Thursday, 22 July 2021

Government to make interim payments of up to £100,000 to "unconvicted" Subpostmasters

Postmasters celebrating the quashing of their convictions in April this year

At last, a proper bit of cold, hard cash will finally be making its way into campaigning Subpostmasters' pockets, and soon.

Today the Business Secretary, Kwasi Kwarteng told parliament:

"interim payments of up to £100,000 promptly to individual postmasters whose criminal convictions relied on Horizon data and have been quashed, ahead of final compensation settlements being agreed with them."

Paul Scully, the minister for Postal Affairs said:

"The suffering and distress these postmasters and their families have gone through cannot be overstated. While nothing will make up for the years of pain they faced after this appalling injustice, I hope this initial step provides a measure of comfort."

The government has chosen to ignore the majority of civil claimants, led by Alan Bates, the founder of the Justice for Subpostmasters Alliance, who won a stunning series of victories against the Post Office at the High Court

Nothing yet for civil claimants

The 555 claimants in that case won £57.75m in compensation from the Post Office, but £46m went on lawyers' and litigation funders' fees, as the Post Office allegedly pursued a deliberate strategy to try to outspend the claimants in court.

Bates' has been demanding the £46m from the government ever since. His claims have so far been ignored, despite the Post Office supporting his argument.

I spoke to a delighted Seema Misra today. Vindication is one thing, and for her it was the single most important thing, but it doesn't pay the mortgage. 

Seema was sent to prison in 2010 on her son's tenth birthday whilst she was pregnant with her second child. She very nearly lost her baby (who I am delighted to say is now a delightful young man). I made this film with Seema's husband, Davinder, whilst his wife was still in prison.

Immense anguish

There are people who have been earning a pittance or not working at all for years as a result of the convictions. The nest eggs they should have been building don't exist, they have debts and difficulties that were visited on them by a state-owned prosecution machine which did not have anything like the competence to wield its power properly.

Janet Skinner, who was sent to prison in 2007, and whose conviction was quashed in April this year, alongside Seema's, issued a statement today saying:

"I had to wait 14 years to have my wrongful conviction by the Post Office overturned by the Court of Appeal. I welcome today's announcement. The government, as the Post Office's owner and sole shareholder, was behind the Post Office's ruthless and unjustified defence of the civil litigation in which I was one of the claimants. That litigation caused immense anguish to those who like me - and my family - who had already suffered so much by wrongful imprisonment."

Tracy Felstead, who was sent to prison aged 19 in 2002 told me: 

"I’m happy and I’m glad the government and the Post Office are trying to sort this terrible miscarriage of justice. Unfortunately for some it’s too late, but I am grateful that they are trying to put an end to this."

Tracy has spent almost her entire adult life a convicted criminal, and knowing she had been wrongfully convicted caused her all sorts of mental health problems. I spoke to her this morning (before we knew the government was going to make this announcement) and she told me of the flashbacks, sleeplessness paranoia and trust issues which have plagued her life. 

l-r Seema, Janet and Tracy, on the day their convictions were quashed

Tracy also said that despite her conviction being quashed she still thinks everything is going to be taken away from her, because when she was a young woman the state took everything away from her and gave her no coherent reason for doing so. What's to stop that happening again?

Neil Hudgell, the solicitor representing the vast majority of the Subpostmasters whose convictions have been overturned at the Court of Appeal and the Crown Court in the last few months said:

“The dialogue we have been having with legal representatives instructed by the Post Office has been very positive to this date and there appears to be good intentions. This cautiously positive step is to be welcomed and suggests, hopefully, that the Post Office is now intending to do right by the many people it has harmed so badly.  This cannot be a delaying gesture though. This is money to which these clients are entitled. With regards to how final settlements are agreed, we want them to come to the table and be meaningful in what they put forward."

The Postmasters will have to apply for their interim payment, but it will not affect their rights to sue the Post Office for malicious prosecution. The Post Office has said it hopes the total sums of compensation due to individual Subpostmasters can be resolved by Alternative Dispute Resolution, often seen as a quicker and cheaper route to justice.

Paul Marshall, the barrister who worked with Seema Misra, Tracy Felstead and Janet Skinner said today:

"Interim payments of up to £100,000 to be made by the government (given that the Post Office has been rendered technically insolvent by the scale of the claims against it) to those whose convictions were quashed on appeal will no doubt make a very considerable difference to many of those afflicted by the Post Office’s mendacity in its prosecutions and its subsequent ill-conceived defence of the civil claims made against it.  It is also a very sensible commercial decision that may well protect the Post Office from a sizeable number of modest claims for malicious prosecution."   

Marshall wonders: 

"whether the government’s change of heart may be informed by considerations as to how things may play out in the Williams’ Inquiry, and that no harm will be done to the government by being seen to do ‘the decent thing’"

The Post Office CEO, Nick Read, said:

“Ensuring compensation is made as quickly as possible is a priority for Post Office. I welcome the Government’s support to enable these interim payments that begin to provide some redress to people who were badly failed. Whilst we cannot change the past, this is an important step towards meaningful compensation for victims and we will offer payments as soon as possible.”

Last word to Tim Brentall, a Hudgells client, whose conviction was quashed on Monday. He simply said: "It's a decent start."

Oh, and if you want to know what scandal is in Turkish, it's "skandalinda" - this story is spreading...*

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UPDATE: * I am indebted to Matthew Scott, author of the excellent Barrister Blog, who kindly pointed out to me (within hours of the above piece being posted) that the Turkish for scandal is, rather prosaically, "skandal". 

He writes: "Skandalı can mean "the scandal" (it's more complicated than that though), and skandalında means "in the scandal"."

If I ever try to teach you Turkish again, suggest we do something else.

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This blog is crowdfunded. I am also writing a book called The Great Post Office Scandal, which will be published by Bath Publishing in October 2021. If you would like to put a few quid in the tip jar (and join the "secret" email newsletter mailing list) or would like to buy a copy of the book, please click here.

Monday, 19 July 2021

12 more convictions quashed - total now 59


(l-r) Sami Sabet, Carina Price, Harmukh Shingadia, Jerry Hosi, Tim Brentnall

Twelve more Subpostmasters have had their convictions quashed at the Court of Appeal today. 

They were part of a group of 31 appeals under consideration. All of the twelve whose convictions were quashed were prosecuted by the Post Office, with Horizon IT evidence central to their prosecutions. The Post Office chose not to oppose the appeals, which allowed the courts to overturn them at the earliest possible opportunity - today.

The first person I introduced myself to outside court was Jerry Hosi, who you can see with his thumbs up in the picture above. Jerry ran the Porters Avenue Post Office in Dagenham. He found himself with an £82,000 discrepancy. He said all along it was Horizon causing problems and his case went to trial. In 2010 he was found guilty of theft, false accounting and fraud and sentenced to nearly two years in Pentonville Prison. Today he just said: "I feel very proud and I feel very happy because justice has finally been done.”

Tim Bentnall, who I recently interviewed, came down from Pembrokeshire with his partner Steph. He said he was feeling:

"Up in the clouds. Amazing. I still have this burning anger at the Post Office inside me but at the moment we’re up at the top."
Tim 'n Steph

Tim was convicted in 2010 after pleading guilty to false accounting. I asked him how he'd slept ahead of today's hearing. He gave a revealing answer:

"Not last night, no, I haven’t slept well… When I had the email from Hudgells to say my appeal wasn’t being opposed - I slept so well for the next three nights it made me realise how I haven’t slept for the last ten years. If you’d asked me three months ago I’d have said yeah I’m fine, I’ve dealt with it really well, I’m really stoic but now knowing that I’ve been vindicated you realise how low… and how it has affected you over this decade.”

I asked what were his feelings towards the Post Office over the way it had behaved. He replied:

"Disgust and anger. There’s hundreds of us now, and one of the main points was they convinced nearly every one of us that it was only a singular occurance - that we were only having our own individual problem. When I was prosecuted in 2010, there was a huge number of prosecutions going on."

Carina Price, flanked by husband Steve (l) and Neil Hudgell from Hudgell solicitors

Carina Price was convicted in 2005 after auditors found a £13,000 hole in her accounts at Sopley Post Office, near Ringwood in Dorset. Carina said the the last 16 years have been hard:

"It broke my marriage up. It was a very bad time. I had a breakdown over it. Before they [the Post Office investigators] came in and everything else I couldn’t understand what was going wrong and i was tearing my hair out over it and I was getting to the point where I was suicidal, because I just couldn’t work out what was going wrong."

