Category Archives: Fujitsu

50 more lawyers are hired over the Post Office IT scandal: not a great way to say sorry?

Posted on 22/09/2020 | 6 comments

Photo: Andrew Buchanan,- Unsplash

By Tony Collins

In a settlement statement last December, the Post Office seemed to mark an end to a long dispute with sub-postmasters over its Horizon branch accounting system.

More than 550 sub-postmasters had sued the Post Office in the High Court to establish that Horizon was flawed and that they were not to blame for unexplained shortfalls shown on the system. The Post Office defended Horizon, arguing it was robust, but settled when it became clear it was losing the case.

The litigation cost the Post Office £46m in legal expenses and £57.75m to settle. It had hired four QCs and two firms of solicitors to handle the case and had spent £500,000 alone on determining its litigation strategy. The judge in the case, Mr Justice Fraser, remarked on the Post Office’s apparent legal approach when he said,

“… The Post Office has appeared determined to make this litigation, and therefore resolution of this intractable dispute, as difficult and expensive as it can.”

But in settling the dispute and apologising, the Post Office’s new CEO said he was “very pleased we have been able to find a resolution to this longstanding dispute”.

He added, “Our business needs to take on board some important lessons about the way we work with postmasters, and I am determined that it will do so. We are committed to a reset in our relationship with postmasters, placing them alongside our customers at the centre of our business. As we agree to close this difficult chapter, we look forward to continuing the hard work ahead of us in shaping a modern and dynamic Post Office, serving customers in a genuine commercial partnership with postmasters, for the benefit of communities across the UK.”

At the heart of the dispute was whether Horizon, which was built and run by Fujitsu, had material faults that could alter post office branch balances and show phantom losses of tens, or sometimes hundreds, of thousands of pounds.

Whether or not Horizon was at fault, the Post Office demanded that sub-postmasters made good the shortfalls from their own pockets. It cited Horizon in the courts as robust evidence that the shortfalls represented actual money and prosecuted sub-postmasters for theft, false accounting and fraud. It also used Horizon evidence to obtain confiscation orders on countless homes, businesses and cars. Lives were ruined. At least 2,000 sub-postmasters were affected. One sub-postmaster, Martin Griffiths, stepped in front of a bus. His inquest heard the Post Office was pursuing him over shortfalls of tens of thousands of pounds. There have been other early deaths of Horizon victims including Fiona Cowan and Julian Wilson.

Remorse – or 50 more lawyers?

The litigation established that Horizon had numerous flaws. The Post Office and Fujitsu had hidden defects, bugs and errors for years – and the Post Office had not properly investigated Horizon before it blamed sub-postmasters for shortfalls shown on the system. As a result of the High Court Horizon judgment, the Criminal Cases Review Commission, which looks at possible miscarriages of justice, referred 47 sub-postmaster cases to the Court of Appeal. The Commission has never referred such a large number of convictions on one issue to the Court of Appeal. It criticised the Post Office for an “abuse of process”.

Exceptional

The Commission categorised the Horizon-related cases as “exceptional”. Usually the Commission considers applications only when a convicted person has first had their case heard and rejected by the Court of Appeal. But in exceptional circumstances the Commission can consider “no appeal” cases.

All but one of the 47 sub-postmaster applications are “no appeal” cases, which suggests that the Commission, in referring all of them to the Court of Appeal, regards the grounds for quashing their convictions as exceptionally strong.

The Court of Appeal is expected to hear the cases over the next few months and first rulings are likely early next year. They may reveal whether Horizon’s flaws were deliberately hidden from judges and juries and whether the prosecution’s choice of criminal charges was in any way influenced by strengthening the Post Office’s position when seeking confiscation orders for homes, businesses and cars.

A Directions Hearing for the Court of Appeal cases is scheduled for November. A key date for those hoping to have their convictions quashed is 2 October 2020 when the Post Office must indicate whether it will oppose any, some or all of the Court of Appeal cases. It is possible the Post Office will contest some of them, despite its apology and conciliatory remarks in the settlement statement, at which time it referred to a “genuine desire to move on from these legacy issues and learn lessons from the past”.

Horizon dispute very much alive

If the Post Office has no intention of contesting any of the Court of Appeal cases, it is unclear why it would need a large force of lawyers. The Post Office has retained more than 50 barristers and two QCs to consider the disclosure of documents relevant to the appeals to the Court of Appeal and a Historical Shortfall Scheme in which at least 1,300 sub-postmasters are seeking the return of money the Post Office demanded from them.

The Post Office’s large ongoing legal spend suggests the Horizon dispute is very much alive. It further raises the question of why ministers and civil servants still have an apparently “hands-off” approach to the Post Office’s legal spending.

Difficulties proving whether Horizon was or wasn’t to blame

That a complex computer system is at the heart of the dispute presents difficulties for both sides in producing evidence. For sub-postmasters, they can prove Horizon had numerous flaws that could alter branch accounts and that Fujitsu personnel had a “back door” to branch accounts which they could use to edit, add or delete transactions without the knowledge of sub-postmasters. Also, sub-postmasters can show from the litigation rulings that Fujitsu did not keep a proper record of what its IT personnel did when accessing branch accounts. The High Court judgments further showed that it was not unknown for Fujitsu personnel, when accessing branch post office accounts, to use the same counter number actually in use by the sub-postmaster or an assistant. This meant that the sub-postmaster, looking at the records, could end up believing the transaction inserted by Fujitsu had been performed within the branch itself. This information was only disclosed by Fujitsu (and therefore the Post Office) late in the litigation in January and February 2019.

All these things sub-postmasters could prove but it is almost impossible for them to obtain the information that proves Horizon was at fault in their particular case. This difficulty was summed up by Mr Justice Fraser,

“For a SPM [sub-postmaster] to demonstrate they were not at fault, if there was a loss, could be verging on nigh on impossible. Firstly, they would have to concentrate upon and analyse all of the branch records for every single transaction within the particular trading period. That would be an onerous burden for a single SPM. Secondly, those records would only be between the branch and the Post Office; SPMs have no access to data between the Post Office and its clients, and are not able to obtain it…a SPM simply does not have access to the type of information that would make such an onerous exercise possible even in theory.”

For the Post Office, establishing evidence that Horizon was working well at the time and date and branch post office in question may also be difficult. The Post Office relies for information about Horizon from Fujitsu which had thousands of Horizon known error logs that, for years, the Post Office might not always have seen. Also, Fujitsu sometimes wrongly categorised system problems as “user error” – in other words the fault of the sub-postmaster or an assistant. A further problem is that the Post Office may not be able to find the relevant records or might not have kept them. A big spend on a scientific approach to disclosing documents may therefore be unjustified.

Mr Justice Fraser made several comments in his judgements on the Post Office’s apparent lack of an open approach to disclosure of evidence. He referred to the difficulties for sub-postmasters of obtaining the Horizon known error log. At first, the Post Office said the log was not relevant and then suggested it may not exist. The judge referred to this approach as “disturbing” and “misleading”. These are some of the judge’s other comments about the Post Office’s lack of openness:

an “… overly intricate attempt to sow confusion and obscure the true issues in the case.”

“expenditure of time, resources and money by the defendant [Post Office] on restricting the claimants’ [sub-postmasters’] evidence.”

“It is difficult to see how they [sub-postmasters] can have such an opportunity if they are denied access even to copies of information or records.”

“It took a trial, tens of millions of pounds and several years to ascertain the truth about remote access [to branch accounts by Fujitsu].”

Post Office response

Asked last week why the Post Office is still spending large sums on lawyers despite its apology last year and criticisms by the judge, the Post Office said in a statement,

“The Post Office has been working closely with the Criminal Cases Review Commission since a number of former postmasters applied to overturn their convictions for offences based on evidence from the Horizon computer system, used in Post Offices since 1999.

“We are also conducting an extensive review of historical convictions which relied upon Horizon, to identify and disclose material that might cast doubt on the safety of those convictions in accordance with Post Office’s duties as former prosecutor.

“The Criminal Cases Review Commission has so far decided to refer for appeal the convictions of 47 applicants. The majority of these referrals are to the Court of Appeal (which relate to convictions in the Crown Court) with six separate referrals to Crown Courts (which relate to convictions in the Magistrates’ Court).

“The cases span the period between 2001-2013 and are technically and factually complex. The Court of Appeal has granted Post Office until 2 October 2020 to file its Respondent’s Notices.”

Comment:

The new battalion of lawyers is being funded by an institution that only last December announced that it was learning lessons from the Horizon-related judgments in the High Court – judgments that included criticisms of its excessive legal costs.

But some who have read the hundreds of pages of judgments in the litigation may wonder if two parallel worlds are in operation.

The judge referred at different stages to the Post Office’s evidence in terms of a Lewis Carroll nursery rhyme, the earth as flat and a parallel world. It further emerged that sub-postmasters were expected to sign an agreement that referred to a non-existent Book of Rules and the Post Office argued in the litigation that, contractually, it was entitled to act in a vindictive, capricious or arbitrary way.

Where the judge found the Post Office’s conduct anomalous and surprising, he commented on it which, perhaps, was one reason the Post Office tried to remove him. That is the Post Office’s world.

The other world is the one in which people who know about the scandal do not understand why the Post Office is not in the least embarrassed at having the luxury, as a publicly-funded institution, of engaging four QCs and two firms of solicitors to contest a High Court litigation that ought not to have been necessary in the first place. Moreover, the Post Office seems not in the least uneasy about having made a public apology over the Horizon IT scandal but not paid back even half the money it demanded from sub-postmasters for Horizon shortfalls.

Those observing the scandal may also wonder, given the hundreds of lives ruined, why the Post Office seems to show few real signs of compassion, humility, empathy and remorse.

Lee Castleton is among the former sub-postmasters who continues to suffer the consequences of the scandal 13 years after the Post Office took him to court over Horizon shortfalls of about £26,000 and subsequently landed him with legal costs of 13 times that amount – £321,000. The problem for Castleton is that his case was in the civil court. He might have been better off if he had received a criminal conviction which today he could seek to overturn and then, if successful, take action against the Post Office. As things stand, there is little Castleton can do to right the financial wrongs he has suffered. He has received £51,000 from last year’s Horizon settlement – but £36,000 of this has gone into paying off what is left of the £321,000 Post Office legal bill that bankrupted him. The Horizon settlement has, for him, covered less than 20% of the Post Office’s court fees that he was made to pay and offered him no recompense for a ruined life.

The Post Office has been criticised by MPs, peers, forensic accountants it hired – Second Sight – the High Court, the Appeal Court, sub-postmasters and the Criminal Cases Review Commission.

But then there is the Post Office’s world. This is one in which postal affairs ministers are completely supportive. Not a word or hint of criticism of the current Post Office board from any business minister or the business secretary. In the Post Office’s world, every sub-postmaster is a potential fraudster. The challenge is minimising the potential for hundreds of millions of pounds worth of fraud. In this world, there is little place for humility and compassion. Any weakness in the system could be exploited by the unscrupulous. In this world, the Post Office is strong, seen to be strong, always in control and willing to take the action that needs to be taken to keep the vital network of post office branches in place, commercially sound and on a solid procedural, administrative and IT footing. And therein lies the two irreconcilable worlds.

Nobody in government is willing to bridge the two worlds. Ministers in successive governments seem to say to the Post Office, in essence, “We know you’re running a vital public service and a complex one in which we in our short time as ministers cannot hope to understand even superficially. We must therefore trust that, whatever you say, you know what you are talking about.”

Someone dynamic, senior and independently-minded in government is needed to intervene. But it will not happen with government business ministers who seem little more than Post Office flatterers.

Where is the public spending watchdog the National Audit Office?

There are some big questions that will remain unanswered until somebody in government gets a grip on the scandal. One question is: where is the public spending watchdog the National Audit Office? For years the Post Office has been seemingly awash with money to spend on lawyers. The NAO seems nowhere in sight.

And why is nobody in government challenging business ministers in their quest for a Horizon review that campaigning peer Lord Arbuthnot calls a “pathetic response to a national outrage”.

To do the right thing, ministers, civil servants and the Post Office could start by accepting the principle that it is not emasculating to make proper amends for a vast number of miscarriages of justices. To carry on spending huge sums on lawyers shows that, despite the good words and apology in the settlement statement, the Post Office’s culture and attitude is the same as it was when Horizon went live in 1999.

Worse, the Post Office could decide to contest Horizon cases that are due to go to the Court of Appeal. The Criminal Cases Review Commission has already categorised these Horizon cases as “exceptional”. For the Post Office to contest a single one of them, therefore, would be an extraordinary perpetuation of the Horizon scandal.

It would also reinforce the case for a full judge-led inquiry into how it is that ministers and civil servants continue to flatter and uncritically support an arm of the state that has held, in its hands, the future of more than 2,000 people but seems, to some, to continue to act as if in a Lewis Carroll nursery rhyme. One Lewis Carroll rhyme is, incidentally, called The Crocodile…

How cheerfully he seems to grin,
How neatly spreads his claws,
And welcomes little fishes in,
With gently smiling jaws!

Chirag Sidhpura’s crowdfunding appeal to support a Judicial Review of the Post Office’s Historical Shortfall Scheme which he regards as fundamentally flawed and unfair.

Hundreds of victims of Post Office IT scandal will be excluded from new compensation scheme – Daily Mail

The Post Office Trial – BBC Radio 4 series presented by Nick Wallis

Post Office Horizon IT scandal victims face further battles as government digs heels in – Computer Weekly

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Posted in BEIS, Campaign for justce, Campaign4Change, Department for Business, Energy and Industrial Strategy - BEIS, Fujitsu, Horizon system, IT-related disputes, Legacy ICT, Ministry of Justice, oversight, Post Office IT, presumption

Ministers plan hasty review of the Post Office IT scandal before more facts emerge?

Posted on 15/09/2020 | 2 comments

By Tony Collins

The full truth has yet to unravel over the Post Office IT scandal – but more disclosures are likely in the next few months when the Court of Appeal starts the first hearings into whether to quash the convictions of 47 sub-postmasters who were prosecuted on the basis of evidence from the Post Office’s flawed Horizon system. A directions hearing for the 47 cases is due to be held on 25 November.

Lawyers are preparing evidence for the Court of Appeal that may put the scandal into a wider and more controversial context – and would render as irrelevant an impending government lessons-learning “review” of Horizon.

More than 1,800 business people – sub-postmasters and mistresses – who ran branch post offices under franchise contracts with the corporate Post Office, experienced unexplained balance shortfalls on the branch accounting system Horizon, built and run by Fujitsu.

