On BBC Radio 4’s flagship news programme, Today, the co-presenter Justin Webb made a comment that seemed to sum up the protracted fight by 550 sub-postmasters to achieve justice after they were wrongly blamed for financial shortfalls shown on the institution’s Horizon IT system.
He made the comment when interviewing former sub-postmistress Jo Hamilton for the programme yesterday. Hamilton’s life has been blighted for 13 years by a wrongful criminal conviction for false accounting in 2008. Hamilton’s appeal against her conviction is being heard in the Court of Appeal this week, alongside 41 other cases.
Webb told the Today programme’s 7.1 million listeners yesterday morning,
“What does it tell you about the way this country is run because it seems such a fundamental wrong that was done to so many of you and yet it had taken such a lot of effort – well your effort – to put it right.”
Jo Hamilton’s Today interview
Ministers have told Parliament that the Post Office is reforming to prevent any repeat of the Post Office IT scandal but Hamilton told the Today programme that the institution is still fighting sub-postmasters.
“Going forward, their attitude still hasn’t changed. They are still fighting people. It is just not right,” she told Webb.
Last year, junior business minister Paul Scully, who is the government’s spokesman on the Post Office and is Conservative MP for Sutton and Cheam in Surrey, told MPs,
“If we are going to get the future relationship with postmasters right, we have to tackle the injustices that have happened in the past, but we also have to rebuild, with the new management in the Post Office, trust and training and respect for the sub-postmasters of the future.”
In a similar vein, Webb yesterday read from a statement the BBC had received from the Post Office. Webb said,
“… they [the Post Office] sincerely apologise for historical failings and have taken determined action to address the past to ensure redress for those affected and prevent such events happening again.” Webb then asked Hamilton,
“Have they in your view done enough?”
Hamilton’s reply referred to High Court litigation which last year determined that the Post Office’s Horizon system contained material bugs and errors that caused shortfalls in branch accounts for which local sub-postmasters were wrongly blamed. Hamilton had to make good £37,000 deficits shown on the Horizon system. She ended up at Winchester Crown Court where more than 70 local villagers turned up to support her, including the local vicar who spoke to the judge in support of her. She pleaded guilty to false accounting after the Post Office offered her a plea bargain: plead guilty to false accounting or be charged with theft which could lead to imprisonment. Her criminal conviction has made it difficult to get a get job or even car insurance.
The Post Office is not opposing most of the cases in the Royal Courts of Justice this week where former sub-postmasters are appealing their convictions. It means that dozens of convictions, including Hamilton’s, are likely to be quashed. But the Post Office, in most cases, denies that it was wrong to have prosecuted in the first place which suggests it is not fully exonerating sub-postmasters of wrongdoing.
Hamilton told the Today programme that the Post Office ought to have addressed injustices years ago.
“… it now clear from what came out in court that they knew exactly what was happening and they fought us every way in the High Court.”
She also referred to the government’s recent decision to bail out the Post Office by funding claims that are granted under the Post Office’s Historical Shortfall Scheme. Nearly 2,500 former sub-postmasters and sub-postmistresses have applied to the scheme for compensation. Ministers, including Scully, have, up until now, told Parliament repeatedly that the government is not involved in the Post Office’s operations.
Hamilton told the Today programme,
“… it remains clear that they knew; and the government has a ministerial [representative] on the [Post Office] board and now they are bailing out the Historical Shortfall Scheme, they keep denying they are linked and that it is an arm’s length business but they are clearly joined at the hip. So everyone will have known.”
But the government’s bail out of the Historical Shortfall Scheme does not include any government compensation for 550 former sub-postmasters who took part in the High Court litigation. The 550 are excluded from the Historical Shortfall Scheme. Scully has said in the past that the Post Office paid £57.75m in full and final settlement of the litigation. He has refused to pay any further money. But much of the settlement went in legal costs. Hamilton told Today,
“If you have got enough money and power you can squash people. It has cost virtually all of the compensation we got … they say they paid £58m … but the claimants, the litigants, only got £11m of that. Between us, that doesn’t even recover what we’ve given them.”
Hamilton said that the Post Office’s used its “bottomless purse” to the point where sub-postmasters in the litigation could not afford to continue the case and had to settle. She said,
“The Post Office had a bottomless purse, basically, to fight us, so they knew at some point it would tip the scales and we couldn’t fight them any further.”
It means Hamilton is likely to have her conviction quashed but will not be paid any government compensation. Webb asked Hamilton,
Have you any idea when you are going to get compensation?
“No,” said replied. “That is another battle to come. They have appointed lawyers to limit the damage. But yes, it is another struggle.”
Webb referred listeners who want to know more about the scandal to Nick Wallis’ 10-part series “The Great Post Office Trial” which is on BBC Sounds.
The full transcript of Justin Webb’s interview of Jo Hamilton is below:
Webb: “What can you do when your employer, hugely powerful, a household name, accuses you of fiddling the books. Th answer in the case of hundreds of postmasters and postmistresses is not very much. Over 15 years, they were prosecuted by the Post Office. They were blamed for unexpected accounting shortfalls which were actually caused by errors in the new computer system that they used in the branches. As well as being prosecuted they were forced to pay the money back, often with catastrophic impacts on their lives. Jo Hamilton was sub-postmistress at a village shop in Hampshire. She is one of those hoping to get her conviction for false accounting overturned at the Court of Appeal in a hearing that starts today. I asked her what the best outcome of it all would be:
Jo Hamilton: “Eventually I hope to get my conviction quashed and then some kind of compensation. I don’t know if it is a done deal today. We have everything there for them to quash the conviction but yes – what a journey! It has been a long, long time.
Webb: How long, for you?
“Well my Post Office started going wrong in 2003 and I was 45 and I am now 63. That gives you some idea of how long this battle has been.”
What has the impact been on you?
“Financially – every time there was a deficit I had to make it good and then ultimately I ended up in Winchester Crown Court, pleaded guilty to false accounting because I had no choice and had to repay £37,000.”
When you say you had no choice, why was that?
“Well because originally they only charged me with theft and I pleaded not guilty to theft because I had not stolen anything but then at the very last minute they offered a plea bargain. They said if you plead guilty to false accounting (a lesser charge than theft) and repay the money we will drop the theft. I pleaded guilty to false accounting and repaid the money.”
You had extraordinary support didn’t you from your neighbours and customers?
“Customers yes, and the vicar. It was a proper Vicar from Dibley moment. The vicar stood up in court and spoke on my behalf and said I was the heart of the community and, if he was going to jail me, please don’t jail me for a long time because they needed me. There were 74 people in court. At the time I was terrified because I thought I was going to prison but now I can look back and laugh. It was quite bizarre. What the judge thought, I don’t know. He kept shaking his head and looking at me and said, ‘Why are you in my court?'”
Webb: Well, on that subject the Post Office has now issued a statement. They are not opposing most of these appeals – the appeal that you are involved with. They have informed the court, the appellants, of this. They said they did it at the earliest opportunity. They also say they sincerely apologise for historical failings and have taken determined action to address the past to ensure redress for those affected and prevent such events happening again. Have they in your view done enough?
Hamilton: “Well, they should have done it years ago because it now clear from what came out in court that they knew exactly what was happening and they fought us every way in the High Court. Going forward, their attitude still hasn’t changed. They are still fighting people. It is just not right.”
You say they knew that they had made, well to put it mildly, a mistake.
“Yes. They did. Documents came out in court, they came out in the High Court trial. Lots of it is redacted but it remains clear that they knew; and the government has a ministerial [representative] on the [Post Office] board and now they are bailing out the Historical Shortfall Scheme, they keep denying they are linked and that it is an arm’s length business but they are clearly joined at the hip. So everyone will have known.”
Have you any idea when you are going to get compensation?
“No. That is another battle to come. They have appointed lawyers to limit the damage. But yes, it is another struggle.”
Webb: What does it tell you about the way this country is run because it seems such a fundamental wrong that was done to so many of you and yet it had taken such a lot of effort – well your effort – to put it right.
Hamilton: “If you have got enough money and power you can squash people. It has cost virtually all of the compensation we got … they say they paid £58m … but the claimants, the litigants, only got £11m of that. Between us, that doesn’t even recover what we’ve given them. The Post Office had a bottomless purse, basically, to fight us, so they knew at some point it would tip the scales and we couldn’t fight them any further.”
Thank you very much for talking to us this morning.
Webb: I should say if you want to know more about the background to all of that, there was a Radio 4 series, it was called The Great Post Office Trial, and it is still available on BBC Sounds. Do go to it if you want to know more.”
Mishal Husain [Today co-presenter): “Very good series it is too.”
After 20 years of making contentious claims about its Horizon computer system, the Post Office is well into the third decade of disputes relating to the system – and is now involved a fresh legal controversy as poignant as hundreds of others since it introduced the Fujitsu-designed Horizon IT system in 1999 and 2000.
Some in the media have suggested that the so-called Post Office IT scandal is nearing a conclusion now that the publicly-owned institution accepts computer problems caused shortfalls in accounts for which it blamed sub-postmasters.
But the reality is not as black and white. Next week, the Court of Appeal will hear 41 appeals of sub-postmasters who were convicted of theft, fraud or false accounting where data from the defective Horizon system was at the heart of the prosecution case. In nearly all the cases, the Post Office is not contesting the appeals because it accepts that evidence in the original private prosecution was incomplete and that the Horizon system’s faults were not disclosed to judges and juries. But the Post Office has denied, in most cases, that it was wrong to have prosecuted in the first place, which means it is far from clear today that the Post Office fully exonerates most of the appellants from wrongdoing.
Indeed, it is by no means clear whether the Post Office now accepts that Horizon was to blame for the particular shortfalls in question in more than 2,000 cases.
Controversies continue. Until November last year, the disputes relating to Horizon had been between the Post Office and those who ran branch post offices – sub-postmasters and sub-postmistresses – or their employees. Some of the disputes led to imprisonment, bankruptcy and, in two cases, suicide. The Post Office successfully prosecuted an estimated 900 sub-postmasters on charges arising out of shortfalls shown on a flawed Horizon system. Local and regional papers carried the stories, such as the premature death of former sub-postmaster, Julian Wilson, whose widow Karen said he was a broken man after trying to cope with an increasing number of unexplained shortfalls on Horizon.
The Post Office’s action against Julian led to his having to dig graves as part of 300 hours of community service. Karen sold her engagement ring to help pay money the Post Office claimed was owed. Julian joined the Justice for Sub-postmasters Alliance but died before achieving justice. His family are continuing his campaign.
From the Post Office’s viewpoint, the unexplained shortfalls shown on its Horizon system were usually caused by criminality or incompetence on the part of sub-postmasters or their employees. Indeed, the Post Office expressly accused some sub-postmasters of criminal offences when they were being cross examined in a High Court group litigation brought by 550 former sub-postmasters against the Post Office between 2017 and 2019.
In the litigation, the Post Office told the High Court that it accepted Horizon was not a perfect system but argued that it was robust because of the manual and automated “countermeasures” in place to identify bugs or errors, fix them and correct their consequences if any. The judge disagreed. He found that Horizon was “not remotely robust”.
Before Fujitsu rolled out Horizon in about 18,000 post offices in 1999 and 2000, paper-based accounts meant that identifying the cause of discrepancies was usually straightforward. But when the centrally-operated Horizon went live, sub-postmasters found it difficult and frequently impossible to identify the cause of shortfalls. Disputes became almost inevitable when sub-postmasters were presented with large balance discrepancies they were unable to explain.
The Post Office usually won its disputes. It terminated the contracts of sub-postmasters and launched hundreds of private prosecutions and civil claims. In most of the disputes, the courts accepted, at face value, a statement from the Post Office or Fujitsu that confirmed Horizon was reliable at the time in question. Sub-postmasters and their lawyers were unable to prove otherwise because they were refused access to the system’s back-office data or Fujitsu’s “Known Error Log” that recorded when the Horizon system failed to work as intended. The Post Office and Fujitsu did not disclose the log at any criminal court hearings and judges refused defence requests for Horizon fault data to be disclosed. Judges worked to a Law Commission “presumption” that a corporate computer system was much like a mechanical clock: anyone looking at it could see if it was faulty or not. After obtaining criminal convictions, the Post Office made “Proceeds of Crime” applications for orders by the court that confiscated the property and belongings of sub-postmasters, including their home.
The disputed shortfalls usually amounted to tens, and sometimes hundreds, of thousands of pounds. When former sub-postmaster Lee Castleton disputed unexplained Horizon shortfalls of about £26,000, the civil courts dismissed his defence that Horizon was to blame and ordered him to pay what the Post Office said were its costs, £321,000, which was nearly 12 times the amount of the shortfalls. He went bankrupt in 2007 and became an electrician, working around 100 hours a week to support his wife and two children.
In 2019, in the High Court litigation brought by former sub-postmaster Alan Bates and his legal team against the Post Office, the judge managing the case, Mr Justice Fraser, ruled that Horizon had bugs, errors and defects that caused numerous shortfalls for which the Post Office wrongly blamed sub-postmasters or their employees.
But today, the judge’s rulings are not interpreted in the same way by former sub-postmasters and the Post Office. The Post Office says the ruling was that Horizon had the “potential” to cause shortfalls. Sub-postmasters say the judgment found that Horizon’s bugs, defects and errors had actually caused shortfalls.
In 2020, the Post Office’s CEO told MPs of the Business, Energy and Industrial Strategy committee that the High Court judgment on Horizon “did not determine whether bugs, errors or defects did in fact cause shortfalls in the individual claimants’ accounts but it found that they had the potential to create apparent discrepancies in postmasters’ branch accounts”.
After 20 years of disputes involving Horizon, the two sides are, therefore, still far from agreeing that Horizon has caused the particular shortfalls in question. Indeed, when the Post Office and sub-postmasters settled the group litigation in December 2019 with the Post Office’s payment of nearly £58m, it was far from clear that the Post Office accepted any of the sub-postmasters’ claims about Horizon.
The confidential “Settlement Deed”, included an agreed form of words for the Post Office’s public apology which was unspecific and vague. It implied that its wrongs were in the past. It said …
Past imperfect, present perfect?
