Category Archives: Campaign4Change

How will the Horizon 900 prove their innocence – another phase of the Post Office IT scandal?

By Tony Collins

In jubilant scenes outside the High Court last year, sub-postmasters celebrated a remarkable victory over the Post Office.

For nearly 20 years the Post Office’s  board held fast to the view that its Horizon branch accounting system was robust. Horizon data that showed money was missing from branch sub-postmaster accounts was used to prosecute and win convictions against at least 500 sub-postmasters, from Tracy Felstead who was jailed at the age of 19 to Noel Thomas who worked for the Post Office for 42 years before being jailed. Civil actions too were based on Horizon data. Newspaper articles about sub-postmasters who had been imprisoned, made bankrupt and had lost their livelihoods, life savings and homes became almost routine.

But in 2017 former sub-postmaster Alan Bates won the High Court’s consent for a group litigation against the Post Office. He was one of Horizon’s victims. He had asked the Post Office to produce the back-office data that showed he was to blame for unexplained shortfalls on his branch Horizon accounts. The Post Office did not provide the data and inexplicably terminated his contract.

Redress for Bates and his 556 co-claimants came finally in December 2019 when Mr Justice Fraser published his 1030-paragraph Horizon judgement in the case of Bates v the Post Office.

It was replete with criticisms of the Post Office: its conduct, decisions, lack of truthfulness and an apparent lack of concern over mounting legal costs. Mr Justice Fraser depicted the Post Office as a public institution that conducted itself as if answerable to nobody: witness statements to the court might not have been written by the witnesses, said the judgement. And he said the Post Office had attacked the credibility of sub-postmasters who had given honest and trustworthy evidence.

His overall conclusion was that bugs, errors and defects in Horizon not only had the “potential” to cause shortfalls in branch post office accounts but had actually done so – on “numerous occasions”.  The judge said his findings applied “both to Legacy Horizon and also Horizon Online.”.

The ruling also confimed that Horizon had a “back door” through which IT engineers working remotely at the system supplier Fujitsu could fix software faults by altering branch post office accounts without the knowledge of sub-postmasters.

Sub-postmasters were vindicated. The judgement estabished that they had not stolen money or fiddled the books to hide their criminality. The system was to blame for numerous unexplained shortfalls because of its tendency at times to show phantom transactions.

Indeed, the judgement also seemed to clear the names of not only the 557 sub-postmasters in the group litigation but hundreds of others who had been prosecuted on the basis of Horizon data. The Post Office has confirmed that there have been 900 prosecutions based on Horizon evidence and 500 convictions. The Criminal Cases Review Commission has referred 47 potentially unsafe convictions of sub-postmasters to the Court of Appeal – an unprecedented number of referrals on one matter. The Commision accused the Post Office of abusing the prosecution system.

How could nearly 1,000 sub-postmasters, each of whom the Post Office had thoroughly vetted for the job, be fraudsters, thieves and liars?  It seemed that the Post Office was prosecuting almost every time the system generated a spate of unexplained shortfalls on branch accounts.

And the courts were almost certain to convict because of a Law Commission “presumption” dating back to the 1990s. The presumption has led to courts accepting flawed computer evidence as reliable. Barrister Stephen Mason showed in his book “Electronic Evidence” (chapter 6) that the courts, based on the defective “presumption”, treat computers as mechanical devices similar to stopwatches – they either work or don’t.

Barrister Paul Marshall, in his paper The harm judges do – misunderstanding computer evidence: the Lee Castleton case” said that the Law Commission’s “presumption” may encourage prosecutions based on flawed computer evidence.

The defective presumption is covered in articles on this site published this week.

The Post Office’s view?

The Post Office does not share the sub-postmasters’ view of the High Court judgement.

The continuing sharp differences between the two sides raises the question of how much the Post Office’s institutional view of Horizon or the accused sub-postmasters has moved on since the two sides began mediation talks last year.

The sub postmasters regard the judgement as proving, once and or all, that the Post Office was wrong to accuse them of taking money shown on Horizon as missing

But the Post Office says, in essence, that the judgement disproved none of its accusations against individual sub-postmasters. Its controversial interpretation of the judgement is that Horizon had the “potential” for bugs to affect branch balances but did not prove that individual claimants’ accounts were affected.

Nick Read, CEO of the Post Office, says in his letter to MPs on the Business, Strategy and Industrial Committee [BEIS] that the High Court judgement,

“… found that the potential for bugs to affect branch balances in historical versions of Horizon was greater than Post Office believed. The judgment did not determine whether bugs, errors or defects did in fact cause shortfalls in the individual claimants’ accounts but it found that they had the potential to create apparent discrepancies in postmasters’ branch accounts. The current version of the Horizon system was found to be robust, relative to comparable systems but we are not complacent about that, as I detail in responses to other questions…”

But Alan Bates points out that the judgement said bugs, errors amd defects not only had the potential to cause apparent shortfalls on branch sub-postmaster accounts but this actually happened “on numerous occasions”. The defects had also undermined the reliability of Horizon to process and record transactions.

Bates said that the Post Office do not understand how aggrieved the claimant group [557 sub-postmasters who were part of the High Court litigation against the Post Office] feel about the way they have been treated. “It is why we will never give up chasing the costs we incurred in having to expose the real truth behind the appalling condition of Post Office’s Horizon system in the High Court, he said, adding,

“The more I look into the documentation surrounding the court case the more obvious it is to me that Post Office never had the technical expertise or management to operate such a system.  Unfortunately all the times this was recognised in the Post Office Limited board meetings or in external reports, it seems to have been ignored, not only by Post Office but also by its sole shareholder, the government, which is why we are currently fundraising to fund a submission to the Parliamentary Ombudsman to launch an investigation into the failings of those charged with the oversight and control of Post Office in order to recover the costs to the group.

Implications for the Horizon 900

If the Post Office remains unconvinced that the individual claimants in the litigation have cleared their names, where does that leave up to 900 sub-postmasters who have been prosecuted on the basis of Horizon data?

It may be especially difficult for them to clear their names if their records or the relevant Horizon records are no longer available. A further difficulty is that the Post Office may adopt the position the courts take of computer evidence – which is to treat it as reliable. The onus is then on the accused to prove explicitly that a particular bug or defect affected the shortfall in question which, in the eyes of the Post Office, none of the 557 litigants did.

An additional difficulty for the 900 is that they may be able to prove little or nothing without full disclosure of Post Office evidence. Mr Justice Fraser was highly critical of the Post Office’s approach to disclosure.

Post Office responses

Campaign4Change put a series of questions to the Post Office relating to this article. These were our questions and the Post Office’s replies:

Our question to the Post Office:  Nick Read [Post Office CEO] said in his letter to the BEIS committee, “The judgment did not determine whether bugs, errors or defects did in fact cause shortfalls in the individual claimants’ accounts.” This suggests that, in the Post Office’s eyes, the claimants [in the Bates v Post Office litigation] have not proved their innocence. Any comment please?

The Post Office’s reply:

The claimants and the Post Office reached a mutually agreed, comprehensive resolution to the group civil litigation in December 2019, issuing a joint statement at the time.  The Post Office apologised to those affected and continues to do so.”

Our question: If claimants after a £50m+ court case have not proved their innocence in your eyes, how will anyone whose case is reviewed on the Historical Shortfall Scheme or anyone else you have identified as having been prosecuted using Horizon data, have the slightest chance of proving their innocence?

The Post Office’s reply:

“As the submission to the [BEIS] Select Committee states, the Post Office is determined that past events are resolved fairly.  It also outlines main details of the scheme including that  eligible applications will be assessed by an independent advisory panel of leading specialists in separate disciplines of legal, forensic accounting and retail. The panel is Alex Charlton QC, a leading barrister with particular expertise in software and IT systems; Susan Blower, a forensic accounting partner at BDO and fellow of Chartered Accountants of England and Wales; and Sunder Sandher, an experienced retailer and member of the Independent Retailer Board of the Association of Convenience Stores.  Eligible applications will be assessed by the independent advisory panel in light of the guidance given by the judgments of Fraser J in the group litigation. Applicants are able to claim for losses relating to historical shortfalls, including claims for consequential loss.

“If a postmaster is not content with the outcome of the assessment of their case there is a dispute resolution procedure which includes independent mediation provided by The Wandsworth Mediation Service, a charitable community mediation service chaired by Stephen Ruttle QC who co-mediated the resolution of the Group Litigation.

 “As of 24th June there have been 618 applications to the scheme – we are keeping this information updated on our website.

The Post Office is also making strenuous efforts regarding postmasters with past convictions that may be affected by the High Court Judgments in the civil litigation.  We have been working closely with the Criminal Cases Review Commission since applications were first made to them by a number of former postmasters. The criminal appeal courts will now determine these complex issues, with each case resolved on its own specific facts.

“We are also conducting an extensive review of all relevant historical convictions dating back to 1999, to identify and disclose any material in accordance with Post Office’s duties as prosecutor.”

Our question: Why doesn’t the Post Office, after all that former sub-postmasters have been through, clear the names of everyone affected and make amends without further ado or investigation?