The Post Office required the sub-postmasters to make good unexplained balance shortfalls from their own pockets. At times, the shortfalls amounted to tens of thousands of pounds.

Whether or not sub-postmasters made good unexplained shortfalls, the Post Office still prosecuted in many cases: for theft, false accounting and fraud. It followed up prosecutions with civil actions, all based on Horizon evidence.

The prosecutions were almost invariably successful because of a major flaw in the criminal justice system – a legal “presumption” in which judges are recommended to accept computer evidence as reliable unless the defence can show it’s not. But defendants cannot prove an institution’s complex system is faulty in a specific way, and on the dates and times in question, unless they know the system intricately enough to pinpoint the correct documents to ask for, among the many thousands of confidential papers that the prosecution may be reluctant to disclose. Anyone who wants to prove an institution’s computer system is not as robust as it claims may need tens of millions of pounds to do so. Barrister Paul Marshall wrote a paper in July for the Commons’ Justice select Committee on how the presumption made the Post Office IT scandal possible and makes many other injustices likely.

After Horizon went live in 1999, increasing numbers of sub-postmasters complained to their MPs that they were being convicted of crimes they did not commit, on the basis of evidence from the flawed Horizon system. But government business ministers and the Post Office rejected all complaints about the system. They said there was no evidence the system was not robust.

Photo by Metin Ozer on Unsplash

Poor conduct

The helpless state of sub-postmasters changed after a former sub-postmaster Alan Bates, who founded Justice for Sub-postmasters Alliance, raised, with help, litigation finance to sue the Post Office to expose Horizon’s faults. The case was a success and exposed not only Horizon’s material faults that caused numerous shortfalls on the system but also the Post Office and Fujitsu’s poor conduct in the years before, and during, the litigation.

In the light of the High Court’s findings, the Criminal Cases Review Commission, has referred 47 unsafe Horizon-based convictions to the Court of Appeal. The Commission is confident the convictions will be overturned because of what it calls the Post Office’s “abuse of process”.

The government has announced a review of the Post Office’s Horizon-related failings but it excludes consideration of court-related matters and will therefore not take in findings from the appeal cases. The first Court of Appeal rulings are expected in the first half of next year – by which time the government review may be finished.

Review imminent?

Alok Sharma, secretary of state for the business department, BEIS

Alok Sharma, secretary of state for the Post Office’s “sponsor”, the Department for BEIS, told the House of Commons’ BEIS select committee in July that the “plan is to start an inquiry [review] by September at the latest”.

Government business minister in the House of Lords, Martin Callanan, told peers last week that the appointment of someone to chair the review is imminent. He said, “I am hoping that an appointment can be made imminently, because we all want to see this under way as quickly as possible.

But a review long before the Court of Appeal rulings highlights a disconnect in the way the Horizon affair is seen by both sides – ministers and officialdom on one side and, on the other, sub-postmasters, MP, peers and campaigners for justice. The gap between the two sides is as wide as ever and suspicion runs deep.

Paul Scully MP, postal affairs minister who wants an “independent” review and doesn’t support a judge-led inquiry into the Post Office Horizon IT scandal

Naive

Sharma and his junior business minister Paul Scully, the postal affairs minister in the Commons, appear to see their uncritical support for the current Post Office board as important to the institution’s financial stability. The Post Office receives hundreds of millions of pounds in investment funding from taxpayers. But this uncritical ministerial approach is seen by those on the other side as deferential and naive, accompanied as it is by BEIS’s apparent indifference to criticism.

A lack of effective challenge over nearly 20 years could be said to have provided an environment for numerous injustices to happen.

Ministers may be further fuelling accusations of indifference by refusing a judge-led inquiry into the scandal and rejecting calls by MPs and peers to pay the £46m costs of the sub-postmasters’ side of the litigation last year that exposed much of what is now known about Horizon’s defects.

Mistakes – or deliberate concealment of Horizon problems?

Scully has said the Post Office “got things wrong” and made “mistakes”. But some lawyers say mistakes and incompetence had little to do with the scandal. If it emerges that the Post Office and its Horizon supplier Fujitsu deliberately concealed Horizon IT problems from the courts where the reliability of the Horizon system was a central issue in whether the accused went to prison, MPs and peers are likely to demand a government response, whether or not the review into the scandal has finished.

For sub-postmasters, it was one thing to be imprisoned for a crime they did not commit because of mistakes by investigators, prosecutors and the courts; it is another thing to lose their freedom, home, livelihood, life savings and sometimes their health because the corporate culture and practice within a state institution seemed to regard the concealing of its IT problems as more important than anything, including individual liberty.

A possible further consideration over the coming months is whether the prosecution’s charging decisions were sometimes based in part on the Post Office’s financial interests rather than purely in the interests of justice – all matters that the government review of the scandal will disregard.

Photo by Andrew Buchanan on Unsplash

The Post Office side

The Post Office’s position has been that Horizon is not perfect but a range of “countermeasures”, such as manual or IT-based corrections to incorrect transactions, made the system “robust”. Therefore, the Post Office has taken it as read that inexplicable shortfalls shown on Horizon must be down to criminality or incompetence of the sub-postmaster.

It is still the Post Office’s position that sub-postmasters have yet – if ever – to prove that a Horizon glitch caused a particular shortfall for which they were prosecuted or required to make good losses. The Post Office’s CEO Nick Read said in a letter to the BEIS select committee in June 2020,

“The [High Court] judgment did not determine whether bugs, errors or defects did in fact cause shortfalls in the individual claimants’ accounts …”

But to show it got some things wrong in the past, the Post Office has paid £57.75m in compensation, made an apology, launched a historical shortfall compensation scheme, set aside a place on the board for a postmaster and says it is reforming its culture and organisation.

Internal emails disclosed to the High Court suggest the Post Office is reluctant to be open about Horizon defects in case sub-postmasters exploit a bug to steal or defraud. The Post Office is a cash intensive business and needs to be able to trust Horizon to track any dishonesty. All sub-postmasters must be seen as a potential fraudsters, even though they are vetted before taking over a branch post office, typically invest £80,000-£120,000 in buying a post office premises that is often to a linked retail business and it would not, in theory, make sense for sub-postmasters to steal from themselves.

Horizon’s reliability is vital to the commercial success of the Post Office. The Post Office says the system works well every day for 11,500 post offices where there are often several people at each site using the system for a diverse range of products. On average, Horizon handles about six million transactions a day.

Mr Justice Fraser

The story’s other side

Robust? A system with 10,000 manual interventions a week? Mr Justice Peter Fraser, in the High Court Horizon legal case last year, found that Horizon needed more than 10,000 manual interventions a week – which he said suggested something was wrong. “I do not accept that on a properly functioning and robust system there should be such a high number as that every week,” said the judge. His comment raises a question of how the Post Office was ever allowed in court cases to describe Horizon as robust.

Innumerable Horizon shortfalls are suspect. Fujitsu was “far too ready” to ascribe the effect of Horizon bugs, errors and defects to possible user error, said the judge. At no point, it appears, did successive Post Office boards ask why the institution was experiencing apparent massive crime-waves among sub-postmasters since Horizon was introduced.

Innumerable Horizon-based prosecutions suspect. Prosecutions and convictions were based on an assumption by the courts and juries that the accused was responsible for the Horizon-based branch post office data in question. But the High Court judge found last year that all software specialists at Fujitsu’s Software Support Centre at Bracknell had powerful “APPSUP” system privileges that enabled them to do almost anything on the Horizon database, including “injecting” transactions into a branch post office’s accounts without the knowledge of sub-postmaster. Some Fujitsu personnel had APPSUP access privileges they were not supposed to have. They were able to edit the branch accounts, add “balancing transactions” or delete transactions. Sometimes alterations could take place live without the sub-postmasters’ realising or having given their consent. Fujitsu specialists were able at one time to use a sub-postmasters’ ID number which could leave sub-postmasters believing they had made the changes carried out by Fujitsu. The judge found there was a lack of control of the role and the recording of access. Logs were maintained between 2009 to July 2015 but did not record actions, only whether a user had logged on and logged off. Even after July 2015, the logs “are not a useful source of evidence about remote access”, due to their lack of content, said the judge.

“In my judgment, this amounts to a deficiency in controls,” he said.

“The whole of SSC [Fujitsu’s Software Support Centre] had the APPSUP role for many years, and internal Fujitsu documents recorded that they were not supposed to have that role. There were a large number of personnel within SSC,” said the judge.

The High Court – Royal Courts of Justice

Photo by Mahosadha Ong on Unsplash

The High Court was told that the APPSUP role was used 2,175 times between 2009 and 2019. The judge said,

“… anyone with the APPSUP role could pretty much do whatever they wanted. [They] had the potential to affect the reliability of a SPM’s [sub-postmasters’] branch accounts to a material extent. Further, the evidence shows clearly that there were instances when this in fact occurred,…”

Does APPSUP access – which the judge devastatingly observed was “effectively unaudited” – render unsafe innumerable prosecutions, convictions and civil claims for alleged shortfalls? The Court of Appeal is expected to look at this point: that Fujitsu personnel had online access to post office branches’ accounts without full records being kept of what they did and without sub-postmasters’ knowledge.

At the heart of the scandal. The Post Office is answerable to nobody for the worst aspect of the scandal: deliberately concealing IT problems while prosecuting on the basis of the alleged reliability of the system and pursuing payment of alleged Horizon losses through the civil courts when it was known the system was flawed.

In criminal or civil cases where Horizon’s reliability was the central issue, the prosecution did not disclose that the system had thousands of known errors, bugs or defects, needed up to 10,000 manual interventions a week and branch post office accounts could be changed remotely without the knowledge of sub-postmasters.

Still answerable to nobody. A Government review of the IT scandal will not consider whether the Post Office deliberately concealed Horizon problems from criminal and civil courts.

Still huge losses for scandal victims. The Post office paid £57.75m to settle a High Court case it was clearly losing. But it was a minimal sum and left sub-postmasters, after costs, with huge deficits. The way the civil justice system works means sub-postmasters cannot recover the costs or claim them in follow-up civil actions. Scully has refused to pay the sub-postmasters’ costs which comprise £46m of the total £57.75m settlement payment. Ministers have said the settlement amount was not a matter for government – but the government owns the Post Office and has a seat on its board.

Peer Peter Hain

Former minister and now peer Peter Hain told the House of Lords last week,

“The Minister says that he does not want to interfere, but the Government are 100% owner of the Post Office—the Permanent Secretary of the department is its accounting officer and there is government representation on the board. The Government are ultimately responsible for this scandal. It is not good enough to keep delaying this with lots of process and reviews. They [sub-postmasters] must be compensated fully.”

Horizon bugs, errors and defects caused shortfalls or discrepancies numerous times. The judge found that bugs, errors or defects of the nature alleged by sub-postmasters “have the potential” to cause apparent or alleged discrepancies or shortfalls relating to sub-postmasters’ branch accounts or transactions, and also that “all the evidence in the Horizon Issues trial shows not only was there the potential for this to occur, but it actually has happened, and on numerous occasions”.

No remorse for wrongful prosecutions? The Post Office specified in the settlement terms that its compensation was not intended for any convicted sub-postmaster.

Limited apology: the Post Office’s apology to sub-postmasters “affected” was vague and generalised; it did not say what, specifically, the Post Office was apologising for; and it referred to events “in the past”. The apology did not appear to cover the Post Office’s conduct during the litigation, which was between 2017 and 2019, and which was much criticised by the High Court. One critic’s view is that the main regret of the Department for BEIS is that the litigation laid bare Horizon’s faults and the concealment of them.

Judicial review on historical shortfall scheme? As part of the settlement terms of the litigation last year, the Post Office has set up a Historical Shortfall Scheme to compensate sub-postmasters who say they were wrongly blamed for Horizon shortfalls. But the way the scheme has been set up may be the subject of a judicial review. Chirag Sidhpura, a former sub-postmaster, hopes to crowdfund his application for a judicial review. He says the historical shortfall scheme is fundamentally flawed, unfair and has closed prematurely given that the facts may be clearer after the Court of Appeal hearings.

Houses of Parliament

Photo by Michael D Beckwith on Unsplash

Ministers reject scandal victims’ every request. Successive government business ministers, including the present ones, have refused every request of sub-postmasters including the return of their costs of exposing the Horizon scandal in the High Court.

Board place for postmaster a PR move? The Post Office’s place on the board for a postmaster is perceived as a good PR move that few outside the Post Office or civil service expect to make any difference.

Horizon problems still secret. The Post Office is still keeping secret Horizon Known Error Logs despite much specific criticism in the High Court about a lack of openness over the logs. In July 2020, the Post Office refused a Freedom of Information request by Post Office critic and blogger Tim McCormack.

McCormack asked the Post Office for a “list of errors in Horizon that are due to be remedied in this next release and the notes held against these errors in the Known Errors Log”. Refusing his request, the Post Office said,

Questions not answered. MPs on the BEIS select committee gave the Post Office a list of written questions on Horizon this year but did not always receive full answers.

Impossible to prove Horizon glitches on particular shortfalls? The Post Office said in a letter to MPs on 25 June 2020 that the litigation did not determine whether a Horizon glitch caused a particular shortfall in any individual case.

But sub-postmasters say nothing can be proved without the Post Office’s full disclosure of Horizon problems on the dates and times in question. A major point in contention at the High Court hearings was the lack of openness of the Post Office and Fujitsu over Horizon’s problems. Sub-postmasters cannot prove a particular Horizon glitch caused their shortfall if the Post Office does not disclose the relevant documents, they are no longer available, it cannot obtain them from Fujitsu or the documents don’t accurately show the effects of particular bugs on individual branch accounts.

Post Office CEO twice not given the full truth. If the Post Office’s own CEO was not told the full truth on Horizon, how were sub-postmasters to obtain the documentary evidence to establish that specific errors, bugs and defects caused their particular shortfall?

A large section of Mr Justice Peter Fraser’s judgment – about 12 pages – was devoted to “Inaccurate statements by the Post Office.”

In July 2016, the then CEO asked for an investigation into a sub-postmasters’ complaint about Horizon being the cause of her losses – as reported by Tim McCormack in his 2015 blog post the Dalmellington Error in Horizon.

But internally within the Post Office there was a high-level request for the CEO’s request to be stood down. A senior executive at the Post Office replied internally to the CEO’s request, “Can you stand down on this please? [A redacted section then follows] … My apologies.”

The judge said,

“I can think of no justifiable reason why the Post Office, institutionally, would not want to address the Chief Executive’s points and investigate as she initially intended, and find out for itself the true situation of what had occurred.”

