The Post Office goes into the 21st year of IT-related disputes with a fresh dispute

By Tony Collins

Royal Courts of Justice – mahosadha-ong-lSdxCqutMKE-unsplash

After 20 years of making contentious claims about its Horizon computer system, the Post Office is well into the third decade of disputes relating to the system – and is now involved a fresh legal controversy as poignant as hundreds of others since it introduced the Fujitsu-designed Horizon IT system in 1999 and 2000.

Some in the media have suggested that the so-called Post Office IT scandal is nearing a conclusion now that the publicly-owned institution accepts computer problems caused shortfalls in accounts for which it blamed sub-postmasters.

But the reality is not as black and white. Next week, the Court of Appeal will hear 41 appeals of sub-postmasters who were convicted of theft, fraud or false accounting where data from the defective Horizon system was at the heart of the prosecution case. In nearly all the cases, the Post Office is not contesting the appeals because it accepts that evidence in the original private prosecution was incomplete and that the Horizon system’s faults were not disclosed to judges and juries. But the Post Office has denied, in most cases, that it was wrong to have prosecuted in the first place, which means it is far from clear today that the Post Office fully exonerates most of the appellants from wrongdoing.

Indeed, it is by no means clear whether the Post Office now accepts that Horizon was to blame for the particular shortfalls in question in more than 2,000 cases.

Controversies continue. Until November last year, the disputes relating to Horizon had been between the Post Office and those who ran branch post offices – sub-postmasters and sub-postmistresses – or their employees. Some of the disputes led to imprisonment, bankruptcy and, in two cases, suicide. The Post Office successfully prosecuted an estimated 900 sub-postmasters on charges arising out of shortfalls shown on a flawed Horizon system. Local and regional papers carried the stories, such as the premature death of former sub-postmaster, Julian Wilson, whose widow Karen said he was a broken man after trying to cope with an increasing number of unexplained shortfalls on Horizon.

Birmingham Mail – 26 January 2020

The Post Office’s action against Julian led to his having to dig graves as part of 300 hours of community service. Karen sold her engagement ring to help pay money the Post Office claimed was owed. Julian joined the Justice for Sub-postmasters Alliance but died before achieving justice. His family are continuing his campaign. 

Disputes continue

From the Post Office’s viewpoint, the unexplained shortfalls shown on its Horizon system were usually caused by criminality or incompetence on the part of sub-postmasters or their employees. Indeed, the Post Office expressly accused some sub-postmasters of criminal offences when they were being cross examined in a High Court group litigation brought by 550 former sub-postmasters against the Post Office between 2017 and 2019.

In the litigation, the Post Office told the High Court that it accepted Horizon was not a perfect system but argued that it was robust because of the manual and automated “countermeasures” in place to identify bugs or errors, fix them and correct their consequences if any. The judge disagreed. He found that Horizon was “not remotely robust”.

The Fujitsu building, Bracknell
cc-by-sa/2.0 – © Alan Hunt – geograph.org.uk/p/4357697

Before Fujitsu rolled out Horizon in about 18,000 post offices in 1999 and 2000, paper-based accounts meant that identifying the cause of discrepancies was usually straightforward.  But when the centrally-operated Horizon went live, sub-postmasters found it difficult and frequently impossible to identify the cause of shortfalls. Disputes became almost inevitable when sub-postmasters were presented with large balance discrepancies they were unable to explain.

The Post Office usually won its disputes. It terminated the contracts of sub-postmasters and launched hundreds of private prosecutions and civil claims. In most of the disputes, the courts accepted, at face value, a statement from the Post Office or Fujitsu that confirmed Horizon was reliable at the time in question. Sub-postmasters and their lawyers were unable to prove otherwise because they were refused access to the system’s back-office data or Fujitsu’s “Known Error Log” that recorded when the Horizon system failed to work as intended.  The Post Office and Fujitsu did not disclose the log at any criminal court hearings and judges refused defence requests for Horizon fault data to be disclosed. Judges worked to a Law Commission “presumption” that a corporate computer system was much like a mechanical clock: anyone looking at it could see if it was faulty or not. After obtaining criminal convictions, the Post Office made “Proceeds of Crime” applications for orders by the court that confiscated the property and belongings of sub-postmasters, including their home.

The disputed shortfalls usually amounted to tens, and sometimes hundreds,  of thousands of pounds.  When former sub-postmaster Lee Castleton disputed unexplained Horizon shortfalls of about £26,000, the civil courts dismissed his defence that Horizon was to blame and ordered him to pay what the Post Office said were its costs, £321,000, which was nearly 12 times the amount of the shortfalls. He went bankrupt in 2007 and became an electrician, working around 100 hours a week to support his wife and two children.