Carina first found out she wasn't alone by making contact with the Justice for Subpostmasters Alliance: 

"Then I realised I wasn’t the only person. But the problem was, I wasn’t coping very well  and I lost touch with them. And I thought the Post Office would win! I thought the JFSA were never going to get anywhere with this. Then I heard about the first court cases going on at the Court of Appeal so I phoned Hudgells.”

Carina says her legal team have done "an amazing job. They’ve turned our lives around with all the work they’ve done."

The 19 remaining cases are all being opposed. They will be heard over five days either towards the end of this year or next year. Fifteen of the cases are Post Office prosecutions and four are being opposed by the Crown Prosecution Service. The reason for the CPS being involved is because the DWP, who prosecuted four of the appellants, had its prosecution function folded into the CPS some time ago.

Only one of the 19 cases is a direct referral from the Criminal Cases Review Commission. He is an appellant. The other 18 are applicants who applied direct to the Court of Appeal. The Court of Appeal has not yet given them leave to appeal and has ordered them to make their case to a single High Court judge in order to get to the appellant state. All are represented by Hudgells.

In April this year the Court of Appeal upheld the three convictions which were opposed by the Post Office, which argued Horizon data was not essential to their cases. Of the 15 cases the Post Office is opposing this time round, they are taking the same position. The DWP is refusing to comment.

On today's successful appeals the Post Office said:

“Post Office is sincerely sorry for past failures and we welcome the Court’s decision today to quash convictions without delay in the appeals we supported.

“We are making strenuous efforts to fairly address historical miscarriages of justice, including an extensive review of prosecutions since 1999 to identify and disclose all material which might affect the safety of convictions.

“We are also transforming our organisation to prevent such events ever happening again and to re-set our relationship with postmasters.”

Neil Hudgell said:
"Today is another step forward in terms of maintaining the momentum and ensuring we continue to contest every unsafe conviction as a result of the Post Office using its faulty Horizon computer system to pursue prosecutions against decent, honest, law-abiding people. 

“Once again we have been proud to represent a group of people here who did no wrong, who were bullied into admitting to crimes they had not committed, made to pay back large sums of money they had not taken and who saw their lives irreparably damaged as a result. 

“This group again includes people who spent time in prison. Sadly, what happened to each individual and their families can never be reversed. That makes it all the more important for it to be recognised by the Post Office and the courts.”

If you want to read today's live-tweets from inside court, they are all collated here on one easy-to-read web page.

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This blog is crowdfunded. I am also writing a book called The Great Post Office Scandal, which will be published by Bath Publishing in October 2021. If you would like to put a few quid in the tip jar (and join the "secret" email newsletter mailing list) or would like to buy a copy of the book, please click here.

Sunday, 11 July 2021

Second Sight were told about remote access in 2012

On Monday 7 June 2021 a panel of wise minds gathered remotely at an event hosted by University College London's Faculty of Law to discuss "Justice for Subpostmasters in the Post Office case". The seminar was chaired by Iris Chiu, the director of the centre for Ethics and Law at UCL.

It was a fascinating two hour event, which can be watched here or above on the embedded youtube link.

The participants were: Ian Henderson from Second Sight, Paul Marshall from Cornerstone Barristers, Flora Page from 23 Essex Chambers, Nick Gould from Aria Grace Law, Dineshi Ramesh from Board Intelligence, Anthony Edwards (retired solicitor), Jonathan Rogers from the University of Cambridge, Richard Moorhead from the University of Exeter and Alan Brener from the Centre for Ethics and Law at UCL.

As Mr Henderson explains below, Second Sight were appointed in 2012 by MPs, campaigners and the Post Office to conducted an independent investigation of the Post Office's Horizon IT system. They were contracted by the Post Office.

Mr Henderson's brief presentation on 7 June 2021 contained information not yet widely known:

- The admission by Fujitsu engineer and Horizon Architect Gareth Jenkins in September 2012 of routine remote access to branch terminals without the specific consent or knowledge of Subpostmasters

- Second Sight's concerns about prosecutor misconduct at the Post Office.

- The "litigation hold" instruction in 2012 which should have preserved all relevant documents at that point and going forward. (Possibly ignored according to the Clarke Advices documents)

- The existence of "CD1" as a definitive record of prosecution documents including legal advice to Post Office in September 2012. 

Mr Henderson also provided a list of question he feels need to be addressed by the Williams inquiry into the Post Office scandal.

Remote access

Before you read the full transcript of Mr Henderson's contribution, consider this: if Gareth Jenkins was telling the Post Office's independent investigators that remote access to branch terminals without the specific consent or knowledge of Subpostmasters was possible in 2012:

- what was the chief executive of the Post Office doing telling her staff she needed to know it was not possible in January 2015?

- what were three senior Post Office Executives - Mark Davies, Patrick Bourke and Angela van den Bogerd - doing telling Panorama later the same year that it was definitely not possible?

Second Sight issued its final report on 9 April 2015. In it, the authors (of whom Mr Henderson was one) state:

“Our current, evidence-based opinion is that Fujitsu/Post Office, did have and may well still have the ability to directly alter branch records without the knowledge of the Subpostmaster.”

The Post Office suppressed that report and circulated a rebuttal document, rubbishing everything in it. I published Second Sight's report in full shortly afterwards.

You can read the full text of Mr Henderson's presentation below:

"Good afternoon

Thank you for the opportunity to provide some background to these appalling miscarriages of justice.

My name is Ian Henderson. I am a director of Second Sight, the forensic accountancy firm appointed in 2012 to conduct an independent investigation into matters of concern relating to the Horizon IT system. I am qualified both as a Chartered Accountant and as an IT Auditor.

Second Sight was appointed by a small group of Members of Parliament at the request of the Justice for Subpostmasters Alliance (‘JFSA’). Our professional fees were paid directly by Post Office, who also supported our appointment. JFSA had been pressing for some form of independent inquiry for many years and had gained the support of influential MPs representing constituents who had suffered mysterious shortfalls in branch accounts.

Our appointment was not straightforward. There was much suspicion that we would be a “poodle” for Post Office, or otherwise fail to approach the inquiry from a fiercely independent, professional point of view. 

Our terms of appointment were quite clear. They included:

• Unrestricted access to documents held by Post Office (including documents subject to confidentiality and legal professional privilege); 

• No limitation in the scope of work determined necessary by Second Sight.

In the course of our work, over more than 3 years, we investigated approximately 140 individual cases. 

We reviewed the sub-postmasters’ own assertions; the cases put forward on their behalf by their professional advisors together with Post Office’s reports prepared in response. 

We examined thousands of documents and established which were significant. We created a structured, evidential database of over 34,000 individual documents. 

We identified 19 thematic issues that were common features to many of the cases under examination. 

We were then able to cross-reference each case to others having similar characteristics.  

Our work started in the summer of 2012. Initially, Post Office were co-operative and appeared committed to the agreed goal – “to seek the truth, irrespective of the consequences”. 

Within a few days of our appointment, we asked for 2 actions to be taken:

Issue a Post Office wide “litigation hold” that would prevent any further documents being destroyed; and

Send all of the prosecution files then held by Post Office to a third-party scanning bureau. This ensured that these vital documents would be preserved and made more readily available. This comprised approximately 4,000 documents and was known as CD1.

In September 2012 I met with Gareth Jenkins, the lead engineer for Horizon, at the head office of Fujitsu in Bracknell. I was told that approximately 10 members of staff from Post Office were permanently based in Bracknell, dealing with various issues including bugs, errors and defects. 

I was also told that Fujitsu routinely used remote access to branch terminals for various purposes, without the knowledge or specific consent of individual sub-postmasters. 

Within days of being provided with CD1, we realised that we may be looking at a significant number of miscarriages of justice. There was a lack of effective investigation, multiple disclosure failures and conduct by prosecutors that needed to be considered by experts in criminal law and prosecutions.

At about this time, the attitude of Post Office changed. Requests for further documents and explanations were taking longer and longer to be provided.

By this stage we were supporting the Complaint and Mediation Scheme set up by Post Office and chaired by Sir Anthony Hooper, a retired Court of Appeal Judge.

We were getting increasing amounts of push-back from Post Office. Let us look briefly at a clip from the 2015 Select Committee hearing:

"Ian Henderson: We felt it was necessary for us to review the internal legal files, looking at the depth of any investigation that had happened and possibly even legal advice relating to the prosecution.

