50 more lawyers are hired over the Post Office IT scandal: not a great way to say sorry?

 

Photo: Andrew Buchanan,- Unsplash

By Tony Collins

In a settlement statement last December, the Post Office seemed to mark an end to a long dispute with sub-postmasters over its  Horizon branch accounting system.

More than 550 sub-postmasters had sued the Post Office in the High Court to establish that Horizon was flawed and that they were not to blame for unexplained shortfalls shown on the system.  The Post Office defended Horizon, arguing it was robust, but settled when it became clear it was losing the case.

The litigation cost the Post Office £46m in legal expenses and £57.75m to settle. It had hired four QCs and two firms of solicitors to handle the case and had spent £500,000 alone on determining its litigation strategy. The judge in the case, Mr Justice Fraser, remarked on the Post Office’s apparent legal approach when he said,

“… The Post Office has appeared determined to make this litigation, and therefore resolution of this intractable dispute, as difficult and expensive as it can.”

But in settling the dispute and apologising, the Post Office’s new CEO said he was “very pleased we have been able to find a resolution to this longstanding dispute”.

He added, “Our business needs to take on board some important lessons about the way we work with postmasters, and I am determined that it will do so.  We are committed to a reset in our relationship with postmasters, placing them alongside our customers at the centre of our business. As we agree to close this difficult chapter, we look forward to continuing the hard work ahead of us in shaping a modern and dynamic Post Office, serving customers in a genuine commercial partnership with postmasters, for the benefit of communities across the UK.”

At the heart of the dispute was whether Horizon, which was built and run by Fujitsu, had material faults that could alter post office branch balances and show phantom losses of tens, or sometimes hundreds, of thousands of pounds.

Whether or not Horizon was at fault, the Post Office demanded that sub-postmasters made good the shortfalls from their own pockets. It cited Horizon in the courts as robust evidence that the shortfalls represented actual money and  prosecuted sub-postmasters for theft, false accounting and fraud. It also used Horizon evidence to obtain confiscation orders on countless homes, businesses and cars. Lives were ruined. At least 2,000 sub-postmasters were affected. One sub-postmaster,  Martin Griffiths, stepped in front of a bus. His inquest heard the Post Office was pursuing him over shortfalls of tens of thousands of pounds. There have been other early deaths of Horizon victims including Fiona Cowan and Justin Wilson.

Remorse – or 50 more lawyers?

The litigation established that Horizon had numerous flaws. The Post Office and Fujitsu had hidden defects, bugs and errors for years – and the Post Office had not properly investigated Horizon before it blamed sub-postmasters for shortfalls shown on the system. As a result of the High Court Horizon judgment, the Criminal Cases Review Commission, which looks at possible miscarriages of justice, referred 47 sub-postmaster cases to the Court of Appeal. The Commission has never referred such a large number of convictions on one issue to the Court of Appeal. It criticised the Post Office for an “abuse of process”.

Exceptional

The Commission categorised the Horizon-related cases as “exceptional”.  Usually the Commission considers applications only when a convicted person has first had their case heard and rejected by the Court of Appeal.  But in exceptional circumstances the Commission can consider “no appeal” cases.

All but one of the 47 sub-postmaster applications are “no appeal” cases, which suggests that the Commission, in referring all of them to the Court of Appeal, regards the grounds for quashing their convictions as exceptionally strong.

The Court of Appeal is expected to hear the cases over the next few months and  first rulings are likely early next year. They may reveal whether Horizon’s flaws were deliberately hidden from judges and juries and whether the prosecution’s choice of criminal charges was in any way influenced by strengthening the Post Office’s position when seeking confiscation orders for homes, businesses and cars.

A Directions Hearing for the Court of Appeal cases is scheduled for November. A key date for those hoping to have their convictions quashed is 2 October 2020 when the Post Office must indicate whether it will oppose any, some or all of the Court of Appeal cases. It is possible the Post Office will contest some of them, despite its apology and conciliatory remarks in the settlement statement, at which time it referred to a “genuine desire to move on from these legacy issues and learn lessons from the past”.

Horizon dispute very much alive

If the Post Office has no intention of contesting any of the Court of Appeal cases, it is unclear why it would need a large force of lawyers. The Post Office has retained more than 50 barristers and two QCs to  consider the disclosure of documents relevant to the appeals to the Court of Appeal and a Historical Shortfall Scheme in which at least 1,300 sub-postmasters are seeking the return of money the Post Office demanded from them.

The Post Office’s large ongoing legal spend suggests the Horizon dispute is very much alive. It further raises the question of why ministers and civil servants still have an apparently “hands-off” approach to the Post Office’s legal spending.

Difficulties proving whether Horizon was or wasn’t to blame

That a complex computer system is at the heart of the dispute presents difficulties for both sides in producing evidence. For sub-postmasters, they can prove Horizon had numerous flaws that could alter branch accounts and that Fujitsu personnel had a “back door” to branch accounts which they could use to edit, add or delete transactions without the knowledge of sub-postmasters. Also, sub-postmasters can show from the litigation rulings that Fujitsu did not keep a proper record of what its IT personnel did when accessing branch accounts. The High Court judgments further showed that it was not unknown for Fujitsu personnel, when accessing branch post office accounts, to use the same counter number actually in use by the sub-postmaster or an assistant. This meant that the sub-postmaster, looking at the records, could end up believing the transaction inserted by Fujitsu had been performed within the branch itself. This information was only disclosed by Fujitsu (and therefore the Post Office) late in the litigation in January and February 2019.

All these things sub-postmasters could prove but it is almost impossible for them to obtain the information that proves Horizon was at fault in their particular case. This difficulty was summed up by Mr Justice Fraser,

“For a SPM [sub-postmaster] to demonstrate they were not at fault, if there was a loss, could be verging on nigh on impossible. Firstly, they would have to concentrate upon and analyse all of the branch records for every single transaction within the particular trading period. That would be an onerous burden for a single SPM. Secondly, those records would only be between the branch and the Post Office; SPMs have no access to data between the Post Office and its clients, and are not able to obtain it…a SPM simply does not have access to the type of information that would make such an onerous exercise possible even in theory.”

For the Post Office, establishing evidence that Horizon was working well at the time and date and branch post office in question may also be difficult. The Post Office relies for information about Horizon from Fujitsu which had thousands of Horizon known error logs that, for years, the Post Office might not always have seen. Also,  Fujitsu sometimes wrongly categorised system problems as “user error” – in other words the fault of the sub-postmaster or an assistant.  A further problem is that the Post Office may not be able to find the relevant records or might not have kept them.  A big spend on a scientific approach to disclosing documents may therefore be unjustified.

Mr Justice Fraser made several comments in his judgements on the Post Office’s apparent lack of an open approach to disclosure of evidence. He referred to the difficulties for sub-postmasters of obtaining the Horizon known error log. At first, the Post Office said the log was not relevant and then suggested it may not exist. The judge referred to this approach as “disturbing” and “misleading”. These are some of the judge’s other comments about the Post Office’s lack of openness:

an “… overly intricate attempt to sow confusion and obscure the true issues in the case.”
“expenditure of time, resources and money by the defendant [Post Office] on restricting the claimants’ [sub-postmasters’] evidence.”
“It is difficult to see how they [sub-postmasters]  can have such an opportunity if they are denied access even to copies of information or records.”
“It took a trial, tens of millions of pounds and several years to ascertain the truth about remote access [to branch accounts by Fujitsu].”

Post Office response

Asked last week why the Post Office is still spending large sums on lawyers despite its apology last year and criticisms by the judge, the Post Office said in a statement,

“The Post Office has been working closely with the Criminal Cases Review Commission since a number of former postmasters applied to overturn their convictions for offences based on evidence from the Horizon computer system, used in Post Offices since 1999.

“We are also conducting an extensive review of historical convictions which relied upon Horizon, to identify and disclose material that might cast doubt on the safety of those convictions in accordance with Post Office’s duties as former prosecutor.

“The Criminal Cases Review Commission has so far decided to refer for appeal the convictions of 47 applicants. The majority of these referrals are to the Court of Appeal (which relate to convictions in the Crown Court) with six separate referrals to Crown Courts (which relate to convictions in the Magistrates’ Court).

“The cases span the period between 2001-2013 and are technically and factually complex.  The Court of Appeal has granted Post Office until 2 October 2020 to file its Respondent’s Notices.”

Comment:

The new battalion of lawyers is being funded by an institution that only last December announced that it was learning lessons from the Horizon-related judgments in the High Court – judgments that included criticisms of its excessive legal costs.

But some who have read the hundreds of pages of judgments in the litigation may wonder if two parallel worlds are in operation.

The judge referred at different stages to the Post Office’s evidence in terms of a Lewis Carroll nursery rhyme, the earth as flat and a parallel world. It further emerged that sub-postmasters were expected to sign an agreement that referred to a non-existent Book of Rules and the Post Office argued in the litigation that, contractually, it was entitled to act in a vindictive, capricious or arbitrary way.

Where the judge found the Post Office’s conduct anomalous and surprising, he commented  on it which, perhaps, was one reason the Post Office tried to remove him. That is the Post Office’s world.

The other world is the one in which people who know about the scandal do not understand why the Post Office is not in the least embarrassed at having the luxury, as a publicly-funded institution, of engaging four QCs and two firms of solicitors to contest a High Court litigation that ought not to have been necessary in the first place.  Moreover, the Post Office seems not in the least uneasy about having made a public apology over the Horizon IT scandal but not paid back even half the money it demanded from sub-postmasters for Horizon shortfalls.

Those observing the scandal may also wonder, given the hundreds of lives ruined, why the Post Office seems to show few real signs of compassion, humility, empathy and remorse.

Lee Castleton is among the former sub-postmasters who continues to suffer the consequences of the scandal 13 years after the Post Office took him to court over Horizon shortfalls of about £26,000 and subsequently landed him with legal costs of 13 times that amount – £321,000.  The problem for Castleton is that his case was in the civil court. He might have been better off if he had received a criminal conviction which today he could seek to overturn and then, if successful, take action against the Post Office.  As things stand,  there is little Castleton can do to right the financial wrongs he has suffered. He has received £51,000 from last year’s Horizon settlement – but £36,000 of this has gone into paying off what is left of the £321,000 Post Office legal bill that bankrupted him. The Horizon settlement has, for him, covered less than 20% of the Post Office’s court fees that he was made to pay and offered him no recompense for a ruined life.

The Post Office has been criticised by MPs, peers, forensic accountants it hired – Second Sight – the High Court, the Appeal Court, sub-postmasters and the Criminal Cases Review Commission.

But then there is the Post Office’s world. This is one in which postal affairs ministers are completely supportive. Not a word or hint of criticism of the current Post Office board from any business minister or the business secretary. In the Post Office’s world, every sub-postmaster is a potential fraudster. The challenge is minimising the potential for hundreds of millions of pounds worth of fraud. In this world, there is little place for humility and compassion. Any weakness in the system could be exploited by the unscrupulous. In this world, the Post Office is strong, seen to be strong, always in control and willing to take the action that needs to be taken to keep the vital network of post office branches in place, commercially sound and on a solid procedural, administrative and IT footing. And therein lies the two irreconcilable worlds.

Nobody in government is willing to bridge the two worlds. Ministers in successive governments seem to say to the Post Office, in essence, “We know you’re running a vital public service and a complex one in which we in our short time as ministers cannot hope to understand even superficially. We must therefore trust that, whatever you say,  you know what you are talking about.”

Someone dynamic, senior and independently-minded in government is needed to intervene. But it will not happen with government business ministers who seem little more than Post Office flatterers.

Where is the public spending watchdog the National Audit Office?

There are some big questions that will remain unanswered until somebody in government gets a grip on the scandal. One question is: where is the public spending watchdog the National Audit Office?  For years the Post Office has been seemingly awash with money to spend on lawyers.  The NAO seems  nowhere in sight.

And why is nobody in government challenging business ministers in their quest for a Horizon review that campaigning peer Lord Arbuthnot calls a “pathetic response to a national outrage”.

To do the right thing, ministers, civil servants and the Post Office could start by accepting the principle that it is not emasculating to make proper amends for a vast number of miscarriages of justices.  To carry on spending huge sums on lawyers shows that, despite the good words and apology in the settlement statement, the Post Office’s culture and attitude is the same as it was when Horizon went live in 1999.

Worse, the Post Office could decide to contest Horizon cases that are due to go to the Court of Appeal. The Criminal Cases Review Commission has already categorised these Horizon cases as “exceptional”.  For the Post Office to contest a single one of them, therefore, would be an extraordinary perpetuation of the Horizon scandal.

It would also reinforce the case for a full judge-led inquiry into how it is that ministers and civil servants continue to flatter and uncritically support an arm of the state that has held, in its hands, the future of more than 2,000 people but seems, to some, to continue to act as if in a Lewis Carroll nursery rhyme. One Lewis Carroll rhyme is, incidentally, called The Crocodile…

How cheerfully he seems to grin,
How neatly spreads his claws,
And welcomes little fishes in,
With gently smiling jaws!

**

Chirag Sidhpura’s crowdfunding appeal to support a Judicial Review of the Post Office’s Historical Shortfall Scheme which he regards as fundamentally flawed and unfair.

Hundreds of victims of Post Office IT scandal will be excluded from new compensation scheme – Daily Mail

The Post Office Trial – BBC Radio 4 series presented by Nick Wallis

Post Office Horizon IT scandal victims face further battles as government digs heels in – Computer Weekly

 

Ministers plan hasty review of the Post Office IT scandal before more facts emerge?

By Tony Collins

The full truth has yet to unravel over the Post Office IT scandal – but more disclosures are likely in the next few months when the Court of Appeal starts the first hearings into whether to quash the convictions of 47 sub-postmasters who were prosecuted on the basis of evidence from the Post Office’s flawed Horizon system. A directions hearing for the 47 cases is due to be held on 25 November.

Lawyers are preparing evidence for the Court of Appeal that may put the scandal into a wider and more controversial context – and would render as irrelevant an impending government lessons-learning “review” of Horizon.

More than 1,800 business people – sub-postmasters and mistresses – who ran branch post offices under franchise contracts with the corporate Post Office, experienced unexplained balance shortfalls on the branch accounting system Horizon, built and run by Fujitsu.

The Post Office required the sub-postmasters to make good unexplained balance shortfalls from their own pockets. At times, the shortfalls amounted to tens of thousands of pounds.

Whether or not sub-postmasters made good unexplained shortfalls, the Post Office still prosecuted in many cases: for theft, false accounting and fraud. It followed up prosecutions with civil actions, all based on Horizon evidence.

The prosecutions were almost invariably successful because of a major flaw in the criminal justice system – a legal “presumption” in which judges are recommended to accept computer evidence as reliable unless the defence can show it’s not. But defendants cannot prove an institution’s complex system is faulty in a specific way, and on the dates and times in question, unless they know the system intricately enough to pinpoint the correct documents to ask for, among the many thousands of confidential papers that the prosecution may be reluctant to disclose. Anyone who wants to prove an institution’s computer system is not as robust as it claims may need tens of millions of pounds to do so. Barrister Paul Marshall wrote a paper in July for the Commons’ Justice select Committee on how the presumption made the Post Office IT scandal possible and makes many other injustices likely.

After Horizon went live in 1999, increasing numbers of sub-postmasters complained to their MPs that they were being convicted of crimes they did not commit, on the basis of evidence from the flawed Horizon system. But government business ministers and the Post Office rejected all complaints about the system. They said there was no evidence the system was not robust.

Photo by Metin Ozer on Unsplash

Poor conduct

The helpless state of sub-postmasters changed after a former sub-postmaster Alan Bates, who founded Justice for Sub-postmasters Alliance, raised, with help, litigation finance to sue the Post Office to expose Horizon’s faults. The case was a success and exposed not only Horizon’s material faults that caused numerous shortfalls on the system but also the Post Office and Fujitsu’s poor conduct in the years before, and during, the litigation.

In the light of the High Court’s findings, the Criminal Cases Review Commission, has referred 47 unsafe Horizon-based convictions to the Court of Appeal. The Commission is confident the convictions will be overturned because of what it calls the Post Office’s “abuse of process”.