In 2019, in the High Court litigation brought by former sub-postmaster Alan Bates and his legal team against the Post Office, the judge managing the case, Mr Justice Fraser, ruled that Horizon had bugs, errors and defects that caused numerous shortfalls for which the Post Office wrongly blamed sub-postmasters or their employees.

Mr Justice Fraser

But today, the judge’s rulings are not interpreted in the same way by former sub-postmasters and the Post Office. The Post Office says the ruling was that Horizon had the “potential” to cause shortfalls. Sub-postmasters say the judgment found that Horizon’s bugs, defects and errors had actually caused shortfalls.

In 2020, the Post Office’s CEO told MPs of the Business, Energy and Industrial Strategy committee that the High Court judgment on Horizon “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”.

After 20 years of disputes involving Horizon, the two sides are, therefore, still far from agreeing that Horizon has caused the particular shortfalls in question. Indeed, when the Post Office and sub-postmasters settled the group litigation in December 2019 with the Post Office’s payment of nearly £58m, it was far from clear that the Post Office accepted any of the sub-postmasters’ claims about Horizon.

The confidential “Settlement Deed”, included an agreed form of words for the Post Office’s public apology which was unspecific and vague. It implied that its wrongs were in the past. It said …

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Past imperfect, present perfect?

Government ministers have stated repeatedly that the Post Office has apologised. But the apology is nearly always in line with the vague wording in the deed, which leaves sub-postmasters wondering what the Post Office is apologising for. Post Office chairman Tim Parker has said, “We accept that, in the past, we got things wrong in our dealings with a number of postmasters…” Post Office CEO Nick Read told MPs in June last year, “We accept that we got some things wrong in the past. We all need to recognise this and focus on finding the best way forward.” Business minister Paul Scully, who has the Post Office in his remit, told campaigning MP Kevan Jones, “The 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.” [emphasis added]

Another dispute

The Post Office is currently contesting some of the appeals referred to the Court of Appeal by the statutory body, the Criminal Cases Review Commission [CCRC], which has spent several years investigating possible miscarriages of justice linked to Horizon. The CCRC referred to the appeal court the cases of 47 people who were convicted of Horizon-related offences. In December last year, Southwark Crown Court [the relevant appeal court for those convicted in a magistrates court) overturned the convictions of six appellants. The other 41 cases are due to be heard next week in the Court of Appeal, Criminal Division, at the Royal Courts of Justice [which is the relevant appeal court for those convicted in a crown court) with 38 of the cases unopposed. But, in most of the appeals, the Post Office disputes the CCRC’s claim that the Post Office was wrong to have prosecuted in the first place. The CCRC expresses the view that it was an “affront to the public conscience” for criminal proceedings to have been brought at all.

 The Post Office accepts in all but three of the 47 cases that its prosecution evidence relating to Horizon was incomplete – which implies it made mistakes. But the CCRC says in a paper to the government inquiry into Horizon that it is concerned the Post Office “consciously deprived” the courts and sub-postmasters of a full understanding of Horizon’s reliability.

The CCRC said in its paper,

“The CCRC is concerned by this evidence that POL [Post Office Limited], which was victim, investigator and prosecutor in the cases in question, consciously deprived defendants and the courts of a full and accurate understanding of the reliability of the Horizon system; and that it behaved oppressively to SPMs [sub-postmasters] by overstating their contractual obligations [to make good shortfalls].
“… In all of the circumstances, the CCRC remains of the view that the High Court’s findings give rise to a cogent argument that individual Post Office prosecutions in which the reliability of Horizon data was essential to the prosecution case … were an affront to the public conscience and should not have been brought.”

If the prosecution consciously deprived the courts and juries of critical evidence about Horizon, this could be said to bring the criminal justice system into disrepute and raises questions of why no prosecutors will be held to account. But government ministers and civil servants have set up an inquiry into Horizon that is precluded from investigating the Post Office’s conduct as prosecutor. Alan Bates said of the Horizon inquiry, “This is a pointless exercise, it’s utterly futile, another whitewash. We certainly will not engage in this inquiry.”