Nadhim Zahawi: Paula, why don’t you hand those files over? What is the problem?

Paula Vennells: The point I want to pick up first, if I may—

Nadhim Zahawi: No, answer my question. Why will you not give Ian Henderson those files?

Paula Vennells: As far as I am aware, Mr Zahawi, we have shared whatever information was appropriate on every single individual.

Nadhim Zahawi: That is not what Ian Henderson is saying.

Paula Vennells: It is the first time, personally, that I have heard that. I am happy to go away and have a look.

Nadhim Zahawi: He has said that under no circumstances could he be given those files. That is what you have just told me. Is that right?

Ian Henderson: We have not been given those files.

Nadhim Zahawi: You have been told by Paula’s organisation that under no circumstances could you be given those files. Is that right or wrong?

Paula Vennells: Who told you that, Ian?

Ian Henderson: It came up at one of the working group meetings, at which you and I were present.

Angela van den Bogerd: I do not recall that conversation.

Nadhim Zahawi: This sounds like a shambles to me. You came in here and opened by saying the system was working beautifully. You now realise why you are in front of the Committee.

Paula Vennells: Ian said—he is quite right—that the reason we set up this mediation scheme was to get to the truth about this system. The system itself is working very well.

Nadhim Zahawi: But you have been obstructive. We are hearing from Ian that your organisation has been obstructive to his independent work. Is that right or wrong?

Paula Vennells: It is wrong. We have provided for every single case detailed, thorough, independent investigation. They run to pages and pages of reports. There are on average 80 pieces of evidence—

Nadhim Zahawi: Let me stop you here. We have just heard from Ian Henderson, who is independent, that you have not provided the prosecution files that they think they should look at. They need your files, not just what is publicly available. They need that information. Will you provide it? Yes or no?

Paula Vennells: Mr Zahawi, you have just heard that it is the first time I have heard that piece of information.

Nadhim Zahawi: I am simply asking for a commitment from you. You are the head of the organisation. Will you provide it? Yes or no? Give me a simple answer.

Paula Vennells: Mr Henderson is a forensic accountant. He is not a qualified legal individual. Neither am I.

Nadhim Zahawi: I am simply asking whether you will provide it—yes or no?

Paula Vennells: I am not prepared on behalf of the Post Office to give—

Nadhim Zahawi: Right. I have got my answer. You will not provide it.

Paula Vennells: No, you have not got your answer. You have not heard a yes or a no. I am simply saying that at the moment I am not able to answer your question.

Nadhim Zahawi: Why?

Paula Vennells: Because I do not know the details of the situation.

Nadhim Zahawi: You used to provide the information and you have stopped providing it. Will you provide it going forward? Yes or no?

Paula Vennells: I am not aware that we stopped what we provided previously. Angela has been involved daily for the last two years. She sits on the working group alongside Ian at Second Sight. If there is a misunderstanding, I am happy to—

Nadhim Zahawi: Angela, will you provide it? If your CEO cannot answer, will you provide the prosecution files as requested by Ian Henderson?

Angela van den Bogerd: Mr Zahawi, as Ian said, we have previously provided them, and we have provided the information necessary for those investigations as a pack. So there are thousands of pieces of information already provided to Second Sight.

Nadhim Zahawi: But we have heard already that he has been obstructed from getting the legal files that you use internally, which he used to get before. That is what I have heard. Will you now commit to providing those files going forward?

Angela van den Bogerd: We provided them to Second Sight early in the investigation.

Nadhim Zahawi: Will you provide them?

Angela van den Bogerd: Just let me finish, please. We have been working with Second Sight over the last few weeks to get to an understanding of what we need to provide. We are working through those, and information has been flowing.

Nadhim Zahawi: So you do not understand what you need to provide?

Angela van den Bogerd: We have been providing what we agreed we would provide at the outset."

In this response, Post Office does not appear to understand the role of an investigator, which is to establish the facts, ask probing questions and to communicate concerns identified to the appropriate people. You do not have to be legally qualified in order to do this. 

At the request of the Parliamentary Select Committee, I provided further evidence justifying our need for access to the full prosecution files. In February 2015 I wrote:

a) The Prosecution knew that there was insufficient evidence to support a charge of Theft, but proceeded with it, nonetheless. 

b) The offer by the Prosecution to remove the charge of Theft was used to put pressure on the defendant to plead guilty to the False Accounting charges and to make good the alleged losses. 

c) The threat of proceeding with a charge of Theft was primarily to assist in the recovery of losses, and not in the interest of Justice. 

d) The Prosecution insisted that as part of the agreement to drop the charge of Theft, that no mention of alleged problems with the Horizon computer system would be made.

The new facts that have come to light as a result of examining a single complete legal file, have identified a number of issues that indicate: 

a) Possible misconduct by a Prosecutor on behalf of Post Office; and

b) A possible miscarriage of justice. 

In my view, this analysis of a single complete legal file, has demonstrated the benefit of doing so; particularly bearing in mind the stated objective of Post Office to thoroughly investigate possible miscarriages of justice.

Little did I know in 2015, that the defendant referenced (but anonymised) in this sample case, would become the lead appellant in the 23rd of April hearing by the Court of Appeal which resulted in 39 criminal convictions being overturned. 

I would like to close with a few words attributed (possible wrongly) to Edmund Burke:

“The only thing necessary for the triumph of evil is for good men to do nothing”

Second Sight went as far as it could, within the constraints of Non-Disclosure Agreements, to publicise our findings and our concerns. We said very publicly that we were concerned about the possibility of misconduct by prosecutors and miscarriages of justice.

It is disappointing that it took almost 9 years from when we first started work for these gross miscarriages of justice to be properly addressed.

There is much more that needs to be done and many questions that still to be answered. For example:

Was prosecution policy within Post Office and Royal Mail influenced by a desire to maximise value prior to an eventual sale or mutualisation proposal?

Did Post Office continue to destroy documents after the litigation hold instruction was issued in 2012?

Why were key documents such as the Clarke Advices and the Detica report not disclosed to Second Sight by Post Office? 

When were these documents disclosed to the Board of Post Office?

Why did no one take action in 2013 when Second Sight first raised many of our concerns in our Interim Report that was published by Post Office?

Why was the Select Committee not more effective in following through on their excellent work in 2015?

Was the failed ICL / Pathway project (Horizon’s predecessor system in 1998) a contributing factor to the bugs, errors and defects now identified?

Did the Board of Post Office approve the disastrous litigation strategy, including the recusal application in the Group Litigation Order (“GLO”) trial?

Did the 2 Government nominated directors on the Board of Post Office support or approve the approximately £130 million of legal costs incurred by Post Office in the GLO trial?

Was this regarded as value for money?

Was there a cover-up within Post Office and or Government of the disastrous decision making within Post Office?

I trust that these questions will be addressed in the statutory enquiry by Sir Wyn Williams, which is now underway.

Thank you very much."

Flora Page has already published her speaking notes for the same event here (titled "When Machines Go Wrong").

Paul Marshall's presentation contained many of the themes he expanded on in a previous talk to the University of Law on 4 June. I have reproduced the text of that talk here - and the page has been updated to include a link to the audio recording of the presentation.

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If you are interested in this story, I would be most grateful if you would buy a pre-sale copy of my forthcoming book, The Great Post Office Scandal: the fight to expose a multimillion pound IT disaster which put innocent people in jail, which will be published by Bath Publishing in October 2021. For more information, please click here.

Value of claims to Historical Shortfall Scheme revealed


The total amount of compensation being claimed by 2,200 applicants to the Post Office's Historical Shortfall Scheme has been revealed as £311m. It was this figure which prompted the CEO of the Post Office to say in April this year that "The Post Office simply does not have the financial resources to provide meaningful compensation." 

The Historical Shortfall Scheme was set up as a condition of the Bates v Post Office settlement agreement. It is not open to claimants in Bates v Post Office, nor is it open to those Postmasters who have or had criminal convictions. The application window was only open from May to August 2020. By 2021 the Post Office had confirmed to parliament the final number of claimants accepted onto the scheme was 2,400, which means the final compensation bill could be commensurately higher.

