By Tony Collins
Sir Wyn Williams, chairman of a government “inquiry” into the Post Office Horizon IT system, has made a personal appeal for co-operation and warned that non-cooperation may frustrate the inquiry’s aims and ambitions.
His appeal is directed implicitly at the Justice for Sub-Postmasters Alliance, which represents victims of the Post Office IT scandal. But the Alliance, which is run by campaigning former sub-postmaster Alan Bates, will not take part. Bates sees no point in the inquiry.
On the same day as Sir Wyn’s appeal for co-operation, the postal affairs minister Paul Scully made a similar plea in a Commons debate on the Post Office Horizon system.
But Scully rebuffed MPs who branded his inquiry a whitewash and he did not answer directly most of their questions.
Scully and Sir Wyn may also have implicitly directed their appeals at forensic accountants Second Sight which is not taking part in the inquiry.
Without the participation of the Alliance and Second Sight, the inquiry will be seen as an embarrassing failure and a waste of money even before it is properly underway.
That Scully and his department, BEIS, set up the inquiry without first securing the participation of the Alliance and Second Sight may suggest to some that the inquiry is a largely political response – an attempt to be seen doing something – in the light of a scandal that lawyers say represents the widest miscarriage of justice in the country’s legal history.
The scandal began after the Post Office went live in 1999 with the Horizon system, built and run by Fujitsu. The system is installed in 11,500 post office throughout the UK. Businessmen and women who ran branch post office, sub-postmasters, had to use the system for all transactions without any paper back-ups. But, soon after Horizon went live, sub-postmasters began to experience unexplained shortfalls in their branch balances. The Post Office and Fujitsu did not tell them of material bugs in the system. Meanwhile sub-postmasters who rang the central helpline to complain of unexplained shortfalls were told they were only ones to complain about Horizon. In fact, over more than a decade, the unexplained shortfalls were experienced by more than 2,500 sub-postmasters.
The Post Office demanded that each sub-postmaster make good the shortfalls from their own pockets, whether or not the losses were computer-generated and however big the amounts, which were often in the tens of thousands of pounds. The Post Office also prosecuted sub-postmasters for theft, false accounting and fraud on the basis of evidence from Horizon, claiming to courts the system was robust. On the back of some prosecutions, the Post Office obtained “Proceeds of Crime” orders to confiscate homes, businesses and cars. There were around 900 prosecutions. The Post Office’s actions ruined lives. Some sub-postmasters went bankrupt. Some lives were lost. Many suffered mental or physical health problems.
In 2012, after MPs raised concerns about wrongful prosecutions based on Horizon shortfalls, the Post Office hired Second Sight to investigate 136 individual cases. It found evidence of Horizon bugs and possible prosecution misconduct in at least case. The Post Office sacked Second Sight after its report found faults with Horizon and criticised the institution’s lack of co-operation and inadequate disclosures of information.
In 2017, Alan Bates led 550 sub-postmasters in suing the Post Office to prove that flaws in Horizon were the cause of unexplained shortfalls.
During nearly two years of periodic High Court hearings and interim judgments it was losing, the Post Office, aided by four QCs and two firms of solicitors, insisted throughout that Horizon was robust. The Post Office settled days before the High Court ruled that Horizon had numerous errors, bugs and defects which caused numerous shortfalls. The ruling exonerated sub-postmasters but the Post Office’s litigation settlement – which was approved by government ministers – was a minimum sum that sub-postmasters had little choice but to accept because their future litigation funding was by no means certain.
The settlement has left many sub-postmasters with losses of tens or hundreds of thousands of pounds that they still owe or have never recovered. The government has repeatedly refused to pay to sub-postmasters their £46m litigation costs which came out out of the Post Office’s settlement figure of £57.75m. MPs say the government-approved settlement has punished sub-postmasters for suing an arm of the state and exposing the extent of the scandal.