The Post Office’s reply:

The Post Office has taken determined action to address the past and reform for the future.  A settlement in the civil litigation was agreed with the claimants in December 2019. The  joint agreement also included the establishment of the Historical Shortfall Scheme. This offers redress for current and former postmasters who were not part of the litigation and who may have experienced shortfalls related to previous versions of Horizon.

“The Post Office is also making strenuous efforts regarding postmasters with past convictions that may be affected.  We have been working closely with the Criminal Cases Review Commission since applications were first made to them by a number of former postmasters and we are conducting an extensive review of all relevant historical convictions dating back to 1999, to identify and disclose any material in accordance with Post Office’s duties as prosecutor.  Information on historical prosecutions can be found on our website and we will be keeping this updated.”

Comment

One of the oddest aspects of the Post Office IT scandal is that the courts and the Post Office have put the onus on sub-postmasters to prove that on a specific day at a certain time, a particular Horizon bug, error or defect caused each of the shortfalls for which they were blamed.

This has always been impossible for the sub-postmasters. They have faced a lack of full disclosure of Horizon back-office data by the Post Office but have had a limited ability to request end-user reports of transactions on a system that had numerous flaws and which could not always be trusted to properly record transactions or flag duplicate transactions.

If sub-postmasters could not prove bugs in their specific circumstances, it is equally unlikely the Post Office could prove that none of the Horizon bugs, errors or defects caused the shortfalls in question.

And how would the Post Office be able to prove that Fujitsu had told the Post Office of every bug, error and defect – at least the ones of which Fujitsu was aware? How would the Post Office prove that it was aware of every instance when a Fujitsu engineer, in fixing a bug, had or had not altered the branch accounts without the knowledge of the sub-postmaster?

It’s a mess – perhaps difficult or impossible for each side to prove or disprove how Horizon was performing at the specific time and date of each shortfall in question especially as, according to Mr Justice Fraser, record-keeping was not always up to standard.

Arguably,  the Post Office prosecuted and made accusations when the system showed money was missing because that was easier than institutionally conceding that the system that served 11,000 post ofice was flawed. It was especially easy to prosecute because the courts had adopted a Law Commission “presumption” that when the prosecution presented computer evidence it was to be treated as reliable.

Perhaps the Post Office’s undeclared institutional attitude was that those who were wrongfully accused and whose lives were destroyed was the price to pay to catch any genuine thieves and fraudsters.

It is hard to see that the reviews of the Horizon 900 prosecutions will take any of these uncertainties into account. The Post Office wants each case to be handled individually on its merits. But are each side operating in near darkness?

The Post Office has impressive, independently-minded people looking at hundreds of potentially wrongful prosecutions. But they can only make determinations based on the evidence before them.

Articles on this website on 7 and 8 July showed that it is almost impossible for the accused facing faulty computer evidence in criminal and civil courts to prove their innocence. It is therefore mystifying how the Horizon 900 – if that’s the number who  come forward – will prove that Horizon affected their particular branch accounts at the time in question. Those profound doubts remain however well-qualified and able the review panel.

On the public conscience, therefore, are the prosecutions of 900 people and the convictions of 500 people. The accustions against them are derived from data produced by a flawed computer system. But instead of a general amnesty – which the public conscience cries out for – there is the real possibility that few if any of the Horizon 900 will be able to clear their names because the Post Office insists that each case be reviewed individually on its merits.

The Post Office IT scandal deepens.

**

Time sensitive – Join the 1,000 people who have made donations for a QC’s complaint to the Parliamentary Ombudsman of maladministration by the Department for BEIS over its failure to stop the Post Office making accusations in the criminal and civil courts on the basis of its flawed Horizon system.

Electronic Evidence – Stephen Mason and Daniel Seng  (NB chapter six)

Presumption concerning the dependability of computer evidence – Ladkin, Littlewood, Thimbleby and Thomas

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

Seema Misra criminal trial transcript

Post Office cover-up – they wanted it all to go away – Nick Wallis

Courts too ready to accept flawed computer evidence – which puts countless innocents in prison, say legal and IT experts

If faulty computer evidence is used against you in court, you may need £46m to prove your innocence.

By Tony Collins

Did the Post Office prosecute in the hundreds knowing most convictions were a foregone conclusion even with “not guilty” pleas?

If you own a franchise and your franchiser accuses you of stealing £50,000 or fiddling the books  on the basis of its faulty computer evidence,  you may need £46m to prove your innocence.

This was the cost to Post Office’s franchisees – sub-postmasters – of proving in the High Court that their franchiser’s main computer system, Horizon, was flawed and that its contracts were unreasonable and unenforceable.

But how many lone defendants facing a crown court hearing based on faulty computer evidence would have £46m at their disposal to prove the evidence against them was wrong?

Disappear

As a group of 557 litigants, former sub-postmasters led by Alan Bates were able to establish in the High Court that the Post Office’s Horizon system was to blame for money that seemed to disappear from branch post office accounts. The Post Office had spent nearly 20 years denying Horizon was faulty. It prosecuted more than 900 people on the basis of Horizon data and took action in the civil courts to force payments of tens of thousands of pounds in many individual cases.

In seeking to prove Horizon was faulty, Bates’ legal team were opposed by four top lawyers representing the Post Office – David Cavender QC,  Lord Grabiner QC, Anthony de Garr Robinson QC and Helen Davies QC.  Unusually in any High Court case, the Post Office also had two firms of solicitors.

A single Post Office application to the court – to remove the judge Mr Justice Fraser – cost £500,000. The two sides’ costs in total were about £100m.

In fighting the Post Office’s claims, Bates needed a talented legal team (led by Patrick Green QC) and a former insider who worked at Fujitsu, Horizon’s supplier, and who was willing to give evidence against his former employer. Bates also needed the disclosure of thousands of Post Office documents. And the sub-postmasters were fortunate in having a judge, Mr Justice Fraser, who understood the minutiae of the software issues before him. He knew when Post Office’s evidence was incomplete and misleading.

How was £46m spent?

In the end, the victory cost the litigants about £46m which included £15m in legal fees. The rest went to Therium which had taken the risk of funding the sub-postmasters’ litigation and “after-the-event” insurers who had covered litigants in case they lost and had to pay the Post Office’s costs.

None of this money and expertise would have been available to numerous lone defendants whom the Post Office prosecuted.

Those imprisoned on the basis of Horizon evidence included 19 year-old Tracy Felstead and pregnant sub-postmistress Seema Misra.

The prosecution’s advantage

Bates’ legal team won a civil case. Prosecutors in the criminal courts go into hearings with the advantage of knowing that judges work on a “presumption” that computer evidence is reliable.

The onus is on the defence to identify the specific faults in the system that caused money to go missing in the case of a theft charge. This may be impossible without full disclosure.

A matter of ethics

Barrister Paul Marshall has made a study of the consequences of the Law Commission’s recommendations in the 1990s that computer evidence be presumed by the courts to be reliable – a recommendation that was accepted by Parliament in 1999 by repeal of s. 69(1) of the Police and Criminal Evidence Act 1984.  He said in his paper The harm that judges do – misunderstanding computer evidence: the Lee Castleton case” that if the prosecution fails to disclose to the defence faults in its computer systems there is little courts can do. He said,

“The courts are virtually helpless to impose effective sanctions for failure to disclose evidence if a party fails to comply with their disclosure obligations under the rules of court. It is to be noted that the origin of these rules is equitable in nature – that is to say they attach, historically, to matters of conscience. Compliance with disclosure obligations is ultimately a matter of ethics, as much as of rules.”

But what if ethics are in short supply?

If a computer is faulty, it’s obvious isn’t it?

Barrister Stephen Mason, in his book Electronic Evidence, has a chapter of evidence (6) that undermines the Law Commission’s rationale for its presumption.

The presumption in the law of England and Wales is,

“In the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time’”.

The Law Commission, which advises Parliament on legal reform, has made it clear that “mechanical instruments” includes computers.

We’ve moved on from cash registers, haven’t we?

The presumption that computer evidence is reliable is based, in part, on a belief that computers are the same as stopwatches or older cash registers of the last century that either worked or didn’t.

But a large organisation such as the Post Office will have complex software-based systems whose flaws may remain hidden.

Mason’s book highlights many cases of computer failures caused by a range of problems such as input data flaws, unintended software interactions, operational errors, developmental issues and software errors, risks of errors when modifying software, security vulnerabilities and testing problems.

The cases he highlights show the vast differences between mechanical devices where faults may be obvious to the end-user and complex software-based systems where faults may go undiscovered.

Mason says:  “Faults in software and errors relating to the design of software
systems are exceedingly common. And while defects in hardware have been relatively rare, they are not unknown.”

He described the presumption that software code was reliable as a “delusion”. He said,

“Justice should not be based on concepts with no basis in logic or science.”

Marshall says the presumption is,

“as unsafe in practice as it is unjustified in principle”.

Comment:

Many in the IT industry are astonished that the Post Office prosecuted more than 900 people. They find it especially surprising given that sub-postmasters are a group most likely to hand in or give to charity a £10 note they found in the street.