The £311m figure came to light in a BEIS (the government's business department) Partner Organisation Risk Analysis document from 2020, uncovered thanks to the tireless work of Eleanor Shaikh. It is now published here. The document also reveals that when announcing the scheme, the Post Office had privately budgeted £35m to cover it. The £311m figure appears to have been a complete surprise. Assessing the sum of claims, the document states: "There is a risk that this would impact POL's ability to operate as a going concern."

It also suggests the Post Office board still, by 2020, had absolutely no idea what the organisation it was running had been up to over the previous two decades. To get its estimates wrong by a factor of nine suggests the board is either still not being given correct information by its own departments, or the Post Office has not kept proper records. Either reason points to worrying levels of incompetence.

The government has since stepped in to underwrite the Historical Shortfall Scheme.

The same document bundle just published by BEIS on the back of Ms Shaikh's request also notes that due to a significant downturn in volumes, the Post Office's operating profit in 2020/2021 is likely to drop from an estimate of £90m to £10m. The Post Office's exposure to litigation has also been moved up from Medium/Possible to High/Possible. 

Given how many now-unconvicted Subpostmasters are in the process of preparing to sue the Post Office for blighting their lives, I would suggest the risk is now High/Probable, rather than High/Possible.

Who is responsible for this mess?

The initial failure lies in a business model which unfairly loaded the Post Office's technical and process risk onto powerless individual Subpostmasters, and then improperly used the criminal courts as a weapon of enforcement and menace. None of the people responsible for this strategy have been required to account for their actions.

There was also a significant moment in 2013 when the Post Office board, having set up the Complaint and Mediation Scheme, turned it into a legalistic war of attrition, in a manner described in Parliament a year later as "duplicitous."

We don't know who specifically is responsible for this. It coincided with the arrival of an "interim" General Counsel at the Post Office, Chris Aujard, who left just before the Complaint and Mediation Scheme was wound up. 

Whether he was instructed to run the scheme in the way he did, or whether he came up with the strategy is immaterial. The Post Office board signed it off, with Paula Vennells - chief executive at the time - ultimately responsible. Between 2013 and 2019, the Post Office did what it could to delay justice to the original group of complainants. This strategy failed miserably and incurred tens of millions of pounds in compensation and costs.

The precious hunt for profitability Vennells and her board were focused on between 2012 and 2019 has been more than cancelled out by the hundreds of millions of pounds in compensation the Post Office is now going to have to hand over via its Historical Shortfall Scheme, and, if the claimants are successful, the malicious prosecution claims.

It takes quite a special bunch of people to roll out a massive IT network which doesn't work, unfairly prosecute dozens, possibly hundreds of people in the criminal courts, cleave blindly to a ruinous litigation strategy, and then flounder about in a morass of compensation and further litigation without anyone facing any censure whatsoever. In fact, most of the people involved earned very significant sums whilst creating one of the biggest corporate disasters in modern history. Well done, everyone.

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If you are interested in this story, I would be most grateful if you would buy a pre-sale copy of my forthcoming book, The Great Post Office Scandal: the fight to expose a multimillion pound IT disaster which put innocent people in jail, which will be published by Bath Publishing in October 2021. For more information, please click here.

Sunday, 4 July 2021

Search

If you are reading this blog on a mobile device, you cannot access the navigation bar or search box which is available to desktop users, unless you scroll to the bottom and click on "View web version". This page is something of a get around, by putting the search box into a main page. 

The search function within blogger is actually very good, so just type a few key words and you'll hopefully find what you're looking for:

Thursday, 1 July 2021

31 new Subpostmaster appeals - 10 convictions certain to be quashed - Tim Brentnall's tale

Tim Brentnall
Ten more Subpostmasters whose cases are being readied for court have been told the Post Office will not be contesting their appeals.

One of those former Subpostmasters is Tim Brentnall (left), a 39 year old who took over the Post Office counter in his parents' shop in Roch in Pembrokeshire, when he was in his early twenties. 

Today Tim told me he was feeling "a huge mixture of emotions. Both elated that I've been vindicated after all these years but so hollow and upset." 

Tim was prosecuted for false accounting in 2010 over a £22,000 discrepancy at his branch. He was told that "no one else has these problems." 

Tim says he was threatened by the Post Office with a theft charge if he didn't "make good" the £22,000. His parents scraped it together from their life savings. As soon as he had given the Post Office the money, they prosecuted him for false accounting.

It didn't occur to Tim or his legal team to challenge the integrity of the Horizon data - the accounting IT system used by the Post Office. His solicitors and barrister advised him to plead guilty to stay out of jail. He did, and was given an 18 month suspended sentence with 200 hours community service. Tim had no idea that during 2010, the Post Office was prosecuting more than one Subpostmaster a week - they'd convicted 55 by Christmast that year. He thought he was the only one. 

"I'm so angry that they've done it to so many people, and not just myself." he told me "And the fact we've had to fight so hard. They've fought us every step of the way and thrown everything at us that they can. It feels to me they've tried every manoeuvre possible to try to bury this."

A difficult few years

Tim has always maintained his innocence. He was a claimant in the civil litigation, but whilst the case was ongoing, Tim's partner Steph was diagnosed with thyroid cancer. Tim has focusing his energies on looking after Steph for most of the last four years (particularly last year, when Steph's cancer was found to have spread) and wasn't particularly engaged with the fallout from civil court case. When he saw his fellow Postmasters' convictions being quashed in April, he put in an application direct to the Court of Appeal. The quashing of his conviction is, as of yesterday, now a formality.

Tim and Steph

Tim is one of the "lucky" ones. There are 31 appellants in the latest cohort going through the Court of Appeal. The Post Office is resisting 15 of them on the basis that Horizon data was not essential to each prosecution. It is still deciding about three of them. The remaining three appear to be DWP prosecutions, despite at least one being Horizon-related. 

I asked the DWP for more information about these cases, including how many more Subpostmasters it might have prosecuted. The DWP refused to make any comment on the ongoing cases and told me it had destroyed all records relating to prosecutions more than six years old. 

When I challenged that with a Freedom of Information request it was confirmed. The DWP is adamant it doesn't hold on to information older than six years. 

This is odd because two of the DWP cases are being opposed, with one still uncertain. The evidence available to oppose those appeals must exist somewhere. It is possible the Post Office may be responsible. I have asked them to tell me what, if any, involvement they had in giving DWP prosecutors Horizon data at the time of the convictions, and what historical data might be being used now.

Neil Hudgell, the solicitor who is representing 30 of the 31 Subpostmasters (including Tim) in the latest round of appeals said:

"We are obviously very pleased on behalf of the 10 further clients whose names are now set to be cleared at the Court of Appeal. These are all people with very similar stories to those who have already quite rightly had their convictions quashed, and again includes some people who spent time in prison as a result of these wrongful convictions."

Mr Hudgell says he needs to examine why the Post Office is opposing the remaining 15, but can't do so meaningfully until he has full disclosure. This is expected to take several weeks.

Post Office board directly involved

The Post Office says their decisions were taken "following careful consideration of each case by the Post Office Board, including the Court of Appeal’s findings in their Judgment in April in relation to previous appeals."

This public, high level ownership of the decision-making process is very interesting. New fault-lines in the appeals process are obviously being drawn. This could lead to another battle royale at the Court of Appeal if Hudgells and their QC, Tim Moloney, believe there is enough evidence to persuade the court all their clients' convictions should be quashed.

Tim Brentnall spent his 200 hours community service working for Mind, the mental health charity. They were so impressed with how he handled people they employed him for the next six years. He still lives in Roch, which is a tiny village. It means he suffered a whispering campaign for years after his conviction - unable to go to his local pub because people would say he'd ripped off the Post Office. 

"When I think about what I've lost... the dream was I'd still be running the Post Office. We bought it so I could build the business and they just completely soured the whole thing."

The conviction has obviously affected his career. "After my work at Mind, there have been several jobs that I've applied for in that mental health or social work field that have just been turned down straight away. What the Post Office did to me in 2009 has had a hold on every single thing I've been trying to do since."

Even this year, when some locals saw he wasn't in the cohort of Subpostmasters whose convictions were overturned in April, they sneered at him, suggesting that because Tim hadn't got his appeal over the line he must have been guilty all along. In fact, he hadn't even applied.

Tim is still mystified as to how the Post Office investigators and prosecutors were ever allowed to get away with what they did.

"The more that you hear about these cases, I can't understand why the people in charge, morally, could do it to start with and then the people above them and the government have allowed them to do it."

