“It is also important to be crystal clear about any review if one were commissioned – any investigation would need to be disclosed in court. Although we would be doing the review to comfort others, any perception that POL doubts its own systems would mean that all criminal prosecutions would have to be stayed. It would also beg a question for the Court of Appeal over past prosecutions and imprisonments.”
“There can be no excuse, in my judgment, for an entity such as the Post Office to misstate, in such clearly express terms, in letters that threaten legal action, the extent of the contractual obligation upon a SPM for losses. The only reason for doing so, in my judgment, must have been to lead the recipients to believe that they had absolutely no option but to pay the sums demanded. It is oppressive behaviour.”
“1111. The Post Office describes itself on its own website as “the nation’s most trusted brand” … . So far as these Claimants, and the subject matter of this Group Litigation, are concerned, this might be thought to be wholly wishful thinking. Trust is an element of an obligation of good faith, a concept which I find is to be implied into the contracts between the Post Office and the SPMs because they are relational contracts. The Post Office asserts that its brand is trusted by the nation, but the SPMs who are Claimants do not trust it very far, based on their individual and collective experience of Horizon.” … 1115. Horizon was introduced in 2000, and from then onwards unexplained discrepancies and losses began to be reported by SPMs. Internal documents obtained in this litigation show that some personnel within the Post Office believed at the time that at least some of these were caused by Horizon. Some of these are identified at [542] above. The first document in that paragraph of this judgment dates from November 2000. At [41] I deal with part of an internal Post Office report from as recently as June 2014 – other parts have been redacted – that make it clear that steps had to be taken within the Post Office to “ensure consistency of accounts and enable a higher chance of detecting errors in accounts due to problems with Horizon”
“My instinct is that we have enough on with people asking us to look at things.”
“In my judgment, the stance taken by the Post Office at the time in 2013 demonstrates the most dreadful complacency, and total lack of interest in investigating these serious issues, bordering on fearfulness of what might be found if they were properly investigated.”
“This has significant data integrity concerns and could lead to questions of ‘tampering’ with the branch system and could generate questions around how the discrepancy was caused. This solution could have moral implications of Post Office changing branch data without informing the branch.” ii) Solution 2 was to “journal values from the discrepancy account into the Customer Account and recover/refund via normal processes”
“Could potentially highlight to branches that Horizon can lose data.” iii) Solution 3 was not to correct the data in the branches and to write off the loss. The identified risk was: “Huge moral implications to the integrity of the business, as there are agents that were potentially due a cash gain on their system.”
“It is a 2010 document and issues between the Post Office and many SPMs concerning the accuracy of Horizon had, for Legacy Horizon, gone on for a decade (2000 to 2010) and these continued under Horizon Online (introduced in 2010). Under “Impact”, some of the bullet points incorporate a summary of these issues. ‘• The branch has appeared to have balanced, whereas in fact they could have a loss or a gain. • Our accounting systems [ie Horizon or the Post Office’s] willbe out of sync with what is recorded at the branch • If widely known could cause a loss of confident [sic] in the Horizon System by branches • Potential impact upon ongoing legal cases where branches aredisputing the integrity of Horizon Data • It could provide branches ammunition to blame Horizon for future discrepancies.’”
“The evidence in both this trial, and the Common Issues trial, where the Post Office cross-examined a number of SPMs on events in their branch accounts by using a variety of management information, other than the audit data, makes clear to me just how important it is to use the audit data, rather than other sources including management information. The management information is confusing, contradictory, has been shown to be wrong and requires numerous assumptions or a “take it from me” type of approach on the part of a questioner. It is rarely agreed what that management data shows. The audit data, by its very nature, will be far superior and the best evidence available of what has occurred on Horizon. It should be consulted in circumstances where there is a dispute between the Post Office and a SPM.”