But the criminal justice system makes it too easy to prosecute on the basis of computer evidence from a faulty system. Indeed it encourages questionable prosecutions under the Law Commission’s defective “presumption” that computer evidence is reliable.

For the Post Office, it might have been easier in some cases to prosecute when Horizon showed money was missing than involve the system supplier Fujitsu in a thorough and costly investigation of a possible system fault..

In such cases judges and magistrates would not require full disclosure of errors and bugs. All that was needed was the verbal confirmation by an IT specialist that the system was working properly.

And judges or magistrates will, it appears, usually assume that large companies tell the truth, know of any bugs and design weaknesses in their systems, don’t cover up and don’t intentionally mislead,

It is hard to avoid the conclusion that, for most defendants accused on the basis of a large organisation’s computer evidence, convictions are a foregone conclusion.

How can a justice system that readily, uncritically and routinely admits flawed – indeed in the light of Mr Justice Fraser’s judgments, false and seriously misleading – evidence, command public confidence?”.

It is the right of every citizen if wrongly charged to be able to walk into a crown court, plead not guilty and stand a chance, however remote, of being acquitted.

Two scandals

There are two scandals: one involves the Post Office and its Horizon IT system, the other the Law Commission’s unwitting encouragement of wrongful prosecutions based on computer evidence that may be incomplete and misleading.

It is not enough for ministers to announce a lessons-learning review of the Post Office Horizon system and for the Law Commission to shrug its shoulders and say, as it does, that nothing is seriously awry.

The Post Office scandal cries out for a judge-led inquiry. And if the Law Commission does not update its presumption on the reliability of computer evidence it is, in essence, accepting that most children will understand computers better than the crown and magistrates courts. Children know  computers can go wrong in many different ways. Would that judges grasped this notion too, particularly before they advise juries and unjustly hand down life-changing sentences.

Tomorrow – How will the Horizon 900 prove their innocence  – a new stage in the Post Office IT scandal?

Donations for a QC’s complaint to the Parliamentary Ombudsman of maladministration by the Department for BEIS over its failure to stop the Post Office making accusations in the criminal and civil courts on the basis of its flawed Horizon system.

Post Office cover-up – they wanted it all to go away – Nick Wallis

Courts too ready to accept flawed computer evidence – which puts countless innocents in prison, say legal and IT experts.

Electronic Evidence – Stephen Mason and Daniel Seng  (NB chapter six)

Presumption concerning the dependability of computer evidence – Ladkin, Littlewood, Thimbleby and Thomas

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

Seema Misra criminal trial transcript

Courts too ready to accept flawed computer evidence – which puts countless innocents in prison, say legal and IT experts.

By Tony Collins

A major defect in the criminal justice system encourages courts to jail people or inflict life-changing financial harm on the basis of faulty computer evidence, say barristers and senior IT academics.

The defect means crown and magistrates’ courts will accept computer evidence from big organisations as reliable even when it is flawed, incomplete or misleading. The organisation can follow a successful conviction with a civil action that forces payment of large sums.  Wrongly convicted people can then be forced into paying the organisation their life savings or the proceeds from the sale of their homes.

The Law Commission, which advises Parliament on law reform, has known of the flaw in the criminal justice system for more than 20 years but has not heeded warnings that it could lead to countless miscarriages of justice.

Post Office IT scandal

Now the warnings have turned to reality. In what is being described as the widest miscarriage of justice in British legal history, the Post Office prosecuted more than 900 people using computer evidence from its flawed Horizon system.

Based on Horizon evidence, the Post Office also pursued countless people in the civil courts, making some of them bankrupt and forcing some to pay tens of thousands of pounds for money said by Horizon to be missing but which may have been transferred by the system into a hidden central Post Office account.

Despite the Post Office IT scandal, the Commission has still not announced any plans to change a legal “presumption” that leads to courts’ treating the prosecution’s computer evidence as reliable.

The Government is taking a relaxed view of the Law Commission and Post Office scandals. It has announced a lessons-learning review of the Post Office Horizon system but no investigation of the Law Commission scandal.

Naïve

Barristers and IT specialists say the Commission’s presumption is extraordinarily naïve and undermines confidence in the UK criminal justice system.

Barrister Paul Marshall has made a study of the subject. He has written a paper entitled The harm judges do – misunderstanding computer evidence: the Lee Castleton case”. He quotes one judge as expressing a “frankly bizarre and atypically silly” view that,

“… one needs no expertise in electronics to be able to know whether a computer is working properly.”

Full disclosure is rare

Under current legal advice to courts, the onus is on the defence to  prove flaws in the prosecution’s computer evidence but big organisations are unlikely to make a full disclosure of errors, bugs and weaknesses in their back-office systems. They will regard such information as commercially confidential. Full disclosure is rare.

In the Post Office’s case, numerous flaws in its Horizon system were covered up for nearly 20 years during which time it prosecuted at least 900 people on the basis that the system was robust.

Nobody has had their criminal convictions quashed or their life savings and  proceeds from the sale of their house returned.

Marshall describes the Post Office scandal in his paper as “mendacity on an epic scale”.

Frankly bizarre

Barrister Stephen Mason is a long-time critic of the Law Commission’s stance on computer evidence. He says said in his book  “Electronic Evidence” that the courts treat computers as machines.

“It cannot be right to presume that a machine, in particular a computer, computer-like device or network, was ‘in order’ – whatever that means – or ‘reliable’ at the material time.”

Mason has obtained a rare transcript of a criminal court hearing. It  shows how a crown court judge accepted the Post Office’s computer evidence on the basis of an IT-literate person from the company testifying that the computer was working properly at the material time. The testimony included a claim that it would have been obvious to the end-user if the computer was not working properly.

The transcript also shows that the judge appeared to be sceptical of claims by the accused, a pregnant sub-postmistress Seema Misra, that the computer was faulty. She denied stealing money that Horizon evidence suggested was missing.

Clear injustices 

Misra’s lawyer asked the courts three times for her criminal trial to be stayed as an “abuse of process” because of inadequate disclosure of the computer data against her. Each of her applications was rejected by different judges.

Instead, the court accepted the prosecution’s claims that Horizon was reliable. Misra fainted when she was jailed for 15 months. She was eight weeks pregnant with her second child.

The judge had told the jury that there was no evidence money was stolen. But he left the jury in no doubt about the reliability of Horizon. He told them,

“There is ample evidence before you to establish that Horizon is a tried and tested system in use at thousands of post offices for several years, fundamentally robust and reliable.”

Also incorrect was a statement to the jury by the Post Office’s prosecuting counsel.  Referring to Horizon, he said,

“… it has got to be a pretty robust system and you will hear some evidence from an expert in the field [Fujitsu] as to the quality of the system … the Crown say it is a robust system and that if there really was a computer problem the defendant would have been aware of it.

“That is the whole point because when you use a computer system you realise there is something wrong if not from the screen itself but from the printouts you are getting when you are doing the stock take.”

That the prosecution did not tell the judge and jury of numerous bugs in the Horizon system or that figures on branch accounts could be altered remotely without the sub-postmaster’s knowledge has led to no admonishment of the Post Office by any government ministers.

Pay Post Office £321,000 says court

In another clear miscarriage of justice, the Post Office won a civil case to make sub-postmaster Lee Castleton pay £26,000 that was shown on Horizon as missing. Castleton appealed but the appeal judge rejected any suggestion Horizon was not working properly.

He ordered Castleton to pay costs which the Post Office put at £321,000. Nobody has ever understood since how the judge allowed the Post Office to claim £321,000 in costs over a disputed sum of £26,000. Castleton was forced into bankruptcy and, to this day, the Post Office has never repaid the money he lost through the courts’ acceptance that the system was working properly.

Marshall says in his paper that the judge in Castleton’s case was satisfied with the testimony of a witness from Horizon’s supplier Fujitsu whose evidence “amounted to saying she herself could not see anything wrong with the system”.

Cover-up

Mason in his book explains how Toyota intentionally covered up information and misled the public about the safety issues with some cars that had computer-controlled accelerator pedals.  Toyota at first denied that its software was to blame for a spate of unintended accelerations, some of which caused fatalities, but after a dispute lasting several years Toyota agreed a settlement worth nearly £1bn.

The case showed how a big organisation may not fully understand its own software and have little idea of its coding flaws until a serious incident or spate of incidents occur. It is usual after such incidents, as in he cases of Toyota and the Post Office, for the organisation in question to deny a first that its software has been the cause of serious incidents.

Ridiculous

But UK judges take little or no account of corporate cover-ups. Marshall quotes one judge, Justice Lloyd as saying,

“Where a lengthy computer printout contains no internal evidence of malfunction, and is retained, e.g. by a bank or a stockbroker as part of its records, it may be legitimate to infer that the computer which made the record was functioning correctly.”

Another similar comment was made by Lord Griffiths,

“‘…  in the vast majority of cases it will be possible to discharge the burden (of showing the computer was working properly) by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly.”

Mason says,

“The legal presumption that computers are reliable is ridiculous.”