Government ministers have stated repeatedly that the Post Office has apologised. But the apology is nearly always in line with the vague wording in the deed, which leaves sub-postmasters wondering what the Post Office is apologising for. Post Office chairman Tim Parker has said, “We accept that, in the past, we got things wrong in our dealings with a number of postmasters…” Post Office CEO Nick Read told MPs in June last year, “We accept that we got some things wrong in the past. We all need to recognise this and focus on finding the best way forward.” Business minister Paul Scully, who has the Post Office in his remit, told campaigning MP Kevan Jones, “The 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.” [emphasis added]
The Post Office is currently contesting some of the appeals referred to the Court of Appeal by the statutory body, the Criminal Cases Review Commission [CCRC], which has spent several years investigating possible miscarriages of justice linked to Horizon. The CCRC referred to the appeal court the cases of 47 people who were convicted of Horizon-related offences. In December last year, Southwark Crown Court [the relevant appeal court for those convicted in a magistrates court) overturned the convictions of six appellants. The other 41 cases are due to be heard next week in the Court of Appeal, Criminal Division, at the Royal Courts of Justice [which is the relevant appeal court for those convicted in a crown court) with 38 of the cases unopposed. But, in most of the appeals, the Post Office disputes the CCRC’s claim that the Post Office was wrong to have prosecuted in the first place. The CCRC expresses the view that it was an “affront to the public conscience” for criminal proceedings to have been brought at all.
The Post Office accepts in all but three of the 47 cases that its prosecution evidence relating to Horizon was incomplete – which implies it made mistakes. But the CCRC says in a paper to the government inquiry into Horizon that it is concerned the Post Office “consciously deprived” the courts and sub-postmasters of a full understanding of Horizon’s reliability.
The CCRC said in its paper,
“The CCRC is concerned by this evidence that POL [Post Office Limited], which was victim, investigator and prosecutor in the cases in question, consciously deprived defendants and the courts of a full and accurate understanding of the reliability of the Horizon system; and that it behaved oppressively to SPMs [sub-postmasters] by overstating their contractual obligations [to make good shortfalls].
“… In all of the circumstances, the CCRC remains of the view that the High Court’s findings give rise to a cogent argument that individual Post Office prosecutions in which the reliability of Horizon data was essential to the prosecution case … were an affront to the public conscience and should not have been brought.”
If the prosecution consciously deprived the courts and juries of critical evidence about Horizon, this could be said to bring the criminal justice system into disrepute and raises questions of why no prosecutors will be held to account. But government ministers and civil servants have set up an inquiry into Horizon that is precluded from investigating the Post Office’s conduct as prosecutor. Alan Bates said of the Horizon inquiry, “This is a pointless exercise, it’s utterly futile, another whitewash. We certainly will not engage in this inquiry.”
Another continuing controversy – the absence of fair compensation
Although the Post Office paid £57.75m to settle the group litigation, the net proceeds after costs covered only a small percentage of direct losses suffered by most of the 550 litigants. No compensation has been paid for the enforced loss of their livelihood when the Post Office suspended sub-postmasters or deducted Horizon shortfalls from their remuneration. The loss of livelihoods affected more than jobs. Sub-postmasters typically invested £80,000 to £120,000 into buying a branch post office and adjoining retail shop. When the Post Office suspended them, sometimes locking sub-postmasters out of their own premises, an enforced sale of the business meant that sub-postmasters received knock-down prices for the premises, business, fixtures, fittings, improvements made and stock relating to the linked retail shop and residential premises. No compensation has been paid for the Post Office’s lack of adequate notice when terminating contracts or the loss of earnings following suspensions and contract terminations. No compensation has been paid to sub-postmasters for the loss of their reputation, including their children being spat at in the street or the prejudice to their future employment and business prospects. They have received no compensation for the loss of credit, the consequences of bankruptcy or other insolvency and for their personal sufferings, such as trauma, mental and physical health problems, anxiety, distress and disappointed expectations; and in most cases sub-postmasters have not had returned to them the full amount of shortfalls they made good from their own pockets.
Junior minister Scully appears to support the position of the current Post Office board in all contemporaneous disputes. He has made clear repeatedly that the government will not pay any compensation because he says it was not a party to the final settlement (although the government owns 100% of the Post Office through UK Government Investments that has a seat on the board). He says that “compensation was settled in a full and final settlement that was agreed with the Post Office”. Scully has also made clear that if there have been a mass of wrongful convictions, these are, again, not a matter for government or its inquiry. Scully told MPs that “if people have been wrongly convicted, there will be procedures in place for them to claim compensation”.
Perhaps one reason the publicly-funded Post Office has been such a formidable protagonist in disputes is that, since Horizon went live, government ministers and civil servants at the Department for Business, Energy and Industrial Strategy and its predecessor departments, have consistently looked the other way, or supported the Post Office’s board, when it took a controversial position in disputes.
A fresh dispute and the “Clarke Advice”
The Clarke Advice, arguably, is the single most important Post Office document to emerge in the 21 years of the Horizon IT scandal. It is yet to be made public but some of its contents were read out at the Court of Appeal in November last year. The Clarke Advice was written for the Post Office in 2013 by a barrister called Simon Clarke. It contains information that a senior Fujitsu engineer failed to disclose Horizon IT errors during prosecutions of sub-postmasters. The Court of Appeal heard that the engineer was aware that Horizon contained bugs, including the “receipts and payments mismatch bug”. It was revealed in the High Court litigation that the receipts and payments bug had a potential and actual impact on the branch accounts of sub-postmasters.
The Clarke Advice’s partial disclosure at the Court of Appeal last November raises several questions. The first is whether the Post Office kept the Clarke Advice secret for seven years – and it is still largely secret today – because its disclosure when it was written in 2013 could have undermined an £89m High Court litigation and the prosecution of hundreds of sub-postmasters between 1999 and 2013.
At the heart of the High Court litigation was the question: did Horizon have bugs and other deficiencies? The Clarke Advice gave the answer: it did. Had the Advice been known about in 2013, therefore, it could have exposed the Post Office’s decision to defend Horizon in the High Court group litigation in 2017 as irrational and a waste of money.
Also, if the Advice had been known about in 2013, many of the convictions that today blight the lives of sub-postmasters might have been quashed years ago. There have been up to 900 prosecutions based on evidence from the Post Office or Fujitsu that Horizon was robust.
Disclosure of the Clarke Advice in 2013 could also have made it difficult for the Post Office to keep hold of the money it demanded from sub-postmasters on the basis that shortfalls shown on Horizon were correct. The sums involved, in total, amount to millions of pounds.
The Post Office’s QC at the Court of Appeal hearing last November named the Fujitsu expert referred to in the Clarke Advice. Why did the Post Office go through two years of High Court litigation, between 2017 and 2019, when it defended Horizon as trustworthy while knowing secretly that Fujitsu’s lead engineer on the contract was aware of bugs and errors in it?
The expert’s name is mentioned 88 times in the High Court judgment of December 2019 and the judge devoted several pages of his ruling to questioning why the Post Office had decided not to call the expert to give evidence, although the judge acknowledged that it was the Post Office’s right to choose whomever it wanted to call as an expert witness. The judge said it was a controversial matter between the parties that he had not been called as a witness.
The existence of the Clarke Advice in 2013 also raises questions about how much government and Whitehall, namely the predecessor of the Department for Business, Energy and Industrial Strategy, knew of the document, given that the civil service has a representative on the board of the Post Office. Why did government ministers write letters to the Justice for Sub-postmasters Alliance defending continuance of the litigation when the secret Clarke advice, had it been disclosed, would have undermined the Post Office’s High Court defence of Horizon? Were government, Whitehall and the Department for BEIS complicit in covering up the Clarke Advice because its disclosure would have confirmed the existence of the Horizon IT scandal in 2013 – the countless wrongful prosecutions and unjustified demands for money – at a time when existence of any scandal was being officially denied. Indeed, the Post Office told MPs in 2015 that the “Post Office is under an absolute duty to disclose any evidence that might undermine a prosecution case or support the case of a defendant… To date, no such evidence has been provided.”
But Lord Arbuthnot, who has campaigned for sub-postmasters since 2010, said the Clarke Advice “establishes that the Post Office lied to, and was in contempt of, Parliament”.
The Court of Appeal last year refused to order the disclosure of the Clarke Advice. This could be because the three judges were simply deferring to a national institution, the Post Office, which had argued the Clarke advice was privileged information. Or were the judges innately cautious about ordering the disclosure of a document that exposes a giant hole in the criminal justice system? Courts are supposed to convict the guilty and acquit the innocent after hearing both sides of the argument. In fact courts across the country accepted the flawed evidence of the corporate Post Office and Fujitsu and gave little weight – and indeed rejected – the Horizon complaints of hundreds of individual sub-postmasters of integrity.
As a result, dozens of appeals against wrongful convictions based on flawed Horizon evidence are before the Court of Appeal next week. Some sub-postmasters have lived with wrongful convictions for more than a decade. Many more appeals are pending. Is this large hole in the criminal justice system a good reason for appeal judges to want, perhaps subconsciously, the Clarke advice to remain a secret?
Post Office’s complaint over the Clarke Advice
In the Court of Appeal in November last year, the Post Office made a complaint that may lead to court proceedings against two barristers who now face a possibility of Contempt of Court charges which could lead to a fine, imprisonment or both. There is usually no guarantee of a jury trial in contempt proceedings.
The barristers were working on a mainly pro bon basis – free of charge in the public interest – in the aid of Tracy Felstead, a former Post Office branch employee, and two former postmistresses, Janet Skinner and Seema Misra, who were imprisoned for theft or false accounting after being unable to explain Horizon shortfalls.
Tracy Felstead has lived her entire adult life with an unsafe criminal conviction. She was 19 when charged with theft in 2002 on the basis of Horizon data. She went to Holloway prison. Janet Skinner was charged with theft in 2006 and Seema Misra in 2008. The two barristers, Paul Marshall and Flora Page, were due to represent them in appeal hearings next week.
But, because of the Court of Appeal’s threat of contempt proceedings, Marshall and Page, have decided to step down from representing the three appellants.
Marshall is a renowned expert on Horizon miscarriages of justices and has written papers on the subject. He has also made submissions to House of Commons select committees. Marshall and Page were the only barristers in the current appeal cases who were seeking to persuade the Court of Appeal that it should hear arguments on whether the Post Office prosecutions amounted to a “second category abuse of process of the court”.
There are two categories of “abuse of process” on which convictions can be quashed. Only the first category need be proved for convictions to be overturned but Marshall and Page wanted the second category to be considered as well. The Post Office has accepted the first category in most of the cases but not the second. The Post Office’s acceptance of the first category suggests it recognises that sub-postmasters in question did not receive a fair trial because of a failure to disclose details of Horizon’s faults.
The second category of abuse is an argument that the prosecutions ought not to have been brought and that bringing them was an affront to the public conscience. An argument in this category is that the prosecutions undermine public confidence in the criminal justice system and bring it into disrepute.
Proving the second category may strengthen the arguments of sub-postmasters who want to make claims against the Post Office for malicious prosecution. Such claims are expressly preserved for convicted sub-postmasters in the litigation Deed of Settlement.
In December 2020, the Court of Appeal formally agreed to hear the second category arguments as part of next week’s appeals. The Court agreed this after hearing from Lisa Busch QC who, by then, had taken over from Marshall and adopted his arguments. .
On stepping down from representing the appellants, Marshall wrote on Linkedin,
“After four years of struggles with metastatic cancer I have had my first third set of clear tests; a journey of sorts and a miracle. Strange to owe your life to the extraordinary skill of others. Less welcome news has been to be made subject of a threat by the Court of Appeal (Holroyde LJ, Picken, Farbey JJ) to initiate contempt of court proceedings against me. The ostensible basis is that in the course of appeals by Tracy Felstead, Janet Skinner and Seema Misra against their convictions on prosecutions by the Post Office, I gave to the Metropolitan Police a document – ‘the Clarke Advice’ – because of what it revealed. The legal basis for the threat and the procedure in making it remain mysterious. It has caused me to cease representing my clients and deprived them of many hundreds of hours of work (most pro bono) devoted to preparing their appeals.”
Marshall’s resignation and the Clarke Advice
When the Court of Appeal met in November last year for an initial “Directions Hearing” on the 41 appeal cases, the three judges spent much of the available time on a question of whether the Clarke Advice had been improperly disclosed. Marshall who was then acting for Seema Misra, Tracy Felstead and Janet Skinner, provided a copy of the Clarke Advice to the Metropolitan Police, which is investigating whether Fujitsu employees, as prosecution witnesses, committed perjury when giving evidence about Horizon in criminal court proceedings.
His junior, Flora Page, had provided a copy to her brother, a journalist, who wanted to refer to it in an article he proposed to publish after the Court of Appeal hearing.
The Post Office and the Court of Appeal judges were unhappy about the disclosures. The Post Office said the Clarke Advice was a privileged document released to lawyers for the purposes of the appeal.
Page told the court that she was aware her brother would not publish anything on the Clarke Advice unless the document was “fully enunciated in court”.
Marshall told the Court of Appeal that it appeared the Criminal Cases Review Commission had not been provided with the Clarke Advice and that the document would have a significant impact on how his clients put their appeals.
After raising the matter of the Clarke Advice near the start of the Court of Appeal Directions Hearing in November, the Post Office’s QC told the three judges, “it is open to the court, we submit, to treat the matter as a civil contempt. It is not, in our submission, at least superficially, a criminal contempt but a civil contempt”.
Civil or criminal, contempt of court can be punished by imprisonment. The Post Office’s QC told the court why the Post Office had made a complaint.
“We have brought this issue to the attention of the court because we regard it as our professional duty to do so. We also make it clear that the complaint is about the alleged acts of a lawyer or lawyers acting for three of the appellants, not the appellants themselves.” The Post Office says it supplied the Clarke Advice to lawyers representing appellants for the purposes only of their appeals.
Marshall has written to the Court of Appeal to say why he is standing down as legal representative in the three appeal cases. “I consider that I am inhibited from continuing fearlessly to represent my clients before this court. I am consequently disabled from discharging my professional duty to my clients,” he said in his letter.
Lord Arbuthnot, a former Conservative defence minister, says the Clarke Advice ought to have been in the public domain years ago. In a letter to a junior business minister Lord Callanan about the Clarke Advice, Lord Arbuthnot said, “We should have been told about this document, but I have not yet seen it. Please will you immediately send me a copy, and place it in the library of both Houses?” But it hasn’t been placed in either library.
