By Tony Collins
Lord Arbuthnot, whose years of campaigning helped to win justice for the families of two pilots killed in a notorious Chinook helicopter crash on the Mull of Kintyre, is considering asking peers to set up a Special Select Committee inquiry into the Post Office IT scandal.
The need for a Parliamentary Special Select Committee may be seen as more important now that government postal affairs minister Paul Scully has announced that an inquiry begins this week into faults with the Post Office’s Horizon system – but without any public hearing so far.
The government inquiry will be chaired by retired judge Sir Wyn Williams. Its terms of reference were written by civil servants at the Department for Business, Energy and Industrial Strategy [BEIS], which is implicated in the Post Office IT scandal.
Today’s Daily Mail says,
‘whitewash and a betrayal’: Fresh fiasco at Post Office as staff boycott inquiry into IT scandal
- Ministers launched ‘review’ led by former High Court judge Sir Wyn Williams
- However MPs and campaigners have labelled it a ‘whitewash’ and a ‘betrayal’
The Williams inquiry will be limited by its terms of reference. It will look at Horizon and its faults but not at deficiencies in the civil service and within successive governments that let the scandal happen.
The absence of effective oversight of the Post Office, which is one of hundreds of government-owned “arm’s length bodies”, is seen by some as more a important matter for a judge-led inquiry than an investigation largely limited to the Post Office’s past failings and Horizon faults.
A further likely point of contention over the Williams inquiry is that it will consider none of the big questions that arise from the Post Office IT scandal, such as whether people known by the prosecution to be innocent were sent to prison on the basis of computer evidence known to come from a flawed system. Such a question could not be asked by the Williams inquiry because its terms of reference are clear in excluding any consideration of court-related matters.
A further weakness of the Williams inquiry is that, although it owes its existence to High Court judgments last year that revealed the extent of the Post Office IT scandal and prompted the inquiry, there is no mention in its terms of reference of any consideration of whether the government and the Post Office ought to pay the £46m legal costs of sub-postmasters who instigated the litigation.
The non-payment of the £46m means victims of the Post Office scandal still have massive losses. The Post Office demanded sub-postmasters make good from their own pockets shortfalls shown on Horizon, whether or not the system was suspected to be at fault.
Neither the Post Office nor the government has shown any sign of returning this money to sub-postmasters although the litigation found that Horizon had numerous faults that caused numerous shortfalls for which sub-postmasters were wrongly held liable. For nearly 20 years, the civil service, ministers and the Post Office denied that Horizon had any material faults.
Will critics find the Williams inquiry a pointless PR exercise?
The Williams inquiry is likely to be dismissed by some as a pointless PR exercise because its terms of reference make no mention of holding anyone accountable or paying fair compensation to sub-postmasters affected by the scandal. Also, the inquiry cannot question the conduct of prosecutors in Horizon-related cases, assess whether deliberately incomplete computer evidence was presented to judges and juries or how data from a flawed system was used to confiscate businesses, homes and cars; and the terms of reference make no mention of consideration of how and why the courts and juries accepted as robust a computer system that had thousands of errors; and the Williams inquiry will not consider whether the threat of prosecution for crimes not committed led to suicide or premature death.
Special Select Committee into Post Office IT scandal?
A House of Lords select committee inquiry into the crash of Chinook ZD 576 that killed all 29 on board including 25 senior members of the Northern Ireland intelligence and police communities in 1994, was an important part of the campaign to clear the names of the helicopter’s two pilots Flight Lieutenants Jonathan Tapper and Rick Cook who had been found by two RAF air marshals to have been grossly negligent.
For 17 years, Ministry of Defence officials and successive ministers denied that computer or other technical problems with the helicopter could have been to blame for the crash. But officials at the Ministry of Defence did not fully disclose to crash investigators the history of technical problems or details of internal concerns about the helicopter’s technical modifications and all of the incidents involving the Chinook’s computer-controlled “FADEC” engines.
RAF rules required that dead pilots be found grossly negligent only if there was no doubt whatsoever. Two RAF air marshals and the Ministry of Defence argued there was no doubt the pilots were grossly negligent. But eventually the air marshals and the Ministry of Defence were over-ruled and the pilots’ names cleared in 2011. The pilots’ families were in the House of Commons’ gallery to hear the then defence secretary Liam Fox give them a formal apology. He said justice can be a long time in coming but what matters is it’s done in the end.