Law Commission’s view

The Law Commission’s view is that the “presumption” does not place too great a burden on the defence. But the Commission’s critics say the numerous miscarriages of justice in the Post Office Horizon IT scandal are proof that it all but impossible for defendants to prove their innocence when they are against a big organisation’s computer evidence.

The Commission is also likely to deny that it has, with indifference, carried on with the “presumption” about the reliability of computer evidence. This is not how the Commission works. It conducts projects into areas of the law and produces reports, which the government is free to accept or reject.

The “presumption” is 23 years old and the Commission does not keep areas of law under continuous review. The Commission can be asked to look into any area of law again in a new project but cannot launch one unless it and the government agree on its need.

Comment

The criminal justice system ought to be reining in corporate mendacity not encouraging it. At least 900 unsafe prospections and judges and juries sending innocent people to prison would not have happened if courts had been more open to the defence’s challenge of computer evidence. That judges were too ready to accept computer evidence as reliable is obviously wrong. But the Law Commission seems content to be complicit in the governmental and civil service  pretence that there’s nothing seriously awry. How can the Law Commission go another week without starting work on reforming the advice to judges?

Every week that the legal advice to judges remains unchanged is another week that the Law Commission’s “presumption” on the reliability of computer evidence makes a mockery of the criminal justice system.

Tomorrow – If faulty computer evidence is used against you in court, you may need £46m to prove your innocence.

Donations for a QC’s complaint to the Parliamentary Ombudsman of maladministration by the Department for BEIS over its failure to stop the Post Office making accusations in the criminal and civil courts on the basis of its flawed Horizon system.

Electronic Evidence – Stephen Mason and Daniel Seng  (NB chapter six)

Presumption concerning the dependability of computer evidence – Ladkin, Littlewood, Thimbleby and Thomas

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

Seema Misra criminal trial transcript

Post Office cover-up – they wanted it all to go away – Nick Wallis

 

Has the Post Office IT scandal deepened?

By Tony Collins

FlickrLetters published yesterday from the current and former CEO of the Post Office, Nick Read and Paula Vennells, are likely to deepen the sense of injustice felt by victims of the Horizon IT scandal.

The letters raise more questions than they answer – which was expected. But what is less clear is why the Business, Energy and Industrial Strategy committee of MPs  missed an opportunity to question the CEOs on Zoom.

The committee gave Covid as the reason for not questioning Read and Vennells.  But the committee has declined to say why it did not question them on Zoom. Parliamentary debates were being held on Zoom in April.

The same committee of MPs missed two opportunities last year to ask the Post Office why it was spending tens of millions of pounds in the High Court defending Horizon when the system was known to have fundamental weaknesses and bugs.

The committee’s failures raise questions of whether its MPs have been too willing to defer to civil servants and business ministers who could have stopped the scandal in 2011 but didn’t.

By that time, concerns about Horizon were being raised by former Defence minister James (now Lord) Arbuthnot. Computer Weekly broke news of the Horizon scandal in 2009.

Since the year 2000 hundreds of sub-postmasters have had their lives ruined by being forced to pay the Post Office tens of thousands of pounds shown on a faulty Horizon system as missing but which was not missing. The Post Office has still not returned much of the money it wrongly acquired from sub-postmasters. And sub-postmasters who were wrongly prosecuted over the “missing” money have still not had their criminal convictions quashed.

Vennells was CEO from 2012 to 2019 and Read took over from her last September. Their letters gave replies to the BEIS committee’s written questions about the Post Office Horizon IT scandal.

Journalist Nick Wallis, in his analysis of Vennells’ letter, raises many questions about her replies, all of which are likely to remain unanswered.

Read’s letter also raises more questions than it answers.

Read says the Post Office accepts that it “got some things wrong in the past”.

Had MPs been able to challenge him on Zoom, they could have asked whether the ruin of hundreds of lives and at least one suicide – that of sub-postmaster Martin Griffiths who died after the Post Office put him under pressure to pay money wrongly shown on Horizon as missing – is given due concern by Read’s statement, “We accept we got some things wrong in the past”.

And does Read’s statement cover the Post Office’s not handing over evidence at the theft trial of pregnant sub-postmistress Seema Misra that could have helped her avoid jail and prove her innocence? The withheld evidence was of a bug in Horizon that made money at branch level “simply disappear”. The evidence was revealed in Nick Wallis’ BBC Panorama documentary The Great Post Office Trial.

The committee’s first question to Read was when the Post Office had identified a major problem with Horizon and what was its nature.

Read’s answer gave no specific date or year or what the major problem was.  He  said,

“The extent of issues became apparent to Post Office during the Group Litigation and is set out in the High Court judgment .which found that the potential for bugs to affect branch balances in historical versions of Horizon was greater than Post Office believed”.

Had MPs been able to question him on Zoom, they could have asked whether in fact the Post Office has known of serious and widespread Horizon problems for nearly 10 years.

He could, further, have been asked why board advice in 2016 was that Horizon was not fit for purpose but still directors went into a litigation costing tens of millions of pounds in defence of Horizon’s robustness.

Read could also have been asked why the Post Office was content to fund an arguably hopeless litigation but not content to pay back in full the money the Post Office had wrongly acquired from Horizon scandal victims.

Some of Read’s answers suggested he could not speak for the period before he joined as CEO in September 2019.  On Zoom, however, MPs could have asked him why, if he could not speak for the 20-year period before he joined in September 2019, there was any point in the committee’s questioning him at all about the Horizon scandal.

Another of the questions the committee asked Read was when the Post Office became aware that local Horizon terminals could be accessed centrally and altered. He gave an indirect reply.

He said, “I first became aware of the position as found by the High Court when the Horizon judgment was handed down (December 2019). As I was not involved at the time, I do not wish to speculate how Post Office’s knowledge of remote access issues evolved over time.”

Again, if interviewed on Zoom,  he could have been asked about a “management letter” to Post Office directors in 2011, from c0nsultants Ernst & Young, which referred to the issue of remote access to branch Horizon systems. The letter said Ernst and Young has “again identified” weaknesses in the Horizon system and it warned that staff at Horizon supplier Fujitsu have “unrestricted access” to sub-postmaster accounts that “may lead to the processing of unauthorised or erroneous transactions”. [Source BBC Panorama’s The Great Office Scandal].

Why then did the Post Office continue to prosecute, make people bankrupt and remove their livelihoods when it was known that Horizon could be to blame?

Read’s letter also said that the High Court judgement “did not determine whether bugs, errors or defects did in fact cause shortfalls in the individual claimants’ accounts but it found that they had the potential to create apparent discrepancies in postmasters’ branch accounts”.

This may be incorrect.  The judgement said,

“It was possible for bugs, errors or defects of the nature alleged by the claimants to have the potential both (a) to cause apparent or alleged discrepancies or shortfalls relating to Subpostmasters’ branch accounts or transactions, and also (b) to undermine the reliability of Horizon accurately to process and to record transactions as alleged by the claimants.

“Further, 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…”

Read also referred in his letter to openness and transparency but has given no media interviews on the Horizon scandal.

Comment

The unchallenged letters to the committee from Read and Vennells  may, for the victims of the Horizon scandal, have made things worse.

It was always known that the committee could ask tough questions of Read, Vennells and Fujitsu but for what purpose if MPs were not going to be able to ask follow up questions?

Those whom Horizon victims already regard as largely unaccountable have now been able to make their own points to MPs.

It is still open to the committee in its report to criticise the contents of the letters. But select committee reports are usually quickly forgotten.

The committee ought not to have deferred to the Post Office, civil servants and ministers. Instead it ought to be acting as advocates in Parliament for the scandal’s victims. The committee could have tried to stop the scandal years ago.

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

Perhaps the most disappointingly predictable letter was from the business minister Paul Scully. His formulaic paragraphs  to the committee were almost identical to what he has said in Parliamentary debates on the scandal.

It is easy to be reminded of the electronic message inside some greetings cards. Every time you open the card you get the same automated message.

Indeed, in all of Scully comments, speeches and written replies about the scandal, he has said nothing of which the Post Office would disapprove. But he does not seem to mind antagonising victims by repeatedly referring to the need for an independent review and not a judge-led inquiry.

The letters published yesterday, particularly Scully’s,  are a reminder that former sub-postmasters will not move forwards in their campaign for justice by relying in any way on ministers, civil servants or the BEIS committee.

Donations for a QC’s complaint to the Parliamentary ombudsman

Paula Vennells breaks her silence – Nick Wallis

Former Post Office CEO and Fujitsu play the blame game in Horizon IT scandal – Computer Weekly

BEIS committee publishes Horizon IT scandal letters

Vennells sparks outrage by blaming everyone but herself – from tech workers to lawyers and even the postmasters who were wrongly prosecuted – for IT scandal – Mail Online

 

Is government “review” into the Post Office IT scandal a parody?

By Tony Collins

Business ministers have repeatedly used the word “independent” to describe their planned review of the Post Office Horizon IT scandal.

In the space of 15 minutes, Lords business minister Martin Callanan, in a debate on the scandal last week, used the word “independent” eight times when referring to the review.

