Tuesday, 17 December 2019

They did it.

What a judgment. What an announcement.

I have spent many days of my life in Court 26 of the Rolls Building. Days I will never get back. Some were tedious, many were fascinating, a few were genuinely dramatic, but none held a candle to what happened yesterday afternoon.

As we know from the press statement on Wednesday last week, this litigation was supposed to be dead. Settled with an apology and £58m in compensation from the Post Office. Well - today's judgment re-energised the corpse and now the judge appears to have set in motion a Frankenstein's monster which could lay about the "nation's most trusted brand" and the IT firm which operates the Post Office's Horizon computer system, Fujitsu.

Court 26 is a big, badly designed room. It is around the size of a basketball court. Whilst it has generous amounts of space compared to most courtrooms, it is unsuited to coping with the dozens of claimants, their families, supporters, journalists, lawyers and observers who packed in there at 1.30pm on Monday 16 December 2019 to witness the second trial judgment being handed down.

Malicious prosecution

The first interesting discussion was about the possibility of claimants going after the Post Office for malicious prosecution. Normally with a settlement of this nature, claimants are prohibited from taking the defendant to court for any reason ever ever again, but the claimants' QC Patrick Green wanted the judge to make an order that claimants who have criminal prosecutions against their name should not be disbarred from pursuing the Post Office over criminal matters, simply because they have signed up to a civil settlement. After seeking agreement from the Post Office's QC Owain Draper (which, it transpired, was a formality), the judge made the order.

Then the judge made an announcement which stood outside of the 177,211 word findings he had just handed down. He told the parties and the court he had "grave concerns" about the evidence of the Fujitsu employees; so much so that he felt the veracity of evidence provided by Fujitsu employees in a number of Post Office prosecutions of Subpostmasters needed to be properly scrutinised. To that end, he would be supplying a dossier to the Director of Public Prosecutions for further investigation.

No one was expecting this. I was sitting with journalists from Computer Weekly, the Daily Mail and the Press Association and we all looked at each other, thinking pretty much the same thing. Fujitsu is now in the game.

The judgment

But why? How? I still haven't read every word of the Horizon trial judgment, so there may be some mitigating comments, but here are the choice quotes:

"The Post Office’s approach to evidence, even despite their considerable resources which are being liberally deployed at considerable cost, amounts to attack and disparagement of the claimants individually and collectively, together with the wholly unsatisfactory evidence of Fujitsu personnel such as Mr Parker."

Who is Mr Parker? Glad you asked:

"Mr Stephen Parker is... the Head of Post Office Application Support. He is therefore a very senior person. He first started work on what was then called the Royal Mail Group Account in 1997, which was before the introduction of Horizon. He has continued to provide support to the Post Office Account in the various roles he has occupied at Fujitsu throughout the whole of Horizon’s life, by which he meant both Legacy Horizon and Horizon Online."

So he, under oath, would tell the judge, the truth, right?

"Mr Parker chose specifically to give the impression in his 1st witness statement that Fujitsu did not have the power (the word Mr Parker expressly chose) to inject transactions into the counter at branches, even though he knew that it did. This paints him in a very poor light as a credible witness."

What did the judge think about Mr Parker's evidence, when exposed to cross-examination?

"I consider that Mr Parker, and the team who assisted him, sought to portray the Horizon system – Legacy Horizon and Horizon Online – in a light as favourable as possible to Fujitsu, regardless of its own internal evidence to the contrary, and regardless of the facts."

And the judge's conclusion about Fujitsu in general?

"Fujitsu do not,... appear to me to have properly and fully investigated.. myriad problems, nor did Fujitsu categorise such incidents correctly. They also seem to have moved away, in their investigations, from concluding that there were any issues with the software wherever it was possible for them to do so, regardless of evidence to the contrary, an approach that has been carried into the Fujitsu evidence for the Horizon Issues trial."

What about the Post Office?