Steph is continuing her cancer treatment and responding well, but she's not out of the woods yet. Tim got in touch because he wanted to put on the record his gratitude to his parents for helping him in the way they did and "everyone that stood by me for their support."

I'm really grateful to Tim and Steph for their time. Tim's never told his story before, having always been concerned that without formal confirmation of his innocence people might continue to cast aspersions. 

He should soon have it confirmed that he is, and always was, innocent of any crime, and should never have been prosecuted.

 **********************

This blog is crowdfunded. I am also currently writing a book called The Great Post Office Scandal which will be published by Bath Publishing this autumn. If you would like to buy a pre-sale copy, I would be very grateful. For more information, please click here.

Friday, 4 June 2021

Marshall spells it out: speech to University of Law

P. Marshall Esq
What follows is perhaps the most important speech given on the subject of the Post Office Horizon IT scandal to date. 

I watched Mr Marshall deliver it remotely yesterday evening on Zoom to a couple of hundred students at the University of Law in London. He has very kindly given me permission to reprint it below.

The text contains a forensic analysis of the legal, ethical, individual and corporate failures that led the Post Office and the legal profession to do significant harms to hundreds of helpless individuals. 

The specific humiliations meted out to Janet Skinner, Seema Misra, Lee Castleton and Tracy Felstead are described in detail. The institutional culpability is laid bare. 

You can listen to the presentation here. The text is below. 

   THE UNIVERSITY OF LAW 

3rd June 2021

SCANDAL AT THE POST OFFICE

THE INTERSECTION OF LAW, ETHICS AND POLITICS

PAUL MARSHALL

PART I - INTRODUCTION

The great historian AJP Taylor in his History of England between 1914 and 1945 observed that, until 1914 the only emanations of the state that most English people would have encountered would have been the policeman and the Post Office.   

By 1999 the Post Office had a network of about 17,000 branches. It is still, I believe, the largest retailer in the UK.  A Post Office branch operation is considerably more complicated than those of an ordinary high street bank branch.  It sells stamps to insurance and, like banks, deals in foreign currency.   

I am talking to you today about the most serious series of miscarriages of justice in recent English history.  To put it in tabloid terms, for 20 years the Post Office hijacked the English criminal justice system and used it, essentially as part of the Post Office for its own purposes. In the process, it ruined the lives and livelihoods of hundreds of innocent people.  What I shall try and show, if you can follow my thread, is how ethical failure in business, when it feeds into legal failure by lawyers and judges, becomes incredibly damaging.  When politicians run for the hills and disclaim responsibility for the Post Office, a wholly-owned creature of government, the problem becomes almost insuperable.  If you can’t look to Parliament, what can you do? 

To understand what I am going to say, you need to know that in 2019 there was a settlement of group litigation brought by 550 claimants against the Post Office.  The settlement figure paid by the Post Office was £57 million.  Most of that sum was paid out in costs and expenses.  Sixty-six of the claimants had criminal convictions.   In March 2021 the Court of Appeal heard 42 appeals of convicted postmasters and employees. It quashed 39 of these on grounds that the Post Office had abused the processes of the court: Hamilton and ors. v Post Office Ltd [2021] EWCA Crim 577. https://www.bailii.org/ew/cases/EWCA/Crim/2021/577.html. The number of those appeals, arising out of similar facts, is without precedent in English law.

The Court of Appeal judgment is remarkable. This is because, in a finding that is comparatively rare, the Court of Appeal concluded that, not only should the convictions of 39 former postmasters and employees be quashed on grounds of abuse of process, because the appellants did not receive a fair trial, but that, additionally, the Post Office had acted in such a way as to subvert the integrity of the criminal justice system and public confidence in it.  In legal terms this is known as ‘second category’ abuse of process.  It was a devastating finding for the Post Office that it had strenuously resisted.  I claim some credit for this conclusion because, until the end of December 2020, every other lawyer in the case, other than my solicitors Aria Grace Law and my junior, Flora Page, had been opposed to advancing that ground of appeal.  My clients had received a certain amount of flak for persisting in it, because others believed it would fail, even if the Court of Appeal was willing to entertain it, which others thought it well might not. 

The importance of this finding for the appellants was enormous.  The effect of the Court of Appeal’s finding, given effect in slightly anachronistic Victorian language - that the Post Office’s conduct “offended the conscience of the court”, is that the appellant should not only not have been convicted, but should not have been prosecuted. That is to say, complete exoneration. My pursuit of that issue, and perception that the Post Office’s conduct was much worse than merely failing to give proper disclosure of problems with Horizon, that it conceded in October 2020, is what eventually enabled me, with Aria Grace, to elicit from the Post Office the “Clarke Advice”, to which I will refer later.

The day after the Court of Appeal’s judgment, Mrs Paula Vennells, the Post Office’s former CEO, resigned from all her corporate directorial appointments and also gave-up her part-time ecclesiastical appointment.  

But the many hundreds of miscarriages of justice, now estimated to be around 736 or so, came within a hair’s breadth of not being discovered.  

It cost upwards of £150 million for the civil litigation to get close to the truth of only a part of what happened.   

The Post Office and its management were willing to expend vast sums of money, and to instruct the most expensive lawyers that money can buy, to prevent the truth coming out.  They failed, but they easily might not have done. 

Elsewhere I have suggested that were the English criminal justice system to be an airline, no one would fly it, such is the repeated incidence of disastrous failure.  

Miscarriage of justice sounds a bit abstract, so let me introduce you to my former client, Tracy Felstead, to give you a flavour of what a miscarriage of justice really means.  A miscarriage of justice is harm inflicted by the state upon an individual.  That is why the judicial oath is both so important and also onerous.  It is not a judge’s promise to do their best.  

In 2001 Tracy was a recent school-leaver, proud to have secured employment with the Post Office, at that time still a highly respected national institution.  There was a Horizon computer record that showed a shortfall of £11,500 at the till she was working on at her Post Office branch.  Under caution, interviewed by Post Office investigators at Peckham police station, she was asked: "can you demonstrate how you did not steal the money?"  Just reflect on that.  She protested her innocence.  She was prosecuted by the Post Office. There was no evidence she had ever physically taken any money.  The Post Office and Fujitsu objected to the cost of providing the electronic evidence that had been requested by Tracy’s expert witness. In the event the electronic evidence was not provided and her expert, with whom I have spoken and is highly skilled, was not called at her trial.  On 26 April 2002 Tracy was convicted of theft.  She was 19 years old. She refused to apologise when invited to do so by the trial judge, protesting she had done nothing wrong. She was immediately locked-up in a young offenders’ institution.   

In 2020 Tracy received £17,000 compensation out of the eventual settlement of £57 million, most of which went to pay the claimants’ lawyers’ fees and other costs in the group litigation, the largest component of which was funding costs.  

Tracy’s conviction was quashed by the Court of Appeal on 23 April 2021. The court found that the Post Office denied her a fair trial in not providing to her electronic evidence.  Prior to an interlocutory hearing in the Court of Appeal, in November 2020, Tracy suffered a nervous collapse, such was the continuing strain on her. The Court of Appeal held that it was an affront to the conscience of the court that Tracy had ever been prosecuted.  For 20 years, in every job interview since her conviction, Tracy had to declare that she was a convicted thief.  Imagine what that would have done for you.  Not one of you would be listening to this talk.

There are many who bear responsibility for Tracy’s prosecution. Others bear responsibility for it taking 20 years for Tracy, and others like her, to appeal.  The Post Office, including its Chairman, its Chief Executives, its Chief Accounting Officers, its Board, and its Compliance Audit and Risk Committee share responsibility for this catastrophe.  So do a significant number of lawyers and judges who failed to understand and properly evaluate the evidence.  

One of the features of these miscarriages of justice is that, in almost all cases, the only evidence against the defendant in question was a shortfall shown in the Horizon computer system.   If you remember only one thing from this talk, bear in mind that writing on a bit of paper in evidence is only marks on a piece of paper until first, someone explains what it means and, second, if it is a statement of fact, someone proves the truth of that fact.  

The simplest explanation for the Post Office scandal is that documents generated by the Horizon computer system were routinely treated by lawyers and judges as though statements of fact that were true, without bothering to consider how their truth should be established.  It was taken as given that what a computer record showed was correct. The shallowness of this approach is reprehensible. 