But, as it is being boycotted by some of its main potential participants, including the Justice for Subpostmasters Alliance, the review now largely comprises the Post Office itself and three organisations with which it has financial relationships: its Horizon supplier Fujitsu, the National Federation of SubPostmasters (which receives funding from the Post Office] and the Department for Business, Energy and Industrial Strategy (which provides the Post Office with hundreds of millions of pounds in public funding and is supposed to scrutinise its work).

Far from looking rigorously independent, the review could be said to resemble a Post Office self-help group.

More than 60 MPs, groups of peers, the Justice for Sub-postmasters Alliance, forensic accountants Second Sight and the CWU union which represents sub-postmasters, will continue to campaign for a judge-led public inquiry into what is being described as one of the biggest miscarriage of justice in British legal history.

They say a judge is needed to hold the Post Office to account. When sub-postmasters led by former sub-postmaster Alan Bates successfully sued the Post Office in a group litigation to expose the flaws in Horizon, even the High Court judge in the case struggled at times to obtain full, accurate and truthful evidence from the Post Office.

In the government’s voluntary review of the scandal, the chair would be without the statutory power and authority of the High Court and would be unlikely therefore to be able to require the Post Office to tell the whole truth and disclose all relevant evidence.

For nearly 10 years the Post Office wrongly held sub-postmasters liable for money shown as missing on its flawed Horizon computer system. The Post Office insisted Horizon was robust and covered up its bugs and weaknesses. Hundreds of sub-postmasters were affected by the scandal. Some lost their businesses, life savings, liberty,  reputations and health.

Debate

It’s unclear how well the business minister Callanan was briefed for last week’s Lords debate on the Horizon scandal.

He told peers that the findings outlined throughout the High Court Horizon judgment provided an extensive insight into what went wrong at the Post Office including an independent judicial view of “all the facts that all sides were looking for”.

But the Post Office, which was the defendant in the case, had fought and lost a costly legal attempt to stop subpostmasters setting up a High Court Group Litigation Order against the Post Office.

In addition, the Post Office fought and lost a bid to stop sub-postmasters presenting a range of evidence that the judge ruled as relevant in the case. The Post Office  also tried to remove the judge and criticised many of his findings. The judge found that the Post Office “resisted timely resolution of this Group Litigation whenever it can…”

Comment

If a privately-owned company had behaved as the Post Office has behaved, forcing its franchisees to pay large sums of money because a flawed computer system was generating phantom shortfalls, would the authorities confine their response to a lessons-learning review?

An independent review is a classic Sir Humphrey riposte to demands for a judge-led public inquiry. Sir Humphrey knows that such review reports are destined for the archive almost as soon as they are published.

But the momentum in Parliament is for a judge-led inquiry.

Peer group pressure?

One reason business ministers in successive governments have always sided with the Post Office and not the sub-postmasters might be because ministers do not talk regularly to victims of the scandal but have routine meetings with senior officials at the Post Office and senior civil servants at the business department for Business, Energy and Industrial Strategy.

The solution therefore may be then for the current business ministers Paul Scully and Martin Callanan to put aside two hours to listen in full to journalist Nick Wallis’ extraordinary BBC R4 documentary  The Great Post Office Trial.

Maybe then the ministers would start demanding a judge-led inquiry.

In case they don’t, please donate to this crowdfunding appeal to raise money for a case to be made to the Parliamentary Ombudsman for an investigation into  maladministration by the Department of Energy, Business and Industrial Strategy. The Department for BEIS was in denial for nearly 10 years over the Horizon scandal.

Donate hereJustice for Sub-postmasters Alliance appeal

Nick Wallis’ 10-part BBC Radio 4 The Great Post Office Trial. The series is a momentous achievement by any documentary standards.

Family of man who killed himself after being wrongly accused of theft demand Post Office bosses are held accountable

Post Office Horizon victims keep up pressure on government – Karl Flinders, Computer Weekly.

Post Office IT scandal: do business committee MPs firmly back victims or ministers and civil servants?

Tony Collins

Business committee MPs have asked politely for a judge-led inquiry over the Post Office IT scandal. But they also conditionally welcome the business minister’s announcement of a “review”. Whose side are they on?

The House of Commons’ business committee BEIS is supposed to oversee the Post Office. But in the stand-off between ministers and sub-postmasters over whether there ought to be a judge-led inquiry into the scandal or a review, the position of the BEIS committee is not obvious.

The two sides agree on the scale of the scandal: hundreds of sub-postmasters were  wrongly blamed for money shown to be missing on the Post Office’s Horizon system whose flaws were kept hidden. Up to 900 sub-postmasters might have been wrongly prosecuted. The Post Office took away hundreds of livelihoods and made numerous sub-postmasters bankrupt. Many lost their life savings which have still not been returned.

But while everyone agrees the scandal represents one of the biggest miscarriages of justice in legal history, a gulf separates the two sides on what to do about it.

Paul Scully MP, business minister who wants a review and doesn’t support a judge-led inquiry into the Post Office Horizon IT scandal

On one side stands the business minister Paul Scully,  the Post Office and civil servants at the Department for Business, Energy and Industrial Strategy. Scully has announced a government “review” and refuses to support calls for a judge-led inquiry. He says that he will make sure the Post Office cooperates fully with a review.

Boycott

But MPs in general, together with peers and sub-postmasters, insist on a judge-led inquiry. Sub-postmasters will boycott Scully’s review, as will forensic accountants 2nd Sight who have reported in-depth on flaws in the Horizon system.

The boycott would leave a shortage of useful participants in the government review. But where do MPs on the House of Commons’ business committee stand? Review or judge-led inquiry?

The answer is that nobody is quite sure. The committee’s MPs sympathise with the scandal’s victims whose losses remain in the tens of thousands of pounds. The MPs appear to advocate a judge-led inquiry.  But they have also given a conditional welcome to Scully’s announcement of a review.

Misled

Darren Jones MP, chairman of the Business, Energy and Industrial Strategy Committee

Yesterday, the committee’s chairman Darren Jones wrote a letter to Scully which set out an impressive and forceful argument for a judge-led inquiry. Jones said,

“It is imperative that, if wrongly convicted or accused, sub-postmasters and postal staff are to receive justice that those who took key decisions in relation to Horizon at Post Office Ltd, Fujitsu and within government are held to account.
“You yourself, in the written evidence you supplied to the Committee in March, noted that the advice Post Office Ltd provided to BEIS was ‘flawed’, while Lord Callanan [business minister] stated in the Lords on 5 March that BEIS officials were “clearly misled by the Post Office”. Bearing in mind the number of successful litigants in Bates v Post Office Ltd and the number of cases referred by the CCRC [Criminal Cases Review Commission] to the Appeal Court, centering on people who went to jail or who lost their careers, homes and, in some cases their lives, this is not just a matter of learning lessons. This is also about establishing facts. If there was maladministration or deliberate withholding of evidence that might have had a material impact on the outcome of these cases and convictions, those responsible should be held to account. This in turn will allow lessons to be learnt but will also send a powerful signal that if the highest standards in our public institutions are not adhered to there will be serious consequences.
” I urge you to put this Independent Review on a statutory basis so that it can summon Post Office and Horizon staff, past and present, who made key decisions related to this case. It is also important that past and current UK Government Investments (UKGI) and Departmental officials give evidence. UKGI sat on the Post Office Ltd Board and the BEIS Permanent Secretary is the Accounting Officer for arms-length bodies, including Post Office Ltd. It is crucial that those who were supposed to be scrutinising Post Office Ltd decisions and/or who were privy to board level discussions are also held to account. A statutory judge-led Public Inquiry needs to be able to establish the truth and give closure to those who have lost so much and who have waited for justice for so long.”

No justice without truth

In last week’s debate on the scandal MP Chi Onwurah also set out a strong case for a judge-led inquiry. She told the House of Commons,

“Nine hundred prosecutions, each one its own story of dreams crushed, careers ruined, families destroyed, reputations smashed and lives lost—innocent people bankrupted and imprisoned. Does the Minister agree that Monday’s “Panorama” adds to the sense of a cover-up on a grand scale in the Post Office, a trusted national institution? And all because of the failings in the Post Office Horizon system.
“For over a decade, the Justice for Subpostmasters Alliance campaigned to get at the truth, but the Post Office denied all wrongdoing, imposing huge lawyers’ fees on the claimants. Mr Justice Fraser’s High Court ruling in December paved the way finally for justice for some, but the mediated settlement means the truth remains hidden. Does the Minister agree that there can be no justice without truth?
“So many questions remain unanswered. When did the Post Office know that the Horizon system could cause money to disappear, and what responsibility did the developer, Fujitsu, have? What did Ministers, to whom the Post Office is accountable, do, and what did they know? Who was responsible for innocent people going to jail? Have they been held accountable? Will all the victims be properly compensated?
“Three months ago, the Prime Minister committed to a public inquiry, but we now hear that that is to consider whether the Post Office has learned the necessary lessons. We need an inquiry not simply to learn lessons but to get to the truth. Only a judge-led inquiry can do that, with the Post Office compelled to co-operate. Will the Minister now agree to the judge-led inquiry we need? It is the very least the victims deserve.
“We need answers, not more delay. We will not rest until we get that and justice for all those wronged in this scandal.”

