Category Archives: Campaign for justce

The civil service may face an investigation into maladministration over Post Office IT scandal

By Tony Collins

Campaigners for justice over the Horizon IT scandal have launched a bid to raise £98.000 to try and hold the civil service to account over its failed oversight of the Post Office that allowed the scandal to continue unchecked for years.

It comes as the Post Office continues to defend its actions over the Horizon controversy, raising questions about whether its culture has changed in the sixteen years since sub-postmaster Alan Bates  began his campaign to elicit the truth about the Horizon system.

The Post Office’s latest bout of defensiveness has come to the fore thanks to journalist Nick Wallis’ 10-part BBC R4 series on the Horizon scandal, The Great Post Office Trial, which continues every day this week at 13.45.

A theme running through several of the episodes in the series is that the Post Office is still defending itself over the Horizon controversy. Last year, following a group legal action brought by Justice for Subpostmasters Alliance [JFSA], the High Court strongly criticised the Post Office’s conduct, actions and truthfulness in its dealings with sub-postmasters and during the litigation itself.

The institution’s apparent lack of remorse – it has given an apology for “past” events but not its conduct during the litigation – may add force to the JFSA’s appeal for crowd-funding to launch a complaint to the Parliamentary Ombudsman.

The Alliance wants funding for a QC to prepare a complaint about the Department for Business, Energy and Industrial Strategy and its predecessor organisation BIS.  The department was supposed to oversee the Post Office but repeatedly defended it while sub-postmasters went to prison, lost their livelihoods, made bankrupt and handed over their life savings to the Post Office, because of discrepancies shown on a flawed Horizon system.

The Alliance also wants the role of government as a stakeholder on the Post Office board to be investigated.

Maladministration is defined as a public body’s not having acted properly or fairly, or having given a poor service and not put things right. At the time the Ombudsman office was established, Richard Crossman, the then Leader of the House of Commons, defined maladministration as including “bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on”.

If crowd-funding succeeds in raising £98,000 and the JFSA’s QC puts forward a strong argument for redress, the Ombudsman has no executive powers to award compensation but can recommend a financial remedy.

The principles underlying the Ombudsman’s work is that, where it is established that maladministration or poor service has resulted in an injustice or hardship, the public body restores to complainants the position they would have been in had the maladministration or poor service not occurred. If that is not possible, the Ombudsman can suggest the public body provides appropriate compensation.

A typical Ombudsman investigation takes six months but could be delayed by the pandemic.

Those who want to contribute to the campaign can pledge money via this crowd-funding site. Money is collected only if the £98,000 target is met.

The Great Post Office Trial

Subpostmasters to force scrutiny of governments’ role in Post Office IT scandal – Computer Weekly’s Karl Flinders

The case for a statutory public inquiry into Post Office Horizon scandal – Eleanor Shaikh

Post Office IT scandal makes legal history – and now prosecutors will come under scrutiny

By Tony Collins

The Post Office Horizon IT scandal became part of legal history yesterday when the Criminal Cases Review Commission referred an unprecedented 39 potentially unsafe criminal convictions to the Court of Appeal.

The grounds for referral were “abuse of process” – a term that suggests the  integrity of the criminal justice system might have been compromised.

Helen Pitcher, chairman of the Criminal Cases Review Commission, said in a statement yesterday: “This [39 applicants] is by some distance the largest number of cases we will ever have referred for appeal at one time.”

The 39 convictions were for theft, fraud and false accounting. They are being referred on the basis of an argument that “each prosecution amounted to an abuse of process”.

The Commission did not explain what it meant by “abuse of process” but the Crown Prosecution Service gives general guidance on what the term means.

In exceptional circumstances, an “abuse o process” is cited by courts when they intervene to stop a prosecution because of “bad faith, unlawfulness or executive misconduct”.

The term “abuse of process” has been defined as “something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respect a regular proceeding”.

It can also refer to a past prosecution that was manifestly unfair for reasons that have only since become apparent.