The government has announced a review of the Post Office’s Horizon-related failings but it excludes consideration of court-related matters and will therefore not take in findings from the appeal cases.  The first Court of Appeal rulings are expected in the first half of next year – by which time the government review may be finished.

Review imminent?

Alok Sharma, secretary of state for the business department, BEIS

Alok Sharma, secretary of state for the Post Office’s “sponsor”, the Department for BEIS, told the House of Commons’ BEIS select committee in July that the “plan is to start an inquiry [review] by September at the latest”.

Government business minister in the House of Lords, Martin Callanan, told peers last week that the appointment of someone to chair the review is imminent. He said, “I am hoping that an appointment can be made imminently, because we all want to see this under way as quickly as possible.

But a review long before the Court of Appeal rulings highlights a disconnect in the way the Horizon affair is seen by both sides – ministers and officialdom on one side and, on the other, sub-postmasters, MP, peers and campaigners for justice. The gap between the two sides is as wide as ever and suspicion runs deep.

Paul Scully MP, postal affairs minister who wants an “independent” review and doesn’t support a judge-led inquiry into the Post Office Horizon IT scandal

Naive

Sharma and his junior business minister Paul Scully, the postal affairs minister in the Commons, appear to see their uncritical support for the current Post Office board as important to the institution’s financial stability. The Post Office receives hundreds of millions of pounds in investment funding from taxpayers.  But this uncritical ministerial approach is seen by those on the other side as deferential and naive, accompanied as it is by BEIS’s apparent indifference to criticism.

A lack of effective challenge over nearly 20 years could be said to have provided an environment for numerous injustices to happen.

Ministers may be further fuelling accusations of indifference by refusing a judge-led inquiry into the scandal and rejecting calls by MPs and peers to pay the £46m costs of the sub-postmasters’ side of the litigation last year that exposed much of what is now known about Horizon’s defects.

Mistakes – or deliberate concealment of Horizon problems?

Scully has said the Post Office “got things wrong” and made “mistakes”. But some lawyers say mistakes and incompetence had little to do with the scandal.  If it emerges that the Post Office and its Horizon supplier Fujitsu deliberately concealed Horizon IT problems from the courts where the reliability of the Horizon system was a central issue in whether the accused went to prison, MPs and peers are likely to demand a government response, whether or not the review into the scandal has finished.

For sub-postmasters, it was one thing to be imprisoned for a crime they did not commit because of mistakes by investigators, prosecutors and the courts; it is another thing to lose their freedom, home, livelihood, life savings and sometimes their health because the corporate culture and practice within a state institution seemed to regard the concealing of its IT problems as more important than anything, including individual liberty.

A possible further consideration over the coming months is whether the prosecution’s charging decisions were sometimes based in part on the Post Office’s financial interests rather than purely in the interests of justice – all matters that the government review of the scandal will disregard.

Photo by Andrew Buchanan on Unsplash

The Post Office side

The Post Office’s position has been that Horizon is not perfect but a range of “countermeasures”, such as manual or IT-based corrections to incorrect transactions, made the system “robust”. Therefore, the Post Office has taken it as read that inexplicable shortfalls shown on Horizon must be down to criminality or incompetence of the sub-postmaster.

It is still the Post Office’s position that sub-postmasters have yet – if ever – to prove that a Horizon glitch caused a particular shortfall for which they were prosecuted or required to make good losses. The Post Office’s CEO Nick Read said in a letter to the BEIS select committee in June 2020,

“The [High Court] judgment did not determine whether bugs, errors or defects did in fact cause shortfalls in the individual claimants’ accounts …”

But to show it got some things wrong in the past, the Post Office has paid £57.75m in compensation, made an apology, launched a historical shortfall compensation scheme, set aside a place on the board for a postmaster and says it is reforming its culture and organisation.

Internal emails disclosed to the High Court suggest the Post Office is reluctant to be open about Horizon defects in case sub-postmasters exploit a bug to steal or defraud. The Post Office is a cash intensive business and needs to be able to trust Horizon to track any dishonesty. All sub-postmasters must be seen as a potential fraudsters, even though they are vetted before taking over a branch post office, typically invest £80,000-£120,000 in buying a post office premises that is often to a linked retail business and it would not, in theory, make sense for sub-postmasters to steal from themselves.

Horizon’s reliability is vital to the commercial success of the Post Office. The Post Office says the system works well every day for 11,500 post offices where there are often several people at each site using the system for a diverse range of products. On average, Horizon handles about six million transactions a day.

Mr Justice Fraser

The story’s other side

Robust? A system with 10,000 manual interventions a week? Mr Justice Peter Fraser, in the High Court Horizon legal case last year, found that Horizon needed more than 10,000 manual interventions a week – which he said suggested something was wrong.  “I do not accept that on a properly functioning and robust system there should be such a high number as that every week,” said the judge. His comment raises a question of how the Post Office was ever allowed in court cases to describe Horizon as robust.

Innumerable Horizon shortfalls are suspect. Fujitsu was “far too ready” to ascribe the effect of Horizon bugs, errors and defects to possible user error, said the judge. At no point, it appears, did successive Post Office boards ask why the institution was experiencing apparent massive crime-waves among sub-postmasters since Horizon was introduced.

Innumerable Horizon-based prosecutions suspect.  Prosecutions and convictions were based on an assumption by the courts and juries that the accused was responsible for the Horizon-based branch post office data in question. But the High Court judge found last year that all software specialists at Fujitsu’s Software Support Centre at Bracknell had powerful “APPSUP” system privileges that enabled them to do almost anything on the Horizon database, including “injecting” transactions into a branch post office’s accounts without the knowledge of sub-postmaster.  Some Fujitsu personnel had APPSUP access privileges they were not supposed to have.  They were able to edit the branch accounts, add “balancing transactions” or  delete transactions. Sometimes alterations could take place live without the sub-postmasters’ realising or having given their consent. Fujitsu specialists were able at one time to use a sub-postmasters’ ID number which could leave sub-postmasters believing they had made the changes carried out by Fujitsu. The judge found there was a lack of control of the role and the recording of access.  Logs were maintained between 2009 to July 2015 but did not record actions, only whether a user had logged on and logged off. Even after July 2015, the logs “are not a useful source of evidence about remote access”, due to their lack of content, said the judge.

“In my judgment, this amounts to a deficiency in controls,” he said.

“The whole of SSC [Fujitsu’s Software Support Centre] had the APPSUP role for many years, and internal Fujitsu documents recorded that they were not supposed to have that role. There were a large number of personnel within SSC,” said the judge.

The High Court – Royal Courts of Justice

Photo by Mahosadha Ong on Unsplash

The High Court was told that the APPSUP role was used 2,175 times between 2009 and 2019. The judge said,

“… anyone with the APPSUP role could pretty much do whatever they wanted. [They] had the potential to affect the reliability of a SPM’s [sub-postmasters’] branch accounts to a material extent. Further, the evidence shows clearly that there were instances when this in fact occurred,…”

Does APPSUP access – which the judge devastatingly observed was “effectively unaudited” – render unsafe innumerable prosecutions, convictions and civil claims for alleged shortfalls? The Court of Appeal is expected to look at this point: that Fujitsu personnel had online access to post office branches’ accounts without full records being kept of what they did and without sub-postmasters’ knowledge.

At the heart of the scandal. The Post Office is answerable to nobody for the worst aspect of the scandal: deliberately concealing IT problems while prosecuting on the basis of the alleged reliability of the system and pursuing payment of alleged Horizon losses through the civil courts when it was known the system was flawed.

In criminal or civil cases where Horizon’s reliability was the central issue, the prosecution did not disclose that the system had thousands of known errors, bugs or defects, needed up to 10,000 manual interventions a week and branch post office accounts could be changed remotely without the knowledge of sub-postmasters.

Still answerable to nobody.  A Government review of the IT scandal will not consider whether the Post Office deliberately concealed Horizon problems from criminal and civil courts.

Still huge losses for scandal victims. The Post office paid £57.75m to settle a High Court case it was clearly losing. But it was a minimal sum and left sub-postmasters, after costs, with huge deficits. The way the civil justice system works means sub-postmasters cannot recover the costs or claim them in follow-up civil actions. Scully has refused to pay the sub-postmasters’ costs which comprise £46m of the total £57.75m settlement payment. Ministers have said the settlement amount was not a matter for government – but the government owns the Post Office and has a seat on its board.

Peer Peter Hain

Former minister and now peer Peter Hain told the House of Lords last week,

“The Minister says that he does not want to interfere, but the Government are 100% owner of the Post Office—the Permanent Secretary of the department is its accounting officer and there is government representation on the board. The Government are ultimately responsible for this scandal. It is not good enough to keep delaying this with lots of process and reviews. They [sub-postmasters] must be compensated fully.”

Horizon bugs, errors and defects caused shortfalls or discrepancies numerous times.  The judge found that bugs, errors or defects of the nature alleged by sub-postmasters “have the potential” to cause apparent or alleged discrepancies or shortfalls relating to sub-postmasters’ branch accounts or transactions, and also that “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”.

No remorse for wrongful prosecutions? The Post Office specified in the settlement terms that its compensation was not intended for any convicted sub-postmaster.

Limited apology: the Post Office’s apology to sub-postmasters “affected” was vague and generalised; it did not say what, specifically, the Post Office was apologising for; and it referred to events “in the past”. The apology did not appear to cover the Post Office’s conduct during the litigation, which was between 2017 and 2019, and which was much criticised by the High Court. One critic’s view is that the main regret of the Department for BEIS is that the litigation laid bare Horizon’s faults and the concealment of them.

Judicial review on historical shortfall scheme?  As part of the settlement terms of the litigation last year, the Post Office has set up a Historical Shortfall Scheme to compensate sub-postmasters who say they were wrongly blamed for Horizon shortfalls. But the way the scheme has been set up may be the subject of a judicial review. Chirag Sidhpura, a former sub-postmaster, hopes to crowdfund his application for a judicial review. He says the historical shortfall scheme is fundamentally flawed, unfair and has closed prematurely given that the facts may be clearer after the Court of Appeal hearings.

 

Houses of Parliament

Photo by Michael D Beckwith on Unsplash

Ministers reject scandal victims’ every request.  Successive government business ministers, including the present ones, have refused every request of sub-postmasters including the return of their costs of exposing the Horizon scandal in the High Court.

Board place for postmaster a PR move? The Post Office’s place on the board for a postmaster is perceived as a good PR move that few outside the Post Office or civil service expect to make any difference.

Horizon problems still secret. The Post Office is still keeping secret Horizon Known Error Logs despite much specific criticism in the High Court about a lack of openness  over the logs. In July 2020, the Post Office refused a Freedom of Information request by Post Office critic and blogger Tim McCormack.

McCormack asked the Post Office for a “list of errors in Horizon that are due to be remedied in this next release and the notes held against these errors in the Known Errors Log”. Refusing his request, the Post Office said,

Questions  not answered. MPs on the BEIS select committee gave the Post Office a list of written questions on Horizon this year but did not always receive full answers.

Impossible to prove Horizon glitches on particular shortfalls?  The  Post Office said in a letter to MPs on 25 June 2020 that the litigation did not determine whether a Horizon glitch caused a particular shortfall in any individual case.

But sub-postmasters say nothing can be proved without the Post Office’s full disclosure of Horizon problems on the dates and times in question. A major point in contention at the High Court hearings was the lack of openness of the Post Office and Fujitsu over Horizon’s problems. Sub-postmasters cannot prove a particular Horizon glitch caused their shortfall if the Post Office does not disclose the relevant documents, they are no longer available, it cannot obtain them from Fujitsu or the documents don’t accurately show the effects of particular bugs on individual branch accounts.

Post Office CEO twice not given the full truth. If the Post Office’s own CEO was not told the full truth on Horizon, how were sub-postmasters to obtain the documentary evidence to establish that specific errors, bugs and defects caused their particular shortfall?

A large section of Mr Justice Peter Fraser’s judgment – about 12 pages – was devoted to “Inaccurate statements by the Post Office.”

In July 2016, the then CEO asked for an investigation into a sub-postmasters’ complaint about Horizon being the cause of her losses – as reported by Tim McCormack in his 2015 blog post the Dalmellington Error in Horizon.

But internally within the Post Office there was a high-level request for the CEO’s request to be stood down. A senior executive at the Post Office replied internally to the CEO’s request, “Can you stand down on this please? [A redacted section then follows] … My apologies.”

The judge said,

“I can think of no justifiable reason why the Post Office, institutionally, would not want to address the Chief Executive’s points and investigate as she initially intended, and find out for itself the true situation of what had occurred.”

It took many tens of millions of pounds to obtain a “yes” answer 

The CEO had also asked her managers whether it was possible to access the system remotely. The answer was “yes” – but it took several years, the Horizon litigation and many tens of millions of pounds to establish the “yes” answer.

The judge said,

“This trial has shown that the true answer to the enquiry she [the then CEO] made in early 2015 was “yes, it is possible.” It has taken some years, and many tens of millions of pounds in costs, to reach that answer.”

The then CEO’s question in 2015 was, “is it possible to access the system remotely? We are told it is.”

Her managers exchanged long emails on how to answer.  The CEO’s question was in the context of her forthcoming appearance before a committee of MPs. The Post Office had, for years, denied to Parliament and the media that it was possible for Fujitsu to access branch post office accounts. Prosecutions and civil cases to claim money from sub-postmasters had been based on sub-postmasters themselves always being responsible for Horizon’s output – which was untrue.

The judge said,

“… the Post Office has made specific and factually incorrect statements about what could be done with, or to, branch accounts in terms of remote access without the knowledge of the SPM [sub-postmaster]. The evidence in this trial has made it clear that such remote access to branch accounts does exist; such remote access is possible by employees within Fujitsu; it does exist specifically by design; and it has been used in the past.”

Post Office applied to remove the judge a day after Horizon’s chief architect confirmed Fujitsu had “remote access” to branch accounts. 

The judge noted that the Post Office applied to remove him as judge the day after Horizon’s chief architect, in cross-examination, had made it clear, not only that remote access existed, but after he was taken in careful cross-examination through specific examples of Fujitsu’s personnel manipulating branch accounts, and leading to discrepancies in branch accounts.

Fujitsu less than forthcoming –  judge. The judge said problems with Horizon would never have been revealed without the sub-postmasters’ litigation. He said,

“In my judgment, however, there are sufficient entries in the contemporaneous documents to demonstrate not only that Fujitsu has been less than forthcoming in identifying the problems that have been experienced over the years, but rather the opposite.
“The majority of problems and defects which counsel put to [Horizon Chief Architect at Fujitsu] and which were effectively admitted by him, simply would not have seen the light of day without this group litigation.”

Post Office’s “entrenched” view of Horizon.  The judge said,

“The problem with the Post Office witnesses generally is they have become so entrenched over the years, that they appear absolutely convinced that there is simply nothing wrong with the Horizon system at all, and the explanation for all of the many problems experienced by the different Claimants [sub-postmasters] is either the dishonesty or wholesale incompetence of the SPMs [sub-postmasters]. This entrenchment is particularly telling in the Post Office witnesses who occupy the more senior posts.”

Mr Justice Fraser described as “most disturbing” and “extraordinary” the concealment of Horizon problems while court cases in which the integrity of Horizon was a central issue were ongoing.

Jury not told of bug that corrupted branch accounts

As pregnant sub-postmistress Seema Misra waited for her Crown Court trial on charges arising from shortfalls shown on Horizon, she could not have known that a high-level meeting involving Fujitsu and the Post Office was taking place over a system bug that corrupted some post office branch accounts.

If disclosed to her jury, details of the bug could help establish her innocence. Unfortunately for her, the high-level meeting – and the bug – were kept confidential.

It was only many years after Seema Misra’s trial that details of the meeting came to light – and only then because of the High Court litigation. A note of the high-level meeting in 2010 warned of the impact of Fujitsu and the Post Office being open about the bug, which was called the “Receipts and Payments Mismatch Issue”. Mr Justice Fraser described the notes of the meeting as a “most disturbing document”. The notes warned,

  • If widely known [the bug] could cause a loss of confidence  in the Horizon System by branches
  • Potential impact upon ongoing legal cases where branches are disputing the integrity of Horizon Data
  • It could provide branches ammunition to blame Horizon for future discrepancies.