It took many tens of millions of pounds to obtain a “yes” answer

The CEO had also asked her managers whether it was possible to access the system remotely. The answer was “yes” – but it took several years, the Horizon litigation and many tens of millions of pounds to establish the “yes” answer.

The judge said,

“This trial has shown that the true answer to the enquiry she [the then CEO] made in early 2015 was “yes, it is possible.” It has taken some years, and many tens of millions of pounds in costs, to reach that answer.”

The then CEO’s question in 2015 was, “is it possible to access the system remotely? We are told it is.”

Her managers exchanged long emails on how to answer. The CEO’s question was in the context of her forthcoming appearance before a committee of MPs. The Post Office had, for years, denied to Parliament and the media that it was possible for Fujitsu to access branch post office accounts. Prosecutions and civil cases to claim money from sub-postmasters had been based on sub-postmasters themselves always being responsible for Horizon’s output – which was untrue.

The judge said,

“… the Post Office has made specific and factually incorrect statements about what could be done with, or to, branch accounts in terms of remote access without the knowledge of the SPM [sub-postmaster]. The evidence in this trial has made it clear that such remote access to branch accounts does exist; such remote access is possible by employees within Fujitsu; it does exist specifically by design; and it has been used in the past.”

Post Office applied to remove the judge a day after Horizon’s chief architect confirmed Fujitsu had “remote access” to branch accounts.

The judge noted that the Post Office applied to remove him as judge the day after Horizon’s chief architect, in cross-examination, had made it clear, not only that remote access existed, but after he was taken in careful cross-examination through specific examples of Fujitsu’s personnel manipulating branch accounts, and leading to discrepancies in branch accounts.

Fujitsu less than forthcoming – judge. The judge said problems with Horizon would never have been revealed without the sub-postmasters’ litigation. He said,

“In my judgment, however, there are sufficient entries in the contemporaneous documents to demonstrate not only that Fujitsu has been less than forthcoming in identifying the problems that have been experienced over the years, but rather the opposite.

“The majority of problems and defects which counsel put to [Horizon Chief Architect at Fujitsu] and which were effectively admitted by him, simply would not have seen the light of day without this group litigation.”

Post Office’s “entrenched” view of Horizon. The judge said,

“The problem with the Post Office witnesses generally is they have become so entrenched over the years, that they appear absolutely convinced that there is simply nothing wrong with the Horizon system at all, and the explanation for all of the many problems experienced by the different Claimants [sub-postmasters] is either the dishonesty or wholesale incompetence of the SPMs [sub-postmasters]. This entrenchment is particularly telling in the Post Office witnesses who occupy the more senior posts.”

Mr Justice Fraser described as “most disturbing” and “extraordinary” the concealment of Horizon problems while court cases in which the integrity of Horizon was a central issue were ongoing.

Jury not told of bug that corrupted branch accounts

As pregnant sub-postmistress Seema Misra waited for her Crown Court trial on charges arising from shortfalls shown on Horizon, she could not have known that a high-level meeting involving Fujitsu and the Post Office was taking place over a system bug that corrupted some post office branch accounts.

If disclosed to her jury, details of the bug could help establish her innocence. Unfortunately for her, the high-level meeting – and the bug – were kept confidential.

It was only many years after Seema Misra’s trial that details of the meeting came to light – and only then because of the High Court litigation. A note of the high-level meeting in 2010 warned of the impact of Fujitsu and the Post Office being open about the bug, which was called the “Receipts and Payments Mismatch Issue”. Mr Justice Fraser described the notes of the meeting as a “most disturbing document”. The notes warned,

If widely known [the bug] could cause a loss of confidence in the Horizon System by branches
Potential impact upon ongoing legal cases where branches are disputing the integrity of Horizon Data
It could provide branches ammunition to blame Horizon for future discrepancies.

Mr Justice Fraser said of the memo,

“To see a concern expressed (in the memo) that, if a software bug in Horizon were to become widely known about, it might have a potential impact upon ‘ongoing legal cases’ where the integrity of Horizon Data was a central issue, is a very concerning entry to read in a contemporaneous document.

“Whether these were legal cases concerning civil claims or criminal cases, there are obligations upon parties in terms of disclosure. So far as criminal cases are concerned, these concern the liberty of the person, and disclosure duties are rightly high.

“I do not understand the motivation in keeping this type of matter, recorded in these documents, hidden from view; regardless of the motivation, doing so was wholly wrong. There can be no proper explanation for keeping the existence of a software bug in Horizon secret in these circumstances.”

Concealment

In proposing solutions to the Receipts and Payments Mismatch bug, the emphasis in the memo was on concealment. Indeed the confidential notes reveal that a risk with one of the solutions to the bug is that it could reveal the ability of Fujitsu’s IT specialists to change branch data without informing the branch – which for the next seven years, in statements to Parliament and the media, the Post Office would deny was possible.

The notes in 2010 said,

“RISK- This [proposed solution] has significant data integrity concerns and could lead to questions of ‘tampering’ with the branch system and could generate questions around how the discrepancy was caused. This solution could have moral implications of Post Office changing branch data without informing the branch.”

It was not until the High Court litigation that the Post Office conceded that Fujitsu had a back door through which its IT specialists could access the accounts of branch post offices without the knowledge of sub-postmasters.

Barrister Paul Marshall, who has written extensively on the Horizon scandal, says that Fujitsu’s back door to branch accounts undermines every prosecution that relies on Horizon data.

At Seema Misra’s trial, the prosecutor told Seema’s jury that any problems with Horizon would be visible to the sub-postmaster – although at the high-level meeting of Fujitsu and the Post Office a few weeks earlier it had been made clear the Receipts and Payments Mismatch bug would not be visible to sub-postmasters.

The prosecutor told Seema’s jury,

“The Crown say it [Horizon] is a robust system and that if there really was a computer problem the defendant would have been aware of it”.

Seema was charged with theft on the basis that there could be no other credible reason for Horizon to show shortfalls. Her lawyers asked on three occasions for her criminal trial to be stayed as an abuse of process because of inadequate disclosure by the Post Office of Horizon data. But Recorder Bruce, Judge Critchlow and the trial judge, Judge Stewart, rejected each of those applications.

When sentenced, Seema Misra blacked out. She was given 15 months imprisonment. The jury trusted Horizon’s evidence.

Nine years later, in 2019, Mr Justice Fraser would find that the Horizon system in 2010, at the time of Seema’s trial, was not robust. The original Horizon system from 1999 to 2010 was “not remotely robust”, he said. Horizon Online from 2010 to 2017 – latterly based on Windows NT 4.0 – was “slightly” more robust than the original Horizon but “still had a significant number of bugs” and “did not justify the confidence routinely stated by the Post Office (prior to February 2017) in its accuracy”.

More criticism – this time by Criminal Cases Review Commission. The Commission referred 47 Horizon cases to the Court of Appeal on grounds of “abuse of process”.

The Commission said there were “significant problems with the Horizon system and with the accuracy of the branch accounts which it produced”. It added that there was a “material risk that apparent branch shortfalls were caused by bugs, errors and defects in Horizon”.

Further, the Commission criticised the Post Office’s failure to disclose the full and accurate position regarding the reliability of Horizon. It added that the “level of investigation by the Post Office into the causes of apparent shortfalls was poor, and that the [sub-postmasters] were at a significant disadvantage in seeking to undertake their own enquiries into such shortfalls”.

“The reliability of Horizon data was essential to the prosecution and conviction of the [sub-postmaster in question] and that, in the light of the High Court’s findings, it was not possible for the trial process to be fair,” said the Commission. It added that it was an “affront to the public conscience” for the sub-postmaster to face criminal proceedings.”

Turning on a former colleague whose evidence exposed the full picture?

The judge said,

“Infallibility is a rare commodity, and everyone is capable of making mistakes. However, it is how one reacts to mistakes that is telling. In this instance, the initial reaction of the Fujitsu witnesses was to seek to shift the blame for their own misleading written evidence upon someone else. In this case, that “someone else” was their former Fujitsu colleague whose very evidence was responsible for exposing the full picture.”

Comment

“There is a lot of interest in this,” said government business secretary Alok Sharma in July when asked by MP Ruth Jones about a judge-led inquiry into the Post Office IT scandal.

Sharma was not talking about the take-up of loans to small businesses or a new type of smart meter. The scandal is described by lawyers as the widest miscarriage of justice in England’s legal history. Is it surprising then that there is a lot of interest in a judge-led inquiry?

The instincts of former sub-postmaster Alan Bates who instigated the group legal action in the High Court against the Post Office have proven correct. He knew that he could not depend on the Parliamentary business establishment to expose the scandal or mitigate its effects.

The scandal continues

Indeed, the government review of Horizon announced by Scully and Sharma seems more likely to recommend tweaking the Post Office’s corporate governance than holding to account those who allowed sub-postmasters to go to prison on the basis Horizon was robust.

The scandal goes on: ministers express their confidence the Post Office will cooperate with a review. This is the same organisation that had not always given the truth to its CEO on Horizon, had tried to stop disclosure of relevant information to the High Court about Horizon, had tried to mislead the judge in the case and had not disclosed 5,000 “known error logs” until after the end of a Horizon trial that had focused on errors in the system. On what grounds do ministers now believe the Post Office, institutionally, has a genuine interest in cooperating fully with a review after 20 years of concealment?

For more than a decade, the Parliamentary business establishment has been close to indifferent about the scandal or, at best, knowingly naive. That establishment, understandably, wants the Post Office to flourish not collapse under the weight of a self-made scandal. But government business officials and ministers seem to treat the Horizon scandal a little as if a large energy company’s billing system has issued some inaccurate bills.

Accountability?

Would a minister say, “there’s a lot of interest in this” if MPs had asked about other matters that warranted a judge-led inquiry, such as the Grenfell fire or failures at Mid-Staffordshire Hospitals?

The reason the Horizon scandal was allowed to happen was because the Post Office was answerable to nobody and was therefore unaccountable for its conduct. Can anyone, in truth, say it is now accountable?

At the BEIS committee hearing in July, business MPs – who have had 20 years to hold the Post Office to account, had the rare chance to question the business secretary Sharma. True, Sharma was not in office during the scandal but he is likely to have been briefed on it by his officials at some point this year. At the BEIS hearing, Sharma was asked just four questions about the Post Office IT scandal by two of the nine MPs at the hearing – and near the end of the session.

Sooner of later, ministers will need to show they care. Outside the Parliamentary business establishment, there is genuine concern: Boris Johnson called the Post Office IT scandal a disaster for sub-postmasters. Commons leader Jacob Rees-Mogg said of the Horizon matter there is “no worse scandal than imprisoning people or unjustly taking away their livelihoods when they are accused of crimes that they did not commit”. The Criminal Cases Review Commission, the High Court, the Appeal Court, sub-postmasters, the media and many MPs and peers have been forthright in their criticisms of the Post Office. But not the Parliamentary business establishment.

Journalist Nick Wallis was told by a government source that civil servants did not want even a review. “They wanted it all to go away.”

One thing is certain. Alan Bates will make sure the campaign for justice continues until sub-postmasters have at least been returned the money wrongfully taken from them.

The longer ministers keep their cheque books closed on the sub-postmasters’ losses the longer the campaign for justice goes on, as will the campaign to hold to account those who allowed miscarriages to happen, including at the Post Office and the Department for BEIS.

Government business ministers appear to believe that a public summary of the Post Office’s failings at the end of a government review into Horizon will give sub-postmasters the closure they crave. If ministers genuinely believe this summary can replace fair compensation, justice and accountability they are as naive as their predecessors.

It would take an afternoon only to write a summary of the Post Office’s failings from the litigation rulings. An afternoon’s work would save on the cost of a review. And just as pointless as a review.

No pain no gain

The obvious way to resolve the scandal now is for the right thing to be done – which will not be easy. It may be difficult and painful to come up with £46m to pay the sub-postmasters legal costs. But compare the difficulties of raising £46m with the years of suffering that an arm of the state has imposed on 1,800 or more sub-postmasters.

Martin Callanan, Post Office and BEIS minister in the House of Lords

Doing the wrong thing is carrying on with what is happening now: planning for a non-statutory review in which nobody is cross-examined and no documents can be demanded is easy. Writing a summary of the Post Office’s failings is easy. Going into the Lords and Commons and giving the same scripted answers whatever the question is easy. In the Lords last week, peers who briefly debated the Horizon scandal would have been better served by a cardboard cut-out of the government business minister, Martin Calllanan: a cut-out would not have raised expectations. It cannot be fulfilling for business ministers to go into the Commons or Lords and answer questions on Horizon by sounding like a pre-recorded voicemail message.

It took immense hard work and perception for Mr Justice Fraser, the judge in the litigation between sub-postmasters and the Post Office, to set out the legal position with such unsparing clarity. He was courageous too, say lawyers, because he took on an institution the size of the Post Office in a way other judges might have been reluctant to do. Now it’s up to ministers. Their department can carry as now which will mean continuing to answer parliamentary questions and writing scripts for Horizon debates for years to come … until, eventually, the right thing – the hard and painful thing – is done.

Crowd-funding appeal to support Chirag Sidhura’s application for a judicial review of Post Office’s historical shortfall scheme.

They all wanted it to go away – Nick Wallis

The Great Post Office Trial – Nick Wallis’ beautifully-told story of the Post Office scandal, in a 10-part series on BBC R4.

Fujitsu must face scrutiny following Post Office Horizon trial judgment – Karl Flinders, Computer Weekly An in-depth account of some misleading statements to the High Court.

Possible misconduct by prosecution – Second Sight paper to BEIS committee

Bates v Post Office Horizon judgment, December 2019

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Posted in BEIS, Campaign for justce, Campaign4Change, Department for Business, excessive secrecy, Freedom of Information, Fujitsu, Horizon system, Institute for Government, IT-related disputes, Ministry of Justice, National Audit Office, Oracle, Post Office IT, presumption

Tagged public sector

Why have junior ministers – but not Rees-Mogg or Boris Johnson – played down Post Office’s role in Horizon IT scandal?

Posted on 30/07/2020 | 2 comments

By Tony Collins

To Commons’ Leader Jacob Rees-Mogg and prime minister Boris Johnson the Horizon IT scandal could hardly be a more serious matter.

Johnson described locking up people, removing their livelihoods and making them bankrupt on account of the output of a flawed computer system as a “disaster” and a “scandal”.

Rees-Mogg said of the Horizon IT affair that there is “no worse scandal than imprisoning people or unjustly taking away their livelihoods when they are accused of crimes that they did not commit”.

But junior ministers sum up the injustices using an agreed form of words that repeat the Post Office’s own explanation of its role in the scandal. That form of words – “got things wrong” – implies that the Post Office merely made mistakes.

