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Sunday, November 25, 2018

Bates v Post Office: Ten memorable moments of the first ten days

In no particular order:

1) The Post Office's admission it has bet the farm on Horizon. On Day 1 of the trial (7 Nov) the Post Office says in paragraph 3 of its opening submission that this legal action by the JFSA represents an "existential threat" to its entire business. Let's just repeat that, this legal action by the JFSA threatens the existence of the Post Office. News editors take note.

2) The Post Office CEO's demand to her staff via email that she "needs" to tell MPs there is no remote access to Horizon. This arose on Day 9 (21 November) during Angela van den Bogerd's evidence and you can read about it here.

3) The apparent admission by Helen Dickinson, Security Team Leader at the Post Office (Day 9, Wed 21 November) that she believed some Subpostmasters had been prosecuted simply to get a Proceeds Of Crime Act order, which enables the Post Office to take a Subpostmaster's assets to the value of a Horizon discrepancy. You can read about that here.

4) The moment on Day 8 (20 November) when Angela van den Bogerd, Director of Development and the most senior Post Office witness, said she didn't feel able to comment further on a piece of evidence because she was "coming to it cold". This caused some consternation amongst the JFSA's legal team. They told Mrs van den Bogerd that they had only recently received her signed witness statement for the Horizon trial, and in it, she dealt with this specific piece of evidence. Mrs van den Bogerd then admitted her statement to the court about coming to the piece of evidence cold was "a mistake". Read about that in the Day 8 write-up here.

5) The repeated assertions in passing by Post Office witnesses that Subpostmasters are liable for ANY losses in their branch, and the repeated assertions in Post Office literature that Subpostmasters are liable for any losses in their branch despite, the JFSA's QC taking quite some considerable amount of time to demonstrate (and have other senior Post Office witnesses agree) that this was contractually inaccurate. Subpostmasters, as we now know, are only liable for any losses in a branch caused by their own or their assistants "carelessness, negligence or error". Read the live tweet notes on Day 6 (15 Nov), Day 7 (19 Nov), Day 8 (20 Nov), Day 9 (21 Nov) and Day 10 (22nd Nov).

6) Patrick Green (claimants' QC) comprehensive trashing of the National Federation Subpostmaster's supposed "independence". You can read about how that came up in court as the last point in my write up of Day 6's events here, the NFSP General Secretary's "signed in blood" email here, and my subsequent comment piece here.

7) The release of an internal Post Office document on Day 1 (7 Nov) of the trial called the Receipts Payments Mismatch Meeting Memo outlining a serious Horizon error which had been going on for 5 months, the fact no Subpostmasters had been informed, the number of branches involved, and the proposed methods for fixing it, one of which involved remotely accessing branch accounts. Read it here.

8) Elaine Ridge, the Post Office Contracts Advisor who suspended Lead Claimant and former Croydon Subpostmaster Naushad Abdulla telling the judge, the Hon Mr Justice Fraser, that a spreadsheet containing information about the source of some of Mr Abdulla's discrepancies would not have been of any use to her in deciding whether or not to recommend Mr Abdulla for termination. Read it in the Day 10 (22 Nov) live tweets.

9) The Post Office being unable to defend its rather quaint practice of not allowing a suspended Subpostmaster to have a lawyer present during a post-suspension interview (Elaine Ridge: "it's just the way it is"), despite agreeing that a) during that meeting Subpostmasters could be accused of the criminal offence of false accounting, and b) the taped interview could be used by Post Office as evidence to support a prosecution. Read it in the Day 10 (22 Nov) live tweets.

10) Evidence from Louise Dar, Lead Claimant, that she was told to: “get around” Horizon by altering stock figures to balance, something she said "was obviously not helping me to find the specific problem, and was just covering it up. They told me they ‘shouldn’t be doing this’ but that this was the only way around the problem I had. This felt wrong and it was concerning to me that there were little ’work arounds’ to dealing with the Horizon system, this really suggested that there was some kind of fault in the system." Read Mrs Dar's witness statement paragraph 118, and see my live tweets on her being challenged on this on Day 5 (14 Nov) of the trial by the Post Office's QC, Mr David Cavender.

Bates v Post Office: Did the Post Office prosecute Subpostmasters in order to seize their assets?

On Day 9 of the Common Issues trial (21 November 2018), there was an exchange between Patrick Green, the claimants QC, and Helen Dickinson, Security Team Leader at the Post Office.

In her witness statement Ms Dickinson neatly explained how Subpostmasters find themselves in a pickle with Horizon.

"In my experience, a large majority of Subpostmasters are honest. Those that do commit acts of dishonesty are not necessarily "bad" and often don't have histories of dishonesty.... when completing their accounts, the Subpostmaster might record that a shortfall has been made good, without actually putting in the missing cash. This may be for something like the simple reasons that they have been unable to go to the bank to draw out the cash...."

she goes on to say:

"... at the next accounting point, the shortfall has grown, now bing the accumulation of the unsettled shortfall from the previous month and anything accrued in the current month. The shortgall to be made good is now larger and nobody and Post Office has noticed the shortage in the cash so the Subpostmaster does the same again. Throughout they are rationalising to themselves that they will correct the inconsistency later. This sequence continues for many weeks or month until the shortfall is so large the Subpostmaster can no longer afford to pay it. Also the accounts are now in a muddle because to cover up unpaid shortfalls, the Subpostmaster has to make more and more false entries in the accounts, eg by inputting false cash declarations. By this point it may be very difficult to separate the false entries for the real ones or, more importantly, to separate a loss caused by a genuine error and one caused by a false entry."

We know a number of Subpostmasters have been criminally prosecuted by the Post Office for false accounting and chased for their discrepancies under the Proceeds of Crime Act. It is something that Helen Dickinson herself as done. Ms Dickinson seemed like quite a nice person, if not one of the brightest tools in the box (she is a business fraud investigator and had never heard of the Enron scandal, one of the biggest business frauds of all time), and surprisingly incurious about what might be causing losses (she claimed to know very little about Horizon or how to interrogate it). 

Her job was to help get a prosecution of a Subpostmaster, and then go after their assets. The problems they may have had with Horizon didn't seem to concern her.

At the end of Ms Dickinson's evidence, Mr Green asked the question:

"Were there cases referred to the investigation team so that you could trace their assets through POCA?"

to which Ms Dickinson replied

"In some cases, yes."

This quote has not been checked against the agreed, signed-off transcript, and even then, the meaning might be ambivalent, but one interpretation of this question and answer was that Ms Dickinson was admitting that the Post Office sought criminal conviction in order to take Subpostmasters assets.

If that is what Ms Dickinson meant, m'learned friends at the Criminal Cases Review Commission might have one or two things to say about the convictions of 30 Subpostmasters they are currently considering.