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MI6 is more open than “inquiry” into Post Office IT scandal.

By Tony Collins

A public inquiry in 2003 that involved the intelligence, security and defence communities was more open than the largely-private format of an impending “inquiry” into the Post Office IT scandal.

The Post Office inquiry was arranged by Downing Street and officials at the Department for Business, Energy and Industrial Strategy [BEIS].

BEIS helps to fund the publicly-owned Post Office. But the Department’s officials and ministers are said to be implicated in the IT scandal because, for 20 years, they rejected complaints by MPs and peers that the Post Office’s Horizon system was flawed and its unreliable “evidence” was being used to send people who had committed no crimes to prison and to confiscate homes, businesses and cars.

Successive business ministers and the department’s officials did not effectively challenge assurances by the Post Office that its Horizon branch accounting system was robust. Horizon was built by Fujitsu and went live in 1999.

Twenty years later, in December 2019, the High Court confirmed that Horizon had numerous bugs, errors and defects that caused shortfalls on branch post office accounts.  Mr Justice Fraser, head of the High Court’s Technology and Construction Court, ruled that Horizon was “not remotely robust” and that sub-postmasters – business people who ran branch post offices – were wrongly held responsible for shortfalls that were generated by Horizon. The Post Office has contracted Fujitsu to maintain and enhance Horizon and fix bugs.

But it has emerged, largely as a result of High Court litigation, that the Post Office and Fujitsu concealed Horizon’s problems from the courts while sub-postmasters went to jail and lost tens, and sometimes hundreds, of thousands of pounds on the basis of money shown to be missing on Horizon.

Following the High Court’s criticisms of the Post Office, Fujitsu and Horizon, Boris Johnson agreed to hold an independent inquiry but journalist Nick Wallis reported in July this year that civil servants did not want any review or inquiry into Horizon. Wallis reported that he had a call from a senior person in government who told him about plans for a Horizon review:

“… we are limited in what we can do – the terms of the review were kicked between BEIS and No 10 before they finally reached an agreement on what the terms should be and how it should be structured, but the officials [civil servants] weren’t happy with anything. They didn’t want a review; they didn’t want an inquiry or anything. They wanted it all to go away.”

Now it has emerged that the format of the Horizon “inquiry” bears little or no resemblance to other public inquiries. Wallis has established that the Horizon inquiry is not in public; it will have confidential “consultations” rather than open hearings that are covered by TV, radio and other news journalists. The consultations will not be transcribed and the inquiry will not publish evidence it has received.

This is in marked contrast to a public inquiry in 2003 that dealt openly with evidence from intelligence and defence personnel.  

The “Hutton” inquiry in 2003 lasted only six months from start to publication of a report of 750 pages which included Downing Street, civil service and government press office emails, letters, statements, aide memoires, investigation notes, interview memos, details of conflicts in evidence, transcripts and 18 appendices.

The Horizon inquiry will publish none of this. It is also due to take longer than Lord Hutton’s inquiry but produce a much shorter report. The Horizon inquiry’s secretariat told Wallis that the evidence will be acquired “via a combination of formal and informal consultations and information requests”. In line with the apparent informality of the Horizon inquiry, the secretariat described those who give evidence as “participants” although those who appear before conventional public inquiries are usually termed “witnesses”. The secretariat also told Wallis,   

 “The final Report will refer to evidence it has relied on but the Inquiry will not publish the evidence it has received.” The Horizon report will, though, “provide a thorough summary of the Inquiry’s findings”.

BEIS officials have found a retired judge, Sir Wyn Williams, to chair the Horizon inquiry. He is likely to face criticism that the inquiry is of no benefit to victims of the scandal and it appears formatted to show the current Post Office board in a positive light and direct any criticisms at past CEOs, directors, staff and management. 

Indeed, some officials may see the inquiry as little more than a political expedient to manage Parliamentary expectations amid what is being described as the widest miscarriage of justice in the country’s legal history.

If the Horizon inquiry is a political expedient only, it  would mean victims of the IT scandal need not have a primary role in its consultations. Indeed, junior ministers announced the Horizon inquiry after receiving assurances the Post Office and Fujitsu would cooperate but without any such assurance of co-operation by the main group representing victims of the scandal, the Justice for Subpostmasters Alliance. Former sub-postmaster Alan Bates runs the Alliance. He instigated the High Court litigation that exposed the extent of the scandal and led to the government’s promise to set up an inquiry.  

