach when the new policy came into effect.
658. I should note that in a number of cases that the disclosure position was improved once
counsel were instructed for trial. Whilst this was often in the context of responding to
defence disclosure requests or applications for further disclosure pursuant to section
8, CPIA, it is right to acknowledge that they did provide advice that resulted in
disclosure being made. For example:
(a) In the case of Suzanne Palmer, counsel accepted that there needed to be disclosure
of accounting records relating to scratch card monies (albeit a month before trial in
response to a defence application).
(b) In the case of Josephine Hamilton, counsel advised in a review of material obtained
from the defendant, where this had not previously been undertaken.
(c) In the case of Seema Misra, trial counsel was proactive in his approach to
disclosure, providing advice and reviewing material. His interpretation of the
CPIA was a robust one, but was in accordance with its terms.
659. The areas where disclosure was lacking, unsurprisingly, related to the same areas in
which the lines of enquiry pursued in the investigation were lacking. For example,
there was often either no material listed, or very limited material listed, to suggest any
financial enquiries, and no reference or limited references to enquiries with helplines.
By way of example:
873 POL00104848
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(a) in the case of Peter Holmes, a comparison of the list of financial material reviewed
by the defence accountant*” to the MG6C schedule’”> shows that either the
prosecution had not undertaken necessary detailed analysis of Mr Holmes’
position or, if it had the material, had not disclosed that which was relevant to the
issues in the case in that regard.
(b) Similarly, in the case of Angela Sefton and Anne Nield, the first unused MG6C
schedule’ produced was very limited in its reference to financial investigation in
relation to the defendants, and there is no reference to any material generated by
an investigation into the calls to the Horizon helpdesks, the Branch Conformation
Team and/or the National Business Support Centre. The limitations to this were
demonstrated by the fact those acting for Ms Sefton sought further disclosure’”” of
that which should have been disclosed in the first place in terms of contact with
call centres, and which is not addressed as being material held by the prosecution
in the unused schedules.
660. As an adjunct to these areas where disclosure fell short, there were a number of areas
where the experience of investigators in relation to particular issues does not appear
to have translated into disclosure being made that such issues had been identified
before. A clear example of this is an issue that arose in relation to scratchcards in both
the cases of Suzanne Palmer and Allison Hall. In the latter case papers was an email
in 20138 from Dave Posnett, a Financial Investigator who was a fraud risk manager
until May 2010 said “ the scratch card process worked but some SPMRs had trouble getting
to grips and understanding it. The volume of TCs across the network were...a concern”. It is
important to note that Ms Palmer was investigated in 2006 and Mrs Hall in 2010, and
that Mr Posnett’s comments were in an email exchange in 2013, which appears to have
related to a review of cases, however, depending on when the issues he describes were
in fact identified, it does raise the question as to whether issues with scratch cards had
been raised and yet no disclosure in relation this issue was undertaken.
874 POL00052103
875 POL00051527
876 POL00057949
877 POL00044219
878 POL00029604
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661. Clearly, the most concerning area of non-disclosure, and the one that was of particular
concern to the Court of Appeal in those cases it considered, was the lack of disclosure
relating to the operation and reliability of the Horizon system. The Court of Appeal
has identified that in those cases it considered there had been failures to obtain and/or
disclose the ARQ data necessary for any realistic analysis of the reliability and
accuracy of the Horizon data relied on in these cases. It is of note that the need for such
case specific data had been drawn to the attention of the Post Office by Gareth Jenkins’
generic statements relied on in cases such as Grant Allen, Sefton and Neild and
Khayyam Ishaq. The statement made clear that he had not examined the detailed logs
to see if there were any issues or any justification in the claim this resulted in system
losses. In the case of Mr Allen, Mr Jenkins, having been informed of Mr Allen’s account
by Cartwright King and asked to comment on it, had offered, on 5‘ December, to
examine the data in addition to making a general statement. On the same day he was
told to make the general statement, and it was considered that the statement ultimately
served was sufficient. It is suggested by the ‘Gareth Jenkins chronology’ that the
possibility of such specific data analysis was raised on a number of other occasions.
662. Rachel Panter, of Cartwright King, expressed the view in an email to Gareth Jenkins,
the expert, in November 20128” when she explained that she would be serving his
generic statement in a number of cases including that of Mr Ishtaq. She said “what I
propose to do it serve your statement on each defence solicitor so that the issue of Horizon is
addressed. That will then place the onus on the defence to specify what if anything is wrong
with the Horizon system. I do not think they will be able to do this, but they still have the
opportunity if they want a trial to call you to give evidence”. In short, the relevance of the
issue was in these later cases recognised but the need to obtain and serve or disclose
the ARQ data was not. This appears to have been because of the attitude expressed by
Ms Panter in this email, and by other lawyers in other cases, that it was for the defence
to identify what the problem was, rather than for the prosecution to examine the data
to determine if there was one.
663. Ms Panter summarised the position, which appears to have been a common one, in
2012880: “it should be noted that to date most, if not all cases raising the Horizon system as an
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issue have been unable/not willing to particularise what specific issues that they may have with
the system and how that shapes the nature of their defence”. As an approach to disclosure,
the obvious difficulty with it is that it makes disclosure dependent on a defendant
understanding what had gone wrong, what issue with the Horizon system had led to
accounting imbalances, when a reason for the defendant seeking to cover unexplained
losses was that they did not understand why they were happening. Rather, the
prosecution was under a duty to disclose any evidence of any fault or other technical
issue with Horizon’s operation at that post office that might provide an explanation
for the issues, even if it was not one that the prosecution, through its expert, accepted.
Moreover, as his approach in the case of Gareth Allen shows*!, it was possible for Mr
Jenkins to access the Horizon data for a particular post office to check if there were any
issues. The approach identified by Ms Panter here did not facilitate such an approach,
and yet it was that approach that was required.
664. The failure to disclose underling ARQ data, identified as a significant shortcoming by
the Court of Appeal in those cases it considered, applied even where the defence had
instructed experts who required it. This is illustrated by the case of Carl Page, and
particularly the case of Seema Misra. I will address expert-related disclosure below. In
the case of Hughie Thomas, where there was some disclosure, it was based on dip
samples and was inadequate to allow for any proper analysis.
665. It is clear from the protracted process of requests and counter-requests relating to
experts over a substantial period of time in cases such as Seema Misra, that an analysis
of various types of raw Horizon data was necessary for there to be a realistic
assessment of whether it was reliable, and whether bugs or other issues with its
operation might have affected the data relied on to demonstrate loss. It is also clear
that such data was not obtained as part of the investigation before charge, or for a very
long time thereafter. Discussions at later stages of the pre-trial disclosure process in
Seema Misra’s case appear to have raised as objections to doing so firstly the
contention that the sub postmaster was the person best placed to identify with a degree
of specificity what the problems with Horizon were, and secondly that obtaining such
data from Fujitsu would be costly. It is difficult to sustain either objection. As to the
first, as I have just set out, it was for the prosecution, using both that skill and that
881 POL00086353
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data, to test for problems, and to satisfy itself as to the reliability of its evidence.
Secondly, issues of cost were issues for the prosecution that had chosen to bring the
prosecution, and not usually a reason to refuse to undertake a reasonable line of
enquiry, or to meet its disclosure obligations. Other correspondence, in the context of
the case of Grant Allen, also suggest that cost was not a real issue in relation to the
obtaining of the data, as opposed to the time taken then to analyse it.
666. In this context, there was no real discussion that I have seen, beyond this discussion as
to cost, of the relationship between the Post Office and Fujitsu, in relation to the
obtaining and disclosure of material held by Fujitsu that was potentially relevant to
the Post Office’s prosecutions. As I set out in my first report (from para.294), the Post
Office policies that I reviewed were silent on their approach to third party disclosure,
which were addressed throughout the Inquiry’s relevant period by the Attorney
General's guidelines on disclosure. Those guidelines, and the analysis of them in
Alibhai8®2, recognised that the prosecution had a margin of appreciation as to what
steps were required for it to meet its disclosure obligations. That could include
consideration of cost in relation to third party material, but where that material was
necessary to test the reliability of the core prosecution case it seems to me at least very
likely that a court would consider that such a case fell within the definition in Alibhais®
of an “extreme case” in which “it might be so unfair for a prosecution to proceed in the absence
of material which a third party declines to produce that it would be proper to stay it...”
667. The pool of in house lawyers and investigators who were involved in these cases
appears to have been small, and thus they would have built up an awareness of
Horizon issues being raised in these cases. Correspondence increasingly shows such
an awareness. However, that awareness was not matched by any apparent awareness
that the fact that such issues had been raised elsewhere, and the nature of the
complaint made, was itself potentially disclosable in other cases where the same issues
arose or complaints were made. An early example is that same lawyer dealt with the
cases of David Blakey and then Tahir Mahmood. There was no apparent consideration
of whether the issues raised by Mr Blakey fell to be disclosed when similarly raised by
Mr Mahmood.
882 [2004] EWCA Crim 681, at para.63
883 [2004] EWCA Crim 681, par.64, and see also R(L) v SFO
238
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668. As time passed, the number of cases where Horizon issues were being raised
proliferated, and the need for cross-disclosure between them should have become all
too obvious. It is far from obvious that this was carried out, however.
669. In September 2010, a memorandum from Jarnail Singh, the Post Office senior lawyer,
to Mandy Talbot, the principal lawyer at Royal Mail Group** identified a request for
disclosure in a case at Bradford Crown Court for disclosure relating to other cases
where Horizon issues had been raised. This included Mrs Hamilton’s case, but also
those of Seema Misra, Hughie Noel Thomas and others. Mr Singh asked whether there
were others. Ms Talbot replied*’> saying that relevant material was in storage, and
commented “there are ongoing cases every month which raise the issue of Horizon so it’s a
movable feast. I am endeavouring to pull together a list of those cases currently with us where
allegations have been made in respect of Horizon. Most of these have been on hold awaiting the
decision on Misra”.
670. It is clear, therefore, that there was an awareness of a proliferation of cases where
Horizon’s accuracy was in issue, but the memoranda do not suggest a sufficiently
joined up approach to disclosure relating to them. It appears, therefore, that cross-
disclosure between cases where Horizon issues had arisen was not being undertaken.
There is certainly no evidence of routine cross-disclosure where Horizon evidence was
relied on, which would be every such case, or even where issues with Horizon was
raised. In my view, given that reliability of Horizon data was a realistic issue in almost
any case where there was reliance on such data, disclosure of the applicable data, and
cross-disclosure of issues that had arisen, should have occurred. As was identified in
a defence application under section 8, CPIA in the case of Sefton and Neild%*, such
material was relevant to the subjective element of the test then applicable for
dishonesty**”, and secondly to the question of any intention to make a gain for herself
or to cause a loss to another, for the purposes of section 17, Theft Act 1968.
884 POL00055212.
885 POL00055894
886 POL00044041
887 Pursuant to Ghosh [1982] 75 Cr. App. R. 154
239
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671. Inan email exchange in July 2012, Jarnail Singh, a Post Office lawyer in their criminal
team, said that Second Sight were to undertake a review of the Horizon system “after
a number of meetings between Post Office Management and Members of Parliament” . In this
context, a disclosure form of words, described as a “story” was prepared addressing
this issue. It is concerning that the email thread suggests that this form of disclosure
was partially prepared by the Head of PR and Media at the Post Office. It is also
concerning that it was in 2012 that work was being done on such a form of words. This
form of words** disclosed that a number of complaints had been made about Horizon,
and that a detailed review was to be carried out. It then explicitly stated that “this is in
no way an acknowledgement by the Post Office that there is an issue with Horizon. Over the
past ten years, many millions of branch reconciliations have been carried out with transactions
and balanced accurately recorded by more than 25,000 different sub postmasters and the
Horizon system continues to work properly in post offices across the length and breadth of the
UK. When the system has been challenged in criminal courts it has been successfully defended.”