Journalist Nick Wallis has reported on the “hugely important” Clarke Advice. Wallis points out that if the prosecution’s expert witness, who was named in the Clarke Advice, was wrong, “it could have massive implications for the safety of those prosecutions”.
Lord Falconer, a former Labour Lord Chancellor, has joined those calling for the Clarke Advice to be put in the public domain. He refers to the document as a “smoking gun”. He told Wallis,
“It is blindingly obvious that the Clarke advice should be in the public domain so that everyone can see it and read it and make judgments about the Post Office’s conduct.”
Wallis made a formal submission to the Court of Appeal asking for the Clarke Advice to be released. The Court of Appeal has so far refused. On this, Dinah Rose QC, who is president of Magdalen College, Oxford, tweeted that she “cannot see any good reason to withhold the Clarke Advice”.
The Criminal Cases Review Commission has written to the Post Office requiring that it provide a copy of the Clarke Advice. In requiring the Post Office to provide the document, the CCRC cited its powers under section 17 of the Criminal Appeal Act 1995. The obligations under section 17 are “absolute and override public interest immunity, legal professional privilege and any other rule or obligation of confidentiality which would otherwise be attached to this material”.
In November 2020, the CCRC also wrote to the Court of Appeal on the Clarke Advice. Wallis has published the CCRC’s letter. It’s written by Sally Berlin, Director of Casework Operations, at the CCRC. It says the Clarke Advice is of “potential relevance to Post Office cases which have already been referred to the Court of Appeal”.
The CCRC suggests that consideration be given to passing the Clarke Advice to the Metropolitan Police which Marshall has already passed to the police. The CCRC’s letter said,
“… as the Court will be aware, the Metropolitan Police Service is currently conducting a criminal investigation into allegations of perjury and perverting the course of justice in respect of particular expert witnesses, one of whom is the subject of the Clarke advice. We understand that the parties may wish to consider whether the Clarke advice – either in whole or in part – ought to be disclosed to the MPS [Metropolitan Police Service] investigation team. You may already have that in hand.”
Contentious Post Office assertions that can never be put right
The sister of a sub-postmaster Martin Griffiths has written a dignified and moving account of her late brother’s experience of Horizon losses.
She says in a letter to the government’s Horizon inquiry that her brother fought to make sense of losses that were shown on Horizon.
“He continually tried to speak to the Help Line, but was told it must be his fault and he would have to make good the losses as the Horizon system was functioning perfectly well. Initially he did not want to worry his family with these debts, so used his personal savings to make good the losses, but this meant he could not afford the usual family holiday. My elderly parents became very concerned as the losses started to increase into thousands of pounds. The stress began to take its toll. As Martin fought to make sense of the losses he could not explain, his personality and state of mind started to deteriorate. He had been outgoing and sociable, but during this period he began to change. He became very depressed and withdrawn and felt he was the only one in this dire situation and so it must be all his fault.
“In 2011, I hated to see the toll this was taking on my brother and my parents, so I began to search the internet to see if other Sub-postmasters had similar problems with their Horizon system. I then to my shock, unearthed such a can of worms. I discovered Alan Bates who established the JFSA [Justice for Sub-postmasters Alliance], and also watched a very alarming documentary made by Nick Wallis for “Inside Out” where he revealed that hundreds of Sub-postmasters were experiencing unexplained losses. This could not be just a coincidence – these employees were not hardened criminals. I felt so angry and frustrated. I tried to show all my research to my brother, to prove he was not “the only one” in this mess, but he was too depressed to fight. Later in 2011 Martin was audited and the Post Office suspended him. A temporary Sub-postmaster was installed. This was another blow to Martin’s self-esteem. After three months, Martin got his job back, but the losses continued to escalate, and Martin seemed unable to stop them. The deteriorating financial situation affected his marriage and he reluctantly asked my parents for money. Between 2012 and 2013, my parents’ life savings were swallowed up by the Post Office, as they continued to demand the “missing” money be settled. The situation was desperate… He was repeatedly told to make good the losses or face the termination of his contract. In July 2013 he received a letter informing him that due to his failure to manage the discrepancies at his branch and his failure to settle them in good time he was being sacked. He still owed thousands of pounds to the Post Office and his contract would be terminated at Hope Farm Road on 3rd October 2013. The ongoing debt to the Post Office and the thousands of pounds he owed our parents, together with the thought of telling the staff that his contract was soon to terminate, all became too much. He could see no way out. Early on the morning of 23 September he made his usual journey to work, pulled over in a layby on the A41, got out of his car and deliberately stepped into the path of an oncoming bus. He was rushed to Aintree hospital which specialises in head injuries, where he lay in an induced coma. For an agonising three weeks my brother was on life support which had to be switched off on 11 October 2013. Every time I read or hear a news item about the Horizon scandal, it brings back all the pain and the anger. My brother tragically lost his life due to a faulty computer system. The Post Office repeatedly denied computer error was the cause of losses amounting to millions. Instead, they arrogantly blamed my brother and thousands of other innocent Sub-postmasters, by wrongly accusing them of theft or false accounting.”
The letter asks three questions: why did the Post Office not investigate Fujitsu to find out what was causing the glitch, why did it not provide support for very worried employees and why did it halt an investigation by forensic accountants Second Sight which was raising difficult questions.
The letter concludes,
“Justice must prevail. Until then my family cannot move on from our tragedy.”
Some contentious Post Office assertions between 2009 and 2020
In 2009, Computer Weekly’s Rebecca Thomson gave the first account of the Post Office’s actions against sub-postmasters over unexplained losses shown on Horizon. Ten years later, in the group litigation settlement deed, the Post Office set out the measures it is taking to reform itself. But critics question whether the institution’s adversarial culture is too ingrained to be reversed.
Below are some of the Post Office’s contentious statements or attacks on critics in relation to Horizon. Its detailed criticisms have been directed at sub-postmasters, forensic accountants Second Sight, BBC Panorama, and some of the findings of a High Court judge whom it tried to remove.
Forensic accountancy Second Sight was hired to investigate sub-postmasters’ complaints about Horizon amid concerns about the system among MPs, particularly James Arbuthnot. The Post Office ended its relationship with Second Sight when the accountancy firm raised concerns about Horizon, the treatment of sub-postmasters’ complaints and asked to be able to review the prosecution files. By this time Second Sight’s accountants, who are highly experienced in fraud investigations, had already raised concerns about the conduct of some prosecutors.
The Post Office’s consistent criticisms of sub-postmasters and its contentious statements relating to Horizon lasted 20 years under different boards, CEOs and senior executives. The statements show, perhaps, how hard it will be for the corporate Post Office now to make the attitudinal switch to becoming compassionate, contrite, non-confrontational and fully understanding of the effects its accusations have had on countless families.
These are some of the Post Office’s contentious statements and criticisms between 2009 and 2020 (not in date order) …
“The Post Office does not prosecute people for making innocent mistakes and never has.”
“There is no evidence that faults with the computer system caused money to go missing at these Post Office branches. There is evidence that user actions, including dishonest conduct, were responsible for missing money.”
“We are sorry if a small number of people feel they have not been treated fairly in the past but we have gone to enormous lengths to re-investigate their cases, doing everything and more than we committed to do.”
“All of the allegations presented in the [BBC Panorama] programme have been exhaustively investigated and tested by the Post Office and various specialists over the past three years or more. The unsubstantiated claims and theories that continue to be levelled against the Post Office are at odds with the facts and are constructed from highly partial, selective and inaccurate information.”
“The Horizon computer system is robust and effective in dealing with the six million transactions put through the system every day by our postmasters and employees at 11,500 Post Office branches. It is independently audited and meets or exceeds industry accreditations.”
“The Post Office has always taken its duty to act fairly, proportionately and with the public interest in mind extremely seriously.”
“Prosecutions are brought to determine whether there was criminal conduct in a branch, not for the Post Office’s financial considerations.”
“The Post Office takes extremely seriously any allegation that there may have been a miscarriage of justice. We have seen no evidence to support this allegation. The Post Office has a continuing duty after a prosecution has concluded to disclose any information that subsequently comes to light which might undermine its prosecution or support the case of the defendant and continues to act in compliance with that duty.”
“There is overwhelming evidence that the losses complained of were caused by user actions, including in some cases deliberate dishonest conduct. The investigations have not identified any transaction caused by a technical fault in Horizon which resulted in a postmaster wrongly being held responsible for a loss of money.”
“There is also no evidence of transactions recorded by branches being altered through ‘remote access’ to the system. Transactions as they are recorded by branches cannot be edited and the Panorama programme did not show anything that contradicts this.”
“The Post Office is concerned that the report by Second Sight … repeats complaints made by a very small number of former postmasters, as well as a number of assertions and opinions…”
“A tiny fraction of the overall 500,000 people who have used Horizon since it was introduced more than a decade ago have put forward complaints. That does not constitute evidence that the IT system is flawed or unfit for purpose; indeed, if anything, it demonstrates that the system is highly reliable.”
“Post Office as a prosecutor has a continuing duty to disclose immediately any information that subsequently comes to light which might undermine its prosecution case or support the case of the defendant.”
“In the ten years since Post Office Limited started using Horizon the integrity of the system has also been tested in both the criminal and civil courts and has not been found to be wanting. I am satisfied that there is no evidence to doubt the integrity of the Horizon system and that it is robust and fit for purpose.” (Post Office statement to MP in 2009.)
“Any subpostmaster who is unhappy to accept a loss has the opportunity to provide evidence why they believe that they are not responsible for it. We do take the concerns of our subpostmasters extremely seriously and we do thoroughly investigate matters when they are raised with us but there has never been any evidence found that shows that the Horizon system has caused accounting errors.” (Post Office statement to MP in 2009.)
“There has, regrettably, been a large amount of inaccurate and misleading information reported in the media and Parliament about the claims of a small number of (mainly former) postmasters that they have been wrongly held liable for losses of money caused by faults in the Post Office computer system, Horizon. Each of these claims has been investigated by both the Post Office and by a firm of independent forensic accountants but no evidence has been presented or uncovered to suggest the system, which processes six million transactions for customers every working day, does not work as it should.”
“There is, in fact, overwhelming evidence that the losses complained of were caused by user errors, and, in some cases, deliberate dishonest conduct…”
“I am of course sorry if the people who have put forward grievances feel they have not been treated fairly and responsibly in addressing their complaints. Indeed, I would argue that we have gone much further than many commercial organisations might have done in analogous circumstances.” (Post Office letter to MP.)
“… risible”, “meaningless”, “nonsensical”, “weak” – some of the terms the Post Office used to describe the evidence in the group litigation of former sub-postmaster Alan Bates. The judge used different terms of Bates’ evidence: “careful”, “honest”, “thorough”, reliable” (High Court, 2018, 2019).
“…the passages to which I now refer, taken together with the matters that I have already dealt with, reinforce our concern that your Lordship’s mind is closed against Post Office. That concern, we submit, would be shared by a reasonable observer possessed of the facts.” [Post Office applies in 2019 to recuse – remove – Mr Justice Fraser, who was managing the High Court group litigation.)
“The judgment [in the case Bates v Post Office] did not determine whether bugs, errors or defects did in fact cause shortfalls in the individual claimants’ accounts but it found that they had the potential to create apparent discrepancies in postmasters’ branch accounts.” [Post Office CEO to MPs, 2020]
Nick Wallis, in one of several excellent articles on the Clarke Advice, points out that the Post Office says it is now a reformed operation, “yet you could argue it appears to be doing two of the things which got it into this mess in the first place:
a) trying to keep important information from the public gaze (see Fraser J’s second judgment in Bates v Post Office),
b) using its vast resources and legal firepower to set in motion events which may end up crushing peoples’ livelihoods.”
Indeed, after two decades of disputes that led to the shame and ruin of countless families – and the deaths of Martin Griffiths, Julian Wilson and Fiona Cowan – is it really necessary for the Post Office to go through 2021 with another controversy?
The Post Office wants to convince people it is genuine about reforming its culture and attitudes. It can argue that it has set up a Historical Shortfall Scheme to compensate sub-postmasters who can establish they made good discrepancies that were not their fault. The scheme has had nearly 2,500 applicants. But it is shrouded in secrecy and sub-postmasters cannot air their grievances in an open courtroom if their claims are over £10,000 and they are dissatisfied with the scheme’s outcome.
The Post Office could also argue that it is listening to sub-postmasters: it is appointing two sub-postmasters to its board. But if the appointees are barred from speaking out if they find their concerns are ignored or side-lined, are the appointments pointless, a public relations exercise?
Mr Justice Fraser remarked on the Post Office’s culture of secrecy. He said in his judgment of March 2019, “There seems to be a culture of secrecy and excessive confidentiality generally within the Post Office, but particularly focused on Horizon.” Has much changed since 2019?
Indeed, the Post Office’s complaint to the Court of Appeal about the two barristers, its opposition to parts of the Criminal Cases Review Commission’s case for the convictions of sub-postmasters to be quashed and its less-than-full exoneration of sub-postmasters who are going through appeals, may indicate that confrontation is etched into the Post Office’s corporate psyche.
Given that disputes related to Horizon are now well into their third decade, under different CEOs and boards, it’s hard to conclude that the Post Office will ever, however much it tries, wean itself off a need for excessive secrecy and confrontation.
A Court of Appeal hearing tomorrow (17 December) may help to determine whether the Post Office IT scandal goes deeper than is generally supposed.
The hearing relates to 47 appeals of sub-postmasters who were convicted on the basis of evidence derived from a faulty computer system Horizon which is installed in about 11,500 post offices. Horizon was built by Fujitsu.
Last week Southwark Crown Court quashed the convictions of six former sub-postmasters who had been prosecuted on the basis of Horizon data. Hundreds of other similar convictions may end up being quashed. Fujitsu and the Post Office had given the impression to courts and juries that Horizon was “robust”. But the High Court last year ruled that Horizon was “not remotely robust” and showed numerous cash shortfalls for which sub-postmasters were wrongly blamed.
The High Court ruling came after former sub-postmaster Alan Bates led a group of 550 former sub-postmasters who sued the Post Office to prove that the institution was wrong to insist that Horizon was robust. The appeal cases follow his successful litigation.
In referring 47 potentially unsafe convictions of sub-postmasters to the Court of Appeal, the Criminal Cases Review Commission gave two sets of reasons. Journalist Nick Wallis reported on the Commission’s arguments on his Post Office Trial website.