Damage limitation?

Since the litigation ended last year with findings that proved sub-postmasters’ complaints were right about Horizon and, by implication that BEIS officials were wrong to defend the system, junior ministers and the civil service have appeared anxious to limit the fall-out from the High Court case. This may be why the Horizon inquiry is not intended to ask wider questions raised by Mr Justice Fraser in the Bates v Post Office litigation. The judge found that the Post Office acted as if answerable to nobody which raises wide-ranging questions of how a publicly-funded institution was allowed to serve its own interests by prosecuting innocent people and using the courts to confiscate sub-postmasters’ possessions and make some of them bankrupt.   

But the Horizon inquiry’s updated terms of reference exclude consideration of the way prosecutions were conducted and flaws in the criminal justice system that allowed hundreds of people to be convicted on the basis of data from a flawed computer system. And the inquiry’s terms of reference confine matters under consideration to the Post Office alone. The inquiry is not allowed to look at the lack of accountability and effective scrutiny of Arm’s Length Bodies such as the Post Office by civil servants. Government departments are responsible for hundreds of Arm’s Length Bodies.  

Whitewash?

Even before Wallis established that the Horizon inquiry is not in public, it had already been branded a “whitewash” by MPs, peers, sub-postmasters and others. Former Defence minister Lord Arbuthnot, who has campaigned for justice for victims of the scandal since 2010, said the government review “is a pathetic response to a national outrage”. He told Computer Weekly,

“The Prime Minister promised to get to the bottom of the Horizon scandal. This anaemic review will fail to do that, because it fails to ask the important questions. The purpose of an independent inquiry should be to establish the truth, rather than to protect the government from any suggestion of blame.”

Yesterday’s headline in the Daily Mail read:

Fury over Post Office ‘whitewash’:
Victims fear probe into postmasters IT
scandal will be toothless 

In a similar vein, below is an excerpt from a letter written yesterday to Scully from Labour’s Chi Onwurah, shadow digital, science and technology minister, Ed Miliband, shadow secretary of state for business and Lord Falconer, shadow attorney-general.

The letter calls for the Horizon inquiry’s remit to be expanded to include compensation for victims of the scandal.  It said that if justice is to be done, the inquiry must be able to consider what further payments be made to sub-postmasters beyond the “derisory” amounts they received in the Post Office’s litigation settlement. Most of the £57.75m settlement figure went in litigation costs.

Below is part of Labour’s letter to Scully, 

Also, BBC Politics North this week quoted former sub-postmasters as saying the inquiry would be toothless and a whitewash.

The BBC item included comments of Lee Castleton who went bankrupt after the Post Office claimed £321,000 in legal costs from him following a Horizon shortfall of about £36,000. 

But business minister Paul Scully has said he wants the inquiry to be “reasonable in its timing and extensive in its remit so that we can get to the bottom of this as quickly as possible”.

Not a proper inquiry?

The Hutton inquiry had no list of exclusions – things that were out of scope – but the Horizon one does.  One of the specific exclusions in the Horizon inquiry’ is consideration of the settlement payment. The exclusion means that Sir Wyn Williams is not allowed to consider whether sub-postmasters ought to be paid their £46m litigation costs.

A further difference between the Hutton and Horizon inquiries is that those invited by Lord Hutton to attend had no reason to refuse.  But the Justice for Subpostmasters Alliance is refusing to take part because of the Horizon inquiry’s narrow terms of reference. Forensic accountants Second Sight, who are independent experts on Horizon’s problems as they affected sub-postmasters – which is the main topic under consideration in the Horizon inquiry – is also refusing to take part.

An inquiry into Horizon that’s as secretive as the Post Office?

According to Scully, one reason for the inquiry was to see if the Post Office has learned from the criticisms of Mr Justice Fraser.

But one of the judge’s most often-repeated criticisms was of what he called the Post Office’s “culture of secrecy and excessive confidentiality” – a criticism that MPs, peers and others are likely to make of the Williams inquiry.