672. There were significant limitations to the disclosure form of words. It did not
particularise the complaints raised, their nature or number, the issues they raised or
the time period over which they had been made. It also does not address actual bugs
that had been identified. Whilst it is right to say that a complaint in and of itself could
arguably be categorised as hearsay, and that there might have been limitations in itself
to the degree of support that a complaint or number of complaints might make to the
defence of an individual, if any had resulted in disclosure of issues with Horizon that
could have supported the issues in this case then that underlying material should have
been disclosed. It also would have provided a basis for the instruction of an expert on
their behalf, or for more focused disclosure requests by them.
673. In the same way, previous statements of Gareth Jenkins in other cases may have been
disclosable even if they were only addressing “hypothetical issues”. The provision of
that information would have allowed the defence to test Gareth Jenkins views on the
veracity of the system. The same applied to that which Mr Jenkins had addressed in
September 2010. It is concerning that in cases such as those of Ms Sefton and Ms Nield
it appears that neither the form of words nor disclosure relating to Mr Jenkins
occurred.
888 POL00058306
240
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(f) Expert evidence
674. In that context, finally, I have concerns as to the manner of instruction of Mr Jenkins
as an expert, and very significant concerns as to the extent to which either he, as an
expert under a duty to do so, or the prosecution, under their duties, carried out
effective disclosure of and relating to expert evidence. In my report 1A, I addressed
the responsibilities of a prosecutor in instructing an expert to ensure their
understanding of and compliance with their duties as an expert as set out by the Court
of Appeal**, and in the Criminal Procedure Rules*”. In that context (from para.35,
Report 1A) I referred to the guidance issued by the CPS, and their standard letter of
instruction. I have not seen in the material in this case any letter of instruction, or
comparable communication, by the Post Office to Mr Jenkins. Communication with
him in writing appears to have been informal and brief, and at no point made any
reference to the duties of either Mr Jenkins as expert or the Post Office as prosecutor
in relation to material underlying or undermining his opinions. In the context of what
appears to have transpired here, that is concerning.
675. The issues with disclosure relating to expert evidence are exemplified by the saga in
the case of Seema Misra. As I have already observed, the process of disclosure to the
defence expert in that case was protracted and in important respects glacial. Professor
McLachlan identified at the outset a number of hypotheses for how errors could have
been made. Whilst this was characterised after the event by Mr Singh*"', the reviewing
lawyer, as vague and theoretical it is difficult to see what else a defence expert could
do without access to the operation of Horizon and the data relevant to its assessment.
That access and that data took a very long time, and a multitude of requests and
interim expert reports. Such an approach was not consistent with a properly
undertaken and supervised disclosure process, by reference to the CPIA Code and in
particular the Attorney General's disclosure guidelines.
889 Harris [2005] EWCA Crim 1980; B(T) [2006] EWCA Crim 417
89 Part 33, 2010 Criminal Procedure Rules
891 POL00066859
241
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676. A particular feature of the process is that Mr Jenkins of Fujitsu was involved
throughout the majority of the time that Professor McLachlan was engaged and
requesting disclosure. It is clear that there was a good deal of entirely appropriate
liaison between the experts. However, it is also clear that Mr Jenkins was able to
provide reports refuting aspects of the Professor’s work without there at the same time
being disclosure of the material underlying it. This was material available to Fujitsu,
which could and should have been sought by the prosecution from them had it not
already been in the prosecution’s possession. It is difficult to see how factors other than
cost prevented this, and difficult to understand why that should have been. This is not
least because the duties on an expert included the disclosure of the material that
underpinned the conclusions reached, and that here meant the material that Mr
Jenkins used to refute Professor McLachlan, which was the material that the Professor
had in any event been seeking.
677. Similarly, there are concerns that in a number of cases, such as that of Grant Allen, Mr
Jenkins did not undertake analysis, or draw attention to material, the relevance of
which was clearly engaged by Mr Allen’s account and the circumstances of the case.
Those concerned were raised in the context of Mr Allen’s case by Simon Clarke, a
barrister on behalf of Cartwright King who undertook a review to determine whether
disclosure of the Second Sight and Helen Rose Report would have undermined the
safety of the conviction 82. He observed: “I am concerned by the defendant's assertion that
the original £3000 loss was the result of an non-polling incident, particularly because Dr
Jenkins confirms that such an incident took place. More worrying is Dr Jenkins’ failure to
properly respond to that assertion — he should have looked into the data to determine whether
or not the non-polling incident has been the cause of the otherwise unexplained loss. In this
regard I cannot escape the proposition that had the Second Sight Interim report been available
to use during the currency of this prosecution it would undoubtedly have met the test for
disclosure to the defence , touching as it does upon Horizon defects”.
678. The other very real concern in relation to disclosure and Mr Jenkins is the fact that he
provided reports in a number of cases, and gave evidence in a limited number of them
including that of Seema Misra, about the operation of Horizon that was inconsistent
892 POL00089674
242
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with the information to which he was privy about bugs in the system, and issues with
its operation.
679. The Inquiry will be better placed than I am to assess Mr Jenkins’ position as an expert
and a witness by reference to what was known at the time of his reports and evidence.
However, on the basis of what I have seen there were failures on his part to disclose
material that undermined his opinion, which it was his duty to have disclosed. There
was also material that undermined the prosecution case, as advanced through Mr
Jenkins, that clearly fell to be disclosed and, in the hands of a third party, to be obtained
for review.
243
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REPORT TO THE POST OFFICE HORIZON IT INQUIRY
PHASE 4
INVESTIGATION, DISCLOSURE AND CRIMINAL PROSCECTION
IN ENGLAND AND WALES AND
INVESTIGATIONS AND PROSECUTIONS BY THE POST OFFICE 2000-2013
VOLUME 2- APPENDIX1
DECLARATION
I, DUNCAN ATKINSON KC, DECLARE THAT:
1. I understand that my primary duty in writing reports and giving evidence is to give an
objective, unbiased opinion on matters within my expertise in order to help the Inquiry to
achieve its Terms of Reference. I understand that this duty overrides any obligation to the
person from whom I have received instructions or by whom I am paid, I have complied and
will continue to comply with that duty.
2. [have no conflict of interest of any kind, other than any which I have disclosed in this report,
and I do not consider that any interest which I have disclosed affects my suitability as an
expert witness on any issue about which I have expressed an opinion.
3. Ihave set out in my report what I understand from those instructing me to be the questions
in respect of which my opinion as an expert is required.
4. I have endeavoured in my report and my opinions to be accurate and to have covered all
relevant issues concerning the matters stated which I have been asked to address. The absence
of any comment in this report does not indicate that I have no opinion on a matter. I may not
have been asked to deal with it. All of the matters on which I have expressed an opinion lie
within my field of expertise.
Al
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5, [have endeavoured to include in my report those matters, of which I have the knowledge
or of which I have been made aware, that might adversely affect the validity of my opinion.
6. Where, in my view, there is a range of reasonable opinion, I have indicated the extent of
that range in the report and given reasons for my own opinion.
7. [have indicated the sources of all the information I have used.
8. I have not, without forming an independent view, included or excluded anything which
has been suggested to me by others (in particular my instructing lawyers).
9. At the time of signing the report, I consider that it is complete and accurate. I will notify
those instructing me if, for any reason, I subsequently consider that the report requires any
correction or qualification or if, between the date of this report and the giving oral evidence
to the Inquiry, there is any change in circumstances which affect my declarations at (2) above.
10. I understand that: a) My report, subject to any corrections before swearing as to its
correctness, will form the evidence to be given under oath; b) I may be cross-examined on the
report by a cross-examiner assisted by an expert; c) I am likely to be the subject of adverse
public criticism by the Chair if the Inquiry concludes that I have not taken reasonable care in
trying to meet the standards set out above.
11. This report is provided to those instructing me with the sole purpose of assisting the
Inquiry in this particular case. It may not be used for any other purpose without my express
written authority.
A2
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REPORT TO THE POST OFFICE HORIZON IT INQUIRY
PHASE 4
INVESTIGATION, DISCLOSURE AND CRIMINAL PROSCECTION
IN ENGLAND AND WALES AND
INVESTIGATIONS AND PROSECUTIONS BY THE POST OFFICE 2000-2013
VOLUME 2 - APPENDIX 2
DUNCAN ATKINSON KC
1. Iwas called to the Bar by Gray’s Inn in October 1995, having obtained an L.L.B degree
in Law from the University of Bristol. I was taken on as a tenant at 6 King’s Bench
Walk, now 6KBW College Hill in 1996, and have practised law from there ever since.
2. My primary specialism is in crime, with an element of public law and inquiry work.
As Treasury Counsel between 2009 and 2022, I appeared in numerous complex and
high profile homicide cases, including a number of high profile “cold cases”, together
with homicides involving issues of contested medical causation, diminished
responsibility and child-death. I have particular expertise in cases of gross negligence
manslaughter, and deaths in the context of health and safety regulation or state
detention.
3. T have also appeared regularly in numerous cases concerning allegations of terrorism,
and relating to organised crime. I have been instructed both in an advisory capacity
and as an advocate in cases relating to breaches of Health and Safety and
environmental protection regulation, both in criminal and inquest proceedings. Most
recently, this has included representing 6 of the bereaved families at the Manchester
Arena Inquiry.
AB
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Tam very regularly instructed by the CPS, but have also been instructed in the past by
the HSE, SFO, DWP and Environment Agency. I have never been instructed by the
Post Office. Whilst Treasury Counsel, I advised the CPS as to the revision of the Code
for Crown Prosecutors, the Disclosure Manual and a number of specific charging
guidelines. I have also in the past advised the SFO in relation to their manual, and the
AGO in relation to the AG’s Guidelines on Disclosure.
In public law terms, I have represented the Crown in a substantial number of cases
before the Administrative Court. These have included recently:
(a) Challenge to the decision making of the Attorney General (Slade [2018] EWHC
3573 (Admin)) and the Director of Public Prosecutions (Redston v DPP [2020]
EWHC 2692 (Admin);
(b) Challenge to decisions on abuse of process and prosecution activity in the
magistrates’ court (DPP v Sunderland Magistrates Court [2018] EWHC 229 (Admin)
and DPP v Charlesworth [2022] EWHC 2835 (Admin));
(c) Challenges by judicial review relating to SFO/Police search warrant applications
and the acceptance by the Home Secretary and Serious Fraud Office of letters of
request.
I have appeared in the Court of Appeal in recent times in relation to:
(a) Referrals by the CCRC where issues arose as to diminished responsibility
(Hunnisett [2021] EWCA Crim 265) and secondary liability in homicide (Johnson-
Hayes [2019] EWCA Crim 1217);
(b) Challenges to the statutory framework of the sentencing regime (Patel [2021]
EWCA Crim 231; Baker [2020] EWCA Crim 176 and AYO [2022] EWCA Crim 1271);
(c)_ The definition of sexual touching (AG’s Reference No.1 of 2020 [2021] QB 441);
Thave also appeared in the Supreme Court on 5 occasions, most recently in relation to
the propriety of prosecutions based on activity by paedophile hunters (Sutherland v
HM Advocate [2021] AC 427).
Ad
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8. In terms of publications:
(a) Editor, EU Law in Criminal Practice (Oxford University Press)
(b) Co-Author, Blackstone’s Guide to the Criminal Procedure Rules (Oxford University
Press)
(c) Contributor, Fraud: Criminal Law and Procedure (Oxford University Press)
(d) Contributor, Kingsley Napley & 6KBW College Hill: Serious Fraud, Investigation &
Trial
(e) Contributor, Blackstone’s Criminal Practice (Oxford University Press)
CATHERINE BROWN
1. I was called to the Bar by Middle Temple in July 2005, having obtained an LLB degree
in Law from the University of Newcastle. I was taken on as a tenant at Furnival
Chambers in 2011. I have practised law ever since, initially from Furnival Chambers
until May 2021 when I moved to 6KBW College Hill.