In the first set of reasons, the Commission said convictions were unsafe because Horizon evidence used by the Post Office was potentially unreliable. The Commission also argued the Post Office failed to disclose to postmasters what it knew about Horizon’s reliability and did not investigate shortfalls properly before jumping to the conclusion that postmasters had stolen money.
The Post Office does not dispute this first set of the Commission’s reasons. Indeed, the Post Office is not opposing 44 of the 47 appeals.
But the Post Office is likely to oppose the Commission’s second set of reasons. Here, the Commission argues that the Post Office knew it was not possible for sub-postmasters to have a fair trial when evidence about the reliability of Horizon was not presented to court. The Commission also argues that the Post Office knew it was not possible for Subpostmasters to have a fair trial but proceeded anyway.
In this second set of reasons, the Commission says the whole approach to prosecuting subpostmasters was an “affront to the public conscience“.
Tomorrow’s hearing is expected to determine whether the Court of Appeal considers the Commission’s “affront to public conscience” arguments to be relevant in the 47 appeal cases which are due to heard in March next year.
If the Court of Appeal accepts the Commission’s “affront” argument as relevant tomorrow, it may make it harder for Whitehall to manage a deepening scandal. Nick Wallis has reported that Whitehall wanted the whole scandal to “go away”. The “affront” argument also draws attention to systemic defects in the criminal justice system that allowed hundreds of sub-postmasters to be convicted of crimes on the basis of data from a flawed computer system. If accepted by the Court of Appeal, the affront argument may strengthen the hand of sub-postmasters whose lawyers are considering cases of possible malicious prosecution.
If the Court of Appeal rejects the relevance of the affront argument, it may make it easier for ministers and civil servants to argue that injustices happened largely because of a technicality: that sub-postmasters were prosecuted on the basis of incomplete computer evidence. The implication here is that the Post Office and prosecutors had reason to believe crimes had been committed but it has since become clear there were inadequacies in the prosecution’s evidence.
Nick Wallis sets out the Commission’s arguments in an excellent article here.
Government and senior civil servants were complicit in the Post Office IT scandal, with Parliament being misled about their role, according to a £100,000 crowdfunded complaint to the Parliamentary Ombudsman published today.
The complaint refers to the government’s “complicity in the injustices Post Office Limited perpetrated against the Complainants”.
The 72-page report says successive statements in Parliament over the years have amounted to a “continued misleading of Parliament as to what in practice HM Government’s role was in overseeing and regulating Post Office Limited for its heinous actions brought to HMG’s attention time and time again”.
The government wholly owns the Post Office and has had a seat on the board since 2012. Senior civil servants and ministers have a further supervisory role, in part because they provided hundreds of millions of pounds of investment to the Post Office through the business department BEIS.
Almost as soon as Horizon went live in 1999 the system began showing unexplained cash shortfalls in the accounts of some branch post offices.
The Post Office’s head office culture led to an assumption internally that branch shortfalls were to be treated as the fault of sub-postmasters – businessmen and women who ran branch post offices – and not the Horizon system.
Sub-postmasters who complained to the Post Office that Horizon was somehow creating the shortfalls found themselves under suspicion of having stolen the money. The Post Office required more than 2,000 sub-postmasters to make good shortfalls from their own pockets.
But faults in the system that could have caused shortfalls were kept hidden while the Post Office used Horizon’s unreliable data to prosecute sub-postmasters for theft, false accounting and fraud. Some went to prison, most had their livelihoods removed and many had their homes and cars confiscated through Proceeds of Crime orders the Post Office obtained in the civil courts. Juries were given the impression that sub-postmasters were entirely responsible for shortfalls shown on Horizon but jurors were not told of Horizon’s material faults or that Fujitsu IT specialists had the ability to alter, from a remote location, branch transactions and balances. Fujitsu built Horizon and maintains it.
Government knew “at the highest levels”
The complaint to the ombudsman, which was compiled by solicitors Stevens and Bolton, says that government knew at the highest levels that Post Office was carrying out “heinous actions” that were likely to cause harm to sub-postmasters.
The report accuses government of maladministration in “not overseeing and regulating Post Office Limited properly in such manner as to prevent [it] from running amok … and … destroying the lives of the Complainants”.
Former sub-postmaster Alan Bates, a victim of the Horizon scandal, instigated the ombudsman complaint. His 550-strong Justice for Sub-Postmasters Alliance [JFSA] last year won a High Court action against the Post Office. The Alliance’s litigation proved that the Post Office’s Horizon system was not remotely robust and was the cause of numerous shortfalls for which the Post Office wrongly blamed sub-postmasters. The system was built by Fujitsu.
Bates said of the report,
“The Ombudsman complaint is a hard hitting, no holds barred document that we believe utterly condemns HM Government in the way it has conspired with POL [Post Office Limited] over the years to allow it to operate its intimidation of sub-postmasters in order to keep the failures of its Horizon system covered up at any cost.
“The whole matter surrounding Post Office, HMG and the Horizon system will turn out to be the biggest miscarriage of justice in British legal history. We will not stop fighting until we have exposed the real guilty parties.”
The Alliance’s report asks the Ombudsman to recommend that government pay compensation of £300m to include the direct losses of each of the 550 complainants. The amount also includes the £46m costs to sub-postmasters of the High Court litigation.
Government and the Department for Business, Energy and Industrial Strategy (BEIS) have accepted no responsibility for the scandal. Ministerial statements to Parliament say the Post Office misled civil servants about Horizon. But the ombudsman complaint says the government and mandarins allowed themselves to be misled.
“… there was a powerful incentive for HMG [HM Government] to collude with or to allow itself to be deceived by POL [Post Office Limited] to ensure that the complaints registered by a “tiny” number of SPMs would not put at risk the prize of building POL for sale, floating or mutualisation, indeed any exit strategy that would remove the expense of the public corporation providing a national service from HMG’s balance sheet and in doing so recoup the billions of pounds of taxpayers’ money spent on the Horizon system and Post Office network generally …” says the report.
The report adds that the Post Office and ultimately government as its owner adopted a litigation strategy of avoiding being held to account for inaccurate or patently dishonest statements and denials over almost two decades in relation the bugs, errors and defects in the Horizon System and remote access to that system by the operatives from Fujitsu who designed it and maintained it on Post Office’s behalf.
The scandal continues and appears to deepen with new disclosures almost weekly by crowdfunded journalist Nick Wallis, Computer Weekly’s Karl Flinders and the Daily Mail’s Tom Witherow.
The latest disclosures are that the Post Office knew that Fujitsu IT specialists had given inaccurate information about Horizon in criminal trials.
At the end of the ombudsman complaint is a long list of unanswered questions put under the Freedom of Information Act.
The government has set up an inquiry into Horizon but its terms of reference in effect rule out any investigation into the misleading of courts, judges and juries over the system’s robustness. The government’s Horizon inquiry is also excluded in its terms of reference from considering any matter related to the Parliamentary ombudsman.
Former Conservative defence minister Lord Arbuthnot who has campaigned for 10 years on behalf of sub-postmasters affected by the scandal, has described the government Horizon inquiry as a “pathetic response to a national outrage”.
He told Computer Weekly “The Prime Minister promised to get to the bottom of the Horizon scandal. This anaemic review will fail to do that, because it fails to ask the important questions.”
He added, “The purpose of an independent inquiry should be to establish the truth, rather than to protect the government from any suggestion of blame.”
Labour peer Peter Hain said in a Lords’ debate on Horizon that the government had ultimate responsibility for the scandal. “The permanent secretary of the department is the accounting officer for the Post Office, the government has a representative on the board and the government is ultimately responsible for this scandal,” he said. “It is not good enough to keep delaying this with lots of processes and reviews – they have got to be compensated fully.”
The Department for Business, Energy and Industrial Strategy has until 30 November to respond to the complaint. It is expected to be submitted to the ombudsman on 1 December 2020.
Do “offensive” words reveal Whitehall’s antipathy to sub-postmasters whose litigation exposed the extent of the Post Office’s IT scandal? What needs to happen now?
By Tony Collins
Photo: Andrew Buchanan,- Unsplash
Former Conservative defence minister Lord Arbuthnot has asked the postal minister Paul Scully to stop using an “offensive” form of words that appears to blame sub-postmasters – not the Post Office – for damage caused by the “Horizon” IT scandal.
Scully, a former deputy chairman of the Conservative Party, praises the current Post Office board and, in words drafted by civil servants, repeatedly blames the ruined lives of sub-postmasters on the “Horizon dispute” and “litigation” – which sub-postmasters instigated.
The government and Post Office lost the dispute and litigation, an outcome which some civil servants (not all) seem to hold against sub-postmasters.
More than 550 sub-postmasters sued the Post Office to prove that its Horizon IT system had faults for which sub-postmasters were wrongly held responsible. Since Horizon went live in 1999, it showed shortfalls in cash which the Post Office attributed to the dishonesty or incompetence of business people who ran branch post offices – sub-postmasters. The shortfalls led to dismissals, recovery of supposed losses by the Post Office and sometimes criminal prosecutions, bankruptcies and premature deaths from ill health. There were also two documented suicides and several reports of attempted suicides.
The sub-postmasters’ group litigation exposed the public institution’s untruthfulness and fundamental cultural flaws that included an inability to accept any views about Horizon other than its own. The judge in the case Mr Justice Fraser found the Post Office oppressive and secretive. He said its Horizon system had numerous bugs that caused unexplained shortfalls. He also found that Horizon’s supplier Fujitsu had a back-door into branch accounts in which accounts could be changed without the knowledge of sub-postmasters. The existence of this back-door undermined every prosecution for theft, false accounting and fraud where the only evidence of missing money was derived from Horizon.
Mr Justice Fraser
Mr Justice Fraser’s findings are likely to have embarrassed the business department, now known as BEIS, which has always supported the Post Office in maintaining there was no evidence the system was faulty.
Ministers and civil servants may also be embarrassed at their support for the Post Office when it hired four QCs and two firms of solicitors to oppose sub-postmasters. During the trials, the Post Office disparaged individually the “lead” sub-postmasters who challenged Horizon’s robustness, depicting them as liars and fraudsters. The Post Office also disparaged Mr Justice Fraser, saying he was biased.
The Post Office’s criticisms of sub-postmasters – and its uncompromising defence of Horizon – continued up until the day it signed a settlement with litigants in December 2019.
It is unclear whether Whitehall officials, who had supported the Post Office throughout the two years of the case, were able to to change their minds overnight to accept sub-postmasters were not liars and fraudsters and Horizon was not robust.
Indeed, since the settlement, no minister, civil servant or anyone at the Post Office has publicly absolved any individual former sub-postmaster although more than 2,500 were affected by the scandal.
There has also been no Whitehall sympathy for any of the individuals whose Horizon-related convictions the Court of Appeal is to consider quashing.
Although the Post Office has decided not to oppose 44 of the 47 Horizon-related convictions that the Criminal Cases Review Commission has referred to the Court of Appeal, in none of the cases has the Post Office declared it was wrong to have prosecuted in the first place.
Indeed, documents that have come to light since the litigation began in 2017 suggest that Horizon had – and may still have – an unimpeachable status within the Post Office that puts it beyond the ability of anyone to question. The Post Office’s former chief executive Paula Vennells did not receive straight answers when questioning the system’s possible deficiencies and accused sub-postmasters facing imprisonment on the basis of Horizon “evidence” were unable to challenge the system.
Even today, it’s far from clear to what extent Whitehall or the Post Office blame Horizon for the ruined lives of sub-postmasters.
Who’s to blame?
It has fallen to Scully, since becoming postal affairs minister in February 2020, to announce the government’s response to the scandal.
Scully has not criticised the current Post Office board. In his speeches and letters, which are likely to have been drafted by his officials, he appears to make a point of blaming the “Horizon dispute” and “litigation” for the damage caused by the scandal. These were some of his statements he made over seven months that use the same or similar words (my emphasis):
“It is impossible to ignore the financial and emotional suffering that the Horizon litigation process has caused for affected postmasters and their families.”
“It’s impossible to ignore the negative impact that the Horizon dispute and court case has had on effective postmasters’ lives, their livelihoods, their financial situation, their reputations and for some, their physical and mental health”.
“The Horizon dispute and court case has had a devastating impact on the lives of many postmasters.”
“The longstanding dispute and subsequent trials relating to the Post Office Horizon IT system have had a hugely negative impact on affected postmasters and their families…”
“The Horizon dispute had a hugely damaging effect on the lives of postmasters and their families, and its repercussions are still being felt today.
“The Government recognise that the Horizon dispute has had a hugely damaging effect on the lives of affected postmasters and their families, and its repercussions are still being felt today.”
Paul Scully MP, postal affairs minister.
Scully’s letter to Lord Arbuthnot
In a letter to Lord Arbuthnot on 22 October 2020, Scully repeats his claim that the suffering of sub-postmasters was due to the Horizon dispute. Scully said,
“The Horizon dispute[my emphasis] has had a hugely damaging effect on the lives of postmasters and their families, and its repercussions are still being felt today. It is my expectation that Sir Wyn [Sir Wyn Williams, chairman of inquiry into Horizon] will engage broadly and openly to ensure that the Inquiry achieves its aims, as set out in the Terms of Reference. You will have seen Sir Wyn’s letter to prospective participants, which highlights his views on how instrumental cooperation with the Inquiry will be. I am pleased to note that Post Office Ltd., Fujitsu and my Department have all agreed to cooperate fully with the Inquiry.
Lord Arbuthnot’s reply to Scully:
Lord Arbuthnot has campaigned since 2010 for justice for sub-postmasters who were wrongly blamed for Horizon’s bugs, errors and deficiencies. He replied to Scully on 23 October 2020,
“On several occasions now you have said words to the effect of what you say in your letter to me, namely “The Horizon dispute has had a hugely damaging effect on the lives of postmasters and their families, and its repercussions are still being felt today.”
It is possible – I shall give you the benefit of the doubt – that you are unaware of how offensive this is. The implication contained in these words is that the subpostmasters who brought the action have somehow caused the damage that, as the judge found, was in fact caused by the behaviour of the Post Office. In that sense it was not a “dispute”. It was outrageous behaviour by a public body owned, backed and funded by the Government, brought to light by the necessary litigation brought by an incredibly brave group, huge in number, that forced the Government and the Post Office to recognise the failures that they had long denied. Please stop using these words, and recognise that the fault was, as Government ministers including yourself have admitted, not that of the subpostmasters.”