Post Office chairman Tim Parker said,

“We accept that, in the past, we got things wrong in our dealings with a number of postmasters …”

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

The words “got things wrong” have since been repeated by junior ministers Paul Scully at the Department for Business, Energy and Industrial Strategy, which helps to fund the Post Office, his predecessor Kelly Tolhurst and Alex Chalk, a junior minister at the Ministry of Justice.

But lawyers say that “got things wrong” goes nowhere near explaining the Post Office’s withholding of relevant evidence of Horizon’s flaws and weaknesses from courts, judges and juries, thus allowing people to go to prison on the basis of data from a flawed system. Nor do the agreed words explain the following up of prosecutions with civil court action to claim tens of thousands of pounds from the accused.

Barrister Paul Marshall, who has published papers on the Post Office IT scandal, describes the institution’s conduct as “mendacity on an epic scale”.’

Complicit

In a detailed letter to Darren Jones MP, chair of the Business, Energy and Industrial Strategy Committee, Marshall said that the words “got things wrong” were “scarcely adequate to the circumstances and might, to those whose lives have been destroyed by the conduct of the Post Office, appear offensive”. He added that the words suggested a “conspicuous lack of understanding or worse”.

He said ,

“… the temptation to underplay the seriousness of what has happened runs the risk of the government becoming complicit in the Post Office’s wrongdoing, after the fact. Such an outcome will be very damaging to the government, given the seriousness and extraordinary scale of wrongdoing by the Post Office …”

Julian Wilson

The scandal involved hundreds of people who had run branch post offices experiencing unexplained IT-related discrepancies on their accounts for which the Post Office held them liable. Every sub-postmaster had to use the Post Office “Horizon” branch accounting system which was introduced in 1999.

A typical case was that of Julian Wilson, an orchestra conductor who had also run several companies. In 2002, he and his wife Karen, a former policewoman, decided to buy a local post office and shop where Karen grew up. They paid about £100,000.

When Horizon kept showing money was missing, Julian spoke to Post Office staff but nobody wanted to know, Karen told the Daily Mail. The couple started making up shortfalls out of their own pockets. But the shortfalls turned into thousands of pounds.

Does “got things wrong” explain what happened next?

“I sold every piece of jewellery we had, including my engagement ring, to make up the losses. It broke his heart,” said Karen. In the end, they [the Post Office] confiscated our house, the car, the business and they told Julian he could go to prison for six years for theft or plead guilty to £27,000 of false accounting.”

To avoid prison, Julian Wilson pleaded guilty to a crime he had not committed.

On the day of his sentence many villagers turned up in support and even the judge seemed surprised. “This is a sad day,” said the judge. “The villagers have said what an honest man you are.”

Julian cleaned graves as part of 300 hours of community service. His probation officer told him, “You shouldn’t be here.” He had never been given a parking ticket, said Karen.

Julian joined Justice for Sub-postmasters Alliance in the hope of clearing his name but he died prematurely of cancer which Karen attributes to the stress of the Post Office’s “ruthless” actions against him. He did not live to see sub-postmasters prove in the High Court last year that Horizon was not remotely robust and that Horizon had thousands of bugs and errors that had, on numerous occasions, altered branch post office balances without the sub-postmasters’ knowledge.

Does “got things wrong” fully explain what happened to this sub-postmistress?

Last week, Neil Hudgell of Hudgell solicitors wrote of the case of Teju Adedayo who, like Julian Wilson, pleaded guilty to offences she hadn’t committed. Hudgell says,

“As weekly accounts at her Gillingham post office showed an unexplained and increasing shortfall, she says she repeatedly asked for help and investigation from Post Office officials only to be told to ‘rollover’ the shortfall and that the accounting system would resolve itself in time.”

It didn’t, and when the shortfall reached £50,000, she says she found herself facing “aggressive” demands to pay the money.

“Unable to explain the losses, Mrs Adedayo says she was told to make up a story as to where the money had gone, and that if she tried to blame the Post Office’s IT accounting system, Horizon, she’d likely go to jail.

“Having ‘made up’ a story that she had stolen the money to pay back loans from relatives, she was given a 50-week sentence, suspended for two years. She was ordered to complete 200 hours under a community punishment order for false accounting and theft in 2006.”

She and her husband then had to remortgage their family home to raise funds and pay off the £50,000 which the Post Office claimed was missing.

Broken

She has been unable to find new work due to her criminal record.

“I’ve been completely broken by this, particularly by how this has impacted on my family and the unbearable shame it has brought on us all, me being convicted of such crimes.

“I have thought about ending it all on many occasions. The shame is linked to me and I have always worried about how that impacted on our three children, who were all very young at the time. They have seen how it has destroyed our lives, and although it was never my fault, I feel ashamed that they had to experience all of this.”

An agreed form of words

Below are some of the statements in which Post Office executives and ministers have used the words “got it wrong” to explain the Horizon affair.

On 6 July 2020 Labour’s Chi Onwurah asked Alex Chalk, a junior minister in the Ministry of Justice, about a flaw in the criminal justice system – called a “presumption” – that contributed to the Post Office Horizon scandal.

Chalk replied,

“Post Office Limited has accepted that it got things wrong in the past in its dealings with a number of postmasters and has apologised… this apology is only the start of a process of real change in the Post Office so that this situation is never repeated again.”

More than two months earlier, Paul Scully replied to a question by Labour’s Kevan Jones. Scully said,

“Post Office has accepted – on the Horizon Accounting System – that it got things wrong in the past in its dealings with a number of postmasters and has apologised. This apology is only the start of a process of real change in the Post Office so that this situation is never repeated again.”

Nick Read, CEO of the Post Office, told MPs of the Business, Energy and Industrial Strategy committee in a letter last month,

“We accept that we got some things wrong in the past.”

On 25 January 2020, Kelly Tolhurst, Scully’s predecessor at the Department for Business, Energy and Industrial Strategy – BEIS – said,

“… the Post Office accepted and recognised that in the past they had got things wrong in their dealings with a number of postmasters and apologised …”

Comment

The words Boris Johnson and Jacob Rees-Mogg use to describe the Horizon IT scandal rightly acknowledge the scale and human consequences of what lawyers describe as the most extensive miscarriage of justice in British legal history.

On the other hand, the words of junior ministers and the Post Office – “got things wrong” – sound like a teacher’s explanation of why a pupil failed a multiple-choice maths paper.

Is this right?

It is understandable that junior ministers with a responsibility for the Post Office’s commercial success don’t want to be seen to be too critical. They have to work with the Post Office. They don’t have to work with sub-postmasters. They know the Post Office is a cash-intensive business and that money can be stolen. Perhaps they believe that only the integrity of the Horizon accounting system stands between a public institution’s commercial success and oblivion.

But to deny the corporate system’s flaws for nearly 20 years and thereby allow the destruction of the lives of hundreds of innocent people is to lose perspective. How can pretending a corporate computer system is robust be more important than peoples’ lives?

Horizon’s errors

This scandal is not about mistakes and the lessons to be learned. If you withhold relevant evidence from the defence, what lesson can be learned other than “Don’t withhold relevant evidence from the defence?”

As barrister Paul Marshall points out, this scandal is about denying to defendants, in civil and criminal proceedings, access to error records for Horizon that logged faults, errors and bugs.

There were thousands of these records. When eventually the records came up for discussion in the High Court last year, the Post Office questioned whether they existed and, when their existence was established, the Post Office challenged that they had any relevance and, when found to be relevant, the Post Office contended that they were not its, but Fujitsu’s documents, and therefore couldn’t be provided.

Mr Justice Fraser

But the judge, Mr Justice Fraser, found that those Known Error Logs and “PEAKS” – narrative explanations of Known Error Logs – were of fundamental importance in his conclusion that Horizon, in its “Legacy” version up to 2010 and its subsequent “Online” version, were not reliable.

This was not a question of making mistakes. The judge concluded the Post Office’s approach “has amounted, in reality, to bare assertions and denials that ignore what has actually occurred, at least so far as the witnesses called before me in the Horizon Issues trial are concerned. It amounts to the 21^st century equivalent of maintaining that the earth is flat”.

Denying to the defence in criminal and civil cases such fundamentally important documents as known error logs and information on the effects of bugs, revealed an abuse of the court process by the Post Office. About 5000 Known Error Logs were not disclosed until late 2019 – after the High Court Horizon Issues trial had concluded.

Wise words

Junior ministers would be advised to read the following concluding remarks of Justice Owen, in his inquiry into a scandal in Australia. In words that have since become famous in legal ethics, he wrote:

“From time to time as I listened to the evidence about specific transactions or decisions, I found myself asking rhetorically: did anyone stand back and ask themselves the simple questions – is this right?

This was by no means the first time I have been prone to similar musings. But I think the question gives rise to serious thoughts… Right and wrong are moral concepts, and morality does not exist in a vacuum. I think all those who participate in the direction and management of public companies, as well as their professional advisers, need to identify and examine what they regard as the basic moral underpinning of their system of values. They must then apply those tenets in the decision-making process. …. In an ideal world the protagonists would begin by asking: is this right? That would be the first question, rather than: how far can the prescriptive dictates be stretched?

The end of the process must, of course, be in accord with the prescriptive dictates, but it will have been informed by a consideration of whether it is morally right. In corporate decision making, as elsewhere, we should at least aim for an ideal world. As I have said, ‘corporate governance’ is becoming something of a mantra. Unless care is taken, the word ‘ethics’ will follow suit.”

There isn’t a hint it will happen or even could happen but perhaps Paul Scully and his boss, business secretary Alok Sharma, ought to ask themselves whether it is right and ethical that, given their responsibilities for the Post Office and a department that is implicated in the scandal, they and their officials are even peripherally involved in deciding on a “review” of the scandal, appointing its chairman and setting its terms of reference.

What now is right and ethical?

Isn’t it time that, after 20 years, ministers stopped repeating the Post Office’s own words and instead took a stance that was unequivocally right and ethical?

It is right and ethical – at the very least – to pay sub-postmasters in full the money the Post Office has taken from them.

It is right and ethical – at the very least – to clear the names, en masse, of all sub-postmasters convicted on the basis of evidence from the flawed Horizon system and to stop trying to delay justice even longer by looking at each case individually.

It is also right and ethical that junior ministers no longer treat with disdain requests by hundreds of victims of the Horizon scandal (as well as 75 MPs and dozens of peers) for a judge-led inquiry.

It is natural for civil servants not to want an inquiry’s cross-examination of witnesses or the other awkward accoutrements of a proper inquiry, such as the disclosure of emails between officials and the Post Office; and of course civil servants would rather a review that is all over and done with as soon as possible. But, after 20 years, sub-postmasters do not need a last-minute push for an official version of the truth that excludes more than it includes.

Pride

Any day now, ministers will announce with pride their choice of person to chair a review that nobody but they and their officials want. What chance is there ministers will first, as Justice Owen would suggest, stand back and ask themselves the simple question: is this right?

If they do ask this question – and they probably will not – the obvious answer would be: no – nothing other than a judge-led inquiry will do.

Thank you to Nick Wallis whose coverage of the trial has contributed hugely to public and media knowledge of the Post Office IT scandal and to Karl Flinders whose numerous exclusives have been invaluable source material for the IT industry, researchers, justice campaigners and Campaign4Change posts.

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Posted in BEIS, Campaign for justce, Campaign4Change, Department for Business, Freedom of Information, Fujitsu, Horizon system, IT-related failures, Ministry of Justice, National Audit Office, Post Office IT, software quality, supplier relationships

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

Posted on 17/06/2020 | 2 comments

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

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Posted in BEIS, Campaign4Change, culture, Department for Business, excessive secrecy, Fujitsu, Horizon system, IT-related disputes, legal disputes, National Audit Office, Post Office IT, public sector, supplier relationships

A message to ministers Paul Scully and Alok Sharma: your decision could change lives.

Posted on 12/05/2020 | 9 comments

By Tony Collins

As ministers with the Post Office in your remit, you could change the lives of hundreds of families by setting up a judge-led inquiry. Or you could do what your predecessors did when faced with the Horizon scandal: shrug and side with the Post Office. For any minister who goes into politics to make a difference, this could be a career-defining decision .

Not all ministers are spokespeople for their departments. Now and again a minister will stand up to officials and go against what countless ministers have said before. That minister in 2011 was Liam Fox. His determination to put right a long-standing miscarriage of justice will not go down in history. It’s not even mentioned in his entry in Wikipedia. But he knows he changed, for at least a generation, the lives of two families.

John Cook and Mike Tapper lost their sons in a notorious helicopter crash on the Mull of Kintyre in 1994. Everyone on board died, including 25 senior police and intelligence officers. The RAF found the two pilots, Flight-Lieutenants Rick Cook and Jonathan Tapper, grossly negligent. But computer and other problems with the helicopter type, the Chinook Mk2, were hidden until, five years after the crash, Computer Weekly published a 145-page report “RAF Justice – How the Royal Air Force blamed two dead pilots and covered up problems with the Chinook’s computer system FADEC.” But the civil service and ministers still kept to the official line that the pilots were to blame. Even a cross-party House of Lords committee that was set up to investigate the crash had no influence. It questioned the two air marshals who had found the pilots grossly negligent. One of the air marshals came to the committee with slides to show how the pilots had failed to keep the helicopter and its passengers safe. The committee found that the RAF had not justified its case against the pilots. But its report and a similar one from the Public Accounts Committee on the Chinook Mk2’s ‘s flaws were to no avail. The Ministry of Defence repeated its line that there was no new evidence. For 16 years successive defence ministers and defence secretaries sided with the civil servants and RAF against the pilots. John Cook, father of pilot Rick, died before he saw the campaign’s conclusion.

It was not until Fox took over as defence secretary in 2010 that the official position began to change. He commissioned the first judge-led government investigation of the crash. It found that the defence establishment was wrong and the Cook and Tapper families were right. Fox could have left it at that: as yet another independent inquiry report that made no difference, albeit a judge-led one. But Fox went much further. He took on the defence establishment.

The formal finding against the pilots could be overturned only by the Defence Council, a formal body on which sit the country’s defence leaders including the Chief of the Defence Staff, senior officers from the Royal Navy, Army and RAF, the head of the MoD and the Defence Secretary. How he achieved it we do not know, but somehow Fox came out a closed-doors meeting of the Defence Council with the finding of gross negligence set aside. Subsequently, the Tapper and Cook families watched from the House of Commons gallery as Fox gave them an unequivocal apology. It mattered, because the pilots had young children who would now grow up with pride in their fathers who had died in the service of their country. Were it not for Fox, the civil service could today be asserting in their letters to the Cook and Tapper families that there was no new evidence and the pilots were to blame.