“… there are many beyond this House who have sought resolution in this case for a very long time … They played an important part in keeping the issue alive for long enough for justice to be done. It does not matter how long it takes; it matters that it is done in the end.”
Now Lord Arbuthnot is considering asking Parliament to set up a Special Select Committee into the Post Office IT scandal which lawyers describe as the widest miscarriage of justice in English legal history.
In both the Chinook crash and the Post Office Horizon scandal, the weakest links, the human operators of the equipment, were blamed for what turned out to be institutional failures.
In the case of the Post Office IT scandal, about 2,000 businessmen and women who ran branch post offices – sub-postmasters – were blamed for account shortfalls shown on Horizon.
The sub-postmasters’ litigation brought to the fore inequalities in the dispute. Sub-postmasters had little money or time to defend themselves against the Post Office’s accusations. In contrast, the Post Office and Fujitsu, as large organisations, were able to hire legal teams, and were therefore in a strong position to defend any accusations that Horizon was to blame.
Similarly in the Chinook crash, the Chinook’s manufacturer Boeing and component suppliers had legal teams that put them in a strong position to defend the integrity of the helicopter after a major incident. The families of the dead pilots who were blamed for the crash of Chinook ZD 576 on the Mull of Kintyre, had little money to take on public and private institutions.
In the case of the Horizon controversy, Mr Justice Fraser, the judge in a High Court litigation last year, said the Post Office seemed to act as if answerable to nobody.
The Post Office scandal continues
Numerous injustices remain for those convicted on the basis of Horizon’s “robust” evidence. Having a criminal record has made it difficult to obtain a job. Nine months on from judgments that were highly critical of the Post Office and Fujitsu’s hiding of Horizon faults, those convicted on the basis of the system’s evidence are still having to fight to clear their names. They include Janet Skinner, Tracy Felstead, Wendy Buffrey, Seema Misra and Jo Hamilton. Some Horizon victims, including Lee Castleton, still have massive debts after being made bankrupt. Thirteen years ago, the Post Office took Castleton to the civil court over shortfalls of about £26,000 but the publicly-owned institution obtained a further court order against him for £321,000 to cover its legal costs, which forced him into bankruptcy. Some, including Julian Wilson, Fiona Cowan and Martin Griffiths, died prematurely after Horizon-related accusations. Despite these cases, the Post Office has continued action against sub-postmasters over Horizon shortfalls. More recent cases include Helen Walker, Wendy Martin, Pete Murray and Chirag Sidhpura.
Journalist Nick Wallis has written up their moving stories on his blog Post Office Trial. Campaigner Peter Bell has a useful map and links on Twitter that point to articles on how the lives of many Horizon victims have been affected.
Unfair and wrong
Lord Arbuthnot, who has chaired a Special Select Committee and, separately, the House of Commons’ Defence Select Committee, explained the shortcomings of the government inquiry into Horizon:
“The Government’s review, whose chairman has been chosen by the Government rather than by the judicial system, will look only at the actions of the Post Office. The Terms of Reference make no mention of the Government’s own role in this scandal, even though the Post Office is owned, funded and directed by the Government and has the Permanent Secretary of the BEIS Department as the Post Office’s Accounting Officer. Neither do the Terms of Reference mention Fujitsu, even though Fujitsu provided, maintained and ran the Horizon software which is at the heart of the scandal, and then gave evidence in the High Court which gave the judge cause for concern.
“The result of the High Court action has been that the Post Office and the Government have paid millions in legal fees, but almost nothing (in comparison to the losses the sub postmasters suffered) to the sub-postmasters by way of compensation. This is unfair and wrong and needs to be examined by a dispassionate and independent Parliamentary Committee which can concentrate on this complicated scandal without being distracted by all the other Government issues that departmental select committees have to deal with.”
Post Office IT scandal and Chinook injustices – strong similarities
Government business ministers may argue against a Special Select Committee to investigate the Horizon scandal. They may say the subject is too technical and complicated for a lay committee of Parliament.