The Justice for Sub-postmasters Alliance wants an open inquiry with wide terms of reference and powers to require the cross-examination of witnesses, full disclosure of emails, Whitehall correspondence and other documents, and recommend adequate compensation for Horizon’s victims.
But although Boris Johnson has agreed to a public inquiry over Horizon, the Williams inquiry is largely in secret.
And the terms of inquiry for the Williams inquiry are narrow. They were written by the Department for Business, Energy and Industrial Strategy (BEIS) which is implicated in the Horizon scandal. For 20 years, the department’s civil servants and ministers rejected the concerns of MPs and peers about the Horizon scandal, preferring instead the Post Office’s version of events. One MP, now peer Lord Arbuthnot, has been campaigning for justice for the sub-postmasters since 2010. He secured a House of Lords debate on the scandal this week.
On Monday, BEIS published a “personal appeal” by Williams for co-operation with the inquiry but it is likely to have little effect.
Williams’ letter to “participants” said,
“I am determined that the Inquiry will provide the forum for a thorough and rigorous examination of all the evidence presented and that a report will be produced which all participants in the Inquiry and the wider public will recognise as having addressed the terms of reference constructively and in detail.
“I fully understand that my engagement with participants in the Inquiry will be crucial to achieving my aims.
“I want you to know that those were my words, carefully chosen by me to convey my determination to carry out my functions as chair with integrity, objectivity, efficiency and with a completely open mind as to the conclusions which should be reached and the recommendations which should be made.
“In order to achieve my objectives, however, I need all the help I can get from those who have information which is relevant to the terms of reference of the Inquiry. That is why I am making this personal appeal to you to engage with the work of the Inquiry and to participate in its processes as fully as may be possible.
“At this very early stage, I have no fixed views about how I should set about obtaining all relevant information over the full course of the Inquiry. However, I am completely satisfied that engaging with participants in a number of ways will be very important … By November our approach to these matters will be finalised and made public.
“I recognise that some persons and organisations have reservations about the terms of reference of the Inquiry and the fact that the Inquiry is non-statutory. No doubt, too, there will be some persons and organisations who may have reservations about the processes I intend to adopt once these are announced.
“However, I would urge you to the view that such reservations are not reasons for non-participation in the work of the Inquiry.
“I hope that you will recognise that an unwillingness to participate, in the end, will make achieving my goals so much more difficult to achieve with the consequent risk that my aims and ambitions for this Inquiry will be frustrated. Collaboration is, in my view, crucial..
“I began this letter by addressing it to participants. I very much hope that I can count upon all who receive it or to whom it is disseminated to embrace that status and help me as much as possible.
“Yours faithfully, Sir Wyn Williams FLSW.”
“Independent and full” inquiry
In the Commons on Monday, Scully joined Sir Wyn in calling for cooperation and said several times that the Post Office and Horizon’s supplier Fujitsu will cooperate fully with the inquiry. Scully said the inquiry will be “both independent and full” and that MPs will get the answers the questions they ask “in a short few months”.
But some sub-postmasters see no purpose of the inquiry, given its narrow terms of reference. The biggest concerns of sub-postmasters are specifically outside the scope the inquiry including the litigation settlement and the questionable conduct of prosecutions.
Some civil servants may hope that, by the time the inquiry reports, perhaps by next Summer, the campaign for justice will have largely blown over.
It is unclear, meanwhile, how the non-statutory inquiry’s terms of reference, will ensure the Post Office and Fujitsu will be any more open with the Williams inquiry than they were with the High Court.
Last year, the High Court Horizon judgment included many criticisms of the Post Office and Fujitsu over their approach to truthfulness and the disclosure of documents (details below).
Court of Appeal
One positive development in the campaign for justice is a widely-reported decision of the Post Office not to oppose 44 of 47 convictions of sub-postmasters, which were based on Horizon evidence, that have been referred to the Court of Appeal.
They were referred by the Criminal Cases Review Commission, which investigates miscarriages of justice. The Commission has asked the Court of Appeal to quash the convictions on the basis of an “abuse of process”.