“928. The approach by the Post Office to the evidence of someone such as Mr Latif demonstrates a simple institutional obstinacy or refusal to consider any possible alternatives to their view of Horizon, which was maintained regardless of the weight of factual evidence to the contrary. That approach by the Post Office was continued, even though now there is also considerable expert evidence to the contrary as well (and much of it agreed expert evidence on the existence of numerous bugs). 929. This approach by the Post Office has amounted, in reality, to bare assertions and denials that ignore what has actually occurred, at least so far as the witnesses called before me in the Horizon Issues trial are concerned. It amounts to the 21st century equivalent of maintaining that the earth is flat.”
“968. … It was possible for bugs, errors or defects of the nature alleged by the claimants to have the potential both (a) to cause apparent or alleged discrepancies or shortfalls relating to Subpostmasters’ branch accounts or transactions, and also (b) to undermine the reliability of Horizon accurately to process and to record transactions as alleged by the claimants. 969. Further, all the evidence in the Horizon Issues trial shows not only was there the potential for this to occur, but it actually has happened, and on numerous occasions. This applies both to Legacy Horizon and also Horizon Online. … 970. I accept the claimants’ submissions that, in terms of likelihood, there was a significant and material risk on occasion of branch accounts being affected in the way alleged by the claimants by bugs, errors and defects. … … 978. … In my judgment, there is a material risk that such a shortfall in a branch’s accounts was caused by the Horizon system during the years when both Legacy Horizon and HNG-X were in use, which is 2000 to 2010 and 2010 to 2017 respectively. … … 983. … there is a material risk for errors in data recorded within Horizon to arise in (a) data entry, (b) transfer or (c) processing of data in Horizon in both the Legacy Horizon and HNG-X forms.”
“13.— Conditions for making of references (1) A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 … unless— (a) the Commission consider that there is a real possibility that the conviction … would not be upheld were the reference to be made, (b) the Commission so consider— (i) in the case of a conviction, … because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, … and (c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused. (2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.”
“Subject to the provisions of this Act, the Court of Appeal – (a) Shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case”
“But applications for a stay of this kind cannot be judicially resolved by a process of ‘feel’ or ‘instinct’ … . It remains the case that it is an exceptional step to stay a prosecution; and if a stay is to be granted it must be by a proper application of settled principles to the facts.”
“It is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will ‘offend the court’s sense of justice and propriety’ (per Lord Lowry in R v Horseferry Road Magistrates’ Court, Ex p Bennett[1994] 1 AC 42 , 74G) or will ‘undermine public confidence in the criminal justice system and bring it into disrepute’ (per Lord Steyn in R v Latif and Shahzad[1996] 1 WLR 104 , 112F).”
“In these circumstances, we have no doubt that the discretionary balance comes down decisively against the prosecution of this offence. This trial was preceded by an abuse of process which, had it come to light at the time, as it would have done had the prosecution made proper voluntary disclosure, would properly have justified the proceedings then being stayed.”
“In summary I would conclude by saying that I fully believe that Horizon will accurately record all data that is submitted to it and correctly account for it.”
“Unfortunately that was not the case, certainly between the dates spanned by the statements I have extracted here, the5th October 2012 and the3rd April 2013 .”
“- Notwithstanding that the failure is that of [Mr Jenkins] and, arguably, of Fujitsu Services Ltd, being his employer, this failure has a profound effect upon POL and POL prosecutions, not least because by reason of [Mr] Jenkins’ failure, material which should have been disclosed to defendants was not disclosed, thereby placing POL in breach of their duty as a prosecutor. - By reason of that failure to disclose, there are a number of now convicted defendants to whom the existence of bugs should have been disclosed but was not. Those defendants remain entitled to have disclosure of that material notwithstanding their now convicted status. (I have already advised on the need to conduct a review of all POL prosecutions so as to identify those who ought to have had the material disclosed to them. That review is presently underway.) - Further, there are also a number of current cases where there has been no disclosure where there ought to have been. Here we must disclose the existence of the bugs to those defendants where the test for disclosure is met.”