2. Currently my specialisms are extradition, public law and inquiry work.
3. Ihave appeared in high profile extradition cases before the Divisional Court raising
challenges to extradition of significant complexity, including:
i. Tiganescu v. The County Court of Suceava, Romania [2022] EWHC 1371 (QB) -
Concerning a challenge brought in respect of retrial rights in Romania.
ii, Cleveland v. Government of the United States of America [2019] 1 W.L.R. 4392 - The
Divisional Court provided clarification on the proper approach to the drawing
of inferences when considering arguments relating to dual criminality.
iii. Francis v Government of the United States of America[2019] EWHC 2033 (Admin)
- Challenges brought in respect of Article 3 ECHR relating to prison conditions
in the United States and family life pursuant to Article 8 ECHR.
iv. Visha v. Italy [2019] EWHC 400 (Admin) - Challenges brought in respect of
Article 3 ECHR relating to risk factors arising due to blood feuds and prison
conditions in Italy.
AS
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4. My practice initially focussed on criminal law and I retain instructions in domestic
criminal matters. I recently appeared in the Court of Appeal in a referral by the CCRC
(Rex 0 Joseph Tsang [2023] EWCA Crim 350).
5. Consequently, I have significant experience of advising on disclosure requirements
in domestic criminal cases and the disclosure obligations within the extradition
regime.
6. Iam on the Attorney-General’s B Panel of counsel and have represented His Majesty's
Government and public bodies in numerous cases before the Administrative Court
and the County Court including challenges brought by way of judicial review
concerning immigration decisions, search warrant applications and Prison Law. I am
currently instructed as junior counsel for the Home Office in the Undercover Policing
Inquiry. I regularly advise Government Departments on disclosure obligations and the
Duty of Candour.
7. Moreover, I have represented both organisations and individuals in inquest
proceedings before the Coroners’ Courts and I have been instructed in proceedings
brought by regulatory bodies including the Nursing and Midwifery Council and the
Health & Care Professions Council. I have never been instructed by the Post Office.
SEBASTIAN WALKER
1. I was called to the Bar by Gray’s Inn in July 2019, having obtained an L.L.B degree in
Law and an LLM in Law (Criminal Justice), both from the University of Nottingham.
I was taken on as a tenant at 36 Group in 2021, and have practised law from there ever
since.
2. Prior to coming to the Bar I worked for four years at the Law Commission and the
Attorney General's Office. At the Law Commission, I was the lead lawyer on what is
now the Sentencing Act 2020. At the Attorney General's Office I advised on a range of
topics including unduly lenient sentences, contempt of court, applications for consent
to prosecute and applications for second inquests. As part of my work at the Attorney
A6
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General’s Office I worked on the revision of the Attorney General’s Guidelines on
Disclosure published in 2020.
My practice is principally in criminal law, with an element of crime-related public law
work (principally relating to prison law and civil proceeds of crime work). I am a
member of the CPS Advocates General Panel at level 3. 1 am also a member of the
Serious Crime, Fraud and Proceeds of Crime specialist panels at level 2. I have been
instructed in prosecutions brought by local authorities, the Insolvency Service, Her
Majesty’s Revenue and Customs and private prosecutors. I have advised in this
capacity on the application of the duty of candour to summons applications and on
the approach to disclosure. I have never been instructed by the Post Office.
I have been instructed as junior alone and led junior in a number of fraud, money
laundering and computer misuse cases. A significant portion of my practice relates to
cases involving the potential disclosure of sensitive material. I was disclosure counsel
in the prosecution of 11 defendants for the murder of Michael Anton O’Connor, a
murder that took place against a background of a drugs dispute, in which I spent
hundreds of hours reviewing disclosure. I am experienced in advising on the extent of
disclosure obligations, making and opposing s.8 disclosure applications, identifying
reasonable lines of enquiry and dealing with issues of Legal Professional Privilege and
Public Interest Immunity.
I have authored articles and commentaries in the Criminal Law Review, Law
Quarterly Review, Public Law, Archbold Review and Lloyd’s Law Reports: Financial
Crime and am involved in the following publications:
(a) Co-Author, Sentencing Principles, Procedure and Practice (Sweet & Maxwell)
(b) Co-Editor, Current Sentencing Practice (Sweet & Maxwell)
(c) Co-Editor, Criminal Appeal Reports (Sentencing) (Sweet & Maxwell)
(d) Contributor, Archbold Criminal Pleading, Evidence and Practice (Sweet & Maxwell)
(e) Contributor, Miller on Contempt of Court (4* edition, Oxford University Press)
Az
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REPORT TO THE POST OFFICE HORIZON IT INQUIRY
PHASE 4
INVESTIGATION, DISCLOSURE AND CRIMINAL PROSCECTION
IN ENGLAND AND WALES AND
INVESTIGATIONS AND PROSECUTIONS BY THE POST OFFICE 2000-2013
VOLUME 2 - APPENDIX 3
Documents referred to in Volume 2
Case law
No. Citation
1 Alan Bates & Ors v Post Office Limited - Judgment (No.3) “Common
Issues” [2019] EWHC 606 (QB)
2 Alan Bates & Ors v Post Office Limited - Judgment (No. 6) “Horizon
Issues” [2019] EWHC 3408 (QB)
3 Josephine Hamilton & Ors v Post Office Limited [2021] EWCA Crim 577
4 R v Ghosh [1982] QB 1053, [1982] 75 Cr. App. R. 154
5 Ivery v Genting Casinos (UK) Ltd [2017] UKSC 67, [2018] AC 391
6 Gomez [1993] AC 442
7 [1989] Crim LR 299
8 (1971) 55 Cr. App. R. 193
9 Scot-Simmonds [1994] Crim LR 933
10 O [2010] EWCA Crim 2233
11 [1978] 3 All ER 10
12 Rv Varley & Ors [2019] EWCA Crim 1074
13 R v Brennan [2004] EWCA Crim 1329
14 Olu [2010] EWCA Crim 2975
15 Barton [2020] EWCA Crim 575, [2021] QB 685
17 Goodyear [2005] 1 WLR 2532
AS
19 Barrick (1985) 81 Cr.App.R.78
20 Clark (1982) 4 Cr.App.R.(S.)137
21 R v Alibhai & Ors [2004] EWCA Crim 681
22 B(T) [2006] EWCA Crim 417
23 Harris [2005] EWCA Crim 1980
Publicly Available Documents
No. Document
1 CPIA Code
2 AG's Guidelines 2000
3 AG’s Guidelines 2005
4 Code C
5 Part 33, 2010 Criminal Procedure Rules
Inquiry Documents
No. URN Document Description
1 POL00165905 Gareth Jenkins Chronology
2 POL00118154 Managing Shortages at Audit: Process and Policy
Guidelines
3 POL00104823 Royal Mail Group Security Procedures & Standards:
Criminal Offences Points to Prove P&S Doc 7.3 v2
4 POL00047324 Report from S Bradshaw to Jan Mullin re audit
investigation and suspension of Lisa Brennan
5 POL00047317 Transcript of tape recorded interview under caution of
Lisa Brennan
6 POL00047318 Part 1 of transcript of interview under caution of Lisa
Brennan
7 POL00047320 Lisa Brennan case study: Record of tape recorded
interview in re to Lisa Brennan.
8 POL00047322 Summary Record of Tape Recorded Interview for Lisa
Margaret Brennan.
9 POL00104758 Investigation Policy: Interviewing v2.0
10 POL00104745 Investigation Policy: Appendix 1 - Interviews under
PACE (England & Wales only)
11 POL00047331 Internal memo from Teresa Berridge to Prosecution
Support Office, Leeds re: Lisa Margaret Brennan
12 POL00066713 Lisa Brennan case study: Regina v Lisa Margaret
Brennan judgment
Ag
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13 POL00047335 Lisa Brennan case study: Interoffice Memorandum from
Steven Bradshaw to Teresa Berridge re: Lisa Margaret
Brennan.
14 POL00066602 Regina v Lisa Margaret Brennan
15 POL00047515 Memo from Steve Bradshaw to John Gibson re: Lisa
Margaret Brennan
16 POL00089065, Post office - A letter from S Bradshaw, re Gran Ian Allen
17 POL00047500 Continuation of Witness Statement of Kathryn
Elizabeth Rosenthal
18 POL00047501 Witness statement of Kathryn Elizabeth Rosenthal
dated 11/03/2003.
19 POL00047514 Lisa Brennan case study: Witness statement of Kathryn
Elizabeth Rosenthal dated the 2nd of June 2003.
20 POL00047506 Lisa Brennan case study - Unsigned Witness Statement
of Stephen Bradshaw Dated the 3rd of March 2003.
21 POL00047507 Lisa Brennan case study: Continuation of Witness
Statement of Stephen Bradshaw from URN
POL00047506
22 POL00066583 Alan Bates Others and Post Office Limited, Amended
schedule of Information.
23 POL00057751 Investigation Schedule non-sensitive - Lynette Jane
Hutchings
24 POL00047492 Schedule of sensitive material in relation to Lisa
Margaret Brennan's prosecution
25 POL00047491 Disclosure Officer's Report - Lisa Margaret Brennan
26 POL00066601 David Yates case study: Cartwright King case file
27 POL00066457 David Yates case study: Memo from Paul Bosson to
Dave Posnett re: Audit of Walton On Thames 090 023
28 POL00066598 Witness Statement of Paul Bosson re Walton on Thames
branch - David Yates
29 POL00066597 Witness Statement of Michael Raj Dadra
30 POL00047494 David Yates - Record of Tape Recorded Interview 7
March 2003
31 POL00066595 David Yates case study: Witness Statement of Dave
Posnett relating to Walton on Thames PO - RE Mr
David Yates
32 POL00061676 David Yates case study: Witness Statement of Robert
Oliver Fitzgerald re. Yates case
33 POL00066596 Witness Statement of Elaine Wright
34 POL00066600 Witness Statement of Rosemary Sporle in re to Mr
David Yates
35 POL00066497 Letter from Angela Van Den Bogerd (POL) to Second
Sight
36 POL00062362 Post Office Mediation Scheme Report - David Yates
37 POL00060942 Initial Case Overview Application of David Peter Yates
38 POL00066494 Letter from Robert Holland to Second Sight Support
Services Ltd enclosing Initial Complaint Review and
Mediation Scheme questionnaire of David Yates
A10
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39
POL00040313
Initial Complaint Review and Mediation Scheme - Post
Office Investigation Report
40
POL00044818
Offence sheet - Theft and false accounting - David
Charles Blakey
41
POL00044831
Record of tape - recorded interview - David Charles
Blakey (Part 2)
42
POL00044829
Interview with Gillian Blakey, Summary of points
43
POL00044826
Witness statement - Natasha Ann Beck
44
POL00044827
Witness statement - Patricia Brown
45
POL00044828
Witness statement - Samantha Alice Callaghan
46
POL00044820
David Blakey: Memo from Jarnail A Singh to S&A
Casework, cc'd Paul Whitaker re: POST OFFICE
LIMITED v DAVID CHARLES BLAKEY SUB POST
OFFICE ASSISTANT, RIBY SQUARE SPSO CASE NO:
0405/0172
47
POL00066256
David Blakey case study: The Post Office Group
Litigation between Alan Bates & Others and Post Office
Limited
48
POL00104812
"Royal Mail Group Ltd Criminal Investigation and
Prosecution Policy"
49
POL00044817
Schedule of non-sensitive unused material for the case
of R v David Charles Blakey
50
POL00041329
DRAFT Letter from Bond Dickinson LLP concerning
former SPMs (bankrupts), seeking detailed information
from trustees in bankruptcy regarding appointment
and assignment of claims against PO.
51
POL00052898
Tahir Mahmood case study: Record of Tape Recorded
Interview of Tahir Mahmood
52
POL00052899
Record of Tape Recorded Interview of Tahir Mahmood
part2
53
POL00052874
Casework management initial tick list of Tahir
Mahmoud
54
POL00052884
Memo from Mr J A McFarlane (Royal Mail) to S&A
Casework re: Royal Mail Group ple v Tahir Mahmood -
Prospect of conviction and documents required for
hearing and trial
55
POL00052888
Advice on Evidence in the case between R v Tahir
Mahmood (Birmingham Crown Court)
56
POL00052885
Tahir Mahmood case study: Memo from Rob Wilson to
Casework Management Team Security re: RMG v Tahir
MAHMOOD (12th October 2005 at the Birmingham
Magistrates Court)
57
POL00061506
Submissions on behalf of Mr. Carl Page Initial
Complaint Review and Mediation Scheme Reference
Number M118
58
POL00065034
Case Summary - R -v- Carl Adrian Page and John
Edward Whitehouse in the Crown Court at Stafford
59
POL00062370
Multiple witness statements - R v Page & Whitehouse
All
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60
POL00066551
Carl Page Case Study: Witness Statement of Sarah Jane
Boardman, Mrs Elaine Lievesley, Mark Irvin, Michael
Joseph Cooksey, Mr Steve Geraty, James Gerard Coney,
Mrs Shirely Brocklehurst, Mrs Mary Elizabeth Peet, Mr
Douglas Paul Brown, Mr Stephen Charles Cartwright,
Mrs Gwen Talbot, Pippa Barker, Andrew Wood, Barry
Jamieson, Colin Richard Price and Manish Patel.