Mr Justice Fraser said of the memo,

“To see a concern expressed (in the memo) that, if a software bug in Horizon were to become widely known about, it might have a potential impact upon ‘ongoing legal cases’ where the integrity of Horizon Data was a central issue, is a very concerning entry to read in a contemporaneous document.
“Whether these were legal cases concerning civil claims or criminal cases, there are obligations upon parties in terms of disclosure. So far as criminal cases are concerned, these concern the liberty of the person, and disclosure duties are rightly high.
“I do not understand the motivation in keeping this type of matter, recorded in these documents, hidden from view; regardless of the motivation, doing so was wholly wrong. There can be no proper explanation for keeping the existence of a software bug in Horizon secret in these circumstances.”

Concealment

In proposing solutions to the Receipts and Payments Mismatch bug, the emphasis in the memo was on concealment. Indeed the confidential notes reveal that a risk with one of the solutions to the bug is that it could reveal the ability of Fujitsu’s IT specialists to change branch data without informing the branch – which for the next seven years, in statements to Parliament and the media, the Post Office would deny was possible.

The notes in 2010 said,

“RISK- This [proposed solution] 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.”

It was not until the High Court litigation that the Post Office conceded that Fujitsu had a back door through which its IT specialists could access the accounts of branch post offices without the knowledge of sub-postmasters.

Barrister Paul Marshall, who has written extensively on the Horizon scandal, says that Fujitsu’s back door to branch accounts undermines every prosecution that relies on Horizon data.

At Seema Misra’s trial, the prosecutor told Seema’s jury that any problems with Horizon would be visible to the sub-postmaster – although at the high-level meeting of Fujitsu and the Post Office a few weeks earlier it had been made clear the Receipts and Payments Mismatch bug would not be visible to sub-postmasters.

The prosecutor told Seema’s jury,

“The Crown say it [Horizon] is a robust system and that if there really was a computer problem the defendant would have been aware of it”.

Seema was charged with theft on the basis that there could be no other credible reason for Horizon to show shortfalls.  Her lawyers asked on three occasions for her criminal trial to be stayed as an abuse of process because of inadequate disclosure by the Post Office of Horizon data. But Recorder Bruce, Judge Critchlow and the trial judge, Judge Stewart, rejected each of those applications.

When sentenced, Seema Misra blacked out. She was given 15 months imprisonment. The jury trusted Horizon’s evidence.

Nine years later, in 2019, Mr Justice Fraser would find that the Horizon system in 2010, at the time of Seema’s trial, was not robust. The original Horizon system from 1999 to 2010 was “not remotely robust”, he said.  Horizon Online from 2010 to 2017 – latterly based on Windows NT 4.0  – was “slightly” more robust than the original Horizon but “still had a significant number of bugs” and “did not justify the confidence routinely stated by the Post Office (prior to February 2017) in its accuracy”.

More criticism – this time by Criminal Cases Review Commission. The Commission referred 47 Horizon cases to the Court of Appeal on grounds of “abuse of process”. 

The Commission said there were “significant problems with the Horizon system and with the accuracy of the branch accounts which it produced”. It added that there was a “material risk that apparent branch shortfalls were caused by bugs, errors and defects in Horizon”.

Further, the Commission criticised the Post Office’s failure to disclose the full and accurate position regarding the reliability of Horizon. It added that the “level of investigation by the Post Office into the causes of apparent shortfalls was poor, and that the [sub-postmasters] were at a significant disadvantage in seeking to undertake their own enquiries into such shortfalls”.

“The reliability of Horizon data was essential to the prosecution and conviction of the [sub-postmaster in question] and that, in the light of the High Court’s findings, it was not possible for the trial process to be fair,” said the Commission.  It added that it was an “affront to the public conscience” for the sub-postmaster to face criminal proceedings.”

Turning on a former colleague whose evidence exposed the full picture?

The judge said,

“Infallibility is a rare commodity, and everyone is capable of making mistakes. However, it is how one reacts to mistakes that is telling. In this instance, the initial reaction of the Fujitsu witnesses was to seek to shift the blame for their own misleading written evidence upon someone else. In this case, that “someone else” was their former Fujitsu colleague whose very evidence was responsible for exposing the full picture.”

Comment

“There is a lot of interest in this,” said government business secretary Alok Sharma in July when asked by MP Ruth Jones about a judge-led inquiry into the Post Office IT scandal.

Sharma was not talking about the take-up of loans to small businesses or a new type of smart meter.  The scandal is described by lawyers as the widest miscarriage of justice in England’s legal history. Is it surprising then that there is a lot of interest in a judge-led inquiry?

The instincts of former sub-postmaster Alan Bates who instigated the group legal action in the High Court against the Post Office have proven correct. He knew that he could not depend on the Parliamentary business establishment to expose the scandal or mitigate its effects.

The scandal continues

Indeed, the government review of Horizon announced by Scully and Sharma seems more likely to recommend tweaking the Post Office’s corporate governance than holding to account those who allowed sub-postmasters to go to prison on the basis Horizon was robust.

The scandal goes on: ministers express their confidence the Post Office will cooperate with a review. This is the same organisation that had not always given the truth to its CEO on Horizon, had tried to stop disclosure of relevant information to the High Court about Horizon, had tried to mislead the judge in the case and had not disclosed 5,000 “known error logs” until after the end of a Horizon trial that had focused on errors in the system. On what grounds do ministers now believe the Post Office, institutionally, has a genuine interest in cooperating fully with a review after 20 years of concealment?

For more than a decade, the Parliamentary business establishment has been close to indifferent about the scandal or, at best, knowingly naive. That establishment, understandably, wants the Post Office to flourish not collapse under the weight of a self-made scandal.  But government business officials and ministers seem to treat the Horizon scandal a little as if a large energy company’s billing system has issued some inaccurate bills.

Accountability?

Would a minister say, “there’s a lot of interest in this” if MPs had asked about other matters that warranted a judge-led inquiry, such as the Grenfell fire or failures at Mid-Staffordshire Hospitals?

The reason the Horizon scandal was allowed to happen was because the Post Office was answerable to nobody and was therefore unaccountable for its conduct. Can anyone, in truth, say it is now accountable?

At the BEIS committee hearing in July, business MPs – who have had 20 years to hold the Post Office to account, had the rare chance to question the business secretary Sharma. True, Sharma was not in office during the scandal but he is likely to have been briefed on it by his officials at some point this year. At the BEIS hearing, Sharma was asked just four questions about the Post Office IT scandal by two of the nine MPs at the hearing – and near the end of the session.

Sooner of later, ministers will need to show they care. Outside the Parliamentary business establishment, there is genuine concern: Boris Johnson called the Post Office IT scandal a disaster for sub-postmasters. Commons leader Jacob Rees-Mogg said of the Horizon matter there is “no worse scandal than imprisoning people or unjustly taking away their livelihoods when they are accused of crimes that they did not commit”. The Criminal Cases Review Commission, the High Court, the Appeal Court, sub-postmasters, the media and many MPs and peers have been forthright in their criticisms of the Post Office. But not the Parliamentary business establishment.

Journalist Nick Wallis was told by a government source that civil servants did not want even a review. “They wanted it all to go away.”

One thing is certain. Alan Bates will make sure the campaign for justice continues until sub-postmasters have at least been returned the money wrongfully taken from them.

The longer ministers keep their cheque books closed on the sub-postmasters’ losses the longer the campaign for justice goes on, as will the campaign to hold to account those who allowed miscarriages to happen, including at the Post Office and the Department for BEIS.

Government business ministers appear to believe that a public summary of the Post Office’s failings at the end of a government review into Horizon will give sub-postmasters the closure they crave. If ministers genuinely believe this summary can replace fair compensation, justice and accountability they are as naive as their predecessors.

It would take an afternoon only to write a summary of the Post Office’s failings from the litigation rulings. An afternoon’s work would save on the cost of a review. And just as pointless as a review.

No pain no gain

The obvious way to resolve the scandal now is for the right thing to be done – which will not be easy. It may be difficult and painful to come up with £46m to pay the sub-postmasters legal costs. But compare the difficulties of raising £46m with the years of suffering that an arm of the state has imposed on 1,800 or more sub-postmasters.

 

Martin Callanan, Post Office and BEIS minister in the House of Lords

Doing the wrong thing is carrying on with what is happening now: planning for a non-statutory review in which nobody is cross-examined and no documents can be demanded is easy. Writing a summary of the Post Office’s failings is easy. Going into the Lords and Commons and giving the same scripted answers whatever the question is easy. In the Lords last week, peers who briefly debated the Horizon scandal would have been better served by a cardboard cut-out of the government business minister, Martin Calllanan: a cut-out would not have raised expectations. It cannot be fulfilling for business ministers to go into the Commons or Lords and answer questions on Horizon by sounding like a pre-recorded voicemail message.

It took immense hard work and perception for Mr Justice Fraser, the judge in the litigation between sub-postmasters and the Post Office, to set out the legal position with such unsparing clarity. He was courageous too, say lawyers, because he took on an institution the size of the Post Office in a way other judges might have been reluctant to do.  Now it’s up to ministers. Their department can carry as now which will mean continuing to answer parliamentary questions and writing scripts for Horizon debates for years to come  … until, eventually, the right thing – the hard and painful thing – is done.

**

Crowd-funding appeal to support Chirag Sidhura’s application for a judicial review of Post Office’s historical shortfall scheme. 

They all wanted it to go away – Nick Wallis

The Great Post Office Trial – Nick Wallis’ beautifully-told story of the Post Office scandal, in a 10-part series on BBC R4. 

Fujitsu must face scrutiny following Post Office Horizon trial judgment – Karl Flinders, Computer Weekly An in-depth account of some misleading statements to the High Court.

Possible misconduct by prosecution – Second Sight paper to BEIS committee

Bates v Post Office Horizon judgment, December 2019

 

“Astonishing” – ministers approved £57.7m pay-out in Horizon IT scandal that was not intended for some sub-postmasters

Is it possible for an IT scandal to change the culture of an organisation that dates back to highwaymen and Charles the Second?

By Tony Collins

Business minister Paul Scully has said several times he is pleased with the £57.75m settlement between the Post Office and the businessmen and women who ran branch post offices –  sub-postmasters.

“I am pleased that a settlement was reached after many years and that the deadlock was broken.” was one comment to MPs,

For nearly 20 years, the Post Office had reacted forcefully to sub-postmasters who complained that the corporate accounting system Horizon was the cause of unexplained shortfalls. The Post Office treated them as thieves, liars, fraudsters or incompetents.

It was the same during two years of litigation in which 550 sub-postmasters argued in the High Court that the Post Office was wrong to use unfair contracts to hold them liable for erroneous shortfalls shown on a flawed  Horizon system.

Throughout the litigation the Post Office held that was robust. It attacked the credibility of the sub-postmasters’ lead claimants. Its counterclaim of fraud was the most serious accusation that could be made in the civil courts.

But almost overnight the Post Office seemed to change. The settlement it signed in December 2019 included an apology for past wrongs. But was this really a changed Post Office?

The Daily Mail said,

Daily Mail settlement

The Daily Telegraph said,

Telegraph

Now it has emerged that ministers approved a settlement whose specific terms were that the £57.75m pay-out was not intended for convicted claimants – although they are among the worst-hit victims of the Horizon scandal.

The settlement “deed”, which was agreed by both sides in the litigation,  said that the Post Office “has not made, or agreed to make, any payment to, or for, the benefit of any Convicted Claimant”.

Among the convicted claimants was Tracy Felstead. She was aged 19 when the Post Office’s investigations team wanted to interview her at 3am about Horizon IT shortfalls. She was later handcuffed and went to prison, one among many Horizon IT victims imprisoned for a crime she did not commit – on the basis of Horizon evidence that the courts accepted as trustworthy. But judges and juries were not told the system had thousands of undisclosed bugs.

Other convicted claimants whom the Post Office did not agree to include in the settlement pay-outs were pregnant Seema Misra and mother-of-two Janet Skinner who were jailed on the basis of Horizon system shortfalls they could not explain. Judges at their hearings were not told that Horizon shortfalls at branch post office could be created without their knowledge by software maintenance engineers working at a remote location for system supplier Fujitsu.

Julian Wilson

Another convicted sub-postmaster was Julian Wilson, a founder member of the Justice for Sub-Postmasters Alliance, which represents victims of the Horizon scandal. Had he lived – he died prematurely in 2016 still campaigning for justice – he would have been another Horizon victim who would not have been included in the terms of the settlement pay-outs. He and his wife Karen, a former policewoman, sold her engagement ring to help pay money a flawed Horizon system showed was missing. Julian Wilson pleaded guilty to false accounting rather than face jail for theft. False accounting was where a sub-postmaster had, sometimes on advice of the Horizon helpline, reset the system balance to zero after an unexplained shortfall. Had the system not been reset, the sub-postmaster would not have been open the branch post office next day for business. Many who ran branch post offices such as Julian Wilson, Janet Skinner, Jo Hamilton, Wendy Buffrey and Noel Thomas were encouraged to plead guilty to false accounting rather than face prison for theft. Janet Skinner went to jail anyway because the judge said the shortfall amounts were too large to merit a suspended sentence. Noel Thomas,too,  went to prison. Jo Hamilton was spared prison by spending her life savings and remortgaging to make good the discrepancy alleged to have arisen at her branch. Wendy Buffrey ended up losing her home and livelihood and moving in with her son, the Post Office having received on a court order proceeds from the sale of her home.

Cleared after 3-day trial

Sub-postmistress Nicki Arch was charged with fraud, theft and false accounting after being suspended and sacked over a discrepancy of £24,000. Shortly before the trial, the Post Office offered to drop the fraud and theft charges if she pleaded guilty to false accounting. She refused and was cleared after three-day trial but the experience has had a grim toll on her mental health.

Settlement deed

The Post Office acknowledged in the settlement terms that it could not stop non convicted sub-postmasters giving part of their share of the pay-outs to convicted claimants. But after costs, the £11m left over for pay-outs to non-convicted sub-postmasters covered only a fraction of their losses. Lee Castleton was one who lost hundreds of thousands of pounds because of the Horizon IT scandal.

The settlement “deed” said ,

“If, for reasons of expediency and to facilitate the settlement of the Action as a whole, those Claimants who are not Convicted Claimants elect to share any part of the Case Settlement Sum to which they may be entitled with any Convicted Claimant, though not giving  either express or implicit approval to such a course, the Defendant [the Post Office] acknowledges it is unable to prevent it.”

The n0n-convicted sub-postmasters in the litigation did indeed share with the convicted claimants some of what was left of the settlement pay-outs after costs, though the sums left to all were small.

Sub-postmasters won the litigation didn’t they?

Perhaps Scully was overly optimistic- or badly briefed – if he thought the settlement would change fundamentally the Post Office’s attitude to its legal opponents.

Since 1999, the Post Office had prosecuted up to 900 sub-postmasters and taken action against them in the civil courts to force them to make good discrepancies of sometimes of £50,000 or more shown on Horizon.

That the system was subject, intermittently, to producing erroneous figures, particularly when building work at a branch post office changed the local Horizon configurations, was obvious to MPs, peers, the media and to Post Office staff who wrote internal emails about the defects. Ernst and Young had reported on fundamental flaws in Horizon to the Post Office board in 2011. Later, forensic accountants Second Sight investigated in-depth more than 130 sub-postmaster cases and raised many concerns about Horizon but the Post Office’s board, operating as it did in a near-vacuum of Parliamentary accountability, continued to reject all criticisms of Horizon and sacked Second Sight.

Perhaps the reason ministers and civil servants in the business department always gave their full support to the Post Office, particularly when it was in contention with sub-postmasters over Horizon, was because Whitehall didn’t want to do anything to impede the institution’s anticipated commercial success.

But the lack of ministerial scepticism over the Post Office’s overt confidence in Horizon extended even to ministers transferring to the Post Office responsibility for answering Parliamentary questions – which effectively removed, at times, the Post Office from accountability to Parliament via ministers.

On 13 October 2009, Conservative MP Brooks Newmark asked “the Minister of State, Department for Business, Innovation and Skills [now Department for Business, Energy and Industrial Strategy] whether “he has received reports of errors in the Post Office Horizon system which have led to Postmasters and Postmistresses being falsely accused of fraud and if he will make  statement.