Another continuing controversy – the absence of fair compensation

Although the Post Office paid £57.75m to settle the group litigation, the net proceeds after costs covered only a small percentage of direct losses suffered by most of the 550 litigants. No compensation has been paid for the enforced loss of their livelihood when the Post Office suspended sub-postmasters or deducted Horizon shortfalls from their remuneration. The loss of livelihoods affected more than jobs. Sub-postmasters typically invested £80,000 to £120,000 into buying a branch post office and adjoining retail shop. When the Post Office suspended them, sometimes locking sub-postmasters out of their own premises, an enforced sale of the business meant that sub-postmasters received knock-down prices for the premises, business, fixtures, fittings, improvements made and stock relating to the linked retail shop and residential premises. No compensation has been paid for the Post Office’s lack of adequate notice when terminating contracts or the loss of earnings following suspensions and contract terminations. No compensation has been paid to sub-postmasters for the loss of their reputation, including their children being spat at in the street or the prejudice to their future employment and business prospects. They have received no compensation for the loss of credit, the consequences of bankruptcy or other insolvency and for their personal sufferings, such as trauma, mental and physical health problems, anxiety, distress and disappointed expectations; and in most cases sub-postmasters have not had returned to them the full amount of shortfalls they made good from their own pockets.

Paul Scully MP, business and postal affairs minister.

Junior minister Scully appears to support the position of the current Post Office board in all contemporaneous disputes. He has made clear repeatedly that the government will not pay any compensation because he says it was not a party to the final settlement (although the government owns 100% of the Post Office through UK Government Investments that has a seat on the board). He says that “compensation was settled in a full and final settlement that was agreed with the Post Office”. Scully has also made clear that if there have been a mass of wrongful convictions, these are, again, not a matter for government or its inquiry. Scully told MPs that “if people have been wrongly convicted, there will be procedures in place for them to claim compensation”.

Perhaps one reason the publicly-funded Post Office has been such a formidable protagonist in disputes is that, since Horizon went live,  government ministers and civil servants at the Department for Business, Energy and Industrial Strategy and its predecessor departments, have consistently looked the other way, or supported the Post Office’s board, when it took a controversial position in disputes.

A fresh dispute and the “Clarke Advice”

The Clarke Advice, arguably, is the single most important Post Office document to emerge in the 21 years of the Horizon IT scandal. It is yet to be made public but some of its contents were read out at the Court of Appeal in November last year. The Clarke Advice was written for the Post Office in 2013 by a barrister called Simon Clarke. It contains information that a senior Fujitsu engineer failed to disclose Horizon IT errors during prosecutions of sub-postmasters. The Court of Appeal heard that the engineer was aware that Horizon contained bugs, including the “receipts and payments mismatch bug”. It was revealed in the High Court litigation that the receipts and payments bug had a potential and actual impact on the branch accounts of sub-postmasters.

The Clarke Advice’s partial disclosure at the Court of Appeal last November raises several questions. The first is whether the Post Office kept the Clarke Advice secret for seven years – and it is still largely secret today – because its disclosure when it was written in 2013 could have undermined an £89m High Court litigation and the prosecution of hundreds of sub-postmasters between 1999 and 2013.

At the heart of the High Court litigation was the question: did Horizon have bugs and other deficiencies? The Clarke Advice gave the answer: it did. Had the Advice been known about in 2013, therefore, it could have exposed the Post Office’s decision to defend Horizon in the High Court group litigation in 2017 as irrational and a waste of money.

Also, if the Advice had been known about in 2013, many of the convictions that today blight the lives of sub-postmasters might have been quashed years ago. There have been up to 900 prosecutions based on evidence from the Post Office or Fujitsu that Horizon was robust.

Disclosure of the Clarke Advice in 2013 could also have made it difficult for the Post Office to keep hold of the money it demanded from sub-postmasters on the basis that shortfalls shown on Horizon were correct. The sums involved, in total, amount to millions of pounds.

The Post Office’s QC at the Court of Appeal hearing last November named the Fujitsu expert referred to in the Clarke Advice. Why did the Post Office go through two years of High Court litigation, between 2017 and 2019, when it defended Horizon as trustworthy while knowing secretly that Fujitsu’s lead engineer on the contract was aware of bugs and errors in it?

The expert’s name is mentioned 88 times in the High Court judgment of December 2019 and the judge devoted several pages of his ruling to questioning why the Post Office had decided not to call the expert to give evidence, although the judge acknowledged that it was the Post Office’s right to choose whomever it wanted to call as an expert witness. The judge said it was a controversial matter between the parties that he had not been called as a witness.

