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

By Tony Collins

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

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

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

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

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

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

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

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

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

Jargon-laden

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

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

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

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

Crucial

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

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

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

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

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

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

Readers’ wisdom

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

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

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

Another apt comment,

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

And …

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

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

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

Another reader says,

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

Comment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Register’s reader comments

Digital Transformation in the NHS – National Audit Office report

 

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

By Tony Collins

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

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

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

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

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

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

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

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

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

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

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

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

The Great Post Office Trial

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

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

Is Whitehall’s broken system of accountability enjoyed by many bodies beyond the Post Office?

A National Audit Office report yesterday shows that the Post Office is not the only arm’s length body to act as if answerable to nobody. Whitehall is supposed to oversee more than 450 arm’s length bodies that spend at least £250bn a year. But it’s a broken system.

On Monday,  Radio 4 begins a 10-part series that asks whether hundreds of sub-postmasters were victims of “institutionalised corporate cruelty from the Post Office”.

The BBC describes its series “Great Post Office Trial” as the extraordinary story of a decade-long battle fought between sub-postmasters and the Post Office.

After the introduction of Fujitsu’s Horizon branch accounting system  in the early 2000s, the Post Office began using the system’s data to accuse sub postmasters of falsifying accounts and stealing money.

Innocents

Village sub-postmasters who were doing their best to serve their local communities were fired,  financially ruined, prosecuted and imprisoned – all of which raises questions as to why none of this was of any concern to the civil service which was supposed to be keeping an eye on the Post Office, according to civil service guidance unearthed by justice campaigner Eleanor Shaikh.

Last year the High Court issued judgements that criticised the Post Office for acting as if answerable to nobody. The judgements left the Post Office’s credibility in tatters. But still the civil service has continued to distance itself from the Post Office. Officials have written defensive letters to sub-postmasters about the “past” actions of the Post Office. The civil service accepts no responsibility for any failures to stop the scandal.

Now a new National Audit Office report makes clear that another arm’s length body, the British Tourist Authority has, like the Post Office, acted as if answerable to nobody. Gareth Davies, head of the National Audit Office, said the British Tourist Authority “repeatedly broke the regulations” – despite several internal audit reports that highlighted irregularities. He said,

“The British Tourist Authority has knowingly entered into contracts for which it did not have approval, disregarding regulations designed to ensure that public money is being spent as Parliament intended.”

The National Audit Office also found that irregular, non-contractual severance payments went ahead without the approval beforehand of its sponsoring organisation, the Department for Culture, Media and Sports or HM Treasury.

Such actions can open the door to fraud and corruption if allowed to go unchecked.

Comment

If the Post Office and British Tourist Authority have been able to conduct themselves as if answerable to nobody, who cares? It’s not a frivolous question.

Civil servants are supposed to check up on arm’s length bodies such as the Post Office and the British Tourist Authority. But it’s clear the system of oversight is broken.

Campaigner Eleanor Shaikh found that the Department for Business, Energy and Industrial Strategy (BEIS)  chose to rescind its duty of oversight during the years of the Post Office Horizon scandal.

Parliament’s Public Accounts Committee reported in 2016 on problems for Whitehall departments of overseeing more than 450 arm’s length bodies that spend more than £250bn a year.

But it’s not just arm’s length bodies that fall through the accountability net. The civil service itself is largely unaccountable. MP Margaret Hodge, former chair of the Public Accounts Committee, wrote an excellent bookCalled to account which showed, among much else, how some senior civil servants have little regard for accountability to Parliament.

If the civil service acts as if unanswerable to Parliament and potentially hundreds of arm’s length bodies act as if unanswerable to the civil service, it could explain how the Post Office has never been held to account for a scandal that dates back nearly 20 years.

No wonder hundreds of arm’s length bodies have sprung into existence as if from nowhere. Being an arm’s length body means even less scrutiny than being a direct part of the Whitehall system.

The unchecked conduct of the Post Office and British Tourist Authority are signs of a mature democracy that has grown tired and flabby.

It helps to explain why the Post Office was able to conduct itself in ways that would not have been out of place in North Korea or China.  Why would the civil service want the unpleasantness of properly scrutinising the Post Office and other arm’s length bodies if senior civil servants are themselves unaccountable?