No evidence of Horizon accounting errors

The Post Office’s then managing director said in his reply that he had been asked to reply directly to the MP. His reply stated what has been the Post Office’s position for nearly 20 years. The Post Office’s then MD said,

“The Horizon computerised accounting system operates in around 12,000 Post office branches and processes up to 750 transactions a second at peak times … the system has proved to be very robust since its introduction some ten years ago.. our ongoing monitoring and control processes ensure that any performance issues are quickly identified and resolved at no detriment to individual postmasters. Over the years we have scrutinised many horizon transaction records to establish where a discrepancy in the branch accounting may have occurred. This takes place prior to notifying sub-postmasters that an error has been made at their branch and asking them to make good the loss as per the terms and condition of the sub-postmaster contract for service. Any sub-postmaster who is unhappy to accept a loss has the opportunity to provide evidence to support why believe they re not responsible for it… we do thoroughly investigate matters when they are raised with us but there has never been any evidence found that shows that the Horizon system has caused accounting errors.” In the ten years since Post Office Limited started using Horizon the integrity of the system has also been tested in both the criminal and civil courts and has not been found wanting. I am satisfied that there is no evidence to doubt the integrity of the Horizon system and that is robust and fit for purpose.”

 

Suicide

As evidence grew of countless miscarriages of justices – including wrongful imprisonments and unwarranted civil debts that led to bankruptcies and suicide – ministers still did not want to get involved. The Post Office seemed answerable to nobody.

Junior business ministers, on advice from officials, rejected every concern raised by James [now Lord] Arbuthnot who had complained repeatedly about Horizon and the Post Office’s  persecution of sub-postmasters.

But in 2017, 550 sub-postmasters fought back. Litigation funder Therium saw the strength of their case and backed sub-postmasters with tens of millions of pounds to sue the Post Office in the High Court.  One main aim was to prove it was Horizon causing the shortfalls and not theft and fraud by sub-postmasters.

Though Post Office managers and its board knew Horizon was not as robust as they claimed, they decided anyway to fight in the High Court to prove Horizon’s robustness and prove that the claimants in the case were liars, thieves, fraudsters or incompetents.

Throughout the two years of the litigation, ministers and civil servants were  briefed on the interim judgments the Post Office was losing. Still, ministers sided with the Post Office against sub-postmasters. Ministers rejected approaches from former sub-postmaster Alan Bates – a victim of Horizon – to intervene in the litigation and bring to an end the unnecessary costs to both sides of a case the Post Office was clearly losing.

But in September 2019, the Post Office had a new CEO Nick Read whose job, in part, was to settle the dispute. By December the litigation was all over. The animosity seemed to have disappeared.

Numerous bugs, errors and defects

Mr Justice Fraser

Mr Justice Fraser, the litigation judge, ruled that Horizon had numerous bugs, errors and defects that had, on numerous occasions caused shortfalls to appear on systems at branch post offices.

But since the settlement – which was specifically approved by ministers – the Post Office has gone on to make it clear it did not regard the litigation as exonerating individually any of the 550 individual sub-postmasters who were part of the case.

Post Office “intent on protecting” its interests

And in March 20202, Conservative MP Lucy Allan told MPs the Post Office has insisted that sub-postmasters who pleaded guilty to false accounting be excluded from having their cases considered by the Criminal Cases Review Commission.

She told the House of Commons on 5 March that, rather than learning the lessons and moving forward, as the Post Office suggests it has, “it is in fact still intent on protecting the interests of the institution at all costs”. She said,

Lucy Allan MP

“I understand from my discussions with representatives of the Post Office that it would prefer each case to be treated separately. They have said that the Post Office will insist that those who pleaded guilty to false accounting should be excluded from the [CCRC] process.”

Wholly wrong

“However, it seems to me that that should not be a matter for the Post Office to involve itself in. Should the cases be referred by the CCRC to the Court of Appeal, the Post Office will be a respondent. It would be wholly wrong for the Post Office to be involved in any decisions around the mechanisms for the quashing of the convictions, given that the convictions are of people whom it sought to prosecute.”

Allan added that a Post Office representative had told her he doubted many cases will be referred to the Court of Appeal and that those that do are unlikely to succeed.

“Astonishing” and “offensive”

On the clauses in the settlement deed that specified the Post Office’s intention not to include convicted claimants in the pay-outs,  Conservative MP Kevin Hollinrake, co-chair of an all-party Parliamentary group on fair Business Banking, has written to Darren Jones MP, chair of the House of Commons’ Business, Energy and Industrial Strategy  Committee.

Kevin Hollinrake MP

His letter says,

“… while many assumed that the Post Office paid about £58 million (the vast majority of which went to pay costs and expenses) in compensation to its sub-postmasters and sub-postmistresses, including to those who had been convicted and imprisoned as a result of its seriously flawed prosecutions, this assumption is incorrect.

“Astonishingly …it was agreed that the Post Office was to pay no compensation at all to claimants in the Bates v Post Office litigation who had been convicted of criminal offences… Putting to one side any legal justification for that extraordinary outcome (none being immediately obvious), it is one that will offend anyone with a sense of justice. Many of those convicted and imprisoned, perhaps understandably, have suffered serious ill-health, including mental illness, as a consequence.”

Herbert Smith Freehills solicitors

The all-party group criticised the involvement of the Post Office’s solicitors Herbert Smith Freehills in the settlement agreement and in the Post Office’s subsequent Historic Shortfall Scheme which is reviewing up to 900 cases in which sub-postmasters were prosecuted on the basis of Horizon evidence.

Herbert Smith Freehills said there was no conflict.

The all-party group compared the Horizon IT scandal to one involving HBOS Reading. Hollinrake said,

“In both cases, the larger corporation knowing that an injustice had occurred chose to pursue the victims and bury the issues rather than deal with the underlying problem.”

Why did ministers approve a settlement that gave little to victims? 

Arguably, the Horizon settlement was more of a victory for the Post Office and government than the litigants.

By December 2019, it was clear that the Post Office had failed to establish that Horizon was robust, as it had claimed for nearly 20 years. The case had also left the Post Office’s corporate reputation and credibility in tatters because of a series of disclosures and comments by a High Court judge and an Appeal Court judge.

Had the litigation gone to its full term and the Post Office had continued to lose every main judgement, it would have faced paying each of the 550 litigants about £700,000 each, which was an assessment carried out by lawyers years before litigation on typical losses from wrongful prosecutions and civil court claims.

Therefore, if the litigation had gone the full term, the Post Office and the government faced possible compensation claims of £385m plus the costs for both sides of an estimated £150m. Instead, the settlement meant that the Post Office paid only £57.75m which included the other side’s costs. It left the sub-postmasters with only £11m between them and the terms of the settlement did not specifically exonerate any of the 550 litigants.

Why victims had to settle

For the sub-postmasters, they had little choice but to accept the settlement. With ministerial agreement, the Post Office had run up huge legal costs for both sides – £89m at the time of the settlement. The Post Office had launched three appeals and tried to remove the judge near the end of a long Horizon trial which would have needed re-hearing had the Post Office’s “recusal” application succeeded. Had sub-postmasters not accepted, incessantly soaring costs could have put their funding at risk.

Post Office response

Campaign4Change asked the Post Office about the settlement terms. We asked why the litigation settlement specified that the Post Office would pay no compensation to all convicted claimants which may indicate to some that the Post Office has no sympathy with those whose lives have been ruined by wrongful prosecutions and/or convictions. The Post Office replied,

“The Post Office paid a global sum of £57.75m as part of the agreed settlement in the litigation.  Individual payments are a matter between the claimants and their legal representatives and not something over which Post Office has power or control.”

Comment

The Horizon IT scandal in one sentence – the Perfect Storm.

The term “Perfect Storm” usually means the confluence of particularly unfavourable circumstances which usually have a grim or tragic outcome. The following sentence/paragraph may help to summarise the scandal. It describes events that may be little understood by business ministers and officials …

Horizon IT scandal – the Perfect Storm:

Businessmen and women, who invested typically £100,000 buying branch post offices with attached shops, were held to unfair, non-negotiable contracts, sometimes with unseen and unsigned terms, that made them liable to summary dismissal, prosecution, imprisonment and huge debts in the civil courts on the basis of whatever incorrect figures were shown on a branch accounting system Horizon whose owner,  Post Office Limited, acted at times as if answerable to nobody and hid documents detailing numerous software defects while claiming the system was robust, which went unchallenged by the courts and juries because of a major flaw in the criminal justice system – a presumption – that encouraged remarkably naïve judges to treat complex computer systems subject to intermittent error much like mechanical clocks that either worked or didn’t work. 

Certain Abuses in the Post Office, 1787 (spotted by Horizon IT justice campaigner and researcher Eleanor Shaikh)

It has emerged that scandals are not new to the Post Office. More than 200 years ago, according to a book spotted  by researcher and justice campaigner Eleanor Shaikh, the House of Commons was investigating a cover-up and improper conduct at the Post Office.

That 233 years later a High Court judge, Mr Justice Fraser, would be delivering a ruling that found a cover-up and improper conduct at the Post Office may therefore not be a complete surprise.

It is more surprising that ministers who have had the Post Office in their remit have, for 20 years, always sided, and without any exceptions, with the Post Office against sub-postmasters. They are still siding against the sub-postmasters.

Ministers supported the Post Office throughout a long, wasteful, hugely expensive litigation that ought not to have been necessary had ministers and civil servants properly held the Post Office to account.

Even in the settlement that is now proving controversial, ministers gave it their approval and now are siding against sub-postmasters by rejecting their request -which is backed by about 100 MPs and peers – for a judge-led inquiry into the Horizon scandal.

Nobody can expect the Post Office to change permanently the attitudes and culture that have become embedded since the days of highwaymen. It is almost unimaginable that in 50 years time the the Post Office will be anything but self-protective, secretive, resentful of criticism and ill-at-ease with any Parliamentary scrutiny.

Indeed, if not for Alan Bates (with his extraordinary legal team led by Patrick Green QC),  together with the judgments of Mr Justice Fraser, ministers and the Post Office could still be saying that Horizon is well tested and proven system that over 20 years has never been found wanting by civil and criminal courts

Thanks to the litigation,  sub-postmasters’ unfair contracts are no longer enforceable. But what else has has changed? Perhaps the Post Office’s investigation branch that dates back to Charles the Second has, culturally, not changed a great deal. A rare tape of an investigation interview, obtained by journalist Nick Wallis, shows how the ordeal brought sub-postmistress Sarah Burgess-Boyd to tears.

Today’s scrutiny of the Post Office – still a remarkable lack of scepticism among junior ministers and officials?

The Post Office appears to have less scrutiny today than in 1787. At that time, its conduct and affairs were being investigated by the House of Commons which produced a detailed report. Today, the House of Commons Business, Energy and Industrial Strategy Committee has held an inquiry into the Post Office Horizon scandal but has not even interviewed the Post Office’s CEO, except by sending a letter with some written questions. At a hearing on 9 July 2020, the Committee asked Business Secretary Alok Sharma only four questions on the Horizon scandal and seemed to accept his answers in which he rejected calls for a judge-led inquiry.

Reform

Changing the Post Office culture fundamentally is probably not doable but a wholesale reform of Parliamentary accountability of the Post Office is possible –  at least to restore levels of scrutiny to those that existed in 1787.

Unless there is reform, business ministers will continue to show deference to whoever is currently running the Post Office. Indeed, the current business ministers have said more in praise in the current Post Office administration than in criticism of past regimes.

Wasteful and pointless

When in March this year, junior business minister Paul Scully, was asked by an MP if he would give a commitment to holding an inquiry into Horizon, he replied,

“We will certainly look at how we can keep the Post Office on its toes in the future and look back and learn the lessons from that.”

Scully’s proposed review of the Horizon scandal is a pointless, wasteful and self-contemplative distraction  from what it really needed: a judge-led inquiry into Horizon that includes a look at the lack of effective oversight of the Post Office.

Anything less and we may ask Commons’ leader Jacob Rees-Mogg, who has a thorough understanding of the Horizon IT scandal, if he can begin a campaign to restore levels of Parliamentary scrutiny of the Post Office that existed n 1787.

**

Journalist Nick Wallis’ remarkable BBC Radio 4 documentaries on the Horizon IT scandal – the Great Post Office Trial

Barrister Paul Marshall’s paper on the Lee Castleton case in the context of the Horizon IT scandal – The harm judges do – misunderstanding computer evidence: Mr Castleton’s story

Paul Marshall has also written a paper on the Horizon IT scandal for the Justice Committee that is a particularly useful summary of the matter.

Why have junior ministers – but not Rees-Mogg or Boris Johnson – played down Post Office’s role in Horizon IT scandal?

By Tony Collins

To  Commons’ Leader Jacob Rees-Mogg and prime minister Boris Johnson the Horizon IT scandal could hardly be a more serious matter.

Johnson described locking up people, removing their livelihoods and making them bankrupt on account of the output of a flawed computer system as a “disaster” and a “scandal”.

Rees-Mogg said of the Horizon IT affair that there is “no worse scandal than imprisoning people or unjustly taking away their livelihoods when they are accused of crimes that they did not commit”.

But junior ministers sum up the injustices using an agreed form of words that repeat the Post Office’s own explanation of its role in the scandal. That form of words – “got things wrong” – implies that the Post Office merely made mistakes.

Post Office chairman Tim Parker said,

“We accept that, in the past, we got things wrong in our dealings with a number of postmasters …”

Paul Scully MP, business minister who wants an “independent” review and doesn’t support a judge-led inquiry into the Post Office Horizon IT scandal

The words “got things wrong” have since been repeated by junior ministers Paul Scully at the Department for Business, Energy and Industrial Strategy, which helps to fund the Post Office, his predecessor Kelly  Tolhurst  and Alex Chalk, a junior minister at the Ministry of Justice.

But lawyers say that “got things wrong” goes nowhere near explaining the Post Office’s withholding of relevant evidence of Horizon’s flaws and weaknesses from courts, judges and juries,  thus allowing people to go to prison on the basis of data from a flawed system. Nor do the agreed words explain the following up of prosecutions with civil court action to claim tens of thousands of pounds from the accused.

Barrister Paul Marshall, who has published papers on the Post Office IT scandal, describes the institution’s conduct as “mendacity on an epic scale”.’

Complicit 

In a detailed letter to Darren Jones MP, chair of the Business, Energy and Industrial Strategy Committee, Marshall said that the words “got things wrong” were “scarcely adequate to the circumstances and might, to those whose lives have been destroyed by the conduct of the Post Office, appear offensive”. He added that the words suggested a “conspicuous lack of understanding or worse”.

He said ,

“… the temptation to underplay the seriousness of what has happened runs the risk of the government becoming complicit in the Post Office’s wrongdoing, after the fact. Such an outcome will be very damaging to the government, given the seriousness and extraordinary scale of wrongdoing by the Post Office …”

Julian Wilson

The scandal involved hundreds of people who had run branch post offices experiencing unexplained IT-related discrepancies on their accounts for which the Post Office held them liable. Every sub-postmaster had to use the Post Office “Horizon” branch accounting system which was introduced in 1999.

A typical case was that of Julian Wilson, an orchestra conductor who had also run several companies. In 2002, he and his wife Karen,  a former policewoman, decided to buy a local post office and shop where Karen grew up. They paid  about £100,000.

When Horizon kept showing money was missing,  Julian spoke to Post Office staff but nobody wanted to know, Karen told the Daily Mail. The couple started making up shortfalls out of their own pockets. But the shortfalls turned into thousands of pounds.

 Does “got things wrong” explain what happened next?

“I sold every piece of jewellery we had, including my engagement ring, to make up the losses. It broke his heart,” said Karen.   In the end, they [the Post Office] confiscated our house, the car, the business and they told Julian he could go to prison for six years for theft or plead guilty to £27,000 of false accounting.”

To avoid prison, Julian Wilson pleaded guilty to a crime he had not committed.

On the day of his sentence many villagers turned up in support and even the judge seemed surprised.  “This is a sad day,” said the judge. “The villagers have said what an honest man you are.”

Julian cleaned graves as part of 300 hours of community service. His probation officer told him, “You shouldn’t be here.”  He had never been given a parking ticket, said Karen.