The existence of the Clarke Advice in 2013 also raises questions about how much government and Whitehall, namely the predecessor of the Department for Business, Energy and Industrial Strategy, knew of the document, given that the civil service has a representative on the board of the Post Office. Why did government ministers write letters to the Justice for Sub-postmasters Alliance defending continuance of the litigation when the secret Clarke advice, had it been disclosed, would have undermined the Post Office’s High Court defence of Horizon? Were government, Whitehall and the Department for BEIS complicit in covering up the Clarke Advice because its disclosure would have confirmed the existence of the Horizon IT scandal in 2013 – the countless wrongful prosecutions and unjustified demands for money – at a time when existence of any scandal was being officially denied. Indeed, the Post Office told MPs in 2015 that the “Post Office is under an absolute duty to disclose any evidence that might undermine a prosecution case or support the case of a defendant… To date, no such evidence has been provided.”

But Lord Arbuthnot, who has campaigned for sub-postmasters since 2010, said the Clarke Advice “establishes that the Post Office lied to, and was in contempt of, Parliament”.

The Court of Appeal last year refused to order the disclosure of the Clarke Advice. This could be because the three judges were simply deferring to a national institution, the Post Office, which had argued the Clarke advice was privileged information. Or were the judges innately cautious about ordering the disclosure of a document that exposes a giant hole in the criminal justice system? Courts are supposed to convict the guilty and acquit the innocent after hearing both sides of the argument. In fact courts across the country accepted the flawed evidence of the corporate Post Office and Fujitsu and gave little weight – and indeed rejected – the Horizon complaints of hundreds of individual sub-postmasters of integrity.

As a result, dozens of appeals against wrongful convictions based on flawed Horizon evidence are before the Court of Appeal next week. Some sub-postmasters have lived with wrongful convictions for more than a decade. Many more appeals are pending.  Is this large hole in the criminal justice system a good reason for appeal judges to want, perhaps subconsciously, the Clarke advice to remain a secret?

Post Office’s complaint over the Clarke Advice

In the Court of Appeal in November last year, the Post Office made a complaint that may lead to court proceedings against two barristers who now face a possibility of Contempt of Court charges which could lead to a fine, imprisonment or both. There is usually no guarantee of a jury trial in contempt proceedings.

The barristers were working on a mainly pro bon basis – free of charge in the public interest – in the aid of Tracy Felstead, a former Post Office branch employee, and two former postmistresses, Janet Skinner and Seema Misra, who were imprisoned for theft or false accounting after being unable to explain Horizon shortfalls.

Tracy Felstead has lived her entire adult life with an unsafe criminal conviction. She was 19 when charged with theft in 2002 on the basis of Horizon data. She went to Holloway prison. Janet Skinner was charged with theft in 2006 and Seema Misra in 2008. The two barristers, Paul Marshall and Flora Page, were due to represent them in appeal hearings next week.

But, because of the Court of Appeal’s threat of contempt proceedings, Marshall and Page, have decided to step down from representing the three appellants.

Marshall is a renowned expert on Horizon miscarriages of justices and has written papers on the subject. He has also made submissions to House of Commons select committees. Marshall and Page were the only barristers in the current appeal cases who were seeking to persuade the Court of Appeal that it should hear arguments on whether the Post Office prosecutions amounted to a “second category abuse of process of the court”.

There are two categories of “abuse of process” on which convictions can be quashed. Only the first category need be proved for convictions to be overturned but Marshall and Page wanted the second category to be considered as well. The Post Office has accepted the first category in most of the cases but not the second. The Post Office’s acceptance of the first category suggests it recognises that sub-postmasters in question did not receive a fair trial because of a failure to disclose details of Horizon’s faults.

The second category of abuse is an argument that the prosecutions ought not to have been brought and that bringing them was an affront to the public conscience. An argument in this category is that the prosecutions undermine public confidence in the criminal justice system and bring it into disrepute.

Proving the second category may strengthen the arguments of sub-postmasters who want to make claims against the Post Office for malicious prosecution. Such claims are expressly preserved for convicted sub-postmasters in the litigation Deed of Settlement. 

In December 2020, the Court of Appeal formally agreed to hear the second category arguments as part of next week’s appeals. The Court agreed this after hearing from Lisa Busch QC who, by then, had taken over from Marshall and adopted his arguments. .