Three times in one judgment, Mr Justice Fraser used the phrase “culture of secrecy” when referring to the Post Office. He also criticised the Post Office for citing the Official Secrets Act in its dealings with a sub-postmaster. The judge said, “I find it somewhat unusual, and potentially oppressive, that the Post Office could seek to use the Official Secrets Acts in this way. I do not see how, in a routine case, these Acts could possibly apply in the way suggested by the Post Office in this contract.”

The Hutton inquiry hardly mentioned the Official Secrets Act although some of its evidence related to secret and, at times, top secret defence-related information.

It’s unclear how the Williams inquiry will be able, with credibility, to comment on Mr Justice Fraser’s criticisms of Post Office secrecy when the inquiry he chairs is likely to face the same criticism.

TV, radio, online and newspaper coverage?

It is also unclear whether there will be any provision at the Williams inquiry for TV, radio or general news journalism coverage.  Wallis said,

“I also repeated my original request, which had gone unanswered – where do journalists fit into all of this? How are we expected to cover the inquiry? The email I got back was worrying: ‘While we agree that gathering original testimony about the impact that this matter has had on the lives of many postmasters is important, we will also seek to do this in a way that respects the content and confidentiality of such accounts, as indicated by individuals’.”

With regards to the media, he was told,

 “We are actively considering how to enable openness and media scrutiny while paying appropriate attention to the confidentiality concerns of individuals who provide information.”

Comment

Perhaps the most apt formal title for the government inquiry into the Post Office IT scandal – and the most appropriate title for the cover of the final report –  would be “The Starbucks Inquiry”. 

This would tie in with the format of an inquiry that seems designed by the civil service to be little more than a socially-distanced chat over coffee between Sir Wyn and lawyers from the Post Office and Fujitsu.

That the Horizon inquiry exists at all is because of the outcome of litigation instigated by Alan Bates and the Justice for Sub-postmasters Alliance. But ministers and BEIS officials seem untroubled by the absence of the Alliance and Second Sight. They also seem untroubled by criticisms that the inquiry is pointless.  Indeed, over the 20 year life of the Post Office scandal, one of the most consistent reactions of ministers and officials has been indifference to the concerns of sub-postmasters and deference to the Post Office.

Since the High Court judgments, that indifference seems to have turned to undisguised confrontation between officialdom on one side and sub-postmasters and their supporters in Parliament on the other: victims have called for a full judge-led public inquiry but Downing Street and BEIS officials have set up an inquiry that surrenders not one inch of ground to victims.

Indeed, the Starbucks Inquiry excludes all that matters and includes all that doesn’t.

Labour’s Chi Onwurah, Lord Falconer and Ed Miliband warn that the Horizon inquiry may be “doomed to fail” but they are likely to perceive failure in a different way to the civil service.

To MPs and peers campaigning or justice for victims of the IT scandal, the Horizon inquiry will fail if it doesn’t recommend paying the sub-postmasters’ £46m litigation costs, if it points to historical failings only without holding anyone accountable today, if it avoids looking at the conduct of BEIS, the Post Office and Fujitsu during the litigation between 2017 and 2019, if it avoids identifying who was responsible for allowing litigation costs to escalate at the expense of sub-postmasters and if it avoids questions about whether those involved in prosecutions knew sub-postmasters had committed no crimes and that Horizon was faulty when they put sub-postmasters in the dock and sought Proceeds of Crime orders for confiscation. 

 But from a civil service point of view, the Horizon inquiry may be a success if it points to historical failings only, avoids looking any implications of the costs of the litigation or the conduct and decisions of BEIS and ministers during the trials and avoids any questions about the conduct of prosecutions. 

One remarkable aspect of the Horizon inquiry?

In one respect only is The Starbucks Inquiry remarkable – its audacity in terms of the format.  Only Whitehall, perhaps, could be comfortable setting up a public inquiry that’s almost entirely held in private.

When Labour MP Kate Osborne asked Boris Johnson if he would commit to an independent public inquiry over the Post Office IT scandal, Johnson replied, “I am indeed aware of the scandal to which [Osborne] alludes and the disasters that have befallen many Post Office workers, and I am happy to commit to getting to the bottom of the matter in the way that she recommends.”

Fortunately for business ministers and their officials, “get to the bottom of” has no defined meaning in the civil service lexicon of policy implementation.

At least Starbucks won’t have to accommodate any stenographers, recording equipment or journalists. All the more room for lawyers.