MPs and peers care about accountability. But how can they  hold to account a civil service that doesn’t want to be held accountable?

Every new government needs the full support of the civil service. Therefore it’s hard to see how the broken system of accountability will ever be fixed.

The Great Post Office Trial – BBC series starting Monday at 13.45

National Audit Office report on British Tourist Authority

Letter demanding public inquiry into Post Office scandal

 

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

By Tony Collins

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

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

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

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

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

Horizon

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

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

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

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

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

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

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

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

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

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

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

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

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

Spin

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

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

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

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

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

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

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

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

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

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

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

This piece has been emailed to Paul Scully and Alok Sharma.
Peer demands judge-led inquiry into Horizon fiasco – Nick Wallis’ Postofficetrial
Alan Bates on the need for a judge-led inquiry – Karl Flinders, Computer Weekly

Another 20 years of the Post Office IT scandal? – questions a “review” may avoid …

By Tony Collins

It is being described as the biggest miscarriage of justice in British legal history: the potentially unsafe convictions of more than 500 businessmen and women whose prosecutions were based on the output of a Post Office computer system, Horizon.

In December last year,  the High Court confirmed what sub-postmasters had been saying for years: that the Horizon system’s flaws could explain mysterious shortfalls being shown on the system – shortfalls for which hundreds of sub-postmasters have been blamed for at least 15 years.

Even before news broke last month of potentially 500 unsafe convictions,  Boris Johnson had promised MPs to “get to the bottom” of what he called a scandal.

He was aware that bankruptcies,  imprisonment and suicide had resulted from the Post Office’s actions against sub-postmasters who had complained about the Horizon computer system.

Yesterday, Campaign4Change looked at why civil servants and their ministers prefer a “review” to an inquiry.  This piece compares the likely costs of a judge-led inquiry against  a review and looks whether a cheaper review could undermine Boris Johnson’s promise to get to the bottom of the Horizon scandal.

Alan Bates, founder of Justice for Sub-postmasters Alliance, which led a successful group litigation against the Post Office, says he would not engage with anything but a judge-led inquiry.

He told Computer Weekly,

“Despite our years of campaigning, it has become clear that the only way to expose the lies and cover-up by the Post Office has been through the courts, which is why, going forward, the judiciary must be involved.

“Any other type of inquiry would have no merit or value and would not be anything that the Justice for Subpostmasters Alliance  would want to engage with.”

But Downing Street officials appear to have left the final decision on an inquiry or a review to the business department BEIS, which provides public funds to the Post Office and would be in the firing line of any inquiry: a judge-led inquiry may ask why, for nearly a decade, BEIS rejected the concerns of peers and MPs about Horizon and instead accepted the Post Office’s assurances that Horizon was robust. This raises two awkward questions for BEIS,

– Why did BEIS not commission its own  independent analysis of Horizon’s robustness given the seriousness of the concerns of MPs, in particular former Conservative defence minister James (now Lord) Arbuthnot, in 2010?

– why did it take a former sub-postmaster, Alan Bates, to raise tens of millions of pounds for a legal action to  bring Horizon’s bugs and systemic weaknesses into the open?

In deciding what happens next – a review or much tougher judge-led inquiry –  BEIS may be said to have a conflict of interest. So far BEIS has rejected a judge-led inquiry (in which BEIS civil servants may be cross-examined by lawyers for sub-postmasters).

Costs?

Whitehall may cite costs as a reason or not holding a judge-led inquiry. But the counter argument is that the costs are small compared to the £100m that the Post Office is estimated to have spent on years of fighting the well-grounded assertions of sub-postmasters that Horizon was flawed.

The typical costs of a four-week judge-led inquiry would be about £3.5m to £4.5m to cover external lawyers’ fees,  research and expenses, the legal and other costs incurred by BEIS, UK Government Investments and any other government departments involved in the inquiry.

The figure includes about £180,000 for  staffing the inquiry and a predicted £350,000 in fees such as audio/video links in inquiry courtrooms at the Royal Courts of Justice. 

A review with a “safe” remit such as the lessons learned from the Post Office’ past dealings with sub-postmasters, need cost only about £200,000-£300,000 (or less) but all of this may be wasted if a review perpetuates the Horizon scandal by looking at it from a restricted historical viewpoint instead of challenging the Post Office’s conduct and actions from 1999 to the present day.