On stepping down from representing the appellants, Marshall wrote on Linkedin,

“After four years of struggles with metastatic cancer I have had my first third set of clear tests; a journey of sorts and a miracle. Strange to owe your life to the extraordinary skill of others. Less welcome news has been to be made subject of a threat by the Court of Appeal (Holroyde LJ, Picken, Farbey JJ) to initiate contempt of court proceedings against me. The ostensible basis is that in the course of appeals by Tracy Felstead, Janet Skinner and Seema Misra against their convictions on prosecutions by the Post Office, I gave to the Metropolitan Police a document – ‘the Clarke Advice’ – because of what it revealed. The legal basis for the threat and the procedure in making it remain mysterious. It has caused me to cease representing my clients and deprived them of many hundreds of hours of work (most pro bono) devoted to preparing their appeals.”

Marshall’s resignation and the Clarke Advice

When the Court of Appeal met in November last year for an initial “Directions Hearing” on the 41 appeal cases, the three judges spent much of the available time on a question of whether the Clarke Advice had been improperly disclosed. Marshall who was then acting for Seema Misra, Tracy Felstead and Janet Skinner, provided a copy of the Clarke Advice to the Metropolitan Police, which is investigating whether Fujitsu employees, as prosecution witnesses, committed perjury when giving evidence about Horizon in criminal court proceedings.  

His junior, Flora Page, had provided a copy to her brother, a journalist, who wanted to refer to it in an article he proposed to publish after the Court of Appeal hearing.

The Post Office and the Court of Appeal judges were unhappy about the disclosures. The Post Office said the Clarke Advice was a privileged document released to lawyers for the purposes of the appeal.

Page told the court that she was aware her brother would not publish anything on the Clarke Advice unless the document was “fully enunciated in court”.

Marshall told the Court of Appeal that it appeared the Criminal Cases Review Commission had not been provided with the Clarke Advice and that the document would have a significant impact on how his clients put their appeals.

After raising the matter of the Clarke Advice near the start of the Court of Appeal Directions Hearing in November, the Post Office’s QC told the three judges, “it is open to the court, we submit, to treat the matter as a civil contempt. It is not, in our submission, at least superficially, a criminal contempt but a civil contempt”. 

Civil or criminal, contempt of court can be punished by imprisonment. The Post Office’s QC told the court why the Post Office had made a complaint.

“We have brought this issue to the attention of the court because we regard it as our professional duty to do so. We also make it clear that the complaint is about the alleged acts of a lawyer or lawyers acting for three of the appellants, not the appellants themselves.” The Post Office says it supplied the Clarke Advice to lawyers representing appellants for the purposes only of their appeals.

Marshall has written to the Court of Appeal to say why he is standing down as legal representative in the three appeal cases. “I consider that I am inhibited from continuing fearlessly to represent my clients before this court. I am consequently disabled from discharging my professional duty to my clients,” he said in his letter.

Lord Arbuthnot, a former Conservative defence minister, says the Clarke Advice ought to have been in the public domain years ago. In a letter to a junior business minister Lord Callanan about the Clarke Advice, Lord Arbuthnot said, “We should have been told about this document, but I have not yet seen it. Please will you immediately send me a copy, and place it in the library of both Houses?” But it hasn’t been placed in either library. 

Journalist Nick Wallis has reported on the “hugely important” Clarke Advice. Wallis points out that if the prosecution’s expert witness, who was named in the Clarke Advice, was wrong, “it could have massive implications for the safety of those prosecutions”.

Lord Falconer, a former Labour Lord Chancellor, has joined those calling for the Clarke Advice to be put in the public domain. He refers to the document as a “smoking gun”. He told Wallis,

“It is blindingly obvious that the Clarke advice should be in the public domain so that everyone can see it and read it and make judgments about the Post Office’s conduct.”

Wallis made a formal submission to the Court of Appeal asking for the Clarke Advice to be released. The Court of Appeal has so far refused. On this, Dinah Rose QC, who is president of Magdalen College, Oxford, tweeted that she “cannot see any good reason to withhold the Clarke Advice”.

Clarke Advice “potentially relevant” says Criminal Cases Review Commission

The Criminal Cases Review Commission has written to the Post Office requiring that it provide a copy of the Clarke Advice. In requiring the Post Office to provide the document, the CCRC cited its powers under section 17 of the Criminal Appeal Act 1995. The obligations under section 17 are “absolute and override public interest immunity, legal professional privilege and any other rule or obligation of confidentiality which would otherwise be attached to this material”.

In November 2020, the CCRC also wrote to the Court of Appeal on the Clarke Advice. Wallis has published the CCRC’s letter. It’s written by Sally Berlin, Director of Casework Operations, at the CCRC. It says the Clarke Advice is of “potential relevance to Post Office cases which have already been referred to the Court of Appeal”.