61
POL00062371
Bundle of witness statements in relation to the
investigation at the Rugeley branch - Witness
statements of Kevin Orgill, Deborah Edwards, Glyn
Burrows, Margaret Pearce, and Shirley Batey (Carl Page
case study)
62
POL00067072
Letter from Debbie Helszajn to Messrs Frisby & Co
Solicitors for the attention of Andrew W Broome re:
Regina v Carl Adrian Page Stafford Crown Court - Trial
- 4 January 2005
63
POL00104752
Investigation Policy: Searching v3.0
64
POL00104760
Investigation Policy: Arrest procedures v2.0
65
POL00045921
Letter from DC Deans to Staffordshire police regarding,
John Whitehouse dated 7/5/2003.
66
POL00062573
Carl Page case study: List of Exhibit Interview bundles -
R v Page - Interviews taking place on 13/01/2003,
01/04/2003, 23/04/2003. Interviews with Carl Page
and Others.
67
POL00066537
Record of Tape - recorded interview for Carl Adrian
Page
68
POL00066734
Transcript of Carl Page Interview (tape 1 of 2)
69
POL00065032
Draft - Post Office Mediation Scheme - Second Sight -
Case Review Report Carl Page.
70
POL00046978
Post Office mediation scheme second sight case review
report - Carl Page
71
POL00062372
Carl Page case study: Bundle of witness statements
dated variously 2004 - Barbara Valerie Cary, Lynn
Patricia Graham, Helen Margaret Rogerson, Robert Neil
Davies, Nigel Roberts, Claire Michelle Parker, Manish
Patel, Raj Kalsi, Hugh Richard Stacey
72
POL00066545
Carl Page Study: Letter from Post Office to Messrs
Frisby & Co containing Mr Page Evidence transcript.
73
POL00062577
Schedule of Non- sensitive unused materials - Interview
with Brandon Douglas Horton Re R v Page
74
POL00067170
R v Page & Whitehouse - Police Schedule of Non -
Sensitive & Sensitive Unused Material, and Disclosure
Officer's report
75
POL00066717
Carl Page case study: Counsel for the Prosecution's
revised opening note to jury in the re-trial of Carl Page
76
POL00066729
Transcript of Carl Page Interview (tape 5 of 5)
77
POL00066730
Transcript of Carl Page Interview (tape 4 of 5)
78
POL00066731
Transcript of Recorded Interview Colin Price (tape 3 of
5) of Carl Page
Al2
EXPG000004R
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79 POL00066732 Carl Page Interview (tape 2 of 5) - Full transcription by
Take Note
80 POL00066733 Carl Page Interview (tape 1) - Full transcription by Take
Note
81 POL00045866 Witness statement of Carl Page for Second Sight Case
review team.
82 POL00062575 Evidence of Karl Adrien Page in the Crown Court at
Wolverhampton in R v Page
83 POL00045868 R v Carl Adrian Page, Expert Accountant's Report of
David Liddell
84 POL00045790 Report to the Court prepared by KPMG LLP between
Regina and Carl Adrian Page
85 POL00045996 Initial Complaint Review and Mediation Scheme Post
Office Preliminary Investigation Report: Mediation
Application for Carl Page from Rugeley Post Office
Branch.
86 POL00067081 Letter from Andrew Broome to Debbie Helszajn re: R v
Carl Page Stafford Crown Court
87 POL00067074 Letter from Debbie Helszajn to Messers JMW Solicitors.
Re: Regina v Carl Adrian Page Stafford Crown Court -
Trial - 4th Jan 2005
88 POL00067077 Carl Page Case Study: Letter from Debbie Helszajn to
Messrs JMW Solicitors re: Regina v & Another - Stafford
Crown Court - Trial - 4 January 2005
89 POL00067075 Letter from Debbie Helszajn (Royal Mail) to Messrs
Frisby & Co Solicitors for the attention of Andrew
Broome re: documents held by Customs and Excise in
relation to Mr Whitehouse (Carl Page case study)
90 POL00067084 Carl Page case study: Letter from Debbie Helszajn to
Messrs Frisby & Co for the attention of Andrew W
Broome re: Regina v Carl Page Dudley Crown Court
91 POL00067099 Letter from Debbie Helszajn to Andrew W Broome of
Frisby & Co Solicitors Re R v Carl Adrian Page
92 POL00066716 Defence Statement - Carl Page
93 POL00045780 Email from Judy Balderson to Martin Smith and Carole
Butler regarding Carl Page's (WITNO151) case.
94 POL00045781 Email from Chris Powell to Judy Balderson, Carole
Butler, Re: Rugeley 264242
95 POL00030561 Financial Investigation Policy Log dated 07/03/06,
Case No. 0506/0336
96 POL00044362 Oyeteju Adedayo case study - Memo from Phil Taylor
to the Post Office Investigation Team regarding Regina
v Oyeteju Adedayo
97 POL00044358 Memorandum for the information of the accused -
Oyeteju Adedayo
98 POL00044366 Report for theft/false accounting - Oyeteju Adedayo
99 POL00044360 Theft/False Accounting report - Oyeteju Adedayo
100 RLIT0000185 CCRC Statement of Reasons - Adedayo
A13
EXPG000004R
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101 POL00044368 Record of Tape recorded interview - Oyeteju Adedayo
102 POL00052920 Record of Tape- Recorded Interview of Oyeteju
Adedayo (Continuation)
103 POL00066742 Transcribed note on Oyeteju Adedayo Interview
104 POL00066745 Transcript of Oyeteju Adedayo Interview - Tape 2
105 POL00044361 Memo from Debbie Helszajn to Ms Natasha Bernard
regarding prospect of conviction in Post Office Ltd v
Oyeteju Adedayo case
106 POL00044367 Schedule of charges for Oyeteju Adedayo in Post Office
Ltd v Oyeteju Adedayo
107 POL00044370 Statement of information relevant in accordance with
section 16 (6) of the proceeds of Crime Act 2002 Regina
v Oyeteju Adedayo
108 POL00044862 Investigation Offender Report by Diane Matthews -
Hughie Thomas
109 POL00046218 Theft and false accounting offence record for Hughie
Noel Thomas
110 POL00044885 Summary of facts prepared in accordance with Rule
4(1)(b) of the magistrates courts (advanced information)
rules 1985 Royal Mail Group ple V Hughie Noel
Thomas - undated (date estimated)
111 POL00047942 Witness statement of Deborah Alison Edwards dated
2006 (RE: R v. Hughie Thomas)
112 POL00044864 Summary of tape- recorded interview of Hughie
Thomas - conducted by Diane Matthews and Stephen
Bradshaw.
113 UKGI00012481 I Noel Thomas Case Study: Witness Statement of Diane
Sarah Matthews
114 POL00047740 Audit Record Query for Gaerwen Post Office by
Graham Ward, Post Office Ltd Security Casework
Manager.
115 POL00047749 Audit Record Query for Gaerwen Post Office from
18/11/04 TO 24/11/04, and from 19/05/05 to
25/05/05.
116 POL00047895 Witness Statement of Gareth Jenkins
117 POL00068342 Electronic Memo from Sue Hodgins to Emlyn Hughes,
Area Intervention Office 10 and Alan Knowles re:
Gaerwen in confidence
118 POL00046219 Email from M Smith to A Parsons re: M029
119 POL00046194 Unsigned witness statement of Andy Dunks
120 POL00060995 Post Office Mediation Scheme Application For
Mediation Case Questionnaire Responses, Applicant:
Mr Thomas, M029, Advisor: Emma Porte, Aver
December 2013
121 POL00065188 Initial complaint review and mediation scheme - POL
investigation report. Applicant: Hughie Noel Thomas,
case no. M029, branch code: 160604, branch name:
Gaerwen.
Ald
EXPG000004R
EXPG000004R
122
POL00044867
Post Office Legal investigation report for Hughie Noel
Thomas (Gaerwen Post Office)
123
POL00047780
Memo from J A McFarlane to Investigation Team Post
Office Limited re: Royal Mail Group ple v Hughie Noel
Thomas Bailed to Holyhead Police Station - 10th
January 2006 Case No: POLTD/0405/0401
124
POL00061771
Letter from Angela Van Den Bogerd to Second Sight re:
Post Office's Response to Second Sight's Case Review
Report on case M029
125
POL00044888
Letter from J A McFarlane to Mr E Williams regarding
Regina v Hughie Noel Thomas - Llangseni Crown
Court - 2nd March 2006
126
POL00048011
Memo from Investigation Team Post Office Limited re
Regina v Hughie Noel Thomas (Case no:
POLTD/0506/0401).
127
POL00044886
Letter from J A McFarlane to Mr E Williams re Regina v
Hughie Noel Thomas - Caernarfon Crown Court - 25th
September 2006
128
POLO00048156
Memo from Phil Taylor to the Investigation Team Post
Office Limited re: Regina v Hughie Noel Thomas
Caernarfon Crown Court Trial - 25th September 2006
Case No: POLTD/0506/0401
129
POL00046193
POL mediation scheme - Hughie Noel Thomas
(Gaerwen Ynys Mon Post Office)
130
POL00046215
Briefing note by Cartwright King re Prosecution against
Hughie Noel Thomas
131
POL00046213
Email from Andrew Parsons to Martin Smith regarding
Thomas - M029 [BD-4A.FID25887033]
132
POL00046214
Email from Martin Smith to Simon Clarke and Harry
Bowyer regarding Thomas - M029 [BD-
4A.FID25887033]
133
POL00061681
Post Office mediation scheme, draft of the second sight
- case review report. Case ref. M029, applicant: Hughie
Thomas, advisor: Emma Porter
134
POL00046997
Post Office mediation scheme second sight case review
report - Hughie Thomas M029
135
POL00048201
Memo from Phil Taylor to Investigation Team Post
Office Limited cc Diane Matthews re: Regina v Hughie
Noel Thomas Adjourned Sentence
136
POL00066822
Email chain from Martin Smith to Ruth Barker and
Rodric Williams Re BC Wales - Horizon Documentary
137
POL00052982
Memo from Miss J Andrews to Investigation Team Post
Office Ltd, RE, PO v Suzanne Lesley Palmer, Southend
Crown Court, Trial 24th-26th Jan 2007
138
POL00054007
Royal Mail Group PNC Individual Check Report - Jason
Yousef Arnold (Seema Misra Case)
139
POLO00053009
Record of Tape/ Recorded Interview with Suzanne
Palmer
A15
EXPG000004R
EXPG000004R
140 POL00053007 Suzanne Palmer cases study: PO Investigation report
into Suzanne Palmer re: offence of false accounting
141 POL00052990 Memo from Mr Jarnail A Singh to the Post Office
Limited (Investigation Team) re: Post Office Limited v
Suzanne Lesley Palmer.