The BEIS committee

Last year, the Business, Energy and Industrial Strategy committee did not launch an inquiry into the Post Office Horizon IT scandal because High Court litigation between 550 sub-postmasters and the Post Office over Horizon’ was continuing.

The litigation ended in a settlement n December and, in March 2020,  the committee duly launched an inquiry into the scandal but changed its mind on calling as witnesses the Post Office, its IT supplier Fujitsu or the civil servants whose job was to oversee the Post Office.

Instead, the committee gave them the option of answering written questions, which gives them time for answers to be checked and polished, if necessary, by lawyers. The move left some sub-postmasters asking whether the BEIS committee was on the side of the Post Office and the civil service or victims of the scandal.

Last week, the committee appeared again to go against the wishes of sub-postmasters when it sided with Scully in giving conditional support to a government “review” of the scandal.

Committee chairman Darren Jones told the House of Commons, “The sub-postmasters who have suffered such a depth of injustice, such a wide range of harm, will no doubt welcome the news today of the Minister’s inquiry, but will he confirm to the House that that inquiry will have sufficient power to compel the disclosure of documentary evidence and to compel witnesses to come before it to give evidence in public?”

Scully gave no such assurance. Yesterday, after it emerged that sub-postmasters did not welcome the minister’s announcement of a review – and indeed would be boycotting any review – the committee set out strong grounds for a judge-led inquiry but stopped short of demanding one. Its letter to Scully referred only to a “need” for such an inquiry. The committee’s letter to Scully said,

“A statutory judge-led Public Inquiry needs to be able to establish the truth and give closure to those who have lost so much and who have waited for justice for so long.”

Campaign4Change asked the committee whether its letter to Scully amounted to a call for a judge-led inquiry. The committee did not reply.

The committee’s apparent ambivalence seems to suggest it is keen to maintain the support of postal ministers, the Post Office and civil servants in the Department for Business, Energy and Industrial Strategy.

Comment

The BEIS committee’s support for Scully’s announcement of a review, even though conditional, is remarkable when it is only too obvious to campaigners for justice that a review is worse than pointless. It is a delaying tactic.

Why would the Post Office after centuries of being answerable to nobody suddenly, in the year 2020, in response to a government review, become open, truthful and humble?  It is not necessary to read carefully Mr Justice Fraser’s two main judgements on the Horizon High Court trials to realise that he was appalled at the Post Office’s poor conduct, lack of truthfulness and secretiveness.

Therefore Scully is naïve if he supposes he can ensure the full cooperation and openness of the Post Office in a voluntary, non-statutory review when it behaved the way it did in several statutory High Court hearings.

But can sub-postmasters rely on the BEIS MPs to demand a judge-led inquiry when the committee hasn’t even called the Post Office, Fujitsu, the civil service and ministers to give verbal evidence to its Horizon inquiry?

The apparent reluctance of the committee to do anything that upsets ministers, civil servants or the Post Office even when the subject in question is one of the biggest miscarriages of justice in British legal history, reinforces the need for an independent investigation by the Parliament Ombudsman. Donations to enable a QC to make a powerful case for such an investigation can be made here.

Donations to ensure strong case for an independent investigation by the Parliamentary Ombudsman 

Key forensic accountants refuse to support government review of Post Office scandal – Computer Weekly’s Karl Flinders

Scandal at the Post Office – BBC Panorama

Victims of Post Office IT scandal to boycott minister’s “review”

By Tony Collins

Justice for Sub-postmasters Alliance, whose successful legal action against the Post Office uncovered one of the biggest miscarriages of justice in modern legal history, is to boycott a minister’s “review” of lessons from the scandal.

Alan Bates, founder of the Alliance and lead claimant in the litigation against the Post Office, says that the lessons-learning “review” announced by business minister Paul Scully on Wednesday is “not what we need”.

The Alliance, together with MPs and peers of the main political parties, have called for a judge-led inquiry.

But Scully has rejected a judge-led inquiry suggesting it would cost too much and take too long – although a full-scale judge-led inquiry could cost less than £5m including the legal fees, office and administration overheads.

Campaign4change published a breakdown of the costs of a typical judge-led inquiry in April 2020.

Scully’s planned review has been described as “pathetic” and “pointless” in a Computer Weekly article.

MPs at a debate on the Horizon scandal in the House of Commons on Wednesday made it clear they will accept only judge-led inquiry, not a review. Newcastle MP Chi Onwurah said a judge-led inquiry is the “very least the victims deserve”.

More than 1,000 sub-postmasters were victims of the Horizon IT scandal. Lives, livelihoods, homes, life savings, marriages and good health were lost because the Post Office held sub-postmasters liable for every amount shown on Horizon as missing even when the system was to blame. The Post Office prosecuted more than 900 sub-postmasters using potentially untrustworthy Horizon data. An unknown number of sub-postmasters have lived for large periods of their adult lives with unwarranted criminal convictions.

Scully’s review would not be able to require the disclosure of top-of-government emails and letters about the scandal or confidential reports and files that are usually made available to judge-led inquiries. Neither would a review feature the cross examination of ministers, civil servants or the  Post Office’s current and former officials. It would also not be able to take evidence on oath.

Ministers say the Post Office will cooperate fully with the review. But the High  Court’s Sir Peter Fraser QC, in his judgements last year after two Horizon-related trials,  found that the Post Office had not always told the truth to the court, either verbally or in written evidence. The High Court trials uncovered extensive cover-ups that extended well into 2019.

Sub-postmasters may wonder why the Post Office would be open and transparent in an entirely voluntary review when it sought to have relevant evidence struck out and provided misleading information in statutory court hearings. The Post Office hired four QCs and two firms of solicitors against sub-postmasters during the High Court trials.

But Scully suggests that the Post Office has changed. He told MPs on Wednesday,

“The key point is that the Post Office has said that it will disclose everything, and I will ensure that it does, to the best of my ability.”

However, Justice for Sub-postmasters Alliance said,

“We need to know who in Government took such disastrous decisions, and who failed to undertake their duties that led to us having to pursue Post Office through the courts costing each of us £86,000.

“Who lied?  Who knew what?  That’s what we want to know …”

The JFSA says it will not engage with the review and will refuse any invitations to attend or submit documentation to this review. “We will only assist a judge-led public inquiry, and would do so gladly.”

Forensic accountants Second Sight, which carried out an independent review of the Horizon system at the Post Office’s request but had its contract terminated after it found faults with the system, may also take part only in a judge-led inquiry.

The Alliance says will write to Scully to explain its position.

It has set up a crowd-funding appeal to raise money for a formal complaint against the civil service and ministers of maladministration.  If enough money is raised for a QC to lodge the complaint, and the Parliamentary Ombudsman finds in the Alliance’s favour, the Ombudsman can recommend that adequate compensation is paid to former sub-postmasters for their losses.

The website for donations is here.

The Minister and the Department for BEIS’s proposed ‘review’

Anger as government launches “pathetic” and “pointless” review of Horizon scandal 

Another 20 years of the Horizon IT scandal? – questions a “review” may avoid.

BBC Panorama – Scandal at the Post Office

Has the Post Office Horizon IT scandal turned into “Yes Minister” without the smiles?

The main characters in the minister’s Office of the Department of Administrative Affairs: from left, Sir Humphrey Appleby (the consummate civil servant), Bernard Woolley (private secretary) and Jim Hacker (the minister)

By Tony Collins

Yesterday in the House of Commons, MPs debated whether the Post Office Horizon IT scandal ought to be the subject of an independent “review” or an independent judge-led inquiry.

MPs of all parties were adamant they wanted a judge-led inquiry and the minister insisted on a “review”.

Perhaps the difference between a judge-led inquiry and a review is simply explained in the following imaginary episode of Yes Minister…

Hacker (Sitting behind his desk): “What are we going to do Sir Humphrey? They all seem to want a judge-led inquiry. We don’t want one of those do we?

Sir Humphrey (Standing in front of the desk): Absolutely not.

Hacker: Why not?

Sir Humphrey: Because judge-led inquiries are not what we do.

Hacker: But people want accountability. They want heads to roll. (Looking down with lowered voice). Mine perhaps. They say we’re implicated in this, scandal. The least we can do is have a judge-led inquiry. Surely?

Sir Humphrey: Actually minister there’s a way of dealing with these things that’s much more … (smiles, with emphasis) reassuring.

Hacker: Yes?

Sir Humphrey: We have a “review“. That’s the way to deal with these things.

Hacker: What’s the difference? Judge-led inquiry or review.  They’re the same thing aren’t they?

Sir Humphrey: Yes minister. In everything except the detail.

Hacker: What do you mean?

Sir Humphrey: Well a judge-led inquiry may want to talk to you.

Hacker: (with alarm) Me?

Sir Humphrey: Yes and possibly … us.

Hacker: We can’t have that!