The CCRC suggests that consideration be given to passing the Clarke Advice to the Metropolitan Police which Marshall has already passed to the police. The CCRC’s letter said,

“… as the Court will be aware, the Metropolitan Police Service is currently conducting a criminal investigation into allegations of perjury and perverting the course of justice in respect of particular expert witnesses, one of whom is the subject of the Clarke advice. We understand that the parties may wish to consider whether the Clarke advice – either in whole or in part – ought to be disclosed to the MPS [Metropolitan Police Service] investigation team. You may already have that in hand.”

Contentious Post Office assertions that can never be put right

The sister of a sub-postmaster Martin Griffiths has written a dignified and moving account of her late brother’s experience of Horizon losses.

She says in a letter to the government’s Horizon inquiry that her brother fought to make sense of losses that were shown on Horizon.

“He continually tried to speak to the Help Line, but was told it must be his fault and he would have to make good the losses as the Horizon system was functioning perfectly well. Initially he did not want to worry his family with these debts, so used his personal savings to make good the losses, but this meant he could not afford the usual family holiday. My elderly parents became very concerned as the losses started to increase into thousands of pounds. The stress began to take its toll. As Martin fought to make sense of the losses he could not explain, his personality and state of mind started to deteriorate. He had been outgoing and sociable, but during this period he began to change. He became very depressed and withdrawn and felt he was the only one in this dire situation and so it must be all his fault.
“In 2011, I hated to see the toll this was taking on my brother and my parents, so I began to search the internet to see if other Sub-postmasters had similar problems with their Horizon system. I then to my shock, unearthed such a can of worms. I discovered Alan Bates who established the JFSA [Justice for Sub-postmasters Alliance], and also watched a very alarming documentary made by Nick Wallis for “Inside Out” where he revealed that hundreds of Sub-postmasters were experiencing unexplained losses. This could not be just a coincidence – these employees were not hardened criminals. I felt so angry and frustrated. I tried to show all my research to my brother, to prove he was not “the only one” in this mess, but he was too depressed to fight. Later in 2011 Martin was audited and the Post Office suspended him. A temporary Sub-postmaster was installed. This was another blow to Martin’s self-esteem. After three months, Martin got his job back, but the losses continued to escalate, and Martin seemed unable to stop them. The deteriorating financial situation affected his marriage and he reluctantly asked my parents for money. Between 2012 and 2013, my parents’ life savings were swallowed up by the Post Office, as they continued to demand the “missing” money be settled. The situation was desperate…  He was repeatedly told to make good the losses or face the termination of his contract. In July 2013 he received a letter informing him that due to his failure to manage the discrepancies at his branch and his failure to settle them in good time he was being sacked. He still owed thousands of pounds to the Post Office and his contract would be terminated at Hope Farm Road on 3rd October 2013. The ongoing debt to the Post Office and the thousands of pounds he owed our parents, together with the thought of telling the staff that his contract was soon to terminate, all became too much. He could see no way out. Early on the morning of 23 September he made his usual journey to work, pulled over in a layby on the A41, got out of his car and deliberately stepped into the path of an oncoming bus. He was rushed to Aintree hospital which specialises in head injuries, where he lay in an induced coma. For an agonising three weeks my brother was on life support which had to be switched off on 11 October 2013. Every time I read or hear a news item about the Horizon scandal, it brings back all the pain and the anger. My brother tragically lost his life due to a faulty computer system. The Post Office repeatedly denied computer error was the cause of losses amounting to millions. Instead, they arrogantly blamed my brother and thousands of other innocent Sub-postmasters, by wrongly accusing them of theft or false accounting.”

The letter asks three questions: why did the Post Office not investigate Fujitsu to find out what was causing the glitch, why did it not provide support for very worried employees and why did it halt an investigation by forensic accountants Second Sight which was raising difficult questions.

The letter concludes,

“Justice must prevail. Until then my family cannot move on from our tragedy.”

Some contentious Post Office assertions between 2009 and 2020

In 2009, Computer Weekly’s Rebecca Thomson gave the first account of the Post Office’s actions against sub-postmasters over unexplained losses shown on Horizon. Ten years later, in the group litigation settlement deed, the Post Office set out the measures it is taking to reform itself. But critics question whether the institution’s adversarial culture is too ingrained to be reversed.  

Below are some of the Post Office’s contentious statements or attacks on critics in relation to Horizon. Its detailed criticisms have been directed at sub-postmasters, forensic accountants Second Sight, BBC Panorama, and some of the findings of a High Court judge whom it tried to remove.