What about victims, you may ask. What about them? replies Whitehall.

Post Office races to solve IT error under gaze of public and banks – Computer Weekly’s Karl Flinders

Horizon inquiry’s updated terms of reference with list of what is “out of scope” – GOV.UK

Post Office Inquiry will not publish or transcribe evidence – Nick Wallis

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

Minister’s personal bid to persuade victims’ group to join “whitewash” inquiry into Post Office IT scandal fails

Paul Scully MP, the latest postal affairs minister.

By Tony Collins

Junior business minister Paul Scully has held an online meeting to ask the victims’ group, Justice for Sub-postmasters Alliance, to join a government “inquiry” into the Post Office’s Horizon system. The meeting was said to have been “pointless”.

It’s unclear whether, from Scully’s viewpoint, the meeting was anything more than a tick-box exercise. Scully is aware that MPs, peers and victims of the Post Office IT scandal have branded his inquiry a whitewash even before it has started.   

Details of his online meeting with Alan Bates, head of the Justice for Sub-Postmasters Alliance, are in an email sent to the Alliance’s members, a copy of which has been seen by Campaign4Change.

Scully announced a “review” – which was later renamed an “inquiry” –  after litigation in the High Court established that sub-postmasters were wrongly blamed for balance “shortfalls” shown on Horizon. Fujitsu built Horizon and has run it for the Post Office since it went live in 1999.

Royal Courts of Justice

The litigation between the 550 members of the Justice for Sub-postmasters Alliance and the Post Office confirmed that Horizon, which is installed in all 11,500 post offices, had numerous bugs, defects and errors that caused the shortfalls.

About 900 sub-postmasters were prosecuted for theft, false accounting on the basis of Horizon’s “evidence” that money was missing. But many shortfalls in branch balances were computer- generated and did not actually exist. The Post Office confiscated homes, cars and businesses on the basis of Horizon evidence.  

Lives were ruined as sub-postmasters were imprisoned or left destitute or both. The High Court case exposed the extent of the scandal but cost sub-postmasters £46m which they are seeking to recover from the government and the Post Office. Scully’s inquiry specifically excludes any consideration of repaying the £46m.

The scandal is further compounded by ministers telling victims in essence that, now they have spent £46m proving that the criminal justice system is blighted by a plethora of unfair trials, there are legal processes in place to compensate them if they go to court again and succeed in proving, at a cost that will reduce any compensation they receive, that prosecutors got it badly wrong in their particular case. All of which prolongs the scandal and adds to costs.  

Scully’s “inquiry” excludes all matters to do with the wrongful prosecutions. It is  being branded a whitewash because of its narrow terms of reference and because it is not set up to cross-examine witnesses or compel the disclosure of emails or documents. It was the rigorous cross-examination of witnesses during trials in the High Court case that brought out the truth about Horizon. The judge in the case, Mr Justice Fraser, criticised the Post Office and Fujitsu’s written and verbal evidence.

Justice for Sub-postmasters Alliance has refused to take part in the inquiry, as have forensic accountants Second Sight who have an in-depth knowledge of the scandal.

Lack week Sir Wyn Williams, whom Scully’s department BEIS found to chair the inquiry, made a personal appeal to sub-postmasters to participate. Now it’s Scully’s turn for a personal appeal.

Alan Bates, head of the Alliance, said in his email to members,

“I was recently contacted by the Minister’s office (Paul Scully) as he was ‘keen to have a short call with you [me], today or tomorrow, to discuss the announcement and Inquiry’. My response was the same as the last time a request had arrived from his office. I replied ‘I must make it clear that any discussion with the Minister would first have to be about the mechanism for repayment of the costs the 555 Post Office victims have so far had to pay to expose the truth behind the Post Office scandal’.
“I then received details for the online meeting which took place earlier this week. You won’t be surprised to hear repayment was not discussed, only a very vague reference that if we took part in his inquiry at some point it might be touched upon (however the very terms of their inquiry specifically exclude such discussion).
“Needless to say it was a pointless meeting as he only wanted to talk about the Group taking part in his inquiry, something we have told him that we would never ever do.”