Julian joined Justice for Sub-postmasters Alliance in the hope of clearing his name but he died prematurely of cancer which Karen attributes to the stress of the Post Office’s “ruthless” actions against him. He did not live to see sub-postmasters prove in the High Court last year that Horizon was not remotely robust and that Horizon had thousands of bugs and errors that had, on numerous occasions, altered branch post office balances without the sub-postmasters’ knowledge.

Does “got things wrong” fully explain what happened to this sub-postmistress?

Last week, Neil Hudgell of Hudgell solicitors wrote of the case of Teju Adedayo who, like Julian Wilson, pleaded guilty to offences she hadn’t committed. Hudgell says,

“As weekly accounts at her Gillingham post office showed an unexplained and increasing shortfall, she says she repeatedly asked for help and investigation from Post Office officials  only to be told to  ‘rollover’ the shortfall and that the accounting system would resolve itself in time.”

It didn’t, and when the shortfall reached £50,000, she says she found herself facing “aggressive” demands to pay the money.

“Unable to explain the losses, Mrs Adedayo says she was told to make up a story as to where the money had gone, and that if she tried to blame the Post Office’s IT accounting system, Horizon, she’d likely go to jail.

“Having ‘made up’ a story that she had stolen the money to pay back loans from relatives, she was given a 50-week sentence, suspended for two years. She was ordered to complete 200 hours under a community punishment order for false accounting and theft in 2006.”

She and her husband then had to remortgage their family home to raise funds and pay off the £50,000 which the Post Office claimed was missing.

Broken

She has been unable to find new work due to her criminal record.

I’ve been completely broken by this, particularly by how this has impacted on my family and the unbearable shame it has brought on us all, me being convicted of such crimes.

“I have thought about ending it all on many occasions. The shame is linked to me and I have always worried about how that impacted on our three children, who were all very young at the time. They have seen how it has destroyed our lives, and although it was never my fault, I feel ashamed that they had to experience all of this.”

An agreed form of words

Below are some of the statements in which Post Office executives and ministers have used the words “got it wrong” to explain the Horizon affair.

On 6 July 2020 Labour’s Chi Onwurah asked Alex Chalk, a junior minister in the Ministry of Justice, about a flaw in the criminal justice system – called a “presumption” – that contributed to the Post Office Horizon scandal.

Chalk replied,

“Post Office Limited has accepted that it got things wrong in the past in its dealings with a number of postmasters and has apologised… this apology is only the start of a process of real change in the Post Office so that this situation is never repeated again.”

More than two months earlier, Paul Scully replied to a question by Labour’s Kevan Jones. Scully said,

“Post Office has accepted – on the Horizon Accounting System – that it got things wrong in the past in its dealings with a number of postmasters and has apologised. This apology is only the start of a process of real change in the Post Office so that this situation is never repeated again.”

Nick Read, CEO of the Post Office, told MPs of the Business, Energy and Industrial Strategy committee in a letter last month,

“We accept that we got some things wrong in the past.”

On 25 January 2020, Kelly Tolhurst, Scully’s predecessor at the Department for Business, Energy and Industrial Strategy – BEIS – said,

“… the Post Office accepted and recognised that in the past they had got things wrong in their dealings with a number of postmasters and apologised …”

Comment

The words Boris Johnson and Jacob Rees-Mogg use to describe the Horizon IT scandal rightly acknowledge the scale and human consequences of what lawyers describe as the most extensive miscarriage of justice in British legal history.

On the other hand, the words of junior ministers and the Post Office – “got things wrong” – sound like a teacher’s explanation of why a pupil failed a multiple-choice maths paper.

Is this right?

It is understandable that junior ministers with a responsibility for the Post Office’s commercial success don’t want to be seen to be too critical. They have to work with the Post Office. They don’t have to work with sub-postmasters. They know the Post Office is a cash-intensive business and that money can be stolen. Perhaps they believe that only the integrity of the Horizon accounting system stands between a public institution’s commercial success and oblivion.

But to deny the corporate system’s flaws for nearly 20 years and  thereby allow the destruction of the lives of hundreds of innocent people is to lose perspective. How can pretending a corporate computer system is robust be more important than peoples’ lives?

Horizon’s errors

This scandal is not about mistakes and the lessons to be learned. If you withhold relevant evidence from the defence, what lesson can be learned other than “Don’t withhold relevant evidence from the defence?”

As barrister Paul Marshall points out, this scandal is about denying to defendants, in civil and criminal proceedings, access to error records for Horizon that logged faults, errors and bugs.

There were thousands of these records. When eventually the records came up for discussion in the High Court last year, the Post Office questioned whether they existed and, when their existence was established, the Post Office challenged that they had any relevance and, when found to be relevant, the Post Office contended that they were not its, but Fujitsu’s documents, and therefore couldn’t be provided.

mr-justice-fraser-1

Mr Justice Fraser

But the judge, Mr Justice  Fraser, found that those Known Error Logs and “PEAKS” – narrative explanations of Known Error Logs – were of fundamental importance in his conclusion that Horizon, in its “Legacy” version up to 2010 and its subsequent “Online” version,  were not reliable.

This was not a question of making mistakes. The judge concluded the Post Office’s approach “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”.

Denying to the defence in criminal and civil cases such fundamentally important documents as known error logs and information on the effects of bugs, revealed an abuse of the court process by the Post Office.  About 5000 Known Error Logs were not disclosed until late 2019 – after the High Court Horizon Issues trial had concluded.

Wise words

Junior ministers would be advised to read the following concluding remarks of Justice Owen, in his inquiry into a scandal in Australia. In words that have since become famous in legal ethics, he wrote:

“From time to time as I listened to the evidence about specific transactions or decisions, I found myself asking rhetorically: did anyone stand back and ask themselves the simple questions – is this right?

This was by no means the first time I have been prone to similar musings. But I think the question gives rise to serious thoughts… Right and wrong are moral concepts, and morality does not exist in a vacuum. I think all those who participate in the direction and management of public companies, as well as their professional advisers, need to identify and examine what they regard as the basic moral underpinning of their system of values. They must then apply those tenets in the decision-making process. …. In an ideal world the protagonists would begin by asking: is this right? That would be the first question, rather than: how far can the prescriptive dictates be stretched?

The end of the process must, of course, be in accord with the prescriptive dictates, but it will have been informed by a consideration of whether it is morally right. In corporate decision making, as elsewhere, we should at least aim for an ideal world. As I have said, ‘corporate governance’ is becoming something of a mantra. Unless care is taken, the word ‘ethics’ will follow suit.”

There isn’t a hint it will happen or even could happen but perhaps Paul Scully and his boss, business secretary Alok Sharma, ought to ask themselves whether it is right and ethical that, given their responsibilities for the Post Office and a department that is implicated in the scandal, they and their officials are even peripherally involved in deciding on a “review” of the scandal, appointing its chairman and setting its terms of reference.

What now is right and ethical?

Isn’t it time that, after 20 years, ministers stopped repeating the Post Office’s own words and instead took a stance that was unequivocally right and ethical?

It is right and ethical – at the very least – to pay sub-postmasters in full the money the Post Office has taken from them.

It is right and ethical – at the very least – to clear the names, en masse, of all sub-postmasters convicted on the basis of evidence from the flawed Horizon system and to stop trying to delay justice even longer by looking at each case individually.

It is also right and ethical that junior ministers no longer treat with disdain requests by hundreds of victims of the Horizon scandal (as well as 75 MPs and dozens of peers) for a judge-led inquiry.

It is natural for civil servants not to want an inquiry’s cross-examination of witnesses or the other awkward accoutrements of a proper inquiry, such as the disclosure of emails between officials and the Post Office;  and of course civil servants would rather a review that is all over and done with as soon as possible. But, after 20 years, sub-postmasters do not need a last-minute push for an official version of the truth that excludes more than it includes.

Pride

Any day now, ministers will announce with pride their choice of person to chair a review that nobody but they and their officials want. What chance is there ministers will first, as Justice Owen would suggest, stand back and ask themselves the simple question: is this right? 

If they do ask this question – and they probably will not – the obvious answer would be: no – nothing other than a judge-led inquiry will do.

Thank you to Nick Wallis whose coverage of the trial has contributed hugely to public and media knowledge of the Post Office IT scandal and to Karl Flinders whose numerous exclusives have been invaluable source material for the IT  industry, researchers, justice campaigners and Campaign4Change posts. 

Ministers agreed with stepping up High Court fight against Horizon IT victims, which added millions to their costs.

By Tony Collins

Department for BEIS

Millions of pounds that could have been offered to victims of the Post Office Horizon IT scandal to help towards their costs of unearthing the truth, went instead on stepping up a fight against them in the High Court, with the full agreement of ministers and officials, it has emerged.

Business minister Paul Scully last month distanced government from the litigation between sub-postmasters and the Post Office over its Horizon IT system. He said that government cannot pay compensation because it was not a party to the litigation.  On 22 June 2020, Scully wrote to former sub-postmaster Alan Bates, who led the litigation. In the letter, which is likely to have been drafted by his officials at the Department for Business, Energy and Industrial Strategy, Scully said,

“Unfortunately, as stated in our previous correspondence, Government cannot accept any requests for payment as it was not party to the litigation, which has now been settled.”

But it has emerged that ministers last year were advised on the litigation and supported continuing it despite a “Commons Issues” judgment in March 2019 that showed the Post Office was losing the case.

Non-intervention

Ministers could have intervened at that stage because, under Treasury guidelines, Whitehall can step in when arm’s length bodies such as the Post Office “fall into disrepute”.

mr-justice-fraser-1

Mr Justice Fraser

The March judgment could hardly have been more disparaging and wide ranging in its criticisms of a public institution. The judge, Mr Peter Fraser, found that the most senior Post Office witness had tried to mislead him. He also criticised the truthfulness of other Post Office witnesses.  He said some Post Office evidence in the litigation seemed to have its origin in a parallel world.

Despite the March 2019 judgment, the Post Office – with the support of officials and ministers – stepped up the legal action, changed its litigation strategy, replaced its lawyers (see notes below), tried to have the judge removed and launched three appeals which delayed hearings and added millions of pounds to the costs of both sides. In taking the further actions, the Post Office attracted more strident criticism from the High Court.

Litigation must run its course, says minister

Ministers at the time were advised of the litigation strategy and change of lawyers, according to a Parliamentary reply to campaigning peer Lord Arbuthnot.  It has further emerged that ministers and civil servants at the time refused Bates’ advice to commission their own independent check on what the Post Office was telling them.

One minister with responsibility for the Post Office, Kelly Tolhurst,  wrote to Bates at the time of the Horizon trial last year. Her letter, which is likely to have been drafted by officials at the Department for BEIS, said,

“lt is important that the court process be allowed to run its course in order to finally resolve those issues.”

Tolhurst also said in the same letter,

When the case eventually settled in December 2019 –  eight months after the Commons Issues judgment – the total costs for both sides were £89m. Sub-postmasters had little choice but to accept the settlement because, unlike the Post Office, their future funding was uncertain. But the settlement left many of the litigation’s 550 sub-postmasters with losses of tens or hundreds of thousands of pounds.

The government approved the settlement.

Maladministration?

Had the case settled at the time of the Common Issues judgment, sub-postmasters could have saved millions on their own legal, funding and insurance costs and the Post Office, for its part,  could have offered them the millions of pounds it was  expecting to spend on continuing the litigation.

But intensifying the legal fight despite a judgment showing the Post Office was clearly losing the case as a whole, may add fuel to a proposed complaint of maladministration against the Department for Business, Energy and Industrial Strategy.  Bates has raised more than £103,600 for a QC’s complaint to be made against the Department for BEIS.

Critics may also say that the government’s support for the Post Office’s stepping up litigation against the sub-postmasters after the March judgment implicates the Department for BEIS in the Horizon IT scandal and highlights a clear conflict in the Department’s involvement in rejecting a judge-led inquiry, choosing a “review” instead and then writing its terms of reference and choosing the person to chair it.

Comment

A particularly grievous part of the Horizon scandal is the Post Office’s having at its disposal seemingly unlimited tens of millions of pounds for its own legal costs but, when it came to a settlement figure, the Post Office could not find the money to cover the sub-postmasters’ losses and costs, let alone pay them any compensation.

In 2010 the Justice for Sub-postmasters Alliance, founded by Alan Bates, accused the Post Office of a “vindictive” attitude towards sub-postmasters who had challenged Horizon’s reliability. Has much changed in the following 10 years?

The amount sub-postmasters had to agree in the settlement was barely enough to cover their legal and funding costs: it was only because the sub-postmasters’ lawyers, funders and legal insurers reduced their fees in sympathy that the victims received £11m between them – which still left each of them with huge losses.

The unfortunate non-intervention by ministers and civil servants after the judgment in March 2019 and indeed their support for continuing the wasteful and costly litigation is compounded by Scully’s statement this year that government could not pay compensation because it was not a party to the litigation.

Conflict of interest

All this shows, if nothing else, the clear conflict of interest in Scully, as a BEIS minister, choosing a “review” over a judge-led inquiry and the involvement in the Department for Business, Energy and Industrial Strategy in choosing the review’s chair and terms of reference.  Those conflicts of interest are obvious enough to be described as flagrant.

The Department of BEIS’s ministers and its officials have, by their non-intervention, cost victims of the Horizon scandal millions and possibly tens of millions of pounds.

They and the Post Office have left the victims of a computer system’s untrustworthy output living in near poverty instead of in comfort, with solid businesses, finances, homes, pensions and reputations.

Today’s business ministers and officials ought to reflect when in their jobs and when going home at night, on the sub-postmasters who tried to go to sleep wondering what would happen to their children if they went to prison for crimes they did not commit.

Junior ministers and civil servants are the last people to be deciding, against countless objections by MPs, peers and sub-postmasters, on holding a mere review.

Is it not enough that victims of Horizon have had an arm of state ruining their lives without having another part of the state denying them fair compensation, refusing a judge-led inquiry and rubbing their noses in its power to indulge in clear conflicts of interest?

**

Nick Wallis’ remarkable series on the Horizon IT scandal – The Great Post Office Trial – BBC Radio 4

Notes:

Two ministers’ letters – two accounts

Below is an excerpt from a letter by business minister Paul Scully, whose remit includes the Post Office,  to Alan Bates in June 2020. It distances government from the Bates v Post Office litigation …

Scully govt not part of litigation

Below is an excerpt from Scully’s predecessor Kelly Tolhurst in June 2019, during the Bates v Post Office litigation. It expresses support for continuing the litigation (which ended up adding unnecessary millions of pounds to costs for both sides).

Kelly Tollhurst 2

Ministers not a party to the litigation?

Below is a Parliamentary reply on 6 July 2019 to campaigning peer Lord Arbuthnot. POL is Post Office Limited …

Lord Callanan

Was even the judge, Mr Justice Fraser, surprised the case wasn’t settled after his March 2019 judgment?

Before the “Horizon” trial started last year, the judge Mr Justice Fraser had already found, in his “Common Issues” judgment, that “a number of people within the Post Office” realised that there were “difficulties with the Horizon system”. But he also noted that the Post Office had an “entrenched” view, formed over years, that there was nothing wrong with Horizon – a view ministers and civil servants seemed to have accepted by allowing the litigation to continue.

How much, if at all, has the PO’s atttitude changed since 2015?

In 2015, Conservative MP Andrew Bridgen said the Post Office had an attitude towards sub-postmasters that made the organisation unfit to hold an inquiry.

He quoted a Post Office spokesman as describing what had happened to sub-postmasters as “lifestyle changes”.  Bridgen said,

“When we hear a Post Office spokesperson stating, ‘I am really sorry if people have faced lifestyle problems as a result of their having been working in Post Office branches’, we have to wonder whether the organisation is even aware of the misery it has caused. The fact that Post Office Ltd believes that honest, decent, hard-working people losing their homes, their businesses, their savings, their reputation and, worst of all, in some cases their liberty can be quantified as a ‘lifestyle change’ only serves to show that the organisation is not fit to conduct an inquiry into the matter.

“The Post Office mediation scheme has proven to be a sham, Second Sight [forensic accountants] has proven to be far too independent for the Post Office to stand, and the disdain that has been shown to members of this House and to sub-postmasters is a disgrace.”