Some questions a review would avoid?

Below are some of the questions that lawyers for sub-postmasters may ask at a judge-inquiry but which a review panel is unlikely to go anywhere near …

Has the Post Office, after all that has passed in two years of High Court litigation it lost, gone back to regarding Horizon as robust and treating sub-postmasters who challenge its reliability  as likely criminals?

Is the Post Office today, with the tacit consent of BEIS, trivialising the ongoing dire consequences of the Horizon scandal for 550-plus people and their families by suggesting it all happened in a done-with past era ?

What does the Post Office say to victims of the scandal who may never recover their full losses?

Does the Post Office still employ most of the people whom a High Court judge criticised?

If the Post Office was unable to accept criticism from a High Court judge and sought to have him removed, why would it be any more willing to accept the findings of a non-statutory review?

Why is the Post Office in control of choosing solicitors to assess 500 potentially unsafe convictions? Is it also in control of what evidence it provides to the solicitors? A High Court judge last year found that Post Office wanted things its own way in terms of what evidence was heard and not heard.

How was the Post Office board able to spend an estimated £100m on fighting sub-postmasters when it was obvious to everyone except the Post Office and BEIS that the sub-postmasters were victims of a scandal?

More questions a review would avoid?

Why are the Post Office’s apologies limited to past shortcomings only? It has not apologised for presenting misleading evidence to the High Court.

Why did Post Office staff who saw at first hand that a branch Horizon system was producing inexplicable shortfalls, still allow the sub-postmistress to be chased for debts?

Was the Post Office’s attitude towards sub-postmasters typified by its questioning during the trial of a widow who took over the running of her husband’s post office the day after he died?  The Post Office put it to her during the trial that she probably had a vague recollection of that month, August 1999, and that the signing of documents and taking over the Post Office were “everyday events”; they were not like a car crash?  She replied that the events of that day were “very similar to a car crash.” The judge agreed. He described the events of that month as “seismic” . He said it was “unsurprising” that the sub-postmistress rejected the suggestion put to her by the Post Office that the signing of documents and formally taking over as the sub-postmistress the day after her husband had died were ‘everyday events’.

On what basis did the Post Office’s board decide to spend hundreds of thousands of pounds trying to remove the judge in High Court litigation the Post Office was losing?

Are ministers and the Post Office being disingenuous in saying the mediation settlement figure was agreed by both sides when the sub-postmasters had little or no choice but to settle because of the way they were funded?  The Post Office did not have the same risks to its funding: it is a national institution with a turnover of nearly £1bn.

How did the Post Office arrive at a decision to drop criminal charges against sub-postmistress Fiona Cowan without telling her? She took a fatal drugs overdose without knowing the charges had been dropped. She was 47.

Who took the decisions at the Post Office that led to Martin Griffiths, a successful businessman, borrowing his parents’ life savings to pay the Post Office £53,000? These were the amounts shown on the Post Office’s Horizon system as shortfalls – but Horizon’s systemic faults and sometimes untrustworthy figures were being hidden. He ended up stepping in front of a bus. An inquest heard that the Post Office was pursuing him for money.

**

Met Police assessing evidence of potential perjury in Post Office IT trials – Karl Flinders, Computer Weekly

Chirag’s story – #postofficetrial

Is the state (apart from Boris Johnson content for the Post Office IT scandal to go on another 20 years? (Part 1)

Why Nicki Arch will never go into a Post Office again

 

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

By Tony Collins

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

 

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

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

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

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

Scully told the Commons,

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

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

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

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

Inquiry v Review –  phase 2 of the Horizon scandal?

Review

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

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

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

Old and new

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

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

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

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

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

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

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

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

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

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

Police investigation?

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

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

Review no-go areas?

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

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

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

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

Tomorrow  – questions a review may avoid.