Bates described the inquiry as a “Government Whitewash Review”. His email said the inquiry needed to be able to “make recommendations as to compensation which should be paid by Post Office Ltd, Fujitsu and HMG to the Group to reflect what their legal liability …”

The inquiry, said the email, also needed to pay the legal costs of the Group to enable witnesses to be cross-examined. Bates’ email said it was “only under cross-examination of POL [Post Office Ltd] and Fujitsu witnesses” in the litigation that the truth started to appear because in many cases the “written statements turned out to be highly dubious or worse”.

Historical Shortfall Scheme – “HSS Titantic”?

The email to Alliance members also raised the question of whether government is telling the truth over how the Post Office has been paying the legal costs of defending Horizon and funding the Historical Shortfall Scheme which has been set up to compensate former sub-postmasters who were unfairly required to pay for Horizon-generated shortfalls out of their own pockets. More than 2,200 former sub-postmasters have registered with the scheme.

Bates’ email said,

“It also seems that the ill-fated Post Office’s Historical Shortfall Scheme (seems it is becoming known as the HSS Titanic), now with over 2,200 applicants, is planning to pay £1,200 to each applicant in order for applicants to take legal advice over any offer POL [Post Office Ltd] makes. That could mean another £2.5m without even considering the actual compensation for 2,200 claims and paying the army of lawyers sifting the paperwork…

“My guestimate is that POL has spent at least £150m over the years through to the Settlement Agreement. Then there are all these other Schemes POL has, so when you include compensation and hiring a battalion of legal professions and all those who are heading to have their convictions overturned and compensation in their cases, POL may well have spent at least another £100m.

“Where is all this money coming from? The official position seems to be that POL is paying for it from its revenue. Yet according to POL’s annual accounts, up until 2017 it had never returned a profit, and even totalling its profits for 2017, 2018 and 2019 it only comes to around £100m (its 2020 accounts probably won’t be published until 2021). Don’t forget these 3 years of profits come after many years of losses of hundreds of millions of pounds, which there is no sign that it has ever paid back.

“With bills of £250m and POL’s profits totalling around £100m, where has all the rest of the money come from?

“Throughout this year, the MP Kevan Jones has submitted a number of Written Parliamentary Questions to BEIS and some of those related to costs, for example:-

“Question – To ask the Secretary of State for Business, Energy and Industrial Strategy, whether a Ministerial Direction was ever sought by his Department’s Accounting Officer on the regularity, propriety, value for money or feasibility in respect of spending incurred by Post Office Limited during its Horizon IT system litigation case.

“Minister’s Answer – No Ministerial Direction was sought on this matter. Post Office Limited (POL) handled the defence of the Group Litigation as operational matters are an exclusive responsibility for the Company, as outlined in the Framework Document.

“All costs in doing so, including legal costs and the settlement in December 2019, were paid using funds from POL’s commercial revenue. BEIS sought and received assurance throughout the process that no public funding was used to contest the litigation.

“Question – To ask the Secretary of State for Business, Energy and Industrial Strategy, what conditions were attached to the decision of HM Treasury to allow UKGI [UK Government Investments] to use public funds to be used to contest the case Bates v the Post Office.

“Minister’s Answer – Post Office Ltd. (POL) handled the defence of the Group Litigation. All costs in doing so, including legal costs and the settlement in December 2019, were paid using funds from POL’s commercial revenue. BEIS sought and received assurance throughout the process that no public funding was used to contest the litigation.

“Question – To ask the Secretary of State for Business, Energy and Industrial Strategy, how much has been paid from the public purse to individual sub-postmasters since the group litigation settlement on the Horizon IT system on 12 December 2019.

Minister’s Answer  – On 11 December 2019, Post Office Ltd reached a settlement of £57.75m to conclude the Horizon litigation claim. No government money was used to fund the settlement or the related litigation. These were fully funded by Post Office Ltd from its commercial revenues.”

Bates’ email added,

“According to the Minister, the government is not paying for anything, and we know POL hasn’t made enough profits to afford to pay the bills, so where is the money coming from?”

The email says that the Post Office receives hundreds of millions of pounds from government to subsidise the running of the post office network – a subsidy that is separate from any major grants for capital programmes.

It asks whether the Post Office has been using any of this subsidy to fund Horizon-related spending. It says, “Somebody needs to find the real answers about how POL is financing everything and what the true costs are, and have been over the years.”