Forensic accountancy Second Sight was hired to investigate sub-postmasters’ complaints about Horizon amid concerns about the system among MPs, particularly James Arbuthnot. The Post Office ended its relationship with Second Sight when the accountancy firm raised concerns about Horizon, the treatment of sub-postmasters’ complaints and asked to be able to review the prosecution files. By this time Second Sight’s accountants, who are highly experienced in fraud investigations, had already raised concerns about the conduct of some prosecutors.

The Post Office’s consistent criticisms of sub-postmasters and its contentious statements relating to Horizon lasted 20 years under different boards, CEOs and senior executives. The statements show, perhaps, how hard it will be for the corporate Post Office now to make the attitudinal switch to becoming compassionate, contrite, non-confrontational and fully understanding of the effects its accusations have had on countless families.

These are some of the Post Office’s contentious statements and criticisms between 2009 and 2020 (not in date order) …     

“The Post Office does not prosecute people for making innocent mistakes and never has.”

“There is no evidence that faults with the computer system caused money to go missing at these Post Office branches. There is evidence that user actions, including dishonest conduct, were responsible for missing money.”

“We are sorry if a small number of people feel they have not been treated fairly in the past but we have gone to enormous lengths to re-investigate their cases, doing everything and more than we committed to do.”

“All of the allegations presented in the [BBC Panorama] programme have been exhaustively investigated and tested by the Post Office and various specialists over the past three years or more. The unsubstantiated claims and theories that continue to be levelled against the Post Office are at odds with the facts and are constructed from highly partial, selective and inaccurate information.”

“The Horizon computer system is robust and effective in dealing with the six million transactions put through the system every day by our postmasters and employees at 11,500 Post Office branches. It is independently audited and meets or exceeds industry accreditations.”

“The Post Office has always taken its duty to act fairly, proportionately and with the public interest in mind extremely seriously.”

“Prosecutions are brought to determine whether there was criminal conduct in a branch, not for the Post Office’s financial considerations.”

“The Post Office takes extremely seriously any allegation that there may have been a miscarriage of justice. We have seen no evidence to support this allegation. The Post Office has a continuing duty after a prosecution has concluded to disclose any information that subsequently comes to light which might undermine its prosecution or support the case of the defendant and continues to act in compliance with that duty.”

“There is overwhelming evidence that the losses complained of were caused by user actions, including in some cases deliberate dishonest conduct. The investigations have not identified any transaction caused by a technical fault in Horizon which resulted in a postmaster wrongly being held responsible for a loss of money.”

“There is also no evidence of transactions recorded by branches being altered through ‘remote access’ to the system. Transactions as they are recorded by branches cannot be edited and the Panorama programme did not show anything that contradicts this.”

“The Post Office is concerned that the report by Second Sight … repeats complaints made by a very small number of former postmasters, as well as a number of assertions and opinions…”

“A tiny fraction of the overall 500,000 people who have used Horizon since it was introduced more than a decade ago have put forward complaints. That does not constitute evidence that the IT system is flawed or unfit for purpose; indeed, if anything, it demonstrates that the system is highly reliable.”

“Post Office as a prosecutor has a continuing duty to disclose immediately any information that subsequently comes to light which might undermine its prosecution case or support the case of the defendant.”

“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 to be wanting. I am satisfied that there is no evidence to doubt the integrity of the Horizon system and that it is robust and fit for purpose.”  (Post Office statement to MP in 2009.)

“Any subpostmaster who is unhappy to accept a loss has the opportunity to provide evidence why they believe that they are not responsible for it. We do take the concerns of our subpostmasters extremely seriously and 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.” (Post Office statement to MP in 2009.)

“There has, regrettably, been a large amount of inaccurate and misleading information reported in the media and Parliament about the claims of a small number of (mainly former) postmasters that they have been wrongly held liable for losses of money caused by faults in the Post Office computer system, Horizon. Each of these claims has been investigated by both the Post Office and by a firm of independent forensic accountants but no evidence has been presented or uncovered to suggest the system, which processes six million transactions for customers every working day, does not work as it should.”

“There is, in fact, overwhelming evidence that the losses complained of were caused by user errors, and, in some cases, deliberate dishonest conduct…”

“I am of course sorry if the people who have put forward grievances feel they have not been treated fairly and responsibly in addressing their complaints. Indeed, I would argue that we have gone much further than many commercial organisations might have done in analogous circumstances.” (Post Office letter to MP.)