“(i) The minutes of a previous call had been typed and emailed to a number of persons. An instruction was then given that those emails and minutes should be, and have been, destroyed: the word ‘shredded’ was conveyed to me. (ii) Handwritten minutes were not to be typed and should be forwarded to POL Head of Security. (iii) Advice had been given to POL which I report as relayed to me verbatim: ‘If it’s not minuted it’s not in the public domain and therefore not disclosable.’ ‘If it’s produced it’s available for disclosure - if not minuted then technically it’s not.’ (iv) Some at POL do not wish to minute the weekly conference calls.”
“Regardless of the position in civil law, any advice to the effect that, if material is not minuted or otherwise written down, it does not fall to be disclosed is, in the field of criminal law, wrong. It is wrong in law and principle and such a view represents a failing to fully appreciate the duties of fairness and integrity placed upon a prosecutor’s shoulders.”
“she was surprised to find that discrepancies occurred on each day of her onsite training, particularly as the trainer had watched every transaction she carried out that week. She adds that in the second week, an unexplained shortfall of approximately£200 occurred whilst balancing, and that the trainer rang the Helpline for assistance. She says that the trainer followed the Helpline’s instructions, which had the effect of causing the shortfall to double, after which the trainer told her “we have to make the till good now and you might get an error notice”
“The Business has also won every criminal prosecution in which it has used evidence based on the Horizon system’s integrity.”
“The PO describes itself as ‘the nation’s most trusted brand’. Yet this application is founded on the premise that the nation’s most trusted brand was not obliged to treat their SPMs with good faith, and instead entitled to treat them in capricious or arbitrary ways which would not be unfamiliar to a mid-Victorian factory owner (the PO’s right to terminate contracts arbitrarily, and the SPMs alleged strict liability to the PO for errors made by the PO’s own computer system, being just two of many examples). Given the unique relationship that the PO has with its SPMs, that position is a startling starting point for any consideration of these grounds of appeal.”
“There is a crucial distinction between investigators legitimately considering the possibility of confiscation proceedings, and the decision-maker being improperly motivated to decide in favour of prosecution by the prospect of financial gain to the authority.”
“there must be some recognition that the Defendant had the money short of theft and that a plea on the basis that the loss was due to the computer not working properly will not be accepted.”
“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.”
“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.”
“The current charge covers a period from1 January 1997 to10 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.”
“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.”
“the Prosecution would not accept any criticism or blame concerning the Horizon System.”
“can you demonstrate how you did not steal the money?”
“The defendant does not know whether the accounting procedures adopted to produce this information are accurate, nor whether there is a shortfall as alleged. Further, it is Mr Owen's understanding that the accounting systems operated by the Post Office are notorious for producing imbalance anomalies.”
“The Defendant stole£94,000 from the Post Office having begun to do so on return from holiday in August 2002.
“First, they say it is not arguable that the convictions are unsafe on the basis that the Horizon system was shown to be unreliable and open to errors. Furthermore… although Horizon was involved in the alleged thefts (proved thefts as the jury found them to be) it was not at the heart of the thefts – what lay at the heart of the thefts were the missing cheques and the applicant's inability to explain why it was when the paperwork was otherwise in order that these cheques should have gone missing. They also point out that during the course of the trial there was an agreed fact before the jury that at all material times the Horizon system had been operating properly.”
“… the circumstances where it can be said that proceedings constitute an abuse of process are closely confined … It has to be a situation where it would be inconsistent with the due administration of justice to allow the pleas of guilty to stand.”
“Ultimately, however, the test is of the safety of the conviction. For the reasons expressed in Bhatti, the scope for finding that an unequivocal and intentional plea of guilty can lead to an unsafe conviction must be exceptional and rare. However, undue pressure or errors of law or unfairness in the trial process may all be of such an important causative impact on the decision to plead guilty that the conviction which follows on such a plea can, in an appropriate case, be described as unsafe ... Ultimately, as the authorities emphasise, it is a question of fact in each case.”
