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”.
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 …”
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”.’
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 …”
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.
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.
“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 …”
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?
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.
But the judge, Mr Justice Fraser, found that those Known Error Logs and “PEAKS” – narrative explanations of Known Error Logs – were of fundamental importance in his conclusion that Horizon, in its “Legacy” version up to 2010 and its subsequent “Online” version, were not reliable.
This was not a question of making mistakes. The judge concluded the Post Office’s approach “has amounted, in reality, to bare assertions and denials that ignore what has actually occurred, at least so far as the witnesses called before me in the Horizon Issues trial are concerned. It amounts to the 21st century equivalent of maintaining that the earth is flat”.
Denying to the defence in criminal and civil cases such fundamentally important documents as known error logs and information on the effects of bugs, revealed an abuse of the court process by the Post Office. About 5000 Known Error Logs were not disclosed until late 2019 – after the High Court Horizon Issues trial had concluded.
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.
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.