 “… risible”, “meaningless”, “nonsensical”, “weak”  – some of the terms the Post Office used to describe the evidence in the group litigation of former sub-postmaster Alan Bates. The judge used different terms of Bates’ evidence: “careful”, “honest”, “thorough”, reliable” (High Court,  2018, 2019).

“…the passages to which I now refer, taken together with the matters that I have already dealt with, reinforce our concern that your Lordship’s mind is closed against Post Office. That concern, we submit, would be shared by a reasonable observer possessed of the facts.” [Post Office applies in 2019 to recuse – remove – Mr Justice Fraser, who was managing the High Court group litigation.)

“The judgment [in the case Bates v Post Office] 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.” [Post Office CEO to MPs, 2020]

Comment

Nick Wallis, in one of several excellent articles on the Clarke Advice, points out that the Post Office says it is now a reformed operation, “yet you could argue it appears to be doing two of the things which got it into this mess in the first place:

a) trying to keep important information from the public gaze (see Fraser J’s second judgment in Bates v Post Office),

b) using its vast resources and legal firepower to set in motion events which may end up crushing peoples’ livelihoods.”

Indeed, after two decades of disputes that led to the shame and ruin of countless families – and the deaths of Martin Griffiths, Julian Wilson and Fiona Cowan – is it really necessary for the Post Office to go through 2021 with another controversy?

The Post Office wants to convince people it is genuine about reforming its culture and attitudes. It can argue that it has set up a Historical Shortfall Scheme to compensate sub-postmasters who can establish they made good discrepancies that were not their fault. The scheme has had nearly 2,500 applicants. But it is shrouded in secrecy and sub-postmasters cannot air their grievances in an open courtroom if their claims are over £10,000 and they are dissatisfied with the scheme’s outcome.

The Post Office could also argue that it is listening to sub-postmasters: it is appointing two sub-postmasters to its board. But if the appointees are barred from speaking out if they find their concerns are ignored or side-lined, are the appointments pointless, a public relations exercise?

Mr Justice Fraser remarked on the Post Office’s culture of secrecy. He said in his judgment of March 2019, “There seems to be a culture of secrecy and excessive confidentiality generally within the Post Office, but particularly focused on Horizon.” Has much changed since 2019?

Indeed, the Post Office’s complaint to the Court of Appeal about the two barristers, its opposition to parts of the Criminal Cases Review Commission’s case for the convictions of sub-postmasters to be quashed and its less-than-full exoneration of sub-postmasters who are going through appeals, may indicate that confrontation is etched into the Post Office’s corporate psyche.

Given that disputes related to Horizon are now well into their third decade, under different CEOs and boards, it’s hard to conclude that the Post Office will ever, however much it tries, wean itself off a need for excessive secrecy and confrontation.

**

Post Office can still upturn lives although it has stopped private prosecutions – the story of Chirag Sidphura on Nick Wallis’ website.

Government’s refusal of freedom of information request about Post Office scandal ‘deeply concerning’ – Karl Flinders, Computer Weekly.

Sub-postmasters set to file UK lawsuits for malicious prosecution – Financial Times

Nick Wallis’ forthcoming book on the Post Office IT scandal

Post Office notifies sub-postmasters of an ongoing Horizon issue but gives little detail – Tim McCormack’s Problems with Post Office Limited

Freedom of Information requests on the Post Office IT scandal by tenacious campaigner Eleanor Shaikh

7 responses to “The Post Office goes into the 21st year of IT-related disputes with a fresh dispute

  1. Geoffrey Freeman

    Brilliant. Succinctly describes every facet of disgraceful conduct by every component of English public life including, I am ashamed to say, the English legal system.

    Liked by 1 person

  2. Pingback: Edward Fennell’s LEGAL DIARY – The Legal Diary

  3. Scott Darlington

    Very very good article. The settlement agreement has really made things difficult going forward and to me it’s clear who was in charge of that. It’s a corrupt situation from beginning to this day and going forward.

    Liked by 1 person

  4. Thank you, Tony, for recording and publishing this update to a terrible scandal.
    It seems the Establishment is determined to continue displaying its stained undergarments and with no shame and no genuine remorse.
    It even allows its own to be thrown under the bus for no genuine reason – emphasising the callousness and self-protecting nature of the whole operation.
    It’s sad to watch this country’s deterioration but, looking at the evidence, it seems inevitable.
    I thank you and wish the innocent well.
    Zara

    Liked by 1 person

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