One of Horizon’s victims was sub-postmaster Julian Wilson. His wife was convalescing from a tumour and her father had been diagnosed with terminal cancer. After Horizon showed shortfalls that were not of his making, the Post Office took legal action. He not want to put his family under strain and  pleaded guilty to false accounting to avoid the accusation of theft.

He was diagnosed with cancer and died prematurely.  Time ran out before he was able to clear his name.  Would the description “lifestyle problems” have been adequate to cover his conviction for a crime he didn’t commit?

It may be supposed that the Post Office would want today, after the High Court’s extensive criticism of its conduct and lack of truthfulness, to do all it could to make amends, at least financially, for its destruction of lives such as Julian Wilson’s. But, in fact, the Post Office regards the litigation judgments as having cleared none of the 550 litigants. This means that Julian Wilson, a founding member of Justice for Sub-postmasters Alliance who would have been a litigant had be lived, would, in the eyes of the Post Office, still be a convicted criminal.

How much has changed since the Post Office described the misery caused by Horizon as “lifestyle problems”?

2015 to 2020 – ministers are still siding with the Post Office

In 2015, in the House of Commons, a minister in what is now the Department of Business, Energy and Industrial Strategy rejected MPs’ calls for a judge-led inquiry into the Horizon scandal. The minister at the time, George Freeman ,said,

“… it remains the case that there is no evidence that the Horizon system is flawed. If any individual feels that their conviction is unsafe, they can pursue the legal avenues available to them. I do not see any reason for the Government to intervene in this matter by instigating a full judicial inquiry.”

Conservative MP Andrew Bridgen said at the time,

“It appears to me that it is indeed now sunset for the Horizon system.. the matter must now be taken away from the Post Office and a judicial inquiry set up. The Post Office has abused its privileged position and sought to cover up its failings by way of a wholly non-transparent approach to the mediation process.”

**

After 20 years of the Horizon IT system claiming victims that now are thought to number more than 1,000 former sub-postmasters, not one of them has yet had his or her name publicly cleared.

Hundreds of reviews of the Post Office’s Horizon IT went nowhere. Hundreds more are planned. Are reviews galore integral to the scandal?

By Tony Collins

Alan Bates first wrote to Computer Weekly in 2004, at the start of what would become an extraordinary campaign to expose the full truth about problems with the Post Office Horizon system.

He said in his 2004 letter that, as a sub-postmaster, he had complained to the Post Office about its Horizon computer system and the response each time was to launch a review. The reviews led nowhere and the Post Office terminated his contract.

He said, “We have lost our investment and livelihood by daring to raise questions over a computer system we had thrust upon us …”

Bates had asked the Post Office, in vain, if he could see the Horizon data that was underpinning the allegation against him that money was missing. But he found at the time – and since – that the Post Office was avoiding straight answers to his questions and was secretive.

“Even when very simple and straightforward questions are presented to them via my MP they have sidestepped them,” said Bates in 2004.

A minister had looked into his complaints and “could find nothing wrong”. In a portentous remark, Bates said in his letter, “I fully expect it to take a number of years to bring Post Office Ltd to account for what they have done to us, but we are determined to do it.”

Countless Horizon reviews

As in Bates’ case, hundreds of other indvidual Post Office reviews into Horizon complaints over more than a decade were of no advantage to sub-postmasters. In 2015, a minister ordered a review of Horizon complaints. It was overseen by a QC and also led nowhere.

Separately the Post Office commissioned forensic accountants Second Sight to conduct an independent review into sub-postmasters’ concerns about Horizon. Even though the Post Office didn’t provide the information Second Sight had requested, its investigation still uncovered flaws in the system – whereupon it was sacked.

Now hundreds more reviews of Horizon are planned. In April 2020, the Post Office told journalist Nick Wallis that it was carrying out reviews on 500 potentially unsafe prosecutions of sub-postmasters. The prosecutions were based on questionable Horizon data. Then the Post Office said  it had found a further 400 potentially unsafe prosecutions to review – 900 in total. Each case is being reviewed individually.

Meanwhile business ministers Paul Scully and Alok Sharma have announced a review into Horizon.

They describe it as independent but it has much less credibility in the eyes of sub-postmasters than Second Sight’s investigation in 2015 which involved all relevant parties, particularly victims of the scandal. In contrast, the main participants in Scully and Sharma’s planned review are the Post Office and three organisations with which it has financial relationships: Fujitsu, the Department for Business, Energy and Industrial Strategy and the National Federation of Sub-postmasters.

Fujitsu receives Post Office funds to fix bugs and for other work on the Horizon system. The Department for BEIS gives the Post Office hundreds of millions of pounds in public money for investment. The National Federation of Sub-postmasters receives funding from the Post Office. A High Court judge said last year the Federation was not independent of the Post Office.

Not taking part in ministerial review because they regard it as pointless are Second Sight and the 557-strong Justice for Sub-postmasters Alliance, led by Bates, which won a High Court case last year against the Post Office. The case proved that Horizon had numerous faults and that the Post Office had wrongly held sub-postmasters liable for missing amounts shown on the system.

Anaemic

With or without the scandal’s victims, Scully and Sharma’s review may start in the next few weeks. The review is described as “anaemic” by former defence minister Lord Arbuthnot, who has campaigned for justice for sub-postmasters since 2010. He told Computer Weekly’s Karl Flinders that the planned review “fails to ask the right questions and is aimed at hiding the truth rather than ‘getting to the bottom of it’, as the Prime Minister promised.”

Many peers and 74 MPs together with the Communication Workers Union, which represents sub-postmasters, the Justice for Sub-postmasters Alliance, and many other campaigners for justice are calling for a judge-led inquiry into the Horizon scandal.

That Scully and Sharma have refused repeatedly to commission one gives grounds for sceptics to suggest that ministers prefer another review because of their proven history of going nowhere.

Comment:

The Post Office conducted hundreds of individual reviews of sub-postmaster complaints about Horizon before going on to make accusations against them in the civil courts and lay charges against them in the criminal courts. Now it plans hundreds more reviews. But for what purpose?

The ministerial review in particular seems a reminder of Franz Kafka’s novel, The Castle, in which villagers hold their local officials in high regard but nobody knows what they do, least of all the officials. The main job of the officials appears to be to guard the interests of distant masters; and the more pointless their other work, the more it is valued. It is a world in which the innocent cannot be pardoned until they have established their guilt.

The review being commissioned by Scully and Sharma is to address the Post Office scandal but it will not consider the two most mportant matters: amounts of compensation and the clearing of names of those wrongly accused and prosecuted.

Indeed compensation and the wrongful accusations and prosecutions are specifically excluded from the review’s remit. Instead, its terms of reference seem as abstract as anything from the pages of Kafka’s books. The review will identify key lessons to be learned, ensure moves are in the right direction, make concrete changes,  draw on evidence, listen to those affected, facilitate good progress on cultural and organisation change, materially improve relationships and put in place controls.

It is not even clear that the review’s final report will be published in full, though this may not be a problem if nobody wants to read it.

But why are there any reviews at all?

Numerous flaws

In High Court judgements on the Horizon litigation last year the judge, Mr Justice Fraser, could not have been clearer: Horizon had numerous flaws that on numerous occasions had altered balances on branch post office Horizon systems. This alone undermined every accusation in civil courts and every prosecution where the courtroom evidence was based on data from the flawed horizon system.

But the judgement went further. It found that Horizon had a “back door” through which IT engineers at Fujitsu, Horizon’s supplier, could alter branch post office accounts without the knowledge of subpostmasters.

Therefore, if system flaws did not affect the balances of branch post office accounts, the figures could have been altered by a Fujitsu engineer who was working remotely trying to fix bugs.

This unlimited remote access to branch accounts and the numerous flaws in Horizon create infinite doubt. It means that, where the Post Office had been unable to find any evidence of personal gain – and it tried hard in very case – the sub-postmasters who had complained to the Horizon helpline of inexplicable shortfalls and had subsequently been accused in the civil and criminal courts of taking money shown on Horizon as missing, ought now to be in the clear.

A mass clearing of names and compensation?

Others who ought to be in the clear are sub-postmasters prosecuted for false accounting where, without personal financial gain, they had reset the system balance to zero after a flawed Horizon system had shown an inexplicable discrepancy.

Also, anyone accused of theft solely on the basis of Horizon data but just before the trial agreed to a guilty plea on a lesser charge because otherwise they feared going to prison, ought to be cleared without further delay.

In the unlikely event this mass clearing of names absolves one or two bad apples, this is a small price for society to pay for clearing the names of hundreds, and potentially more than 1,000 sub-posmasters who have been horribly – and in some cases tragically – caught up in what is being described as the widest miscarriage of justice in British legal history.

It is surely better to let two rotten apples escape the barrel than keep the remaining 1,000 good ones rotting inside.

If the Post Office opposes a mass clearing of names, it has, arguably, through its aggressive, oppressive and peremptory conduct and lack of truthfulness as set out in the High Court judgements,  forfeited any moral or ethical right to challenge a single accusation, prosecution or conviction that was based on data from the flawed Horizon system.

What the High Court judgement also ought to mean is that – without further ado – compensation is paid to all sub-postmasters who had put in their own money, sometimes tens of thousands of pounds, to reset their inexplicable Horizon balances to zero on the basis that, if they didn’t, they wouldn’t be able to open their post office the next day.

Why reviews galore?

A review implies the arguments are finely balanced. They are not.  Mr Justice Fraser’s findings were unequivocal: Horizon’s numerous flaws altered branch post office balances on numerous occasions. Therefore every conviction based on Horizon data where there is no clear wrongdoing for personal gain does not need an individual review.  The only questions are when and how quickly the convictions are overturned and the amounts in each case of compensation.

If any review is based on the possibility that Horizon might have been working properly at the time and date in question it is a deepening of the Horizon scandal. For the judge made it clear that management information and record-keeping were poor.  Nobody can know today for certain how an enormously complex and flawed system – and one that was not under the direct control of the Post Office – was performing on a certain day and at a certain time, years ago.

There is therefore no need for a single further case review. It is hard to see what can be accomplished by any more reviews unless they are to delay payments of compensation.

There is, however, a need for stand-alone inquiries into the conduct, decisions and trutfulness of particular Post Office managers, investigators, auditors and prosecutors.

It is the Post Office’s credibilty that now in question. Mr Justice Fraser referred to the Post Office’s occupying a parallel world. He mentioned the Post Office’s bare assertions and denials that ignore what has actually occurred. Its approach was the 21st century equivalent of maintaining that the earth is flat.  He doubted the truthfulness of some its witnesses and some of its written evidence.

The judge made no such criticims of sub-postmasters – the opposite, in fact. He noted the honesty and truthfulness of the evidence they gave him.

Why then, seven months since the judgement, haven’t the 1,000-plus victims of Horizon all been cleared, proper compensation paid and investigations begun into the actions, decisions and truthfulness of particular Post Office managers, auditors, investgators, prosecutors and the board?

Such investigations into Post Office managers and directors would be far more relevant to the public conscience and trust in government and its institutions than seemingly endless reviews into sub-postmasters. The £100m High Court judgements last year established the honesty and credibility and integrity of sub-postmasters. They did not establish the honesty, credibility or integrity of anyone at the Post Office, and certainly not its board.

It is telling that when the Post Office’s credibility was tested by a third party, the Crown Prosecution Service, it did not go well. The CPS replied to a freedom of information request by Dr Minh Alexander, who writes about the Post Office scandal on her blog “Alexander’s Excavations”. She had asked whether the CPS had taken over any private prosecution by the Post Office. [Before 2015, the Post Office took its own decisions to prosecute and prosecuted directly in court, usually without involving the CPS at any stage.]  The CPS replied in March 2020 that, although its list may not be complete, it recorded having taken over two private prosecutions by the Post Office and discontinued both of them.

It may also be telling that when litigation funders Therium considered Bates’ case against the Post Office, it decided to risk tens of millions of pounds to fund his action against the Post Office. Why had Therium been able to see the strength of the sub-postmasters’ case but not the Post Office which lost £43m defending Horizon and its contracts with sub-postmasters?

Reformed?

Post Office logoMinisters say the Post Office is a changed organisation under a CEO Nick Read who joined in September last year. But the reforming Post Office has not yet publicly cleared any individual wrongly- accused sub-postmaster – and it has taken a position that the litigation last year did not clear, individually, any of the 557 sub-postmasters involved in the case.

Indeed, it was only last year that the Post Office referred in court to sub-postmasters as thieves and liars. Can a large organisation change its attitudes and culture with 12 months because a different CEO has been appointed?

What is clear is that the Post Office today is fully supported by business ministers and civil servants. They have said not a word in criticism of the current administration. It is perhaps not surprising, therefore, that there are hundreds of new reviews, on top of hundreds of past reviews, of sub-postmasters’ cases but Whitehall has launched no investigation into the actions or inaction of past and present ministers, senior BEIS civil servants or anyone at the Post Office.

Who is in control? It has never been the sub-postmasters.

The protection of citizens?

The first duty of any government is to protect its citizens from harm.  It s not the duty of an arm of government to put innocent hard-working people in prison, destroy their livelihoods and inflict a harm on them and their families that can never be measured in cash or human terms. Tracy Felstead was only 19 when a Post Office prosecution put her in prison. Now in her thirties, she has gone through her adult life with a criminal record she did not deserve. Seven months after Horizon judgements that undermined every prosecution based on Horizon data, she is still not in the clear.

People who put almost everything they had into their branch post offices and who would now have expected to be comfortable in retirement have been left cheated, defeated and penniless. Julian Wilson died waiting for justice. And Scully and Sharma believe that what’s needed is a lessons-learning review.

Reviews, hundreds of them and the promise of more reviews to check the validity of previous reviews, are for the world of satire and Kafkaesque novels. In the real world,  government has it within its power to do something unprecedented for victims of the Horizon scandal: accept one of their requests.

They have requested a judge-led inquiry which Scully and Sharma have refused. But more senior ministers, judging by their comments on the scandal, are likely to have a greater empathy with wronged sub-postmasters, including Commons’ leader Jacob Rees-Mogg and the prime minister Boris Johnson.

It is to be hoped that Rees-Mogg and Johnson will scrap the Scully/Sharma review and order a judge-led inquiry. Not one sub-postmaster wants a review. Rees-Mogg and Johnson will, no doubt understand this.

Right on his side

Having raised £46m for a successful High Court action against the Post Office, Alan Bates has now succeeded in raising more than £100,000 for legal support, including a QC, to make a formal complaint to the Parliamentary Ombudsman of maldaminstration by the Department for Business, Energy and Industrial Strategy whose civil servants could have stopped the scandal in 2011 had they trusted what sub-postmasters and their constituency MPs said about Horizon rather than the Post Office.

Bates has been proved right to seek justice by bypassing business ministers, civil servants and the Post Office. But even he would probably not have realised, when he was writing to Computer Weekly in 2004 about the futility of Horizon reviews, that, 16 years later, there would be more reviews than ever. What is there to review? A flawed computer system’s output measured against the lives and integrity of hard working business men and women?h

Jacob Rees-Mogg and Boris Johnson – your intervention in favour of a judge-led inquiry is needed desperately. And, by the way, can you please stop the reviews of sub-postmasters and start the talks on compensation and a mass clearing of names.

The Post Office responded to my questions on its reviews here.

My articles on the scandal owe much to the work and research of Nick Wallis, Karl Flinders, Tim McCormack, Mark Baker, Eleanor Shaikh, Stephen Mason and Richard Brooks. Thank you to campaigner Dr Minh Alexander whose FOI request is referred in this article. I am also grateful to campaignerDavid Orrwho has emailed links I would not otherwise have seen. And a special thank you of course to Alan Bates.

“No worse scandal” – Jacob Rees-Mogg on the Post Office Horizon affair

By Tony Collins

Yesterday the Leader of the House of Commons Jacob Rees-Mogg was asked when he will set aside time for a debate on calls by MPs for a judge-led inquiry into the Post Office IT scandal.

The question was put by Valerie Vaz, a solicitor and Shadow Leader of the Commons.

Mogg replied, “On EDM [Early Day Motion] 593 and the Horizon scandal, there is no worse scandal than imprisoning people or unjustly taking away their livelihoods when they are accused of crimes that they did not commit. The seriousness of what the right hon. Lady has raised is well known, and again it shows how the procedures of this House may be used to right wrongs – historical role of redress of grievance.”