Sir Humphrey: Quite.

Hacker: But won’t people object to a review? It doesn’t sound like it’s going to get to the bottom of this; they’re calling it the biggest scandal of modern times.

Sir Humphrey: We call it an independent review.

Hacker: What’s independent about it?

Sir Humphrey.  We appoint the chair.

Hacker: But isn’t an independent chair the same as a judge?

Sir Humphrey: Judges have a habit of wanting the facts. They like documents. Letters. Internal confidential reports. That sort of thing. They may even want evidence on oath.

Hacker: But doesn’t the chair of a review?

Sir Humphrey: That’s the beauty of a review. It takes the facts we already know, everything that’s already known and, well … reviews it.

Hacker: Well what’s the point of a review then?

Sir Humphrey (stroking his chin, contemplative): Exactly. (Looks at his feet, almost under his breath). Yes, what is the point.

Hacker: (triumphant)  A review it shall be!

Sir Humphrey: (reluctantly) Yes, Minister

ends

Now the serious bit … Alan Bates, founder of Justice for Sub-postmasters Alliance wants donations to hold the civil service to account over the Horizon IT scandal. The Ombudsman can recommend that proper compensation be paid to victims of the scandal. Bates seeks to raise £98,000 in the next three weeks to fund a complaint to the Parliamentary Ombudsman. Any investigation by the Ombudsman is likely to offset the friendly pointlessness of a civil service-ordered “review”.

Donations website

Concern as MPs drop plan to cross question Post Office and Fujitsu over Horizon scandal

By Tony Collins

MPs who are holding an inquiry into the Post Office Horizon IT scandal have dropped plans to cross question the Post Office’s current and former CEOs and a senior executive of Fujitsu.

It’s a blow to campaigners for justice who are concerned that nobody has been held to account for what is being described as one of the biggest miscarriages of justice in British history. The scandal might have claimed more than 1,000 former sub-postmasters as victims. The Post Office prosecuted an unknown number of sub-postmasters over money shown as missing on an untrustworthy Horizon branch accounting system.

Now MPs on the Business, Energy and Industrial Strategy committee will have  no opportunity during their current Horizon inquiry to cross question Nick Read, the Post Office’s CEO.  MPs had been expected to question him on Zoom or similar video conference system.

Read has not at any time faced cross questioning on his public statements over the scandal.

Polished answers?

The committee has also dropped plans to cross question Read’s predecessor Paula Vennells, Post Office CEO from 2012 to 2019. Instead, the committee has given Vennells, Read and the Post Office’s Horizon system supplier Fujitsu a set of written questions to be answered by 16 June.

But former sub-postmaster Alan Bates, whose successful group litigation in the High Court against the Post Office exposed numerous flaws in the Horizon system, says he fully expects the written answers to be “crafted and polished by a team of lawyers” and may say little.

It has further emerged that the committee has no plans to cross question any civil servants from the Department for Business, Energy and Industrial Strategy which was responsible for overseeing the Post Office. The Department’s ministers and civil servants allowed the Horizon scandal to continue unchecked for more than a decade. They rejected repeated warnings about Horizon’s flaws from MPs whose constituents were among the Post Office’s victims.

Bates has set up a crowdfunding campaign to hold the department for BEIS to account for its failed oversight of the Post Office. The campaign has a one-month deadline to raise funds for a QC’s formal complaint to the Parliamentary Ombudsman. It has so far raised about a third of the target £98,000.

Remote access

Sub-postmasters lost their freedom, livelihoods, houses, marriages, life savings and sometimes their lives because the Post Office held them liable for money shown as missing on Horizon.  But while prosecuting sub-postmasters, the Post Office kept it a secret from defence lawyers that some Fujitsu IT engineers could remotely access sub-postmasters’ branch Horizon systems and, without their knowledge,  change code for software maintenance reasons. These changes could, potentially, show phantom shortfalls that the Post Office could demand that sub-postmasters make good.

In a Panorama documentary “Scandal at the Post Office”, which was broadcast on Monday, Vennells appears to hang up the phone on reporter Nick Wallis when he begins asking her a question about remote access…

Wallis:  “Hello Ms Vennells. This is Nick Wallis from the Panorama programme. This conversation is being filmed. I’d like to ask you some questions about your tenure as Chief Executive of the Post Office.”

Vennells, “I am sorry Nick. I have already given a statement to the programme. Thank you.”

Wallis:  “I would like to ask you why the Post Office knew about remote access to the Horizon system …”  The phone line appears to go dead after Wallis’ words “remote access”.

Wallis then says to the camera, “This is one of the biggest frustrations about covering this story for so long: the consistent refusal of the chief executive and people at the top to answer serious questions about what’s been happening. I think the sub-postmasters deserve better than that.”

No media interviews

Vennells did not answer any of Panorama’s questions and Nick Read has given no media interviews on the Horizon scandal since he took over from Vennells in September last year.

When Campaign4Change asked the Post Office this week why Read has given no media interviews on Horizon, it referred us to a statement on its website.

Campaign4Change also asked MP Darren Jones, chairman of the BEIS committee, why its MPs have dropped their plan to question Nick Read on his written answers, at least during the committee’s current Horizon inquiry.

We put it to Jones that some people may see the role of the BEIS committee as providing accountability. We said that some people may not understand why the committee has decided to give the Post Office an opportunity to answer written questions and not face questions on its answers. We added that Sir Peter Fraser QC, the judge in the Horizon litigation, had commented a number of times on deficiencies in the Post Office’s written and verbal responses to the High Court.

Jones replied, “The Committee’s evidence session on 24 March on the Post Office and Horizon with Post Office Ltd CEO, Nick Read, the former CEO, Paula Vennells, and Fujitsu had been scheduled for Tuesday 24th March but was postponed due to the Covid-19 lockdown. Given the importance of issues around Horizon, the Committee was keen to follow up to ask questions of the Post Office Ltd and Fujitsu. While we have no immediate plans to hold further public hearing, we shall be publishing the responses of the Post Office Ltd and Fujitsu and deciding how to follow up with recommendations for Government on any issues raised.”

He added, “Sub-postmasters deserve justice. It’s important the Post Office Ltd and the Government genuinely learn the lessons from this scandal and take the actions necessary to ensure this kind of mistreatment of dedicated sub-postmasters and postal staff can never arise again.”

Judge-led inquiry?

We also asked Jones whether he fully endorses a letter by Rachel Reeves, his predecessor, to Boris Johnson in March 2020. The letter called for a full independent inquiry into the Horizon scandal, the Department for BEIS having committed only to an independent “review”.

Jones replied, “The previous Chair, Rachel Reeves, wrote to the Prime Minister about his apparent commitment to a public inquiry and, as a Committee, we will consider how to follow up on this issue.”

Alan Bates was particularly concerned that officials at the Department for BEIS are not giving evidence to the committee on the Horizon scandal.  “Hopefully,” said Bates, “we will have an opportunity to address that through the Parliamentary Ombudsman’s investigation should we manage to find the funding to pursue this route.”

Panorama

MP Karl Turner told Monday evening’s BBC Panorama why he wants a judge-led inquiry into the Horizon scandal. “People went to prison. Peoples’ livelioods were lost and some of the victims ended their lives. That is enough for a judge-led public inquiry.”

Lord Arbuthnot, former Conservative defence minister, who has campaigned for justice for sub-postmasters for nearly 10 years, told Panorama there has been a  Post Office cover-up that is probably still going on.

He said, “I have never heard of anything like it at all where a government-owned organisation attacked, on the basis of false evidence, the integrity of so many pillars of the community. It is a quite extraordinary story.”

Wallis: “Has there been a cover-up?

Lord Arbuthnot: “I believe there has been. It’s probably still going on.”

Seema Misra, a former sub-postmistress who was jailed on the basis of money shown as missing on Horizon, told the programme that the Post Office had been “lying from the start”. Another Post Office Horizon victim Janet Skinner, who was given a nine-month prison sentence, questioned how injustices can happen without anyone being held accountable.

Wallis ended the programme saying, “A much-loved institution has become a national disgrace. Hundreds of lives have been shattered by the scandal at the Post Office.”

Comment:

The power of Parliamentary committees lies in their ability to cross question witnesses. Sometimes the witnesses’ answers – or non answers – attract TV, radio and newspaper coverage that holds the witnesses to account.

At one point the Public Accounts Committee MPs made a civil service lawyer  appearing before them swear an oath to tell the truth after he gave a series of unhelpful answers.

Why then has the Business, Energy and Industrial Strategy committee forfeited its big chance to cross question, on Zoom if necessary, Nick Read, Paula Vennells and a senior Fujitsu executive?

Governments all but ignore reports of House of Commons committees. Civil servants can write Government replies to select committee reports almost with their eyes closed. It is the committee’s cross questioning of witnesses that matters.

The BEIS committee has asked some good questions of Read, Vennells and Fujtsu’s legal head. But imagine a QC in a High Court civil case saying to someone in the witness box, “Now be prepared please … I am about to ask you a series tricky questions for which I will require written answers in about two weeks time.”