Comment


Photo by Andrew Buchanan on Unsplash

Scully has a difficult job. Ministers are temporary appointees who are nominally in charge of complex organisations. That complexity delivers them helplessly into the hands of their civil servants who, for 20 years, have sided with the Post Office against sub-postmasters who’ve challenged Horizon.  

At least Whitehall officials have a sense of humour. In upgrading their much-criticised “review” into an “inquiry”, they have added a list of specific exclusions – things that are outside its scope. That wrongful prosecutions are outside the inquiry’s scope is, arguably, a little like excluding questions about cladding from the Grenfell inquiry.

The Horizon scandal, among other deficiencies, draws attention to two things in particular: the first is an evaporation of the right to a fair trial which is a foundation stone for any civilised society and the second is a lack of fair compensation for the scandal’s victims.  Ministers and their officials have set up an inquiry that excludes both.

What, then, is the purpose of the inquiry? Perhaps it has been set up to help close down a national scandal gradually while those who were involved move on.

The Justice for Sub-postmasters Alliance and Second Sight are to be applauded for not dignifying it by participating. Indeed, if future students of public affairs look back on the Horizon scandal, they may take a bemused view of the government’s undisguised indifference to the widest miscarriage of justice in this country’s legal history.

Those students would be entitled to ask how it was possible, given the need for any self-respecting democracy to protect the right of every citizen to a fair trial, that hundreds of people were wrongly convicted on the basis of misplaced confidence in a flawed computer system and the victims were then asked to participate in a government inquiry into the flawed computer system provided they didn’t mention their wrongful prosecutions.

Sub-postmasters have reached this stage in their campaign for justice because they by-passed civil servants, ministers and the Post Office and went to the High Court for redress.

Their only chance of justice now is, again, to avoid civil servants, business ministers and the Post Office and look to Parliament, the Parliamentary Ombudsman and those at the top of government for redress. Why would any sub-postmaster want to help an inquiry whose narrow terms of reference, list of exclusions and non-public hearings are the very repudiation of an open and unfettered search for the truth?

Government minister’s plea for sub-postmasters to take part in review of IT scandal rejected – Karl Flinders, Computer Weekly

The Great Post Office Trial – Nick Wallis presents 10-part BBC R4 series

Closure – the real reason for the Post Office IT scandal review – campaigner Tim McCormack’s blog

Ministers and civil servants appear to blame victims for the Post Office IT scandal?

Photo by Shane Rounce on Unsplash

By Tony Collins

A succession of ministerial speeches which were drafted by civil servants in response to the Post Office IT controversy, use a consistent form of words when attributing blame. On one interpretation, the form of words suggest that victims of the scandal – sub-postmasters – may be the cause of their own misfortunes.

Campaigning sub-postmasters, led by Alan Bates, exposed the scandal that was unwittingly or wittingly concealed for nearly 20 years by parts of the civil service and successive ministers. It was sub-postmasters who brought litigation that cost the Post Office more than £100m in costs and settlement. And it was sub-postmasters whose enduring dispute with the Post Office over faults in its Horizon system has brought the institution into disrepute and embarrassed parts of the civil service that allowed what MP Andrew Mitchell this week called a “monstrous injustice”.

Are civil servants, through their minister, therefore blaming the scandal on the litigation and Horizon dispute which sub-postmasters instigated?

Below are six potentially contentious ministerial statements, over a period of six months, which have a consistent form of words when attributing blame. Ministerial speeches and statements are usually drafted by civil servants who are likely to be very careful in their choice of words. Each ministerial statement appears to suggest that the cause of the ruined lives of sub-postmasters was not the Post Office which wrongly prosecuted sub-postmasters and confiscated their homes, businesses and cars on the basis of computer-generated shortfalls that did not actually exist. Instead, the statements appear to blame sub-postmasters for bringing the litigation and disputing Horizon’s robustness. The emphasis in the minister’s statements is mine.

March 2020 – ministerial statement

“It is impossible to ignore the financial and emotional suffering that the Horizon litigation process has caused for affected postmasters and their families.” [My emphasis]

June 2020 – ministerial statement

“It’s impossible to ignore the negative impact that the Horizon dispute and court case has had on effective postmasters’ lives, their livelihoods, their financial situation, their reputations and for some, their physical and mental health”.

June 2020 – Ministerial announcement of review into Horizon

The Horizon dispute and court case has had a devastating impact on the lives of many postmasters.”