They come in for the sort of pasting we have, perhaps, got used to. Their approach:

"has amounted, in reality, to bare assertions and denials that ignore what has actually occurred… It amounts to the 21st century equivalent of maintaining that the earth is flat.”

“A theme contained within some of the internal documents is an extreme sensitivity (seeming to verge, on occasion, to institutional paranoia) concerning any information that may throw doubt on the reputation of Horizon, or expose it to further scrutiny."

There may be more in parts of the judgment I have not yet reached, but this, to me, is the uncontrovertable conclusion which vindicates everything campaigning Subpostmasters have been saying for years:

"It was possible for bugs, errors or defects of the nature alleged by the claimants to have the potential both (a) to cause apparent or alleged discrepancies or shortfalls relating to Subpostmasters’ branch accounts or transactions, and also (b) to undermine the reliability of Horizon accurately to process and to record transactions as alleged by the claimants.... Further, all the evidence in the Horizon Issues trial shows not only was there the potential for this to occur, but it actually has happened, and on numerous occasions." [my italics]

Alan Bates was the lead claimant in the litigation and founder of the Justice for Subpostmasters' Alliance. His dogged determination to see the Post Office held to account is well documented. He is not a man who likes the spotlight, but I am sure he would have been at court yesterday if he were not recovering from a recent hospital visit. He sent through this statement from his hideout in Wales:

Alan Bates
"This judgment, like that of the Common Issues trial vindicates everything we have been saying for years. The real problem we have been left with is the unrecovered expenses which we have had to incur to pursue the litigation and which include considerable litigation financing fees, all of which have devoured most of the £58m damages, leaving little left to be shared between the group.

"It would seem, from some recent excellent research work Eleanor Shaihk undertook, that successive governments have failed in their statutory duty to oversee and manage Post Office and this is something that we are planning to ask our MPs to raise next year.  If it turns out to be correct, we will be wanting to recover everything we have had to spend doing the job government should have done.

"It isn't over yet, just the end of another chapter."

There will be a number of people who will want to thank Alan for what he has achieved. I wish him a speedy convalescence.

Media interest

After the judgment was handed down, outside court, there was quite the scene. Subpostmasters giving interviews en masse. Banners, photo ops, the lot. I saw a couple of TV cameras there, and whilst I haven't watched it yet, I am told this story finally made it onto the BBC ten o'clock news.

I interviewed every claimant I could persuade to speak to me, then I got a cab to Broadcasting House where I went into the BBC Radio 4 studios to do a hit for Evan Davis's PM programme (listen here, 45 minutes into the show). After that I spoke to Rebecca Jones on the BBC News Channel.
You can also listen to a lengthy interview I conducted this morning with one of the BBCs best presenters, Dotun Adebayo, on BBC Radio 5 live's Up All Night. It starts 33 minutes into the programme.

Also, if I could offer a plug for my current employers, may I recommend you tune in to Channel 5 News at 6.30pm today (Tuesday) 17 December, where I will be discussing this story further.

I hope to have read the whole of the judgment in its entirety by then. And I will post up everything I find on this website.

Final note

There are many takeaways from the second trial judgment day. The main one is that the claimants were apparently told in a pre-judgment meeting with their solicitors that the most they can expect to get from the £58m settlement is £8m - £11m. This is the sum that will be left after the legal fees have been paid and the litigation funders have taken their cut.

Watching what the Criminal Cases Review Commission does next will be interesting. Will it refer all 35 cases it's looking at to the Court of Appeal?

How is the Director of Public Prosecutions going to react to being sent a dossier of evidence by a judge about the quality of evidence from Fujitsu used in criminal prosecutions by the Post Office?

Will there be a public inquiry? The journalist Tony Collins has already explained how it could come about. Don't be surprised if various parliamentarians start calling for one.

UPDATE: At 8.38am this morning Lord Arbuthnot called for a judge-led inquiry. It'll be interesting to see if his Conservative colleagues in the new administration are minded to listen.

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