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

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

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

Chirag’s story – Nick Wallis’ blog

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

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

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

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

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

By Tony Collins

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

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

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

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

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

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

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

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

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

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

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

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

A Post Office statement yesterday on the referrals said,

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

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

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

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

Comment:

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

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

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

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

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

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

Post Office reviews more prosecutions – Nick Wallis

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

 

Destitute Tom Brown lost £500,000 in the Post Office IT scandal – and now a minister promises better governance

By Tony Collins

Today Tom Brown is destitute. He lost his home, his businesses, his reputation and £500,000, because the publicly-owned Post Office made him pay for non-existent shortfalls shown on its Horizon system.

Yesterday, in a Commons debate on the Post Office Horizon IT scandal, Brown’s campaigning MP Kevan Jones set out Brown’s plight as an example of the misery caused by the Horizon IT scandal.

But the new business minister Paul Scully said nothing about compensating Brown or hundreds of other victims of the Horizon system’s phantom shortfalls.

Instead Scully offered the possibility of an inquiry – with no assurance it would be independent of his department BEIS  – and also offered Jones some reassuring words.

He said he will more closely monitor the Post Office and a representative of the Department for Business, Energy and Industrial Strategy will continue to challenge the Post Office on its corporate governance and strategy. He said the Post Office has a new CEO and two new non-executive directors.

But MPs criticisms of the Post Office yesterday raised questions about the institution’s attitudes and behaviours that are not confined to the board.

It appears that Post Office auditors were comfortable accusing Brown of being a criminal when the Post Office given him an award for valour after he fended off a knifeman wearing a Halloween mask.

Tory MP Jerome Mayhew, a former barrister, told the minister of the aggression of Post Office auditors who interviewed his constituent Siobhan Sayer, a sub-postmistress who had trouble with Horizon balances.

When she asked for help, three Post Office auditors arrived. They suspended her, accused her of theft, searched her house, asked her where she had hidden the money and “interrogated her to such an extent that it stopped only when she physically collapsed”.

The Post Office prosecuted her for theft and for false accounting. She did 200 hours of community service, was shamed in her community, ostracised by her friends, and her mental and emotional health was affected. “That is the consequence of the actions and inactions of the Post Office and its servant, Fujitsu,” said Mayhew.

Many other former sub-postmasters had similar experiences with Post Office auditors and managers – which raises questions about whether board-level changes will alter attitudes and behaviour within the institution’s middle and senior management.

MPs yesterday said that the Post Office was denying Horizon was at fault and was continuing to blame sub-postmasters until the point of the mediation settlement in December 2019.

Until then, the Post Office was on record as having described some of the former sub-postmasters who took part in a group litigation against the Post Office as criminals and liars.

Is it likely any of these views will have changed within the Post Office simply because of a settlement at mediation?

Comment

Paul Scully has a particularly difficult job as the new business minister in charge of the Post Office. He is caught between the former sub-postmasters who want accountability and fair compensation and his civil servants who are more comfortable with an offering of platitudes such as closer monitoring, better governance and lessons learned.

The two sides are poles apart. Scully is in the middle. Yesterday he read parts of his civil service brief and described the Post Office shortcomings as in the “past” but it was clear he sympathised with the former sub-postmasters.

In his new job, he doesn’t need the support of former sub-postmasters but he does need the unequivocal support of his civil servants. He is trying to get on with both sides.

But platitudes, a non-independent inquiry, a new Post Office CEO and two new non-executive director on the Post Office will make little difference. The problem nobody can solve is an institutional arrogance built on a culture of secrecy, denial and a deep resentment of criticism and critics.

How will the minister and new Post Office CEO be able tackle institutional problems as profound as those referred to by MPs yesterday?

**

These are some comments of MPs in yesterday’s debate:

    • The Government appear to be content to act as the Post Office’s parliamentary organ, claiming that the December settlement was the end of the matter. Nothing could be further from the truth for the people who are still fighting for justice, and that is why we need a judge-led independent inquiry to take place as soon as feasibly possible.
    • The Post Office knew all along that the Horizon system was flawed.
    • One  cover up after another. The Post Office was still denying that there was a problem with Horizon when it went into court; indeed, its consistent approach has been to deny any type of liability.
    • Fujitsu, the Horizon system’s supplier, was as “guilty of cover up as the Post Office”. Fujitsu knew that there were glitches in Horizon.
    • Victims of the scandal were failed by the courts as well as the Post Office and Fujitsu.  The courts found in favour of the Post Office even though it had not properly evidenced its case.
    • “What has to happen now is that a scheme has to be set up to compensate individuals properly” – Kevan Jones.
    • “Tom Brown should be enjoying a happy, well-funded retirement, but he is not. He is …living in social housing with his son, and that is not his fault; it is down to people such as Paula Vennells (ex Post Office CEO) and the board at the Post Office, and the failure and cover-ups that have been perpetrated by individuals. The Government, who should have stood up for him, have turned a blind eye …” –Jones
    • MPs have had people in their constituency surgeries who have been in tears because of the way the Post Office has treated them. “They have been diligent public servants for many years, and it is intolerable that they have ended up in this situation.” – Martin Vickers.
    • “Ministers have tried to wash their hands of it. They stood back when clear injustices were being ignored.” – Vickers.
    • A litany of maladministration at the very least. “Have any individuals at management level in either at Post Office Ltd or Fujitsu ever been held accountable for this?” asked MP John Spellar. The complete opposite, replied Kevan Jones.
    • “We are unable, as parliamentarians, to scrutinise the Post Office…trying to scrutinise the Post Office and get it to account … is virtually impossible. When I have asked parliamentary questions, they are referred to the Post Office. ” – Jones.
    • David Linden, Why was £100m of public money spent defending the High Court case [brought by former sub-postmasters] when it was clear that the Post Office “had no business continuing to prosecute innocent people?
    • Jones, “I respect those who have religious faith … but the way that (Paula Vennells, a priest) has treated these people cannot be described as very Christian. She certainly would not pass the good Samaritan test, given the way she has ignored their pleas. I hope she thinks about people like Tom [Tom Brown], who have lost their livelihoods and are now living in social housing because of her actions. It angers me that these individuals have gone scot-free, and they need to be answerable for their action.”
    • The role of ministers including Jo Swinson, Claire Perry and Kelly Tolhurst:  “They all completely believed what they were being told by the Post Office, never asked any questions about how public money was being spent and allowed the Post Office to continue what it has been doing.”
    • Dame Diana Johnson,  “… this issue about MPs not being able to find out what happened. In the Hillsborough inquiry, the Bishop of Liverpool talked about the ‘patronising disposition of unaccountable power’. This is a classic case of exactly that.”
    • Dame Johnson, “I also want to put on the record how grateful my constituent Janet Skinner is that MPs such as [Kevan Jones] and others have pursued this matter for many years to try to get justice for the people involved.”
    • “The National Federation of SubPostmasters needs winding up now. It is not independent, nobody joins it—sub-postmasters are auto-enrolled. It is basically an arm of the Post Office and is paid for by the Post Office.” – Jones.
    • The right of the Post Office to take forward its own prosecutions needs to be removed… When Tom Brown asked whether he could get the police or the Crown Prosecution Service involved in looking at the evidence against him, he was told no, said Jones.
    • “… we need to expose who did what … what I would argue was criminal activity took place. People have to be prosecuted. Given their involvement, they certainly need to be removed from any public bodies on which they currently serve.” – Jones.
    • … given the tyrannical conduct of the Post Office over the years, it [Justice for Sub-postmasters Alliance] had no alternative but to seek litigation.” – Martin Vickers.
    • “Scores of postmasters contacted the Post Office to tell it of discrepancies. They were not trying to hide them. Their actions were hardly those of someone deliberately engaging in fraudulent activity.” – Vickers.
    • “… it is staggering that Fujitsu could access a sub-postmaster’s account without his or her knowledge. That left it wide open—though one hopes that this was not the case—to others to interfere with the account entries.” – Vickers.
    • Karl Turner,  “… a few days ago I received some startling documents. In 2006, a sub-postmaster was prosecuted. I have documents showing discussions between lawyers within the Post Office conceding that there was no theft, no dishonesty, no fraud and no false accounting in this case, yet she was prosecuted. It is utterly disgusting. When this person found out that these documents existed, because they had been leaked to her, she asked the Post Office whether they would produce the documents to the Criminal Cases Review Commission and she was met with aggression the likes of which I have never seen. She was told that these documents were privileged and that if they were leaked she could be in serious trouble. There was bullying, aggression, and constant lies from the very beginning—lie after lie after lie.”
    • Turner, “…  senior officials in the Post Office and Fujitsu did everything they possibly could to protect themselves. They knew. Let us be absolutely clear about that. They knew that there were victims who might go to prison—or who had already gone, at that point. It is utterly disgusting.”
    • Lucy Allan, “I too have a constituent … who was 18 years old and was sent to Holloway for six months, accused of theft and failing to apologise to the grannies she was supposed to have stolen from. She has not had her name cleared. She has been waiting five years for the Criminal Cases Review Commission to do that.”
    • Turner, “The Post Office was believed. The lies that Ministers, officials and everyone else were told along the line were believed as well. That is why only a judge-led inquiry can possibly sort this out. We need to know who knew what, what they knew, when they knew it and why they acted as they did.”
    • David Jones, “If it had not been for his [Alan Bates, former sub-postmaster who led a group litigation against the Post Office] tenacity and that of others, the consequences would have been that the wrongdoings of the Post Office and Fujitsu would have gone undetected and the reputations of many hundreds of completely decent, innocent people would have been completely destroyed without any hope of being repaired.”