June 2020 – Ministerial announcement

“The longstanding dispute and subsequent trials relating to the Post Office Horizon IT system have had a hugely negative impact on affected postmasters and their families…”

September 2020 – ministerial announcement

The Horizon dispute had a hugely damaging effect on the lives of postmasters and their families, and its repercussions are still being felt today.

October 2020 – Ministerial statement, House of Commons

“The Government recognise that the Horizon dispute has had a hugely damaging effect on the lives of affected postmasters and their families, and its repercussions are still being felt today.”

Misleading

No ministers, in their remarks on the scandal, have disowned the Post Office’s misleading and inaccurate statements to the High Court last year, or the Post Office’s decision to try and remove the judge managing the case, or the stepping-up of the Post Office’s part in the litigation after a lost judgment in March 2019

About 550 sub-postmasters sued the Post Office to prove that the institution’s Horizon accounting system, built and run by Fujitsu, was to blame for balance shortfalls for which they were held liable. Sub-postmasters won the case in December 2019. The judge in the case, Mr Justice Fraser, found that Horizon had numerous bugs, errors and defects and that sub-postmasters were wrongly blamed for shortfalls shown on Horizon. Hundreds of sub-postmasters might have been wrongly prosecuted on the basis of evidence from a flawed Horizon system. More than 2,200 sub-postmasters might have paid the Post Office for Horizon-generated shortfalls that did not actually exist.

The scandal has left the civil service with the job of drafting ministerial speeches for Horizon debates in the House of Lords and House of Commons and also drafting Parliamentary answers to some difficult written questions that are presented to officials almost daily.

Comment

Ministers and the civil service lost the High Court case too. It was not just the Post Office. Do civil servants, consciously or unconsciously, therefore hold a grudge against those who defeated them to expose the breadth and depth of the Horizon scandal?

Indeed, there is little or nothing that ministers or officials have said or done, since Horizon went live in 1999, that has ended up of benefit to sub-postmasters who have complained about Horizon.

In recent months, the civil service has written conspicuously narrow terms of reference for a government “inquiry” into Horizon. The terms specifically exclude the two most controversial aspects of the scandal: how up to 900 questionable prosecutions based on evidence from a flawed computer system came about and why the Post Office’s payment to settle the litigation left the litigants with huge losses from the scandal. In many cases the losses of Horizon victims run into hundreds of thousands of pounds.

But ministers and civil servants continue to reject sub-postmasters’ every request, including requests for a statutory public inquiry into what campaigning peer Lord Arbuthnot has called a “national outrage”. Ministers have also refused to pay postmasters their £46m litigation costs. In contrast, ministers and civil servants continue to give unequivocal support to the current Post Office board, as have their predecessors.

How will victims of the scandal ever recover their losses if parts of government hold a grudge against them?

Government digs in heels over Post Office Horizon IT scandal – Computer Weekly.

The Great Post Office Trial presented by Nick Wallis

A whitewash and a betrayal’: Fresh fiasco at Post Office as staff boycott inquiry into IT scandal – Daily Mail

Chairman of Post Office Horizon IT inquiry makes personal appeal for co-operation. But MPs say his inquiry is pointless.

By Tony Collins

Photo: Andrew Buchanan,- Unsplash

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.

Paul Scully MP, postal affairs minister

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. 

Computer-generated losses

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.

Royal Courts of Justice

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.   

Personal appeal

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.

Unanswered questions

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.

Mr Justice Fraser

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]

Fujitsu

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.”

Comment

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

First postmaster convictions to be uncontested by the Post Office – Nick Wallis

Closure – the real reason for the Post Office scandal review – Tim McCormack, Problemswithpol

Post Office is not opposing dozens of appeals over Horizon-related convictions

Dozens of former sub-postmasters convicted on the basis of evidence from the Post Office Horizon system are now almost certain to have their convictions quashed.

The Post Office had to notify formally by 2 October [today] whether it was opposing 47 convictions of former sub-postmasters whose cases were referred to the Court of Appeal by the Criminal Cases Review Commission.

This morning solicitors have confirmed that, up until the time of writing, none of the 47 cases is being opposed. It is therefore almost certain the convictions will be quashed.