But the House of Lords inquiry into the Chinook crash handled subjects a great deal more technically involved than the Post Office IT scandal.
Chinook Parliamentary inquiry
The House of Lords committee which was set up to consider whether RAF two air marshals were justified in finding the [dead] pilots of Chinook ZD 576 grossly negligent had highly-detailed technical briefings that included slides and diagrams of the results of computer simulations.
The Chinook inquiry peers assessed contradictory evidence over whether visual or instrument flying rules applied at the time in question, what the weather conditions were likely to have been, the reliability or otherwise of the aircraft’s main components and the implications of a waypoint change shortly before the crash. The ambiguities in the formal accident report meant that peers needed to consider the disputed history and functioning of proprietary navigation equipment, flying controls, the computer-controlled “FADEC” engines and, among other things, the hydraulic systems.
Lords inquiry into Post Office scandal a much simpler task
By comparison, any Parliamentary committee on Horizon would have, from a technical point of view, a much simpler task. This is largely because conclusions on disputed technical matters were set out clearly in the lengthy but incisive rulings and appendices written by Mr Justice Fraser last year.
Lawyers say the litigation’s two main technical conclusions are simple to grasp. The first is that Horizon’s numerous faults caused numerous unexplained shortfalls. The second is that Fujitsu had a “back door” through which its personnel could edit, delete and add entries on post office branch accounts without the knowledge of sub-postmasters. Further, Fujitsu’s personnel were able to use counter ID numbers that gave sub-postmasters looking at Horizon records the impression that they themselves had made the Fujitsu-instigated deletion, add or edit. The Post Office argued during the litigation that Fujitsu made a tiny number of changes but the judge found that audit records of changes were inadequate or non-existent for six years.
Some lawyers say these two main technical findings undermine every prosecution and confiscation based on Horizon.
Possible questions for a Lords Special Select Committee?
None of the following questions form any part of the terms of reference of Williams inquiry into Horizon.
The first big question is how a state-owned institution seemingly acted as if answerable to nobody – which was one of the High Court’s findings.
Another issue is whether the Post Office and civil servants are, at present, deliberately over-complicating Horizon issues in order to try and deal with every complaint individually as if each case were a complex legal matter, which delays justice further. For some, justice has already been delayed 16 years. By surrounding uncomplicated technical matters in a mist of legal and technological uncertainties and ambiguities, are the Post Office, its ministers and BEIS civil servants delaying, for them, the day of reckoning and accountability?
The Post Office’s lawyers are currently looking through millions of documents to assess possible miscarriages of justice. But a single document may alone determine a person’s innocence if it says there was no evidence of theft when the person was in fact charged with theft. It is unclear whether such a document would be among the millions disclosed if it were deemed to be legally privileged, and therefore confidential, information.
Another major issue for any Lords Special Select Committee could be why ministers and civil servants in successive administrations accepted the Post Office’s assurances about Horizon’s robustness at face value despite the repeated concerns of peers and MPs. James Arbuthnot and other Parliamentarians have been campaigning in Parliament since 2010 to unearth the full truth about Horizon’s faults and questionable prosecutions. When civil servants at the Department for BEIS organised so-called “independent” investigations into Horizon, they were always under the auspices of the Post Office, as is the current “Historical Shortfall Scheme”.
A further issue for a committee of peers could be how and why the Department of BEIS and its ministers – who were being briefed on the litigation – let the Post Office hire four QCs and two firms of solicitors and spend tens of millions of pounds defending a computer system that the Post Office board was already aware was unfit for purpose.
Another question could be why ministers and civil servants allowed the Post Office to spend £500,000 alone on a litigation strategy. 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.”
A Parliamentary inquiry could, therefore, question whether ministers and civil servants were aware that a public institution, which is 100% owned by the government, was apparently making resolution of a High Court dispute as “difficult and expensive” as it could. This could have been a particularly unethical strategy if it was known at the time that the other side was funding its litigation from money that would have to be deducted from any settlement.
Another question for a Lords’ inquiry could be whether 50 more lawyers are now required to act for the Post Office.