Lord Arbuthnot’s request may be a tough one for Scully’s department to accept. It’s only a form of words but words are the civil service’s currency. Doubtless the words blaming the sufferings of sub-postmasters on the Horizon dispute and litigation were chosen carefully and with good reason.
To sub-postmasters, any suggestion that they somehow inflicted harm on themselves by bringing about the Horizon dispute and litigation is offensive – but it does not seem to be offensive to ministers and the civil service.
Herein, perhaps, lies the gap between the way Whitehall and sub-postmasters see the Post Office IT scandal.
The last thing BEIS officials and postal affairs ministers want to do is criticise is the current Post Office board. The government and civil service support the Post Office’s board in ensuring the network of 11,500 post offices is on a sound commercial footing and have systems in place to guard against fraud and theft.
Officials want their ministers to promote and praise the Post Office board. The political priority is supporting the Post Office to reduce or do without the taxpayers’ subsidy of hundreds of millions of pounds.
It is unlikely, therefore, that any postal affairs minister will ever talk of the Post Office as the perpetrator of the widest miscarriage of justice in the country’s legal history.; and no minister is ever likely to repeat the words of Mr Justice Coulson who was startled by the Post Office’s describing itself as the nation’s most trusted brand and yet considered itself entitled to treat sub-postmasters
“in capricious or arbitrary ways which would not be unfamiliar to a mid-Victorian factory-owner …”
More likely, any speech about the Post Office IT scandal drafted by the civil service will refer to the Post Office network being of vital importance to the country and communities.
Indeed, words and phrases such as bankruptcy, false imprisonment, wrongful confiscations, suicide and suicide attempts are for the world outside the civil service. Inside it, the challenge for those handling the Post Office IT scandal has been how best to replace the word “review” with “inquiry”, which MPs and peers have been demanding,
How the “review” officials were planning came to be upgraded to an “inquiry” is remarkable. Perhaps with a nod to Yes Minister, the Department for BEIS called their review an inquiry on the basis of its reduced scope. Now, almost buried inside the inquiry’s terms of reference, is a new list of what is “out of scope”:
“The Inquiry will consider only those matters set out in the preceding sections A-F. Post Office Ltd’s prosecution function, matters of criminal law, the Horizon group damages settlement, the conduct of current or future litigation relating to Horizon and/or the engagement or findings of any other supervisory or complaints mechanisms, including in the public sector, are outside the Inquiry‘s scope.”
There are other subtleties in the inquiry’s terms of reference few would notice but which, like the words Lord Arbuthnot rightly objects to, reveal BEIS’s elegant unconcern for the campaign for justice.
One illustration: in the litigation, the Post Office and Fujitsu did not tell the truth to the High Court even though their witnesses were under oath. The Post Office also made strenuous legal attempts to withhold relevant evidence and its lawyers argued (unsuccessfully) to withhold large parts of the other side’s evidence. But in the BEIS “inquiry”, there is to be no compulsion for the Post Office or Fujitsu to tell the truth or make evidence available.
Indeed, the terms of the reference say merely that the inquiry will obtain “all available relevant evidence from Post Office Ltd, Fujitsu and BEIS”. This sentence is, from a BEIS viewpoint, usefully vague, non-confrontation and non-disruptive. No definition is given for “all”, “available” or “relevant” and indeed if evidence is not disclosed in the first place, no judgment need be made over what is meant by “all”, “available” or “relevant”. As there is to be no cross examination of witnesses and the inquiry has a deliberately non-confrontational, confidential approach, it is left to BEIS, the Post Office and Fujitsu to decide what evidence is “all”, “available” and “relevant”. Some or much Post Office material might have been destroyed: it’s not kept indefinitely. There’s no compulsion to produce a single email unless lawyers for the Post Office, Fujitsu or BEIS deem it relevant.
Another vague and perhaps disingenuous objective for the inquiry is to seek to “assess whether lessons have been learned and that concrete changes have taken place, or are underway, at Post Office Ltd”. But the Post Office has already made what could be interpreted as concrete changes. A new non-statutory framework contract with sub-postmasters is one. Another is a place on the board for a sub-postmaster. It’s unclear whether a year-long inquiry is needed to ascertain whether such changes are concrete.
But perhaps for the government and civil service, the most vital part of the inquiry’s terms of reference are its exclusions.
It will not look at whether the Post Office actively stopped the courts having evidence of Horizon’s most serious faults while sub-postmasters facing imprisonment were in the dock watching their lawyers trying unsuccessfully to challenge the integrity of the system’s data.
It will not look at whether the Post Office’s prosecution teams had a commercial interest in choosing criminal charges that suited a subsequent Proceeds of Crime civil case.
It will not look at whether the Post Office was uncertain any money had been taken when it obtained court orders that made sub-postmasters such as Lee Castleton bankrupt and, in many cases, confiscated homes, businesses and cars.
It will not look at whether hundreds of government-owned arm’s length bodies such as the Post Office are able to conduct themselves in the way Mr Justice Fraser described: as if answerable to nobody.
The inquiry will not look at whether the Post Office ought to return in full money it wrongfully demanded from sub-postmasters.
Indeed, the inquiry will not look at refunding the £46m sub-postmasters paid in litigation costs to expose the Post Office IT scandal. In recent weeks there have been very vague hints to sub-postmasters that the question of compensation will be looked at if they agree to participate in the inquiry. But it’s far from clear that the inquiry could, or would, seriously consider compensation or whether officials instead simply want a long and credible list of participants to be published in the final report.
Even the title of the inquiry is usefully vague. Boris Johnson described what had happened to sub-postmasters as a “disaster” and a “scandal”. Commons leader Jacob Rees-Mogg said there was no worse scandal than imprisoning people for crimes they did not commit.
But the words “scandal” and “disaster” are nowhere in sight when it comes to the title of the inquiry. Indeed, the title suggests the inquiry is little more than an investigation into an IT system:
The point of the inquiry is also far from clear. It will publish a list of the Post Office’s failings. But Mr Justice Fraser last year published a list of the Post Office’s failings in a set of rulings that, he said, were nearly the length of Tolstoy’s War and Peace.
And it’s unclear what Scully and BEIS mean when they say that the Post Office will cooperate with the inquiry. Will the Post Office’s evidence to a non-statutory inquiry be more prolific than its evidence to a statutory inquiry – the High Court?
An uncharitable view of what cooperation could mean for the BEIS inquiry may be gleaned from some of the comments of Mr Justice Fraser and Mr Justice Coulson made about the Post Office’s evidence to the High Court:
“Continually changing nature of he Post Office’s arguments…”
“Scattergun way the original application was made …”
“Betrayed a singular lack of openness on the part of the Post Office and their advisors…”
“It is misconceived to criticise the judge in this case because he was aware of certain deficiencies in the Post Office’s approach to documents and other evidence…”
“It made sweeping statements about the trial and the judgment which were demonstrably wrong. ..”
“… The Post Office ascribed various findings or conclusions to the judge which, on analysis, form no part of his judgment.”
“… The Post Office takes such findings ‘either wholly out of context, mis-stated, or otherwise not correctly summarised’.
Orwell said that political language was designed “give an appearance of solidity to pure wind”.
Pure wind is, perhaps, an apt description of the Horizon inquiry’s terms of reference. From a Whitehall viewpoint, is the inquiry’s main purpose to put on hold a very awkward scandal for another year?
In a previous post, we called it a “Starbucks Inquiry” because it seems to involve little more than a confidential chat about Horizon with lawyers from BEIS, Fujitsu and the Post Office. But the narrow terms of reference make it more insidious than that.
When Post Office investigators and police knocked on a householder’s door at 3am expecting to handcuff a 19 year-old and take her for questioning about stolen money she knew nothing about and later put her in the dock on the evidence of a computer system whose flaws were hidden deliberately, is a Starbucks inquiry that cannot consider her case an adequate response?
She told BBC Radio 4’s File on 4:
“I was crying, I was hysterical. You know, my family were sat there watching me. They made me feel like a real big criminal. They made me feel like a real big criminal. I had a set of handcuffs to both of my hands, so my hands were tied together, then I had a handcuff to one officer one side and one officer the other side, and obviously I wasn’t allowed to see my family. The only thing I had was a note from them all… and then I was placed in this vehicle with no idea where I was going, and then someone told me I was going to Holloway.”
The victim, Tracy Felstead, has spent half her entire life with a criminal conviction she did not deserve. Is any inquiry into the Post Office IT scandal that specifically excludes consideration of her wrongful prosecution – and all similar prosecutions – worthy of the title “inquiry”?
It’s to be expected that the state apparatus in China or North Korea would blame the harm done to law-abiding citizens on the victims themselves but we ought not to expect it of Whitehall officials and ministers.
Horizon’s cult following?
Since its inception, perhaps because of the great enthusiasm of its designers and early supporters, Horizon has acquired a status in which challenges to its robustness have been regarded as unacceptable. Still today, some in government talk of the current version of Horizon as if it could do no wrong.
How were Horizon’s genuine or professed supporters able to bear down with a life-changing effect on individuals who challenged the system? It’s perhaps unsurprising, therefore, that now, after 20 years of the cult-like support of Horizon, the state has set up an inquiry into Horizon that is could hardly be more removed from the commonly-held notion of a public inquiry. That it is ought to be a public inquiry but is going to be held mostly in private, has extraordinarily narrow terms of reference and does not allow cross examination, puts it in the realms of Orwell’s 1984 slogans: war is peace, freedom is slavery, ignorance is strength.
Had it not been for the persistence of campaigning former sub-postmaster Alan Bates, the Post Office could still be putting Horizon dissenters into the dock. It is only because of Bates’s dogged disputing of Horizon’s robustness and the group litigation he instigated against the Post Office that there is an inquiry about to start. If Orwell were alive today and a journalist reporting on the Post Office IT scandal. he would not, perhaps, be in the least surprised that officials and ministers are blaming the suffering of individual sub-postmasters on the Horizon dispute and litigation.
Not too late for justice
Civil servants and ministers could recover respect by taking in the main messages from Mr Justice Fraser’s rulings. Implicitly, in his millions of words, Fraser J seemed to saying that two things in particular need to happen:
That the events he describes draw, in outline, miscarriages of justice on a shocking scale that have devastated lives in ways that are hard to imagine or convey in words. This needs to be formally acknowledged.
Financial reparation needs to be paid to sub-postmasters, consistent with the harm done. This is the least a genuinely contrite government can do for those it has grievously wronged. Financial reparations must, if right is to prevail over state-sanctioned wrong, be over and above the actual sums taken from law-abiding sub-postmasters.
There need be little more in the government inquiry than an acceptance of these two messages from the Horizon trials. Financial reparation would, in itself, provide an effective lesson for government, Downing Street officials and mandarins. Whitehall is more likely to learn lessons from making payments to victims of the Post Office IT scandal than anything written in an inquiry report that’s destined for the shelf.
But as things stand, Scully’s review excludes both points – the miscarriages of justice and financial reparation. It is extraordinary that Parliament allows BEIS and ministers to set up an inquiry into Mr Justice Fraser’s findings that excludes the two main messages his rulings convey.
Justice in this case will be costly. Indeed, it will be hard for ministers and civil servants to find the money to make amends properly. But such difficulties are as nothing compared with the sufferings of sub-postmasters.
An apology on a piece of paper or official statement is worthless. Let the victims have some costly contrition.
Court of Appeal – battle royale – Nick Wallis’ PostOfficeTrial website
NHS trust takes another look at its appointment of IT scandal CEO – Karl Flinders, Computer Weekly
A public inquiry in 2003 that involved the intelligence, security and defence communities was more open than the largely-private format of an impending “inquiry” into the Post Office IT scandal.
The Post Office inquiry was arranged by Downing Street and officials at the Department for Business, Energy and Industrial Strategy [BEIS].
BEIS helps to fund the publicly-owned Post Office. But the Department’s officials and ministers are said to be implicated in the IT scandal because, for 20 years, they rejected complaints by MPs and peers that the Post Office’s Horizon system was flawed and its unreliable “evidence” was being used to send people who had committed no crimes to prison and to confiscate homes, businesses and cars.
Successive business ministers and the department’s officials did not effectively challenge assurances by the Post Office that its Horizon branch accounting system was robust. Horizon was built by Fujitsu and went live in 1999.
Twenty years later, in December 2019, the High Court confirmed that Horizon had numerous bugs, errors and defects that caused shortfalls on branch post office accounts. Mr Justice Fraser, head of the High Court’s Technology and Construction Court, ruled that Horizon was “not remotely robust” and that sub-postmasters – business people who ran branch post offices – were wrongly held responsible for shortfalls that were generated by Horizon. The Post Office has contracted Fujitsu to maintain and enhance Horizon and fix bugs.
But it has emerged, largely as a result of High Court litigation, that the Post Office and Fujitsu concealed Horizon’s problems from the courts while sub-postmasters went to jail and lost tens, and sometimes hundreds, of thousands of pounds on the basis of money shown to be missing on Horizon.
Following the High Court’s criticisms of the Post Office, Fujitsu and Horizon, Boris Johnson agreed to hold an independent inquiry but journalist Nick Wallis reported in July this year that civil servants did not want any review or inquiry into Horizon. Wallis reported that he had a call from a senior person in government who told him about plans for a Horizon review:
“… we are limited in what we can do – the terms of the review were kicked between BEIS and No 10 before they finally reached an agreement on what the terms should be and how it should be structured, but the officials [civil servants] weren’t happy with anything. They didn’t want a review; they didn’t want an inquiry or anything. They wanted it all to go away.”
Now it has emerged that the format of the Horizon “inquiry” bears little or no resemblance to other public inquiries. Wallis has established that the Horizon inquiry is not in public; it will have confidential “consultations” rather than open hearings that are covered by TV, radio and other news journalists. The consultations will not be transcribed and the inquiry will not publish evidence it has received.
This is in marked contrast to a public inquiry in 2003 that dealt openly with evidence from intelligence and defence personnel.
The “Hutton” inquiry in 2003 lasted only six months from start to publication of a report of 750 pages which included Downing Street, civil service and government press office emails, letters, statements, aide memoires, investigation notes, interview memos, details of conflicts in evidence, transcripts and 18 appendices.