Rees-Mogg’s concern about the scandal was in sharp contrast to the comments of Business Secretary Alok Sharma who rejected MPs’ calls for a judge-led inquiry. Although Sharma was not in post until February this year, sub-postmasters regard his Department for Business, Energy and Industrial Strategy [BEIS] as implicated in the scandal.

Sharma told MPs on the BEIS committee yesterday that there would be a review to be set up by September at the latest. He rejected a judge-led inquiry as taking too long. But sub-postmasters who have waited 20 years for justice would not know why there was now a rush to administer what civil servants perceive – but not sub-postmasters – as justice.

Comment

Jacob Rees-Mogg was impressive in saying much about the scandal in few words. He showed a genuine concern for the sub-postmasters.

In contrast, Sharma sounded less than fascinated by the whole matter when he appeared before MPs on the Business, Energy and Industrial Strategy committee.

Asked one or two questions by committee MPs who were also less than fascinated, Sharma appeared to read from a briefing note which seemed to make no mention of an apology to hundreds of wrongly prosecuted sub-postmasters. Nor did he express any regrets about all the sub-postmasters jailed on the basis of data derived from a flawed computer system. And no mention or suggestion that there had been any miscarriages of justice.

He did not use the word “scandal” or imply that he considered it an appropriate word. His colleague Paul Scully hasn’t used the word “scandal” either.

Sharma did, however, comment on what others are calling a scandal (including Boris Johnson).  Sharma said, “Obviously there is a lot of interest in this.”

He said the chair of a non-statutory review at which nobody would be obliged to attend would be appointed soon.

Few would be surprised – and this is pure speculation – that civil servants have yet to finish drafting the review report’s conclusions and recommendations. Would a chair then be appointed to approve the draft report?

Sharma did not say as much but his tone and manner seemed to say: “We are absolutely committed to getting this whole thing over as quickly as possible.”

His colleague Paul Scully MP would be talking to the National Federation of Sub-postmasters about taking part in the review. Perhaps nobody had briefed Sharma that the Federation is funded by the Post Office.  A High Court judgement last year said the Federation was not independent of the Post Office. Would anyone potentially important be attending the review?

Sub-postmasters listening to Sharma smiled when he answered a question by saying civil servants would not be compelled to attend but “I would have thought that the moral presssure to come forward and give evidence would I hope ensure that people came forward in good faith and talk to this inquiry.”

“Moral pressure” and “good faith” seem odd expressions to use in the context of innocent people being jailed. Jacob Rees-Mogg gets it. Sharma and Scully don’t.

**

Urgent crowdfunding appeal for a Parliamentary Ombudsman inquiry into the role of the Department for BEIS [Sharma’s department] in the Post Office scandal.

How will the Horizon 900 prove their innocence – another phase of the Post Office IT scandal?

By Tony Collins

In jubilant scenes outside the High Court last year, sub-postmasters celebrated a remarkable victory over the Post Office.

For nearly 20 years the Post Office’s  board held fast to the view that its Horizon branch accounting system was robust. Horizon data that showed money was missing from branch sub-postmaster accounts was used to prosecute and win convictions against at least 500 sub-postmasters, from Tracy Felstead who was jailed at the age of 19 to Noel Thomas who worked for the Post Office for 42 years before being jailed. Civil actions too were based on Horizon data. Newspaper articles about sub-postmasters who had been imprisoned, made bankrupt and had lost their livelihoods, life savings and homes became almost routine.

But in 2017 former sub-postmaster Alan Bates won the High Court’s consent for a group litigation against the Post Office. He was one of Horizon’s victims. He had asked the Post Office to produce the back-office data that showed he was to blame for unexplained shortfalls on his branch Horizon accounts. The Post Office did not provide the data and inexplicably terminated his contract.

Redress for Bates and his 556 co-claimants came finally in December 2019 when Mr Justice Fraser published his 1030-paragraph Horizon judgement in the case of Bates v the Post Office.

It was replete with criticisms of the Post Office: its conduct, decisions, lack of truthfulness and an apparent lack of concern over mounting legal costs. Mr Justice Fraser depicted the Post Office as a public institution that conducted itself as if answerable to nobody: witness statements to the court might not have been written by the witnesses, said the judgement. And he said the Post Office had attacked the credibility of sub-postmasters who had given honest and trustworthy evidence.

His overall conclusion was that bugs, errors and defects in Horizon not only had the “potential” to cause shortfalls in branch post office accounts but had actually done so – on “numerous occasions”.  The judge said his findings applied “both to Legacy Horizon and also Horizon Online.”.

The ruling also confimed that Horizon had a “back door” through which IT engineers working remotely at the system supplier Fujitsu could fix software faults by altering branch post office accounts without the knowledge of sub-postmasters.

Sub-postmasters were vindicated. The judgement estabished that they had not stolen money or fiddled the books to hide their criminality. The system was to blame for numerous unexplained shortfalls because of its tendency at times to show phantom transactions.

Indeed, the judgement also seemed to clear the names of not only the 557 sub-postmasters in the group litigation but hundreds of others who had been prosecuted on the basis of Horizon data. The Post Office has confirmed that there have been 900 prosecutions based on Horizon evidence and 500 convictions. The Criminal Cases Review Commission has referred 47 potentially unsafe convictions of sub-postmasters to the Court of Appeal – an unprecedented number of referrals on one matter. The Commision accused the Post Office of abusing the prosecution system.

How could nearly 1,000 sub-postmasters, each of whom the Post Office had thoroughly vetted for the job, be fraudsters, thieves and liars?  It seemed that the Post Office was prosecuting almost every time the system generated a spate of unexplained shortfalls on branch accounts.

And the courts were almost certain to convict because of a Law Commission “presumption” dating back to the 1990s. The presumption has led to courts accepting flawed computer evidence as reliable. Barrister Stephen Mason showed in his book “Electronic Evidence” (chapter 6) that the courts, based on the defective “presumption”, treat computers as mechanical devices similar to stopwatches – they either work or don’t.

Barrister Paul Marshall, in his paper The harm judges do – misunderstanding computer evidence: the Lee Castleton case” said that the Law Commission’s “presumption” may encourage prosecutions based on flawed computer evidence.

The defective presumption is covered in articles on this site published this week.

The Post Office’s view?

The Post Office does not share the sub-postmasters’ view of the High Court judgement.

The continuing sharp differences between the two sides raises the question of how much the Post Office’s institutional view of Horizon or the accused sub-postmasters has moved on since the two sides began mediation talks last year.

The sub postmasters regard the judgement as proving, once and or all, that the Post Office was wrong to accuse them of taking money shown on Horizon as missing

But the Post Office says, in essence, that the judgement disproved none of its accusations against individual sub-postmasters. Its controversial interpretation of the judgement is that Horizon had the “potential” for bugs to affect branch balances but did not prove that individual claimants’ accounts were affected.

Nick Read, CEO of the Post Office, says in his letter to MPs on the Business, Strategy and Industrial Committee [BEIS] that the High Court judgement,

“… found that the potential for bugs to affect branch balances in historical versions of Horizon was greater than Post Office believed. The judgment did not determine whether bugs, errors or defects did in fact cause shortfalls in the individual claimants’ accounts but it found that they had the potential to create apparent discrepancies in postmasters’ branch accounts. The current version of the Horizon system was found to be robust, relative to comparable systems but we are not complacent about that, as I detail in responses to other questions…”

But Alan Bates points out that the judgement said bugs, errors amd defects not only had the potential to cause apparent shortfalls on branch sub-postmaster accounts but this actually happened “on numerous occasions”. The defects had also undermined the reliability of Horizon to process and record transactions.

Bates said that the Post Office do not understand how aggrieved the claimant group [557 sub-postmasters who were part of the High Court litigation against the Post Office] feel about the way they have been treated. “It is why we will never give up chasing the costs we incurred in having to expose the real truth behind the appalling condition of Post Office’s Horizon system in the High Court, he said, adding,

“The more I look into the documentation surrounding the court case the more obvious it is to me that Post Office never had the technical expertise or management to operate such a system.  Unfortunately all the times this was recognised in the Post Office Limited board meetings or in external reports, it seems to have been ignored, not only by Post Office but also by its sole shareholder, the government, which is why we are currently fundraising to fund a submission to the Parliamentary Ombudsman to launch an investigation into the failings of those charged with the oversight and control of Post Office in order to recover the costs to the group.

Implications for the Horizon 900

If the Post Office remains unconvinced that the individual claimants in the litigation have cleared their names, where does that leave up to 900 sub-postmasters who have been prosecuted on the basis of Horizon data?

It may be especially difficult for them to clear their names if their records or the relevant Horizon records are no longer available. A further difficulty is that the Post Office may adopt the position the courts take of computer evidence – which is to treat it as reliable. The onus is then on the accused to prove explicitly that a particular bug or defect affected the shortfall in question. None of the 557 sub-postmasters in the High Court litigation proved this in the eyes of the Post Office.

An additional difficulty for the 900 is that they may be able to prove little or nothing without full disclosure of Post Office evidence. Mr Justice Fraser was highly critical of the Post Office’s approach to disclosure.

Post Office responses

Campaign4Change put a series of questions to the Post Office relating to this article. These were our questions and the Post Office’s replies:

Our question to the Post Office:  Nick Read [Post Office CEO] said in his letter to the BEIS committee, “The judgment did not determine whether bugs, errors or defects did in fact cause shortfalls in the individual claimants’ accounts.” This suggests that, in the Post Office’s eyes, the claimants [in the Bates v Post Office litigation] have not proved their innocence. Any comment please?

The Post Office’s reply:

The claimants and the Post Office reached a mutually agreed, comprehensive resolution to the group civil litigation in December 2019, issuing a joint statement at the time.  The Post Office apologised to those affected and continues to do so.”

Our question: If claimants after a £50m+ court case have not proved their innocence in your eyes, how will anyone whose case is reviewed on the Historical Shortfall Scheme or anyone else you have identified as having been prosecuted using Horizon data, have the slightest chance of proving their innocence?

The Post Office’s reply:

“As the submission to the [BEIS] Select Committee states, the Post Office is determined that past events are resolved fairly.  It also outlines main details of the scheme including that  eligible applications will be assessed by an independent advisory panel of leading specialists in separate disciplines of legal, forensic accounting and retail. The panel is Alex Charlton QC, a leading barrister with particular expertise in software and IT systems; Susan Blower, a forensic accounting partner at BDO and fellow of Chartered Accountants of England and Wales; and Sunder Sandher, an experienced retailer and member of the Independent Retailer Board of the Association of Convenience Stores.  Eligible applications will be assessed by the independent advisory panel in light of the guidance given by the judgments of Fraser J in the group litigation. Applicants are able to claim for losses relating to historical shortfalls, including claims for consequential loss.

“If a postmaster is not content with the outcome of the assessment of their case there is a dispute resolution procedure which includes independent mediation provided by The Wandsworth Mediation Service, a charitable community mediation service chaired by Stephen Ruttle QC who co-mediated the resolution of the Group Litigation.

 “As of 24th June there have been 618 applications to the scheme – we are keeping this information updated on our website.

The Post Office is also making strenuous efforts regarding postmasters with past convictions that may be affected by the High Court Judgments in the civil litigation.  We have been working closely with the Criminal Cases Review Commission since applications were first made to them by a number of former postmasters. The criminal appeal courts will now determine these complex issues, with each case resolved on its own specific facts.

“We are also conducting an extensive review of all relevant historical convictions dating back to 1999, to identify and disclose any material in accordance with Post Office’s duties as prosecutor.”

Our question: Why doesn’t the Post Office, after all that former sub-postmasters have been through, clear the names of everyone affected and make amends without further ado or investigation?

The Post Office’s reply:

The Post Office has taken determined action to address the past and reform for the future.  A settlement in the civil litigation was agreed with the claimants in December 2019. The  joint agreement also included the establishment of the Historical Shortfall Scheme. This offers redress for current and former postmasters who were not part of the litigation and who may have experienced shortfalls related to previous versions of Horizon.

“The Post Office is also making strenuous efforts regarding postmasters with past convictions that may be affected.  We have been working closely with the Criminal Cases Review Commission since applications were first made to them by a number of former postmasters and we are conducting an extensive review of all relevant historical convictions dating back to 1999, to identify and disclose any material in accordance with Post Office’s duties as prosecutor.  Information on historical prosecutions can be found on our website and we will be keeping this updated.”

Comment

One of the oddest aspects of the Post Office IT scandal is that the courts and the Post Office have put the onus on sub-postmasters to prove that on a specific day at a certain time, a particular Horizon bug, error or defect caused each of the shortfalls for which they were blamed.

This has always been impossible for the sub-postmasters. They have faced a lack of full disclosure of Horizon back-office data by the Post Office but have had a limited ability to request end-user reports of transactions on a system that had numerous flaws and which could not always be trusted to properly record transactions or flag duplicate transactions.

If sub-postmasters could not prove bugs in their specific circumstances, it is equally unlikely the Post Office could prove that none of the Horizon bugs, errors or defects caused the shortfalls in question.

And how would the Post Office be able to prove that Fujitsu had told the Post Office of every bug, error and defect – at least the ones of which Fujitsu was aware? How would the Post Office prove that it was aware of every instance when a Fujitsu engineer, in fixing a bug, had or had not altered the branch accounts without the knowledge of the sub-postmaster?

It’s a mess – perhaps difficult or impossible for each side to prove or disprove how Horizon was performing at the specific time and date of each shortfall in question especially as, according to Mr Justice Fraser, record-keeping was not always up to standard.

Arguably,  the Post Office prosecuted and made accusations when the system showed money was missing because that was easier than institutionally conceding that the system that served 11,000 post ofice was flawed. It was especially easy to prosecute because the courts had adopted a Law Commission “presumption” that when the prosecution presented computer evidence it was to be treated as reliable.

Perhaps the Post Office’s undeclared institutional attitude was that those who were wrongfully accused and whose lives were destroyed was the price to pay to catch any genuine thieves and fraudsters.

It is hard to see that the reviews of the Horizon 900 prosecutions will take any of these uncertainties into account. The Post Office wants each case to be handled individually on its merits. But are each side operating in near darkness?

The Post Office has impressive, independently-minded people looking at hundreds of potentially wrongful prosecutions. But they can only make determinations based on the evidence before them.

Articles on this website on 7 and 8 July showed that it is almost impossible for the accused facing faulty computer evidence in criminal and civil courts to prove their innocence. It is therefore mystifying how the Horizon 900 – if that’s the number who  come forward – will prove that Horizon affected their particular branch accounts at the time in question. Those profound doubts remain however well-qualified and able the review panel.

On the public conscience, therefore, are the prosecutions of about 1,000 people and the convictions of 500 people. The accustions against them are derived from data produced by a flawed computer system. But instead of clearing the names of all those affected, a sort of general amnesty, which the public conscience cries out for, there is the real possibility that few if any of the Horizon 900 will be able to clear their names because the Post Office insists that each case be reviewed individually on its merits.

The Post Office IT scandal deepens.

**

Time sensitive: Alan Bates has launched an appeal for donations to raise £98,000 for a QC’s complaint to the Parliamentary Ombudsman of maladministration by the Department for BEIS over its failure to stop the Post Office making accusations and prosecuting in the criminal and civil courts on the basis of data derived from its flawed Horizon system. More than 1,000 people have donated so far but the appeal closes in a few days. The appeal has raised about £71,000 so far.

Update

Sub-postmaster Mark Baker who, on behalf the Communication Workers Union, represents victims of the Horizon scandal, makes an important point in his tweet this morning that Mr Justice Fraser’s ruling changed the burden of proof.  Under the ruling, the Post Office has to show that any loss was the fault of the sub-postmaster. Before the ruling, the Post Office had put the burden of proof on sub-postmasters to show they hadn’t taken money Horizon showed was missing. The big question now is whether the Post Office and its independent panel will apply the new burden of proof retrospectively in reviewing all the cases before them. If fairness dictates the terms of the reviews, the panel will apply the new burden of proof.

mark Baker tweet

Electronic Evidence – Stephen Mason and Daniel Seng  (NB chapter six)

Presumption concerning the dependability of computer evidence – Ladkin, Littlewood, Thimbleby and Thomas

The harm that judges do – misunderstanding computer evidence: Mr Castleton’s story – Paul Marshall

Seema Misra criminal trial transcript

Post Office cover-up – they wanted it all to go away – Nick Wallis

Courts too ready to accept flawed computer evidence – which puts countless innocents in prison, say legal and IT experts

If faulty computer evidence is used against you in court, you may need £46m to prove your innocence.