Horizon

Boris Johnson supports a government inquiry into the Horizon scandal just as David Cameron supported a government inquiry into the blaming of the pilots for the Chinook crash. There is another common factor: the Horizon campaign for justice has the ardent support of Lord Arbuthnot who was a leading Parliamentary campaigner for the families of Rick Cook and Jonathan Tapper. Lord Arbuthnot knows he has right on his side now, as he did then. But that may not be enough.

The Post Office retains its power and has the full support of a civil service that, in relation to the Horizon litigation’s aftermath, does not see itself as an entrenched and uncaring bureaucracy.

Justice campaigners who call for a judge-led inquiry into the Horizon scandal have no support from the civil service and the Post Office who want only a “review”. That is why it falls to Paul Scully and Alok Sharma to make the difficult decision on whether to insist, as Fox did, for a judge-led investigation.

Lord Arbuthnot gives one reason for wanting a judge-led inquiry,

“We need an inquiry and, since the Post Office has repeatedly given inaccurate information including to me, it needs to be led by a judge.”

It is a difficult decision for Scully and Sharma to take because, just as the civil service and ministers held to the wrong official line for 16 years in the Cook and Tapper case, the Post Office and civil service will hold to the wrong official line indefinitely without a Fox-like intervention.

An insight into the Post Office’s attitude to a judge-led inquiry can be gained from its history of thin-skinned reactions to scrutiny and criticism: it sacked and criticised accountants Second Sight who were critical of Horizon and it spent hundreds of thousands of pounds trying to remove the judge in the High Court Horizon trials whose rulings had favoured sub-postmasters; its verbal attacks on its critics during the High Court hearings were harsh and it tried to prevent much of the other side’s evidence being heard in court. Since the litigation, the Post Office has apologised for past events only, not for its conduct, inaccurate statements and high spending during the High Court trials, all of which the judge criticised.

The civil service’s objections to a judge-led inquiry are likely to focus on three things: cost, a likely requirement to compromise necessary confidentiality and a possible awkward recommendation that government pays the legal and funding costs of sub-postmasters in their litigation against the Post Office.

These objections are one-sided. Put into context, a judge-led inquiry would cost less than 5% of the money the Post Office has spent on fighting sub-postmasters and settling the High Court litigation.

On confidentiality, it is true a judge-led inquiry would require an openness the civil service would find hard to accept, such as the disclosure of relevant internal emails. Scully’s department BEIS and HM Treasury’s UK Government Investments, as the body that provides a representative to sit on the Post Office board, would object to disclosing internal emails on public interest grounds. Officials often argue that what journalists call secrecy civil servants call a “safe space” to give candid advice to each other and to ministers in the interests of smooth government. But a lack of openness allowed the Horizon IT scandal to spread unchecked for more than a decade. Fujitsu, Horizon’s supplier, did not disclose problems with the system while sub-postmasters were prosecuted on the basis of Horizon’s stated resilience. The Post Office also did not disclose problems. It took High Court trials costing many tens of millions of pounds to establish the truth about Horizon’s flaws.

One indication of the Post Office’s attitude towards openness and scrutiny can be seen in its citing of the Official Secrets Act in its dealings with sub-postmasters, to the surprise of Sir Peter Fraser QC, the judge in the Horizon trials. It was understandable that General Post Office workers during the two world wars were required to sign the Official Secrets Act when they were involved in wireless communications and intelligence gathering. But the Act’s use in dealings with sub-postmasters who have complained about Horizon is, arguably, a matter for an inquiry judge.

On the civil service’s objections to paying the legal and funding costs of the sub-postmasters’ litigation against the Post Office, it was the dogged efforts of former sub-postmaster Alan Bates, his lead claimants and their legal team that led to the unearthing of what is being described as the biggest miscarriage of justice in British legal history.

It was this legal action that proved the Horizon faults and has led to reviews of more than 500 potentially unsafe criminal convictions. Boris Johnson has called the Post Office’s actions taken against sub-postmasters a scandal. He said he has met some of the victims. He is aware that being blamed for shortfalls shown on Horizon could lead to imprisonment, bankruptcy and suicide. But for Bates’ litigation, those 500 or more criminal convictions would not now be under review – a reason in itself to meet the litigation costs from public funds of Bates and the other sub-postmasters?

Spin

Without a judge-led inquiry, the spin will doubtless continue. The Post Office has announced that the High Court settlement of Bates’ group litigation was agreed by both sides. But Post Office officials know that sub-postmasters had no choice but to settle because of a risk their funding would otherwise run out, even though they had won every one of six judgements so far and seemed set to win all further judgements. The Post Office had no such funding risk: it could have walked out of the mediation with no consequences for any of its individuals. The sub-postmasters did not have the same freedom.

The result was that the Post Office succeeded in ending a legal case it was losing by paying the fees of lawyers and litigation funders and leaving the sub-postmasters, its legal opponents, out of pocket, some of them by hundreds of thousands of pounds.

As of now, five months after the litigation ended, the sub-postmasters remain punished and the Post Office unpunished.

Nobody outside the Post Office and civil service will think it right to abandon former sub-postmasters who have been through years of trauma, including a difficult High Court case and who, in the end, have performed a public service on an historic scale.

The Post Office remains fully in control: at no point in nearly 20 years of the scandal have ministers sided with sub-postmasters, as Fox sided with the Cook and Tapper families.

Scully and Sharma have it within them to break the mould. The easy option would be to shrug off calls for the accountability and scrutiny of a judge-led inquiry. Or they could stand up to their officials, their department and the civil service hierarchy including Downing Street officials who seem determined to undermine Boris Johnson’s commitment to “get to the bottom” of the scandal.

Justice for the families of Rick Cook and Jonathan Tapper was a long time in coming. But campaigners knew it would come eventually.

If this government decides merely to set up a safe “review”, it will set off more Parliamentary calls for a judge-led inquiry and sub-postmasters may have to wait for a new government and new ministers who have no equity in what has gone before.

But Scully and Sharma may want to right nearly two decades of wrongs during this Parliament. When, in the future, their Parliamentary careers end, they will then be able to feel quietly satisfied that they were able to make a difference. Such an opportunity does not present itself in every ministerial career.

One thing is certain: structural, fundamental and attitudinal change will never come to the Post Office however many new CEOs it has. As Alan Bates knows well, the Post Office has shown during the litigation and since that it will yield temporarily to weaker forces only when the law requires it.

Scully and Sharma do not have to give up supporting the Post Office or the civil service to side with sub-postmasters. But setting up a judge-led inquiry would require ministerial determination to make it happen. Paul Scully and Alok Sharma – your decision could have a deep and lasing effect on the lives of hundreds of families.

This piece has been emailed to Paul Scully and Alok Sharma.

Peer demands judge-led inquiry into Horizon fiasco – Nick Wallis’ Postofficetrial

Alan Bates on the need for a judge-led inquiry – Karl Flinders, Computer Weekly

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Posted in BEIS, Campaign4Change, Department for Business, excessive secrecy, Fujitsu, Government IT, Horizon system, IT-related disputes, legal disputes, National Audit Office, Post Office IT

Is the State (apart from Boris Johnson) content for the Post Office IT scandal to go on another 20 years?

Posted on 28/04/2020 | 5 comments

By Tony Collins

Boris Johnson agreed in February to an “inquiry” over what he called a “scandal” and a “disaster” that has befallen many Post Office workers. But civil servants and their ministers want only a “review”. Since Johnson’s promise, the scandal has deepened with the Daily Mail revealing that another 500 criminal convictions – nine times more than thought – may be unsafe. MPs and peers are likely to see this as reinforcing the need for a judge-scandalled inquiry. In contrast, civil servants, in their recent letters to former sub-postmasters, appear to see the whole matter as passé. But journalist Nick Wallis reported recently on a case that suggests the Post Office’ s controversial approaches and attitudes to sub-postmasters who have inexplicable shortfalls on the Horizon computer system continue. Even so, civil service leaders seem to want to put the Horizon affair into a black sack labelled “historical issues”, courier it off to a state-appointed review panel and archive the published “lessons learned” report as soon as practicable. But the scandal is now described as the biggest miscarriage of justice in British legal history. Campaigners will not be content with a review that doesn’t allow for witnesses to be cross examined or the full conduct of the Post Office to be challenged. The stage appears set for a new and prolonged dispute. On one side are campaigners who perhaps include Boris Johnson. On the other side are civil servants and their ministers. When, as expected, business minister Paul Scully announces the commissioning of an independent review, not a judge-led inquiry, the Post Office and some senior civil servants may cheer quietly but campaigners will ask what happened to justice and accountability. Is part 2 of the Horizon IT scandal about to begin?

Boris Johnson told MPs in February he has met some of the victims of the Post Office IT scandal. He was aware it had caused bankruptcies, imprisonment and suicide.

Asked by Labour MP Kate Osborne if he would commit to an “independent inquiry”, he said,

“I am happy to commit to getting to the bottom of the matter in the way that she recommends.”

But business minister Paul Scully, who represents the Post Office in Parliament, has referred to Boris Johnson as wanting a “review”. At no point has Scully’s department BEIS committed to an inquiry.

Scully told the Commons,

“We have talked about the independent review, which the Prime Minister mentioned a couple of weeks ago. We are looking at the best way to do it.”

Scully used the “review” word again – not inquiry – when replying to a tweet by Nichola Arch, a former sub-postmistress who is one of the Post Office’s Horizon victims. Arch had tweeted that Scully, after a debate on Horizon in the Commons, was a “complete coward”. Scully tweeted in reply,

“Sorry you felt that way. Hoping to get more details of a meaningful review as soon as possible.”

Scully has repeated the “review” word in recent correspondence.

Inquiry v Review – phase 2 of the Horizon scandal?

Review

On the “meaningful review” side are civil servants at Downing Street, the business department BEIS, the Post Office, business ministers Paul Scully and Martin Callanan who represent the Post Office in Parliament and their boss business secretary Alok Sharma.

But a review may be the civil service’s equivalent of throwing a beach ball directly into the hands of a four year-old on a windless day: all being well the outcome is predictable.

An independent review has no cross examination of civil servants or other witnesses, no forced disclosure of emails, letters and internal assessments, no identification of individuals involved in the scandal and perhaps most important of all, no asking of questions the Post Office would be unhappy to answer: a review is collegiate and consensual in civil service tradition. Therefore there would be no summing up by each side of their case and no judge to weigh up the conflicting evidence and reach a conclusion.

Old and new

Recommendations of a review panel are likely to be, in the main, unchallenging and abstract. Their wording would be in keeping with the terms of reference which could be along the lines of “To review the lessons learned from the introduction of the Post Office Horizon system, in terms of past dealings with sub-postmasters.”

Indeed, in their speeches this year on the Horizon affair, ministers have spoken in vague terms about what changes are underway: a strengthened relationship with postmasters and the taking on board of lessons learned.

It may of note that at no time has Scully described the Horizon affair as a “scandal ” – the word used by Boris Johnson. Scully suggested in one speech on Horizon that the litigation process (which sub-postmasters launched against the Post Office) had caused an impact on sub-postmasters.

Summing up the government’s reaction to a debate in the House of Commons on Horizon, he told MPs

“It is impossible to ignore the impact that the litigation process has had on the affected postmasters and their families.”

It seems particularly important to civil servants that, in terms of public perception, the Post Office’s conduct is divided into old and new: it was the old regime that was responsible for wrongly blaming sub-postmasters for money shown on the Horizon system as missing. The new regime under its CEO Nick Read who j0ined in September last year is seen in Whitehall as having a caring, modernising culture of reform and self-improvement; it is clearing up a long-ago mess for which nobody today can be held responsible.

Indeed, official apologies from the Post Office and its ministers for the Horizon affair have been confined to “past” shortcomings only.

The official line is that Horizon has been, in recent years, relatively robust, that the litigation between former sub-postmasters and the Post Office has been settled successfully with the agreement of both sides and the Post Office’s new CEO makes all the difference.

Asked in the Commons in March by campaigning MP Karl Turner about whether the minister supported a judge-led inquiry, Scully replied, “We will certainly look at how we can keep the Post Office on its toes in future and at how to look back to learn the lessons …”

Scully has range of job responsibilities at BEIS including the Post Office. The Horizon scandal puts him in a difficult position: he is the Parliamentary spokesman for the Post Office and BEIS who would be the two main subjects of any inquiry. He has no obligation to represent former sub-postmasters and indeed could decide to do nothing about the Horizon affair but he has ruled this out. He told the House of Commons, in a debate on the Horizon matter, “I will not wash my hands of it.”

Police investigation?

Fujitsu, the supplier of Horizon, is unlikely to participate in any review or inquiry as it may be the subject of a police investigation. The judge in the Horizon litigation having said he was referring Fujitsu to the director of public prosecutions.

Addressing a packed courtroom last year, the judge, Mr Justice Fraser QC, expressed his “very grave concerns” about the evidence given by employees of Fujitsu. Such evidence had been given in the Crown court, in actions brought by the Post Office, as well as the High Court, he said.

Review no-go areas?

Likely no-go areas for any review include the question of why the Post Office would be any different in its dealings with a non-statutory review than in its dealings with the High Court which, the judge found, were nether open nor impartial. The Post Office wanted evidence withheld, and what it said in evidence was, in part, wrong, inaccurate, inconsistent and out of context.

Another possible “no-go” question for a review is whether the civil service and its ministers, in holding nobody to account for the Horizon scandal, are ending a clear message to hundreds of publicly-owned organisations not to worry if their actions cause bankruptcies, imprisonment and suicide.

A petition calling for a judicial inquiry, which has been signed by more than 5,300 people and has the support of more than 100 MPs, has been handed in to Downing Street. The petition was started by Christopher Head, a former sub-postmaster who lost about £100,000 in the scandal.

Head’s petition was clear in calling for a judicial inquiry. It did not ask for a review.

Tomorrow – questions a review may avoid.

To anyone who didn’t get to the shops, Private Eye’s superb piece of investigative journalism “Justice Lost in the Post“, written by Nick Wallis and Richard Brooks, is available to buy online here.

Another 500 Post Office staff could have been wrongfully convicted of theft after last year’s £58million settlement over an IT glitch – Daily Mail

A thorough investigation of a Horizon bug that can affect Horizon balances in a local branch, possibly the result of intermittent hardware problems – Tim McCormack, Problems with POL blog.

Chirag’s story – Nick Wallis’ blog

New minister whose remit includes the Post Office refuses to back judge-led inquiry into Horizon scandal.