142 POL00053008 Counsel Advice on Evidence - R v. Suzanne Palmer
143 POL00053003 Memo from Miss J S Andrews to Post Office Limited
(Investigation Team) re: R v Suzanne Lesley Palmer
(Basildon Crown Court - Plea & Case Management
Hearing)
144 POL00052989 Letter from Miss J S Andrews to Investigation Team
Post Office Limited c.c. Lisa Allen, POST OFFICE
LIMITED v SUZANNE LESLEY PALMER
145 POL00052997 Memo from Mr Jarnail Singh to the Post Office Limited
(Investigation Team) re: Post Office Limited v Suzanne
Lesley Palmer (Trial on w/c 22nd January 2007)
146 POL00053000 Letter from Mr Jarnail A Singh to Lisa Allen re: Post
Office Limited v Suzanne Lesley Palmer (Basildon
Crown Court w/c 22nd January 2007)
147 POL00044389 Post Office Ltd Investigation report for Josephine
Hamilton - POLTD/0506/0685 (Prepared by Graham
Brander, Investigation Manager)
148 POL00044485 Summary of facts - Royal Mail Group ple v Josephine
Hamilton
149 POL00044483 Post Office Witness Statement - Rebecca Portch, South
Warnborough PO, Jo Hamilton case study
150 POL00048507 Witness statement of Rebecca Louise Portch. Post Office
151 POL00048845 Witness statement of Rebecca Louise Portch. Post
Office.
152 UKGI00014787 I Josephine Hamilton case study: Post Office, witness
statement for Colin Woodbridge
153 POL00045426 Jo Hamilton case study: Post Office Witness Statement -
Alan Stuart
154 POL00047874 Audit of Post Office - South Warnborough branch, FAD
Code 092904 Sent to Nigel Allen C&SM from Alan
Stuart CM Branch Auditor.
155 POL00044484 Post Office Witness Statement - Graham Brander
156 POL00044390 Josephine Hamilton - Record of Tape Recorded
Interview - Josephine Hamilton
157 POL00045409 Record of Tape Recorded Interview: Part 2 - Josephine
Hamilton interviewed by Graham Brander
158 POL00044495 Copy report of investigation officer -11/08/2006 and
17/05/2006 (R v Josephine Hamilton/ Winchester
Crown Court)
159 POL00045406 Prepared Statement of Josephine Hamilton
160 POL00048049 Witness Statement of June Partridge (electronically
signed) in relation to the Jo Hamilton case study
Al6
EXPG000004R
EXPG000004R
161
POL00048827
Email from Richard Jory to Juliet McFarlane re
Josephine Hamilton.
162
POL00048846
Witness statement of Graham Brander
163
POL00048665
Letter from Tanner & Taylor to Miss J S Andrews re R v
Josephine Hamilton. CRM/253367/JMcF.
164
POL00048710
Email from Graham Brander (Post Office) to Juliet
McFarlane (Post Office) cc Investigation Team Post
Office re Regina v Josephine Hamilton - Documentation
query
165
POL00048913
Email from Graham Brander to Juliet McFarlane, Dave
Posnett and Investigation Team Post Office re Josephine
Hamilton. POLTD/ 0506/0685.
166
POL00044479
Witness Statement - Nigel Allen in the case of Josephine
Hamilton.
167
POL00048844
Witness Statement of Nigel Allen (unsigned) - Jo
Hamilton case study
168
POL00046833
Training requirements for incoming sub postmasters -
South Warnborough branch (Josephine Hamilton)
dated 18/09/2003.
169
POL00045450
Summary and report on SPSO Contract with
handwritten note by Sue Crichton to Alwen Lyons
170
POL00044480
Witness statement of Martin Drake (electronically
signed) in the Post Office v Hamilton matter
171
UKGI100014728
Jo Hamilton Case Study: Post Office, Draft witness
statement for Martin Drake
172
POL00044482
Witness Statement of Andrew Paul Dunks
173
POL00044481
Post Office Witness Statement of Penelope Anne
Thomas
174
POL00048154
Memo from Graham Brander to Juliet McFarlane - Jo
Hamilton investigation
175
POL00053084
Jo Hamilton case study - Response Letter From Graham
Brander to Juliet McFarlane re: Jo Hamilton's case -
Response to Enquiries
176
POL00048750
Email from Richard Jory to Juliet McFarlane, RE:
Disclosure and witness orders (R v. Hamilton)
177
POL00048761
Memo from Ms Juliet McFarlane to POL Investigation
Team and Graham Brander re: Regina v Josephine
Hamilton Winchester Crown Court Trial - 10th
September (POLTD/0506/0685)
178
POL00059367
Memo from Mr J A McFarlane to Post Office Ltd
(investigation Team) re: R v Josephine Hamilton
(Winchester Crown Court on 10th September 2007)
179
POL00048488
Instructions to Counsel to Settle Indictment - Josephine
Hamilton
180
POL00048841
CASE OPENING - R v Josephine Hamilton - by Richard
Jor, Bell Yard Chambers.
181
POL00034551
Initial Complaint Review and Mediation Scheme Post
Office Investigation Report M035 - Jo Hamilton
AI7
EXPG000004R
EXPG000004R
182
POL00048517
Schedule of non-sensitive unused material. R v
Josephine Hamilton.
183
UKGI00014724
Josephine Hamilton case study: Letter from J A
McFarlane to Messrs Tanner & Taylor Solicitors re:
Regina v Josephine Hamilton plea and management
hearing
184
POL00048736
Josephine Hamilton Case Study: Fax from Tom
Bradford to Juliet McFarlane re: Update of R v
Josephine Hamilton hearing before HHJ Brodrick at
Chelmsford Crown Court
POL00055212
Memo from Jarnail Singh (Royal Mail) to Mandy Talbot
(Royal Mail) Re Regina v Gurdeep Singh Dhale and
enquiring as to other cases in which there have been
questions or criticisms of the Horizon System
186
POLO00055894
Seema Misra case study: Email from Mandy Talbot to
Jarnail A Singh, Re: Regina v Gurdeep Singh Dhale-
Bradford Crown Court-Trial 7th February 2011
187
POL00049069
Email from Richard Jory to Juliet McFarlane and Jenee
Andrews re Josephine Hamilton.
188
POL00057661
Jo Hamilton Case Study: Fact summary J Hamilton
189
POL00101750
Transcript of BBC Radio 4 - Interviewer/ee details:
Presenter, Jo Hamilton, James Arbuthnot, Mark Davies
dated 12/09/2014.
190
POL00034836
Post Office Mediation Scheme- Second Sight Case
Review Report re Josephine Hamilton
191
POL00046851
Email from A Cann to R Warmington re: Case
Questionnaire - M035 Josephine Hamilton - attached
with case questionnaire
192
POL00002263
Horizon - Spot Review SROI2 re ; Missing Cheques
193
POL00029604
Second Sight - Spot Review Summary
194
POL00040882
Horizon Spot Review - Response SRO13: Mi
Cheques
ssing,
POL00059472
Email from Simon Baker to Rod Ismay, Susan Ismay
and Alwen Lyons re Technical/Process Issues where
we need input from dated 14/01/2013.
196
POL00059567
Email chain from Alwen Lyons to Susan Crichton Re
Issuance of TC
197
POL00060363
Draft Horizon Spot Review 12 Response - Missing
Cheques - author Andrew Winn, edited by Bond
Dickinson - Jo Hamilton's case
198
POL00060608
Horizon Spot Review - Response - Missing Cheques - re
Jo Hamilton
199
POL00057503
Briefing Note on the Current Status of Claims involving
Horizon
200
POL00057656
James Arbuthnot MP and Oliver Letwin MP Meeting
Action Points of 03/05/2012 for meeting on 17/05/2021
201
POLO00060219
Statement about glitches in Horizon - Second Sight
Als
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202 POL00044623 Summary of facts prepared in accordance with Rule
21.3(1)(b) of the Criminal Procedure Rules 2005 - Post
Office Limited v Susan Jane Rudkin
203 POL00046485 Investigation report in re to theft/money laundering in
re to Susan Jane Rudkin
204 POL00067404 Post Office Ltd Offender Report re Tahir Mahmood
(Ten Acre Street)
205 POL00065295 Royal mail interview- record of tape recorded interview
with Susan Jane Rudkin
206 POL00049974 Royal Mail "Record of Search" document, for Ibstock
Post Office on 20/08/2008.
207 POL00104828 Royal Mail Group Security Procedures & Standards:
Searching No. 7-X v5
208 POL00104849 Royal Mail Group Security Procedures & Standards:
Searching doc 7.5 v6
209 POL00045266 Account statement from Lloyds TSB for Mr and Mrs E
M Rudkin (between the period 10 June 2008 and 09 July
2008)
210 POL00056762 Financial Investigation Events Log, Susan Rudkin case
no: POLTD/0809/0101
211 POL00046502 Letter from M J Wilcox to S J Rudkin in re to audit
shortage at Ibstock PO on 20/8/08.
212 POL00051409 Casework Management Initial Tick List (ENGLAND
AND WALES), INV REF NO: POLTD/0809/0101 -
Susan Jane RUDKIN - Ibstock
213 POL00046522 Susan Rudkin case study: Email from David Bacon to
Mike Wilcox and David Bacon in re to Ibstock post
office
214 POL00093806 Incident Report, cash account week 10. NBSC REF;
H13312265.
215 POL00046470 Letter from Paul Hemley to Mr E M Rudkin regarding
suspense account query.
216 POL00060416 Susan Rudkin case study: Letter from Mr EM Rudkin to
Paul Hemley Re: Suspense account
217 POL00060449 Audit from Paul Field to Mr Michael Rudkin, re PO
Tbstock Branch
218 POL00031333 Second Sight Report: Michael RUDKIN
219 POL00046488 Susan Rudkin case study: Memo in re to Jarnail Singh to
Fraud team post office limited and Mole Willcox in re to
' Post office limited v Susan Jane Rudkin dated
3/10/2008.
220 POL00060421 Letter from E M Rudkin to Mr Goerge Thomson re:
Private, In the Strictest Confidence and without
Prejudice.
221 POL00052094 STAFFORD CROWN COURT - CONFISCATION
HEARING - 21st AUGUST 2009, THE QUEEN v
SUSAN JANE RUDKIN, BRIEF TO COUNSEL FOR
THE PROSECUTION
A19
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222 POL00052077 Susan Rudkin case study: Letter from Jarnail Singh to
The Clerk to Ms Henrietta Paget re: REGINA v SUSAN
JANE RUDKIN,
223 POL00052095 Letter from Amy Cheunviratsakul to Royal Mail Legal
Services RE: Susan Rudkin - Confiscation Proceedings
224 POL00052228 Email from Graham C Ward to Jarnail A Singh re:
Rudkin - Confiscation hearing 21st August -
(CRM260283)
225 POL00052226 Letter from John H Dove to Mr J Singh Re: Regina v
Susan Jane Rudkin - Confiscation Proceedings.
226 POL00052292 Susan Rudkin case study: Email from Henrietta Paget
to Jarnail A Singh, Marilyn Benjamin re: Rudkin
227 POL00052343 Susan Rudkin case study: note of hearing - confiscation
order and compensation order
228 POL00055844 Email chain between Jarnail Singh and Charlotte Knight
re Susan Rudkin (original redacted)
229 POL00046579 Briefing note by Cartwright King re Prosecution against
Michael Rudkin (Ibstock SPO)
230 POL00061839 Initial Complaint Review and Mediation Scheme, Post
Office Investigation Report - Applicant: Sunil Paul
Khana (Peter Holmes case study)
231 POL00050832 Peter Holmes Case Study: POST OFFICE LTD
CONFIDENTIAL: INVESTIGATION LEGAL
POLTD/ 0809/0128, OFFENCE, Theft/False
Accounting re: Peter Anthony HOLMES
232 POL00050334 Report: Theft/ false accounting in re to Peter Anthony
Holmes dated 6/10/08.