Read, Vennells and Fujitsu may give open, candid and direct answers to the committee’s written questions. But if the answers are unhelpful,  the committee’s MPs, by allowing their key witnesses to avoid cross questioning, will have, in essence, brought their Horizon inquiry to a premature end, thus deepening the Horizon scandal.

Tomorrow: What Alan Bates would have wanted the committee to ask the Post Office.

Crowd-funding appeal for £98,000 to request a Parliamentary Ombudsman investigation into maladministration at the Department of BEIS  over its lack of oversight of the Post Office.

BBC Panorama – Scandal at the Post Office

NHS IT: more wisdom in some Register reader comments than in NAO report

By Tony Collins

National Audit Office reports are almost always clear and sharp but not this one.

Anyone reading the latest National Audit Office report on NHS IT could be forgiven for thinking it was written with the help of Whitehall officials.

Indeed, its preface expresses gratitude to the Department of Health & Social Care and the NHS for their help in confirming the factual accuracy of the report. By convention, the facts in NAO reports are agreed with the department in question but it is unusual for the NAO to express gratitude to the department it is reporting on – and prominently in the report.

The report is thorough, comprehensive and sums up the poor state of NHS IT. Digital Transformation in the NHS”   laments the lack of interoperability, the mass of unlinked legacy systems,  a lack of clarity on who is responsible for what, an  NHS-wide IT skills shortage, huge technical challenges and the failure to change working practices before or alongside introducing new technology.

But it lacks any sharp criticisms of the billions being spent centrally on IT without proper scrutiny or a clear purpose.

And it doesn’t acknowledge the work of IT professionals on the front line in  hospitals, often in old buildings, who keep legacy systems running in an idiosyncratic environment in which outages and failures can affect lives.

The report does, however, find that lessons might not have been learned from the largely-unsuccessful and centrally-run National Programme for IT [NPfIT] in the NHS which began in 2003 and was dismantled in 2011. Much of the £9.8bn spent on the NPIT was wasted though not all.

Those who followed the NPfIT from start to finish will know it was a dream turned to reality for a few multinational IT companies, consultants, international hotel groups, airlines and marketing people who helped produce DVDs, board games and coaching for the NHS on what language to use when speaking publicly about the NPfIT.  The scheme was run by the Department of Health which kept its software and hardware problems secret – a closed reporting culture that remains intact today.  IT-related problems in the NHS are rarely reported by the Department of Health, NHS England, any arm’s length body or by trusts in their board minutes.

But the NAO report fails to mention the NHS’s closed reporting culture or the waves of costly central initiatives that seem to mean little to patients, doctors or nurses.

Jargon-laden

At one point the report has to explain its repeated use of the jargon phrase “adaptive change” by bracketing an explanation after it: (changes in the way people work).

The title of the report is Whitehall jargon: “Digital Transformation in the NHS”. Nearly every Whitehall scheme that relies heavily on new technology is called a “Digital Transformation” project.

On what to do about the generally poor state of NHS IT ,the NAO report is unclear: its wordy and vague recommendations could have been written 20 or 30 years ago. Its windiness could be said to reflect decades of Whitehall thinking on NHS IT and may help to explain why central IT initiatives have a long history of failure.

The recommendations  urge health officials to “collect more data to enable a better understanding of the full cost of delivering digital transformation and prioritise the work programme” … “maintain a comprehensive set of lessons for digital transformation” … “ensure that the expected technology plan for health and care includes an implementation plan with specific objectives and measurable actions that are required”…. “establish a resource to provide bespoke support to trusts in managing the adaptive change required for digital transformation… use digital maturity assessments of local organisations to gather additional information. ”

Crucial

The NAO report has a crucial paragraph on page 43. It refers obliquely to the single biggest problem with NHS IT: that systems do not talk to each other.

The NAO says it was told by one technology supplier that “many of the benefits of interoperability could be achieved quickly by sharing the GP record, which it considered to be the most complete account of a patient’s history”.

But this powerful message the NAO appears to dismiss, citing the NHS as saying that the GP record does not include everything and the sharing of the GP record would “not be sufficient to deliver all of the benefits envisaged in the NHS Long-Term Plan”.  But how many patients care about the NHS long-term plan? Wouldn’t they want their hospital doctors and nurses to view their GP records today?

Without interoperability, a patient can have a blood test in a local hospital but find that the full electronic results cannot be added to their GP record because the hospital and GP systems are incompatible.

Indeed, patients can be treated at different NHS clinics, hospitals or sites without clinical teams in each location seeing on their screens an up-to-date record of what the other is doing or not doing, full test results  or x-rays. That is potentially dangerous.

The GP patient record doesn’t have everything in it but it may be the most comprehensive record available.  If authorised users in hospitals and other NHS sites could view the GP record, they would have valuable access to the patient’s recent and past record. If many GPs object to their records being viewed by hospital clinicians, it would be possible, without vast expense, to make hospital records shareable by authorised users via secure internet links.

Readers’ wisdom

Wisdom and insight into the problems of NHS IT and what needs to happen can be gleaned from some reader reactions to The Register’s summary of the NAO’s findings.

One reader’s comments are a reminder that hospital IT people in general do a “miracle”  job although the NHS tends to have a one-size-fits-all low pay structure.  This is not reflected in the  NAO report.

Other reader comments criticise those who suggest, start and run major schemes centrally.  Says the reader, “Has any large-scale [NHS] IT project ever learnt any lessons from previous failures, other than the lesson that folks who plan out these repeated failures are none-the-less handsomely rewarded?”

Another apt comment,

“You can’t ‘digitise’ business processes until those processes are fit for purpose, and clearly understood, documented, and accepted by all.”

And …

“There is an experience asymmetry between the buyer (public sector) and the seller which I have seen play out countless times in a neighbouring industry:

“The lead buyer often runs their first procurement of this magnitude and complexity, as each organisation only procures one of these types of projects every few years or so, often accompanied by advisors (e.g. procurement advisors on process, external domain experts, internal stakeholders). On the other side of the table you have sellers who are engaged regularly in these kinds of procurements and consequently have experience – often lots of it – on how to maximise the opportunity for them.

“The outcome is varied and while there may be a postmortem after the procurement and implementation, lessons learned are forgotten (by the organisation), because the next procurement is a few years away, the lead buyer has changed through promotion or retirement and a new lead is in place, possibly with new advisors and stakeholders.”

Another reader says,

“You need to ask front line staff what they do. How they do it. What is making it harder for them to do it; and could it be done better?   You do not want to ask the senior managers this.”

Comment

The nuclear physicist Richard Feynman was famous for explaining complex things simply. He explained the Space Shuttle Challenger disaster with a glass of ice water and a little rubber “O” ring.

It’s usually a strength of NAO reports that its investigators extract simple and punchy messages from their complex inquiries, but not this time.

The NAO could have seen problems from the perspective of patients and clinical users of the systems. Instead it seems to take the Department’s line on the problems with NHS IT,

Perhaps the best way to tackle poor NHS IT is to avoid what the consultants and centrally-based officials say.

Big companies, consultants, Whitehall officials and even the NAO in this case revel in the complexities of the NHS IT. But as Feynman said: “You can recognize truth by its beauty and simplicity.”

The simplest way to start tacking poor NHS IT is to recognise that there is no overall solution: the NHS has spent the last 20 to 30 years working on big solutions and the message, untold billions of pounds later,  is that  they don’t work.

What no Whitehall NHS report in the past 30 years has recommended is compromise. Whitehall has never accepted that the NHS has too many systems, too many autonomous hospitals,   too many different ways of working at innumerable sites and too many pressures on time and money in a safety-related environment to adapt to national standards and a national way of thinking.

One strength of giving autonomy to hospital IT chiefs working alongside their clinical directors is that they can be extraordinarily innovative and provide useful systems of benefit to patients. Some trusts are, when left to their own devices, bringing shared patient records to entire regions.

That’s not to suggest that centralised thinking is best avoided altogether. A reliable Covid test and trace app is the current top priority but when or if the virus is under control, a top priority would be to sweep away a mass of vague central initiatives and consult health IT SMEs on finding the simplest way to use existing systems to talk to each other.

It’s possible – but unglamorous – for hospitals with different systems to make their records available using secure links to hospitals in other regions. The trouble is it doesn’t involve large numbers of consultants, big companies and Whitehall officials . It’s too simple for Whitehall to implement. What’s worse, it’s cheap. It’s a compromise.

Whitehall officials and advisors would instead prefer to spend their time and public money working on initiatives that will look good in ministerial and departmental press releases. Such as AI to analyse X-rays, CT and MRI scans without a doctor in sight.

The NAO ought  not to be writing reports on NHS IT that could have been written 30 years ago.

Centralised thinking needs to change.  You don’t need every hospital using the same standards with the same working practices. It will never happen.  Just concentrate on interoperability – not of new systems but existing ones.

Here’s a genuinely innovative approach for NHS IT: compromise.

Thank you to FOI campaigner David Orr for alerting me to the National Audit Office NHS report

The Register’s reader comments

Digital Transformation in the NHS – National Audit Office report