“Green giro cheques are a method of payment used by the Department of Work and Pensions. Giros are sent out by post to customers and each giro has a date on it showing the earliest date that it can be cashed. When a cheque is presented at a counter for payment the clerk must check that it is valid for payment. Cheques are valid for a month. The clerk checks that the words and numbers on the cheque agree and that it is permissible for it to be cashed at that office. Proof of identity must be produced if the giro is for more than£100 . The cheque must be signed on the reverse by the payee (and the agent if an agent is collecting the money on a customer's behalf). The clerk date stamps the giro on the front and then enters the amount into the Office computer system by touching the green giro icon on the computer screen. The screen will then show the amount to be paid to the customer. The cash is handed over and the transaction is completed on the screen. The giro is retained by the clerk in their ‘stock’. This is the name for the Post Office property (cash, receipts, stamps etc) for which a particular member of staff is responsible.”
“The Chesterfield data showed that there were a number of weeks where giro transactions were being performed at Hertford Heath but they had received no giros at all for those weeks. They wanted these ‘missing pouches’ to be investigated. Of course the truth was that the giros were not missing. Their despatch was simply being delayed until Mrs Cousins could recash them fraudulently.”
“A more sophisticated tactic is by the reintroduction of a legitimately cashed giro. Having correctly performed the giro transaction through Horizon the clerk retains the giro rather than despatching it and then re-cashes it in another week. The giro is date stamped when the reintroduction takes place. It is then sent off with the summary and because it appears on the summary and it has the date stamp for the appropriate week it has a legitimate appearance, even though the genuine transaction has taken place in an earlier week. If a genuine mistake had occurred where a cheque was cashed in one week but not accounted for until the next it would be expected that the Horizon accounts would show a loss for the first week and a gain in the second. This would be because in the first week cash would have been given out but there would be no document to account for the payment, thus producing a loss. In week 2 there would be a payment document, but no money would have been given out, thus producing a gain.”
“The defendant will say at no stage did she steal any money belonging to the Post Office Limited and nor did she ever benefit from any such sort of theft. The defendant will say that she has only ever cashed those giro cheques presented by customers to her in the manner prescribed by the Post Office.”
“1. It is proposed that guilty pleas are entered to the following counts on the indictment: 2,4, 6, 8, 9, 11, 12, 13, 14, 15 and 16. The total value of these counts is£7,037.81 . 2. There are arguments in respects of counts 1, 3, 5, 10 and 17 that at least one of the suspect transactions that comprise each count may have been a legitimate transaction. 3. In respect of count 7 the defendant was on holiday at the material time and could not have performed the alleged transactions. 4. A schedule of matters to be taken into consideration containing 23 further charges has been prepared. These Tic’s are accepted. The total value of the Tic’s is£6,651.57 . The total value that Mrs Cousins will be admitting having stolen will therefore be£13,759.38 . 5. It is proposed that the agreed figure of loss by the Post Office is£13,749.38 . It is further proposed that this be the subject of a compensation order, and that in the circumstances it would be inappropriate to pursue formal confiscation proceedings. 6. These are matters of personal mitigation that relate to Ms Cousin’s family circumstances. Mrs Cousins does not seek to suggest that any person other than herself was responsible for the thefts.”
“Who knows whether such bugs, errors and defects could have had the consequence that I have highlighted”
“If I was to give you a cheque for the shortage, would that be the end of it?”