That apart, some Post Office lawyers knew of information that would have provided a defence to defendants. Other lawyers knew of information that would have enabled convicted defendants to launch appeals to the Court of Appeal long, long before March 2021. I hope that some of them may end up in prison for perverting the course of justice.  

At the outset of your careers you will think you will never do this.  Some of those lawyers would have imagined the same thing in their 20s.  You may ask what is it that caused them to lose their way.   I hope to give you some hints as to where the answer lies.

To start with I need to explain a few dry facts about the Post Office.  Their relevance will become clear.

The Post Office, though it is a private company limited by shares,  is in truth a creature of the government.  Its entire shareholding is owned by a company called UK Government Investments Limited. UKGI is owned directly by HM Treasury.  The duty of the Board of the Post Office under the Companies Act 2006 is to act in the interests of its shareholder, the government.   There is a government appointed representative on the Board. 

The accounting officer for the Post Office reports to the accounting officer of the Department for Business Energy & Industrial Strategy or BEIS.  It was previously called the Department for Business Innovation & Skills (BIS).  

Enterprises such as the Post Office are private enterprises through which the government delivers services.  Sometimes these are called “Arm’s Length Bodies” or more voguishly “Partner Organisations”.  In 2012 the Post Office was separated from the Royal Mail. A key government objective for the Post Office was to make it profitable, because for a long time its activities had been loss-making.  

Twenty-two years ago, in 1999, the then labour government had brought to an end a PPI procurement project. That project had been to run the state benefits system through the Benefits Agency in collaboration with the Post Office.  It was proposed to run the benefits scheme on a grand computer system called Horizon. Horizon became the largest non-military computer system in Europe.  The project did not go happily and incurred wasted cost to the taxpayer of about £700 million.  It was a fairly conventional failed government IT project.  At a Parliamentary Select Committee in 1999 several government ministers, including  the future Chancellor of the Exchequer Alistair Darling, explained to Members of Parliament that the Horizon computer system was insufficiently tested. It was said that it exposed the government to the prospect of a catastrophe.

The government decided that a whizzo way of dealing with the problem was to offload Horizon on to the Post Office. This was in the name of modernisation, and to salvage something from the failed procurement project. Fujitsu, the Japanese technology company, that earns billions from government contracts, took over the Horizon computer system and supplied it under a service contract to the Post Office.   

Some thinkers

I thought it convenient to mention a couple of thinkers whose thoughts shine a good deal of light upon the Post Office scandal. 

Carl von Clausewitz was one of the great thinkers on warfare.  He cut his teeth as a staff officer in the Prussian Army in the Napoleonic wars. He wrote down his reflections.  Some of these can readily be transferred to other forms of adversarial activity, including litigation.  One of Clausewitz’s insights is that warfare naturally tends towards an extreme, because of ever-greater effort to overcome your adversary.   He thought that the impediments to the tendency to “absolute war” were what he called “frictional” constraints.  Two of the most important were, first, constraint upon the material resources allocated to the contest – in effect, cost; a second constraint is moral – if you like, the stomach for a fight.  These constraints are themselves affected by the stakes that are in dispute. The greater the importance of the subject of the contest, the greater will be the resources likely to be expended.  If core values are in issue and the dispute is existential, there will be a tendency to extreme conflict. 

These principles can be seen in operation in the Post Office scandal.  By 2019 the Post Office was willing to deploy more than a hundred million pounds in costs to defending the group litigation brought by 500 postmasters. That is, literally to spare no expense.  Part of the explicit thinking (that the journalist Nick Wallis has recorded) was to wear out the claimants in costs.  The Post Office had effectively unlimited funds, being backed by the government. The prospect of the postmasters succeeding in their claims constituted an existential threat to the entire Post Office business and its brand.  The Post Office, in effect, bet the farm on defeating the 550 group claimants. It lost that bet.  The result is the insolvency of the Post Office.  This is because, without government support, it cannot meet the claims of some 2,400 others who have claimed under a Historic Shortfall compensation scheme set up last year.

The second thinker I shall refer to is the medieval theologian St Thomas Aquinas.  Aquinas postulated a moral dilemma in a commercial situation. A merchant in a sailing vessel arrived at an island with a cargo that the islanders had not received for many months.  The cargo was accordingly very valuable in the market.  What, however, if the merchant knew that coming behind them was a large number of ships laden with similar cargo?   Were they morally obliged to tell the islanders or could they exploit their ignorance by maintaining a high price?   I will leave that to you to decide,  but what the dilemma illustrates is that ignorance has commercial value.  In law there are a large number of circumstances where the imperative to take advantage of ignorance is powerful.  There is a line that can be crossed.  Ethics can be expensive.  

This problem lies at the heart of an ethical conundrum and a conflict of interest.  A lawyer owes a duty to their client, but they owe a prior duty to the court.  The problem is that these duties may, and sometimes do, collide.   The higher the stakes the greater will be the temptation to ask, not what course of action is right, but ‘what can I get away with?’  

As I shall explain, the Post Office scandal, at a high level of abstraction, is explained by the exploitation by the Post Office of ignorance.  The first kind of ignorance exploited was that the Post Office, for 20 years, failed to give proper disclosure of the many known problems with its Horizon system.   

The second kind of ignorance exploited by the Post Office was in violation of convicted defendants’ Article 6 rights under the ECHR.  Article 6 guarantees a right to a fair trial within a reasonable time. A fair trial includes any appeal. The Post Office concealed from defendants its knowledge, that it acquired in 2013, that would have enabled many appeals long before March 2021.  It did so not by accident, but by a deliberate strategy.  

PART II – TWO STREAMS OF FAILURE

The Post Office scandal defies simple analysis because it resulted from two separate streams of failure that each augmented the other.  

Some will have detected that I stand outside the cheerleading for English justice.  It is indeed the case that if you wish to engage in litigation where expense is of no consequence and you have unlimited resources, English justice will provide the Rolls Royce for your purpose.  For everyone else it provides a mechanism for the resolution of disputes that is ludicrously expensive, fraught with procedural hazard and delivers a result that is frequently unjustifiably unprincipled, and as a result unpredictable.  It also facilitates and encourages what Clausewitz warned of, in connection with war, the tendency to ever greater extremes.  

First stream of failure - misunderstanding how computers fail

The first problem that the Post Office litigation painfully exposes is that English judges and English lawyers commonly do not understand the propensity of computers to fail.   

If you think that’s harsh, in 1997 Lord Hoffmann, universally regarded as a clever judge, loftily declared that no one needs a degree in electronics to know whether a computer is working or not.  The Bates group civil litigation incurred colossal cost in exposing the fallacy of Lord Hoffmann’s observation.  The law treats computers like machines.  But computers are not machines – or at least they are not only machines.  Part of the present problem is that technology advances so rapidly that our means of dealing with it cannot keep pace.  There is more regulation covering the design of a toaster than there is of someone who writes and sells computer software.  

At a more concrete level, in 2010 at Mrs Seema Misra’s trial, prosecuting counsel opened and closed the case for the Crown by telling the jury that, were there to have been a problem with the Horizon computer system, any such problem would have been manifest and obvious to a Horizon computer terminal operator.   That’s, in effect, Lord Hoffmann’s point.  It’s wrong.

The Law Commission expressed a similar view in two reports to Parliament in 1993 and 1997. The Commission recommended that safeguards for evidence derived from computers in legal proceedings be removed.  Until 2000, a person relying on computer evidence at a criminal trial was required to prove that the computer was working properly.  The Post Office Horizon scandal tracks exactly the period since the removal of protections previously provided by the Police and Criminal Evidence Act 1984.

The mischief of the prosecution’s contention was that, by sleight of hand, it put the onus on Mrs Misra to explain to the jury the problems she encountered with Horizon.  All she could actually do was point to shortfalls she had experienced at her Horizon branch terminal – that is, all she could show was that the cash that she had received didn’t match the balancing figure on the Horizon computer screen.  In leaps it had escalated to £75,000.  She called the police and suspected her colleagues of theft.  The transcript of her trial shows that she was close to taunted by the prosecution for her being unable to point to identifiable problems:  ‘Mrs Misra says that there must be a fault with Horizon, but she can’t point to any problem she actually had’.   