This state-sanctioned conduct would not be out of place in China or North Korea – the Horizon scandal in summary

Only a judge-led inquiry will change “rotten” Post Office, MPs told

Destitute Tom Brown lost £500,000 in Post Office IT scandal.

5 Comments

Posted in BEIS, Campaign4Change, excessive secrecy, Freedom of Information, Fujitsu, goodnewspeak, Horizon system, IT-related disputes, National Audit Office, Post Office IT

Horizon IT scandal: has Goliath won?

Posted on 19/03/2020 | 7 comments

By Tony Collins

Have Post Office officials, despite a series of highly critical High Court judgements against them, escaped masterfully from what Boris Johnson called a “scandal”?

BBC Radio Wales has broadcast an excellent documentary on the Post Office Horizon IT scandal. It features Noel Thomas who had devoted his life to the Post Office, first as a postman for 32 years and then as a postmaster for 12 years.

He worked his way up since the age of 17. But one Thursday morning at 7.30am the life he’d built up over decades began to fall apart. A Post Office investigations team wanted to interview him about “having his hands in the till”.

His denials counted for nothing. Investigators insisted he had taken money. The Post Office’s Horizon branch accounting system supplied by Fujitsu showed shortfalls of £52,000. The Post Office prosecuted him and he was given a nine-month jail sentence in 2006.

After prison, Thomas was called a thief in the supermarket. His children suffered taunts that their father had been to prison.

An unsympathetic Post Office chased Thomas for debts shown on Horizon and he went bankrupt. He ended up losing £250,000; and all the while nobody at the Post Office told him that Horizon screens could show non-existent shortfalls without any fault on the part of the sub-postmaster.

In the years to come, as Thomas tried to come to terms with his new life as a family man who was now a convicted criminal, he learned that he was not alone: the Post Office had demanded hundreds of sub-postmasters make good inexplicable shortfalls shown on Horizon.

But for Thomas and other victims of the Horizon IT scandal things began to look up in March 2017 when, led by campaigning former sub-postmaster Alan Bates, they won the consent of the High Court for a group litigation against the Post Office.

The litigation was a clear success for Bates, 550 other claimants and their legal team. By the time the two sides sat around the mediation table late last year, the judge had made several rulings, largely in the favour of the sub-postmasters.

Would the judge’s criticisms put the Post Office on the defensive at the mediation? His main judgement had criticised the Post Office’s “oppressive” behaviour in its dealings with sub-postmasters. Mr Justice Fraser also criticised the Post Office’s conduct in the litigation: given the high costs of the litigation, it was perhaps extraordinary that the Post Office was said by the judge to have “resisted timely resolution of this Group Litigation whenever it can …”

It was indeed obvious to the sub-postmasters that the more the publicly-funded Post Office delayed the proceedings, the greater the risk its opponents would run out of litigation funding.

Was this fair?

The judge had also found that the Post Office tried to mislead the High Court and keep relevant information from being heard. The appeal court likened the Post Office to a Victorian mill-owner.

Now, as the two sides sat around the mediation table, the High Court was about to publish an entirely new ruling. It would say that sub-postmasters had been forced into paying shortfalls shown on a Fujitsu Horizon system that had hidden bugs and systemic weaknesses.

The Post Office had spent more than a decade denying that these faults existed and had given misleadingly reassuring statements to Parliament and the media. The Post Office had prosecuted dozens of sub-postmasters on the basis of “robust” evidence from Horizon while not saying that Fujitsu engineers could alter branch accounts without the sub-postmasters’ knowledge.

The new ruling would find that the Post Office’s own expert witness was partisan, as were some of the other Post Office witnesses.

If all this was a cue for a contrite Post Office to make amends at mediation, there was little sign of it. It emerged from the mediation paying barely the sub-postmasters’ litigation costs.

Indeed, the £57.75m settlement figure would not have covered the sub-postmasters’ costs had there not been voluntary fee and other reductions on the part of the group’s legal team and a company that provided loans for the litigation.

These reductions, which were made out of sympathy for the former sub-postmasters, allowed a fund of about £11.5m from the £57.75m to be distributed among the 550.

But the fund will pay only a small percentage of losses. And it doesn’t pay compensation for ruined lives.

“Scandal” says Boris Johnson

The prime minister refers to the whole matter as a scandal. He spoke in the House of Commons of the “disasters that have befallen many Post Office workers”.

But a Post Office statement to BBC Radio Wales offered no hope of any further money for the 550. It referred to its shortcomings as in the “past”. The statement said,

“A comprehensive final settlement was jointly agreed by the Post Office and the claimants in the group litigation last year. We apologise to those affected by our past shortcomings and we are continuing to address these directly…”

That the settlement leaves Thomas with only a fraction of the £250,000 he has lost – and nothing in compensation – is not the concern of the Post Office or its parent department BEIS. organisation.

How did the Post Office extricate itself relatively painlessly mid-way through an embarrassing litigation, in which its competence, credibility and conduct were questioned repeatedly by a High Court judge?

Mediation

It may be thought generally that, in mediation, the two sides enter talks to settle their differences on equal terms.

Not in this case.

On one side was a publicly funded institution. The other side comprised small businessmen and women who were funded by limited, expensive loans.

Worse for the sub-postmasters, the Post Office had already made decisions during the litigation that showed it was prepared to add to costs for both sides. Its decisions included applying for the removal of the judge near the end of a lengthy trial. Had its application succeeded, it would have necessitated the costly trial being abandoned and a new one started under a different judge.

James Hartley of solicitors Freeths, which represented sub-postmasters in the litigation, gave an interview to Computer Weekly shortly after the mediation settlement was announced in December last year.

He said that if his side had carried on with the litigation it was likely the sub-postmasters would have ended up with nothing. He said his side had obtained the best deal possible but sub-postmasters would not recover anything like their full losses.

“This was always understood by everyone because we knew the group action would have a lot of costs,” said Hartley. Had a settlement not been reached, the two further trials planned would have needed more funding.

“Even if we had got that funding, which is not certain, for every £1m we got from the case, £3m would have to go back to the funders. Every month that had gone on in the case, the value of damages available to claimants would have gone down, to the point where they would have got nothing even if we had won.”

The Post Office has made the point in its public statements that the settlement figure was agreed by both sides. But mediation was not conducted on an equal financial footing.

In a different context, a few months before the mediation, Mr Justice Fraser had commented on the Post Office’s power when compared to the sub-postmasters.

He had said in his “Common Issues” judgement of March 2019,

“There is no doubt that the Post Office is in an extraordinarily powerful position compared to each and every one of its SPMs [sub-postmasters][. It appears to wield that power with a degree of impunity.”

Did the Post Office still wield power with impunity?

Convictions

At least Thomas, if he is not to recover his losses or receive any compensation, can look forward to having his criminal record removed – his name cleared.

Or could even this be denied him?

There is no time pressure on the state to overturn wrongful convictions. The simplest solution would be to set aside convictions en masse on the basis that all the prosecutions arose out of untrustworthy shortfalls shown on a computer system that was not as robust as prosecutors claimed.

But the state could, in theory, handle each wrongful conviction referred to appeal separately, review thousands of pages of documents in each case, and eventually overturn convictions when some of the falsely accused are no longer alive to see justice.

This may indeed be the state’s preferred route although there have already been years of delays in reviewing the cases.

Whether the P9st Office would prefer a group or individual review of convictions at appeal hearings is unclear. What is obvious, though, is that the longer it takes to quash convictions, the more it delays any civil claims for damages and compensation arising out of wrongful prosecutions.

A Houdini escape?

Nearly 20 years after Alan Bates had his contract to run a local post office in Wales terminated without reason when he queried apparent phantom shortfalls on Horizon, he is still seeking justice.

He has raised tens of millions in litigation funding, won the right to launch a group litigation order and his legal team has proved in the High Court that Horizon was not the robust system the Post Office had claimed.

His team could hardly have been more successful in exposing the inherent institutional failings that led to hundreds of miscarriages of justice.

Why then does justice still elude him?

Comment

The Post Office says it is changing. It is learning lessons. It has a new CEO. But the judge’s comments suggested that the Post Office’s resentment of criticism and critics is deeply institutional.

The judge said the Post Office seems to act with impunity. The word “impunity” means acting as if exempt punishment, penalty of harm.

How can a public institution, however many new CEOs it has, change its spots?

Arguably the Post Office remains as financially powerful, dominating and secretive as ever. Recently, it is said to have reached secret settlements with Horizon victims who were not part of Bates’ group litigation.

For Bates and other sub-postmasters, their campaign or justice moves from the High Court to Westminster. But politicians may not, it appears, have the final say.

“Rats”

There is no provision in law to punish prosecuting authorities that prosecute wrongfully. But the public at least has a right to expect that elected politicians will be able to hold prosecuting institutions to account.

Boris Johnson wants an independent inquiry into the Horizon IT scandal, as do MPs, Alan Bates and many others. But does the civil service and particularly the Department for Business, Energy and Industrial Strategy, the Post Office’s parent?

Lord Arbuthnot, a long-time campaigner for justice, told BBC Radio Wales that he is heartened by the prime minister’s support for an inquiry.

“I was given enormous heart that the prime minister himself described this as a scandal and he said there would be an independent inquiry.

” Now the rats will try to get at that. They will try to make it less independent. They will try to bring it under the Department for Business and Enterprise and that is something I hope the Prime Minister, who seems to have a good deal of sway in this government will be able to resist”.

Noel Thomas, Alan Bates and other former sub-postmasters sued the Post Office seeking damages for financial loss, deceit, duress, unconscionable dealing, harassment and unjust enrichment.

But the civil service seems not to accept that any of these things merit an independent inquiry.

It is extraordinary that a publicly-owned institution has been established in the High Court to have been behind hundreds of grievous miscarriages of justice and yet the victims have not received a full refund of their losses let alone compensation. And those responsible have not been held to account.

Unless Parliament intervenes and orders the setting up of an independent inquiry, it is clear that Goliath, with the support of civil servants at BEIS, will win in the end.

Thank you to Tim McCormack whose extensive knowledge and understanding of Post Office affairs never ceases to surprise me.

BBC Panorama – scandal at the Post Office – Monday 23 March

Journalist Nick Wallis will present this documentary about when senior managers at the Post Office knew the truth. Did they continue to prosecute postmasters for stealing when they knew technology could be to blame?

Wallis investigates what the BBC says could be Britain’s biggest ever miscarriage of justice scandal and uncovers evidence of a cover-up at the Post Office.

Alan Bates – the details man

Secret Post Office deals cause fury – Computer Weekly

BBC Radio Wales – Post Office IT scandal

Postofficetrial website

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Posted in Campaign4Change, culture, excessive secrecy, Fujitsu, Horizon system, legal disputes, National Audit Office, Post Office IT

Only a judge-led inquiry will change “rotten” Post Office as IT scandal continues, MPs told

Posted on 12/03/2020 | 1 comment

By Tony Collins

Former subpostmaster Alan Bates, who spearheaded legal action against the Post Office over its Horizon IT system, told MPs on Tuesday that the Post Office is “rotten underneath” and will not change without a judge-led inquiry.

Horizon victims Wendy Buffrey and Tracey Felstead also called for a judge-led inquiry at a hearing of the Business, Energy and Industrial Strategy committee.

The committee had its first hearing this week on the Post Office Horizon controversy. At its second hearing on 24 March, its MPs are expected to question the Post Office’s CEO Nick Read, the former CEO, Paula Vennells, Fujitsu, a business minister and a representative from UK Government Investments which has a place on the Post Office board.

The scandal is, in part, over the Post Office’s decision to dismiss unjustly hundreds of business people who ran local post offices. They were dismissed because of shortfalls shown on the Horizon branch accounting system which had many hidden defects.

While keeping faults hidden, the Post Office, pursued sub-postmasters for supposed debts based on “evidence” from Horizon. Dozens of sub-postmasters were prosecuted on the basis of Horizon evidence and many made bankrupt. Hundreds of lives were ruined.

Since a judge’s scathing criticism of the Post Office in rulings last year, the Post Office and Martin Callanan, a business minister in the House of Lords, have said lessons will be learnt but Bates said he has “yet to be convinced things will change at the Post Office”.

He said the Post Office has promised to change its ways many times before but “it never happens”.

Bates said he had spoken briefly to Nick Read who took over the job as Post Office CEO in September last year. Bates said he wished Read well but described him to the BEIS committee as “very much like a new coat on old paintwork”. He added that the wood underneath is “rotten” and called for a judge-led inquiry to “get to the bottom of things”.

Bates might have been referring, in part, to some of those within the corporate Post Office who chased sub-postmasters for questionable shortfalls and took legal actions against them.

Also giving evidence to MPs were Andy Furey of the Communication Workers Union and chartered accountants from 2nd Sight whom the Post Office paid to investigate sub-postmaster complaints. The Post Office dismissed 2nd Sight after their interim findings criticised aspects of the Horizon system.

What the witnesses told MPs indicates that many questions over the scandal remain unanswered:

Who on the Post Office board agreed to spend an estimated £100m or more, over time, on avoidable legal costs to fight the claims of sub-postmasters?
Does the civil service have a conflict of interest in deciding whether to support a judge-led inquiry, given that a judge may criticise officials for being a party to, or turning a blind eye, to the Horizon scandal as it unfolded?
Does the Horizon IT scandal continue? It emerges that the Post Office maintains control over, and is dealing in secret with, an unknown number of sub-postmasters who were not part of Alan Bates’ High Court litigation but who have experienced problems with Horizon, including shortfalls. The Post Office has made no commitment to paying them compensation or returning their losses.
Why have people not been held to account although it is months since a High Court ruling was scathing in its criticism of the Post Office’s conduct and costs during the litigation, its dealings with sub-postmasters, the inaccuracy of corporate statements to the media and Parliament and the withholding of relevant evidence from the court?
Could sub-postmasters continue to be blamed for shortfalls they know nothing about if nothing fundamentally changes?
Will the minutes of Post Office board meetings be published to enable scrutiny of the costly and a futile decision last year to try and remove the judge in the Horizon IT litigation?
Will those minutes, if published, reveal whether the civil service has been a party to Post Office board’s decisions?
In any dispute between he civil service and MPs, including Boris Johnson, over whether to hold a judge-led inquiry, who would win?

Asked whether the Post Office’s compensation of £57.75m to former sub-postmasters represented justice., Furey replied “Absolutely not.”

He said it is “so important to get a judge-led inquiry”.” He added that the vast majority of people operating local Post Office “want to provide a fabulous community service and are part of the fabric of society”. But when money went missing, the Post Office’s position was to “presume the sub-postmasters were guilty”.