The Horizon inquiry will publish none of this. It is also due to take longer than Lord Hutton’s inquiry but produce a much shorter report. The Horizon inquiry’s secretariat told Wallis that the evidence will be acquired “via a combination of formal and informal consultations and information requests”. In line with the apparent informality of the Horizon inquiry, the secretariat described those who give evidence as “participants” although those who appear before conventional public inquiries are usually termed “witnesses”. The secretariat also told Wallis,
“The final Report will refer to evidence it has relied on but the Inquiry will not publish the evidence it has received.” The Horizon report will, though, “provide a thorough summary of the Inquiry’s findings”.
BEIS officials have found a retired judge, Sir Wyn Williams, to chair the Horizon inquiry. He is likely to face criticism that the inquiry is of no benefit to victims of the scandal and it appears formatted to show the current Post Office board in a positive light and direct any criticisms at past CEOs, directors, staff and management.
Indeed, some officials may see the inquiry as little more than a political expedient to manage Parliamentary expectations amid what is being described as the widest miscarriage of justice in the country’s legal history.
If the Horizon inquiry is a political expedient only, it would mean victims of the IT scandal need not have a primary role in its consultations. Indeed, junior ministers announced the Horizon inquiry after receiving assurances the Post Office and Fujitsu would cooperate but without any such assurance of co-operation by the main group representing victims of the scandal, the Justice for Subpostmasters Alliance. Former sub-postmaster Alan Bates runs the Alliance. He instigated the High Court litigation that exposed the extent of the scandal and led to the government’s promise to set up an inquiry.
Since the litigation ended last year with findings that proved sub-postmasters’ complaints were right about Horizon and, by implication that BEIS officials were wrong to defend the system, junior ministers and the civil service have appeared anxious to limit the fall-out from the High Court case. This may be why the Horizon inquiry is not intended to ask wider questions raised by Mr Justice Fraser in the Bates v Post Office litigation. The judge found that the Post Office acted as if answerable to nobody which raises wide-ranging questions of how a publicly-funded institution was allowed to serve its own interests by prosecuting innocent people and using the courts to confiscate sub-postmasters’ possessions and make some of them bankrupt.
But the Horizon inquiry’s updated terms of reference exclude consideration of the way prosecutions were conducted and flaws in the criminal justice system that allowed hundreds of people to be convicted on the basis of data from a flawed computer system. And the inquiry’s terms of reference confine matters under consideration to the Post Office alone. The inquiry is not allowed to look at the lack of accountability and effective scrutiny of Arm’s Length Bodies such as the Post Office by civil servants. Government departments are responsible for hundreds of Arm’s Length Bodies.
Even before Wallis established that the Horizon inquiry is not in public, it had already been branded a “whitewash” by MPs, peers, sub-postmasters and others. Former Defence minister Lord Arbuthnot, who has campaigned for justice for victims of the scandal since 2010, said the government review “is a pathetic response to a national outrage”. He told Computer Weekly,
“The Prime Minister promised to get to the bottom of the Horizon scandal. This anaemic review will fail to do that, because it fails to ask the important questions. The purpose of an independent inquiry should be to establish the truth, rather than to protect the government from any suggestion of blame.”
Fury over Post Office ‘whitewash’: Victims fear probe into postmasters IT scandal will be toothless
In a similar vein, below is an excerpt from a letter written yesterday to Scully from Labour’s Chi Onwurah, shadow digital, science and technology minister, Ed Miliband, shadow secretary of state for business and Lord Falconer, shadow attorney-general.
The letter calls for the Horizon inquiry’s remit to be expanded to include compensation for victims of the scandal. It said that if justice is to be done, the inquiry must be able to consider what further payments be made to sub-postmasters beyond the “derisory” amounts they received in the Post Office’s litigation settlement. Most of the £57.75m settlement figure went in litigation costs.
Below is part of Labour’s letter to Scully,
Also, BBC Politics North this week quoted former sub-postmasters as saying the inquiry would be toothless and a whitewash.
The BBC item included comments of Lee Castleton who went bankrupt after the Post Office claimed £321,000 in legal costs from him following a Horizon shortfall of about £36,000.
But business minister Paul Scully has said he wants the inquiry to be “reasonable in its timing and extensive in its remit so that we can get to the bottom of this as quickly as possible”.
Not a proper inquiry?
The Hutton inquiry had no list of exclusions – things that were out of scope – but the Horizon one does. One of the specific exclusions in the Horizon inquiry’ is consideration of the settlement payment. The exclusion means that Sir Wyn Williams is not allowed to consider whether sub-postmasters ought to be paid their £46m litigation costs.
A further difference between the Hutton and Horizon inquiries is that those invited by Lord Hutton to attend had no reason to refuse. But the Justice for Subpostmasters Alliance is refusing to take part because of the Horizon inquiry’s narrow terms of reference. Forensic accountants Second Sight, who are independent experts on Horizon’s problems as they affected sub-postmasters – which is the main topic under consideration in the Horizon inquiry – is also refusing to take part.
An inquiry into Horizon that’s as secretive as the Post Office?
According to Scully, one reason for the inquiry was to see if the Post Office has learned from the criticisms of Mr Justice Fraser.
But one of the judge’s most often-repeated criticisms was of what he called the Post Office’s “culture of secrecy and excessive confidentiality” – a criticism that MPs, peers and others are likely to make of the Williams inquiry.
Three times in one judgment, Mr Justice Fraser used the phrase “culture of secrecy” when referring to the Post Office. He also criticised the Post Office for citing the Official Secrets Act in its dealings with a sub-postmaster. The judge said, “I find it somewhat unusual, and potentially oppressive, that the Post Office could seek to use the Official Secrets Acts in this way. I do not see how, in a routine case, these Acts could possibly apply in the way suggested by the Post Office in this contract.”
The Hutton inquiry hardly mentioned the Official Secrets Act although some of its evidence related to secret and, at times, top secret defence-related information.
It’s unclear how the Williams inquiry will be able, with credibility, to comment on Mr Justice Fraser’s criticisms of Post Office secrecy when the inquiry he chairs is likely to face the same criticism.
TV, radio, online and newspaper coverage?
It is also unclear whether there will be any provision at the Williams inquiry for TV, radio or general news journalism coverage. Wallis said,
“I also repeated my original request, which had gone unanswered – where do journalists fit into all of this? How are we expected to cover the inquiry? The email I got back was worrying: ‘While we agree that gathering original testimony about the impact that this matter has had on the lives of many postmasters is important, we will also seek to do this in a way that respects the content and confidentiality of such accounts, as indicated by individuals’.”
With regards to the media, he was told,
“We are actively considering how to enable openness and media scrutiny while paying appropriate attention to the confidentiality concerns of individuals who provide information.”
Perhaps the most apt formal title for the government inquiry into the Post Office IT scandal – and the most appropriate title for the cover of the final report – would be “The Starbucks Inquiry”.
This would tie in with the format of an inquiry that seems designed by the civil service to be little more than a socially-distanced chat over coffee between Sir Wyn and lawyers from the Post Office and Fujitsu.
That the Horizon inquiry exists at all is because of the outcome of litigation instigated by Alan Bates and the Justice for Sub-postmasters Alliance. But ministers and BEIS officials seem untroubled by the absence of the Alliance and Second Sight. They also seem untroubled by criticisms that the inquiry is pointless. Indeed, over the 20 year life of the Post Office scandal, one of the most consistent reactions of ministers and officials has been indifference to the concerns of sub-postmasters and deference to the Post Office.
Since the High Court judgments, that indifference seems to have turned to undisguised confrontation between officialdom on one side and sub-postmasters and their supporters in Parliament on the other: victims have called for a full judge-led public inquiry but Downing Street and BEIS officials have set up an inquiry that surrenders not one inch of ground to victims.
Indeed, the Starbucks Inquiry excludes all that matters and includes all that doesn’t.
Labour’s Chi Onwurah, Lord Falconer and Ed Miliband warn that the Horizon inquiry may be “doomed to fail” but they are likely to perceive failure in a different way to the civil service.
To MPs and peers campaigning or justice for victims of the IT scandal, the Horizon inquiry will fail if it doesn’t recommend paying the sub-postmasters’ £46m litigation costs, if it points to historical failings only without holding anyone accountable today, if it avoids looking at the conduct of BEIS, the Post Office and Fujitsu during the litigation between 2017 and 2019, if it avoids identifying who was responsible for allowing litigation costs to escalate at the expense of sub-postmasters and if it avoids questions about whether those involved in prosecutions knew sub-postmasters had committed no crimes and that Horizon was faulty when they put sub-postmasters in the dock and sought Proceeds of Crime orders for confiscation.
But from a civil service point of view, the Horizon inquiry may be a success if it points to historical failings only, avoids looking any implications of the costs of the litigation or the conduct and decisions of BEIS and ministers during the trials and avoids any questions about the conduct of prosecutions.
One remarkable aspect of the Horizon inquiry?
In one respect only is The Starbucks Inquiry remarkable – its audacity in terms of the format. Only Whitehall, perhaps, could be comfortable setting up a public inquiry that’s almost entirely held in private.
When Labour MP Kate Osborne asked Boris Johnson if he would commit to an independent public inquiry over the Post Office IT scandal, Johnson replied, “I am indeed aware of the scandal to which [Osborne] alludes and the disasters that have befallen many Post Office workers, and I am happy to commit to getting to the bottom of the matter in the way that she recommends.”
Fortunately for business ministers and their officials, “get to the bottom of” has no defined meaning in the civil service lexicon of policy implementation.
At least Starbucks won’t have to accommodate any stenographers, recording equipment or journalists. All the more room for lawyers.
What about victims, you may ask. What about them? replies Whitehall.
Junior business minister Paul Scully has held an online meeting to ask the victims’ group, Justice for Sub-postmasters Alliance, to join a government “inquiry” into the Post Office’s Horizon system. The meeting was said to have been “pointless”.
It’s unclear whether, from Scully’s viewpoint, the meeting was anything more than a tick-box exercise. Scully is aware that MPs, peers and victims of the Post Office IT scandal have branded his inquiry a whitewash even before it has started.
Details of his online meeting with Alan Bates, head of the Justice for Sub-Postmasters Alliance, are in an email sent to the Alliance’s members, a copy of which has been seen by Campaign4Change.
Scully announced a “review” – which was later renamed an “inquiry” – after litigation in the High Court established that sub-postmasters were wrongly blamed for balance “shortfalls” shown on Horizon. Fujitsu built Horizon and has run it for the Post Office since it went live in 1999.
The litigation between the 550 members of the Justice for Sub-postmasters Alliance and the Post Office confirmed that Horizon, which is installed in all 11,500 post offices, had numerous bugs, defects and errors that caused the shortfalls.
About 900 sub-postmasters were prosecuted for theft, false accounting on the basis of Horizon’s “evidence” that money was missing. But many shortfalls in branch balances were computer- generated and did not actually exist. The Post Office confiscated homes, cars and businesses on the basis of Horizon evidence.
Lives were ruined as sub-postmasters were imprisoned or left destitute or both. The High Court case exposed the extent of the scandal but cost sub-postmasters £46m which they are seeking to recover from the government and the Post Office. Scully’s inquiry specifically excludes any consideration of repaying the £46m.
The scandal is further compounded by ministers telling victims in essence that, now they have spent £46m proving that the criminal justice system is blighted by a plethora of unfair trials, there are legal processes in place to compensate them if they go to court again and succeed in proving, at a cost that will reduce any compensation they receive, that prosecutors got it badly wrong in their particular case. All of which prolongs the scandal and adds to costs.
Scully’s “inquiry” excludes all matters to do with the wrongful prosecutions. It is being branded a whitewash because of its narrow terms of reference and because it is not set up to cross-examine witnesses or compel the disclosure of emails or documents. It was the rigorous cross-examination of witnesses during trials in the High Court case that brought out the truth about Horizon. The judge in the case, Mr Justice Fraser, criticised the Post Office and Fujitsu’s written and verbal evidence.
Justice for Sub-postmasters Alliance has refused to take part in the inquiry, as have forensic accountants Second Sight who have an in-depth knowledge of the scandal.
Lack week Sir Wyn Williams, whom Scully’s department BEIS found to chair the inquiry, made a personal appeal to sub-postmasters to participate. Now it’s Scully’s turn for a personal appeal.
Alan Bates, head of the Alliance, said in his email to members,
“I was recently contacted by the Minister’s office (Paul Scully) as he was ‘keen to have a short call with you [me], today or tomorrow, to discuss the announcement and Inquiry’. My response was the same as the last time a request had arrived from his office. I replied ‘I must make it clear that any discussion with the Minister would first have to be about the mechanism for repayment of the costs the 555 Post Office victims have so far had to pay to expose the truth behind the Post Office scandal’.
“I then received details for the online meeting which took place earlier this week. You won’t be surprised to hear repayment was not discussed, only a very vague reference that if we took part in his inquiry at some point it might be touched upon (however the very terms of their inquiry specifically exclude such discussion).
“Needless to say it was a pointless meeting as he only wanted to talk about the Group taking part in his inquiry, something we have told him that we would never ever do.”
Bates described the inquiry as a “Government Whitewash Review”. His email said the inquiry needed to be able to “make recommendations as to compensation which should be paid by Post Office Ltd, Fujitsu and HMG to the Group to reflect what their legal liability …”
The inquiry, said the email, also needed to pay the legal costs of the Group to enable witnesses to be cross-examined. Bates’ email said it was “only under cross-examination of POL [Post Office Ltd] and Fujitsu witnesses” in the litigation that the truth started to appear because in many cases the “written statements turned out to be highly dubious or worse”.
Historical Shortfall Scheme – “HSS Titantic”?
The email to Alliance members also raised the question of whether government is telling the truth over how the Post Office has been paying the legal costs of defending Horizon and funding the Historical Shortfall Scheme which has been set up to compensate former sub-postmasters who were unfairly required to pay for Horizon-generated shortfalls out of their own pockets. More than 2,200 former sub-postmasters have registered with the scheme.
Bates’ email said,
“It also seems that the ill-fated Post Office’s Historical Shortfall Scheme (seems it is becoming known as the HSS Titanic), now with over 2,200 applicants, is planning to pay £1,200 to each applicant in order for applicants to take legal advice over any offer POL [Post Office Ltd] makes. That could mean another £2.5m without even considering the actual compensation for 2,200 claims and paying the army of lawyers sifting the paperwork…
“My guestimate is that POL has spent at least £150m over the years through to the Settlement Agreement. Then there are all these other Schemes POL has, so when you include compensation and hiring a battalion of legal professions and all those who are heading to have their convictions overturned and compensation in their cases, POL may well have spent at least another £100m.