Hudgell Solicitors, which is acting for 33 of he 47 cases, said on Twitter,

“We can confirm the Post Office has conceded appeals by former sub-postmasters to overturn convictions linked to the Horizon scandal.”

Other convicted former sub-postmistresses have congratulated Aria Grace Law which represented them in the appeal applications.

Although the sub-postmaster cases referred to the Court of Appeal were known to have been manifestly unsafe convictions, the Post Office’s decision not to contest them has come as a surprise to some given its approach in the High Court last year during litigation over the Horizon system.

More than 550 sub-postmasters had sued the Post Office for wrongly blaming them over Horizon errors and bugs. The Post Office hired four QCs and two firms of solicitors to fight the sub-postmasters and defend the Horizon system. At one point it applied to have the judge removed. When clearly losing the case, the Post Office reached a settlement. It paid a £57.75m to the former sub-postmasters but made it clear in the settlement terms that it was not agreeing to any of the money going to convicted sub-postmasters. Most of the settlement money went, in any case, in litigation-related costs.

When convictions are overturned, sub-postmasters are likely to consider legal action for compensation, having unnecessarily spent time in prison or doing community service. It has also been difficult for them to find work with criminal convictions. In addition, they have not received back from the Post Office money they paid from their own pockets to cover Horizon-related shortfalls.

Postal affairs minister Paul Scully has announced an “inquiry” into the Horizon affair but it is being dismissed as a “whitewash” and is being boycotted by two of the main parties in the litigation: the Justice for Sub-postmasters Alliance and forensic accountants Second Sight which investigated Horizon cases between 2012 and 2015 and found many of the system weaknesses that, during the later litigation, the Post Office denied existed. The High Court judge in the litigation Mr Justice Fraser found that Horizon had numerous bugs and errors that had caused numerous shortfalls.

His judgments vindicated Second Sight’s much earlier findings and triggered the Criminal Cases Review Commission’s referrals to the Court of Appeal.

When the convictions are formally quashed, there are likely to be calls for a Parliamentary investigation into what is being described as the widest miscarriage of justice in England’s legal history. Hundreds of sub-postmasters might have been wrongly convicted.

The current inquiry is non-statutory, cannot require witnesses to give evidence on oath, cannot require the attendance of witnesses, cannot cross-examine witnesses and the most controversial aspects of the Horizon scandal – wrongful prosecutions – are excluded from the terms of reference. It is not even clear if hearings will be in public or whether it will call any witnesses. It is instead taking evidence from the Post Office and Horizon supplier Fujitsu. Mr Justice Fraser last year criticised the Post Office and Fujitsu’s approach to openness and the truth during the litigation.

The narrow terms of reference for the government inquiry into Horizon appear to confirm comments to journalist Nick Wallis that the civil service does not want any inquiry into Horizon. Wallis said that a government source told him: “the officials weren’t happy… They didn’t want a review, they didn’t want an inquiry or anything. They wanted it all to go away.”

The apparent contradiction between a “whitewash” government inquiry and the almost certain quashing of dozens of convictions that form no part of the inquiry, mean that the Post Office IT scandal is set to enter a new phase rather than go away.

Update: (2 October pm)

Nick Wallis reports that the Post Office is to contest three of the 47 cases. Details of why it opposes an overturning of the three convictions are awaited, particularly as the Criminal Cases Review Commission would not have referred any of the cases to the Court of Appeal without having strong grounds for doing so.

Further update:

A small number of the 47 cases that will go to the Court of Appeal unopposed are of deceased former sub-postmasters including Julian Wilson’s This is an indication of how long the campaign for justice has been going.

Justice for sub-postmasters as criminal convictions likely to be quashed – Computer Weekly

Postmasters celebrate victory – BBC News

Whitewash inquiry branded a cynical cop-out by government – Nick Wallis’ Postofficetrial

A Special Select Committee inquiry into Post Office IT scandal?

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.

Photo: Andrew Buchanan,- Unsplash

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.

Comment

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.

A whitewash and a betrayal’: Fresh fiasco at Post Office as staff boycott inquiry into IT scandal – Daily Mail

House of Lords inquiry clears pilots of Chinook crash

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

Sub-postmasters still in the dark over Horizon errors – Karl Flinders, Computer Weekly

Inside the Post Office IT scandal – Financial Times

 

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 Julian 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.