He said the culture of the Post Office was to defend Horizon at all costs. “From the outset they could not have a position where Horizon could be questionable because that would jeopardise its business plan, its operating model and its ability to make profits”. After accusing local businessmen and women of taking money that had been shown as shortfalls on Horizon, the Post Office escorted them out of their buildings and told them they could not visit their own post offices again even if their homes were above or at the back of them.

“This is a national scandal,” Furey told MPs, adding, “It has impacted on peoples’ reputations and the Post Office needs to be held to account”. What is known about the scandal today has emerged only because of the litigation brought about by Alan Bates and other claimants, he said.

“The PO should hide its head in shame.”

Chartered accountant Ron Warmington of 2nd sight said his company only agreed to accept a contract with the Post Office to investigate the complaints of sub-postmasters on the basis that it wanted to establish the truth,

But the Post Office withheld information. “Frankly,” he said, “it was one of the worst and most difficult investigations I have ever carried out in terms of the client relationship.”

BBC Panorama is due to broadcast a documentary on the Horizon scandal on 23 March – how the Post Office covered up evidence of miscarriages of justice.

Comment:

Alan Bates called during the hearing for the “dead wood” within the Post Office to be cleared out. He referred to people who “knew the truth” but carried on with the actions against sub-postmasters.

But clearing out dead wood is not going to happen: the civil service and the Post Office do not want accountability or a judge-led inquiry.

Boris Johnson has suggested that he supports an inquiry but it is likely the civil service will have the final say.

Antony Jay, co-writer of “Yes minister”, said one thing he had learned in researching the TV series was that the civil service was the “real government”. .

He told the Daily Telegraph that, deep in their hearts, most politicians respected civil servants but “deep in their hearts most civil servants despised politicians”. He said,

“After researching and writing 44 episodes and a play, I find government much easier to understand by looking at ministers as public relations consultants to the real government – which is, of course, the Civil Service.”

Which raises the question: why would the civil service want a judge-led inquiry? By funding and sanctioning Post Office actions that led to the scandal, the civil service has much to lose by any inquiry and nothing to gain.

Indeed it is clear it failed in its role of scrutinising, challenging and not accepting at face value what it was told by the Post Office.

A judge-led inquiry may still happen though, if MPs, peers, committees and Parliament generally, keep campaigning for one.

Clearly, for the victims of the scandal, what the Post Office has done and what the state has sanctioned, knowingly or not, can never be undone. But not having an inquiry, not paying fair compensation, not holding people to account and offering up a plate of platitudes instead makes things much worse.

As things stand, officials and business ministers seem happy to accept 20 years of injustice and hundreds of lives ruined in order to protect a public institution and the civil service.

Today, across the world, the UK has a reputation for justice and a sometimes grudging fairness. But the more the state tolerates the damage caused by the Horizon scandal, the more it openly and fragrantly repudiates those virtues of justice and fairness.

MPs told to hold to account those responsible for Horizon IT scandal

Falsely accused ex Post Office workers demand judge-led inquiry – New Statesman

PM commits to Post Office inquiry – Nick Wallis’ blog

BEIS civil servants – are they hoisting their own petard? – Problems with Post Office Ltd blog

Accountability of the civil service? – Eleanor Shaikh’s research

Did Post Office chiefs get off lightly CWU, commnications union blog

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Posted in Campaign4Change, culture, excessive secrecy, Fujitsu, Government IT, Horizon system, IT-related disputes, National Audit Office, Post Office IT

New postal minister refuses to back judge-led inquiry into Horizon scandal

Posted on 06/03/2020 | 2 comments

By Tony Collins

Paul Scully, new business minister

Paul Scully, a new business minister in charge of the Post Office, refused yesterday to back calls by various MPs for a judge-led inquiry into the Horizon IT scandal.

Downing Street and the Department for Business, Energy and Industrial Strategy have also refused to commit to an inquiry, reports Computer Weekly.

Yesterday in a debate in the Commons on former sub-postmasters whose criminal records are being reviewed by the Criminal Cases Review Commission, Scully went off script several times but still refused to give any commitment to an inquiry over the scandal.

Asked for a commitment to an inquiry, Scully said,

“We will certainly look at how we can keep the Post Office on its toes in the future and look back and learn the lessons from that. What I don’t want to do is step on the toes of the CCRC’s [Criminal Cases Review Commission] investigation…. but clearly we do need to make sure lessons are learned and we will look at that over the coming days and see what more we can do.”

Scully’s comments appear to give strong backing to the civil service’s line on the Horizon scandal which is to be non-committal on MPs’ calls for an inquiry.

Boris Johnson indicated last week that he supported an inquiry but unless he has the support of the civil service an inquiry is unlikely.

Scully also gave no commitments on fair compensation to victims of the scandal or on whether he will hold anyone accountable. As the new business minister, he said he will dedicate his time to “making sure that we can see tis through and keep the Post Office on their toes to make sure we can come to a proper conclusion that means something to the postmasters who have suffered in the past …”

He said the convictions will not be treated as a group because the way the legal system works. “We are not able to do that,” he said. Each conviction will be dealt with individually with forensic accountants going through thousands of pages of documents.

He put aside his prepared speech on “what a great job” the Post Office is doing and instead answered points put by MPs but in a generalised way.

He said the government will proactively challenge the Post Office and its new chief executive Nick Read and “I will make sure that happens”.

MPs during the debate, in describing the Post Office’s conduct, used words such as “despicable” and “utterly deplorable”. One MP said the Post Office had “misled from the outset”.

MP Lucy Allan said yesterday she had been told by a representative of the Post Office that he doubts many cases of sub-postmasters with criminal convictions will be referred to the Court of Appeal and that those that are, may not succeed. She said the Post Office, is

“still intent on protecting the interests of the institution at all costs.”

Comment

Recent events have made the position of the government and civil service over the Horizon IT scandal clear:

Boris Johnson would like an inquiry but this is opposed by the civil service which has nothing to gain and much to lose: any inquiry may ask how the civil service allowed the Post Office to spend seemingly unlimited funds on its legal fight against sub-postmasters litigation (including the hiring of four QCs and two sets of solicitors). It may also ask why the civil service failed to stop a scandal that was obvious for more than a decade to anyone outside the Post Office.
Boris Johnson needs the full co-operation of the civil service to manage and implement his policies. He has little choice therefore but to accept the civil service’s party line that it must be non-committal when MPs ask what has happened to Johnson’s promise of an inquiry.
As MPs on the business committee (BEIS) look at how another Horizon-like scandal could be avoided in future, the existing Horizon scandal continues and deepens.
The criminal convictions of former sub-postmasters are to be reviewed individually and not collectively. Forensic accountants are going through thousands of pages of documents in individual cases. This could delay the final outcome of some cases indefinitely, although the reviews have already been delayed several years. The Post Office supports the individual rather than collective consideration of criminal cases.
The ruling of Mr Justice Fraser in the Horizon case made it clear that Fujitsu engineers could alter branch accounting systems from a remote location without the knowledge of sub-postmasters. Such changes could affect figures shown on the Horizon system. This fact alone – without the disclosures during litigation about bugs in Horizon – undermine every case where there is nothing other than Horizon evidence to suggest money has been stolen.
For each conviction to be looked at individually is as ludicrous as the Board of Inquiry in 1912 going through in forensic detail every survivor’s witness statement before making a recommendation on whether the available evidence supports claims the Titanic actually sank.
The Post Office continues, in practice, to exert a similar level of control and influence it had on the state during the height of the Horizon IT scandal. MPs made the point correctly yesterday that nothing has changed.
In the same way the Post Office tried to stop Alan Bates from launching a group litigation, the institution appears to be opposing former sub-postmasters with criminal convictions taking a group civil action – but how could individuals with criminal convictions, many of whom lost their homes and businesses and have found it difficult to get work, find the money, individually, to sue the Post Office which, in its legal fight against Alan Bates and his co-claimants, has shown it is prepared to spend tens of millions of pounds on lawyers?
Nothing substantive will change unless the Post Office has demonstrably independent, rigorous and fully empowered oversight, including representation of sub-postmasters on an oversight board (though not from the National Federation of Sub-postmasters which the Post Office funds and whose independence the judge questioned), together with the detailed public reporting of progress on implementing the recommendations of a judge-led inquiry.
Without these two things, ministers and the civil service will do little more than try to embalm the Horizon scandal in reassuring platitudes such as lessons learnt, a new framework, ministerial meetings, working groups, better scrutiny etc
If the civil service has its way, there will be no fair compensation, minimal accountability and no judge-led inquiry; and the Post Office will emerge from the scandal entirely unscathed other than the damage to its reputation which will cost public servants and those who misled the High Court nothing.
It is up to MPs, many of whom have an excellent grasp of the facts, to test, as the judge did, everything the Post Office says for truthfulness. The judge found that some Post Office witnesses gave him partial and inaccurate evidence. The Post Office corporately gave the High Court inaccurate evidence on Horizon and a Post Office director tried to mislead the court.
The Post Office has a new CEO. But does he have the power to modify fundamentally an institutional culture that allowed a national scandal to take grip and, according to MPs yesterday, still opposes change?
Much of what the minister said yesterday implied that the government (other than Boris Johnson), the civil service and the Post Office speak as one voice – a voice that shows compassion in the words used but not at all in the deeds.
It’s difficult to avoid a conclusion that the only regret within officialdom over the Horizon IT scandal is that the Post Office was found out. It will now take a very clever use of language – something civil servants are famous for – to convince MPs and peers that the scandal is in the past.
Credit goes to MP Lucy Allan for securing yesterday’s debate and to MPs who contributed including Gill Furniss, Andrew Bridgen, Karl Turner, Sharon Hodgson, Emma Lewell-Buck, Maria Eagle, Philip Dunne, Marion Fellows, Gerald Jones, Jim Shannon, Tonia Antoniaazzi, Ian Paisley, and Duncan Baker.

BEIS civil servants – are they hoisting their own petard? – Tim McCormack

Those who did not play by the rules in Horizon scandal should face prosecution – Computer Weekly

Boris Johnson’s commitment to inquiry in doubt – Computer Weekly

House of Lords debate on Horizon scandal – #postofficetrial

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Posted in BEIS, Campaign4Change, Department for Business, Fujitsu, Government IT, Horizon system, Politics, Post Office IT

Some of this state-sanctioned conduct would not be out of place in China or North Korea… the Horizon scandal in summary

Posted on 04/03/2020 | 8 comments

By Tony Collins

A knock on your mother-in-law’s front door at 3am. A state-sanctioned investigations team wants to interview you over stolen money you know nothing about.
Your hands are bound and you are also handcuffed to one police officer on your left and another on your right. A state-owned institution says thousands of pounds is missing. It is confident you have taken it.
You haven’t taken a penny but your protests count for nothing. The institution has the evidence from its computer system.
You are not allowed to see your family. You are put in a vehicle and not told where you are going.
You are taken to prison, kept in a cell all day and fed through a hatch. You see another prisoner who has committed suicide.
Before sending you to prison, a judge says you’ve stolen from pensioners. You are asked if you’ve used the stolen money for your recent holiday.
In fact you are in prison because you had the misfortune to be a user of the institution’s computer system – called “Horizon” – at a time when it was showing discrepancies.
Once a large and inexplicable shortfall appears on Horizon, more follow. It’s the usual pattern.
You are required to make good every shortfall now and in the future. It is no excuse to say you haven’t stolen any money or made any mistakes. Evidence from Horizon is sacrosanct.
If you cannot pay for the shortfalls, the institution, the Post Office, will make monthly deductions from your income, make you sell your home or make you bankrupt.
You were given an impossible choice: a) accept the computer’s evidence at face value and agree to give to the Post Office any amount of money it requires you to pay now and in the future, or b) challenge the computer’s evidence and be prosecuted as dishonest.
You challenged Horizon and ended up in court. Here, the denials of a branch counter clerk were unlikely to be believed against the evidence from a large and much-respected publicly-owned institution.
The jury accepted that the computer was correct. The computer seemed to work well for thousands of people every day. Why would it go wrong just in your case? But you didn’t realise then that, to everyone who complained about Horizon, the Post Office said they were the only one.
You lose your job, cannot pay the mortgage and lose your home. You are traumatised, have an electronic tag, go on medication and try twice to commit suicide.
Why have the courts and jury preferred the evidence from a computer system to your denials?
Many years after prison has left an indelible mark on your mental well-being, it will emerge that thousands of reports on Horizon-related problems have been kept secret.
The system’s problems are kept a secret for more than a decade while the Post Office, with apparent impunity, prosecutes and persecutes.
To clear your name, the onus was on you and other accused to prove the system was flawed.
But you had no right to see the system’s audit data. You had no way of proving whether the computer was showing non-existent shortfalls.
Some families try to avoid the prosecution of a family member by raising tens of thousands of pounds to pay the Post Office for shortfalls they suspect are not real but cannot prove it. The Post Office still prosecutes.
In one of the world’s most advanced nations, governments and civil service leaders turn a blind eye to a scandal that has been obvious for years to those not employed directly by the Post Office.
Far from holding anyone accountable, the UK state appoints those ultimately responsible for running the Post Office and Fujitsu, supplier of the Horizon system, to top jobs in the public sector.
The Post Office has no close oversight because it is an “arm’s length body”. The state owns more than 100 ALBs. What is to stop any number of them turning on the public as the Post Office has turned on hundreds of Horizon users? In 2015, a committee of MPs found there was little understanding across government of how arm’s length bodies ought to work.
It’s the job of state-funded auditors, non-executive directors, ministers and civil servants to challenge what they are told by the boards of arm’s length bodies. If they accept assurances at face value, the governmental system of oversight breaks down. But in 2020 business minister Martin Callanan suggests that civil servants were unknowingly misled by the Post Office. Was this confirmation that the system of oversight has failed with appalling consequences?
Since 2010, the media and Parliamentarians, particularly former defence minister James Arbuthnot (now Lord Arbuthnot) have tried to draw the attention of ministers to the Horizon scandal. But civil servants and postal services ministers have preferred the word of the Post Office to the pleadings of constituency sub-postmasters.
After setting up a costly mediation scheme and hiring forensic accountants Second Sight to address the concerns about Horizon among MPs, particularly Arbuthnot, the Post Office ends the mediation scheme and summarily dismisses Second Sight whose report criticises Horizon.
In totalitarian states, it may not be unusual for innocent people to be handcuffed and taken to prison because they questioned the output of a state-owned institution’s computer system. But in the UK?
BBC Panorama reveals in 2015 that it is possible for engineers working for Fujitsu, Horizon’s supplier, to access Post Office branch accounting systems and alter lines of code, to fix bugs, without the local Horizon users knowing.
These changes could affect the branch’s financial records as shown on Horizon.
Panorama is correct. Fujitsu staff can alter branch Horizon systems remotely but the Post Office issues a lengthy public denial of Panorama’s correct disclosures. Ministers and civil servants accept the Post Office’s denial.
In at least two families, the misfortune of being a Horizon user at the time of a glitch or training-related issue becomes a factor in suicide. In other families there are attempted suicides. A sub-postmaster suffers a stroke shortly after the Post Office wrongly suspends him, claiming incorrectly that he owes £65,000.
The Post Office had the power to enrol state resources in prosecuting sub-postmasters on the basis of “robust” evidence from Horizon.
Even after the extent of Horizon’s problems has come to light during High Court trials, the UK government continues to hold nobody to account.
That the scandal was obvious to outsiders helped Alan Bates, a former sub-postmaster who was one of Horizon’s earliest victims, to obtain venture funding, via solicitors Freeths, of tens of millions of pounds for a High Court case against the Post Office.
The Post Office tried to oppose Bates’ group litigation by claiming every individual case was different. The judge disagreed and the group litigation went ahead in 2017.
Even after the first of a series of planned High Court trials started, the full extent of Horizon’s problems were kept hidden.
Thousands of internal reports on Horizon’s problems were not given to the High Court until late 2019 – after several hearings and judgements in the case.
In 2020, Kelly Tolhurst, the then Post Office minister, refused a request to pay a fair sum in compensation to former sub-postmasters. She suggested in her letter that the compensation being paid by the Post Office (about £58m) was enough. Last week business minister Martin Callanan also refused state compensation. His words were almost identical to Tolhurst’s, implying that their words were drafted by civil servants at the Post Office’s parent organisation, the Department for Business, Energy and Industrial Strategy, which appears to see its role as defending the Post Office against outside criticism.
To those who sold homes and lost businesses because of the Post Office’s demands for payment, under threat of criminal and civil action, the compensation being offered is no compensation at all It will not, in the end, come close to covering their losses.
Today, 10 years after a pregnant sub-postmistress fainted in the dock as she was sentenced to 15 months for stealing money she knew nothing about, and woke up in hospital in handcuffs she tried to hide, her criminal conviction has not yet been quashed. She considered taking her own life. The state’s overriding duty to protect its citizens seems not to have applied to her.
Another ordinary law-abiding Horizon user went to prison in handcuffs but her criminal conviction is still in place nearly 20 years later.
Her conviction is likely to be quashed this year or next but she will have endured for much of her adult life being branded a criminal by the state. No amount of compensation can replace 20 lost years of being presumed guilty.
Boris Johnson last week promised an inquiry into the Horizon IT scandal but it is likely to be resisted by civil servants. Officials may see anything other than a narrow inquiry into procedures, contracts and technical matters as not being in their interest.
Last week BEIS confirmed it will not hold anyone accountable. Instead, the new business minister Lord Callanan offered Parliament a series of promises from Sir Humphrey’s phrasebook: a new framework … a working group … ministerial meetings …. cultural and organisational changes … learning lessons … a major overhaul … strengthened relationships … productive conversations … close monitoring of progress … constant reviews … genuine commercial partnerships … direct addressing of past events … the delivery of support on the ground… accelerating a programme of improvement … engaging with stakeholders … seek evidence of real positive change. .. further accountability mechanisms.
It is likely that some or most the above stock phrases will be used by every BEIS minister when giving a formal response to the Horizon IT scandal in letters, statements and Parliamentary debates.
But those seeking justice will continue to campaign for fair compensation at a minimum.
The campaigners in Parliament include Lord Arbuthnot, Lord Berkeley, Gill Furniss MP, Kate Osborne MP, Kevan Jones MP and Lucy Allan MP. For campaigners, the High Court rulings in favour of the sub-postmasters mark only the end of the beginning.
Some of the points below may add to grounds for the state to pay fair compensation.