By Tony Collins

Did the Post Office prosecute in the hundreds knowing most convictions were a foregone conclusion even with “not guilty” pleas?

If you own a franchise and your franchiser accuses you of stealing £50,000 or fiddling the books  on the basis of its faulty computer evidence,  you may need £46m to prove your innocence.

This was the cost to Post Office’s franchisees – sub-postmasters – of proving in the High Court that their franchiser’s main computer system, Horizon, was flawed and that its contracts were unreasonable and unenforceable.

But how many lone defendants facing a crown court hearing based on faulty computer evidence would have £46m at their disposal to prove the evidence against them was wrong?

Disappear

As a group of 557 litigants, former sub-postmasters led by Alan Bates were able to establish in the High Court that the Post Office’s Horizon system was to blame for money that seemed to disappear from branch post office accounts. The Post Office had spent nearly 20 years denying Horizon was faulty. It prosecuted more than 900 people on the basis of Horizon data and took action in the civil courts to force payments of tens of thousands of pounds in many individual cases.

In seeking to prove Horizon was faulty, Bates’ legal team were opposed by four top lawyers representing the Post Office – David Cavender QC,  Lord Grabiner QC, Anthony de Garr Robinson QC and Helen Davies QC.  Unusually in any High Court case, the Post Office also had two firms of solicitors.

A single Post Office application to the court – to remove the judge Mr Justice Fraser – cost £500,000. The two sides’ costs in total were about £100m.

In fighting the Post Office’s claims, Bates needed a talented legal team (led by Patrick Green QC) and a former insider who worked at Fujitsu, Horizon’s supplier, and who was willing to give evidence against his former employer. Bates also needed the disclosure of thousands of Post Office documents. And the sub-postmasters were fortunate in having a judge, Mr Justice Fraser, who understood the minutiae of the software issues before him. He knew when Post Office’s evidence was incomplete and misleading.

How was £46m spent?

In the end, the victory cost the litigants about £46m which included £15m in legal fees. The rest went to Therium which had taken the risk of funding the sub-postmasters’ litigation and “after-the-event” insurers who had covered litigants in case they lost and had to pay the Post Office’s costs.

None of this money and expertise would have been available to numerous lone defendants whom the Post Office prosecuted.

Those imprisoned on the basis of Horizon evidence included 19 year-old Tracy Felstead and pregnant sub-postmistress Seema Misra.

The prosecution’s advantage

Bates’ legal team won a civil case. Prosecutors in the criminal courts go into hearings with the advantage of knowing that judges work on a “presumption” that computer evidence is reliable.

The onus is on the defence to identify the specific faults in the system that caused money to go missing in the case of a theft charge. This may be impossible without full disclosure.

A matter of ethics

Barrister Paul Marshall has made a study of the consequences of the Law Commission’s recommendations in the 1990s that computer evidence be presumed by the courts to be reliable – a recommendation that was accepted by Parliament in 1999 by repeal of s. 69(1) of the Police and Criminal Evidence Act 1984.  He said in his paper The harm that judges do – misunderstanding computer evidence: the Lee Castleton case” that if the prosecution fails to disclose to the defence faults in its computer systems there is little courts can do. He said,

“The courts are virtually helpless to impose effective sanctions for failure to disclose evidence if a party fails to comply with their disclosure obligations under the rules of court. It is to be noted that the origin of these rules is equitable in nature – that is to say they attach, historically, to matters of conscience. Compliance with disclosure obligations is ultimately a matter of ethics, as much as of rules.”

But what if ethics are in short supply?

If a computer is faulty, it’s obvious isn’t it?

Barrister Stephen Mason, in his book Electronic Evidence, has a chapter of evidence (6) that undermines the Law Commission’s rationale for its presumption.

The presumption in the law of England and Wales is,

“In the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time’”.

The Law Commission, which advises Parliament on legal reform, has made it clear that “mechanical instruments” includes computers.

We’ve moved on from cash registers, haven’t we?

The presumption that computer evidence is reliable is based, in part, on a belief that computers are the same as stopwatches or older cash registers of the last century that either worked or didn’t.

But a large organisation such as the Post Office will have complex software-based systems whose flaws may remain hidden.

Mason’s book highlights many cases of computer failures caused by a range of problems such as input data flaws, unintended software interactions, operational errors, developmental issues and software errors, risks of errors when modifying software, security vulnerabilities and testing problems.

The cases he highlights show the vast differences between mechanical devices where faults may be obvious to the end-user and complex software-based systems where faults may go undiscovered.

Mason says:  “Faults in software and errors relating to the design of software
systems are exceedingly common. And while defects in hardware have been relatively rare, they are not unknown.”

He described the presumption that software code was reliable as a “delusion”. He said,

“Justice should not be based on concepts with no basis in logic or science.”

Marshall says the presumption is,

“as unsafe in practice as it is unjustified in principle”.

Comment:

Many in the IT industry are astonished that the Post Office prosecuted more than 900 people. They find it especially surprising given that sub-postmasters are a group most likely to hand in or give to charity a £10 note they found in the street.

But the criminal justice system makes it too easy to prosecute on the basis of computer evidence from a faulty system. Indeed it encourages questionable prosecutions under the Law Commission’s defective “presumption” that computer evidence is reliable.

For the Post Office, it might have been easier in some cases to prosecute when Horizon showed money was missing than involve the system supplier Fujitsu in a thorough and costly investigation of a possible system fault..

In such cases judges and magistrates would not require full disclosure of errors and bugs. All that was needed was the verbal confirmation by an IT specialist that the system was working properly.

And judges or magistrates will, it appears, usually assume that large companies tell the truth, know of any bugs and design weaknesses in their systems, don’t cover up and don’t intentionally mislead,

It is hard to avoid the conclusion that, for most defendants accused on the basis of a large organisation’s computer evidence, convictions are a foregone conclusion.

How can a justice system that readily, uncritically and routinely admits flawed – indeed in the light of Mr Justice Fraser’s judgments, false and seriously misleading – evidence, command public confidence?”.

It is the right of every citizen if wrongly charged to be able to walk into a crown court, plead not guilty and stand a chance, however remote, of being acquitted.

Two scandals

There are two scandals: one involves the Post Office and its Horizon IT system, the other the Law Commission’s unwitting encouragement of wrongful prosecutions based on computer evidence that may be incomplete and misleading.

It is not enough for ministers to announce a lessons-learning review of the Post Office Horizon system and for the Law Commission to shrug its shoulders and say, as it does, that nothing is seriously awry.

The Post Office scandal cries out for a judge-led inquiry. And if the Law Commission does not update its presumption on the reliability of computer evidence it is, in essence, accepting that most children will understand computers better than the crown and magistrates courts. Children know  computers can go wrong in many different ways. Would that judges grasped this notion too, particularly before they advise juries and unjustly hand down life-changing sentences.

Tomorrow – How will the Horizon 900 prove their innocence  – a new stage in the Post Office IT scandal?

Donations for a QC’s complaint to the Parliamentary Ombudsman of maladministration by the Department for BEIS over its failure to stop the Post Office making accusations in the criminal and civil courts on the basis of its flawed Horizon system.

Post Office cover-up – they wanted it all to go away – Nick Wallis

Courts too ready to accept flawed computer evidence – which puts countless innocents in prison, say legal and IT experts.

Electronic Evidence – Stephen Mason and Daniel Seng  (NB chapter six)

Presumption concerning the dependability of computer evidence – Ladkin, Littlewood, Thimbleby and Thomas

The harm that judges do – misunderstanding computer evidence: Mr Castleton’s story – Paul Marshall

Seema Misra criminal trial transcript

Courts too ready to accept flawed computer evidence – which puts countless innocents in prison, say legal and IT experts.

By Tony Collins

A major defect in the criminal justice system encourages courts to jail people or inflict life-changing financial harm on the basis of faulty computer evidence, say barristers and senior IT academics.

The defect means crown and magistrates’ courts will accept computer evidence from big organisations as reliable even when it is flawed, incomplete or misleading. The organisation can follow a successful conviction with a civil action that forces payment of large sums.  Wrongly convicted people can then be forced into paying the organisation their life savings or the proceeds from the sale of their homes.

The Law Commission, which advises Parliament on law reform, has known of the flaw in the criminal justice system for more than 20 years but has not heeded warnings that it could lead to countless miscarriages of justice.

Post Office IT scandal

Now the warnings have turned to reality. In what is being described as the widest miscarriage of justice in British legal history, the Post Office prosecuted more than 900 people using computer evidence from its flawed Horizon system.

Based on Horizon evidence, the Post Office also pursued countless people in the civil courts, making some of them bankrupt and forcing some to pay tens of thousands of pounds for money said by Horizon to be missing but which may have been transferred by the system into a hidden central Post Office account.

Despite the Post Office IT scandal, the Commission has still not announced any plans to change a legal “presumption” that leads to courts’ treating the prosecution’s computer evidence as reliable.

The Government is taking a relaxed view of the Law Commission and Post Office scandals. It has announced a lessons-learning review of the Post Office Horizon system but no investigation of the Law Commission scandal.

Naïve

Barristers and IT specialists say the Commission’s presumption is extraordinarily naïve and undermines confidence in the UK criminal justice system.

Barrister Paul Marshall has made a study of the subject. He has written a paper entitled The harm judges do – misunderstanding computer evidence: the Lee Castleton case”. He quotes one judge as expressing a “frankly bizarre and atypically silly” view that,

“… one needs no expertise in electronics to be able to know whether a computer is working properly.”

Full disclosure is rare

Under current legal advice to courts, the onus is on the defence to  prove flaws in the prosecution’s computer evidence but big organisations are unlikely to make a full disclosure of errors, bugs and weaknesses in their back-office systems. They will regard such information as commercially confidential. Full disclosure is rare.

In the Post Office’s case, numerous flaws in its Horizon system were covered up for nearly 20 years during which time it prosecuted at least 900 people on the basis that the system was robust.

Nobody has had their criminal convictions quashed or their life savings and  proceeds from the sale of their house returned.

Marshall describes the Post Office scandal in his paper as “mendacity on an epic scale”.

Frankly bizarre

Barrister Stephen Mason is a long-time critic of the Law Commission’s stance on computer evidence. He says said in his book  “Electronic Evidence” that the courts treat computers as machines.

“It cannot be right to presume that a machine, in particular a computer, computer-like device or network, was ‘in order’ – whatever that means – or ‘reliable’ at the material time.”

Mason has obtained a rare transcript of a criminal court hearing. It  shows how a crown court judge accepted the Post Office’s computer evidence on the basis of an IT-literate person from the company testifying that the computer was working properly at the material time. The testimony included a claim that it would have been obvious to the end-user if the computer was not working properly.

The transcript also shows that the judge appeared to be sceptical of claims by the accused, a pregnant sub-postmistress Seema Misra, that the computer was faulty. She denied stealing money that Horizon evidence suggested was missing.

Clear injustices 

Misra’s lawyer asked the courts three times for her criminal trial to be stayed as an “abuse of process” because of inadequate disclosure of the computer data against her. Each of her applications was rejected by different judges.

Instead, the court accepted the prosecution’s claims that Horizon was reliable. Misra fainted when she was jailed for 15 months. She was eight weeks pregnant with her second child.

The judge had told the jury that there was no evidence money was stolen. But he left the jury in no doubt about the reliability of Horizon. He told them,

“There is ample evidence before you to establish that Horizon is a tried and tested system in use at thousands of post offices for several years, fundamentally robust and reliable.”

Also incorrect was a statement to the jury by the Post Office’s prosecuting counsel.  Referring to Horizon, he said,

“… it has got to be a pretty robust system and you will hear some evidence from an expert in the field [Fujitsu] as to the quality of the system … the Crown say it is a robust system and that if there really was a computer problem the defendant would have been aware of it.

“That is the whole point because when you use a computer system you realise there is something wrong if not from the screen itself but from the printouts you are getting when you are doing the stock take.”

That the prosecution did not tell the judge and jury of numerous bugs in the Horizon system or that figures on branch accounts could be altered remotely without the sub-postmaster’s knowledge has led to no admonishment of the Post Office by any government ministers.

Pay Post Office £321,000 says court

In another clear miscarriage of justice, the Post Office won a civil case to make sub-postmaster Lee Castleton pay £26,000 that was shown on Horizon as missing. Castleton appealed but the appeal judge rejected any suggestion Horizon was not working properly.

He ordered Castleton to pay costs which the Post Office put at £321,000. Nobody has ever understood since how the judge allowed the Post Office to claim £321,000 in costs over a disputed sum of £26,000. Castleton was forced into bankruptcy and, to this day, the Post Office has never repaid the money he lost through the courts’ acceptance that the system was working properly.

Marshall says in his paper that the judge in Castleton’s case was satisfied with the testimony of a witness from Horizon’s supplier Fujitsu whose evidence “amounted to saying she herself could not see anything wrong with the system”.

Cover-up

Mason in his book explains how Toyota intentionally covered up information and misled the public about the safety issues with some cars that had computer-controlled accelerator pedals.  Toyota at first denied that its software was to blame for a spate of unintended accelerations, some of which caused fatalities, but after a dispute lasting several years Toyota agreed a settlement worth nearly £1bn.

The case showed how a big organisation may not fully understand its own software and have little idea of its coding flaws until a serious incident or spate of incidents occur. It is usual after such incidents, as in he cases of Toyota and the Post Office, for the organisation in question to deny a first that its software has been the cause of serious incidents.

Ridiculous

But UK judges take little or no account of corporate cover-ups. Marshall quotes one judge, Justice Lloyd as saying,

“Where a lengthy computer printout contains no internal evidence of malfunction, and is retained, e.g. by a bank or a stockbroker as part of its records, it may be legitimate to infer that the computer which made the record was functioning correctly.”

Another similar comment was made by Lord Griffiths,

“‘…  in the vast majority of cases it will be possible to discharge the burden (of showing the computer was working properly) by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly.”

Mason says,

“The legal presumption that computers are reliable is ridiculous.”

Law Commission’s view

The Law Commission’s view is that the “presumption” does not place too great a burden on the defence. But the Commission’s critics say the numerous miscarriages of justice in the Post Office Horizon IT scandal are proof that it all but impossible for defendants to prove their innocence when they are against a big organisation’s computer evidence.

The Commission is also likely to deny that it has, with indifference, carried on with the “presumption” about the reliability of computer evidence. This is not how the Commission works. It conducts projects into areas of the law and produces reports, which the government is free to accept or reject.

The “presumption” is 23 years old and the Commission does not keep areas of law under continuous review. The Commission can be asked to look into any area of law again in a new project but cannot launch one unless it and the government agree on its need.

Comment

The criminal justice system ought to be reining in corporate mendacity not encouraging it. At least 900 unsafe prospections and judges and juries sending innocent people to prison would not have happened if courts had been more open to the defence’s challenge of computer evidence. That judges were too ready to accept computer evidence as reliable is obviously wrong. But the Law Commission seems content to be complicit in the governmental and civil service  pretence that there’s nothing seriously awry. How can the Law Commission go another week without starting work on reforming the advice to judges?

Every week that the legal advice to judges remains unchanged is another week that the Law Commission’s “presumption” on the reliability of computer evidence makes a mockery of the criminal justice system.

Tomorrow – If faulty computer evidence is used against you in court, you may need £46m to prove your innocence.

Donations for a QC’s complaint to the Parliamentary Ombudsman of maladministration by the Department for BEIS over its failure to stop the Post Office making accusations in the criminal and civil courts on the basis of its flawed Horizon system.

Electronic Evidence – Stephen Mason and Daniel Seng  (NB chapter six)

Presumption concerning the dependability of computer evidence – Ladkin, Littlewood, Thimbleby and Thomas

The harm that judges do – misunderstanding computer evidence: Mr Castleton’s story – Paul Marshall

Seema Misra criminal trial transcript

Post Office cover-up – they wanted it all to go away – Nick Wallis