Sub-postmasters are celebrating victory because the Post Office’s decision not to oppose 44 of the cases means those convictions are highly likely to be quashed.
Indeed, media coverage by BBC and Sky of the celebrations might have given an impression to the general public that the Post Office IT scandal is all but over.
But, for sub-postmasters, the campaign for justice continues. It is becoming clear that the Post Office, although conceding there were weaknesses in the computer evidence presented to the courts in some prosecutions, remains, to some extent, defensive.
It is understood the Post Office has accepted some parts of the Criminal Cases Review Commission’s case for overturning the convictions but by no means all of it. Indeed, the Post Office criticises some parts of the Commission’s case.
In three of the 47 cases, the Post Office has opposed an overturning of the convictions.
The Post Office’s criticism of some parts of the Commission’s case for appeals to be overturned may mean its officials have not lost entirely their combative approach to criticism.
In 2015, the Post Office launched a lengthy criticism of Second Sight. It also criticised a BBC Panorama documentary which exposed faults in the Horizon system; and during the litigation in 2017 to 2019, the Post Office attacked the credibility of individual sub-postmasters who gave evidence against the Post Office, including Bates. The Post Office, further, took exception to lengthy criticisms by the judge in the litigation, Mr Justice Fraser, head of the Technology and Construction Court. The Post Office called him biased and sought to have him removed.
This year the Post Office has told MPs that the litigation did not establish that bugs, errors and defects had caused particular shortfalls complained of by individual litigants. Now the Post Office has accepted only part of the Criminal Cases Review Commission’s case for overturning convictions.
How will ministers ensure the Post Office and Fujitsu are open and transparent when cooperating with government “inquiry”?
Scully on Monday repeatedly defended the Williams inquiry saying it will identify who knew what and when and will publish, at its end, a list of the Post Office’s failings.
It is unclear, though, what purpose a list of the Post Office’s failings will serve. Mr Justice Fraser last year identified numerous Post Office failings in his hundreds of pages of judgments.
Several times Scully promised that Fujitsu and the Post Office will co-operate with the Williams inquiry. He did not say how he would reconcile the promises of full cooperation by the Post Office and Fujitsu with criticisms of their approach to openness made by Mr Justice Fraser last year.
These were some of Mr Justice Fraser’s comments …
“The Post Office seemed to adopt an extraordinarily narrow approach to relevance, generally along the lines that any evidence that is unfavourable to the Post Office is not relevant …”
“…”These submissions by the defendant [Post Office] could, on an uncharitable view, appear to be made almost as vague threats to disrupt the Common Issues trial.” (If particular sub-postmasters’ evidence is allowed to be heard.)
“I also suspect that in the background to this application the defendant [the Post Office] is simply attempting to restrict evidence for public relations reasons.”
“The Post Office certainly tried extremely hard and expended considerable expense, in advance of this trial, to prevent this evidence from emerging into the public domain, and issued an application seeking to strike out most of it.”
“It does appear to me that the Post Office in particular has resisted timely resolution of this Group Litigation whenever it can…”
“The Post Office seemed to want findings on that only if they were in the Post Office’s favour. This is a peculiarly one-way approach by any litigant.”
“The suggestion in that letter that the Known Error Log was not relevant, is simply wrong, and in my judgment, entirely without any rational basis.”
“Essentially those provisions can only have been drafted to give the Post Office the maximum control over information, and are, in my judgment, contrary to transparency.”
“I consider his [Post Office] evidence suffered from an overarching reluctance to provide accurate evidence, if that may assist the Claimants [sub-postmasters].”
“It took a trial, tens of millions of pounds and several years to ascertain the truth about remote access.”
“The Post Office was also anxious to avoid any adverse comment by me in any respect in this judgment. I was asked to ‘be careful’, and to be aware of ‘the sensitivity’, in terms of comments or findings that the Post Office said were ‘not necessary’.”