Comment

A scandal perpetuated?

To be fair to the Post Office, it has acted as if it were answerable to nobody because it was indeed not answerable.

It had the very occasional polite tap on the knuckles by officials at its parent organisation, the Department for Business, Energy and Industrial Strategy [BEIS]. But nothing more.

In effect the Post Office was untouchable. It received hundreds of millions of pounds from BEIS in state aid but not even the National Audit Office was able to investigate how the money was spent.

Again, to be fair to the Post Office, it was partly in the hands of Horizon’s supplier Fujitsu when it came to understanding faults in Horizon. Fujitsu kept its own central error logs and the reports of Horizon problems. It could charge the Post Office for access to data beyond a certain point.

Given the circumstances, the Post Office did what large institutions tend to do when things go badly wrong: they blame the weakest links in the corporate chain, the human operators.

Fatal crashes of the Boeing 737 Max were, at first, blamed on the weakest inks – pilots – instead of on a poorly-designed onboard computer system.

Again, after the Chernobyl nuclear reactor explosion, the plant’s human operators, the weakest links, were blamed, which initially helped to cover up the reactor’s design and construction deficiencies.

And after the crash of a military Chinook killed 25 VIPs on the Mull of Kintyre, the two dead pilots, the weakest links, were blamed while deficiencies with the helicopter’s computer systems were hidden.

In the case of the Horizon scandal, the weakest links when the system went wrong were the sub-postmasters. About 550 sub-postmasters took part in subsequent litigation but the Horizon shortfall scandal might have claimed another 500 or so victims who hadn’t realised at first that they weren’t alone.

That the Post Office’s parent department BEIS appears to have no interest in paying compensation or holding accountable anyone for the Horizon scandal is not a surprise given that it is part of the problem.

Indeed, it’ll be no surprise if its civil servants resist making good on Boris Johnson’s promise of an inquiry. There are already signs of this, according to Computer Weekly.

For years, BEIS and its successive postal services ministers have accepted the Post Office’s word when it was obvious to Computer Weekly and Parliamentarians that a scandal was taking place under the noses of those running the department.

The Post Office’s party line continues?

In their carefully-worded reactions to the Horizon IT scandal, the current Post Office CEO Nick Read, Post Office chairman Tim Parker, former Postal Services minister Kelly Tolhurst and a current business minister Lord Callanan, have all referred to wrongs as being “in the past”.

Perhaps unwittingly, they appear collectively to be following a party line – although Sir Peter Fraser QC, the High Court judge in the Horizon case, was particularly critical of Post Office witnesses who appeared to follow a party line.

Perhaps Read, Parker, the Post Office press office and Lord Callanan wish to consign the Horizon scandal to history.

-In its corporate apology the Post Office’s statement said,

“We accept that, in the past, we got things wrong …”

In his apology, Tim Parker, Post Office chairman, said that the December 2019 High Court judgement,

“makes findings about previous versions of the [Horizon] system and past behaviours …”

In January 2020, the then postal services minister Kelly Tolhurst said in a letter to Justice for Sub-Postmasters Alliance that the Post Office accepted and recognised that,

“… in the past they had got things wrong…”

Last week, business minister Lord Callanan said at the end of a short debate in Parliament on the Horizon IT scandal,

“Post Office Ltd has accepted that, in the past, it got things badly wrong … ”

“We accept that, in the past, we got things wrong …”

“the Post Office is also continuing to directly address past events for affected postmasters …”

Nick Read, the current Post Office CEO said there was a need to

“… learn lessons from the past.”

[My emphases]

But the scandal is not in the past. Far from it.

In February 2020, Mark Baker, a sub-postmaster and spokesman for the communications union CWU, told a BBC File on 4 documentary that he knows of Horizon shortfall incidents of nearly one a week continuing in one UK region alone this year.

File on 4 also raised the question of whether it is easier to blame “user error” than the Post Office’s having to fine Fujitsu for not fixing a bug within a pre-defined time limit.

Another reason the apologies of the Post Office and ministers for “past” wrongs are disingenuous is that they avoid any apology for the Post Office’s conduct in the litigation.

In his High Court rulings, Sir Peter Fraser was prolific in his criticisms of the Post Office’s dealings with sub-postmasters but he also attacked its conduct in the much more recent litigation.

It is this conduct that demeans the reputation of UK government and public sector institutions as a whole.

When ministers and the Post Office refer to such conduct as historic they are, in essence, excusing it. By apologising for past events only, business ministers appear to have become apologists for the Post Office’s conduct in the litigation … conduct such as this:

Several Post Office witnesses did not give accurate or impartial evidence to the High Court in 2018 and 2019. That wasn’t in a past era.
A current Post Office director tried to mislead the High Court, as did a witness from IT supplier Fujitsu. This wasn’t in a past era.
The Post Office opposed the setting up of a group litigation order, sought to have no substantive trial listed at all and, when this failed, tried to strike out much of the evidence of sub-postmasters before the trials started.
During the first trial the Post Office, said the judge, seemed to try and put the court “in terrorem” – which means serving or intended to threaten or intimidate.” None of this was in a past era.
The judge said some Post Office costs were “extraordinarily high, unreasonable and disproportionate”.
In addition to the above costs, the Post Office hired four QCs and two firms on solicitors. It also fielded 14 witnesses against the six lead claimants for the sub-postmasters.
The publicly-funded Post Office appeared to be trying to rack up costs, perhaps to drain the funding of the former sub-postmasters and force them into submission.
The Post Office sought to have the judge removed – a highly unusual and costly approach to the litigation. The judge expressed surprise that the Post Office applied to remove him near the end of a lengthy trial. If the judge had stood down, a re-trial would have happened, adding greatly to costs that were already tens of millions of pounds by this stage. It was only last year that the Post Office sought to have the judge removed – not in a past era.

How many more business ministers will try to consign the Horizon scandal to the past?

That the scandal is one of the most serious group miscarriages of justice in decades is not in doubt.

But by not paying fair compensation, the state is, in essence, sending a signal to the public sector that if another group of innocent people are handcuffed, bundled into a van and taken into prison for doing nothing more than questioning the system, the state will care even less than it does today.

Holding nobody to account and not paying fair compensation also sends a message to the public and Parliament: that it is acceptable for a state-owned institution to conduct itself as if it were answerable to nobody.

One question that still remains unanswered is how a state-owed institution was able – perhaps is still able – to maintain a control and influence similar in status to that of a cult.

For more than two decades, the civil service and ministers accepted the Post Office’s criticisms of sub-postmasters. The courts and judges too.

The Post Office was also able to enlist the support of some the UK’s top QCs in litigation to fight sub-postmasters.

And the Post Office’s most senior witness in the case, whom the judge described as a very clever person, seemed “entirely incapable of accepting any other view of the issues other than her own”, said the judge. She exercised her judgement to “paint the Post Office in the most favourable light possible, regardless of the facts”.

Other Post Office witnesses in the case were expected to give impartial evidence to the court but followed its party line. Even the Post Office’s expert witness who was professionally required to give impartial evidence to the court was, according to the judge, “partisan” in favour of the Post Office’s case.

The Post Office’s control extended to the sub-postmasters’ supposed trades union, the National Federation of Sub-postmasters: the Post Office secretly gave the Federation millions of pounds that could be clawed back if the Post Office disapproved of the Federation’s public criticisms.

Are BEIS civil servants and ministers, therefore, under the influence of a cult-like institution when they tell MPs the Horizon scandal is in the past and they refuse to apologise for conduct in the litigation, refuse compensation and refuse to hold anyone accountable?

Are the BEIS civil servants and ministers also remarkably naïve when they ask MPs and peers to accept a series of Sir Humphryisms instead of fair compensation for hundreds of damaged or ruined lives? … a new framework, ministerial meetings, a monitoring of progress… phrases that could be the output of platitude-generating software?

Do ministers really believe that the Post Office, after decades of control and influence is able to change suddenly now that it has a new CEO and the Horizon scandal is acknowledged at the top of government?

If ministers want to convince us that the Post Office, BEIS and the government are genuinely contrite, they will pay fair compensation to former sub-postmasters and hold to account those responsible for the scandal and the failure to put an early stop to its all-too-obvious traumatic consequences.

Acknowledgements:

Alan Bates

Karl Finders, Nick Wallis, Tim McCormack, Mark Baker, James Arbuthnot, Eleanor Shaikh, Private Eye, File on 4, Panorama, Christopher Head

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Posted in BEIS, Campaign4Change, culture, Department for Business, excessive secrecy, Fujitsu, Government IT, Horizon system, IT-related disputes, jargon, National Audit Office, Post Office IT, software quality, supplier relationships

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Category Archives: Fujitsu

Horizon IT scandal: has Goliath won?

New postal minister refuses to back judge-led inquiry into Horizon scandal

By David Bicknell and Tony Collins

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Tony Collins

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Category Archives: Fujitsu

“… The Post Office has appeared determined to make this litigation, and therefore resolution of this intractable dispute, as difficult and expensive as it can.”

an “… overly intricate attempt to sow confusion and obscure the true issues in the case.”

“expenditure of time, resources and money by the defendant [Post Office] on restricting the claimants’ [sub-postmasters’] evidence.”

“It is difficult to see how they [sub-postmasters] can have such an opportunity if they are denied access even to copies of information or records.”

“It took a trial, tens of millions of pounds and several years to ascertain the truth about remote access [to branch accounts by Fujitsu].”

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“I can think of no justifiable reason why the Post Office, institutionally, would not want to address the Chief Executive’s points and investigate as she initially intended, and find out for itself the true situation of what had occurred.”

“This trial has shown that the true answer to the enquiry she [the then CEO] made in early 2015 was “yes, it is possible.” It has taken some years, and many tens of millions of pounds in costs, to reach that answer.”

“In my judgment, however, there are sufficient entries in the contemporaneous documents to demonstrate not only that Fujitsu has been less than forthcoming in identifying the problems that have been experienced over the years, but rather the opposite.

“The majority of problems and defects which counsel put to [Horizon Chief Architect at Fujitsu] and which were effectively admitted by him, simply would not have seen the light of day without this group litigation.”

“Whether these were legal cases concerning civil claims or criminal cases, there are obligations upon parties in terms of disclosure. So far as criminal cases are concerned, these concern the liberty of the person, and disclosure duties are rightly high.

“I do not understand the motivation in keeping this type of matter, recorded in these documents, hidden from view; regardless of the motivation, doing so was wholly wrong. There can be no proper explanation for keeping the existence of a software bug in Horizon secret in these circumstances.”

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“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.

“We need answers, not more delay. We will not rest until we get that and justice for all those wronged in this scandal.”

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