233 POL00051527 Schedule of Non- Sensitive Unused Material (R v
Anthony Holmes)
234 POL00066738 Peter Holmes Interview transcript
235 POL00066743 Note on Peter Holmes Interview
236 POLO00051952 Marion Holmes case study: Advocates Questionnaire -
T20090890
237 POL00066624 Application Form of Sunil Paul Khanna
238 POL00050356 Interview Notes, Sunil Khanna
239 POL00066637 Initial Complain and Mediation scheme - Post Office
investigation report - Sunil Paul Khanna - relating to
Peter Holmes
240 POL00050912 Memo from J A McFarlane to Robert Daily in re to Peter
Anthony Holmes
241 POL00052103 Regina v Peter Holmes Expert Accountant's Report of
Peter M Smith BSc (Hons) FCA MEWI
242 POL00052389 Letter from Denise Jackman to Royal Mail Legal
Services. Re: Post Office Limited v Peter Anthony
Holmes - Newcastle Crown Court
243 POL00052105 INDICTMENT, THE CROWN COURT AT
NEWCASTLE UPON TYNE, THE QUEEN V PETER
ANTHONY HOLMES
A20
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244
UKGI00014638
Juliet McFarlane case study: Letter from Robert Daily to
Juliet McFarlane in regard to the Expert Accountants
Report dated 28 July 2009 relating to the criminal
matter of Regina v Peter Anthony Homes
(CRM/261295/JMcF) Newcastle-Upon-Tyne Crown
Court
POL00066162
Peter Holmes Case Study: Letter from J A McFarlane to
the Clerk to Paul Caufield, Regina v Peter Anthony
Holmes
246
POL00053679
Letter from J S Andrews (Royal Mail) to Paul Caulfield
(Trinity Chambers) re: financial evidence in Regina v
Peter Anthony Holmes
247
POL00054149
Memo from Jennifer Andrews (Royal Mail) to Post
Office Security, RE: R v Peter Anthony Holmes setting
out the charges and corresponding sentence having
pleaded guilty
248
POL00066232
Peter Holmes Case Study: Letter from J A McFarlane to
McKeag&Co, R v Peter Anthony Holmes
249
POL00052178
Peter Holmes Case Study: Defence Statement for Peter
Holmes responding to charge of "theft from employer"
250
POL00066586
Post Office Ltd - Case Review R v Peter Anthony
Holmes Newcastle-upon-Tyne Crown Court Pre-
Horizon On-Line Case
251
POL00044537
Post Office Ltd Investigation Report for Seema Misra
(West Byfleet branch)
252
POL00044589
Seema Misra Case Study: POL internal investigation
report on Seema Misra
253
POL00045005
Draft memo from Keith Noverre to Elaine Ridge
regarding audit of post office west Byfleet, branch code
126023
254
POL00058550
Seema Misra Case Study: Email from Mr Keith Noverre
to Mrs S Misra re: Audit of West Byfleet Post Office
Branch
255
POL00104867
Royal Mail Internal Information Criminal Investigation
Team - Interviewing Suspects - 7.4 v1 policy
256
POL00044543
Seema Misra Case Study: Record of Tape Recorded
interview with Seema Misra interview (Tape ref no.
060341)
257
POL00044544
Seema Misra case study - Record of Tape Recorded
interview with Seema Misra (Tape ref no. 060342)
258
POL00050750
Schedule of Non-sensitive unused material, R v Seema
Misra
259
POL00044609
Seema Misra Case Study: Witness statement of Keith
Noverre
260
POL00044611
Witness statement of Lisa Jane Allen - R v Seema Misra
261
POL00044612
Witness statement of Adrian Morris
262
POL00045495
Seema Misra case study: Witness statement of Jon
Longman
263
POLO00050566
Witness statement in re to Lisa Allen dated 06/01/09
A21
EXPG000004R
EXPG000004R
264
POL00044613
Summary of facts (POL v Seema Misra)
265
POL00050646
Witness statement of Elaine Ridge (signed) re West
Byfleet Post Office - Seema Misra case study
266
UKGI00014857
Seema Misra case study: Letter from Castle Partnership
Solicitors to Royal Mail RE: POL v Seema Misra -
update in lieu of defence case statement
267
POLO00051342
ATTENDANCE NOTE from Jarnail Singh - SEEMA
MISRA dated 21/04/09
268
POL00051508
Letter from Jon Longman to Information Access Team
at Surrey Police
269
POL00054237
Further Amended Defence Case Statement Pursuant to
Section 5 of the Criminal Procedure and Investigations
Act 1996 - The Queen v Seema Misra in the Guildford
Crown Court ( Indictment No. T2009/0070)
270
POL00051773
Seema Misra Case Study: Attendance Note by Jarnail
Singh re: Seema Misra at Guildford Crown
Court(CRM/258932/JSX)
271
FUJ00122713
Email from David Jones to Jarnail Singh re: West Byfleet
Issues - Seema Misra.
272
POL00054252
Seema Misra case study: Email from Gareth Jenkins to
Jarnail A Singh re. Regina v Seema Misra Guildford
Crown Court Trial - 15th March 2010
273
POL00043034
Email chain from Andrew Parsons to Catherine
Emanuel, Sherrill Taggart, Rodric Williams and others
re GLO - Confidential
274
POL00049658
Memo from Jarnail Singh to Investigation Team Post
Office Limited and Adrian Morris re Post Office
Limited v Seema Misra. POLTD/0708/0249. Opinion
that there is sufficient evidence to prosecute, and in the
Crown Court.
275
POL00045010
POL v Seema Misra - Schedule of Charges
276
POL00053364
Seema Misra case study: Internal memo from Jason
Collins to Adrian Morris re: Investigation Ref: -
POLTD/0708/0249 Seems Misra
277
POL00044585
Seema Misra case study - Instructions to counsel to
settle indictment and advise on evidence and brief for
the prosecution in The Queen v Seema Misra
278
POL00044538
Indictment sheet (R v Seema Misra)
279
POL00055217
Seema Misra case study: Schedule of Non-Sensitive
Unused Material - R v Seema MISRA
280
POL00066893
Typed copy of notes of meeting at 148 Old Street on 28
Jan 2014 re Horizon Issues / handling of criminal cases
281
POL00050752
Disclosure Officer's Report, R v Seema Misra
282
POL00050751
Schedule of sensitive material, R v Seema Misra
283
POL00050942
Letter from Jarnail Singh to Castle partnership Solicitors
in re to Regina v Seema Mirsa dated 17/02/09.
284
POL00051331
In the Crown Court at Guildford, REGINA -V- SEEMA
MISRA - DEFENCE STATEMENT
A22
EXPG000004R
EXPG000004R
POL00062550
Seema Misra Case Study - Witness statement of Jon
Longman dated 29/05/09.
286
POL00051960
Witness statement of Andrew Paul Dunks dated
24/06/09
287
POLO00054518
Witness Statement of Andrew Paul Dunks relating to
Seema Misra.
288
POL00054680
Email from Issy Hogg to Jarnail A Singh re. Fw: Regina
v Seema Misra Guildford Crown Court - Trial
289
POL00052462
Seema Misra Case Study - Regina v Seema Misra -
Application by the defence pursuant to s80f the
criminal procedure and investigations act for disclosure
of relevant material
290
POL00045518
Technical Expert report of Charles McLachlan
291
POL00055315
Seema Misra case study: Technical expert's report to the
Court prepared by Charles Alastair McLachlan, a
Director of Amsphere Consulting Ltd
292
FUJ00080526
Fujitsu Report: Horizon Data Integrity v1.0
293
POL00001643
Witness statement of Gareth Jenkins
294
POL00054345
Emails on Callender Square Falkirk Problem between
Gareth Jenkins
295
POL00053942
Signed and annotated Witness statement of Gareth Idris
Jenkins commenting on 2nd Interim Technical Expert
Report of Charles McLaughlin in Seema Misra trial
296
POL00053951
Draft witness statements from David king and another
297
POL00001576
Witness statement of Andrew Bayfield
298
POL00053992
Third Interim Technical Expert's Report to the Court
prepared by Charles McLachlan regarding Seema Misra
299
POL00054126
4th Interim Technical expert's report to the Court re
Seema Misra prepared by Charles Alastair McLachlan,
a Director of Amsphere Consulting Ltd.
300
POL00055196
5th Interim Technical expert's report to the Court
prepared by Charles Alastair McLachlan, a Director of
Amsphere Consulting Ltd.
301
POL00053426
Memo from Phil Taylor to Post Office Security, RE: R v
Seema Misra, Guildford Crown Court, Trial 30th Nov
2009
302
POL00053454
Memo from Phil Taylor to Post Office Security, RE: R v
Seema Misra, Guildford Crown Court, Trial 30th Nov
2009 re Warwick Tatford no longer wishing to view the
West Byfleet office also WT requesting a statement on
other cases.
303
POL00054418
Letter from Jarnail Singh to Warwick and John; Re:
Seema Misra Guildford Crown Court Trial - 15th March
2010 Replies to the Defence Third Disclosure Request
304
POL00054528
Witness Statement of Ian Venables Ver 5.0
A23
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305
POL00053481
Memo from Phil Taylor to Mandy Talbot ce Jarnail
Singh, Rob Wilson and Warwick Tatford re: R v Seema
MIRSA re Defence Counsel rested for certain files
relation to prosecution of SPM including Lee Castleton
and Alan Bates
306
POL00053520
Memo from Phil Taylor to PO Security, RE: R v Seema
Misra, Guildford Crown Court, Trial 30 Nov 2009
307
POL00044557
Advice on requests for disclosure in Seema Misra case
308
POL00053746
Seema Misra case study - Letter from Jarnail Singh to
Coomber Rich Solicitors, RE: R v Seema Misra,
Guildford Crown Court, Trial 15 March 2010
309
POL00054017
Email from Jarnail Singh to David Jones and Penny
Thomas, RE: West Byfleet Issues- Seema Misra- Legally
Privileged
310
POL00044603
Further request for disclosure (R v Seema Misra) in the
Guildford Crown Court
311
POL00053849
Attendance note from Jarnail Singh for Seema Misra
dated 27/01/10.
312
POL00044553
Letter Jarnail to Singh to Seema Misra's lawyers
regarding Regina v Seema Misra Guilford crown court
313
POL00053643
Witness Statement of Eleanor Grace Muriel Nixon
314
POL00054175
Witness statement of Andrew Winn
315
UKGI00014903
Seema Misra case study: Court Attendance Note from
Jarnail Singh re Seema Misra for Mention dated
01/02/10, updated 03/02/2010
316
POLO00001598
Witness Statement of Penelope Anne Thomas
(V7.0/9.0)
317
POL00053979
Email from Jarnail Singh to Warwick Tatford, RE: R v
Seema Misra, Guildford Crown Court, Trial 15th March
2010
318
UKGI00014895
Seema Misra case study: Email from Issy Hogg Coombe
Rich Solicitors to Jarnail Singh re: Seema Misra
Guildford Crown Court mention 1st February 2010
319
POL00054008
R v Seema Misra, Third Request for Disclosure, In the
Guildford Crown Court
320
POL00054019
Email from Jarnail Singh to David Jones, RE: FW: West
Byfleet Issues
321
POL00001569
Witness statement of Gareth Idris Jenkins
322
POL00054062
Email from Jarnail Singh to David M Jones, RE: R v
Seema Misra, Guildford Crown Court Trial 15th March
2010
POL00054198
Memo from Marilyn Benjamin to John Longman and
Warwick Tatford re. Fw: Regina v Seems Misra
Guildford Crown Court Trial - 15th March 2010.
324
POL00054162
Email from Jarnail Singh to Warwick Tatford re Seema
Misra Guildford Crown Court - response to Defence's
third disclosure request dated 22/02/10.
A24
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325 POL00054185 Memorandum from Jarnail Singh to Issy Hogg, re:
Regina v Seema Misra, Guildford Crown Court, Trial -
15th March 2010.
326 POL00053954 Letter from J McFarlane to the Clerk of Warwick
Tatford Re Regina v Seema Misra
327 POL00054100 Witness statement of Michael Opebiyi dated 09/02/10
328 POL00054041 Witness statement of Jon Longman
329 POL00054174 Witness statement of Carole Cross.
330 UKGI00015007 I Seema Misra Case Study: Skeleton Argument to Stay
for Abuse of Process in Regina v Seema Misra in the
Guildford Crown Court
331 POL00054299 Email from Gareth Jenkins to Charles McLachlan,
CCing in Thomas Penny, re R v Seema Misra's Crown
Court Trial
332 POL00054346 Seema Misra Case Study: Response to Defence Abuse
Skeleton by Warwick Tatford - (R v Seema Misra)
333 POL00054282 Memorandum from Jarnail Singh to Thomas Penny re
Seema Misra Guildford Crown Court trial 15th March
2010 - West Byfleet.