“The Post Office may have made these submissions because, on an objective analysis, it fears objective scrutiny of its behaviour, or it may have made them for other reasons.”
“A party (here the Post Office) threatening dire consequences to national business should their case not be preferred is not helpful, and this seemed to me to be an attempt to put the court in terrorem.”
“There seems to be a culture of secrecy and excessive confidentiality generally within the Post Office, but particularly focused on Horizon…”
“I consider the significance of the previously factually untrue statements [by the Post Office] to be considerable. The statement was made publicly by the Post Office, turned out not to be factually correct, and the Post Office gave an explanation and said the full set of facts was now available… That too turned out not to be correct.”
“The claimants [sub-postmasters] also made regular complaints about disclosure and would often point out that documents had been produced during the hearing. This is because documents were often produced during the hearing.” [judge’s emphasis]
These were some of Mr Justice Fraser’s comments about Horizon’s supplier Fujitsu …
“… the majority of the Fujitsu witnesses were more interested in following some sort of Fujitsu party line than they were in answering questions in cross-examination wholly frankly, although I exempt Mr Godeseth from that criticism.” [Torstein Godeseth, Horizon’s chief architect gave objective and candid answers in cross-examination which impressed the judge.]
“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.”
“The Fujitsu witnesses should not, in their first witness statements, have made the incorrect statements that they did. Had those initial statements been factually accurate, there would have been no need for the supplementary statements from them that eventually led to the true position being accepted by Fujitsu, and therefore by the Post Office. It is highly regrettable that such a situation as this should have developed.”
“Some 5,000 KELs [Known Error Logs related to Horizon] emerged from Fujitsu well after the [Horizon] trial ended, in October 2019.”
Scully has announced that the Williams inquiry will “obtain all available relevant evidence from Post Office Ltd, Fujitsu and BEIS [Department for Business, Energy and Industrial Strategy] from the period in question.”
In terms of the last paragraph of this piece, the big unanswered question is, how?
It is entirely understandable that the Justice for Sub-Postmasters Alliance and Second Sight are not co-operating with the Williams inquiry.
It has no practical purpose. It is a “no inquiry” inquiry. It is of benefit to the government and civil servants though. It gives the impression to MPs and peers who are not following events closely that the government is doing something about what Boris Johnson has called a “disaster” for sub-postmasters.
But its terms of reference make it a caricature of a public inquiry. It is in secret, as if it were an inquiry into the security services. There are no powers to compel witnesses to attend or force the disclosure of documents and emails. There are government promises of cooperation by the Post Office and Fujitsu without any acknowledgement that the two organisations’ approach to openness was much criticised by Mr Justice Fraser last year. The list of what is specifically excluded from the inquiry’s terms of reference is of much greater interest and importance than what is included.
Delaying justice again
The Williams inquiry is worse than pointless. It delays justice. It delays the question of compensation.
The irony is that sub-postmasters will have more influence in continuing their non-cooperation than in lending credibility to the inquiry by cooperating. At least Scully is making an appeal to them. In the past, he has rejected their every request – and snubbed the MPs who have represented them.
It is highly unlikely Scully and his boss Alok Sharma will agree to widen the inquiry’s terms of reference to include the matter of the litigation settlement. It is also highly unlikely the inquiry will hold to account those in the civil service and government who allowed the scandal to happen. And it will certainly not question the probity of wrongful prosecutions.
But the least Scully and Sharma can do is hold the inquiry in public. It is secrecy over Horizon that was a cause of the scandal. Indeed, it’s extraordinary that Scully and BEIS are calling the internal review they’ve commissioned an “inquiry”. At least they have a sense of humour.
Alan Bates, other former victims of the scandal and Second Sight are to be applauded for not dignifying Scully and Sharma’s “no-inquiry” inquiry.
Government deaf to loud calls for statutory public inquiry into Post Office scandal – Karl Flinders, Computer Weekly
Closure – the real reason for the Post Office scandal review – Tim McCormack, Problemswithpol