“May I state from the outset without prejudice that at no time have I sort [sic] to steal or defraud POL of any Stock or cash whilst in my custody. POL appointed me in 1976 as the SubPostmaster of Newton Burgoland Post Office and until my suspension on the23rd October 2006 I was the Sub-Postmaster of Newton Burgoland Post Office where I have carried out the duties of a Sub-Postmaster and run the village store for 30 years. On the23rd October 2006 , Jane Bailey (Community Business Development Manager) for POL entered the premises of Newton Burgoland Post Office to investigate a complaint that I (Stanley Fell) had made to POL’s cash management centre about the lack of funds I had at my disposal to finance the running of Newton Burgoland Post Office. Jane Bailey representing POL, having examined the Post Office cash identified there was a shortage of£19,587.66 . I was with immediate effect suspended from my duties as SubPostmaster of Newton Burgoland Post Office. However I have been allowed to carry on trading at the same premises with my village store. On the 24th and the25th October 2006 I had to seek medical attention due to the stress and anxiety of being suspended. My doctor prescribed anti depressants along with sleeping tablets to assist me. On the25th October 2006 upon my return to Newton Burgoland Post Office having needed further medical attention from my doctor I was informed by my daughter who I left in charge of the store that during my absence Jane Bailey (BDM) and Paul Field (POL Audits) had entered the Post Office secured area and proceeded with an audit of my Post Office accounts during my absence, despite my daughter’s requests to suspend an audit until I Stanley Fell had returned from the Doctors. My federation representative Michael Rudkin has subsequently informed me that he was present throughout the audit. Michael has confirmed to me upon completion of the audit by Paul Field the Post Office accounts for Newton Burgoland Post Office revealed a cash shortage of£19,587.66 . The burden of my actions became so unbearable that on the11th November 2006 I planned to end my life by taking an overdose of paracetamol tablets and alcohol that lay in waiting for me in the garden shed. The failure that I feel I have become, I was discovered by members of my immediate family and stopped from attempting suicide. Once again medical attention was called for and on12th November 2006 an emergency locum Doctor attended my premises and once again prescribed antidepressants. Should you require any further information I would ask the Post Office Investigation Department to write to either myself or my Solicitors Richard Nelson outlining your requirements and I will co-operate fully with the investigation. I wish to offer POL and my Family an un-reserved apology for my financial negligence but wish to reaffirm without prejudice that at no time have I sort [sic] to steal or defraud POL of any Stock or cash whilst in my custody and it has always been my intension [sic] to repay the money to POL. Having consulted with my solicitors Richard Nelson Business Defence, I have been advised to co-operate as fully as possible in this voluntary interview with the Post Office Investigation Department. I have decided to read my prepared statement as the prescribed medication that I am taking may interfere and not allow me to give clear and coherent answers when questioned. This concludes my statement. Should any further questions be put to me they will be met with the response NO COMMENT.”
“That he [Mr Fell] used the Post Office monies to keep the adjoining shop afloat having suffered a decline in the trade of the Post Office and having mismanaged the stocking of the shop resulting in financial difficulties in meeting the overheads of the business. He always intended to repay the monies.”
“I, Stanley Fell (b. 09.02.1952) am currently charged with a single offence of False Accounting [01.06.06 – 24.10.06]. I will plead guilty to this offence on the following basis: Towards the end of 2004 / the beginning of 2005 I entered into a contract with a wholesaler by the name of ‘1st Choice Ltd’. ‘1st Choice Ltd’ were to supply the stock to my shop which is contained within the Post Office premises. In entering into such an agreement, I hoped to turn around the poor sales that the shop had experienced in the recent past. Initially, the new contract led to a modest improvement but this trend quickly reversed due to one particular term in the contract which stipulated that I must spend a minimum of£2,000 on stock every week. It soon became obvious that I simply did not have the finances to meet the stipulated term and I began to borrow Post Office funds in order to meet the shortfall and keep the shop afloat. This took place over the [sic] roughly the same period as set out in the charge and I admit that I acted dishonestly in falsifying the Monthly Trading Statements. I would wish to confirm to the Court that at no time did I intend to permanently deprive the Post Office of the monies in question. It was always my intention to pay back that which I had borrowed, as I now have. I did not intend to steal the money.”
“You have always accepted that you were guilty of false accounting by way of creating false cash records to disguise the monetary loss to the Post Office caused as a result of you taking funds to keep your shop afloat”
“To the best of my knowledge and belief at all material times the system 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 [sic] the information held within it.”