The jury was invited to infer that the only cause of the discrepancy must be theft.  That should never have happened.  Had her trial been conducted properly, the Post Office should have been required to prove that the Horizon system was working at the time she experienced shortfalls.  As we now know from Mr Justice Fraser’s 2019 ‘Horizon Issues’ judgment (Bates and ors. v Post Office Ltd (‘Horizon Issues’) Rev 1 [2019] EWHC 3408 QB. https://www.bailii.org/ew/cases/EWHC/QB/2019/3408.html), the Post Office could not have done so.  Mrs Misra went to prison. She was 8 weeks’ pregnant and it was her son’s 10th birthday. On being sentenced she collapsed.  

The importance of computer disclosure

The problem with the Post Office’s litigation and prosecution of its postmasters is that, for 20 years, the Post Office gave wholly inadequate disclosure of known problems with its computer system.  

The most astonishing aspect of this to anyone technically half-literate is that, until 2019, the Post Office declined to disclose the Fujitsu Horizon Known Error Log.  In the massive group litigation, reported as Bates and Ors. v Post Office Ltd (Horizon Issues) [2019] EWHC 3408, it had three lines of objection to disclosing the Known Error Log (KEL) – a central log maintained to record, as its name suggests, errors in a computer system, their impact, and fixes undertaken to correct them.   

To start with, the Post Office’s solicitors, in correspondence questioned whether the Known Error Log existed at all.  Mr Justice Fraser concluded that it did.

Once the existence of the Known Error Log was established, the Post Office’s leading counsel submitted to the court that the KEL was irrelevant and the claimants’ demand for its disclosure was “a red-herring”.  Mr Justice Fraser concluded that the KEL was likely relevant to the claimants’ claims.  

Once established as existing and likely to be of relevance, the Post Office’s final contention was that, however relevant it might be, very regrettably it could not disclose it because it was not the Post Office’s Known Error Log, but rather Fujitsu’s.   

Mr Justice Fraser’s response to this, was to point out that, in fact, as a matter of contract between the Post Office and Fujitsu, the Post Office was entitled to the Known Error Log.  

The importance of the KEL is impossible to overstate.   The judge found it not to be a red-herring, but, on the contrary, fundamental in revealing the true and full extent of Horizon’s unreliability over time, the bugs identified in the system, their effects on branch Horizon accounts, and the fixes that were implemented.  

In case you are not already disconcerted, Mrs Misra, on no less than four separate occasions in the course of her prosecution, requested that the court order disclosure by the Post Office of Horizon error records.  

Three different judges dismissed each of Mrs Misra’s applications.  In the last application, at the end of her trial, her defence counsel submitted that she couldn’t have a fair trial without further disclosure.  The trial judge disagreed and said she could have a fair trial without it.  10 years later the Criminal Cases Review Commission concluded that Mrs Misra didn’t receive a fair trial.  Why? Because she was not given proper disclosure by the Post Office.  

This ought to be a matter of acute concern to the judiciary, to the legal profession and also to the public.  

In November 2020 at the personal invitation of the Under Secretary of State, I submitted a paper to the Ministry of Justice contributed to or endorsed by 8 experts, six of whom are, or have been, university professors.  I understand that our recommendations have been submitted for consideration by the Attorney General and by the Chair of the Criminal Procedure Rule Committee, the Lord Chief Justice.

Second stream of failure - Post Office mendacity

What I have called the second complicating stream is Post Office mendacity – institutional ethical failure, if you will.   I will give three examples.

It may come as a surprise to you to know that in September 2010, a month before Mrs Misra’s trial, a significant number of senior employees of Fujitsu and senior employees of the Post Office held a high level meeting at which a bug was discussed called the “Receipts and Payments mismatch” bug.   This bug, it was acknowledged, would cause a postmaster’s receipts and payments to appear to balance at the terminal but not do so on the Post Office’s main servers.   In short, an error caused by this bug would not be apparent or obvious to an operator.  

It was recorded in writing that this might present a problem for the Post Office in its “ongoing legal cases”. A senior Fujitsu employee and computer engineer who was present at that meeting gave evidence a few weeks later at Mrs Misra’s trial.  He said nothing about it. If you are not deeply shocked by that you ought to be.  Mr Justice Fraser described the bug as having been kept “secret”.  If you have been following me, disclosure of that bug would have undermined statements made by the prosecution, both in opening and closing its case against Seema Misra.  

I want to tell you briefly about Lee Castleton.  Lee Castleton invested his life savings in acquiring a branch Post Office in in Yorkshire in 2003.   As explained, Fujitsu acquired the Horizon system and provided it to the Post Office.  It was known to have problems with its reliability.

Recognising the systemic risk that it was shouldering, the Post Office with its lawyers devised an extremely adverse contract that shifted the risk in the system to postmasters.  This was achieved by a contractual term that provided that a Horizon account balance stated by a postmaster to the Post Office was an “account” in law.  An “account” is analogous to acknowledgement of a debt due.   The legal effect is that once stated, the burden is on the paying party, if they want to dispute the account for any reason, to show why the account is wrong.  The postmaster was contractually required to make up, out of their own funds, any shortfall.  If a postmaster’s account was wrong, not by any fault of theirs but because the system had failed, as a matter of contract it was down to the postmaster concerned to show and explain why.

That presented the hapless postmaster with an insuperable evidential and legal problem.  

The first occasion on which the Post Office was required to positively prove that the Horizon system worked properly was in 2019.  It then failed dismally.   The trial judge described the Post Office’s contentions that Horizon was robust and reliable as the 21st century equivalent of maintaining that the earth is flat.  

In 2006 Lee Castleton was sued for a shortfall shown at his Horizon terminal of about £26,000.  He was careful and knew he had not made mistakes. 

Mr Castleton was unrepresented by lawyers at his 6-day trial in 2006.  He had run out of money to pay for legal representation.  He had called the Horizon helpline many, many times, complaining that he had problems balancing his accounts.  That cut no ice with either the Post Office or with the judge.  Mr Castleton was persuaded to accept that the balance that he had provided to the Post Office was in law “an account”.  He accepted that at the outset of the trial.  He was doomed from the word go.

In law, the essential feature of an account is that it is the result of agreement.  It took 13 years for Mr Castleton’s concession to be shown by Mr Justice Fraser in 2019 to have been wrongly made. That is because there was no agreement of the account. There was no contractual mechanism for disputing the Horizon computer figure.  The contractual term was, in effect ‘agree the Horizon figure or stop operating your Post Office’.  Neat, but utterly unreasonable and oppressive.  

The contractual provision had the purported legal effect of transferring the risk of Horizon failure to hapless postmasters.  It is unsatisfactory that for 20 years it went unexamined.  Most postmasters could never have afforded to instruct a barrister of sufficient experience to challenge the Post Office.  Lee went like a lamb to the slaughter.

The trial judge, without hearing any expert evidence, rejected Mr Castleton’s defence that the Horizon system might not have been working properly.  The judge concluded that it was working properly.  You may ask yourself how he arrived at that conclusion.  You will remain mystified if you take the trouble to read the judge’s judgment: Post Office Ltd v Castleton [2007] EWHC 5 QB.

(https://www.bailii.org/ew/cases/EWHC/QB/2007/5.html.)

The Post Office obtained a costs order against Mr Castleton for £321,000. 

The costs order made against him caused Lee Castleton to become bankrupt.  For several years he and his family were rendered almost destitute. They lived in accommodation without a hot water boiler because he could not afford one.  Ask yourself how many postmasters the Post Office’s solicitors will have shown that hopelessly flawed reported High Court judgment to, to make them think twice before taking on the Post Office.  

The judgment in Mr  Castleton’s case is now shown to be wrong in virtually every respect, both as to the law and as to its facts.  I have written about that decision in an article entitled ‘The Harm that judges do’.    

The third aspect of ethical failure by the Post Office is what can be called, “the cover-up”.

In October 2020, in one document amongst the many thousands I had looked at, I noticed a remarkable couple of lines that referred to the Post Office main Board, in August 2013, having been told by external solicitors, about concerns about the Fujitsu computer engineer who had given evidence at Mrs Misra’s trial.   I could not for the life of me understand why the Board of the Post Office was receiving notice about one of its expert witnesses.  

My solicitors Aria Grace Law asked a large number of questions about this. These elicited from the Post Office in November 2020 the now famous “Clarke Advice”.  That document revealed that, as long ago as in 2013, the Post Office knew that its principal expert witness had repeatedly given incomplete and misleading evidence to the court. He had thereby put the Post Office in breach of its obligations to the court as prosecutor.  It was suggested he should not be used as a witness again.  It is the single most explosive document I have encountered in 30 years’ practice at the Bar.  