334 POL00054310 Letter from Rob Wilson to Issy Hogg Re: Regina V
Seema Misra, Guildford Crown Court
335 POL00054253 Email from Penny Thomas to Jon Longman and Mark
Dinsdsale, RE: transaction log data (R v. Misra)
336 POL00054557 Seema Misra Case Study: Memo from Jon Longman to
Jarnail Singh re. Mrs Seema Misra - POLtd 0708/0249
(CRM258932JSX)
337 POL00054566 Letter to Issy Hogg of Messrs Coomber Rich Solicitors
from Jarnail Singh re. Regina v Seema Misra Guildford
Crown Court - Trial
338 UKGI00014858 I Seema Misra Case Study: Attendance note from Jarnail
Singh re: Seema Misra, CRM/258932/JSX
339 POL00054712 Letter to Mrs Issy Hogg from Professor Charles
McLachlan re. Seema Misra
340 FUJ00125442 Email from Gareth Jenkins to Charles McLachlan and
Thomas Penny RE: Info re Seema Misra Case
341 POL00001759 Witness Statement of Gareth Idris Jenkins, produced
further to his witness statement dated 9 March 2010. He
explains some of the Horizon process in relation to
transaction data.
342 POL00054667 Comments on Rinkfield Report by Gareth Jenkins -
Notes that the Rinkfield report is near identical to the
report produced for the Seema Misra case
343 POL00054999 Attendance Note by Jarnail Singh re: Seema Misra.
CRM/258932/JSX.
344 POL00055074 Email from Issy Hogg to Jarnail Singh re: Misra
345 POL00055077 Seema Misra case study: Email from Marilyn Benjamin
on behalf of Jarnail Singh to John Longman and
A25
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Warwick Tatford re Regina v Seema Misra, Guildford
Crown Court, trial.
346 POL00055073 Email thread between Jarnail Singh and John Longman
about West Byfleet
347 POL00055113 Email chain from Marilyn Benjamin (on behalf of Jarnail
A Singh) to Post Office Security - re Regina v Seema
Misra - Guildford Crown Court - Trial.
348 POL00055132 Email from John Longman to Jarnail A Singh, Re: West
Byfleet
349 POL00055155 Memo from Jarnail Singh (Royal Mail) to Post Office
Security cc Jon Longman re: R v Seema Misra - Access
to the system
350 POL00055199 Attendance note of Seema Misra dated 27/08/10
351 POL00055530 Seema Misra Case study - Unsigned Witness statement
of Jon Longman dated 12th October 2010.
352 POLO00055225 Email from Zoe Topham to John Longman regarding
access to operations by defence solicitors.
353 POL00093841 Email from John Longman to Zoe Topham re West
Byfleet - 126 023 - Seema Mirsa
354 POL00055367 Witness Statement by Gareth Idris Jenkins v3
355 POL00117662 Note for Fujitsu/ POL meeting RE: Receipts/ Payments
Mismatch issue notes - Discrepancies showing on
Horizon
356 POL00055410 Email from Rob G Wilson to Juliet McFarlane and
Jarnail A Singh Re FW: Branch discrepancy issues
357 POL00001733 Correcting Accounts for "lost" Discrepancies
358 POL00055413 Email from John Longman (Post Office) to Gareth
Jenkins (Fujitsu) cc Jarnail Singh (Royal Mail) re draft
witness statement - use of documents in witness
statement (Seema Misra case study)
359 POL00066933 Seema Misra Case Study. CCRC Case Briefing Note -
case 59780.
360 POL00055421 Email from Warwick Tatford to Jarnail A Singh re:
Seema Misra - Disclosure
361 POL00031352 Email from Jarnail A Singh to Hugh Flemington, Alwen
Lyons, Simon Baker, Re: Discuss of defect in horizon in
court Seema Misra and Lee Castleton
362 POL00044356 Email from Jarnail Singh to Martin Smith, RE:
bulletpoints on the evidence in R v. Misra
363 POL00108223 R v Seema Misra Post Office Case Review Report by
Simon Clarke of Cartwright King Solicitors
364 POL00044994 Email from John Longman to Thomas Penny, Gareth
Jenkins, Andy Bayfield and others regarding sentencing
of Seema Misra - West Byfleet post office
365 POL00055759 Memo from Jamail Singh to John Longman Paul
Southin, Graham Ward, Re: Regina v Seema Misra Case
No: POLTD/0708/0249
A26
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366 POL00044989 Memo from Paul Southin to the Post Office security
regarding investigation ref: POLTD/0708/0708/0249 -
West Byfleet/ Seema Misra
367 POL00056687 memo from Jarnail Singh to Jon Longman and Paul
Southin re: Regina v Seema Misra, Confiscation
Hearing
368 POL00058530 Confiscation Order for Misra Seema dated 08/07/11
369 POL00057442 Letter from Seema Misra to Collections, Guildford
Crown Court re: confiscation order for £40,000
370 POL00057625 Attendance Note re: Royal Mail Group Ltd v Seema
Misra (Application to vary confiscation order)
371 POL00055590 Email from Marilyn Benjamin on behalf of Jarnail A
Singh to Mandy Talbot, Hugh Flemington, Jacqueline
Whitham, Re: Regina v Seema Misra-Guildford Crown
Court-Trial-A ttack on Horizon
372 POL00055721 Letter from Mandy Talbot to Crown Court, Re: R v
Seema Misra Guildford Crown Court reference number
720090070
373 POL00066859 Seema Misra Case Study. Email chain from Jarnail
Singh to Martin Smith and Simon Clarke, RE: Second
Sight and appointment of a QC
374 POL00066872 Seema Misra Case Study Note Entry for Case 4118 -
POL Mediation File RE: TC Andy Parsons; MJS
explaining position. Issues re disclosure.
375 POL00066959 Post Office Ltd - R v Seema Misra - Disclosure. Legal
advice from Simon Clarke relating to POL disclosure
obligations and CCRC.
376 POL00066869 Email from Melanie Corfield to Martin Smith Re
Horizon - Panorama
377 POL00046095 Handwritten note on Regina v Lynette Jane Hutchings
378 POL00061244 Investigation report by Graham Brander -
Subpostmaster Lynette Jane Hutchings.
379 POL00046055 Log entry detail (cc4pro2)
380 POL00056532 Lynette Hutchings Case Study : Record of Taped
Interview of Lynette Hutchings dated 20/04/2011
381 POL00044505 Record of Taped Interview with Lynette Hutchings
382 POL00046625 Transcript: Record of taped interview re Lynette
Hutchings dated 20/04/2011.
383 UKGI00014775 I Lynette Hutchings case study: Royal Mail Group, draft
witness statement for Graham Brander
384 POL00044512 Suspect Offender Reporting re Lynette Hutchings
385 POL00046626 Memo from Jarnail Singh to Maureen Moors and
Graham Brander in re to Post office LTD v Lynette Jane
Hutchings
386 POL00046706 Investigation report by Graham Brander -
Subpostmaster Lynette Jane Hutchings.
387 POL00057362 Lynette Hutchings Case Study: POL v Lynette Jane
Hutchings - Advice
A27
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388 POL00057546 Email from Robert Booker to Martin Smith, RE: PO Ltd
v Lynette Jane Hutchings- Portsmouth Mags
10/04/2012 at 2.30pm
389 POL00058132 Lynette Hutchings case study: Court attendance note of
William Martin Counsel for Claimant
390 POL00046096 Handwritten notes on Regina v Lynette Jane Hutchings:
basis of plea
391 POL00044531 Initial sift result sheet - Lynette Hutchins
392 POL00060715 Post Office Ltd - Case Review R v Lynette Hutchings
Portsmouth Crown Court
393 POL00057727 Schedule of Sensitive Material, R v Lynette Jane
Hutchings, Investigation Schedule
394 POL00057753 Disclosure Officer's report - Lynette Jane Hutchings
case study
395 POL00104848 Royal Mail Group Security Procedures & Standards:
Appendix 1 to P&S 9.5 Disclosure of Unused Material &
The Criminal Procedure & Investigations Act 1996.
Version 1.
396 POL00060945 Lynette Hutchings case study: Letter from Simon
Clarke to Messrs. Coomber Rich re: Lynette Hutchings
397 POL00058136 Email from Rachael Panter to Martin Smith re: POL v
Lynette Hutchings Case No. 22796
398 POL00058016, Email from Andy Cash to All Prosecution; Rachael
Panter; Andrew Bolc; Martin Smith, re: Horizon
Integrity Report.
399 POL00060373 Email from Rodric Williams to Andrew Pheasant re.
Rowlands Castle PO 107937 Mrs Lynette J Hutchings
400 POL00066835 Email from Martin Smith (Cartwright King) to Simon
Clarke (Cartwright King), Re: BAQC conference - Post
conviction disclosure letters re Hutchings and Robinson
401 POL00057198 Post Office Ltd investigation report for Joan Bailey,
POLTD/ 1011/0164 - Offence(s)
402 POL00055918 Audit of Howey PO from Judy Balderson to Mr C
Burston
403, POL00056387 Joan Bailey - Record of Taped Interview, Date of
Interview: 9.3.11, Time commenced: 12.32, Time
concluded: 13.12
404 POL00056388 Joan Bailey - Record of Taped Interview, Time
commenced: 13.14, Time concluded: 13.57
405 POL00056138 Email from Stephen Bradshaw to Colin Burston re Joan
Bailey re suspect offender reporting
406 POL00062294 Memo Judy Balderson to Colin Burston and Paul Dann
re: Howey 158644, M070 Document 014
407 POL00056477 Memo from Jarnail Singh to Post Office Security re: Post
Office Limited v Joan Francis Bailey
408 POL00104763 Royal Mail Group Security - Procedures and Standards:
Summons & Cautioning England and Wales v4.0
409 POL00091014 Indictment - The Queen v Alison Loraine Hall.
A28
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410 POL00091037 Post Office Ltd Investigation - Alison Loraine Hall
411 POL00091065 Copy List of Exhibits and Copy Exhibits for R v Miss
Alison Loraine Hall
412 POL00090855 Investigation report re interview of Ms Hall.
413 POLO00091355 Area Intervention Manager Visit Log for Horizon
problems in Hightown
414 POL00021351 Letter from J A McFarlane to Christopher Knight, Re:
Post Office Limited v Alison Loraine Hall Case No:
POLTD/1011/0095
415 POL00091149 The Queen v Alison Loraine Hall, List of witnesses, and
witness statements Ver 8
416 POL00020482 Alison Loraine Hall Case Study: Schedule of Non-
Sensitive Unused Material - Alison HALL matter
417 POL00091258 Memo from J A McFarlane to Post Office Security, RE:
Post Office v Alison Loraine Hall
418 POL00021327 Memo from Phil Taylor, Criminal Law Division to Post
Office Security re Regina v Alison Lorain Hall
419 POL00021329 Email from Adrian Chaplin to Paul Southin, Robin G
Wilson, Re: Leeds CC: Royal Mail v Alison Loraine Hall
30 June 2011
420 POL00047572 Summary of facts prepared in accordance with Rule
21.3(1)(b) of the Criminal Procedure Rules 2005 - Royal
Mail Group Limited v Alison Henderson
421 POL00054917 Summons to Norwich Magistrates Court - Alison
Henderson - re theft at Worstead sub-Post Office.
422 POL00055541 Statement of offence of Regina v Allison Henderson
423 POL00054407 Record of Taped Interview - Alison Henderson
424 POL00055452 Witness Statement of Mr Christopher Granvile Knight
425 POL00055503 Allison Henderson case study: Royal mail Schedule of
Non-Sensitive Unused Material in R v Mrs Alison
Henderson.