The Criminal Cases Review Commission is a statutory body set up to review suspected miscarriages of justice. Its commissioners have been looking at the safety of convictions that were based on evidence from the Post Office’s Horizon branch accounting system.

The commissioners have taken into account judgements in civil court trials related to the Horizon system. The judge managing the trials,  Mr Justice Fraser, found that the Post Office tried to mislead him about the Horizon system. Flaws in Horizon were kept hidden while the Post Office wrongly pursued sub-postmasters for money they did not owe.

Using its power to prosecute without using the Crown Prosecution Service, the Post Office prosecuted dozens of former sub-postmasters citing evidence from Horizon. Mr Justice Fraser found that Horizon was not as robust as the Post Office said it was.

Yesterday’s announcement of the 39 referrals is likely to put the legal spotlight on the Post Office prosecutors. The Appeal Court may consider questions of whether the integrity of the  criminal justice system has been compromised.

A Post Office statement yesterday on the referrals said,

“The Post Office has been assisting the Criminal Cases Review Commission since applications were first made to them by a number of former postmasters. We have always accepted our serious obligations and responsibilities to the Commission’s work.

We have not yet received statements of reasons from the Commission about the referrals they are making to the Court of Appeal.  We will be looking carefully at the Commission’s decision when we have that information and continue to fulfil all their requirements of us.

“We have also been doing all we can to ensure that, in the light of the findings in the Horizon judgment, further disclosure is provided as appropriate in other cases where Post Office acted as prosecutor, not just those reviewed by the CCRC.  The CCRC’s reasoning will be applied to those cases, which are being reviewed by an external team of criminal lawyers.

“We won’t be commenting on individual cases, because it would be inappropriate to prejudge the outcome of the important work that the CCRC is continuing to do or the Court of Appeal’s processes.”

Comment:

Imagine if the Department for Work and Pensions mistakenly sent bills to large numbers of benefit claimants for tens of thousands of pounds they did not owe because of a faulty computer system; and then, when the distressed claimants could not afford to pay the phantom debts, the DWP took them to court, made them bankrupt and took away their homes and livelihoods.

In the Post Office’s case, it is an injustice that has been allowed to continue nearly two decades. And it has gone entirely unpunished, without fair compensation being paid.

But now that the Post Office Horizon scandal has made legal history, perhaps the civil service will take more seriously calls among MPs, peers and former sub-postmasters for a judge-led inquiry.

Until now, civil servants have regarded the scandal as a skin irritant that could be cured by applying a little soothing ointment.

The Criminal Cases Review Commission has shown it is taking the injustices seriously, as have Boris Johnson and the civil courts.  Civil servants could follow reluctantly, as if they were waiting for instructions from the Post Office. Or they could lead.

Thank you David Orr for emailing a link to the BBC story.

Post Office reviews more prosecutions – Nick Wallis

Sub-postmaster convictions to be considered by Court of Appeal – Computer Weekly

 

Post Office closes amid Horizon broadband problems

By Tony Collins

A Post Office has closed – temporarily perhaps – because the postmistress is refusing to spend more of her own money balancing the books on the Horizon IT system.

The York Press has published an article on the concerns of Wendy Martin who runs a Post Office branch in Clifton, York.

A broadband connection from her branch to the Horizon system goes down regularly, which she says stops payments being processed centrally. This has left her business hundreds of pounds down at the end of the month and her covering the shortfall.

Under her contract with the Post Office – and all such contracts – subpostmasters are responsible for any losses shown on Horizon.

About 150 sub-postmasters have complained to the Post Office about shortfalls which they say were accounting discrepancies related to Horizon problems rather than theft or fraud.

The Post Office’s legal action following cash shortfalls has led to the ruin of  dozens of subpostmasters who have lost their livelihoods, been made bankrupt or gone to jail. There were criminal convictions in 43 cases.

Subpostmasters claim the Post Office failed to investigate irregularities properly before launching criminal proceedings.

Wendy Martin has closed her Post Office until the connectivity problem is corrected.

The self-employed postmistress, who has worked in various shops during an 18-year career, says she is concerned that the problem will increase and could leave her paying in more money each month until the shop goes bust.