One of the extraordinary aspects of the Clarke Advice, is that it revealed a curious difference.  If you read the judgments of Mr Justice Fraser, you will see that he devotes a good deal of space to the remarkable fact that a Fujitsu expert computer engineer, Mr Jenkins, was the source of much of the Post Office’s evidence in 2019.  But he was not called as a witness.  In their written submissions at the close of the Horizon Issues trial the Post Office gave an explanation for Mr Jenkins not being called as a witness.   The remarkable thing is, that the reason given to Mr Justice Fraser in 2019 by the Post Office is rather different from, and does not sit easily with, an alternative explanation, as suggested by the Clarke Advice.  If you are interested you can pursue this by considering the Court of Appeal’s judgment of April 2021 and the judgment of Mr Justice Fraser of December 2019.

The main point, however, is that in my view, any reasonably competent and conscientious lawyer in 2013, in possession of that information – that is to say the known incompleteness of evidence given to the court by their expert - would immediately have grasped that it could potentially render the conviction of a person, convicted on the basis of evidence given by that Fujitsu employee, unsafe. A prosecutor in the possession of such information has an unqualified duty in law to disclose it to a convicted defendant. 

I had been puzzled, until November 2020, as to why, from 2014, the Post Office had not undertaken any prosecutions of postmasters, when in 2012 it had undertaken more than 40. The Clarke Advice provided my answer. The Post Office in 2013-2014 undertook a major change in its policy.  But it was keeping quiet about the reason.

A question to whet your appetite

I will leave you with a question.  The key is timing, so keep in mind the dates.

On 17 December 2014 there was an adjournment debate in Westminster Hall moved by Mr James Arbuthnot MP, now Lord Arbuthnot.  (An adjournment debate is a debate without a vote. Such debates are usually on subjects of general public importance.) Second Sight Ltd, a specialist firm of forensic accountants, in response to pressure from Members of Parliament, had two years previously been appointed by the Post Office to look into the Post Office’s treatment of its postmasters.  Sir Anthony Hooper, a former Court of Appeal judge, had been appointed to oversee a mediation process.

At the December 2014 debate, Jo Swinson MP, then the government minister for Postal Services, having heard from MPs a series of shocking stories of the treatment by the Post Office of its postmasters, said this to Parliament:

“…in such a situation what I would normally propose doing is to get a team of forensic accountants to go through every scenario and to have the report looked at by someone independent, such as a former Court of Appeal judge. We have a system in place to look at cases … If any information comes to light during the course of the mediation or the investigations, that suggests that any of the convictions that have taken place are unsafe, there is a legal duty for that information to be disclosed…. I fail to see how action can be taken without properly looking in detail at every single one of the cases through exactly the kind of scheme that we have set up... . We have to look at the details and the facts, and that has to be done forensically. That is why Second Sight, the team of forensic accountants, has been employed and why we have someone of the calibre of Sir Anthony Hooper to oversee the process.”

In 2015, the Post Office told Parliament that it had received no evidence that the conviction of any applicant to the mediation scheme was unsafe.  Lord Arbuthnot is on record in 2020 as stating that the Post Office lied to Parliament.  To my knowledge he has not been contradicted.

Be that as it may, less than 6 weeks’ after the minister’s statement to Parliament, on 3 February 2015,  Ian Henderson of Second Sight gave this evidence to the Business Innovation and Skills Parliamentary Select Committee:

Ian Henderson  “we have seen no evidence that the Post Office’s own investigators were ever trained or prepared to consider that Horizon was at fault. That was never a factor that was taken into account in any of the investigations by Post Office that we have looked at.”

“That is a matter of huge concern, and that is why we are determined to get to the bottom of this matter, because we think that there have been prosecutions brought by the Post Office where there has been inadequate investigation and inadequate evidence to support some of the charges brought against defendants … this … is why we need to see the full prosecution files.”

“When we have looked at the evidence made available to us… I have not been satisfied that there is sufficient evidence to support a charge for theft. You can imagine the consequences that flow from that. That is why we, Second Sight, are determined to get to the bottom of this matter, which we regard as extremely serious.”  

So Ian Henderson in February 2015 said that Second Sight wanted to do exactly what Jo Swinson MP, the government minister, in December 2014 had said the government saw to be necessary. 

Within a month of Mr Henderson’s evidence to the Select Committee, in March 2015 the Post Office summarily terminated the engagement of Second Sight and abruptly withdrew from the mediation process.  

I raise this question for you to reflect upon.  Given what the minister had told Parliament on 17 December 2014, is it plausible that the Post Office sacked Second Sight without briefing the government, as its owner, on the reason for it doing so?  I think it inconceivable that it did not. 

Assuming the Post Office did brief the government on those reasons, the Post Office either gave a truthful account of the reason for sacking Second Sight and withdrawing from mediation, or else it gave an incomplete and misleading explanation.    

If the Post Office gave a truthful explanation to the government, that would make the government complicit in a 6 year cover-up. On the other hand, if the Post Office gave a misleading explanation to government, why has there not been the slightest suggestion of this from the government, given the seismic shocks represented by Mr Justice Fraser’s judgment of December 2019 and, even more so, the Court of Appeal’s devastating judgment of 23 April 2021?  

These are very big and important questions.  Until now, I do not believe that they have been raised.

These questions are not academic.  The Post Office’s behaviour has destroyed peoples’ lives.  I have provided the links to two podcasts by The Guardian newspaper on my former client Janet Skinner’s experience.  That her story reduced the journalist interviewing her to tears says enough.  

You might weep too, but weep for English justice.  


© Paul Marshall June 2021


Cornerstone Barristers

2-3 Gray’s Inn Square

Gray’s Inn, London


Further reading: 

Hamilton and ors. v Post Office Ltd [2021] EWCA Crim 577. https://www.bailii.org/ew/cases/EWCA/Crim/2021/577.html

Bates and ors. v Post Office Ltd (‘Horizon Issues’) Rev 1 [2019] EWHC 3408 QB. https://www.bailii.org/ew/cases/EWHC/QB/2019/3408.html

Bates and ors. v Post Office Ltd (‘Common Issues’) [2019] EWHC 606 QB. https://www.bailii.org/ew/cases/EWHC/QB/2019/606.html

Post Office Ltd v Castleton [2007] EWHC 5 QB. https://www.bailii.org/ew/cases/EWHC/QB/2007/5.html

The harm that judges do – misunderstanding computer evidence: Mr Castleton’s story, Paul Marshall, Digital Evidence and Electronic Signature Law Review 17 (2020) 25. https://journals.sas.ac.uk/deeslr/article/view/5172/5037

English law’s presumption that computer systems are reliable: time for a rethink? Paul Marshall, Butterworths Journal of International Banking and Financial Law, 7 (2020) 433.

Recommendations for the probity of computer evidence, Marshall, Christie, Ladkin, Littlewood, Mason, Newby, Rogers, Thimbleby, Thomas,  Digital Evidence and Electronic Signature Law Review 18 (2021) 18. https://journals.sas.ac.uk/deeslr/article/view/5240/5083

The Law Commission presumption concerning the dependability of computer evidence, Ladkin, Littlewood, Thimbleby, Thomas, Digital Evidence and Electronic Signature Law Review 17 (2020) 1. https://journals.sas.ac.uk/deeslr/article/view/5143

Stephen Mason and Daniel Seng (Eds.) Electronic Evidence 4th Edition, Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study University of London 2017, https://humanities-digital-library.org/index.php/hdl/catalog/book/electronicevidence (5th edition forthcoming 2021).

Robustness of software’, Peter Ladkin, Digital Evidence and Electronic Signature Law Review 17 (2020) 15. https://journals.sas.ac.uk/deeslr/article/view/5171.

The Hearsay Rule in Civil Proceedings 1993 Law Com. No. 245.

Evidence in Criminal Proceedings Hearsay and Related Topics 1997 Law Com. No. 216.

The Guardian Podcasts on Janet Skinner’s experience, by Anushka Asthana and Richard Brooks.

https://www.theguardian.com/news/audio/2021/may/10/exposing-the-great-post-office-scandal-part-1

https://www.theguardian.com/news/audio/2021/may/11/the-post-office-scandal-part-2

BBC Radio 4, 11-part Podcast by Nick Wallis, The Great Post Office trial https://www.bbc.co.uk/programmes/m000jf7j/episodes/downloads