426 POL00055305 Letter from Rob G Wilson to Cristopher G Knight, Re:
Post Office Limited v Alison Henderson
427 POL00047159 Memo from Rob Wilson to Christopher G Knight cc
Maureen Moors re: POL v ALISON HENDERSON
428 POL00055190 Letter from Rob G Wilson to Christopher G Knight, Re:
Post Office Limited v Alison Henderson Norwich
Magistrates Court 7 October 2010- Committal
proceedings Case : POLTD/0910/0167
429 POL00055162 Letter from Hugh A. Cauthery to Rob Wilson re: POL v
A. Henderson - Norwich Magistrates' Court - 7 October
2010
430 POL00047155, Memo from Rob G Wilson, Head of Criminal Law to
Maureen Moors re: Post Office LTD v Alison
Henderson Case POLTD/0910/0167
431 POL00055542 Regina v Alison Henderson Advice on Evidence
432 POL00055783 Email from Rob Wilson to Dianne Chan ce Christopher
G Knight re: Henderson
A29
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433 POL00055814 Letter from Rob G Wilson to Messrs Belmores, Re: R v
Alison Henderson Norwich crown Court-Warned List-
For Trial 29 November 2010
434 POL00055291 Schedule of Non-Sensitive Unused Material - R v Alison
Henderson
435 POLO00055505 RMG Disclosure Officers Report for Allison Henderson
436 POL00047195 Allison Henderson case study: Defence Statement in the
Norwich Crown Court between Regina v Alison
Henderson
437 POL00044503 Defence statement by Allison Henderson (R v Allison
Henderson)
438 POL00061747 Post Office Ltd - case Review, R. v Alison Henderson
written by Harry Bowyer 2014
439 POL00055687 Crown Court Attendance Note Post Office v Alison
Henderson
440 UKGI100014696 I Alison Henderson case study: Letter from Belmores
Solicitors to Rob Wilson re: Alison Henderson, trial date
to be fixed
441 POL00055839 Letter from Miss J S Andrews to Hugh A Cauthery Esq.
LL.B re: R V Alison Henderson, Norwich Crown Court
- Warned for Trial Week Commencing 29 November
2010
442 POL00055837 Letter from Miss J S Andrews to Hugh A Cauthery Esq.
LL.B re: R v Alison Henderson, Norwich Crown Court -
Warned for Trial Week Commencing 29 November
2010.
443 POL00055863 Crown Court Attendance Note Post Office v Alison
Henderson
444 POL00046148 Factual basis/ application for 'Goodyear' indication -
Regina v Alison Henderson - unsigned
445 POLO00055885 Attendance Note by Luke Hindmarsh in relation to
attending the sentencing of Alison Henderson in Royal
Mail v Alison Henderson
446 POL00089369 Indictment - The Queen v Grant Allen
447 POL00089069 Witness Statement of Stephen Bradshaw re: Grant Ian
ALLEN (unsigned)
448 POL00089096 Winsford Post Office Branch Audit Receipt of Balance
Snapshot - Identifying Mark: SB14
449 POL00089426 Post Office Ltd: Legal Investigation - Offences report
450 POL00089626 Email from Denise Reid to: Wendy Mahoney re:
Winsford CFPO
451 POL00089457 Post Office Ltd Record of Taped Interview of Grant Ian
Allen (Tape reference no.: 073555)
452 POL00089670 POST OFFICE LTD Record of Taped Interview of Mr
Grant Ian Allen
453 POL00089642 Letter from Robert Holland to Second Sight Support
Services Ltd RE: Grant Ian Allen - Case Questionnaire
454 POL00086286 Flowchart - suspension of SPMs - procedure
A30
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455 POL00089376 Letter from Andrew Bolc to Martin Bloor, RE: R v Grant
Allen
456 POL00089077 Witness Statement of Gareth Idris Jenkins re
Allegations of Fraud v Mr Grant Allen
457 POL00089115 Horizon Online Data Integrity for Post Office Ltd.
Abstract: "This document describes the measures that
are built into Horizon Online to ensure data integrity"
458 POL00089393 Email from Mark Dinsdale to John Bigley and Dave
Pardoe re: POL cases raising Horizon
459 POL00059404 Email from Rachael Panter to Andy Cash re POL cases
raising Horizon.
460 POL00089380 Email chain from Gareth Jenkins to Steve Bradshaw,
RE: FW: Post Office Limited v Grant Allen.
461 POL00089348 Post Office Ltd, Schedule of Non-Sensitive Unused
Material in R v Grant Jan Allen
462 POL00089674 Post Office Ltd - Case Review, R. v. Grant Ian Allen,
Chester Crown Court by Simon Clarke
463 POL00089378 Email from Andrew Bolc to Gareth Jenkins, RE: Post
Office Ltd v Grant Allen
464 POL00089682 Letter from Simon Clarke to Linda Pennington re :
Grant Allen Chest Crown Court -24th January 2013
465 POL00044050 Case Report - Opening for Regina v Angela Sefton and
Anne Neild - In the Crown Court at Liverpool
466 POL00057389 Royal Mail Group, Record of Taped Interview Anne
Nield
467 POL00043958 Angela Sefton and Anne Nield case study - statement
signed by Angela Sefton and Anne Nield SB145
468 POL00044010 Interview record - Angela Sefton interviewed by
Stephen Bradshaw
469 POL00057495 Angela Sefton and Ann Nield Case Study: Letter from
Andrew Bolc to Post Office Ltd, RE: POL v Angela
Marty Sefton and Anne Nield
470 POL00044047 Unsigned Witness statement of Stephen Bradshaw -
Fazakerley Branch.
471 POL00057949 Schedule of non sensitive unused material, R v Angela
Mary Sefton
472 POL00044219 Letter from Hogan Brown Solicitors to Cartwright King
Solicitors Re Future hearing of Mrs Angela Sefton,
request for evidence.
473 POL00059750 Schedule of Non-Sensitive Unused Material - Anne
Nield
474 POL00044036 Defence Statement re Angela Mary Sefton - R v Angela
Mary Sefton
475 POL00044042 Regina v Anne Nield Defence Statement
476 POL00059424 Witness Statement of Gareth Idris Jenkins
A31
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477
POL00058306
Letter from Andrew Bale to Laurence Lee & Co re: Rv
Anne Nield & another, Liverpool Grown Court
regarding appointment of second sight.
478
POLO00058110
Email chain from Andy Cash to Jarnail A Singh re:
Horizon Challenge
479
POL00044041
Regina v Anne Nield Application for Disclosure
480
POL00058383
Summary of meetings leading to the decision to
undertake an external review of the cases raised by the
Members of Parliament's constituents and the
appointment of Second Sight
481
POL00058298
Email correspondence between Jarnail Singh, Andrew
Bole and Andy Cash re R v Sefton & Nield - Liverpool
Crown Court 17th Oct 2012
482
POL00044023
Letter to Cartwright King Solicitors from Ms Brigitte
Waters (Laurence Lee & Co Solicitors) regarding 'R v
Anne Nield’, and asking for documentation relating to
an audit conducted in 2005.
483
POL00044218
Letter from Laurence Lee & Co Solicitors to Cartwright
King I Solicitors Re Regina v Anne Neild
484
POL00043964
Angela Sefton and Anne Neild case studies: Agreed
Facts for R v Angela Sefton and Anne Neild
(120120934)
POL00044221
Prosecution Certificate of readiness from Judge Watson
QC for R v Anne Nield& Angela Sefton.
POL00066798
Angela Sefton Case study. Letter from Simon Clarke to
Hogan Brown Solicitors re: Angela Sefton outcome and
potential grounds to appeal
487
POL00059940
Email from Rachael Panter to Jarnail A Singh, Re: Ishaq
trial
488
POL00060220
Email from Fernando Rodrigues to Emma Richardson
re. Fwd:
489
POLO00060112
Khayyam Ishaq Case Study: Handwritten note - Mark
Ford
490
POLO00060195
Khayyam Ishaq case study: Handwritten note of
hearing on 07/032013 in POL v Ishaq
491
POL00056076
Memo/ Report from Dennis Watson to Paul Williams,
Re: Audit of Post Office Birkenshaw Branch Code
163306
492
POL00046349
Interview of Khayyam Ishaq - conducted by Stephen
Bradshaw - Time commenced - 11:11 and Time
Completed - 11:53
493
POL00052012
Record of Taped Interview of Khayyam Ishaq
494
POL00046228
Memo from Rob Wilson re Ishaq case
495
POL00046229
Khayyam Ishaq case study - Memo from Stephen
Bradshaw to Legal services in re to Mr Liaquat
496
POL00057985
Khayyam Ishaq case study: Summary Record of Taped
Interview
497
POL00045134
Advice on Evidence in R v Khayyam Ishaq
A32
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498 POL00058244 Defence Case Statement in the case of R v Khayyam
Ishaq
499 POL00054951 Summary of call logs to the National Business Support
Centre re: 8/07/2010- 28/02/2011 of the Birkenshaw
Branch.
500 POL00046267 Witness statement of Lee Heil (unsigned) - Khayyam
Ishaq case study
501 POL00046236 Memo from Stephen Bradshaw to Rob Wilson in re to
Ishaq case
502 POL00059474 Witness Statement of Gareth Idris Jenkins
503 POL00058280 Email enclosing Crown Court Attendance form
504 POL00059602 Comments on Ishaq Docs by Gareth Jenkins
505 POL00056596 Memo from Rob G Wilson to Maureen Moors cc
Stephen Bradshaw re: POSTVOFFICE LTD -v-
KHAYYAM ISHAQ
506 POL00057543 Khayyam Ishaq case study: POL v Khayyam Ishaq -
Advice from Counsel Martin Smith of Cartwright King
507 POL00059304 Email from Rachael Panter to Andy Cash re: Ishaq
advice on evidence
508 POL00058279 Regina v Khayyam Ishaq, Brief for the Prosecution with
handwritten endorsements. Counsel: Sarah Porter
509 POL00058128 Khayyam Ishaq case study: Email from Martin Smith to
Rachael Panter re: Case no 24676 - Prosecution of Mr
Ishaq
510 POL00060316 Crown Court Attendance Note in case of Ishaq
511 POL00058025 Schedule of Non Sensitive Unused material - Khayyam
Ishaq case
512 POL00058096 Letter from Cartwright King to Musa Patels re:
Prosecution of Khayyam Ishaq
513 UKGI00014869 I Khayyam Ishaq case study: Letter from Musa Patels
Solicitors to Martin Smith re: Trial at Bradford Crown
Court 25th February
514 POL00059402 Email from Rachael Panter to Andy Cash re POL cases
raising Horizon.
515 POL00086353 Closure Workload - Plan regarding Branch Audit of a
closing PO V2.5
516 POL00058277 Email from Sarah Porter to Cyndi Kenny, Rachael
Panter and Martin Smith re: Crown Court Attendance
notes (R v Royal Mail Group on 04/09/12)
517 POL00059409 Letter from Cartwright King to Mr Nabi (Musa Patel
Solicitors) re: R (Post Office Ltd) v Khayyam Ishaq
(Bradford Crown Court on 25th February 2013)
518 POL00059517 Letter from Cartwright King to Ishaq Defence Solicitors
re response to letter concerning problems with Horizon
system
519 POL00059426 Letter from Musa Patels Solicitors to Cartwright King
Solicitors re Khayyam Ishaq, trial at Bradford Crown
Court - 25 February 2013.
A33,
EXPG000004R
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520 POL00066924 CCRC Case Briefing Note of Khayyam Ishaq
521 POL00059297 Letter from Musa Patels Solicitors to Mr Martin Smith,
RE: possible adjournment of intervention hearing
(Khayyam Ishaq)
522 POL00059682 Email from Martin Smith to Steve Bradshaw, Re:
Khayaam Ishaq
523 POL00059734 Khayyam Ishag Case Study: Email chain to Martin
Smith, Re: Khayyam Ishaq
524 POL00059644 Khayyam Ishaq: Lincoln House Chambers Court
attendance sheet in re to R V Khayyam Ishaq, counsel
attended - Ahmed Nadim.
525 POL00059927 Expert Report of Beverley Ibbotson & joint statement of
Beverley Ibbotson and Gareth Jenkins re r v Ishaq
526 POL00066824 File note of Martin J Smith re Misra
527 UKGI00001550 I Witness Statement of Sharron Lisa Jennings - Post
Office Review
528 POL00066838 POL Case Review of R v Khayyam Ishaq
529 POL00048181 Attendance note from J A McFarlane re Hughie Noel
Thomas, case no. CRM/251167/JMcF - 25 September
2006
A34
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