She told The Press: “The public feel I’m doing them a dis-service because the shop is shut but I could be in a situation where I may end up in prison.

“It costs me £400 just to keep the shop closed and if I keep putting in the money I will go bust. I hope the Post Office takes this seriously and come out to sort this, but until they do I’ll have to stay shut.”

Since the York Press article was published on 29 August Wendy Martin says the Post Office told her it would be “out asap and will sort this out”. She says she “cannot afford to keep putting money in for lost transactions due to this”.

Some subpostmasters have set up a Facebook page to air some of their grievances.

The Post Office says it does not prosecute people for making innocent mistakes and never has. In response to a BBC Panorama documentary last month on Horizon and the complaints of subpostmasters, the Post Office said:

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

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

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

Mediation latest

John Munton, a director of the Centre for Effective Dispute Resolution, which is mediating in the disputes between the Post Office and subpostmasters, has written to the Post Office on the results of his review of the mediation so far.

Of the 20 cases that have gone through mediation, 8 have been resolved which is 40%.  Munton says this settlement rate is “somewhat lower than the average settlement rate that we see across all the mediations that CEDR conducts”.

In an average year its settlement rate “tends to range between 65% and 75% with a further 10% to 15% of cases resulting in some progression towards final resolution”.

Munton suggests there is a fundamental mismatch between the expectations of the subpostmasters and the object of mediation which is not to award compensation but to achieve an agreement between the parties.

Subpostmasters expect to enter into talks on compensation for their lost livelihoods and money they have paid to the Post Office to cover accounting shortfalls. The Post Office’s representatives make it clear they need credible evidence to justify the claims for compensation.

The mediation process has been more effective, says Munton, “where a continuing contractual relationship is still in place between subpostmasters and the Post Office, and where both parties would like it to continue.”

Comment

The Post Office, in mediation and its entire approach to the complaints of subpostmasters, is taking an empathetic but legalistic approach. To subpostmasters who say Horizon was responsible for losses, the Post Office’s lawyers say in essence: “Prove it.”

The subpostmasters can prove little or nothing, perhaps because Horizon is not owned or run by them. All the information subpostmasters possess is supplied and owned by the Post Office or its main supplier Fujitsu. The Post Office says there is no evidence that Horizon has caused the discrepancies complained of by the subpostmasters.

This is not like a train crash where there would be an independent statutory investigation, the findings of which would have a statutory authority. In these cases, the Post Office has chosen to commission an independent investigation from forensic accountants Second Sight. The findings have no statutory authority. The Post Office is entitled to reject Second Sight’s findings. And it has.

It is unclear whether all the facts in these cases have surfaced, whether the Post Office still possesses all the potentially relevant data from disputes that date back many years, or whether it has made any mistakes in its interpretations of the facts.

The Post Office will continue to benefit from a purely legalistic approach because subpostmasters may be able to prove that Horizon can go wrong but they will never prove that it did go wrong in their particular case.

Even when statutory investigations take place into public safety incidents, it may take years to find possible or likely causes. And that’s the point. There are only possible or likely causes. In fatal air crashes involving large passenger jets, for example, the outcome is a “probable” cause or “probable” causes.

By requiring evidence of a definite cause or causes of shortfalls, the Post Office is demanding the impossible.  On the other hand, why would it pay compensation when subpostmasters cannot prove that Horizon and the Post Office’s training or procedures were at fault?

Perhaps the only sensible way for these disputes to be settled is for lawyers to stand aside and allow managers to resolve cases on the balance of probabilities.

It’s clear to outsiders that 150 subpostmasters have not had criminal intent when, as happened in some cases, they signed off unreconciled accounts as correct. Many are victims of miscarriages of justice and deserve to have adequate compensation and their names cleared. The sooner this happens the sooner the Post Office can reclaim its reputation for fairplay.

If the cases are not settled the campaign for justice could go on indefinitely.

Mediation – letter from Centre for Effective Dispute Resolution to the Post Office. CEDR – mediation review

York Post Office closes amid cash row

Post Office Horizon and last night’s Panorama