A further question – again not a matter that the Williams inquiry has in its terms of reference – is whether ministers and civil servants ought to pay the legal costs of the 550 sub-postmasters for one reason alone: that the litigation has led to 47 potentially unsafe convictions being referred to the Court of Appeal.
Any Parliamentary inquiry could also look at the big prosecution and legal questions, one of which is whether prosecution lawyers chose criminal charges against sub-postmasters based, to some extent, on putting the Post Office in a strong position to seek confiscation orders for businesses, homes and cars.
On this point, there are also questions of who will be held accountable if sub-postmasters pleaded guilty to lesser offences rather than face the threat of imprisonment for stealing money they were known not to have stolen.
A further question is why a variety of judges in different courts refused the defence’s repeated attempts to obtain disclosures from the Post Office, Fujitsu and the prosecution about Horizon’s known flaws.
There are other possible questions for a Lords Special Select Committee – but all of them could fall under a simple term of reference such as,
To inquire into the implications for government and the civil service of the High Court judgment in December 2019 over the Post Office Horizon system.
A Special Select Committee inquiry would be a milestone in the 20-year history of the Post Office IT scandal. It would be a natural progression of the far-reaching rulings in the High Court litigation.
In contrast, the Williams inquiry can be of no help to those whose lives have been destroyed.
The Post Office scandal is not about whether the institution’s directors have learnt corporate governance lessons. Instead, any inquiry ought to be focused, in part, on how representatives of an arm of the UK state were able to knock on the door of an entirely law-abiding citizen at 3am to question the householder’s 19 year-old daughter-in-law over allegedly stolen money that neither of them knew anything about. Subsequently, the 19 year-old, Tracy Felstead, had her hands bound, put in a vehicle and not told where she was going and not allowed to see her family. She had committed no crime. She had the misfortune to be a Horizon end-user at the time of unexplained shortfalls. But she was taken to prison, put in a cell all day and given food through a hatch. Her adult life has been blighted by her wrongful prison sentence and conviction.
The scandal is about countless others whose stories are not dissimilar to Tracy Felstead’s. The Post Office scandal is also about an institution that is fully backed by ministers and civil servants whatever its culture, conduct, actions and questionable sense of right and wrong.
The government’s so-called “inquiry” is a wasteful, pointless and cosy exercise. However well meaning and impressive the chairman, the inquiry is fenced in by its narrow terms of reference and explicit exclusions on court-related matters.
If Mr Justice Fraser, a High Court judge managing a multi-million pound set of hearings, noted attempts to mislead the court, attempts by the Post Office to withhold relevant evidence and also the difficulties of obtaining the truth from the Post Office and Fujitsu, how is the chairman of a non-statutory inquiry who has none of the powers of the High Court, who has narrow, lame terms of reference, who cannot require anyone to attend, cannot allow for the cross-examination of witnesses, cannot require the disclosure of documents or make judgments that have a statutory footing, be expected to obtain the whole truth or indeed have a useful inquiry? Especially as the instigator of the litigation, the Justice for Sub-Postmasters Alliance, led by the formidable former sub-postmaster Alan Bates, is not taking part in the Williams inquiry.
Not even Sir Humphrey would have had the fearless daring to set such narrow terms of reference for an inquiry into the widest miscarriage of justice in England’s legal history. Could any inquiry be more institutionally self-serving?
It may even have the doubtful distinction of being a judge-led inquiry that is, at least at the start, notable for its secrecy. It is starting this week without any initial public hearing to announce how it will be conducted, what witnesses will be called, what evidence will be sought and what is the projected timetable.
It’s one thing for civil servants and the Post Office to be answerable to nobody. Are government business ministers and business secretaries also entirely unaccountable, except at a general election?
Ministers, the Department for BEIS and other parts of the civil service seem to find injustices on an industrial scale easy to bear. This apparent lack of concern – almost an official indifference – greatly deepens and compounds the Post Office IT scandal.
A Special Select Committee of the House of Lords may be pivotal in bringing about justice against all the odds. Lord Arbuthnot deserves wholehearted, all-party support for his important idea.
Sub-postmasters still in the dark over Horizon errors – Karl Flinders, Computer Weekly
Inside the Post Office IT scandal – Financial Times