“Where is all this money coming from? The official position seems to be that POL is paying for it from its revenue. Yet according to POL’s annual accounts, up until 2017 it had never returned a profit, and even totalling its profits for 2017, 2018 and 2019 it only comes to around £100m (its 2020 accounts probably won’t be published until 2021). Don’t forget these 3 years of profits come after many years of losses of hundreds of millions of pounds, which there is no sign that it has ever paid back.
“With bills of £250m and POL’s profits totalling around £100m, where has all the rest of the money come from?
“Throughout this year, the MP Kevan Jones has submitted a number of Written Parliamentary Questions to BEIS and some of those related to costs, for example:-
“Question – To ask the Secretary of State for Business, Energy and Industrial Strategy, whether a Ministerial Direction was ever sought by his Department’s Accounting Officer on the regularity, propriety, value for money or feasibility in respect of spending incurred by Post Office Limited during its Horizon IT system litigation case.
“Minister’s Answer – No Ministerial Direction was sought on this matter. Post Office Limited (POL) handled the defence of the Group Litigation as operational matters are an exclusive responsibility for the Company, as outlined in the Framework Document.
“All costs in doing so, including legal costs and the settlement in December 2019, were paid using funds from POL’s commercial revenue. BEIS sought and received assurance throughout the process that no public funding was used to contest the litigation.
“Question – To ask the Secretary of State for Business, Energy and Industrial Strategy, what conditions were attached to the decision of HM Treasury to allow UKGI [UK Government Investments] to use public funds to be used to contest the case Bates v the Post Office.
“Minister’s Answer – Post Office Ltd. (POL) handled the defence of the Group Litigation. All costs in doing so, including legal costs and the settlement in December 2019, were paid using funds from POL’s commercial revenue. BEIS sought and received assurance throughout the process that no public funding was used to contest the litigation.
“Question – To ask the Secretary of State for Business, Energy and Industrial Strategy, how much has been paid from the public purse to individual sub-postmasters since the group litigation settlement on the Horizon IT system on 12 December 2019.
Minister’s Answer – On 11 December 2019, Post Office Ltd reached a settlement of £57.75m to conclude the Horizon litigation claim. No government money was used to fund the settlement or the related litigation. These were fully funded by Post Office Ltd from its commercial revenues.”
Bates’ email added,
“According to the Minister, the government is not paying for anything, and we know POL hasn’t made enough profits to afford to pay the bills, so where is the money coming from?”
The email says that the Post Office receives hundreds of millions of pounds from government to subsidise the running of the post office network – a subsidy that is separate from any major grants for capital programmes.
It asks whether the Post Office has been using any of this subsidy to fund Horizon-related spending. It says, “Somebody needs to find the real answers about how POL is financing everything and what the true costs are, and have been over the years.”
Scully has a difficult job. Ministers are temporary appointees who are nominally in charge of complex organisations. That complexity delivers them helplessly into the hands of their civil servants who, for 20 years, have sided with the Post Office against sub-postmasters who’ve challenged Horizon.
At least Whitehall officials have a sense of humour. In upgrading their much-criticised “review” into an “inquiry”, they have added a list of specific exclusions – things that are outside its scope. That wrongful prosecutions are outside the inquiry’s scope is, arguably, a little like excluding questions about cladding from the Grenfell inquiry.
The Horizon scandal, among other deficiencies, draws attention to two things in particular: the first is an evaporation of the right to a fair trial which is a foundation stone for any civilised society and the second is a lack of fair compensation for the scandal’s victims. Ministers and their officials have set up an inquiry that excludes both.
What, then, is the purpose of the inquiry? Perhaps it has been set up to help close down a national scandal gradually while those who were involved move on.
The Justice for Sub-postmasters Alliance and Second Sight are to be applauded for not dignifying it by participating. Indeed, if future students of public affairs look back on the Horizon scandal, they may take a bemused view of the government’s undisguised indifference to the widest miscarriage of justice in this country’s legal history.
Those students would be entitled to ask how it was possible, given the need for any self-respecting democracy to protect the right of every citizen to a fair trial, that hundreds of people were wrongly convicted on the basis of misplaced confidence in a flawed computer system and the victims were then asked to participate in a government inquiry into the flawed computer system provided they didn’t mention their wrongful prosecutions.
Sub-postmasters have reached this stage in their campaign for justice because they by-passed civil servants, ministers and the Post Office and went to the High Court for redress.
Their only chance of justice now is, again, to avoid civil servants, business ministers and the Post Office and look to Parliament, the Parliamentary Ombudsman and those at the top of government for redress. Why would any sub-postmaster want to help an inquiry whose narrow terms of reference, list of exclusions and non-public hearings are the very repudiation of an open and unfettered search for the truth?
A succession of ministerial speeches which were drafted by civil servants in response to the Post Office IT controversy, use a consistent form of words when attributing blame. On one interpretation, the form of words suggest that victims of the scandal – sub-postmasters – may be the cause of their own misfortunes.
Campaigning sub-postmasters, led by Alan Bates, exposed the scandal that was unwittingly or wittingly concealed for nearly 20 years by parts of the civil service and successive ministers. It was sub-postmasters who brought litigation that cost the Post Office more than £100m in costs and settlement. And it was sub-postmasters whose enduring dispute with the Post Office over faults in its Horizon system has brought the institution into disrepute and embarrassed parts of the civil service that allowed what MP Andrew Mitchell this week called a “monstrous injustice”.
Are civil servants, through their minister, therefore blaming the scandal on the litigation and Horizon dispute which sub-postmasters instigated?
Below are six potentially contentious ministerial statements, over a period of six months, which have a consistent form of words when attributing blame. Ministerial speeches and statements are usually drafted by civil servants who are likely to be very careful in their choice of words. Each ministerial statement appears to suggest that the cause of the ruined lives of sub-postmasters was not the Post Office which wrongly prosecuted sub-postmasters and confiscated their homes, businesses and cars on the basis of computer-generated shortfalls that did not actually exist. Instead, the statements appear to blame sub-postmasters for bringing the litigation and disputing Horizon’s robustness. The emphasis in the minister’s statements is mine.
March 2020 – ministerial statement
“It is impossible to ignore the financial and emotional suffering that the Horizon litigation process has caused for affected postmasters and their families.” [My emphasis]
June 2020 – ministerial statement
“It’s impossible to ignore the negative impact that the Horizon dispute and court case has had on effective postmasters’ lives, their livelihoods, their financial situation, their reputations and for some, their physical and mental health”.
June 2020 – Ministerial announcement of review into Horizon
“The Horizon dispute and court case has had a devastating impact on the lives of many postmasters.”
June 2020 – Ministerial announcement
“The longstanding dispute and subsequent trials relating to the Post Office Horizon IT system have had a hugely negative impact on affected postmasters and their families…”
September 2020 – ministerial announcement
The Horizon dispute had a hugely damaging effect on the lives of postmasters and their families, and its repercussions are still being felt today.
October 2020 – Ministerial statement, House of Commons
“The Government recognise that the Horizon dispute has had a hugely damaging effect on the lives of affected postmasters and their families, and its repercussions are still being felt today.”
No ministers, in their remarks on the scandal, have disowned the Post Office’s misleading and inaccurate statements to the High Court last year, or the Post Office’s decision to try and remove the judge managing the case, or the stepping-up of the Post Office’s part in the litigation after a lost judgment in March 2019
About 550 sub-postmasters sued the Post Office to prove that the institution’s Horizon accounting system, built and run by Fujitsu, was to blame for balance shortfalls for which they were held liable. Sub-postmasters won the case in December 2019. The judge in the case, Mr Justice Fraser, found that Horizon had numerous bugs, errors and defects and that sub-postmasters were wrongly blamed for shortfalls shown on Horizon. Hundreds of sub-postmasters might have been wrongly prosecuted on the basis of evidence from a flawed Horizon system. More than 2,200 sub-postmasters might have paid the Post Office for Horizon-generated shortfalls that did not actually exist.
The scandal has left the civil service with the job of drafting ministerial speeches for Horizon debates in the House of Lords and House of Commons and also drafting Parliamentary answers to some difficult written questions that are presented to officials almost daily.
Ministers and the civil service lost the High Court case too. It was not just the Post Office. Do civil servants, consciously or unconsciously, therefore hold a grudge against those who defeated them to expose the breadth and depth of the Horizon scandal?
Indeed, there is little or nothing that ministers or officials have said or done, since Horizon went live in 1999, that has ended up of benefit to sub-postmasters who have complained about Horizon.
In recent months, the civil service has written conspicuously narrow terms of reference for a government “inquiry” into Horizon. The terms specifically exclude the two most controversial aspects of the scandal: how up to 900 questionable prosecutions based on evidence from a flawed computer system came about and why the Post Office’s payment to settle the litigation left the litigants with huge losses from the scandal. In many cases the losses of Horizon victims run into hundreds of thousands of pounds.
But ministers and civil servants continue to reject sub-postmasters’ every request, including requests for a statutory public inquiry into what campaigning peer Lord Arbuthnot has called a “national outrage”. Ministers have also refused to pay postmasters their £46m litigation costs. In contrast, ministers and civil servants continue to give unequivocal support to the current Post Office board, as have their predecessors.
How will victims of the scandal ever recover their losses if parts of government hold a grudge against them?
Sir Wyn Williams, chairman of a government “inquiry” into the Post Office Horizon IT system, has made a personal appeal for co-operation and warned that non-cooperation may frustrate the inquiry’s aims and ambitions.
His appeal is directed implicitly at the Justice for Sub-Postmasters Alliance, which represents victims of the Post Office IT scandal. But the Alliance, which is run by campaigning former sub-postmaster Alan Bates, will not take part. Bates sees no point in the inquiry.
Paul Scully MP, postal affairs minister
On the same day as Sir Wyn’s appeal for co-operation, the postal affairs minister Paul Scully made a similar plea in a Commons debate on the Post Office Horizon system.
But Scully rebuffed MPs who branded his inquiry a whitewash and he did not answer directly most of their questions.
Without the participation of the Alliance and Second Sight, the inquiry will be seen as an embarrassing failure and a waste of money even before it is properly underway.
That Scully and his department, BEIS, set up the inquiry without first securing the participation of the Alliance and Second Sight may suggest to some that the inquiry is a largely political response – an attempt to be seen doing something – in the light of a scandal that lawyers say represents the widest miscarriage of justice in the country’s legal history.
The scandal began after the Post Office went live in 1999 with the Horizon system, built and run by Fujitsu. The system is installed in 11,500 post office throughout the UK. Businessmen and women who ran branch post office, sub-postmasters, had to use the system for all transactions without any paper back-ups. But, soon after Horizon went live, sub-postmasters began to experience unexplained shortfalls in their branch balances. The Post Office and Fujitsu did not tell them of material bugs in the system. Meanwhile sub-postmasters who rang the central helpline to complain of unexplained shortfalls were told they were only ones to complain about Horizon. In fact, over more than a decade, the unexplained shortfalls were experienced by more than 2,500 sub-postmasters.
The Post Office demanded that each sub-postmaster make good the shortfalls from their own pockets, whether or not the losses were computer-generated and however big the amounts, which were often in the tens of thousands of pounds. The Post Office also prosecuted sub-postmasters for theft, false accounting and fraud on the basis of evidence from Horizon, claiming to courts the system was robust. On the back of some prosecutions, the Post Office obtained “Proceeds of Crime” orders to confiscate homes, businesses and cars. There were around 900 prosecutions. The Post Office’s actions ruined lives. Some sub-postmasters went bankrupt. Some lives were lost. Many suffered mental or physical health problems.
In 2012, after MPs raised concerns about wrongful prosecutions based on Horizon shortfalls, the Post Office hired Second Sight to investigate 136 individual cases. It found evidence of Horizon bugs and possible prosecution misconduct in at least case. The Post Office sacked Second Sight after its report found faults with Horizon and criticised the institution’s lack of co-operation and inadequate disclosures of information.
Royal Courts of Justice
In 2017, Alan Bates led 550 sub-postmasters in suing the Post Office to prove that flaws in Horizon were the cause of unexplained shortfalls.
During nearly two years of periodic High Court hearings and interim judgments it was losing, the Post Office, aided by four QCs and two firms of solicitors, insisted throughout that Horizon was robust. The Post Office settled days before the High Court ruled that Horizon had numerous errors, bugs and defects which caused numerous shortfalls. The ruling exonerated sub-postmasters but the Post Office’s litigation settlement – which was approved by government ministers – was a minimum sum that sub-postmasters had little choice but to accept because their future litigation funding was by no means certain.
The settlement has left many sub-postmasters with losses of tens or hundreds of thousands of pounds that they still owe or have never recovered. The government has repeatedly refused to pay to sub-postmasters their £46m litigation costs which came out out of the Post Office’s settlement figure of £57.75m. MPs say the government-approved settlement has punished sub-postmasters for suing an arm of the state and exposing the extent of the scandal.
The Justice for Sub-postmasters Alliance wants an open inquiry with wide terms of reference and powers to require the cross-examination of witnesses, full disclosure of emails, Whitehall correspondence and other documents, and recommend adequate compensation for Horizon’s victims.
But although Boris Johnson has agreed to a public inquiry over Horizon, the Williams inquiry is largely in secret.
And the terms of inquiry for the Williams inquiry are narrow. They were written by the Department for Business, Energy and Industrial Strategy (BEIS) which is implicated in the Horizon scandal. For 20 years, the department’s civil servants and ministers rejected the concerns of MPs and peers about the Horizon scandal, preferring instead the Post Office’s version of events. One MP, now peer Lord Arbuthnot, has been campaigning for justice for the sub-postmasters since 2010. He secured a House of Lords debate on the scandal this week.
“I am determined that the Inquiry will provide the forum for a thorough and rigorous examination of all the evidence presented and that a report will be produced which all participants in the Inquiry and the wider public will recognise as having addressed the terms of reference constructively and in detail.
“I fully understand that my engagement with participants in the Inquiry will be crucial to achieving my aims.
“I want you to know that those were my words, carefully chosen by me to convey my determination to carry out my functions as chair with integrity, objectivity, efficiency and with a completely open mind as to the conclusions which should be reached and the recommendations which should be made.