    • David Jones, “It is … a credit to Mr Nick Read, the new chief executive of the Post Office, that his intervention helped achieve a settlement to the legal dispute last December, but that settlement cannot be the end of the matter. The Government cannot simply regard the settlement as putting the Horizon issue to bed…. after costs are taken into account, the settlement sums for those 500-plus litigants will be paltry. The Government have a duty to further compensate the sub-postmasters who have been so appallingly treated by a Government-owned company.”
    • David Jones, “… the deplorable conduct of those responsible for the direction of the Post Office, including non-executive directors appointed by the Government…”
    • Bambos Charalambous, “While after the trial the Post Office chairman conceded that it had got things wrong in the past, the fact was that the Post Office fought the action until the bitter end, and that speaks volumes.”
    • Kevin Hollinrake, “why have the courts not stood up for these people … the courts are structurally biased in favour of large, trusted brands. That cannot be right. I was always brought up to believe that everybody could get justice …There is a structural imbalance between a sub-postmaster or mistress when they go to the courts and the phalanx of lawyers provided by the Post Office. The courts are used to suppress the truth, and that cannot be right. There have been 110 prosecutions. Back in 2007, in the case of the Post Office Ltd v. Lee Castleton, Judge Havery found that there was irrefutable evidence against Mr Castleton, despite the fact that there was no evidence…We must ask questions of the system: of the Post Office, of course, about who knew what and when—I support the calls for a public inquiry and proper compensation …”
    • Chi Onwurah, “Speaking as a former software engineer myself, I am upset and truly disappointed at the way in which technology has been used as an instrument of torture. An IT deployment of this kind—one of the most expensive in the history of the United Kingdom—should have had users and people at its heart. It should not have been turned into a living nightmare—a living nightmare that continues for many sub-postmasters to this day.”
    • Paul Scully, business minister, “We have talked about the independent review, which the Prime Minister mentioned a couple of weeks ago. We are looking at the best way to do it. There will be a further announcement as soon as possible in the very near future…”

BBC Panorama – Scandal at the Post Office, presented by journalist Nick Wallis on Monday 23 March.

Yesterday’s Commons debate – Parliamentary TV

Horizon IT scandal: has Goliath won?

By Tony Collins

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

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

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

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

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

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

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

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

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

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

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

Was this fair?

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

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

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

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

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

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

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

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

“Scandal” says Boris Johnson

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

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

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

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

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

Mediation

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

Not in this case.

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

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

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

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

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

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

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

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

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

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

Did the Post Office still wield power with impunity?

Convictions

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

Or could even this be denied him?

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

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

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

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

A Houdini escape?

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

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

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

Why then does  justice still elude him?

Comment

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

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

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

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

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

“Rats”

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

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

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

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

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

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

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

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

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

**

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

**

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

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

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

Alan Bates – the details man

Secret Post Office deals cause fury – Computer Weekly

BBC Radio Wales – Post Office IT scandal

Postofficetrial website

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

By Tony Collins

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“The PO should hide its head in shame.”

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

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

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

Comment:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PM commits to Post Office inquiry – Nick Wallis’ blog

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

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

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