“In order to achieve my objectives, however, I need all the help I can get from those who have information which is relevant to the terms of reference of the Inquiry. That is why I am making this personal appeal to you to engage with the work of the Inquiry and to participate in its processes as fully as may be possible.
“At this very early stage, I have no fixed views about how I should set about obtaining all relevant information over the full course of the Inquiry. However, I am completely satisfied that engaging with participants in a number of ways will be very important … By November our approach to these matters will be finalised and made public.
“I recognise that some persons and organisations have reservations about the terms of reference of the Inquiry and the fact that the Inquiry is non-statutory. No doubt, too, there will be some persons and organisations who may have reservations about the processes I intend to adopt once these are announced.
“However, I would urge you to the view that such reservations are not reasons for non-participation in the work of the Inquiry.
“I hope that you will recognise that an unwillingness to participate, in the end, will make achieving my goals so much more difficult to achieve with the consequent risk that my aims and ambitions for this Inquiry will be frustrated. Collaboration is, in my view, crucial..
“I began this letter by addressing it to participants. I very much hope that I can count upon all who receive it or to whom it is disseminated to embrace that status and help me as much as possible.
“Yours faithfully, Sir Wyn Williams FLSW.”
“Independent and full” inquiry
In the Commons on Monday, Scully joined Sir Wyn in calling for cooperation and said several times that the Post Office and Horizon’s supplier Fujitsu will cooperate fully with the inquiry. Scully said the inquiry will be “both independent and full” and that MPs will get the answers the questions they ask “in a short few months”.
But some sub-postmasters see no purpose of the inquiry, given its narrow terms of reference. The biggest concerns of sub-postmasters are specifically outside the scope the inquiry including the litigation settlement and the questionable conduct of prosecutions.
Some civil servants may hope that, by the time the inquiry reports, perhaps by next Summer, the campaign for justice will have largely blown over.
It is unclear, meanwhile, how the non-statutory inquiry’s terms of reference, will ensure the Post Office and Fujitsu will be any more open with the Williams inquiry than they were with the High Court.
Last year, the High Court Horizon judgment included many criticisms of the Post Office and Fujitsu over their approach to truthfulness and the disclosure of documents (details below).
Court of Appeal
One positive development in the campaign for justice is a widely-reported decision of the Post Office not to oppose 44 of 47 convictions of sub-postmasters, which were based on Horizon evidence, that have been referred to the Court of Appeal.
They were referred by the Criminal Cases Review Commission, which investigates miscarriages of justice. The Commission has asked the Court of Appeal to quash the convictions on the basis of an “abuse of process”.
Sub-postmasters are celebrating victory because the Post Office’s decision not to oppose 44 of the cases means those convictions are highly likely to be quashed.
Indeed, media coverage by BBC and Sky of the celebrations might have given an impression to the general public that the Post Office IT scandal is all but over.
But, for sub-postmasters, the campaign for justice continues. It is becoming clear that the Post Office, although conceding there were weaknesses in the computer evidence presented to the courts in some prosecutions, remains, to some extent, defensive.
It is understood the Post Office has accepted some parts of the Criminal Cases Review Commission’s case for overturning the convictions but by no means all of it. Indeed, the Post Office criticises some parts of the Commission’s case.
In three of the 47 cases, the Post Office has opposed an overturning of the convictions.
The Post Office’s criticism of some parts of the Commission’s case for appeals to be overturned may mean its officials have not lost entirely their combative approach to criticism.
In 2015, the Post Office launched a lengthy criticism of Second Sight. It also criticised a BBC Panorama documentary which exposed faults in the Horizon system; and during the litigation in 2017 to 2019, the Post Office attacked the credibility of individual sub-postmasters who gave evidence against the Post Office, including Bates. The Post Office, further, took exception to lengthy criticisms by the judge in the litigation, Mr Justice Fraser, head of the Technology and Construction Court. The Post Office called him biased and sought to have him removed.
This year the Post Office has told MPs that the litigation did not establish that bugs, errors and defects had caused particular shortfalls complained of by individual litigants. Now the Post Office has accepted only part of the Criminal Cases Review Commission’s case for overturning convictions.
How will ministers ensure the Post Office and Fujitsu are open and transparent when cooperating with government “inquiry”?
Scully on Monday repeatedly defended the Williams inquiry saying it will identify who knew what and when and will publish, at its end, a list of the Post Office’s failings.
It is unclear, though, what purpose a list of the Post Office’s failings will serve. Mr Justice Fraser last year identified numerous Post Office failings in his hundreds of pages of judgments.
Several times Scully promised that Fujitsu and the Post Office will co-operate with the Williams inquiry. He did not say how he would reconcile the promises of full cooperation by the Post Office and Fujitsu with criticisms of their approach to openness made by Mr Justice Fraser last year.
Mr Justice Fraser
These were some of Mr Justice Fraser’s comments …
“The Post Office seemed to adopt an extraordinarily narrow approach to relevance, generally along the lines that any evidence that is unfavourable to the Post Office is not relevant …”
“…”These submissions by the defendant [Post Office] could, on an uncharitable view, appear to be made almost as vague threats to disrupt the Common Issues trial.” (If particular sub-postmasters’ evidence is allowed to be heard.)
“I also suspect that in the background to this application the defendant [the Post Office] is simply attempting to restrict evidence for public relations reasons.”
“The Post Office certainly tried extremely hard and expended considerable expense, in advance of this trial, to prevent this evidence from emerging into the public domain, and issued an application seeking to strike out most of it.”
“It does appear to me that the Post Office in particular has resisted timely resolution of this Group Litigation whenever it can…”
“The Post Office seemed to want findings on that only if they were in the Post Office’s favour. This is a peculiarly one-way approach by any litigant.”
“The suggestion in that letter that the Known Error Log was not relevant, is simply wrong, and in my judgment, entirely without any rational basis.”
“Essentially those provisions can only have been drafted to give the Post Office the maximum control over information, and are, in my judgment, contrary to transparency.”
“I consider his [Post Office] evidence suffered from an overarching reluctance to provide accurate evidence, if that may assist the Claimants [sub-postmasters].”
“It took a trial, tens of millions of pounds and several years to ascertain the truth about remote access.”
“The Post Office was also anxious to avoid any adverse comment by me in any respect in this judgment. I was asked to ‘be careful’, and to be aware of ‘the sensitivity’, in terms of comments or findings that the Post Office said were ‘not necessary’.”
“The Post Office may have made these submissions because, on an objective analysis, it fears objective scrutiny of its behaviour, or it may have made them for other reasons.”
“A party (here the Post Office) threatening dire consequences to national business should their case not be preferred is not helpful, and this seemed to me to be an attempt to put the court in terrorem.”
“There seems to be a culture of secrecy and excessive confidentiality generally within the Post Office, but particularly focused on Horizon…”
“I consider the significance of the previously factually untrue statements [by the Post Office] to be considerable. The statement was made publicly by the Post Office, turned out not to be factually correct, and the Post Office gave an explanation and said the full set of facts was now available… That too turned out not to be correct.”
“The claimants [sub-postmasters] also made regular complaints about disclosure and would often point out that documents had been produced during the hearing. This is because documents were often produced during the hearing.” [judge’s emphasis]
These were some of Mr Justice Fraser’s comments about Horizon’s supplier Fujitsu …
“… the majority of the Fujitsu witnesses were more interested in following some sort of Fujitsu party line than they were in answering questions in cross-examination wholly frankly, although I exempt Mr Godeseth from that criticism.” [Torstein Godeseth, Horizon’s chief architect gave objective and candid answers in cross-examination which impressed the judge.]
“Infallibility is a rare commodity, and everyone is capable of making mistakes. However, it is how one reacts to mistakes that is telling. In this instance, the initial reaction of the Fujitsu witnesses was to seek to shift the blame for their own misleading written evidence upon someone else. In this case, that ‘someone else’ was their former Fujitsu colleague whose very evidence was responsible for exposing the full picture.”
“The Fujitsu witnesses should not, in their first witness statements, have made the incorrect statements that they did. Had those initial statements been factually accurate, there would have been no need for the supplementary statements from them that eventually led to the true position being accepted by Fujitsu, and therefore by the Post Office. It is highly regrettable that such a situation as this should have developed.”
“Some 5,000 KELs [Known Error Logs related to Horizon] emerged from Fujitsu well after the [Horizon] trial ended, in October 2019.”
Scully has announced that the Williams inquiry will “obtain all available relevant evidence from Post Office Ltd, Fujitsu and BEIS [Department for Business, Energy and Industrial Strategy] from the period in question.”
In terms of the last paragraph of this piece, the big unanswered question is, how?
It is entirely understandable that the Justice for Sub-Postmasters Alliance and Second Sight are not co-operating with the Williams inquiry.
It has no practical purpose. It is a “no inquiry” inquiry. It is of benefit to the government and civil servants though. It gives the impression to MPs and peers who are not following events closely that the government is doing something about what Boris Johnson has called a “disaster” for sub-postmasters.
But its terms of reference make it a caricature of a public inquiry. It is in secret, as if it were an inquiry into the security services. There are no powers to compel witnesses to attend or force the disclosure of documents and emails. There are government promises of cooperation by the Post Office and Fujitsu without any acknowledgement that the two organisations’ approach to openness was much criticised by Mr Justice Fraser last year. The list of what is specifically excluded from the inquiry’s terms of reference is of much greater interest and importance than what is included.
Delaying justice again
The Williams inquiry is worse than pointless. It delays justice. It delays the question of compensation.
The irony is that sub-postmasters will have more influence in continuing their non-cooperation than in lending credibility to the inquiry by cooperating. At least Scully is making an appeal to them. In the past, he has rejected their every request – and snubbed the MPs who have represented them.
It is highly unlikely Scully and his boss Alok Sharma will agree to widen the inquiry’s terms of reference to include the matter of the litigation settlement. It is also highly unlikely the inquiry will hold to account those in the civil service and government who allowed the scandal to happen. And it will certainly not question the probity of wrongful prosecutions.
But the least Scully and Sharma can do is hold the inquiry in public. It is secrecy over Horizon that was a cause of the scandal. Indeed, it’s extraordinary that Scully and BEIS are calling the internal review they’ve commissioned an “inquiry”. At least they have a sense of humour.
Alan Bates, other former victims of the scandal and Second Sight are to be applauded for not dignifying Scully and Sharma’s “no-inquiry” inquiry.
Dozens of former sub-postmasters convicted on the basis of evidence from the Post Office Horizon system are now almost certain to have their convictions quashed.
The Post Office had to notify formally by 2 October [today] whether it was opposing 47 convictions of former sub-postmasters whose cases were referred to the Court of Appeal by the Criminal Cases Review Commission.
This morning solicitors have confirmed that, up until the time of writing, none of the 47 cases is being opposed. It is therefore almost certain the convictions will be quashed.
Hudgell Solicitors, which is acting for 33 of he 47 cases, said on Twitter,
“We can confirm the Post Office has conceded appeals by former sub-postmasters to overturn convictions linked to the Horizon scandal.”
Other convicted former sub-postmistresses have congratulated Aria Grace Law which represented them in the appeal applications.
Although the sub-postmaster cases referred to the Court of Appeal were known to have been manifestly unsafe convictions, the Post Office’s decision not to contest them has come as a surprise to some given its approach in the High Court last year during litigation over the Horizon system.
More than 550 sub-postmasters had sued the Post Office for wrongly blaming them over Horizon errors and bugs. The Post Office hired four QCs and two firms of solicitors to fight the sub-postmasters and defend the Horizon system. At one point it applied to have the judge removed. When clearly losing the case, the Post Office reached a settlement. It paid a £57.75m to the former sub-postmasters but made it clear in the settlement terms that it was not agreeing to any of the money going to convicted sub-postmasters. Most of the settlement money went, in any case, in litigation-related costs.
When convictions are overturned, sub-postmasters are likely to consider legal action for compensation, having unnecessarily spent time in prison or doing community service. It has also been difficult for them to find work with criminal convictions. In addition, they have not received back from the Post Office money they paid from their own pockets to cover Horizon-related shortfalls.
Postal affairs minister Paul Scully has announced an “inquiry” into the Horizon affair but it is being dismissed as a “whitewash” and is being boycotted by two of the main parties in the litigation: the Justice for Sub-postmasters Alliance and forensic accountants Second Sight which investigated Horizon cases between 2012 and 2015 and found many of the system weaknesses that, during the later litigation, the Post Office denied existed. The High Court judge in the litigation Mr Justice Fraser found that Horizon had numerous bugs and errors that had caused numerous shortfalls.
His judgments vindicated Second Sight’s much earlier findings and triggered the Criminal Cases Review Commission’s referrals to the Court of Appeal.
When the convictions are formally quashed, there are likely to be calls for a Parliamentary investigation into what is being described as the widest miscarriage of justice in England’s legal history. Hundreds of sub-postmasters might have been wrongly convicted.
The current inquiry is non-statutory, cannot require witnesses to give evidence on oath, cannot require the attendance of witnesses, cannot cross-examine witnesses and the most controversial aspects of the Horizon scandal – wrongful prosecutions – are excluded from the terms of reference. It is not even clear if hearings will be in public or whether it will call any witnesses. It is instead taking evidence from the Post Office and Horizon supplier Fujitsu. Mr Justice Fraser last year criticised the Post Office and Fujitsu’s approach to openness and the truth during the litigation.
The narrow terms of reference for the government inquiry into Horizon appear to confirm comments to journalist Nick Wallis that the civil service does not want any inquiry into Horizon. Wallis said that a government source told him: “the officials weren’t happy… They didn’t want a review, they didn’t want an inquiry or anything. They wanted it all to go away.”
The apparent contradiction between a “whitewash” government inquiry and the almost certain quashing of dozens of convictions that form no part of the inquiry, mean that the Post Office IT scandal is set to enter a new phase rather than go away.
Update: (2 October pm)
Nick Wallis reports that the Post Office is to contest three of the 47 cases. Details of why it opposes an overturning of the three convictions are awaited, particularly as the Criminal Cases Review Commission would not have referred any of the cases to the Court of Appeal without having strong grounds for doing so.
A small number of the 47 cases that will go to the Court of Appeal unopposed are of deceased former sub-postmasters including Julian Wilson’s This is an indication of how long the campaign for justice has been going.